1

1. Plaintiffs, on behalf of themselves and a class of similarly situated persons, bring this

2 action and allege upon personal knowledge and belief as to their own acts, and upon information and

3 belief (based on the investigation of counsel) as to all other matters, as to which allegations Plaintiffs

4 believe substantial evidentiary support exists or will exist after a reasonable opportunity for further
5 investigation and discovery, as follows:
6

7

PRELIMINARY STATEMENT

8

2. This case challenges an illegal and unconstitutional program of dragnet

9 communications surveillance conducted by the National Security Agency (the “NSA”) and other

10 Defendants in concert with major telecommunications companies (“Defendants” is defined

11 collectively as the named defendants and the Doe defendants as set forth in paragraphs 25 through
12 38 below).
13 3. This program of dragnet surveillance (the “Program”), first authorized by Executive
14 Order of the President in October of 2001 (the “Program Order”) and first revealed to the public in
15
16 December of 2005, continues to this day.

17

4. Some aspects of the Program were publicly acknowledged by the President in

18 December 2005 and later described as the “terrorist surveillance program” (“TSP”).

19

5. The President and other executive officials have described thTeSP’s activities, which

20 were conducted outside the procedures of the Foreign Intelligence Surveillance Act (“FISA”) and
21 without authorization by the Foreign Intelligence Surveillance Court (“FISC”), as narrowly targeting
22

23 for interception the international communications of persons linked to Al Qaeda.

24

6. The Attorney General and the Director of National Intelligence have since publicly

25 admitted that the TSP was only one particular aspect of the surveillance activities authorized by the

26 Program Order. 27

28

COMPLAINT

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1

7. In addition to eavesdropping on or reading specific communications, Defendants

2 have indiscriminately intercepted the communications content and obtained the communications
3 records of millions of ordinary Americans as part of the Program authorized by the President.
4 8. The core component of the Program is Defendants’ nationwide network of
5 sophisticated communications surveillance devices, attached to the key facilities of
6 telecommunications companies such as AT&T that carry Americans’ Internet and telephone
7 communications.
8 9. Using this shadow network of surveillance devices, Defendants have acquired and
9 continue to acquire the content of a significant portion of the phone calls, emails, instant messages,
10
11 text messages, web communications and other communications, both international and domestic,
12 of practically every American who uses the phone system or the Internet, including Plaintiffs and

13 class members, in an unprecedented suspicionless general search through the nation’s

14 communications networks.
15 10. In addition to using surveillance devices to acquire the domestic and international
16 communications content of millions of ordinary Americans, Defendants have unlawfully solicited
17 and obtained from telecommunications companies such as AT&T the complete and ongoing
18
19 disclosure of the private telephone and Internet transactional records of those companies’ millions

20 of customers (including communications records pertaining to Plaintiffs and class members),

21 communications records indicating who the customers communicated with, when and for how long,
22 among other sensitive information.
23 11. This non-content transactional information is analyzed by computers in conjunction
24 with the vast quantity of communications content acquired by Defendants’ network of surveillance
25 26 devices, in order to select which communications are subjected to personal analysis by staff of the
27 NSA and other Defendants, in what has been described as a vast “data-mining” operation.

28

COMPLAINT

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1

12. Plaintiffs and class members are ordinary Americans who are current or former

2 subscribers to AT&T’s telephone and/or Internet services.

3

13. Communications of Plaintiffs and class members have been and continue to be

4 illegally acquired by Defendants using surveillance devices attached to AT&T’s network, and

5 Defendants have illegally solicited and obtained from AT&T the continuing disclosure of private

6 communications records pertaining to Plaintiffs and class members. Plaintiffs’ communications or

7 activities have been and continue to be subject to electronic surveillance.

8

14. Plaintiffs are suing Defendants to enjoin their unlawful acquisition of the

9 communications and records of Plaintiffs and class members, to require the inventory and

10 destruction of those that have already been seized, and to obtain appropriate statutory, actual, and

11 punitive damages to deter future illegal surveillance.

12

JURISDICTION AND VENUE

13

15. This court has subject matter jurisdiction over the federal claims pursuant to 28

14 U.S.C. § 1331, 18 U.S.C. § 2712, and 5 U.S.C. § 702.

15

16. Plaintiffs are informed, believe and thereon allege that Defendants have sufficient

16 contacts with this district generally and, in particular, with the events herein alleged, that Defendants
17 are subject to the exercise of jurisdiction of this court over the person of such Defendants and that
18

19 venue is proper in this judicial district pursuant to 28 U.S.C. § 1391.

20

17. Plaintiffs are informed, believe and thereon allege that a substantial part of the events

21 giving rise to the claims herein alleged occurred in this district and that Defendants and/or agents

22 of Defendants may be found in this district.
23 18. Intradistrict Assignment: Assignment to the San Francisco/Oakland division is
24 proper pursuant to Local Rule 3-2(c) and (d) because a substantial portion of the events and
25 omissions giving rise to this lawsuit occurred in this district and division.
26 19. Plaintiffs have fully complied with the presentment of claim provisions of 28 U.S.C.
27 § 2675, as required for their claimsunder 18 U.S.C. § 2712. Plaintiffs timely served notice of their
28

COMPLAINT

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1 claims on the NSA and the Department of Justice on December 19, 2007, and over six months have

2 passed since the filing of that notice.

3 PARTIES

4

20. Plaintiff Tash Hepting, a senior systems architect, is an individual residing in

5 Livermore, California. Hepting has been a subscriber and user of AT&T’s residential long distance
6
telephone service since at least June 2004. 7

8

21. Plaintiff Gregory Hicks is an individual residing in San Jose, California. Hicks, a

9 retired Naval Officer and systems engineer, has been a subscriber and user of AT&T’s residential

10 long distance telephone service since February 1995.

11

22. Plaintiff Carolyn Jewel is an individual residing in Petaluma, California. Jewel, a

12 database administrator and author, has been a subscriber and user of AT&T’s WorldNet dial-up
13 Internet service since approximately June 2000.
14
23. Plaintiff ErikKnutzen is an individual residing in Los Angeles, California.Knutzen, 15

16 a photographer and land use researcher, was a subscriber and user of AT&T’s WorldNet dial-up

17 Internet service from at least October 2003 until May 2005. Knutzen is currently a subscriber and

18 user of AT&T’s High Speed Internet DSL service.

19

24. Plaintiff Joice Walton is an individual residing in San Jose, California. Walton, a

20 high technology purchasing agent, is a current subscriber and user of AT&T’s WorldNet dial-up

21 Internet service. She has subscribed to and used this service since around April 2003.

22

25. Defendant National Security Agency (NSA) is an agency under the direction and

23 control of the Department of Defense that collects, processes and disseminates foreign signals

24 intelligence. It is responsible for carrying out the Program challenged herein.

25

26. Defendant Lieutenant General Keith B. Alexander is the current Director of the NSA,

26 in office since April 2005. As NSA Director, defendant Alexander has ultimate authority for

27 supervising and implementing all operations and functions of the NSA, including the Program.

28

COMPLAINT

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1

27. Defendant Lieutenant General (Ret.) Michael V. Hayden is the former Director of

2 the NSA, in office from March 1999 to April 2005. While Director, Defendant Hayden had ultimate

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

4 Program.

5

28. Defendant United States is the United States of America, its departments, agencies,

6 and entities.

7

29. Defendant George W. Bush is the current President of the United States, in office

8 since January 2001. Mr. Bush authorized and continues to authorize the Program.
9 30. Defendant Richard B. Cheney is the current Vice President of the United States, in
10 office since January 2001. Defendant Cheney was personally involved in the creation, development
11 and implementation of the Program.
12 31. Defendant David S. Addington is currently the chief of staff to Defendant Cheney,
13 in office since October 2005. Previously, DefendanAt ddington served as legal counsel to the Office
14 of the Vice President. Defendant Addington was personally involved in the creation, development
15 and implementation of the Program. On information and belief, Defendant Addington drafted the
16 documents that purportedly authorized the Program.
17 32. Defendant Department of Justice is a Cabinet-level executive department in the
18 United States government charged with law enforcement, defending the interests of the United States
19 according to the law, and ensuring fair and impartial administration of justice for all Americans.
20 33. Defendant Michael B.Mukasey is the current Attorney General of the United States,
21 in office since November 2007. As Attorney General, DefendanMt ukasey approves and authorizes
22 the Program on behalf of the Department of Justice.
23 34. Defendant Alberto R. Gonzales is the former Attorney General of the United States,
24

25 in office from February 2005 to September 2007, and also served as White House Counsel to

26 President George W. Bush from January 2001 to February 2005. Defendant Gonzales was

27 personally involved in the creation, development and implementation of the Program. As Attorney

28

COMPLAINT

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1 General, Defendant Gonzales authorized and approved the Program on behalf of the Department of

2 Justice.

3

35. Defendant John D. Ashcroft is the former Attorney General of the United States, in

4 office from January 2001 to February 2005. As Attorney General, Defendant Ashcroft authorized
5 and approved the Program on behalf of the Department of Justice.
6

7

36. Defendant Vice Admiral (Ret.) John M. McConnell is the Director of National

8 Intelligence (“DNI”), in office since February 2007. Defendant McConnell has authority over the

9 activities of the U.S. intelligence community, including the Program.

10

37. Defendant John D. Negroponte was the first Director of National Intelligence, in

11 office from April 2005 to February 2007. As DNI, Defendant Negroponte had authority over the

12 activities of the U.S. intelligence community, including the Program.

13

38. At all times relevant hereto, Defendants Doe Nos. 1-100, inclusive (the “Doe

14 defendants”), whose actual names Plaintiffs have been unable to ascertain notwithstanding

15 reasonable efforts to do so, but who are sued herein by the fictitious designation “Doe # 1” through

16 “Doe # 100,” were agents or employees of the NSA, the DOJ, the White House, or were other

17 government agencies or entities or the agents or employees of such agencies or entities, who

18 authorized or participated in the Program. Plaintiffs will amend this complaint to allege their true

19 names and capacities when ascertained. Upon information and belief each fictitiously named

20 Defendant is responsible in some manner for the occurrences herein alleged and the injuries to

21 Plaintiffs and class members herein alleged were proximately caused in relation to the conduct of

22 Does 1-100 as well as the named Defendants.

23

FACTUAL ALLEGATIONS RELATED TO ALL COUNTS

24

THE PRESIDENT’S AUTHORIZATION OF THE PROGRAM

25

39. On October 4, 2001, President Bush, in concert with White House Counsel Gonzales,

26 NSA Director Hayden, Attorney General Ashcroft and other Defendants, issued a secret presidential

27 order (the “Program Order”) authorizing a range of surveillance activities inside of the United States

28

COMPLAINT

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1 without statutory authorization or court approval, including electronic surveillance of Americans’

2 telephone and Internet communications (the “Program”).

3

40. This Program of surveillance inside the United States began at least by October 6,

4 2001, and continues to this day.

5

41. The President renewed and, on information and belief, renews his October 4, 2001

6 order approximately every 45 days.

7

42. The Program of domestic surveillance authorized by the President and conducted by

8 Defendants required and requires the assistance of major telecommunications companies such as

9 AT&T, whose cooperation in the Program was and on information and belief is obtained based on

10 periodic written requests from Defendants and/or other government agents indicating that the

11 President has authorized the Program’s activities, and/or based on oral requests from Defendants

12 and/or other government agents.

13

43. The periodic written requests issued to colluding telecommunications companies,

14 including AT&T, have stated and on information and belief do state that the Program’s activities

15 have been determined to be lawful by the Attorney General, except for one period of less than sixty

16 days.

17

44. On information and belief, at some point prior to March 9, 2004, the Department of

18 Justice concluded that certain aspects of the Program were in excess of the President’s authority and

19 in violation of criminal law.

20

45. On Tuesday, March 9, 2004, Acting Attorney General James Comey advised the

21 Administration that he saw no legal basis for certain aspects of the Program. The then-current

22 Program authorization was set to expire March 11, 2004.

23

46. On Thursday, March 11, 2004, the President renewed the Program Order without a

24 certification from the Attorney General that the conduct it authorized was lawful.

25

47. On information and belief, the March 11 Program Order instead contained a

26 statement that the Program’s activities had been determined to be lawful by Counsel to the President

27 Alberto Gonzales, and expressly claimed to override the Department of Justice’s conclusion that the

28

COMPLAINT

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1 Program was unlawful as well as any act of Congress or judicial decision purporting to constrain the

2 President's power as commander in chief.

3

48. For a period of less than sixty days, beginning on or around March 11, 2004, written

4 requests to the telecommunications companies asking for cooperation in the Program stated that the

5 Counsel to the President, rather than the Attorney General, had determined the Program’s activities

6 to be legal.

7

49. By their conduct in authorizing, supervising, and implementing the Program,

8 Defendants, including the President, the Vice-President, the Attorneys General and the Directors of

9 NSA since October 2001, the Directors of National Intelligence since 2005 and the Doe defendants,

10 have aided, abetted, counseled, commanded, induced or procured the commission of all Program

11 activities herein alleged, and proximately caused all injuries to Plaintiffs herein alleged.

12 THE NSA’S DRAGNET INTERCEPTION OF COMMUNICATIONS TRANSMITTED THROUGH AT&T FACILITIES
13 50. AT&T is a provider of electronic communications services, providing to the public
14 the ability to send or receive wire or electronic communications.
15 51. AT&T is also a provider of remote computing services, providing to the public
16 computer storage or processing services by means of an electronic communications system.
17 52. Plaintiffs and class members are, or at pertinent times were, subscribers to and/or
18
customers of AT&T’s electronic communications services and/or computer storage or processing 19
20 services.

21

53. AT&T maintains domestic telecommunications facilities over which millions of

22 Americans’ telephone and Internet communications pass every day.

23

54. These facilities allow for the transmission of interstate and/or foreign electronic voice

24 and data communications by the aid of wire, fiber optic cable, or other like connection between the

25 point of origin and the point of reception.

26

55. One of these AT&T facilities is located at on Folsom Street in San Francisco, CA

27 (the “Folsom Street Facility”).

28

COMPLAINT

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1

56. The Folsom Street Facility contains a “4ESS Switch Room.” A 4ESS switch is a

2 type of electronic switching system used to route long-distance telephone communications transiting

3 through the facility.

4

57. The Folsom Street Facility also contains a “WorldNet Internet Room” containing

5 large routers, racks of modems for AT&T customers’ WorldNet dial-up services, and other

6 telecommunications equipment through which wire and electronic communications to and from

7 AT&T’s dial-up and DSL Internet service subscribers, including emails, instant messages, Voice-

8 Over-Internet-Protocol (“VOIP”) conversations and web browsing requests, are transmitted.

9

58. The communications transmitted through the WorldNet Internet room are carried as

10 light signals on fiber-optic cables that are connected to routers for AT&T’s WorldNet Internet

11 service and are a part of AT&T’s Common Backbone Internet network (“CBB”), which comprises

12 a number of major hub facilities such as the Folsom Street Facility that are connected by a mesh of

13 high-speed fiber optic cables and that are used for the transmission of interstate and foreign

14 communications.

15

59. The WorldNet Internet Room is designed to route and transmit vast amounts of

16 Internet communications that are “peered” by AT&T between AT&T’s CBB and the networks of

17 other carriers, such asConXion, Verio, XO, Genuity, Qwest, PAIX,Allegieance, Abovenet, Global

18 Crossing, C&W, UUNET, Level 3, Sprint,Telia, PSINet, and MAE-West. “Peering” is the process

19 whereby Internet providers interchange traffic destined for their respective customers, and for

20 customers of their customers.

21

60. Around January 2003, the NSA designed and implemented a program in

22 collaboration with AT&T to build a surveillance operation at AT&T’s Folsom Street Facility, inside

23 a secret room known as the “SG3 Secure Room”.

24

61. The SG3 Secure Room was built adjacent to the Folsom Street Facility’s 4ESS

25 switch room.

26

62. An AT&T employee cleared and approved by the NSA was charged with setting up

27 and maintaining the equipment in the SG3 Secure Room, and access to the room was likewise

28 controlled by those NSA-approved AT&T employees.

COMPLAINT

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1

63. The SG3 Secure Room contains sophisticated computer equipment, including a

2 device know as aNarus Semantic Traffic Analyzer (the N“ arus STA”), which is designed to analyze

3 large volumes of communications at high speed, and can be programmed to analyze the contents and

4 traffic patterns of communications according to user-defined rules.

5

64. By early 2003, AT&T—under the instruction and supervision of the NSA—had

6 connected the fiber-optic cables used to transmit electronic and wire communications through the

7 WorldNet Internet Room to a “splitter cabinet” that intercepts a copy of all communications

8 transmitted through the WorldNet Internet Room and diverts copies of those communications to the

9 equipment in the SG3 Secure Room. (Hereafter, the technical means used to receive the diverted

10 communications will be referred to as the “Surveillance Configuration.”)

11

65. The equipment in the SG3 Secure Room is in turn connected to a private high-speed

12 backbone network separate from the CBB (the “SG3 Network”).

13

66. NSA analysts communicate instructions to the SG3 Secure Room’s equipment,

14 including theNarus STA, using the SG3 Network, and the SG3 Secure Room’s equipment transmits

15 communications based on those rules back to NSA personnel using the SG3 Network.

16

67. The NSA in cooperation with AT&T has installed and is operating a nationwide

17 network of Surveillance Configurations in AT&T facilities across the country, connected to the SG3

18 Network.

19

68. This network of Surveillance Configurations includes surveillance devices installed

20 at AT&T facilities in Atlanta, GA; Bridgeton, MO; Los Angeles, CA; San Diego, CA; San Jose CA;

21 and/or Seattle, WA.

22

69. Those Surveillance Configurations divert all peered Internet traffic transiting those

23 facilities into SG3 Secure Rooms connected to the secure SG3 Network used by the NSA, and

24 information of interest is transmitted from the equipment in the SG3 Secure Rooms to the NSA

25 based on rules programmed by the NSA.

26

70. This network of Surveillance Configurations indiscriminately acquires domestic

27 communications as well as international and foreign communications.

28

COMPLAINT

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1

71. This network of Surveillance Configurations involves considerably more locations

2 than would be required to capture the majority of international traffic.

3

72. This network of Surveillance Configurations acquires over half of AT&T’s purely

4 domestic Internet traffic, representing almost all of the AT&T traffic to and from other providers,

5 and comprising approximately 10% of all purely domestic Internet communications in the United

6 States, including those of non-AT&T customers.

7

73. Through this network of Surveillance Configurations and/or by other means,

8 Defendants have acquired and continue to acquire the contents of domestic and international wire

9 and/or electronic communications sent and/or received by Plaintiffs and class members, as well as

10 non-content dialing, routing, addressing and/or signaling information pertaining to those

11 communications.

12

74. In addition to acquiring all of the Internet communications passing through a number

13 of key AT&T facilities, Defendants and AT&T acquire all or most long-distance domestic and

14 international phone calls to or from AT&T long-distance customers, including both the content of

15 those calls and dialing, routing, addressing and/or signaling information pertaining to those calls,

16 by using a similarly nationwide network of surveillance devices attached to AT&T’s long-distance

17 telephone switching facilities, and/or by other means.

18

75. The contents of communications to which Plaintiffs and class members were a party,

19 and dialing, routing, addressing, and/or signaling information pertaining to those communications,
20 were and are acquired by Defendants in cooperation with AT&T by using the nationwide network
21 of Surveillance Configurations, and/or by other means.
22 76. Defendants’ above-described acquisition in cooperation with AT&T of Plaintiffs’ and
23 class members’ communications contents and non-content information is done without judicial,
24 statutory, or other lawful authorization, in violation of statutory and constitutional limitations, and
25 in excess of statutory and constitutional authority.
26 77. Defendants’ above-described acquisition in cooperation with AT&T of Plaintiffs’
27
28 and class members’ communications contents and non-content information is done without

COMPLAINT

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1 probable cause or reasonable suspicion to believe that Plaintiffs or class members have

2 committed or are about to commit any crime or engage in any terrorist activity.

3

78. Defendants’ above-described acquisition in cooperation with AT&T of Plaintiffs’ and

4 class members’ communications contents and non-content information is done without probable 5 cause or reasonable suspicion to believe thaPt laintiffs or class membersare foreign powers or agents 6 thereof.

7

79. Defendants’ above-described acquisition in cooperation with AT&T of Plaintiffs’ and

8 class members’ communications contents and non-content information is donewithout any reason 9 to believe that the information is relevant to an authorized criminal investigation or to an authorized

10 investigation to protect against international terrorism or clandestine intelligence activities.

11

80. Defendants’ above-described acquisition in cooperation with AT&T of Plaintiffs’ and

12 class members’ communications contents and non-content information was directly performed,
13 and/or aided, abetted, counseled, commanded, induced or procured, by Defendants.
14

15

81. On information and belief, Defendants will continue to directly acquire, and/or aid,

16 abet, counsel, command, induce or procure the above-described acquisition in cooperation with

17 AT&T, the communications contents and non-content information of Plaintiffs and class members.

18 THE NSA’S DRAGNET COLLECTION OF COMMUNICATIONS RECORDS FROM

19

AT&T DATABASES

20

82. Defendants have since October 2001 continuously solicited and obtained the

21 disclosure of all information in AT&T’s major databases of stored telephone and Internet records,

22 including up-to-the-minute updates to the databases that are disclosed in or near real-time.

23

83. Defendants have solicited and obtained from AT&T records concerning

24 communications to which Plaintiffs and class members were a party, and continue to do so.
25 84. In particular, Defendants have solicited and obtained the disclosure of information
26 managed by AT&T’s “Daytona” database management technology, which includes records
27
28 concerning both telephone and Internet communications, and continues to do so.

COMPLAINT

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1

85. Daytona is a database management technology designed to handle very large

2 databases and is used to manage “Hawkeye,” AT&T’s call detail record (“CDR”) database, which

3 contains records of nearly every telephone communication carried over its domestic network since

4 approximately 2001, records that include the originating and terminating telephone numbers and the
5 time and length for each call.
6

7

86. The Hawkeye CDR database contains records or other information pertaining to

8 Plaintiffs’ and class members’ use of AT&T’s long distance telephone service and dial-up Internet

9 service.

10

87. As of September 2005, all of the CDR data managed by Daytona, when

11 uncompressed, totaled more than 312 terabytes.
12 88. Daytona is also used to manage AT&T’s huge network-security database, known as
13
“Aurora,” which has been used to store Internet traffic data since approximately 2003. The Aurora 14

15 database contains huge amounts of data acquired by firewalls, routers,honeypots and other devices

16 on AT&T’s global IP (Internet Protocol) network and other networks connected to AT&T’s network.

17

89. The Aurora database managed by Daytona contains records or other information

18 pertaining to Plaintiffs’ and class members’ use of AT&T’s Internet services.

19 90. Since October 6, 2001 or shortly thereafter, Defendants have continually solicited
20 and obtained from AT&T disclosure of the contents of the Hawkeye and Aurora communications
21 records databases and/or other AT&T communications records, including records or other
22 information pertaining to Plaintiffs’ and class members’ use of AT&T’s telephone and Internet
23 services.
24 91. The NSA and/or other Defendants maintain the communications records disclosed
25 by AT&T in their own database or databases of such records.
26

27

92. Defendants’ above-described solicitation of the disclosure by AT&T of Plaintiffs’

28 and class members’ communications records, and its receipt of such disclosure, is done without

COMPLAINT

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1 judicial, statutory, or other lawful authorization, in violation of statutory and constitutional

2 limitations, and in excess of statutory and constitutional authority.

3

93. Defendants’ above-described solicitation of the disclosure by AT&T of Plaintiffs’

4 and class members’ communications records, and its receipt of such disclosure, is done without
5 probable cause or reasonable suspicion to believe that Plaintiffs’ or class members have
6 committed or are about to commit any crime or engage in any terrorist activity.
7 94. Defendants’ above-described solicitation of the disclosure by AT&T of Plaintiffs’
8 and class members’ communications records, and its receipt of such disclosure, is done without
9 probable cause or reasonable suspicion to believe that Plaintiffs’ or class members are foreign
10 powers or agents thereof.
11 95. Defendants’ above-described solicitation of the disclosure by AT&T of Plaintiffs’
12 and class members’ communications records, and its receipt of such disclosure, is donwe ithout any
13 reason to believe that the information is relevant to an authorized criminal investigation or to an
14 authorized investigation to protect against international terrorism or clandestine intelligence
15 activities.
16 96. Defendants’ above-described solicitation of the disclosure by AT&T of Plaintiffs’
17
18 and class members’ communications records, and its receipt of such disclosure, is directly
19 performed, and/or aided, abetted, counseled, commanded, induced or procured, by Defendants.

20

97. On information and belief, Defendants will continue to directly solicit and obtain

21 AT&T’s disclosure of its communications records, including records pertaining to Plaintiffs and
22 class members, and/or will continue to aid, abet, counsel, command, induce or procure that conduct.
23 CLASS ACTION ALLEGATIONS
24 98. Pursuant to Federal Rules of Civil Procedure, Rule 23(b)(2), Plaintiffs Hepting,
25 Hicks, Jewel, Knutzen, and Walton bring this action on behalf of themselves and a class of similarly
26
27 situated persons defined as:

28

COMPLAINT

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1

All individuals in the United States that are current residential subscribers or

customers of AT&T’s telephone services or Internet services, or that were residential

2

telephone or Internet subscribers or customers at any time after September 2001.

3

99. The class seeks certification of claims for declaratory, injunctive and other equitable

4 relief pursuant to 18 U.S.C. §2520, 18 U.S.C. §2707 and 5 U.S.C. § 702, in addition to declaratory

5 and injunctive relief for violations of the First and Fourth Amendments. Members of the class
6 expressly and personally retain any and all damages claims they individually may possess arising
7 out of or relating to the acts, events, and transactions that form the basis of this action. The
8
9 individual damages claims of the class members are outside the scope of this class action.

10

100. Excluded from the class are the individual Defendants, all who have acted in active

11 concert and participation with the individual Defendants, and the legal representatives, heirs,

12 successors, and assigns of the individual Defendants.
13 101. Also excluded from the class are any foreign powers, as defined by 50 U.S.C.
14 § 1801(a), or any agents of foreign powers, as defined by 50 U.S.C. § 1801(b)(1)(A), including
15 without limitation anyone who knowingly engages in sabotage or international terrorism, or
16
17 activities that are in preparation therefore.

18

102. This action is brought as a class action and may properly be so maintained pursuant

19 to the provisions of the Federal Rules of Civil Procedure, Rule 23. Plaintiffs reserve the right to
20 modify the class definition and the class period based on the results of discovery.
21 103. Numerosity of the Class: Members of the class are so numerous that their
22 individual joinder is impracticable. The precise numbers and addresses of members of the class are
23 24 unknown to the Plaintiffs. Plaintiffs estimate that the class consists of millions of members. The
25 precise number of persons in the class and their identities and addresses may be ascertained from

26 Defendants’ and AT&T’s records.

27

28

COMPLAINT

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1

104. Existence of Common Questions of Fact and Law: There is a well-defined

2 community of interest in the questions of law and fact involved affecting the members of the class.
3 These common legal and factual questions include:
4 (a) Whether Defendants have violated the First and Fourth Amendment rights of
5 class members, or are currently doing so;
6 (b) Whether Defendants have subjected class members to electronic surveillance,
7 or have disclosed or used information obtained by electronic surveillance of the class members, in
8 violation of 50 U.S.C. § 1809, or are currently doing so;
9 (c) Whether Defendants have intercepted, used or disclosed class members’
10 communications in violation of 18 U.S.C. § 2511, or are currently doing so;
11 (d) Whether Defendants have solicited and obtained the disclosure of the
12 contents of class members’ communications in violation of 18 U.S.C. § 2703(a) or (b), or are
13 currently doing so;
14 (e) Whether Defendants have solicited or obtained the disclosure of non-content
15 records or other information pertaining to class members in violation of 18 U.S.C. § 2703(c), or are
16 currently doing so;
17 (f) Whether Defendants have violated the Administrative Procedures Act, 5
18 U.S.C. §§ 701 et seq., or are currently doing so;
19 (g) Whether the Defendants have violated the constitutional principle of
20 separation of powers, or are currently doing so;
21 (h) Whether Plaintiffs and class members are entitled to injunctive, declaratory,
22 and other equitable relief against Defendants;
23 (i) Whether Plaintiffs and class members are entitled to an award of reasonable
24 attorneys’ fees and costs of this suit.
25 105. Typicality: Plaintiffs’ claims are typical of the claims of the members of the class
26
because Plaintiffs are or were subscribers to the Internet and telephone services of Defendants. 27

28

COMPLAINT

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1 Plaintiffs and all members of the class have similarly suffered harm arising from Defendants’

2 violations of law, as alleged herein.

3

106. Adequacy: Plaintiffs are adequate representatives of the class because their interests

4 do not conflict with the interests of the members of the class they seek to represent. Plaintiffs have
5 retained counsel competent and experienced in complex class action litigation and Plaintiffs intends
6

7 to prosecute this action vigorously. Plaintiffs and their counsel will fairly and adequately protect

8 the interests of the members of the class.

9

107. This suit may be maintained as a class action pursuant to Federal Rules of Civil

10 Procedure, Rule 23(b)(2) because Plaintiffs and the class seek declaratory and injunctive relief, and

11 all of the above factors of numerosity, common questions of fact and law, typicality and adequacy
12 are present. Moreover, Defendants have acted on grounds generally applicable to Plaintiffs and the
13
class as a whole, thereby making declaratory and/or injunctive relief proper. 14

15

COUNT I

16

Violation of Fourth Amendment—Declaratory, Injunctive, and Equitable Relief

17 (Named Plaintiffs and Class vs. Defendants United States, National Security Agency, Department of Justice, Bush (in his official and personal capacities), Alexander (in his

18

official and personal capacities), Mukasey (in his official and personal capacities),

McConnell (in his official and personal capacities), and one or more of the Doe Defendants) 19

108. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding 20

21 paragraphs of this complaint, as if set forth fully herein.

22

109. Plaintiffs and class members have a reasonable expectation of privacy in their

23 communications, contents of communications, and/or records pertaining to their communications
24 transmitted, collected, and/or stored by AT&T. 25
110. Defendants have directly performed, or aided, abetted, counseled, commanded, 26
induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, 27 28 enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission

COMPLAINT

-17-

1 of the above-described acts of acquisition, interception, disclosure, divulgence and/or use of

2 Plaintiffs’ and class members’ communications, contents of communications, and records pertaining

3 to their communications transmitted, collected, and/or stored by AT&T, without judicial or other

4 lawful authorization, probable cause, and/or individualized suspicion, in violation of statutory and
5 constitutional limitations, and in excess of statutory and constitutional authority.
6

7

111. AT&T acted as the agent of Defendants in performing, participating in, enabling,

8 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisition,

9 interception, disclosure, divulgence and/or use of Plaintiffs’ and class members’ communications,

10 contents of communications, and records pertaining to their communications transmitted, collected,
11 and/or stored by AT&T, without judicial or other lawful authorization, probable cause, and/or
12 individualized suspicion.
13 112. At all relevant times, Defendants committed, knew of and/or acquiesced in all of the
14
15 above-described acts, and failed to respect the Fourth Amendment rights of Plaintiffs and class

16 members by obtaining judicial or other lawful authorization and by conforming their conduct to the

17 requirements of the Fourth Amendment.

18

113. By the acts alleged herein, Defendants have violated Plaintiffs’ and class members’

19 reasonable expectations of privacy and denied Plaintiffs and class members their right to be free
20 from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constitution
21

22 of the United States.

23

114. By the acts alleged herein, Defendants’ conduct has proximately caused harm to

24 Plaintiffs and class members.

25

115. Defendants’ conduct was done intentionally, with deliberate indifference, or with

26 reckless disregard of, Plaintiffs’ and class members’ constitutional rights. 27

28

COMPLAINT

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1

116. On information and belief, the Count I Defendants are now engaging in and will

2 continue to engage in the above-described violations of Plaintiffs’ and class members’ constitutional

3 rights, and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class
4 members have no adequate remedy at law for the Count I Defendants’ continuing unlawful conduct,
5 and the Count I Defendants will continue to violate Plaintiffs’ and class members’ legal rights unless
6
7 enjoined and restrained by this Court.

8

117. Plaintiffs seek that this Court declare that Defendants have violated their rights and

9 the rights of the class; enjoin the Count I Defendants, their agents, successors, and assigns, and all

10 those in active concert and participation with them from violating the Plaintiffs’ and class members’

11 rights under the Fourth Amendment to the United States Constitution; and award such other and

12 further equitable relief as is proper.
13

COUNT II 14

Violation of Fourth Amendment—Damages 15

16

(Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity),

17 Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his personal capacity), McConnell (in his personal capacity), Negroponte (in his personal

18

capacity), and one or more of the Doe Defendants)

19

118. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

20 paragraphs of this complaint, as if set forth fully herein.
21 119. Plaintiffs have a reasonable expectation of privacy in their communications, contents
22 of communications, and/or records pertaining to their communications transmitted, collected, and/or
23
24 stored by AT&T.

25

120. Defendants have directly performed, or aided, abetted, counseled, commanded,

26 induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in,

27 enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission 28

COMPLAINT

-19-

1 of the above-described acts of acquisition, interception, disclosure, divulgence and/or use of

2 Plaintiffs’ communications, contents of communications, and records pertaining to their

3 communications transmitted, collected, and/or stored by AT&T without judicial or other lawful

4 authorization, probable cause, and/or individualized suspicion, in violation of statutory and
5 constitutional limitations, and in excess of statutory and constitutional authority.
6

7

121. AT&T acted as the agent of Defendants in performing, participating in, enabling,

8 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisition,

9 interception, disclosure, divulgence and/or use of Plaintiffs’ communications, contents of

10 communications, and records pertaining to their communications transmitted, collected, and/or
11 stored by AT&T without judicial or other lawful authorization, probable cause, and/or individualized
12 suspicion.
13 122. At all relevant times, Defendants committed, knew of and/or acquiesced in all of the
14
15 above-described acts, and failed to respect the Fourth Amendment rights of Plaintiffs by obtaining

16 judicial or other lawful authorization and conforming their conduct to the requirements of the Fourth

17 Amendment.

18

123. By the acts alleged herein, Defendants have violated Plaintiffs’ reasonable

19 expectations of privacy and denied Plaintiffs their right to be free from unreasonable searches and
20 seizures as guaranteed by the Fourth Amendment to the Constitution of the United States.
21

22

124. By the acts alleged herein, Defendants’ conduct has proximately caused harm to

23 Plaintiffs.

24

125. Defendants’ conduct was done intentionally, with deliberate indifference, or with

25 reckless disregard of, Plaintiffs’ constitutional rights.

26

126. Plaintiffs seek an award of their actual damages and punitive damages against the

27 Count II Defendants, and such other or further relief as is proper.
28

COMPLAINT

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1

COUNT III

2 Violation of First Amendment—Declaratory, Injunctive, and Other Equitable Relief

3 (Named Plaintiffs and Class vs. Defendants United States, National Security Agency, Department of Justice, Bush (in his official and personal capacities), Alexander (in his
4 official and personal capacities), Mukasey (in his official and personal capacities), and 5 McConnell (in his official and personal capacities), and one or more of the Doe Defendants)

6

127. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

7 paragraphs of this complaint, as if set forth fully herein.

8

128. Plaintiffs and class members use AT&T’s services to speak or receive speech

9 anonymously and to associate privately.
10 129. Defendants directly performed, or aided, abetted, counseled, commanded, induced,
11 procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled,
12
13 contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of the

14 above-described acts of acquisition, interception, disclosure, divulgence and/or use of Plaintiffs’ and

15 class members’ communications, contents of communications, and records pertaining to their

16 communications without judicial or other lawful authorization, probable cause, and/or individualized
17 suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and
18 constitutional authority.
19 130. AT&T acted as the agent of Defendants in performing, participating in, enabling,
20
21 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisition,

22 interception, disclosure, divulgence and/or use of Plaintiffs’ communications, contents of

23 communications, and records pertaining to their communications transmitted, collected, and/or

24 stored by AT&T without judicial or other lawful authorization, probable cause, and/or individualized

25 suspicion.
26 131.
27

By the acts alleged herein, Defendants violated Plaintiffs’ and class members’ rights

28 to speak and to receive speech anonymously and associate privately under the First Amendment.

COMPLAINT

-21-

1

132. By the acts alleged herein, Defendants’ conduct proximately caused harm to

2 Plaintiffs and class members.

3

133. Defendants’ conduct was done intentionally, with deliberate indifference, or with

4 reckless disregard of, Plaintiffs’ and class members’ constitutional rights.
5 134. On information and belief, the Count III Defendants are now engaging in and will
6

7 continue to engage in the above-described violations of Plaintiffs’ and class members’ constitutional

8 rights, and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class

9 members have no adequate remedy at law for the Count III Defendants’ continuing unlawful

10 conduct, and the Count III Defendants will continue to violate Plaintiffs’ and class members’ legal
11 rights unless enjoined and restrained by this Court.
12 135. Plaintiffs seek that this Court declare that Defendants have violated their rights and
13 the rights of the class; enjoin the Count III Defendants, their agents, successors, and assigns, and all
14
15 those in active concert and participation with them from violating the Plaintiffs’ and class members’

16 rights under the First Amendment to the United States Constitution; and award such other and

17 further equitable relief as is proper.

18

COUNT IV

19

Violation of First Amendment—Damages

20 (Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his
21 personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity), Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his
22 personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal
capacity), and one or more of the Doe Defendants) 23

24

136. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

25 paragraphs of this complaint, as if set forth fully herein.

26

137. Plaintiffs use AT&T’s services to speak or receive speech anonymously and to

27 associate privately. 28

COMPLAINT

-22-

1

138. Defendants directly performed, or aided, abetted, counseled, commanded, induced,

2 procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled,
3 contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of the 4
above-described acts of acquisition, interception, disclosure, divulgence and/or use of Plaintiffs’ 5
communications, contents of communications, and records pertaining to their communications 6 7 without judicial or other lawful authorization, probable cause, and/or individualized suspicion, in
8 violation of statutory and constitutional limitations, and in excess of statutory and constitutional

9 authority.

10

139. By the acts alleged herein, Defendants violated Plaintiffs’ rights to speak and receive

11 speech anonymously and associate privately under the First Amendment.
12 140. By the acts alleged herein, Defendants’ conduct proximately caused harm to
13
Plaintiffs. 14

15

141. Defendants’ conduct was done intentionally, with deliberate indifference, or with

16 reckless disregard of, Plaintiffs’ constitutional rights.

17

142. Plaintiffs seek an award of their actual damages and punitive damages against the

18 Count IV Defendants, and for such other or further relief as is proper.

19 COUNT V

20 Violation of Foreign Intelligence Surveillance Act—Declaratory, Injunctive and Other

21

Equitable Relief

22

(Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal

capacities), Mukasey (in his official and personal capacities), and McConnell (in his official

23

and personal capacities), and one or more of the Doe Defendants)

24

143. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

25 paragraphs of this complaint, as if set forth fully herein.
26 144. In relevant part, 50 U.S.C. § 1809 provides that:
27

28

(a) Prohibited activities—A person is guilty of an offense if he intentionally—(1) engages in electronic surveillance under color of law

COMPLAINT

-23-

1

except as authorized by this chapter, chapter 119, 121, or 206 of Title 18 or

any express statutory authorization that is an additional exclusive means for

2

conducting electronic surveillance under section 1812 of this title; or (2)

discloses or uses information obtained under color of law by electronic

3

surveillance, knowing or having reason to know that the information was

obtained through electronic surveillance not authorized by this chapter,

4

chapter 119, 121, or 206 of Title 18 or any express statutory authorization

that is an additional exclusive means for conducting electronic surveillance

5

under section 1812 of this title.

6

145. In relevant part 50 U.S.C. § 1801 provides that:

7

(f) “Electronic surveillance” means – (1) the acquisition by an electronic,

mechanical, or other surveillance device of the contents of any wire or radio

8

communication sent by or intended to be received by a particular, known

9

United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in

10

which a person has a reasonable expectation of privacy and a warrant would

be required for law enforcement purposes; (2) the acquisition by an

11

electronic, mechanical, or other surveillance device of the contents of any

wire communication to or from a person in the United States, without the

12

consent of any party thereto, if such acquisition occurs in the United States,

13

but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of Title 18; (3)

14

the intentional acquisition by an electronic, mechanical, or other surveillance

device of the contents of any radio communication, under circumstances in

15

which a person has a reasonable expectation of privacy and a warrant would

be required for law enforcement purposes, and if both the sender and all

16

intended recipients are located within the United States; or (4) the installation

17

or use of an electronic, mechanical, or other surveillance device in the United

States for monitoring to acquire information, other than from a wire or radio

18

communication, under circumstances in which a person has a reasonable

expectation of privacy and a warrant would be required for law enforcement

19

purposes.

20

146. 18 U.S.C. § 2511(2)(f) further provides in relevant part that “procedures in this

21 chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be theexclusive
22 means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act,
23 and the interception of domestic wire, oral, and electronic communications may be conducted.”
24
25 (Emphasis added.)

26

147. 50 U.S.C. § 1812 further provides in relevant part that:

27

(a) Except as provided in subsection (b), the procedures of chapters 119, 121,

and 206 of Title 18 and this chapter shall be the exclusive means by which

28

COMPLAINT

-24-

1

electronic surveillance and the interception of domestic wire, oral, or

electronic communications may be conducted.

2

(b) Only an express statutory authorization for electronic surveillance or the

3

interception of domestic wire, oral, or electronic communications, other than

as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall

4

constitute an additional exclusive means for the purpose of subsection (a).

5 (Emphasis added.)

6

148. Defendants intentionally acquired, or aided, abetted, counseled, commanded,

7 induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
8 enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission 9
of such acquisition, by means of a surveillance device, the contents of one or more wire 10
communications to or from Plaintiffs and class members or other information in which Plaintiffs or 11 12 class members have a reasonable expectation of privacy, without the consent of any party thereto,
13 and such acquisition occurred in the United States.

14

149. AT&T acted as the agent of Defendants in performing, participating in, enabling,

15 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisition
16 of Plaintiffs’ communications.
17 150. By the acts alleged herein, Defendants acting in excess of their statutory authority
18 and in violation of statutory limitations have intentionally engaged in, or aided, abetted, counseled,
19
20 commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused,

21 participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in

22 the commission of, electronic surveillance (as defined by 50 U.S.C. § 1801(f)) under color of law,
23 not authorized by any statute, to which Plaintiffs and class members were subjected in violation of
24 50 U.S.C. § 1809.
25 151. Additionally or in the alternative, by the acts alleged herein, Defendants acting in
26 27 excess of their statutory authority and in violation of statutory limitations have intentionally
28 disclosed or used information obtained under color of law by electronic surveillance, knowing or

COMPLAINT

-25-

1 having reason to know that the information was obtained through electronic surveillance not

2 authorized by statute, including information pertaining to Plaintiffs and class members, or aided,

3 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,

4 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in,
5 or conspired in the commission of such acts.
6

7

152. Defendants did not notify Plaintiffs or class members of the above-described

8 electronic surveillance, disclosure, and/or use, nor did Plaintiffs or class members consent to such.

9

153. Plaintiffs and class members have been and are aggrieved by Defendants’ electronic

10 surveillance, disclosure, and/or use of their wire communications.
11 154. On information and belief, the Count V Defendants are now engaging in and will
12 continue to engage in the above-described acts resulting in the electronic surveillance, disclosure,
13 and/or use of Plaintiffs’ and class members’ wire communications, acting in excess of the Count V
14
15 Defendants’ statutory authority and in violation of statutory limitations, including 50 U.S.C. § 1809

16 and 18 U.S.C. § 2511(2)(f), and are thereby irreparably harming Plaintiffs and class members.

17 Plaintiffs and class members have no adequate remedy at law for the Count V Defendants’
18 continuing unlawful conduct, and the Count V Defendants will continue to violate Plaintiffs’ and
19 class members’ legal rights unless enjoined and restrained by this Court.
20 155. Pursuant to Larson v. United States, 337 U.S. 682 (1949) and to 5 U.S.C. § 702,
21 22 Plaintiffs seek that this Court declare that Defendants have violated their rights and the rights of the
23 class; enjoin the Count V Defendants, their agents, successors, and assigns, and all those in active

24 concert and participation with them from violating the Plaintiffs’ and class members’ statutory

25 rights, including their rights under 50 U.S.C. §§ 1801 et seq.; and award such other and further 26 equitable relief as is proper. 27

28

COMPLAINT

-26-

1

COUNT VI

2

Violation of 50 U.S.C. § 1809, actionable under 50 U.S.C. § 1810—Damages

3 (Named Plaintiffs vs. Defendants United States, National Security Agency, Department of

Justice, Alexander (in his official and personal capacities), Hayden (in his personal 4 capacity), Cheney (in his personal capacity), Addington (in his personal capacity), Mukasey

5 (in his official and personal capacities), Gonzales (in his personal capacity), Ashcroft (in his personal capacity), McConnell (in his official and personal capacities), and Negroponte (in

6

his personal capacity), and one or more of the Doe Defendants)

7

156. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

8 paragraphs of this complaint, as if set forth fully herein.

9

157. In relevant part, 50 U.S.C. § 1809 provides that:

10

(a) Prohibited activities—A person is guilty of an offense if he

11

intentionally—(1) engages in electronic surveillance under color of law

except as authorized by this chapter, chapter 119, 121, or 206 of Title 18 or

12

any express statutory authorization that is an additional exclusive means for

conducting electronic surveillance under section 1812 of this title; or (2)

13

discloses or uses information obtained under color of law by electronic

surveillance, knowing or having reason to know that the information was

14

obtained through electronic surveillance not authorized by this chapter,

chapter 119, 121, or 206 of Title 18 or any express statutory authorization

15

that is an additional exclusive means for conducting electronic surveillance

under section 1812 of this title.

16

158. In relevant part 50 U.S.C. § 1801 provides that:

17

(f) “Electronic surveillance” means – (1) the acquisition by an electronic,

18

mechanical, or other surveillance device of the contents of any wire or radio

19

communication sent by or intended to be received by a particular, known

United States person who is in the United States, if the contents are acquired

20

by intentionally targeting that United States person, under circumstances in

which a person has a reasonable expectation of privacy and a warrant would

21

be required for law enforcement purposes; (2) the acquisition by an

electronic, mechanical, or other surveillance device of the contents of any

22

wire communication to or from a person in the United States, without the

23

consent of any party thereto, if such acquisition occurs in the United States,

but does not include the acquisition of those communications of computer

24

trespassers that would be permissible under section 2511(2)(i) of Title 18; (3)

the intentional acquisition by an electronic, mechanical, or other surveillance

25

device of the contents of any radio communication, under circumstances in

which a person has a reasonable expectation of privacy and a warrant would

26

be required for law enforcement purposes, and if both the sender and all

27

intended recipients are located within the United States; or (4) the installation

or use of an electronic, mechanical, or other surveillance device in the United

28

States for monitoring to acquire information, other than from a wire or radio

COMPLAINT

-27-

1

communication, under circumstances in which a person has a reasonable

expectation of privacy and a warrant would be required for law enforcement

2

purposes.

3

159. 18 U.S.C. § 2511(2)(f) further provides in relevant part that “procedures in this

4 chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be theexclusive
5 means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act,
6
and the interception of domestic wire, oral, and electronic communications may be conducted.” 7

8 (Emphasis added.)

9

160. 50 U.S.C. § 1812 further provides in relevant part that:

10

(a) Except as provided in subsection (b), the procedures of chapters 119, 121,

and 206 of Title 18 and this chapter shall be the exclusive means by which

11

electronic surveillance and the interception of domestic wire, oral, or

electronic communications may be conducted. 12

(b) Only an express statutory authorization for electronic surveillance or the

13

interception of domestic wire, oral, or electronic communications, other than

as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall

14

constitute an additional exclusive means for the purpose of subsection (a).

15 (Emphasis added.)

16

161. Defendants intentionally acquired, or aided, abetted, counseled, commanded,

17 induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
18 enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission
19

20 of such acquisition, by means of a surveillance device, the contents of one or more wire

21 communications to or from Plaintiffs or other information in which Plaintiffs have a reasonable

22 expectation of privacy, without the consent of any party thereto, and such acquisition occurred in

23 the United States.

24

162. AT&T acted as the agent of Defendants in performing, participating in, enabling,

25 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisition
26

of Plaintiffs’ communications. 27

28

COMPLAINT

-28-

1

163. By the acts alleged herein, Defendants have intentionally engaged in, or aided,

2 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,

3 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in,
4 or conspired in the commission of, electronic surveillance (as defined by 50 U.S.C. § 1801(f)) under
5 color of law, not authorized by any statute, to which Plaintiffs were subjected in violation of 50
6
7 U.S.C. § 1809.

8

164. Additionally or in the alternative, by the acts alleged herein, Defendants have

9 intentionally disclosed or used information obtained under color of law by electronic surveillance,

10 knowing or having reason to know that the information was obtained through electronic surveillance
11 not authorized by statute, including information pertaining to Plaintiffs, or aided, abetted, counseled,
12 commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused,
13 participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in
14
15 the commission of such acts.

16

165. Defendants did not notify Plaintiffs of the above-described electronic surveillance,

17 disclosure, and/or use, nor did Plaintiffs consent to such.

18

166. Plaintiffs have been and are aggrieved by Defendants’ electronic surveillance,

19 disclosure, and/or use of their wire communications.
20
167. Pursuant to 50 U.S.C. § 1810, which provides a civil action for any person who has 21
been subjected to an electronic surveillance or about whom information obtained by electronic 22
surveillance of such person has been disclosed or used in violation of 50 U.S.C. § 1809, Plaintiffs 23
seek from the Count VI Defendants for each Plaintiff their statutory damages or actual damages; 24
punitive damages as appropriate; and such other and further relief as is proper. 25

26

27

28

COMPLAINT

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1

COUNT VII

2

Violation of 18 U.S.C. § 2511—Declaratory, Injunctive, and Other Equitable Relief

3

(Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal

capacities), Mukasey (in his official and personal capacities), and McConnell (in his official

4

and personal capacities), and one or more of the Doe Defendants)

5

168. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

6 paragraphs of this complaint, as if set forth fully herein.

7 169. In relevant part, 18 U.S.C. § 2511 provides that:
8

(1) Except as otherwise specifically provided in this chapter any person who

9

– (a) intentionally intercepts, endeavors to intercept, or procures any other

10

person to intercept or endeavor to intercept, any wire, oral, or electronic

communication . . . (c) intentionally discloses, or endeavors to disclose, to

11

any other person the contents of any wire, oral, or electronic communication,

knowing or having reason to know that the information was obtained through

12

the interception of a wire, oral, or electronic communication in violation of

13

this subsection . . . [or](d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to

14

know that the information was obtained through the interception of a wire,

oral, or electronic communication in violation of this subsection . . . shall be

15

punished as provided in subsection (4) or shall be subject to suit as provided

in subsection (5). 16

170. 18 U.S.C. § 2511 further provides that: 17

(3)(a) Except as provided in paragraph (b) of this subsection, a person or

18

entity providing an electronic communication service to the public shall not

19

intentionally divulge the contents of any communication (other than one to

such person or entity, or an agent thereof) while in transmission on that

20

service to any person or entity other than an addressee or intended recipient

of such communication or an agent of such addressee or intended recipient.

21

171. 18 U.S.C. § 2511(2)(f) further provides in relevant part that “procedures in this 22

23 chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be theexclusive

24 means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act,

25 and the interception of domestic wire, oral, and electronic communications may be conducted.”

26 (Emphasis added.)
27 172. 50 U.S.C. § 1812 further provides in relevant part that:
28

COMPLAINT

-30-

1

(a) Except as provided in subsection (b), the procedures of chapters 119, 121,

and 206 of Title 18 and this chapter shall be the exclusive means by which

2

electronic surveillance and the interception of domestic wire, oral, or

electronic communications may be conducted.

3

(b) Only an express statutory authorization for electronic surveillance or the

4

interception of domestic wire, oral, or electronic communications, other than

as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall

5

constitute an additional exclusive means for the purpose of subsection (a).

6 (Emphasis added.)

7

173. By the acts alleged herein, Defendants have intentionally and willfully intercepted,

8 endeavored to intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs’

9 and class members’ wire or electronic communications in violation of 18 U.S.C. § 2511(1)(a); and/or

10

174. By the acts alleged herein, Defendants have intentionally and willfully disclosed, or

11 endeavored to disclose, to another person the contents of Plaintiffs’ and class members’ wire or
12 electronic communications, knowing or having reason to know that the information was obtained
13 through the interception of wire or electronic communications in violation of 18 U.S.C. § 2511(1)(c);
14
15 and/or

16

175. By the acts alleged herein, Defendants have intentionally and willfully used, or

17 endeavored to use, the contents of Plaintiffs’ and class members’ wire or electronic communications,

18 while knowing or having reason to know that the information was obtained through the interception
19 of wire or electronic communications in violation of 18 U.S.C. § 2511(1)(d).
20 176. By the acts alleged herein, Defendants have intentionally and willfully caused, or
21 aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated,
22
23 advised, participated in, contributed to, facilitated, directed, controlled, assisted in, or conspired to

24 cause AT&T’s divulgence of Plaintiffs’ and class members’ wire or electronic communications to

25 Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 2511(3)(a).

26

177. Defendants have committed these acts of interception, disclosure, divulgence and/or

27 use of Plaintiffs’ and class members’ communications directly or by aiding, abetting, counseling,
28

COMPLAINT

-31-

1 commanding, inducing, procuring, encouraging, promoting, instigating, advising, willfully causing,

2 participating in, enabling, contributing to, facilitating, directing, controlling, assisting in, or
3 conspiring in their commission. In doing so, Defendants have acted in excess of their statutory 4
authority and in violation of statutory limitations. 5
178. AT&T acted as the agent of Defendants in performing, participating in, enabling, 6 7 contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure,
8 divulgence and/or use of Plaintiffs’ and class members’ communications.

9

179. Defendants did not notify Plaintiffs or class members of the above-described

10 intentional interception, disclosure, divulgence and/or use of their wire or electronic
11 communications, nor did Plaintiffs or class members consent to such.
12 180. Plaintiffs and class members have been and are aggrieved by Defendants’ intentional
13 and willful interception, disclosure, divulgence and/or use of their wire or electronic
14
15 communications.

16

181. On information and belief, the Count VII Defendants are now engaging in and will

17 continue to engage in the above-described acts resulting in the intentional and willful interception,
18 disclosure, divulgence and/or use of Plaintiffs’ and class members’ wire or electronic
19 communications, acting in excess of the Count VII Defendants’ statutory authority and in violation
20 of statutory limitations, including 18 U.S.C. § 2511, and are thereby irreparably harming Plaintiffs
21 22 and class members. Plaintiffs and class members have no adequate remedy at law for the Count VII
23 Defendants’ continuing unlawful conduct, and the Count VII Defendants will continue to violate

24 Plaintiffs’ and class members’ legal rights unless enjoined and restrained by this Court.

25

182. Pursuant to 18 U.S.C. § 2520, which provides a civil action for any person whose

26 wire or electronic communications have been intercepted, disclosed, divulged or intentionally used
27 in violation of 18 U.S.C. § 2511, to Larson v. United States, 337 U.S. 682 (1949), and to 5 U.S.C.
28

COMPLAINT

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1 § 702, Plaintiffs and class members seek equitable and declaratory relief against the Count VII

2 Defendants.

3

183. Plaintiffs seek that this Court declare that Defendants have violated their rights and

4 the rights of the class; enjoin the Count VII Defendants, their agents, successors, and assigns, and
5 all those in active concert and participation with them from violating the Plaintiffs’ and class
6

7 members’ statutory rights, including their rights under 18 U.S.C. § 2511; and award such other and

8 further equitable relief as is proper.

9

COUNT VIII

10

Violation of 18 U.S.C. § 2511, actionable under 18 U.S.C. § 2520—Damages

11 (Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity),
12 Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his 13 personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal
capacity), and one or more of the Doe Defendants)

14 184. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
15 paragraphs of this complaint, as if set forth fully herein.
16

17

185. In relevant part, 18 U.S.C. § 2511 provides that:

18

(1) Except as otherwise specifically provided in this chapter any person who

– (a) intentionally intercepts, endeavors to intercept, or procures any other

19

person to intercept or endeavor to intercept, any wire, oral, or electronic

communication . . . (c) intentionally discloses, or endeavors to disclose, to

20

any other person the contents of any wire, oral, or electronic communication,

21

knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of

22

this subsection . . . [or](d) intentionally uses, or endeavors to use, the contents

of any wire, oral, or electronic communication, knowing or having reason to

23

know that the information was obtained through the interception of a wire,

oral, or electronic communication in violation of this subsection . . . shall be

24

punished as provided in subsection (4) or shall be subject to suit as provided

25

in subsection (5).

26

186. 18 U.S.C. § 2511 further provides that:

27

(3)(a) Except as provided in paragraph (b) of this subsection, a person or

entity providing an electronic communication service to the public shall not

28

intentionally divulge the contents of any communication (other than one to

COMPLAINT

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1

such person or entity, or an agent thereof) while in transmission on that

service to any person or entity other than an addressee or intended recipient

2

of such communication or an agent of such addressee or intended recipient.

3

187. 18 U.S.C. § 2511(2)(f) further provides in relevant part that “procedures in this

4 chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be theexclusive
5 means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act,
6
and the interception of domestic wire, oral, and electronic communications may be conducted.” 7

8 (Emphasis added.)

9

188. 50 U.S.C. § 1812 further provides in relevant part that:

10

(a) Except as provided in subsection (b), the procedures of chapters 119, 121,

and 206 of Title 18 and this chapter shall be the exclusive means by which

11

electronic surveillance and the interception of domestic wire, oral, or

electronic communications may be conducted. 12

(b) Only an express statutory authorization for electronic surveillance or the

13

interception of domestic wire, oral, or electronic communications, other than

as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall

14

constitute an additional exclusive means for the purpose of subsection (a).

15 (Emphasis added.)

16

189. By the acts alleged herein, Defendants have intentionally and willfully intercepted,

17 endeavored to intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs’
18 wire or electronic communications in violation of 18 U.S.C. § 2511(1)(a); and/or
19

20

190. By the acts alleged herein, Defendants have intentionally and willfully disclosed, or

21 endeavored to disclose, to another person the contents of Plaintiffs’ wire or electronic

22 communications, knowing or having reason to know that the information was obtained through the

23 interception of wire or electronic communications in violation of 18 U.S.C. § 2511(1)(c); and/or

24

191. By the acts alleged herein, Defendants have intentionally and willfully used, or

25 endeavored to use, the contents of Plaintiffs’ wire or electronic communications, while knowing or
26

having reason to know that the information was obtained through the interception of wire or 27

28 electronic communications in violation of 18 U.S.C. § 2511(1)(d).

COMPLAINT

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1

192. By the acts alleged herein, Defendants have intentionally and willfully caused, or

2 aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated,

3 advised, participated in, contributed to, facilitated, directed, controlled, assisted in, or conspired to

4 cause AT&T’s divulgence of Plaintiffs’ and class members’ wire or electronic communications to
5 Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 2511(3)(a).
6

7

193. Defendants have committed these acts of interception, disclosure, divulgence and/or

8 use of Plaintiffs’ communications directly or by aiding, abetting, counseling, commanding, inducing,

9 procuring, encouraging, promoting, instigating, advising, willfully causing, participating in,

10 enabling, contributing to, facilitating, directing, controlling, assisting in, or conspiring in their
11 commission.
12 194. AT&T acted as the agent of Defendants in performing, participating in, enabling,
13 contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure,
14
15 divulgence and/or use of Plaintiffs’ communications.

16

195. Defendants did not notify Plaintiffs of the above-described intentional interception,

17 disclosure, divulgence and/or use of their wire or electronic communications, nor did Plaintiffs or

18 class members consent to such.

19 196. Plaintiffs have been and are aggrieved by Defendants’ intentional and willful
20 interception, disclosure, divulgence and/or use of their wire or electronic communications.
21

22

197. Pursuant to 18 U.S.C. § 2520, which provides a civil action for any person whose

23 wire or electronic communications have been intercepted, disclosed, divulged or intentionally used

24 in violation of 18 U.S.C. § 2511, Plaintiffs seek from the Count VIII Defendants for each Plaintiff

25 their statutory damages or actual damages; punitive damages as appropriate; and such other and 26 further relief as is proper. 27

28

COMPLAINT

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1

COUNT IX

2 Violation of 18 U.S.C. § 2511, actionable under 18 U.S.C. § 2712—Damages Against The

United States

3

(Named Plaintiffs vs. Defendants United States, Department of Justice, and National

4

Security Agency)

5

198. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

6 paragraphs of this complaint, as if set forth fully herein.

7 199. In relevant part, 18 U.S.C. § 2511 provides that:

8

(1) Except as otherwise specifically provided in this chapter any person who

9

– (a) intentionally intercepts, endeavors to intercept, or procures any other

10

person to intercept or endeavor to intercept, any wire, oral, or electronic communication . . . (c) intentionally discloses, or endeavors to disclose, to

11

any other person the contents of any wire, oral, or electronic communication,

knowing or having reason to know that the information was obtained through

12

the interception of a wire, oral, or electronic communication in violation of

this subsection . . . [or](d) intentionally uses, or endeavors to use, the contents

13

of any wire, oral, or electronic communication, knowing or having reason to

14

know that the information was obtained through the interception of a wire,

oral, or electronic communication in violation of this subsection . . . shall be

15

punished as provided in subsection (4) or shall be subject to suit as provided

in subsection (5).

16

200. 18 U.S.C. § 2511 further provides that: 17

(3)(a) Except as provided in paragraph (b) of this subsection, a person or

18

entity providing an electronic communication service to the public shall not

19

intentionally divulge the contents of any communication (other than one to such person or entity, or an agent thereof) while in transmission on that

20

service to any person or entity other than an addressee or intended recipient

of such communication or an agent of such addressee or intended recipient.

21

201. 18 U.S.C. § 2511(2)(f) further provides in relevant part that “procedures in this 22

chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be theexclusive 23

24 means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act,

25 and the interception of domestic wire, oral, and electronic communications may be conducted.”

26 (Emphasis added.)

27

202. 50 U.S.C. § 1812 further provides in relevant part that:

28

COMPLAINT

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1

(a) Except as provided in subsection (b), the procedures of chapters 119, 121,

and 206 of Title 18 and this chapter shall be the exclusive means by which

2

electronic surveillance and the interception of domestic wire, oral, or

electronic communications may be conducted.

3

(b) Only an express statutory authorization for electronic surveillance or the

4

interception of domestic wire, oral, or electronic communications, other than

as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall

5

constitute an additional exclusive means for the purpose of subsection (a).

6 (Emphasis added.)

7

203. By the acts alleged herein, Defendants have intentionally and willfully intercepted,

8 endeavored to intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs’
9 wire or electronic communications in violation of 18 U.S.C. § 2511(1)(a); and/or
10 204. By the acts alleged herein, Defendants have intentionally and willfully disclosed, or
11
12 endeavored to disclose, to another person the contents of Plaintiffs’ wire or electronic

13 communications, knowing or having reason to know that the information was obtained through the

14 interception of wire or electronic communications in violation of 18 U.S.C. § 2511(1)(c); and/or

15

205. By the acts alleged herein, Defendants have intentionally and willfully used, or

16 endeavored to use, the contents of Plaintiffs’ wire or electronic communications, while knowing or
17 having reason to know that the information was obtained through the interception of wire or
18
electronic communications in violation of 18 U.S.C. § 2511(1)(d). 19

20

206. By the acts alleged herein, Defendants have intentionally and willfully caused, or

21 aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated,

22 advised, participated in, contributed to, facilitated, directed, controlled, assisted in, or conspired to
23 cause AT&T’s divulgence of Plaintiffs’ and class members’ wire or electronic communications to
24 Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 2511(3)(a).
25 207. Defendants have committed these acts of interception, disclosure, divulgence and/or
26 27 use of Plaintiffs’ communications directly or by aiding, abetting, counseling, commanding, inducing,
28 procuring, encouraging, promoting, instigating, advising, willfully causing, participating in,

COMPLAINT

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1 enabling, contributing to, facilitating, directing, controlling, assisting in, or conspiring in their

2 commission.

3

208. AT&T acted as the agent of Defendants in performing, participating in, enabling,

4 contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure,
5 divulgence and/or use of Plaintiffs’ communications.
6

7

209. Defendants did not notify Plaintiffs of the above-described intentional interception,

8 disclosure, divulgence and/or use of their wire or electronic communications, nor did Plaintiffs or

9 class members consent to such.

10

210. Plaintiffs have been and are aggrieved by Defendants’ intentional and willful

11 interception, disclosure, divulgence and/or use of their wire or electronic communications.
12 211. Title 18 U.S.C. § 2712 provides a civil action against the United States and its
13
agencies and departments for any person whose wire or electronic communications have been 14

15 intercepted, disclosed, divulged or intentionally used in willful violation of 18 U.S.C. § 2511.

16 Plaintiffs have complied fully with the claim presentment procedure of 18 U.S.C. § 2712. Pursuant

17 to 18 U.S.C. § 2712, Plaintiffs seek from the Count IX Defendants for each Plaintiff their statutory

18 damages or actual damages, and such other and further relief as is proper.

19 COUNT X

20 Violation of 18 U.S.C. § 2703(a) & (b)—Declaratory, Injunctive, and Other Equitable

21

Relief

22

(Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal

capacities), Mukasey (in his official and personal capacities), and McConnell (in his official

23

and personal capacities), and one or more of the Doe Defendants)

24

212. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

25 paragraphs of this complaint, as if set forth fully herein.
26 213. In relevant part, 18 U.S.C. § 2703 provides that:
27

28

COMPLAINT

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1

(a) Contents of Wire or Electronic Communications in Electronic Storage.— A

governmental entity may require the disclosure by a provider of electronic

2

communication service of the contents of a wire or electronic communication, that

3

is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures

4

described in the Federal Rules of Criminal Procedure by a court with jurisdiction

over the offense under investigation or equivalent State warrant. A governmental

5

entity may require the disclosure by a provider of electronic communications

services of the contents of a wire or electronic communication that has been in

6

electronic storage in an electronic communications system for more than one

7

hundred and eighty days by the means available under subsection (b) of this section.

8

(b) Contents of Wire or Electronic Communications in a Remote Computing

Service.—

9

(1) A governmental entity may require a provider of remote computing

service to disclose the contents of any wire or electronic communication to

10

which this paragraph is made applicable by paragraph (2) of this subsection—

11

(A) without required notice to the subscriber or customer, if the

governmental entity obtains a warrant issued using the procedures

12

described in the Federal Rules of Criminal Procedure by a court with

jurisdiction over the offense under investigation or equivalent State

13

warrant; or

(B) with prior notice from the governmental entity to the subscriber or

14

customer if the governmental entity—

15

(i) uses an administrative subpoena authorized by a Federal or State

statute or a Federal or State grand jury or trial subpoena; or

16

(ii) obtains a court order for such disclosure under subsection (d) of this

section;

17

except that delayed notice may be given pursuant to section 2705 of this

title.

18

(2) Paragraph (1) is applicable with respect to any wire or electronic

19

communication that is held or maintained on that service—

(A) on behalf of, and received by means of electronic transmission from

20

(or created by means of computer processing of communications received

by means of electronic transmission from), a subscriber or customer of

21

such remote computing service; and

22

(B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to

23

access the contents of any such communications for purposes of providing

any services other than storage or computer processing.

24 214. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,
25

abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, 26

27 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in,

28 or conspired in soliciting and obtaining from AT&T, the disclosure to Defendants of the contents

COMPLAINT

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1 of Plaintiffs’ and class members’ communications while in electronic storage by an AT&T electronic

2 communication service, and/or while carried or maintained by an AT&T remote computing service,
3 in violation of 18 U.S.C. §§ 2703(a) and/or (b). In doing so, Defendants have acted in excess of 4
their statutory authority and in violation of statutory limitations. 5
215. AT&T acted as the agent of Defendants in performing, participating in, enabling, 6 7 contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs’
8 and class members’ communications.

9

216. Defendants did not notify Plaintiffs or class members of the disclosure of their

10 communications, nor did Plaintiffs or class members consent to such.
11 217. Plaintiffs and class members have been and are aggrieved by Defendants’ above-
12 described soliciting and obtaining of disclosure of the contents of communications.
13 218. On information and belief, the Count X Defendants are now engaging in and will
14
15 continue to engage in the above-described soliciting and obtaining of disclosure of the contents of

16 class members’ communications while in electronic storage by AT&T’s electronic communication

17 service(s), and/or while carried or maintained by AT&T’s remote computing service(s), acting in
18 excess of the Count X Defendants’ statutory authority and in violation of statutory limitations,
19 including 18 U.S.C. § 2703(a) and (b), and are thereby irreparably harming Plaintiffs and class
20 members. Plaintiffs and class members have no adequate remedy at law for the Count X
21 22 Defendants’ continuing unlawful conduct, and the Count X Defendants will continue to violate
23 Plaintiffs’ and class members’ legal rights unless enjoined and restrained by this Court.

24

219. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieved

25 by knowing or intentional violation of 18 U.S.C. § 2703, to Larson v. United States, 337 U.S. 682
26 (1949), and to 5 U.S.C. § 702, Plaintiffs and class members seek equitable and declaratory relief 27
against the Count X Defendants. 28

COMPLAINT

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1

220. Plaintiffs seek that this Court declare that Defendants have violated their rights and

2 the rights of the class; enjoin the Count X Defendants, their agents, successors, and assigns, and all

3 those in active concert and participation with them from violating the Plaintiffs’ and class members’

4 statutory rights, including their rights under 18 U.S.C. § 2703; and award such other and further
5 equitable relief as is proper.
6

7

COUNT XI

8

Violation of 18 U.S.C. § 2703(a) & (b), actionable under 18 U.S.C. § 2707—Damages

9 (Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity),

10 Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his

personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal

11

capacity), and one or more of the Doe Defendants)

12

221. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

13 paragraphs of this complaint, as if set forth fully herein.

14 222. In relevant part, 18 U.S.C. § 2703 provides that:
15

(a) Contents of Wire or Electronic Communications in Electronic Storage.— A

16

governmental entity may require the disclosure by a provider of electronic

17

communication service of the contents of a wire or electronic communication, that

is in electronic storage in an electronic communications system for one hundred

18

and eighty days or less, only pursuant to a warrant issued using the procedures

described in the Federal Rules of Criminal Procedure by a court with jurisdiction

19

over the offense under investigation or equivalent State warrant. A governmental

entity may require the disclosure by a provider of electronic communications

20

services of the contents of a wire or electronic communication that has been in

21

electronic storage in an electronic communications system for more than one

hundred and eighty days by the means available under subsection (b) of this

22

section.

(b) Contents of Wire or Electronic Communications in a Remote Computing

23

Service.—

24

(1) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to

25

which this paragraph is made applicable by paragraph (2) of this subsection—

(A) without required notice to the subscriber or customer, if the

26

governmental entity obtains a warrant issued using the procedures

described in the Federal Rules of Criminal Procedure by a court with

27

jurisdiction over the offense under investigation or equivalent State

28

warrant; or

COMPLAINT

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1

(B) with prior notice from the governmental entity to the subscriber or

customer if the governmental entity—

2

(i) uses an administrative subpoena authorized by a Federal or State

3

statute or a Federal or State grand jury or trial subpoena; or (ii) obtains a court order for such disclosure under subsection (d) of

4

this section;

except that delayed notice may be given pursuant to section 2705 of this

5

title.

(2) Paragraph (1) is applicable with respect to any wire or electronic

6

communication that is held or maintained on that service—

7

(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received

8

by means of electronic transmission from), a subscriber or customer of

such remote computing service; and

9

(B) solely for the purpose of providing storage or computer processing

services to such subscriber or customer, if the provider is not authorized to

10

access the contents of any such communications for purposes of providing

11

any services other than storage or computer processing.

12

223. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,

13 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,

14 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in,
15 or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of the contents
16 of Plaintiffs’ communications while in electronic storage by an AT&T electronic communication
17 service, and/or while carried or maintained by an AT&T remote computing service, in violation of
18
19 18 U.S.C. §§ 2703(a) and/or (b).

20

224. AT&T acted as the agent of Defendants in performing, participating in, enabling,

21 contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs’

22 communications.

23 225. Defendants did not notify Plaintiffs of the disclosure of their communications, nor
24 did Plaintiffs consent to such.
25

26

226. Plaintiffs have been and are aggrieved by Defendants’ above-described soliciting and

27 obtaining of disclosure of the contents of communications.

28

COMPLAINT

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1

227. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieved

2 by knowing or intentional violation of 18 U.S.C. § 2703, Plaintiffs seek from the Count XI

3 Defendants for each Plaintiff their statutory damages or actual damages; punitive damages as

4 appropriate; and such other and further relief as may be proper.

5

COUNT XII 6

Violation of 18 U.S.C. § 2703(a) & (b), actionable under 18 U.S.C. § 2712—Damages

7

Against The United States

8

(Named Plaintiffs vs. Defendants United States, Department of Justice, and National

9

Security Agency)

10

228. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

11 paragraphs of this complaint, as if set forth fully herein.

12

229. In relevant part, 18 U.S.C. § 2703 provides that:

13 (a) Contents of Wire or Electronic Communications in Electronic Storage.— A

14

governmental entity may require the disclosure by a provider of electronic

communication service of the contents of a wire or electronic communication, that

15

is in electronic storage in an electronic communications system for one hundred

and eighty days or less, only pursuant to a warrant issued using the procedures

16

described in the Federal Rules of Criminal Procedure by a court with jurisdiction

17

over the offense under investigation or equivalent State warrant. A governmental

entity may require the disclosure by a provider of electronic communications

18

services of the contents of a wire or electronic communication that has been in

electronic storage in an electronic communications system for more than one

19

hundred and eighty days by the means available under subsection (b) of this

section.

20

(b) Contents of Wire or Electronic Communications in a Remote Computing

21

Service.—

(1) A governmental entity may require a provider of remote computing

22

service to disclose the contents of any wire or electronic communication to

which this paragraph is made applicable by paragraph (2) of this subsection—

23

(A) without required notice to the subscriber or customer, if the

24

governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with

25

jurisdiction over the offense under investigation or equivalent State

warrant; or

26

(B) with prior notice from the governmental entity to the subscriber or

customer if the governmental entity—

27

(i) uses an administrative subpoena authorized by a Federal or State

28

statute or a Federal or State grand jury or trial subpoena; or

COMPLAINT

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1

(ii) obtains a court order for such disclosure under subsection (d) of

this section;

2

except that delayed notice may be given pursuant to section 2705 of this

3

title. (2) Paragraph (1) is applicable with respect to any wire or electronic

4

communication that is held or maintained on that service—

(A) on behalf of, and received by means of electronic transmission from

5

(or created by means of computer processing of communications received

by means of electronic transmission from), a subscriber or customer of

6

such remote computing service; and

7

(B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to

8

access the contents of any such communications for purposes of providing

any services other than storage or computer processing.

9

10

230. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,

11 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
12 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in,
13 or conspired in the soliciting and obtaining from AT&T the disclosure to the NSA of the contents
14
15 of Plaintiffs’ communications while in electronic storage by an AT&T electronic communication

16 service, and/or while carried or maintained by an AT&T remote computing service, in violation of

17 18 U.S.C. §§ 2703(a) and/or (b).

18

231. AT&T acted as the agent of Defendants in performing, participating in, enabling,

19 contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs’
20 communications.
21 232. Defendants did not notify Plaintiffs of the disclosure of their communications, nor
22
23 did Plaintiffs consent to such.

24

233. Plaintiffs have been and are aggrieved by Defendants’ above-described soliciting and

25 obtaining of disclosure of the contents of communications.

26

234. Title 18 U.S.C. § 2712 provides a civil action against the United States and its

27 agencies and departments for any person whose communications have been disclosed in willful
28

COMPLAINT

-44-

1 violation of 18 U.S.C. § 2703. Plaintiffs have complied fully with the claim presentment procedure

2 of 18 U.S.C. § 2712. Pursuant to 18 U.S.C. § 2712, Plaintiffs seek from the Count XII Defendants

3 for each Plaintiff their statutory damages or actual damages, and such other and further relief as is

4 proper.
5 COUNT XIII
6 Violation of 18 U.S.C. § 2703(c)—Declaratory, Injunctive, and Other Equitable Relief
7

(Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal 8 capacities), Mukasey (in his official and personal capacities), and McConnell (in his official

9

and personal capacities), and one or more of the Doe Defendants)

10

235. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

11 paragraphs of this complaint, as if set forth fully herein.

12

236. In relevant part, 18 U.S.C. § 2703(c) provides that:

13 (c) Records Concerning Electronic Communication Service or Remote

14

Computing Service.—

(1) A governmental entity may require a provider of electronic

15

communication service or remote computing service to disclose a record or

other information pertaining to a subscriber to or customer of such service

16

(not including the contents of communications) only when the governmental

17

entity—

(A) obtains a warrant issued using the procedures described in the Federal

18

Rules of Criminal Procedure by a court with jurisdiction over the offense

under investigation or equivalent State warrant;

19

(B) obtains a court order for such disclosure under subsection (d) of this

section;

20

(C) has the consent of the subscriber or customer to such disclosure;

21

(D) submits a formal written request relevant to a law enforcement

investigation concerning telemarketing fraud for the name, address, and

22

place of business of a subscriber or customer of such provider, which

subscriber or customer is engaged in telemarketing (as such term is

23

defined in section 2325 of this title); or

24

(E) seeks information under paragraph (2). (2) A provider of electronic communication service or remote computing

25

service shall disclose to a governmental entity the—

(A) name;

26

(B) address;

(C) local and long distance telephone connection records, or records of

27

session times and durations;

28

(D) length of service (including start date) and types of service utilized;

COMPLAINT

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1

(E) telephone or instrument number or other subscriber number or

identity, including any temporarily assigned network address; and

2

(F) means and source of payment for such service (including any credit

3

card or bank account number), of a subscriber to or customer of such service when the governmental entity

4

uses an administrative subpoena authorized by a Federal or State statute or a

Federal or State grand jury or trial subpoena or any means available under

5

paragraph (1).

(3) A governmental entity receiving records or information under this

6

subsection is not required to provide notice to a subscriber or customer.

7

237. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,

8 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,

9 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in,

10 or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of records or

11 other information pertaining to Plaintiffs’ and class members’ use of electronic communication

12 services and/or remote computing services offered to the public by AT&T, in violation of 18 U.S.C.

13 § 2703(c). In doing so, Defendants have acted in excess of their statutory authority and in violation

14 of statutory limitations.

15

238. AT&T acted as the agent of Defendants in performing, participating in, enabling,

16 contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs’

17
and class members’ records or other information. 18

19

239. Defendants did not notify Plaintiffs or class members of the disclosure of these

20 records or other information pertaining to them and their use of AT&T services, nor did Plaintiffs

21 or class members consent to such.

22

240. Plaintiffs and class members have been and are aggrieved by Defendants’ above-

23 described acts of soliciting and obtaining disclosure by AT&T of records or other information
24 pertaining to Plaintiffs and class members.
25 241. On information and belief, the Count XIII Defendants are now engaging in and will
26
27 continue to engage in the above-described soliciting and obtaining disclosure by AT&T of records

28 or other information pertaining to Plaintiffs and class members, acting in excess of the Count XIII

COMPLAINT

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1 Defendants’ statutory authority and in violation of statutory limitations, including 18 U.S.C. §

2 2703(c), and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class

3 members have no adequate remedy at law for the Count XIII Defendants’ continuing unlawful

4 conduct, and the Count XIII Defendants will continue to violate Plaintiffs’ and class members’ legal
5 rights unless enjoined and restrained by this Court.
6

7

242. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieved

8 by knowing or intentional violation of 18 U.S.C. § 2703, to Larson v. United States, 337 U.S. 682

9 (1949), and to 5 U.S.C. § 702, Plaintiffs and class members seek equitable and declaratory relief

10 against the Count XIII Defendants.
11 243. Plaintiffs seek that the Court declare that Defendants have violated their rights and
12 the rights of the class; enjoin the Count XIII Defendants, their agents, successors, and assigns, and
13 all those in active concert and participation with them from violating the Plaintiffs’ and class
14
15 members’ statutory rights, including their rights under 18 U.S.C. § 2703; and award such other and

16 further equitable relief as is proper.

17

COUNT XIV

18

Violation of 18 U.S.C. § 2703(c), actionable under 18 U.S.C. § 2707—Damages

19 (Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his

20

personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity), Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his

21 personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal capacity), and one or more of the Doe Defendants)

22

244. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding 23

24 paragraphs of this complaint, as if set forth fully herein.

25

245. In relevant part, 18 U.S.C. § 2703(c) provides that:

26

(c) Records Concerning Electronic Communication Service or Remote

Computing Service.—

27

(1) A governmental entity may require a provider of electronic

28

communication service or remote computing service to disclose a record or

COMPLAINT

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1

other information pertaining to a subscriber to or customer of such service

(not including the contents of communications) only when the governmental

2

entity—

3

(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense

4

under investigation or equivalent State warrant;

(B) obtains a court order for such disclosure under subsection (d) of this

5

section;

(C) has the consent of the subscriber or customer to such disclosure;

6

(D) submits a formal written request relevant to a law enforcement

7

investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which

8

subscriber or customer is engaged in telemarketing (as such term is

defined in section 2325 of this title); or

9

(E) seeks information under paragraph (2).

(2) A provider of electronic communication service or remote computing

10

service shall disclose to a governmental entity the—

11

(A) name;

(B) address;

12

(C) local and long distance telephone connection records, or records of

session times and durations;

13

(D) length of service (including start date) and types of service utilized;

(E) telephone or instrument number or other subscriber number or

14

identity, including any temporarily assigned network address; and

15

(F) means and source of payment for such service (including any credit

card or bank account number),

16

of a subscriber to or customer of such service when the governmental entity

uses an administrative subpoena authorized by a Federal or State statute or a

17

Federal or State grand jury or trial subpoena or any means available under

paragraph (1).

18

(3) A governmental entity receiving records or information under this

19

subsection is not required to provide notice to a subscriber or customer.

20

246. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,

21 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,

22 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in,

23 or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of records or

24 other information pertaining to Plaintiffs’ use of electronic communication services and/or remote

25 computing services offered to the public by AT&T, in violation of 18 U.S.C. § 2703(c).

26

27

28

COMPLAINT

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1

247. AT&T acted as the agent of Defendants in performing, participating in, enabling,

2 contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs’

3 records or other information.

4 248. Defendants did not notify Plaintiffs of the disclosure of these records or other
5 information pertaining to them and their use of AT&T services, nor did Plaintiffs consent to such.
6

7

249. Plaintiffs have been and are aggrieved by Defendants’ above-described acts of

8 soliciting and obtaining disclosure by AT&T of records or other information pertaining to Plaintiffs.

9

250. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieved

10 by knowing or intentional violation of 18 U.S.C. § 2703, Plaintiffs seek from the Count XIV

11 Defendants for each Plaintiff their statutory damages or actual damages; punitive damages as

12 appropriate; and such other and further relief as may be proper.
13

COUNT XV 14

Violation of 18 U.S.C. § 2703(c), actionable under 18 U.S.C. § 2712—Damages Against The

15

United States

16

(Named Plaintiffs vs. Defendants United States, Department of Justice, and National

17

Security Agency)

18

251. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

19 paragraphs of this complaint, as if set forth fully herein.

20

252. In relevant part, 18 U.S.C. § 2703(c) provides that:

21 (c) Records Concerning Electronic Communication Service or Remote

22

Computing Service.—

(1) A governmental entity may require a provider of electronic

23

communication service or remote computing service to disclose a record or

24

other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental

25

entity—

(A) obtains a warrant issued using the procedures described in the Federal

26

Rules of Criminal Procedure by a court with jurisdiction over the offense

under investigation or equivalent State warrant;

27

(B) obtains a court order for such disclosure under subsection (d) of this

28

section;

COMPLAINT

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1

(C) has the consent of the subscriber or customer to such disclosure;

(D) submits a formal written request relevant to a law enforcement

2

investigation concerning telemarketing fraud for the name, address, and

3

place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is

4

defined in section 2325 of this title); or

(E) seeks information under paragraph (2).

5

(2) A provider of electronic communication service or remote computing

service shall disclose to a governmental entity the—

6

(A) name;

7

(B) address; (C) local and long distance telephone connection records, or records of

8

session times and durations;

(D) length of service (including start date) and types of service utilized;

9

(E) telephone or instrument number or other subscriber number or

identity, including any temporarily assigned network address; and

10

(F) means and source of payment for such service (including any credit

11

card or bank account number),

of a subscriber to or customer of such service when the governmental entity

12

uses an administrative subpoena authorized by a Federal or State statute or a

Federal or State grand jury or trial subpoena or any means available under

13

paragraph (1).

(3) A governmental entity receiving records or information under this

14

subsection is not required to provide notice to a subscriber or customer.

15

253. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,

16 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,

17 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in,

18 or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of records or

19 other information pertaining to Plaintiffs’ use of electronic communication services and/or remote

20 computing services offered to the public by AT&T, in violation of 18 U.S.C. § 2703(c).

21

254. AT&T acted as the agent of Defendants in performing, participating in, enabling,

22 contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs’
23 records or other information.
24

25

255. Defendants did not notify Plaintiffs of the disclosure of these records or other

26 information pertaining to them and their use of AT&T services, nor did Plaintiffs consent to such.

27

28

COMPLAINT

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1

256. Plaintiffs have been and are aggrieved by Defendants’ above-described acts of

2 soliciting and obtaining disclosure by AT&T of records or other information pertaining to Plaintiffs.

3

257. Title 18 U.S.C. § 2712 provides a civil action against the United States and its

4 agencies and departments for any person aggrieved by willful violation of 18 U.S.C. § 2703.
5 Plaintiffs have complied fully with the claim presentment procedure of 18 U.S.C. § 2712. Pursuant
6

7 to 18 U.S.C. § 2712, Plaintiffs seek from the Count XV Defendants for each Plaintiff their statutory

8 damages or actual damages and such other and further relief as is proper.

9

COUNT XVI

10

Violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. - Declaratory,

Injunctive, and Other Equitable Relief 11

12

(Named Plaintiffs and Class vs. Defendants United States, Department of Justice, National Security Agency, Alexander (in his official and personal capacities), Mukasey (in his official

13 and personal capacities), and McConnell (in his official and personal capacities), and one or more of the Doe Defendants)

14 258. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

15

paragraphs of this complaint, as if set forth fully herein. 16

17

259. The Program violates the Administrative Procedures Act, 5 U.S.C. § 701 et seq.,

18 because Defendants’ actions under the Program exceed statutory authority and limitations imposed

19 by Congress through FISA, and through Chapters 119, 121 and 206 of Title 18 of the U.S. Code (the
20 Wiretap Act, the Stored Communications Act, and the Pen Register Statute, respectively) and in 21
violation of statutory rights under those law;sare not otherwise in accordance with law; are contrary 22
to constitutional rights, including the Fourth Amendment, First Amendment, and separation of 23
24 powers principles; and are taken without observance of procedures required by law.

25

260. Plaintiffs and class members are aggrieved by these violations because, as described

26 previously in this Complaint, Defendants’ actions under the Program has resulted in the interception,

27 acquisition, disclosure, divulgence and/or use of the contents of their wire and electronic 28

COMPLAINT

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1 communications, communications records, and other information in violation of their constitutional

2 and statutory rights.

3

261. Plaintiffs seek nonmonetary relief against the Count XVI Defendants, including a

4 declaration that Defendants have violated their rights and the rights of the class; an injunction
5 enjoining the Count XVI Defendants, their agents, successors, and assigns, and all those in active
6

7 concert and participation with them from violating the Plaintiffs’ and class members’ rights; and

8 such other and further nonmonetary relief as is proper.

9

COUNT XVII

10 Violation of Separation of Powers - Declaratory, Injunctive, and Other Equitable Relief

11 (Named Plaintiffs and Class vs. Defendants United States, Department of Justice, National

12

Security Agency, Bush (in his official and personal capacities), Alexander (in his official and personal capacities), Mukasey (in his official and personal capacities), and McConnell

13

(in his official and personal capacities), and one or more of the Doe Defendants)

14

262. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

15 paragraphs of this complaint, as if set forth fully herein.

16

263. The Program violates the principles of separation of powers because it was

17 authorized by the Executive in excess of the Executive’s authority under Article II of the United
18 States Constitution, in excess of statutory authority granted the Executive under FISA and under
19

Chapters 119, 121 and 206 of Title 18 of the U.S. Code (the Wiretap Act, the Stored 20

Communications Act, and the Pen Register Statute, respectively) and exceeds the statutory limits 21

imposed on the Executive by Congress. 22

23

264. Plaintiffs and class members are aggrieved by these violations because, as described

24 previously in this Complaint, Defendants’ actions under the Program has resulted in the interception,

25 acquisition, disclosure, divulgence and/or use of the contents of their wire and electronic

26 communications, communications records, and other information in violation of their constitutional 27 and statutory rights. 28

COMPLAINT

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1

265. Plaintiffs seek nonmonetary relief against the Count XVII Defendants, including a

2 declaration that Defendants have violated their rights and the rights of the class; an injunction

3 enjoining the Count XVII Defendants, their agents, successors, and assigns, and all those in active

4 concert and participation with them from violating the Plaintiffs’ and class members’ rights; and for
5 such other and further nonmonetary relief as is proper.
6

7

PRAYER FOR RELIEF

8

WHEREFORE, Plaintiffs respectfully request that the Court:

9

A. Declare that the Program as alleged herein violates without limitation Plaintiffs’ and

10 class members’ rights under the First and Fourth Amendments to the Constitution; their statutory

11 rights, including their rights under 18 U.S.C. § 2511, 18 U.S.C. § 2703, 50 US.C. § 1809, and the

12 Administrative Procedures Act; and their rights under the constitutional principle of Separation of

13 Powers.

14

B. Award Plaintiffs and the class equitable relief, including without limitation, a

15 preliminary and permanent injunction pursuant to the First and Fourth Amendments to the United

16 States Constitution prohibiting Defendants’ continued use of the Program, and a preliminary and

17 permanent injunction pursuant to the Fourth Amendment requiring Defendants to provide to

18 Plaintiffs and the class an inventory of their communications, records, or other information that was

19 seized in violation of the Fourth Amendment, and further requiring the destruction of all copies of

20 those communications, records, or other information within the possession, custody, or control of

21 Defendants.

22

C. Award Plaintiffs their statutory, actual, and punitive damages to the extent permitted

23 by law and according to proof.

24

D. Award to Plaintiffs reasonable attorneys’ fees and other costs of suit to the extent

25 permitted by law.

26

G. Grant such other and further relief as the Court deems just and proper.

27

//

28

//

COMPLAINT

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 Jewel v. National Security Agency, --- F.Supp.2d ---- (2013)

2013 WL 3829405 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Carolyn Jewel, et al., Plaintiffs, v.
National Security Agency, et al., Defendants. Virginia Shubert, et al., Plaintiffs, v. Barack Obama, et al., Defendants.
No. C 08–04373 JSW, No. C 07–00693 JSW | Filed 07/23/2013
Synopsis Background: In two related cases, residential telephone customers brought putative class actions against federal government agencies and government officers in their official and personal capacities, alleging that defendants engaged in widespread warrantless eavesdropping in the United States following the September 11, 2001, attacks in violation of the customers’ constitutional and statutory rights. The United States District Court for the Northern District of California, Vaughn R. Walker, J., 2010 WL 235075, granted defendants’ motions to dismiss, and plaintiffs appealed. The Court of Appeals, McKeown, Circuit Judge, 673 F.3d 902, reversed and remanded with instructions. On remand, plaintiffs in first case moved for partial summary judgment. Defendants in both cases moved to dismiss and for summary judgment.
Holdings: The District Court, Jeffrey S. White, J., held that:
[1] state secrets privilege did not protect the very subject matter of the suits, so as to require dismissal;
[2] state secrets privilege applied to significant materials relating to alleged program;
[3] Foreign Intelligence Surveillance Act (FISA) preempts application of state secrets privilege in cases within the reach of its provisions;
[4] the government did not waive sovereign immunity for plaintiffs’ claim for damages under FISA;

[5] the Patriot Act’s waiver of sovereign immunity for damages claims brought under the Stored Communications Act (SCA) and the Wiretap Act is not limited to claims for the use and disclosure of information;
[6] the Patriot Act impliedly limited the authority to sue the United States for injunctive relief; and
[7] assuming the continued existence of the ultra vires exception to sovereign immunity for federal officials, plaintiffs’ claim for injunctive relief did not fit within the doctrine’s narrow scope.
Ordered accordingly.
Order, 2013 WL 3388503, amended and superseded.
Attorneys and Law Firms
James Samuel Tyre, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Audrey Helena Walton-Hadlock, Keker & Van Nest LLP, 710 Sansome Street, San Francisco, CA 94111, Cindy Ann Cohn, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Kurt Bradford Opsahl, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Lee Tien, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Mark Thomas Rumold, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Michael S Kwun, Keker & Van Nest LLP, 633 Battery Street, San Francisco, CA 94111-1809, Paula Lenore Blizzard, Keker & Van Nest LLP, 633 Battery Street, San Francisco, CA 94111, Rachael Elizabeth Meny, Keker & Van Nest LLP, 633 Battery Street, San Francisco, CA 94111-1809, Richard R. Wiebe, Law Office Of Richard R. Wiebe, One California Street, Suite 900, San Francisco, CA 94111, Thomas Edward Moore, III, The Moore Law Group, 228 Hamilton Ave., Palo Alto, CA 94304, for Plaintiffs.
Anthony Joseph Coppolino, U.S. Department of Justice, Civil Division, 20 Massachusetts Avenue, N.W. Room 6102, Washington, DC 20530, Marcia Berman, U.S. Dept. of Justice, Civil Division, Federal Programs Branch, 20 Massachusetts Ave., N.W., Room 7204, Washington, DC 20530, Paul Gerald Freeborne, U.S. Department of Justice, Civil Division, 20 Massachusetts
1

Jewel v. National Security Agency, --- F.Supp.2d ---- (2013)

Ave., N.W., Room 6108, Washington, DC 20001, for Defendants.
Matthew Delmont Brinckerhoff, Emery Celli Brinckerhoff & Abady LLP, 75 Rockefeller Plaza, 20th Floor, New York, NY 10019, Ilann Margalit Maazel, Emery Celli Brinckerhoff & Abady LLP, 75 Rockefeller Plaza, 20th Floor, New York, NY 10019, for Plaintiffs.
Alexander Kenneth Haas, United States Department of Justice, Federal Programs Branch, 20 Massachusetts Ave., NW, Washington, DC 20530, Anthony Joseph Coppolino, U.S. Department of Justice, Civil Division, 20 Massachusetts Avenue, N.W. Room 6102, Washington, DC 20530, Paul Edward Ahern, U.S. Department of Justice, Civil Division, Federal Programs Branch, 20 Massachusetts Avenue NW, Washington, DC 20530, for Defendants.
Opinion
AMENDED ORDER
JEFFREY S. WHITE, UNITED STATES DISTRICT JUDGE
*1 In response to the parties’ request for clarification, the Court issues this amended order. This matter comes before the Court upon consideration of the motion for partial summary judgment filed by Plaintiffs Carolyn Jewel, Tash Hepting, Young Boon Hicks, Erik Knutzen and Joice Walton, on behalf of themselves and all others similarly situated (collectively “Jewel Plaintiffs” or “Plaintiffs”) and the cross motion to dismiss and for summary judgment filed by Defendants National Security Agency; Keith B. Alexander, Director of National Security Agency, in his official capacity; United States of America; Barack Obama, President of the United States, in his official capacity; the Department of Justice; Eric Holder, the Attorney General, in his official capacity; and James R. Clapper, Director of National Intelligence, in his official capacity (collectively “Jewel Defendants” or “Defendants”).
This matter also comes before the Court in a related case upon consideration of the motion to dismiss and for summary judgment filed by Defendants Barack Obama, President of the United States, in his official capacity; Keith B. Alexander, Director of the National Security Agency, in his official capacity; the United States of

America; and Eric Holder, the Attorney General, in his official capacity (“Shubert Defendants” or “Defendants”) against Plaintiffs Virginia Shubert, Noha Arafa, Sarah Dranoff, and Hilary Botein, on behalf of themselves and all others similarly situated (collectively “Shubert Plaintiffs” or “Plaintiffs”).
The Jewel Plaintiffs move for partial summary adjudication seeking to have the Court reject the Defendants’ state secret defense by arguing that Congress has displaced the state secrets privilege in this action by the statutory procedure prescribed by 50 U.S.C. § 1806(f) of the Foreign Intelligence Surveillance Act (“FISA”).
The Shubert Plaintiffs filed an amended complaint upon remand of the case and the Shubert Defendants move to dismiss for lack of subject matter jurisdiction on the basis that Congress did not waive sovereign immunity as to the FISA claim. The Shubert Plaintiffs incorporate by reference the arguments made in the Jewel Defendants’ motion.
Defendants in both related cases move to dismiss all of Plaintiffs’ statutory claims for lack of subject matter jurisdiction on the basis that Congress did not waive sovereign immunity as to the statutory claims. Defendants also move for summary judgment on all counts on the grounds that Plaintiffs’ claims would risk or require the disclosure of certain information that is properly protected by the statutory protections and the state secrets privilege asserted in this action by the Director of National Intelligence and by the National Security Agency.
Having thoroughly considered the parties’ papers, Defendants’ public and classified declarations, the relevant legal authority and the parties’ arguments, the Court GRANTS the Jewel Plaintiffs’ motion for partial summary adjudication by rejecting the state secrets defense as having been displaced by the statutory procedure prescribed in 50 U.S.C. § 1806(f) of FISA. In both related cases, the Court GRANTS Defendants’ motions to dismiss Plaintiffs’ statutory claims for damages as to FISA and claims for injunctive relief as to all statutory claims on the basis of sovereign immunity. The Court further finds that the parties have not addressed the viability of the Jewel Plaintiffs’ constitutional claims under the Fourth and First Amendments and the claim for violation of separation of powers and the Shubert Plaintiffs’ fourth cause of action for violation of the Fourth Amendment. Accordingly, the Court RESERVES ruling on Defendants’ motion for summary judgment on those remaining, non-statutory claims.
2

Jewel v. National Security Agency, --- F.Supp.2d ---- (2013)

*2 The Court shall require that the parties submit further briefing on the course of this litigation going forward.1

1

The Court DENIES Defendants’ request for a stay of

this decision. The subject matter and legal questions

presented by this lawsuit are timely. To the extent

recent events involving the public disclosure of

relevant, and previously classified, information bear on

the future course of the litigation, the Court shall

require that the parties submit further briefing to

address these issues.

BACKGROUND
These cases are two in a series of many lawsuits arising from claims that the federal government, with the assistance of major telecommunications companies, conducted widespread warrantless dragnet communications surveillance of United States citizens following the attacks of September 11, 2001. Plaintiffs filed these putative class actions on behalf of themselves and a class of similarly situated persons described as “millions of ordinary Americans ... who use [ ] the phone system or the Internet” and “a class comprised of all present and future United States persons who have been or will be subject to electronic surveillance by the National Security Agency without a search warrant or court order since September 12, 2001.” (Jewel Complaint at ¶¶ 1, 7, and 9; see also Shubert Complaint at ¶ 1, 2, 20.)2

2

For the remaining facts, the Court refers to the Jewel

Complaint as it is more inclusive. The facts pertinent to

the Court’s analysis are also similarly alleged in the

related Shubert Complaint which was originally filed

May 17, 2006, as part of a multi-district litigation

action also remanded to this Court.

According to the allegations in the Jewel Complaint, a program of dragnet surveillance (the “Program”) was first authorized by Executive Order of the President on October 4, 2001. (Jewel Complaint at ¶¶ 3, 39.) Plaintiffs allege that, in addition to eavesdropping on or reading specific communications, Defendants have “indiscriminately intercepted the communications content and obtained the communications records of millions of

ordinary Americans as part of the Program authorized by the President.” (Id. at ¶ 7.) The core component of the Program is a nationwide network of sophisticated communications surveillance devices attached to the key facilities of various telecommunications companies that carry Americans’ Internet and telephone communications. (Id. at ¶¶ 8, 42.) Plaintiffs allege that Defendants have unlawfully solicited and obtained the private telephone and internal transactional records of millions of customers of the telecommunications companies, including records indicating who the customers communicated with, when those communications took place and for how long, among other sensitive information. Plaintiffs allege these records include both domestic and international communications. (Id. at ¶ 10.) Plaintiffs sue Defendants “to enjoin their unlawful acquisition of the communications and records of Plaintiffs and class members, to require the inventory and destruction of those that have already been seized, and to obtain appropriate statutory, actual, and punitive damages to deter future illegal surveillance.” (Id. at ¶ 14.)
*3 The Jewel Plaintiffs allege seventeen counts against Defendants for: violation of the Fourth Amendment (counts 1 and 2); violation of the First Amendment (counts 3 and 4); violation of FISA, 50 U.S.C. §§ 1809, 1810 (counts 5 and 6); violation of the Wiretap Act, 18 U.S.C. § 2511(1)(a), (b), and (d) (counts 7 through 9); violation of the Electronic Communications Privacy Act or the Stored Communications Act, 18 U.S.C. § 2703(a), (b), and (c) (counts 10 through 15); violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (count 16); and violation of separation of powers (count 17). The Shubert Plaintiffs allege four causes of action for violations of FISA, the Wiretap Act, the Stored Communications Act, and the Fourth Amendment.
The Jewel Complaint was originally filed on September 18, 2008. Defendants moved to dismiss and alternatively sought summary judgment as to all claims. Defendants contended that the Court lacked jurisdiction over the statutory claims because the government had not waived its sovereign immunity. Defendants moved for summary judgment on the remaining claims based on the argument that the information necessary to litigate the claims was properly subject to the state secrets privilege. The district court dismissed the claims without leave to amend based on its finding that Plaintiffs failed to make out the prima facie allegations necessary to establish standing.
On appeal, the Ninth Circuit Court of Appeals reversed the district court’s dismissal of the Jewel Complaint on
3

Jewel v. National Security Agency, --- F.Supp.2d ---- (2013)

standing grounds. The Ninth Circuit Court of Appeals remanded “with instructions to consider, among other claims and defenses, whether the government’s assertion that the state secrets privilege bars this litigation.” Jewel v. National Security Agency, 673 F.3d 902, 913–14 (9th Cir.2011). Upon remand, Plaintiffs filed their motion for partial summary adjudication urging the Court to reject Defendants’ state secret defense. Defendants cross-moved to dismiss on the basis of sovereign immunity for the statutory claims and for summary judgment on the assertion of the state secrets privilege.
The Court will address additional facts as necessary in the remainder of this Order.
ANALYSIS
A. Applicable Legal Standards.
1. Motion to Dismiss. A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the pleadings fail to state a claim upon which relief can be granted. The Court’s “inquiry is limited to the allegations in the complaint, which are accepted as true and construed in the light most favorable to the plaintiff.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir.2008). Even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Pursuant to Twombly, a plaintiff must not merely allege conduct that is conceivable but must instead allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

2. Motion for Summary Judgment. A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is proper when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party.” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997).
*4 The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; see also Fed.R.Civ.P. 56(c). An issue of fact is “genuine” only if there is sufficient evidence for a reasonable fact finder to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it may affect the outcome of the case. Id. at 248, 106 S.Ct. 2505. Once the moving party meets its initial burden, the non-moving party must go beyond the pleadings and, by its own evidence, “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e).
In order to make this showing, the non-moving party must “identify with reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir.1995) (stating that it is not a district court’s task to “scour the record in search of a genuine issue of triable fact”); see also Fed.R.Civ.P. 56(e). If the non-moving party fails to point to evidence precluding summary judgment, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Fed.R.Civ.P. 56(e)(3).
B. State Secrets Privilege. [1] [2]The state secrets privilege is a common law privilege that permits the government to bar the disclosure of information if “there is a reasonable danger” that disclosure will “expose military matters which, in the interest of national security, should not be divulged.”
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United States v. Reynolds, 345 U.S. 1, 10, 73 S.Ct. 528, 97 L.Ed. 727 (1953). The state secrets privilege strikes a delicate balance “between fundamental principles of our liberty, including justice, transparency, accountability and national security.” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1073 (9th Cir.2010).
[3] [4]The state secrets privilege has two applications: as a rule of evidentiary privilege, barring only the secret evidence from exposure during litigation, and as a rule of non-justiciability, when the subject matter of the lawsuit is itself a state secret, necessitating dismissal. See ACLU v. National Security Agency, 493 F.3d 644, 650 n.2 (6th Cir.2007). The first application of evidentiary withholding can serve to remove only certain specific pieces of evidence or can be applied to compel the removal of a sufficiently broad swath of evidence which then has the consequence of requiring dismissal of the entire suit. Such a dismissal may be necessitated by the instances in which the removal of evidence disables a plaintiff from the ability to establish the prima facie elements of a claim without resort to privileged information or instances in which the removed evidence bars the defendant from establishing a defense. See Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir.1998).
[5]The analysis of whether the state secrets privilege applies involves three distinct steps. First, the Court must ascertain whether the procedural requirements for invoking the privilege have been satisfied. Second, the Court must make an independent determination whether the information is privileged. In determining whether the privilege attaches, the Court may consider a party’s need for access to the allegedly privileged materials. See Reynolds, 345 U.S. at 11, 73 S.Ct. 528. Lastly, the “ultimate question to be resolved is how the matter should proceed in light of the successful privilege claim.” El–Masri v. United States, 479 F.3d 296, 304 (4th Cir.2007).
[6] [7] [8]With regard to the first step, to ascertain whether the procedural requirements have been met, the assertion of the privilege belongs exclusively to the government. The head of the department which has control over the matter must properly assert a formal and timely claim of privilege, after actual personal consideration by that officer. See Reynolds, 345 U.S. at 7–8, 73 S.Ct. 528. Such an invocation must be made only after “serious, considered judgment, not simply [as] an administrative formality.” United States v. W.R. Grace, 526 F.3d 499, 507–08 (9th Cir.2008) (en banc). “The formal claim must reflect the certifying official’s personal judgment ... [and]

must be presented in sufficient detail for the court to make an independent determination of the validity of the claim of privilege and the scope of the evidence subject to the privilege.” Jeppesen, 614 F.3d at 1080.
*5 [9] [10] [11] [12] [13]Second, the reviewing court must “make an independent determination whether the information is privileged.” Al–Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190, 1202 (9th Cir.2007). The court must “sustain a claim of privilege when it is satisfied, ‘from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose ... matters which, in the interest of national security, should not be divulged.’ ” Jeppesen, 614 F.3d at 1081 (quoting Reynolds, 345 U.S. at 10, 73 S.Ct. 528). In making this determination, the Court must strike the appropriate balance “between protecting national security matters and preserving an open court system.” Al–Haramain, 507 F.3d at 1203. “This inquiry is a difficult one, for it pits the judiciary’s search for truth against the Executive’s duty to maintain the nation’s security.” El–Masri, 479 F.3d at 304. In evaluating the need for secrecy, the court must defer to the Executive on matters of foreign policy and national security. See Jeppesen, 614 F.3d at 1081–82. However, the assertion of the state secrets doctrine does not “represent a complete surrender of judicial control over access to the courts.” El–Masri, 479 F.3d at 312. Rather, in order to ensure that the doctrine is not asserted more frequently and sweepingly than necessary, “it is essential that the courts continue critically to examine instances of its invocation.” Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C.Cir.1983). However, should the court find that the materials must not be divulged, “the evidence is absolutely privileged, irrespective of the plaintiffs’ countervailing need for it.” See Jeppesen, 614 F.3d at 1081 (citing Reynolds, 345 U.S. at 11, 73 S.Ct. 528).
[14] [15] [16]Lastly, the third step in the analysis requires that the court determine how the matter should proceed once it has sustained a claim of privilege. “The court must assess whether it is feasible for the litigation to proceed without the protected evidence and, if so, how.” Jeppesen, 614 F.3d at 1082. When the government successfully invokes the state secrets privilege, “the evidence is completely removed from the case.” Kasza, 133 F.3d at 1166. The court is then tasked with disentangling the nonsensitive information from the privileged evidence. Often, after the privileged evidence is excluded, “the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.” Al–Haramain, 507 F.3d at 1204 (quoting Ellsberg, 709 F.2d at 64). However, there
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“will be occasions when, as a practical matter, secret and nonsecret information cannot be separated. In some cases, therefore, ‘it is appropriate that the courts restrict the parties’ access not only to evidence which itself risks the disclosure of a state secret, but also those pieces of evidence or areas of questioning which press so closely upon highly sensitive material that they create a high risk of inadvertent or indirect disclosures.’ ” Jeppesen, 614 F.3d at 1082 (quoting Bareford v. Gen. Dynamics Corp., 973 F.2d 1138, 1143–44 (5th Cir.1992); see also Kasza, 133 F.3d at 1166 (“[I]f seemingly innocuous information is part of a ... mosaic, the state secrets privilege may be invoked to bar its disclosure and the court cannot order the government to disentangle this information from other [i.e., secret] information.”)
[17] [18]Thereafter, the case may proceed with the omission of the secret or closely entangled evidence. Alternatively, if application of the state secrets bars too much, the court may be required to dismiss the action in its entirety. Such instances include when, without the secret evidence, a plaintiff is unable to prove the prima facie elements of a claim with nonprivileged evidence. See Kasza, 133 F.3d at 1166. Or the privilege may apply to bar information that would otherwise give the defendant a valid defense to the claim, thus requiring dismissal. See id. Lastly, the court may be compelled to dismiss when, although the claims and defenses may be stated without reference to privileged evidence, “it may be impossible to proceed with the litigation because—privileged evidence being inseparable from nonprivileged information that will be necessary to the claims or defenses—litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets.” Jeppesen, 614 F.3d at 1083 (citations omitted); see also Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 279–80 (4th Cir.1980) (en banc) (per curiam) (Phillips, J., specially concurring and dissenting) (concluding that “litigation should be entirely foreclosed at the outset by dismissal of the action” if it appears that “the danger of inadvertent compromise of the protected state secrets outweighs the public and private interests in attempting formally to resolve the dispute while honoring the privilege”).
*6 [19] [20]Alternatively, the state secrets privilege may be invoked to bar litigation of the matter in its entirety where “the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated.” Totten v. United States, 92 U.S. 105, 107, 23 L.Ed. 605 (1875). Where the very subject matter of the lawsuit is a matter of state secret, the action must be

dismissed without reaching the question of evidence. See Al–Haramain, 507 F.3d at 1197 (citations omitted); see also Sterling v. Tenet, 416 F.3d 338, 345 (4th Cir.2005) (holding that dismissal is proper where “sensitive military secrets will be so central to the subject matter of the litigation that any attempt to proceed will threaten disclosure of the privileged matters.”)
[21]Here, having reviewed the materials submitted for review and having considered the claims alleged and the record as a whole, the Court finds that Defendants have timely invoked the state secrets doctrine. Defendants contend that Plaintiffs’ lawsuits should be dismissed as a result of the application of the privilege because the state secrets information is so central to the subject matter of the suit that permitting further proceedings would jeopardize national security. Given the multiple public disclosures of information regarding the surveillance program, the Court does not find that the very subject matter of the suits constitutes a state secret. Just as in Al–Haramain, and based significantly on the same set of facts in the record here, the Court finds that although there are certainly details that the government has not yet disclosed,
because of the voluntary disclosures made by various officials since December 2005, the nature and purpose of the [Terrorist Surveillance Program], the ‘type’ of persons it targeted, and even some of its procedures are not state secrets. In other words, the government’s many attempts to assuage citizens’ fears that they have not been surveilled now doom the government’s assertion that the very subject matter of this litigation, the existence of a warrantless surveillance program, is barred by the state secrets privilege.
507 F.3d at 1200; see also Hepting v. AT & T Corp., 439 F.Supp.2d 974, 986–88, 991 (N.D.Cal.2006) (holding that the existence of a program of monitoring the contents of certain telephone communications was no longer a state secret as a result of the public statements made by the President and the Attorney General). Accordingly, the Court does not find dismissal appropriate based on the subject matter of the suits being a state secret. See Totten,
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92 U.S. at 107.
[22]However, here, the Court finds there would be significant evidence that would be properly excluded should the case proceed. The Court has thoroughly and critically reviewed Defendants’ public and classified declarations and is persuaded that the evidence submitted thus far that the government seeks to protect from disclosure contain valid state secrets “which, in the interest of national security, should not be divulged.” Reynolds, 345 U.S. at 10, 73 S.Ct. 528; see also Terkel v. AT & T Corp., 441 F.Supp.2d 899, 917 (N.D.Ill.2006) (finding state secrets privilege applies because requiring the telephone company to confirm or deny whether it had disclosed large quantities of telephone records to the federal government could give adversaries valuable insight into the government’s intelligence programs and “requiring such disclosures would therefore adversely affect our national security” and “are barred by the state secrets privilege”). The Court finds the state secrets privilege would apply to bar disclosure of significant materials relating to the alleged Program. However, it may not set out precisely which matters the privilege covers lest the Court jeopardize the secrets it is bound to protect. See Jeppesen, 614 F.3d at 1086 (citing Black v. United States, 62 F.3d 1115, 1119 (8th Cir.1995) (“Care in protecting state secrets is necessary not only during a court’s review of the evidence, but in its subsequent treatment of the question in any holding; a properly phrased opinion should not strip the veil from state secrets even if ambiguity results in a loss of focus and clarity.”)).
*7 Having concluded that Defendants have successfully invoked the state secrets privilege with regard to significant evidence tending to confirm or negate the factual allegations in Plaintiffs’ complaints, the question the Court must address is how to proceed. If the state secrets defense applies to bar disclosure altogether of much of the evidence sought in this suit, Plaintiffs may neither be able to establish standing to sue nor state a prima facie case. Defendants would similarly be without accessible evidence to establish a defense without disclosure of the evidence subject to the privilege. See Kasza, 133 F.3d at 1166. However, the Court finds that, as a matter of law, the FISA procedural mechanism prescribed under 50 U.S.C. § 1806(f) preempts application of the state secrets privilege.
C. FISA and Preemption. On remand, the Court of Appeals has required this Court

to consider “the government’s assertion that the state secrets privilege bars this litigation.” Jewel, 673 F.3d at 913–14. The Ninth Circuit, in a previous matter relating to the Program, also remanded to the district court to consider “whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination.” Al–Haramain, 507 F.3d at 1206. In its opinion on remand in the Al–Haramain matter, this district court found that “FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes....” In re National Security Agency Telecommunications Records Litigation (“In re N.S.A. Telecommunication Records Litig.”), 564 F.Supp.2d 1109, 1111 (N.D.Cal.2008). The undersigned agrees and finds that the in camera review procedure in FISA applies and preempts the determination of evidentiary preclusion under the state secrets doctrine. Section 1806(f) of FISA displaces the state secrets privilege in cases in which electronic surveillance yields potentially sensitive evidence by providing secure procedures under which courts can consider national security evidence that the application of the state secrets privilege would otherwise summarily exclude.

1. FISA. [23]Congress enacted FISA to curb the problem of

unchecked

domestic

surveillance

and

intelligence-gathering abuses undertaken by the executive

branch in the post-World War II era. See S.Rep. No.

95–604, at 8 (Congress enacted FISA in response to

“revelations that warrantless surveillance in the name of

national security ha[d] been seriously abused.”). The

misconduct was exposed by a Congressional task force

known as the Church Committee, which produced a series

of investigative reports documenting unlawful

surveillance pursued in the name of national security. The

Church Committee concluded that “the massive record of

intelligence abuses over the years” had “undermined the

constitutional rights of citizens ... primarily because

checks and balances designed by the framers of the

Constitution to assure accountability have not been

applied.” Book II: Intelligence Activities and the Rights of

Americans, S.Rep. No. 94–755, at 291. Accordingly, the

Committee urged “fundamental reform,” that would

“cover[ ] the field by ... provid[ing] the exclusive legal

authority for domestic security activities,” including

“warrantless electronic surveillance.” Id. at 299.

[24]Under FISA, before engaging in domestic surveillance, the Executive branch must seek authorization from a
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special court charged with finding probable cause that the target is an agent of a foreign power as defined by the statute. See50 U.S.C. §§ 1804–05. FISA also establishes a system of review of Executive conduct by setting out specific procedures courts must follow to evaluate evidence where disclosure could endanger national security. See50 U.S.C. § 1806(f).
*8 Section 1806(f) reads in pertinent part:
...whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State ... to discovery or obtain applications or orders or other materials relating to electronic surveillance ... the United States district court ... shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.
Id.
[25] [26]Section 1806(f) of FISA applies “notwithstanding any other law” and is the “exclusive” procedure for reviewing sensitive surveillance materials gathered by the Executive under FISA and other surveillance statutes. See id.; see also18 U.S.C. § 2712(b)(4) (designating Section 1806(f) as “the exclusive means by which materials [designated as sensitive by the government] shall be reviewed” in suits against the United States under FISA, the Wiretap Act, and the Electronic Privacy Protection Act). Once invoked, the review procedure requires courts to review the potentially sensitive surveillance materials ex parte and in camera. 50 U.S.C. § 1806(f).
The purpose of this provision is to permit courts to determine whether any particular surveillance was lawfully authorized and executed. The provision, which permits courts to review the potentially sensitive

materials, strikes a balance between executive action and judicial oversight. The legislative history makes clear that Congress intended to formulate a balanced legislative solution to the national security problems raised in litigation over possibly unlawful executive surveillance programs. The Senate Judiciary Committee explained that litigants were not to evade the provision by invoking other laws or jurisprudential doctrines:
The Committee wishes to make clear that the procedures set in [subsection 1806(f) ] apply whatever the underlying rule or statute referred to in [a party’s] motion. This is necessary to prevent the carefully drawn procedures in [section 1806(f) ] from being bypassed by the inventive litigant using a new statute, rule or judicial construction.
S. Rep. No. 95–604, at 57; see also S.Rep. No. 95–701, at 63 (“When the procedure is so triggered, however, the Government must make available to the court a copy of the court order and accompanying declaration upon which the surveillance was based.”); see also H. Rep. No. 95–1283(I), at 91 (when the legality of surveillance is at issue, “it is this procedure ‘notwithstanding any other law’ that must be used to resolve the question”).
2. Preemption. [27] [28]Based on the legislative history and the plain language of FISA, this Court finds that FISA preempts the common law doctrine of the state secrets privilege. Federal common law applies “[u]ntil the field has been made the subject of comprehensive legislation.” City of Milwaukee v. Illinois and Michigan, 451 U.S. 304, 314, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981). When it passed FISA, Congress expressly indicated its intention to replace judge-made federal common law rules:
*9 [T]he development of the law regulating electronic surveillance for national security purposes has been uneven and inconclusive. This is to be expected where the development is left to the judicial branch in an area where cases do
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not regularly come before it. Moreover, the development of standards and restrictions by the judiciary with respect to electronic surveillance for foreign intelligence purposes accomplished through case law threatens both civil liberties and the national security because the development occurs generally in ignorance of the facts, circumstances, and techniques of foreign intelligence electronic surveillance not present in the particular case before the court.... [T]he tiny window to this area which a particular case affords provides inadequate light by which judges may be relied upon to develop case law which adequately balances the rights of privacy and national security.
H. Rep. No. 95–1283, at 21.
It is clear Congress intended for FISA to displace federal common law rules such as the state secrets privilege with regard to matters within FISA’s purview. The legislative history indicates that Congress intended to “occupy the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency.” Milwaukee, 451 U.S. at 317, 101 S.Ct. 1784. Through explicit provisions of FISA, Congress “established a comprehensive, detailed program to regulate foreign intelligence surveillance in the domestic context.” In re N.S.A. Telecommunications Records Litig., 564 F.Supp.2d at 1118. In particular, § 1806(f) “is Congress’s specific and detailed description for how courts should handle claims by the government that the disclosure of material relating to or derived from electronic surveillance would harm national security.” Id. at 1119. The specific description leaves no room for application of the state secrets privilege and is, in effect, a “codification of the state secrets privilege for purposes of relevant cases under FISA, as modified to reflect Congress’s precise directive to the federal courts for the handling of materials and information with purported national security implications.” Id. The Court agrees that “FISA preempts or displaces the state secrets privilege, but only in cases within the reach of its provisions.” Id. at 1124. As in In re National Security Agency Telecommunications Records Litigation, Plaintiffs’

allegations here of warrantless wiretapping and surveillance programs similarly fall within those provisions.
However, because the Court finds that Defendants have not waived sovereign immunity for its statutory claim, Plaintiffs’ claims for violation of FISA fail.
D. Waiver of Sovereign Immunity for Plaintiffs’ Statutory Claims. [29] [30]Defendants also move to dismiss Plaintiffs’ statutory claims on the grounds that sovereign immunity has not been waived. “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); see also United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”). Plaintiffs bear the burden to establish a waiver of sovereign immunity. Prescott v. United States, 973 F.2d 696, 701 (9th Cir.1992)
1. Statutory Claims for Damages. Plaintiffs bring statutory claims for damages under FISA, the Wiretap Act, and the Stored Communications Act (“SCA”). Section 223 of the Patriot Act amended the SCA and added the following provision which waives sovereign immunity for three specific provisions of FISA and more generally for violations of the SCA and the Wiretap Act.
Any person who is aggrieved by any willful violation of this chapter or of chapter 119 of this title or of sections 106(a), 305(a), or 405(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) may commence an action in United States District Court against the United States to recover money damages.
*10 18 U.S.C. § 2712. See Pub.L. No. 107–56 § 223, 115 Stat. 272 (2001).
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[31]Plaintiffs do not bring any claims under these three enumerated provisions of FISA. Plaintiffs sue Defendants for violating 50 U.S.C. § 1809, and they rely on 50 U.S.C. § 1810 to provide a waiver of sovereign immunity in order to sue for damages. However, as Plaintiffs concede, the Ninth Circuit has explicitly rejected the proposition that § 1810 may be construed as a waiver of sovereign immunity to sue for damages. See Al–Haramain v. Obama, 690 F.3d 1089 (9th Cir.2012) (holding that 50 U.S.C. § 1810 does not waive sovereign immunity against the United States for damages). Therefore, Plaintiffs’ claim for damages under FISA against the United States and against the individual federal defendants in their official capacity is barred.
[32] [33]However, the waiver of sovereign immunity for damages claims against the United States contained with Section 2712 for claims under the SCA and the Wiretap Act is much broader. While the waiver in Section 2712 is limited to three specific provisions of FISA, the waiver for claims under the SCA and the Wiretap Act is not similarly restricted to individual provisions within those statutes. Nevertheless, Defendants contend that the waiver is limited to claims under the SCA and the Wiretap Act for the use and disclosure of information obtained from electronic surveillance, not just its collection. Defendants argue that plain language and the legislative history of Section 223 of the Patriot Act supports this limitation. The Court finds this argument unpersuasive.
[34] [35]In construing the provisions of a statute, courts must “first look to the language of the statute to determine whether it has a plain meaning.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir.2009); see also United States v. Chaney, 581 F.3d 1123, 1126 (9th Cir.2009) (“It is well settled that statutory interpretation begins with the plain language of the statute.”) (internal quotation marks and citation omitted). “The preeminent canon of statutory interpretation requires us to presume that [the] legislature says in a statute what it means and means in a statute what it says there. Thus, our inquiry begins with the statutory text, and ends there as well if the text is unambiguous.” McDonald v. Sun Oil Co., 548 F.3d 774, 780 (9th Cir.2008) (quoting BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004)) (internal quotation marks omitted).
The plain language of Section 2712(a) does not limit the waiver of sovereign immunity for damage claims under the SCA and the Wiretap Act to claims for the use and disclosure of information. In Section 2712(a), Congress specifically limited the waiver for damage claims to three

specific sections of FISA and easily could have done the same with respect to the Wiretap Act and the SCA. The fact that Congress did not similarly limit the waiver to specific sections within the Wiretap Act and the SCA has significance. To ignore this distinction would be to ignore the plain language and structure of the statute. Cf. TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (“It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”) (internal quotation marks and citation omitted); United States v. Novak, 476 F.3d 1041, 1048 (9th Cir.2007) (“We avoid whenever possible statutory interpretations that result in superfluous language.”).
*11 Defendants argue that reading Section 223 of the Patriot Act as a whole demonstrates that the waiver of sovereign immunity by Section 2712(a) is limited to claims regarding the use and disclosure of information. In support of this argument, Defendants rely upon the fact that Section 223 was titled “Civil Liability for Certain Unauthorized Disclosures” and upon the fact that other provisions of Section 223 specifically addressed claims for the use and disclosure of information. However, the Court finds this argument unpersuasive. Neither the title of the Section 223, nor the fact that Section 223 includes additional provisions that address claims regarding the use and disclosure of information, alters the clear and unambiguous statutory language. Again, the Court emphasizes that Section 2712 explicitly limits the waiver to specific provisions of FISA and does not limit the waiver to specific provisions within the Wiretap Act or the SCA. If Congress intended to limit the waiver to claims regarding the use and disclosure claims within all three statutes, it could have done so. The Court cannot ignore the fact that Congress chose to do so with respect to one of these statutes and did not with respect to the other two. See Botosan v. Paul McNally Realty, 216 F.3d 827, 832 (9th Cir.2000) (“The incorporation of one statutory provision to the exclusion of another must be presumed intentional under the statutory canon of expressio unius.”)
[36] [37]Next, Defendants invite the Court to read limitations into the waiver of sovereign immunity from the legislative history of this statutory provision. “[E]ven where the plain language appears to settle the question, we may nonetheless look to the legislative history to determine whether there is clearly expressed legislative intention contrary to that language that overcomes the strong presumption that Congress has expressed its intent
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in the language it chose.” Amalgamated Transit Union Local 1309, AFL–CIO v. Laidlaw Transit Services, Inc., 435 F.3d 1140, 1146 (9th Cir.2006). In addition, the Ninth Circuit has stated that the “plain meaning rule ... does not require a court to operate under an artificially induced sense of amnesia about the purpose of legislation, or to turn a blind eye towards significant evidence of Congressional intent in the legislative history.” Amalgamated Transit Union Local 1309, AFL–CIO v. Laidlaw Transit Services, Inc., 448 F.3d 1092, 1093 (9th Cir.2006) (quoting Heppner v. Alyeska Pipeline Serv. Co., 665 F.2d 868, 871 (9th Cir.1981)). Upon review of the legislative history, the Court does not find “clearly expressed legislative intention contrary to that language that overcomes the strong presumption that Congress has expressed its intent in the language it chose.” Amalgamated Transit Union, 435 F.3d at 1146. Accordingly, the Court finds that Section 2712 waives sovereign immunity for Plaintiffs’ claims for damages under the Wiretap Act and the SCA.
2. Statutory Claims for Injunctive Relief. Section 2712 is inapplicable to Plaintiffs’ claims for injunctive relief. Section 2712 only applies to claims for damages. Therefore, Plaintiffs must turn elsewhere to establish a waiver of sovereign immunity. To do so, Plaintiffs rely on Section 702 of the Administrative Procedure Act (“APA”) and on the common law ultra vires exception set forth in Larson v. Domestic & Foreign Commerce Corporation, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).
a. The Administrative Procedures Act.
Section 702 of the APA provides:
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. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an

official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.... Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
*12 5 U.S.C § 702. Defendants contend that Section 702 is inapplicable because it 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.” See id. Defendants argue that Section 223 of the Patriot Act is such a statute.
[38] [39]“ ‘[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.” Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians v. Patchak, ––– U.S. ––––, 132 S.Ct. 2199, 2205, 183 L.Ed.2d 211 (2012) (quoting Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U.S. 273, 286, n.22, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983)) (“Pottawatomi Indians ”). Section 223 of the Patriot Act amended the Wiretap Act, the SCA, and FISA to allow suits against the United States for damages. The question presented here is whether, by granting authority to sue the United States for damages, the Patriot Act impliedly limited the authority to sue the United States for other types of relief, such as injunctive or declaratory relief. The Court finds that it does.
With respect to the SCA and the Wiretap Act, Section 223 of the Patriot Act not only granted consent to sue the United States for damages, but it also 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.” See Pub.L. No. 107–56 § 223, 115 Stat. 272 (2001) (amending 18 U.S.C. § 2520(a) and 18 U.S.C. § 2707(a) to insert “other than the United States”).
11

Jewel v. National Security Agency, --- F.Supp.2d ---- (2013)

Therefore, the Court finds the intent of Congress in passing Section 223 of the Patriot Act was to forbid injunctive and declaratory relief against the United States under the SCA and the Wiretap Act.
[40]Although the additional evidence on Congressional intent regarding the SCA and the Wiretap Act noted above is lacking, the Court finds that the Patriot Act must still be read to restrict the authority to sue the United States to suits for damages for the three specific statutory provisions listed in § 2712. Significantly, any ambiguities must be read in favor of the United States’ immunity from suit. See Federal Aviation Administration v. Cooper, ––– U.S. ––––, 132 S.Ct. 1441, 1448, 182 L.Ed.2d 497 (2012) (“Any ambiguities in the statutory language are to be construed in favor of immunity....”). Moreover, the Court notes that the Patriot Act’s grant of authority to sue under FISA is more restricted than the grant of authority to sue under the Wiretap Act and the SCA. Thus, it would be inconsistent to hold that the waiver of sovereign immunity is broader with respect to FISA than to the Wiretap Act and the SCA.
Relying on Pottawatomi Indians, Plaintiffs argue that the exception to the waiver of sovereign immunity in Section 702 does not bar their FISA claim for injunctive relief because they are “bringing a different claim, seeking different relief” from the specific FISA provisions listed in § 2712(a). 132 S.Ct. at 2209. Plaintiffs’ reliance on this case is misplaced. In Pottawatomi Indians, the Court held that the ban on bringing suit under the Quiet Title Act (“QTA”) did not apply because the plaintiff was not bringing a claim under that statute. Id. at 2208 (finding that the plaintiff was “not bringing a QTA suit at all”). Here, Plaintiffs indisputably bring claims under FISA. Thus, the issue is whether FISA, by allowing suits against the United States only for damages based on three provisions of that statute, impliedly bans suits against the United States that seek injunctive relief under any provision of FISA. The Court finds that it does. Accordingly, Plaintiffs cannot rely on Section 702 of the APA for a waiver of sovereign immunity.
b. The Ultra Vires Doctrine.
*13 [41]Next, Plaintiffs seek to invoke the ultra vires exception to sovereign immunity of federal officials as set forth in Larson. Under this doctrine, “[i]f an employee of the United States acts completely outside of his

governmental authority, he has no immunity.” United States v. Yakima Tribal Court (“Yakima Tribal Court ”), 806 F.2d 853, 859 (9th Cir.1986); see also Larson, 337 U.S. at 689–90, 69 S.Ct. 1457.
There is some question as to whether this doctrine survived the 1976 amendments to the APA. The Ninth Circuit has commented that “Congress observed that before the amendment to Section 702 [of the APA], litigants seeking ... non-monetary relief were forced to resort to the ‘legal fiction’ of naming individual officers, rather than the government, as defendants, ... an approach that was ‘illogical’ and ‘becloud[ed] the real issue whether a particular governmental activity should be subject to judicial review, and, if so, what form of relief is appropriate.’ ” See The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 524 (9th Cir.1989) (quoting H. Rep. No. 1656, at 5, reprinted in 1976 U.S.Code Cong. & Admin. News 6121, 6125, 6128–29). The Ninth Circuit found it “significant that Congress referred disapprovingly to the Ex parte Young fiction, which permitted a plaintiff to name a government official as the defendant in equitable actions to redress government misconduct, on the pretense that the suit was not actually against the government.” Id. at 525–26 (citing Larson, 337 U.S. at 689–91, 69 S.Ct. 1457). The Circuit Court stated that “Congress’ plain intent in amending Section 702 was to waive sovereign immunity for all such suits, thereby eliminating the need to invoke the Young fiction.” Id. at 526; see also Equal Employment Opportunity Commission v. Peabody Western Coal Co., 610 F.3d 1070, 1085 (9th Cir.2010) (noting that in Presbyterian Church (U.S.A.), the Circuit Court “explained that after § 702 was amended in 1976, it replaced the Ex parte Young fiction as the doctrinal basis for a claim for prospective relief[ ]” and that “since 1976 federal courts have looked to § 702 of the [APA] to serve the purposes of the Ex parte Young fiction in suits against federal officers.”)
Nevertheless, there is case law in the Ninth Circuit, post-dating the amendments to the APA in 1976, that applies the ultra vires doctrine or at least suggests its continued existence. See, e.g., Yakima Tribal Court, 806 F.2d at 859 (“If an employee of the United States acts completely outside his governmental authority, he has no immunity.”) (citing Larson, 337 U.S. at 689, 69 S.Ct. 1457); De Lao v. Califano, 560 F.2d 1384, 1391 (9th Cir.1977) (noting that courts have recognized two exceptions to sovereign immunity when suits are brought against government officials, including the ultra vires doctrine). The Ninth Circuit has declined to address whether the ultra vires doctrine set forth in Larson exists
12

Jewel v. National Security Agency, --- F.Supp.2d ---- (2013)

in light of the wavier provided by Section 702 of the APA and has noted that the decisions in this area are “hopelessly inconsistent.” Beller v. Middendorf, 632 F.2d 788, 797 (9th Cir.1980), overruled on other grounds byBowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). While noting the confusion, the Ninth Circuit declined to attempt a reconciliation. Id. In the absence of clear authority holding that the ultra vires doctrine is no longer viable, the Court will not dismiss Plaintiffs’ statutory claims for injunctive relief to the extent they are premised on the ultra vires doctrine because the 1976 amendments to the APA invalidated this doctrine.
*14 [42] [43] [44] [45]However, to the extent the ultra vires doctrine survives, its scope is quite narrow. First, the Court notes that an ultra vires claim may only be asserted against officers in their individual or personal capacity. See Larson, 337 U.S. at 687–89, 69 S.Ct. 1457. Moreover, a claim that an officer was acting ultra vires “is different from the situation where an employee acting as a government agent, commits an act that is arguably a mistake of fact or law.” Yakima Tribal Court, 806 F.2d at 859. An “[u]ltra vires claim[ ] rest[s] on the official’s lack of delegated authority.” Id. at 860. As the Supreme Court explained in the context of addressing the viability of the ultra vires doctrine against state officials, the ultra vires exception to sovereign immunity is “very narrow.” Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 114 n.25, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). An officer “may be said to act ultra vires only when he acts ‘without any authority whatever.’ ” Id. at 102 n.11, 104 S.Ct. 900 (quoting Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 697, 716, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982)) (White, J., concurring in judgment in part and dissenting in part) (finding that the test is whether there was no “colorable basis for the exercise of authority by state officials”). “[A]n ultra vires claim rests on ‘the officer’s lack of delegated power. A claim of error in the exercise of that power is therefore not sufficient.’ ” Id. (quoting Larson, 337 U.S. at 690, 69 S.Ct. 1457).
In Pennhurst, the trial court’s undisputed findings were that the residents of the state facility were “often physically abused or drugged by staff members....” Pennhurst, 465 U.S. at 92, 104 S.Ct. 900. The Supreme Court held that the “[p]etitioners’ actions in operating [the] mental health institution plainly were not beyond their delegated authority” and that the “essence” of the respondents’ claims was that the petitioners failed to provide services adequately. Id. at 102 n.11, 104 S.Ct. 900.

[46]Here, it is undisputed that Defendants have authority to conduct electronic surveillance. In their claims for declaratory, injunctive and other equitable relief, Plaintiffs contend that Defendants conducted electronic surveillance improperly, without following the proper procedures, and in violation of FISA, the Wiretap Act and the SCA. In essence, Plaintiffs contend that the individual defendants erred in their exercise of their authority to conduct electronic surveillance. Such a claim does not fit within the narrow exception to sovereign immunity under the ultra vires doctrine.
[47] [48]The fact that Plaintiffs are challenging a government-wide “program” bolsters the Court’s conclusion that Plaintiffs may not proceed under the narrow ultra vires exception. “[T]he key question in addressing the sovereign immunity of the United States is ‘whether the relief sought in a suit nominally addressed to the officer is relief against the sovereign.’ ” Aminoil U.S.A., Inc. v. California State Water Resources Control Board, 674 F.2d 1227, 1234 (9th Cir.1982) (quoting Larson, 337 U.S. at 687, 69 S.Ct. 1457). Here, Plaintiffs seek to obtain relief from the sovereign itself, under the guise of suing officials individually. Plaintiffs allege that beginning in early October 2011, then-President Bush, in concert with the other individual defendants, authorized “a range of surveillance activities inside of the United States without any statutory authorization or court approval.” (Jewel Complaint at ¶ 39.) Plaintiffs label this alleged activity as “the Program.” (Id.; see also Jewel Complaint at ¶ 42 (“The Program of domestic surveillance authorized by the President and conducted by Defendants....”). Plaintiffs seek to halt this alleged governmental “Program.” Plaintiffs cannot obtain effective relief from “the Program” by suing Defendants individually.3

3

The Court’s conclusion that Defendants are essentially

seeking relief from the Government is further bolstered

by the fact that Plaintiffs have not substituted in the

current officials whom they seek to sue in their official

capacity. Pursuant to Federal Rule of Civil Procedure

25, an action against an officer in her or her official

capacity does not abate when that officer ceases to hold

office while the action is pending. Instead, “[t]he

officer’s successor is automatically substituted as a

party.” See Fed.R.Civ.P. 25(d). Although the text of

Rule 25 applies only to actions against officers in their

official capacity, Plaintiffs rely on the notes to the

amendment to Rule 25 in 1961. The notes provide that

“[t]he amended rule will apply to all actions brought by

13

Jewel v. National Security Agency, --- F.Supp.2d ---- (2013)

public officers for the government ...” and to “actions to prevent officers from acting in excess of their authority or under authority not validly conferred....” See Fed.R.Civ.P. 25. Advisory Committee’s Notes (citing Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)). The advisory committee explain that the Rule “will apply whenever effective relief would call for corrective behavior by the one then having official status and power, rather than one who has lost that status and power through ceasing to hold office.” Id. (citing Larson, 337 U.S. at 682, 69 S.Ct. 1457). Because the notes do provide that the officers’ successors will be substituted in automatically when they are sued under the ultra vires doctrine as set forth in Ex parte Young and Larson, the Court substitutes in the current office holders.
*15 The Court concludes that Plaintiffs’ statutory claims for injunctive relief may not proceed under the ultra vires doctrine. Therefore, the Court finds that sovereign immunity has not been waived and grants Defendants’ motion to dismiss on Plaintiffs’ statutory claims for injunctive relief.
CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs’ motion for partial summary adjudication by rejecting the state secrets defense as having been displaced by the statutory procedure prescribed in 50 U.S.C. § 1806(f) of FISA. The Court GRANTS Defendants’ motions to dismiss Plaintiffs’ claims for damages under FISA and all statutory claims for injunctive relief on the basis of sovereign immunity. The Court RESERVES ruling on the Defendants’ motions for summary judgment on remaining non-statutory claims (counts 1–4 of the Jewel Complaint and the fourth cause of action in the Shubert Complaint).
The Court shall require that the parties submit briefing on both the scope of FISA preemption on the Plaintiffs’

constitutional claims, specifically, whether the scope of the preemption only provides a procedural mechanism for the review of submitted evidentiary materials or whether the scope of FISA preemption is broader to foreclose altogether the substantive constitutional claims. Should the Court permit the constitutional claims to proceed and find that § 1806(f) merely provides the mechanism for review of submitted materials, Plaintiffs shall be tasked with the burden to establish standing to sue without resulting in impermissible damage to ongoing national security efforts. See Clapper v. Amnesty International USA, ––– U.S. ––––, 133 S.Ct. 1138, 1149 n.4, 185 L.Ed.2d 264 (2013) (noting that, pursuant to hypothetical in camera proceedings permitted under § 1806(f), “the court’s postdisclosure decision about whether to dismiss the suit for lack of standing would surely signal to the terrorist whether his name was on the list of surveillance targets.”) Although the Court finds, at this procedural posture, that Plaintiffs here do not allege the attenuated facts of future harm which barred standing in Clapper, the potential risk to national security may still be too great to pursue confirmation of the existence or facts relating to the scope of the alleged governmental Program.
Further, the Court shall require briefing on the impact on the Defendants’ assertion of such a risk following the recent disclosure of the government’s continuing surveillance activities and the statement by the Director of National Intelligence that certain information related to the “business records” provision of FISA should be declassified and immediately released to the public.
In order to facilitate this process and set the schedule for such further briefing, the Court shall conduct a case management conference on August 23, 2013 at 1:30 p.m. The parties shall submit a joint case management statement by no later than August 16, 2013.
IT IS SO ORDERED.
	  

14

 
 Case3:08-cv-04373-JSW Document113 Filed10/09/12 Page1 of 56

1 CINDY COHN (SBN 145997)

RACHAEL E. MENY (SBN 178514)

cindy@eff.org

rmeny@kvn.com

2 LEE TIEN (SBN 148216)

PAULA L. BLIZZARD (SBN 207920)

KURT OPSAHL (SBN 191303)

MICHAEL S. KWUN (SBN 198945)

3 JAMES S. TYRE (SBN 083117)

AUDREY WALTON-HADLOCK (SBN

MARK RUMOLD (SBN 279060)

250574)

4 ELECTRONIC FRONTIER FOUNDATION BENJAMIN W. BERKOWITZ (SBN 244441)

454 Shotwell Street

KEKER & VAN NEST, LLP

5 San Francisco, CA 94110

633 Battery Street

Telephone: (415) 436-9333

San Francisco, CA 94111

6 Fax: (415) 436-9993

Telephone: (415) 391-5400

Fax: (415) 397-7188

7 RICHARD R. WIEBE (SBN 121156)

wiebe@pacbell.net

THOMAS E. MOORE III (SBN 115107)

8 LAW OFFICE OF RICHARD R. WIEBE

tmoore@moorelawteam.com

One California Street, Suite 900

THE MOORE LAW GROUP

9 San Francisco, CA 94111

228 Hamilton Avenue, 3rd Floor

Telephone: (415) 433-3200

Palo Alto, CA 94301

10 Fax: (415) 433-6382

Telephone: (650) 798-5352

Fax: (650) 798-5001

11

ARAM ANTARAMIAN (SBN 239070)

12

aram@eff.org

LAW OFFICE OF ARAM ANTARAMIAN

13

1714 Blake Street

Berkeley, CA 94703

14

Telephone: (510) 289-1626

Attorneys for Plaintiffs

15

UNITED STATES DISTRICT COURT 16

FOR THE NORTHERN DISTRICT OF CALIFORNIA 17

18 CAROLYN JEWEL, TASH HEPTING,

) CASE NO. 08-CV-4373-JSW )

GREGORY HICKS, ERIK KNUTZEN and ) 19 JOICE WALTON, on behalf of themselves and ) PLAINTIFFS’ FEDERAL RULE OF

all others similarly situated, 20

) EVIDENCE SECTION 1006 SUMMARY ) OF VOLUMINOUS EVIDENCE FILED

Plaintiffs,

) IN SUPPORT OF THEIR MOTION FOR

21

) PARTIAL SUMMARY JUDGMENT

v. 22

) AND OPPOSITION TO THE ) GOVERNMENT DEFENDANTS’

NATIONAL SECURITY AGENCY, et al., 23

) CROSS-MOTION )

Defendants.

) Date: December 14, 2012

24

) Time: 9:00 a.m.

25

) Courtroom 11, 19th Floor The Honorable Jeffrey S. White

26

27

28 Case No. 08-CV-4373-JSW
PLAINTIFFS’ FEDERAL RULE OF EVIDENCE SECTION 1006 SUMMARY OF VOLUMINOUS EVIDENCE FILED IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO THE
GOVERNMENT DEFENDANTS’ CROSS-MOTION

Case3:08-cv-04373-JSW Document113 Filed10/09/12 Page2 of 56

1

TABLE OF CONTENTS

2 I. 3
II. 4
5
6
7

INTRODUCTION .................................................................................................................... 1 THE PRESIDENT’S SURVEILLANCE PROGRAM............................................................2 A. Overview of the Program .............................................................................................2 B. Evidence Showing How the Program Operates ...........................................................4
1. Evidence of Communications Surveillance .....................................................6

8

a. Wholesale Acquisition of International and Domestic Telephone

and Internet Communications ..............................................................6

9

b. Automated Analysis, or Datamining, of Content and Non-Content

10

Information. ........................................................................................ 11

11 c. Communications are Not Minimized Prior to Storage.......................14

12 d. Minimization Does not Adequately Protect the Privacy Interests

13

of U.S. Persons Whose Domestic and International

Communications are Intercepted........................................................16 14

15

2. Evidence of Call Records Surveillance..........................................................18

16

a. Statements by Government and Telecommunication Company

Officials Confirm that the Program Includes Surveillance of

17

Domestic Call-Detail Records............................................................19

18

b. The Program Uses Domestic Call-Detail Records to Analyze

19

Americans’ Communication Patterns for Targeting and Investigation ....................................................................................... 24

20 C. Evidence that AT&T Participated in the Program .....................................................25

21

1. Evidence of AT&T’s Collaboration with the Communications Acquisition

22

Aspect of the Program....................................................................................25

23 2. Evidence of AT&T’s Participation in the Call-Detail Records Aspect of the

24

Program ..........................................................................................................27

25 III. THE EVOLUTION OF THE PROGRAM OVER TIME......................................................28

26

A. Origins of the Program...............................................................................................29

27 B. March 2004 Administration Revolt Over Illegal Surveillance ..................................33

28 Case No. 08-CV-4373-JSW

i

PLAINTIFFS’ FEDERAL RULE OF EVIDENCE SECTION 1006 SUMMARY OF VOLUMINOUS EVIDENCE

FILED IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO THE

GOVERNMENT DEFENDANTS’ CROSS-MOTION

Case3:08-cv-04373-JSW Document113 Filed10/09/12 Page3 of 56

1

C. The Transition of Certain Program Activities to Foreign Intelligence Surveillance

Court Orders...............................................................................................................38 2

3

D. The Program After the Protect America Act of 2007 and the FISA Amendments

Act of 2008.................................................................................................................41

4 E. The Ongoing Operation of the Program.....................................................................42
5

IV. EVIDENCE PROVIDING CONTEXT FOR GOVERNMENT ASSERTIONS ABOUT

6

THE PROGRAM ...................................................................................................................44

7 A. Use of the Term “Terrorist Surveillance Program” .................................................. 44
8 B. Use of the Terms “Surveillance” and “Collection”....................................................45
9
C. Use of the Terms “Content,” “Conversations,” and “Communications”..................46 10

11
12 V.
13

D. The Government’s Assertions of Harm to National Security are Inconsistent with Its Actions ..................................................................................................................48
CONCLUSION ......................................................................................................................52

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 Case No. 08-CV-4373-JSW

ii

PLAINTIFFS’ FEDERAL RULE OF EVIDENCE SECTION 1006 SUMMARY OF VOLUMINOUS EVIDENCE

FILED IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO THE

GOVERNMENT DEFENDANTS’ CROSS-MOTION

Case3:08-cv-04373-JSW Document113 Filed10/09/12 Page4 of 56

1 I. INTRODUCTION

2

Plaintiffs respectfully submit the following Summary of Voluminous Evidence pursuant to

3 Fed. R. Evid. 1006, compiling into one document with a supporting declaration and exhibits a

4 broad swath of currently available public evidence supporting plaintiffs’ claims.

5

Rule 1006 does not require that “‘it be literally impossible to examine the underlying

6 records.’” U.S. v. Stephens, 779 F.2d 232, 238-39 (5th Cir. 1985) (quoting U.S. v. Scales, 594 F.2d

7 558, 562 (6th Cir. 1978), cert. denied, 441 U.S. 946 (1979)). “The fact that the underlying

8 documents are already in evidence does not mean that they can be ‘conveniently examined in

9 court.’” Stephens, 779 F.2d at 239 (quoting U.S. v. Lemire, 720 F.2d 1327, 1347 (D.C. Cir. 1983)).

10

Plaintiffs submit this Summary of Voluminous Evidence in support of their Fed. R. Civ.

11 Pro. 56(d) declaration, in that the Summary reflects the substantial breadth of information in the

12 public domain that would be subject to discovery, particularly from government sources. Plaintiffs

13 also submit this Summary in opposition to the government’s contention that plaintiffs cannot prove

14 their case, especially injury in fact, due to the state secrets privilege. Plaintiffs further submit this

15 Summary to highlight the governments’ use of certain key terms including “surveillance,”

16 “content,” and “collect” in a way that tends to create a misleading impression.

17

Fed. R. Evid. 1006 is the appropriate vehicle for putting the evidence before the Court. The

18 writings that plaintiffs are summarizing are voluminous, and the plaintiffs have produced those

19 writings to the government and to the Court. Rule 1006 requires that the summary document be

20 based on foundation testimony connecting it with underlying evidence summarized, and must fairly

21 represent competent evidence already before the trier of fact. Fagiola v. Nat’l Gypsum Co. AC &

22 S., Inc., 906 F.2d 53, 57 (2d Cir. 1990) (“Evidence admitted under Rule 1006 must be otherwise

23 admissible and remains subject to the usual objections under the rules of evidence and the

24 Constitution.”); see also U.S. v. Milkiewicz, 470 F.3d 390, 396 (1st Cir. 2006).

25

However, at the summary judgment stage, the non-moving party need not produce evidence

26 in a form that is admissible at trial in order to avoid summary judgment. Celotex Corp. v. Catrett,

27 477 U.S. 317, 324 (1986). Thus, in examining the evidence of a party opposing summary

28 Case No. 08-CV-4373-JSW

1

PLAINTIFFS’ FEDERAL RULE OF EVIDENCE SECTION 1006 SUMMARY OF VOLUMINOUS EVIDENCE

FILED IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO THE

GOVERNMENT DEFENDANTS’ CROSS-MOTION

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1 judgment, courts do not focus on the admissibility of the evidence’s form, but rather on the

2 potential admissibility at trial of its contents. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir.

3 2003) (citing Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) (“To survive

4 summary judgment, a party does not necessarily have to produce evidence in a form that would be

5 admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil 6 Procedure 56.”). For example, even if a statement quoted in a book or a newspaper article is

7 hearsay, the information asserted in such an article would be admissible in a subsequent trial

8 through the testimony of the person quoted, or by establishing the foundation for a hearsay

9 exception or showing that the statement was a non-hearsay admission.

10

Moreover, at this stage in the litigation, the Court is entitled to use circumstantial evidence

11 and to draw inferences therefrom. In re Sealed Case, 494 F.3d 139, 147 (D.C. Cir. 2007).

12 Accordingly, for purposes of this motion, the Court may consider all of the evidence contained in

13 this Summary of Evidence. Moreover, many of the writings are admissible as admissions of an

14 opposing party (Fed. R. Evid. 801(c)(2)) or as a public record (Fed. R. Evid. 902). To the extent

15 that a writing might be inadmissible, plaintiffs submit the writing to show that an opportunity to

16 conduct discovery will likely yield admissible evidence that would support plaintiffs’ opposition to

17 the government’s motion.

18 II. THE PRESIDENT’S SURVEILLANCE PROGRAM

19

A. Overview of the Program

20

Shortly after the September 11, 2001 terrorist attacks, President George W. Bush authorized

21 the National Security Agency to conduct a variety of surveillance activities, including the

22 warrantless surveillance of telephone and Internet communications of persons within the United

23 States. Department of Defense, et al., Offices of Inspector Gen., Unclassified Report on the 24 President’s Surveillance Program (July 10, 2009) at 1 (“OIG PSP Report”)1 [Vol. III, Ex. 33, p.

25 1 Unless otherwise noted, all citations to evidence summarized herein are to evidence introduced

26 through the Declaration of Kurt Opsahl Regarding Plaintiffs’ Evidence and Rule 1006 Summary of Voluminous Evidence Filed in Support of Plaintiffs’ Motion for Partial Summary Judgment and

27 Opposition to the Government Defendant’s Cross Motion (“Opsahl Declaration”). For clarity, each citation to plaintiffs’ voluminous evidence, filed herewith, will provide a description of the

28 Case No. 08-CV-4373-JSW

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FILED IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO THE

GOVERNMENT DEFENDANTS’ CROSS-MOTION

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1 1197]2 Declaration of Lt. Gen. Keith B. Alexander (MDL Dkt. No. 06-cv-01791) (Dkt. # 254-4) at 2 ¶ 10 [Vol. IV, Ex. 77, p. 2539].3 The OIG PSP Report termed these surveillance activities the

3 “President’s Surveillance Program” (hereafter, “the Program”). OIG PSP Report at 1 [Vol. III, Ex

4 33, p. 1197]. The Program is broader than the narrow subset of surveillance activities that, in 2005,

5 the Bush Administration decided to label the “Terrorist Surveillance Program” (hereafter, “TSP”). 6 Id. at 1-2, 5-6, 36-37 [pp. 1197-98, 1201-02, 1232-33].

7

A secret presidential order (the “Program Order”), signed on October 4, 2001, expanded the

8 authority of the NSA “to conduct electronic surveillance within the United States without an order

9 from the [Foreign Intelligence Surveillance Court (FISC)].” OIG PSP Report at 5 [Vol. III, Ex. 33, 10 p. 1201].4 The Program began on October 6, 2001, prior to any comprehensive legal review by the 11 Department of Justice. Id. at 11 [p. 1207]; Nomination of Gen. Michael Hayden to be the Dir. of

12 the Central Intelligence Agency, Hearing of the S. Select Comm. on Intelligence, 109th Cong. at 62

13 (May 18, 2006) (“Hayden Hearing”) [Vol. I, Ex. 2, p. 65]. The Program Order permitted the NSA

14 to carry out a variety of new intelligence activities within the United States. OIG PSP Report at 5-6

15 [Vol. III, Ex. 33, pp. 1201-02]. President Bush renewed the Program Order at least 30 times,

16 approximately every 45 days. Id. at 1, 7 [pp. 1197, 1203]; Letter from Shannen W. Coffin, Counsel

17 to the Vice President, Office of the Vice President, to Sen. Patrick J. Leahy, Chairman, S. Comm.

18 document being cited, followed by its location in the record by volume, exhibit, and control

19 number. 2 “Title III of the Foreign Intelligence Surveillance Act Amendments Act (FAA) of 2008 required

20 the Inspectors General of the elements of the intelligence community that participated in the

President’s Surveillance Program to conduct a comprehensive review of the program. The IGs of 21 the Department of Justice, the Department of Defense, the Central Intelligence Agency, the

22

National Security Agency, and the Office of the Director of National Intelligence participated in the review required by the Act.” OIG PSP Report. [p. 1194]

23 3 See also James Risen & Eric Lichtblau, Spy Agency Mined Vast Data Trove, Officials Report,

N.Y. TIMES (Dec. 24, 2005) [Vol. IV, Ex. 66, pp. 1714 - 16]; James Risen & Eric Lichtblau, Bush

24 Lets U.S. Spy on Callers Without Courts, N.Y. TIMES (Dec. 16, 2005) [Vol. IV, Ex. 72, pp. 1764 –

69]; Leslie Cauley, NSA Has Massive Database of Americans’ Phone Calls, USA TODAY (May 11, 25 2006) [Vol. III, Ex. 30, pp. 1182-85]. 26 4 See James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES
(Dec. 16, 2005) [Vol. IV, Ex. 72, p. 1764-69]; ERIC LICHTBLAU, BUSH’S LAW: THE REMAKING OF

27 AMERICAN JUSTICE 157 (Pantheon Books 2008) (“BUSH’S LAW”) [Vol. I, Ex. 1, p. 3.022].

28 Case No. 08-CV-4373-JSW

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1 on the Judiciary, and Sen. Arlen Specter, Ranking Minority Member, S. Comm. on the Judiciary 2 (Aug. 20, 2007) (“OVP Subpoena Response”) [Vol. I, Ex. 3, pp. 175-77].5

3

The entire Program remained secret until newspaper reports – a series of December 2005

4 New York Times articles, a December 2005 Los Angeles Times article, and a May 2006 USA Today

5 article – revealed two discrete aspects of the Program: the warrantless surveillance of Internet and 6 telephone communications and the government’s acquisition of domestic call-detail records from

7 major telecommunications carriers. OIG PSP Report at 6 [Vol. III, Ex. 33, p. 1202]; Barton

8 Gellman & Arshad Mohammed, Data on Phone Calls Monitored; Extent of Administration's

9 Domestic Surveillance Decried in Both Parties, WASH. POST (May 12, 2006) [Vol. III, Ex. 35, p.

10 1255]. While the precise scope of the surveillance activities and the legal arguments used to 11 support the Program have fluctuated over time, OIG PSP Report at 1 [p. 1197], to date, the

12 Program remains in operation, largely unchanged from its original form. See Section III(D)-(E),

13 infra at 42-44.

14

B. Evidence Showing How the Program Operates

15

Plaintiffs’ evidence and statements by government officials demonstrate that the Program

16 has at least two components: the acquisition, analysis, and storage of international and domestic

17 communications, and the acquisition and analysis of historical call-detail records obtained from

18 telecommunications carriers.

19

The first disclosure of the Program’s operation came in a series of articles in December

20 2005, in which the New York Times publicly disclosed for the first time that “President Bush

21 5 In response to a June 27, 2007 subpoena issued by the Committee on the Judiciary to the Office

22

of the Vice President relating to past warrantless electronic surveillance, the Office of the Vice President identified 43 Program Orders (and two amended Program Orders) (identified as Top

23 Secret/Codeword Presidential Authorizations) between October 4, 2001 and December 2006. OVP Subpoena Response [Vol. I, Ex. 3, pp. 175 - 77]. The identified dates were October 4, November 2,

24 and November 30, 2001; January 9, March 14, April 18, May 21, June 24, July 30, September 10,

October 15, and November 18, 2002; January 8, February 7, March 17, April 22, June 11, July 14, 25 September 10, October 15 and December 9, 2003; January 14, March 11 (including as amended by

26 the Presidential Memoranda of March 19 and April 2), May 5, June 23, August 9, September 17, and November 17, 2004; January 11, March 1, April 19, June 14, July 26, September 10, October

27 26, and December 13, 2005; and January 27, March 21, May 16, July 6, September 6, October 24, and December 8, 2006. Id.

28 Case No. 08-CV-4373-JSW

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1 secretly authorized the National Security Agency to eavesdrop on Americans and others inside the

2 United States to search for evidence of terrorist activity without the court-approved warrants

3 ordinarily required for domestic spying.” James Risen & Eric Lichtblau, Bush Lets U.S. Spy on

4 Callers Without Courts, N.Y. TIMES (Dec. 16, 2005) [Vol. IV, Ex. 72, pp. 1764-69]; James Risen &

5 Eric Lichtblau, Spy Agency Mined Vast Data Trove, Officials Report, N.Y. TIMES (Dec. 24, 2005)

6 [Vol. IV, Ex. 66, pp. 1714-16]. The articles further disclosed that, “by tapping directly into some of

7 the American telecommunications system’s main arteries,” the NSA had “traced and analyzed

8 large volumes of telephone and Internet communications flowing into and out of the United States

9 as part of the eavesdropping program.” Risen & Lichtblau, Spy Agency Mined Vast Data Trove at 1

10 [Vol. IV, Ex. 66, p. 1714]. But the media statements are not the only evidence. Statements by

11 multiple government officials confirm the aspect of the Program reported by the Times. The

12 eyewitness and directed documentary evidence presented by plaintiffs in this Summary of

13 Voluminous Evidence, further confirms those government admissions and media reports.

14

In May 2006, an article in USA Today publicly disclosed a separate aspect of the Program:

15 the secret collection of “phone call records of tens of millions of Americans, using data provided

16 by” the nation’s largest telecommunications carriers. Leslie Cauley, NSA Has Massive Database of 17 Americans’ Phone Calls, USA TODAY (May 11, 2006) [Vol. III, Ex. 30, p. 1182].6 The NSA then

18 uses the call-records data to examine how “networks contact each other and how they are tied

19 together.” Id. [p. 1183]. And, like the aspect of the Program disclosed by the Times, the call records

20 program was “conducted without warrants and without the approval of the FISA court.” Id. [p.

21 1184]. As described in detail below, numerous statements by government officials confirm the

22 media reports.

23

24 6 In fact, some of the activities reported in the USA Today article had previously been reported by
25 the Los Angeles Times. Joseph Menn & Josh Meyer, U.S. Spying is Much Wider, Some Suspect, 26 L.A. TIMES (Dec. 25, 2005) [Vol. III, Ex. 36, p. 1258]. However, the report published by USA
Today spurred multiple congressional inquiries and official government confirmations on this 27 portion of the Program. See Section II(B)(2), infra at 19-24.

28 Case No. 08-CV-4373-JSW

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1

1. Evidence of Communications Surveillance

2

(a) Wholesale Acquisition of International and Domestic

Telephone and Internet Communications

3 The government conducts communications surveillance under the Program in several

4 stages, starting with acquisition of the communications passing through major telecommunications

5 switches. Government officials confirmed to the New York Times that the NSA obtained “backdoor

6 access to streams of domestic and international communications” via arrangements with “some of

7 the nation’s largest telecommunications companies.” Risen & Lichtblau, Spy Agency Mined Vast

8 Data Trove at 1-2 [Vol IV, Ex. 66, pp. 1714-15].7 Those agreements provided the NSA “access to

9 major telecommunications switches on American soil.” Id. at 3 [p. 1716].

10 Plaintiffs’ eyewitness evidence confirms that Program surveillance begins with wholesale

11 acquisition of communications – both international and domestic – from domestic

12 telecommunications switches. In January 2006, a former AT&T employee named Mark Klein8

13 provided detailed eyewitness testimony and documentary evidence showing how the government,

14 in partnership with AT&T, acquires access to the streams of international and domestic

15 communications. Declaration of Mark Klein (“Klein Decl.”) ¶¶ 10-36 (unredacted version filed

16 under seal at Dkt. #84-1) [Vol. VII, Ex. 115, pp 4716-22].9

17

18

7 See also Shane Harris & Tim Naftali, Tinker, Tailor, Miner, Spy: Why the NSA’s Snooping Is Unprecedented In Scale and Scope, SLATE (Jan. 3, 2006) [Vol. IV, Ex. 67, pp. 1718-19] (As part of

19 the Program, “[telecommunications] companies have granted the NSA access to their all-important switches, the hubs through which colossal volumes of voice calls and data transmissions move

20 every second…. [T]he NSA appears to be vacuuming up all data, generally without a particular

phone line, name, or e-mail address as a target.”). 21 8 Klein is a former AT&T Corp. employee who retired in May 2004. Klein Decl. ¶¶ 2-6 [Vol. VII,

22

Ex. 115, p. 4717]. In the period relevant to this motion, he worked at a facility that handled AT&T’s WorldNet International Service (“Geary Facility”), id. ¶¶ 8-9 [pp. 4717-18], and at the

23 Folsom Street Facility which handled AT&T’s WorldNet International Service, such as dial-up and DSL Internet service. Id. ¶¶ 15, 19 [pp. 4718, 4719].
24 9 See also JAMES RISEN, STATE OF WAR: THE SECRET HISTORY OF THE CIA AND THE BUSH

ADMINISTRATION 48 (Simon & Schuster 2006) (“STATE OF WAR”) [Vol. III, Ex. 60, p. 1609.013] 25 (“NSA’s technical prowess, coupled with its long-standing relationships with the nation’s major

26 telecommunications companies, has made it easy for the agency to eavesdrop on large numbers of people in the United States without their knowledge. Following President Bush’s order, U.S.

27 intelligence officials secretly arranged with top officials of major telecommunications companies to gain access to large telecommunications switches carrying the bulk of America’s phone calls.

28 Case No. 08-CV-4373-JSW

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1

Klein’s job at AT&T was “to oversee the WorldNet Internet room” at AT&T’s Folsom

2 Street facility in San Francisco. Id. ¶ 15 [p. 4718]. Communications carried by AT&T’s WorldNet

3 Internet service pass through that room to be directed to or from customers of AT&T and other

4 service providers. Id. ¶ 19 [p. 4719]. The WorldNet Internet Room is designed to process vast 5 amounts of electronic communications traffic “peered”10 by AT&T between its Common 6 Backbone (“CBB”)11 Internet network and other carriers’ networks. Id. ¶ 22 [p. 4720]. The Folsom

7 Street Facility also handles millions of telephone communications. See id. ¶ 13 [p. 4718].

8

The Klein evidence describes how the government initially intercepts Internet

9 communications, which are carried as light signals on fiber-optic cables. Id. ¶¶ 21-24 [p. 4720]; see

10 also Declaration of J. Scott Marcus ¶ 52 [Vol. VII, Ex. 116, p. 4756]. To divert the stream of 11 communications to the government, AT&T connected the fiber-optic cables entering its WorldNet

12 Internet room to a “splitter cabinet.” Klein Decl. ¶¶ 19, 25-34 [Vol. VII, Ex. 115, pp. 4719, 4720-

13 21].

14

The “splitter cabinet” splits the light signals from the WorldNet Internet service in two,

15 making two identical copies of the data carried on the light signal. Id. ¶ 24 [p. 4720]. The splitter

16 cabinet directs one copy of the light signal through fiber optic cables into a secret room built on

17 AT&T premises, but controlled by the NSA, while allowing the other copy to travel its normal

18 course to its intended destination. Id. ¶¶ 27-34 [pp. 4720-21]. The split cables carry both domestic

19 and international communications of AT&T customers, as well as communications from users of

20 other non-AT&T networks that pass through the Folsom Street Facility. Id. ¶¶ 31-34 [p. 4721]. The

21
22 The NSA also gained access to the vast majority of American e-mail traffic that flows through the U.S. telecommunications system.”)
23 10 “Peering” is the process whereby Internet providers interchange traffic destined for their respective customers, and for customers of their customers. See Marcus Decl. ¶¶ 96-98 [Vol. VII,
24 Ex. 116, p. 4767-68]. 11 AT&T’s Common Backbone network, like backbone networks generally, is used for the
25 transmission of interstate or foreign communications. An Internet backbone can be thought of as a 26 large Internet Service Provider (ISP), many of whose customers may themselves be smaller ISPs.
There is no single network that is the Internet; rather, the Internet backbones collectively form the 27 core of the global Internet. See Marcus Decl. nn. 5-6, at 3 [Vol. VII, Ex. 116, p. 4748].

28 Case No. 08-CV-4373-JSW

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1 use of the splitter cabinet to create an identical copy results in the wholesale acquisition by the 2 government of AT&T customers’ Internet communications. Id. ¶¶ 22-36 [pp. 4720-22].12

3

Plaintiffs retained an expert in information technology and telecommunications to explain

4 the implications of the documents and testimony Klein furnished. See generally Declaration of J.

5 Scott Marcus (“Marcus Decl.”) [Vol. VII, Ex. 116, pp. 4743-5070]. The expert, J. Scott Marcus,

6 spent decades working for a variety of telecommunications clients, including AT&T, and served as

7 a senior technical advisor for Internet technology to the Federal Communications Commission

8 (“FCC”) from July 2001 until July 2005 and as a member of the FCC’s Homeland Security Policy

9 Council. Id. ¶¶ 7-29 [pp. 4747-4751].

10

In particular, Marcus explains that the location of the fiber split in AT&T’s network was

11 not designed to capture only international traffic, but to intercept purely domestic communications

12 as well. Id. ¶¶ 107-11 [pp. 4770-71]. A substantial amount of AT&T’s peered traffic in San

13 Francisco was acquired by the surveillance configuration described by Klein, including nearly all

14 of the peered international communications carried at the Folsom Street Facility, and a substantial

15 amount of domestic Internet traffic. Id. ¶¶ 47-49; 91-111 [pp. 4755-56, 4767-4771].

16

While Klein’s evidence establishes AT&T’s participation in the Program at its San

17 Francisco location, from the arrangement of the hardware, plaintiffs’ expert Marcus concluded that

18 AT&T’s surveillance “apparently involves considerably more locations than would be required to

19 catch the majority of international traffic.” Marcus Decl. ¶ 43 [p. 4755]. Further evidence confirms

20 the expert’s view. Klein reports “that other such ‘splitter cabinets’ were being installed in other

21 cities, including Seattle, San Jose, Los Angeles and San Diego.” Klein Decl. ¶ 36 [Vol. VII, Ex.

22

23 12 See also Siobhan Gorman, NSA’s Domestic Spying Grows As Agency Sweeps Up Data, WALL

24 ST. J. (Mar. 10, 2008) at 4 [Vol. IV, Ex. 95, p. 3026] (“Current and former intelligence officials

say . . . [telecommunication companies] are giving the government unlimited access to a copy of

25 the flow of communications, through a network of switches at U.S. telecommunications hubs that

duplicate all the data running through it.”); Seymour Hersh, Listening In, NEW YORKER (May 29,

26 2006) [Vol. IV, Ex. 79, p. 2711] (Seymour Hersh reporting that “[a] security consultant working

with a major telecommunications carrier told me that his client set up a top-secret high-speed

27 circuit between its main computer complex and . . . the site of a government-intelligence computer

center,” providing “total access to all the data”).

28 Case No. 08-CV-4373-JSW

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1 115, p. 4722].13 According to Marcus, a web of similar surveillance facilities would probably

2 capture well over half of AT&T’s purely domestic traffic, representing almost all of the AT&T

3 traffic to and from other providers. Marcus Decl. ¶¶ 122-127 [Vol. VII, Ex. 116, pp. 4774-75].

4 Thus, the government would have access to “10% of all purely domestic Internet communications

5 in the United States,” including non-AT&T customers. Id. at ¶¶ 5, 125 [pp. 4746, 4775] (emphasis

6 in original) (evidence indicates AT&T Corp. has “given the government direct access to

7 telecommunications facilities physically located on U.S. soil; that, by virtue of this access, the

8 government would have the capacity to monitor both domestic and international communications 9 of person in the United States”).14

10

In addition to plaintiffs’ eyewitness evidence, government officials with knowledge of the

11 Program have confirmed media reports on the Program on multiple occasions. Consistent with the

12 installation of surveillance capabilities on the peered networks of AT&T facilities, the 13 communications targeted by the NSA, as Gen. Michael Hayden15 noted, “coexisted out there in a

14 great global web with your phone calls and my e-mails.” Remarks by Gen. Michael Hayden,

15 Address to the National Press Club, Washington, D.C. (Jan. 23, 2006) [Vol. IV, Ex. 73, p. 1800]. 16 This requires the NSA, as noted by Rep. Peter Hoekstra,16 “to steal light off of different cables” in

17 13 See also Kim Zetter, Is the NSA spying on U.S. Internet traffic?, SALON MAGAZINE (June 21,

18

2006) [Vol. IV, Ex. 75, p. 2453] (reporting that, at AT&T’s Bridgton technical command center in St. Louis, “AT&T has maintained a secret, highly secured room since 2002 where government

19 work is being conducted” and that “only government officials or AT&T employees with top-secret security clearance are admitted to the room”).
20 14 See also Gorman, NSA’s Domestic Spying Grows As Agency Sweeps Up Data [Vol. IV, Ex. 95,

p. 3028] (“Current and former intelligence officials confirmed a domestic network of hubs, but

21 didn’t know the number.”).

22

15 Gen. Hayden was the Director of the NSA from March 1999 - April 2005, Principal Deputy Director of National Intelligence from April 2005 - May 2006, and Director of the CIA from 2006 -

23 February 2009. See Biographies, Michael Hayden, U.S. Air Force, available at http://www.af.mil/information/bios/bio.asp?bioID=5746.
24 16 Rep. Hoekstra was “read in” to the Program on September 23, 2004. Letter from John D.

Negroponte, Dir. of Nat’l Intelligence, to J. Dennis Hastert, Speaker of the U.S. House of 25 Representatives (May 17, 2006), at 2-3 [Vol. IV, Ex. 85, p. 2770] (listing briefings that Rep.

26 Hoekstra received about the Program). “The process of being ‘read in’ to a compartmented program generally entails receiving a briefing about the program followed by a formal

27 acknowledgement of the briefing, usually indicated by the signing of a Nondisclosure Agreement binding the individual to obligations regarding the handling and use of information concerning the

28 Case No. 08-CV-4373-JSW

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1 order to acquire the “information that’s most important to us.” Interview with Rep. Peter Hoekstra

2 by Paul Gigot, Lack of Intelligence: Congress Dawdles on Terrorist Wiretapping, JOURNAL

3 EDITORIAL REPORT, FOX NEWS CHANNEL (Aug. 6, 2007) at 2 [Vol. II, Ex. 14, p. 714]; see also OIG

4 PSP Report at 15 [Vol. III, Ex. 33, p. 1211].

5

According to former Senator Bob Graham, who chaired the Intelligence Committee at the

6 time, briefers told him that “Bush had authorized . . . the NSA to intercept ‘conversations that . . .

7 went through a transit facility inside the United States.’” Barton Gellman, et al., Surveillance Net

8 Yields Few Suspects, WASH. POST at 3 (Feb. 5, 2006) [Vol. IV, Ex. 68, p. 1748]; see also Lichtblau

9 & Risen, Spy Agency Mined Vast Data Trove at 1 [Vol. IV, Ex. 66, p. 1714] (quoting a government

10 official stating, “There was a lot of discussion about the switches. . . . You’re talking about access

11 to such a vast amount of communications, and the question was, How do you minimize something

12 that’s on a switch carrying such large volumes of traffic?”).

13

Finally, as the surveillance configuration described by the Klein evidence shows, the

14 Program acquires vast amounts of innocent Americans’ communications. Klein Decl. ¶¶ 24-36

15 [Vol. VII, Ex. 115, pp. 4720-22]; Marcus Decl. ¶¶ 122-27 [Vol. VII, Ex. 116, pp. 4774-75]. In an

16 interview with PBS’s Frontline, James Baker, former head of the Justice Department’s Office of 17 Intelligence Policy and Review (who is read in to the Program),17 agreed that the following

18 description was a “fair assessment” of the Program’s operation:

19

So what you’re saying is that with modern communications, it’s almost inevitable

that you’re going to collect, in the sense of initially acquire, communications of

20

innocent people, of Americans who are not suspected of terrorism[.]

21 PBS Frontline, Spying on the Homefront, Interview with James A. Baker at 7 (March 2, 2007)

22 [Vol. II, Ex. 23, p. 1053]; see also PBS Frontline, Spying on the Homefront, Interview with John C.

23

24 program.” Dept. of Justice, Office of the Inspector Gen., Report of Investigation Regarding
Allegations of Mishandling of Classified Documents by Att’y Gen. Alberto Gonzales (Sept. 2, 2008) 25 (“OIG Gonzales Report”) at 8, n.10 [Vol. I, Ex. 7, p. 363]. 26 17 See The Foreign Intelligence Surveillance Act: Hearing before the H. Permanent Select Comm.
on Intelligence, 110th Cong. at 86 (Sept. 18, 2007) (James Baker was briefed on the Program in
27 late 2001) [Vol. I, Ex. 5, p. 307].

28 Case No. 08-CV-4373-JSW

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1 Yoo at 3 (Jan. 10, 2007) [Vol. I, Ex. 10, p. 393] (noting that the government “needs to have at least

2 access to the flow [of communications];. . . In order to get Internet messages, you have to be able

3 to dip into the flow of communications, because Internet communications are broken up. . . . I

4 don’t think it’s inherently always wrong for communications providers to give the government

5 access to the networks.”)

6

Thus, both plaintiffs’ evidence and statements by government officials confirm the New

7 York Times reporting that the initial stages of the Program involve the wholesale acquisition of

8 communications from the streams of domestic telecommunications network.

9

(b) Automated Analysis, or Datamining, of Content and Non-

Content Information 10
Once the communications are acquired, the Program involves “comb[ing] through large

11 volumes of phone and internet traffic” in a “large data-mining operation.” Lichtblau & Risen, Spy

12 Agency Mined Vast Data Trove at 1 [Vol. IV, Ex. 66, p. 1714].

13 The facts underlying this reporting have been admitted to by the government. As former

14 Homeland Security Secretary Michael B. Chertoff confirmed in a January 2006 interview, the

15 Program involves “‘data-mining’ – collecting vast amounts of international communications data,

16 running it through computers to spot key words and honing in on potential terrorists.” Morton

17 Kondracke, NSA Data Mining is Legal, Necessary, Chertoff Says, ROLL CALL at 1 (Jan. 19, 2006)

18 [Vol. IV, Ex. 69, p. 1753] (“[W]hat we’re trying to do is gather as many dots as we can, figure out

19 which are the ones that have to be connected and we’re getting them connected” by “sift[ing]

20 through an enormous amount of data very quickly[.]);18 Letter from Kathleen Turner, Dir. of Leg.

21 Affairs, Office of the Dir. of Nat’l Intelligence, to Rep. Silvestre Reyes, Chairman, and Rep. Peter

22 Hoekstra, Ranking Member of the H. Intelligence Comm. (“Turner Letter”), at p. 5, 6 of

23

24

25

26 18 See also Harris & Naftali, Why the NSA’s Snooping Is Unprecedented In Scale and Scope at 1 [Vol. IV, Ex.67, p. 1718] (As early as 2001, “the NSA approached U.S. carriers and asked for their

27 cooperation in a ‘data-mining’ operation, which might eventually cull ‘millions’ of individual calls

and e-mails.”).

28 Case No. 08-CV-4373-JSW

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1 attachment [Vol. II, Ex. 22, pp. 1042, 1043] (noting “Intelligence analysts must comb through 2 extremely large amounts of data to do their job”).19

3

According to John Yoo, a former Department of Justice official assigned to oversee the

4 Program, NSA surveillance activities should be geared toward “look[ing] at all email, text and

5 phone traffic between Afghanistan and Pakistan and the U.S,” which “involve[s] the filtering of

6 innocent traffic, just as roadblocks and airport screenings do.” John Yoo, Op-Ed., Why We

7 Endorsed Warrantless Wiretaps, WALL ST. J. at 2 (July 16, 2009) [Vol. V, Ex. 107, p. 4013]. To

8 facilitate this filtering, Yoo explained, “you need to have computers to do it, where we have

9 computers that are able to search through communications and are able to pluck out e-mails [and]

10 phone calls that have a high likelihood of being terrorists’ communications.” PBS Frontline, Spying

11 on the Homefront, Interview with John C. Yoo at 5 (Jan. 10, 2007) [Vol. I, Ex. 10, p. 395]; see also

12 Gellman, Surveillance Net Yields Few Suspects at 4 [Vol. IV, Ex. 68, p. 1749] (quoting Senator

13 Arlen Spector referring to “‘mechanical surveillance’ that is taking place before U.S. citizens and 14 residents are ‘subject to human surveillance’”).20

15

These descriptions of the Program are consistent with plaintiff’s evidence, as described

16 further below. The AT&T documents presented by Mr. Klein show that a Narus STA 6400 was

17

18

19 See also Gorman, NSA’s Domestic Spying Grows As Agency Sweeps Up Data at 2 [Vol. IV, Ex. 95, p. 3024] (“Two former officials familiar with the data-sifting efforts said they work by starting

19 with some sort of lead, like a phone number or Internet address. . . .[T]he systems then can track all domestic and foreign transactions of people associated with that item -- and then the people who

20 associated with them, and so on, casting a gradually wider net. An intelligence official described

more of a rapid-response effect: If a person suspected of terrorist connections is believed to be in a 21 U.S. city . . . the government’s spy systems may be directed to collect and analyze all electronic

22

communications into and out of the city.”). 20 See also Gellman, Surveillance Net Yields Few Suspects at 1, 5 [Vol. IV, Ex. 68, pp. 1746, 1750]

23 (“Surveillance takes place in several stages, officials said, the earliest by machine. Computercontrolled systems collect and sift basic information about hundreds of thousands of faxes, emails

24 and telephone calls into and out of the United States before selecting the ones for scrutiny by

human eyes an ears... [T]his kind of filtering intrudes into content, and machines ‘listen’ to more 25 Americans than humans do.”); STATE OF WAR 48 [Vol. III, Ex. 60, p. 1609.013] (The Program

26 “employ[s] extremely powerful computerized search programs—originally intended to scan foreign communications—in order to scrutinize large volumes of American communications.”);

27 Seymour Hersh, Listening In at 2 [Vol. IV, Ex. 79, p. 2712] (“[T]he N.S.A. began, in some cases, to eavesdrop on callers (often using computers to listen for key words) …”).

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1 installed in NSA’s secure room inside of AT&T’s Folsom Street facility. Klein Decl. at ¶ 35 [Vol.

2 VII, Ex. 115, pp. 4721-22]. As plaintiffs’ expert J. Scott Marcus explains, the Narus machine is a

3 “semantic traffic analyzer” – a device “designed to capture data directly from a network, apply a

4 structured series of tests against the data, and respond appropriately.” Marcus Decl. ¶¶ 79, 80 [Vol.

5 VII, Ex. 116, p. 4763]. The Narus machine has the capability “to process huge volumes of data, 6 including user content, in real time.” Id. ¶ 83 [p. 4764]. Thus, the configuration deployed in the

7 secure room is “well suited to the capture and analysis of large volumes of data for surveillance

8 purposes.” See id. [p. 4764]; Declaration of William E. Binney (“Binney Decl.”) ¶¶ 8, 10 [Vol. VII,

9 Ex. 118, pp. 5074, 5075] (Narus device would select for predetermined data including “target

10 addresses, locations, countries, and phone numbers, as well as watch-listed names, keywords, and 11 phrases.”); see also Gellman, Surveillance Net Yields Few Suspects at 4 [Vol. IV, Ex. 68, p. 1749]

12 (according to former NSA Inspector General Joel F. Brenner, the agency has “no choice but to rely

13 on ‘electronic filtering, sorting and dissemination systems of amazing sophistication but that are 14 imperfect.’”).21

15

Thus, statements by government officials, media reports and plaintiffs’ evidence all

16 demonstrate that the Program operates by mining communications data after the communications’

17 initial wholesale acquisition.

18 21 Indeed, the efficacy of data mining as a tool to fight terrorism has been sharply questioned. A

19 352-page study by the National Research Council (part of the congressionally-chartered National

Academy of Sciences) reports that data mining is not an effective tool in the fight against terrorism.

20 Protecting Individual Privacy in the Struggle Against Terrorists: A Framework for Assessment

Committee on Technical and Privacy Dimensions of Information for Terrorism Prevention,

21 National Research Council, Executive Summary at 3-4 (2008) [Vol. II, Ex. 18 pp. 911-2].

Those findings are confirmed by the experience of American intelligence agents’ use of

22 Program-generated information. According to one FBI official familiar with the Bureau’s use of

NSA data, agents would “chase a number, find it’s a school teacher with no indication they've ever

23 been involved in international terrorism - case closed. . . . After you get a thousand numbers and

not one is turning up anything, you get some frustration.” Lowell Berman, et al., Spy Agency Data

24 After Sept. 11 Led F.B.I. to Dead Ends, N.Y. TIMES (Jan. 17, 2006) [Vol. IV, Ex. 80, p. 2715].

Within the FBI, “the N.S.A. material continued to be viewed as unproductive, prompting agents to

25 joke that a new bunch of tips meant more ‘calls to Pizza Hut,’ one official, who supervised field

agents, said.” Id. at 3 [p. 2717].

26

According to Jeff Jonas, now chief scientist at IBM Entity Analytics, pattern matching

techniques that “‘look at people’s behavior to predict terrorist intent . . . are so far from reaching

27 the level of accuracy that’s necessary that I see them as nothing but civil liberty infringement

engines.’” Gellman, Surveillance Net Yields Few Suspects at 5 [Vol. IV, Ex. 68, p. 1750].

28 Case No. 08-CV-4373-JSW

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(c) Communications are not Minimized Prior to Storage 1
Prior to human review, the acquired communications — including those to, from, and/or

2 between Americans, as well as those communications without any foreign intelligence value — are

3 stored in a vast government database.

4 The process through which the intelligence community has traditionally reduced the

5 privacy intrusion caused by electronic surveillance is known as “minimization” — “procedures for

6 reviewing, handling, and, as appropriate, destroying, information about U.S. persons, depending on

7 whether or not the information constitutes foreign intelligence information.” Letter from Alexander

8 Joel, Office of the Dir. of Nat’l Intelligence, to Rep. Silvestre Reyes and Rep. Peter Hoekstra (Sept.

9 17, 2007) [Vol. I, Ex. 5, p. 313]. According to former Director of National Intelligence (“DNI”) J.

10 Michael McConnell, “[t]he minimization procedures that Intelligence Community agencies follow

11 are Attorney General approved guidelines issued pursuant to Executive Order 12333. These

12 minimization procedures apply to the acquisition, retention and dissemination of U.S. person

13 information.” The Foreign Intelligence Surveillance Act and Implementation of the Protect

14 America Act: Hearing before the S. Comm. on the Judiciary, 110th Cong. (Sept. 25, 2007)

15 (Statement of J. Michael McConnell, Dir. of Nat’l Intelligence) at 13 [Vol. II, Ex. 20, p. 1023].

16 However, as McConnell explained, under Program surveillance, immediately after

17 acquisition “there is no human that is aware of it. So you wouldn’t know that [communications

18 without foreign intelligence value were there] until you went into the database.” Foreign

19 Intelligence Surveillance Act: Hearing before the Permanent H. Select Comm. on Intelligence,

20 110th Cong. at 91 (Sept. 20, 2007) (testimony of J. Michael McConnell, Dir. of Nat’l Intelligence)

21 (“Sept. 20, 2007 McConnell Testimony”) [Vol. IV, Ex. 98, p. 3220].

22 McConnell further admitted that the communications are acquired and placed in a database

23 before minimization. In response to a question on the number of Americans whose

24 communications had been intercepted, he testified:

25 MR. MCCONNELL: I am not even sure we keep information in that form. It would

26

probably take us some time to get the answer. The reason is, you’re collecting

information. It is in a file. It will roll off in a period of time. You may not even 27

28 Case No. 08-CV-4373-JSW

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know it is in the database. That is one of the reason we are so careful about who has

1

access to that database. . . .

2

REP. BERMAN: . . . How do you minimize without knowing?

3

MR. MCCONNELL: If you look at it, then you know.

4

REP. BERMAN: So all you do is minimize the ones you happen to look at.

5

MR. MCCONNELL: Right. If there is something in there that — it doesn’t come up

for some reason, you just wouldn’t know. …

6 Warrantless Surveillance And The Foreign Intelligence Surveillance Act: The Role Of Checks And

7 Balances In Protecting Americans’ Privacy Rights (Part II): Hearing before the H. Comm. on the

8 Judiciary, 110th Cong. at 79 (Sept. 18, 2007) [Vol. II, Ex. 17, p. 812] (testimony of J. Michael

9 McConnell, Dir. of Nat’l Intelligence) (“Sept. 18, 2007 McConnell Testimony”); Sept. 20, 2007

10 McConnell Testimony at 91 [Vol. IV, Ex. 98, p. 3220] (only “once there is some reason to look at

11 data” can the government track the number of U.S. persons involved).

12

Likewise, in testimony before the Senate Judiciary Committee, the following exchange took

13 place:

14

FEINSTEIN: . . . Do the minimization procedures prevent NSA from retaining

15

communications that do not contain foreign intelligence information?

16

MCCONNELL: If recognized, the minimization would require them to expunge it

from the database. . . . 17
FEINSTEIN: So what is the minimization process? And how does it function? And

18

what happens with that collection?

19

MCCONNELL: The – first of all, you may not even realize it’s in the database,

because you do lots of collection, you have to have a reason to look.

20 Strengthening FISA: Does the Protect America Act Protect Americans’ Civil Liberties and

21 Enhance Security?: Hearing before the S. Comm. on the Judiciary, 110th Cong. at 23, 26 (Sept. 25,

22 2007) [Vol. II, Ex. 19, pp. 961, 964] (testimony of J. Michael McConnell, Dir. of Nat’l

23 Intelligence); see also Sept. 20, 2007 McConnell Testimony at 91 [Vol. IV, Ex. 98, p. 3220] (“We

24 may not know that is in the database until we have some reason to go query that portion of the

25 database for foreign intelligence purpose.”).

26

27

28 Case No. 08-CV-4373-JSW

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1

The inference from former DNI McConnell’s statement is that communications between

2 U.S. persons and records of such communications are in the database – and remain in the

3 database – available for human intelligence analysts to review. Because there are “billions of things

4 going on” in the database, McConnell explained, information without foreign intelligence value

5 will remain stored for some period of time if it “hasn’t been examined.” Sept. 20, 2007 McConnell 6 Testimony at 69 [Vol. IV, Ex. 98, p. 3198]. Indeed, former Attorney General Alberto Gonzales 7 suggested in sworn testimony before Congress that, once collected, the information is kept

8 indefinitely, even if the subject of the surveillance is an ordinary American: “In terms of what is

9 actually done with that information, . . . information is collected, information is retained and 10 information is disseminated . . . .” Wartime Executive Power and the NSA’s Surveillance Authority: 11 Hearing before the S. Comm. on the Judiciary, 109th Cong. 42 (Feb. 6, 2006) [Vol. V, Ex. 104, p.

12 3722] (testimony of Alberto Gonzalez) (included as an attachment to Plaintiffs’ Request for

13 Judicial Notice, Hepting v. AT&T Corp. 06-CV-00672 (Mar. 31, 2006) (Dkt. # 20-1)) (“March

14 2006 RJN”).

15

As a result of the government’s data collection, “[p]articipants, according to a national

16 security lawyer who represents one of them privately, are growing ‘uncomfortable with the

17 mountain of data they have now begun to accumulate.’” Gellman, Surveillance Net Yields Few

18 Suspects at 2 [Vol. IV, Ex. 68, p. 1747].

19

(d) Minimization Does not Adequately Protect the Privacy

Interests of U.S. Persons Whose Domestic and

20

International Communications are Intercepted

21

Untargeted masses of domestic and international communications are acquired and stored

22 in the database, regardless of their foreign intelligence value. Under the Program, on the occasions

23 where the government follows procedures established to protect Americans’ privacy (obtaining a 24 warrant or conducting minimization by purging the record from the database), it does so only after 25 both acquisition and analyst review.

26

If a government analyst reviewed the communications and determined that “it was a U.S.

27 person inside the United States . . . that would stimulate the system to get a warrant. And that is

28 Case No. 08-CV-4373-JSW

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1 how the process would work.” Sept. 20, 2007 McConnell Testimony at 69-70 [Vol. IV, Ex. 98,

2 pp. 3198-99]; see also Turner Letter at p. 7 of attachment [Vol. II, Ex. 22, p. 1044] (referencing

3 “NSA analysts . . . querying Agency databases” to obtain communications to or from U.S.

4 persons). In sum, the evidence shows that the NSA seeks a warrant only after the communication is

5 (1) initially acquired and analyzed by computers according to algorithms designed by humans;

6 (2) placed in a government database; and (3) reviewed by an analyst.

7

The evidence also shows that minimization is not always used. A January 2007 interview in

8 the New Yorker details a particular example in which the American author’s phone call to an

9 Egyptian source was spied upon by the government. The author notes that:

10

a source in the intelligence community told me that a summary of that conversation

was archived in an internal database. I was surprised, because the FISA law stated

11

that my part of the conversation should have been “minimized”—redacted or

rendered anonymous—because I am an American citizen. 12

Lawrence Wright, The Spymaster: Can Mike McConnell Fix America’s Intelligence Community?, 13

NEW YORKER at 8 (Jan. 21, 2007) [Vol. II, Ex. 25, p. 1127]. McConnell explained to the author: 14

“You called a bad guy, the system listened, tried to sort it out, and they did an intel report because 15

it had foreign-intelligence value. That’s our mission.” Id. 16

Indeed, statements made in congressional testimony by former United Nations 17

representative John Bolton confirm that NSA willingly discloses U.S. person information obtained 18

from intercepts. In response to a question about “whether or not [he] requested to see NSA 19

information about any other American officials” during his tenure at the State Department, Bolton 20

revealed that “on a number of occasions” he had “asked to know the name of the [American] 21
person” associated with the intercepts he received.22 Hearing on the Nomination of John Bolton to 22

23

24

22 See also Mark Hosenball, Spying: Giving Out U.S. Names, NEWSWEEK (May 2, 2005) [Vol. II, 25 Ex. 26, p. 1131] (“[S]ince January 2004 NSA received—and fulfilled—between 3,000 and 3,500

26 requests from other agencies to supply the names of U.S. citizens and officials (and citizens of other countries that help NSA eavesdrop around the world, including Britain, Canada and

27 Australia) that initially were deleted from raw intercept reports. Sources say the number of names disclosed by NSA to other agencies during this period is more than 10,000.”).

28 Case No. 08-CV-4373-JSW

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1 be U.S. Representative to the United Nations, S. Comm. on Foreign Relations, 109th Cong. at 65

2 (Apr. 11, 2005) (Pt. II) [Vol. V, Ex. 105, p. 3900].

3

NSA agents actually eavesdropping on conversations is not, in fact, limited to calls between

4 Americans and non-U.S. persons.23 According to the accounts of two separate NSA

5 whistleblowers, the agency listened in on US citizens overseas as they called friends and family in

6 the United States – calls of “everyday, average, ordinary Americans who happened to be in the

7 Middle East.” Brian Ross, et al., Exclusive: Inside Account of U.S. Eavesdropping on Americans,

8 U.S. Officers’ “Phone Sex” Intercepted; Senate Demanding Answers, ABC NEWS at 1 (Oct. 9,

9 2008) [Vol. II, Ex. 27, p.1132]. One whistleblower, David Faulk, reported that “he and others in his

10 section of the NSA facility at Fort Gordon routinely shared salacious or tantalizing phone calls that

11 had been intercepted, alerting office mates to certain time codes of ‘cuts’ that were available on

12 each operator’s computer.” Id. at 2 [p. 1133] The other whistleblower, Adrienne Kinne, said that

13 the NSA routinely listened on calls even when analysts knew that the participants were Americans

14 working for international aid organizations, like the International Red Cross and Doctors Without

15 Borders: “We knew they were working for these aid organizations. . . . They were identified in our

16 systems. . . . And yet, instead of blocking these phone numbers we continued to collect on them.”

17 Id. at 3 [p. 1134]. According to Kinne:

18

By casting the net so wide and continuing to collect on Americans and aid

organizations, it’s almost like they’re making the haystack bigger and it’s harder to

19

find that piece of information that might actually be useful to somebody.…You’re

actually hurting our ability to effectively protect our national security. 20

Id. 21

2. Evidence of Call Records Surveillance

22

In addition to acquisition and analysis of international and domestic communications, as

23

24 23 See also STATE OF WAR at 51-52, 54 [Vol. III, Ex. 60, pp. 1609.016-017, 1609.019] (“The NSA

tries to minimize the amount of purely domestic telephone and Internet traffic among American 25 citizens that it monitors, to avoid violating the privacy rights of U.S. citizens. But there is virtually

26 no independent oversight of NSA’s use of its new power. With its direct access to the U.S. telecommunications system, there seems to be no physical or logistical obstacle to prevent the NSA

27 from eavesdropping on anyone in the United States that it chooses. . . . Over time, the NSA has certainly eavesdropped on millions of telephone calls and e-mail messages on American soil.”)

28 Case No. 08-CV-4373-JSW

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1 disclosed by a May 2006 report in USA Today, the NSA collects “the phone call records of tens of

2 millions of Americans, using data provided by” the nation’s largest telecommunications carriers. 3 Cauley, NSA Has Massive Database of Americans’ Phone Calls [Vol. III, Ex. 30, pp. 1182-85].24

4 The NSA obtained telecommunication companies’ “‘call-detail records,’ a complete listing of the

5 calling histories of their millions of customers. In addition, the NSA wanted the carriers to provide 6 updates, which would enable the agency to keep tabs on the nation’s calling habits.” Id. at 3 [p.

7 1184]. “Working under contract with the NSA,” the companies turned over information on the

8 numbers dialed, time of the call, and duration of the call. Id. at 1 [p.1182]. The NSA then uses “the

9 data to analyze calling patterns” in order to identify and track surveillance targets. Id.

10

(a) Statements by Government and Telecommunication

Company Officials Confirm that the Program Includes

11

Surveillance of Domestic Call-Detail Records

12

Multiple statements by government officials briefed on the Program confirm the existence

13 of the call records portion of the Program. In an interview with former Senator Kit Bond on PBS’

14 NewsHour, the Senator confirmed that that the Program included call-records surveillance:

15

JIM LEHRER: . . . You’re a member of the Senate Intelligence Committee. Did you

know about this?

16 SEN. KIT BOND, R-Mo.: Yes. I’m a member of the subcommittee of the

17

Intelligence Committee that’s been thoroughly briefed on this program and other

programs. . . . .[25]

18

JIM LEHRER: Excuse me, Senator Leahy, and let me just ask just one follow-up

19

question to Senator Bond so we understand what this is about.

20

What these are, are records. And nobody then—now, these are—but there are tens

of millions of records that are in this database, right? And they say somebody, Billy

21

Bob called Sammy Sue or whatever, and that’s all it says, and then they go and try

to match them with other people? 22

23 24 See also Lichtblau & Risen, Spy Agency Mined Vast Data Trove at 2 [Vol. IV, Ex. 66, p. 1715]
24 (reporting that a “former technology manager at a major telecommunications company said that
since the Sept. 11 attacks, the leading companies in the industry have been storing information on 25 calling patterns and giving it to the federal government to aid in tracking possible terrorists”). 26 25 See Letter from John D. Negroponte, Director of National Intelligence, to J. Dennis Hastert,
Speaker of the U.S. House of Representatives (May 17, 2006), at 2-3 [Vol. IV, Ex. 85, p. 2770-71]
27 (listing briefings that Sen. Bond received about the Program).

28 Case No. 08-CV-4373-JSW

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SEN. KIT BOND: First, let me say that I’m not commenting on in any way any of

1

the allegations made in the news story today. I can tell you about the president’s

2

program.

The president’s program uses information collected from phone companies. The

3

phone companies keep their records. They have a record. And it shows what

4

telephone number called what other telephone number.

5 Online NewsHour Debate: NSA Wire Tapping Program Revealed (PBS television broadcast, May

6 11, 2006) [Vol. IV, Ex. 86, p. 2778].

7

Similarly, former Senate Majority Leader William Frist both confirmed the existence of the

8 Program and spoke out in its defense to CNN’s Wolf Blitzer:

9

BLITZER: Let’s talk about the surveillance program here in the United States since 9/11. USA Today reported a bombshell this week. Let me read to you from the

10

article on Thursday.

11

“The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans using data provided by AT&T, Verizon and

12

BellSouth. . . .”

13

Are you comfortable with this program?

14

FRIST: Absolutely. Absolutely. I am one of the people who are briefed . . .[26]

BLITZER: You’ve known about this for years. 15

FRIST: I’ve known about the program. I am absolutely convinced that you, your

16

family, our families are safer because of this particular program.

17 Late Edition with Wolf Blitzer, Interview with Bill Frist; Interview with Stephen Hadley (CNN

18 television broadcast, May 14, 2006) [Vol. IV, Ex. 87, p. 2800]. Separately, Representative Jane

19 Harman noted that “there is a program that involves the collection of some phone records.” The

20 Department of Homeland Security State and Local Fusion Center Program: Advancing

21 Information Sharing while Safeguarding Civil Liberties: Hearing of the Subcomm. on Intelligence,

22 Information Sharing, and Terrorism Risk Assessment of the H. Homeland Security Comm., 110th 23 Cong. at 8 (2007) [Vol. IV, Ex. 90, p. 2843] (statement of Rep. Jane Harman).27

24

25 26 See Letter from John D. Negroponte, Dir. of Nat’l Intelligence, to J. Dennis Hastert, Speaker of

26 the U.S. House of Representatives (May 17, 2006), at 2-3 [Vol. IV, Ex. 85, pp. 2770-71] (listing briefings received by Rep. Hastert on the Program).
27 27 Rep. Harman is a member of the subcommittee that received numerous briefings on the NSA

programs on at least eight occasions. Letter from John D. Negroponte, Director of National

28 Case No. 08-CV-4373-JSW

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1

In response to the uproar over the report by USA Today, the White House announced that

2 the NSA Director, Gen. Keith Alexander, would brief the full membership of both the House and

3 Senate Intelligence Committees on the full surveillance program including “the entire scope of

4 NSA surveillance,” not to be “limited to the program that the President has publicly

5 acknowledged.” White House Press Release, Press Briefing by Tony Snow at 2-3, 6 (May 17, 2006)

6 [Vol. IV, Ex. 88, pp. 2817-18, 2824]. Following those briefings, USA Today reported that nineteen

7 “[m]embers of the House and Senate intelligence committees confirm that the National Security

8 Agency has compiled a massive database of domestic phone call records” and that “[t]he program

9 collected records of the numbers dialed and the length of calls.” Susan Page, Lawmakers: NSA

10 Database Incomplete, USA TODAY at 1 (June 30, 2006) [Vol. IV, Ex. 89, p. 2831].

11

Further, several members of Congress spoke on the record about the Program after

12 receiving briefings. Senator Saxby Chambliss, bemoaning BellSouth’s alleged refusal to

13 participate, opined that “[i]t probably would be better to have records of every telephone

14 company.” Id. at 2 [p. 2832]. According to former Senator Ted Stevens, the records program

15 targeted long-distance, not “cross-city” or “mom-and-pop calls.” Id. Senator Orrin Hatch, Rep.

16 Anna Eshoo, and Rep. Rush Holt also made statements on the record acknowledging the program.

17 Id. at 3 [p. 2833].

18

Statements by government officials evidence the NSA program to collect call records

19 proceeded under a “business records” rationale. When former Attorney General Gonzales defended

20 the program in response to a question about the collection of “telephone detail records from the

21 phone companies,” he said that “what was in the USA Today story did relate to business records”

22 and that “[t]here are a number of legal ways, of course, that the government can have access to

23 business records.” Dept. of Justice Press Release, Transcript of “Operation GlobalCon” Press

24 Conference at 7 (May 23, 2006) [Vol. IV, Ex. 82, p. 2745]. In an attempt to downplay the intrusion

25 of privacy relative to the content surveillance program, Senator Pat Roberts (who is read in to the

26 Intelligence, to J. Dennis Hastert, Speaker of the U.S. House of Representatives (May 17, 2006), at
27 2-3 [Vol. IV, Ex. 85, pp. 2770-71] (listing briefings received by Rep. Harman on the Program).

28 Case No. 08-CV-4373-JSW

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1 Program)28 characterized the collection of private customer call records as “business records” of

2 the telecommunications companies. His statement to Melissa Block on National Public Radio

3 (“NPR”) provides additional confirmation of the call records portion of the Program:

4

BLOCK: You’re saying that you are read into it. I’m curious then if you’re saying

that you have had oversight directly of the program as has been reported, under

5

which the NSA has collected millions of phone records of domestic calls.

6

Senator ROBERTS: Well, basically, if you want to get into that, we’re talking about

business records. We’re not, you know, we’re not listening to anybody. This isn’t a

7

situation where if I call you, you call me, or if I call home or whatever, that that

8

conversation is being listened to.

9 All Things Considered: Senate Intelligence Chair Readies for Hayden Hearings (NPR radio

10 broadcast, May 17, 2006) [Vol. IV, Ex. 83, p. 2749] (emphasis added); see also Online NewsHour

11 Debate: NSA Wire Tapping Program Revealed, (PBS television broadcast, May 11, 2006) [Vol.

12 IV, Ex. 86, p. 2777] (In response to a question about the call-records program, Sen. Kit Bond

13 replied that “any lawyer should know[] that business records are not protected by the Fourth 14 Amendment.”).29

15

16 28 See Letter from John D. Negroponte, Director of National Intelligence, to J. Dennis Hastert,
17 Speaker of the U.S. House of Representatives (May 17, 2006), at 2-3 [Vol. IV, Ex. 85, p. 2770-71]
18 (listing briefings that Sen. Pat Roberts received about the Program).

19 29 Later, in August 2007, the Administration conceded that – even if the call records portion of the Program involved “business records” – the Fourth Amendment nevertheless applied:

20

QUESTION: Hi. I have a couple of points that were touched on earlier, but I’m

21

not sure really answered. On the drift net question, you talked about both the

22

legal requirements for reasonableness under the Fourth Amendment and also just the operational logistics of using your time efficiently. Are you -- were you

23

speaking only of surveillance where you are acquiring content, or it’s your belief

that those same restrictions apply to call data and tracing of call records?

24

SENIOR ADMINISTRATION OFFICIAL: Well, the Fourth Amendment will

25

apply to any of our activities. I mean, nothing is exempt from the reasonableness

26

requirement of the Fourth Amendment.

27 Dept. of Justice Press Release, Transcript of Conference Call with Senior Administration Officials Regarding FISA Modernization Legislation (Aug. 7, 2007) [Vol. III, Ex. 37, p. 1273].

28 Case No. 08-CV-4373-JSW

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1

In total, nine members of Congress,30 each fully briefed on “the entire scope of NSA

2 surveillance,” White House Press Release, Press Briefing by Tony Snow at 2-3, 6 (May 17, 2006)

3 [Vol. IV, Ex. 88, pp. 2817-18, 2824], have acknowledged the call records program publicly and on

4 the record.

5

In addition, the statements of officials from major telecommunications firms similarly

6 confirm the existence of the call records portion of the Program. As noted in Hepting v. AT&T,

7 Qwest has unequivocally confirmed requests by the government for “private telephone records of

8 Qwest customers,” which Qwest refused after learning that it would not be provided with any

9 lawful authority permitting such access. Hepting v. AT&T, 439 F. Supp. 2d 974, 988 (N.D. Cal.

10 2006); Full Statement From Attorney Of Former Qwest CEO Nacchio, WALL ST. J. ONLINE (May 11 12, 2006) [Vol. IV, Ex. 91, p. 2854]. According to Joseph Nacchio, the former “Chairman and

12 CEO of Qwest [who] was serving pursuant to the President’s appointment as the Chairman of the

13 National Security Telecommunications Advisory Committee,” Qwest’s refusal to comply was

14 based on a “disinclination on the part of the authorities to use any legal process” in support of the

15 request. Id.

16

Verizon Wireless admitted, through a statement by a Regional President, Kelly Kurtzman,

17 broadcast in April 2007, that the company was asked by the government to hand over private

18 phone records:

19

LEE HOCHBERG: [A]fter 9/11, the Bush administration asked phone companies

for billions of private phone records.

20

Federal law forbids turning them over without a court order, but most phone

21

companies did so anyway. Verizon’s landline division was hit with a $50 billion

consumer lawsuit for doing so. Verizon Wireless emphasizes it withheld its phone

22

records.

23

KELLY KURTZMAN: Absolutely, absolutely. We were asked, but we said, no, we

would not give that information, again, you know, trying to protect the privacy of

24

our customers. We take that very seriously.

25 26 30 As noted above, the nine members are: Sens. Kit Bond, William Frist, Saxby Chambliss, Ted
Stevens, Orrin Hatch, Pat Roberts, and Reps. Jane Harman, Anna Eshoo, and Rush Holt. See supra 27 at 19-22.

28 Case No. 08-CV-4373-JSW

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1 Transcript of Online NewsHour: New Cell Phone Technology Can Track Users at 3 (PBS

2 television broadcast, April 11, 2007) [Vol. IV, Ex. 92, p. 2858].

3

Thus, statements by government officials and by telecommunications executives confirm

4 the existence of the call records portion of the Program.

5

(b) The Program Uses Domestic Call-Detail Records to

Analyze Americans’ Communication Patterns for

6

Targeting and Investigation

7

The NSA uses the call-detail records acquired from the major telecommunications carriers

8 to analyze the communications patterns of Americans in order to locate and target suspects for

9 further surveillance and investigation.

10

As Secretary Chertoff confirmed, one “technique of electronic surveillance” employed

11 under the Program includes “gathering information about who calls whom.” Kondracke, NSA

12 Datamining Is Legal, Chertoff Says at 3 [Vol. IV, Ex. 69, p. 1754]. Likewise, CBS News’ Gloria

13 Borger reported that Senator Roberts stated that “the NSA was looking at . . . the pattern of phone

14 calls.” Gloria Borger, Congress to Be Briefed on NSA, CBS/AP at 1 (May 16, 2006) [Vol. IV, Ex.

15 84, p. 2752]; see also Eric Lichtblau & Scott Shane, Bush Is Pressed Over New Report on

16 Surveillance, N.Y. TIMES at 1(May 12, 2006) [Vol. II, Ex. 16, p. 728] (noting that, according to one

17 government official, the NSA required access to “all the calls or most of them” in order to track the 18 contacts of individuals).31

19

The database of call-detail records provides NSA with a window into the “existence,

20 timing, and frequency of communications between persons” within the United States. See

21 Declaration of J. Kirk Wiebe (“Wiebe Decl.”) at ¶ 10 [Vol. VII, Ex. 120, p. 5092]. Indeed, for the

22
23 31 See also Shane Harris, NSA Spy Program Hinges on State-of-the-Art Technology, NAT’L J. at 2 (Jan. 20, 2006) [Vol. IV, Ex. 81, p. 2722] (“One telecom executive told National Journal that NSA
24 officials approached him shortly after the 9/11 attacks and insisted, to the point of questioning his company's patriotism, that executives hand over the company's ‘call detail records.’ Those
25 documents, known as CDRs, trace the history of every call placed on a network, including a call's 26 origin and destination, the time it started and ended, how long it lasted, and how it was routed
through the network. Having wholesale access to many companies’ records would, in theory, give 27 the NSA a picture of telecom usage across the country.”).

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1 NSA, “a person’s associations and the persistence of that association with other persons” is often

2 “of greater relevance to a determination” that a person should be a target of investigative interest

3 than “the actual words used in a series of communications.” Id. at ¶ 4 [p. 5090]; see also Sept. 20,

4 2007 McConnell Testimony at 80 [Vol. IV, Ex. 98, p. 3209] (communications records provide

5 “process for how you would find something you might be looking for. . . [t]hink of it as a

6 roadmap”); see also Lichtblau & Risen, Spy Agency Mined Vast Data Trove at 2 [Vol. IV, Ex. 66,

7 p. 1715] (quoting one telecom official saying, “If they get content, that’s useful to them too, but the

8 real plum is going to be the transaction data and the traffic analysis. . . Massive amounts of traffic

9 analysis . . . [are] used to identify lines of communication that are then given closer scrutiny”).

10

C. Evidence that AT&T Participated in the Program

11

The government could not and did not act alone. White House Press Release, Statement by

12 the Press Secretary on FISA (Feb. 25, 2008) [Vol. II, Ex. 28 p. 1136] (“[T]he cooperation of

13 private entities in our intelligence operations is not ancillary - it is integral to our operations and

14 critically essential. As Director McConnell has explained, there would be no effective surveillance

15 without the cooperation of private partners.”); see also Sept. 20, 2007 McConnell Testimony at 13

16 [Vol. IV, Ex. 98, p. 3142] (The “Intelligence Community often needs the assistance of the private

17 sector to protect the Nation. We simply cannot go alone.”).

18

Major U.S. telecommunications companies, including AT&T, are assisting the NSA with

19 all aspects of the Program. Chris Roberts, Transcript: Debate On The Foreign Intelligence

20 Surveillance Act, EL PASO TIMES (Aug. 22, 2007) at 2 [Vol. IV, Ex. 94, p. 3017] (quoting former

21 DNI McConnell saying “[U]nder the president’s program, the terrorist surveillance program, the

22 private sector had assisted us. Because if you’re going to get access you’ve got to have a partner”)

23

1. Evidence of AT&T’s Collaboration with the Communications

Acquisition Aspect of the Program

24 AT&T maintains domestic telecommunications facilities over which millions of

25 Americans’ telephone and Internet communications pass every day. Klein Decl. ¶ 7 [Vol. VII, Ex.

26 115, p. 4717]; see generally The AT&T Advantage, First Quarter 2004 [Vol. IV, Ex. 70, pp. 1756-

27

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1 57]; SBC Investor Briefing, January 31, 2005, No. 246 [Vol. IV, Ex. 71, pp. 1759-62]. These 2 facilities allow for the transmission of interstate and foreign electronic voice and data

3 communications by the aid of wire, fiber optic cable, or other like connection between the point of

4 origin and the point of reception. Klein Decl. ¶ 7 [Vol. VII, Ex. 115, p. 4717].

5

AT&T provided the NSA with access to these communications facilities. Former AT&T

6 technician Mark Klein has provided the Court with detailed evidence proving that AT&T has been

7 collaborating with the NSA in the surveillance of the international and domestic communications

8 of millions of Americans. See Section II(B)(1)(a), supra at 6-9. James Russell, AT&T’s Managing

9 Director-Asset Protection, has confirmed that Klein’s declaration and the AT&T documents Klein 10 attached accurately describe AT&T’s Internet network, AT&T’s San Francisco communications 11 facility, the location of specific equipment within the San Francisco facility, and the

12 interconnection points of AT&T’s Internet network with the networks of other communications

13 carriers. Declaration of James W. Russell (“Russel Decl.”) ¶¶ 1-2, 4-7 [Vol. VII, Ex. 117, p. 5071]

14 (filed under seal at Dkt. #84-2). Russell confirmed the conclusion that the exhibits to the Klein 15 Declaration are authentic AT&T documents that provide “detailed schematics of network wiring 16 configurations that are uniform across AT&T locations and that are used by AT&T to cross-

17 connect and split fiber cables” and that “identif[y] the manufacturer and name of many pieces of

18 equipment used by AT&T.” Id. ¶ 7.

19

The Klein evidence demonstrates that the NSA controlled the surveillance configuration

20 described in those documents. Klein’s account begins around January 2003, when the manager of

21 his facility advised him that the NSA was coming to interview another colleague for a “special

22 job.” Klein Decl. ¶ 10 [Vol. VII, Ex. 115, p. 4718]. The “special job” was to install equipment in a

23 high-security room AT&T was building at its Folsom Street Facility in San Francisco. Id. ¶ 10-14 24 [p. 4718]. The NSA supervised the construction and outfitting of the room, which came to be 25 known as the “SG3 Secure Room.” Id. ¶ 12 [p. 4718]. Klein personally saw the room when it was

26 under construction, and, at one point, entered the room briefly after it was fully operational. Id.

27 ¶ 12, 17 [pp. 4718, 4719].

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1

In October 2003, AT&T transferred Klein to the Folsom Street Facility. Id. ¶ 15 [p. 4718].

2 Although AT&T entrusted Klein with keys to every other door at the Folsom Street Facility, he did

3 not have access to the SG3 Secure Room. Id. ¶ 17 [p. 4719]. No AT&T employee was allowed in

4 the secret room without NSA security clearance. Id. Klein recounts one event that underscores the

5 secrecy and “extremely limited access to the SG3 Secure Room”: A large industrial air conditioner 6 in the room began “leaking water through the floor and onto . . . equipment downstairs.” Id. ¶ 18 7 [p. 4719]. AT&T maintenance personnel were not allowed to enter to fix the leak—or even to

8 triage and prevent water damage to other portions of the facility. Id. Despite the “semi-

9 emergency,” AT&T waited days for an employee with NSA clearance to provide service. Id.

10

Plaintiffs’ expert J. Scott Marcus confirmed “Mr. Klein’s allegation that the room described

11 was a secure facility, intended to be used for purposes of surveillance on a very substantial scale.”

12 Marcus Decl. ¶ 6 [Vol. VII, Ex. 116, p. 4747]. He “conclude[d] that AT&T has constructed an

13 extensive—and expensive—collection of infrastructure that collectively has all the capability

14 necessary to conduct large scale covert gathering of IP-based communications information[.]” Id. 15 ¶ 38 [p. 4752]. “Given the probable cost of these configurations,” and an absence of “commercial 16 reason[s], or combination of commercial reasons” warranting the configuration, Marcus

17 determined it was “highly probable” the configuration was funded, and used, by the U.S.

18 government. Id. ¶ 46 [p. 4755].

19

Accordingly, the Klein Declaration and accompanying exhibits and the Marcus Declaration

20 – coupled with the confirmation provided by the Russell Declaration – show that AT&T has built

21 the capability necessary to conduct large-scale covert surveillance of electronic communications,

22 and is providing the NSA with direct access to this capability as part of its ongoing collaboration

23 with the government’s warrantless surveillance Program.

24

2. Evidence of AT&T’s Participation in the Call-Detail Records Aspect of

the Program

25 The government also acquired call-detail records from AT&T without proper legal

26 authorization. At a 2006 hearing before the Senate Judiciary Committee, Edward Whitacre, CEO of

27

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1 AT&T, responded to a question on the call-detail records aspects of the Program by saying “if it’s

2 legal, we do it.” The AT&T And Bellsouth Merger: What Does It Mean For Consumers?: Hearing

3 before the Subcomm. on Antitrust, Competition Policy and Consumer Rights of the S. Comm. on

4 the Judiciary, 109th Cong. at 13 (June 22, 2006) [Vol. V, Ex. 106, p. 3926].

5

In 2007, when responding to the House Energy & Commerce Committee, AT&T wrote that

6 “the President possesses independent authority to request intelligence assistance pursuant to his”

7 Article II powers. Letter from Wayne Watts, Senior Executive Vice President and General

8 Counsel, AT&T, to Reps. John Dingell, Edward Markey and Bart Stupak, at 5 (Oct. 12, 2007)

9 [Vol. IV, Ex. 101, p. 3476]. AT&T opined it would be legal for the government to “request various

10 forms of intelligence assistance from the private sector pursuant to Executive Order 12333 and/or 11 the President’s Article II powers upon which that Order rests.” Id; see also Hepting v. AT&T, 439

12 F.Supp.2d at 993 (“Hence, it appears AT&T helps the government in classified matters when asked

13 and AT&T at least currently believes, on the facts as alleged in plaintiffs’ complaint, its assistance 14 is legal.”).32 Thus, it appears AT&T provides intelligence assistance when requested by the

15 Executive, even if it violates FISA, the Wiretap Act, or the Stored Communications Act.

16 III. THE EVOLUTION OF THE PROGRAM OVER TIME

17

This section summarizes several significant events in the history of the Program. In March

18 2004, the legal theories that purported to support the Program became more widely known within

19 the Administration, leading to very serious disagreements, and nearly causing the resignation of

20 several senior officials. Later, in January 2007, the Program was purportedly authorized by the

21 Foreign Intelligence Surveillance Court (“FISC”) (though the operations remained unchanged),

22 until the FISC reconsidered and found the Program illegal a few months later. In 2007 and 2008,

23 Congress then passed new legislation relating to electronic surveillance. However, despite various

24 changes in the Program’s legal underpinnings, the Program remains in operation.

25
26 32 See also Page, Lawmakers: NSA Database Incomplete [Vol. IV, Ex. 89, p. 2831] (reporting that “[f]ive members of the intelligence committees said they were told by senior intelligence officials
27 that AT&T participated in the NSA domestic calls program”).

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A. Origins of the Program

1 The Program reflects a goal of the NSA presented to the incoming Bush administration in

2 December 2000. According to the NSA, “[t]he volumes and routing of data make finding and

3 processing nuggets of intelligence information more difficult. To perform both its offensive and

4 defensive mission, NSA must ‘live on the network.’” National Security Agency, Transition 2001 at

5 31 (December 2000) [Vol. I, Ex. 4, p. 214]. Moreover, the NSA asserted it would be “a powerful

6 and permanent presence on a global telecommunications infrastructure where protected American

7 communications and targeted adversary communications will coexist.” Id.; see also Remarks by

8 Gen. Michael Hayden, Address to the National Press Club, Washington, D.C. (Jan. 23, 2006) [Vol.

9 IV, Ex. 73, p. 1800] (“[T]argeted communications. . . coexisted out there in a great global web with

10 your phone calls and my e-mails.”).

11

But FISA stood as an obstacle to accomplishing this goal.33 In 2000, the NSA

12 acknowledged that the “applicable legal standards for the collection, retention, or dissemination of

13 information concerning U.S. persons reflect a careful balancing between the needs of the

14

15 33 John Yoo later explained why FISA was not sufficient for the Program’s dragnet interception:

16

[U]nder existing laws like FISA, you have to have the name of somebody, have to

17

already suspect that someone’s a terrorist before you can get a warrant. You have to have a name to put in the warrant to tap their phone calls, and so it doesn’t allow

18

you as a government to use judgment based on probability to say: “Well, 1 percent

probability of the calls from or maybe 50 percent of the calls are coming out of this

19

one city in Afghanistan, and there’s a high probability that some of those calls are

terrorist communications. But we don’t know the names of the people making those

20

calls.” You want to get at those phone calls, those e-mails, but under FISA you can’t

21

do that.

22 PBS Frontline, Spying on the Homefront, Interview with John C. Yoo at 4 (Jan. 10, 2007) [Vol. I, Ex. 10, p. 394]; see also BUSH’S LAW at 143-44 [Vol. I, Ex. 1, p. 3.008-009] (discussing reasons
23 for evading FISA); Kondracke, NSA Data Mining is Legal, Necessary, Chertoff Says at 1 [Vol. IV, Ex. 69, p. 1753] (According to Chertoff “getting an ordinary FISA warrant is ‘a voluminous, time-
24 consuming process’ and ‘if you’re culling through literally thousands of phone numbers . . . you could wind up with a huge problem managing the amount of paper you’d have to generate.’”);
25 STATE OF WAR 48 [Vol. III, Ex. 60, p. 1609.013] (“Administration officials say that one reason 26 they decided not to seek court-approved search warrants for the NSA operation was that the
volume of telephone calls and e-mails being monitored was so big that it would be impossible to 27 get speedy court approval for all of them.”).

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1 government for such intelligence and the protection of the rights of U.S. persons,” and FISA 2 “codified this balancing.” OIG PSP Report at 5 [Vol. III, Ex. 33, p. 1201]. However, shortly after

3 the attacks of September 11, “FISA ceased to be an operative concern” for the NSA. Binney Decl.

4 ¶ 5 [Vol. VII, Ex. 118, p. 5073]. Consequently, President Bush authorized the NSA to “conduct

5 electronic surveillance within the United States without an order from the FISC[.]” Id.; see also 6 Sept. 20, 2007 McConnell Testimony [Vol. IV, Ex. 98, p. 3213] (“[T]he original program that the 7 President was operating” was unlawful in “the framework of FISA,” while reserving judgment on

8 the Article II argument).

9

As Gen. Hayden put it, the Program “is a more . . .‘aggressive’ program than would be

10 traditionally available under FISA.” Press Briefing by Att’y Gen. Alberto Gonzalez and Gen.

11 Michael Hayden, Principal Dep. Dir. for Nat’l Intelligence (Dec. 19, 2005) (included as an

12 attachment to March 2006 RJN) [Vol. V, Ex. 104, p. 3594]. This is so, in part, because “[t]he

13 trigger is quicker and a bit softer than it is for a FISA warrant.” Remarks by Gen. Michael Hayden,

14 Address to the National Press Club, Washington, D.C. (Jan. 23, 2006) [Vol. IV, Ex. 73, p. 1802]. 15 However, as the government candidly admitted, FISA requires “a court order before engaging in 16 this kind of surveillance . . . unless otherwise authorized by statute or by Congress.” Press Briefing

17 by Att’y Gen. Alberto Gonzalez and Gen. Michael Hayden, Principal Dep. Dir. for Nat’l

18 Intelligence (Dec. 19, 2005) (included as an attachment to March 2006 RJN) [Vol. V, Ex. 104, p.

19 3594].

20

The Program admittedly operated “in lieu of” court orders or other judicial authorization,

21 Press Briefing by Att’y Gen. Alberto Gonzalez and Gen. Michael Hayden, Principal Dep. Dir. for

22 Nat’l Intelligence (Dec. 19, 2005) (included as an attachment to March 2006 RJN) [Vol. V, Ex.

23 104, p. 3594]; see also Proposed FISA Modernization Legislation: Hearing before the S. Select 24 Comm. on Intelligence, 110th Cong. at 36 (May 1, 2007) [Vol. II, Ex. 12, p. 696] (Testimony of 25 Benjamin Powell, General Counsel, Office of the Dir. of Nat’l Intelligence) (Surveillance that was

26 “done under the president’s authorization and the president’s authority were not done pursuant to

27

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1 FISA or attorney general emergency authorizations by which after 72 hours you would go to the

2 FISA Court.”).

3

Even in the absence of judicial authorization, neither the President nor Attorney General

4 approved the specific interceptions; rather, the decision to listen or read particular communications

5 was made by intelligence analysts. Remarks by Gen. Michael Hayden, Address to the National

6 Press Club, Washington, D.C. (Jan. 23, 2006) [Vol. IV, Ex. 73, p. 1809] (The only review process

7 is authorization by an NSA “shift supervisor” before directly reviewing a particular individuals’

8 communication); see also The Terrorist Surveillance Program and FISA: Hearing of the

9 Subcomm. on the Constitution, Civil Rights, and Civil Liberties, H. Comm. on the Judiciary, 110th

10 Cong. at 2 (June 7, 2007) [Vol. II, Ex. 13 p. 706] (Statement of Steven G. Bradbury, Principal

11 Deputy Asst. Att’y Gen., Office of Legal Counsel, Dept. of Justice) (“Highly trained intelligence

12 professionals made the initial decision to target communications for interception.”).

13

While President Bush ultimately signed the Program Orders authorizing the Program, Vice

14 President Cheney and the legal counsel to the Office of the Vice President, David Addington, 15 guided the program’s expansion and development.34 Addington “was the chief legal architect [of

16 the Program] . . . He and the vice president had abhorred FISA’s intrusion on presidential power

17 ever since its enactment in 1978. After 9/11 they and other top officials in the administration dealt

18 with FISA the way they dealt with other laws they didn’t like: They blew through them in secret

19 based on flimsy legal opinions that they guarded closely so no one could question the legal basis 20 for the operations.” JACK L. GOLDSMITH,35 THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE

21 THE BUSH ADMINISTRATION 181 (W. W. Norton 2007) (“THE TERROR PRESIDENCY”) [Vol. I, Ex. 9,

22 p 390.017].

23

24

34 See also BARTON GELLMAN, ANGLER: THE CHENEY VICE PRESIDENCY 282 (PENGUIN PRESS 25 2008) [Vol. I, Ex. 8, p. 387.007] (“[I]t was Addington who wrote [the Program Orders], defining

26 the reach of warrantless intrusion into the lives of Americans.”); BUSH’S LAW at 144-147 [Vol. I, Ex. 1, pp. 3.009-012] (discussing origins of the Program).
27 35 Goldsmith was the Assistant Attorney General for the Office of Legal Counsel in the Department

of Justice from October 2003 to July 2004. OIG PSP Report at 19 [Vol. III, Ex. 33, p. 1215].

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1

The President signed the initial Program Order on October 4, 2001, and the Program began

2 on October 6, 2001.36 OVP Subpoena Response [Vol. I, Ex. 3, p. 175 - 77]; Hayden Hearing at 62

3 [Vol. I, Ex. 2, p. 65]. The President renewed his October 4, 2001 order at least 30 times,

4 approximately every 45 days. OIG PSP Report at 6 [Vol. III, Ex. 33, p. 1202]; OVP Subpoena

5 Response [Vol. I, Ex. 3, p. 175 - 77]. Each Program Order – with one notable exception – was 6 certified as to “form and legality” by the Attorney General. OIG PSP Report at 7, 11 [Vol. III, Ex.

7 33, p. 1203, 1207]. While not required, and of no legal significance, the Attorney General’s

8 certification helped give the “program a sense of legitimacy” and was “important [for] the

9 cooperating private sector personnel [to] know that the Attorney General had approved the

10 program.” Id. at 7 [p. 1203]. The Attorney General certified the first Program Order on the “same 11 day that he was read into the program.” Id. at 11 [p. 1207]. The Program Orders were also

12 accompanied by threat assessments that “documented intelligence assessments of the terrorist

13 threats to the United States and to U.S. interest abroad.” Id. at 7 [p. 1203].

14

“Knowledge of the [Program] was strictly controlled and limited at the express direction of

15 the White House.” Id. at 16 [p. 1212]. This excessive secrecy “created several problems,” including

16 an inability for DOJ officials to adequately review the Program’s “legality during the earliest phase

17 of the [P]rogram’s operation.” Id. Members of Congress were not informed until October 25, 2001

18 – nearly a month after the Program’s initiation. Id. Even then, only four members of Congress were

19 provided with information about the Program. Id. Despite FISA’s requirement that electronic

20 surveillance be performed pursuant to an order from the Foreign Intelligence Surveillance Court,

21 no member of the Court was informed of the Program for nearly three months; then, “[f]rom

22 January 2002 to January 2006, only FISC Presiding Judge Royce Lamberth, followed by Presiding

23 Judge Colleen Kollar-Kotelly, were read into the” Program. Id. at 17 [p. 1213].

24

John Yoo, then a Deputy Assistant Attorney General in DOJ’s Office of Legal Counsel

25 36 See also BUSH’S LAW at 142 [Vol. I, Ex. 1, p. 3.007] (Prior to the official inception of the 26 Program, “[w]ithin hours and days of the attacks, the NSA began ratcheting up its unmatched
spyware, with the help of the U.S. telecom giants, to pore through vast amounts of communications 27 flowing into and out of Afghanistan.”)

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1 (OLC), was responsible for “drafting the first series of legal memoranda supporting the 2 [P]rogram.” Id. at 10 [p. 1206].37 “Yoo was the only OLC official ‘read into’ the [Program] from

3 the program’s inception in October 2001 until Yoo left DOJ in May 2003.” Id. The first OLC

4 opinion directly addressing the legality of the Program was not drafted until nearly a month after

5 the Program was authorized on November 2, 2001. Id. at 11 [p. 1207]. Yoo’s legal memoranda was

6 later criticized for its incomplete analysis of FISA, id. at 12 [p. 1208]; its failure to address

7 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), “a leading case on the distribution

8 of government powers between the Executive and Legislative Branches,” id. at 13 [p. 1209]; and

9 for failing to “accurately describe the scope of [Program surveillance] activities.” Id.

10

Yoo drafted a subsequent memo in October 2002, which largely “reiterated the same basic

11 analysis contained in” the original OLC memorandum. Id. at 13. The OIG report “concluded that it

12 was extraordinary and inappropriate that a single DOJ attorney . . . was relied upon to conduct the

13 initial legal assessment of the [Program], and that the lack of oversight and review of Yoo’s work .

14 . . contributed to a legal analysis of the [Program] that at a minimum was factually flawed.” Id. at

15 30 [p. 1226]. Ultimately, DOJ officials determined that Yoo’s memoranda “did not provide a basis

16 for finding that [all Program] activities were legal.” Id. at 22 [p. 1218].

17

B. March 2004 Administration Revolt Over Illegal Surveillance

18

After Yoo’s departure from OLC in May 2003, the legality of certain aspects of the

19 Program became the source of “major disagreement” between DOJ officials and the White House, 20 nearly leading to the resignation of many high-ranking DOJ officials.38 Id. at 36 [p. 1232]. In

21 37 It was David Addington and then-White House Counsel Alberto Gonzales that assigned John

22

Yoo to prepare the Program’s legal opinions. BUSH’S LAW at 156 [Vol. I, Ex. 1, p. 3.021]; ANGLER at 283 [Vol. I, Ex. 8, p. 387.008].

23 38 See also Dan Eggen & Joby Warrick, Data Mining Figured In Dispute Over NSA, Report Links

Program to Gonzales Uproar, WASH. POST (July 29, 2007) at 2 [Vol. III, Ex. 41, p. 1296] (“One

24 source familiar with the NSA program said . . . that there were widespread concerns inside the

intelligence community in 2003 and 2004 over how much Internet and telephone data mining could 25 occur, as well as about the NSA’s direct intercepts of communications without court approval.”);

26 BUSH’S LAW AT 178 [Vol. I, Ex. 1, p. 3.043] (“What the NSA was casting as a carefully targeted surveillance operation struck some officials as a vast data mining operation run amok, with the

27 NSA combing through vast volumes of ‘meta-data’ to trace and analyze phone and e-mail traffic across the United States.”).

28 Case No. 08-CV-4373-JSW

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1 March 2004, when the Program’s authorization “was set to expire, the Department of Justice, under

2 Acting Attorney General James Comey, refused to give its approval to the reauthorization of the

3 order because of concerns about the legal basis of certain of these NSA activities.” Letter from

4 Alberto R. Gonzales, Att’y Gen. of U.S., to Sen. Patrick Leahy, Chairman, S. Comm. on the

5 Judiciary at 1 (Aug. 1, 2007) [Vol. V, Ex. 102, p. 3481]; see generally OIG PSP Report at 20-29

6 [Vol. III, Ex. 33, pp. 1216–25].

7

The dispute began when Deputy Assistant Attorney General Patrick Philbin replaced Yoo

8 as the OLC attorney assigned to the Program. Id. at 20 [p. 1216].39 By the fall of 2003, Jack

9 Goldsmith, then head of the Justice Department’s Office of Legal Counsel, and Philbin began a

10 factual and legal review of the Program. Id.; Preserving Prosecutorial Independence: Is the

11 Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys? Hearing before the S.

12 Comm. on the Judiciary, Part IV, 110th Cong. at 245 (May 15, 2007) [Vol. III, Ex. 56, p. 1542]

13 (“Comey Testimony”). Goldsmith later testified that there were certain “aspects of programs

14 related to the TSP that I could not find legal support for,” describing the Program as “a legal mess.

15 It was the biggest legal mess I’ve ever encountered.” Preserving the Rule of Law in the Fight

16 Against Terror: Hearing before the S. Comm. on the Judiciary, 110th Cong. 7 (Oct. 2, 2007) [Vol.

17 III, Ex. 42, p. 1307] (testimony of Jack Goldsmith); see also THE TERROR PRESIDENCY AT 180-82

18 [Vol. I, Ex. 9, pp. 390.016-18].

19

On Tuesday, March 9, 2004, Comey orally advised Administration officials that he saw no

20 legal basis for certain aspects of the Program. OIG PSP Report at 24 [Vol. III, Ex. 33, p. 1220]; see 21 also Comey Testimony at 246, 248 [Vol. III, Ex. 56, pp. 1543, 1545].40 At the time, Comey was

22 39 Philbin, who was read into the Program in mid-2003, was concerned because “[o]n its face, the
23 program violated two felony statutes forbidding electronic surveillance without a warrant [and the] specified exceptions in those statutes did not apply.” ANGLER at 288 [Vol. I, Ex. 8, p. 387.013].
24 40 This conversation led to a heated dispute between Comey and Addington concerning Yoo’s
25 analysis and the Program’s ongoing legal basis:

26 ‘The analysis is flawed, in fact facially flawed,’ Comey said. ‘No lawyer reading

27

[Yoo’s legal analysis] could reasonably rely on it.’ . . . ‘Well, I’m a lawyer and I

did,’ Addington said, glaring at Comey. ‘No good lawyer,’ Comey said.

28 Case No. 08-CV-4373-JSW

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1 the Acting Attorney General, because Attorney General John D. Ashcroft was recovering from

2 surgery at George Washington University Hospital. OIG PSP Report at 21, 24 [Vol. III, Ex. 33, p. 3 1217, 1220]; see also Comey Testimony at 250 [Vol. III, Ex. 56, p. 1547].41 Despite the urging of

4 White House officials, Comey would not sign off on the legality of the Program. Comey

5 Testimony at 224 [Vol. III, Ex. 56, p. 1521]; see also OIG Gonzales Report at 9 [Vol. I, Ex. 7, p.

6 364].

7

On March 10, 2004, “Gonzales and other White House and intelligence agency officials,

8 including the Vice President and NSA Director Michael Hayden, convened an ‘emergency 9 meeting’ in the White House Situation Room with” Congress’s Gang of Eight.42 OIG Gonzales

10 Report at 9 [Vol. I, Ex. 7, p. 364]; see also Letter from John D. Negroponte, Dir. of Nat’l

11 Intelligence, to J. Dennis Hastert, Speaker of the U.S. House of Representatives (May 17, 2006) at

12 2-3 [Vol. IV, Ex. 85, p. 2770-71] (listing congressional participants). Accounts of this meeting

13 differ significantly. OIG PSP Report at 23 n. 16 [Vol. III, Ex. 33, p. 1219] (noting Gonzalez

14 believed “the consensus of congressional leaders was that the [P]rogram should continue,” but Rep.

15 Pelosi, who attended the meeting, issued a statement that “‘she made clear [her] disagreement with

16 what the White House was asking’ concerning the [P]rogram.”). Gonzales wrote notes concerning

17 this meeting, which “were reviewed by two NSA officials” in conjunction with a 2008

18 investigation into Gonzalez’s mishandling of classified material. OIG Gonzales Report at 10 n. 14

19 [Vol. I, Ex. 7, p. 365]. “The NSA officials determined that 3 of 21 paragraphs in the notes contain

20 SCI information about the NSA surveillance program, 1 paragraph contains SCI information about

21 signals intelligence, and the remaining paragraphs are unclassified.” Id.

22

ANGLER at 296 [Vol. I, Ex. 8, p. 387.021] (emphasis in original). 23

24

41 See also ANGLER at 302-307 [Vol. I, Ex. 8, p. 387.027-32]; BUSH’S LAW at 180 [Vol. I, Ex. 1, p. 3.045].

25 42 The Gang of Eight refers to congressional leadership, including the leaders of each of the two
26 parties from each of the two houses of Congress and the chairs and ranking members of the intelligence committees of each of the two houses of Congress. See
27 http://en.wikipedia.org/wiki/Gang_of_eight.

28 Case No. 08-CV-4373-JSW

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1

On the night of March 10, 2004, Gonzales and White House Chief of Staff Andrew Card

2 attempted to circumvent Comey’s refusal to authorize the Program, and sought Ashcroft’s

3 certification while he was recuperating from emergency surgery in the hospital. OIG PSP Report at

4 24 [Vol. III, Ex. 33, p. 379]; Comey Testimony at 215-17 [Vol. III, Ex. 56, pp. 1512-1514]. After

5 learning that Gonzalez and Card were going to visit Ashcroft, Comey raced to the hospital and

6 alerted members of his staff and FBI Director Mueller to come to the hospital to “witness [the]

7 condition of [the] AG.” OIG PSP Report at 24 [Vol. III, Ex. 33, p. 1220]. The OIG PSP Report

8 describes the encounter in detail:

9

Gonzales and Card entered Ashcroft’s hospital room at 7:35 p.m., according to the

10

FBI agent’s notes. The two stood across from Mrs. Ashcroft at the head of the bed, with Comey, Goldsmith, and Philbin behind them. Gonzales told the DOJ OIG that

11

he carried with him in a manila envelope the March 11, 2004, Presidential

Authorization for Ashcroft to sign. According to Philbin, Gonzales first asked

12

Ashcroft how he was feeling and Ashcroft replied, “Not well.” Gonzales then said

words to the effect, “You know, there’s a reauthorization that has to be

13

renewed. . . .” Gonzales told us that he may also have told Ashcroft that White

14

House officials had met with congressional leaders “to pursue a legislative fix.”

15

Comey testified to the Senate Judiciary Committee that at this point Ashcroft told

Gonzales and Card “in very strong terms” about his legal concerns with the

16

[Program], which Comey testified Ashcroft drew from his meeting with Comey

about the program a week earlier. 17
Id. at 25 [p. 1221].43 18

When Gonzales testified about the hospital incident in July 2007, he refused to say that 19

former Attorney General Ashcroft had approved the Program for the first two years, despite heavy 20

questioning. Instead, Gonzales testified that “from the inception, we believed that we had the 21

approval of the attorney general of the United States for these activities, these particular activities.” 22

23 43 See also ANGLER at 302-303 [Vol. I, Ex. 8, p. 387.027-28]; BUSH’S LAW at 180-181 [Vol. I, Ex.

1, p. 3.045-46]. Instead of signing the Program Order, “Ashcroft gave a lucid account of the 24 reasons that Justice had decided to withhold support. And then he went beyond that. Ashcroft said

25

he never should have certified the program.” ANGLER at 304 [Vol. I, Ex. 8, p. 387.029]; BUSH’S LAW at 182 [Vol. I, Ex. 1, p. 3.047]. According to Comey, “Ashcroft specified a list of facts, and a

26 list of legal concerns, that the secrecy rules had prevented him from discovering. Had he known them, he said, he would have withheld his signature before.” ANGLER at 459 [Vol. I, Ex. 8, p.

27 387.052].

28 Case No. 08-CV-4373-JSW

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1 Oversight of the Department of Justice: Hearing before the S. Comm. on the Judiciary, 110th

2 Cong. 33-35 (July 24, 2007) [Vol. III, Ex. 45, pp. 1414-17] (emphasis added). Because Ashcroft

3 had relied entirely on Yoo’s incomplete description of the Program when certifying the previous

4 Program Orders, Ashcroft believed his previous certifications were “based on a misimpression of

5 those activities.” OIG PSP Report at 26 n. 17 [Vol. III, Ex. 33, p. 1222].

6

Despite the conclusion by the Department of Justice that the Program could not be legally

7 supported, President Bush nevertheless reauthorized the Program on March 11, 2004. Id.; Comey

8 Testimony at 218-19 [Vol. III, Ex. 56, pp. 1515-16]. Because the Attorney General refused to

9 certify the Program as to form and legality, the “March 11 Authorization was certified by White

10 House Counsel Gonzales.” OIG PSP Report at 26 [Vol. III, Ex. 33, p. 1222]. The March 11

11 Authorization differed markedly from prior authorizations in three ways:

12

It explicitly asserted that the President’s exercise of his Article II Commander-in-

Chief authority displaced any contrary provision of law, including FISA. It clarified

13

the description of [the Program] to address questions regarding whether such

activities had actually been authorized explicitly in prior Authorizations. It also

14

stated that in approving the prior Presidential Authorizations as to form and legality,

15

the Attorney General previously had authorized the same activities now being approved under the March 11 Authorization.

16 Id. This last provision was “removed from future Authorizations after Ashcroft complained to

17 Gonzales that the statement was ‘inappropriate.’” Id. at 26 n. 17 [p. 1222].

18

As a result of the reauthorization without DOJ approval, about “two dozen Bush

19 appointees,” including Acting Attorney General Comey and FBI Director Mueller, were prepared

20 to resign. See Comey Testimony at 250 [Vol. III, Ex. 56, p. 1547] (partial list of people prepared to

21 resign); OIG PSP Report at 27 [Vol. III, Ex. 33, p. 1223].44 Despite the illegality of the Program,

22 no officials resigned and Comey did not direct “the FBI to cease cooperating with the NSA in

23 conjunction with the [P]rogram.” OIG PSP Report at 28 [Vol. III, Ex. 33, p. 1224].

24 44 See also Scott Shane & David Johnston, Mining of Data Prompted Fight Over U.S. Spying, N.Y.
25 TIMES at 1 (July 29, 2007) [Vol. III, Ex. 46, p. 1458] (The March “2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten
26 resignation involved computer searches through massive electronic databases, according to current
and former officials briefed on the program. . . . [S]uch databases contain records of the phone calls 27 and e-mail messages of millions of Americans.”)

28 Case No. 08-CV-4373-JSW

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1

From March 11 through March 16, 2004, the Program continued unchanged, while “an

2 interagency working group led by OLC was convened to continue reanalyzing the legality” of the

3 Program. Id. On March 17, 2004, the President decided to modify certain aspects of the Program 4 and to discontinue others that DOJ believed were legally unsupportable.45 Id. at 29 [p. 1225].

5

In May 2004, “Goldsmith and Philbin completed an OLC legal memorandum assessing the

6 legality of the [Program] as it was operating at that time.” Id. The OLC memorandum asserted that

7 the Authorization for Use of Military Force (AUMF) passed by Congress shortly after the attacks

8 of September 11, 2001 gave the President authority to use both domestically and abroad ‘all

9 necessary and appropriate force,’ including signals intelligence capabilities, to prevent future acts

10 of international terrorism . . . .” Id.

11

C. The Transition of Certain Program Activities to Foreign Intelligence

Surveillance Court Orders

12

From 2004 to 2007, “[c]ertain activities that were originally authorized as part of the

13

[P]rogram have subsequently been authorized under orders issued by the Foreign Intelligence 14
Surveillance Court (FISC).” OIG PSP Report at 30 [Vol. III, Ex. 33, p. 1226]. Included in this 15
transition was the “interception of certain international communications that the President publicly 16

described as [the TSP],” as well as other “[Program]-authorized activities.” Id. “As a result of this 17
transition, the President decided not to reauthorize these activities and the final Presidential 18

Authorization expired on February 1, 2007.” Id. 19

In 2004, the government for the first time sought an order from the FISC for “business 20
records” under FISA. Dept. of Justice, Office of Inspector Gen, A Review of the FBI’s Use of 21

Section 215 Orders for Business Records in 2006 at 16-17 (March 2008) [Vol. V, Ex. 108, p. 403622
37]; see Section II(B)(2)(a), supra at 22-23 (call records program operated under “business 23

records” rationale). Government officials later disclosed these business records orders supported a 24

“sensitive collection program.” The USA PATRIOT Act, Hearing Before the Subcomm. on the 25

26 45 See also ANGLER at 321 [Vol. I, Ex. 8, p. 387.046] (Even after modifying aspects of the Program, the Administration, in a memo issued a few days later, “reasserted the lawfulness of

27 every element of the program,” and asserted that the changes were “for strictly operational reasons,

at the president’s own discretion.”)

28 Case No. 08-CV-4373-JSW

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1 Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. at 8 2 (Sept. 22, 2009) [Vol. V., Ex. 109, p. 4124] (testimony of Todd Hinnen, Dep. Asst. Att’y Gen.).

3 The government’s use of business records orders has caused condemnation from elected officials.

4 Senator Richard Durbin noted that the government’s reliance on business records orders “is

5 unfortunately cloaked in secrecy. Some day that cloak will be lifted, and future generations will ask 6 whether our actions today meet the test of a democratic society: transparency, accountability, and 7 fidelity to the rule of law and our Constitution.” Executive Business Meeting, S. Comm. on the

8 Judiciary (October 1, 2009) [Vol. VI, Ex. 110, p. 4271] (Remarks of Sen. Richard Durbin). Senator

9 Ron Wyden reiterated Senator Durbin’s concerns nearly two years later:

10

I have served on the Intelligence Committee for over a decade and I wish to deliver

a warning this afternoon. When the American people find out how their government

11

has secretly interpreted [the business records provision of FISA], they are going to

be stunned and they are going to be angry. 12

157 Cong. Rec. S3372-3402, S3386 (May 26, 2011) [Vol. VI, Ex. 111, p. 4286] (Statement of Sen. 13

Ron Wyden, On Patriot Act Reauthorization). 14

The interception of international communications targeting members of terrorist groups was 15

also included in the transition to FISC orders. OIG PSP Report at 30 [Vol. III, Ex. 33, p. 1226]. In 16

a letter to the Congress on January 17, 2007, then Attorney General Gonzales announced that a 17

judge of the Foreign Intelligence Surveillance Court:

18

issued orders authorizing the [g]overnment to target for collection international

19

communications into or out of the United States where there is probable cause to

believe one of the communicants is a member or agent of al Qaeda or an associated

20

terrorist group. As a result of these orders, any electronic surveillance that was

occurring as part of the Terrorist Surveillance Program will now be conducted

21

subject to the approval of the Foreign Intelligence Surveillance Court.

22 Letter from Alberto Gonzales, Att’y Gen. of U.S., to Sen. Patrick J. Leahy, Chairman, S. Comm.

23 on the Judiciary, and Sen. Arlen Specter, Ranking Minority Member, S. Comm. on the Judiciary

24 (Jan. 17, 2007) [Vol. IV, Ex. 74, p. 2451].

25

However, in May 2007, a second FISC judge refused to renew the January 2007 FISC

26 orders authorizing aspects of the Program. According to the Senate Select Committee on

27 Intelligence “[a]t the end of May 2007. . . attention was drawn to a ruling of the FISA Court. When

28 Case No. 08-CV-4373-JSW

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1 a second judge of the FISA Court considered renewal of the January 2007 FISA orders, he issued a

2 ruling that the DNI later described as significantly diverting NSA analysts from their

3 counterterrorism mission to provide information to the Court.” Report on S. Rep. 110-209, Foreign

4 Intelligence Surveillance Act of 1978 Amendments Act of 2007, Sen. Select Comm. on Intelligence,

5 110th Cong. (Oct. 26, 2007) [Vol. IV, Ex. 96, p. 3034]. The FISC order has not been made public. 6 In re Motion for Release of Court Records, 526 F.Supp.2d 484 (Foreign Intel.Surv.Ct. 2007).46

7

In an August 2007 interview the El Paso Times, DNI McConnell said:

8

[The Program] was submitted to the FISA court and the first ruling in the FISA

court was what we needed to do we could do with an approval process that was at a

9

summary level and that was OK, we stayed in business and we’re doing our

mission. . . . But the FISA process has a renewal. It comes up every so many days

10

and there are 11 FISA judges. So the second judge looked at the same data and said

11

well wait a minute I interpret the law, which is the FISA law, differently.

Chris Roberts, Transcript: Debate On The Foreign Intelligence Surveillance Act, EL PASO TIMES at 12

1 (Aug. 22, 2007) [Vol. IV, Ex. 94, p. 3016]. 13

In a February 2008 interview, ODNI Spokesman Russ Feinstein clarified that “[d]ue to 14

rulings from the FISA court, in a significant number of cases, the government had to get court 15

orders for purely foreign-to-foreign communications that touched American wires.” Ryan Singel, 16

Can the NSA Wiretap in Iraq Without A Warrant?, WIRED NEWS (Feb. 28, 2008) [Vol. III, Ex. 51, 17

p. 1475]. Feinstein was correcting an earlier, and broader, statement that “if a communication 18

touches a U.S. wire, you need a court order.” Id. 19

In March 2008, Assistant Attorney General for National Security Kenneth Wainstein 20

admitted that the problem was with email communications, not phone calls. “The real concern, he 21

said, is primarily e-mail, because ‘essentially you don’t know where the recipient is going to be’ 22

and so you would not know in advance whether the communication is entirely outside the United 23

24

25

46 See also Greg Miller, New Limits Put On Overseas Surveillance, L.A. TIMES (Aug. 2, 2007) at 1 [Vol. III, Ex. 50, p. 1473] (“One official said the issue centered on a ruling in which a FISA court

26 judge rejected a government application for a ‘basket warrant’ – a term that refers to court approval for surveillance activity encompassing multiple targets, rather than warrants issued on a case-by-

27 case basis for surveillance of specific terrorism suspects.”).

28 Case No. 08-CV-4373-JSW

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1 States.” Ellen Nakashima & Paul Kane, Wiretap Compromise in Works: FISA Update May Hinge

2 On Two Separate Votes, WASH. POST at 1 (March 4, 2008) [Vol. III, Ex. 52, p. 1478]. Indeed, e-

3 mail surveillance constitutes the majority of the NSA’s collections. Sept. 18, 2007 McConnell

4 Testimony at 78 [Vol. II, Ex. 17, p. 811] (estimating the FISC decision effected “about two-thirds 5 of our capability”).47

6

D. The Program After the Protect America Act of 2007 and the FISA

Amendments Act of 2008

7

In August 2007, Congress passed the Protect America Act of 2007, Pub. L. 110-55, 121

8

Stat. 552 (“PAA”). In September 2007, Assistant Attorney General Wainstein wrote to Chairman

9

Silvestre Reyes that “[t]he Protect America Act does not authorize so-called ‘domestic

10

wiretapping’ without a court order, and the Executive Branch will not use it for that purpose.”

11

Letter from Kenneth L. Wainstein, Asst. Att’y Gen. for Nat’l Sec., U.S. Dept. of Justice, to Rep.

12

Silvestre Reyes, Chairman, H. Permanent Select Comm. on Intelligence (Sept.14, 2007) [Vol. III,

13

Ex. 53, p. 1482]; see also Department of Justice Press Release, Transcript of Conference Call with

14

Senior Administration Officials Regarding FISA Modernization Legislation (Aug. 7, 2007) at 10

15

[Vol. III, Ex. 37, p. 1269] (“[W]e also don’t think you could direct surveillance at a large number

16

of persons in the United States without using the FISA regime.”).

17

Following the expiration of the PAA in early 2008, Congress passed the FISA Amendments

18

Act of 2008 (“FAA”). Pub. L. 110-261, 122 Stat. 2436 (2008); OIG PSP Report at 31 [Vol. III, Ex.

19

33, p. 1227]. The FAA “authorized the government to intercept inside the United States any

20

communications of non-U.S. persons reasonably believed to be located outside the United States,

21

provided a significant purpose of the acquisition pertains to foreign intelligence.” Id. at 31 [p.

22

1227]. Accordingly, none of the assistance alleged in the complaint was provided pursuant to the

23

PAA or the FAA.

24

25

26 47 See also BUSH’S LAW at 153 [Vol. I, Ex. 1, p. 3.018] (“[D]espite the public focus on phone calls, 27 most of the NSA’s intercepts—75 percent by one estimate—were e-mails.”).

28 Case No. 08-CV-4373-JSW

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E. The Ongoing Operation of the Program

1

Despite the transition to FISC orders, the operation of the Program remains unchanged. 2

After the FISC issued its first order, Press Secretary Tony Snow explained “[w]hat happens is that 3

the program pretty much continues – the program continues.” White House Press Release, Press 4

Briefing by Tony Snow at 5 (Jan. 17, 2007) [Vol. III, Ex. 47, p. 1465]. A reporter sought 5

clarification: 6

Q: In other words, we now have a new program called --
7 MR. SNOW: No, you have the same program it operates under, but it’s really a

8

matter of your legal authority prior to that. It was presidential order. Now, in this

case, the program continues, but it continues under the rules that have been laid out

9

by the court.

10 Id. Likewise, in a background briefing given on the same day, the government officials explained

11 that the shifting authorization wouldn’t cause “any significant operational impact” so the Program

12 “continue to do everything” authorized under the prior Program. Dept. of Justice Press Release,

13 Transcript of Background Briefing on FISA Authority of Electronic Surveillance by Senior Justice

14 Department Officials at 3 (Jan. 17, 2007) [Vol. I, Ex. 6, p. 348]; see also id. at 6 [p. 351] (“[T]he

15 general contours under these orders allow us to do the same thing and to target the same types of

16 communications. . . . [T]he objectives of the program haven’t changed and the capabilities of the

17 intelligence agencies to operate such a program have not changed as a result of these orders.”).

18 Moreover, the basic legal rationale had not changed:

19

I don’t know that anything has changed. First of all, let me say that we continue to

believe as we’ve always said and as we’ve explained at length that the President has

20

the authority to authorize the terrorist surveillance program, that he has that

21

authority under the authorization for the use of military force and under Article II of

the Constitution. That’s not changing.

22 Id. at 2 [p. 347]; see also James Risen, Administration Pulls Back on Surveillance Agreement, N.Y.

23 TIMES at 1 (May 2, 2007) [Vol. III, Ex. 48, p. 1469] (“[S]enior officials, including Michael

24 McConnell, the new director of national intelligence, said they believed that the president still had

25 the authority under Article II of the Constitution to once again order the N.S.A. to conduct

26 surveillance inside the country without warrants.”).

27

Rather than limiting the untargeted acquisition of large quantities of domestic

28 Case No. 08-CV-4373-JSW

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1 communications, the new authorizations focused on minimization after collection. “At the [January

2 18, 2007, Senate Judiciary] hearing, Mr. Gonzales said the rules protected national security by

3 allowing continued eavesdropping, but required the government to halt quickly the monitoring of

4 people who were not found to be doing anything wrong.” David Johnston & Scott Shane, Senators

5 Demand Details on New Eavesdropping Rules, N.Y. TIMES (Jan. 19, 2007) [Vol. III, Ex. 49, p.

6 1472]; see also Dept. of Justice Oversight: Hearing before the S. Comm. on the Judiciary, 110th

7 Cong. at 44 (Jan 18, 2007) [Vol. I, Ex. 11, p. 447] (Testimony of Alberto Gonzalez).

8

Indeed, in another series of articles in 2009, the New York Times revealed that the Program

9 was again operating outside the broad limits established under the FAA. Eric Lichtblau & James

10 Risen, Officials Say U.S. Wiretaps Exceeded Law, N.Y. TIMES (April 15, 2009) [Vol. III, Ex. 38,

11 pp. 1277-79]. The Justice Department acknowledged “there had been problems with the NSA’s

12 surveillance operation.” The problems involved a “serious issue involving the NSA” concerning

13 “significant misconduct.” Id. at 1, 3 [pp. 1277, 1279].

14

The problems, which led to congressional inquiries, largely involved the “flagrant”

15 overcollection of domestic email. Eric Lichtblau & James Risen, E-Mail Surveillance Renews

16 Concern in Congress, N.Y. TIMES at 1(June 17, 2009) [Vol. III, Ex. 57, p. 1586] (quoting Rep.

17 Rush Holt). “Because each court order could single out hundreds or even thousands of phone

18 numbers or e-mail addresses, the number of individual communications that were improperly

19 collected could number in the millions, officials said.” Id. at 2 [p. 1587]. “‘Say you get an order to

20 monitor a block of 1,000 e-mail addresses at a big corporation, and instead of just monitoring

21 those, the N.S.A. also monitors another block of 1,000 e-mail addresses at that corporation,’ one

22 senior intelligence official said. ‘That is the kind of problem they had.’” Id. at 2-3 [pp. 1587-88].

23

Consistent with those reports, the FISC has held, on at least one occasion, that the

24 Program’s ongoing surveillance violated the Fourth Amendment and that surveillance conducted

25 under the Program violated the spirit of the law. Letter from Kathleen Turner, Director of

26 Legislative Affairs, Office of the Dir. of Nat’l Intelligence, to Sen. Ron Wyden at 1(Jul. 20, 2012)

27 [Vol. VI, Ex. 113, p. 4609].

28 Case No. 08-CV-4373-JSW

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IV. EVIDENCE PROVIDING CONTEXT FOR GOVERNMENT ASSERTIONS

1

ABOUT THE PROGRAM

2

This section summarizes the evidence that provides important context for understanding the

3 government’s assertions about the Program. This context may be useful to the Court in evaluating

4 the government’s assertion of the state secrets privilege and its statements about its activities at

5 issue in this case. In brief, the government has used carefully parsed statements and omissions that 6 elide or obscure the actual surveillance activities it has undertaken.

7

A. Use of the Term “Terrorist Surveillance Program”

8

Government officials have generally cabined their discussions of the Program to “the

9 Program as described by the President,” or the so-called “Terrorist Surveillance Program.” See e.g. 10 Gov’t Br. at 3:9-12 (Dkt. # 102) (“President Bush acknowledged the existence of a program he 11 authorized . . . later referred to as the ‘Terrorist Surveillance Program.’”); Public Declaration of

12 James R. Clapper, Director of National Intelligence (“Clapper Decl.”) (Dkt. # 104) ¶ 24

13 (“[P]laintiffs’ allegation that the NSA has indiscriminately collected the content of millions of

14 communications sent or received by people inside the United States after 9/11 under the TSP is 15 false.”). Director Fleisch’s declaration similarly discusses the Program in terms of the TSP: 16 “Plaintiffs allege that the presidentially-authorized activities at issue in this litigation went beyond

17 the “Terrorist Surveillance Program . . . Rather, plaintiffs allege that other intelligence activities

18 were also authorized by the President after 9/11[.]” Declaration of Frances J. Fleisch, National

19 Security Agency (Dkt. # 105) ¶ 3.

20

However, outside of this litigation, the government has repeatedly confirmed that the

21 Program included “other intelligence activities,” beyond those described as the TSP. The OIG PSP

22 Report, on the first page, makes this clear:

23

[After September 11, 2001,] the President authorized the National Security Agency

(NSA) to conduct a classified program . . . As part of the NSA’s classified program,

24

several different intelligences activities were authorized . . . One of the activities

authorized as part of the [Program] was the interception of the content of

25

communications into and out of the United States where there was a reasonable

26

basis to conclude that one party to the communication was a member of al-Qa’ida or

related terrorist organizations. This aspect of the [Program] was publicly

27

acknowledged and described by the President, the Attorney General, and other

28 Case No. 08-CV-4373-JSW

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Administration officials beginning in December 2005 following a series of articles

1

published in the New York Times. . . . The President and other Administration

2

officials labeled the publicly disclosed interception of the content of certain international communications by the NSA as the “Terrorist Surveillance Program.”

3 OIG PSP Report at 1 [Vol. III, Ex. 33, p. 1197] (emphasis added).

4

The phrase “Terrorist Surveillance Program” does not describe the entire surveillance

5 Program or even an independent program, but rather only those aspects of the broader Program that

6 were publicly described by the President in 2005. Letter from Att’y Gen. Alberto Gonzalez to Sen.

7 Patrick Leahy (Aug. 1, 2007) [Vol. V, Ex. 102, p. 3481] (“[B]efore December 2005, the term

8 ‘Terrorist Surveillance Program’ was not used to refer to these activities, collectively or otherwise.

9 It was only in early 2006, as part of the public debate that followed the unauthorized disclosure and

10 the President’s acknowledgement of one aspect of the NSA activities, that the term Terrorist

11 Surveillance Program was first used.”).

12

Government officials have steered the public debate, and their briefing before this Court,

13 towards the TSP, in an effort to assert that the broader Program is limited, justified, and is no

14 longer in operation. Thus, when the government asserts the NSA has not “indiscriminately

15 collected the content of millions of communications . . . under the TSP,” Clapper Decl. ¶ 24, the

16 government is not asserting that this conduct does not occur under the broader surveillance

17 Program.

18

B. Use of the Terms “Surveillance” and “Collection”

19

The government regularly uses the terms “surveillance” and “collection” to describe

20 Program activities, yet the definitions it uses for those terms are notably narrower than either the

21 plain meaning of the term or their legal definition.

22

In public discussions of the Program, the government appears to exclude from the term

23 “surveillance” instances where communications are acquired but subsequently “minimized,”

24 despite the broader legal definition of “electronic surveillance” under applicable law. See, e.g., 50

25 U.S.C. § 1801(f). For example, the statement of White House press secretary Tony Snow displays

26 this irregular usage:

27

28 Case No. 08-CV-4373-JSW

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MR. SNOW: … the target in these conversations: a foreign individual not on U.S.

1

soil. If that person is talking to a U.S. citizen, it does not mean that you’re sitting

2

around doing surveillance on the U.S. citizen. Furthermore, if it is a --

Q But if you’re surveilling a phone call, you’re not just listening to the foreigner’s

3

side of the call, right?

4

MR. SNOW: Well, yes, but on the other hand, if -- you probably understand that if

5

somebody is just calling in and asking how his socks are at the dry cleaners, all of that personal information is combed out and, in fact, the U.S. citizen basically –

6

you’re not conducting surveillance.

7 White House Press Release, Press Briefing by Tony Snow at 2 (Aug. 8, 2007) [Vol. III, Ex. 59, p.

8 1606].

9

Similarly, the government’s definition of what it means to “collect” intelligence

10 information is notably narrow: under Department of Defense regulations, information is considered

11 to be “collected” only after it has been “received for use by an employee of a DoD intelligence

12 component,” and “[d]ata acquired by electronic means is ‘collected’ only when it has been

13 processed into intelligible form[,]” without regard to when the information was initially acquired

14 by a surveillance device. Dept. of Defense, DOD 5240 1-R, Procedures Governing the Activities of

15 DOD Intelligence Components that Affect United States Persons § C.2.2.1 at 15 (Dec. 1982) [Vol.

16 II, Ex. 24, p. 1070]. Consequently, the NSA could engage in electronic surveillance of

17 communications, within the meaning of FISA, without engaging in either “surveillance” or

18 “collection,” according to its own definitions.

19

Thus, when the government asserts that the NSA has not “indiscriminately collected the

20 content of millions of communications,” it does not mean that the content of millions of

21 communications have not been subject to electronic surveillance by the government: it means only

22 that the “content of millions of communications” have not been “processed into an intelligible

23 form” for human review.

24

C. Use of the Terms “Content,” “Conversations,” and “Communications”

25

The government also expressly defines “content” in the context of its brief and in the

26 Clapper and Fleisch Declarations in a narrow way. Gov’t Br. at 22 fn. 12; Clapper Decl. ¶ 23 n.1;

27 Fleisch Decl. ¶ 12 fn. 4. These documents define “content” to include only the “substance, meaning

28 Case No. 08-CV-4373-JSW

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1 or purport of a communication,” as defined in 18 U.S.C. §2510(8). However, for purposes of FISA, 2 the term “content” is defined to include: “any information concerning the identity of the parties to

3 such communication or the existence, substance, purport, or meaning of that communication.” 50

4 U.S.C. § 1801(n) (emphasis added).

5

For example, despite the broad definition of “content” used in FISA, the government

6 excludes all communications records (or “metadata”) from its definition of the term, as

7 demonstrated by this statement from DNI McConnell:

8

Mr. HOLT. Do you need to be able to conduct bulk collection of call detail records,

metadata for domestic-to-domestic phone calls by Americans?

9 Director MCCONNELL. Metadata, we think of it as not content but a process for

10

how you would find something you might be looking for. Think of it as a roadmap.

11 Sept. 20, 2007 McConnell Testimony at 80 (emphasis added) [Vol. IV, Ex. 98, p. 3209].

12

Moreover, for purposes of the claims in this case, “content” includes email subject lines and

13 URLs. See 18 U.S.C. § 2510(8); 50 U.S.C. § 1801(n). And the government has, in other contexts,

14 admitted that information like the “subject lines” of email and the URLs of web links are the

15 “content of communications.” Dept. of Justice, Computer Crime and Intellectual Property Section,

16 Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations,

17 Chapter 3 (2002)) (“[t]he subject headers of e-mails are also contents.”) [Vol. III, Ex. 62, p. 1631];

18 Dept. of Justice, U.S. Attorneys’ Manual 9-7.500 (2003) [Vol. III, Ex. 63, p. 1640] (prohibiting the

19 collection of URLs without prior consultation with DOJ to determine whether the URLs to be

20 collected will constitute content). Nevertheless, when describing the Program, the government

21 appears to exclude both subject lines and URLs from its definition of “content.” For example, Gen.

22 Hayden testified that “we do not use the content of communications to decide which

23 communications we want to study the content of.” Hayden Hearing at 50 [Vol. I, Ex. 2, p. 53].

24 However, in the next sentence, Hayden shows he was using a crabbed definition of “content” that

25 excludes the subject lines of email and the URLs of web links: “in other words, when we look at

26 the content of the communications, everything between ‘hello’ and ‘good bye’….” Id.

27

28 Case No. 08-CV-4373-JSW

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1

The government has also used the terms “conversations” and “communications” in ways

2 that obscure the Program’s scope. For example, in a January 2006 speech at the National Press

3 Club, Gen. Hayden, as the former Director of the NSA, attempted to downplay fears after the

4 Program’s initial disclosure by the New York Times. Hayden said:

5

Let me talk for a few minutes also about what this program is not. It is not a driftnet

over Dearborn or Lackawanna or Freemont grabbing conversations that we then sort

6

out by these alleged keyword searches or data-mining tools or other devices that so-

called experts keep talking about. 7

Remarks by Gen. Michael Hayden, Address to the National Press Club, Washington, D.C. (Jan. 23, 8

2006) [Vol. IV, Ex. 73, p. 1802]; see also Letter from William E. Moschella, Asst. Att’y Gen., U.S. 9

Dept. of Justice, to Sen. Arlen Specter, Chairman, S. Comm. on the Judiciary (Mar. 24, 2006) at 4 10

[Vol. III, Ex. 61, p. 1614] (response to Senator Leahy’s question 7). 11

Later, however, after the May 11, 2006 USA Today story brought the government’s creation 12

of a vast database of domestic calls to the attention of the American public, see Section II(B)(2), 13

supra at 19-24, Hayden had to explain how the creation of a vast database of Americans’ calls 14

could not constitute a “drift net” of communications. Hayden backtracked from his 2006 remarks, 15

testifying: 16

[A]t key points, key points in my remarks, I pointedly and consciously downshifted

17

the language I was using.

18

When I was talking about a drift net over Lackawanna or Freemont or other cities, I

switched from the word “communications” to the much more specific and

19

unarguably accurate conversation.

20 Hayden Hearing at 50 [Vol. I, Ex. 2, p. 53]; but see Gorman, NSA’s Domestic Spying Grows As

21 Agency Sweeps Up Data at 4-5 (quoting Hayden’s January 2006 remarks and then noting that

22 “intelligence officials now say the broader NSA effort amounts to a driftnet”) [Vol. IV, Ex. 95, p.

23 3026-27].

24

D. The Government’s Assertions of Harm to National Security are Inconsistent

With Its Actions 25

26

Throughout this litigation and the related MDL the government has asserted that the

27 revelation of certain information would “cause exceptionally grave harm to national security.” See,

28 Case No. 08-CV-4373-JSW

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1 e.g, Gov’t Br. at 2:2-3. However, the record shows instances in which the government claimed

2 harm to national security, yet later disclosed the very same in this litigation and in the broader

3 public debate.

4

For example, on May 24, 2007, the government asserted that:

5

Plaintiffs in these cases put directly at issue whether or not the NSA has conducted

particular intelligence activities and whether or not it has done so with the secret

6

help of a private entity. The disclosure of any information that would tend to

confirm or deny these allegations . . . would cause exceptionally grave harm to the

7

national security.

8 Public Declaration of J. Michael McConnell, Dir. of Nat’l Intelligence, No M:06-CV-1791 (May

9 24, 2007), ¶ 13 (Dkt. # 254-3) [Vol. IV, Ex. 77, p. 2531] (emphasis added). Likewise, in August

10 2007, the government stated that revealing even the “type of company” who assisted the

11 government would result in “potentially grave harm to national security.” Government’s Response

12 to Pls.’ Req. for Judicial Notice, Hepting v. AT&T, 06-CV-17132 at 5-6 [Vol. III, Ex. 64, p. 1651-

13 52].

14

Nevertheless, the government later freely disclosed both that the private sector helped with

15 the Program and that the providers of that assistance were telecommunications companies. See

16 Section II(C), supra at 25-29; see also Sept. 20, 2007 McConnell Testimony at 13 [Vol. IV, Ex. 98,

17 p. 3142] (“It is important to keep in mind that the Intelligence Community often needs the

18 assistance of the private sector.”); White House Press Release, Straight To The Point (Feb. 28,

19 2008) [Vol. IV, Ex. 100, p. 3244] (“You cannot expect phone companies to participate if they feel

20 like they’re going to be sued.”); White House Press Release, Statement by the Press Secretary on

21 FISA (Feb. 25, 2008) [Vol. II, Ex. 28, p. 1136] (“[T]he cooperation of private entities in our

22 intelligence operations is not ancillary – it is integral to our operations and critically essential.”);

23 White House Press Release, Press Briefing by Dana Perino (Feb. 12, 2008) [Vol. III, Ex. 32, p.

24 1192]; White House Press Release, Transcript of Background Briefing by Senior Administration

25 Officials on FISA at 2 (Feb. 26, 2008) [Vol. II, Ex. 15, p. 721].

26

Likewise, in then-DNI McConnell’s May 25, 2007, declaration in Shubert v. Bush, the

27 government asserted that “grave harm” would result from the disclosure of “[i]nformation that may

28 Case No. 08-CV-4373-JSW

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1 tend to confirm or deny whether Verizon/MCI, AT&T, or any other telecommunications carrier has 2 assisted the NSA with the alleged intelligence activities.” Public Declaration of J. Michael

3 McConnell, Dir. of Nat’l Intelligence, Shubert v. Bush, 07-CV-693 (May 24, 2007), ¶¶ 11c, 13

4 (Dkt. # 295-3) [Vol. IV, Ex. 78, p. 2550] (emphasis added). However, the Attorney General’s later

5 September 2008 certification in the MDL actions then denied that Verizon/MCI, AT&T, or any 6 other telecommunications carrier has assisted the NSA with the alleged content dragnet. Public 7 Certification of Att’y Gen. of the United States Michael Mukasey, In re NSA Telecomm. Records

8 Litigation, MDL Case No. M:06-1791-VRW (Dec. 2, 2008) (Dkt. # 469-3), at 5:16-19 [Vol. III,

9 Ex. 40, p. 1286].

10

Similar to the current arguments presented by the government in this case, in moving to

11 dismiss the Verizon plaintiffs’ case in 2007, the government argued “Plaintiffs’ content

12 surveillance claim in this case (as in Hepting) boils down to an unfounded and highly speculative

13 allegation that they do not believe that the President authorized only a limited surveillance program

14 directed at certain al Qaeda-related international communications.” Motion to Dismiss the Verizon 15 Master Consolidated Complaint, In re NSA Telecomm. Records Litigation, MDL Case No. M0616 1791-VRW (N.D. Cal. 2007) (Dkt. # 254), at 3 [Vol. IV, Ex. 77, p. 2470]. Proving whether or not

17 the President authorized more, the government asserted, would cause “grave harm.” Id.

18

Nevertheless, the first page of OIG PSP Report makes clear that the President authorized

19 “several different intelligence activities.” OIG PSP Report at 1 [Vol. III, Ex. 33, p. 1197]; see also

20 Letter from J. Michael McConnell, Dir. of Nat’l Intelligence, to Sen. Arlen Specter, Ranking

21 Member, S. Comm. on the Judiciary (July 31, 2007) [Vol. IV, Ex. 93, p. 3014] (admitting that the

22 President authorized more than a limited surveillance program directed at certain al Qaeda-related

23 international communications).

24

The government also states that even “[t]he process of sorting out whether any allegation is

25 true, party true, or wholly false, would . . . cause exceptionally grave damage to national security.”

26 Gov’t Mot. at 24:15-19 (citing Fleisch Decl. ¶ 4; Clapper Decl. ¶ 3). Yet, in testimony before

27 Congress earlier this year, when describing the capabilities of the NSA within the United States,

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1 NSA Director General Alexander denied many of Plaintiffs’ allegations. In a colloquy with Rep. 2 Hank Johnson concerning the interception of Internet communications, General Alexander

3 described those capabilities, stating:

4

General ALEXANDER. The question is where are the e-mails, and where is NSA’s

coverage? I assume by your question that those e-mails are in the United States.

5 Mr. JOHNSON. Correct.

6

General ALEXANDER. NSA does not have the ability to [target emails based on

7

their content] in the United States. . . . We don’t have the technical insights in the

United States. In other words, you have to have something to intercept or some way

8

of doing that either by going to a service provider with a warrant, or you have to be

collecting in that area. We are not authorized to collect. Nor do we have the

9

equipment in the United States to actually collect that kind of information. . . .

10

Mr. JOHNSON. . . . NSA has software that, quote, “searches U.S. sources for

targeted addresses, locations, countries, and phone numbers, as well as watchlisted

11

names, key words, and phrases in e-mail[”]. . . . Is this true?

12

General ALEXANDER. No, it is not. . . .

13

Mr. JOHNSON. Does the NSA intercept Americans’ cell phone conversations?

14

General ALEXANDER. No.

15

Mr. JOHNSON. Google searches?

16

General ALEXANDER. No.

17 Fiscal Year 2013 Budget Request for Information Technology and Cyber Operations Programs,

18 Hearing before the House Armed Services Comm., Subcomm. on Emerging Threats and

19 Capabilities, 112th Cong. at 20 (March 20, 2012) [Vol. V, Ex. 103, p. 3505-06] (testimony of Gen.

20 Keith Alexander, Dir. of Nat’l Security Agency). As General Alexander’s testimony before

21 Congress demonstrates, the discussion of NSA’s domestic surveillance capabilities and the limits

22 of those capabilities does not threaten harm to national security.

23

Similarly, a 300-page Department of Justice Office of Inspector General report described in

24 exhaustive detail the FBI’s use of so-called “exigent letters” to obtain call record information from

25 telecommunication companies. Dept. of Justice, Office of the Inspector Gen., A Review of the

26 Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for

27 Telephone Records at 9 (Jan. 2010) [Vol. VI, Ex. 112, p. 4324]. The FBI used these letters –

28 Case No. 08-CV-4373-JSW

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1 instead of National Security Letters, grand jury subpoenas, or other legal process – to obtain call 2 records from three major telecommunication firms on subscribers and their “community of

3 interest” or “calling circle”. Id. at 64 – 78 [pp. 4379-93]. Thus, as the OIG’s exigent letter report

4 demonstrates, national security concerns do not preclude all discussion of an intelligence agency’s

5 procurement of call records without legal process. Moreover, multiple in-depth, substantive 6 analyses concerning the full scope of the Program have occurred without disclosure of classified 7 information. See Oversight of the Department of Justice: Hearing before the S. Comm. on the

8 Judiciary, 110th Cong. at 67 (July 24, 2007) [Vol. III, Ex. 45, p. 1446] (noting that, when

9 discussing the Program in John Ashcroft’s hospital room, “General Ashcroft did virtually all of the 10 talking, and he did all the talking with respect to the legal issues . . . I don’t believe that he 11 disclosed classified information in the hospital room.”); see generally OIG PSP Report [Vol III,

12 Ex. 33].

13 V. CONCLUSION

14

Plaintiffs respectfully request that the Court consider this Summary of Voluminous

15 Evidence pursuant to Rule 1006, including evidence previously submitted and the new evidence

16 submitted with the accompanying Declaration of Kurt Opsahl. This summary is offered to aid the

17 Court by bringing together a summary of Plaintiffs’ relevant evidence that the Court may consider

18 at this stage of the litigation.

19 DATE: October 9, 2012 20 21 22 23 24 25 26 27

Respectfully submitted,
s/ Richard R. Wiebe
CINDY COHN LEE TIEN KURT OPSAHL JAMES S. TYRE MARK RUMOLD ELECTRONIC FRONTIER FOUNDATION
RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE
THOMAS E. MOORE III THE MOORE LAW GROUP

28 Case No. 08-CV-4373-JSW

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1

RACHAEL E. MENY

PAULA L. BLIZZARD

2

MICHAEL S. KWUN

AUDREY WALTON-HADLOCK

3

KEKER & VAN NEST LLP

4

ARAM ANTARAMIAN

LAW OFFICE OF ARAM ANTARAMIAN 5

Attorneys for Plaintiffs 6

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28 Case No. 08-CV-4373-JSW

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 1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

United States District Court For the Northern District of California

9 CAROLYN JEWEL, TASH HEPTING, GREGORY No C 08-cv-4373 VRW HICKS, ERIK KNUTZEN AND JOICE WALTON,
10 ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
11 Plaintiffs,
12 v
13 NATIONAL SECURITY AGENCY ET AL,
14 Defendants.
15

16 IN RE:
17 NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS
18 LITIGATION

MDL Docket No C 06-1791 VRW Member case No C 07-0693 VRW

19 THIS DOCUMENT RELATES TO:
20 VIRGINIA SHUBERT, NOHA ARAFA, SARAH DRANOFF AND HILARY BOTEIN,
21 INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
22 Plaintiffs,
23 v
24 BARACK H OBAMA ET AL,
25 Defendants.
26

ORDER

27

/

28

United States District Court For the Northern District of California

1

The order filed in these two cases on January 21, 2010

2 (Doc #57 in No C 08-cv-4373 VRW; Doc #703 in MDL No C 06-1791 VRW;

3 and Doc #46 in No 07-0693 VRW) is hereby amended as follows: the

4 word “six” on page 4 line 4 is replaced with the word “five.”

5

6

IT IS SO ORDERED.

7

8

9

VAUGHN R WALKER

United States District Chief Judge 10

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CAROLYN JEWEL; TASH HEPTING;



GREGORY HICKS; ERIK KNUTZEN;

JOICE WALTON, on behalf of

themselves and all others similarly

situated,

Plaintiffs-Appellants,

v.

NATIONAL SECURITY AGENCY; KEITH

B. ALEXANDER, Director, in his

official and personal capacities;

MICHAEL V. H AYDEN, in his

personal capacity; U NITED

STATES OF AMERICA; GEORGE W.

 BUSH, President of the United
States, in his official and personal

capacities; RICHARD B. C HENEY, in

his personal capacity; D AVID S.

ADDINGTON, in his personal

capacity; DEPARTMENT OF JUSTICE;

ALBERTO R. G ONZALES, in his

personal capacity; J OHN D.

ASHCROFT, in his personal

capacity; JOHN M. M CCONNELL,

Director of National Intelligence,

in his official and personal

capacities; JOHN D. N EGROPONTE in

his personal capacity; M ICHAEL B.

MUKASEY, Attorney General;

BARACK HUSSEIN OBAMA;



21601

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21602

JEWEL v. N ATIONAL SECURITY AGENCY

ERIC H. H OLDER JR., Attorney



General; DENNIS C. B LAIR,

 Defendants-Appellees,



No. 10-15616 D.C. Nos.
3:08-cv-04373VRW
M:06-cv-01791VRW

VIRGINIA SHUBERT; NOHA ARAFA;



SARAH DRANOFF; HILARY BOTEIN,

individually and on behalf of all

others similarly situated,

Plaintiffs-Appellants,

v.



GEORGE W. B USH; MICHAEL V.

HAYDEN; KEITH B. A LEXANDER;

ALBERTO R. G ONZALES; JOHN

ASHCROFT; UNITED STATES OF

AMERICA,

 Defendants-Appellees.

No. 10-15638 D.C. Nos.
3:07-cv-00693VRW
M:06-cv-01791VRW
OPINION

Appeal from the United States District Court for the Northern District of California
Vaughn R. Walker, District Judge, Presiding
Argued and Submitted August 31, 2011—Seattle, Washington
Filed December 29, 2011
Before: Harry Pregerson, Michael Daly Hawkins, and M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown

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JEWEL v. N ATIONAL SECURITY AGENCY

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COUNSEL
Cindy Cohn, Lee Tien, Kurt Opsahl, Kevin S. Bankston, James S. Tyre, ELECTRONIC FRONTIER FOUNDATION,

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San Francisco, California, for the plaintiff-appellant; Rachael E. Meny, Paula L. Blizzard, Michael S. Kwun, Audrey Walton-Hadlock, KEKER & VAN NEST LLP, for the plaintiff-appellant [ 10-15616 ].

Matthew D. Brinckerhoff, Ilann Margalit Maazel, Adam R.

Pulver, EMERY CELLI BRINCKERHOFF & ABADY LLP,

New York, New York, for the plaintiff-appellant. [

10-

15638 ].

H. Thomas Byron, III, DOJ – U.S. Department of Justice, Washington, District of Columbia, for the defendant-appellee. [ 10-15616 and 10-15638 ].

OPINION
McKEOWN, Circuit Judge:
This case is one of many arising from claims that the federal government, with the assistance of major telecommunications companies, engaged in widespread warrantless eavesdropping in the United States following the September 11, 2001, attacks. At issue in this appeal is whether Carolyn Jewel and other residential telephone customers (collectively “Jewel”) have standing to bring their statutory and constitutional claims against the government for what they describe as a communications dragnet of ordinary American citizens.
In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, internet and electronic communications, we conclude that Jewel’s claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury. Nor do prudential considerations bar this action. Although there has been considerable debate and legislative activity surrounding the surveillance program, the claims do not raise a political ques-

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tion nor are they inappropriate for judicial resolution. Finally, we do not impose, as suggested by the government, a heightened standing requirement simply because the case involves government officials in the national security context. We reverse the district court’s dismissal on standing grounds and remand for further proceedings. We leave for the district court to consider in the first instance the government’s alternative argument that Jewel’s claims are foreclosed by the state secrets privilege.

BACKGROUND

I. COMPLAINT

Jewel filed this putative class action “on behalf of [herself] and a class of similarly situated persons ”: “ordinary Americans who are current or former subscribers to AT&T’s telephone and/or Internet services. ” At this stage, our inquiry focuses on Jewel and the allegations as they pertain to her. Stearns v. Ticketmaster Corp. , 655 F.3d 1013, 1021 (9th Cir. 2011). Jewel sued federal government agencies and government officers in their official and personal capacities. She did not name any telecommunications companies as defendants. 1 Jewel alleged that the “[c]ommunications of Plaintiffs and class members have been and continue to be illegally acquired by Defendants using surveillance devices attached to AT&T’s network.” She claimed that these actions violated the First and Fourth Amendments, the constitutional doctrine of separation of powers, and a variety of statutes—the Foreign Intelligence Surveillance Act ( “FISA”), 50 U.S.C. §§ 1801 et seq., the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 2510 et seq., the Stored Communications Act ( “SCA”), 18 U.S.C. §§ 2710 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. The complaint requested both equitable and monetary relief.

1A number of the other multidistrict litigation ( “MDL”) suits name one or more of the telecommunications companies as defendants. See, e.g., Hepting v. AT&T, No. 09-16676 (9th Cir. Dec. 29, 2011).

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According to the complaint, on October 4, 2001, President Bush and other government defendants issued a secret presidential order that authorized warrantless surveillance within the United States. Jewel asserted that she was specifically affected because AT&T, in collaboration with the National Security Agency ( “NSA”), diverted all of her internet traffic into “SG3 Secure Rooms” in AT&T facilities across the country, including AT&T’s Folsom Street facility in San Francisco, “and information of interest [was] transmitted from the equipment in the SG3 Secure Rooms to the NSA based on rules programmed by the NSA. ” Jewel’s complaint focused on AT&T, its San Francisco facility, and the SG3 Secure Rooms.

Jewel further alleged that the governmental defendants operated a “dragnet collection” of communications records by “continuously solicit[ing] and obtain[ing] the disclosure of all information in AT&T’s major databases of stored telephone and Internet records.” These records “concern[ ] communications to which Plaintiffs and class members were a party.” For example, Jewel claims that,

[u]sing [a] shadow network of surveillance devices, Defendants have acquired and continue to acquire the content of a significant portion of phone calls, emails, instant messages, text messages, web communications and other communications, both international and domestic, of practically every American who uses the phone system or the Internet, including Plaintiffs and class members, in an unprecedented suspicionless general search through the nation’s communications network.

The complaint goes on to allege that defendants were directly involved in the schemes, which were “directly performed, and/or aided, abetted, counseled, commanded, induced, or procured, by Defendants.”

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JEWEL v. N ATIONAL SECURITY AGENCY II. THE DISTRICT COURT’S DECISION

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The government defendants moved to dismiss and alternatively sought summary judgment as to all claims. They argued that the court lacked jurisdiction over Jewel’s statutory claims because the government did not waive its sovereign immunity. The government sought summary judgment on the remaining claims “because information necessary to litigate plaintiffs’ claims is properly subject to and excluded from use in the case by the state secrets privilege and related statutory privileges.” Although not argued by the government or briefed by the parties, the district court granted the motion to dismiss because Jewel lacked standing to bring her claims. 2 The district court dismissed the claims with prejudice and without leave to amend. 3

2The district court dismissed Jewel’s action together with a similar action filed by Virginia Shubert. Shubert’s action was consolidated with other wiretapping cases in August 2006 in the Northern District of California under the MDL provisions of 28 U.S.C. § 1407. Jewel’s case was originally filed in the Northern District of California, but was not part of the MDL consolidation. The procedural histories of the Jewel and Shubert actions are not identical, but the district court considered the cases together for purposes of standing.
3The allegations in the Shubert complaint diverge significantly from those in the Jewel complaint, primarily because of their lack of specificity. These deficiencies might well have been ameliorated through an amended complaint. However, the district court sua sponte dismissed the complaint on standing grounds, without leave to amend. Although the district court properly considered standing of its own accord, this dismissal was problematic “because [plaintiffs] only learned that the district court would not allow them an opportunity to remedy any perceived defects in the complaint after . . . the district court summarily signed and entered [its order of dismissal].” Manzarek v. St. Paul Fire & Marine Ins. Co. , 519 F.3d 1025, 1034 (9th Cir. 2008). The district court erred in denying Shubert leave to amend. “Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.” Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc. , 368 F.3d 1053, 1061 (9th Cir. 2004).

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The district court carefully reviewed the complicated procedural history, both of the MDL wiretapping cases generally and the motions at issue in this case specifically. The district court held that Jewel failed to make out prima facie allegations necessary to establish that she was an “aggrieved person” under the FISA. The court acknowledged that Jewel’s complaint included specific allegations that the NSA used AT&T’s Folsom Street facility, but found that “[the] complaint contains no other allegations specifically linking any of the plaintiffs to the alleged surveillance activities, ” and therefore held that Jewel lacked standing. We disagree.

ANALYSIS

The central issue on appeal is whether Jewel has standing to sue the government defendants, a question of law that we review de novo. Bernhardt v. Cnty. of Los Angeles , 279 F.3d 862, 867 (9th Cir. 2002). “Because the district court sua sponte dismissed [the] complaint on its face, ” we “review . . . standing as if raised in a motion to dismiss. When reviewing motions to dismiss, [the court] must accept all factual allegations of the complaint as true and draw all reasonable inferences in favor of the nonmoving party.” Id. (internal quotation marks and citation omitted). General factual allegations of injury resulting from the defendant’s conduct may suffice, as we “presum[e] that general allegations embrace those specific facts that are necessary to support the claim. ” Lujan v. Nat’l Wildlife Fed. (“Nat’l Wildlife Fed. ”), 497 U.S. 871, 889 (1990). Because this appeal arises from dismissal under Federal Rule of Civil Procedure 12(b)(6), Jewel’s allegations are accepted as true. 4

4At the motion to dismiss stage, we do not consider the merits of Jewel’s claims. For example, the district court’s determination that Jewel was not an “Aggrieved Person” under the FISA or a qualified plaintiff under the other statutes is a merits determination, not a threshold standing question. Statutory “standing, unlike constitutional standing, is not jurisdictional.” Noel v. Hall, 568 F.3d 743, 748 (9th Cir. 2009). The question

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JEWEL v. N ATIONAL SECURITY AGENCY I. PRINCIPLES OF STANDING

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[1] Standing doctrine is well established: “Article III . . . gives the federal courts jurisdiction over only ‘cases and controversies.”’ Whitmore v. Arkansas , 495 U.S. 149, 154-55 (1990). The oft-cited Lujan v. Defenders of Wildlife (“Lujan”) restates the three requirements that must be met for Article III standing: (1) an injury in fact that (2) is fairly traceable to the challenged conduct and (3) has some likelihood of redressability. 504 U.S. 555, 560-61 (1992). Here, the district court determined that this action was “in essence [a] citizen sui[t] seeking to employ judicial remedies to punish and bring to heel high-level government officials,” and that “neither group of plaintiffs/purported class representatives has alleged an injury that is sufficiently particular to those plaintiffs or to a distinct group.” The district court’s decision was based entirely on the first prong of Lujan. Although that requirement is the focus of our analysis, our de novo review also considers the other two prongs.

[2] “[T]he standing question in [this] case is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff’s position a right to judicial relief. ” Warth v. Seldin, 422 U.S. 490, 500 (1975). The answer here is yes.

whether a plaintiff states a claim for relief typically relates to the merits of a case, not to the dispute’s justiciability, and conflation of the two concepts often causes confusion. See Bond v. United States , 131 S. Ct. 2355, 2362 (2011); see also Steel Co. v. Citizens for Better Env’t. , 523 U.S. 83, 89 (1998) (“It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate the case.” (emphasis in original)).

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II. JEWEL HAS CONSTITUTIONAL STANDING TO SUE

A. JEWEL ALLEGED CONCRETE AND PARTICULARIZED INJURY

To satisfy the “injury in fact ” requirement, Jewel must assert a grievance that is both “concrete and particularized. ” Lujan, 504 U.S. at 560 (citations omitted). We consider each of these requirements in turn, and conclude that Jewel has satisfied them both.

[3] As to Jewel’s statutory claims, the Supreme Court instructs that a concrete “injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing. ” Lujan, 504 U.S. at 578 (internal quotation marks, citation, and alteration omitted). Jewel asserts claims under three surveillance statutes—the ECPA, FISA and SCA—and adds an umbrella claim under the APA.

[4] Both the ECPA and the FISA prohibit electronic interception of communications absent compliance with statutory procedures. The SCA likewise prohibits the government from obtaining certain communication records. Each statute explicitly creates a private right of action for claims of illegal surveillance. See 18 U.S.C. § 2520 (the ECPA provides a cause of action to “any person whose . . . communication is intercepted, disclosed, or intentionally used”); 50 U.S.C. § 1801(k) (the FISA provides that “[a]n aggrieved person . . . who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation ”); 18 U.S.C. § 2707(a) (the SCA provides that “any provider of electronic communication service, subscriber, or other person aggrieved by any violation of this chapter” may maintain a civil action if the violation was done knowingly or intentionally).

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[5] In a similar vein, with respect to her constitutional claim, Jewel alleges a concrete claim of invasion of a personal constitutional right—the First Amendment right of association and the Fourth Amendment right to be free from unreasonable searches and seizures. Just last term, the Supreme Court confirmed an individual’s right to challenge the legality of Executive Branch conduct on separation-of-powers grounds, Jewel’s third constitutional claim: “[I]ndividuals sustain discrete, justiciable injury from actions that transgress separation-of-powers limitations. Separation-of-powers principles are intended, in part, to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Constitution’s concern. The structural principles secured by the separation of powers protect the individual as well. ” Bond, 131 S. Ct. at 2365.

[6] Satisfied that Jewel sufficiently alleged concrete injury, we turn now to the more difficult question, whether the rights asserted are sufficiently particularized. The breadth of Jewel’s allegations calls into question whether she has a particularized grievance or instead one that “is held in common by all members of the public, ” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220 (1974), and thus necessarily an abstract interest shared by all citizens. The critical question is whether she “has alleged such a personal stake in the outcome of the controversy as to warrant . . . invocation of federalcourt jurisdiction.” Summers v. Earth Island Inst. , 555 U.S. 488, 493 (2009) (internal quotation marks omitted).

[7] The Supreme Court observed in Federal Election Commission v. Akins that, “[w]hether styled as a constitutional or prudential limit on standing, the Court has sometimes determined that where large numbers of Americans suffer alike, the political process, rather than the judicial process, may provide the more appropriate remedy for a widely shared grievance.” 524 U.S. 11, 23 (1998). But the fact that a harm is widely shared does not necessarily render it a generalized

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grievance. In Akins, the Court gave context to the notion of a generalized grievance, explaining that petitioners lack standing “in cases where the harm at issue is not only widely shared, but is also of an abstract and indefinite nature—for example, harm to the ‘common concern for obedience of law.’ ” 524 U.S. at 23 (quoting L. Singer & Sons v. Union Pac. R.R. Co., 311 U.S. 295, 303 (1940)); see also Lujan, 504 U.S. at 573-74 ( “We have consistently held that a plaintiff raising only a generally available grievance about government —claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws . . . does not state an Article III case or controversy. ”). The Court in Akins continued “[o]ften the fact that an interest is abstract and the fact that it is widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though widely shared, the Court has found ‘injury in fact. ”’ 524 U.S. at 24. As examples of widely shared but concrete injuries the Court listed “a widespread mass tort ” or “where large numbers of voters suffer interference with voting rights conferred by law.” Id. Indeed, “it does not matter how many persons have been injured by the challenged action so long as ‘the party bringing suit . . . show[s] that the action injures him in a concrete and personal way.’ ” Massachusetts v. EPA , 549 U.S. 497, 517 (2007) (quoting Lujan, 504 U.S. at 581) (Kennedy, J., concurring in part and concurring in the judgment).

We recently considered the prerequisites for a “sufficiently concrete and specific injury” in Newdow v. Lefevre, an Establishment Clause challenge to the inscription “In God We Trust” on coins and currency. 598 F.3d 638 (9th Cir. 2010), cert. denied 131 S. Ct. 1612 (2011). We held that Newdow met the standing requirement. The fact that his “encounters with the motto are common to all Americans does not defeat his standing, because Newdow has alleged a concrete, particularized, and personal injury resulting from his frequent, unwelcome contact with the motto. ” Id. at 642. This case illustrates that even though the experience at the root of Newdow’s complaint was shared by virtually every American, this

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widespread impact was not dispositive of standing because his grievance was nonetheless concrete and particular.

[8] Following the rationale of Akins and Newdow, we conclude that Jewel alleged a sufficiently concrete and particularized injury. Jewel’s allegations are highly specific and lay out concrete harms arising from the warrantless searches. Jewel described these actions as a “dragnet” and alleged that “[t]his network of Surveillance Configurations ”—“the technical means used to receive the diverted communications ”— “indiscriminately acquired domestic communications as well as international and foreign communications. ” Specifically, Jewel alleged that “[t]hrough this network of Surveillance Configurations and/or other means, Defendants have acquired and continue to acquire the contents of domestic and international wire and/or electronic communications sent and/or received by Plaintiffs and class members. ” In addition to capturing internet traffic, “Defendants and AT&T acquire all or most long-distance domestic and international phone calls to or from AT&T long distance customers, including both the content of those calls and dialing, routing, addressing and/or signaling information pertaining to those calls. ”

[9] The complaint also described in detail the particular electronic communications equipment used ( “4ESS switch” and “WorldNet Internet Room”) at the particular AT&T facility (Folsom Street, San Francisco) where Jewel’s personal and private communications were allegedly intercepted in “a secret room known as the ‘SG3 Secure Room.’ ” Accepting Jewel’s allegations as true, she has pled more than the minimum “general factual allegations ” required to survive dismissal. Bernhardt, 279 F.3d at 867. The court need “not pass upon abstract, intellectual problems, but [can] adjudicate concrete, living contests between adversaries.” Akins, 524 U.S. at 20 (internal quotation marks and alteration omitted). Akins establishes that, where the injury is sufficiently concrete and specific, “that it is widely shared does not deprive Congress

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of constitutional power to authorize its vindication in the federal courts.” 524 U.S. at 25.

Significantly, Jewel alleged with particularity that her communications were part of the dragnet. The complaint focused on AT&T and was not a scattershot incorporation of all major telecommunications companies or a blanket policy challenge. Jewel’s complaint also honed in on AT&T’s Folsom Street facility, through which all of Jewel’s communications allegedly passed and were captured.

Our decision is consistent with the approach in other circuits. The Second Circuit recently determined, after conducting a detailed analysis, that plaintiffs in a similar suit had standing to challenge provisions of the FISA. Amnesty Int’l United States v. Clapper , 638 F.3d 118, 122 (2d Cir. 2011). Amnesty International involved a facial challenge to § 702 of the FISA in which the plaintiffs’ alleged injuries were “fear that the government will intercept their sensitive international communications” and the costs associated with efforts to avoid such anticipated injuries. Id. at 133. Jewel has much stronger allegations of concrete and particularized injury than did the plaintiffs in Amnesty International. Whereas they anticipated or projected future government conduct, Jewel’s complaint alleges past incidents of actual government interception of her electronic communications, a claim we accept as true.5

5The government’s position in Amnesty International appears to be in tension with its argument here. There, the government “argue[d] that the plaintiffs can obtain standing only by showing either that they have been monitored or that it is ‘effectively certain’ that they will be monitored. ” Id. at 135. Shifting its position, the government argues here that Jewel lacks standing even if her communications were in fact captured and monitored. The government does not deny Jewel’s allegations but sidesteps the issue, asserting that “plaintiffs offer nothing other than bare speculation for their assertion that any surveillance is ongoing outside of [FISA Court] authorizations.” That approach conflates the ultimate merits question— whether the surveillance exceeded statutory or constitutional authority— with the threshold standing determination.

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[10] Jewel’s case stands in contrast to two other cases, where our sister circuits held that plaintiffs lacked standing. In United Presbyterian Church v. Reagan , the D.C. Circuit confronted a “generalized challenge” to “the constitutionality of the entire national intelligence-gathering system, ” not the alleged actual impact of a specific program or protocol on the plaintiff. 738 F.2d 1375, 1381 (D.C. Cir. 1984) (internal quotation marks omitted). Jewel’s complaint does not suffer from vague “chilling effect” allegations like those in United Presbyterian nor does it fall in the category of speculative harm. Id. at 1380. While specificity does not necessarily trump speculation, the detail and specificity here are sufficient to support a particularized claim.

Similarly distinguishable is the Sixth Circuit’s denial of standing to challenge the entire NSA wiretapping program. ACLU v. NSA , 493 F.3d 644, 648 (6th Cir. 2007). Although the court reversed on standing grounds, it considered a fullydeveloped summary judgment record. Arguably that case is of “no relevance here,” because our case “involve[s] not a Rule 56 motion for summary judgment but a Rule 12(b) motion to dismiss on the pleadings. ” Nat’l Wildlife Fed. , 497 U.S. at 889. The ACLU plaintiffs—attorneys and other professionals whose communications with overseas individuals were allegedly impacted—were unable to “produce any evidence that any of their own communications have ever been intercepted.” ACLU, 493 F.3d at 653. The court thus faulted them for “assert[ing] a mere belief ” that the NSA eavesdropped on their communications without warrants. Id. This failure of proof doomed standing. Ultimately Jewel may face similar procedural, evidentiary and substantive barriers as the plaintiffs in ACLU, but, at this initial pleading stage, the allegations are deemed true and are presumed to “embrace the ‘specific facts’ needed to sustain the complaint. ” Lujan, 497 U.S. at 888; see also Bennett v. Spear , 520 U.S. 154, 168 (1997) (noting in its discussion of standing, “at the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss

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we presume that general allegations embrace those specific facts that are necessary to support the claim. ”).

B. JEWEL’S ALLEGATIONS MEET THE SECOND AND THIRD PRONGS OF THE TEST FOR CONSTITUTIONAL STANDING

[11] The harms Jewel alleges are “fairly traceable to the challenged action” of the NSA. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976). It is no secret that in the weeks after the attacks of September 11, 2001, President Bush authorized the NSA to engage in warrantless wiretapping. The President admitted as much: “I authorized a terrorist surveillance program to detect and intercept al Qaeda communications involving someone here in the United States.” President George W. Bush, Speech at the National Security Agency (Jan. 25, 2006) available at http://georgewbushwhitehouse.archives.gov/news/releases/2006/01/200601251.html. Thus, the harms Jewel alleges—invasion of privacy and violation of statutory protections—can be directly linked to this acknowledged surveillance program.

[12] Jewel easily meets the third prong of the standing requirement. There is no real question about redressability. Jewel seeks an injunction and damages, either of which is an available remedy should Jewel prevail on the merits.

C. JEWEL SATISFIES THE PRUDENTIAL REQUIREMENTS FOR STANDING

The heart of the district court’s opinion and the core of the government’s argument on appeal focuses on prudential standing concerns, namely the broad nature of the claims and the role of the courts in addressing intelligence and surveillance issues. It is true, according to the Court in Akins, that the concern about generalized grievances can be characterized as both a constitutional and prudential concern, as there is overlap in the analysis. 524 U.S. at 23. We are satisfied that

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our analysis of this issue as a constitutional standing requirement applies with equal force in the prudential arena.

[13] After labeling Jewel’s claim as an effort “to redress alleged malfeasance by the executive branch, ” the district court stated that “the political process, rather than the judicial process,” may be the appropriate avenue. There is little doubt that Jewel challenges conduct that strikes at the heart of a major public controversy involving national security and surveillance. And we understand the government’s concern that national security issues require sensitivity. That being said, although the claims arise from political conduct and in a context that has been highly politicized, they present straightforward claims of statutory and constitutional rights, not political questions. See Japan Whaling Ass’n v. Am. Cetacean Soc. , 478 U.S. 221, 230 (1986).

The district court’s suggestion that Congress rather than the courts is the preferred forum ignores two important points: To begin, Congress already addressed the issue and spelled out a private right of action in the FISA, ECPA and SCA. And, in 2008, “[p]artially in response to the[ ] [wiretapping] suits, Congress held hearings and ultimately passed legislation that provided retroactive immunity to the companies . . . but expressly left intact potential claims against the government. ” Hepting, slip op. at 21573.

[14] Focusing on the federal statutory causes of action, the prudential analysis is simplified: “prudential standing is satisfied when the injury asserted by a plaintiff arguably falls within the zone of interests to be protected or regulated by the statute.” Akins, 524 U.S. at 20 (internal citations, quotation marks and alterations omitted). In the surveillance statutes, by granting a judicial avenue of relief, Congress specifically envisioned plaintiffs challenging government surveillance under this statutory constellation. Jewel’s statutory claims undoubtedly allege harms “within the zone of interests to be

Case:C1a0s-e135:60186-cv-01423/2793/-2J0S1W1 DIoDc:u8m0e1n4t77650 FilDedkt0E1n/1tr2y/:1627-1PageP1a8geo:f 1189 of 19

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JEWEL v. N ATIONAL SECURITY AGENCY

protected or regulated by the statute[s], ” alleviating any prudential standing concerns. Id.

[15] The district court effectively imposed a heightened standard for consideration of Jewel’s constitutional claims. See Jewel v. NSA , 2010 U.S. Dist. LEXIS 5110 at *24-25. According to the district court, the reluctance to adjudicate constitutional questions is heightened “when, as here, the constitutional issues at stake in the litigation seek judicial involvement in the affairs of the executive branch and national security concerns appear to undergird the challenged actions.” Jewel v. NSA, 2010 U.S. Dist. LEXIS 5110 at *25. The court went on to hold that “[i]n such cases, only plaintiffs with strong and persuasive claims to Article III standing may proceed.” Id. (emphasis added). This determination was in error. The district court quoted Schlesinger for the proposition that “when a Court is asked to undertake constitutional adjudication, the most important and delicate of its responsibilities, the requirement of concrete injury further serves the function of insuring that such adjudication does not take place unnecessarily.” 418 U.S. at 221. It bears emphasis that the Supreme Court offered that observation in rejecting “citizen standing,” a significantly different scenario than here. Id. at 216-21. Plaintiffs in Schlesinger, who challenged congressional military reserve membership, claimed an interest in “compel[ling] the Executive Branch to act in conformity with the Incompatability Clause, an interest shared by all citizens.”6 Id. at 217 (emphasis added).

[16] In the sentence that follows the passage quoted by the district court, the Supreme Court explained that “concrete injury removes from the realm of speculation whether there is a real need to exercise power of judicial review in order to

6The Incompatability Clause provides that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States . . . . ” U.S. Const. art. I, § 6, cl. 2.

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JEWEL v. N ATIONAL SECURITY AGENCY

21621

protect the interests of the complaining party. ” 418 U.S. at 221. In short, Schlesinger does not stand for the proposition that there is a stronger, more “persuasive” standing for constitutional questions in national security cases. It represents, instead, an articulation of the basic requirement of concrete injury and the rule against generalized grievances. Article III imposes no heightened standing requirement for the often difficult cases that involve constitutional claims against the executive involving surveillance. See Amnesty Int’l , 638 F.3d at 149 (“We do not see any reason why the law of standing should be stricter or different in the surveillance context. ”). To be sure, prudential concerns may weigh against standing in certain cases affecting national security interests, but the national security context does not, in itself, erect a new or separate prudential bar to standing.

CONCLUSION

We REVERSE the district court’s dismissal of Jewel’s complaint on the ground that she lacked standing. We REMAND with instructions to consider, among other claims and defenses, whether the government’s assertion that the state secrets privilege bars this litigation. We REVERSE the district court’s dismissal of Shubert’s complaint with prejudice and without leave to amend and REMAND with instructions to grant Shubert leave to amend her complaint.

 
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1 CINDY COHN (SBN 145997)

RACHAEL E. MENY (SBN 178514)

cindy@eff.org 2 LEE TIEN (SBN 148216)

rmeny@kvn.com PAULA L. BLIZZARD (SBN 207920)

3 KURT OPSAHL (SBN 191303) JAMES S. TYRE (SBN 083117)

MICHAEL S. KWUN (SBN 198945) AUDREY WALTON-HADLOCK (SBN 250574)

4 MARK RUMOLD (SBN 279060)

BENJAMIN W. BERKOWITZ (SBN 244441)

ANDREW CROCKER (SBN 291596) 5 DAVID GREENE (SBN 160107)

JUSTINA K. SESSIONS (SBN 270914) KEKER & VAN NEST, LLP

ELECTRONIC FRONTIER FOUNDATION 633 Battery Street

6 815 Eddy Street

San Francisco, CA 94111

7 San Francisco, CA 94109

Telephone: 415/391-5400; Fax: 415/397-7188

Telephone: 415/436-9333; Fax: 415/436-9993

8

THOMAS E. MOORE III (SBN 115107)

RICHARD R. WIEBE (SBN 121156) 9 wiebe@pacbell.net

tmoore@rroyselaw.com ROYSE LAW FIRM, PC

10

LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900

1717 Embarcadero Road Palo Alto, CA 94303

11 San Francisco, CA 94111

Telephone: 650/813-9700; Fax: 650/813-9777

Telephone: 415/433-3200; Fax: 415/433-6382

12

ARAM ANTARAMIAN (SBN 239070)

aram@eff.org

13

LAW OFFICE OF ARAM ANTARAMIAN

1714 Blake Street

14

Berkeley, CA 94703

Tel.: 510/289-1626

15 Counsel for Plaintiffs

16

UNITED STATES DISTRICT COURT

17

FOR THE NORTHERN DISTRICT OF CALIFORNIA

18

OAKLAND DIVISION

19

) Case No.: 4:08-cv-4373-JSW

CAROLYN JEWEL, TASH HEPTING,

)

20 YOUNG BOON HICKS, as executrix of the )

21

estate of GREGORY HICKS, ERIK KNUTZEN ) and JOICE WALTON, on behalf of themselves )

PLAINTIFFS BRIEF RE: THE GOVERNMENT’S NON-COMPLIANCE

and all others similarly situated, 22
Plaintiffs,

) ) )

WITH THE COURT’S EVIDENCE PRESERVATION ORDERS

23 v.
24

) ) )

Courtroom 5, 2nd Floor The Honorable Jeffrey S. White

NATIONAL SECURITY AGENCY, et al., 25

) )

[HEARING DATE REQUESTED]

26

Defendants.

)

27

28

Case No. 08-cv-4373-JSW PLAINTIFFS BRIEF RE: THE GOVERNMENT’S NON-COMPLIANCE WITH THE COURT’S EVIDENCE PRESERVATION ORDERS

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1

TABLE OF CONTENTS

2

I.	   INTRODUCTION .................................................................................................................... 1	  

3

II.	   BACKGROUND..................................................................................................................... 3	  

4

A.	   The Government Has Had an Obligation to Preserve Evidence Since 2006. .................. 3	  

5

1.	   The Government’s Preservation Obligation in Hepting v. AT&T and the

6

Multi-District Litigation............................................................................................. 3	  

7

2.	   The Government’s Preservation Obligation in Jewel v. NSA. ................................... 5	  

8

B.	   Plaintiffs’ Discovery of the Government’s Evidence Destruction and Secret

Reinterpretation of Their Complaint. ............................................................................... 6	   9

10

C.	   Chronology of Events ...................................................................................................... 6	  

11

III.	   ARGUMENT ......................................................................................................................... 8	  

12

A.	   The Government Has Breached Its Evidence Preservation Duties. ................................. 9	  

13

B.	   Plaintiffs’ Complaint Attacks the Government’s Mass Surveillance Activities. ........... 10	  

14

C.	   The Government Failed to Give Plaintiffs Or the Court Fair Notice of its

Radically Limited View of its Preservation Duties........................................................ 14	   15

1.	   Plaintiffs Contested the Government’s Single Public Assertion of Its

16

Narrow Interpretation of Plaintiffs’ Complaint........................................................ 15	  

17

2.	   The Government’s Now-Declassified Secret Statements Acknowledge

18

That Plaintiffs’ Claims Extend to Mass Surveillance Conducted Under

Color of FISC Orders. .............................................................................................. 15	  

19

D.	   The Government Has Ignored Multiple Opportunities to Clarify the Scope of

20

Plaintiffs’ Claims. ............................................................................................................ 8	  

21

E.	   The FISC’s Orders Governing the Government’s Retention of Data Do Not

22

Justify the Government’s Spoliation. ............................................................................. 18	  

23

F.	   The Government Has Spoliated Evidence. .................................................................... 19	  

24

G.	   An Adverse Inference Against Defendants is Necessary and Appropriate.................... 20	  

25 IV.	   CONCLUSION.................................................................................................................... 21	  

26

27

28

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1

TABLE OF AUTHORITIES

2

Federal Cases

3 Aiello v. Kroger Co.,

4

No. 2:08–cv–01729–HDM–RJJ, 2010 WL 3522259 (D. Nev. Sept. 1, 2010) .....................21

5 Akiona v. United States,

938 F.2d 158 (9th Cir.1991)..................................................................................................19

6

Alvarez v. Hill,

7

518 F.3d 1152 (9th Cir. 2008)...............................................................................................11

8 Apple Inc. v. Samsung Electronics Co., Ltd.,

9

888 F. Supp. 2d 976 (ND Cal. 2012) ..............................................................................20, 21

10 Cont’l Cas. Co. v. St. Paul Surplus Lines Ins. Co., 265 F.R.D. 510 (E.D. Cal. 2010) ..........................................................................................21

11 Disability Rights Counsel of Greater Washington v. Washington Metro. Transit Authority,

12

242 F.R.D. 139 (D.D.C. 2007)................................................................................................9

13 Doe v. Norwalk Cmty. Coll.,

14

248 F.R.D. 372 (D. Conn. 2007).............................................................................................9

15 Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., No. 06-cv-3359 JF (RS), 2009 WL 1949124 (N.D. Cal. July 2, 2009) ................................21

16 E.E.O.C. v. Fry’s Electronics, Inc.,

17

874 F. Supp. 2d 1042 (W.D. Wa. 2012) ...............................................................................19

18 Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197 (2007) .....................................................................................11
19

20

First Unitarian Church of Los Angeles v. NSA, No. 3:13-cv-03287 JSW (N.D. Cal. Filed Mar. 10, 2014) ................................................3, 11

21 Glover v. BIC Corp.,

22

6 F.3d 1318 (9th Cir.1993)....................................................................................................19

23 Grabinski v. National Union Fire Ins. Co. of Pittsburgh, 265 Fed.Appx. 633 (9th Cir. 2008) .......................................................................................11
24

Hepting v. AT&T,

25

No. 06-cv-0672-VRW (N.D. Cal. Jan. 30, 2006) ..........................................................passim

26 Herson v. City of Richmond,

27

No. C 09–02516 PJH (LB), 2011 WL 3516162 (N.D. Cal. Aug. 11, 2011).........................21

28

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In re Napster,

1

462 F. Supp. 2d 1060 (N.D. Cal. 2006) ................................................................................21

2 In Re: National Security Agency Telecommunications Records Litigation,

3

MDL No. 06-cv-1791-VRW (N.D. Cal. Filed May 30, 2006) .................................3, 4, 9, 14

4 Io Grp. Inc. v. GLBT Ltd.,

No. 10-cv-1282 MMC (DMR), 2011 WL 4974337 (N.D. Cal. Oct. 19, 2011) ....................21

5

Jewel v. NSA,

6

965 F. Supp. 2d 1090 (N.D. Cal. 2013) ................................................................................13

7 Leon v. IDX Systems Corp.,

8

464 F.3d 951 (9th Cir. 2006).................................................................................................19

9 Lewis v. Ryan, 261 F.R.D. 513 (S.D. Cal. 2009)...........................................................................................20

10 Med. Lab. Mgmt. Consultants v. Am. Broad. Cos.,

11

306 F.3d 806 (9th Cir. 2002).................................................................................................19

12 Pauls v. Green,

13

816 F. Supp. 2d 961 (D. Idaho 2011)....................................................................................20

14 Shubert, et al., v. George W. Bush, et al., No. 07-cv-0603-JSW (N.D. Cal. filed Feb. 2, 2007) ..............................................................4

15 Starr v. Baca,

16

652 F.3d 1202 (9th Cir. 2011) (en banc)...............................................................................11

17 Unigard v. Lakewood, 982 F.2d 363 (9th Cir.1992)..................................................................................................19
18

19

United States v. Kitsap Physicians Serv., 314 F.3d 995 (9th Cir. 2002)...........................................................................................19, 20

20 Zubulake v. UBS Warburg, LLC,

21

220 F.R.D. 212 (S.D.N.Y. 2003) ..........................................................................................19

22

Federal Statutes

23 50 U.S.C. § 1806(f) .............................................................................................................................2

24 50 U.S.C. § 1806(h) ............................................................................................................................2 25

26

27

28

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Federal Rules 1
Federal Rules of Civil Procedure 8 ...................................................................................................11 2 3 Federal Rules of Civil Procedure 26 ...................................................................................................5
4 Fedeeral Rules of Civil Procedure 37 ...........................................................................................9, 19

5 Federal Rules of Civil Procedure 45 ...................................................................................................5

6 Federal Rules of Civil Procedure 56 ...................................................................................................5

7

Constitutional Provisions

8 U.S. Const., amend. I ........................................................................................................................18

9 U.S. Const., amend. IV .....................................................................................................2, 12, 13, 18

10 U.S. Const., amend. V.......................................................................................................................18
11 U.S. Const., art. II ...............................................................................................................................1
12
Other Authorities 13

14

Department of Defense, et al., Offices of Inspector Gen., Unclassified Report on the President’s Surveillance Program (July 10, 2009) ....................................................................................4

15 Letter from Att’y Gen. Alberto Gonzalez to Sen. Patrick Leahy (Aug. 1, 2007) ................................4
16

17

18

19

20

21

22

23

24

25

26

27

28

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1 I. INTRODUCTION

2

There is now no doubt that the government defendants have destroyed evidence relevant to

3 plaintiffs’ claims. This case concerns the government’s mass seizure of three kinds of information:

4 Internet and telephone content, telephone records and Internet records. The government’s own

5 declarations make clear that the government has destroyed three years of the telephone records it

6 seized between 2006 and 2009; five years of the content it seized between 2007 and 2012; and

7 seven years of the Internet records it seized between 2004 and 2011, when it claims to have ended

8 those seizures.

9

By destroying this evidence, the government has hindered plaintiffs’ ability to prove with

10 governmental evidence that their individual communications and records were collected as part of

11 the mass surveillance, something the government has vigorously insisted that they must do, even as

12 a threshold matter. Although plaintiffs dispute that the showing the government seeks is required,

13 the government’s destruction of the best evidence that plaintiffs could use to make such a showing

14 is particularly outrageous.

15

The government destroyed this evidence (by its own account) because it determined that it

16 was not pertinent to this case, a conclusion it reached only by ignoring the parameters of plaintiffs’

17 complaint and substituting its own, narrower view. Despite the plain language of the complaint, the

18 government assumed that plaintiffs were not challenging the government’s ongoing mass

19 surveillance. Instead, the government assumed that plaintiffs were challenging only the

20 government’s past behavior, when it conducted mass surveillance based solely on a claim of

21 executive authority under Article II of the Constitution. The government ignored what plaintiffs

22 have very publicly sought since 2006 – a judicial determination of the constitutionality and legality

23 of mass spying, plus an injunction to stop it, among other relief. On that flimsy basis, the

24 government decided that it need not preserve for the litigation the information it amassed via its

25 mass Internet seizures after 2004; via its mass telephone records seizures after 2006; and via its

26 mass content seizures after January 2007.

27

If the government defendants had any good-faith uncertainty during the past eight years

28 about the scope of plaintiffs’ claims, and thus the scope of defendants’ evidence preservation

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1 obligations, they could easily have obtained clarification long before today. They could have done

2 what litigants do every day when a discovery issue arises: ask opposing counsel. They also could 3 have sought the Court’s express approval to limit or modify the Court’s existing evidence

4 preservation orders, presenting some information in a classified declaration to the extent they felt

5 secrecy was needed. Had they done so, the present situation could have easily been avoided and the

6 evidence preserved. But they did not. Instead, the government submitted a handful of secret

7 statements to this Court referring to its dramatically narrowed, unilateral reading of the complaint – 8 none of which the Court ever acknowledged, much less agreed to – and made a few indirect

9 references in a couple of public filings that were ostensibly about other matters.

10

Regardless of what the government now says it secretly believed in 2006 or 2008 about the

11 scope of plaintiffs’ complaint, however, the government’s tortured interpretation of the complaint

12 should have persisted no later than 2010, when plaintiffs directly explained their views. In briefing

13 to the Ninth Circuit, after the government openly asserted its unilaterally narrowed view of the

14 claims, plaintiffs responded as follows:

15

The government defendants’ assertion that “plaintiffs do not challenge surveillance

authorized by the FISA Court” (Govt. Defs. Br. at 7) misconceives both plaintiffs’

16

complaint and the role of the district court under sections 1806(f) and 1806(h).

Plaintiffs allege and challenge an untargeted mass surveillance program that violates

17

statutory and constitutional limits on electronic surveillance. To the extent that the

18

Government suggests that there are FISC court orders purporting to authorize the

surveillance that plaintiffs allege, no such hypothetical FISC orders could satisfy the

19

requirements of FISA or the Fourth Amendment.

20 Plaintiff-Appellants Ninth Circuit Reply Br. Case No. 10:15616, at 24 n.9 (ECF No. 39-1).1 In

21 spite of plaintiffs’ explanation, and without seeking any further clarification or approval, the

22 government continued to destroy records of its mass surveillance.

23

This is spoliation of evidence. A litigant has a clear legal duty to preserve evidence relevant

24 to the facts of a case pending consideration by the court, and that duty requires preservation of all

25 relevant evidence, defined as anything that is likely to lead to the discovery of admissible evidence.

26

27 1 In 2010, of course, plaintiffs had no idea that the government was acting on its unfounded interpretation of their complaint by destroying evidence.
28

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1 This duty is subject only to practical considerations, none of which the government has ever raised.

2 Any private litigant who engaged in this behavior would be rightly sanctioned by the court; indeed

3 many have been severely sanctioned for failure to preserve evidence in far less egregious

4 circumstances.

5

This court has the power to order a broad range of remedies for spoliation, up to and

6 including terminating sanctions. Plaintiffs here seek more modest relief: that the government be

7 subject to an adverse inference that the destroyed evidence would have shown that the government

8 has collected plaintiffs’ communications and communications records. Plaintiffs also request that

9 the Court set a prompt hearing date on this matter in order to halt any ongoing destruction.

10 II. BACKGROUND

11

A. The Government Has Had an Obligation to Preserve Evidence Since 2006.

12

As plaintiffs outlined in their motion for a temporary restraining order (“TRO”) in

13 March 2014, litigation challenging the lawfulness of the government’s mass seizure of telephone

14 records (also referred to in various places as “call detail records” or “telephone metadata” or “BR

15 metadata”), Internet metadata, and Internet and telephone content has been pending in the Northern

16 District of California continuously since 2006. See, e.g., First Unitarian Church of Los Angeles v.

17 NSA, No. 3:13-cv-03287 JSW (“First Unitarian Church”), ECF No. 186 at 2 (N.D. Cal. Filed

18 Mar. 10, 2014).

19

1. The Government’s Preservation Obligation in Hepting v. AT&T and the

Multi-District Litigation. 20
The first case giving rise to this preservation obligation was Hepting v. AT&T, No. 06-cv-

21 0672-VRW (N.D. Cal.), filed on January 30, 2006 by four of the five plaintiffs who later filed

22 Jewel v. NSA. In May 2006, the government intervened as a defendant. Hepting, ECF No. 122.

23 Hepting became the lead case in the MDL proceeding in this district, In Re: National Security

24 Agency Telecommunications Records Litigation, MDL No. 06-cv-1791-VRW (“MDL”) (N.D. Cal.

25 Filed May 30, 2006). On November 6, 2007, after plaintiffs brought a motion for an evidence

26 preservation order, this court rejected the government’s position that none was necessary, and

27

28

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1 entered a formal preservation order. MDL ECF No. 393.2 One of the MDL cases, Virginia Shubert,

2 et al., v. George W. Bush, et al., No. 07-cv-0603-JSW (N.D. Cal.), is still pending today before this 3 Court, and the MDL preservation order remains in effect today.

4

As part of its opposition to the plaintiffs’ motion seeking a preservation order, the

5 government asked that this Court agree that its informal, very limited preservation effort was

6 “ample and appropriate,” such that no preservation order was required. Defs. Resp. to Pl. Opening 7 Br. re: Evidence Preservation, Jewel ECF No. 193, Ex. B at 1.3 As part of its classified response 8 papers, the government submitted to the Court two documents where it stated that the mass

9 surveillance was covered in part by orders of the FISC. Id., Exs. A and B. Needless to say,

10 plaintiffs were unaware of the contents of the classified papers in 2007 and were also unaware of

11 the subject matter of any FISC orders at that date.

12

This Court did not agree that the existence of the FISC orders meant that the ongoing

13 surveillance activities fell outside the scope of the complaint. The Court also rejected the

14 government’s argument that no preservation order was required and imposed a broad order with

15 operative language—“reasonably anticipated to be” and “may be” relevant—almost identical to the

16 plaintiffs’ proposed order. MDL ECF No. 393.

17

The government now emphasizes that Judge Walker added the words “to the extent

18 practicable for the pendency of this order” to the proposed order submitted by plaintiffs, but those

19 words do not narrow the substantive scope of the government’s preservation obligation. Gov’t

20
2 The MDL Preservation Order was most recently filed as Exhibit C to the Declaration of Cindy 21 Cohn in Support of TRO, ECF No. 186-1. 22 3 This document was originally filed in the MDL in 2007 but since it was classified, it is not
available on the public docket in that case. In it, the government only promised to preserve

23 evidence related to the “Terrorist Surveillance Program,” or TSP, an undefined term created by the government to retroactively describe the small segment of its surveillance activities that it publicly

24 admitted in December 2005. See Letter from Att’y Gen. Alberto Gonzalez to Sen. Patrick Leahy

(Aug. 1, 2007) [Summary of Evidence Vol. V, Ex. 102, p. 3481] (emphasis added); see also 25 Department of Defense, et al., Offices of Inspector Gen., Unclassified Report on the President’s

26 Surveillance Program (July 10, 2009) at 1 (“OIG PSP Report”) [Summary of Evidence (Jewel ECF No. 113) Vol. III, Ex. 33, p. 1197]. Of course, as has become clear, the label “TSP” was never used

27 to refer to the mass surveillance plaintiffs allege, so had the court agreed, the government would not have preserved any evidence related to its mass surveillance activities.
28

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1 Defs. Resp. to Pl. Opening Br. re: Evidence Preservation 9:15-20, ECF No. 193 (“Gov’t Br.”). The 2 government has never argued that preservation of evidence seized as part of its ongoing 3 surveillance after the FISC orders would be impracticable—only that it was not required.

4

2. The Government’s Preservation Obligation in Jewel v. NSA.

5

On September 18, 2008, plaintiffs filed this case, Jewel v. NSA, and this Court related it to

6 Hepting shortly thereafter. With the agreement of the parties, this Court entered an evidence

7 preservation order in Jewel on November 13, 2009 that is substantively the same as the MDL 8 preservation order. ECF No. 51.4 The Jewel evidence preservation order also remains in effect

9 today.

10

Like the MDL order, the Jewel order requires the preservation obligation to be “interpreted

11 broadly to accomplish the goal of maintaining the integrity of all documents, data and tangible

12 things reasonably anticipated to be subject to discovery under FRCP 26, 45 and 56(e) in this

13 action.” Id. at ¶ C (emphasis added). Thus, the focus of the preservation duty is not on what the

14 party possessing the evidence thinks is relevant, but on what an opposing party may seek in

15 discovery, “interpreted broadly.” The order further requires counsel to inquire about destruction

16 practices of their clients and either “halt” such practices or “arrange for the preservation of

17 complete and accurate duplicates or copies of such material, suitable for later discovery if

18 requested.” Id. at ¶ 3.

19

When the Jewel order was being negotiated in 2009, the government never expressed its

20 current narrow views about the scope of the complaint or its preservation duties. The government

21 never sought clarification from this Court and never informed plaintiffs that it believed their

22 complaint only addressed surveillance conducted solely under claims of executive authority—all of 23 which had ended by 2007, before Jewel was even filed.5 Plaintiffs could not have raised these

24 issues themselves, because at this point plaintiffs did not know that the government was relying

25

26 4 The Jewel Preservation Orders was most recently filed as Exhibits D to the Declaration of Cindy Cohn in Support of TRO, ECF No. 186-1.
27 5 Surveillance conducted solely under purported executive authority ended in 2004, 2006, and 2007
(for the respective types of surveillance at issue). Jewel was filed in 2008.
28

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1 upon FISC orders for the mass surveillance and knew only that some kind of FISC order was put

2 into place in early 2007.

3

B. Plaintiffs’ Discovery of the Government’s Evidence Destruction and Secret

Reinterpretation of Their Complaint.

4 Plaintiffs only discovered that the government had destroyed relevant evidence in this case

5 through happenstance. Plaintiffs learned that something was amiss after the government filed a

6 motion in the FISC in which it affirmatively represented that it was not subject to any civil

7 preservation orders with respect to the call detail records it had collected and failed specifically to

8 mention this case at all. Plaintiffs then alerted the FISC to this case and the existing preservation

9 order and also sought emergency relief from this Court. It was not until after this Court granted that

10 relief and ordered further declassification review that the government revealed it had destroyed the

11 records. 6

12 C. Chronology of Events
13 For ease of reference, the basic chronology is as follows:
14

15 1/31/2006 5/12/2006
16

Hepting complaint filed.
-NSA Director Lt. General Alexander declares that Hepting “Plaintiffs, in fact, have put at issue activities that have been considered and approved by the FISC.”

-DNI Negroponte declares that “this case implicates . . . certain activities that

17

have been specifically authorized by the FISC.”

18 4/20/2007
19 11/6/2007
20

DNI McConnell declares this case “implicates” surveillance conducted by the FISC.
Court enters an evidence preservation order in Hepting, rejecting government’s position that no order is necessary.

21 2007 22 9/18/2008

Government begins destruction of Internet meta-data relevant to the Hepting claims (or continues destruction of the data).
Jewel complaint filed.

23 2008 24

Government begins destruction of telephone records relevant to the Hepting and Jewel claims.

25

26 6 Notably, the government’s first response to this issue, when plaintiffs requested clarification about why this case had not been brought to the attention of the FISC, was to urge plaintiffs not to

27 raise their concerns either with this Court or with the FISC. Declaration of Cindy Cohn in Support of TRO, First Unitarian Church, ECF No. 186-1, Ex. E (March 10, 2014).
28

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1 2008
2 11/13/2009 3
2009 4 5 2009
6 2009 7
2010 8
9 12/6/2010
10
11 2011
12 2011
13 14 9/11/2012
15
16 2012 17 18 12/20/2013
19
20
21 2013
22

Government destroys an additional year’s worth of Internet meta-data relevant to the Hepting and Jewel claims.
Court enters an evidence preservation order in Jewel.
Government begins destruction of content records relevant to the Hepting and Jewel claims.
Government destroys an additional year’s worth of Internet meta-data relevant to the Hepting and Jewel claims.
Government completes destruction of three years of telephone records collected between 2006 and 2009, relevant to the Hepting and Jewel claims.
Government destroys an additional year's worth of Internet metadata and content records relevant to the Hepting and Jewel claims.
Jewel Plaintiffs file a Ninth Circuit brief disputing the government’s assertion that “plaintiffs do not challenge surveillance authorized by the FISA Court” and explaining that it misconceives the Jewel complaint.
Government completes destruction of seven year’s worth of Internet metadata, relevant to the Hepting and Jewel claims.
Government destroys an additional year’s worth of content records relevant to the Hepting and Jewel claims.
-DNI Clapper declares that plaintiffs’ allegations include the activities authorized by the FISC. -NSA Executive Director Fleisch says plaintiffs’ complaint puts at issue all three NSA activities later transitioned to FISC authority.
Government destroys an additional year’s worth of content records relevant to the Hepting and Jewel claims.
-DNI Clapper declares that FISA approved interception “may relate to or be necessary to adjudicate plaintiffs’ allegations” and references the need to protect “the identities of any carriers that continue to participate in the program today.” -NSA Executive Director Fleisch declares that plaintiffs seek relief in this litigation that would prohibit such collection activities even though they were later transitioned to FISC and remain so.
Government destroys an additional year’s worth of content records relevant to the Hepting and Jewel claims.

23

24

25

26

27

28

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III. ARGUMENT 1
As noted above, for the entire lifetime of this now six-year-old litigation the government

2 has been routinely destroying the information it has illegally seized, preserving only the records it

3 seized in the past under its executive authority theory (not information seized under color of orders

4 of the FISC) and those that it keeps for its own purposes. Specifically, this appears to mean that at

5 least the following evidence has been destroyed:

6 1) Telephone records: The government destroyed approximately three years of

7 telephone records it seized between 2006 and 2009. The first FISC order addressing

8 these records was issued in May 2006, so records seized prior to that date were

9 seized under claims of executive authority alone, and should have been preserved

10 even under the government’s narrow view of plaintiffs’ claims. Ms. Shea has

11 declared that the government destroyed telephone records sometime in 2009.

12 Declassified Shea Decl. at ¶ 33, ECF. No. 228.

13 2) Content: The government has apparently destroyed five years of content it collected

14 via fiber optic cables between January 2007 and 2012, except for some unknown

15 amount that it retains for its own purposes pursuant to its regular retention

16 procedures. Declassified Shea Decl. at ¶¶ 35-38, ECF No. 228 (discussing

17 transitions in legal authority for content collection and noting that under current

18

procedures most “upstream” content is retained for two years).7

19 3) Internet metadata: The government has destroyed seven years of Internet metadata

20 it seized, between 2004 and 2011. The first FISC order addressing this data was

21 entered in 2004, and the government has admitted that it destroyed all other Internet

22

metadata it had seized on December 7, 2011. Fleisch Decl. n.32, ECF No. 227.8

23 The government has failed to justify any of this destruction of evidence, conducted without

24 the Court’s approval and without plaintiffs’ knowledge. The record does not support the

25

26 7 The Shea Declaration indicates that there is currently a five-year retention period for the contents of “telephony and certain [non-“upstream”] Internet communications.” Declassified Shea Decl. at

27 ¶¶ 35-38, ECF No. 228. 8 These timeframes are also summarized in the Fleisch Decl. at ¶ 43, ECF No. 227.
28

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1 government’s self-serving arguments that the evidence it destroyed was not relevant to plaintiffs’

2 claims. Nothing the government said in any of its secret filings, or what it might have said 3 extremely obliquely in its public filings, supports this unilateral decision to destroy relevant

4 evidence.

5

A. The Government Has Breached Its Evidence Preservation Duties.

6

The modern duty to preserve evidence arises from common law prohibitions against

7 spoliation of evidence and is incorporated into the Federal Rules of Civil Procedure. See Fed. R. 8 Civ. P. Rule 37(e); Disability Rights Counsel of Greater Washington v. Washington Metro. Transit

9 Authority, 242 F.R.D. 139, 147-48 (D.D.C. 2007) (compelling production of the defendant’s

10 backup tapes containing electronically stored information where the defendant did not suspend its

11 routine e-mail deletion process, leaving only the backup tapes, which the defendant then argued

12 were not reasonably accessible); Doe v. Norwalk Cmty. Coll., 248 F.R.D. 372, 378 (D. Conn. 2007)

13 (determining that the defendant’s failure to suspend its destruction of electronic documents at any

14 time after receiving notification of the litigation did not satisfy the good faith requirement of

15 Rule 37(f)). The government agrees that its duty under the common law was to preserve “relevant”

16 evidence, which includes all “information that relates to the claims or defenses of any party, and

17 that which is reasonably calculated to lead to the discovery of admissible evidence.” Gov’t Br. at

18 13:3-12, citations omitted.

19

The government also acknowledges that the Jewel preservation order imposed an express

20 preservation mandate, extending the earlier mandate that had issued in the MDL. The Jewel 21 preservation order’s mandate is a standard one: that the government preserve “all documents, data

22 and tangible things reasonably anticipated to be subject to discovery.” Joint Mot. For Entry of

23 Order re: Preservation of Evidence 1 at ¶ C, ECF No. 51. In successfully obtaining the MDL

24 preservation order (over the government’s strenuous objections), plaintiffs made clear that they

25 sought preservation of, among other things, “information sufficient to establish which call records 26 belonging to which customers were turned over by which carriers at approximately which times.”

27 MDL, ECF No. 392.

28

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1

Moreover, in eight years of litigating these issues, the government has never claimed that its

2 evidence preservation obligation was impracticable, burdensome or disproportionate, and has thus 3 waived any such argument.

4

Instead, the government’s entire justification for destroying evidence is based on the

5 surveillance records’ purported lack of relevance to plaintiff’s claims. The government claims that

6 it had no obligation to preserve any evidence of surveillance conducted once any FISC order was in

7 place, because none of its seizures after the FISC orders could possibly be deemed “relevant,” 8 “related to the claims of plaintiffs,” or “reasonably calculated to lead to the discovery of admissible

9 evidence” in support of plaintiffs’ claims.

10

That claim is dead wrong. Indeed, given the history of this case and its predecessor, and the

11 government’s own arguments over the past eight years, it is astonishing.

12

B. Plaintiffs’ Complaint Attacks the Government’s Mass Surveillance Activities.

13

The complaint unequivocally arises from and challenges the government’s mass spying

14 activities (which plaintiffs have long established by independent evidence), regardless of the

15 purported authority under which those activities were conducted. That fact alone should end the

16 matter.

17

Plaintiffs’ claim here, plain and simple, is that the government’s mass surveillance violates

18 their rights and entitles them to relief. Any government assertion of authority to conduct the

19 surveillance, whether based on inherent presidential authority or the existence of a FISC order, is

20 simply an assertion of a defense, not an element of plaintiffs’ claim. Plaintiffs’ references to those 21 purported defenses in their Complaint do not limit the scope of plaintiffs’ claims only to mass

22 surveillance the government has chosen to conduct under color of presidential authority, nor do

23 they exempt the same mass surveillance from plaintiffs’ challenge if it is conducted under the color

24 of different, but equally defective, FISC authority. The government cites no authority holding

25 otherwise.

26

The standards for pleading in the Ninth Circuit require only that a complaint give the other

27 side notice of a claim: “[U]nder the federal rules a complaint is required only to give the notice of

28 the claim such that the opposing party may defend himself or herself effectively.” Starr v. Baca,

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1 652 F.3d 1202, 1212 (9th Cir. 2011) (en banc). To comply with the pleading requirements of Fed.

2 R. Civ. P. 8(a)(2), “[s]pecific facts are not necessary; the statement need only give the defendant 3 fair notice of what the . . . claim is and the grounds upon which it rests. ” Grabinski v. National

4 Union Fire Ins. Co. of Pittsburgh, 265 Fed.Appx. 633, 635 (9th Cir. 2008) (quoting Erickson v.

5 Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007)). “Notice pleading requires the plaintiff to set

6 forth in his complaint claims for relief, not causes of action, statutes or legal theories.” Alvarez v.

7 Hill, 518 F.3d 1152, 1157 (9th Cir. 2008) (italics in original).

8

The burden on the plaintiff in drafting a complaint is to indicate generally the scope of its

9 claims. By this standard, plaintiffs’ complaint here is more than sufficient to put the government on

10 notice that plaintiffs seek ongoing relief. The complaint does not support a reading that its scope

11 would be limited by the transition of the underlying legal position of the government. For example,

12 the Jewel complaint alleges: 9

13

2. This case challenges an illegal and unconstitutional program of dragnet

telecommunications surveillance conducted by the National Security Agency

14

(the “NSA”) and other defendants . . .

15

3. This program of dragnet surveillance (the “Program”) first authorized by

Executive Order of the President in October of 2001 and first revealed to the

16

public in December of 2005, continues to this day.

17

9. Using this shadow network of surveillance devices, Defendants have

acquired and continue to acquire the content of a significant portion of the

18

phone calls, emails, instant messages, text messages, web communications

19

and other communications, both international and domestic, of practically every American who uses the phone system or the Internet, including

20

Plaintiffs and class members, in an unprecedented suspicionless general

search through the nations communications networks.

21 10. . . . Defendants have unlawfully solicited and obtained from

22

telecommunications companies such as AT&T the complete and ongoing

disclosure of the private telephone and Internet transactional records of those

23

companies’ millions of customers (including communications records

24

pertaining to Plaintiffs and class members), communications records indicating who the customers communicated with, when and for how long,

25

among other sensitive information.

26

27 9 Note that the Jewel Complaint was most recently attached as Exhibit A to the Cohn Declaration in Support of the Temporary Restraining Order in First Unitarian Church. ECF No. 86-2.
28

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13. . . . Plaintiffs’ communications or activities have been and continue to be

1

subject to electronic surveillance.

2

14. Plaintiffs are suing Defendants to enjoin their unlawful acquisition of the

communications and records of Plaintiffs and class members, to require the

3

inventory and destruction of those that have already been seized and to

4

obtain appropriate statutory, actual and punitive damages to deter future

illegal surveillance.

5

82. Defendants have since October 2001 continuously solicited and obtained the

6

disclosure of all information in AT&T’s major databases of stored telephone

and Internet records, including up-to-the-minute updates to the databases

7

that are disclosed in or near real-time.

8

The broad scope of the claims is also clear from the specific causes of action. The Fourth

9 Amendment count is exemplary:

10

112. At all relevant times, Defendants committed, knew of and/or acquiesced in

all of the above-described acts, and failed to respect the Fourth Amendment

11

rights of Plaintiffs by obtaining judicial or other lawful authorization and

conforming their conduct to the requirements of the Fourth Amendment. 12

113. By the acts alleged herein, Defendants have violated Plaintiffs’ and class

13

members’ reasonable expectations of privacy and denied Plaintiffs and class

14

members their right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constitution of the United

15

States.

16

114. By the acts alleged herein, Defendants’ conduct has proximately caused harm to Plaintiffs and class members.

17 Plaintiffs sought, among other relief, an injunction “requiring Defendants to provide to Plaintiffs

18 and the class an inventory of their communications, records, or other information that was seized in

19 violation of the Fourth Amendment.” Jewel Complaint, Prayer for Relief. Hepting and Jewel relate

20 to the “substantially the same transactions and events” because they challenge the same

21 surveillance activities, regardless of the government’s legal positions seeking to justify those

22 activities. See, e.g., Gov’t Br. at 4:3-4.

23

In urging its cramped interpretation, the government cannot point to anything in the Jewel

24 complaint that limits Plaintiffs’ claims to collection done solely under presidential authority.

25 Instead, ignoring the allegations noted above, the government cherry-picks portions of the Jewel

26 complaint that reference lack of authority for the mass surveillance. The government points to

27 paragraphs 76, 92, 110, 120, 129, and 138 of the Jewel complaint, which allege defendants have

28

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1 acted “without judicial or other lawful authorization, probable cause, and/or individualized

2 suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and

3 constitutional authority.” Gov’t Br. at 15. This allegation merely states that the Government’s

4 conduct was illegal. It does not limit the scope of the surveillance to which plaintiffs object. And it

5 in no way undercuts the obvious conclusion that plaintiffs object to the mass surveillance per se, 6 regardless of any shifting legal theories under which the government conducts it.10 Nor is the

7 complaint limited by paragraph 7, which alleges that that the surveillance was indiscriminate, not

8 targeted; or by paragraph 39, which refers to the original authorization in 2001 based on executive

9 authority.

10

The government overreaches in trying to limit plaintiffs’ complaint. For example, the

11 government tries to use the fact that plaintiffs often characterize the surveillance as “warrantless”

12 as indicating that the complaint doesn’t reach surveillance conducted under the FISC. But this

13 characterization is absolutely true even as to the FISC-authorized surveillance. Whatever the legal

14 import of the FISC orders, they are unequivocally not full Fourth Amendment warrants, and the

15 surveillance conducted under them is “warrantless.” Thus, this court was exactly correct in July

16 2013 when it stated that Plaintiffs’ claim is “that the federal government . . . conducted widespread

17 warrantless dragnet communications surveillance of United States citizens following the attacks of

18 September 11, 2001.” Jewel v. NSA, 965 F. Supp. 2d 1090, 1097-98 (N.D. Cal. 2013); Gov’t Br. at

19

20 10 Indeed, the allegation does not even say what the government claims it says. Plaintiffs’

allegations are about the illegal and unconstitutional facts of mass spying, which encompass 21 surveillance whether or not under color of a FISC order. The first clause of this allegation alleges

22

defendants have acted “without judicial or other lawful authorization, probable cause, and/or individualized suspicion.” Any one of the three conditions suffices to satisfy the allegation, and it

23 is undisputed that none of the FISC orders upon which the Government relies for bulk collection of telephone records and Internet and telephone content are based on probable cause or individualized

24 suspicion. And, fairly read, only lawful judicial authorization is within the scope of the allegation;

unlawful judicial authorization, like the FISC orders purporting to authorize bulk collection of 25 telephone records under section 215, is not. The second and third clauses—“in violation of

26 statutory and constitutional limitations,” and “in excess of statutory and constitutional authority”— allege in the alternative that even if defendants are acting under color of judicial authorization, their

27 conduct is nonetheless in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority.
28

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1 3:1-3; see also 22:10-16 (quoting “warrantless surveillance” language in September 20, 2013 Joint

2 Case Management Statement at 33); see also 3:16-17 (noting that Hepting discussed “warrantless 3 surveillance”). The mass surveillance was warrantless in 2001; it remains warrantless today.

4

Likewise, the record does not support the government’s argument that plaintiffs implicitly

5 accepted the government’s narrow view of their claims, when plaintiffs supposedly “should have

6 known” about the other secret FISC orders in January 2007. At that point, the government publicly

7 admitted only that it had sought FISC approval for what it said were the limited activities it 8 retroactively called the TSP. Gov’t Br. at 16:1-17:8. Contrary to the government’s position, that

9 episode reaffirms plaintiffs’ claims about the scope of their complaint. In response to this 2007

10 disclosure, plaintiffs immediately, affirmatively (and correctly) informed the court that they did not

11 believe that this FISC decision about TSP reached, or legally could reach, the bulk collection they

12 alleged:

13

Earlier today, the government announced that it will seek authorization from the

FISA court for any future electronic surveillance of international communications

14

involving al Qaeda suspects as part of the “Terrorist Surveillance Program.” See

Letter from Attorney General Gonzales to Chairman Leahy and Senator Specter

15

(January 17, 2007) (MDL-1791 ECF No. 127, Ex. 1). This announcement is

16

irrelevant to Plaintiffs’ claim that the carriers are assisting the government in the

interception and electronic surveillance of all or most of the communications, both

17

domestic and international, that transit the carriers’ networks. Nor does the FISA

court have the statutory or constitutional authority to issue a general warrant

18

authorizing such dragnet surveillance of million of innocent Americans. Rather,

under FISA, a FISA court judge must find probable cause to believe that the

19

particular target of electronic surveillance is a foreign power or agent thereof before

20

authorizing that surveillance. See 50 U.S.C. § 1805(a)(3).

21 Opp. to Stay, MDL ECF No. 128 at 3-4 n.2 (Filed Jan., 17, 2007) (emphasis added). This statement

22 was correct and confirmed the breadth of plaintiffs’ claims.

23

C. The Government Failed to Give Plaintiffs Or the Court Fair Notice of its Radically Limited View of its Preservation Duties.

24

The government now urges the Court to accept its unilaterally narrowed interpretation of

25 plaintiffs’ complaint to justify its failure to preserve plainly relevant evidence. But the government

26 has known for years that plaintiffs dispute that narrow interpretation, and the government’s own

27

28

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1 secret statements to the Court since 2006 (now declassified) confirm that even the government

2 knew plaintiffs’ claims are broader than it now claims.

3

1. Plaintiffs Contested the Government’s Single Public Assertion of Its

Narrow Interpretation of Plaintiffs’ Complaint.

4 The only time that the government directly asserted the narrow interpretation of plaintiffs’

5 complaint that it now urges the Court to adopt was in the 2010 appeal in this case. As explained

6 above, in response to that assertion, plaintiffs expressly rejected the idea that the FISC orders

7 mooted their complaint. Specifically, plaintiffs stated: “Plaintiffs allege and challenge an

8 untargeted mass surveillance program that violates statutory and constitutional limits on electronic

9 surveillance. To the extent that the Government suggests that there are FISC court orders

10 purporting to authorize the surveillance that plaintiffs allege, no such hypothetical FISC orders

11 could satisfy the requirements of FISA or the Fourth Amendment.” Jewel v. NSA, Plaintiff-

12 Appellees’ Ninth Circuit Reply Brief at 24 n.9 (emphasis added). This, at a minimum, put the

13 government on clear notice of a potential dispute about the scope of its preservation duties. Yet the

14 government said nothing and continued its destruction efforts.

15

2. The Government’s Now-Declassified Secret Statements Acknowledge

16

That Plaintiffs’ Claims Extend to Mass Surveillance Conducted Under

Color of FISC Orders.

17 The government now claims that any information about its mass surveillance under color of

18 FISC orders was so far from being “relevant” to plaintiffs’ claims that it did not have a duty to

19 preserve that information. Yet at the same time, in multiple declarations asserting the state secrets

20 privilege over the last eight years, the government has informed this court that plaintiffs’ case “puts

21 at issue,” its FISC-approved activities, that FISC-approved surveillance information “may relate to

22 or be necessary to adjudicate plaintiffs claims,” or that the case “may implicate” its FISC-approved

23 activities. Both of these assertions cannot be true. The information cannot both be “put at issue” by,

24 “relate[d] to,” or “implicate[d]” by plaintiffs’ claims, and be so irrelevant that the government does

25 not even have to preserve it. And of course there is no reason, and no authority, for the government

26 to assert the privilege over material that it did not believe was relevant to the case. But that is

27 exactly what the government now claims to have done. For example:

28

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1

1) In May 2006, NSA Director Lt. General Alexander admits that “Plaintiffs, in fact,

2 have put at issue activities that have been considered and approved by the FISC,” ECF No. 224,

3 2006 Alexander Decl. at ¶ 3 (emphasis added). Alexander restates this admission in a section of his

4 declaration called “Meta Data Collection and Analysis,” noting that “The Plaintiffs’ Amended

5 Complaint in this case also puts at issue sources and methods for surveillance activities conducted

6 pursuant to orders of the Foreign Intelligence Surveillance Court.” 2006 Alexander Decl. at ¶ 37

7 (emphasis added).

8

2) In May 2006, Director of National Intelligence (“DNI”) Negroponte states: “this

9 case implicates several highly classified and critically important intelligence activities of the

10 National Security Agency . . . Such information includes . . . [redacted] including certain activities

11 that have been specifically authorized by the Foreign Intelligence Surveillance Court (“FISC”).”

12 ECF No. 222, Negroponte Decl. at ¶ 3. (emphasis added).

13

3) In April 2007, DNI Michael McConnell asserted: “this case implicates several

14 highly classified and critically important intelligence activities of the National Security Agency . . .

15 Specifically [redacted] (1) targeted content surveillance pursuant to the . . . recent orders of the

16 Foreign Intelligence Surveillance Court . . . (2) bulk collection and targeted analysis of non-content

17 information about telephone and Internet communications . . . that are now conducted pursuant to

18 FISC orders.” ECF No. 221, McConnell Decl. at ¶ 3 (emphasis added).

19

4) In September 2012, DNI Clapper asserted that plaintiffs’ allegations include the

20 activities authorized by the FISC, specifically referencing “current surveillance activities” and

21 FISC orders. ECF No. 172-7, 2012 Clapper Decl. at ¶ 57.

22

5) In September 2013, NSA Executive Director Frances Fleisch asserted that:

23 “Plaintiffs’ allegations put at issue all three NSA activities originally authorized by the President

24 after the 9/11 attacks and later transitioned to FISA authority.” ECF No. 172-8, Sept. Fleisch Decl.

25 at ¶ 6 (emphasis added).

26

6) In December 2013, DNI Clapper says: “further litigation would require the risk or

27 disclosure of information concerning . . . targeted content surveillance; . . . the bulk collection and

28 targeted analysis of non-content information about telephone and Internet communications . . . This

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1 lawsuit therefore implicates information concerning foreign intelligence-gathering activities.” ECF

2 No. 220, 2013 Clapper Decl. at ¶ 12 (emphasis added). Also, in describing transition of the earlier 3 Bush-era program to the Foreign Intelligence Surveillance Court (¶ 8), DNI Clapper lists

4 information “that may relate to or be necessary to adjudicate plaintiffs’ allegations,” (¶ 61) as

5 including both “information concerning operational details related to the collection of

6 communications under FISA section 702” and call records. (¶ 26) (emphasis added).

7

7) In December 2013, DNI Clapper also expressly references “the identities of any

8 carriers that continue to participate in the program today,” recognizing that the plaintiffs’

9 allegations include the ongoing surveillance purportedly authorized by the FISA court. ECF

10 No. 168, 2013 Clapper Public Decl. at ¶ 44.

11

8) In December 2013, Director Fleisch declared that “Plaintiffs seek relief in this

12 litigation that would prohibit such collection activities, even though they were later transitioned to

13 FISC-authorized programs and remain so to the extent the programs continue. ECF No. 227,

14 Fleisch Decl. at ¶ 27 (emphasis added).

15

Thus, the government’s declarants have repeatedly acknowledged that plaintiffs seek relief

16 against mass surveillance, whether or not it is authorized by the FISC, and have directly asserted

17 that post-FISC surveillance is at the very least relevant to plaintiffs’ claims. In fact, the government

18 can point to only a handful of times that it affirmatively (and obliquely) alluded to its cramped

19 view of the complaint. Yet a fact so critical to the case – that plaintiffs had embarked on a multi-

20 year litigation odyssey involving two trips to the Ninth Circuit, supposedly based only on 21 surveillance authorities that ended either before or shortly after the Hepting complaint was filed,

22 and long before this litigation (Jewel) began – certainly merited more than a casual aside or a

23 dependent clause.

24

The Government cannot have it both ways, as it seeks to do here. It cannot present one

25 understanding of the scope of plaintiffs’ claims – a very broad one – when asserting the state secret 26 privilege, but claim a much narrower understanding when it is destroying potential evidence.

27

28

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D. The Government Has Ignored Multiple Opportunities to Clarify the Scope of

1

Plaintiffs’ Claims.

2

As noted above, the government had many options if it was uncertain about the scope of

3 plaintiffs’ claims, and thus the scope of its evidence preservation obligations. Most obviously, as

4 noted above, the government could have resolved this issue like any ordinary litigant, by contacting

5 plaintiffs’ counsel. The government also could have sought clarification or modification of the

6 Court’s evidence preservation orders. Either way, the government had a clear duty to raise any

7 interpretative issues with this Court and with plaintiffs at the earliest opportunity—and before 8 destroying masses of relevant evidence—so the question could quickly be put to rest.

9

These options, and the government’s duty, do not change just because the government has

10 asserted secrecy over some of the evidence at issue. The fact that plaintiffs seek to stop the ongoing

11 spying is not a secret. If the government had ever asked plaintiffs whether their complaint was

12 limited to claims based solely upon executive authority, plaintiffs would have readily confirmed

13 that it was not. Plaintiffs could have confirmed that the complaint sought to stop the government’s

14 mass surveillance because it violates the First, Fourth and Fifth Amendments and is not permitted

15 by any lawful statutory authority—regardless of the government’s purported legal justification for

16 it.

17

E. The FISC’s Orders Governing the Government’s Retention of Data Do Not

Justify the Government’s Spoliation. 18
The government argues that reading the preservation orders in Hepting and Jewel broadly

19 would have conflicted with orders of the FISC limiting its retention of data to certain periods of

20 time, but this makes no sense. A litigant facing potentially conflicting duties in multiple

21 jurisdictions must seek appropriate relief from the relevant courts, not simply ignore the problem.

22 Moreover, the government had a duty of candor both to the FISC and to this Court. (FISC order,

23 BR 14-01, March 21, 2014)11. That duty of candor should have prompted the government to

24 disclose this litigation and its attendant preservation duties to the FISC, most obviously at any one

25 of many possible junctures: when Hepting was first filed in 2006, when the first express

26

27 11 Available at http://www.fisc.uscourts.gov/public-filings/opinion-and-order-march-21-2014.

28

Case No. 08-cv-4373-JSW

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PLAINTIFFS BRIEF RE: THE GOVERNMENT’S NON-COMPLIANCE WITH THE COURT’S EVIDENCE PRESERVATION ORDERS

Case4:08-cv-04373-JSW Document233 Filed05/30/14 Page24 of 27

1 preservation order was entered in 2007, when Jewel was filed in 2008, when the Jewel preservation 2 order was entered in 2009, or when the plaintiffs disputed the government’s position before the 3 Ninth Circuit in 2010. Indeed, it is remarkable that the FISC appears to have been entirely unaware 4 of these cases, much less the preservation orders in Hepting and Jewel, until plaintiffs notified it in 5 March 2014.

6

F. The Government Has Spoliated Evidence.

7

The Court can and should sanction the government for its spoliation of evidence. It is firmly

8 established in the Ninth Circuit that “[a] federal trial court has the inherent discretionary power to

9 make appropriate evidentiary rulings in response to the destruction or spoliation of certain

10 evidence,” which includes the power “to permit a jury to draw an adverse inference from the

11 destruction or spoliation against the party or witness responsible for that behavior.” Glover v. BIC

12 Corp., 6 F.3d 1318, 1329 (9th Cir. 1993) (citing Unigard v. Lakewood, 982 F.2d 363, 368 (9th Cir.

13 1992) and Akiona v. United States, 938 F.2d 158 (9th Cir. 1991)); accord Med. Lab. Mgmt.

14 Consultants v. Am. Broad. Cos., 306 F.3d 806, 824 (9th Cir. 2002). Sanctions for spoliation of

15 evidence can be issued under both Rule 37 and the court’s inherent power to control abusive

16 litigation practices. Leon v. IDX Systems Corp., 464 F.3d 951, 958 (9th Cir. 2006); E.E.O.C. v.

17 Fry’s Electronics, Inc., 874 F. Supp. 2d 1042, 1044 (W.D. Wa. 2012).

18

Spoliation exists where: (1) the party with control over the evidence had an obligation to

19 preserve it at the time of destruction; (2) the evidence was destroyed with a “culpable state of

20 mind”; and (3) the evidence was relevant to the party’s claim or defense such that a reasonable trier

21 of fact could find that it would support that claim or defense. Zubulake v. UBS Warburg, LLC

22 (“Zubulake IV”), 220 F.R.D. 212, 220 (S.D.N.Y.2003); see also United States v. Kitsap Physicians

23 Serv., 314 F.3d 995, 1001 (9th Cir. 2002).

24

All three elements are satisfied here. First, as demonstrated above, the government was

25 under an obligation to preserve the evidence of its mass surveillance, and its claims to the contrary

26 are not credible. Second, the government had a “culpable state of mind” because it had (at a

27

28

Case No. 08-cv-4373-JSW

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Case4:08-cv-04373-JSW Document233 Filed05/30/14 Page25 of 27

1 minimum) “some notice that the documents were potentially relevant to the litigation before they 2 were destroyed.” Kitsap, 314 F.3d at 1001.12 Here, the government had clear notice from the 3 complaint itself—and that notice was unequivocally re-confirmed in 2010 before the Ninth Circuit.

4 Third, the evidence was plainly relevant to the claims, since the actual records and communications

5 seized are the most direct evidence of the government’s seizure.

6

Where spoliation has occurred, as it has here, the law presumes that the destroyed evidence

7 goes to the merits of the case, and the burden is on the spoliating party to show that no prejudice 8 resulted. Apple Inc. v. Samsung Electronics Co., Ltd., 888 F. Supp. 2d 976, 998 (ND Cal. 2012).

9 After having repeatedly and vociferously claimed that the plaintiffs must produce evidence from

10 the government of individual seizure of their communications and records (as opposed to the boxes

11 of their evidence plaintiffs have long presented), the government cannot meet its burden to show no

12 prejudice has occurred here. Unsurprisingly, it has made no attempt to do so.

13

G. An Adverse Inference Against Defendants is Necessary and Appropriate.

14

To redress the government’s spoliation of evidence, plaintiffs seek the sanction of an

15 adverse inference, where necessary, that their communications and communications records were

16 collected by the government as part of the mass surveillance programs at issue. To determine what

17 level of sanctions should be imposed for spoliation, the court considers: 1) the degree of fault of the

18 party who altered or destroyed the evidence, 2) the degree of prejudice suffered by the opposing

19 party, and 3) the availability of lesser sanctions that will avoid substantial unfairness to the

20 opposing party. Apple, 888 F. Supp. 2d at 992. A finding of bad faith is not necessary to impose a 21 sanction short of outright dismissal, including the lesser sanction that plaintiffs seek here. Lewis v.

22 Ryan, 261 F.R.D. 513, 518-20 (S.D. Cal. 2009); Pauls v. Green, 816 F. Supp. 2d 961, 981-82 (D.

23 Idaho 2011). Ultimately, the choice of appropriate spoliation sanctions must be determined on a

24 case-by-case basis, and should be commensurate to the spoliating party’s motive or degree of fault

25 in destroying the evidence.” Apple, 888 F. Supp. 2d at 992.

26

27 12 The government does not need to have acted in bad faith. See Lewis v. Ryan, 261 F.R.D. 513, 520 (S.D. Cal. 2009); Pauls v. Green, 816 F. Supp. 2d 961, 981-82 (D. Idaho 2011).
28

Case No. 08-cv-4373-JSW

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Case4:08-cv-04373-JSW Document233 Filed05/30/14 Page26 of 27

1

Here, the government has a high degree of fault – its interpretation of the complaint is not

2 reasonable, and it ignored multiple opportunities to clarify the scope of plaintiffs’ claims and its 3 resulting preservation duty. The government also failed to take any corrective action (and

4 continued to destroy evidence) even after plaintiffs directly disputed its unreasonably narrow

5 reading of their claims in 2010, and submitted misleadingly incomplete information on these issues

6 to the courts. The prejudice to plaintiffs is significant: they have lost an entire source of

7 information, namely three, five, and seven years worth of records respectively, for telephone 8 records, content and Internet records. As this Court is aware, one of the class representatives,

9 Gregory Hicks, passed away in 2010, so the destruction is especially important to his individual

10 claims. The Apple court recognized, “the loss of an entire source of documents significantly

11 hampers [an opposing party’s] ability to prepare and prosecute their case. 888 F. Supp. 2d at 994,

12 (citing In re Napster, 462 F. Supp. 2d 1060, 1077 (N.D. Cal. 2006)).

13

Moreover, the relief plaintiffs seek here falls well within the range of sanctions routinely

14 granted for spoliation, and is not the most severe sanction available. An adverse inference that the

15 destroyed evidence would have shown that the government collected plaintiffs’ communications

16 and communications records is much less onerous than a sanction of dismissal or default. Apple,

17 888 F. Supp. 2d 976. Judges throughout the Ninth Circuit have regularly relied on their inherent

18 power to issue such adverse inference instructions as a sanction for spoliation. See, e.g., Cont’l

19 Cas. Co. v. St. Paul Surplus Lines Ins. Co., 265 F.R.D. 510, 535 (E.D. Cal. 2010); Herson v. City of

20 Richmond, No. C 09–02516 PJH (LB), 2011 WL 3516162, at *2 (N.D. Cal. Aug. 11, 2011); Io 21 Grp. Inc. v. GLBT Ltd., No. 10-cv-1282 MMC (DMR), 2011 WL 4974337 at *2, *3 (N.D. Cal.

22 Oct. 19, 2011); Aiello v. Kroger Co., No. 2:08–cv–01729–HDM–RJJ, 2010 WL 3522259 (D. Nev.

23 Sept. 1, 2010); Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., No. 06-cv-3359 JF (RS), 2009

24 WL 1949124 at *4 (N.D. Cal. July 2, 2009).

25 IV. CONCLUSION

26

Given the magnitude of the misconduct here, the remedy plaintiffs seek is straightforward

27 and modest: plaintiffs simply seek to ensure that their ability to present their case is not harmed by

28 the government’s deliberate and unabashed destruction of evidence relevant to their claims. The

Case No. 08-cv-4373-JSW

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PLAINTIFFS BRIEF RE: THE GOVERNMENT’S NON-COMPLIANCE WITH THE COURT’S EVIDENCE PRESERVATION ORDERS

Case4:08-cv-04373-JSW Document233 Filed05/30/14 Page27 of 27

1 only way to ensure that is for this court to adopt an adverse inference that the destroyed evidence

2 would have shown that the government has collected plaintiffs’ communications and

3 communications records. Plaintiffs hereby request such an order. Plaintiffs also request a prompt

4 hearing to stop any upcoming evidence destruction.

5 Dated: May 30, 2014

Respectfully submitted,

6

/s/ Cindy Cohn

7

CINDY COHN LEE TIEN

8

KURT OPSAHL

JAMES S. TYRE

9

MARK RUMOLD

ANDREW CROCKER

10

DAVID GREENE

11

ELECTRONIC FRONTIER FOUNDATION

12

RICHARD R. WIEBE

LAW OFFICE OF RICHARD R. WIEBE

13

THOMAS E. MOORE III

14

ROYSE LAW FIRM

15 RACHAEL E. MENY

16

MICHAEL S. KWUN

BENJAMIN W. BERKOWITZ

17

JUSTINA K. SESSIONS

AUDREY WALTON-HADLOCK

18

PAULA L. BLIZZARD

19

KEKER & VAN NEST LLP

20

ARAM ANTARAMIAN

LAW OFFICE OF ARAM ANTARAMIAN

21

Counsel for Plaintiffs 22

23

24

25

26

27

28

Case No. 08-cv-4373-JSW

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 Case4:08-cv-04373-JSW Document220 Filed05/05/14 Page1 of 37
Approved for public release May 5, 2014

'STUARTF. DBLERY

Acting As.'listant Attorney Gener-~1

'.! JOSEPH R HUNT

Directer, Fedefal Programs Branch

3 ANTHONY J. COPPOLINO

4

Deputy Brnnch Director JAMES J. GILLIGAN

s Special Litigation Counsel

MARCIA BERMAN

6 Senior trial Counsel

7

BRYAN DEARINGER RODNEY :PATTON

g Trial Attorneys

U.S. Department of Justice

9 Civil Division, Federal Programs Branch

10

40 Massachusetts Ave11ue1 NW Washingtonj D~C. 20001

11 .Phone! (202) S144782 Fax~ (202) 616~&460
12 Attorne.ys.fiir the Government .Dafendams

f3
UNlTED STATES DISTRICT COURT

14

NORTHERNDJ~TRfCT OF CAJ,lFORNlA

SAN FRANCISCO DlVISION
15

16 CAROLYN JEWEL, ec at.1

11

Plaintiffs,

18 v.
T9
NA110NA1. SECURITY AGENCY, fil aL.
20
Defendants.
21

) ) No. OS:·cv-4373..JSW ) )
)
) ) ) )

VrRGINIA SHUBERT, et.al.,

24
25 v.

Plaintiffs,

26 BARACK OBAMA, et al.,

27

Defendants

28

) ) NQ. 07-o.v-693-JSW
) ) CLASSIFIED DECLARA1'lON OF ) .JAMES R. CLAPPER, DIRECTOR ) OF NATIONAL INTELt.IGENCE
) ) No Hearing Scheduled ) Courtroom 11, 19w Floor
) Judge Jeffrey S. White

Classlncd /11 Camera.& Parie Dcoraratiott ofJamC\-R..Clappcr, DrreclorofNalioolll JntelJigcnce Jewel .:I al. "· Nfl/low1/Sec1trltyAgtl•t:J cJ. ttl. (08·cv"4873-JSW}; Slmbar1, er·al. .11. Obama. er uf., No. 07·cv...r.93·JSW

Case4:08-cv-04373-JSW Document220 Filed05/05/14 Page2 of 37
Approved for public release May 5, 2014

'T' .
I, James R. Clapper, do hereby stateand declare as follows:

2.

(U) INTJtODUCl'lON

3

1. (U) I am the Director ofNationnl lntelligence(DNI) of the United States. f have

4 held this-'pos.ition since August 9, 2010. In my capacity as the DNJ~ I oversee the U.S..
5
lhtelligencc community (IC) and serve as the principal intelligence adviser to tit¢ President.
6·
7 Prior to serving as the DNI1 I served as the Director ofthe Defense Intelligem~e Agency from.

8 1992 to 1995, the Director ofthe National Geospatial~Intelligence Agencyfrom.2001to2006,

and the·under Secretary of Defense fotlntelligence from 2007 to 2010. where I served.as the
IO principal staffassistant and advisor to the Seerctary and Deputy Secretary ofDef~nse on
II

13 . capacity BS the Und.er Secrew;y of Defense for Intelligence, I simultane<lusly smed ~s th~
14 Diteet(lr ofDefense Trtte1Jigenc" for theOffice of the Director ofNational Intelligence (OONf). ' .
IS
2. (U) The purpose ofthis declaration is1o fortnaJly assert. in my capacity as the
16.
17 "DNl and head .ofthe.IC, the state-sec;rets pdvilege and a statutory privilege undei"?the National 18 Security Act of 1947, as mnended~ see SO U.S.C. § 3024(i)(l )1 .ill orderto. protect intolligc.11ca
19 sourCQS.and methods that are at risk ofdisclosure in the nbovc·captioni:d case as Well as in w·
Shuburt "· Ob4ma (07:...0v-00693) (M: 06-cv4791). Tins assertion ofprivilege Li.l)dates and
21 modifi¢$ my priorassertions ofpriYilege i.n this litigation. As discussed.below, I um no longer
asserting privilege overthe-existence ofvarious presidentially authorized Nationa·l Security
24 Agency (NSA) intelligence activities, later transitioned to authority under the Fordgn
25 Intelligence Surveillance Act (FISA). I continue to assert privilege over still~clas~ified
26
infornijltion concerning the 'Scope and operational details ofthese intelligence activitie.s,
27
including but not limited to information that would tend to confirm oi· deny that pm1icular

·cfossific;d111 Cumen1, Ex />nrte lkchuutlon offame.s R. Clapper, Dirc~tor ofNational lntclligcni:C .lcW<!lel al. v. Nt11im1al Secwity ,fganoy et al. (Oll~v-4373-JSW);.Sf111ben, el al. v. Obama, et n/., No. 07-cv-.693-.i.S\V

Case4:08-cv-04373-JSW Document220 Filed05/05/14 Page3 of 37
Approved for public release May 5, 2014

persons were targets ofor subject to· SA mte!Hgence activities or that particular 2 · telecommunications service providers as~i&~ed NSA in.<;onducting 1ntelligence aG'tivities.

Disclosure of this still-classified infonnation resarding the scope and opcratiouaJ,dctails ·of NSA
4 intelligence activities implicated by plaintiffs' allegatioiis could be expected to cnuse extremely
5
grave.damage to tho national security ofthe United States. 'the statements made=herein are
6
7 based on my personal knowledge as well a.s on infmmation provided to me in my official
capacity as the .DNL

(U} SUMMARY
10
3. (U) In the oourse ofmy officia1 duties, Jhavebeen advised ofthifi lawsuit and th
II
·allegations at issue in th~ plaintiffs' complaints irt theJawa/ and Shl.lhert &ctions. ln parsQnnlly
12
13 considering this 1natter, I have exeputed a separate unclassified declaratioi1 dated :Duecmber 20,
2013. Moroovel', I hnve read andper~onally c;:onside~ed the infomiation contain.e<_I. in tlie.Public.

l.S and the In. Camera, E>;.Parte Declaration of Franc-~s J. Fle-i.sch, National Security!Agency (NSA),
16-
,., e~uted on December.201 2013 (hereafter «classified NSA Declaration,,). Disclpsure ofthe
fofonnatiou covered by my and NSA'& privileg¢ ~s¢rtions reasonably could be expected to
18
19 cause exceptionally grave damage to the national" securityofthe United Statesand, therefore, the

20 infommtion.should be excludt;d from any use inthis case•

.21

4. (U) J reach this COMhtsion, and make these assertions. ofprh~lege{ 1nindfol of the

22.
public disclosures ofinfomuitfon about classified NSA intelligenceprograms, \?001 authorized
23
24 ai1d unauthorized, that have taken plaee sb1cc Jun~ 2013. The wa.vc ofunauthori""c<l public

2S disclosures ofclassified infonnatiot\ tc.ga.rding NSA intelligence. activilies th11t began in June

26 2013 has been extremely damaging to the miticmal security of the United S.tates. threatening the 27 ability ofthe IC to conduct operations effectively and keep our country safe. At the same time,

C!Msificd /IJ Camera, ExParle ~laration ofJiill!CS R, Clapper, Din..'Ctor ofNational Intelligence Jewel el al. 1~ Nnlfonol Sa€111riry.;fge11ay es al (08-ev-4873-JSW); Simbell, ct qi, 1•. Obama, cl al•• .No. 0-7-cov·!J.9.3-JS\V

Case4:08-cv-04373-JSW Document220 Filed05/05/14 Page4 of 37
Approved for public release May 5, 2014

2 authorities to gather intelligence, and whether they 11avebeen used appropd~tcly. At the
3 President's direction, I have therefore declassified and publicly rel~sed numerous documents
4 disclosing the existence of, and a number of details about, the NSA 's epllection afbulk
5
telephony nnd Internetmetadata Ufider sectip:ns-402 and 501.ofFISA, and the content of
6
r 7 communications of non•U.S. persons located abroad under FISA section 702. dld this to
8 facilitate informed public debate about the value and appropriateness ofthese programs with full

9 ·understanding ofwhat theyallow, the oversight 111echani.sms in place, and the cof.1tribution these
10
programs havemade to the Nation's security and safety. These documents were properly
II
classified and .the decbion .to deelassify and release them was not taken lightly. ['.lut l concluded,
12
13 in :consultation with e1einentc; ofthe IC, that in light ofthe unauthoriz~ disclosures, the ptJblic

.Ji4 interest in the documents outweighed the potential for additional damage to national security•

15

5. (V) On De<:e.ltlher 20, 2013, under authority of.the President, the ~xiste11ce of

16 collectipn actlvi~ics authorized by President George W. Bush in October 2001 wos also

· declassified. Specifically, starting 011October4, 200 l, President Bush authorize<! tho Secretary
18
·19 ofDefenseto employ the capabilities ofthe Depar-tment of.Defense, including th'~ NSA, to
'
20 oollect foreign intelligenet by electronic surveillanc-e in orderto detect and preve~1t acts of

~I terrorism within the United States. President Bush authorized the NSA t~ collectXJ) the co1ttent;;

n

'

ofcertain intemational communications, a program that was later rc::fet'ted to and jmblicly

23

acknowledged by President Bush as the Terrorist Surveillance Pr~gram (TSP), and (2) telephony
24

·25 and Internet non-content informatfon (referred to as "mctadat~') in bulk, subject tt1 various

conditions.

27

6.

28

(U) President Bush issued a'1thorizations approximately every 30-60 days.

Clio.tsified/n. Cnmc:rn, E:i: Pane Oc~laracion ofJan11l$ R. Clap~-r, Dirccror ofNatlQnal TntcHig~cc Jewel et t1L v. Natio11Dl Sa~i1rlt)' Ag61/C)'C!I nl. cos.w.4873-JSl.\I)~ S/111/,f!rl, C( al. ,., Obnma. el o/.. No. o7.c;.v-(·93·JSW

Case4:08-cv-04373-JSW Document220 Filed05/05/14 Page5 of 37
Approved for public release May 5, 2014

Although the precise terms changed over time, eac

2 minimization ofinformation co11ected concerning Ameri~1 citizens to the ex.teni. consistent with

J the effective accomplislunent ofthe mission ofd.etection and prevention of acts of terrorism
4 within the-United States. TheNSAalso applied additional internal constraints on the
s
presidentially authorized activities.

7

1. (U) Over time, the presidentially authorized activities transitionedito the authority

8 ofthe FISA. The collection ofcommunications content pursuant to presidential authodzation

endeq in January 2007 when the U.S. Government l:l'ansiH~med TSP to·the authcu;jW of FISA
10 Wlder orders of-the.FISC. In. A-µgust 2009.1 Congress enacled the Protect Americ~ Act (PAA) as n
a temporary measure. The PAA.expired fr1 February 2008 and was replaced by the FJSA
12
13 · Amendments Act of200&, which was enacted fo 2008 ruld renmins i11 effect todn;'- Toda.y!

14 content collection is conducted putsua:nt to sectiQn 702 ofFlSA. The m~ta.data a~tivities also

15 were tmnsitfo.tted to orders of'thc.FISC. The hulk coltecti<;m of.tQlephony :metada:t.a transition~
16 to the authority ofFISA in May 2006 and ·rs co1lect(ld pursµant to section 50 I ofl!ISA. cthe-bulk
l't
· collection ofIntemet-tnetadata was transitianed to the authority ofFJSA in July 2J>04 and was
-IR
19 rollected pursuant to section 402 of FISA, In December 2011. the U.S. Govemm_ent .decided not

20 to seek re·autltorizatio.n -0f the bulk c<>Ue~tion oflntemet metadata unde1· section 402.

21

8. (U) As a result ofthe declassification ofth.e information described' abovc. the U.S.

Government is no longer asserting privilege -over the existence of these programsiwhcther
.23
conducted under presidential authority or- FISC authorization~ It has remained n~essury,
24
25 however; to withhold certain infonnfttion about these prQgrntnS, even -from the puhlicly released
26 documents, to protect sensitive sourc~s and methods, such as particular targets oOmrveillancc,
'27 lUld methods of collecting and fillalyzing intelligence infonmition, becam;e pubUcdiSlllosure of
28

Cb!l~ifiod l11Camr,mi. 8x-Pa1te Oc;;h1ration QfJ~mcs R..Clapp.."l", .Dirccuir ofNadom1l l1.1t~lUgi;ncc Jewel et n/. \~ NaJIOiral St!c11rf1y.Age11cy I# nf. (OR..-:v-48.7~-JSW); Sllub~i'f. i!t ti.l 1•. ObPl!ra, ct 11/•• No. 07-cv-693-JSW

Case4:08-cv-04373-JSW Document220 Filed05/05/14 Page6 of 37
Approved for public release May 5, 2014
this infonnation would likely cause even graver 2 been done by the unauthorized disclosures that have occurred sinee June 2013. As ex.pltline9 in 3 ' great detail herein. and in the accompanying ClassifiedNSA Declaration, the same is true witl1
respect to the highly sensitive and still classified infonnution that 1s- implkated by the plaintiffs' s
allegations in this litigation.
6

10. (U) Accoi'ding1.y~ nonvi.thstanding the unauthorized disclosUl.'e.s and Uwotncial
18
19 .d~lassification and release ofinformation.about NSA fatelligence programs that .have ta'ken
20 pince since June of\his year, ihs myjudgment that disclosure of the dass-ified, privileged
21 national security information desctibed herein. and in greater detail in the NSA cl\\ssitied
22
declaration, will risk further and exceptionally grave damage to the nMionat security of the

· United-states.
14

25

11. (U} As the NSA statos, the 111legatlons in this 1nwsuitimplicate information

concerning.severnl highly classified and important NSA inteHigencc activities thu~ conunern.-ed

21 under presidential authorization aft~r the 9/1 i terrorist.attacks. These activities subsequently
28

n. Clal!Sificd /11 Camura, Ex Pane Occl!U'l)tio~ of)11111i:s CliSppcr,.Oiroclrir uf'National lmclligence
. Jmw:/ Cl a(. v. Na1im1al Si!cttrlty Age11cy al al. (08-.::v-•1&73-JSW); Shrtberl, <JI al. 1•. Oba11tfJ, (Jt afv N~ 07-cv.i\l}J-JS\\I

Case4:08-cv-04373-JSW Document220 Filed05/05/14 Page7 of 37
Approved for public release May 5, 2014

transitioned to the authority of FISA an 1

1 intelligence gathering that continu~ to be reHed on by the NSA. Sc;?e·Classificd NSA Declaration.

3

12. (1'SlfS'fL\'\'lSI

C!NFf fa order to addr¢Ss plaintiffs' alle,gation that tfl~

4 NSA, with the. assistance oftel~conununication providers, i11cluding AT&T and Verizon s

CQmpanies, have indiscriminately.intercepted the content and obtained the communications
6

7 records ofmilliom; ofordinary Americans as part ofan alleged presidentially authorized

8 . "Program'' after 9/11, set, l!.g.,. Jewel Complaint. at W2-13, 39..97; Shubert Second Amended
r
1J . Complaint {SAC) 'fir 1-9, 57-58, 62-91,102 further litigatiotl would -require or risk disclosure of
II) . information concerning several classified NSA .inte1Jigence activitie.'>, sources an~ methods. This
II

l;z

14

terrorist organizations. pnrsuant to tlie TSP an.d

15 later pursu;mt to FJSA authority,; (2)tlte bulkoolkictfon and,targeted analysis ofnon..content

11
11! that have been or continue to be -conducted ·pursuant to l~ISGorders. 19 have enabled the NSA to uncover the contacts
20
''

24

This lawsuit therefore imp.Hcates. informatio.n·cottoeminc foreign intelligence-gathering activities C>

~ utiliz¢d to meet the extremely seriot1s thteat of&i1othct terrorist attack on the U.S. Homeland, a

.26 threat vihich I describe further below,
21
13. (U) Accordingly, asset forth further below, I an1asstrrting the stat4 secrets
28

Clussincd In Camcni, Ex Part~ Dc.:lar.niim ol'James It Clapper, Dircc.tor ofNational lnlclllgcncc Jawcl et al. I\ NnJional Ser.trrity Agvncyel nl (08-cv...1. 8-7;1"1SW); Situ.hr.rt. t:I al. v. 0l>f11Jlq, er.al., No. 07-cv·~'93·JS\V

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privilege and the DNl's authority to .Protect mte 1gence sources and methods purnunnt to SO
1 U.S.C. § 3024.(i)(l) to protect against the discloi:;ure ofhighly classified and important
intelligence infonnation, sources ru1d methods put at issuu h1 this case, many of which are vital lo 4 the national security ofthe United Stat~, including; (a) infonnation concerning the specific
5
nature ofthe terrorist threat posed by al-Qa'ida and its affiliates and othel'.' foreign terrorist
6
? organizations to the United States; (b)·information that would tend to confinn or deny whether
8 particular individuals,.including .the named plaintiffs, have been subject to any NRA intelHgence
activities; (c) infonnatien CQm:eming the scope·or operational details ofNSA int~Uige-nce
10
activities that may relate to or be necessat)'ro adjudicate plaintiffs' allegations, including
II
plaintiffs1 claims that the NSA indiscri1ninately intereiepts the content ofcommufi:tcations, ;md
12
13 1he.ir claims regardingthe NSAts bulk collectim1 oftelephony and fntemet communications 14 records (''m~mdnta'1)• and (d) infoFIDation lhatlMY tend to confirm or de11y Whether A1 &.T or
15 V~on (and ti'.> the· e~tcutrelevant or neccssary1 anyothertelecommunications carri~r) has
16
provideclassistanceto the NSA in connection with any intelligence a<;itivity.
1:7
l4. (U) I specifically concur with the NSA Ulat public speculation nb~mt alleged
llt
19 · NSA uctivities above and beyond what has been officially disclose.d does not diminish the need
to protectintelligence sources and methods from further exposure, and that officinl confirmlltion ZI and disclosure ofthe c1assified, privileged.national security infonnation descl'ibe<,i herein cai1 be
expected to cause exceptionally grave damage to the national security. For thcsej-ctisons. as set
23 forth :furth~rbelow, I request that the·Court uph_ofd the.stnte secrets and l\tatutory privilege
.24
ass~ions that r make hcroin1 as w¢1l as the statutory privilege.as~ertion made by the NSA
pursuant to S<;ctfon 6 of the National Security Ag~cy Act, see 50 U.S.C. § 3605 (note), and 27 protect the information described. in.this declaration from disclosure.
21l
8
Clo:;~iftcd In Cwncra, Ex Parrc Oc:cl11r.11ioo ofJames R. Clap~, Director ofN~liooal Intelligence
.IJ?1v~J ~I nf. i•. Nlil/onnJ .'kc11rityAg1mc)' <JI 12/, {98-<N--4873-JSW}; S/mbErl, ct al. i •. Obnma, ef /)/., No. 07·<N~"•93.JS\V

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· 1,,."i!VH.f. 1. 1 1; iNOPf_,jfJ; ~
CLARATJON

2

15. ~suant to the standards in Executive Order (E.O.) l.l526, this

3 declaration is classified as: TOP SECRE'F/ISTLW/Sl-ICSNORCONfNOrOR}1. The

details concerning these olnssificatfon markings are set forth in the Classified NSA Declaration
s
and are briefly sutnrnarizedhere. UnderE.O. 13526, information is classified "TOP SECRET"
6
7 ifunauthotfo:d disclosure of the infonnation reasonably could be expected to cause
8 ex.ceptionally grave damage to the national security ofthe United States; "SECRET" if

unauthorized disclosure ofthe information reasonably could be expected to caus~ serious 10 damage·to national security; and e1coNPIDEN1'IAL'• if11Muthori:zed disclpi;u.re 0.f the
II
information reasonably could be expected to cau$e identifiable damnge to nntiomi l ~ecurity. At
Ii
13 the beginning t)feach paragraph ofthis dedaration, 1he letters "U," nc," "'S,11 amt "TSn indicate
14 respecti'fle1y that the infl;:>rmation is either UNCLASSIFIED~ or is classified CON·PlDENTlAL,
I:5 SECRET, or TOP SECRET.
16
l 6. (U) Additionally, this declaration also contains Sensitive Compa.rtm.ented
17
·.I11t¢nnation (SCI), which is. subject to special ace.es& and handling requirements b.1.?cause it
18
19 ·involves or derives .from particularlysensitiveintelligence sources and methods. "rhis
10 declaration r~ferences communications intelligence, also r.efetted to as special .inw1ligenee(SI)~
21 which is a. snbcatcgoty of.SCI that identifies "infonnation that was derived from explofting
22 cryptographrc systems or other protected sources by applying meth<lds or techniques, orfrom

-interce}lt!irl foreign. cornmunkatfo11s. This declarntion also refotcnces human intelligence control
24
25 .systetn (HCS), another subce.tegory ofSCl that identifies infomi.ntion derived from individuals

26 who provide intelligence information,

21

17. {TSl/8TL\,tf5i/IOC/NF) This declaration also contains information related to or

9
Cl11,~sifioij 111 ·Camcrn, E:t·Pa11e 0{:(ll~ian ofJl.lnlel It Cltippt.'I", Director ofNationnt lntellig.enc~ Jewel tt 11/. 11, Na1in11al Secmity Ag1!/lay ct al. (OS-c:v-4873-JSW)_; Slmhw , el al "- Obama, d al.. No. 07-cv-fic).3.JSW

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derived from the STELLARWIND program. a controlled access signals illtelli.gence program

l under presidential authorization in response to the attacks of September l I, 2001~ In this

declaration, infom1ation pertairting to the STELLARWfND program·is denoted witJ1 the special

marking 1'STLW' and requires more restrictive handling. Despite the Dccc.mbtlr'2005 public s
ac~owledgement ofthe TSP, and th.e recent public acknowledgment ofNSA bulk telephony an
6
7 Internet metadata collection activities that were also pnrtofthe STELLARWlND program,
certain dehuls about the STBLLARWlND _program (including the TSP) remain highly classified

9 and strictly compartmented,
10

11

IZ

(3

14

t8. (U) Finally, infont1atfon.Jabeled "NOFORN'1 ma:y not be re1eased•ta foreign

IS govenunents, foreign nationals, or non-U.S. citizens without p~ssion of the originator and in

ICI
accot9ance with DNI _policy. The "ORCON'' designator means that tlte originator ofthe
17
information c0ntrols to whom it is released.
HI

IC)

.(U} BACKGBOVND ONDJREC.'TQR·OF ~ATIONAL INTELLIGENCE

20

)9. (U) The position ofDNI was create{! by Congress in the Jntetligen:ce Reform and

21 Terrorism Prevention Act of20041 P.ub. L. l 08~458. §§ 1011 (a) and 1097, l 18 Stilt. 3638, 3643~

63, 3698-99 (2004) (amending sections 102 -through l 04 llfTitle f of the NatiQ11aJ: Security Act
l.1
of 1947), Subject to the authority, direclio11, and cobtl'ol ofthe Ptesident~, the DNJ serves as the
24
:!S head ofthe IC and as the principal adviser to the President, the National Security Cow1yil, and

26 the Ho1neland Security Council for intelligence matt¢1'8 related to the national security. See. SO
27 u.s.c. § 302'.l(b)(l), (2}.
2ll

10
Cl11SSificd Jn Ciuncl'll, /':)-. f'qi•te Oc.-;laration ofJames R. Cluppcr, Olrllelor of'Nad.01J11l Jntclllg.encc Jewel!!I al. '" NdlionnlSecurity A,it1!llt:y er 11/. (<Jl!~~w1&7a.JSW); Slt11berl, el nf. '~ Obama, cl al.. N9. 07~Y-i>93-JSW

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20. {U) The IC includes--the ODNlj the Central IntelligenceAgenc~ th.e NSA; the

2 Defense Intelligence Agency; tbe National Geosptttial-Intetligence Agency; the National

l Reconnaissance Office; other <>ffices within the Department ofDefense for the c(11lection of
4 speci!tlize<l national intelligence through.rcccmnaissancc programs; the intelligeni;e elements of
5
the mili~ry services, the Federal Bureau ofTnve!!ligatfon, the Departmentofthe ~rreasury~ the
6
7 Dcpnrtmcnt of·Energy, the Drug.Entbrc~ment Administration> and the Coast Guatd; the Bureau
ii ofIntelligence and Researcn ofthe-Department ofState; the elements ofthe Depitrtment of

0 Homeland Security concerned With the analysis ofintelligence information; and such other
10 elements ofany other department or agency as maybe designated by the Presidc11t; or jointly
II
designated by the DNT and heads·ofthe department or agencyc-0ncerned, as:an element of the
I;!
13 IC. See SOU.S.C. § 3003(4).

14

21. (U) Th.e res})<)nsibiliti'cs ~id authQdties ofthe DNI are set forth irt th" National

15 SecurityActof1947, ns ain~nd~d. See 50 U.s.c. § 3024. nu~se re.sponsibilities1im;lude

16.

•ensuring thatnational fotcllige.nceis provided to tho Pre.-;ideut, the heads of the dtipa1:tm.ents and

.

'

17

· agencies ofthe EKecutiveBranch, the Chaim1an ofthe JointChietS ofStaffanct senior rnilitaty
1g

19 commanders, and the Senate and Fiouse of Rep1esentatives and conm1ittees thereof. See SO

U$.C. § 3024(a)(l). The DNI is also charged with establishing the obje.ctives oti determining

lJ the requirements and priorities for, and managing and directing the tasking, collection, amd.ysis,

production, anddissemination ofnational intelligenceby-elements ofthe lC. Id.
!23
§ 3024(t)(l)(A)(i) and (ii).
24
22. (U) In addition1 'the Nutio.nal Secuiity Act of 19471 as am(,mded~ provides that
26 "[t]he Director QfNational Intc:Higenc.e shall prote'-1l intelligence sources and methods from
27 unauthorized dfr.;closure.0 50 U.S.C. § 3024(j)(l). Consjstent with this rosponsib!lity, the DNI
28

n
Clt$~iflcd./n Co.mCl"!l; Ex Parle Declaration ofJames R. Clapper, Director ofNa,tional Intelligence Jewel et af. v. Na/1011(1/Securilji Agt!ncy eJ nl. (08-cY-4813-lSW): Sl111b.11rf, et al. ''· Obama, ct al., No, 07~v-C193-JSW

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2 .applicable law, Executive orders, or other Pr~si<lcntial directives, nnd access to ahd ; dissemina1ion ofintelligence. Id. § 3024(i)(2)(A), (B). In particular, the DNI is iesponsible for
4 the establish1nent ofumform standards and procedures for the grantofaccess to SCI to any

otlicor or employee of any agency or department ofthe United States, and for ens.-uring the
6
1 consistent implementation of'those standards throughout such departments and agencies. id.
g § 3024(j)(1), (2).

I)

23, (U) By virtue ofmy position as the DNI, andunless otherwise directed by the

l(J
President, l have access to all .intelligence related to the natiorml security that is c<-)llect¢d by any
II
department, agenc.y, or other entity ofthe United States. See SO U.S.C. § 3024(b}: section 1.3(~)
12
as 13 of E.O. 12333, amended. .Pursuant to E~O. !3526, the Pte.sident has authmized me to t}xercise

14 original TOP SECRET classification .authority.

IS

(.U) ASSERTION OF STATE-SECRETS. PRIVILEGE

16
24. (U) Ail:er careful and actual personal consideration of the matter~. based upon my
17
own knowledge and infonnation obtained in the course ofmy official duties, including the
18

19 information contained in the publi~and classified Jn Camera,Ex Parte DecJarafaJrlli ofFrances

20 J. Fleisch, NSA, I have detennined that sensitive state secrets concerning NSA s®rces~ methods,

21 andactivities are implicated by ~legations that lie at the.core GfpJaintiffa' clairn$:. and that the

disclosure ofthisinfonnation-as set forth-herein and described in m.ore dctajl in the Classified
23
NSA Ded;irati.on-can·t;e expected to cause exceptionally grave damage to the n_µtio11al security
14
;:is · ofthe United States> and therefore-that -information must be protected from disclo.:;ure ao.<.I

26 excluded from this cas.e. Tirns, as to U1is information, I fonnally assen the state se:crets privilege.
?.7 28

12
Cfossifio<l-/Jr C111ucra, Ex Pane Dcclun1tf<Jn ofJao!C!!R. Clapper, Dlrect~r Qfl'/~tioDlll hll\!lligcnce Jewel el 11l 1•. Narional &01rityAge11tzy11J 11/. (08-c:v-4873-JSW); Slmbcrl, ct <JI. 1>. Ob<JJ1ta, ct <1/,, N<J, 07-cv:ft93-J$W

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(U) ASSERTION OF STATUTORY PRIVILEGE UNDER NATIONAL SECURITY.ACT

2

25. (~)Th.tough this declaration, l also hereby invoke ~nd assert a statutory privilege

held by the DNT under the National Security Aot ofl 947, as amended~ to prote<;t:lhc infonnation 4 described herein, see 50 U.S,C. § 3024(1)(1}. My assertion of this stan1tory priVikge for

intcUigorH.-.c.sources and methods is coextensive with my state ~eorets privilege iL'»erlion,
6
(U) INFORMATION.SUBJECI TQA~SERTIONS QF PRJVJLEGE

s

26.. (U) In general and unclassified terms1 the following categories ofstill-classified

9 -infonnation nre-subje«tto my state secrets and statutory privilege assertions:

10

A. (lJ) 'threat Infomtation: information conceming the.specific nature

II

of the terrorist threatposed by al-Qa.tida iuid jts affiliates and other

foreign terrorist organfaations to the Unite.cl States, in~foding actual

12

intelligence information c.oll1?cted ftotn jntelligence collection

13

.3cti.viti<!s;

(U) Parsons Subject toJntelligetrceA.c.tlvities; information lhat

would tend to confirm or deny whether particular indiYidualst
including thcrnamed plaintiffs~1m¥ebeen subje-ct to any N'SA

16

intelligence·activities-j

11

c. (U) Operationa/.lnformalion toneerning NSA Intelligence

Activities.'. infonnation concerning the scope. and -operational

11!

.details ofNSA .intelligenceac-tivitics that may relate to or be

19

necessary-to adjudicate plaintiffs' allegations1 including~

(l) Com1riu11icatim1s Cormmt-Collection: information concemlng

the scope or operational details o.fNSA intelligence activities.

21

that may relato to o.rbe n~ccssary to adjudicate plruntiffs'

22

claims that the NSA indiscriminately intercepts the content of

communications, sue, e.g,,Jaw<!l Con>plaintCW 9, 10, 73~77;

Sliube?1•1SAC W, 1, 2, 7., 64, 10, including;

24

a) TSP information: infotrnation CQr.tccrning the scope and

operation ofthe now inoperative TSP regarding the

interception ofthe content ofcertain one-end-international

26

communications reasonably believed to involve a member or

agent of al•Qa'ida or an affiliated terrorist organization;
27

28

b) FISA section 702: infonnation concerning operational

details related to the collection of communications·under

..

13"

Cl11.<1.1i1T.:d /11 C11r.1cra, !1.r l'orte D~l111ulio11 ofJnmcs R. C111pper, Dlrcclor ofND!'iClnal lnWHigonccJawe/ al of. v. NtJt/qnnl SectirfcyAgenC)' etnl. (Ol!-m'-'1873,JS\\l)j Sliubcrl, cl.a/. "• Ob(!lifa. ~t <if., No. 07-cv..!./ )3.JSW

Case4:08-cv-04373-JSW Document220 Filed05/05/14 Page14 of 37
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c) any other information Telnted to deinonstradng that the NSA

has not otherwise engaged·in the aontcnt-sunreillanC(! dragnet

)

that the plaintiffs allege, and

4

(2) Communicatiolt-1 Racords Collcclirw: information concerning

5

the scope or operational .dQtaifa ofNSA intelligence activities~

that may relate to or be necessary to adjudicate ·plaintiffs•

6

claims -regarding the NSA's bulk collcctio1i- of telephony and

i

Internet communication rcoords (or ''metadata'»> see, e.g., Jewer Complatntirl 10~1 l, 13, 73-77, 82·97; Shubert SAC

ir 102;

"

and

I()
D. (U) "Felecommzmication~Providei· ldentities: Informatio11 that

II

may tend to confirm or denywh~ther AT&T o.r Verizon (and.to the

extent relevant or necessary, any other telecommui1icatfons

12

carrier),. has.-provided a~istance to the NSA in connection with any

13

intelligence activity, incl\lding the cc.)llection of communications
content (jr noi1.;coutenttransactional records alleged to be at issue

14

in this litigation.

IS

(U) DESCRIPTION OF·tNFORMATJON SUBJEC'(TO PRIVILEGE

Ht

ANi>.llARM OF DISCLOSURE

17

A. (U) information Concernl~g. the ThreatPosed by at..Qa~.lda,.lt"s

Afflllates, and Other. Foreign 'ferrori~t Organizations 18

2(. (U) The intelligence activities; sources, and methods that are impJkated by this

20 lawsui17 and put at.risk.ofdisclosure in further proceedings~ must be·viewed and ~nderstood jn 21 the context of the threat faced by the United States. In unclassified tenns, more than a decade

after the Scptembet' L1, 2001 attacks, we remain in a global conflict Wfth al-Qa'id_a aod face an
23
evolving threat from its affi.Hatc.q and ·adherents. America'"s campaign against terrorism did not
24
end with the mission at Bin. Ladin's compound in May 201 1. lndeed, the thre.ats we face have

26 become rnoi·e diverse.

28. (U) Tu addition, to the e-xtent classified information about the al-Qtr'ida. threat

14 Classified /11 C11t11c~ E~ f'artc Declaration of;l1111ic.; R. Clnpper, Dirccmr ufNntionul fo1c:lllgcnc;c Jewel et nl. i~ Nailanal &curltyAgcuey 111 al. .(O&.cv-flll1l-JSW)iS/111l1Qrt, ct 111. v. Obama. ol al.. No. 07-ev~~93-JS\\I

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would be nt issue in attempting to litigQte this case (for example, to demonstrate ihe

reasonableness ofthe intelligence-gathering activities initiated in the wake of the,,S~tember· 11,
4
2001, attacks, and those that remain in place today), such infonnation could not be disclosed

without revealing intelligence.sources, methods. and information of the United States and
6
thereby omt..c:ing.exccptionally grave damage to tho national security. Therefore, I assert the state

B secrets nnd DNl statutory privilege. to protect such infonp.ation from disclosure. l~Y way of

9 illustration, set forth below is a largely unclassified dis<iussion of al-Qa'ida and s.~ver-al ofits

10
principal affiliates, followed by a discussion ofsome of the classified threat jnforlnation
11
pertaining·to these terrorist organizations that is subject to this assertion ofprivilege.
12

t. (U) Al~Qa'ida and Its Affiliated Groups

14

29. ~s a}.:Qa•.Jda1s core leadership s!nlggles. to remain r~levant, th¢

15 group has tumed to its affiliate.<; and adherents to ~ out attilcks and to advance. its 1-deology.
16
These gtoups.ate frmn an array ofcountries, including Yemen. Somalia, Nigerin<lraq, and Syr.in.
17
. 'TQ varying degrees, the:1e gr0ups coordirtat<i th~ir activities withand.follow th~ direction of al18
19 Qa'ida leaders in PaJi;istan. Many of the extremist groups themselves.are multidimensional.

20 blurring the Jines betw\'l.en terrorist groups, insurgency, and criminal gangs.

21

30. (U) For example, al-Qa'ida in the Arabiwi Peninsula (AQAP) remains of

22
particular concem to the Urtited States. The National Cout1tertcrrorism Center (NCTC) assesses
23
that this is the most likely entity to attempt attacks in the West. 'Even in the wake of Anwar al~
24

2S Aulaqi's death in Septembat 20J l, this group maintainsthe fotent and capability l:Q. conduct anti-

26 United States attacks with little to t10 warning. In its three att~mpted. attacks agnihst the U.S. 27 Home1and -.tbe airliner plot ofDcc:embor 2009, nn atten1pted attack against U.S.-bound cargo
28

1.5
Classiftr.d/n Csnl<lni, Ex Pnrll! Oecfnl",ttll,lll ofJnmcg R. Cl:ippcr, Direi:tor ofNo.tionnl fntclligonco ,Jewe1cl al. v. Nt.1tlo11al Security Agr.ncyer.al. (Q8.~v.4873·JSW): Shuh~t. el ul. l'. Obama. et al.. No. 01·CV·f>!>:l-JS\V

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planes in Octc5ber 2010. and an airlinerp o ay 2012 similar to the 2009 nttempt ~- AQAP

2 has s}town nn awareness ofthe capabilities ofWestern security procedures and dcmonstr&ted 1ts 3 efforts to adapt. AQAP continues to exploit Yemen's inability to dibTUpt its ~perntions on a

consistent basis to secure safo havens in the c.ountry and mount attacks against the U.S. Embassy

in Sannn.

1

31. (U) AQAP has-also continued to publish the English-language ln~ptl'a

magazine-previo\lsly spearheaded by now·deceased alwAulaqi and Samir Khanr-in order to

mobilize Westem~based individuals for violent action. and the publication continues to reach a
IO
wide global audience ofextremists,
11
32. (U) Al-Qa'ida's affiliate .in Ir11q has demonstrated its cap11city to mount
12
1-:l coordinated, ~ountry-wid~ terro11st ~ttacks is gtowing, os it continues at an increa~ing paoo to knl
14 .Jraqi civJtians by.the scores; even hundreds, wi1h m~ar-..daily car and ·suicide·bomb.,i.;.over the past
15 year, while also publicly aoknowledgi.ng the gruup had ·established an affiliate in S;yria, tl1c al-
Ht
.Nusrah 'Front, with resources diverted from its operations in Iraq. ln..April, AQl declared its
17
merger with .al·Nusrah Front to form the "Islamic State·of lraq and the Levant." Howcveri al!8 19 Nusrab Front's leader rejected the merger and pledged allegiance dire~tly to al-Qa'idu leader
Ayman aJ..zawahitL Zawahiri in June 2013 recognized al-Nusrah Front as an a1-Qa'fda affiliate,
:21 indcpel\rlantof AQI/[$1L and primarily responsible for operatio1ii; in Syria. Despite hi!>
12
differences with al-Qatida leadership over roles insides Syria, AQJ/IS1L' s leader last year
23 ~used Stlf)pott for violence against the·United States~ and continues to supportnl-Qa' ida's
24
global ideology.

.26

33. (U) While alwNusrah Front and AQJ/JSIL at times openly have fought, both

27 groups sha,rc th~ near-icrm goals ofr.einovingthe Syrian regime from power, and 0reatit1g a

16
Cln.S~ificd 111 C11inorn, & Partu D~hiration ofJames R. CIDJlPCr, Dirc<;tor ofN!llional 111tclligcnec Jm1'<!/ l!f al. v. Nit1io11nl Sl!L:11rit)IAgencyct al. (DS-cv•4&73-1SW); Slt11bcN. <:I 9 /. ,._ Obatira, cf al.. No. 07'-cv..n9)·JS\V

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government, favorable to them, based ona strict rtterpretation ofSharia. Jaw. Al:.Nusrah Front
1 n11d AQI/ISII... subscribe t.o a glob:tl jihadist ideology, and each group probably hus ambitions
1 heyond the conflict in Syria. The.gr<)ups potentially hove access to thousands of>.foreign fighters, 4 including some AmeriGnns, who since2012 have traveled to Syria to participate hi the- contlict
for o.. variety ofreasons. Additionally, the groups probably have established training camps,
6
7 familiarizing recruits with combat tactics> as well as the handling offirearms and:explosives. Al· R Nusrall Front and AQI/ISlL's access to foreign fighters, and the pennissive operating 9 ~nv.ironme11tin Syria; raise thelC's cona>rns that su.ch individuals, Americans among them.
ro could be leveraged and trained to conductterrorist attacksin their·home countrie~.
II
34, (U) AQI/ISIL leadership also continues 10 make public statem.en{S! inciting
12
13 violence agitinst govemme~.ts outside of fraq and Syria:. In an August 2013 sta~men~ the ~4 groupts spokesman called on Eg.yptians to attack the Egyptian militm:y and follow the~xaruple 15 ofextremists in lraq and Syiia. 6oth th.e gnJUp's spokesman Hnd its overall lead~r last year
16 threat~ncd. future efforts to tar.get Americans.
17
35. (U) For the first tim~, AQlllSIL in 2()13 begru1 tefoasiug propagaoda. openly
18
19 recruitingWesterners, including Belgian and French speakers; highlighting its intent to build a
-w . ~'lpab·ility to mountattacks against the West. AQIIISlL1s spokesman in mid·201i publicly state ZI the group plans to conduct attacks from eastern Iraq to westem Lebanon. and the,,group's
vitriolic rhetoric and hard~line ngenda ~mgge$t the ·groupposes a broader threat oitt.Side the region
24 than nt nny time since itwas pushed into decljne by U:S. coalition forceu during the lrnq conflict. 36. (U) During the post two-to·four ycarii, A:mericau and CailadiiUJ auihorities haw
°2(• arrested several North An1erica·based AQIIISILassociates, highlighting the potential threat 27 posed to the United States. fn May 201 l, tho FBI arrested Kentuoky·based Iraqi natio.nals. Waaa
28
17
Clo.uif1Cd /11 Camera. Er P'nrte !Xclatalion ofJ11mcs R,, Cl~ppcr, Dtrecrqr ofNaliomll fotclligl!l\CC ./t!l1'd/ el of. v. Nn(lonal Sacurify Agency el al, (OS~v-4873-JSW); Sf111hcl'f, ~l al. v. Obn.ma, d ttl... No, 07-cv-693-JSW

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Alwan and ShareefHamadi for attempting to send weapons and explosives from Kentucky to
Iraq ·l\nd conspiring to COJll.lnit terrorism while in Traq. Alwan plcd guilty to supporting terrorism
3 in Deccmber2011. In January 2010, Canadian authorities arrest~ dual Irnqi-Canudinncitizen
Faruq 'Isa who is accused of vetting individuals on the Internet for suicide operatfons in lraq,
5
37, (U) The IC Cbntinues to monitor aJ..Shabaab and its foreign fighter cadre as a
6
1 potential threat to theU.S. H'on\eland, although the group is mainly focused on C(1mbatiug 8 African Union Mission in Somalia (AMlSOM) forces battling the group in Somalia. The group, 9 which fonnally merged with al~Qa1ida in February 2012t alscnemains intent on conducting 10 attacks against regional and Westcm targets in East Africa, especially in countrie~ contributing t
fl
· theAMJSOM mission. Al~Shabaab associated militants in September2013 com\ucted an attack
12
on a shopping mall in Nairobi, Kenya. Al-Shahaab Jeadei:s "in the past have publiply called for
14 transpational attacks, including threatening to avenge the January 2012 death ofBritish national 15 · and al•Shahaab seniorforeign fighter Bilal Bcrju.wi.
38. (U) Al-Qa'ida in the Lands ofthe tslami.c Maghrcb (AQIM) and i1okt..1 Haram
1'7
· have shown minimal interest in targeting the U.S. Homeland, but remain focuscd;-0n local and
L8
l9' regional attack plotting, including targeting Westem.intereststhrough kidnap•.for..rausom
operations nnd other means. AQIM is actively working with local extrernists it1 northeni Mali to 21 establish a safe ·haven from which to advanee future operational activities. Al-Murabitun, the
22
extremist group fotmed in August 2013 through the merger oftwo AQJM offsbo(1t$ - Mohtar
Belmokhtar's al-Mulathamun Battalion and Tmvhid wal Jihad in West Africa (T\VJWA) -
2S likewise appears focused on·plotting agairist Western interests in North r:md West;Africa. Soko 26 Haram probably has an emerging awareness ofU.S. per~ons or entities in the United States with 27 connccti.ons tQ Nigeria. The group's spokesmanpublicly threatened to find a way to attack a
28
18
C~ificd In Camero. EK P1mc Dooloration ,, fJ0111!'!S R, Clnpptr, DircctorofNational fnrclligc11cc .k'll>-cl cl al 1•. N11flm1afScct1rily.Agcm~ el al_ (08-cv...1873-JSW); Sht1bc11, ~l al. I'. Ob;inro. (!/ nf.. No. 07-cv-Jo93-JSW

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U.S...based news organization ifits coverage o

2

39. (U) In addition, whilemost Pakistani and Afghan militant groups pose a more

dir~ct threat to U.S. interests and our allies in that region. the- lC continues to watch fodndicato

that any.ofthese groups, networks1 or individu'als are actively pursuing or have decided to
5
incorporate·op.erations outside ofSouth Asia RS a strategy to achieve their objecti'ves. Tehrik~e

'l To.liban Pa1dstan (TIP) leader.s ·have repeatedly threatened attacks against the United States, 8 including after the death ofBin ladin. NCTC assesses that lTP's claim ofrespo.nsibiJily for the

failed New York Times Square bombing in May.20.10 demonstrates its willingness to act on this

10
intent.

II

40. ~e NCTC's current classified threat assessment underscores th~

1.2

13 continuing threat posed by al-Qa'ida and its affiliates. While NCTC assess that '\;i>tc" al--Qa~id

14 due to leadership losses ~nd ether setbacks in recent yenrs, is .probably currentlyunable to carry

IS ()Ut comple:<., cootdlnated1 large-scale nttaeks..itt the ·wes~ it remains intent on dofug so. At the
16
san~e -tin!e, the tctt()rist threat to the United States has ·dfversffi.1..'<i to inolud~ groups affiliated or
17
~Hied with nl·Qa'ida. NCTC assesses that theseterrori.btadversaries remain determined to strike
I&
19 against U.S. and.Westem interests1 inCluding via smaller nnd sfmp1er plots that may be m.orc

w (lifficult to detect. Preventing attacks remains-the lC's highest priority. ln this ev.oJving thteat

:21 . landscape, the agencies ofthe IC continue to work together to disruptterroristplots against the

United States at home and overseas, to degrade aJwQa'ida significantly througll rei~tlcss

counterterrorism pressure in key global safe havens, and to sharekey informatiqn·with dotnestic
24

25 and international partners.

26

(2f{sttNJi!).Countcrterrorisin Successes Against al-Qa'ida

27

41. ~ajor counterterrodsm 8'1Ccesses and momentous global events fn recent

llJ
Cla~sif1<!d l11 Canlt:t:l, ErPal'.tc Qcci!Mitfoti qfJQ1llcs R,. C!Qppcr, DircctorofNationul Jnlclligcnce. Jt:1.1•c/.et a/. v, Nglio11alSeC11ril;y Agency ctal. (08-cv-4873-JSW); Shuhet, .u nf, '~ ObfJnuf, ot al., Nu. 07-ev.n93-JSW

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years have altered the terrorist threat landscaj]C in a.way that lessens the direct threat of a large2 scale~ operationally complex. ma.ss-cBsmilty attack against the U.S. Homeland in~benear-1erm.

?

42.. ~l.e deaths of Pnkistan.-ba$ed al-.Q~'idaJeadcr Usama Bin Ladin and

10 .
Yemen-based AQAP planner Anwar.al-Aulaqi in 2011 removed two of the most influential
I!

12 drivers ofthe terrorist threat against the Homeland. These two leaders provided r;trategic

<>vetslght and operational guidance fur·the ro.sjority of the-tnost notable large-senle attacks.nnd

14 ·attempted. nttacks against the United Stat!'S s.inc:c-2001 . AdditiQtially, ·they were r~sponsiblc for

providing inspiration to a global.audience ofal-Qa.fidamembers, allies* and adhm-ents about the

necessity.ofattacking the "faF' Clt<;tny in ordct tp- llCJltCVe the Jongstandiqg goal Of.tllC _g](:')b81

20
or ('l;is~ified !11 Csmcn, fix Parle DC<lfornti<ln J11mi:s R. Chipper, Director ol'Naliorml Intelligence
Jewelel al. \'. Naffl1nal See11rity Ar.t:11cy et al. (08..ev-4&n-JSW}; Sl11tMrr, t!l 4l ''· Obnmt1, et 11/., No. 07-c\Lf\9l-JSW

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17

(3) ~he ConttnulngThreatofal,;Qa.'ida-and its Glohnl Affllintes.

18

45. t'ISllDCS 'GCINF) Notwithsl11ttding the succ.ess~s-:desoribed nbo.vej nl-

19 Qa;ida-and its global atliliates.continueto pose a threat to the.Nation's sooutity, Pakistan-based

al..Qa~idacontinues to demonsti'.gte persistent intent to -conduct attacks against the0 United Smtes.

21 Clagsllicd flt C4nv,:f9., Ex Pline Declan:uion oflllllleS IL Clllppc;r, Ditcctor ofNl)l:ional hllolligcnc.:c Jawel et n/, v. 'National Sc<;urity Agencyat aL (02-cv-4.&73-JSW); Sltr1b411; et nl. 1~ Qham11; urfJ1., 'No. 07-cv-6113.JSW

Case4:08-cv-04373-JSW Document220 Filed05/05/14 Page22 of 37
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2
3
4 Qa'ida's prospects for rebounding from its weakened state are low and depend on its ability to
protectits Pald&tiin~based cadre and global influence, while addressing defi.cienci:cs in leadership
6
and opci:ati<>nlll capabilities. Despite its shrinking leadership cadre, persistentum·est in p)aces
s· sui;;h as Yemen, Libya; Syri~ and Egypt, and the impending withdrawal ofU.S. forces from
I) Afghanista.Q, may provide core.al~Qa'ida·a propaganda opportunityto claim victories over the
10 United States and reinvigorate its image as the leader of the global movement.

12

13

14

15

!(j

17

II!

l1J

41 ~addition, against thisbackdrop of-a weakened core a1~9a'ida, NCTC

:w assesses thatJ11 the coming years the United States wlll befacing a moreinterdependent and

2.1 -diverse terrorist threat .fuan wehave experienced'to date, 'vhich will likely be mor;e difficult to
22
• deteet. An expanded ·setoften·orist :rdversaries

in recent years have carried on al-Qa•ida.1s mantle nnd attempted to stfike. in

25 an.cl.against the U.S. Homeland. Al•Qo'idn's nffiliatc groups are lik~ly to remain-conunitted tQ

26 al~Qa'ida':s id~fogy and to seek opportuniti~ to strike U.S. interests in their operating areas ·or
YI in the West. 111-e intent and capabillty ofeach.affillatc te conduct transnational attacks varies
28

: 2 .::-:::-= ;1..rc. r=r1~ ~': ii:..: .=~r~.t·'":'{f ~:

22

~'=. ... - ~,- ,, - :a- . • ;

Cl:insifii.-d In Cti111cro, E.r Par/<! Dccl11.riltiori of .!ll!l1CS- R. Cl;ippcr, I)irccmr ofNatioriaT lntclligi:nc~ .Jewell!tal. v, Notional Security Agency et nl. (08-cv-48n.JSW); Sl111bar1, I!/ al. ~·. Ob<1m4, <:t al., No, 07-ev-f>93•J5W

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widely, however, in large part becau

I •

I I

. ievi·ng local and regiMal goals.

2. However, .increasing collaboration between al~Qt'ida's affiliates·will .further shift the focal pofot

3 ofthe globaljihad away from South Asia, in particular, as the gl'.OUps share exper lise, advice-and

inspiration in ways that improve .theirattack capabilities and/or understanding pf·our

c:ou~tettertorism capabilitii:s 1md tactics.
6
48. (lS/71tCSl'OCfNF) AQAP continues its efforts to conduct attacks against

Americans in theregionand in the West, AQAPremains committed to its regional agen.d~

10

ll
A.dditional~y, perlodic·reporting r~veats AQAP's-intentions to conduct
12
13 attacks in ~cighboring Gu1f.Statcs

14

49. (j'S/18C$.'0<5Nll) AQAP as qf earl.y

15 operation

that were disrupted byU;S. Government

16
increased security and counlcEterrorism pre$sure mounted.ju response.to the AQAP tI1r:eat
I?
initially cat!Scd the gro~p to.decrease.its operatii)11al t~mpu for futemal attacks and lhniwd its
18

-19 mevements. However_, Vii.th fewer oounterterrorism.operations conducted

the-

IC has observe9.a-recent spike.in attacks that reflects AQAP's- return to a mo~ aggressive
.21 operatipnal approaclt·-as they continue to-purnue multiple plots
22

23

24

28
Classified /i1 C:unur:i-, P.x P4He Dcdgmtion ofJ11ntC3 R. Clapper, Dlr«IPr ofNational li1ti:lll&CllCC Jewel c:t (I/, \'. National SeC11rily Agl!llC)I eraf. (08-cv-4873-JSW); Slruhert, cl ql ) !, Oboma, et al., No. 07· c V-t•93-JSW

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24 Cla~silicd 111 Camera, & P-t1rte Occlllllltion ofJamC$ R. Clapper, Director urNalion1tl lntl!lli!JCncc: /ev.·cl cl a/. it. NationalScettri(V .4gcllc,l' ct al. (08.cv-4873.JS\V); Shu/nm, ~I q/. 11. Obama. at al•• No. 07-cv-693-JS\V

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14 ,propaganda~ al..Qa;ida has encouraged,"lone~wotft extremists to conduct U.S. HQnieland small
IS
anns :lttllcks because ffrearrns.nr.e eBf!Y tg ncquire.IUld-use effectively in the United States ru1 7
17
18 yc~·involving homegrown violeut·e.xtremists.
19 2(f 21
Al-Qa'ida-inspire<l extremists can be expected to attempt to explo'it emerging c-011sutner-offthe shelftechnologies for building, con;;:ealing and 24 triggering IEDs, and Jevetage Qnline resources to vrovi.de the knnw-how for new attack methods.
25 26 27
as
or CIA~ificd In Ouncl"J, Ex P<Jrftl DecfnfQtion J1101c9.t\. Cltipper, 'Oltc.C[OrQfNaliomil ln{clligcn~
Jaw11/ ct al. v. Notiona/.~nii(y Agc11c.vel al. (08-c.v-4873-JSW); Slnihen, ~I al. v. Ob,1nra, e1 al., No. 07-uv-i•!>3-JSW

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2 3 4
s
q 1
~ 9
JO II 12 f3
14 l5
1()
l7
18 19
io
ll
l2 i3 24
2S
-'J0•·
2.7 28
26
Classificd/n Camera, fa Parle Dcclarolio11 ofJw11C§ n . Clapper, lJirc~tor ofN.ilionil.l lmclfigcm:c J~wcl cl nl. 1·. iVa.tfrmnl Scc11rity Age11cy el al. (08-w4873-JSW); Sh11/lu1. et nt: '" Obama, el iii.. N<>. 07-cw693-JSW

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2S

57. (U) .In sum, a variety ofen.ti.ties continue to pose a significant threat to the

26 .nation's security. The U.S. Government is utiliimg all lawful intelligence gathering capabilities,
27 including those·set forth i.n th~ Classified.NSA Oeclnration, to meet these threats ;ind to protect
28

27
Cia.11.qjfrcd In Camcr.i, E:r: Pano Declu~tion ofJnmc~ It Cl11ppcr, Dill:Cll>i' ofNatiomll lntc:llis,'l:llCC
Jewel 0111/. v. Nntlo11alSec11ri1y Agency e.I al. ({)lkv.487J..JSW); Sh11hart at al. v•. ObfJ1tl(1, t!I al., No. 07•C\'4>93-JSW

Case4:08-cv-04373-JSW Document220 Filed05/05/14 Page28 of 37
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the American people, I set forth this information not only·to provide the Court with background

2 infonnation necessary to understand w~y the intelligence activities implicated by or directly at

issue in this case are being undertaken, but also to assert a claim ofprivilege over classified
4 threat infonnatjon. The U.S. Government cannot disclose classified thre1:tt information io s
·addre~u;jngplaintiffs' nllegationn or other issues in this case, or oven io public1y supporting its
Ii
7 assertion ofpriv.ilcge, because to do so ~ould disclose to our adversaries what w~ know oftheir
8 plans and how we.maybe obtaining infonnation aboutthem. Such disclosures wo\tld lead our

9 11dversarics not only to alter their plans, but also to implement greater security for their
10 oommunicationsl thereby increasing therisk ofnon-detection; Jn addition. disclo~urc of threat
II
information might reveat human sources for the United States, compromise those ~ources~ and
12
13 put.their ortheir families1 ·lives in dan~_cr. Accnrdingly, because I believe-that cli,ssified threat

14 information is crucial to understanding the importance ·to ,ournatfonal security ofthe U.S.
15 ·Government's Intelligence activiti¢s, sources, ~dmethods implicotcd bythe plaintiffs'
16
allegations, 1mll$t.nssert the .state secrets privih;gc and the DNT's statutory privilege ove.r tllis
17
elassifi.ed tbrent .ififutmationb~cause ofthc cxceptionully grave danger to national.security that
18
19 . co.uld reason11bly be expected to result ftom its disclosure.

JJ. (U) Information ThatMay TendTo Confirm or Deny Whether ParticuJar

Individuals, Including the Named Plaintiffs, Have Been Subject to NSA

ll

Intelligence Activities.

22
58. (U) Ncxt1 f am also asse~ng-privilege·over iriforrnation that would·.tend to reveal

whether -particular individuttls, includingthe named P.laintitfs in this lawsuit, have-Oe<m subject
2.4
2S to NSA -intelligence activities implicated by plaintiffs' allegations. Disclostlt(}.Of~uch

2C1 · information cat\ be e:x.pected to cause exceptionally grave damage to tl1e national security.

27

59. \TSllSl/~R) understand fto1n the Classified NSA Declaration that the NSA has

28

2!\
Clas11ified In Cameni, Ex Parle D«llltation ofJom~ R. CIBppcr, O~tor ofNatioMl lntolligcncc J'ewclet (I/. v. Na1fq11al Security AgetJey ef al (Q8·~V-4873-JSW): Shuht1r1, et al. 1•. Obama. et f!I.. No. 07-c.~'-6'.IJ.JS\V

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2
3
4
s
con<:Jusion that disclosure ofthese mets can be expected to cause.substa11tial harm to- the national
6 7
would require the disclosure o-t" sensitive and
classified details ·a00Qt NSA intelligence.gathering methods. Accordingly~ I asse.rt the state
~()
secrets and DNI statutory privilege as to this infonnation. II
60. (U) The NSA cannot publicly confii:m or deny whether imy particular lndfvidual
12
is subject to intelligence-gathering-11ctivities, no·matterhow likely or unlikely it might appear
14 that the individual would be subject to surveHlunce. lfthe NSA wet~ to re7Veal that an individual 15 i~ .the wget or a subjech1.fintellig<m~~gathcrlng. the. collection oap.ahili"fy.relating to that
I~
indjyJduat would ccrt-a1nly be compromised, On the otherhand, if the NSA wercito teveal that
1.7
an individual is not tho ~urget or subject oflntclligen~c-gathering1 a_dversai'ies would know tlmt a
18
19 · particular individual has avoided.scrutiny and is a secure source for communicu.titig. Moreover,
p.roViding assurances to those-individuals who are not targets or subjects quickly becomes
21 1mwotkab1ewhen faced with a situation in which an individual bas in fact been a.target or
subjc-et. Ifthe NSA were to oonfftm. that any specific i11diVidual is not a target or·subject of
23
jntelligence·gathenng, but later refuse to confmn or deny that fact in a. situation involving an
24
is actual target·or subject, itwould be appareitt that intclligence-gathermg was occurring in the: i6 latter case. The only recourse for the NSA is to neither confim1 nor d~ny whcthm:- someone has
been targeted by or subject to .NSA intelligence-gathering activities, regardless ofwhether the
2&
l9
Cl!is~flcd /1' Camera. Br Pa>'fc. Ocdnrolion ofJames R. Cli\jlpc;r, Din:ctor ofNational hU\:lligencc Jcll'el el u/. 11 N111/onalSau1?1;; Ag,enc:y et 11{. (08·cwt&73-JSW); Slt11b,.rt, et al. v. Obama, 11tal., No. 01-cv-h93-JSW

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Jndividual ha.I\ been a target or subject or not. o·say otherwise when challenged-in litigation
2 would result in the frequent, routine cXposu.rc ofNSA infomiation, sources, and methods, and
would severely undertrune surveillance activities in general.
c. (U) Information Con4!e.rnf.ng the Scope or Operational DetaUs of NSA
lntemgence Activities, Jncluding.NSA Sources or Methods.
61. (0) Furthennore, I inn l.{Sserting privilege over any other stHl-clas:;ified fads
collceming the :.c0pe or operatio11al details ofany NSA intelligence activities that may rel.ate to
8
orb~necessary to adjudicateplaintiffs'. allegations. As noted above; my privilege assertion
10 includes~ but is notlimited to, (J) facts.concerning. the operation oftlle now:..defu11ct TSP, If including any.facts needed tp demonstrate that the TSP was limited to the interception.ofthe 12 contenti ofone-end foreign communie!ations reasonably believed to inv()lve a member or agent
ofal~Qa'ida or an affiliated terrorist orgtmi7..ation, (2) facts concerning tho operatian of the
14
collection ofcommuntcntions under PISA Section 702; (3) any other infonnati.On-relmed to 15
~em.onsirating that theNSA has not otherwise i:;ogaged in the oontenNmrveilJBI.letJ dragnet that
1'1 the plaintiffs aUeges and (4) still·c1assified iJ1fomwtion concerning. the scope or operational 18 -details efNSA intellig~ce activities involvingthe collection ofbulk com1nunicatinns metadata.
19
·as discussed in greaterdetail in the Classified NSA De~laration.
62. (U) As the NSA 1ndicat~s, sf!e PublicNSA Declaration, the NS.A's collection of
l.I
22 the content ofconnnunieations under the TSP was directed at international communications·in \Vhich a participant was reasonably believed to b~ associated with l'!l•Qa.'ida or an, affiliated
organization. Tlius, as the U.S. -Government has previously stated, plruntiffs • allcgntion thnt the 25
. NSA has indiscriminately collected the content ofmillions ofoommunicafams sent or received
26
1 (U) Tho term "content." i.s used .herein to refer tO the substanci; m~aning, Or' purpo1t of a·conm1uttication~ as dcifined in.18 U.S.C.§ 25l0(8).
Jn
CfllssiftcJ /11 C:tmo111, 8·Pane D.;cln.ration Qfhn1~s R. Clt1p1><!r1Dfrei;IClr 9fNaJimaJ fT11clligc11cc Jewel cl al. \~ Notio11al Securiry Age11~· el.of. (OR-<>v-4813-JSW); Sh11iw-I, <11nl v. Obnftto. ttl al.. No. 07-cv.!>9J.-JS\V

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. by people inside the United States afte ep

.~. , under the TSP is fali.;e. I concur

2 with the NSA that.to the ex:tent it must demonstrate in thi$ case thatthe TSP was ,,ot the content
m 3 dragnet plaintiffs idl~ge, or demonstrate that the NSA has not otherwise engaged the alleged

corttent dragnet, higbly classi-fie4 details·about the sco.pe and operation ofthe TSP and other
5
NSA intcllig~nce. 11ctivities would be) disoloscd, including NSAintelligence s.ourqes and methods,
6
1 thus risking exceptional harm to national securiiy.

8

63. (U) In particular, as set forth in the Classified NSA Declaration, the·United States

fa~ urgent and immediate intclligenoo-challcngesafter the September l l, 2001,. attacks, and
JO . undertook si~a1s intelligence- activities pursuant to presidential authorization that were designed
II
to meet those challenges and to detect.and prevent future terrorist attucks by al~Q:~'ida and its
ti.
13 affiliates. Thoseactiviti:es include the·TSP and ~hnilar seurces and methods ofcontent

14 surveillance that later·became .subject to FISA authority,.as welt as the 'bulk collection of

IS .telephony and Internet non.content metadnta that.was also iater transitioned to PISA authority,

16
and med to discover contncts and communications patterns ofmembers and atliliatcs ofal~
17
QaJido., s~m Classified NS-A Declaration.
18

19

"64. (lJ) Based onmy personal consideration and judgment.as to the ham\ di~closure

2n- .can be expected to cause to uatio11aLsecurity, ttiy-priVilege assertion iltcludesy butis not limite-d

21 to, the tollowiug information discussed in the Classifie.d NSA Declaration.
22 65.
23
the sco.pe and·operation ofthe TSP andany other NSA intelHgence a¢tivities nee-dedto
24
demonstrate ·that theTSP was fonit~d tO -the illt~r.ceptfon of certain 01ie-end communications (i.e.,

26 to or from the United States) reasonably believed to involve a member or agent of.'al·Qa'ida or
21 a.n affiliated terroristoi:gnni7,ntion; the colJection ofcommunications content und~r FISA section

~I
Clas~ificd In C11111m. Rx Pana O«>llll'!ltion qfJnm~~ R. Cl:ipp1:r, Directpr ofNotiom1l ln~elligc11w .le.valel al. 1•. Nollor.al.Sec11rl1_1:Age11C)' JJI 11/. (OS-cv-41173-J~W); Slntb<'~I. t1 07. v. Obama, .et al., No, 07-cv-193-J.SW

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C,H''!) ..i.'~ · :. J.' ::tk . ;··¥1-;~

_,_. • ,. .t,

•.•_...,._~,

702i and the fact that th~ NSA does not otherW'ise·conduct a dragnet·ofcontent survciUance as

2 the plaintiffs allege. Such facts .inelude' those cortcemit'ig(a) how t;Ugets were selected under·the

TSP; (b) the specific methods used under the TSP to intercept telephone and Internet
4 communications; (c) the nature and i~tity of the tar.gets under the TS

d) any ~dditional clilssmcd details about tl10 operation of the 'TSP thatwould be

7 necessa1;y to litigate the plaintiffs' allegations (to the.extent relevant) includingfa'cts conceming
8 the operational swiftness and agility oftbe TSP, particularly in crntjunction with metadata

I) analysis;

and the

and ,10 effectiveness and success ofthe TSP; (e) other NSA surveillance activities,. including
ll
collcction ofcommunications content under FISA section 702, thatmay be needed to address
l?

13 and disprovo-thc-contentdra~etallegations,

1.4

Sae Classified NSA Oc(jla.rnti<m- fn 1l1Y

15 judgment, revealing or risking disclosure ofthe foregoingNSA 1ntclligence activities, sO\trces,
16
and methods in orderto 11how that tltQ NSA fa not conducting the "dragnet'; onthe content of
11
commm1icati()USthat plaintiffs·allege- can be expected to cause ex~eptionally grave harm to
18
19 national secutity bydisclo.sing to our adversaries .the.nbility ofthe United States to monitor and

track their actWities nnd communications.

21

66, (U) I also assert privilege over stil18 classifieci facts that would describe the scope

21
or operational details ·Of other NSA intetligence activities. including but not necessarily limited t
23
metadata collection activities, thatmayrelate t.o or be necessary to adjudicate .plah1tiffs, claims.
24

lS See Classified NSA Declaration. In myjudgmetit, the NSA is unable to disclose infonn.utioti

26 · about the s90pe or operation ofthe NS~1sbulk collection or targ~ted analysis oflntcrnct or
11 teleph()ny metadnta (whether conducted U'{lderpresid<mtial or FISC authority). beyond that whicb
28

Cl1usific<I //1 Can'ICl'll, Ex Parlet Declnmtion of Jnmci .R. Clnflpcr. [)ircct9r ofNational lnl¢lllgencc Jewel ct uf. v. Nfll/Qlia/Securlty A11e11cy al al. (08·CV•4R1J.JSW); Sll11berl, el 111. v. Obama, at nl., No. 1}7.c.v.f,93-JSW

Case4:08-cv-04373-JSW Document220 Filed05/05/14 Page33 of 37
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has already been officially aulmowled ~ I • I I

rrunent. without risking exceptionally

grave 1lamt to national security. Disclosing or confirtning further details about. those activities

J could seriously undermine an importruu tool-telephony inetadnta collcctio11 and :nnalysis-for

tracking possible torrorist plots; snd could reveal methods by which NSA has targeted and

CO!ltit'lues to tnrget its intelHgencc...gathering acUvi.tics, .thus helping.foreign adversaries evade
6
7 . detcctiont and otherwise undermining ongoing intelligence operations conducted under E.O,
11 l 2333 and FISC authorization.

67. ~fn my judgmel:\t, disclosure ofthesestill-:dassified detailsrega:rding these
JU intelligeo:cc-gatheringactivities, either directly or-indirectly, would s~riously compromise, if not
11
destroy, important and vital ongoing intelligence Qperatibns. f concur with the NSA that the
12
IJ. activities discussed herein and rl~scrihed further in the Classified NSA Declarntiou have given

T4 the United Statc~rnnpar.alleled ability to understand the interconnected groups and ag~nts that al~ . [5 Qa'ida. has become, by·alk>wing the NSf.. to identify and trac~ terrorists as lh~y move around the

world-and

After personal oonsiderati<:>n Mthe

: matter, it is myjudgment that disclosing the.infonuation described herein and by tbe NSA would
18
19 cornprQmise important andcritical activities, sources. and methods, thereby helping our udversari~s uvade detection and causing exc;eptionally graYe dama~to the national security of
~I the Unitoo States.

D. (U} Information ThatMay Tend To Confirm bl' Deny Whether AT&T,

23

Verizon, or any Otha- Telecommunications CarrierRlls Pt()vfded A$sist:ince

To .the NSA In Co.nnectioJJ With. Any "lnteWgeme Adivlty.

25

68. (U) In addition, Lam asserting privilege over information that ma:,: tend to

26 confirm or deny whether or not AT&T, Verizon, or to the ~·xtent n~e:ismy, any other particu.lar 27 teleconununi¢nt)on_s pi:ovider, has assisted any NSA intelligence activity, includjng but not
28

.33
Cla.~~ifiud /11 C1ullt.'T11, .h:x Pm·l4 D~cl11r111ion ofJruni:.i R. Clapper, Djn:ctoi:orNatio11t1l J11Mligcncc Jewel e1 .1/, v, Naiio11q/ Sectuity.Age11cycl al. (O&-tv.'1Sn.JS.W); Shubert; 01nl.1•. Obantn. Cf.t1J" No. 0?-cv-t-93·JSW

Case4:08-cv-04373-JSW Document220 Filed05/05/14 Page34 of 37
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necessarily limited to the alleged intel 1g~nce act1v~Ms. The disclosure ofany information thnt would tend to confirm or deny allegations ofsuch assistance can be ·expected to cv.use l exceptionally grave hann to the national security, for a variety ofreasons.
69 , (U) First, oonfirming or denying such allegations would reveal to foreign
5
adversnric.~ whether or not the NSA utilizes particular intelligence sources and m~U1ods and,
6
1 thus, either compromise actual sources and methods or disclos-c that the NSA does not utilize a 11 ·particul!lf source or method. For example, revealing that a particular company asl\ists the NSA I} would compromisea.range ofinte})jgence act:ivitfos by providing confttmation that certain 10 chann~Js ofcommunications are vulnerabl'e·to NSA,. interception. Co.nfirmation or denial of a
II
carrier'·s assistancewould replace speculation with certainty for hostile forei&>n adversarie.s who 13 .are balancing the risk that a particulill' cl1annel.ofcommunicafo:m may not be s~qre against the
34 Clas.~ified //1 Camcrn, Ex f>artl!' Oc;olaratioo ofJam~ R. Cl:JPPl!T1 Director ofNijtion.al Intelligence Jt.'Wt?ICl af, v. Nl'ltint11J/ Ser..11rityAgt11i-',y11/ al. (08-ev-4&73-JSW}; Shubert, ..1nl. l\ Ohat1111, el al., No. 07·1;v•h93·JS\V

Case4:08-cv-04373-JSW Document220 Filed05/05/14 Page35 of 37
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I . 1· , , ~-- .. -
Cl8flSified NSA Declaration.2

.25

~~l44n addition, I have reviewed the classified

certifiqationofthcn~Attorney General Muknsey submitted to the Court pursuant to Section 802

oftheJ!J-SA Act Amendments Act of2008

· '

· ·

A 11

described therein-. includin
211

3S
Ch~~iffoi.l./1t Contctn, .Ex PnrJo Oc;;laru!ion ofJarnCS-R. Cl\l))j)CT, Ditcelor of f-!ationu I lntclllgenc.:
Jewelci al. v. NaJft>ilalSecurityAf!enqet al. (08-cv-4873-JSW): Sl1t1hert, «of.-" Obnm", i!f nl.. No. 07-cv-l>Q3-JSW

Case4:08-cv-04373-JSW Document220 Filed05/05/14 Page36 of 37
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3 4

6

7

And this, in tlU11; would seriously

8 undennine the NS.A's very ability to perform its mission effectively,

9

-73, ~All ofthiS'remains soj i!l my judl,'IJlel}t. notwithstanding

Ii
12 J3_
14 IS 16·
17 18 19
20
ll

23 24

Cla~~ilic<l /11 Canu;ni. ~Pane Dcclar;nion ofJa~ R. Clllpper, Director ofN3llonal ll11Cllig<:nce J1ru•el et nf. t'- Narlonal Security Agcn.:.y ai 4/, (08-cw-487J;JsW); Sltubcrt, r:r"'· v. Obama, et nl. , No. 07•cv-fl93·JS\V

Case4:08-cv-04373-JSW Document220 Filed05/05/14 Page37 of 37
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to cause exceptionally grave harm to the national security

2 ·ofthe United States, and any infonnation th.at would tend to

must be

3 ptQtected from disclosure in this case. Accordingly, I assert the state secrets and DNI statutory

4 privilege over such information, including the information about
s in. the. Classified NSA D®laratfon.
. 6

cscribed

7

(U) <;CONCLUSION

75. (CJ) ln sum, 1 am asserting the state secrets privilege and the DNI's,statutory
9
privilege set forth in 50 U.S.C. § 3024(i)(l) to protect the classified uational security information
10
11 • -described-ht!rcitt and in the Classified NSA Declaration. I respectfully request that the Court not

12 onlypmteqt that information fromdis¢1osure, b11t talce all steps neces:;ary to prote¢t the 13" . intelligence information, sources, arid ·methods described herein in ·order to. prevent exc;eption.ally

grave damage to the national s-oourity ofthe United States.
15
I declare under penalty·O'fperjruy that the foregoing is true ond correct,
16

17

18 ·E~ecutedon: December 20, 2013
.19

20·

,f;t,~I faV\~1. ~-- - -

MES R.. CLAPPER

Director of National Intel!igence

24
2S
26 i1
23

37 Classif\ad /11 ClllJ'.etn. ~Porte Doolaration ofJnf110:t R. Clopp¢r, Director ofNotionul Tnt.:llig1mcc Jew~/ ez.q/, v. NaUoilal Securitg At.encyet al. (08-c\'-487'.\-JSW); Shubert, ·el nl. v, .Obama. 111 al.. No. 07....v.6.!>3·.IS\V

 
 Case4:08-cv-04373-JSW Document227 Filed05/05/14 Page1 of 86
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TOP SEIC~T/iSTL'Ji'ISI. .OR:CON~mFOIUl

STUART F. DELERY

2 Assistant Attorney General

3 JOSEPH H. HUNT

4 Director, Federal Programs Branch

5 ANTHONY J. COPPOLINO

6 Deputy Branch Director

7 JAMES J. GILLIGAN

8 Special Litigation Counsel

9 MARCIA BERMAN

to Senior Trial Counsel

11 BRYANDEARINGER

12 RODNEYPATTON

13 Trial Attorneys

14 U.S. Department ofJustice

15 Civil Division, Federal Programs Branch

16 20 Massachusetts Avenue, NW

17 Washington, D.C. 20001

18 Phone: (202) 514-2205

19 Fax: (202) 616-8470

20 Attorneysfor the United States and Government

21 Defendants Sued in their Official Capacities

22

23

UNITED STATES DISTRICT COURT

24

NORTHERN DISTRICT OF CALIFORNIA

25

SAN FRANCISCO DIVISION

26

27 CAROLYN JEWEL, et al.

) Case No. 08-cv-4373-JSW

28

)

29

Plaintiffs,

)

30

)

31 v.

)

32

)

33 NATIONAL SECURITY AGENCY, et al.

)

34

)

35

Defendants.

)

36 ~~~~~~~~~~~~~~~ )

37

)

38 VIRGINIA SHUBERT, et al.

)

Case No. 07-cv-693-JSW

39
40 Plaintiffs,

) CLASSIFIED DECLARATION ) OF FRANCES J. FLEISCH,

41
42 v.

) NATIONAL SECURITY AGENCY ) EXPARTE, IN CAMERA SUBMISSION

43

)

44 BARACK OBAMA, et al.

) No Hearing Scheduled

45

) Courtroom 11, 19th Floor

46 Defendants.

) Judge Jeffrey S. White

47 ~~~~~~~~~~~~~~ )

48

Classified In Camera, Ex Parle Declaration ofFrances J. Fleisch, National Security Agency

1

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

TOP SBGRBTJ/STLW,1£1. .0RCON/~lOFOIUl

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(U) Table of Contents

2

3
4 I. (U) INTRODUCTION

5
6 II. (U) CLASSIFICATION OF DECLARATION

7
8 III. (U) SUMMARY

9

10 IV. (U) BACKGROUND

11

12

A. (U) The National Security Agency

13

B. (U) September 11, 2001, and the al Qaeda Threat

14

C. (U) Plaintiffs' Allegations and the Government's Prior Assertions

15

of Privilege

16

D. (U) Official Disclosures Since September 2012

17

18

1. (U) Collection ofBulk Telephony Metadata Under Section 215

19

ofthe FISA

20

21

2. (U) Bulk Collection of Internet Metadata

22

23

3. (U) Collection of Communications Content Pursuant to

24

Section 702 of FISA

25

26

4. (U) Presidentially Authorized NSA Activities After 9/11

27

28 V. (U) INFORMATION SUBJECT TO ASSERTIONS OF PRIVILEGE
29

30 VI. (U) HARM OF DISCLOSURE OF PRIVILEGED INFORMATION

31

32

A. (U) Information Concerning Whether Plaintiffs Have Been

33

Subject to the Alleged NSA Activities

34

35

1. (TS/"811/N.F)

36

37

2. (TS//SIHNF)

38

39

3. (U) Harm of Disclosing Whether Plaintiffs Were Subject

40

to NSA Activities

41

42

B. (U) Operational Information Concerning NSA Intelligence Activities

43

44

1. (U) Information Concerning Plaintiffs' Content Surveillance

45

Allegations

Page 4 5 8 12 12 15 19 20 21
24 24
26
28 29 29
30 31 32
35 36

Classified In Camera, Ex Parle Declaration ofFrances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- I791)
TOP Sli!sG~l'Jl8TL',l,l~l. .ORCOl'I~IOFORl>I

Case4:08-cv-04373-JSW Document227 Filed05/05/14 Page3 of 86
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TOP SEGRB:rt.'STL\WSl. .OR€0N/NOFOffi~

2

2. (U) Information Concerning Plaintiffs, Communications Records 47

3

Collection AJ!egations

4

5

(a) (U) Collection of Bulk Telephony Metadata

47

6

7

(b) (U) Internet Metadata Collection

53

8

9

61

10

II

12

I . (T8/"81/INF)

64

13

14

2. ~0CINJB

69

15

16

69

17

18

19

74

20

21

22

3. ~0C/NF)

77

23

24

80

25

26

27 VII. (U) CONCLUSION

84

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

Classified In Camera, Ex Parle Declaration ofFrances J. FJeisch, National Security Agency

3

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l 791)

+OP SBGRET//STLW/SI. .ORGml+HOPOffil

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TOP SECRBT/ISTL\\98!. .0RCOWNOFOIUl

CLASSIFIED DECLARATION OF FRANCES J. FLEISCH

2

NATIONAL SECURITY AGENCY

3

4

(U) I, Frances J. Fleisch, do hereby state and declare as follows:

5

6 I. (U) INTRODUCTION

7

1. (U) I am the Acting Deputy Director for the National Security Agency ("NSA" or

8 "Agency"), an intelligence agency within the Department ofDefense. I have held this position

9 since December 9, 2013. Prior to holding the position ofActing Deputy Director, I was the

10 Agency's Executive Director from June 2010 to December 8, 2013. Before moving into the

11 Executive Director position, I served in a number of leadership and management positions since

12 joining the agency in 1980. As Acting Deputy Director, I serve as the senior civilian leader of

13 the NSA and act as the Agency's chief operating officer, responsible for guiding and directing

14 strategies, operations, and policy. Under our internal regulations, and in the absence ofthe 15 Director of the NSA, I am r~sponsibk for directing the NSA, overseeing the operations

16 undertaken to carry out its mission and, by specific charge ofthe President and the Director of

17 National Intelligence, protecting NSA activities and intelligence sources and methods. I have

18 been designated an original TOP SECRET classification authority under Executive Order ("EO")

19 No. 13526, 75 Fed. Reg. 707 (2009), and Department ofDefense Manual No. 5200.1, Vol. I,

20 Information and Security Program (Feb. 24, 2012).

21

2. (U) The purpose of this declaration is to support an assertion of the military and

22 state secrets privilege (hereafter, "state secrets privilege") by the Director ofNational

23 Intelligence (''DNI") as the head of the Intelligence Community, as well as the DNI's assertion

24 of a statutory privilege under the National Security Act, to protect information related to the

25 NSA activities described herein below. Through this declaration, I also hereby invoke and assert

Classified In Camera, Ex Parte Declaration ofFrances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)
TOP SilCRET//STL\W~a. .ORCOH~lOPOR:l-1

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TOP SBCR-BTOSTL\WSl. .ORCffi~fOFOffi*

the NSA's statutory privilege set forth in Section 6 of the National Security Agency Act of 1959,

2 Public Law No. 86-36 (codified at 50 U.S.C. 3601 et seq.) ("NSA Act"), to protect the
3 information related to the NSA activities described herein below. General Keith B. Alexander,

4 the Director ofthe NSA, has been sued in his official and individual capacities in the above-

5 captioned litigation and has recused himself from the decision on whether to assert privilege in

6 his official capacity. As the Acting Deputy Director, and by specific delegation of the Director, I

7 am authorized to review the materials associated with this litigation, prepare whatever

8 declarations I determine are appropriate, and determine whether to assert the NSA's statutory

9 privilege. The statements made herein are based on my personal knowledge ofNSA activities

10 and operations, and on information made available to me as the Acting Deputy Director of the II NSA.

12 II. (U) CLASSIFICATION OF DECLARATION

13

3. (8/ISJJ/:NF) This declaration is classified TOP SECRET//STLW/ SI-

14 -ORCON/NOFORN pursuant to the standards in Executive Order No. 13526. See 75 Fed.

15 Reg. 707 (Dec. 29, 2009). Under Executive Order No. 13526, information is classified "TOP

16 SECRET" if unauthorized disclosure of the information reasonably could be expected to cause

11 exceptionally grave damage to the national security ofthe United States; "SECRET" if

18 unauthorized disclosure of the information reasonably could be expected to cause serious

19 damage to national security; and "CONFIDENTIAL" if unauthorized disclosure of the

20 information reasonably could be expected to cause identifiable damage to national security. At

21 the beginning of each paragraph of this declaration, the letter or letters in parentheses

22 designate(s) the level ofclassification of the information the paragraph contains. When used for

Classified In Camera, Ex Parte Declaration ofPrances J. Fleisch, National Security Agency

5

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

TOP SBCRBT//STL"T.,£SI. .ORCm~mFOIUI

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'FOP S6CR:ltt/i'STLWJ81. .0RCON~mFOffi~

this purpose, the letters "U," "C," "S," and "TS" indicate respectively that the information is

2 either UNCLASSIFIED, or is classified CONFIDENTIAL, SECRET, or TOP SECRET. 1

3

4. (U) Additionally, this declaration contains Sensitive Compartm~nted Information

4 ("SCI"), which is "information that not only is classified for national security reasons as Top

5 Secret, Secret, or Confidential, but also is subject to special access and handling requirements

6 because it involves or derives from particularly sensitive intelligence sources and methods." 28

7 C.F.R. § 17.18(a). Because of the exceptional sensitivity and vulnerability of such information,

8 these safeguards and access requirements exceed the access standards that are normally required

9 for information of the same classification level. Specifically, this declaration references

10 communications intelligence ("COMINT"), also referred to as special intelligence ("SI"), which

11 is a subcategory of SCI. CO.MINT or SI identifies SCI that was derived from exploiting

12 cryptographic systems or other protected sources by applying methods or techniques, or from

13 foreign communications.

14

5. (T8h'Sl//OCINF) This declaration also contains information related to or derived

15 from the STELLARWIND program, a controlled access signals intelligence program under

16 Presidential authorization created in response to the attacks of September 11, 2001. In this

17 declaration, information pertaining to the STELLARWIND program is denoted with the special

l8 marking "STLW" and requires more restrictive handling. Despite the December 2005 public

1 (TSNSll/OC/NF) In prior declarations and briefing materials, the NSA has used the "TSP" designation to refer to the portion of the ro ram that was ublicl disclosed b thenPresident Bush in December 2005.

Classified Jn Camera, Ex Parte Declaration ofFrances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- l 791)
TOP SEGRiff/,tSTL\l,~!Sf. .ORCONi!!>IOFOR~~

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TOP SBCRBTl/STLW/81. .0RCON~~OFORH

acknowledgement of the Terrorist Surveillance Program ("TSP"), and the recent public 2 acknowledgment by the U.S. Government ofNSA telephony and Internet metadata collection 3 activities that were also part of the STELLARWIND program, certain details about the 4 STELLARWIND program (including the TSP) remain highly classified and strictly s compartmented.

6

7 8

9

JO

11

12

6. (U//FOUO) Finally, the "ORCON" designator means that the originator of the

13 information controls to whom it is released. In addition to the fact that classified information

14 contained herein may not be revealed to any person without authorization pursuant to Executive

15 Order 13526, this declaration contains information that may not be released to foreign

16 governments, foreign nationals, or non-U.S. citizens without permission of the originator and in

17 accordance with DNI policy. This information is labeled "NOFORN."

Classified Jn Camera, Ex Parle Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- l 791)
TOP SBCRBTh'STLWJSI. .OR:C@l~IOFORn

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TOP SECRET//STLWISl. .ORCm~lOFORl'~

III. (U) SUMMARY

2

7. (U) Plaintiffs in this litigation allege that, following the terrorist attacks of

3 September 11, 2001, the NSA, pursuant to presidential authorization and with the assistance of

4 plaintiffs' telecommunications companies (namely, AT&T and Verizon), indiscriminately

s intercepted the content and obtained the communications records of millions ofordinary

6 Americans as part ofan alleged "dragnet" communications surveillance. The Government has

7 previously asserted the state secrets privilege in these cases, most recently in September 2012, to

8 protect from disclosure highly sensitive intelligence-gathering information relevant to

9 confirming or negating plaintiffs' allegations. This declaration responds to the Court's order that

1o the Government explain the impact of recent official disclosures about NSA intelligence-

11 gathering activities on the national security issues in the litigation, as reflected in its state secrets

12 privilege assertion. July 23, 2013 Amended Order (ECF No. 153 at 25); Sept. 27, 2013 13 Transcript ofProceedings at 7.3

14

8. (U) The Government's recent official disclosures follow a series of

1s unprecedented, unauthorized, and unlawful disclosures, by a fmmer NSA contractor, of Top

16 Secret documents concerning certain classified NSA surveillance programs. The media revealed

17 those unauthorized disclosures beginning in June 2013. These disclosures are now risking, and·

18 in some cases causing, the exceptionally grave damage to national security that the Government

19 has previously identified tu the Court, including the loss ofvaluable intelligence and,

3 (U) This declaration supplants all prior privilege assertions. In order to focus on the information which remains subject to this privilege assertion, this declaration does not repeat or address all topics that were addressed in prior declarations. The Court is respectfully referred to prior declarations for additional background.

Classified In Camera, Ex Parle Declaration ofPrances J. Fleisch, National Security Agency

8

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

TOP SBC:RdHNS=FLWISI. .OR.Cffi>l~IOFOR~~

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TOP SBC&BT//STLW/SI. .ORCffiW'lOFORl'l

specifically, information that may assist in detecting or preventing a future mass casualty

2 terrorist attack.

3

9. (U) The Government responded to the recent unlawful disclosures by officially

4 acknowledging the existence of certain programs because ofthe importance of correcting

5 inaccurate information to the public about those programs, despite the harm to national security

6 that such an official acknowledgement would cause. In sum, the Government confirmed the

7 existence and some information concerning (1) the telephony metadata program, in which the

8 NSA obtains, pursuant to orders issued by the Foreign Intelligence Surveillance Court ("FlSC"),

9 telephone company business records in bulk containing certain non-content information about

10 phone calls made, such as the phone numbers dialed, and the date, time, and duration of the calls,

11 and uses that information to identify unknown terrorist operatives; (2) a previous program of

12 bulk collection of certain Internet metadata, such as the "to" and "from" lines of an emaH and the

13 date and time the email was sent, also authorized by the FISC and also for counter-terrorism

14 purposes; and (3) certain information about the Government's use of authority conferred by

15 Section 702 ofthe Foreign Intelligence Surveillance Act ("FISA"), to collect, for foreign

16 intelligence purposes, certain communications of non-U.S. persons located outside the United

I7 States, pursuant to approval of the FISC.

18

10. (U) In addition, the Government has now declassified the existence of the two

19 metadata collection activities that were conducted prior to FISC authorization, under presidential

20 authorizations issued by President Bush in the wake ofthe September 11 attacks. But for many

21 reasons vital to national security, the classified sources and methods (many ofwhich the NSA

22 continues to utilize today), intelligence gathered, and operational details of what has been called

23 the President's Surveillance Program ("PSP") must remain protected from public disclosure to

Classified In Camera, Ex Parle Declaration ofPrances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)
TOP 8BCR:8TJ,ISTb\W8I. .OR-COl>W>fOFORl'~

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TOP SBCRET//STL\WSI. .ORCm~fOfO~f

avoid even greater damage to national security than is already occurring as a result ofthe

2 unlawful disclosures. To the extent this information is at risk of disclosure in litigating

3 plaintiffs' claims, the Government continues to asse1t the state secrets privilege and applicable

4 statutory privileges over that information. In particular, and in unclassified terms, the privilege

5 applies to information about whether plaintiffs themselves have been subject to any ofthe

6 surveillance aclivities they complain about; classified intelligence sources and methods of the

7 NSA programs at issue, such as the identities of any telecommunications carriers and facilities

s that provided assistance to the NSA; and intelligence collected under the programs.

9

11. (TSltslf/NF)

IO

11

12

13

14

15

16

17

18

19

20

21 22

23

Classified In Camera, Ex Parle Declaration ofFrances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)
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6
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Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- l 79l)

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14. ~l/OC!m')

2

3

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7

8

9

10

]]

15. (U) For all of these reasons, as further detailed below, the Government continues

12 to assert the state secrets privilege in these cases, as described in my declaration, notwithstanding

13 the Government's recent official disclosures.

14 IV. (U) BACKGROUND

15

A. (U) Tbe National Security Agency

16

16. (U) The NSA was established by Presidential Directive in 1952 as a separately

17 organized agency within the Department ofDefense. The NSA's foreign intelligence mission

18 includes the responsibility to collect, process, analyze, produce, and disseminate signals 19 intelligence ("SIGINT") information, of which COMINT is a significant subset, for (a) national

20 foreign intelligence purposes, (b) counterintelligence purposes, and (c) the support of military 21 operations. See Executive Order 12333, § 1.7(c), as amended,4

4 (U) Executive Order 12333, reprinted as amended in 50 U.S.C § 3001 note, generally

Classified Jn Camera, Ex Parte Declaration ofPrances J. Fleisch, National Security Agency

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Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-179 l)

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17. (T8H811/NF) SIGINT consists of three subcategories: (1) COMINT; (2) 2 electronic intelligence ("BLINT"); and (3) foreign instrumentation signals intelligence 3 ("FISINT"). COMINT is defined as "all procedures and methods used in the interception of 4 communications and the obtaining of information from such communications by other than the 5 intended recipients." 18 U.S.C. § 798. COMINT includes information derived from the 6 interception of foreign and international communications, such as voice, facsimile, and ·7 computer-to-computer information conveyed via a number ofmeans

9 from foreign non-communications electromagnetic radiations except atomic detonation or

10 radioactive sources---in essence, radar systems affiliated with military weapons platforms (e.g.,

11 anti-ship) and civilian systems (e.g., shipboard and air traffic control radars). FISINT is derived

12 from the intercept offoreign electromagnetic emissions associated with the testing and

13 operational deployment of non-U.S. aerospace, surface, and subsurface systems.

14

18. (U) The NSA's SIGINT responsibilities include establishing and operating an

15 effective unified organization to conduct SIGINT activities set fo1th in EO 12333, § l.7(c)(2), as

16 amended. In performing its SIGINT mission, the NSA has developed a sophisticated worldwide

17 SIGINT collection network that acquires, among other things, foreign and international

18 electronic communications and related information. The technological infrastructure that

19 supports the NSA's foreign intelligence information collection network has taken years to

describes the NSA's authority to collect foreign intelligence that is not subject to the FISA definition of electronic surveillance, including activities undertaken abroad. Section 1.7(c) of E.O. 12333, as amended, specifically authorizes the NSA to "Collect (including through clandestine means), process, analyze, produce, and disseminate signals intelligence information for foreign intelligence and counterintelligence purposes to support national and departmental missions."

Classified In Camera, F,x Parte Declaration ofFrances J. Fleisch, National Security Agency

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Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:OG-cv-1791)

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develop at a cost of billions ofdollars and untold human effort. It relies on sophisticated

2 collection and processing technology.

3

19. (U) There are two primary reasons for gathering and analyzing foreign

4 intelligence information. The first, and most important, is to gain information required to direct

s U.S. resources as necessary to counter external threats and in support of military operations. The

6 second reason is to obtain information necessary to the formulation of U.S. foreign policy.

1 Foreign intelligence information provided by the NSA is thus relevant to a wide range of

8 important issues, including military order of battle; threat warnings and readiness; arms

9 proliferation; international terrorism; counter-intelligence; and foreign aspects of international

10 narcotics trafficking.

II

20. (U) The NSA's ability to produce foreign intelligence information depends on its

12 access to foreign and international electronic communications. Foreign intelligence produced by

13 COMINT activities is an extremely important patt of the overall foreign intelligence information

14 available to the United States and is often unobtainable by other means. Public disclosure of

1s either the capability to collect specific communications or the substance ofthe information

16 derived from such collection itself can easily alert targets to the vulnerability oftheir

17 communications. Disclosure of even a single communication holds the potential of revealing

18 intelligence collection techniques that are applied against targets around the world. Once alerted,

19 targets can frustrate COMINT colleclion by using different or new encryption techniques, by

20 disseminating disinformation, or by utilizing a different communications link. Such evasion

21 techniques may inhibit access to the target's communications and therefore deny the United

22 States access to information crucial to the defense ofthe United States both at home and abroad.

23 COMINT is provided special statutory protection under 18 U.S.C. § 798, which makes it a crime

Classified In Camera, Ex Parle Declaration ofFrances J. Fleisch, National Security Agency

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Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l 79l)

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to knowingly disclose to an unauthorized person classified information "concerning the

2 communication intelligence activities of the United States or any foreign government."

3

B. (U) September 11, 2001, and the al Qaeda Threat

4

21. (U) On September 11, 2001, the al Qaeda terrorist network launched a set of

5 coordinated attacks along the East Coast of the United States. Four commercial jetliners, each

6 carefully selected to be fully loaded with fuel for a transcontinental flight, were hijacked by al

1 Qaeda operatives. Those operatives targeted the Nation's financial center in New York with two

8 of the jetliners, which they deliberately flew into the Twin Towers of the World Trade Center.

9 Al Qaeda targeted the headquarters ofthe Nation's Armed Forces, the Pentagon, with the third

10 jetliner. Al Qaeda operatives were apparently headed toward Washington, D.C. with the fourth

11 jetliner when passengers struggled with the hijackers and the plane crashed in Shanksville,

12 Pennsylvania. The intended target of this fourth jetliner was most likely the White House or the

13 Capito], strongly suggesting that al Qaeda's intended mission was to strike a decapitating blow to

14 the Government of the United States-to kill the President, the Vice President, or Members of

15 Congress. The attacks of September 11 resulted in approximately 3,000 deaths-the highest

16 single-day death toll from hostile foreign attacks in the Nation's history. In addition, these

17 attacks shut down air travel in the United States, disrupted the Nation's financial markets and

18 government operations, and caused billions of dollars of damage to the economy.

19

22. (U) On September 14, 2001, a national emergency was declared "by reason of the

20 terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the

21 continuing and immediate threat of further attacks on the United States." Presidential

22 Proclamation No. 7463, 66 Fed. Reg. 48199 (Sept. 14, 2001). On September 14, 2001, both

23 Houses ofCongress passed a Joint Resolution authorizing the President of the United States "to

Classified In Camera, Ex Parte Declaration ofFrances J. Fleisch, National Security Agency

15

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

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use all necessary and appropriate force against those nations, organizations, or persons he

2 determines planned, authorized, committed, or aided the terrorist attacks" of September 11.

3 Authorization for Use of Military Force, Pub. L. No. 107-40 § 21(a), 115 Stat. 224, 224 (Sept. 4 18, 2001) ("Cong. Auth."). Congress also expressly acknowledged that the attacks rendered it

5 "necessary and appropriate" for the United States to exercise its right "to protect United States 6 citizens both at home and abroad," and acknowledged in particular that "the President has

7 authority under the Constitution to take action to deter and prevent acts of international terrorism 8 against the United States." Id. pmbl.5

9

23. (U) As a result ofthe unprecedented attacks of September 11, 2001, the United

10 States found itself immediately propelled into a conflict with al Qaeda and its associated forces,

11 set of groups that possesses the evolving capability and intention of inflicting further attacks on 12 the United States. That conflict is continuing today, at home as well as abroad. Moreover, the 13 conflict against al Qaeda and its allies is a very different kind of conflict, against a very different

14 enemy, than any other conflict or enemy the Nation has previously faced. Al Qaeda and its 15 affiliates operate not as a traditional nation-state but as a diffuse, decentralized network of

5 (U) Following the 9/11 attacks, the United States also immediately began plans for a military response directed at al Qaeda's training grounds and havens in Afghanistan. A Military Order was issued stating that the attacks of September 11 "created a state of armed conflict," see Military Order by the President§ l(a), 66 Fed. Reg. 57833, 57833 (Nov. 13, 2001), and that al Qaeda terrorists "possess both the capability and the intention to undertake further terrorist attacks against the United States that, if not detected and prevented, will cause mass deaths, mass injuries, and massive destruction ofproperty, and may place at risk the continuity of the operations of the United States Government," and concluding that "an extraordinary emergency exists for national defense purposes." Military Order,§ l(c), (g), 66 Fed. Reg. at 57833-34. Indeed, shortly after the attacks, NATO took the unprecedented step of invoking article 5 of the North Atlantic Treaty, which provides that an "armed attack against one or more of [the parties] shall be considered an attack against them all." North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 2244, 34 U.N.T.S. 243, 246.
Classified In Camera, Ex Parle Declaration ofFrances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)
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individuals, cells, and loosely associated, often disparate groups, that act sometimes in concert,

2 sometimes independently, and sometimes in the United States, but always in secret-and their

3 mission is to destroy lives and to disrupt a way of life through terrorist acts. Al Qaeda works in

4 the shadows; secrecy is essential to al Qaeda's success in plotting and executing its terrorist

5 attacks.

6

24. (TSJ/81//NF) The 9/11 attacks posed significant challenges for the NSA's signals

7 intelligence mission because of

11 developed in recent years into a loosely interconnected system-a network of networks- that is 12 ideally suited for the secret communications needs of loosely affiliated terrorist cells. Hundreds 13 oflntemet service providers, or "ISPs," and other providers of communications services offer a 14 wide variety of global communications options, often free of charge.
15 16 17 18 19
20
21
22
23
Classified In Camera, Ex Parte Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) {M:06-cv-1791)
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3

4

5

6

7

8

9

10

11

12

13

14

26. (U) Our efforts against al Qaeda and its affiliates therefore present critical

15 challenges for the Nation's communications intelligence capabilities. First, in this type of

16 conflict, more so than in any other we have ever faced, communications intelligence is essential

17 to our ability to identify the enemy and to detect and disrupt its plans for further attacks on the

18 United States. Communications intelligence often is the only means we have to learn the

19 identities ofparticular individuals who are involved in terrorist activities and the existence of

20 particular terrorist threats. Second, at the same time that communications intelligence is more

21 important than ever, the decentralized, non-hierarchical nature of the enemy and their

22 sophistication in exploiting the agility of modern telecommunications make successful

23 communications intelligence more difficult than ever. It is against this backdrop that the risks

Classified In Camera, Ex Parle Declaration ofFrances J. Fleisch, National Security Agency

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Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l79l)

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presented by this litigation should be assessed, in particular the risks of disclosing NSA sources

2 and methods implicated by the claims being raised.

3

C. (U) Plaintiffs' Allegations and the Government's Prior Assertions of Privilege

4

27. (U) In the course of my official duties, I have been advised of the Jewel and

5 Shubert cases, and I have reviewed the allegations raised in this litigation, including the

6 Complaint filed in the Jewel action on September 18, 2008, and the Second Amended Complaint

7 ("SAC") filed in the Shubert action on May 8, 2012. In sum, plaintiffs allege that, after the 9/11

s attacks, the NSA received presidential authorization to engage in "dragnet,, communications
9 surveillance in concert with major telecommunications companies. See, e.g., Jewel CompI. iii! 210 3, Shubert SAC 1i! 1-7. Plaintiffs allege that, pursuant to presidential authorization and with the

11 assistance oftelecommunication companies (including AT&T and Verizon), the NSA

12 indiscriminately intercepted the content and obtained the communications records of millions of

13 ordinary Americans. Plaintiffs seek relief in this litigation that would prohibit such collection

14 activities, even though they were later transitioned to FISC-authorized programs and remain so

15 to the extent the programs continue.

16

28. (U) In addition, I am familiar with the previous classified declarations filed in

17 these cases in September and November 2012. Jn those declarations, the DNI and the NSA

18 asserted the state secrets privilege over the following broad categories of information: (1) any 19 information that may tend to confirm or deny wht:lht:r particular individuals, including plaintiffs,

20 have been subject to the alleged NSA intelligence activities; and (2) any information concerning

21 NSA intelligence activities, sources, or methods that may relate to or be necessary to adjudicate

22 plaintiffs' ailegations, including allegations that the NSA, with the assistance of

23 telecommunications carriers such as AT&T and Verizon, indiscriminately intercepts the content

Classified In Camera, & Parle Declaration ofFrances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)
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of communications and collects the communication records ofmillions ofAmericans as part of

2 an alleged program authorized by the President after 9/11. This latter category included (i)

3 information concerning the scope and operation of the now inoperative TSP regarding the

4 interception ofthe content ofce1tain international communications reasonably believed to
s involve a member or agent of al Qaeda or an affiliated terrorist organization,6 and any other

6 information related to demonstrating that the NSA does not otherwise engage in the content

1 surveillance "dragnet" alleged by plaintiffs; (ii) information concerning whether or not the NSA

8 obtained from telecommunications companies such as AT&T and Verizon communication

9 transactional records as alleged in the complaints; and (iii) information that may tend to confirm

10 or deny whether AT&T, Verizon, or other telecommunications carriers have provided assistance

11 to the NSA in connection with any ofthe alleged activities.

12

D. (U) Official Disclosures Since September 2012

13

29. (U) In the wake of unauthorized disclosures, beginning in June 2013, about

14 intelligence-gathering activities conducted by the NSA, the DNI, at the direction of the President

15 and in light of the President's transparency initiative, has declassified and made public certain

16 information about a number of sensitive programs undertaken under the authority of the FISA.

17 Certain ofthe information that the DNI has declassified concerns the allegations raised in this

18 litigation, and this information has been described in great detail in the classified declarations

6 (U) In December 2005, then-President Bush publicly acknowledged the existence ofa presidentially-authorized NSA activity that later came to be called the "Terrorist Surveillance Program" under which the NSA was authorized to intercept the content of specific international communications (i.e., to or from the United States) involving persons reasonably believed to be associated with al Qaeda and affiliated terrorist organizations. The term "content" is used herein to refer to the substance, meaning, or purport of a communication, as defined in 18 U.S.C. § 2510(8), as distinguished from the type of addressing or routing information referred to herein as "metadata."

Classified In Camera, Ex Parle Declaration of Frances J. Fleisch, National Security Agency

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referenced above. In addition, the President has declassified the fact of the existence of two

2 portions ofthe discontinued President's Surveillance Program, which also concern the

3 allegations at issue in this litigation. I summarize these various official disclosures below.

4

1. (U) Collection of Bulk Telephony Metadata Under Section 215 of the FISA

5

30. (U) First, since May 2006, under a provision of the PISA known as Section 215

6 and codified at 50 U.S.C. § 1861, the NSA obtains, pursuant to orders ofthe FISC, bulk

7 telephony metadata - business records created by telecommunications service providers that

8 include such information as the telephone numbers placing and receiving calls, and the time and 9 duration ofthose calls.7 The Government has declassified and publicly disclosed a number of

10 "primary" orders of the FISC to the Government authorizing it to carry out the bulk telephony

11 metadata program. The Government has acknowledged only one "secondary" FISC order,

12 however, to one telecommunications service provider (Verizon Business Network Services, Inc.

13 ("VBNS")), and for only one approximately 90-day period oftime (from April 25, 2013 to July

14 19, 2013). The Government acknowledged this secondary order only after the order was

15 disclosed unlawfully and without authorization. This is the only FISC order identifying any

16 particular provider that has been declassified and, since the disclosure of this order in June 2013,

17 the United States has continued to protect against any further disclosures ofFISC orders directed

18 at any provider under the telephony metadata program. While the authentication of that order 19 means that the identity of one participating provid~r has been officially acknowledged for the

7 (U) Under the terms ofthe FISC's orders, the NSA is authorized to collect information including, as to each call, the telephone numbers that placed and received the call, other session" identifying information (e.g., International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (lMEI) number, etc.), trunk identifier, telephone calling card number, and the date, time, and duration of a call.

Classified In Camera, Ex Parte Declaration of Frances J. Fleisch, National Security Agency

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Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l791)

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particular time period ofthat order, the order was limited to VBNS, did not identify any other

2 provider, did not relate to any other corporate component of Verizon other than VBNS, and was

3 of limited duration (expiring on July 19, 2013). There has been no official acknowledgement of

4 whether or not VBNS assisted the NSA with the FISC telephony metadata program either before

s or after the period covered by the April 2013 order, or whether VBNS continues to participate in

6 the program. The identities of the providers that furnish assistance to the NSA under the

7 telephony metadata program, including VBNS, as to any other time period other than the

8 approximately 90-day duration ofthat order, have not been declassified and remain currently and

9 properly classified.

10

31. (U) The Government also disclosed that it does not collect, listen to, or record the

11 content of any call under this program, nor does it collect the name, address, or financial

12 information ofany subscriber, customer, or party to a call, or cell site locational information.

13 The Government obtains FISC orders under this program by submitting detailed applications

14 from the Federal Bureau oflnvestigation ("FBI") explaining that the records are sought for

ts investigations to protect against international terrorism that concern specified foreign terrorist

16 organizations identified in the application. As required by Section 215, each application contain

17 a statement of facts showing that there are reasonable grounds to believe that the metadata as a

18 whole are relevant to the investigations of these organizations.

19

32. (U) The NSA stores and analyzes this information under carefully controlled

20 circumstances and under stringent supervision and oversight by all three branches of

21 Government. The vast majority of the metadata are never seen by any person. Rather, the NSA 22 has been authorized to query the archived data solely with identifiers, typically telephone 23 numbers, for which there are facts giving rise to a reasonable, articulable suspicion ("RAS") that

Classified In Camera, & Parte Declaration ofFrances J. Fleisch, National Security Agency

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Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

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the number is associated with one or more of the foreign terrorist organizations that are the

2 subject of FBI investigations previously identified to the FISC. Where the identifier is 3 reasonably believed to be used by a U.S. person, the NSA may not make the RAS determination 4 solely based on activities protected by the First Amendment.

5

33. (U) The accessible results of an approved query are limited to records of

6 communications within three "hops" from the seed identifier.8 That is, the query results may

7 only include identifiers having a direct contact with the seed (the first "hop"), identifiers having

8 direct contact with the first "hop" identifiers (the second "hop"), and identifiers having a direct

9 contact with second "hop" identifiers (the third "hop"). By querying the metadata using the RAS

JO standard, NSA intelligence analysts are able to: (1) detect domestic identifiers calling foreign

11 identifiers associated with one ofthe foreign terrorist organizations and discover identifiers that

12 the foreign identifiers are in contact with; (2) detect foreign identifiers associated with a foreign

13 terrorist organization calling into the U.S. and discover which domestic identifiers are in contact

14 with the foreign identifiers; and (3) detect possible terrorist-related communications occurring 15 between communicants located inside the U.S.

16

34. (U) The Government has also publicly disclosed FISC orders and opinions

17 concerning various failures to fully implement and comply with FISC-ordered procedures for the

18 telephony metadata collection program. These compliance incidents were due to human error

19 and technological issues. ln 2009, the Government reported these problems to the FISC (and

20 Congress) and remedied them, and the FISC (after temporarily suspending the Government's

8 (U) A "seed" is an initial identifier used to generate a query.

Classified Jn Camera, & Parle Declaration ofFrances J. Fleisch, National Security Agency

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authority to query the database without the court's approval) reauthorized the program in its

2 current form.

3

2. (U) Bulk Collection of Internet Metadata

4

35. (U) Second, the Government has recently declassified and acknowledged the·

s existence ofFISC-authorized bulk collection of Internet metadata carried out under the "pen

6 register, trap and trace" ("PRTT") provision of the FISA. The data collected included certain

7 routing, addressing, and signaling information such as the "to" and "from" lines of an email and

8 the date and time the email was sent, but not the content of an email or the subject line. Certain

9 telecommunications service providers were compelled to provide this transactional information,

10 which the NSA analyzed to obtain foreign intelligence information. The FISC's orders

11 authorizing this collection required the Government to comply with minimization procedures

12 limiting the retention and dissemination of the metadata, including a requirement of a reasonable,

13 articulable suspicion that selection terms used to query the bulk data were associated with 14 foreign terrorist organizations.9 This program of bulk Internet metadata collection was

ts terminated in 2011, because it did not meet the operational expectations the NSA had for it.

16

3. (U) Collection of Communications Content Pursuant to Section 702 of FISA.

17

36. (U) Third, the Government has publicly revealed certain information about its use

18 of authority conferred by Section 702 of the FISA to collect, for foreign intelligence purposes, 19 certain communications of non-U.S. persons located outside the United States, pursuant to

9 (U) Similar to the telephony metadata program (see ~ 34 supra), the Government has also publicly disclosed FISC orders and opinions concerning various failures to fully implement and comply with FISC-ordered procedures for the Internet metadata collection program. These compliance incidents were due to human error and technological issues. In 2009, the Government reported these problems to the FISC (and Congress) and remedied them.

Classified In Camera, lli Parle Declaration of Frances J. Fleisch, National Security Agency

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Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

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approval of the FISC. Section 702 facilitates the targeted acquisition of foreign intelligence

2 information concerning foreign targets located outside the United States under comt oversight.

3 Electronic communication service providers are compelled to supply information to the

4 Government pursuant to authorized directives issued by the Attorney General and the DNI.

5

37. (U) Once targeted surveillance under Section 702 has been authorized, the NSA

6 takes the lead in tasking relevant telephone and electronic communications selectors to target

7 specific non-U.S. persons reasonably believed to be located outside the United States.

8 Consistent with the statute, the NSA's targeting procedures require that there be an appropriate,

9 documented foreign intelligence purpose for the acquisition and that the selector be used by a

10 non-U.S. person reasonably believed to be located outside the United States.

11

38. (U) Once a target has been approved, the NSA uses two means to acquire the

12 target's electronic communications. First, it acquires such communications directly from 13 compelled U.S.-based providers. This has been publicly referred to as the NSA's PRISM

14 collection. Second, in addition to collection directly from providers, the NSA collects electronic 15 communications with the compelled assistance of electronic communication service providers as 16 they transit Internet "backbone" facilities within the United States.10 The NSA has strict

17 minimization and dissemination procedures, and as is the case with the telephony metadata

18 program, the NSA's Section 702 collection activities are subject to extensive oversight by all 19 three branches of the Government.

Classified In Camera, Ex Parte Declaration ofFrances J. Fleisch, National Security Agency

25

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

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39. (U) As with the telephony metadata program, the Government has also disclosed

2 compliance incidents involving its Section 702 collection activities. In an opinion issued on

3 October 3, 2011, the FISC found the NSA's proposed minimization procedures as applied to the

4 NSA's upstream collection oflnternet transactions containing multiple communications, or

s "MCTs," deficient. Oct. 3, 2011 FISC Op., 2011 WL 10945618. In response, the NSA modified

6 its proposed procedures and the FISC subsequently determined that the NSA adequately

7 remedied the deficiencies such that the procedures met the applicable statutory and constitutional

8 requirements, and allowed the collection to continue. Aug. 24, 2012 FISC Op., 2012 WL

9 9189263, at *2-3; Nov. 30, 2011 FISC Op., 201 l WL 10947772.

10

4. (U) Presidentially Authorized NSA Activities After 9/11

11

12

40. (U) In December 2005 then-President Bush acknowledged the existence of a

13 presidentially-authorized NSA activity called the TSP under which NSA was authorized to

14 intercept the content of specific international communications (i.e., to or from the United States)

15 involving persons reasonably believed to be associated with al Qaeda and affiliated terrorist

16 organizations. Other intelligence activities were authorized by the President after the 9/11

17 attacks in a single authorization and were subsequently authorized under orders issued by the

18 FISC. In light ofthe declassification decisions described above concerning the NSA's

19 collection oftelephony and Internet metadata and targeted content collection under FISC orders,

20 the President has determined to publicly disclose the fact of the existence of those activities prior

21 to the FISC orders, pursuant to presidential authorization. Accordingly, certain limited

22 information concerning these activities has now been declassified:

23

41. (U) Starting on October 4, 2001, President Bush authorized the Secretary of

24 Defense to employ the capabilities of the Department of Defense, including the NSA, to collect

Classified In Camera, Ex Parle Declaration of Frances J. Fleisch, National Security Agency

2

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l 791)

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foreign intelligence by electronic surveillance in order to detect and prevent acts of terrorism

2 within the United States. President Bush authorized the NSA to collect: (1) the contents of

3 certain international communications, a program that was later referred to as the TSP; and (2)

4 telephony and Internet non-content metadata in bulk, subject to various conditions.

5

42. (U) President Bush issued authorizations approximately every 30-60 days.

6 Although the precise terms changed over time, each presidential authorization required the

7 minimization of information collected concerning American citizens to the extent consistent with

8 the effective accomplishment ofthe mission ofdetection and prevention of acts of terrorism

9 within the United States. The NSA applied additional internal constraints on the presidentially10 authorized activities.

11

43. (U) Over time, the presidentially-authorized activities transitioned to the authority

12 ofthe FISA. The collection ofcommunications content pursuant to presidential authorization

13 ended in January 2007 when the Government transitioned the TSP to the authority ofthe FISA

14 and under the orders ofthe FISC. Jn August 2007, Congress enacted the Protect America Act 15 ("PAA") as a temporary measure. The PAA, which expired in February 2008, was replaced by

16 the FISA Amendments Act of2008 ("FAA"), which was enacted in July 2008 and remains in

17 effect today. Today, content collection is conducted pursuant to section 702 of the FISA. The

18 metadata activities also were transitioned to orders of the FISC. The bulk collection of telephon 19 metadata transitioned to the authority of the FISA in May 2006 and is collected pursuant to 20 Section 215 of FISA. The bulk collection of Internet metadata was transitioned to the authority

21 of the FISA in July 2004 and was collected pursuantto Section 402 ofFISA. In December 2011,

22 the Government decided not to seek reauthorization ofthe bulk collection of Internet metadata.

Classified In Camera, Ex Parte Declaration ofFrances J. Fleisch, National Security Agency

2

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

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V. (U) INFORMATION SUBJECT TO ASSERTIONS OF PRIVILEGE

2

44. (U) While information about the existence of the components of the PSP has now

3 been declassified, specific operational details concerning the program's scope, operation, the

4 sources and methods it utilized, and intelligence it produced remain properly classified and are

s subject to the DNI's state secrets privilege assertion and my own asse1tion ofNSA's statutory

6 privilege in this declaration. In general and unclassified terms, the DNI's assertion ofthe state

7 secrets privilege and my statutory privilege asse1tion encompasses the following categories of

8 sti11-classified information and properly protected national security information concerning NSA 9 activities:

10

A. (U) Persons Subject to Intelligence Activities: information that would tend to

11

confom or deny whether particular individuals, including the named plaintiffs, have

12

been subject to any NSA intelligence activities;

13

14

B. (U) Operational Information Concerning NSA Intelligence Activities:

15

information concerning the scope and operational details ofNSA intelligence

16

activities that may relate to or be necessary to adjudicate plaintiffs' allegations.

17

including:

18

19

(1) (U) Communications Content Collection: information concerning the

20

scope or operational details ofNSA intelligence activities that may relate

21

to or be necessary to adjudicate plaintiffs' claims that the NSA

22

indiscriminately intercepts the content of communications, see, e.g., Jewel

23

Complaint ifif 9, 10, 73-77; Shubert SAC 'ifif 1,2, 7, 64-70, including:

24

25

(a)

(U) TSP Information: information concerning the

26

scope and operation ofthe now inoperative TSP

27

regarding the interception of the content of certain

28

international communications reasonably believed to

29

involve a member or agent of al Qaeda or an affiliated

30

terrorist organization;

31

32

(b)

(U) FISA Section 702: information concerning

33

operational details related to the collection of

34

communications under FISA section 702; and

35

Classified Jn Camera, Ex Parte Declaration ofF rances J. Fleisch, National Security Agency

28

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:OG-cv-1791 )

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I

(c)

(U) Any other information related to demonstrating

2

that the NSA has not otherwise engaged in the content-

3

surveillance dragnet that the plaintiffs allege.

4

5

(2) (U) Communications Records Collection: information concerning the

6

scope or operational details ofNSA intelligence activities that may relate

7

to or be necessary to adjudicate plaintiffs' claims regarding the NSA's

8

bulk collection of telephone and Internet non-content communications

9

records ("metadata"), see, e.g., Jewel Complaintifif 10, 11, 13, 73-77, 82-

10

97; Shubert SAC 1f1f 102;

11

12

C. (U) Telecommunication Provider Identities: information that may tend to

13

confirm or deny whether AT&T or Verizon (and to the extent relevant or necessary,

14

any other telecommunications carrier)·has provided assistance to theNSA in

15

connection with any intelligence activity, including the collection of communications

16

content or non-content transactional records alleged to be at issue in thfa Jitigation.

17
18 VI. (U) HARM OF DISCLOSURE OF PRIVILEGED INFORMATION

19

A. (U) Information Concerning Whether Plaintiffs Have Been

20

Subject to the Alleged NSA Activities

21

45. (U) The first major category of infmmation as to which I am supporting the DNI'

22 assertion ofprivilege, and asserting the NSA's own statutory privilege, concerns information as

23 to whether particular individuals, including the named plaintiffs in this lawsuit, have been

24 subject to alJeged NSA intelligence activities. As set forth below, confirmation or denial of such

25 information by the NSA reasonably could be expected to cause exceptionally grave damage to

26 tbe national security. The named plaintiffs in the Jewel and Shubert cases allege that the content

27 of their own telephone and Internet communications has been and continues to be subject to

28 unlawful search and seizure by the NSA, along with the content of communications of millions

29 of ordinary Americans.LL Further, the named plaintiffs allege that the NSA has been and is

11 (U) Specifically, the Jewel plaintiffs allege that pursuant to a presidentially authorized program after the 9/11 attacks, the NSA, with the assistance ofAT&T, acquired and continues to

Classified In Camera, Ex Parle Declaration ofFrances J, Fleisch, National Security Agency

2

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l 79l)

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continuing to collect and analyze the private telephone and Internet transaction records of

2 millions of Americans, with the assistance of telecommunication carriers, again including 3 information concerning the plaintiffs' telephone and Internet communications.12

4

1. (TSIJSll/NF)

s

46. (TS/f.8TL"'/f.81//0C/NF) As described herein, the NSA does not engage in

6 "dragnet" surveillance of the content ofcommunications as plaintiffs allege.

7

8

9

10

11

12

13

acquire the content of phone calls, emails, instant messages, text messaged, web and other communications, both international and domestic, of millions ofordinary Americans "practically every American who uses the phone system or the Internet" - including the plaintiffs. See Jewel Compl.ifif 7, 9, 10; see also id. at ifif 39-97. The Shubert plaintiffs allege that the contents of"virtually every telephone, Internet and email communication sent from or received within the United States since shortly after September 11, 2001," including plaintiffs' communications, are being "searched, seized, intercepted, and subject to surveillance without a warrant, court order or any other lawful authorization in violation of the Foreign Intelligence
Surveillance Act of 1978, 50 U.S.C. § 1810." See Shubert SAC i11; see also id. iii! 5, 7.
12 (U) Specifically, the Jewel plaintiffs allege that the NSA has "unlawfully solicited and obtained from telecommunications companies the complete and ongoing disclosure of the privat telephone and internet transactional records" of millions of ordinary Americans, including
plaintiffs. See Jewel Comp!. iii! 7, 10, 11, 13, 82-97. They further claim the NSA analyzes this
information. Id. if 11. The Shubert plaintiffs allege that "NSA now monitors huge volumes of records of domestic emails and Internet searches.. .[and] receives this so-called 'transactional' data from . ..private companies. .." See Shubert SAC if 102.

Classified ln Camera, Ex Parte Declaration ofFrances J. Fleisch, National Security Agency

3

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l791)

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2

3

4

5

6

7

8

47. (TS//STL'N/1£Slf/OC/NF)

9

10

11

12

13

Classified In Camera, F,x Parle Declaration ofPrances J. Fleisch, National Security Agency

31

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l791)

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2

3

4

5

6

7

8

9

10

11

12

13

3. (U) Harm of Disclosing Whether Plaintiffs Were Subject to NSA Activities

14

48. (T8i'i '8TL~...'7''81J1 ,'10CIlN"F)

15

At t e time the bulk co1lect10n o ternet metadata pursuant to or ers o t e FISC

t e

Order) expired in December 2011, the NSA estimates that the ercentage of Internet

metadata that it collected had been reduced to approximately

Furthermore the

NSA has previously estimated that, prior to the 2006 FISC Or er, a out

telephony metadata records was presented to an analyst for review.

Classified In Camera, Ex Parte Declaration ofFrances J. Fleisch, National Security Agency

3

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l791)

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2

3

4

5

6

7

8

9 disclosure of information concerning whether plaintiffs have been personally subject to these

10 NSA activities reasonably could be expected to cause exceptionally grave damage to national

11 security because it would reveal information concerning whether particular individuals have

12 been subject to surveillance and the nature, scope, and extent ofNSA surveillance activities.

13

49. (U) As a matter of course, the NSA cannot publicly confirm or deny whether any

14 individual is or has been subject to intelligence-gathering activities because to do so would tend

1s to reveal actual targets or subjects. The harm of revealing the identities ofpersons who are the

16 actual targets or subjects of foreign intelligence gathering is relatively straightforward. If an

17 individual knows or suspects he is a target or subject of U.S. intelligence activities, he would

18 naturally tend to alter his behavior to take new precautions against such scrutiny. ln addition,

19 revealing who is not a target ur :mbject of intelligence gathering would indicate who has avoided

20 surveillance or collection and what may be a secure channel for communication. Such

21 information could lead an actual or potential adversary, secure in the knowledge that he is not

22 under government scrutiny, to help a hostile foreign adversary convey information; alternatively,

23 such a person may be unwittingly utilized or even forced to convey information through a secure

Classified In Camera, Ex Parte Declaration ofFrances J. Fleisch, National Security Agency

33

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l 79l)

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channel to a foreign adversary. Revealing which channels are free from surveillance and which

2 are not would also reveal sensitive intelligence methods and thereby could help any adversary

3 evade detection and capitalize on limitations in NSA's capabilities. Similar harms would result

4 from confirming or denying whether a person's communications have been subject to collection
s even where it may be assumed a person is law-abiding and not likely to be an actual target or

6 subject of such activity. For example, if the NSA were to confirm that specific individuals have

7 not been targets of or subject to collection (i.e., whether their communications have been

8 intercepted), but later refuse to comment (as it would have to) in a situation involving an actual

9 target or subject, an actual or potential adversary ofthe United States could likewise seek such

10 confirmation or denial and then easily deduce by comparing such responses that the person in the

11 latter instance is or has been a target of or subject to surveillance or other intelligence-gathering

12 activity. In addition, disclosure of whether a person' s communications have or have not been

13 targeted or intercepted through the targeting of a third party would reveal whether a particular

14 channel of communication is secure and also reveal to third-party targets whether their own

15 communications may be secure.

16

50. (TS/f.8TL"Lt81//0C/NF)

17

18

19

20

21

22

23

Classified In Camera, Ex Parte Declaration ofFrances J. Fleisch, National Security Agency

3

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

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2

3

4

5

6

7

8

9

10

52. (U) For all of these reasons, the NSA cannot disclose whether the plaintiffs'

11 communications have been subject to NSA intelligence collection activities without causing

12 exceptionally grave damage to the national security.

13

B. (U) Operational Information Concerning NSA Intelligence

14

Activities

15

53. (U) I am also supporting the DNI's assertion ofprivilege and asserting the NSA's

16 statutory privilege over any other still-classified facts concerning NSA intelligence activities,

17 sources, or methods that may relate to or be necessary to litigate the plaintiffs' claims and 18 allegations, including that: (1) the NSA is indiscriminately intercepting the content of

19 communications of millions of ordinary Americans, see e.g., Jewel Complaint ifif 7, 9, 10;

20 Shubert SAC if1I,5, 7; and (2) the NSA is collecting the private telephone and Internet 21 transactional records of Americans with the assistance of telecommunications carriers, again

22 including information concerning the plaintiffs' telephone and Internet communications. See
23 Jewel Complaint if17, 10, 11, 13, 82-97; see Shubert SAC ir 102. As described above, the scope

Classified In Camera, & Parte Declaration of Frances J. Fleisch, National Security Agency

35

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW} (M:06-cv- l 79l)

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of the Government's privilege assertion includes but is not limited to still"classified information

2 concerning (1) the collection of communication content under the now inoperative TSP as well

3 as pursuant to authority of FISA Section 702, and any other NSA activities that would be at risk

4 of disclosure or required in demonstrating that the NSA has not engaged in content "dragnet"

s surveillance activities that plaintiffs allege; and (2) information that may relate to or be necessary

6 to adjudicate plaintiffs' claims regarding the NSA's bulk collection oftelephony and Internet

7 communication records, As set forth below, the disclosure of such information would cause

8 exceptionally grave harm to national security.

9

1. (U) Information Concerning Plaintiffs' Content Surveillance Allegations

10

54. (U) After the existence ofthe TSP was officially acknowledged in December

11 2005, the Government stated that this activity was limited to the interception of the content of

12 ce1tain communications for which there were reasonable grounds to believe that: (1) such

13 communication originated or terminated outside the United States; and (2) a party to such

14 communication is a member or agent of al Qaeda or an affiliated terrorist organization.

15 Nonetheless, plaintiffs' allege that the NSA indiscriminately intercepts the content of 16 communications ofmilJions of ordinary Americans. See e.g., Jewel Complaint ~~ 7, 9, 10; see 11 Shubert SAC,, 1, 5, 7. As the Government has also previously stated,17 plaintiffs' allegation

17 (U) See Public Declaration of Dennis Blair, Director of Nat ional Intelligence,~ 15 (April 3, 2009) (Diet. 18"3 in Jewel action (08"cv"4373); Public Declaration of Deborah A. Bonanni, National Security Agency~ 14 (Dkt. 18-4 in Jewel action (08-cv-4373); Public Declaration ofDennis Blair, Director of National Intelligence,~ 15 (October 30, 2009) (Dkt.
680-1 in Shubert action (MDL 06"cv-1791); Public Declaration of Lt. Gen. Keith B. Alexander, National Security Agency~ 19 (Dkt. 680-1 in Shubert action (MDL 06"cv"1791).

Classified Tn Camera, Ex Parle Declaration ofFrances J. Fleisch, National Security Agency

3

Jewel. -v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- J791)

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that the NSA has undertaken indiscriminate surveillance of the content18 of millions of 2 communications sent or received by people inside the United States after 9/11 under the TSP is 3 false. But in order to disprove plaintiffs' claim that the NSA indiscriminately collected the 4 content ofthe communications of millions ofAmericans, the NSA would have to disclose the 5 specifics of its content collection activities. Under the TSP, the NSA was directed pursuant to 6 presidential authorization19 to intercept the content of only those international telephone and 7 Internet communications for which there were reasonable grounds to believe that such 8 communications involved a member or agent of al Qaeda or an affiliated terrorist organization. 9 To the extent theNSA must demonstrate that content sw·veillance under the TSP was so limited, IO and was not plaintiffs' alleged content "dragnet," or demonstrate that the NSA has not otherwise 11 engaged in the alleged content "dragnet," highly classified NSA intelligence sources and
18(U) Again, the term ''content" is used herein to refer to the substance, meaning, or purport ofa communication as defined in 18 U.S.C. § 2510(8).
19 (T8h'8TL~'//81HOC/NF) The specific wording ofthe presidential authorizations evolved over time and durin certain eriods authorized other activities.
Classified In Camera, Ex Porte Declaration ofFrances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)
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methods about the operation of the TSP and current NSA intelligence activities (including under

2 FISA Section 702) would be subject to disclosure or the risk ofdisclosure. The disclosure of

3 whether and to what extent the NSA utilizes certain intelligence sources and methods would

4 reveal to foreign adversaries the NSA's capabilities, or lack thereof, enabling them to either

5 evade particular channels of communications that are being monitored, or exploit channels of

6 communication that are not subject to NSA activities, in either case risking exceptionally grave

7 damage to national security. As set forth below, a range of operational details concerning the

s TSP, as well as other NSA sources and methods, remains properly classified and privileged from

9 disclosure, and could not be revealed to address plaintiffs' content "dragnet" allegations.

10

55. (U) Authorization ofthe TSP was intended to address an important gap in NSA's

11 intelligence collection activities---namely, that significant changes in communications

12 technology since the enactment ofthe FISA in 1978 meant that the NSA faced great difficulties

13 in identifying foreign terrorist operatives who were communicating with individuals within the

14 United States. FISA established the framework for coutt approval ofthe U.S. Government's

15 efforts to conduct foreign intelligence surveillance of individuals in the United States. When

16 FISA was enacted in 1978, most international communications to or from the United States were

17 transmitted via satellite or radio technology. Congress intentionally excluded the vast majority

18 ofsatellite or radio communications from the definition of "electronic surveillance" in the FISA.

19 See 50 U.S.C. §1801(f).

20

56. (TS// 81//0C/NF) The interception of domestic communications within the

21 United States, which were carried nearly exclusively on a wire, for foreign intelligence purposes,

22 generally required a court order. As a result,

23

Classified In Camera, E:x Parle Declaration of Frances J. Fleisch, National Security Agency

3

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l791)

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the FISA did limit

2 the NSA's ability to collect "one-end" telephone or Internet communications to or from the

3 United States on a wire inside the United States.

4

57. (U) Since the time FISA was enacted, sweeping advances in modern

5 telecommunications technology upset the balance struck by Congress in 1978. By 2001, most

6 international communications to or from the United States were can-ied on a wire and many

7 domestic communications had increasingly become wireless. As a result of this change in

8 communications technology, the NSA's collection from inside the United States of international

9 communications (previously carried primarily via radio transmission) had shrunk considerably

10 and the Government was forced to prepare FISA applications if it wished to collect the

11 communications of non-U,S. persons located overseas.

12

58. (T8h'8TLJA'/8Ih'OC/NF) These circumstances presented a significant concern in

13 the exceptional circumstances after 9/l 1. The NSA confronted the urgent need to identify

14 further plots to attack U.S. interests both domestically and abroad. To do so, it needed to

1s intercept the communications of terrorist operatives who, as described above,

19 losing vital intelligence---and failing to detect another feared imminent attack-""while the

20 Government prepared thousands of individual applications for FISA Court authorization on a

21 large number of rapidly changing telephone numbers and email addresses.

22

59. (T8h'8TL'Wf8IhlOCA"ifF) Under the TSP, the NSA collected the content of certain

23 international telephone communications

Classified In Camera, Ex Parle Declaration ofPrances J. Fleisch, National Security Agency

3

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l79 l )

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2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19
20
Classified In Camera, Ex Parle Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l791)
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2 3 4 5
7 8 9 10 11 12 13

Classified In Camera, Ex Parle Declaration ofFrances J. Fleisch, National Security Agency

41

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l 79l )

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61. (T8/f8TL~l/Sl//OC,£NF) In addition, the NSA took specific steps in the actual 2 TSP content interception process to minimize the risk that the communications of non-targets 3 were intercepted. With respect to telephone communications,

6 ofan individual who was reasonably believed to be a member or agent ofal Qaeda or an

7 affiliated terrorist organization. For the interception ofthe content ofintemet communications

8 under the TSP, the NSA used identifying information obtained through its analysis of the target,

9 such as email addresses

to target for collection the communications of

10 individuals reasonably believed to be members or agents of al Qaeda or an affiliated terrorist

11 organization..

t6 themselves. See Jewel Complaint ~11; Shubert SAC ~~ 70, 72 (alleging key word searches on 17 communications content). Rather, the NSA targeted for collection Internet addresses-

19 terrorist organizations, or communications in which such

were mentioned.

20 In addition, due to technical limitations of the hardware and software, incidental collection of

21 non-target communications occurred, and in such circumstances the NSA applied its

Classified In Camera, Ex Parle Declaration ofFrances J. Fleisch, National Security Agency

4

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- l 79l )

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minimization procedures to ensure that communications of non-targets were not disseminated. 2 To the extent such facts would be necessary to dispel plaintiffs' erroneous content "dragnet"

3 allegations, they could not be disclosed without revealing highly sensitive intelligence 4 methods.23

5

62. (TSh'STLW/811/0CtNF)

6

7

8

9

10

11

12

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14

15

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17

18

Classified In Camera, Ex Parle Declaration ofFrances J. Fleisch, National Security Agency

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Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l79 l)

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32 -

4

63.

(TS#STLVNSIHOC/NF) In order to disprove plaintiffs' claims of"dragnet"

5 content surveillance, the NSA would need to reveal the more limited nature ofthe content

6 collection under the TSP.

7

8

9

to

11

12

13

14

15

16

17

Classified In Camera, F.x Parle Declaration ofFrances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- 1791)
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7 current "upstream" collection program under Section 702 of the FISA, the NSA seeks to collect 8 communications to, from, or about a tasked selector (e.g., an email address) associated with a

9 target reasonably believed to be located outside the United States.

10

II

12

13

14

15

16

17

18

19

20

21

22

23

Classified In Camera, Ex Parte Decl<U'ation of Frances J. Fleisch, National Security Agency

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Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

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3

4

5

6

7

8

9

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66. (T8//81//NF) The public disclosure of the above information about the specifics

13 of the NSA's content collection activities would greatly benefit NSA's adversaries. Foreign 14 adversaries, to include foreign governments and terrorist organizations, would be provided with

15

16

17

18

19

20

21

22

Classified In Camera, Ex Parte Declaration of Frances J. Fleisch, National Security Agency

4

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v_ Obama (07-cv-0693-JSW) (M:06-cv-1791)

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2. (U) Information Concerning Plaintiffs' Communications Records Col1ection

2

Allegations

·

·

3

4

67. (U) Plaintiffs also allege that the NSA is collecting the private telephone and

5 Internet transaction records of millions ofAmericans, again including information concerning 6 plaintiffs' telephone and Internet communications. See, e.g., Jewel Complaint~~ 7, 10, 11, 13, 8,
7 13, 82-97; see Shubert SAC if 102. To address these allegations would risk or require disclosure

8 ofNSA sources and methods and reasonably could be expected to cause exceptionally grave

9 damage to national security. While the Government has declassified the existence ofthe

10 telephony and Internet metadata collections, and some information concerning those programs as

11 authorized by the FISC, significant operational details concerning these activities remain

12 properly classified, including the identity of communication providers who may have assisted in

13 this collection, and other sources and method of collection and analysis. As set forth below,

14 disclosure of this information reasonably could be expected to cause grave damage to national

15 security.

16

(a) (U) Collection of Bulk Telephony Metadata

17

18

68. (U) As with the operational details concerning the NSA's collection of

19 communications content, I am supporting the DNI's state secrets privilege assertion, and

20 asserting NSA's statutory privilege, over still-classified information that may relate to or be

21 necessary to litigate plaintiffs' claims as they relate to the alleged collection of telephony

22 metadata.

23

69. (U) The still classified operational details concerning the collection of telephony

24 metadata include, but are not necessarily limited to, whether metadata of plaintiffs' telephone

25 communications were actually collected by the NSA from plaintiffs' paiiicular communications

Classified Jn Camera, Ex Parle Declaration ofFrances J. Fleisch, National Security Agency

4

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l791)

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providers; whether any metadata of plaintiffs' telephone communications, ifcollected, were

2 viewed or analyzed by anyone at the NSA; information demonstrating the scope of the telephony

3 metadata collection prngram; and information demonstrating the need for and effectiveness of

4 the program

5

70. (T8NSTVA;18I/./OC/NF) First and foremost, I support the DNI's privilege

6 assertion, and assert the NSA's statutory privilege,

7

8

9

10

11

12

l3

14

15

16

Classified Jn Camera, F.x Parle Declaration of Frances J. Fleisch, National Security Agency

48

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- 179 l )

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2

J

4

5

6

71. (U) As set forth in this declaration, following the unauthorized disclosme fo June

7 2013 of one FISC Order issued as part of the telephony metadata program, the Government

8 confirmed the authenticity of one order, issued on Apl'il 25, 2013, by the FISC to a pa1ticular

9 Verizon Communications subsidiary, Verizon Business Network Services (VBNS), thereby

10 confirming the participation ofVBNS in the program for the duration of that order

11 (approximately 90 days). This is the only FISC order identifying any paiticular provider under

12 this program that has been declassified, and since the disclosure of this order in June 2013, the

13 United States has not confirmed or denied the past or current paiticipation of any specific

14 provider in the telephony metadata program apart from the participation ofVBNS for the

15 approximately 90 day duration ofthe now-expired April 25, 2013, FISC Order. As explained

16 further below, the continued protection of whether or not, or to what extent, a particular

17 telecommunications provider assisted the NSA under FISC Order or otherwise remains an

18 extraordinarily sensitive and significant matter that the Government continues to protect to avoid

19 even greater harm to national security than has already occmTed since June 2013.

20

72. ('F8//81/!N.F7 In addition, still-classified details ofthe NSA's process for querying

2 1 the telephony metadata,

22
23 disclosed to prevent risking exceptionally grave damage to national security.

Classified In Camera, Ex Parle Declaration of Prances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- l 79 I)
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2

3

4

5

73. (T8//8I//NF) Additionally, while the NSA has publicly disclosed that it is

6 authorized to query the telephony metadata collected under FISC orders either by manual analyst

7 queries or through an automated query process, other specific details concerning how the NSA's

8 automated query process works remain currently and properly classified. -

9

10

11

12

13

14

15

Classified Jn Camera, Ex Parle Declaration ofPrances J. Fleisch, National Security Agency

51

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW} (M:06-cv-l791)

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2

3

4

5

6

7

74. (TS/181/INF) Finally, to the extent that facts related to how the NSA analyzes

s telephony metadata are required to litigate plaintiffs' c.Jaims

9

10 disclosure of still classified sources and methods related to the analysis ofthe metadata

11 reasonably could be expected to cause grave damage to national security.

12

13

14

15

16

17

18

19

Classified In Camera, Ex, Parle Declaration ofFrances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l791)
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2

3

4

5
6 m3•
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(b) (U) Internet Metadata Collection

8

75. (U) I am also supporting the DNI's privilege assertion, and asserting the NSA's

9 statutory privilege, over still-c1assified operational details concerning the NSA's bulk collection

10 oflnternet metadata under presidential authorization.

ll

76. (T8n118TL'Y N~ 181I1Y10C1INF)

12

13

14

15

32 (TS/,l81//NF) On December 7, 2011, the NSA completed the destruction of all PRIT metadata collected under the authorization ofthe FISC from the Agency's repositories.

Classified In Camera, Ex Parle Declaration ofFrances J. Fleisch, National Security Agency

53

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubel't v. Obama (07-cv-0693-JSW) (M:06-cv-l791)

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2

3

4 Disclosure ofthis information would provide a roadmap to our adversaries ofthe scope and

5 methodologies ofthis intelligence-gathering activity and thus reasonably could be expected to

6 cause grave damage to national security.

7

77. (T8f/.8TVNJ8Ih'OC/NF)

8

9 -

After proceeding for nearly three years under Presidential authorization, the bulk

10 collection oflnternet metadata under PRTI provision was first authorized by the FISC in July 11 2004, and was reauthorized approximately every 90 days thereafter until December 201 1.34

12

13

14 information remains properly classified and subject to the DNI's privilege assertion, as well as

15 my own NSA statutory privilege assertion and, as detailed further below,

17 grave damage to national security.

i n - 34 ~ccord with FISC oversight ofNSA activities subject to the FISA,

inlll stmting

authorization for the PRTI Order was discontinued while the NSA

resolved certain comphance issues with the FISC. The PRTT Order was reauthorized

• until its last authorization expired in December 2011.

Classified Jn Camera, Ex Parle Declaration ofFrances J. Fleisch, National Security Agency

5

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l 791)

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78. (T8N-8TLWf8INOC/NF) Second, the method by which the NSA collected 2 Internet metadata under presidential authorization and subsequent FISC orders also remains 3 classified and properly protected from disclosure under the DNI's and my own privilege 4 assertions. Specifically,
5 6 7 8 9 10 11 12 J3 14 15

Classified Jn Camera, Ex Parle Declaration of Frances J. Fleisch, National Security Agency

55

Jewel. v. NSA {No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- 1791)

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7 capabilities, and the potential disclosure of intelligence gather from these techniques, reasonably

8 could be expected to cause grave damage to national security.

9

79. (T8/-/81h'NF) Third, disclosure of the nature ofthe Internet metadata collected by

10 the NSA under presidential authorization, and as that collection activity was transitioned to

11 FISA, would reveal other highly sensitive and still classified sources and methods. -

12

l3

14

15

16

17

18

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36 (T81/8Jl./NF) Under the FISC's PRTT Orders, the NSA queried the archived metadata only using Internet selectors for which there were facts ivin rise to a reasonable, articulable sus icion that the email address was associated with
Classified Jn Camera, Ex Parle Declaration ofPrances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)
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2 3 4 5 6
7 8 9
10 11 12 13

Classified Jn Camera, Ex Parle Declaration ofFrances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l 791)

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Accordingly, to the extent necessary to address whether-

13 -

plaintiffs' metadata was actually collected, revealing the foregoing details

14 concerning the categories of metadata the NSA collected would reveal highly sophisticated

15 operational details ofNSA's current SIGINT operations and reasonably could be expected to

16 cause grave damage to national security by ale1ting adversaries as to the NSA's specific

17 collection capabilities.

18

81. (T8//8Ih'NF) Finally, it bears emphasis that the continuing importance ofthe

19 sources and methods by which bulk Internet metadata was collected and analyzed underscores

20 the need to protect operational details of this activity.

21

22

23

Classified In Camera, Ex Parle Declaration of Frances J. Fleisch, National Security Agency

58

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791 )

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82. (TS//Sl//NF) As with telephony metadata, the collection of this information

14 allowed the NSA to use sophisticated and unique analytical capabilities to track the contacts

1s (even retrospectively)

ofknown terrorists. The techniques that the

16 NSA developed pursuant to presidential authorization have been refined over time and continue

17 today to derive sensitive intelligence that is vital to protecting the national security ofthe United

18

19

20

21

22

23

Classified In Camera, Ex Parte Declaration ofFrances J. Fleisch, National Security Agency

5

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

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4 would cause exceptionally grave damage to national security.
5 6 7 8 9 10 II 12 13 14

15 16

84. ff8//8IHOC/NF)

17

18

19 -

Thus, ifnecessary to litigate plaintiffs' claims, the disclosure of details about the

20 scope and operation of the now-discontinued bulk Internet metadata collection program, beyond

21 the facts that have been officially confirmed by the Government, can be expected to compromise

22 the NSA's current collection activities and analytical capabilities, and thus cause exceptionally

23 grave damage to the national security ofthe United States.

Classified Jn Camera, Ex Parle Declaration ofFrances J. Fleisch, National Security Agency

6

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

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c.

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85. ( - H O C / N F ) I am also supporting the DNI's state secrets

5 privilege assertion, and asserting NSA's statutory privilege, over information relating t o -

7 plaintiffs and three ofthe Shubert plaintiffs allege that they are customers ofAT&T, and that 8 AT&T participated in the alleged intelligence-gathering activities that the plaintiffs seek to 9 challenge. Additionally, at least one Shubert plaintiff also claims to be a customer of Verizon, 10 and that Verizon similarly participated in the alleged intelligence-gathering activities that the 11 plaintiffs seek to challenge. The harm from officially acknowledging whether or not any specific 12 carrier has assisted the NSA is significant, as noted above, and continues to exist notwithstandin 13 the recent official disclosures. While the Government has declassified some information 14 concerning the nature and scope ofthe programs described above -- including that it collects 15 telephony and Internet metadata in bulk, from multiple telecommunication providers -- and has 16 also confirmed the authenticity of a smgle now-expired FISC Order issued to a single carrier that 17 had been unlawfully disclosed, it has not otherwise declassified information concerning the is identities of companies that are or were subject to FISC orders under NSA intelligence-gathering 19 program
20 21 22 23 24

Classified In Camera, Ex Parle Declaration ofFrances J. Fleisch, National Security Agency

61

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

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Classified In Camera, F,x Parte Declaration ofFrances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubertv. Obama (07-cv-0693-JSW) (M;06-cv-1791 )

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2

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88. (~//OC/NF) Confirmation or denial of a relationship between the

5 NSA and AT&T, Verizon, or any other telecommunications carrier relating to intelligence

6 activities would cause exceptionally grave damage to the national security in multiple ways, 7 notwithstanding the Government's recent disclosures.42

8

9

JO

II

12

42 (U) Congress recognized the need to protect the identities oftelecommunications carriers alleged to have assisted the NSA when it enacted provisions ofthe FISA Amendments Act of2008 that barred lawsuits against telecommunications carriers alleged to have assisted the NSA after the 9/11 attacks. In enacting this legislation, the Senate Select Committee on Intelligence ("SSCI") found notwithstanding the fact that the existence ofthe TSP had been officially acknowledged, that "electronic surveillance for law enforcement and intelligence purposes depends in great pait on the cooperation ofprivate companies that operate the nation's telecommunications system." S. Rep. 110-209 (2007) at 9 (accompanying S. 2248, Foreign Intelligence Surveillance Act of 1978 Amendments Act of2008). Notably, the SSCI expressly stated that, in connection with alieged post-9/11 assistance, "it would be inappropriate to disclose the names ofthe electronic communication service providers from which assistance was sought, the activities in which the Government was engaged or in which the providers assisted, or the details regarding any such assistance." Id. The Committee added that the "identities of persons or entities who provide assistance to the intelligence community are properly protected as sources and methods of intelligence." Id.

Classified In Camera, Ex Parle Declaration of Frances J. Fleisch, National Security Agency

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Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

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Finally, the hanns to national security that would result from public disclosure of a

10 provider's assistance are still likely to occur notwithstanding the recent declassification of some

11 aspects ofthe NSA's intelligence gathering activities, including the official confirmation that

12 telephony metadata are collected in bulk from more than one providet.

13

1. (T8hl81//NF)

14

89. (~//OCfNF)

15

16

17

18

19

20

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22

Classified In Camera, & Parle Declaration ofPrances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l 791)

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Classified Jn Camera, & Parte Declaration ofFrances J. Fleisch, National Security Agency

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Classified In Camera, F.x Parle Declaration of Frances J. Fleisch, National Security Agency

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96.

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Classified Jn Camera, Ex Parle Declaration ofPrances J. Fleisch, National Security Agency

6

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

TOP SECRBT//STLW/SI-ORCONINOFORN

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Classified In Camera, Ex Parte Declaration of Frances J. F leisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- l 79l)

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Classified In Camera, E.x Parle Declaration of Frances J. Fleisch, National Security Agency

71

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l791)

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;mp 8BCRI;Tff8TLW/SI. .ORC01'llff0FOFJ>T

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TOP SECRET/iSTLWl~;I. .ORC01'llf1GFORl>l

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GlassifieEI In Camera, F,x Parle Declaration ofFrances J. Fleisch, National Security Agency

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Jewel. v. NSA (No. 08-cv-4873-JSW); Shubertv. Obama (07-cv-0693-JSW) (M:06-cv-1791)

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IS

Classified In Camera, Ex Parte Declaration ofFrances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)
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Classified In Camera, Ex Parle Declaration ofPrances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l 791)
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Classified In Camera, Ex Parte Declaration of Frances J. Fleisch, National Security Agency

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TOP SECRET/JSTLV.t/Sl-OR.t:ON~mFORN

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Classified In Camera, Ex Parle Declaration of Frances J. F leisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l791)
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2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17

Classified Jn Camera, & Parte Declaration ofFrances J. Fleisch, National Security Agency

7

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-l791)

TOP BECRETJ/BTI.W/SI. .OR<JON/NOFORN

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4. i;/ll'HOCINF)

2

3

4

111. (~/IOCINF) I have determined that

6 exceptionally grave damage to the national security, notwithstanding the Government's recent

7 official disclosures about the NSA's collection of bulk telephony and Internet metadata and

8 communications content under presidential authority and under the FISA. While the

9 Government has declassified some information concerning the nature and scope ofthese

10 programs- including that the telephony metadata program is a bulk collection activity from

11 multiple telecommunication providers-and has also confirmed the authenticity of a single FISC

12 Order directed to VBNS that had been unlawfully disclosed to the news media, it has not

13 otherwise declassified information concerning the identities of companies that are or were

14 subject to FISC orders

15

112. (T8H81//0C!fNF7 Shortly after the unauthorized disclosure and publication of the

16 FISC Order, issued.on April 25,.2013, to VBNS, requiring that provider to furnish to the NSA all

17 telephony metadata for communications (i) between the United States and abroad; or (ii) wholly

18 within the United States, the DNI authenticated and declassified this order to address significant

19 public interest-and correct public misimpressions- concerning this U.S. intelligence activity.

20 As noted above, this is the only FISC Order identifying any particular provider that has been

21 declassified and, since its disclosure in June 2013, the United States has continued to protect

22 against any further disclosures ofFISC orders

24 participating provider has been officially acknowledged during the particular time period ofthat

Classified Jn Camera, Ex Parle Declaration of Frances J. Fleisch, National Security Agency

8

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

TOP SECRBT//STLW/SilllllORCONft-IOFOfill

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order, the order was limited to VBNS, did not identify any other provider,

2

and was of limited duration (expiring

3

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10

II

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15 16 17

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Classified Jn Camera, Ex Parte Declaration ofFrances J. Fleisch, National Security Agency

81

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- L791)

TOP SECRETl/STL\W~:I. .ORCONl:HOFORN

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114.
2 3 4 5 6 7 8 9 JO 11 12 13 14
15 16
17 18 19
20 21 22

TOP 8ECRET//STLW/SI. .OH:CmW>mFo~

Classified In Camera, Ex Parte Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)
TOP SEGRETf/STLWlSI-OllCOi'W'lOFORN

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2

3

116. (T8/J8If/NF1 Determinations about where to draw the line regarding information

4 that can be made public and information that must remain classified are necessarily predictive

5 judgments made in light of important and competing considerations, including the need to

6 protect the Nation and the need for Government accountability to the public. The fact that the

7 U.S. Government has officially acknowledged that the collection oftelephony metadata occurs in

8 bulk and involves the paiticipation of more than one provider,

10 companies are now providing records to the NSA or for how long they have been doing so, or 11 which companies are not providing records. And, as outlined above, significant national security 12 reasons remain for protecting that information.
13 14 15 16 17 18 19 20

Classified In Camera, Ex Parle Declaration of Frances J. Fleisch, National Security Agency

83

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-179l )

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VII.

(U) CONCLUSION

2

117. (T8/18TL'Wl8INOC/NF) Upon examination of the allegations, claims, facts, and

3 issues raised by these cases, it is my judgment that issues that are central to the litigation

4 implicate sensitive state secrets and that disclosure ofthese secrets could cause exceptionally

5 grave harm to the national security ofthe United States. Although plaintiffs' alleged content

6 surveillance dragnet does not (and did not) occur, proving why that is so,

s highly classified intelligence sources and methods still relevant to NSA activities today. 9 Similarly, attempting to address plaintiffs' allegations with respect to the bulk collection of nonto content metadata would also compromise currently operative NSA sources and methods that are 11 essential to protecting national security, including for detecting and preventing a terrorist attack.
12

17 judgment, any effort to probe the outer-bounds of such privileged information would pose 18 inherent and significant risks of disclosure of that information, including critically sensitive 19 information about NSA sources, methods, operations, targets, and relationships. Providing 20 access to records and data associated with the programs at issue in these cases would tend to 21 reveal, particularly to sophisticated foreign adversaries, the full picture of U.S. intelligence 22 gathering sources and methods.

Classified In Camera, Ex Parle Declaration of Frances J. Fleisch, National Security Agency

8

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791 )

TOP SECRET//STLW~~OR.CON~lOFOfill

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119. (U) The United States has an overwhelming interest in detecting and thwarting

2 further plots to perpetrate mass-casualty attacks by al Qaeda and other terrorist organizations.

3 The United States has already suffered one massive attack that killed thousands, disrupted the

4 Nation's financia1 center for days, and successfully struck at the command and control center for

5 the Nation's military. It remains a key objective of al Qaeda and other terrorist groups to carry 6 out a massive attack in the United States that could result in a significant loss of life, as well as 7 have a devastating impact on the U.S. economy.

8

120. (U) As set forth above, terrorist organizations around the world seek to use our

9 own communications infrastructure against us as they secretly attempt to infiltrate agents into the

10 United States, waiting to attack at a time oftheir choosing. One of the greatest challenges the 11 United States confronts in the ongoing effort to prevent another catastrophic terrorist attack

12 against the U.S. Homeland is the critical need to gather intelligence quickly and effectiveJy. 13 Time is ofthe essence in preventing terrorist attacks, and the Govermnent faces significant

14 obstacles in finding and tracking terrorist operatives as they manipulate modern technology in an 15 attempt to communicate while remaining undetected. The NSA sources, methods, and activities 16 described herein are vital tools in this effort.

17

18

19

20

21

22

Classified Jn Camera, Ex Parle Declaration ofFrances J. Fleisch, National Security Agency

85

Jewel. v. NSA (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

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121. (U) For the foregoing reasons~ l support the DNl's ass~rtion of the state sec1·ets

1 privilege and statutory privilege to prevent lbe disclosure·of the in.form.alion described herein und

J detailed herela. Jalso assert a statutory privilege under Section 6 of the National Security Act

4 with respect to the information deser.ibed herein whfoh concerns the fuuctions of the NSA. s respectfully request that the Court· protect Iha~ h1fom1ation from disclosure to prevent

6 exceptionally gr-ave damage to the national security of the United S·fates.

?

&

(U) I declare under penalty of perjury that the foregoing is t:rue·and c.orrec.t

lO

DATE: /~ . £0. /0

ll

12.

cg: d .A.-.lt.-~ lL-d JL.t,.-ld t i l./
Frances J~ l'leisch
National Security Agency

Clnssificd./it C11mera, E.x Pa/'lf! OClclnracfon of Fmncos J. Ffolsch, Nat\on11I Security Ageacy. ,Jawal. ''· NSA (No. 08-cv-4873-JSW}; Shuherr v. Ohm1w Wl-cv-0693-JSW) (M:06-c.v- 17CJ1}

 
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TOP SECRET/fSIHNOfORN

STUART F. DELERY

Assistant Attorney General

JOSEPH H. HUNT

2 Director, Federal Programs Branch

ANTHONY J. COPPOLINO

3 Deputy Branch Director

JAMES J. GILLIGAN

4 Special Litigation Counsel

MARCIA BERMAN

5 Senior Trial Counsel

BRYAN DEARINGER

6 RODNEY PATTON

Trial Attorneys

7 U.S. Department ofJustice

Civil Division, Federal Programs Branch
8 20 Massachusetts Avenue, N.W.

Wa&hington, D.C. 20001

9 Phone: (202) 514-4782

Fax: (202) 616-8460
10

Attorneysfor the United States and

11 Government Defendants Sued in their

Official Capacities

12

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14

CAROLYN JEWEL, et al.
15

Plaintiffs,
16

v.
17

18 NATIONAL SECURITY AGENCY, et al.

19

Defendants.

) ) No. 08-cv-4373-JSW
l
l

°2 FIRST UNITARIAN CHURCH OF LOS

21

ANGELES, et al.,

22

Plaintiffs,

23

v.

24 NATIONAL SECURITY AGENCY, et al.,

25

Defendants.

26

~ No. 13-cv-3287-JSW ~ CLASSIFIED DECLARATION
) OF TERESA H. SHEA
~ EXPARTE, IN CAMERA SUBMISSION
Date: March 19, 2014
Time: 2:00 P.M.
Courtroom: 11 - 19th Floor Judge Jeffrey S. White

27

28

I, Teresa H. Shea, do hereby state and declare as follows:

TOP SECRETllSI//NOFORN
ClassifiedJn Camera, Ex Parte Declaration ofTeresa H. Shea Jewel v. NSA (08-cv-4373-JSW); First Unitarian Church ofLos Angeles v. NSA (13-cv-3287-JSW)

Case4:08-cv-04373-JSW Document228 Filed05/05/14 Page2 of 17
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TOP SECRET//SJ//NOFORN (U) INTRODUCTION

2

1. (U) I am the Director ofthe Signals Intelligence Directorate (SID) at the National

3 Security Agency (NSA), an intelligence agency within the Department of Defense (DoD). I am

4 responsible for, among other things, protecting NSA Signals Intelligence activities, sources, and
s methods against unauthorized disclosures. Under Executive Order No. 12333, 46 Fed. Reg.

6 59941 (1981), as amended on January 23, 2003, 68 Fed. Reg. 4075 (2003), and August 27, 2004,

1 69 Fed. Reg. 53593 (2004), and August 4, 2008, 73 Fed. Reg. 45325, the NSA is responsible for

s the collection, processing, and dissemination ofSignals Intelligence information for foreign

9 intelligence purposes ofthe United States. I have been designated an original TOP SECRET

10 classification authority under Executive Order 13526, 75 Fed. Reg. 707 (Jan. 5, 2010), and

11 Department of Defense Directive No. 5200.1-R, Information Security Program (Feb. 24, 2012).

12

2. (U) My statements herein are based upon my personal knowledge of Signals

13 Intelligence collection and NSA operations, information available to me in my capacity as

14 Signals Intelligence Director, and the advice of counsel.

15

3. (U) This declaration is classified TOP SECRET//SI//NOFORN pursuant to the

16 standards in Executive Order 13526, 3 C.F.R. 298 (2009). Under Executive Order 13526, 17 information is classified "TOP SECRET" if disclosure of the information reasonably could be

18 expected to cause exceptionally grave damage to national security, "SECRET" ifdisclosure of 19 the information reasonably could be expected to cause serious damage to national security, and 20 "CONFIDENTIAL" ifdisclosure ofthe information reasonably could be expected to cause 21 identifiable damage. In addition to classified information, this declaration also references

22 Special Intelligence (SI), which is a subcategory of Sensitive Compartmented Infonnation (SCI},

23 for which the Director ofNational Intelligence (DNI) imposes additional safeguards and access 24 requirements. At the beginning ofeach paragraph ofthis declaration, the letter or letters in 2s parentheses designate(s) the degree ofsensitivity ofthe information contained in the paragraph.

26

4. (U) When used for this purpose, letters "U/' "C," "S," and ''TS" indicate, that the

21 information is UNCLASSIFIED, or is classified CONFIDENTIAL, SECRET, or TOP SECRET,

28

TOP SECRET//Sf/fNOFORN
2
Classified Jn Camera, Ex Parle Declaration ofTeresa H. Shea Jewel v. NSA (08-cv-4373-JSW); First Unitarian Church of Los Angeles v. NSA (13-cv-3287-JSW)

Case4:08-cv-04373-JSW Document228 Filed05/05/14 Page3 of 17
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TOP SECRET//S:fffNOFORN respectively. Where "SI" information is at issue in the paragraph, these letters will follow after

2 the classification letters.

3

5. (U) Finally, and in addition to the separate levels ofclassification markings defined

4 by Exec. Order 13526, there are also dissemination controls appropriately associated with
s classified information. Dissemination control markings identify the expansion or limitation on

6 the distribution ofthe information. Not Releasable to Foreign Nationals, indicated by the 7 abbreviation NOFORN or NF, is an explicit foreign release marking used to indicate that the 8 information may not be released in any form to foreign governments, foreign nationals, foreign

9 organizations, or non-US citizens without permission ofthe originator ofthe information.

JO

6. (U) Accordingly, none ofthe information in this declaration can be removed from

11 classified channels without prior review by NSA and cannot appear in the public record,

12 including the docket reflecting these proceedings.

13 CU) DESTRUCTION OF COLLfftTED TELEPHONY METADATA IN COMPLIANCE
WITH FISC NIMIZATION REQUIREMENTS
14
7. (U) Under the "business records" provision of the Foreign Intelligence Surveillance
JS
Act ("FISA"), SOU.S.C. § 1861, as enacted by section 215 ofthe USA Patriot Act, Pub. L. No.
16
107-56, 115 Stat. 272 (2001) ("Section 215"), the Foreign Jntelligence Surveillance Court
17
("FISC"), upon application by the Federal Bureau of Investigation (FBI), may issue an order "for
18
the production ofany tangible things (including books, records, papers, docwnents, and other
19
items) for an investigation [1] to obtain foreign intelligence information not concerning a United
20
States person or [2] to protect against international terrorism." 50 U.S.C. § 1861(a)(l). Since
21
May 2006, the NSA has collected bulk telephony meta.data ("data") pursuant to FISC orders
22
directing certain telecommunications service providers to produce to the NSA on a daily basis
23
electronic copies of"call detail" records1 created by the recipient providers for calls to, from, or
24
wholly within the United States. Under the FISC's orders, the NSA's authority to continue
25
collecting the data expires after approximately 90 days and must be renewed. The FISC has
26

27

1 (TSHSJ//NF) Under the terms ofthe FISC's orders, this data includes, as to each call, the telephone

numbers that placed and received the can, other session-identifying information (e.g., International Mobile 28 Subscriber Identity (IMS!) number, International Mobile station Equipment Identity (IMEi) number, etc.), trunk

identifier, telephone calling card number, and the date, time, and duration ofa call

TOP SECRETh'Sl//NOFORN
3
ClassifiedIn Camera, Ex Porte Declaration ofTeresa H. Shea Jewel v. NSA (08-cv-4373-JSW); First Unitarian Church ofLos Angeles v. NSA (13-cv-3287-JSW)

Case4:08-cv-04373-JSW Document228 Filed05/05/14 Page4 of 17
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TOP SECRETHSJf/NOFORN renewed the daily collection ofthese data approximately every 90 days since May 2006 based on

2 applications from the FBI, supported by the NSA, showing that the production of these call detail

3 records satisfies the requirements ofSection 215. To protect U.S. person information the FISC's

4 orders impose procedures to minimize access to, use, dissemination, and retention ofthe data

5 consistent with the need to acquire, produce, and disseminate foreign intelligence information.

6 Among these is the requirement to destroy all bulk telephony metadata obtained under the

7 FISC's Section 215 orders within five years (60 months) ofthe data's collection. This five-year

8 limit reflects the judgment arrived at by the Executive Branch that after five years the data no

9 longer holds significant foreign intelligence value meriting their retention.

10

8. (TS//SYINF) The NSA effectuates this retention limit using existing computer systems

11 architecture (referred to herein as the "existing architecture") by implementin

12 compliance process during which the NSA destroys the data to be aged off

13

14

15

16

17

18 19
20

21 22

23 24
25 26

28

NSA intelligence analysts do not and will not have access to any data that

TOP SECRET//Slf!+~OFORN
4
CJassified Jn Camera, Ex Parle Declaration ofTeresa H. Shea Jewel 11. NSA (08-cv-4373-JSW); First Unitarian Church ofLos Angeles v. NSA {l 3-cv-3287-JSW)

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TOP SECRETHSIHNOFORN

are otherwise subject to the FISC-imposed destruction requirement while the question of whethe

2 the data must be preserved for litigation purposes is being resolved. Nor would they have access

3 to the data afterward ifthey are preserved.2

4

9. (TSh'SJIR'W) The NSA has for several years been in the process ofdeveloping a new

5 computer systems architecture (referred to herein as the "new architecture") for storing and

6 processing the telephony metadata collected pursuant to the FISC's orders under Section 215.

1 The purpose ofthis new architecture is to better ensure compatibility with NSA-wide

8 information technology upgrades.

9

10 ]]

12

13

14

15

16 17

18 19

20

21

22

23

i 0. (U) I have been informed that Plaintiffs in these actions have requested that the

24 Government be required to preserve the ''telephone records" that the NSA has collected under

25 the FISC-authorized telephony metadata program. This request could be taken to mean either

26 (i) targeted preservation of metadata collected under Section 215 that pertain only to the

27

2 (U) By order ofthe FISC on March 12, 2014, NSA technical personnel may access the metadata only for

the purpose ofensuring continued compliance with the Government's preservation obligations to include talcing 28 reasonable steps designed to ensure appropriate continued preservation and/or storage, as well as the continued

integrity ofthe BR metadata.

TOP SECRETl/Sl/fNOFOR:N
5 Classified In Camera, Ex Parte Declaration ofTeresa H. Shea Jewel v. NSA (08-cv-4373-JSW); First Unitarian Church ofLos Angeles v. NSA (13-cv-3287-JSW)

Case4:08-cv-04373-JSW Document228 Filed05/05/14 Page6 of 17
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'fOf' S~C:&E'f'//Sli'i'HOFOKH Plaintiffs' telephone calls, if any, or (ii) mass retention ofall the data that are more than five

2 years old. Both tasks would impose significant financial burdens on the NSA, divert personnel

3 and technological resources from performance ofthe NSA's national security mission, and

4 present other issues as well. I discuss each task intum.

s (U) CONTINUED RETENTION OF COLLECTED TELEPHONY METADATA. IF

6

ANY, RELATED TO PLAINTIFFS' TELEPHONE CALLS

7
11. (TS//Sl//NF) To the extent Plaintiffs seek targeted preservation ofdata associated
8
only with their own telephone calls, the NSA first would have to determine whether it has ever
9
collected data pursuant to Section 215 associated with Plaintiffs' calls. For the NSA to make thi
10
determination, each Plaintifforganization and each individual Plaintiff would have to provide th
11
NSA with, for example, all telephone nwnbers they were assigned or used at any time during the
12
period for which data that otherwise would be destroyed must be preserve
13

14
The Plaintiffs would also have to inform the NSA ofthe specific time period during which they
IS
were assigned or used each telephone number, so that data pertaining to the calls of other perso
16
who may have used or been assigned a particular number are not inadvertently retained. For the
17
same reason, ifthis litigation continues long enough, each Plaintiffwould have to inform the
18
Government of any changes in the numbers they use or are assigned.
19
12. (U) It is also important to note that the NSA would not simply be preserving data
20
consisting ofthe Plaintiffs' phone numbers; the preserved data would include, among other
21
information, the initiating and receiving number, and the date, time, and duration ofeach call in
22
each record that was collected. For example, if a call detail record concerning a phone call made
23
by a Plaintiff was collected, that Plaintiff's telephone number as well as the receiving number-
24
which may be that of an individual not in any way associated with these lawsuits-would be
2S
preserved together, along with the date, time, and duration ofthat individual's call with the
26
Plaintiff.
27
13. (U) Moreover, pursuant to the FISC's orders, NSA intelligence analysts may not
28
access the data except through queries conducted for foreign intelligence purposes using

TOP SECRET//Slh'NOFOID~
6
Classified Jn Camera, Ex Parle Declaration ofTeresa H. Shea Jewel v. NSA (08-cv-4373-JSW); First Unitarian Churc:h a/Los Angeles v. NSA (13-cv-3287-JSW)

Case4:08-cv-04373-JSW Document228 Filed05/05/14 Page7 of 17
Approved for public release May 5, 2014

TOP SECRET/fSlf/NOFORN

identifiers (e.g., telephone numbers) that are reasonably suspected of being associated with

2 foreign terrorist organizations that have been approved for targeting by the FISC. Therefore,

3 even ifPlaintiffs were to provide the NSA with the telephone numbers they used or were

4 assigned during the relevant time period, to identify records ofPlaintiffs' calls would possibly

s require prohibited queries ofthe database for purposes other than obtaining foreign intelligence

6 information by using identifiers (Plaintiffs' telephone numbers) that have not been approved

7 under the ''reasonable, articulable suspicion'' standard. This means that, before determining

8 whether the NSA has collected metadata associated with Plaintiffs' calls, the Government may

9 first have to seek and obtain approval from the FISC to run queries in the NSA's database for

10 records associated with each telephone number provided by each Plaintiff. In the event that data

11 associated with any calls made by Plaintiffs have been collected by the NSA, the queries, among

12 other things, will return-and, in accordance with any preservation obligation imposed by the

13 Court, the NSA would separately maintain-a collection of records indicating the telephone

14 numbers with which each Plaintiffwas in contact over a period ofone or more years, depending

15 on how long the NSA must continue to preserve data it would otherwise destroy.

16

14. (U) In addition to the foregoing considerations are the time, effort, and resources

17 that would be required for the NSA to preserve until the conclusion ofthe litigation any data

18 (whetherpertaining to Plaintiffs' calls only or not) that would otherwise have been destroyed in

19 compliance with the FISC's five-year retention limit. The fact that there is no way to predict

20 how long the lawsuits before this Court will last. coupled with ever-changing mission

21 requirements and systems, makes it extremely difficult to estimate costs and to devise the most

22 cost-effective data storage solution should this Court issue an order requiring preservation of

23 · data that would otherwise be subject to age-off. All ofthe feasible solutions present the

24 possibility ofimposing substantial cost burdens on the NSA that would divert limited resources

25 away from foreign intelligence mission requirements. While it is impossible to quantify the

26 additional risks such a diversion ofresources may pose to the national security, I deem such risks

27 to be significant.

28

15. (U) An order to preserve only metadata pertaining to Plaintiffs' calls (assuming such

TOP SECRET//Sl//NOFQ~.q
7
Classified In Camera, Ex Parte Declaration ofTeresa H. Shea Jewel v. NSA (08-cv-4373-JSW); First Unitarian Church ofLos Angeles v. NSA (13-cv-3287-JSW)

Case4:08-cv-04373-JSW Document228 Filed05/05/14 Page8 of 17
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TOP SECRETHSIHNOFORN

data have been collected) would require the NSA to devote significant financial and personnel

2 resources over several months-assets that would otherwise be devoted to the NSA's national

3 security mission-to create, test, and implement a solution that would preserve only these

4 targeted data on an ongoing basis.

s

16. (TS#Sb'R'W) Specifically, with regard to the new architecture, which is currently

6 scheduled to replace the existing architecture later this year, the NSA would need to assign a

1 team ofNSA software developers, already familiar with the Section 215 telephony metadata

8 program and the relevant platform, to create and design appropriate software and write the

9 source code that would allow the NSA to identify and separately retain the telephony metadata

10 associated only with Plaintiffs' telephone numbers, if any, that would otherwise be aged offand

11 destroyed on a daily basis. Once the software had been created, this NSA team would need to

12 test and verify that the program works as intended, resolve any flaws or bugs, and then (as with

13 any significant modification to an existing architecture) seek and obtain approvals within the

14 NSAfor implementation ofthe new software program. I estimate, based on the information

15 available to me now, that this process would take the team ofNSA software developer-

16

offull-time work on the project from deployment to operational capability. The

11 cost ofthis process is difficult to quantify in the abstract, but I would estimate that the initial cost
18 would be at lea~ Additional costs would accrue over time. Over the course ofthree

19 years, I estimate the total cost, including for the aforementioned labor, hardware maintenance,

20 back up media, and additional software maintenance, would be at leas

Over five

21 years, I estimate the total cost would be at leas

I emphasize that these are

22 preliminary estimates. Additional time would be needed in order to develop more complete and

23 accurate estimates. Based on past experience, I believe that costs could well exceed these

24 estimates and the estimates that follow in subsequent paragraphs ofmy declaration. In addition

2s to the inherent difficulty offinding sufficient funds in the NSA's budget to cover such

26 unanticipated costs, mission-enhancing functions would be delayed or impaired while resources

21 are diverted to the preservation effort. For example, the software developers needed for this

28 effort would be Wiable to work on NSA mission requirements during this

TOP SECRET//SIHNOFORN
8
Classified In Camera, Ex Parle Declaration ofTeresa H. Shea
Jewel v. NSA (08-cv-4373-JSW); First U11itaria11 Church ofLos Angeles v. NSA (13-cv-3287-JSW)

Case4:08-cv-04373-JSW Document228 Filed05/05/14 Page9 of 17
Approved for public release May 5, 2014

TOP SECRETHSI//NOFORN

1 period, causing delay in making.the new architecture operational.

2

17. (TSHStfftW) Hiring contractors or assigning other software developers who are not

J familiar with the Section 215 program or the new architecture to resolve this issue is not a viable

4 option. The platform for the new architecture is proprietary and was developed by the NSA for
s purposes ofthe Section 215 program. Without devoted personnel who are experienced with the

6 platform and its software, this process would tak

(instead of

7

to allow for the additional training to assure successful completion ofthe work.

8

18. ~'fS//SL'/Hf1 With regard to the existing architecture, NSA would be required, in

9 order to preserve any metadata associated with Plaintiffs' calls that may have been collected and

10 stored in that platform, to create, design, and write a software program that would allow the NSA

11 to query the data for records associated with Plaintiffs' telephone numbers. Once responsive

12 data, if any, were identified, NSA would then need to extract that data from the analytic

13 databases and store it separately in an appropriate format. I estimate that the initial costs for

14 personnel time and hardware alone would be at l e a s - Over three years, I estimate the

1s total cost, including for personnel time and hardware, would be well in excess o

16 Over five years, I estimate the total cost would be at least

Again, I emphasize that

11 these are preliminary estimates. Depending on when the transition to the new architecture

18 occurs, additional costs to preserve data in the existing architecture and maintain some or all of

19 the additional architecture may also accrue.

20

19. (TS//Sfl>'tff) In sum, based on the foregoing, I estimate that, if the Court orders the

21 Government to preserve metadata associated with Plaintiffs1 calls, the initial cost would b -

22 -

and at least approximatel

Over three years, I estimate the total cost would

23 be approximate!

and possibly more. Over five years, I estimate the total cost would

24

These preliminary cost estimates are in monetary terms only

2s and do not factor in the diversion ofpersonnel and technological resources from the NSA's

26 foreign intelligence mission.

27

28

TOP SECRETHSIHNOFORN
9
Classified In Camera, Ex Parte Declaration ofTeresa H. Shea
Jewel v. NSA (08-cv-4373-JSW); First Unitarian Church ofLos Angeles v. NSA (13-cv-3287-JSW)

Case4:08-cv-04373-JSW Document228 Filed05/05/14 Page10 of 17
Approved for public release May 5, 2014
TOP SECRETHSif/NOFORM
(U) RETENTION OF ALL "AGED OFF" TELEPHONY METADATA FOR THE
DURATION OF THE LITIGATION
2
20. (TSJ/Sl//N¥) The alternative to identifying, extracting, and preserving metadata
3
pertaining just to Plaintiffs' telephone calls would be to preserve all telephony metadata
4
collected more than five years ago in a format that precludes any access or use by NSA
5
personnel for any purpose other than ensuring continued compliance with the Government's
6
preservation obligations (to include taking reasonable steps designed to ensure appropriate
7
continued preservation and/or storage, as well as the continued integrity ofthe data.)
8
9
10
11
12
13
14
IS
16
on a non-analytic portion ofthe existing architecture's
17
software and hardware, or (ii) by migrating the all the data to backup tapes. Under either option,
18
preservation ofall telephony metadata retained beyond the five-year limit imposed by the FISC
19
would involve substantial costs to the agency, financial and otherwise, either to preserve or to
20
access the data (for litigation purposes). The first method ofpreservation would involve more
21
costs initially but fewer costs to make the data retrievable. The second ·method would involve
22
fewer upfront costs, but it would be significantly more expensive to retrieve the data and make
23
them searchable for litigation purposes should that become necessary.
24
22. (TS//Sll/NF) Regardless ofwhether NSA preserves the data using the existing
25
architecture Qr by migrating the data to backup tapes, there is no way to guarantee with absolute
26
certainty that over the course oftime, the integrity ofthe data will be preserved. As a general
27
matter, the longer the time that electronic data must be preserved, the greater the risk that such
28
TOP 8ECRETNS~40FOfU~
JO Classified In Camera, Ex Parte Declaration ofTeresa H. Shea Jewel v. NSA (08-cv-4373-JSW); First Unitarian Church ofLos Angeles v. NSA (13-cv-3287-JSW)

Case4:08-cv-04373-JSW Document228 Filed05/05/14 Page11 of 17
Approved for public release May 5, 2014

TOP SECRETHSfHNOFORN data-in spite of best efforts by NSA personnel-will become unusable for litigation or for any

2 other purpose.

3

(U) Option One

4

23. (TSh'SlllNF) The first of the two options for preserving all ofthe data would involve

s migrating the data into a preservation system to which NSA intelligence analysts would have no

6 access for any purpose. Further, some portion of the existing architecture, instead of being

7 decommissioned, as is now planned fo

would remain in operation for the sole

s purpose ofpreserving the data for civil litigation purposes.

9

10

11

12

13

14

15

16

17

A significant portion ofthose savings will be lost ifthe

18 existing architecture cannot be decommissioned, as planned, once the new architecture becomes

19 operational.

20

26. (TS//SlflNF) For example, continued operation ofthe hardware on which the

21 existing architecture is located will require the NSA to continue to devote space in which to 22 house the hardware, as well as electrical power needed to operate and cool it. These are critical 23 resources, all in great demand at NSA given the breadth ofthe agency's responsibilities for the 24 acquisition, analysis, and dissemination offoreign intelligence information. Continuing to 25 devote these resources to the operation of the existing architecture for litigation purposes will 26 mean diverting them, in effect, from ongoing (or intended) signals intelligence operations with a 27 corresponding impact on the NSA's ability to collect, process, analyze, and disseminate foreign 28 intelligence information for purposes of national security. In addition, preservation of data in the

TOP SECRETl/SOO~OFOR:l'~
11
Classified Jn Camera, Ex Parle Declaration ofTeresa H. Shea Jewel v. NSA (08-cv-4373-JSW); First Unitarian Church ofLos Angeles v. NSA (13-cv-3287-JSW)

Case4:08-cv-04373-JSW Document228 Filed05/05/14 Page12 of 17
Approved for public release May 5, 2014

TOP SECRE'fh'SJffl~OFORN existing architecture would require a diversion of qualified personnel resources from other NSA

2 operational missions to maintain and repair the hardware and ensure the continued integrity of

3 the stored data. Over the next year, I estimate the cost ofthis undertaking in monetary terms

4 aloneto

and in the range of up to or exceedin

I

s emphasize that this is a preliminary estimate and the actual expenses may vary substantially from

6 this figure ifthe Court ordered this option.

7

(U) Option Two

8

27. (TS//Sll/NF) An alternative to the preservation oftelephony metadata within the

9 existing architecture would be to migrate data acquired more than five years ago from online

10 databases to offiine storage on tape. Under this option, all data would be copied onto sets of

11 tapes for offline storage.

12

13

14

IS

16

17

18

19 20
21 would not involve a diversion offinancial, technological, and personnel resources on the same 22 scale as preserving the data on an active, repurposed system within the existing architecture. 23 Nevertheless, the cost remains substantial. Once metadata have been transferred to offline 24 storage, the tapes containing the data would have to be maintained under appropriate 2s environmental conditions (temperature and humidity) to maintain the integrity ofthe media and 26 the preserved data. The estimated cost ofthis method would be approximatel~per 27 year simply to store the data without ever retrieving it. I emphasize that this is a preliminary 28 estimate and the actual expenses may vary substantially from this figure.

TOP SECPJ!IT//Sb'/t40FOR1<
12 Classified In Camera, Ex Porte Declaration ofTeresa H. Shea
Jewel v. NSA (08-cv-4373-JSW); First Unitarian Church ofLos Angeles v. NSA (13-cv-3287-JSW)

Case4:08-cv-04373-JSW Document228 Filed05/05/14 Page13 of 17
Approved for public release May 5, 2014

TOP SECRET//Sb'fNOFORN' 29. (TS//S~F) These costs would greatly increase ifthe NSA were required to retriev

2 these data for litigation purposes. To make the data preserved on tapes accessible for possible 3 purpose ofdiscovery in litigation (e.g., to search for records of calls to or from the Plaintiffs) at a

4 later date, would require substantial time and effort and impose additional significant costs on
s

6

7

8

9

10

11

I emphasize that this is a preliminary

12 estimate and actual expenses may vary substantially from this figure. The larger the amount of

13 data that is preserved over time, the greater will be the time for needed and cost to the agency of 14 making the data accessible in this fashion. As with any type oftape storage, there is also a risk 15 that the integrity ofthe data could be compromised through the passage oftime, and that the data 16 may not be retrievable or searchable ifthe existing architecture cannot be made functional again.

17

<ID PRESERVATION OF OTHER POTENTIAL EVIDENCE

18

30. (U) I understand that the Plaintiffs have inquired what steps the Government has

19 taken to preserve telephony metadata, Internet metadata, and communications content collected

20 by the NSA under authority ofthe President following the September 11, 2001, terrorist attacks,

21 and thereafter under FISC authority pursuant to sections 402, 501, and 702 ofFISA, as well as

22 other documents and information pertaining to those activities. I address those matters below.

23 Nothing stated herein, however, is intended to be, or should be construed as, an admission either

24 (i) that documents and information pertaining to activities carried out under FISC authority,

2s including the data collected, are relevant to the Jewel litigation (or its companion case, Shubert v.

26 Obama), or (ii) that documents and infonnation pertaining to the collection of Internet metadata
27 and communications content under FISC authority pursuant to sections 402 and 702 ofFISA,
28 including the data collected, are relevant to the First Unitarian litigation.
31. (U) The steps taken by the Government to identify and to preserve documents and TOP SECRETHSii/NOFORN
13
Classified In Camera, Ex Porte Declaration ofTeresa H. Shea Jewel v. NSA (08-cv-4373-JSW); Fir.st Unitarian Church ofLos Angeles v. NSA (13-cv-3287-JSW)

Case4:08-cv-04373-JSW Document228 Filed05/05/14 Page14 of 17
Approved for public release May 5, 2014

TOP 8ECRET//8ll~•OFORN information related to the particular intelligence activities authorized by the President in the 2 wake ofthe September 11 attacks are described in the Government's Classified Supplemental
3 Memorandum in Opposition to the Plaintitrs Motion for Order to Preserve Evidence, dated 4 October 25, 2007, filed in the case styled In re NSA Telecommunications Records Litigation,
s MDL Dkt. No. 06-1791-VRW. The Government supported its Memorandum with the Classified

6 in Camera, Ex Parle Declaration o

Deputy ChiefofStafffor Operations and

7 Support, Signals Intelligence Division, National Security Agency to apprise the Court ofthe

8 preservation efforts that the Government had undertaken. A declassified version ofthe

9 Government' s memorandum and

declaration have been prepared for public filing in

10 this litigation. As explained j~declaration the NSA had at that time preserved, and

11 the NSA continues to preserve, among other things, certain Internet and telephony metadata

12 collected and the content ofcertain communications intercepted, under Presidential authority, in

13 connection with the NSA intelligence programs known collectively as the President's

14 Surveillance Program.

15

32. (U) It is not feasible in the time available to respond to Plaintiffs' Opening Briefre:

16 Evidence Preservation to describe in detail the various steps that the NSA has taken to preserve

documents and information related to the bulk collection ofInternet and telephony metadata, and
17

18 the collection of communications content, under FISC authority pursuant to sections 402 and 702

of FISA. With respect, however, to the retention ofthe collected data themselves, I can advise
19

20 the Court as follows.

33. (TS/ISf/fNF) As discussed above, the FISC's orders authorizing the NSA's bulk
21

collection oftelephony metadata under FISA section 501 (Section 215) require that metadata
22

obtained by the NSA under this authority be destroyed no later than five years after their
23

collection. To comply with this legal reqwrement, the NSA between
24

of2011,

destroyed all the metadata collected between May 2006 (the inception of the program under
2S

FISC authorization
26

Between

the metadata collected betweenm2007
27

2013, the NSA destroyed all the metadata collected betwee

28

with the exception ofthe test data, collected betwee

In accordance

TOP SECRETffSlh'NOFORN
14 Classified In Camera, Ex Parle Declaration ofTeresa H. Shea Jewel v. NSA (08-cv-4373-JSW); First Unitarian Church ofLos Angeles v. NSA (13-cv-3287-JSW)

Case4:08-cv-04373-JSW Document228 Filed05/05/14 Page15 of 17
Approved for public release May 5, 2014

TOP SECRETh'Sl/fNOFORN

with the Court's March 10, 2014, order, and the subsequent March 12, 2014, order ofthe FISC,

2 the scheduled destruction ofthe data collected between

3 been put on hold pending further order ofthis Court. Therefore, the NSA currently retains bulk
4 telephony metadata collected under FISC authority betwee~2009
5 and such data betwee~ 2009 and the present.

6

34. (TSh'Sf//NF) The NSA's collection ofbulk Internet metadata transitioned to FISC

7 authority under section 402 ofFISA in July 2004. Until December 2009, these data were subject

8 under the FISC's orders to a 4.5-year retention limit, after which, pursuant to a change in the

9 FISC orders, these data could be retained for up to five years. ln December 2011, the

10 Government decided not to seek FISC reauthorization ofthe NSA's bulk collection oflnternet

11 metadata because the program had not met operational expectations. Because the NSA did not

12 intend thereafter to use the Internet metadata it had retained for purposes of producing or

J3 disseminating foreign intelligence information, in keeping with the principle underlying the

14 destruction requirements imposed by the FISC, the NSA destroyed the remaining bulk Internet

15 metadata in December 2011.

16.

35. {TSHSJHNF) Certain ofthe NSA's acquisition oftelephone arid Internet content

17 under Presidential authorization similarly transitioned to FISC authority. Beginning on

January 10, 2007, the FISC issued orders (known as the "Foreign Telephone and Email Order"
18

authorizing the Government to conduct certain electronic
19

surveillance activities that had been occurring under the authority ofthe President. Presidentiall
20

authorized surveillance activities expired shortly thereafter. The FISC orders authorizing the
21

electronic surveillance required that communications acquired under those authorities be
22
destroyed no later than five years after their collection. All NSA intelligence reports utilizing the
23
content ofcommunications intercepted under authority ofthese orders are preserved
24
permanently.
25
36. (TS/181//l'ff) In August 2007, Congress enacted the Protect America Act (PAA),
26
which carved out ofthe PISA definition of "electronic surveillance" a surveillance directed at a
27
person reasonably believed to be located outside the United States ~d authorized the Attorney
28
General and the Director ofNational Intelligence to jointly authorize the acquisition offoreign

TOP SECRET//Sf/fNOFORN
15
Classified In Camera, Ex Parte Declaration ofTeresa H. Shea Jewel v. NSA (08-cv-4373-JSW); First Unitarian Church ofLos Angeles v. NSA (13-cv-3287-JSW)

Case4:08-cv-04373-JSW Document228 Filed05/05/14 Page16 of 17
Approved for public release May 5, 2014

TOP SECRETf/Sf//tqOFOR:N

intelligence information concerning persons reasonably believed to be located outside the United

2 States. The Foreign Telephone and E-mail Order was not renewed after the PAA was enacted.

3 Pursuant to applicable.minimization procedures, the NSA was only authorized to retain

4 communications acquired pursuant to PAA certifications for five years. Subject to limited

s exceptions, communications identified as domestic communications were to be promptly

6 destroyed. All NSA intelligence reports utilizing the content ofcommunications intercepted

7 under PAA authority are currently retained permanently. The PAA expired on February 16,

8 2008 and, on July 11, 2008, the Foreign Intelligence Surveillance Act Amendments Act of2008

9 (FAA) was signed into law.

10

37. (U) Section 702 of FISA, enacted by the FAA, created new statutory authority and

11 procedures permitting the targeting ofnon-United States persons reasonably believed to be

12 outside ofthe United States without individual FISC orders through directives issued to

13 electronic communication service providers by the Director of National Intelligence and the

14 Attorney General. Pursuant to the FISC-approved (and mandated) minimization procedures in

15 effect from August 2008 until October 2011, the NSA was only authorized to retain raw,
unminimized communications acquired pursuant to § 702 certifications for five years. Subject to
16
17 limited exceptions, domestic communications were to be destroyed upon recognition.
38. (U) On October 3, 2011, the FISC found certain aspects ofNSA's § 702
18
minimization procedures to be inconsistent with certain statutory and constitutional
19
requirements, including the retention ofcertain information acquired by NSA. Accordingly,
20
NSA corrected the deficiencies identified by the FISC which, on November 30, 2011, found the
21
retention provisions ofNSA's amended minimization procedures to comply with both§ 702 and
22
the Fourth Amendment. The current NSA § 702 minimizatio~ procedures, which are in effect
23
today, authorize NSA to retain telephony and certain Internet communications no longer than
24
five years from the expiration date ofthe certification authorizing the collection. With respect to
25
the retention oflnternet transactions acquired via NSA's "upstream" techniques, such
26
information must also be destroyed within two years ofthe expiration ofthe certification unless
27
limited exception applies. Further, any Internet transactions acquired through NSA's upstream
28
collection techniques prior to October 31, 2011 will be destroyed upon recognition. Foreign

TOP SECRETHSIHNOFORN
16
Classified Jn Camera, F.x Parle Declaration ofTeresa H. Shea
Jewel v. NSA (08-cv-4373-JSW); Firs t Unitarian Church of Los Angeles v. NSA (13-cv-3287-JSW)

Case4:08-cv-04373-JSW Document228 Filed05/05/14 Page17 of 17
Approved for public release May 5, 2014
TOP SECRETHS:Ef/NOFORN communications ofor concerning United States persons collected in the course of an acquisition 2 authorized under§ 702 may be retained pursuant to certain, specified exceptions. Finally, 3 subject to limited exceptions, domestic communications acquired pursuant to FAA 702 are to be 4 destroyed upon recognition. All NSA intelligence reports utilizing the content ofintercepted
s communications obtained under § 702 are preserved permanently.
6
I declare under penalty of perjury that the foregoing is true and correct.
7
Executed on: March 17, 2014
8
9
Teresa H. Shea
10 11
12
13
14
15 16 17
18 19 20
21 22
23 24
25 26 27 28
TOP SECRET//SIHNOFORN
17 Classified Jn Camera, Ex Parle Declaration ofTeresaH. Shea Jewel v. NSA (08-cv-4373-JSW); First Unitarian Church ofLos Angeles v. NSA (13-cv-3287-JSW)

 
 1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6 FOR THE NORTHERN DISTRICT OF CALIFORNIA
7

8 FIRST UNITARIAN CHURCH OF LOS ANGELES, ET AL.,
9 Plaintiffs,
10 v.
11 NATIONAL SECURITY AGENCY, ET AL.,
12 Defendants.
13

No. C 13-03287 JSW

United States District Court For the Northern District of California

14 CAROLYN JEWEL, ET AL.,

15 16 v.

Plaintiffs,

No. C 08-04373 JSW

17 NATIONAL SECURITY AGENCY, ET AL.,

18

Defendants.

19

20 VIRGINIA SHUBERT, ET AL.,

21

Plaintiffs,

No. C 07-00693 JSW

22 v.

23 BARACK OBAMA, ET AL.,

24

Defendants.

/

25

26

NOTICE OF QUESTIONS FOR

HEARING

27

28

United States District Court For the Northern District of California

1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE

2 NOTICE OF THE FOLLOWING QUESTIONS FOR THE HEARING SCHEDULED ON

3 MARCH 19, 2014 AT 2:00 P.M.:

4

The Court has reviewed the parties’ papers and, thus, does not wish to hear the parties

5 reargue matters addressed in those pleadings. If the parties intend to rely on authorities not

6 cited in their briefs, they are ORDERED to notify the Court and opposing counsel of these

7 authorities reasonably in advance of the hearing and to submit copies as soon as possible

8 directly to chambers and to make copies available at the hearing. If the parties submit such

9 additional authorities, they are ORDERED to submit the citations to the authorities only, with

10 reference to pin cites and without argument or additional briefing. Cf. N.D. Civil Local Rule 7-

11 3(d). The parties will be given the opportunity at oral argument to explain their reliance on

12 such authority.

13

The parties shall address the following questions:

14 1. 15 16 17 18 19

Assuming without deciding that the preservation order in Jewel does not cover the retention or destruction of materials subject to orders of the Foreign Intelligence Surveillance Court (“FISC”), what is the fundamental difference in the position of the Government now on the argument that materials subject to FISC orders are not similarly subject to preservation for discovery to Plaintiffs in First Unitarian Church? Having made many of the same arguments which failed to persuade the Court when it issued the preservation order in the MDL and in Jewel, why should the Court be persuaded now that the content of the materials allegedly collected under FISC supervision (and clearly subject to the claims in First Unitarian) should be subject to different preservation treatment than the material allegedly collected under Presidential directive (and clearly subject to the claims in Jewel)?

20 2.
21
22
23 3.
24
25
26
27
28

Must the Court determine the intended scope of the allegations in the Jewel Complaint and the resulting preservation order in that matter or may it issue a similar preservation order in First Unitarian Church and proceed accordingly? Should the Court revisit, in a separate proceeding, the issue of whether the Jewel preservation order covered the currently disputed FISC-related materials with regard to the Plaintiffs’ contention that the Government has failed its retention obligations?
With regard to the NSA’s retention policy:
a. According to the Government’s now partially unclassified submission filed in conjunction with the preservation proceedings before the MDL matter, “NSA’s operational policy is to continue to migrate telephony metadata beyond five years old from an online database to tapes for preservation.” (See Exhibit A to Government’s Opposition at ¶ 25; see also Exhibit B at 9.) Has NSA retention policy changed since those submissions from October 2007?

2

United States District Court For the Northern District of California

1 2 3 4 5
4. 6 7 8 5. 9 10 11 12 13 14 15 16 17 18 19 20 6. 21 22
7. 23 24 25 26 /// 27 /// 28 ///

b. The Government’s most recent submission indicates that “the NSA intended to preserve and/or store the data that would otherwise be destroyed in a format that precludes any access or use by NSA intelligence analysts for any purpose.” (See Exhibit C to Response, Declaration of Teresa H. Shea at ¶ 4.) Is there any reason to treat the materials clearly made relevant in the First Unitarian Church matter differently from the potentially discoverable material covered by the retention order in Jewel?
As the Government argued before the FISC in February and acknowledged before this Court in its joint case management conference statement, what is the scope of the Government’s obligation to preserve relevant evidence under Federal Rules of Civil Procedure 26, 45 and 56(e), regardless of any preservation order?
The Court is persuaded that a targeted retention policy with regard to materials possibly collected pertaining specifically and only to the named Plaintiffs is untenable. The alternative addressed by the Government is the mass retention of all raw data possibly collected by the NSA under the challenged programs. According to both the public and classified declarations of the Director of the Signals Intelligence Directorate at the NSA, this mass data retention would negatively interfere with the NSA’s current mission.
a. Is there some lesser quantum of materials that would satisfy the requirement to preserve evidence relevant to provide possible support for Plaintiffs’ claims? For instance, can the Government satisfy its obligation to preserve evidence by retaining evidence of the challenged surveillance programs and their breadth without retaining all the actual, collected raw data incident to the programs’ implementation?
b. Should the Court find there is no lesser definable quantum of evidence subject to retention, is the scope of Plaintiffs’ request reflected in the first paragraph of their proposed order together with the added sentences from the Plaintiffs’ reply? Does the Government object to the language from the proposed order at ¶ 1 and Plaintiffs’ reply at 4:26-5:1?
c. What is the Government’s response to Plaintiffs’ suggestion that the Government admit or deny that Plaintiffs’ telephone records have been collected and for how long?
Does the Government object to the insertion of the third paragraph in Plaintiffs’ proposed order regarding the FISC’s imposed restriction concerning that court’s required authorization of any review or use of records for intelligence-gathering or any other non-litigation related purposes?
The preservation order in Jewel requires that counsel submit to the Court under seal and pursuant to Federal Rule of Civil Procedure 11, a statement that the Court’s preservation directive has been carried out. Does the Government’s recent and partially declassified submissions regarding its preservation protocol under the Jewel preservation order satisfy this requirement? Does the Government object to this same provision in any preservation order issued in First Unitarian Church?

3

United States District Court For the Northern District of California

1 8. Do the parties have anything further they wish to address?

2

IT IS SO ORDERED.

3 Dated: March 18, 2014 4

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

5

6

7

8

9

10

11

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14

15

16

17

18

19

20

21

22

23

24

25

26

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28

4

 
 MICHAEL F. HERTZ 2 Acting Assis~t Attorney General
DOUGLAS N. LETIER 3 Terrorism Litigation Counsel
JOSEPH H. HUNT 4 Director, Federal Programs Branch 5 VINCENT M. GARVEY
Deputy Branch Director
6 ANTIIONY J. COPPOLINO
Special Litigation Counsel 7 U.S. Department of Justice 8 Civil Division. Federal Programs Branch
20 Massachusetts Avenue, NW 9 Washington. D.C. 20001
Phone: (202) 514-4782 10 Fax: (202) 616-8460
11
Attorneysfor the United States and 12 Government Defendants Sued in their
Official Capacities
13

14

UNITED STATES DJSTRICI' COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16
SAN FRANCISCO DIVISION

17
CAROLYN JEWEL, et al.
18

19

Plaintiffs,

20
v.
21
22 NATIONAL SECURITY AGENCY, etal.

23

Defendants

) No. 08-cv-4873-VRW ) ) CLASSIFIED DECLARATION ) OF DENNIS C. BLAIR ) DIRECTOR OF NATIONAL ) INTELLIGENCE ) ) EX PARTE, IN CAMERA ) SUBMISSION )

) Date: June 25, 2009

24

) Time: 2:30 p.m.

25

) Courtroom: 6, 17th Floor

)

26

) Chief Judge Vaughn R. Walker

)
27

28

Classified In Camera, Ex Part~ Declaration of Dennis C. Blair, Director of National Intelligence Jewel ~tal. v. National Security Ag~ncy el aL (08-cv-4873-VRW)
1

TOP SECFml71COMiil<i -1T~PIItiCS710RCOI~/l~OP6J.ti("f/Mft

I, Dennis C. Blair, do hereby state and declare as follows:
2
-tHT-INTRODUCTION
3
l. ~am the Director of National Intelligence (DNI) of the United States. I have
4
5 held this position since January 29,2009. In 2002, I retired as an Admiral from the United

6 States Navy after a 34-year naval career, which included my service as Commander-in-Chief of
7
the U.S. Pacific Command. During my naval career, I also served as Director of the Joint Staff
8
and as Associate Director of Central InteJI.igence for Military Support, as well as in policy
9
10 positions on the National Security Council staff. From 2003 to 2006, I was President and CEO

II of the Institute for Defense Analyses, an organization that analyzes and makes recommendations

12 on national security policy matters.

13

2. ~The purpose of this declaration is to formally assert, in my capacity as the

14

Director of National Intelligence and head of the United States Intelligence Community, the
15

16 military and state secrets privilege (hereafter "state secrets privilege") and a statutory privilege

17 under the National Security Act. see 50 U.S.C. § 403-l(i)(l), in order to protect intelligence

18 sources and methods that are at risk of disclosure in this case. The statements made herein are
19 based on my personal knowledge as well as on information provided to me in my official
20
capacity as the Director of National Intelligence.
21

22

23

3. ~In the course of my official_duties, I have been advised of this la~suit and the

24 allegations at issue in the plaintiffs' Complaint. In personally considering this matter, I bave
25
executed a separate unclassified declaration dated April3, 2009. Moreover, I have read and 26
27 personally considered the information contained in the Public and In Camera, Ex Parte

28 Declaration of Deborah A. Bonanni, Chief of Staff, National Security Agency, exeeuted on April

TOP SECRE'fi/COMH'IT -q'~Pt/ORC~~OEQJlNliMR
Classified In Camera. Ex Parte Declaration of Dennis C. Blair. Director of National Intelligence Jewt:l et al. v. NaJiotllll &ciUily Agency t:t aL (08-cv-4873-VRW)

1OP ~~CJtm'f/COMif~·f-l/f'SP/J.IICS//ORCOJ'i~iOI'O~it.L).4R 3, 2009 (hereafter "Classified NSA Declaration"). Pisclosure of the information covered by this

2 privilege assertion reasonably could be expected to cause exceptionally grave damage to the

3 national security of the United States and, therefore, the information should be excluded from
4 any use in this case. In addition, it is my judgment that sensitive state secrets are so central to th
5
subject matter of the litigation that any attempt to proceed in the case will substantially risk the
6
7 disclosure of the classified privileged national security information described herein and will
8 therefore risk exceptionally grave damage to the national security of the United States.

9

4. ~(THS...,J.~'8tt-I..-•-JffSP/JOCINF) As the NSA states, see Classified NSA Decl.

10 Tf 4-7, the allegations in this lawsuit put at risk of disclosure information concerning several
11
highly classified and critically important NSA intelligence activities that commenced after the
12

13 9/11 terrorist attacks, but wbi:ch are now conducted pursuant to authority of the Foreign

14 Intelligence Surveillance Act ("FISA"), including ongoing activities conducted under orders

15 approved by the Foreign Intelligence Surveillance Court ("FISC"). Specifically, in order to
16
address plaintiffs' allegation that the NSA, with the assistance of telecommunication companies
17
including AT&T, has indiscriminately intercepted the content and obtained the communications
18
19 records of millions of ordinary Americans as part of an alleged presidentially authorized

20 ..Program" after 9/11, see, e.g., Complaint at fi 2-13; 39-97, further litigation risks the disclosur
21 of information concerning several classified NSA intelligence activities, sources and methods,
22

23
in connection with NSA's (l) targeted content surveillance aimed at al-Qaeda and
24

25

26

the bulk coUection and targeted analysis of non-content

27
infonnation about telephone and Internet communications-critically important and highly 28

Classified In Camera, & Parte Declaration of Dennis C. Blair, Director of National Intelligence Jewel et al. v. NationDl Security Agency el tJl. (08-cv-4873- VRW)

'fOt' SEC1ffi'Th'Cot.fHff-CfSP//fiCS/JORCO:P'U~IOfOR."IJR.fR sensitive activities that are also now conducted pursuant to FISC orders and that enable the NSA

2 to uncover the corttac:tl

3

4

5

6
7 therefore puts at risk of disclosure information concerning essential foreign intelligence8 gathering activities utilized to meet the extremely serious threat of another terrorist attack on the

9 u.s.

(a threat which I describe further below based

10
on recent assessments of the National Counterterrorism Center (NCI'C) prepared in January
II
2009 and March 2009.)
12

13

5.

14 asserting the state secrets privilege and the DNI's authority to protect intelligence sources and

15 methods pursuant to 50 U.S.C. § 403-l(i)(l) to protect against the disclosure of the highly
16
classified intelligence sources and methods put at issue in this case and vital to the national
17
security of the United States, including: (1) any information that would tend to confirm or deny
18
19 whether particular individuals, including the named plaintiffs, have been subject to the alleged

20 NSA intelligence activities; (2) information concerning NSA intelligence sources and methods,
21 including facts demonstrating that the content collection under the TSP was limited to specific
22
al-Qaeda and associated terrorist-related international communications and was not a content
23
24 surveillance dragnet as plaintiffs allege; (3) facts' that would tend to confirm or deny the
25 existence of the NSA's bulk non-content (i.e., meta data) collection and use, ~d any information

26 about those activities; and (
27
28

I specifically concur with the NSA that

'fOP SECRE'f//COMfN-ffSPIJO:RCC»l~JO~)t,J/A4~
Classified In Camera, Ex Pan~ Dcx;laration ofDennis C. Blair, Directorof Nalionallntelligence Jewl!llll aL v. NationDl S11cunty A811ncy et DL (08-cv-4873-VRW)

TOP ~f!Citi!T1/C6MHfl'- 'ffSPI/IICS//ORCOtVtJOFO~Y/M:R public speculation about alleged NSA activities does not diminish the need to protect intelligen

2 sources and methods from further exposure, and that official confirmation and disclosure of the

3 classified privileged national security information described herein would cause exceptionally
4 grave damage to the national security. For these reasons, as set forth further below, I request tha
5
the Court uphold the state secrets and statutory privilege assertions that I am make herein, as
6
well as the statutory privilege assertion made by the NSA pursuant to Section 6 of the National
7
8 Security Agency Act, see 50 U.S.C. § 402 (note), and protect the information described in this

9 declaration from disclosure.
10
~ASSIFICATION OF DECLARATION
II
6. ~uant to the standards in Executive Order No. 12958, as amended by
12
13 Executive Order No. 13292, this declaration is classified as: 'fOP S:ECR£T/t'COMJI'IT .
14 -'rtSI!/~S''ORCC»l~OiiOR.W//l«R The details concerning these classification

15 markings are set forth in the Classified NSA Declaration at TI 8-11 and are briefly summarized
16
here. Under Executive Order No. 12958, information is classified ''TOP SECRET' if
17
unauthorized disclosure of the information re~onably could be expected to cause exceptionally
18
19 grave damage to the national security of the United States; "SECRET'' if unauthorized disclosure

20 of the information reasonably could be expected to cause serious damage to national security;

21 and "CONFIDENTIAL" if unauthorized disclosure of the information reasonably could be
22
expected to cause identifiable damage to national security. At the beginning of each paragraph
23
of this declaration, the letters ..U," "C." "S," and "TS" indicate respectively that the information
24
25 is either UNCLASSIFIED, or is classified CONFIDENTIAL, SECRET, or TOP SECRET.

26

7. ~dditionaJly, this declaration also contains Sensitive Compartmented

27
Information (SCI), which is subject to special access and handling requirements because it
28

Classified In Camefll, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence Jewel et al. v. NatiOMl Security Agency et al. (08-cv-4873-VRW)

TOP Sl!Cltf!Tti'COMH4'f~SP/IIICS/IORCO~l~10FQRN/Rt4R involves or derives from particularly sensitive intelligence sources and methods. This

2 declaration references communications intelligence (COMINT), also referred to as special 3 intelligence (SI), which is a subcategory of SCI that identifies information that was derived from 4 exploiting cryptographic systems or other protected sources by applying methods or techniques,

or from intercepted foreign communications. This declaration also references human
6
intelligence (HCS), another subcategory of SCI that identifies information derived from
7
8 individuals who provide intelligence information.

9

10

11
8.
12
13 about the Terrorist Surveillance Program (TSP), a controlled access signals intelligence program

14 under presidential authorization in response to the attacks of September ll, 2001. Information

15 pertaining to this program is denoted with the special marking "TSP."
16

17

18

19

20

9. ~Finally, information labeled "NOFORN" may not be released to foreign

21 governments, foreign nationals, or non-U.S. citizens without permission of the originator and in
22
accordance with DNI policy. The "ORCON" designator means that the originator of the
23
24 information controls to whom it is released. Finally, this document is marked Manual Review

25 ("MR") indicating that it is not subject to automatic declassification at any specific date.

26 27 28
'

ilij..BACKGROUND ON DIRECTOR OF NATIONAL INTELLIGENCE 10. ~The position of Director of National Intelligence was created by Congress in

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence Jewel et al. v. National Security Agency et al. (08-cv-4873-VRW)

+OP S~~+/ICO~fDlT ~SP/AICS!/ORCO~l~JOP~l/IMR the Intelligence Reform and Terrorism Prevention Act of2004, Pub. L. 108-458, §§ 1011(a) and

2 1097, 118 Stat. 3638, 3643-63, 3698-99 (2004) (amending sections 102 through 104 of Title I of

3 the National Security Act of 1947). Subject to the authority, clirection, and control of the

4
President, the Director of National Intelligence serves as the head of the U.S. Intelligence
5
Community and as the principal adviser to the President, the National Security Council, and the
6
Homeland Security Council for intelligence matters related to the national security. See 50
7
8 u.s.c. § 403(b)(l), (2).

9

11. ~The United States "Intelligence Community" includes the Office of the

10
Director of National Intelligence; the Central Intelligence Agency; the National Security
I I
Agency; the Defense Intelligence Agency; the.National Geospatial-Intelligence Agency; the
12

13 National Reconnaissance Office; other offices within the Department of Defense for the

14 collection of specialized national intelligence through reconnaissance programs; the intelligence

15 elements of the military services, the Federal Bureau of Investigation, the Department of the
16
Treasury, the Department of Energy, the Drug Enforcement Administration, and the Coast
17
Guard; the Bureau of Intelligence and Research of the Department of State; the elements of the
18
19 Department of Homeland Security concerned with the analysis of intelligence information; and

20 such other elements of any other departmen,t or agency as may be designated by the President, or

21 jointly designated by the DNI and beads of the department or agency concerned, as an element o
22
the Intelligence Community. See 50 U.S.C. § 40la(4).
23
12. ~The responsibilities and authorities of the Director of National Intelligence
24
25 are set forth in the National Security Act of 1947, as amended See 50 U.S.C. § 403-1. These

26 responsibilities include ensuring that national intelligence is provided to the President, the beads
27
of the departments and agencies of the Executive Branch, the Chairman of the Joint Chiefs of
28

TOP 5EC:RETlf€0MIN-'!FSPHORCONfNOFORN/fMR
Cla&Sified In Camera, & Parte Declaration of Dennis C. Blair, Director of National Intelligence li!Wel et at. v. Nati011af Security Agency et al. (08-ev-4873-VRW)

TOP SBC~'fHCOt.~IT -

'IFSPNIICS//ORCOtlRtOFORtl/fMR

Staff and senior military commanders, and the.Senate and House of Representatives and

2 committees thereof. See 50 U.S.C. § 403-l(a)(l). The DNI is also charged with establishing the

3 objectives of, determining the .requirements and priorities for, and managing and directing the

4 tasking, collection, analysis, production, and dissemination of national intelligence by elements
5
of the Intelligence Community. Jd. § 403-l(f)(l)(A)(i) and (ii). The DNI is also responsible for
6
developing and detennining, based on proposals submitted by the heads of agencies and
7
8 departments within the Intelligence Community, an annual consolidated budget for the National

9 Intelligence Program for presentation to the President, and for ensuring the effective execution o

10
the annual budget for intelligence and intelligence-related activities, and for managing and

II
allotting appropriations for the National Intelligence Program. ld. § 403-l(c)(l)-(5).
12

13

13. AA In addition, the National Security Act of 1947, as amended, provides that

14 "[t]he Director of National Intelligence shall protect intelligence sources and methods from

15 unauthorized disclosure." 50 U.S.C. § 403-l(i)(l). Consistent with this responsibility, the DNI
16
establishes and implements guidelines for the Intelligence Community for the classification of
17
information under applicable law, Executive orders, or other Presidential directives and access to
18
19 and dissemination of intelligence. Id. § 403-1 (i)(2)(A), (B). In particular, the DNI is responsible

20 for the establishment of uniform standards and procedures for the grant of access to Sensitive

21 Compartmented Information (...SCf') to any officer or employee of any agericy or department of

22
the United States, and for ensuring the consistent implementation of those standards throughout
23

such departments and agencies. Id. § 403-l(j)(l), (2).
24

25

i4. ~y virtue of my position as the Director of National Intelligence, and unless

26 otherwise directed by the Pres.iident, I have access to all intelligence related to the national

security that is collected by any department, agency, or other entity of the United States. See 50
28

ClWICled fn Ca~. t::.x f'arct: Occtarallon of Damls C. Hlair. Director of National lnttlligcncc Jewel el al. v. National Security Asency el aL (08-cv-4873-VRW)

1:'01> £MCRii+1'CQJ4~T -'T~P/.LWC~/!QRCQ~l~IOPO~''*l//MR U.S.C. § 403-l(b); Executive Order 12333 § 1.3(a), as amended. Pursuant to Executive Order

2 No. 12958, 3 C.F.R. § 333 (1995), as amended by Executive Order 13292 (March 25, 2003),

3 reprinted as amended in 50 U.S.C.A. § 435 at 93 (Supp. 2004), the President has authorized me

4 ~o exercise original TOP SECRET classification authority.

5

(ti1-ASSERTION OF STATE SECRETS PRIVILEGE

6

7

15. ~After careful and actual pe~onal consideration of the matter, based upon my

8 own knowledge and information obtained in the course of my official duties, including the

9 information contained in the Public and Classified In Camera, Ex Parte Declarations of Deborah
10
A. Bonanni, Chief of Staff, National Security Agency, I have determined that the disclosure of
II
certain information-as set forth herein and described in more detail in the Classified NSA
12
13 Declaration-would cause exceptionally grave damage to the national security of the United

14 States and, therefore, must be protected from disclosure and excluded_from this case. Thus, as to

15 this information, I formally assert the state secrets privilege. In addition, it is my judgment that
16
sensitive state secrets are so central to the subject matter of the litigation that any attempt to
)7
proceed in the case will substantially risk the disclosure of the privileged infonnation described
18
19 herein and in more detail in the classified declarations, and will therefore risk exceptionally

20 grave damage to the national security of the United States.

21

ASSERTION OF STATUTORY PRIVILE E UNDER NATIONAL SECURITY ACT

22

16. ~ Through this declaration, I also hereby invoke and assert a statutory privilege

23

24 held by the Director of National Intelligence under the National Security Act to protect the

25 information described herein. see 50 U.S.C. § 403-l(i)(l). My assertion of this statutory

26 privilege for intelligence sources and methods is coextensive with my state secrets privilege
27
assertion.
28

'fOP SECRE'f//COMIN'f -rFSPI/ORCO~I~I<WOR.\URt~
Classified In Camera, Ex Pane Declaration of Dennis C. Blair, Director of Nalional Intelligence Jewel et al. v. National Security Agency et al. (08-<:v-4873-VRW)

··- ------ -- .... ··---- -.. . ....... ···-- ......... ---------. - --

'fOP SECR£'f//€0f'ffft~'f ECi-'ffSPHiiCSHORCOt~/t40FO:R-?4//f\;tR ~RMATION SUBJECT TO ASSERTIONS OF PRIVILEGE

2

17. ~In general and unclassified terms, the following categories of information are

3 subject to my state secrets and statutory privilege assertions:

4

A. ~nformation concerning the specific nature of the al-

5

Qaeda terrorist threat; and

6

B. ~Information that ~y tend to confirm or deny whether

1

the plaintiffs have been subject to any alleged NSA

intelligence activity that may be at issue in this matter; and

8

C. ~Any information concerning NSA intelligence

9

activities, sources, or methods that may relate to or be

10

necessary to litigate plaintiffs, allegations, including

allegations that the NSA, with the assistance of

II

telecommunications carriers such as AT&T,

indiscriminately intercepts the content of communications

12

and also collects the communication records of millions of

13

Americans as part of an alleged presidentially-authorized

"Program" after 9/11. See, e.g., Complaint at Tf2-13; 39-

14

97.

15

~e scope of this assertion includes but is not limited

16

to:

17

(i)~formation concerning the scope and

operation of the now inoperative "Terrorist Surveillance

18

Program" (''TSP',) regarding the.interception oftbe content

19

of certain one-end international communications

reasonably believed to involve a member or agent of al-

20

Qaeda or an affiliated terrorist organization, and any other

2J

information related to demonstrating that the NSA does not otherwise engage in ~e content surveillance dragnet that

22

the plaintiffs allege; and

23

(ii) ~ Information concerning whether or not the

24

NSA obtained from telecommunications companies such as AT&T communication transactional records as alleged in

25

the Complaint; see, e.g., Complaint ftlO; 82-97; and

26

(iii)(\{) Information that may tend to confirm or

27

deny whether AT&T (and to the extent relevant or

necessary, any other telecommunications carrier), has

28

provided assistance to the NSA in connection with any

alleged activity.

Top SECRFTU('Q-

'fFSPt'IORCON/NOfiOitNi/Mit

Classified In Camera. Ex Pan~ Declaration of Dennis C. Blair, Director of National Intelligence J~wel ~~ al. v. NaliOfUJI Security Ag~ney el at. (08-cv-4873-VRW)

2

A.~Information Concerning the ai-Qaeda Terrorist Threat

3

18. ~To the extent specific infonnation about the al-Qaeda threat is relevant to
4

5 litigation of plaintiffs' allegations as to post-9/11 actions taken to meet that threat, such

6 information could not be disclosed without re~ealing intelligence sources, methods, and

7 information of the United States and thereby causing excel?tionally grave damage to the national
8
security. Therefore, I assert the state secrets and statutory privilege to protect such information
9
10 from disclosure.

11

19. = ~i'!QCINF) I be intelligence activities, sources, and methods that are implicated

12 by this lawsuit, and put at risk of disclosure in further proceedings, must be viewed and
13
understood in the context of the extremely serious threat faced by the United States. In sum, the
14
Intelligence Community assesses that al-Qaeda remains intent on conducting terrorist attacks
15
16 inside the United States. This is so notwithstanding a series of setbacks to the al-Qaeda terrorist

17 network.

18

19

20
Preventing such attacks is the U.S. Intelligence Community's highest priority, and the
21
22 Intelligence Community is collecting information aggressively against the al-Qaeda network to

23 uncover indications of credible threats. 1
24

25

26

27

28

~1be following summary of the current al-Qaeda threat is drawn from an

Intelligence Community assessment made in January 2009.

rop SECRFll'CQMJl)l-'ff~P/lORCON/t~OFORNtflttR

Classified In Camera, Ex Parte Declaralion of Dennis C. Blair, Din:ctor of National Intelligence Jewel el al. v. Nalional Security A(Jt:ncy et aL (08-cv-4873-VRW)

'fOP 3ECR'r:'f/l€0ht1tff -

q:gPf,tliC8/!QR£C»J,Cl>JOFQRNUMR

tsl~ Al-Oaeda Remains Intent on Striking the Homeland

2

20.

's strategic intent remains focused on

3 striking the United
4

5

6

7

8

9

10

11

12

13

A body of reporting-including public statements from senior

14 leaders,

15 threat the group poses to the United States and our allies.

16

•

Usama Bin Ladin's statement in September 2007 praising the Iraq jihad and the

17

9/11 attacks indicated that al-Qaeda saw no "innocent" American citizens because they
18

19

were complicit with their government's policies, and that the solution ''is to continue to

20

escalate the killing and fighting against you."

. - · 21
• • •

•

26

•

The plot to bring down airliners between the United Kingdom and North America

27 that was disrupted in August 2006 demonstrated al-Qaeda's continued emphasis on large
28

Classified In Camera, Ex Part~ Declaration of Dennis C. Blair, Director of National Intelligence
Jewel et al. v. NcuioMl Security Agency et at. (08-cv-4873-VRW)

scale. high-profile attacks against the 'Yest,

2

•

Al-Qaeda senior leaders and their successors since 9/11 have consistently focused

3

plotting against U.S. interests on either conducting spectacular attacks against the

4

Homeland or striking other symbolic ot economic targets.

5

6

7

8

9

21.

Intelligence Community is not aware of the

10
specific details of a current plot to at~k the U.S. Homeland.
II

12

13

14

•

•••••••••••

••• I

TOP SECRET!lCOM~iT - l'~R'/OKCO~/blOEQRNtiMR
Classified In Cameca, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence Jewt.l era/. v. National Security Agency et al. (08-cv-4873-VRW)

- - A a

• ..

- · · A

8.

...

• ..

- ........ .. a •

A

&

A

... a

I

•

2

3

22.

I

I

I

I

I

• I • • • I

•••• I

•

(5/~AI..Qaeda's Continued Efforts to Train and Deploy Operatives

20
• • • • • • • •

mp SFCRFI"C0~T -/fFSPI/ORCONfflOf6lti~1/1ti.tR:
Clwificd In C4~ra. & Furte ~IIRlion of ~nni6 C. Bhlir, Dirccu>r of Nationlli Jntelligcn~ Jewel el al. v. NaJional Securily Asency el al. (OS..ev-4873-VRW)

.-

..~=- - - .... i ·...

2
3
4
5
•
6 7
8
9 10 11
12
13
• • • • • • • • • • • • • • •

.. .. .a

=· ~ - ' · ! ~·..· l~. ·

Classified In Dmeta. Ex Pa~ Declaration of Dennis C. Blair, Director of National Intelligence Jewel et al. v. Nationa"l Security Agency et al. (08-cv-4873-VRW)

2

•

I

I

I

I

7

24.

I

I

•••••••••••••••••••

I

Classified In Camera, Ex Pan~ Declaration of Dennis C. Blair, Director of National Intelligence Jewel eJ aL v. NaliotUJl Security Ag~ney ~~ al. (08-cv-4873-VRW)

TOP SSCR8T!/COM~IT -'RJPH-HCS//ORCC»Itlloi0POR.~/RtfR 25. ('FS//HCS. 'OGNF) The death or detention of more than a dozen al-Qaeda

2 senior leaders and their deputies since early 2008 represents significant losses for the group.

3

4

5

6

7

8

9

JO

II

12

13

14

26. ~The Internet is a contributing factor in the radicalization of some

15 individuals, increasing the risk of self-selecting fighters attempting to establish affiliations with
16
extremist organizations or engaging in operations independent of formal terrorist groups.
17

18

19

20

21

22

23

24

2.c;

...(SifHPrAI-Oaeda's Weapons and Tactics

26

27.

• •

TOP SECR£T//COMiNT -SP//ORCON,~OFO~//MR
Classified In Camera. Ex. Pam Declaration of Dennis C. Blair. Direaor or National Intelligence Jewel el at y, Nali(JM/ Securily Agency e1 al. (OS~v-4873-VRW)

2 3 4
5 6 7 8
• I
I
• • • • • • • • • • • • •
25
•
27
30. ("'fS//SI/,fQ~ These various examples of some of our intelligence
28

TOP SECRET//COMINT-

'ff£1!/JORCOJ'l/NOPORJ'J/RttR

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National intelligence Jewel et aL v. National Security Agency et al. (08-cv'-4873·VRW)

TOP SE€RET/ICOM~IT -

'FSPIIIICS/fORCOP'fR'fOFORtii'RttR

information demonstrate that the al-Qaeda network continues to plan ways to inflict a

2 catastrophic attack. The severity of that threat and the difficulty of tracking al-Qaeda is precise!

3 the reason the Government is utilizing all lawful intelligence gathering capabilities. I set forth

4 this information not only to provide the Court with cruciaJ background as to why the intelligence
5
activities implicated by or directly at issue in this case are heing undertaken, but also to assert a
6
7 claim of privilege over this threat information. Although the foregoing threat assessment
8 demonstrates why the Government undertakes the activities described herein, the Government

9 cannot disclose this threat information in defending the legality of the intelligence activities,
10
sources, and methods being challenged,. since to do so obviously would disclose to our
II
adversaries what we know of their plans and how we may be obtaining information about them.
12
13 Such disclosures would lead our adversaries not only to alter their plans, but also to implement
14 greater security for their communications, thereby increasing the risk of non-detection. In

15 addition, disclosure of threat information might reveal human sources for the United States and,
16
thus compromise those sources and put lives in danger. Accordingly, although I believe this
17
threat information is crucial to understanding the NSA intelligence activities, sources, and
18
19 methods implicated by the plaintiffs' allegations, I must assert the states secrets privilege and

20 the DNI's statutory privilege over this classified threat information because of the exceptionally

21 grave danger to national security that could reasonably be expected to result from its disclosure.

22

B. -®Information That May Tend to Confirm or Deny Whether the Plaintiffs

23

Have Been Subject to the Alleged NSA lnteiUgence Activities

24

31. ~ Next. I am also asserting privilege over information that would reveal

25 whether particular individuals, including the named plaintiffs in this lawsuit, have been subject
26

27 to the alleged NSA intelligence activities. Disclosure of such information would cause

28 exceptionally grave damage to the national security.

TOP ~l?iCa~TJ/COMR'-R'SPNOR:CONINOFORN//MR
Classified In Camera, Ex PtJrl~ Declaration of Dennis C. Blair, Director of National Intelligence Jewel el aL v. National Security Agency el al. (08-cv-4873-VRW)

TOP SECRET//COMINT32. (TS//SI//TSP//OC/NF)
1

//TSP//HCS//ORCON/NOFORN//MR

2

3

4

5

6

7

8

9

10

11
33. (U) The NSA cannot publicly confirm or deny whether any particular individual
12
13 is subject to surveillance activities. If the NSA were to reveal that an individual is the target of

14 surveillance, the collection capability relating to that individual would certainly be compromised.

15 On the other hand, if the NSA were to reveal that an individual is not the target of surveillance,
16
adversaries would know that a particular individual has avoided surveillance and is a secure
17
source for communicating. Moreover, providing assurances to those individuals that are not
18
19 being targeted quickly becomes unworkable when faced with a case in which an individual has

20 in fact been targeted. If the NSA were to confirm that any specific individual is not the target of

21 surveillance, but later refuse to confirm or deny that information in a case involving an actual
22
target, it would be apparent that surveillance was occurring in the latter case. The only recourse
23
for the NSA is to neither confirm nor deny whether someone has been targeted or subject to NSA
24
25 activities, regardless of whether the individual has been targeted or not. To say otherwise when

26 challenged in litigation would result in the frequent, routine exposure of NSA information,
27
sources, and methods, and would severely undermine surveillance activities in general.
28

TOP SECRET//COMINT-

/TSP//ORCON/NOFORN//MR

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence Jewel et al. v. National Security Agency et al. (08-cv-4873-VRW)

TOP SECR:Ef//COMHJ l~:'f'SP,.J'MC8/!0ftC.6MtlqOPOR'Mfi'M:lt C. """"ffittnformation Concernjpg NSA Activities, Sources, or Methods

2

34. ~Second, I am also asserting privilege over any other facts concerning NSA

3 intelligence activities, sources, or methods that may relate to or be necessary to adjudicate the
4 plaintiffs' claims, including allegations that the NSA, with the assistance of telecommunication
5
companies including AT&T, has indiscriminately intercepted the content and obtained the
6
7 communications records ofmillions ofordinary Americans as part ofthe Program authorized by
8 the President after 9/11. See, e.g., Complaint at, 2-13; 39-97. As noted above, my privilege

9 assertion encompasses (1) facts concerning the operation ofthe now-defunct Terrorist
10
Surveillance Program, including any facts needed to demonstrate that the TSP was limited
II
to the interception ofthe contenf of one-end foreign communications reasonably believed to
12
13 involve a member or agent of al-Qaeda or an affiliated terrorist organization, and that the NSA

14 does not otherwise conduct a dragnet ofcontent surveillance as the plaintiffs allege; and

15 (2) information concerning whether or not the NSA obtains transactional communication records
16
from telecommunications companies such as AT&T as plaintiffs allege.
17
35. ~the NSA indicates, see Public NSA Declaration, 14, the NSA's collection
18
19 ofthe content of communications under the TSP was directed at international communications in

20 which a participant was reasonably believed to be associated with al-Qaeda or an affiliated

21 organization. Thus, as the Government has previously stated, plaintiffs' allegation that the NSA
22
has indiscriminately collected the content of millions of communications sent or received by
23
people inside the United States after 9/11 under the TSP is false. 1concur with the NSA that to
24

25 the extent it must demonstrate in this case that the TSP was not the content dragnet plaintiffs

26 allege, or demonstrate that the NSA has not otherwise engaged in the alleged content dragnet,
27

28

2 The term ..content'' is used herein to refer to the substance, meaning, or purport ofa

communication, as defined in 18 U.S.C.§ 2510(8).

+OP §eC&e+A'COP.ffiiT-

l'SPHORCOtJifiOFORN/&fR

Classified In Camera. Ex Parte Declaration ofDennis C. Blair, Director ofNationallntelligence Jewel et al v. National St:Clll'lty Agency et a/. (08-cv-4873-VRW)

mp SFCRFT"COWlWT -'1'~P.'.£UQ~I!Oa<::Q~l~JQPOR~li/J tR highly classified NSA intelligence sources and methods about the operation of the TSP and other

2 NSA intelligence activities would be disclosed which would cause exceptional harm to national

3 security.

4

36. ~ am aiso asserting privilege over information concerning whether or not the

5
NSA obtained from telecommunications compani~ such as AT&T the complete and allegedly
6

ongoing disclosure of private telephone and Internet transactional records of those companies
7

8 millions of customers, see, e.g., ComplaintTflO and 82-97. I concur with the NSA that

9 confirmation or denial of any information concerning this allegation would cause exceptionally

10
grave hann to national security, including by risking disclosure of whether or not the NSA
II
utilizes particular intelligence sources and me~ods and, thus, the NSA's capabilities or lack
12
.13 thereof.

14

37. (I S1f~PN9~ In particular, as set forth in the NSA's Classified

15 Declaration, the United States faced urgent and immediate intelligence challenges after the
16
September 11 attacks, and undertook signals intelligence activities pursuant to presidential
17
authorization that were designed to meet those challenges and to detect and prevent future
18
19 terrorist attacks by al-Qaeda and its affiliates. Those activities include the Terrorist Surveillance

20 Program ("TSP") and similar content surveillance that later became subject to orders of the

21 Foreign Intelligence Surveillance Court, as well as the bulk collection of telephony and Internet

22
non-content meta data currently authorized by the FISC and used to discover contacts.
23

24

See Classified NSA Declaration

25 Tl39-67.

26

38. (T&'ISIIRSPl/f)Q'Nii') Based on my personal consideration and judgment as to

27
the harm disclosure would cause to national security, my privilege assertion includes, but is not
28

Clas.:ified In Clunera. Ex Pa1111 Oeclmtion of Dennis c. Blair, Director or National Intelligence
Jewel et al. v. Ntlltonal Securizy Agency et at. (Olk:v-4873-VRW)

TOP &BCRi:+!ICO~~l -'(f~~'tWC~"0RCO~£NOFORNlfM1? limited to, the following activities discussed in the NSA classified declaration:

2

39. (FS//BIIFfSPtiOCIHF} First, I assert privilege over facts concerning the

3 operation of the Terrorist Surveillance Program and any other NSA intelligence activities needed

4 to demonstrate that the TSP was limited to the interception of one-end foreign communications
5
reasonably believed to involve a member or agent of al-Qaeda or an affiliated terrorist
6
7 organization, and that the NSA does not otherwise conduct,a dragnet of content surveillance as

8 the plaintiffs allege. Such facts include those concerning ( 1) how targets were selected under the

9 TSP; (2) how specific methods were used under the TSP to intercept telephone and Internet

10
communications and to minimize the risk of collecting non-target communications and purely
11
domestic communications; (3) the nature and identity of the targets under the TSP.-
12

13

(4) and additional classified details about the operation of the TSP that

14 would be necessary to litigate the plaintiffs' allegations (to the extent relevant) including facts

15 concerning the operational swiftness and agility of the TSP, particularly in conjunction with me

16
data

and the

17

effectiveness and success of the TSP; and (5) other NSA surveillance activities that may be
18

19

20

See Classified NSA Declaration

21 Tl39-47. In my judgment, revealing or risking disclosure of the foregoing NSA intelligence
22 activities, sources, and methods in order to show that the NSA is not conducting the "dragnet" on
23
24 the content of communications that plaintiffs allege would cause exceptional harm to national

25 security by disclosing to our adversaries the ability of the United States to monitor and track thei

26 activities and communications.
27
40. (I SJ>Sflfi'SP//6~~ Third, I also assert privilege over facts that would
28

+OP S"BCRK+/JCOM~IT - 15PI/ORCO~U~JOFOR!~/fMR
Classified In Camera. Ex Partl! Decl~n~tion of DenniG C. Blair. Director of Naliona1Jntelligence Jewttl f!t al. v. Nalional Securicy Agency et al. (OS~v-4&73-VRW)

TOP SliCR£4=1'/CO:t.HN~'ffSPfltiCS/fOitCOf~lfqOP01ti~/M!t disclose or describe the NSA's meta dala collection activities. See Classified NSA Declaration

2 ft 49-57. In my judgment, the NSA is unable to disclose any information about the existence or

3 operation of the NSA' s bulle collection or targeted analysis of Internet or telephony meta data
4
without causing exceptionally grave harm to national security. These are among the most
5
important intelligence tools the NSA uses, and they have never been officially confirmed or
6
7 denied by the United States. Disclosing or confirming these activities would seriously
8 undermine an essential tool for tracking possible terrorist plots and would help foreign

9 adversaries evade detection. Such a disclosure would also undermine ongoing intelligence
10
operations authorized by the FISC.
11
41. (W,lglfffSP/JOCR'W) Finally, I also assert privilege over information
12
13 concerning NSA activities conducted pursuant to various FISC orders and under the authority of

14 the FISA described by the NSA. See Classified NSA Declaration Tl58-67. In my judgment,

15 disclosure of cunent surveillance activities under orders and supervision of the FISC and
16
authority of the FISA, either directly or indirectly, would seriously compromise, if not destroy,
17
vital ongoing intelligence operations. My privilege assertion extends to the existence of and any
18
19 information concerning the (i) FISC Pen Register Order, as subsequently reauthorized, see id.

20 C( 59; (ii) FISC Telephone Business Records Order, as subsequently reauthorized, see id. TI60-
21
· -(iv) FISC Foreign Telephone and Email
22
Order. see id. 'I 65; and (v) NSA activities conducted pursuant to the Protect America Act and
23
24 the Foreign Intelligence Surveillance Act Amendments Act of 2008, including directives issued
25 to telecommunication carriers under those Acts, see id. Tf66-67.

26

42. (TS''SILtT~P!!Q~l¥) I concur with the NSA that the activities discussed herein

27
and described further by the NSA- in particular the meta data collection activities--are among th 28

Classified In Camera. Ex Parte Declaration of Denn;s C. Blair, Director of National Intelligence

J~t:l et al. v. Nalional Security Agency et al. (08-cv-4873-VRW)

·

TOP £1iCR.IiT/JC0)41NT -Cf~P/41C~//QRCC»l~lOPOIUUIMR most important intelligence tools available to the United States for protecting the Homeland

2 another catastrophic terrorist attack. I also concur

3

4

5
In my judgment, after personal
6
7 consideration of the matter, disclosing the information described herein and by the NSA would
8 compromise these critical activities, sources, and methods, thereby helping our adversaries

9 detection and causing exceptionally grave damage to the national security of the United States.

10
D. ~aintlffs' AUeptions that AT&T Provided Assistance to the NSA with

1 1

the AUeged Activities

12

43. ~ addition, I am asserting privilege over information that may tend to

13
confirm or deny whether or not AT&T (or to the extent necessary whether or not any other
14
telecommunications provider) bas assisted the NSA with alleged intelligence activities. the
15

16 disclosure of any information that would tend to confirm or deny allegations of such assistance

17 would cause exceptionally grave harm to the national security. Confirming or denying such
18 allegations, again, would reveal to foreign adv~es whether or not the NSA utilizes particular
19
intelligence sources and methods and, thus, either compromise actual sources and methods or
20
disclose that the NSA does not utilize a particular source or method. Such confirmation or
21
22 would also replace speculation with certainty for hostile foreign adversaries who are balancing

23 the risk that a particular channel of communication may not be secure against the need to
24
communicate efficiently.
25
44.
26

27

28

Classified In Camen. Ex Pane Declaration of Dennis C. Blair, Director of National Intelligence Jewel et aL v. National Security Agency et al. (08-cv-4873-VRW)

·· · o -=--.-- - • . i ··-

, ·o - · - - .. . · w=w : . ..

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

•••••• 3

IFP.SP11f8efftflil\ In addition, I have reviewed the classified

• certification of

General Mukasey submitted to the Court pursuant to Section 802

•• of the FISA Act Amendments Act of2008 and assert

information

Classified /" Camen. Ex Pane Declaration of Dennis C. Blair. Director of National Intelligence Jtwd tt aL v. National Stcurtcy Agtncy tt al. (08-cv-4873-VRW)

-• -

-

•

-

-

-

-

- ....

..

-

-

•

a
. I

••

I

, •• ... -

• • . . .. • . . -

...

-

-

-

-

•

-

-

-

-

•

-

2

3

4

5

6

7

8

9

10

II

12

13

14

• • • • • • • • •

(U) RISK OF LITIGATION 48. ('JS//81/fOCINP) Finally, I concur with the NSA that further litigation of this

24

25 case will inherently risk the disclosure of highly classified activities. While plaintiffs wrongly

26 allege that the NSA is conducting a dragnet program ofcontent surveillance, disproving
27 plaintiffs' speculation would risk or require revealing NSA intelligence activities, sources and
28

Classified In Camera, & Parte Declaration of Dennis C. Blair, Director of National Intelligence Jewel e1 al. v. Natwnal Security Agency et al. (08-cv-4873-VRW)

TOP SECR£T//COMHJT -flf'SP//IlCSh'ORCOi'~fNOFORt.r/tvfR methods, including bulk meta data collection activities. Those vital activities, as described

2 herein, are highly classified, sensitive, and fragile, and any effort to disclose infonnation about

3 them could have grave consequences for the national security.

4

50. ('I~USI/lQCRW1 'flle stakes we face in the U.S. Intelligence Conununity are of

5
the highest magnitude. We know that al-Qaeda continues to plan a mass casualty "spectacular"
6

7 attack inside the United States again that would cause catastrophic loss of life, severe economic

8 bann, or threaten the continuity of government. The NSA's activities described herein and by

9 the NSA, including NSA sources and methods·currently being utilized under authority of the

10
FISA, are all directed at this terrible threat.

II

~CONCLUSION

12

13

51. ~um, I am asserting the s_tate secrets privilege and the DNI's statutory

14 privilege set forth in 50 U.S·.C. § 403- l (i)(l) to protect the classified national security

15 information described herein and in the Classified NSA Declaration. Moreover, because
16
proceedings in this case risk disclosure of privileged and classified intelligence-related
17
information, I respectfully request that the Court not only protect that information from
18
19 disclosure, but to take all steps necessary, including dismissal of this action, to protect the

20 intelligence information, sources, and methods described herein in order to prevent exceptional
21 harm to the national security of the United States.
22
I declare under penalty of perjury that the foregoing is true and correct.
23

24

25 DATE: April- 3. 2009 26
27

DENNIS C. BLAIR Director of National Intelligence

28

TQP SFCRF:rllCQMlWT-

fFSPI/ORCOPfJNOFORUfflvtR

Classified In Camera, Ex Parte Declaration of Deonis C. Blair. Director of National Intelligence Jewel et al. v. NaJional Security Agency et al. (08<V-4873-VRW)

 
 STUART F. DELERY

2 Acting Assistant Attorney General JOSEPH H. HUNT

3 Director, Federal Programs Branch

ANTHONY J. COPPOLINO 4 Deputy Branch Director

5 JAMES J. GILLIGAN Special Litigation Counsel

6 MARCIA BERMAN

7

Senior Trial Counsel BRYAN DEARINGER

8 RODNEY PATTON

Trial Attorneys 9 U.S. Department of Justice

IO Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N .W.

II Washington, D.C. 20001

Phone: (202) 514-4782 12 Fax: (202) 616-8460

13
Attorneys for the Government Defendants

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 CAROLYN JEWEL, et al.,

18

Plaintiffs,

19
v.
20
NATIONAL SECURITY AGENCY, et al.,
21

22

Defendants.

23
VIRGINIA SHUBERT, et aI.,
24

25

Plaintiffs,

26 v.
27 BARACK OBAMA, et ai. ,
28
Defendants.

) ) No. 08-cv-4373-JSW
) ) ) ) ) ) ) ) ) ) No. 07-cv-693 -JSW ) ) PUBLIC DECLARATION OF ) JAMES R. CLAPPER, DI ECTOR ) OF NATIONAL INTELLIGENCE
) ) No Hearing Scheduled ) Courtroom 11, 19th Floor ) Judge Jeffrey S. White )

Public Declaration of James R. Clapper, Director of National Intelligence Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et al. v. Obama, et al. , No. 07-cv-6c)3-JSW

I, James R. Clapper, do hereby state and declare as follows:
2
INTRODUCTION
3
1. I am the Director of National Intelligence (DNI) ofthe United States. I have held
4
5 this position since August 9,2010. In my capacity as the DNI, I oversee the U.S. telligence

6 Community (IC) and serve as the principal intelligence adviser to the President. P or to serving
7 as the DNI, I served as the Director of the Defense Intelligence Agency from 1992 0 1995, the
8
Director of the National Geospatial-Intelligence Agency from 2001 to 2006, and th ~ Under
9
10 Secretary of Defense for Intelligence from 2007 to 2010, where I served as the prin ipal staff
II assistant and advisor to the Secretary and Deputy Secretary of Defense on intellige ce,

12 counterintelligence, and security matters for the Department of Defense. In my cap city as the

13
Under Secretary of Defense for Intelligence, I simultaneously served as the Directo of Defense

14
Intelligence for the Office of the Director ofNational Intelligence (ODNI).
15

16

2. The purpose of this declaration is to formally assert, in my capacity ( s the DNI

17 and head of the IC, the state secrets privilege and a statutory privilege under the Na ional

18 Security Act of 1947, as amended, see 50 U.S.C. § 3024(i)(I), in order to protect in elligence
19
sources and methods that are at risk of disclosure in the above-captioned cases. This assertion of
20
privilege updates and modifies my prior assertions of privilege in this litigation. A discussed
21
22 below, I am no longer asserting privilege over the existence of various presidentiall authorized

23 National Security Agency (NSA) intelligence activities, later transitioned to authority under the
24 Foreign Intelligence Surveillance Act (FISA). I continue to assert privilege over still-classified
25
information concerning the scope and operational details of these intelligence activities,
26
including but not limited to information that would tend to confirm or deny that p icular
27
28 persons were targets of or subject to NSA intelligence activities or that particular

Public Declaration of James R. Clapper, Director of National Intelligence

2

Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et al. v. Obama, et aI., No. 07-cv-69 -JSW

telecommunications service providers assisted NSA in conducting intelligence activities.

2 Disclosure of this still-classified information regarding the scope and operational details ofNSA

3 intelligence activities implicated by plaintiffs' allegations could be expected to cau e extremely

4 grave damage to the national security of the United States.
5
3. The statements made herein are based on my personal knowledge as well as on
6
information provided to me in my official capacity as the DNI. I am also submitting a classified
7
8 declaration, solely for the Court's in camera, ex parte review, which further sets fOlth the basis

9 for my privilege assertion. See Classified In Camera, Ex Parte Declaration of James R. Clapper,

10
Director of National Intelligence (Dec. 20, 2013).

II
SUMMARY
12

13

4. In the course of my official duties, I have been advised of this lawsuit and the

14 allegations at issue in the plaintiffs' complaints in the Jewel and Shubert actions. In personally

IS considering this matter, I have executed a separate classified declaration dated December 19,
16
2013. Moreover, I have read and personally considered the information contained in the Public
17
and the In Camera, Ex Parte Declaration of Frances J. Fleisch, National Security Agency (NSA),
18
19 executed on December 20,2013 (hereafter "Classified NSA Declaration"). Disclosure of the

20 information covered by my and NSA 's privilege assertions reasonably could be expected to

21 cause exceptionally grave damage to the national security of the United States and, therefore, the

22
information should be excluded from any use in this case.

23

24

5. I reach this conclusion, and make these assertions of privilege, mindful of the

25 public disclosures of information about classified NSA intelligence programs, both authorized

26 and unauthorized, that have taken place since June 2013. The wave of unauthorized public
27 disclosures of classified information regarding NSA intelligence activities that began in June
28
2013 has been extremely damaging to the national security of the United States, threatening the

Public Declaration of James R. Clapper, Director of National Intelligence

3

Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et al. v. Obama, et al., No. 07-cv-693-JSW

ability of the IC to conduct operations effectively and keep our country safe. At the same time,
2 these disclosures have generated great public interest in how the NSA uses its special tools and
3 authorities to gather intelligence, and whether they have been used appropriately. At the
4 President's direction, I have therefore declassified and publicly released numerous documents
5
disclosing the existence of, and a number of details about, the NSA's collection of bulk
6
telephony and Internet metadata under sections 402 and 501 of FISA, and the content of
7
8 communications of non-U.S. persons located abroad under FISA section 702. I did this to
9 facilitate informed public debate about the value and appropriateness of these programs with full 10 understanding of what they allow, the oversight mechanisms in place, and the contribution these
II
programs have made to the Nation's security and safety. These documents were properly
12
13 classified and the decision to declassify and release them was not taken lightly. But I concluded,
14 in consultation with elements of the IC, that in light of the unauthorized disclosures, the public
15 interest in the documents outweighed the potential for additional damage to national security.
16
6. On December 20,2013, under authority of the President, the existence of
17
collection activities authorized by President George W. Bush in October 2001 was also
18
19 declassified. Specifically, starting on October 4,2001, President Bush authorized the Secretary
20 of Defense to employ the capabilities of the Department of Defense, including the NSA, to
21 collect foreign intelligence by electronic surveillance in order to detect and prevent acts of
22
terrorism within the United States. President Bush authorized the NSA to collect ( 1) the contents
23
of certain international communications, a program that was later referred to and p blicly
24
25 acknowledged by President Bush as the Terrorist Surveillance Program (TSP), and (2) telephony
26 and Internet non-content information (referred to as "metadata") in bulk, subject to various
27 conditions.
28

Public Declaration of James R. Clapper, Director of National Intelligence

4

Jewel et al. v. National Security Agency et at. (08-cv-4873-JSW); Shubert, et at. v. Obama, et al., No. 07-cv-693-JSW

7. President Bush issued authorizations approximately every 30-60 days. Although

2 the precise tenns changed over time, each presidential authorization required the minimization 0

3 infonnation collected concerning American citizens to the extent consistent with the effective

4 accomplishment of the mission of detection and prevention of acts of terrorism within the United
5
States. The NSA also applied additional internal constraints on the presidentially authorized
6
7 activities.

8

8. Over time, the presidentially authorized activities transitioned to the authority of

9 the FISA. The collection of communications content pursuant to presidential authorization
10
ended in January 2007 when the U.S. Government transitioned TSP to the authority ofFISA
11
under orders of the Foreign Intelligence Surveillance Court (FISC). In August 2007, Congress
12
13 enacted the Protect America Act (PAA) as a temporary measure. The PAA expired in February

14 2008 and was replaced by the FISA Amendments Act of 2008, which was enacted in 2008 and

15 remains in effect today. Today, content collection is conducted pursuant to section 702 of FISA.
16
The metadata activities also were transitioned to orders of the FISC. The bulk collection of
17
telephony metadata transitioned to the authority of FISA in May 2006 and is collected pursuant
18
19 to section 501 of FISA. The bulk collection of Internet metadata was transitioned to the

20 authority ofFISA in July 2004 and was collected pursuant to section 402 ofFISA. In December

21 2011, the U.S. Government decided not to seek re-authorization of the bulk collection ofInternet
22
metadata under section 402.
23
9. As a result of the declassification of the infonnation described above, the u.s.
24
25 Government is no longer asserting privilege over the existence of these programs, whether

26 conducted under presidential authority or FISC authorization. It has remained necessary,
27
however, to withhold certain infonnation about these programs, even from the publicly released
28
documents, to protect sensitive sources and methods, such as particular targets and subjects of

Public Declaration of James R. Clapper, Director of National Intelligence

5

Jewel et a!. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et a!. v. Obarna, et a!., No. 07-cv-693-JSW

surveillance, and methods of collecting and analyzing intelligence information, because public
2 disclosure of this information would likely cause even graver damage to national security than
3 has already been done by the unauthorized disclosures that have occurred since June 2013. As
4 explained in great detail in my classified, in camera, ex parte declaration, and in the Classified
5
NSA Declaration, the same is true with respect to the highly sensitive and still-classified
6
information that is implicated by the plaintiffs' allegations in this litigation. For example,
7
8 litigating plaintiffs' claims would likely risk or require the disclosure of informatiOil that would
9 tend to confirm or deny whether particular telecommunications carriers have assisted with the
10
NSA activities at issue. Therefore, notwithstanding the unauthorized disclosures and the official
II
declassification and release of information about NSA intelligence programs that have taken
12
13 place since June of this year, it is my judgment that disclosure of the classified, pri ileged
14 national security information described herein, and in greater detail in my classified in camera,
15 ex parte declaration, and the Classified NSA Declaration, will risk further and exceptionally
16
grave damage to the national security of the United States.
17
10. Accordingly, as set forth further below, I am asserting the state secrets privilege
18
19 and the DNI's authority to protect intelligence sources and methods pursuant to 50 V.S.c. §
20 3024(i)(I) to protect against the disclosure of highly classified and important intelligence
21 information, sources and methods put at issue in this case, many of which are vital to the national
22
security of the United States, including: (a) information concerning the specific nature of the
23
terrorist threat posed by al-Qa'ida and its affiliates and other foreign terrorist organizations to the
24
25 United States; (b) information that would tend to confirm or deny whether particula individuals,
26 including the named plaintiffs, have been subject to any NSA intelligence activities' (c)
27 information concerning the scope or operational details ofNSA intelligence activiti~s that may
28
relate to or be necessary to adjudicate plaintiffs' allegations, including plaintiffs' claims that the

Public Declaration of James R. Clapper, Director of National Intelligence

6

Jewel et al. v. National Security Agency et at. (08-cv-4873-JSW); Shubert, et al. v. Obama, et al., No. 07-cv-69:3-JSW

NSA indiscriminately intercepts the content of communications, and their claims regarding the

2 NSA's bulk collection of telephony and Internet communications records ("metadata"); and

3 (d) information that may tend to confirm or deny whether AT&T or Verizon (and to the extent

4 relevant or necessary, any other telecommunications carrier) has provided assistance to the NSA

5
in connection with any intelligence activity.
6

7

11. I specifically concur with the NSA that public speculation about alleged NSA

8 activities above and beyond what has been officially disclosed does not diminish the need to

9 protect intelligence sources and methods from further exposure, and that official confirmation
10
and disclosure of the classified, privileged national security information described herein, in my
II
classified in camera, ex parte declaration, and in the Classified NSA Declaration, can be
12
13 expected to cause exceptionally grave damage to the national security. For these reasons, as set

14 forth further below, I request that the Court uphold the state secrets and statutory privilege

15 assertions that I make herein, as well as the statutory privilege assertion made by the NSA

16
pursuant to Section 6 of the National Security Agency Act, see 50 V.S.c. § 3605 (note), and
17
protect the information described in this declaration from disclosure.
18

19

BACKGROUND ON DIRECTOR OF NATIONAL INTELLIGENCE

20

12. The position of DNI was created by Congress in the Intelligence Reform and

21 Terrorism Prevention Act of 2004, Pub. L. 108-458, §§ 1011(a) and 1097, 118 Stat. 3638,3643 -
22
63, 3698-99 (2004) (amending sections 102 through 104 of Title I of the National Security Act
23
24 of 1947). Subject to the authority, direction, and control of the President, the DNI erves as the

25 head ofthe IC and as the principal adviser to the President, the National Security Council, and

26 the Homeland Security Council for intelligence matters related to the national security. See 50
27 V.S.c. § 3023(b)(1), (2).
28

Public Declaration of James R. Clapper, Director of National Intelligence

7

Jewel et at. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et al. v. Obama, et al., No. 07-cv-693-JSW

13. The IC includes the ODNI; the Central Intelligence Agency; the NSA; the

2 Defense Intelligence Agency; the National Geospatial-Intelligence Agency; the National

3 Reconnaissance Office; other offices within the Department of Defense for the collection of

4 specialized national intelligence through reconnaissance programs; the intelligence elements of
5
the military services, the Federal Bureau of Investigation, the Department of the Treasury, the
6
7 Department of Energy, the Drug Enforcement Administration, and the Coast Guard; the Bureau
8 of Intelligence and Research of the Department of State; the elements of the Department of

9 Homeland Security concerned with the analysis of intelligence information; and such other
\0
elements of any other department or agency as may be designated by the President, or jointly
II
designated by the DNI and heads of the department or agency concerned, as an element of the
12
13 IC. See 50 V.S.c. § 3003(4).

14

14. The responsibilities and authorities of the DNI are set forth in the National

15 Security Act of 1947, as amended. See 50 V.S.c. § 3024. These responsibilities include
16
ensuring that national intelligence is provided to the President, the heads of the departments and
17
agencies of the Executive Branch, the Chairman of the Joint Chiefs of Staff and senior military
18
19 commanders, and the Senate and House of Representatives and committees thereof. See 50

20 V.S.c. § 3024(a)(I). The DNI is also charged with establishing the objectives of, determining

21 the requirements and priorities for, and managing and directing the tasking, collection, analysis,
22
production, and dissemination of national intelligence by elements of the IC. Id. §
23
3024(f)(1)(A)(i) and (ii).
24

25

15. In addition, the National Security Act of 1947, as amended, provide, that "[t]he

26 Director of National Intelligence shall protect intelligence sources and methods from
27
unauthorized disclosure." 50 V.S.C. § 3024(i)(I). Consistent with this responsibility, the DNI
28
establishes and implements guidelines for the IC for the classification of information under

Public Declaration of James R. Clapper, Director of National Intelligence

8

Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et al. v. Obama, et at., No. 07-cv-693-JSW

applicable law, Executive orders, or other Presidential directives, and access to and

2 dissemination of intelligence. !d. § 3024(i)(2)(A), (B). In particular, the DNI is responsible for

3 the establishment of uniform standards and procedures for the grant of access to Sensitive

4 Compartmented Information (SCI) to any officer or employee of any agency or department of
5
the United States, and for ensuring the consistent implementation ofthose standards throughout
6
such departments and agencies. !d. § 3024(j)(1), (2).
7

8

16. By virtue of my position as the DNI, and unless otherwise directed by the

9 President, I have access to all intelligence related to the national security that is collected by any
10 department, agency, or other entity of the United States. See 50 U.S.C. § 3024(b); section 1.3(a)
II
ofE.O. 12333, as amended. Pursuant to E.O. 13526, the President has authorized me to exercise
12
13 original TOP SECRET classification authority.

14

ASSERTION OF STATE SECRETS PRIVILEGE

15

17. After careful and actual personal consideration of the matter, based upon my own

16
knowledge and information obtained in the course of my official duties, including the
17
information contained in the public and classified In Camera, Ex Parte Declarations of Frances
18

19 J. Fleisch, NSA, I have determined that sensitive state secrets concerning NSA sources, methods,

20 and activities are implicated by allegations that lie at the core of plaintiffs' claims, and that the

21 disclosure of this information-as set forth herein and described in more detail in the Classified
22
NSA Declaration--can be expected to cause exceptionally grave damage to the national security
23
of the United States, and therefore that information must be protected from disclosure and
24
25 excluded from this case. Thus, as to this information, I formally assert the state secrets privilege.

26 ASSERTION OF STATUTORY PRIVILEGE UNDER NATIONAL SECURITY ACT

27

18. Through this declaration, I also hereby invoke and assert a statutory privilege held

28
by the DNI under the National Security Act of 1947, as amended, to protect the information

Public Declaration of James R. Clapper, Director of National Intelligence

9

Jewel et ai. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et al. v. Obarna, et ai., No. 07-cv-693-JSW

described herein, in my classified in camera, ex parte declaration, and in the Classified NSA

2 Declaration, see 50 U.S.C. § 3024(i)(l). My assertion ofthis statutory privilege for intelligence

3 sources and methods is coextensive with my state secrets privilege assertion.

4

INFORMATION SUBJECT TO ASSERTIONS OF PRIVILEGE

5
19. In general and unclassified terms, the following categories of still-classified
6

7 information are subject to my state secrets and statutory privilege assertions:

8

A. Threat Information: information concerning the specific nature of

the terrorist threat posed by al-Qa'ida and its affiliates and other

9

foreign terrorist organizations to the United States, including actual

10

intelligence information collected from intelligence collection

activities;

II

B. Persons Subject to Intelligence Activities: information that would

12

tend to confirm or deny whether particular individuals, including

13

the named plaintiffs, have been subject to any NSA intelligence

activities;

14

c. Operational Information Concerning NSA Intelligence Activities:

15

information concerning the scope and operational details ofNSA

16

intelligence activities that may relate to or be necessary to

adjudicate plaintiffs' allegations, including:

17

(1) Communications Content Collection: information concerning

18

the scope or operational details ofNSA intelligence activities

19

that may relate to or be necessary to adjudicate plaintiffs'

claims that the NSA indiscriminately intercepts the content of

20

communications, see, e.g., Jewel Complaint ~~ 9, 10, 73-77;

Shubert SAC ~ 1, 2, 7, 64, 70, including:
21

22

a) TSP information: information concerning the scope and

operation of the now inoperative TSP regarding the

23

interception of the content of certain one-end-international

communications reasonably believed to involve a member or

24

agent of al-Qa'ida or an affiliated terrorist organization;

25

b) FISA section 702: information concerning operational

26

details related to the collection of communications under

27

FISA section 702; and

28

c) any other information related to demonstrating that the NSA

has not otherwise engaged in the content-surveillance

dragnet that the plaintiffs allege, and

Public Declaration of James R. Clapper, Director of National Intelligence

10

Jewel et al. v. National SeclIrity Agency et al. (08-cv-4873-JSW); Shllbert, et at. v. Obama, et al., No. 07-cv-693-JSW

(2) Communications Records Collection: infonnation concerning

2

the scope or operational details ofNSA intelligence activities

that may relate to or be necessary to adjudicate plaintiffs'

3

claims regarding the NSA's bulk collection of telephony and

Internet communication records (or "metadata"), see, e.g.,

4

Jewel Complaint ~~ 10-11, 13, 73-77, 82-97; Shubert SAC

5

~ 102;

6

and

7

D. Telecommunications Provider Identities: infonnation that may

8

tend to confirm or deny whether AT&T or Verizon (and to the

extent relevant or necessary, any other telecommunications

9

carrier), has provided assistance to the NSA in connection with any

10

intelligence activity, including the collection of communications content or non-content transactional records alleged to be a.t issue

II

in this litigation.

12

13

DESCRIPTION OF INFORMATION SUBJECT TO PRIVILEGE

AND HARM OF DISCLOSURE

14

A. Information Concerning the Threat Posed by al-Qa'ida, Its

IS

Aff"lliates, and Other Foreign Terrorist Organizations

16
20. The intelligence activities, sources, and methods that are implicated by this
17
lawsuit, and put at risk of disclosure in further proceedings, must be viewed and understood in
18

19 the context of the threat faced by the United States. In unclassified tenns, more than a decade

20 after the September 11,2001 attacks, we remain in a global conflict with al-Qa'ida and we face

21 an evolving threat from its affiliates and adherents. America's campaign against terrorism did

22
not end with the mission at Bin Ladin's compound in May 2011 . Indeed, the threats we face
23
24 have become more diverse.

25

21. In addition, to the extent classified infonnation about the al-Qa'ida threat, from

26 September 11, 2001 to the present, or the many other threats facing the United States, would be
27 at issue in attempting to litigate this case (for example, to demonstrate the reasonableness of the
28
intelligence-gathering activities initiated in the wake of the September 11, 2001, attacks, and

Public Declaration of James R. Clapper, Director of National Intelligence

II

Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et a/. v. Obama, et al., No. 07-cv-693-JSW

those that remain in place today), such information could not be disclosed without revealing

2 intelligence sources, methods, and information of the United States and thereby causing

3 exceptionally grave damage to the national security. Therefore, I assert the state secrets and DNI

4 statutory privilege to protect such information from disclosure. By way of illustration, set forth
5
below is an unclassified discussion of al-Qa'ida and several of its principal affiliates. My ex
6
parte, in camera declaration discusses some of the classified threat information pertaining to
7
8 these terrorist organizations that is subject to this assertion of privilege.

9

22. AI-Qa'ida in the Arabian Peninsula (AQAP) remains of particular cpncern to the

10 United States. The National Counterterrorism Center (NCTC) assesses that this is the most
II
likely entity to attempt attacks in the West. Even in the wake of Anwar al-Aulaqi' s death in
12
13 September 2011, this group maintains the intent and capability to conduct anti-United States

14 attacks with little to no warning. In its three attempted attacks against the U.S. Homeland -- the

15 airliner plot of December 2009, an attempted attack against U.S.-bound cargo plan~s in October
16
2010, and an airliner plot in May 2012 similar to the 2009 attempt -- AQAP has shown an
17
awareness of the capabilities of Western security procedures and demonstrated its efforts to
18
19 adapt. AQAP continues to exploit Yemen's inability to disrupt its operations on a (;onsistent

20 basis to secure safe havens in the country and mount attacks against the U.S. Embassy in Sanaa.

21

23. AQAP has also continued to publish the English-language Inspire magazin~

22
previously spearheaded by now-deceased al-Aulaqi and Samir Khan- in order to ~ nobilize
23

Western-based individuals for violent action, and the publication continues to reach a wide
24

25 global audience of extremists.

26

24. AI-Qa'ida's affiliate in Iraq has demonstrated its capacity to mount coordinated,

27 country-wide terrorist attacks is growing, as it continues at an increasing pace to kill Iraqi
28
civilians by the scores, even hundreds, with near-daily car and suicide bombs over the past year,

Public Declaration of James R. Clapper, Director of National Intelligence

12

Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et at. v. Obama, et aI., No. 07-cv-693-JSW

while also publicly acknowledging the group had established an affiliate in Syria, the al-Nusrah

2 Front, with resources diverted from its operations in Iraq. In April, AQI declared its merger with

3 al-Nusrah Front to form the "Islamic State ofIraq and the Levant." However, al-Nusrah Front's

4 leader rejected the merger and pledged allegiance directly to al-Qa'ida leader Ayman al-
5
Zawahiri. Zawahiri in June 2013 recognized al-Nusrah Front as an al-Qa'ida affiliate,
6
7 independent of AQIIISIL and primarily responsible for operations in Syria. Despite his
8 differences with al-Qa'ida leadership over roles insides Syria, AQIIISIL's leader last year

9 espoused support for violence against the United States, and continues to support I-Qa'ida's
\0
global ideology.
II
25. While al-Nusrah Front and AQI/ISIL at times openly have fought, both groups
12
13 share the near-term goals of removing the Syrian regime from power, and creating a government,

14 favorable to them, based on a strict interpretation of Sharia law. AI-Nusrah Front and AQIIISIL

15 subscribe to a global jihadist ideology, and each group probably has ambitions beyond the
16
conflict in Syria. The groups potentially have access to thousands of foreign fighters, including
17
some Americans, who since 2012 have traveled to Syria to participate in the conflict for a variety
18
19 of reasons. Additionally, the groups probably have established training camps, familiarizing

20 recruits with combat tactics, as well as the handling of firearms and explosives. AI-Nusrah Front

21 and AQIIISIL's access to foreign fighters, and the permissive operating environment in Syria,
22
raise the Ie's concerns that such individuals, Americans among them, could be leveraged and
23
trained to conduct terrorist attacks in their home countries.
24

25

26. AQIIISIL leadership also continues to make public statements inciting violence

26 against governments outside of Iraq and Syria. In an August 2013 statement, the group's
27
spokesman called on Egyptians to attack the Egyptian military and follow the example of
28

Public Declaration of James R. Clapper, Director of National Intelligence

13

Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et al. v. Obama, et aI., No. 07-cv- 93-JSW

extremists in Iraq and Syria. Both the group's spokesman and its overall leader last year

2 threatened future efforts to target Americans.

3

27. For the first time, AQIIISIL in 2013 began releasing propaganda openly recruiting

4 Westerners, including Belgian and French speakers, highlighting its intent to build a capability to
5
mount attacks against the West. AQI/ISIL's spokesman in mid-20l3 publicly stated the group
6
plans to conduct attacks from eastern Iraq to western Lebanon, and the group's vitriolic rhetoric
7
8 and hard-line agenda suggest the group poses a broader threat outside the region than at any time

9 since it was pushed into decline by U.S. coalition forces during the Iraq conflict.
10
28. During the past two-to-four years, American and Canadian authorities have
II
arrested several North America-based AQIIISIL associates, highlighting the potential threat
12
13 posed to the United States. In May 2011, the FBI arrested Kentucky-based Iraqi nationals Waad

14 Alwan and Shareef Hamadi for attempting to send weapons and explosives from Kentucky to

15 Iraq and conspiring to commit terrorism while in Iraq. Alwan pled guilty to supporting terrorism

16
in December 2011. In January 2010, Canadian authorities arrested dual Iraqi-Canadian citizen
17
Faruq 'Isa who is accused of vetting individuals on the Internet for suicide operations in Iraq.
18

19

29. The IC continues to monitor al-Shabaab and its foreign fighter cadre as a potential

20 threat to the U.S. Homeland, although the group is mainly focused on combating African Union

21 Mission in Somalia (AMISOM) forces battling the group in Somalia. The group, which formall
22
merged with al-Qa'ida in February 2012, also remains intent on conducting attacks against
23
24 regional and Western targets in East Africa, especially in countries contributing to the AMISOM
25 mission. AI-Shabaab associated militants in September 2013 conducted an attack on a shopping

26 mall in Nairobi, Kenya. AI-Shabaab leaders in the past have publicly called for transnational
27 attacks, including threatening to avenge the January 2012 death of British national and al-
28
Shabaab senior foreign fighter Bilal Betjawi.

Public Declaration of James R. Clapper, Director of National Intelligence

14

Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et al. v. Obama, et aI. , No. 07-cv-693-JSW

30. AI-Qa'ida in the Lands of the Islamic Maghreb (AQIM) and Boko Haram have

2 shown minimal interest in targeting the u.s. Homeland, but remain focused on local and regional

3 attack plotting, including targeting Western interests through kidnap-for-ransom operations and
4 other means. AQIM is actively working with local extremists in northern Mali to establish a safe
5
haven from which to advance future operational activities. AI-Murabitun, the extremist group
6
formed in August 2013 through the merger of two AQIM offshoots - Mohtar Belmokhtar's al-
7
8 Mulathamun Battalion and Tawhid wal Jihad in West Africa (TWJWA) -likewise appears

9 focused on plotting against Western interests in North and West Africa. Boko Haram probably
10
has an emerging awareness of U.S. persons or entities in the United States with connections to
II
Nigeria. The group's spokesman publicly threatened to find a way to attack a U.S.-based news
12
13 organization if its coverage of Islam did not change.

14

31. In addition, while most Pakistani and Afghan militant groups pose a more direct

15 threat to U.S. interests and our allies in that region, the IC continues to watch for indicators that
16
any of these groups, networks, or individuals are actively pursuing or have decided to
17
incorporate operations outside of South Asia as a strategy to achieve their objectives. Tehrik-e
18
19 Taliban Pakistan (TIP) leaders have repeatedly threatened attacks against the United States,

20 including after the death of Bin Ladin. NCTC assesses that TIP's claim of responsibility for the

21 failed New York Times Square bombing in May 2010 demonstrates its willingness to act on this
22
intent.
23
32. In sum, a variety of entities continue to pose a significant threat to the nation's
24
25 security. The U.S. Government is utilizing all lawful intelligence gathering capabilities,

26 including those set forth in the Classified NSA Declaration, to meet these threats and to protect
27 the American people. I set forth this information not only to provide the Court with background
28
information necessary to understand why the intelligence activities implicated by or directly at

Public Declaration of James R. Clapper, Director of National Intelligence

15

Jewel et a/. v. National Security Agency et al. (08-cv-4873-JSW); Shubert. et a/. v. Obama. et a/.. No. 07-cv-693-JSW

issue in this case are being undertaken, but also to assert a claim of privilege over classified

2 threat information. The U.S. Government cannot disclose classified threat information in

3 addressing plaintiffs' allegations or other issues in this case, or even in publicly sUJ?porting its
4 assertion of privilege, because to do so would disclose to our adversaries what we know of their
5
plans and how we may be obtaining information about them. Such disclosures would lead our
6
7 adversaries not only to alter their plans, but also to implement greater security for their
8 communications, thereby increasing the risk of non-detection. In addition, disclosure of threat

9 information might reveal human sources for the United States, compromise those ources, and
10
put their or their families' lives in danger. Accordingly, because I believe that classified threat
11
information is crucial to understanding the importance to our national security of the NSA
12
13 intelligence activities, sources, and methods implicated by the plaintiffs' allegations, I must

14 assert the state secrets privilege and the DNI' s statutory privilege over this classified threat

15 information because of the exceptionally grave danger to national security that could reasonably

16
be expected to result from its disclosure.

17

B. Information That May Tend To Confirm or Deny Whether Particular

18

Individuals, Including the Named Plaintiffs, Have Been Subject to NSA

19

Intelligence Activities.

20

33. Next, I am also asserting privilege over information that would tend to reveal

21 whether particular individuals, including the named plaintiffs in this lawsuit, have been subject
22
to NSA intelligence activities implicated by plaintiffs' allegations. Disclosure of such
23
information can be expected to cause exceptionally grave damage to the national security,
24
25 because actually demonstrating whether particular individuals have or have not been targeted by

26 or subject to intelligence activities would require the disclosure of sensitive and classified details
27 about NSA intelligence-gathering methods. Accordingly, I assert the state secrets and DNI
28
statutory privilege as to this information.

Public Declaration of James R. Clapper, Director of National Intelligence

16

Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et al. v. Obama, et aI., No. 07-cv-693-JSW

34. The NSA cannot publicly confirm or deny whether any particular individual is

2 subject to intelligence-gathering activities, no matter how likely or unlikely it might appear that

3 the individual would be subject to surveillance. If the NSA were to reveal that an individual is
4 the target or a subject of intelligence-gathering, the collection capability relating to that
5
individual would certainly be compromised. On the other hand, if the NSA were to reveal that
6
an individual is not the target or subject of intelligence-gathering, adversaries would know that a
7
8 particular individual has avoided scrutiny and is a secure source for communicating. Moreover,

9 providing assurances to those individuals who are not targets or subjects quickly becomes
10
unworkable when faced with a situation in which an individual has in fact been a target or
II
subject. If the NSA were to confirm that any specific individual is not a target or subject of
12
13 intelligence-gathering, but later refuse to confirm or deny that fact in a situation involving an

14 actual target or subject, it would be apparent that intelligence-gathering was occurring in the

15 latter case. The only recourse for the NSA is to neither confirm nor deny whether someone has
16
been targeted by or subject to NSA intelligence-gathering activities, regardless of whether the
17
individual has been a target or subject or not. To say otherwise when challenged in litigation
18
19 would result in the frequent, routine exposure of NSA information, sources, and methods, and

20 would severely undermine surveillance activities in general.

21

c. Information Concerning the Scope or Operational Details of NSA

22

Intelligence Activities, Including NSA Sources or Methods.

23

35. Furthermore, I am asserting privilege over any other still-classified facts

24 concerning the scope or operational details of any NSA intelligence activities that may relate to
25
or be necessary to adjudicate plaintiffs' allegations. As noted above, my privilege assertion
26
27 encompasses (1) facts concerning the operation of the now-defunct TSP, including any facts

28

Public Declaration of James R. Clapper, Director of National Intelligence

17

Jewel et al. v. National Security Agency et al. (08-cv-4873-1SW); Shubert, et al. v. Obama, et aI., No. 07-cv-693-JSW

needed to demonstrate that the TSP was limited to the interception of the contentI of one-end

2 foreign communications reasonably believed to involve a member or agent of al-Qa'ida or an

3 affiliated terrorist organization, (2) facts concerning the operation of the collection of
4 communications under FISA Section 702; (3) any other information related to demonstrating that
5
the NSA has not otherwise engaged in the content-surveillance dragnet that the plaintiffs allege,
6
and (4) still classified information concerning the scope or operational details ofNSA
7
8 intelligence activities involving the collection of bulk communications metadata, as discussed in

9 greater detail in the Classified NSA Declaration.
10
36. As the NSA indicates, see Public NSA Declaration, the NSA's collection of the
II
content of communications under the TSP was directed at international communications in whic
12
13 a participant was reasonably believed to be associated with al-Qa'ida or an affiliated

14 organization. Thus, as the U.S. Government has previously stated, plaintiffs' allegation that the

15 NSA has indiscriminately collected the content of millions of communications sent or received
16
by people inside the United States after September 11,2001, under the TSP is false. I concur
17
with the NSA that to the extent it must demonstrate in this case that the TSP was not the content
18
19 dragnet plaintiffs allege, or demonstrate that the NSA has not otherwise engaged in the alleged

20 content dragnet, highly classified details about the scope and operation of the TSP and other

21 NSA intelligence activities would be disclosed, including NSA intelligence sources and methods,

22
thus risking exceptional harm to national security.
23

24

37. As explained in further detail in the Classified NSA Declaration, the United States

25 faced urgent and immediate intelligence challenges after the September 11,2001, attacks, and

26 undertook signals intelligence activities pursuant to presidential authorization that were designed
27
to meet those challenges and to detect and prevent future terrorist attacks. In addition to the
28
I The term "content" is used herein to refer to the substance, meaning, or purport of a communication, as defined in 18 U.S.C.§ 2510(8).

Public Declaration of James R. Clapper, Director of National Intelligence

18

Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et al. v. Obama, et aI., No. 07-cv-6~3-JSW

TSP, those activities have included the bulk collection of telephony and Internet non-content

2 metadata that was also later transitioned to FISA authority.

3

38. Based on my personal consideration and judgment as to the harm disclosure can

4 be expected to cause to national security, my privilege assertion includes, but is not limited to,
5
the following information, discussed in greater detail in the Classified NSA Declaration.
6
39. I assert privilege over still-classified facts concerning: the scope and operation of
7

8 the TSP and any other NSA intelligence activities needed to demonstrate that the TSP was

9 limited to the interception of international communications reasonably believed to involve a
\0
member or agent of al-Qa'ida or an affiliated terrorist organization; the collection of
II
communications content under FISA section 702; and the fact that the NSA does not otherwise
12
13 conduct a dragnet of content surveillance as the plaintiffs allege. Such facts include those

14 concerning (a) how targets were selected under the TSP; (b) the specific sources methods used

15 under the TSP to intercept telephone and Internet communications; (c) the nature tmd identity of
16
the targets under the TSP; (d) any additional classified details about the operation of the TSP that
17
would be necessary to litigate the plaintiffs' allegations; and (e) other NSA surveillance
18
19 activities, including collection of communications content under FISA section 702, that may be

20 needed to address and disprove the content dragnet allegation. See Classified NSA Declaration.
21 In my judgment, revealing or risking disclosure of the foregoing NSA intelligence activities,
22
sources, and methods in order to show that the NSA is not conducting the "dragnet" on the
23
content of communications that plaintiffs allege can reasonably be expected to cause
24
25 exceptionally grave harm to national security by disclosing to our adversaries the nbility of the

26 United States to monitor and track their activities and communications.
27
40. I also assert privilege over still-classified facts that would describe the scope or
28
operational details of other NSA intelligence activities, including but not necessarily limited to

Public Declaration of lames R. Clapper, Director of National Intelligence

19

Jewel et al. v. National Security Agency et al. (08-cv-4873-1SW); Shubert, et al. v. Obama. et aI., No. 07-cv- 93-1SW

metadata collection activities, that may relate to or be necessary to adjudicate plaintiffs' claims.

2 See Classified NSA Declaration. In my judgment, the NSA is unable to disclose Jnformation
3 about the scope or operation of the NSA's bulk collection or targeted analysis ofInternet or
4 telephony metadata (whether conducted under presidential or FISC authority), beyond that which
5
has already been officially acknowledged by the U.S. Government, without risking exceptionally
6
7 grave harm to national security. Disclosing or confirming further details about these activities
8 could seriously undermine an important tool- metadata collection and analysis- tor tracking

9 possible terrorist plots; and could reveal methods by which NSA has targeted and continues to
\0
target its intelligence-gathering activities, thus helping foreign adversaries evade detection, and
11
otherwise undermining ongoing intelligence operations conducted under E.O. 12333 and FISC
12
13 authorization.

14

41. In my judgment, disclosure of still-classified details regarding these intelligence-

15 gathering activities, either directly or indirectly, would seriously compromise, if n t destroy,
16
important and vital ongoing intelligence operations. After personal consideration of the matter,
17
it is my judgment that disclosing the information described herein and by the NSA would
18
19 compromise important and critical activities, sources, and methods, thereby helping our

20 adversaries evade detection and causing exceptionally grave damage to the national security of

21 the United States.

22
D. Information That May Tend To Confirm or Deny Whether AT~T, Verizon,

23

or any Other Telecommunications Carrier Has Provided Assistance to the

NSA in Connection With any Intelligence Activity.
24

25

42. In addition, I am asserting privilege over information that may tend to confirm or

26 deny whether or not AT&T, Verizon, or to the extent necessary, any other particular
27
telecommunications provider, has assisted any NSA intelligence activity, including but not
28
necessarily limited to the alleged intelligence activities. The disclosure of any information that

Public Declaration of James R. Clapper, Director of National Intelligence

20

Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et al. v. Obama, et aI., No. 07-cv-693-JSW

would tend to confirm or deny allegations of such assistance can be expected to cause

2 exceptionally grave harm to the national security, for a variety of reasons.

3

43. Confirming or denying such allegations would reveal to foreign adversaries

4 whether or not the NSA utilizes particular intelligence sources and methods and, thus, either
5
compromise actual sources and methods or disclose that the NSA does not utilize a particular
6
source or method. For example, revealing that a particular company assists the NSA would
7

8 compromise a range of intelligence activities by providing confirmation that certajn channels of

9 communications are vulnerable to NSA interception. Confirmation or denial of a carrier's

\0
assistance would replace speculation with certainty for hostile foreign adversaries who are
II
balancing the risk that a particular channel of communication may not be secure against the need
12
I3 to communicate efficiently.

14

44. This remains so, in my judgment, notwithstanding the U.S. Government's

15 declassification of a now-expired April 25, 2013, FISC order directing Verizon Business
16
Network Services (VBNS) to produce bulk telephony metadata to the NSA. Although the U.S.
17
Government, in acknowledging the existence of the telephony metadata program carried out
18
19 under FISC authorization, also confirmed the participation of VBNS in that program for the time

20 period covered by that order (April 25 through July 19,2013), it has never confimled or denied

21 the identities of any other carriers that previously participated in that program, or the identities 0
22
any carriers that continue to participate in the program today.
23
CONCLUSION
24

25

45. In sum, I am asserting the state secrets privilege and the DNI's statutory privilege

26 set forth in 50 U.S.C. § 3024(i)(1) to protect the classified national security information
27
described herein and in the Classified NSA Declaration. I respectfully request that the Court not
28
only protect that information from disclosure, but take all steps necessary to protect the

Public Declaration of James R. Clapper, Director of National Intelligence

21

Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et al. v. Obama, et aI., No. 07-cv-(j93-JSW

intelligence infonnation, sources, and methods described herein in order to prevent exceptionally

2 grave damage to the national security of the United States.

3

I declare under penalty of perjury that the foregoing is true and correct.

4
Executed on: December 20,2013
5

6

7

8

9

10

II

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Public Declaration of James R. Clapper, Director of National Intelligence

22

Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et al. v. Obama, et aI. , No. 07-cv-693-JSW

 
 STUART F. DELERY

2 Assistant Attorney General

3 JOSEPH H. HUNT

4 Director, Federal Programs Branch

5 ANTHONY J. COPPOLINO

6 Deputy Branch Director

7 JAMES J. GILLIGAN

8 Special Litigation Counsel

9 MARCIA BERMAN

10 Senior Trial Counsel

II BRY AN DEARINGER

12 RODNEY PATION

13 Trial Attorneys

14 U.S. Department of Justice

15 Civil Divi sion, Federal Programs Branch

16 20 Massachusetts Avenue, NW

17 Washington, D.C. 20001 18 Phone, (202) 514-2205

19 Fa" (202) 616-8470 20 Altorneysfor the United States and Governmenl

21 Defendants Sued in their Official Capacities

22

21

UNITED STATES DISTRICT COURT

24

NORTHERN DISTRICT OF CALIFORNIA

25

SAN FRANCISCO DIVISION

26
27 CAROLYN JEWEL, et al.

) Case No. 08-cv-4373-JSW

28

)

29

Plaintiffs,

)

30

)

31 v.

)

12

)

33 NATIONAL SECURITY AGENCY, el al.

)

l4

)

35

Defendants.

)

J6 J7

- - - - - - - - - - - - - - - - - - - - - - - ))

38 VIRGIN IA SHUBERT, et al.

)

39

)

40 Plaintiffs,

)

41

)

Case No. 07-cv-693-JSW
UNCLASSIFLED DECLARATION OF FRANCES J . FLEISCH, NATIONAL SECURITY AGENCY

42 v.
41
44 BARACK OBAMA, et al.
45
46 Defendants.

) ) ) No Hearing Scheduled ) Courtroom 11, 19th Floor ) Judge Jeffrey S. White

47 - - - - - - - - - -- - - - - - - - - - )
48

Unclassi fied Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

UNCLASSIFIED DECLARAT10N OF FRANCES J. FLEISCH

2

NATIONAL SECURITY AGENCY

3

4

I, Frances J. Fleisch, do hereby state and declare as follows:

5

6

I. INT RODUCTION

7

I. I am the Acting Deputy Director for the National Security Agency ("NSA" or

8 "Agency"), an intelligence agency within the Department of Defense. I have held this position

9 since December 9, 20t3. Prior to holding the position of Acting Deputy Director, I was the

10 Agency's Executive Director from June 2010 to December 8, 2013. Before moving into the

II Executive Director position, I served in a number of leadership and management positions since

12 joining the agency in 1980. As Acting Deputy Director, I serve as the senior civilian leader of

13 the NSA and act as the Agency's chief operating officer, responsible for guiding and directing

14 strategies, operations, and policy. Under our internal regulations, and in the absence of the

15 Director of the NSA, I am responsible for directing the NSA, overseeing the operations

16 undertaken to carry out its mission and, by specific charge of the President and the Director of

17 National Intelligence, protecting NSA activities and intelligence sources and methods. I have

18 been designated an original TOP SECRET classification authority under Executive Order ("EO"

19 No. 13526, 75 Fed. Reg. 707 (2009), and Department of Defense Manual No. 5200.1 , Vol. I,

20 Information and Security Program (Feb. 24, 2012).

21

2. The purpose of this declaration is to support an assertion of the military and state

22 secrets privilege (hereafter, "state secrets privilege") by the Director of National Intelligence

23 ("DN I") as the head of the Intelligence Community, as well as the DNI's assertion of a statutory

24 privilege under the National Security Act, to protect information related to the NSA activities

25 described below that may be necessary to adjudicate the claims at issue in this litigation.

26 Through this declaration, I also hereby invoke and assert the NSA's statutory privilege set forth

Unclass ified Declaration of frances J. Fleisch, National Security Agency Jewel. v. NSA. (No. 08-cy-4873-JSW); Shubert v. Obama (07-cY-0693-JSW) (M :06-cY-1791)

in Section 6 of the Nationa1 Security Agency Act of 1959, Public Law No. 86-36 (codified at 50

2 U.S.c. 3601 el seq.) (" NSA Act"), to protect the information related to the NSA activities

J described herein below. General Keith B. Alexander, the Director of the NSA, has been sued in

4 his official and individual capacities in the above-captioned litigation and has recused himself

5 from the decision on whether to assert privilege in his official capacity. As the Acting Deputy

6 Director, and by specific delegation of the Director, I am authorized to review the material s

7 associated with this litigation, prepare whatever declarations I determine are appropriate, and

8 determine whether to assert the NSA's statutory privilege. The statements made herein are base

9 on my personal knowledge ofNSA activities and operations, and on infonnation made available

10 to me as the Acting Deputy Director of the NSA. Contemporaneous with this declaration, I have

II executed a classified declaration solely for the Court' s in camera, ex parle review, concerning

12 the same matters addressed in this public declaration.

J3 II. SUMMARY

14

3.

In the course of my official duties, I have been advised that plaintiffs in this

15 litigation allege that, following the terrorist attacks of September 11 , 200 I, the NSA, pursuant to

16 presidential authorization and with the assistance of plaintiffs ' telecommunications companies

17 (namely, AT&T and Verizon), indiscriminately intercepted the content and obtained the

18 communications records of millions of ordinary Americans as part of an alleged " dragnet"

19 communications surveillance. The Government has previously asserted the state secrets

20 privilege in these cases, most recently in September 2012, to protect from disclosure highly

21 sensitive intelligence-gathering infonnation relevant to confirming or negating plaintiffs'

22 allegations. This declaration responds to the Court' s order that the Government explain the

23 impact ofrecent official di sclosures about NSA intelligence-gathering activities on the national

Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M :06-cv- 1791)

security issues in the litigation, as reflected in its state secrets privilege assertion. July 23, 2013

2 Amended Order (EeF No.1 53 at 25); Sept. 27, 2013 Transcript of Proceedings at 7.'

J

4.

The Government's recent official disclosures follow a series of unprecedented,

4 unauthorized, and unlawful disclosures, by a fonner NSA contractor, of Top Secret documents

5 concerning certain classified NSA surveillance programs. The media revealed those

6 unauthorized disclosures beginning in June 2013. These disclosures are now risking, and in

7 some cases causing, the exceptionall y grave damage to national security that the Government ha

8 previously identified to the Court, including the loss of valuable intelligence and, specifi cally,

9 information that may assist in detecting or preventing a future mass casualty terrorist attack.

'0

5.

The Government responded to the recent unlawful disclosures by officially

11 acknowledging the existence of certain programs because of the importance of correcting

12 inaccurate information to the public about those programs, despite the hann to national security

13 that such an official acknowledgement would cause. In sum, the Government confirmed the

14 existence and some information concerning (1) the telephony metadata program, in which the

15 NSA obtains, pursuant to orders issued by the Foreign Intelligence Surveillance Court ("FISC"),

16 telephone company business records in bulk containing certain non-content information about

17 phone calls made, such as the phone numbers dialed, and the date, time, and duration of the calls,

18 and uses that information to identify unknown terrorist operatives; (2) a previous program of

19 bulk collection of certain Internet metadata, such as the "to" and "from" lines of an email and the

20 date and time the email was sent, also authorized by the FISC and also for counter-terrorism

1 This declaration supplants all prior privilege assertions. In order to focus on the information which remains subject to this privilege assertion, this declaration does not repeat or address all topics that were addressed in prior declarations. The Court is respectfully referred to prior declarations for additional background.
Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Oboma (07-cv-0693-JSW) (M:06-cv-1791)

purposes; and (3) certain information about the Government's use of authority conferred by

2 Section 702 of the Foreign Intelligence Surveillance Act ("FISA"), to collect, for foreign

3 intelligence purposes, certain communications of non-U.S. persons located outside the United

4 States, pursuant to approval of the FISC.

l

6. In addition, the Government has now declassified the existence of the two

6 metadata collection activities that were conducted prior to FISC authorization, under presidential

7 authorizations issued by President Bush in the wake of the September 11 attacks. But for many

8 reasons vital to national security, the classified so urces and methods (many of which the NSA

9 continues to utilize today), intelligence gathered, and operational details of what has been called

10 the President' s Surveillance Program ("PSP") must remain protected from public disclosure to

I 1 avoid even greater damage to national security than is already occurring as a result of the

12 unlawful disclosures. To the extent this information is at risk of disclosure in litigating

13 plaintiffs' claims, the Government continues to assert the state secrets privilege and applicable

14 statutory privileges over that information. In particular, and in unclassified terms, the privilege

15 applies to information about whether plaintiffs themselves have been subject to any of the

16 surveillance activities they complain about; classified intelligence sources and methods of the

17 NSA programs at issue, such as the identities of any telecommunications carriers and facilities

18 that provided assistance to the NSA; and intelligence collected under the programs..

19

7. For the reasons detailed below and further detailed in my classified declaration,

20 the Government continues to assert the state secrets privilege in these cases, as described in my

21 declaration, notwithstanding the Government's recent official disclosures.

22

23

24

Unclassified Declaration of Frances J. Fleisch, National Securiry Agency Jewel. v, NSA , (No. 08-cv-4873-JSW); Shubert v. Ohama (07-cv-0693-JSW) (M:06-cv-1791)

III. BACKGROUND

2

A. The National Security Agency

J

8. The NSA was established by Presidential Directive in 1952 as a separately

4 organized agency within the Department of Defense. The NSA's foreign intelligence mission

5 includes the responsibility to collect, process, analyze, produce, and disseminate signals

6 intelligence ("SIGfNT" ) information, of which COMINT is a significant subset, for (a) national

7 foreign intelligence purposes, (b) counterintelligence purposes, and (c) the support of military

8 operations. See Executive Order 123 33, § 1.7(c), as amended ?

9

9. SIGINT consists of three subcategories: (I) COMINT; (2) electronic intelligence

10 ("ELlNT'"); and (3) foreign instrumentation signals intelligence (" FISlNT'"). COMlNT is

II defined as "all procedures and methods used in the interception of communications and the

12 obtaining of information from such communications by other than the intended recipients." 18

13 U.S.c. § 798. COMINT includes information derived from the interception of foreign and

14 international communications, such as voice, facsimile, and computer-to-computer information

15 conveyed via a number of means. ELlNT is technical intelligence information derived from

16 foreign non-communications electromagnetic radiations except atomic detonation or radioactive

17 sources---in essence, radar systems affiliated with military weapons platforms (e.g. , anti-ship)

18 and civilian systems (e.g ., shipboard and air traffic control radars). FISINT is deri ved from the

2 Executive Order 12333, reprinted as amended in 50 U.S.C § 300 1 note, generally describes the NSA's authority to collect foreign intelligence that is not subject to the FISA definition of electronic survei llance, including activities undertaken abroad. Section 1.7(c) of E.O. 12333, as amended, specifically authorizes the NSA to "Collect (including through clandestine means), process, analyze, produce, and disseminate signals intelligence information for foreign intelligence and counterintelligence purposes to support national and departmental missions. "
Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-179 1)

intercept of foreign electromagnetic emissions associated with the testing and operational

2 deployment of non-U .S. aerospace, surface, and subsurface systems.

3

10. The NSA ' s SIGINT responsibilities include establishing and operating an

4 effective unified organization to conduct SIG INT activities set forth in EO 12333, § 1.7(c)(2), as

5 amended. In performing its SIGINT mission, the NSA has developed a sophisticated worldwide

6 SIGINT co ll ection network that acquires, among other things, foreign and international

7 electronic communications and related information. The technological infrastructure that

8 supports the NSA ' s foreign intelligence information collection network has taken years to

9 develop at a cost of billions of dollars and untold human effort It relies on sophi sticated

10 collection and processing technology.

II

II. There are two primary reasons for gathering and analyzing foreign intelligence

12 information. The first, and most important, is to gain information required to direct U.S.

13 resources as necessary to counter external threats and in support of military operations. The

14 second reason is to obtain information necessary to the formulation of U.S. foreign policy.

15 Foreign intelligence information provided by the NSA is thus relevant to a wide range of

16 important issues, including military order ofbaUle; threat warnings and readiness; anns

17 proliferation; international terrorism; counter-intelligence; and foreign aspects of international

18 narcotics trafficking.

19

12. The NSA ' s ability to produce foreign intelligence information depends on its

20 access to foreign and international electronic communications. Foreign intelligence produced by

21 COMINT activities is an extremely important part of the overall foreign intelligence information

22 available to the United States and is often unobtainable by other means. Public disclosure of

23 either the capability to co llect specific communications or the substance of the information

24 derived from such collection itself can easily alert targets to the vulnerability of their

Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M :06-cv-179 1)

communications. Di sclosure of even a single communication holds the potential of revealing

2 intelligence collection techniques that are applied against targets around the world. Once alerted

3 targets can frustrate COM INT col lection by using different or new encryption techniques, by

4 disseminating disinformation, or by utili zing a different communications link. Such evasion

5 techniques may inhibit access to the target' s communications and therefore deny the United

6 States access to information crucial to the defense of the United States both at home and abroad.

7 COMINT is provided special statutory protection under 18 U.S.C. § 798, which makes it a crime

8 to knowingly disc lose to an unauthorized person classified information "concerning the

9 communication intelligence activities of the United States or any foreign government."

10

B. Se ptembe r 11, 200 1. an d t he a l Qaed a T hreat

II

13. On September 11 , 2001, the 81 Qaeda terrorist network launched a set of

12 coordinated attacks along the East Coast of the United States. Four commercial jetliners, each

J3 carefully selected to be fully loaded with fuel for a transcontinenta1 flight, were hijacked by al

14 Qaeda operatives. Those operatives targeted the Nation's financial center in New York with two

15 of the jetliners, which they deliberately flew into the Twin Towers of the World Trade Center.

16 Al Qaeda targeted the headquarters of the Nation's Armed Forces, the Pentagon, with the third

17 jetliner. Al Qaeda operatives were apparently headed toward Washington, D.C. with the fourth

18 jetliner when passengers struggled with the hijackers and the plane crashed in Shanksville,

19 Pennsylvania. The intended target of this fourth jetliner was most likel y the White House or the

20 Capitol, strongly suggesting that al Qaeda's intended mi ssion was to strike a decapitating blow t

21 the Government of the United States- to kill the President, the Vice President, or Members of

22 Congress. The attacks of September 11 resulted in approximately 3,000 deaths- the highest

23 single-day death toll from hostile foreign attacks in the Nation's hi story. In addition, these

Unclassified Declaralion of Frances J. Fleisch. National Security Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); ShuberJ v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

attacks shut down air travel in the United States, disrupted the Nation's financial markets and

2 government operations, and caused billions of dollars of damage to the economy.

3

14. On September 14, 2001, a national emergency was declared "by reason of the

4 terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the

5 continuing and immediate threat of further attacks on the United States." Presidential

6 Proclamation No. 7463, 66 Fed. Reg. 48199 (Sept. 14,2001). On September 14,2001 , both

7 Houses of Congress passed a Joint Resolution authorizing the President of the United States "to

8 use all necessary and appropriate force against those nations, organizations, or persons he

9 determines planned, authorized, committed, or aided the terrorist attacks" of September 11.

10 Authorization for Vse of Military Force, Pub. L. No. 107-40 § 2 I(a), 115 Stat. 224, 224 (Sept.

11 18, 2001) ("Cong. Auth."). Congress also expressly acknowledged that the attacks rendered it

12 " necessary and appropriate" for the United States to exercise its right "to protect United States

13 citizens both at home and abroad," and acknowledged in particular that " the President has

14 authority under the Constitution to take action to deter and prevent acts of international terrorism

15 against the United States." Jd. pmbl?

) Following the 9/ 11 attacks, the United States also immediately began plans for a military response directed at al Qaeda's training grounds and havens in Afghanistan. A Military Order was issued stating that the attacks of September II "created a state of armed conflict," see Military Order by the President § I(a), 66 Fed. Reg. 57833, 57833 (Nov. 13,2001), and that al Qaeda terrorists "possess both the capability and the intention to undertake further terrorist attacks against the United States that, if not detected and prevented, will cause mass deaths, mass injuries, and massive destruction of property, and may place at risk the continuity of the operations of the United States Government," and concluding that " an extraordinary emergency exists for nati onal defense purposes." Military Order, § I(c), (g), 66 Fed. Reg. at 57833-34. Indeed, shortly after the attacks, NATO took the unprecedented step of invoking article 5 of the North Atlantic Treaty, which provides that an "armed attack against one or more of [the parties] shall be considered an attack against them all. " North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 2244, 34 V.N.T.S. 243, 246.
Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-179 1)

15. As a result of the unprecedented attacks of September 11 ,2001 , the United States

2 found itself inunediately propelled into a conflict with al Qaeda and its associated forces, a set of

3 groups that possesses the evolving capability and intention of inflicting further attacks on the

4 United States. That conflict is continuing today, at home as well as abroad. Moreover, the

5 conflict against al Qaeda and its allies is a very different kind of conflict, against a very different

6 enemy, than any other conflict or enemy the Nation has pre viously faced. Al Qaeda and its

7 affiliates operate not as a traditional nation-state but as a diffuse, decentralized network of

8 indi viduals, cells, and loosely associated, often disparate groups, that act sometimes in concert,

9 sometimes independently, and sometimes in the United States, but always in secret- and their

10 mission is to destroy li ves and to di srupt a way of life through terrorist acts. AI Qaeda works in

11 the shadows; secrecy is essential to al Qaeda's success in plotting and executing its terrori st

12 attacks.

IJ

16. The 9/ 11 attacks posed significant challenges for the NSA's signals intelligence

14 mi ssion. Global telecommunications networks, especially the internet, have developed in recent

15 years into a loosely interconnected system- a network of networks- that is ideall y suited for the

16 secret conununications needs ofloosely affiliated terrorist cells. Hundreds oflnternet service

17 provi ders, or " ISPs," and other providers of communications services offer a wide variety of

18 global conun unications options, often free of charge.

19

17. Our efforts against al Qaeda and its affiliates therefore present critical challenges

20 for the Nation's communications intelligence capabilities. First, in this type of conflict, more so

21 than in any other we have ever faced, communications intelligence is essential to our ability to

22 identify the enemy and to detect and disrupt its plans for further attacks on the United States.

23 Communications intelligence often is the only means we have to learn the identities of particular

24 individuals who are involved in terrorist activities and the existence of particular terrori st threats.

Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Ohama (07-cv-0693-JSW) (M :06-cv-179 1)

Second, at the same time that communications intelligence is more important than ever, the

2 decentralized, non-hierarchical nature of the enemy and their sophistication in exploiting the

3 agility of modern telecommunications make successful communications intell igence more

4 difficult than ever. It is against this backdrop that the ri sks presented by this litigation should be

5 assessed, in particular the risks of disclosing NSA sources and methods implicated by the claims

6 being rai sed.

7

C. Plaintiffs' Allegations and the Government 's Pr ior Assertions of Privilege

8

18. In the course of my official duties, I have been advised of the Jewel and Shubert

9 cases, and I have reviewed the allegations raised in this litigation, including the Complaint filed

10 in the Jewel action on September 18,2008 , and the Second Amended Complaint ("SAC") filed

11 in the Shubert action on May 8, 2012. In sum, plaintiffs allege that, after the 9/ 11 anacks, the

12 NSA received presidential authorization to engage in "dragnet" communications surveillance in

13 concert with major telecommunications companies. See, e.g., Jewel Compl. ~, 2-3, Shubert

14 SAC ~~ 1-7. Plaintiffs allege that, pursuant to presidential authorization and with the assistance

15 of telecommunication companies (including AT&T and Verizon), the NSA indiscriminately

16 intercepted the content and obtained the communications records of millions of ordinary

17 Americans. Plaintiffs seek relief in this litigation that would prohibit such collection activities,

18 even though they were later transitioned to FISC-authorized programs and remain so to the

19 extent the programs continue.

20

19. In addition, 1 am familiar with the previous classified deciarations filed in these

21 cases in September and November 2012. In those declarations, the ONI and the NSA asserted

22 the state secrets pri vilege over the following broad categories of information: (I) any

23 information that may tend to confirm or deny whether particular individuals, including plaintiffs,

24 have been subject to the alleged NSA intelligence activities; and (2) any infonnation concerning

Unclassified Declaration of Frances J. Fleisch, National Security Agency

II

Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- 1791)

NSA intelligence activities, so urces, or methods that may relate to or be necessary to adjudicate

2 plaintiffs' allegations, including allegations that the NSA, with the assistance of

3 telecommunications carriers such as AT&T and Verizon, indiscriminately intercepts the content

4 of communications and collects the communication records of millions of Americans as part of

:5 an all eged program authorized by the President after 9/11. This latter category included (i)

6 information concerning the scope and operation of the now inoperati ve Terrori st Surveillance

7 Program ("TSP") regarding the interception of the content of certain international

8 communications reasonably believed to in volve a member or agent of al Qaeda or an affiliated

9 terrori st organization,4 and any other information related to demonstrating that the NSA does not

10 otherwi se engage in the content surveillance "dragnet" alleged by plaintiffs; (ii) information

11 concerning whether or not the NSA obtained from telecommunications companies such as

12 AT&T and Verizon communication transactional records as alleged in the complaints; and (iii)

J3 information that may tend to confinn or deny whether AT&T, Verizon, or other

14 telecommunications carriers have provided assistance to the NSA in connection with an y of the

15 alleged activities.

16

D. Official Disclosures Since September 2012

17

20. In the wake of unauthorized di sc losures, beginning in June 20 13, about

18 intelligence-gathering activities conducted by the NSA , the ONI , at the direction of the President

19 and in light of the President' s transparency initiati ve, has declassified and made public certain

4 In December 2005, then-President Bush publicl y acknowledged the existence ofa presidentially-authorized NSA activity that later came to be called the TSP under which the NSA was authori zed to intercept the content of specific international communications (i.e., to or from the United States) involving persons reasonabl y beli eved to be associated with al Qaeda and affi liated terrorist organizations. The term "content" is used herein to refer to the substance, meaning, or purport of a communication, as defined in 18 U.S.C . § 25 J0(8), as di stingui shed from the type of add ressing or routing information referred to herein as "metadata."
Unclassified Declaration of Frances J . Fleisch, National Security Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); Sh ubert v. Obama (07-cv-0693 -JSW) (M :06-cv-1791)

information about a number of sensitive programs undertaken under the authority of the FlSA.

2 Certain of the information that the ONI has declassified concerns the allegations raised in this

3 litigation, and th is infonnation has been descri bed in great detail in the classified declarations

4 referenced above. In addition, the President has declassified the fact of the existence of two
s portions of the discontinued President' s Surveillance Program, which also concern the

6 allegations at issue in this litigation. I summarize these various official disclosures below.

7

1. Collection of Bulk T elephony Metadata Under Section 215 oftbe FISA

8

21. First, since May 2006, under a provision of the FISA known as Section 215 and

9 codified at 50 U.S.c. § 1861 , the NSA obtains, pursuant to orders of the FISC, bulk telephony

10 metadata - business records created by telecommunications service providers that include such

11 information as the telephone numbers placing and receiving calls, and the time and duration of 12 those calls. 5 The Government has declassified and publicly disclosed a number of "primary"

13 orders of the FISC to the Government authorizing it to carry out the bulk telephony metadata

14 program . The Government has acknowledged only one "secondary" FISC order, however, to

IS one telecommunications service provider (Verizon Business Network Services, Inc. ("VBNS")),

16 and for only one approximately 90-day period of time (from April 25, 20 13 to July 19, 20 13).

17 The Government acknowledged this secondary order only after the order was disclosed

18 unlawfully and without authorization. This is the only FISC order identifying any particular

19 provider that has been declassified and, since the disclosure of thi s order in June 20 13, the

20 United States has conti nued to protect against any further disclosures of FISC orders directed at

5 Under the terms of the FISC ' s orders, the NSA is authorized to collect information including, as to each ca1J, the telephone numbers that placed and received the call, other sessio nidentifying information (e.g., International Mobile Subscriber Identity (IMSI) number,
International Mobile stalion Equipment Identity (lMEI) number, etc.). trunk identifier, telephone
calling card number, and the date, time, and duration of a call.
Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obam(J (07-cv-0693 -JSW) (M :06-cv-1791)

any provider under the telephony metadata program. While the authentication of that order

2 means that the identity of one participating provider has been officially acknowledged for the

3 particular time period of that order, the order was limited to YBNS , did not identify any other

4 provider, did not relate to any other corporate component ofVerizon other than VBNS, and was
s of limited duration (expiring on July 19, 2013). There has been no official acknowledgement of

6 whether or not VBNS assisted the NSA with the FISC telephony metadata program either before

7 or after the period covered by the Apri l 2013 order, or whether VBNS continues to participate in

8 the program. The identities of the providers that furnish assistance to the NSA under the

9 telephony metadata program, including VBNS , as to any other time period other than the

10 approximately 90-day duration of that order, have not been declassi fied and remains currently

II and properly classified.

12

22. The Government also disclosed that it does not collect, listen to, or record the

13 content of any call under this program, nor does it collect the name, address, or financial

14 information of any subscriber, customer, or party to a call, or cell site loeational information.
l' The Government obtains FISC orders under this program by submitting detailed applications

16 from the Federal Bureau of Investigation (" FBI") explaining that the records are sought for

17 investigations to protect against international terrorism that concern specified foreign terrorist

18 organizations identified in the application. As required by Section 215, each application contain

19 a statement of facts showing that there are reasonable grounds to believe that the metadata as a

20 whole are relevant to the investigations of these organizations.

21

23. The NSA stores and analyzes this information under carefully controlled

22 circumstances and under stringent supervi sion and oversight by all three branches of

23 Government. The vast majority of the metadata are never seen by any person. Rather, the NSA

24 has been authorized to query the archived data solely with identifiers, typically telephone

Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Oboma (07-cv-0693-JSW) (M:06-cv-1791)

numbers. for which there are facts giving ri se to a reasonable, aniculable suspicion ("RAS") that

2 the number is associated with one or more of the foreign terrorist organizations that are the

3 subject of FBI investigations previously identified to the FISC. Where the identifier is

4 reasonably believed to be used by a U.S. person, the NSA may not make the RAS determination

5 so lely based on activities protected by the First Amendment.

•

24. The accessible results of an approved query are limited to records of

7 communications within three "hops" from the seed identifier.6 That is, the query results may

8 only include identifiers having a direct contact with the seed (the first " hop"), identifiers having

9 direct contact with the first " hop" identifiers (the second " hop"), and identifiers having a direct

JO contact with second "hop" identifiers (the third "hop"). By querying the metadata using the RAS

II standard, NSA intelligence analysts are able to : (1) detect domestic identifiers calling foreign

12 identifiers associated with one of the foreign terrorist organizations and discover identifiers that

13 the foreign identifiers are in contact with; (2) detect foreign identifiers associated with a foreign

14 terrorist organization calling into the U.S. and discover which domestic identifiers are in contact

15 with the foreign identifiers; and (3) detect possible terrorist-related communications occurring

16 between communicants located inside the U.S.

17

25. The Government has also publicly disclosed FISC orders and opinions concemin

18 various failures to fully implement and comply with FISC-ordered procedures for the telephony

19 metadata collection program. These compliance incidents were due to human error and

20 technological issues. In 2009, the Government reported these problems to the FISC (and

21 Congress) and remedied them, and the FISC (after temporari ly suspending the Government's

6 A "seed" is an initial identifier used to generate a query.
Unclassifi ed Declaration of Frances J. Fleisch, National Sec urity Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubertv. Obama (07-cv-0693-JSW) (M:06-cv-1791)

authority to query the database without the court 's approval) reauthorized the program in its

2 current form.

3

2. Bulk Collection of Internct Metadata

4

26. Second, the Government has recently declassified and acknowledged the

.5 existence of FISC-authorized bulk collection of Internet metadata carried out under the "pen

6 register, trap and trace" (" PRIT') provision of the FISA. The data col lected included certain

7 routing, addressing, and signaling information such as the "to" and "from" lines of an email and

8 the date and time the email was sent, but not the content of an email or the subject line. Certain

9 telecommunications service providers were compelled to provide this transactional information,

10 which the NSA analyzed to obtain foreign intelligence information. The FISC's orders

11 authorizing thi s collection required the Government to comply with minimization procedures

12 limiting the retention and dissemination of the metadata, including a requirement of a reasonable,

13 articulable suspicion that selection terms used to query the bulk data were associated with 14 foreign terrori st organizations. 7 1bis program of bulk Internet metadata collection was

IS terminated in 20 11 , because it did not meet the operational expectations the NSA had for it.

16

3. Collection of Communication s Content Pursuant to Section 702 of FISA.

17

27. Third, the Government has publicly revealed certain information about its use of

18 authority conferred by Section 702 of the FISA to collect, for foreign intelligence purposes,

19 certain communications of non-U.S. persons located outside the United States, pursuant to

20 approval of the FISC. Section 702 facilitates the targeted acquisition of foreign intelligence

7 Similar to the telephony metadata program (see supra 34). the Government has also publicly disclosed FISC orders and opinions concerning various fai lures to fuUy implement and comply with FISC-ordered procedures for the Internet metadata collection program. These compli ance incidents were due to human error and technological issues. In 2009, the Government reported these problems to the FISC (and Congress) and remedied them.
Unclassified Declaration of Frances J. Fleisch, National Security Agency
Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- 1791 )

information concerning foreign targets located outside the United States under court oversight.

2 Electronic communication service providers are compelled to supply information to the

3 Government pursuant to authorized directives issued by the Attorney General and the ON!.

4

28. Once targeted surveillance under Section 702 has been authorized, the NSA takes

!l the lead in tasking relevant telephone and electronic communications selectors to target spec ific

6 non- U.S. persons reasonably believed to be located outside the United States. Consistent with

7 the statute, the NSA's targeting procedures require that there be an appropriate, documented

8 foreign intelligence purpose for the acquisition and that the selector be used by a non-U .S.

9 person reasonably believed to be located o utside the United States.

10

29. Once a target has been approved, the NSA uses two means to acquire the target' s

11 electronic communications. First, it acquires such communications directly from compelled

12 U.S. -based providers. This has been publicl y referred to as the NSA's PRISM coll ection.

13 Second, in addition to collection directly from providers, the NSA performs " upstream

14 collection" of Internet communications. The NSA has strict minimization and disseminati on

15 procedures, and as is the case with the telephony metadata program, the NSA's Section 702

16 collection acti vities are subject to extensive oversight by all three branches of the Government.

17

30. As with the telephony metadata program, the Government has also disclosed

18 compliance incidents involving its Section 702 collection activities. In an opinion issued on

19 October 3, 201 1, the FISC found the NSA 's proposed minimization procedures as applied to the

20 NSA's upstream collection of Internet transacti ons containing multiple communications, or

21 "MCTs," deficient. Oct. 3, 2011 FISC Op., 2011 WL 10945618. In response, the NSA modified

22 its proposed procedures and the FISC subsequently determined that the NSA adequately

23 remedied the deficiencies such that the procedures met the applicable statutory and constitutional

Unclassified Declaration of Frances J. Fleisch. National Security Agency Jewel. \I. NSA, (No. Og-cv-4873-JSW); Shubert v. Oboma (07-cv-0693-JSW) (M:06-cv-179 1)

requirements, and allowed the collection to continue. Aug. 24,2012 FISC Op., 2012 WL

2 9189263, at '2-3; Nov. 30, 20 11 FISC Op., 20 11 WL 10947772.

3

4. Presidentia lly Authorized NSA Activities After 9/11

, 4

31. In December 2005 then-President Bush acknowledged the existence of a

6 presidentially-authorized NSA activity called the TSP under which NSA was authorized to

7 intercept the content of specific international communications (i.e., to or from the United States)

8 involving persons reasonably believed to be associated with a1 Qaeda and affi liated terrorist

9 organizations. Other intelligence activities were authorized by the President after the 9/ 11

10 attacks in a single authorization and were subseq uently authorized under orders issued by the

II FISC. In light of the declassification decisions described above concerning the NSA's

12 collection of tel ephony and Internet metadata and targeted content collection under FISC orders,

13 the President has detennined to publicly di sclose the fact of the existence of those activities prio r

14 to the FISC orders, pursuant to presidential authorization. Accordingly. certain limited

15 information concerning these activities has now been declassified:

16

32. Starting on October 4, 200 1, President Bush authorized the Secretary of Defense

17 to employ the capabilities of the Department of Defense, incl uding the NSA, to coll ect foreign

18 intelligence by electronic surveillance in order to detect and prevent acts of terrori sm within the

19 United States. President Bush authorized the NSA to collect: ( 1) the contents of certain

20 internationa1 communi cations, a program that was later referred to as the TS P; and (2) telephony

21 and Internet non-content metadata in bulk, subject to various conditions.

22

33. President Bush issued authorizations approximately every 30-60 days. Although

23 the precise terms changed over time, each presidential authorization required the minimization 0

24 information collected concerning American citizens to the extent consistent with the effective

Unclassified Declaration of Frances J. Fleisch, Nationa l Security Agency
Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

accomplishment of the mission of detection and prevention of acts of terrorism within the Uni ted

2 States. The NSA applied additional internal constraints on the presidentially-authorized

3 activities.

4

34. Over time, the presidentially-authorized activities transitioned to the authority of

.5 the FISA. The collection of communications content pursuant to presidential authorization

6 ended in January 2007 when the Government transitioned the TSP to the authority afthe FlSA

7 and under the orders afthe FISC. In August 2007, Congress enacted the Protect America Act

8 ("PAA") as a temporary measure. The PAA, which expired in February 2008, was replaced by

9 the FISA Amendments Act of2008 ("FAA"), which was enacted in July 2008 and remains in

10 effect today. Today, content collection is conducted pursuant to section 702 of the FlSA The

I I metadata activities al so were transitioned to orders of the FISC. The bulk collection oftelephon

12 metadata transitioned to the authority of the FISA in May 2006 and is collected pursuant to

13 Section 2 15 of FlSA. The bulk collection of Internet metadata was transitioned to the authority

14 of the FISA in July 2004 and was collected pursuant to Section 402 of FISA. In December 20 II ,

1~ the Government decided not to seek reauthorization af the bulk collection of Internet metadata.

16 IV. INFORMATION SUBJECT TO ASSERTIONS OF PRIVILEGE

17

35. While information about the existence of the components afthe PSP has now

18 been declassified, speci fic operational detail s concerning the program' s scope, operation, the

19 sources and methods it utilized, and intelligence it produced remain properly classified and are

20 subject to the DNI's state secrets privilege assertion and my own asserti on ofNSA's statutory

21 pri vil ege in this declaration. In general and unclassified terms, the DNI's assertion of the state

22 secrets privilege and my statutory privilege assertion encompasses the foll owing categories of

23 still-classifi ed information and properly protected national security informati on concerning NSA

24 activities:

Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

I

A. Person s Subject to Intelligence Activities: information that would tend to confirm

2

or deny whether particular individuals, including the named plaintiffs, have been

3

subject to any NSA intelligence activities;

, 4

B. Operational Information Concerning NSA Intelligence Activities: information

6

concerning the scope and operational details ofNSA intelligence activities that may

7

relate to or be necessary to adjudicate plaintiffs' allegations, including:

8

9

(1) Communicalioru Content Col/ee/ion: information concerning the

10

scope or operational detail s ofNSA intelligence activities that may relate

"

to or be necessary to adjudicate plaintiffs' claims that the NSA

12

indiscriminately intercepts the content of commun ications, see, e.g. , Jewel

13

Complaint 9, 10, 73-77; Shubert SAC 1,2, 7,64-70, including:

14

"16

(a)

TSP Information: information concerning the scope

and operation of the now inoperative TSP regarding the

17

interception of the content of certain international

18

communications reasonably believed to involve a

19

member or agent of al Qaeda or an affiliated terrorist

20

organization;

21

22

(b)

FISA Section 702: information concerning

23

operational details related to the collection of

24

communications under FISA section 702; and

"26

(e)

Any other information related to demonstrating that

27

the NSA has not otherwise engaged in the content-

28

surve illance dragnet that the plaintiffs allege.

29

30

(2) Communications Records Collection: information concerning the

31

scope or operational detail s ofNSA intelligence activities that may relate

32

to or be necessary to adjudicate plaintiffs' claims regarding the NSA 's

JJ

bulk collection of telephony and Internet non-content communications

J4

records ("metadata"), see, e.g., Jewel Complaint 10, II, \3 , 73-77, 82-

"

97; Shubert SAC 102;

Unclassified Declaration of Frances J. Fleisch, National Security Agency

2

Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M :06-cv- 1791)

2

C. Telecommunication Provider Identities: information that may tend to

J

confirm or deny whether AT&T or Verizon (and to the extent relevant or necessary,

, 4

any other telecommunications carrier) has provided assistance to the NSA in connection with any intelligence activity, including the collection of communications

6

content or non-conlent transactional records alleged to be at issue in this litigation.

7
8 V. HARM OF DISCLOSU R E O F PRI VILEGE D INFORM AT ION

9

A. Info r mation CODcernine; Whether Plaintiffs Have BecDSubj ect

10

to th e Alleged NSA Activities

II

36. The first major category of information as to which I am supporting the DNI ' s

12 assertion of privilege, and asserting the NSA 's own statutory privilege, concerns information as

13 to whether particular individuals, including the named plaintiffs in this lawsuit, have been

14 subject to alleged NSA intelligence activities. As set forth below and in my classified

15 declaration, confirmation or denial of such information by the NSA reasonably could be

16 expected to cause exceptionally grave damage to the national security. l1te named plaintiffs in

17 the Jewel and Shubert cases allege that the content of their own telephone and Internet

18 communications has been and continues to be subject to unlawful search and seizure by the 19 NSA, along with the content of communications of millions of ordinary Americans. 8 Further,

8 Specifically, the Jewel plaintiffs allege that pursuant to a presidentially authorized program after the 9/ 11 attacks, the NSA, with the assistance of AT&T, acquired and continues to
acquire the content of phone calls, emaiis, instant messages, text messaged, web and other communications, both international and domestic, of mi llions of ordinary Americans " practically every American who uses the phone system or the Internet" - including the
plaintiffs. See Jewel Compl. ., 7. 9. 10; see also id. at~' 39-97. The Shubert plaintiffs allege
that the contents of "virtually every telephone, Internet and email communication sent from or received within the United States since shortly after September I I, 2001 ," including plaintiffs' communications, are being "searched, seized, intercepted, and subject to surveillance without a warrant, court order or any other lawful authorization in violation of the Foreign Intell igence
Surveillance Act of 1978, 50 U.S.C. § 1810." See Shubert SAC VI; see also id. 5, 7.

Unclassified Declaration of Frances J. Fleisch, National Security Agency

21

Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obomo (07-cv-0693 -JSW) (M :06-cv-1791)

the named plaintiffs allege that the NSA has been and is continuing to collect and analyze the

2 private telephone and Internet transaction records of millions of Americans, with the assistance

3 of telecommunication carriers, again including information concerning the plaintiffs' telephone

4 and Internet communications.9

,

37. As a matter of course, the NSA cannot publicly confirm or deny whether any

6 individual is or has been subject to intelligence-gathering activities because to do so would tend

7 to re veal actual targets or s ubjects. The harm of revealing the identities of persons who are the

8 actual targets or subjects of foreign intelligence gathering is relati vely straightforward. Ifan

9 indi vidual knows or suspects he is a target or subject of U.S. intelligence acti vities, he would

10 naturally tend to alter hi s behavior to take new precautions against such scrutiny. In addition,

II revealing who is not a target or subject of intelligence gathering would indicate who has avoided

12 surveillance or collection and what may be a sec ure channel for communication. Such

13 information could lead an actual or potential adversary, secure in the knowledge that he is not

14 under government scrutiny, to help a hostile foreign adversary convey information; alternatively,

15 such a person may be unwittingly utilized or even forced to convey information through a secure

16 channel to a foreign adversary. Revealing which channels are free from surveillance and which

17 are not would also reveal sensitive intelli gence methods and thereby could help any adversary

18 evade detection and capitalize on limitations in NSA's capabilities. Similar hanns would result

19 from confirming or denying whether a person's communications have been subject to collection

9 Specifically, the Jewel plaintiffs allege that the NSA has " unlawfull y solicited and obtained from telecommunications companies the complete and ongoing di sclosure of the pri vat tele phone and internet transactional records" of millions of ordinary Americans, including
plainti ffs. See Jewel Compl. " 7, 10, I I, 13, 82-97. They further claim the NSA aoal yzes this information. Id.' 11 . The Shubert plaintiffs allege that "NSA now monitors huge volumes of records of domestic emails and Internet searches ... [and] receives this so-called ' transactional' data from ... pri vate companies... " See Shubert SAC ~ 102.

Unclassified Declaration of Frances J. Fleisch, National Security Agency

2

Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- 179 1)

even where it may be assumed a person is law-abid ing and not likely to be an actual target or

2 subject of such activity. For example, if the NSA were to confirm that specific individuals have

3 not been targets of or subject to collection (i.e., whether their communications have been

4 intercepted), but later refuse to comment (as it would have to) in a situation involving an actual
s target or subject, an actual or potential adversary of the United States could likewi se seek such

6 confirmation or denial and then easily deduce by comparing such responses that the person in the

7 latter instance is or has been a target of or subject to surveillance or other intelligence-gathering

8 activity. In addition, disclosure of whether a person's communications have or have not been

9 targeted or intercepted through the targeting of a third party would reveal whether a particular

10 channel of communication is secure and also reveal to third-party targets whether their own

11 communications may be secure.

12

B. O perational In fo r mation Concernine; NSA Intelligence

IJ

Activ it ies

14

38. I am also supporting the DNl 's assertion of pri vilege and asserting the NSA's

IS statutory privilege over any other still-classified facts concerning NSA intelligence activities,

16 sources, or methods that may relate to or be necessary to litigate the plaintiffs' claims and

17 allegations, including that: (1) the NSA is indiscriminate ly intercepting the content of

18 communications of millions of ordinary Americans, see e.g. , Jewel Complaint 7,9, 10;

19 Shubert SAC I, 5, 7; and (2) that the NSA is collecting the private telephone and Internet

20 transactional records of Americans with the assistance of telecommunications carriers, again

21 including information concerning the plaintiffs' telephone and Internet communications. See

22 Jewel Complaint ~~ 7, 10, II , 13, 82-97; see Shubert SAC 1102. As described above, the scope

23 of the Government's privilege assertion includes but is not limited to still-classified information

24 concerning (I) th e collection of communication content under the now inoperative TSP as well

Unclassified Declaration of Frances J. Fleisch, National Security Agency

2

Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Ohama (07-cy-0693-JSW) (M:06-cY· 1791)

as pursuant to authority of FlSA Section 702, and any other NSA activities that would be at risk

2 of disclosure or required in demonstrating that the NSA has not engaged in content "dragnet"

3 surveillance activities that plaintiffs allege; and (2) information that may relate to or be necessary

4 to adjudicate plaintiffs' claims regarding the NSA 's bulk collection of telephony and Internet

5 communication records. As set forth below and in my classified declaration, the disclosure of

6 such information would cause exceptionally grave harm to national security.

7

1. In fo rmation Concerning Plaintiffs' Content Surveillance Allegations

8

39. After the existence of the TSP was officiall y acknowledged in December 2005,

9 the Government stated that thi s activity was limited to the interception of the content of certain

10 communications for which there were reasonable grounds to believe that: (I) such

II communication originated or terminated outside the United States; and (2) a party to such

12 communication is a member or agent of al Qaeda or an affiliated terrorist organization.

I] Nonetheless, plaintiffs' allege that the NSA indiscriminately intercepts the content of

14 communications of millions of ordinary Americans. See e.g., Jewel Complaint 7. 9, 10; see

15 Shubert SAC I, 5, 7. As the Government has also previously stated,]Oplaintiffs' allegation

16 that the NSA has undertaken indiscriminate surveillance of the content11 of millions of

17 communications sent or received by people inside the United States after 9/ 11 under the TSP is

18 false . But in order to disprove plaintiffs ' claim that the NSA indi scriminately collected the

10 See Public Declaration of Dennis Blair, Director of Nationa1 Intelligence, 15 (April 3,2009) (Ok!. 18-3 in Jewel action (08-cv-4373); Public Declaration of Deborah A. Bonanni, National Security Agency ~ 14 (Dkt. 18-4 in Jewel action (08-cv-4373); Public Declaration of Dennis Blair, Director of National Intelligence, ' 115 (October 30, 2009) (Ok!. 680- 1 in Shubert action (MD L 06-cv-1791); Public Declaration of Lt. Gen. Keith B. Alexander, Nationa1 Security Agency 19 (Ok!. 680-1 in Shubert action (MOL 06-cv-1791).
11Again, the term "content" is used herein to refer to the substance, meaning, or purport ofa communication as defined in 18 U.S.c. § 2510(8).

Unclassified Declaration of Frances J. Fleisch, National Security Agency

2

Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M :06-cv-1791)

content afthe communications of millions of Americans, the NSA would have to disclose the

2 specifics of its content collection activities. Under the TSP, the NSA was directed pursuant to

3 presidential authorization to intercept the content of o nly those international telephone and

4 Internet communications for which there were reasonable grounds to believe that such
s communications involved a member or agent oral Qaeda or an affiliated terrori st organization.

6 To the extent the NSA must demonstrate that content surveillance under the TS P was so limited,

7 and was not plaintiffs' alleged content " dragnet," or demonstrate that the NSA has not otherwise

8 engaged in the alleged content "dragnet," highly classified NSA intelligence sources and

9 methods about the operation of the TSP and current NSA intelligence activities (incl uding under

10 FlSA Section 702) would be subject to disclosure or th e risk of disclosure. The disclosure of

II whether and to what extent the NSA utilizes certain intelligence sources and methods would

12 reveal to foreign adversaries the NSA's capabilities, or lack thereof, enabling them to either

]J evade particular channels of communications that are being monitored, or exploit channels of

14 communication that are not subject to NSA activities, in either case risking exceptionally grave

IS damage to national security. As set forth below and in my classified declaration, a range of

16 operational details concerning the TSP, as well as other NSA sources and methods, remains

11 properly classified and privileged from disclosure, and could not be revealed to address

18 plaintiffs' content " dragnet" allegations.

19

40. Authorization afthe TSP was intended to address an important gap in NSA's

20 intelligence co ll ection activities---namely, that significant changes in communications

21 technolog y since the enactment of the FISA in 1978 meant that the NSA faced great difficulties

22 in identifying foreign terrorist operatives who were communicating with individual s within the

23 United States. FISA establi shed the framework for court approval of the U.S. Government 's

24 efforts to conduct fo rei gn intelligence surveillance of individuals in the United States. When

Unclassified Declaration of Frances J. Fleisch, National Security Agency

2

Jewel. v. NSA. (No. 08-cv-4873-JSW); Shuberl v. Oboma (07-cv-0693-JSW) (M :06-cv-179 1)

FISA was enacted in 1978, most internationaJ communications to or from the United States were

2 transmitted via satellite or radio technology. Congress intentionally excluded the vast majority

3 of satellite or radi o communications from the definition of "electronic surveillance" in the FISA.

4 See 50 U.S.C. § J80J(I).

,

41. Since the time FISA was enacted, sweeping advances in modem

6 telecommunications technology upset the ba1ance struck by Congress in J978. By 200 I, most

7 international communications to or from the United States were carri ed on a wire and many

8 domestic communications had increasingly become wireless. As a result of this change in

9 communications technology. the NSA 's collection from inside the United States of international

10 communications (previously carried primarily via radio transmission) had shrunk considerably

II and the Government was forced to prepare FISA applications if it wished to collect the

12 communications of non-U.S. persons located overseas. These circumstances presented a

13 significant concern in the exceptional circumstances after 9/ 11 .

14

2. Information Concerning Plaintiffs' Comm unications Rccords Collection

1.5

Allceations

16

17

42. Plaintiffs also allege that the NSA is collecting the private telephone and Internet

18 transaction records of millions of Americans, again including information concerning plaintiffs'

19 telephone and Internet communications. See, e.g., Jewel Complaint 7, 10, II, J3, 8, 13, 82-

20 97; see Shubert SAC 102. To address these allegations would ri sk or require disclosure of

21 NSA sources and methods and reasonably co uld be expected to cause excepti onally grave

22 damage to national security. While the Government has declassified the existence of the

23 telephony and Internet metadata collecti ons, and some information concerning those programs as

24 authorized by the FISC, significant operational details concerning these acti vities remain

2S properl y classified, incl uding the identity of communication providers who may have assisted in

Unclassified Declarat ion of Frances J. Fleisch, National Security Agency

2

Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

this collection, and other sources and method of collection and analysis. As set forth below and

2 in my classified declaration, disclosure of this infonnation reasonably could be expected to cause

3 grave damage to national security.

, 4

(a) Collection of Bulk Telepbony Metadata

6

43. As with the operational detail s concerning the NSA's collection of

7 communications content, I am supporting the DNI's state secrets privi lege assertion, and

8 asserting NSA's statutory privi lege, over still-classified infonnation that may relate to or be

9 necessary to litigate plaintiffs' claims as they relate to the alleged collection of te lephony

10 metadata.

11

44. The still classified operational details concerning the collection of telephony

12 metadata include, but are not necessarily limited to, whether metadata of plaintiffs ' telephone

13 comm unications were actually collected by the NSA from plaintiffs ' particu lar communications

14 providers; whether any metadata ofplaintifTs' telephone communications, if collected, were

IS viewed or analyzed by anyone at the NSA; infonnation demonstrating the scope of the telephony

16 metadata collection program; and infonnation demonstrating the need for and effectiveness of

17 the program

18

45. As set forth in this declaration, following the unauthorized di sclosure in June

19 2013 of one FISC order iss ued as part of the telephony metadata program, the Government

20 confinned the authenticity of one order, iss ued on April 25, 2013 , by the FISC to a particular

21 Verizon Communications subsidiary, Verizon Business Network Services (VBNS), thereby

22 confinning the participation ofVBNS in the program fo r the duration of that order

2] (approximately 90 days). This is the only FISC order identifying any particular provider under

24 this program that has been declassified. and since the disclosure of this order in June 2013, the

Unclassified Declaration of Frances J. Fleisch, National Security Agency

2

jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Oboma (07-cv-0693-JSW) (M:06-cv- 179 1)

United States has nol continned or denied the past or current participation of any specific

2 provider in the telephony metadata program apart from the participation of VBNS for the

3 approximately 90 day duration of the now·expired April 25, 2013, FISC order. As explained in

4 my classified declaration, the continued protection of whether or not, or to what extent, a
s particular telecommunications provider assisted the NSA under FISC order or otherwise remains

6 an extraordinarily sensitive and signi ficant matter that the Government continues to protect to

7 avoid even greater hann to national sec urity than has already occurred since June 2013.

8

46. (b) Inte rnet Metadata Co llection

9

47. J am also supporting the DNl's privilege assertion, and asserting the NSA ' s

10 statutory privilege, over still-classified operational details concerning the NSA's bulk collection

II of Internet metadata under presidential authorization .. Disclosure of these detail s, which are set

12 forth in my classified declaration, reasonably could be expected to cause exceptionally grave

1] damage to national security, for the reasons set forth in my classified deciaration.

I.

3. Informatio n Concerning Wbetber or Not Any Specific Carrier Provided

15

Assistance to tbe NSA

16

17

48. I am also s upporting the DNI' s state secrets privilege assert ion, and asserting

18 NSA's statutory pri vilege, over information relating to which carriers have assisted the NSA

19 under presidential authorization and other authorities. The Jewel plaintiffs and three of the

20 Shubert plaintiffs allege that they are customers of AT&T, and that AT&T participated in the

21 alleged intelligence-gathering activities that the plaintiffs seek to challenge. Additionally, at

22 least one Shubert plaintiff also ciaims to be a customer of Verizon, and that Verizon similarly

23 participated in the alleged intelligence-gathering activities that the plaintiffs seek to challenge.

24 The hann from officially acknowledging whether or not any specific carrier has assisted the NS

25 is significant, as set forth in my classified declaration, and continues to exist notwithstanding the

Unclassified Declaration of Frances J. Fleisch, National Security Agency

2

Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

recent official disclosures. While the Government has declassified some information concerning

2 the nature and scope of the programs described above and in my classified declaration --

3 including that it collects telephony and Internet metadata in bulk, from multiple

4 telecommunication providers -- and has also confirmed the authenticity of a single now-expired

5 FISC order issued to a single carrier that had been unlawfully disclosed, it has not otherwise

6 declassified information concerning the identities of companies that are or were subject to FISC

7 orders under NSA intelligence-gathering programs, or have otherwise assisted the NSA.

8

IV. CONCLUSION

9

49. The United States has an overwhelming interest in detecting and thwarting further

10 plots to perpetrate mass-casualty attacks by al Qaeda and other terrorist organizations. The

J1 United States has already suffered one massive attack that killed thousands, disrupted the

12 Nation's financial center for days, and successfully struck at the command and control center for

I ] the Nation's military. It remains a key objective ofal Qaeda and other terrorist groups to carry

14 out a massive attack in the United States that could result in a significant loss of life, as well as

IS have a devastating impact on the U.S. economy.

16

50. As set forth above, terrorist organizations around the world seek to use our own

17 communications infrastructure against us as they secretly attempt to infiltrate agents into the

18 United States, waiting to attack at a time of their choosing. One of the greatest challenges the

19 United States confronts in the ongoing effort to prevent another catastrophic terrorist attack

20 against the U.S. Homeland is the critical need to gather intelligence quickly and effectively.

21 Time is of the essence in preventing terrorist attacks, and the Government faces significant

22 obstacles in finding and tracking terrorist operatives as they manipulate modem technology in an

23 attempt to communicate while remaining undetected. The NSA sources, methods, and activities

24 described herein are vital tool s in this effort.

Unclassified Declaration of Frances J. Fleisch, National Security Agency

2

Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Oboma (07-cv-0693-JSW) (M:06-cv- 1791)

51. For the foregoing reasons, I support the DNJ ' s assertion of the state secrets

2 privilege and statutory privilege to prevent the disclosure of the information described herein and

3 detailed herein. 1also assert a statutory privilege under Section 6 of the National Security Act

.. with respect to the information described herein which concerns the funclions of the NSA. 5 respectfull y request that the Court protect that infonnation frol11 disclosure to prevent

6 exceptionally grave damage to the national security of the United States.

7
I declare under penalty of perjury that the foregoing is true and correct.

9

10

DATE: 1';/. dO. 13

11

"

IJ

..J.JUL-M..·£J
Frances J. Fleisch National Security Agency

Unclassified Declaration of Frances J. Fleisch, National Security Agency

3

Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

 
 Case4:08-cv-04373-JSW Document321 Filed02/10/15 Page1 of 10

United States District Court For the Northern District of California

1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5 FOR THE NORTHERN DISTRICT OF CALIFORNIA
6

7 CAROLYN JEWEL, ET AL.,

8

Plaintiffs,

No. C 08-04373 JSW

9 v.

10 NATIONAL SECURITY AGENCY, ET AL.,

11

Defendants.

12 13 VIRGINIA SHUBERT, ET AL.,

No. C 07-00693 JSW

14

Plaintiffs,

15 v.

16 BARACK OBAMA, ET AL.,

17

Defendants.

18

ORDER DENYING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
/

19

Now before the Court is the motion filed by Plaintiffs Carolyn Jewel, Erik Knutzen, and

20 Joice Walton, on behalf of themselves and all other individuals similarly situated (“Plaintiffs”)

21 for partial summary judgment on their claim for relief which challenges the interception of their

22 Internet communications as a violation of the Fourth Amendment (“Fourth Amendment Claim”

23 or “Claim”). Also before the Court is the cross-motion for partial summary judgment on

24 Plaintiffs’ Fourth Amendment Claim filed by Defendants National Security Agency, United

25 States Department of Justice, Barack H. Obama, Michael S. Rogers, Eric H. Holder, Jr., and

26 James R. Clapper, Jr. (in their official capacities) (collectively, “Government Defendants”).

27

Having considered the parties’ papers, including the Government Defendants’ classified

28 brief and classified declarations, and the parties’ arguments, the Court DENIES Plaintiffs’

Case4:08-cv-04373-JSW Document321 Filed02/10/15 Page2 of 10

United States District Court For the Northern District of California

1 motion for partial summary judgment and GRANTS the Government Defendants’ cross-motion

2 for partial summary judgment.1

3

The issues raised by the pending motions and additional briefing now before the Court

4 compel the Court to examine serious issues, namely national security and the preservation of the

5 rights and liberties guaranteed by the United States Constitution. The Court finds the

6 predicament delicate and the resolution must strike a balance of those significant competing

7 interests.

8

Based on the public record, the Court finds that the Plaintiffs have failed to establish a

9 sufficient factual basis to find they have standing to sue under the Fourth Amendment regarding

10 the possible interception of their Internet communications. Further, having reviewed the

11 Government Defendants’ classified submissions, the Court finds that the Claim must be

12 dismissed because even if Plaintiffs could establish standing, a potential Fourth Amendment

13 Claim would have to be dismissed on the basis that any possible defenses would require

14 impermissible disclosure of state secret information.

15

BACKGROUND

16

Plaintiffs allege that as part of a system of mass surveillance, the Government

17 Defendants receive copies of their Internet communications, then filter the universe of collected

18 communications in an attempt to remove wholly domestic communications, and then search the

19 remaining communications for search terms called “selectors” for potentially terrorist-related

20 foreign intelligence information.

21

The Government has described the collection of communications pursuant to Section

22 702 of the Foreign Intelligence Surveillance Act (“Section 702”) in several public reports.

23 Upon approval by the Foreign Intelligence Surveillance Court of a certification under Section

24 702, NSA analysts identify non-U.S. persons located outside the United States who are

25 reasonably believed to possess or receive, or are likely to communicate, foreign intelligence

26 information designated in the certification. (See, e.g., NSA Civil Liberties and Privacy Office

27 1 Having not relied on Plaintiffs’ proposed order submitted after the hearing on the
28 motions, the Court DENIES Defendants’ motion to strike it.

2

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United States District Court For the Northern District of California

1 Report, NSA’s Implementation of FISA Section 702 at 4 (Apr. 16, 2014) (“Civil Liberties

2 Report”)). Once designated by the NSA as a target, the NSA tries to identify a specific means

3 by which the target communicates, such as an e-mail address or telephone number. That

4 identifier is referred to a “selector.” Selectors are only specific communications accounts,

5 addresses, or identifiers. (See id; see also Privacy and Civil Liberties Oversight Board Report

6 on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence

7 Surveillance Act (“PCLOB Report”) at 32-33, 36.) According to the Government’s admissions,

8 an electronic communications service provider may then be compelled to provide the

9 Government with all information necessary to acquire communications associated with the

10 selector, a process called “tasking.” (Id. at 32-33; see also Civil Liberties Report at 4-5.)

11

One process by which the NSA obtains information related to the tasked selectors is

12 known as the Upstream collection program. Through a Section 702 directive, this program

13 compels the assistance of the providers that control the telecommunications backbone within

14 the United States. (See PCLOB Report at 35.) Under the Upstream collection program, tasked

15 selectors are sent to domestic electronic communications service providers to acquire

16 communications that transit the Internet backbone. (See id. at 36-37.) Internet communications

17 are filtered in an effort to remove all purely domestic communications, and are then scanned to

18 capture only those communications containing the designated tasked selectors. (Id. at 37.)

19 “Unless [communications] pass both these screens, they are not ingested into governmental

20 databases.” (Id.)

21

Plaintiffs contend that the copying and searching of their private Internet

22 communications is conducted without a warrant or any individualized suspicion and,

23 accordingly, violates the Fourth Amendment. The Fourth Amendment prohibits the

24 Government from intercepting, copying, or searching through communications without a

25 warrant issued by a neutral and detached magistrate, upon probable cause, particularly

26 describing the place to be searched and the things to be seized. Judicial warrants based on

27 particularity and probable cause are especially crucial in electronic surveillance, where searches

28

3

Case4:08-cv-04373-JSW Document321 Filed02/10/15 Page4 of 10

United States District Court For the Northern District of California

1 and seizures occur without leaving a trace and where the threat to privacy is especially great.

2 United States v. U.S. District Court (Keith), 407 U.S. 297, 313 (1972).

3

In their motion for partial summary judgment, Plaintiffs seek adjudication as to their

4 Fourth Amendment Claim with regard only to the NSA’s acknowledged Upstream collection of

5 communications pursuant to Section 702. The Government Defendants contend that Plaintiffs’

6 evidence is insufficient to establish standing, and that even assuming standing, either there can

7 be no Fourth Amendment violation on the facts in the record as a matter of law, or alternatively,

8 that the state secrets privilege requires dismissal of Plaintiffs’ Fourth Amendment Internet

9 surveillance claim.

10

The Court shall address other additional specific facts as necessary in the remainder of

11 this Order.

12

ANALYSIS

13 A. Summary Judgment Standard.

14

Summary judgment is appropriate when the record demonstrates “that there is no

15 genuine issue as to any material fact and that the moving party is entitled to judgment as a

16 matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” if there is sufficient evidence for a

17 reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477

18 U.S. 242, 248-49 (1986). “[A]t the summary judgment stage the judge’s function is not . . . to

19 weigh the evidence and determine the truth of the matter but to determine whether there is a

20 genuine issue for trial.” Id. at 249. A fact is “material” if it may affect the outcome of the case.

21 Id. at 248. The party moving for summary judgment bears the initial responsibility of

22 identifying those portions of the record which demonstrate the absence of a genuine issue of a

23 material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

24

Once the moving party meets this initial burden, the non-moving party “may not rest

25 upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s

26 response, by affidavits or as otherwise provided in this rule, must set forth specific facts

27 showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). In the absence of such

28

4

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United States District Court For the Northern District of California

1 facts, “the moving party is entitled to a judgment as a matter of law.” Celotex, 477 U.S. at 323;

2 see also Keenan, 91 F.3d at 1279.

3 B. Standing.

4

Defendants contend that Plaintiffs have not submitted evidence sufficient to establish

5 that they have standing to challenge the alleged ongoing collection of communications by the

6 NSA. As Defendants admit, the Government has acknowledged the existence of the Upstream

7 collection process which involves the collection of certain communications as they transit the

8 Internet backbone network of telecommunications service providers. However, the technical

9 details of the collections process remain classified.

10

In order to prevail on their motion for summary judgment, Plaintiffs must support each

11 element of their claim, including standing, “with the manner and degree of evidence required at

12 the successive stages of the litigation.” Bras v. Cal. Pub. Utils. Comm’n, 59 F.3d 869, 872 (9th

13 Cir. 1995) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Plaintiffs must

14 proffer admissible evidence establishing both their standing as well as the merits of their claims.

15 See Fed. R. Civ. P. 56(c); see also In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385 (9th Cir.

16 2010) (holding that the court’s ruling on summary judgment must be based only on admissible

17 evidence). If Plaintiffs are unable to make a showing sufficient to establish an essential element

18 of their claim on which they bear the burden at trial, summary judgment must be granted against

19 them. See Celotex Corp., 477 U.S. at 322.

20

“To establish Article III Standing, an injury must be ‘concrete, particularized, and actual

21 or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’”

22 Clapper v. Amnesty International USA, --- U.S. --- , 133 S. Ct. 1138, 1147 (2013) (quoting

23 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010)). “Although imminence is

24 concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to

25 ensure that the alleged injury is not too speculative for Article III purposes – that the injury is

26 certainly impending.” Id. (citing Lujan, 504 U.S. at 565 n.2) (emphasis in original). Thus, the

27 Supreme Court has “repeatedly reiterated that ‘the threatened injury must be certainly

28 impending to constitute injury in fact,’ and that ‘[a]llegations of possible future injury’ are not

5

Case4:08-cv-04373-JSW Document321 Filed02/10/15 Page6 of 10

United States District Court For the Northern District of California

1 sufficient.” Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (emphasis in

2 original)).

3

In Clapper, the Court found that allegations that plaintiffs’ communications were

4 intercepted were too speculative, attenuated, and indirect to establish injury in fact that was

5 fairly traceable to the governmental surveillance activities. Id. at 1147-50. The Clapper Court

6 held that plaintiffs lacked standing to challenge NSA surveillance under FISA because their

7 “highly speculative fear” that they would be targeted by surveillance relied on a “speculative

8 chain of possibilities” insufficient to establish a “certainly impending” injury. Id.

9

Here, Plaintiffs have sufficiently demonstrated that they are AT&T customers. (See

10 Declaration of Carolyn Jewel at ¶¶ 2-5; Declaration of Erik Knutzen at ¶¶ 2-6; Declaration of

11 Joice Walton at ¶¶ 2-6.) In addition, Plaintiffs allege that, as AT&T customers, all of their

12 Internet communications have been collected and amassed in storage. See Hepting v. AT&T

13 Corp., 439 F. Supp. 2d 974, 991-92 (N.D. Cal. 2006) (“AT&T and the government have for all

14 practical purposes already disclosed that AT&T assists the government in monitoring

15 communication content.”). The record suggests that AT&T currently aids the Government in

16 the collection of information transported over the Internet. (See AT&T Transparency Report

17 dated 2014.) If the governmental program is sufficiently large and encompassing to include the

18 mass collection of all Internet communications, the question of whether any specific

19 communication was specifically targeted is not the relevant inquiry. See Klayman v. Clapper,

20 957 F. Supp. 2d 1, 26-28 (D.D.C. 2013) (granting standing to individual plaintiffs to challenge

21 NSA collection of their telephone records from Verizon after finding “strong evidence” that

22 NSA collected Verizon metadata for the last seven years and ran queries that necessarily

23 analyzed that data); see also Smith v. Obama, 24 F. Supp. 3d 1005, 1007 n.2 (D. Idaho 2014)

24 (finding that plaintiff, a Verizon customer, had standing to bring an action based on collection

25 of telephone metadata). “As FISC Judge Eagan noted, the collection of virtually all telephony

26 metadata is ‘necessary’ to permit the NSA, not the FBI, to do the algorithmic data analysis that

27 allow the NSA to determine ‘connections between known and unknown international terrorist

28 operatives.’” ACLU v. Clapper, 959 F. Supp. 2d 724, 746 (S.D.N.Y. 2013) (citing In re

6

Case4:08-cv-04373-JSW Document321 Filed02/10/15 Page7 of 10

United States District Court For the Northern District of California

1 Application of the Fed. Bureau of Investigation for an Order Requiring the Prod. of Tangible

2 Things from [REDACTED], amended clip op. at 22-23); see also id. at 748 (“[A]ggregated

3 telephony metadata is relevant because it allows the querying technique to be comprehensive. . .

4 . Armed with all the metadata, NSA can draw connections it might otherwise never be able to

5 find.”).

6

The creation of a large surveillance program designed to “intercept all or substantially

7 all of its customers’ communications, . . . necessarily inflicts a concrete injury that affects each

8 customer in a distinct way, depending on the content of that customer’s communications and the

9 time that customer spends using AT&T services.” Hepting, 439 F. Supp. 2d at 1001. In this

10 matter, the Ninth Circuit has held that although the harm alleged by Plaintiffs is widely shared,

11 that does not necessarily render it a generalized grievance. See Jewel v. Nat’l Sec. Agency, 783

12 F.3d 902, 909-10 (9th Cir. 2011) (“[W]e conclude that Jewel alleged a sufficiently concrete and

13 particularized injury, Jewel’s allegations are highly specific and lay out concrete harms arising

14 from the warrantless searches.”). Accordingly, the Court finds that, as Plaintiffs have provided

15 evidence that they are AT&T customers who send Internet communications, they have crossed

16 the threshold requirement to establish that, should the program work as alleged, their

17 communications would be captured in a dragnet Internet collection program.

18

However, the question whether Plaintiffs can establish standing to pursue their Fourth

19 Amendment claim against the Government Defendants for constitutional violations goes beyond

20 whether they, as individuals and AT&T customers with Internet communications, can proffer

21 evidence of generalized surveillance of Internet communications. Although the public and

22 admissible evidence presented establishes that Plaintiffs are indeed AT&T customers with

23 Internet communications and would fall into the class of individuals surveilled, the evidence at

24 summary judgment is insufficient to establish that the Upstream collection process operates in

25 the manner in which Plaintiffs allege it does.

26

In their attempt to establish the factual foundation for their standing to sue on their

27 Fourth Amendment Claim, Plaintiffs rely in large part on the declarations of Mark Klein and

28 their proffered expert, J. Scott Marcus, as well as other former AT&T and NSA employees to

7

Case4:08-cv-04373-JSW Document321 Filed02/10/15 Page8 of 10

United States District Court For the Northern District of California

1 present the relevant operational details of the surveillance program. Plaintiffs assert that the

2 declarations support the contention that all AT&T customers’ Internet communications are

3 currently the subject of a dragnet seizure and search program, controlled by or at the direction

4 of the Government. However, having reviewed the record in its entirety, the Court finds the

5 Plaintiffs’ evidence does not support this claim.

6

Plaintiffs principally rely on the declaration of Klein, a former AT&T technician who

7 executed a declaration in 2006 about his knowledge and perceptions about the creation of a

8 secure room at the AT&T facility at Folsom Street in San Francisco. However, the Court finds

9 that Klein cannot establish the content, function, or purpose of the secure room at the AT&T

10 site based on his own independent knowledge. See Fed. R. Civ. P. 56(c)(4). The limited

11 knowledge that Klein does possess firsthand does not support Plaintiffs’ contention about the

12 actual operation of the Upstream data collection process. Klein can only speculate about what

13 data were actually processed and by whom in the secure room and how and for what purpose, as

14 he was never involved in its operation. In addition, Plaintiffs’ expert, Marcus, relies exclusively

15 on the observations and assumptions by Klein to formulate his expert opinion. Accordingly, his

16 testimony about the purpose and function of the secure equipment at AT&T and assumed

17 operational details of the program is not probative as it not based on sufficient facts or data. See

18 Fed. R. Evid. 702(b). The Court finds that Plaintiffs have failed to proffer sufficient admissible

19 evidence to support standing on their claim for a Fourth Amendment violation of interference

20 with their Internet communications. In addition, without disclosing any of the classified content

21 of the Government Defendants’ submissions, the Court can confirm that the Plaintiffs’ version

22 of the significant operational details of the Upstream collection process is substantially

23 inaccurate.

24

In addition, having reviewed the classified portion of the record, the Court concludes

25 that even if the public evidence proffered by Plaintiffs were sufficiently probative on the

26 question of standing, adjudication of the standing issue could not proceed without risking

27 exceptionally grave damage to national security. The details of the Upstream collection process

28 that are subject the Government’s assertion of the state secrets privilege are necessary to

8

Case4:08-cv-04373-JSW Document321 Filed02/10/15 Page9 of 10

United States District Court For the Northern District of California

1 address the defenses against Plaintiffs’ theory of standing as well as to engage in a full and fair

2 adjudication of Government Defendants’ substantive defenses against the Claim. The Court has

3 reviewed the classified brief submitted by the Government and finds that its legal defenses are

4 persuasive, and must remain classified.

5

Disclosure of this classified information would risk informing adversaries of the specific

6 nature and operational details of the Upstream collection process and the scope of the NSA’s

7 participation in the program. Notwithstanding the unauthorized public disclosures made in the

8 recent past and the Government’s subsequent releases of previously classified information about

9 certain NSA intelligence gathering activities since 2013, the Court notes that substantial details

10 about the challenged program remain classified. The question of whether Plaintiffs have

11 standing and the substantive issue of whether there are Fourth Amendment violations cannot be

12 litigated without impinging on that heightened security classification. Because a fair and full

13 adjudication of the Government Defendants’ defenses would require harmful disclosures of

14 national security information that is protected by the state secrets privilege, the Court must

15 exclude such evidence from the case. See Mohamed v. Jeppesen DataPlan, Inc., 614 F.3d 1070,

16 1083 (9th Cir. 2010) (holding that “application of the privilege may require dismissal” of a

17 claim if, for example, “the privilege deprives the plaintiff of information needed to set forth a

18 prima facie case, or the defendant of information that would otherwise give the defendant a

19 valid defense to the claim”). Addressing any defenses involves a significant risk of potentially

20 harmful effects any disclosures could have on national security. See Kasza v. Browner, 133

21 F.3d 1159, 1166 (9th Cir. 1998).

22

The Court is frustrated by the prospect of deciding the current motions without full

23 public disclosure of the Court’s analysis and reasoning. However, it is a necessary by-product

24 of the types of concerns raised by this case. Although partially not accessible to the Plaintiffs or

25 the public, the record contains the full materials reviewed by the Court. The Court is persuaded

26 that its decision is correct both legally and factually and furthermore is required by the interests

27 of national security.

28

9

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United States District Court For the Northern District of California

1

CONCLUSION

2

For the foregoing reasons, the Court DENIES Plaintiffs’ motion for partial summary

3 judgment and GRANTS the Government Defendants’ cross-motion for partial summary

4 judgment regarding the allegations of Fourth Amendment violations challenging the possible

5 interception of Plaintiffs’ Internet communications.

6

IT IS SO ORDERED.

7 Dated: February 10, 2015
8
9

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

10

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14

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10

 
 Case3:08-cv-04373-JSW Document167 Filed12/20/13 Page1 of 15

STUART F. DELERY Assistant Attorney General JOSEPH H. HUNT Director, Federal Programs Branch ANTHONY J. COPPOLINO Deputy Branch Director JAMES J. GILLIGAN Special Litigation Counsel MARCIA BERMAN Senior Trial Counsel marcia.berman@usdoj.gov BRYAN DEARINGER Trial Attorney RODNEY PATTON Trial Attorney U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, NW, Rm. 7132 Washington, D.C. 20001 Phone: (202) 514-2205; Fax: (202) 616-8470

Attorneys for the Government Defendants

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

_______________________________________

)

CAROLYN JEWEL, et al.,

)

Case No. C-08-4373-JSW

)

Plaintiffs,

)

)

v.

)

)

NATIONAL SECURITY AGENCY, et al., )

)

Defendants.

)

_______________________________________)

)

VIRGINIA SHUBERT, et al.,

)

Case No. C-07-0693-JSW

)

Plaintiffs,

)

GOVERNMENT DEFENDANTS’

)

SUPPLEMENTAL BRIEF ON

v.

)

THRESHOLD LEGAL ISSUES

)

AS ORDERED BY THE COURT

BARACK OBAMA, President of the

)

AT THE SEPTEMBER 27, 2013,

United States, et al.

)

STATUS CONFERENCE

)

Defendants.

)

_______________________________________)

No Hearing Scheduled Courtroom 11 – 19th Floor

Judge Jeffrey S. White

Gov’t Defs.’ Supp. Br. on Threshold Legal Issues Jewel v. Nat’l Security Agency, No. C-08-4373-JSW; Shubert v. Obama, No. C-07-0693-JSW

Case3:08-cv-04373-JSW Document167 Filed12/20/13 Page2 of 15

INTRODUCTION At the conclusion of its July 28, 2013, ruling on the Government Defendants’ motion to dismiss and for summary judgment, and Plaintiffs’ cross-motion for partial summary judgment, the Court ordered the parties to provide supplemental briefing on a number of threshold legal issues, and further refined the statement of those issues at the September 27, 2013 case management conference. As directed by the Court, Government Defendants submit this brief on the following issues: (1) whether section 1806(f) of the Foreign Intelligence Surveillance Act (“FISA”) preempts the application of the state secrets privilege to Plaintiffs’ constitutional claims; (2) whether the Court must follow section 1806(f)’s procedural mechanisms when adjudicating Plaintiffs’ constitutional claims; and (3) the impact of recent disclosures about National Security Agency (“NSA”) intelligence-gathering activities on the Government Defendants’ assertion of the risks to national security presented by this case. As to the first issue, while the Government Defendants do not believe that FISA displaces the state secrets privilege as to any of Plaintiffs’ claims, the Government does not contest that the reasoning by which the Court concluded that section 1806(f) preempts application of the privilege to Plaintiffs’ statutory claims would apply equally to Plaintiffs’ constitutional claims. The Government Defendants’ position on the second issue is that, as to Plaintiffs’ remaining statutory and constitutional claims, the provisions of section 1806(f) apply only if Plaintiffs can first demonstrate, without the benefit of national security information over which the Government has asserted the state secrets privilege, that they are “aggrieved persons” challenging allegedly unlawful “electronic surveillance”—requirements imposed by the terms of section 1806(f) itself. In addition, even if these pre-requisites are met, the Court should treat section 1806(f), according to its terms, as a tool made available to the Attorney General, to be invoked at his discretion, allowing the Government to seek ex parte consideration of classified information where production of surveillance information sought by a plaintiff “would harm the national security of the United States.” Id. § 1806(f). In no event should the Court, even if proceeding under section 1806(f), risk or require disclosures of classified information that could be harmful to national security.

Gov’t Defs.’ Supp. Br. on Threshold Legal Issues

Jewel v. Nat’l Security Agency, No. C-08-4373-JSW; Shubert v. Obama, No. C-07-0693-JSW

2

Case3:08-cv-04373-JSW Document167 Filed12/20/13 Page3 of 15

Regarding the third issue, the Director of National Intelligence (“DNI”) has announced the declassification of the existence of certain NSA intelligence-gathering activities, authorized by President George W. Bush beginning in October 2001, that are at issue in this litigation. The Government Defendants had previously asserted the state secrets privilege in this litigation over the existence of those activities under presidential authorization, as well as the subsequent transition of these activities to the supervision of the Foreign Intelligence Surveillance Court (FISC). As explained in the accompanying Public Declaration of James R. Clapper, Director of National Intelligence (“Public DNI Decl.”), the Government continues to protect certain stillclassified information about these activities in order to protect sensitive intelligence sources and methods, such as particular targets and subjects of surveillance, methods of collecting and analyzing intelligence information, and whether particular telecommunications carriers have assisted the NSA in intelligence activities.1
PROCEDURAL BACKGROUND Plaintiffs in these cases allege that following the September 11, 2001, attacks the NSA, acting under authority of then-President Bush, undertook indiscriminate warrantless surveillance of domestic communications and that this alleged “dragnet” surveillance encompassed collection

1 The Government’s privilege assertion has been reviewed and approved pursuant to the Attorney General’s 2009 policy concerning the defense of state secrets privilege assertions by the Department of Justice. Under that policy, the Department of Justice will defend an assertion of the state secrets privilege in litigation only when “necessary to protect against the risk of significant harm to national security.” Policies and Procedures Governing Invocation of the State Secrets Privilege at 1, available at http://www.justice.gov/opa/documents/state-secretprivileges.pdf. Moreover, “[t]he Department will not defend an invocation of the privilege in order to: (i) conceal violations of the law, inefficiency, or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the United States government; (iii) restrain competition; or (iv) prevent or delay the release of information the release of which would not reasonably be expected to cause significant harm to national security.” Id. at 2. The Attorney General’s policy also establishes detailed internal procedures for review of a proposed assertion of the state secrets privilege in a particular case. Those procedures require submissions by the relevant government departments or agencies specifying “(i) the nature of the information that must be protected from unauthorized disclosure; (ii) the significant harm to national security that disclosure can reasonably be expected to cause; [and] (iii) the reason why unauthorized disclosure is reasonably likely to cause such harm.” Id. The Department will defend an assertion of the privilege in court only with the personal approval of the Attorney General following review and recommendations from senior Department officials. Id. at 3.

Gov’t Defs.’ Supp. Br. on Threshold Legal Issues

Jewel v. Nat’l Security Agency, No. C-08-4373-JSW; Shubert v. Obama, No. C-07-0693-JSW

3

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of both the content of telephone and Internet communications as well the communication records of millions of Americans. See, e.g., Jewel Complaint ¶ 1, 7; see also id. ¶¶ 9-11; 73-75; 82-97. Plaintiffs claim that the alleged warrantless surveillance remains ongoing today, in violation then and now of their Constitutional rights, and federal statutes. On September 12, 2012, the Government moved to dismiss or for summary judgment on all of Plaintiffs’ claims, asserting that sovereign immunity barred litigation of Plaintiffs’ statutory claims, and that the state secrets privilege required dismissal of the case in its entirety because attempting to litigate the matter to a judgment on the merits would present an unacceptable risk of disclosing state secrets. See ECF No. 102. The Government’s privilege assertion encompassed (i) information concerning the specific nature of the terrorist threat posed by al Qa’ida and its affiliates and other threats to the United States; (ii) information necessary to adjudicate Plaintiffs’ claims about alleged “dragnet” surveillance programs involving bulk collection of communications content and of telephony and Internet non-content information about communications (i.e., metadata); (iii) information that may tend to confirm or deny whether Plaintiffs have personally been subject to the collection of their communications content or records; and (iv) other information concerning NSA intelligence activities, sources, or methods necessary to adjudicate Plaintiffs’ allegations that their particular alleged telecommunications providers have assisted the NSA as part of the challenged programs.
Plaintiffs cross-moved for partial summary judgment on the ground that the state secrets privilege is assertedly preempted by the procedure prescribed in FISA section 106, 50 U.S.C. § 1806(f) of the FISA, see ECF Nos. 83, 112, and the Court heard argument on the motions on December 14, 2012. On July 8, 2013, the Court issued a decision and order on the parties’ cross motions, reaching several conclusions therein, followed by an Amended Order on July 23, 2013 (“Amended Order”). ECF Nos. 148, 153.
First, the Court reviewed the Government’s assertion of the state secrets privilege and concluded that the Government had properly invoked the privilege “with regard to significant evidence tending to confirm or negate the factual allegations in Plaintiffs’ complaints.” Amended Order at 11. The Court held, however, that section 1806(f) preempts application of the state secrets privilege in these cases. See id. at 12-15. Turning to Plaintiffs’ claims individually,

Gov’t Defs.’ Supp. Br. on Threshold Legal Issues

Jewel v. Nat’l Security Agency, No. C-08-4373-JSW; Shubert v. Obama, No. C-07-0693-JSW

4

Case3:08-cv-04373-JSW Document167 Filed12/20/13 Page5 of 15

the Court dismissed all of Plaintiffs’ FISA claims for lack of a waiver of sovereign immunity.
Id. at 15-16. It also dismissed Plaintiffs’ other statutory claims for injunctive relief, again
finding no applicable waive of sovereign immunity, but concluded that sovereign immunity had
been waived for Plaintiffs’ money damages claims under the Wiretap Act and the Stored
Communications Act. Id. at 16-24. The Court reserved ruling on the Government’s motion with respect to Plaintiffs’ constitutional claims, and ordered further briefing by the parties. Id. at 24.2
Specifically, the Court stated that it would require further briefing regarding the scope of FISA
preemption on Plaintiffs’ constitutional claims, and the impact of recent disclosures about the
NSA’s telephony metadata program on the Government’s assertion of the risk to national
security of litigating Plaintiffs’ claims in this case. Id. at 24-25.
Following the ruling in its Amended Order the Court held a status conference at which it
refined the list of issues requiring further briefing, identifying four questions on which it wished
to hear from the parties in order to resolve the “important threshold legal issues” in these cases.
Transcript of Proceedings dated September 17, 2013 (“Tr.”) at 5. These questions are:
1. Whether FISA preempts the application of the state secrets privilege to Plaintiffs’ constitutional claims;
2. Whether the Court must follow FISA’s procedural mechanisms when adjudicating the Plaintiffs’ constitutional claims;
3. Assuming the state secrets privilege does not bar Plaintiffs’ constitutional claims, and that 50 U.S.C. § 1806(f) does not bar Plaintiffs’ constitutional claims, and that § 1806(f) provides the mechanism for review of submitted materials, whether Plaintiffs can carry their burden of establishing standing to sue “without resulting in impermissible damage to ongoing national security efforts,” citing Clapper v. Amnesty International USA, 133 S. Ct. 1138, 1149 n.4 (2013); and
4. The impact of ongoing disclosures and declassification of the materials involving the Government’s continuing surveillance activities on the Government Defendants’ assertion of the risks to national security presented by this case.
See Tr. at 6-7.

2 The Court has also stayed the claims against the personal capacity defendants, pursuant to the parties’ stipulation. ECF No. 161 (Am. Minute Order of Sept. 27, 2013).

Gov’t Defs.’ Supp. Br. on Threshold Legal Issues

Jewel v. Nat’l Security Agency, No. C-08-4373-JSW; Shubert v. Obama, No. C-07-0693-JSW

5

Case3:08-cv-04373-JSW Document167 Filed12/20/13 Page6 of 15

In accordance with the briefing schedule adopted by the Court at the September 17, 2013, status conference, see Amended Civil Minute Order, ECF No. 161, the Government Defendants address issues 1, 2, and 4 below.3
DISCUSSION

A. The Government Defendants Do Not Contest That the Rationale of the Court’s Ruling on FISA Preemption of the State Secrets Privilege Would Apply Equally to Plaintiffs’ Statutory and Constitutional Claims.
As to the first question on which the Court directed further briefing—whether FISA preempts application of the state secrets privilege to Plaintiffs’ constitutional claims—the position of the Government Defendants is that while they do not believe that FISA displaces the state secrets privilege as to any of Plaintiffs’ claims, the Government does not contend that the reasoning by which the Court concluded that section 1806(f) preempts application of the privilege would apply solely to Plaintiffs’ statutory claims and not to their constitutional claims.
In its Amended Order, the Court concluded that FISA section 1806(f) displaces the state secrets privilege in cases challenging the legality of electronic surveillance, providing ex parte procedures “under which courts can consider national security evidence that the application of the state secrets privilege would otherwise summarily exclude.” Amended Order at 12. The Court reasoned that under the terms of the statute as the Court construed them, section 1806(f) is the “exclusive procedure for reviewing sensitive surveillance materials gathered by the Executive under FISA and other surveillance statutes,” and that the legislative history reflected, in the Court’s view, a purpose on Congress’s part “to formulate a balanced legislative solution to the national security problems raised in litigation over possibly unlawful executive surveillance programs. Id. at 13-14. The Court concluded that by enacting section 1806(f) Congress intended “to displace federal common law rules such as the state secrets privilege with regard to matters

3 The Court also directed the Government Defendants to review their prior ex parte submissions of classified information in support of past assertions of the state secrets privilege in these cases, to determine the extent to which these materials, in light of recent disclosures about NSA intelligence programs, can be placed on the public record of this litigation. Tr. at 8-9. In accordance with the Court’s instructions, the Government Defendants have prepared unclassified (redacted) versions of the classified DNI and NSA declarations submitted by the Government Defendants in support of their assertions of the state secrets privilege in 2007, 2009, and 2012, and filed them herewith.

Gov’t Defs.’ Supp. Br. on Threshold Legal Issues

Jewel v. Nat’l Security Agency, No. C-08-4373-JSW; Shubert v. Obama, No. C-07-0693-JSW

6

Case3:08-cv-04373-JSW Document167 Filed12/20/13 Page7 of 15

within FISA’s purview” and “‘occupy the field through the establishment of a comprehensive regulatory program.’” Id. (quoting City of Milwaukee v. Illinois, 451 U.S. 304, 317 (1981)).
The Court directed the Government Defendants not to reargue their position to the contrary, and so they briefly note that they respectfully continue to disagree with the Court’s analysis of this issue, and maintain that section 1806(f) does not displace the state secrets privilege as to either Plaintiffs’ statutory or constitutional claims, because section 1806(f) does not speak clearly and directly to the application of the common law—the state secrets doctrine— in cases of this kind. See City of Milwaukee, 451 U.S. at 315; Kasza v. Browner, 133 F.3d 1159, 1167 (9th Cir. 1998). Likewise, nothing in FISA’s text or legislative history provides any indication that Congress intended to override the Executive’s long-recognized and constitutionally based ability to assert the state secrets privilege in litigation, or to override the process for doing so established by the Supreme Court in United States v. Reynolds, 345 U.S. 1 (1953). See generally Gov’t Defs.’ Second Mot. To Dismiss and for Summ. Judg., at 29-42 (ECF No. 102). The Government Defendants respectfully reserve their right to contest the Court’s ruling on this issue as may later be necessary and appropriate.
That said, however, the Government Defendants see nothing in the Court’s preemption analysis that distinguishes between claims challenging the lawfulness of electronic surveillance under statute, and claims based on the Constitution. Accordingly, the Government Defendants do not contest that the Court’s analysis of the preemption issue would lead to the same result for Plaintiffs’ constitutional claims as it does for their statutory claims.
B. Even Under the Court’s Reading, the Provisions of Section 1806(f) Apply Only if Plaintiffs Can First Prove That They Are “Aggrieved Persons” Challenging “Electronic Surveillance,” and Can Litigate Their Claims Without Risking Harm to National Security.
The second question posed by the Court is whether the Court must follow the procedural mechanisms of section 1806(f) when adjudicating the Plaintiffs’ constitutional claims. Again, because the reasoning underlying the Court’s ruling on FISA preemption would apply equally to Plaintiffs’ constitutional and statutory claims, so too does the answer to this question. The answer, in short, is that unless and only to the extent that Plaintiffs can first demonstrate—

Gov’t Defs.’ Supp. Br. on Threshold Legal Issues

Jewel v. Nat’l Security Agency, No. C-08-4373-JSW; Shubert v. Obama, No. C-07-0693-JSW

7

Case3:08-cv-04373-JSW Document167 Filed12/20/13 Page8 of 15

without the benefit of national security information over which the DNI has asserted privilege— that they are “aggrieved persons” challenging the lawfulness of “electronic surveillance,” the provisions of section 1806(f) do not apply. Moreover, even if Plaintiffs overcame this two-prong hurdle, which is erected by the express terms of section 1806(f) itself, then the procedures established under section 1806(f) for ex parte review of sensitive national security information would only come into play if the Attorney General, in his discretion, chooses to invoke the provision in the face of a motion by Plaintiffs seeking discovery of such information. Furthermore, even under the procedures allowed by section 1806(f), the Court must in all events protect against disclosures of classified information that could place national security at risk.
As pertinent here, section 1806(f) authorizes procedures for the in camera, ex parte review of information to determine the lawfulness of FISA surveillance
whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter. 50 U.S.C. § 1806(f) (emphasis added). FISA defines an “aggrieved” person as “a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.” Id. § 1801(k). “Electronic surveillance” is defined, as pertinent here, as the acquisition of the contents of wire and/or radio communications, under various specified circumstances, “by an electronic, mechanical, or other surveillance device.” Id. § 1801(f)(1)-(3).4 When faced with a motion “made by an aggrieved person … to discover or obtain … materials relating to electronic surveillance,” the Attorney General may file an affidavit attesting that “disclosure … would harm the national security of the United States.” Id. § 1806(f). Upon that occasion, section 1806(f) authorizes the court to “review in camera … [the] materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” Id.

4 FISA defines the “contents” of communications as “any information concerning the identity of the parties” to a communication “or the existence, substance, purport, or meaning of [the] communication.” 50 U.S.C. § 1801(n).

Gov’t Defs.’ Supp. Br. on Threshold Legal Issues

Jewel v. Nat’l Security Agency, No. C-08-4373-JSW; Shubert v. Obama, No. C-07-0693-JSW

8

Case3:08-cv-04373-JSW Document167 Filed12/20/13 Page9 of 15

Even assuming that “‘FISA preempts or displaces the state secrets privilege,’” it does so “‘only in cases within the reach of its provisions,’” as the Court has recognized. Amended Order at 15 (quoting In re NSA Telecommun. Records Litig., 564 F. Supp. 2d 1109, 1124 (N.D. Cal. 2008). To bring themselves within the reach of section 1806(f), Plaintiffs must first establish, regarding each alleged NSA intelligence-gathering activity as to which they seek privileged state secrets, that they have been targets of or subject to the challenged activity. 50 U.S.C. §§ 1801(k), 1806(f). Second, even if they could establish that they have been targets of or subject to a particular intelligence-gathering activity, Plaintiffs would have to show that the activity in question constitutes “electronic surveillance” under FISA. Id. § 1801(f), 1806(f).5 Nothing in section 1806(f) indicates that a person can trigger ex parte, in camera review of privileged state secrets merely by seeking to discover whether he or she has been subject to alleged electronic surveillance. The only determination that a district court is authorized to make under subsection 1806(f) is “whether the surveillance of [an] aggrieved person was lawfully authorized and conducted.” In this case, however, the very questions of whether Plaintiffs are “aggrieved persons” whose communications have been subject to “electronic surveillance” are subject to the Government’s state secrets and statutory privilege assertions, which encompass any and all “information that would tend to confirm or deny whether the Plaintiffs in this action have been subject to” alleged surveillance activities at issue in the complaint, and still-classified operational details about NSA intelligence activities implicated by Plaintiffs’ allegations. See Public DNI Decl. ¶¶ 10, 19.
Hence, before resort can be had to the procedural mechanism established under section 1806(f) to litigate the merits of Plaintiffs’ claims, Plaintiffs must demonstrate, without the use or consideration of information protected by the DNI’s assertion of privilege, that they are aggrieved persons whose communications have been subject to electronic surveillance. Cf. Steele Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-96 (1998). That is the import of the third issue on which the Court directed additional briefing: whether Plaintiffs can establish

5 The NSA’s ongoing collection of bulk telephony metadata falls under FISA’s “business records” provision, 50 U.S.C. § 1861, which provides for the production tangible things, documents and records to the Government pursuant to orders issued by the FISC.

Gov’t Defs.’ Supp. Br. on Threshold Legal Issues

Jewel v. Nat’l Security Agency, No. C-08-4373-JSW; Shubert v. Obama, No. C-07-0693-JSW

9

Case3:08-cv-04373-JSW Document167 Filed12/20/13 Page10 of 15

their standing to sue—i.e., whether they are aggrieved persons—without risking damage to national security. Tr. at 6. Indeed, the Court required supplemental briefing on standing expressly because of the concern, expressed by the Supreme Court in Clapper v. Amnesty Int’l, Inc., that attempts to litigate standing by disclosing ex parte to a court whether a plaintiff has been subjected to Government surveillance would run an inherent risk of disclosing privileged national security information, because “‘the court’s postdisclosure decision about whether to dismiss the suit for lack of standing would surely signal to [a] terrorist whether his name was on the list of surveillance targets.’” Id. at 6-7 (quoting 133 S. Ct. 1138, 1149 n.4 (2013))
Even if Plaintiffs could carry this threshold burden and bring one or more of their claims within the purview of section 1806(f) (as the Court has construed it), the Court should bear in mind that the statute is not a means by which the Plaintiffs may seek and obtain an order from the Court requiring ex parte, in camera submission of privileged information for purposes of adjudicating their claims. Rather, on its face section 1806(f) is a tool made available to the Attorney General, to be invoked at his discretion, allowing the Government to seek ex parte consideration of classified information where production of surveillance information sought by a plaintiff “would harm the national security of the United States.” Id. § 1806(f). Only in that event does section 1806(f) authorize the court to “review in camera … [the] materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” Id.
The Court should also bear in mind that while it “may disclose to the aggrieved person” the sought-after materials (subject to appropriate security procedures) if “such disclosure is necessary to make an accurate determination of the legality of the surveillance,” id., the terms of the statute do not require it to do so, and so it remains incumbent upon the Court, even when proceeding under section 1806(f), to avoid any risk of disclosure of classified information that would place national security at risk.6 The Supreme Court’s admonition in Amnesty

6 As explained by the Government Defendants in prior briefing, not a single court applying section 1806(f) has ever granted an aggrieved person access to underlying surveillance information following in camera proceedings, and the Government would oppose such an action in this case.

Gov’t Defs.’ Supp. Br. on Threshold Legal Issues

Jewel v. Nat’l Security Agency, No. C-08-4373-JSW; Shubert v. Obama, No. C-07-0693-JSW

10

Case3:08-cv-04373-JSW Document167 Filed12/20/13 Page11 of 15

International, that a court must not place the burden on the Government of revealing the details of its intelligence-gathering activities in order to disprove a Plaintiffs’ allegations, or otherwise proceed in a fashion that risks harmful disclosures of national security information, see 133 S. Ct. at 1149 n.4, applies just as equally to the merits of Plaintiffs’ claims as it does to the question of their standing. See Tr. at 6. The Government Defendants respectfully reserve their right to appeal or otherwise seek relief from any order as necessary and appropriate to prevent disclosures of classified information as to which the DNI has asserted privilege in this litigation.
C. The Government Has Declassified the Existence of Certain Presidentially Authorized Intelligence Programs, Beginning in October 2001 and Later Transitioned to FISC Authority, But Continues To Assert Privilege Over the Scope and Other Still-Classified Operational Details of Those Programs.
Finally, the Court directed the Government to address the impact on its assessment of the risks to national security presented by this litigation of the public disclosures about NSA intelligence programs that have occurred since June 2013. See Tr. at 7. In short, the Government is no longer asserting the state secrets privilege, or the statutory privilege under the National Security Act of 1947, as amended, 50 U.S.C. § 3024(i)(1), over the existence of various presidentially authorized NSA intelligence activities, later transitioned to authority under FISA, that are implicated by Plaintiffs’ allegations. The Government continues to assert privilege over certain still-classified information concerning the scope and operational details of these intelligence activities, including but not limited to information that would tend to confirm or deny that particular persons were targets of or subject to NSA intelligence activities, or that particular telecommunications providers have assisted NSA in conducting intelligence activities. As the DNI concludes, disclosure of this still-classified information regarding the scope and operational details of NSA intelligence activities implicated by Plaintiffs’ allegations could be expected to cause extremely grave damage to the national security of the United States. See Public Declaration of James R. Clapper, Director of National Intelligence, dated December 20, 2013 (“Public DNI Decl.”) (filed herewith), ¶ 2.
In making these determinations, the Government was mindful of the wave of unauthorized public disclosures of classified information regarding NSA intelligence activities,

Gov’t Defs.’ Supp. Br. on Threshold Legal Issues

Jewel v. Nat’l Security Agency, No. C-08-4373-JSW; Shubert v. Obama, No. C-07-0693-JSW

11

Case3:08-cv-04373-JSW Document167 Filed12/20/13 Page12 of 15

to which the Court alluded at the September 27, 2013, status conference. Those disclosures have been extremely damaging to the national security of the United States. At the same time, these disclosures have generated great public interest in how the NSA uses its special tools and authorities to gather intelligence, and whether they have been used appropriately. Therefore, the DNI, at the President’s direction and in consultation with the Intelligence Community, declassified and publicly released numerous documents disclosing the existence of, and a number of details about, the NSA’s collection of bulk telephony and Internet metadata, and the content of communications of non-U.S. persons located abroad, under various provisions of FISA. These documents and the information they contain were properly classified, and the decision to release them was made only after the DNI concluded that facilitating public debate about the value and appropriateness of these programs outweighed the potential for additional damage to national security. Public DNI Decl. ¶ 5.
In addition, the existence of NSA intelligence collection activities authorized by President Bush beginning in October 2001, and known collectively as the President’s Surveillance Program, has also been declassified. These activities included the collection of (1) the contents of certain international communications, involving persons believed to be agents of al Qai’da or its affiliated organizations (a program later referred to and publicly declassified and acknowledged by President Bush in 2005 as the Terrorist Surveillance Program (“TSP”)), and (2) bulk telephony and Internet non-content communications information (referred to as “metadata”). Id., ¶ 6. These activities were periodically re-authorized by President Bush every 30-60 days; each presidential authorization required the minimization of information collected regarding American citizens to the extent consistent with effectively accomplishing the mission of detecting and preventing acts of terrorism within the United States. NSA also applied its own internal constraints. Id. ¶ 7. Over time, these presidentially authorized activities transitioned to the bulk metadata and content-collection programs, discussed above, conducted under authority of the FISA. Id. ¶ 8.
As a result of the declassification of this information, the Government is no longer asserting privilege over the existence of these programs, whether conducted under presidential

Gov’t Defs.’ Supp. Br. on Threshold Legal Issues

Jewel v. Nat’l Security Agency, No. C-08-4373-JSW; Shubert v. Obama, No. C-07-0693-JSW

12

Case3:08-cv-04373-JSW Document167 Filed12/20/13 Page13 of 15
authority or FISC authorization. The DNI has determined that it remains necessary, however, to
protect certain still-classified information about these programs, including particular targets and
subjects of surveillance, and methods of collecting and analyzing intelligence information,
because public disclosure of this information would likely cause even graver damage to national
security than has already been done by the unauthorized disclosures that have occurred since
June 2013. As the DNI concludes, the same is true with respect to the highly sensitive and still-
classified information that is implicated by the Plaintiffs' allegations in this litigation. Therefore,
notwithstanding the unauthorized disclosures and the official declassification and release of
information about NSA intelligence programs that have taken place since June of this year, the
classified, privileged national security information described below (in unclassified terms) will
risk further and exceptionally grave damage to the national security of the United States. Id.¶ 9.
Accordingly, the DNI continues to assert the state secrets privilege, and his authority to
protect intelligence sources and methods pursuant to 50 U.S.C. § 3024(i)(l), to protect against the
disclosure of certain highly classified and important intelligence information, sources and
methods put at issue in this litigation, many of which are vital to the national security of the
United States, including:
(a) information concerning the specific nature of the terrorist threat posed by al Qa’ida and its affiliates and other foreign terrorist organizations to the United States;
(b) information that would tend to confirm or deny whether particular individuals, including the named Plaintiffs, have been subject to any NSA intelligence activities;
(c) information concerning the scope or operational details of NSA intelligence activities that may relate to or be necessary to adjudicate Plaintiffs' allegations, including Plaintiffs ' claims that the NSA indiscriminately intercepts the content of communications, and their claims regarding the NSA 's bulk collection of telephony and Internet communications records ("metadata"); and
(d) information that may tend to confirm or deny whether any telecommunications carrier has provided assistance to the NSA in connection with any intelligence activity. Id. § 10; see also id. ¶ 19.

Gov’t Defs.’ Supp. Br. on Threshold Legal Issues

Jewel v. Nat’l Security Agency, No. C-08-4373-JSW; Shubert v. Obama, No. C-07-0693-JSW

13

Case3:08-cv-04373-JSW Document167 Filed12/20/13 Page14 of 15

For the reasons explained in the DNI’s public and classified declarations filed herewith, as well as the accompanying public and classified declarations of Frances J. Fleisch, Acting Deputy Director for the NSA, see Gov’t Defs.’ Notices of Lodging of In Camera, Ex Parte Declarations (filed herewith), litigation of Plaintiffs’ claims (including their standing to bring those claims in the first place) would risk or require disclosures of information that could reasonably be expected to lead to exceptionally grave damage to the national security of the United States. See id. ¶¶ 4, 11, 19. Accordingly, notwithstanding the declassification of the once presidentially authorized intelligence activities, now conducted under FISC orders, that are implicated by these cases, the classified national security information as to which the DNI has asserted privilege should be protected from disclosure in this case.
CONCLUSION For the reasons explained above, (1) the Government does not dispute that the Court’s ruling on FISA preemption would apply equally to Plaintiffs’ constitutional claims as it does to their statutory claims; (2) nevertheless, the procedural mechanism for ex parte, in camera review under FISA section 1806(f) applies here only to the extent that Plaintiffs can show, without reliance on privileged state secrets, that they are “aggrieved persons” whose communications have been subject to “electronic surveillance” within the meaning of FISA, and (3) the Court, whether proceeding under section 1806(f) or otherwise, must protect against disclosures of classified national security information over which the Government continues to assert the state secrets privilege and its statutory privilege under the National Security Act.
Dated: December 20, 2013
Respectfully submitted, STUART F. DELERY Assistant Attorney General JOSEPH H. HUNT Director, Federal Programs Branch ANTHONY J. COPPOLINO Deputy Branch Director

Gov’t Defs.’ Supp. Br. on Threshold Legal Issues

Jewel v. Nat’l Security Agency, No. C-08-4373-JSW; Shubert v. Obama, No. C-07-0693-JSW

14

Case3:08-cv-04373-JSW Document167 Filed12/20/13 Page15 of 15
/s/ James J. Gilligan JAMES J. GILLIGAN Special Litigation Counsel
MARCIA BERMAN Senior Trial Counsel marcia.berman@usdoj.gov
BRYAN DEARINGER Trial Attorney
RODNEY PATTON Trial Attorney
U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, NW, Rm. 6102 Washington, D.C. 20001 Phone: (202) 514-3358 Fax: (202) 616-8470
Attorneys for the Government Defendants

Gov’t Defs.’ Supp. Br. on Threshold Legal Issues

Jewel v. Nat’l Security Agency, No. C-08-4373-JSW; Shubert v. Obama, No. C-07-0693-JSW

15

 
 Case3:08-cv-04373-JSW Document83 Filed07/02/12 Page1 of 29

1 CINDY COHN (145997)

RACHAEL E. MENY (178514)

cindy@eff.org

rmeny@kvn.com

2 LEE TIEN (148216)

PAULA L. BLIZZARD (207920)

KURT OPSAHL (191303)

MICHAEL S. KWUN (198945)

3 JAMES S. TYRE (083117)

AUDREY WALTON-HADLOCK (250574)

MARK RUMOLD (279060)

KEKER & VAN NEST, LLP

4 ELECTRONIC FRONTIER FOUNDATION 710 Sansome Street

454 Shotwell Street

San Francisco, California 94111-1704

5 San Francisco, CA 94110

Telephone: (415) 391-5400

Telephone: (415) 436-9333

Fax: (415) 397-7188

6 Fax: (415) 436-9993

THOMAS E. MOORE III (115107)

7 RICHARD R. WIEBE (121156)

tmoore@moorelawteam.com

wiebe@pacbell.net

THE MOORE LAW GROUP

8 LAW OFFICE OF RICHARD R. WIEBE

228 Hamilton Avenue, 3rd Floor

One California Street, Suite 900

Palo Alto, CA 94301

9 San Francisco, CA 94111

Telephone: (650) 798-5352

Telephone: (415) 433-3200

Fax: (650) 798-5001

10 Fax: (415) 433-6382

ARAM ANTARAMIAN (239070)

11

aram@eff.org

LAW OFFICE OF ARAM ANTARAMIAN

12

1714 Blake Street

Berkeley, CA 94703

13

Telephone: (510) 289-1626

Attorneys for Plaintiffs

14

UNITED STATES DISTRICT COURT 15

FOR THE NORTHERN DISTRICT OF CALIFORNIA 16

17 CAROLYN JEWEL, TASH HEPTING,

) CASE NO. 08-CV-4373-JSW )

GREGORY HICKS, ERIK KNUTZEN and ) 18 JOICE WALTON, on behalf of themselves and ) PLAINTIFFS’ MOTION FOR PARTIAL

all others similarly situated, 19

) SUMMARY JUDGMENT REJECTING ) THE GOVERNMENT DEFENDANTS’

Plaintiffs,

) STATE SECRET DEFENSE

20

)

v. 21

) Date: November 2, 2012 ) Time: 9:00 a.m.

NATIONAL SECURITY AGENCY, et al., 22

) Courtroom 11, 19th Floor ) The Honorable Jeffrey S. White

Defendants.

)

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Case No. 08-CV-4373-JSW

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Case3:08-cv-04373-JSW Document83 Filed07/02/12 Page2 of 29

1

TABLE OF CONTENTS

2

I.	   Introduction ............................................................................................................................ 2	  

3

II.	   Statement Of Facts ................................................................................................................. 3	  

4

A.	   The Klein Evidence, AT&T’s Confirmation, And The Marcus Expert Declaration ....... 3	  

5

B.	   The President’s Surveillance Program ............................................................................. 6	  

6

III.	   Issues For Decision................................................................................................................. 9	  

7

IV.	   Section 1806(f) Displaces The State Secrets Privilege In Lawsuits Alleging Unlawful

8

Electronic Surveillance .......................................................................................................... 9	  

9

A.	   The State Secrets Privilege............................................................................................. 10	  

10

B.	   Congress Has Displaced The State Secrets Privilege With Section 1806(f) In

Cases Involving Electronic Surveillance ........................................................................ 12	  

11

C.	   FISA’s Statutory Scheme And Legislative History Confirm That Section 1806(f)

12

Displaces The State Secrets Privilege ............................................................................ 14	  

13

1.	   Congress Enacted FISA To Establish Comprehensive Control Over

National Security Electronic Surveillance................................................................ 14	  

14

2.	   Section 1806(f) Is An Essential Element Of Congress’ Comprehensive

15

Scheme For Judicially Enforcing The Limitations It Has Imposed On

Electronic Surveillance............................................................................................. 16	  

16

V.	   Section 1806(f) Directs This Court To Determine Whether Defendants Subjected

17

Plaintiffs To Unlawful Surveillance..................................................................................... 18	  

18 VI.	   Conclusion............................................................................................................................ 22

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Case No. 08-CV-4373-JSW

-i-
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Case3:08-cv-04373-JSW Document83 Filed07/02/12 Page3 of 29

1

TABLE OF AUTHORITIES

2 Cases	  

3 Al-Haramain Islamic Foundation, Inc. v. Bush (“Al-Haramain I”),

507 F.3d 1190 (9th Cir. 2007) .......................................................................................... 10, 12, 19

4

Beck v. Prupis,

5

529 U.S. 494 (2000) ..................................................................................................................... 20

6 General Dynamics Corp. v. United States,

__ U.S. __, 131 S.Ct. 1900 (2011) ......................................................................................... 10, 11

7

Golinski v. U.S. Office of Personnel Management,

8

824 F. Supp. 2d 968 (N.D. Cal. 2012).................................................................................... 10, 11

9 Hepting v. AT&T Corp.,

439 F. Supp. 2d 974 (N.D. Cal. 2006)........................................................................................... 6

10

In re National Security Agency Telecommunications Records Litigation (Al-Haramain Islamic

11

Foundation, Inc. v. Bush),

564 F. Supp. 2d 1109 (N.D. Cal. 2008)........................................................................................ 12

12

In re Sealed Case,

13

494 F.3d 139 (D.C. Cir. 2007) ..................................................................................................... 11

14 Jewel v. NSA,

673 F.3d 902 (9th Cir. 2011) ................................................................................................ 2, 3, 21

15

Kasza v. Browner,

16

133 F.3d 1159 (9th Cir. 1998) ...................................................................................................... 10

17 Mohamed v. Jeppesen Dataplan, Inc.,

614 F.3d 1070 (9th Cir. 2010) (en banc) ................................................................................ 10, 11

18

Morissette v. United States,

19

342 U.S. 246 (1952) ..................................................................................................................... 20

20 Totten v. United States,

92 U.S. 105 (1876) ................................................................................................................. 10, 11

21

United States v. Reynolds,

22

345 U.S. 1 (1953) ................................................................................................................... 10, 11

23 Usery v. Turner Elkhorn Mining Co.,

428 U.S. 1 (1976) ......................................................................................................................... 13

24

Youngstown Sheet & Tube Co. v. Sawyer,

25

343 U.S. 579 (1952) ..................................................................................................................... 15

26 S t a t u t e s 	  
27 18 U.S.C. § 2511(2)(f)...................................................................................................................... 16
28

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1 50 U.S.C. § 1801 .......................................................................................................................... 16, 1

2 50 U.S.C. § 1801(f)(2)...................................................................................................................... 18

3 50 U.S.C. § 1801(k).................................................................................................................... 19, 21

4 50 U.S.C. § 1801(n).......................................................................................................................... 18

5 50 U.S.C. § 1804 .......................................................................................................................... 7, 16

6 50 U.S.C. § 1806(e) .......................................................................................................................... 17

7 50 U.S.C. § 1806(f) ................................................................................................................... passim

8 50 U.S.C. § 1809 .............................................................................................................................. 17

9 50 U.S.C. § 1810 ........................................................................................................................ 17, 19

10 50 U.S.C. § 1811 ................................................................................................................................ 7

11 50 U.S.C. § 1812 .............................................................................................................................. 16

12 Classified Information Procedures Act,

18 U.S.C. App. 3 .......................................................................................................................... 18

13

Foreign Intelligence Surveillance Act of 1978,

14

Pub. L. 95-511, 92 Stat. 1783 ....................................................................................................... 17

15 Pub. L. No. 93-595, 88 Stat. 1933 .................................................................................................... 14

16 Stored Communications Act, 18 U.S.C. §§ 2701-2712 ......................................................... 2, 16, 17

17 Wiretap Act, 18 U.S.C. §§ 2510-2522 ................................................................................... 2, 16, 17

18 R u l e s 	  
19 Federal Rule of Civil Procedure 11 .................................................................................................. 21
20 Federal Rule of Civil Procedure 26 ............................................................................................ 20, 21
21 Federal Rule of Civil Procedure 56 .................................................................................................. 10
22 Federal Rule of Evidence 501 .................................................................................................... 13, 14
23

24 Executive Materials	  

25 Offices of Inspectors General, Unclassified Report On The President’s Surveillance Program (July 2009) (available at www.dni.gov/reports/report_071309.pdf).......................................... 7, 8
26

27

28

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1 Legislative Materials	  

2 H.R. Conf. Rep. No. 95-1720 (1978),

reprinted in 1978 U.S.C.C.A.N. 4048 (FISA House-Senate Conference Report) ....................... 17

3

H.R. Rep. No. 93-650 (1973),

4

reprinted in 1974 U.S.C.C.A.N. 7075 .......................................................................................... 14

5 H.R. Rep. No. 95-1283 (1978) ......................................................................................................... 19

6 S. Rep. No. 93-1277 (1974),

reprinted in 1974 U.S.C.C.A.N. 7051 .......................................................................................... 14

7

S. Rep. No. 94-1035 (1976).............................................................................................................. 16

8

S. Rep. No. 95-604(I) (1978),

9

reprinted in 1978 U.S.C.C.A.N. 3904 .............................................................................. 15, 16, 17

10 S. Rep. No. 95-701 (1978)

reprinted in 1978 U.S.C.C.A.N. 3973 .......................................................................................... 20

11

S. Select Comm. to Study Governmental Operations with Respect to Intelligence Activities,

12

Book II: Intelligence Activities and the Rights of Americans,

S. Rep. No. 94-755 (1976) (available at

13

http://www.aarclibrary.org/publib/contents/church/contents_church_reports.htm) ................ 7, 15

14

Other Sources	  

15

James Risen & Eric Lichtblau, Bush lets U.S. spy on callers without courts,

16

New York Times, December 16, 2005,

(available at http://www.nytimes.com/2005/12/16/politics/16program.html) ............................... 8

17

Leslie Cauley, NSA has massive database of Americans’ phone calls,

18

USA Today, May 11, 2006,

(available at http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm) ...................... 8

19

Matthew D. Laplante, Spies like us: NSA to build huge facility in Utah,

20

Salt Lake Tribune, July 1, 2009,

(available at http://www.sltrib.com/ci_12735293)......................................................................... 9

21

22

23

24

25

26

27

28

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1

NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT

2

PLEASE TAKE NOTICE that on November 2, 2012 at 9:00 a.m. in Courtroom 11, 19th

3 Floor, United States District Court, 450 Golden Gate Ave., San Francisco, CA, plaintiffs will move

4 for partial summary judgment holding that the state secrets privilege defense of defendants

5 National Security Agency, United States, Department of Justice, Barack H. Obama, Keith B.

6 Alexander, Eric H. Holder, Jr., and James R. Clapper, Jr. (in their official capacities) (collectively, 7 the “government defendants”) lacks merit.1

8

The ground for this motion is that Congress has displaced the state secrets privilege in this

9 action by the statutory procedure of 50 U.S.C. § 1806(f) of the Foreign Intelligence Surveillance

10 Act. Under section 1806(f), which applies to electronic surveillance lawsuits like this one,

11 Congress explicitly provided for courts to determine the legality of electronic surveillance, and

12 provided for the discovery and use of national security evidence under secure conditions.

13 Plaintiffs’ motion is based on the accompanying memorandum, the declarations of Mark Klein,

14 J. Scott Marcus, James W. Russell, William Binney, Thomas Drake, J. Kirk Wiebe, and Cindy A.

15 Cohn, the filings and pleadings of record in this action and the related action of Hepting v. AT&T 16 (U.S.D.C. N.D. Cal. No. 06-CV-0672),2 and the argument and evidence presented at the hearing of

17 this motion.

18

19

20

21 1 As an accommodation to the government defendants, plaintiffs have noticed the hearing for this

22

motion for November 2, 2012. The parties have agreed to a stipulation and proposed order, filed herewith, setting out a briefing schedule in which the government’s response is due on August 31,

23 2012 and addressing several other matters.

24 2 This action is related to the Hepting action, which was brought only against AT&T and not

against any government entity or employee. Four of the plaintiffs here were also plaintiffs in 25 Hepting. Hepting was dismissed in 2009 pursuant to a grant of immunity to AT&T by the

26

Attorney General; none of the Hepting plaintiffs’ claims was ever decided on its merits. The immunity dismissal was affirmed by the Ninth Circuit and the Hepting plaintiffs currently have a

27 petition for certiorari pending. Although Hepting was a part of a multi-district litigation consolidating over 30 case for pretrial proceedings (MDL No. 06-CV-1791), this action has never

28 been a part of the MDL.

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1

MEMORANDUM

2 I. 3

Introduction This action arises out of the United States government’s program of warrantless,

4 untargeted, domestic mass surveillance that has intercepted the communications and

5 communications records of millions of innocent Americans, including plaintiffs. Essentially, the

6 case asks a simple but fundamental question: is it lawful or constitutional for the government to

7 divert to its control a copy of the everyday communications and the trail of communications

8 records of ordinary Americans not suspected of any connection to crime or terrorism?

9

In order to answer this question and to seek appropriate relief for the illegal surveillance of

10 their personal communications, plaintiffs—customers of AT&T for whom compelling evidence

11 exists of this mass surveillance—have sued the United States and government officials in their

12 official and individual capacities, stating claims under the Fourth and First Amendments, the

13 Foreign Intelligence Surveillance Act (FISA), the Wiretap Act, the Stored Communications Act

14 provisions of the Electronic Communications Privacy Act, the Administrative Procedures Act, and

15 the separation of powers doctrine. Dkt. #1.

16

In enacting the statutory procedure of 50 U.S.C. § 1806(f), Congress displaced the state

17 secrets privilege in electronic surveillance actions. Both FISA and the state secrets privilege

18 address judicial treatment of national security materials. Under FISA, which applies to electronic

19 surveillance lawsuits, the secret evidence is put before the court, and the court must address the

20 merits, including the legality of the electronic surveillance. Under the state secrets privilege, the

21 secret evidence is excluded from consideration, and a plaintiff can only move the case forward on

22 the merits without the secret evidence.

23

In past proceedings in this action, the government defendants brought a motion to dismiss

24 or in the alternative for summary judgment based on the state secrets privilege and sovereign

25 immunity. Dkt. #18, #29, #31. Without deciding that motion, the district court, per Walker, C.J.,

26 sua sponte dismissed this action for lack of standing. Dkt. #57. The Ninth Circuit reversed the

27 dismissal and remanded. Jewel v. NSA, 673 F.3d 902, 913 (9th Cir. 2011). As part of its order of

28 remand, the Ninth Circuit directed this Court to decide “the government’s assertion that the state

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1 secrets privilege bars this litigation.” Id. at 913-14. Plaintiffs make this motion to present the issue

2 to the Court, pursuant to the Ninth Circuit’s direction.

3

Section 1806(f), enacted in 1978 as part of FISA’s comprehensive regulation of electronic

4 surveillance, expressly applies “notwithstanding any other law,” including the state secrets

5 privilege. 50 U.S.C. § 1806(f) (hereafter, “§1806(f)” or “section 1806(f)”). It provides that the

6 court shall “determine whether the surveillance of the aggrieved person was lawfully authorized

7 and conducted” by using specific secure procedures, including in camera and ex parte proceedings,

8 in the event the government claims that the disclosure of certain evidence may potentially harm the

9 national security of the United States. § 1806(f). Accordingly, the state secrets privilege is

10 inapplicable here as a matter of law.

11 II. Statement Of Facts

12

Plaintiffs are customers of AT&T whose electronic communications and communications

13 records have been unlawfully intercepted and disclosed to the government as part of a larger

14 program of warrantless, untargeted domestic surveillance. Among the non-secret evidence

15 demonstrating the electronic surveillance of plaintiffs is the detailed eyewitness testimony and

16 documentary evidence of Mark Klein, a retired AT&T employee, and the expert testimony of

17 J. Scott Marcus, an expert in telecommunications networks. Klein disclosed that AT&T and the

18 NSA had installed powerful equipment at an AT&T facility in San Francisco and elsewhere,

19 equipment designed to intercept both international and domestic electronic communications,

20 including those of plaintiffs. Subsequent to Klein’s disclosures, other evidence has emerged that

21 both confirms Klein’s evidence, adds additional facts, and places Klein’s evidence into the broader

22 context of a group of unlawful intelligence activities dubbed the President’s Surveillance Program

23 (“PSP”).

24

A. The Klein Evidence, AT&T’s Confirmation, And The Marcus Expert

Declaration 25

Klein worked as an AT&T technician for 22 years, most recently at AT&T’s San Francisco

26

facilities. In a sworn declaration, he described events and operations he observed at AT&T

27

demonstrating that AT&T has been collaborating with the National Security Agency (“NSA”) in

28

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1 the surveillance of the domestic communications of millions of Americans, including AT&T

2 customers like plaintiffs.

3

Klein’s account begins around January 2003, when the manager of his facility advised him

4 that the NSA was coming to interview another colleague for a “special job” installing equipment in

5 a high-security room AT&T was building for the NSA at its Folsom Street Facility in San

6 Francisco—the “SG3” room. Klein Decl., ¶¶ 10-14. Klein personally saw the NSA’s SG3 room

7 when it was under construction, and, at one point, entered the room briefly after it was fully

8 operational. Id., ¶¶ 12, 17. The AT&T employees in charge of the SG3 room had NSA security

9 clearances. Id., ¶ 17.

10

In October 2003, AT&T transferred Klein to the Internet room at the Folsom Street Facility.

11 Klein Decl., ¶ 15. Internet communications are carried as light signals on fiber-optic cables. Id.,

12 ¶¶ 21-22. Klein’s job was to oversee the room containing the fiber-optic cables and switches

13 carrying AT&T’s Internet traffic. Id., ¶ 15. Communications carried by AT&T’s Internet service

14 pass through that room to be directed to or from customers. Id., ¶ 19. The room also contains

15 connections between AT&T and the Internet networks of other Internet providers, so-called

16 “peering links.” Id., ¶¶ 29-33.

17

To divert the Internet communications traveling over its networks and other networks to the

18 NSA, AT&T connected the fiber-optic cables of the peering links in the Internet room overseen by

19 Klein to a “splitter cabinet” installed in the Internet room. Id., ¶¶ 28-34. The splitter cabinet splits

20 the light signals in two, making two identical copies of all of the data carried on the light signal.

21 Id., ¶¶ 23-25. The splitter cabinet directed one copy of the light signal through fiber-optic cables

22 into the NSA’s SG3 room while allowing the other copy to travel its normal course to its intended

23 destination. Id., ¶ 27. All of the light signals on the fiber-optic cables of the peering links of

24 AT&T’s Internet network are copied and diverted to the NSA’s SG3 room by the splitter

25 equipment. Id., ¶¶ 19, 27, 29-34. The split cables carried domestic and international

26 communications of AT&T customers, as well as communications from users of other non-AT&T

27 networks that pass through the Folsom Street Facility. Id.

28

Klein attached to his declaration two AT&T documents called “SIMS Splitter Cut-In and

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1 Test Procedure,” which describe “how to connect the already in-service circuits to a ‘splitter

2 cabinet,’ which diverted light signals from the WorldNet Internet service’s fiber optical circuits to

3 the SG3 Secure Room.” Klein Decl., ¶¶ 25-26 & Exs. A, B. He also attached a third AT&T

4 document “describ[ing] the connections from the SG3 Secure Room on the 6th floor to the

5 WorldNet Internet room on the 7th floor, and provid[ing] diagrams on how the light signal was

6 being split.” Id., ¶ 28 & Ex. C. This document also “listed the equipment installed in the SG3 7 Secure Room,” including a NARUS “Semantic Traffic Analyzer.” 3 Id., ¶ 35. These three

8 documents comprise over 100 pages of highly technical details on the interceptions, including 57

9 detailed schematics and 24 tables of data.

10

Klein further presented evidence that similar installations existed in other cities, including

11 Atlanta, Seattle, San Jose, Los Angeles, and San Diego. Klein Decl., ¶ 36; Marcus Decl., ¶ 118.

12

James Russell, AT&T’s Managing Director-Asset Protection, has confirmed that Klein’s

13 declaration and the AT&T documents Klein attached accurately describe AT&T’s Internet

14 network, AT&T’s San Francisco communications facility, the location of specific equipment

15 within the San Francisco facility, and the interconnection points of AT&T’s Internet network with

16 the networks of other communications carriers. Russell Decl. at ¶¶ 6, 10-12, 15, 19-22. Russell

17 confirmed that the exhibits to the Klein Declaration are authentic AT&T documents that provide

18 “detailed schematics of network wiring configurations that are uniform across AT&T locations and

19 that are used by AT&T to cross-connect and split fiber cables” and “identif[y] the manufacturer 20 and name of many pieces of equipment used by AT&T.”4 Id., ¶ 20.

21

Plaintiffs retained an expert in information technology and telecommunications to further

22 explain the implications of the documents and testimony Klein furnished. The expert, J. Scott

23 Marcus, spent decades working for a variety of telecommunications clients, including AT&T.

24 3 The NARUS device collects Internet data at the rate of ten gigabytes per second and can
25 reconstruct all information transmitted through it. It can also select data from the data stream 26 according to predetermined criteria, such as target addresses, watch-listed names, keywords, etc.,
and can then forward on the selected information. Binney Decl., ¶ 10.
27 4 Although the Russell declaration is under seal, AT&T, the proponent of its sealing in the Hepting 28 action, has previously consented to the public disclosure of this summary of its contents.

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1 Marcus Decl., ¶¶ 7-29. Marcus also served as the Senior Advisor for Internet Technology to the

2 Federal Communications Commission. He concluded “that the room described was a secure

3 facility, intended to be used for purposes of surveillance on a very substantial scale.” Id., ¶ 6. He

4 “conclude[d] that AT&T has constructed an extensive—and expensive—collection of

5 infrastructure that collectively has all the capability necessary to conduct large scale covert

6 gathering of IP-based communications information, not only for communications to overseas

7 locations, but for purely domestic communications as well.” Id., ¶ 38 (emphasis in original). “This

8 deployment is neither modest nor limited.” Id., ¶ 43 (emphasis in original). Marcus further

9 concluded that AT&T made no effort to filter out purely domestic-to-domestic electronic

10 communications, as a fiber splitter is not a selective device; all traffic on the split circuit was

11 diverted or copied. Id., ¶¶ 109-112.

12

The interceptions in San Francisco are not unique. Marcus concluded that AT&T’s

13 surveillance “apparently involves considerably more locations than would be required to catch the

14 majority of international traffic.” Marcus Decl., ¶ 43. According to Marcus, the web of

15 surveillance facilities in cities such as Atlanta, Seattle, San Jose, and Los Angeles would probably

16 capture well over half of AT&T’s purely domestic traffic, representing almost all of the AT&T

17 traffic to and from other providers. Id., ¶ 124. The government has conceded that the Klein and

18 Marcus evidence is not a state secret. Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 989 (N.D. Cal.

19 2006).

20

B. The President’s Surveillance Program

21

Other public information about the government’s surveillance activities supports the Klein

22 and Marcus evidence, and provides broader context and background for plaintiffs’ claims here.

23 The NSA is the signals intelligence agency within the Department of Defense. Signals intelligence

24 refers to intelligence gathering through the collection of signals such as electronic communications

25 between persons such as radio transmissions, telephone signals and email, and the non26 communications electronic emissions from equipment like radar. J. Kirk Wiebe Decl., ¶ 3.5

27

28 5 William Binney, Thomas A. Drake, and J. Kirk Wiebe are former employees of the NSA and have submitted declarations in support of this motion. The information set forth in their

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1

In 1976, the Senate Select Committee to Study Governmental Operations with Respect to

2 Intelligence Activities, better known as the “Church Committee,” issued its report on the abuse of

3 electronic surveillance by the NSA, along with the CIA and the FBI. S. Select Comm. to Study

4 Governmental Operations with Respect to Intelligence Activities, Book II: Intelligence Activities

5 and the Rights of Americans, S. Rep. No. 94-755 (1976). In response to the Church Committee

6 report, Congress enacted FISA in 1978, expressly to provide the guidelines and limitations by

7 which the agencies engaged in foreign intelligence might lawfully conduct electronic surveillance

8 of communications transmitted between foreign and domestic locations, at time of peace (50

9 U.S.C. § 1804) and at time of war (50 U.S.C. § 1811).

10

Prior to September 11, 2001, the NSA treated FISA as a prime directive for lawfully

11 conducting electronic surveillance for national security purposes in circumstances where one party

12 to a communication was within the United States. The NSA managed that task while complying

13 with FISA and instilling a respect for FISA among its employees. Drake Decl., ¶ 3; J. Kirk Wiebe

14 Decl., ¶ 7; Offices of Inspectors General, Unclassified Report On The President’s Surveillance

15 Program (July 2009), at 4-5 (available at www.dni.gov/reports/report_071309.pdf) (hereafter

16 “OIG”, previously filed with the Court as Dkt. #35, Ex. A).

17

The attacks on September 11, 2001 prompted the White House to ask the NSA to reassess

18 its intelligence-gathering capabilities not merely in terms of what was legally permissible but in

19 terms of what was “operationally useful and technologically feasible.” Binney Decl., ¶ 5; Drake

20 Decl., ¶ 3; J. Kirk Wiebe Decl., ¶ 7; OIG at 5. The NSA responded with a variety of proposed

21 intelligence-gathering activities. OIG at 5.

22

The NSA’s response formed the basis of an extralegal Presidential authorization in October

23 2001 purporting to authorize a number of unlawful intelligence-gathering activities—later

24 denominated collectively as the PSP. OIG at 5. The activities encompassed foreign intelligence-

25 gathering, foreign-to-domestic intelligence-gathering and purely domestic intelligence-gathering.

26 These activities were far more extensive than the limited subset of foreign-to-domestic al Qaeda-

27 declarations is all in the public domain, most notably set out in an article published in The New
28 Yorker on May 23, 2011.

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1 related electronic surveillance disclosed by the President in December 2005 that he called the

2 “Terrorist Surveillance Program.” OIG at 1-2, 5-6, 36-37; James Risen & Eric Lichtblau, Bush lets

3 U.S. spy on callers without courts, New York Times, December 16, 2005 (available at

4 http://www.nytimes.com/2005/12/16/politics/16program.html).

5

The NSA moved forward to implement the PSP, seizing vast amounts of data from millions

6 of Americans. OIG at 14-15; Binney Decl., ¶ 5. Using tools like the NARUS, described above, the

7 NSA had the capability to do individualized searches (similar to a Google search) for particular

8 electronic communications through such criteria as target addresses, locations, countries and phone

9 numbers, as well as watch-listed names, keywords, and phrases in email. The NSA also has, or is

10 in the process of obtaining, the capability to store all electronic communications passing through

11 the NSA’s intercept centers, using tools like the fiber-optic splitter cabinet described above. The

12 wholesale collection of data allows the NSA to identify and analyze intelligence from the

13 electronic communications in a static database. But according to several retired NSA employees,

14 the NSA did not have the technical capability to both protect the privacy of U.S. persons and

15 collect and smartly select on the fly the nuggets of information it sought from the large volume of

16 data traversing the Internet. Binney Decl., ¶¶ 5, 7, 9-13; Drake Decl., ¶¶ 7-10; J. Kirk Wiebe Decl.,

17 ¶¶ 8, 9. The NSA also asked for and received from AT&T and other telecommunications 18 companies customer records of telephone calls made by millions of Americans.6

19

The NSA’s interception infrastructure is consistent with these sweeping, untargeted

20 seizures. The NSA could have chosen to limit its interception of electronic communications to

21 international/international and international/domestic communications, thereby protecting the

22 privacy of Americans in their domestic communications, by installing its intercept equipment only

23 at the nation’s foreign fiber-optic cable landing stations. There are more than two dozen cable

24 landing sites on the U.S. coasts where fiber-optic cables come ashore. Instead, the NSA chose to

25

26

6 The turnover of customer records to the NSA by AT&T and other telecommunication carriers was widely publicized in May and June 2006. See, e.g., Leslie Cauley, NSA has massive database

27 of Americans’ phone calls, USA Today, May 11, 2006, at 1A (available at http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm); see also J. Kirk Wiebe Decl.,

28 ¶ 10.

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1 put its intercept equipment at key junction points within the domestic telecommunications network,

2 such as the Folsom Street Facility, thereby giving itself access to purely domestic as well as

3 international communications. Binney Decl., ¶ 8.

4

Moreover, the Klein and Marcus evidence is supported by more recent evidence that the

5 capacity of NSA’s infrastructure far exceeds the capacity necessary for the storage of discrete,

6 targeted communications or even for the storage of the routing information from all electronic

7 communications. In July 2009, the NSA announced that it was building a one-million-square-foot

8 data center in Fort Williams, Utah. Matthew D. Laplante, Spies like us: NSA to build huge facility

9 in Utah, Salt Lake Tribune, July 1, 2009 (available at http://www.sltrib.com/ci_12735293).

10 According to some reports, the Utah facility will have a data storage capacity measured in 11 yottabytes (1024 bytes or one septillion bytes). Binney Decl., ¶ 11. The capacity of NSA’s planned

12 infrastructure is consistent with seizing both the routing information and the contents of all

13 personal electronic communications. Binney Decl., ¶¶ 11-16; Drake Decl., ¶ 9; J. Kirk Wiebe

14 Decl., ¶¶ 9, 12-14.

15 III. Issues For Decision

16

1. Has Congress displaced the state secrets privilege in lawsuits in which electronic

17 surveillance is at issue?

18

2. Have plaintiffs adequately alleged for purposes of section 1806(f) that they are

19 “aggrieved persons”?

20 IV. Section 1806(f) Displaces The State Secrets Privilege In Lawsuits Alleging Unlawful Electronic Surveillance
21 The government has invoked the state secrets privilege as a defense to this action, asserting
22 that certain broad categories of evidence are protected by the privilege and that the action should be
23 dismissed. Dkt. #18, #18-2, #18-3. For the reasons explained below, these contentions lack merit.
24 Congress has displaced the state secrets privilege in electronic surveillance cases with the
25 comprehensive statutory procedures of 50 U.S.C. § 1806(f). The displacement of the government’s
26 state secrets defense by section 1806(f) is a question of law as to which there is no genuine dispute
27 of material fact, and thus partial summary judgment rejecting the defense should be granted. See
28

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1 Fed. R. Civ. P. 56; Golinski v. U.S. Office of Personnel Management, 824 F. Supp. 2d 968, 978

2 (N.D. Cal. 2012).

3

A. The State Secrets Privilege

4

The state secrets privilege is a common-law evidentiary privilege that may be invoked only

5 by the government. Al-Haramain Islamic Foundation, Inc. v. Bush (“Al-Haramain I”), 507 F.3d

6 1190, 1196 (9th Cir. 2007). It arises where “ ‘there is a reasonable danger’ that disclosure [of

7 evidence] will ‘expose military matters which, in the interest of national security, should not be

8 divulged.’ ” Id. (quoting United States v. Reynolds, 345 U.S. 1, 10 (1953)). Like any other

9 evidentiary privilege, ordinarily its only effect is to exclude specific items of evidence that fall

10 within the scope of the privilege. The case then proceeds forward, “ ‘with no consequences save

11 those resulting from the loss of evidence.’ ” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070,

12 1082 (9th Cir. 2010) (en banc) (quoting Al-Haramain I, 507 F.3d at 1204); see also Al-Haramain I,

13 507 F.3d at 1204 (“[t]he effect of the government’s successful invocation of privilege ‘is simply

14 that the evidence is unavailable, as though a witness had died, and the case will proceed

15 accordingly’ ”). “The privileged information is excluded and the trial goes on without it.” General

16 Dynamics Corp. v. United States, __ U.S. __, 131 S.Ct. 1900, 1906 (2011). As in any case in

17 which evidence is excluded because of a privilege, dismissal is possible if after full discovery the

18 plaintiff is unable to prove its case using nonprivileged evidence. “If, after further proceedings,

19 the plaintiff cannot prove the prima facie elements of her claim with nonprivileged evidence, then

20 the court may dismiss her claim as it would with any plaintiff who cannot prove her case.” Kasza

21 v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998) (emphasis added); accord, Mohamed, 614 F.3d at

22 1083.

23

In Mohamed, the Ninth Circuit identified three other “exceptional circumstances” (614 F.3d

24 at 1077) in which state secrets can lead to the dismissal of a lawsuit. The first is where the “very

25 subject matter” of the lawsuit is a state secret. Mohamed, 614 F.3d at 1077-78. This is the

26 so-called Totten bar, named after Totten v. United States, 92 U.S. 105 (1876), which held that

27 spying contracts are unenforceable. General Dynamics, 131 S.Ct at 1906.

28

The second circumstance is where the excluded evidence makes it impossible for the

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1 defendant to prove up a valid defense. Mohamed, 614 F.3d at 1083 (citing In re Sealed Case, 494

2 F.3d 139, 153 (D.C. Cir. 2007)). This is a high standard for a defendant to meet: “A ‘valid

3 defense’ . . . is meritorious and not merely plausible and would require judgment for the

4 defendant.” In re Sealed Case, 494 F.3d at 149 (citations omitted, emphasis added); accord,

5 General Dynamics, 131 S.Ct. at 1909-10 (dismissal permissible only if the “defense is supported

6 by enough evidence to make out a prima facie case” (id. at 1909), i.e., “enough evidence to survive

7 summary judgment” (id. at 1910)).

8

The third of these “rare circumstances” permitting dismissal is where litigation of the action

9 using only non-privileged evidence inevitably “would create an unjustifiable risk of revealing state

10 secrets.” Mohamed, 614 F.3d at 1083, 1088-89.

11

The Ninth Circuit held in Mohamed that dismissals in the second or third circumstances

12 (the “valid-defense” exception and the “unjustifiable-risk” exception) were authorized by United

13 States v. Reynolds, 345 U.S. 1, an early state-secrets decision. Mohamed, 614 F.3d at 1083. The

14 Supreme Court, however, effectively overruled Mohamed’s holding on this point in General

15 Dynamics. It held that “Reynolds was about the admission of evidence. It decided a purely

16 evidentiary dispute by applying evidentiary rules: The privileged information is excluded and the

17 trial goes on without it.” General Dynamics, 131 S.Ct. at 1906. The Supreme Court held that the

18 Totten bar, the valid-defense exception, and the unjustifiable-risk exception were grounded not in

19 Reynolds but in its “common-law authority to fashion contractual remedies in Government-

20 contracting disputes.” Id. at 1906-07. Refusing to enforce government contracts in those

21 circumstances “captures what the ex ante expectations of the parties were or reasonably ought to

22 have been. . . . Both parties . . . must have assumed the risk that state secrets would prevent the

23 adjudication of [their] claims . . . .” Id. at 1909.

24

This Court need not decide the full extent to which General Dynamics has effectively

25 overruled Mohamed, or how much, if any, of Mohamed still applies in lawsuits like this one not

26 based on a contract or other voluntary secret relationship between the plaintiff and the government.

27 See Golinski, 824 F. Supp. 2d at 983-85 (describing procedure for determining whether intervening

28 Supreme Court authority has effectively overruled prior Ninth Circuit precedent). Section 1806(f)

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1 directs the Court to use, not exclude, state secrets evidence to decide the merits of a plaintiff’s

2 claims under procedures that protect the secrecy of the evidence.

3

B. Congress Has Displaced The State Secrets Privilege With Section 1806(f) In

Cases Involving Electronic Surveillance

4

Section 1806(f) displaces the state secrets privilege in electronic surveillance cases by

5

providing secure procedures by which courts can admit and consider national security evidence

6

that the state secrets privilege would otherwise exclude. Section 1806(f) and the state secrets

7

privilege both address the same subject matter: circumstances in which “disclosure [of evidence]

8

or an adversary hearing would harm the national security of the United States.” § 1806(f); see Al-

9

Haramain I, 507 F.3d at 1196 (state secrets privilege arises where “ ‘there is a reasonable danger’

10

that disclosure [of evidence] will ‘expose military matters which, in the interest of national

11

security, should not be divulged’ ”). They differ, however, in what they tell courts to do when

12

confronted with national security evidence. If the state secrets privilege applies, the evidence is

13

excluded. In section 1806(f), by contrast, Congress established a procedure enabling civil actions

14

challenging the lawfulness of electronic surveillance to go forward to a decision on the merits

15

while still protecting the interests of national security. “The statute, unlike the common law state

16

secrets privilege, provides a detailed regime to determine whether surveillance ‘was lawfully

17

authorized and conducted.’ ” Al-Haramain I, 507 F.3d at 1205 (quoting § 1806(f)). Rather than

18

excluding national security evidence, as would otherwise occur under the state secrets privilege,

19

Congress instead displaced the state secrets privilege and required courts to use all of the relevant

20

national security evidence, reviewed in camera and ex parte, in deciding the legality of the

21 surveillance.7

22

23 7 See In re National Security Agency Telecommunications Records Litigation (Al-Haramain
24 Islamic Foundation, Inc. v. Bush), 564 F. Supp. 2d 1109, 1124 (N.D. Cal. 2008) (holding that section 1806(f) displaces the state secrets privilege). The question of whether section 1806(f)
25 displaces the state secrets privilege is one of the issues raised in the pending appeal in Al-Haramain
Islamic Foundation v. Obama, Ninth Cir. Nos. 11-15468, 11-15535 (argued June 1, 2012). This 26 issue has been before the same panel of the Ninth Circuit in three previous appeals (Al-Haramain I;
27 Hepting v. AT&T; Jewel), and in each of these appeals, the Ninth Circuit has found it unnecessary to decide the issue. In the pending Al-Haramain appeal, the parties have presented grounds that
28 would permit the Ninth Circuit to affirm or reverse without reaching the section 1806(f) issue. In its remand order in this case, the Ninth Circuit, rather than suggesting that this Court should await a

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1

In relevant part, section 1806(f) provides:

2

. . . whenever any motion or request is made by an aggrieved person pursuant to any

other statute or rule of the United States or any State . . . to discover or obtain

3

applications or orders or other materials relating to electronic surveillance . . . the

4

United States district court . . . shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would

5

harm the national security of the United States, review in camera and ex parte the

application, order, and such other materials relating to the surveillance as may be

6

necessary to determine whether the surveillance of the aggrieved person was

lawfully authorized and conducted. 7
§ 1806(f) (emphasis added).8

8

Congress’ purpose in section 1806(f) is what its text states it to be: to provide a method “to

9

determine whether the surveillance of the aggrieved person was lawfully authorized and

10

conducted” in those instances where the government tells the court that “disclosure or an adversary

11

hearing would harm the national security of the United States.” § 1806(f). Congress has required

12

the courts to decide the merits of the lawfulness of electronic surveillance by “review[ing] in

13

camera and ex parte the application, order, and such other materials relating to the surveillance as

14

may be necessary.” Id.

15

In cases involving electronic surveillance, section 1806(f) displaces and supersedes the state

16

secrets privilege. Congress expressly provided that section 1806(f) applies “notwithstanding any

17

other law,” including the state secrets privilege. This expression of Congress’ intent to displace the

18

state secrets privilege in cases challenging the lawfulness of electronic surveillance is unequivocal.

19

There is no doubt that Congress has the power to displace the state secrets privilege:

20

“Congress, of course, has plenary authority over the promulgation of evidentiary rules for the

21

federal courts.” Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 31 (1976). Congress has also set

22

the standard by which the question of displacement should be judged: Federal Rule of Evidence

23

501 mandates that whenever a “federal statute” “provides otherwise,” the common law governing

24

25
26 possible ruling in Al-Haramain on the section 1806(f) issue, instructed this Court to determine the validity of the government’s state secret defense. Jewel, 673 F.3d at 913-14.
27 8 The full text of section 1806(f) and other pertinent sections of FISA are set forth in the statutory 28 appendix attached hereto.

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1 the state secrets privilege is displaced.9 Fed. R. Evid. 501; see H.R. Rep. No. 93-650 (1973),

2 reprinted in 1974 U.S.C.C.A.N. 7075, 7082 (explaining that Rule 501 encompasses the “secrets of

3 state” privilege); S. Rep. No. 93-1277 (1974), reprinted in 1974 U.S.C.C.A.N. 7051, 7058 (same).

4 Section 1806(f) meets this test: it is a federal statute that provides for the discovery and admission,

5 under special protective procedures and “notwithstanding any other law” (§ 1806(f)), of evidence

6 the state secrets privilege would otherwise exclude.

7

Section 1806(f) leaves no room for the state secrets privilege to operate. In electronic

8 surveillance cases, section 1806(f) and the state secrets privilege are mutually exclusive because

9 section 1806(f) directs courts to use national security evidence that the state secrets privilege would

10 otherwise exclude. Applying the state secrets privilege in an electronic surveillance lawsuit would

11 mean nullifying section 1806(f) and preventing courts from adjudicating the legality of electronic

12 surveillance, contrary to Congress’ intent.

13

C. FISA’s Statutory Scheme And Legislative History Confirm That Section

1806(f) Displaces The State Secrets Privilege 14

1. Congress Enacted FISA To Establish Comprehensive Control Over

15

National Security Electronic Surveillance

16

FISA’s statutory scheme and legislative history further reinforce section 1806(f)’s plain

17 language displacing the state secrets privilege. FISA was enacted in 1978 in the wake of the

18 Church Committee’s Senate investigation revealing that for many decades the Executive, without

19 any warrants or other lawful authority, had been conducting secret dragnet surveillance invading

20 the privacy and violating the constitutional rights of thousands of ordinary Americans. S. Select

21 Comm. to Study Governmental Operations with Respect to Intelligence Activities, Book II:

22 Intelligence Activities and the Rights of Americans, S. Rep. No. 94-755 (1976) (hereafter “Book

23 9 Congress itself drafted Rule 501, unlike most provisions of the Federal Rules of Evidence, which

24 were drafted by the advisory committee on the Federal Rules of Evidence. As originally enacted

by Congress in 1975, Rule 501 provided that “the privilege of . . . [the] government . . . shall be 25 governed by the principles of the common law” “[e]xcept as otherwise . . . provided by Act of

26

Congress.” Pub. L. No. 93-595, § 1, 88 Stat. 1933 (1975), codified as Fed. R. Evid. 501. Rule 501 was operative at the time section 1806(f) was enacted in 1978. In December 2011, Rule 501 was

27 reworded, and now states that the common law “governs a claim of privilege unless any of the following provides otherwise: . . . a federal statute.” Fed. R. Evid. 501. These changes are

28 “stylistic only.” Fed. R. Evid. 501, advisory committee’s 2011 note.

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1 II”).10

2

The Church Committee concluded that the “massive record of intelligence abuses over the

3 years” had “undermined the constitutional rights of citizens . . . primarily because checks and

4 balances designed by the framers of the Constitution to assure accountability have not been

5 applied.” Book II at 290, 289. The Committee urged “fundamental reform,” recommending

6 legislation to “make clear to the Executive branch that [Congress] will not condone, and does not

7 accept, any theory of inherent or implied authority to violate the Constitution, the proposed new

8 charters, or any other statutes.” Id. at 289, 296-97. Citing Youngstown Sheet & Tube Co. v.

9 Sawyer, 343 U.S. 579 (1952), it noted that “there would be no such authority after Congress has . . .

10 covered the field by enactment of a comprehensive legislative charter” that would “provide the

11 exclusive legal authority for domestic security activities” and prohibit “warrantless electronic

12 surveillance.” Book II at 297 & n.10 (emphasis added).

13

The Committee recommended the creation of civil remedies for unlawful surveillance. The

14 purpose of these remedies would be both to “afford effective redress to people who are injured by

15 improper federal intelligence activity” and “to deter improper intelligence activity.” Book II at

16 336. The Committee also anticipated section 1806(f)’s displacement of the state secrets privilege

17 to permit civil claims of unlawful surveillance to be litigated, stating that “courts will be able to

18 fashion discovery procedures, including inspections of materials in chambers, and to issue orders

19 as the interests of justice require, to allow plaintiffs with substantial claims to uncover enough

20 factual material to argue their case, while protecting the secrecy of governmental information in

21 which there is a legitimate security interest.” Id. at 337.

22

FISA was Congress’ response to the Church Committee’s recommendations: “This

23 legislation is in large measure a response to the revelations that warrantless electronic surveillance

24 in the name of national security has been seriously abused.” S. Rep. No. 95-604(I) at 7 (1977),

25 reprinted in 1978 U.S.C.C.A.N. 3904, 3908. FISA implemented the Church Committee’s

26 recommendations by imposing strict limits on the Executive’s power to conduct electronic

27 28 10 Available at http://www.aarclibrary.org/publib/contents/church/contents_church_reports.htm.

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1 surveillance. E.g., S. Rep. No. 95-604(I), at 8, 1978 U.S.C.C.A.N. at 3910 (FISA “curb[s] the

2 practice by which the Executive Branch may conduct warrantless electronic surveillance on its own

3 unilateral determination that national security justifies it”); S. Rep. No. 94-1035, at 11 (1976) (“the

4 past record establishes clearly that the executive branch cannot be the sole or final arbiter of when

5 such proper circumstances [justifying electronic surveillance] exist”), 20 (“executive self-restraint,

6 in the area of national security electronic surveillance, is neither feasible nor wise”). By providing

7 “effective, reasonable safeguards to ensure accountability and prevent improper surveillance” by

8 the Executive, FISA restored the balance between the protection of civil liberties and the protection

9 of the national security. S. Rep. No. 95-604(I), at 7, 1978 U.S.C.C.A.N. at 3908.

10

2. Section 1806(f) Is An Essential Element Of Congress’ Comprehensive

Scheme For Judicially Enforcing The Limitations It Has Imposed On

11

Electronic Surveillance

12

To ensure that the Executive could not evade the limits Congress imposed on electronic

13 surveillance, Congress expressly provided in FISA that the statutory authorizations of FISA, the

14 Wiretap Act, and the Stored Communications Act (SCA) are the exclusive means by which the

15 Executive may conduct electronic surveillance within the United States:

16

[P]rocedures in this chapter [the Wiretap Act, 18 U.S.C. §§ 2510-2522] or chapter

121 [the Stored Communications Act, 18 U.S.C. §§ 2701-2712] and the Foreign

17

Intelligence Surveillance Act of 1978 shall be the exclusive means by which

18

electronic surveillance, as defined in section 101 of such Act [50 U.S.C. § 1801], and the interception of domestic wire, oral, and electronic communications may be

19

conducted.

20 18 U.S.C. § 2511(2)(f) (emphasis added). Congress reconfirmed this exclusivity when it enacted

21 the FISA Amendments Act of 2008. 50 U.S.C. § 1812.

22

Given the history of past executive abuses, Congress ensured that its mandate of statutory

23 exclusivity would become a reality by establishing mechanisms for judicial enforcement of the

24 comprehensive procedural and substantive limitations on electronic surveillance it had imposed on

25 the Executive. Accordingly, FISA provides for judicial review of national security electronic

26 surveillance before it occurs, requiring (with limited exceptions) that the government obtain a

27 warrant from the Foreign Intelligence Surveillance Court (“FISC”) before conducting surveillance.

28 See 50 U.S.C. § 1804.

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1

FISA also authorizes the courts to review the legality of governmental surveillance after it

2 has occurred. It does so by creating criminal and civil liability for unlawful electronic surveillance

3 (50 U.S.C. §§ 1809, 1810) and by providing for the suppression in criminal cases of unlawfully

4 obtained surveillance evidence (50 U.S.C. § 1806(e)). It also does so by creating section 1806(f)’s

5 requirement that courts determine the legality of surveillance and that they do so using national

6 security evidence, instead of excluding that evidence under the state secrets privilege. Both FISA’s

7 civil liability provision, section 1810, and section 1806(f)’s mandate for using national security

8 evidence were enacted in 1978 as part of the original FISA statute and have never been amended or

9 cut back. Pub. L. No. 95-511, §§ 106(f), 110; 92 Stat. at 1794, 1796.

10

Section 1806(f)’s application to civil cases enforcing statutory and constitutional limits on

11 electronic surveillance is a necessary part of Congress’ statutory scheme regulating electronic

12 surveillance. Without section 1806(f), the civil enforcement mechanism Congress created to

13 prevent surveillance not authorized by FISA, the Wiretap Act, or the SCA would be toothless. By

14 asserting the state secrets privilege to block judicial review of the lawfulness of its activities, the

15 Executive could free itself from the restraints of FISA, the Wiretap Act, and the SCA and once

16 again “conduct warrantless electronic surveillance on its own unilateral determination that national

17 security justifies it.” S. Rep. No. 95-604(I) at 8, 1978 U.S.C.C.A.N. at 3910.

18

FISA’s legislative history confirms that section 1806(f) applies to civil cases in which a

19 plaintiff is seeking a determination of the legality of electronic surveillance in order to vindicate

20 constitutional and statutory rights, as well as to criminal cases in which a defendant is seeking to

21 suppress surveillance evidence:

22

The conferees [of the joint House and Senate Committee of Conference] agree that

an in camera and ex parte proceeding is appropriate for determining the lawfulness

23

of electronic surveillance in both criminal and civil cases.

24 H.R. Conf. Rep. No. 95-1720, at 32 (1978), reprinted in 1978 U.S.C.C.A.N. 4048, 4061 (emphasis

25 added) (hereafter “FISA Conf. Rep.”).

26

Section 1806(f) applies to all civil claims challenging the lawfulness of electronic

27 surveillance, whether brought under section 1810 of FISA or some other law, such as the

28 constitutional claims, Wiretap Act claims, and SCA claims brought by plaintiffs here. Section

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1 1806(f) requires the court to determine whether the challenged surveillance was “lawfully

2 authorized and conducted” under all applicable legal standards. In addition, section 1806(f) applies

3 to all electronic surveillance, whatever its purpose. FISA defines “electronic surveillance” to

4 include any “acquisition by an electronic, mechanical, or other surveillance device of the contents

5 of any wire communication . . . without the consent of any party thereto.” 50 U.S.C. § 1801(f)(2).

6 This definition of “electronic surveillance” is not limited to foreign intelligence surveillance under

7 FISA but includes any acquisition of a domestic wire communication.

8

Section 1806(f) also applies to plaintiffs’ communications records claims because acquiring

9 those records is electronic surveillance under FISA. “Electronic surveillance” is the acquisition of

10 the “contents” of communications. 50 U.S.C. § 1801(f)(2). The statutory term “contents”

11 encompasses communications records because FISA defines “contents” to include “information

12 concerning the identity of the parties to such communication or the existence . . . of that

13 communication.” 50 U.S.C. § 1801(n) (emphasis added). Independently, information concerning

14 disclosure of communications records is subject to section 1806(f) because such information is

15 “material[] relating to the surveillance.” § 1806(f).

16

FISA’s civil remedy provisions and section 1806(f)’s directive thus are both essential

17 elements of FISA’s statutory scheme. Section 1806(f) provides the practical means by which the

18 civil liability created to enforce substantive limitations on surveillance and to ensure that only

19 statutorily authorized electronic surveillance occurs can be litigated without endangering the 20 national security.11

21 V. Section 1806(f) Directs This Court To Determine Whether Defendants Subjected Plaintiffs To Unlawful Surveillance
22 For the reasons explained in the preceding section, section 1806(f) unconditionally
23 displaces any application of the state secrets privilege in this lawsuit, because plaintiffs’ claims all
24 allege unlawful electronic surveillance. Moreover, because the government has asserted that
25

26 11 Congress similarly enacted the Classified Information Procedures Act (CIPA), 18 U.S.C. App. 3, 27 to make it possible to litigate criminal cases involving state secrets. CIPA permits courts to use a
variety of procedures, including summaries in place of classified evidence, to enable litigation to 28 go forward consistent with due process.

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1 national security evidence exists that is relevant to plaintiffs’ claims, and because plaintiffs are

2 “aggrieved persons” who have sought “to discover . . . materials relating to the surveillance”

3 (§ 1806(f)), section 1806(f)’s procedures for handling that evidence under secure procedures have

4 been triggered.

5

Plaintiffs have rightfully sought discovery of materials relating to electronic surveillance

6 that are relevant to their claims. Dkt. #30. The government has asserted that disclosure of

7 evidence relating to plaintiffs’ claims would allegedly harm the national security of the United

8 States. Dkt. #18-3 at 3 (“Disclosure of the information covered by this privilege assertion

9 reasonably could be expected to cause exceptionally grave damage to the national security of the

10 United States.”); accord, Dkt. #18-4 at 3; see also Dkt. #31 at 14 (government’s statement that

11 plaintiffs’ discovery request (Dkt. #30) “demands discovery of the very facts at issue in the

12 privilege assertion”). Accordingly, section 1806(f) directs the Court to use section 1806(f)’s

13 procedures “to determine whether surveillance ‘was lawfully authorized and conducted’ ”

14 (Al-Haramain I, 507 F.3d at 1205 (quoting § 1806(f))).

15

Plaintiffs are “aggrieved persons.” Under FISA, an “aggrieved person” is simply either “a

16 person who is the target of an electronic surveillance or any other person whose communications

17 or activities were subject to electronic surveillance.” 50 U.S.C. § 1801(k) (emphasis added).

18 Section 1810’s civil remedy is available to any “aggrieved person.” Congress’ intent in creating

19 the “aggrieved person” standard was to make standing to bring FISA claims “coextensive, but no

20 broader than, those persons who have standing to raise claims under the Fourth Amendment with

21 respect to electronic surveillance.” H.R. Rep. No. 95-1283, at 66 (1978). The term was meant to

22 exclude only “persons, not parties to a communication, who may have been mentioned or talked

23 about by others,” because “such persons have no fourth amendment privacy right in conversations

24 about them.” Id. (emphasis added). Congress had “no intent to create a statutory right in such

25 persons,” and the only purpose of the “aggrieved person” limitation was to exclude from FISA’s

26 remedies those who were not parties to the intercepted communication. Id.

27

Section 1806(f) does not require a plaintiff to prove he or she is an “aggrieved person” who

28 has been surveilled before it comes into play. In the text of section 1806(f), “aggrieved person” is

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1 merely a description of a person subjected to surveillance who is seeking “to discover . . . materials

2 relating to the surveillance” “pursuant to any . . . statute or rule of the United States.” The purpose

3 of discovery for a plaintiff is to obtain evidence needed to prove his or her claims. Under settled

4 law, namely the Federal Rules of Civil Procedure, a plaintiff may propound discovery requests

5 without first proving up the elements of his or her claim. See Fed. R. Civ. P. 26(b); Beck v. Prupis,

6 529 U.S. 494, 500-501 (2000) (When Congress uses language with a settled meaning, Congress

7 “ ‘presumably knows and adopts the cluster of ideas that were attached to each borrowed word in

8 the body of learning from which it was taken and the meaning its use will convey to the judicial

9 mind unless otherwise instructed.’ ” (quoting Morissette v. United States, 342 U.S. 246, 263

10 (1952))). Section 1806(f) does not limit a plaintiff’s right to propound discovery.

11

Moreover, the plaintiff’s discovery request is not, in and of itself, the event that triggers

12 section 1806(f)’s in camera, ex parte procedures. Rather, the trigger is the government’s assertion

13 that national security evidence is at issue. § 1806(f). Without an assertion by the government that

14 national security evidence is at issue, section 1806(f)’s in camera, ex parte procedures never come

15 into play, discovery and trial continue along their ordinary course, evidence is disclosed, and the

16 district court determines the lawfulness of the surveillance in open proceedings. S. Rep.

17 No. 95-701, at 63 (1978), reprinted in 1978 U.S.C.C.A.N. 3973, 4032 (“The special procedures . . .

18 cannot be invoked until they are triggered by a Government affidavit that disclosure or an

19 adversary hearing would harm the national security . . . . If no such assertion is made, the

20 committee envisions . . . mandatory disclosure . . . .”); see also FISA Conf. Rep. at 31-32, 1978

21 U.S.C.C.A.N. at 4060-61. Because it is the government, not the plaintiff, that triggers section

22 1806(f), the plaintiff does not have to prove anything to trigger its operation.

23

The government has previously argued that, even if section 1806(f) displaces the state

24 secrets privilege, it does not apply to plaintiffs’ claims. It asserts that section 1806(f) applies only

25 if the plaintiff at the pleading stage and before seeking discovery first proves up both standing and

26 a prima facie case on the merits, including proving by a preponderance of the evidence that he or

27 she is an “aggrieved person” within the meaning of FISA. This is not the law.

28

The government makes up its position out of whole cloth. Nothing in FISA requires

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1 plaintiffs to prove at the outset that they are aggrieved persons before their lawsuit, and discovery,

2 can go forward. As explained above, the statutory language expressly permits the use of section

3 1806(f) when a plaintiff seeks discovery. In turn, discovery is proper on matters within the scope

4 of a plaintiff’s well-pleaded allegations. See Fed. R. Civ. P. 11(b)(3) (factual allegations are well-

5 pleaded if they “will likely have evidentiary support after a reasonable opportunity for further

6 investigation or discovery”); 26(b)(1) (permitting discovery of matters “relevant to any party’s

7 claim or defense”). Thus, well-pleaded allegations of electronic surveillance are sufficient to

8 support a discovery request to which section 1806(f) applies. It would turn section 1806(f), and the

9 rules of discovery and trial, upside down to require instead, as the government has suggested, that

10 plaintiffs first prove they have been subjected to surveillance before permitting them to request

11 discovery relating to the surveillance.

12

As the Ninth Circuit has held, plaintiffs have satisfied their burden of adequately alleging

13 standing for their claims, including alleging that the individual electronic communications of each

14 of them have been intercepted. Jewel, 673 F.3d at 910. Moreover, because each plaintiff has

15 alleged that his or her own communications and communications records were intercepted and

16 acquired by defendants, plaintiffs have each alleged not only a concrete and particularized injury

17 but also that they are “aggrieved persons,” i.e., “person[s] whose communications or activities

18 were subject to electronic surveillance.” 50 U.S.C. § 1801(k). Plaintiffs do not allege surveillance

19 of communications to which they were not a party and in which they were only mentioned or

20 talked about—the only type of surveillance excluded from the definition of “aggrieved person.”

21

In addition, plaintiffs have not simply alleged generally that their communications and

22 communications records have been subjected to electronic surveillance. They have presented

23 detailed and extensive allegations of the manner in which the surveillance of their communications

24 and communications records has been conducted. Dkt. #1 at ¶¶ 39-90.

25

Finally, although only well-pleaded allegations are required at this stage, plaintiffs possess

26 substantial evidence that they are aggrieved persons who have been subjected to unlawful

27 electronic surveillance. For example, the Klein and Marcus declarations and AT&T’s documents

28 establish that the NSA has intercepted and duplicated the communications transiting AT&T’s

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1 communications facility in San Francisco and elsewhere through which plaintiffs’ communications

2 travel. See generally Klein Decl.; Marcus Decl.; Russell Decl. That interception was part of the

3 PSP’s broader program of unlawful intelligence activities in which the law and the privacy rights

4 of U.S. citizens were violated. Binney Decl., ¶ 5; Drake Decl., ¶ 7. That interception also occurred

5 in the context of NSA infrastructure that far exceeds the capacity necessary for the storage of

6 discrete, targeted communications or even for the storage of the routing information from all

7 electronic communications. Binney Decl., ¶¶ 7-16; Drake Decl., ¶¶ 8-10; J. Kirk Wiebe Decl.,

8 ¶¶ 7-14. Thus, even if plaintiffs were required to produce evidence showing that they have been

9 subjected to electronic surveillance in order to demonstrate they are aggrieved persons, they have

10 done so.

11 VI. Conclusion

12

Plaintiffs’ motion for partial summary judgment should be granted.

13

14 DATE: June 29, 2012 15
16

Respectfully submitted,
s/ Richard R. Wiebe Richard R. Wiebe

17

CINDY COHN

LEE TIEN

18

KURT OPSAHL

JAMES S. TYRE

19

MARK RUMOLD

ELECTRONIC FRONTIER FOUNDATION

20

RICHARD R. WIEBE

21

LAW OFFICE OF RICHARD R. WIEBE

22

THOMAS E. MOORE III

THE MOORE LAW GROUP

23

RACHAEL E. MENY

24

PAULA L. BLIZZARD

MICHAEL S. KWUN

25

AUDREY WALTON-HADLOCK

KEKER & VAN NEST LLP

26

ARAM ANTARAMIAN

27

LAW OFFICE OF ARAM ANTARAMIAN

28

Attorneys for Plaintiffs

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1

STATUTORY APPENDIX

2 50 U.S.C. § 1806(f) - In camera and ex parte review by district court.

3

Whenever a court or other authority is notified pursuant to subsection (c) or (d) of this

4

section, or whenever a motion is made pursuant to subsection (e) of this section, or

5

whenever any motion or request is made by an aggrieved person pursuant to any other

6

statute or rule of the United States or any State before any court or other authority of the

7

United States or any State to discover or obtain applications or orders or other materials

8

relating to electronic surveillance or to discover, obtain, or suppress evidence or

9

information obtained or derived from electronic surveillance under this chapter, the United

10

States district court or, where the motion is made before another authority, the United States

11

district court in the same district as the authority, shall, notwithstanding any other law, if

12

the Attorney General files an affidavit under oath that disclosure or an adversary hearing

13

would harm the national security of the United States, review in camera and ex parte the

14

application, order, and such other materials relating to the surveillance as may be necessary

15

to determine whether the surveillance of the aggrieved person was lawfully authorized and

16

conducted. In making this determination, the court may disclose to the aggrieved person,

17

under appropriate security procedures and protective orders, portions of the application,

18

order, or other materials relating to the surveillance only where such disclosure is necessary

19

to make an accurate determination of the legality of the surveillance.

20

21 50 U.S.C. § 1801 - Definitions

22

As used in this subchapter:

23

* * * *

24

(f) “Electronic surveillance” means—

25

* * * *

26

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents

27

of any wire communication to or from a person in the United States, without the consent of

28

any party thereto, if such acquisition occurs in the United States, but does not include the

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1

acquisition of those communications of computer trespassers that would be permissible

2

under section 2511 (2)(i) of title 18;

3

* * * *

4

(k) “Aggrieved person” means a person who is the target of an electronic surveillance or

5

any other person whose communications or activities were subject to electronic

6

surveillance.

7

* * * *

8

(n) “Contents”, when used with respect to a communication, includes any information

9

concerning the identity of the parties to such communication or the existence, substance,

10

purport, or meaning of that communication.

11

* * * *

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case4:08-cv-04373-JSW Document294-2 Filed10/24/14 Page1 of 46

1 CINDY COHN (SBN 145997)

RACHAEL E. MENY (SBN 178514)

cindy@eff.org 2 LEE TIEN (SBN 148216)
KURT OPSAHL (SBN 191303) 3 JAMES S. TYRE (SBN 083117)
MARK RUMOLD (SBN 279060)

rmeny@kvn.com BENJAMIN W. BERKOWITZ (SBN 244441) MICHAEL S. KWUN (SBN 198945) AUDREY WALTON-HADLOCK (SBN 250574)

4 ANDREW CROCKER (SBN 291596)

JUSTINA K. SESSIONS (SBN 270914)

DAVID GREENE (SBN 160107)

PHILIP J. TASSIN (SBN 287787)

5 ELECTRONIC FRONTIER FOUNDATION KEKER & VAN NEST, LLP

815 Eddy Street 6 San Francisco, CA 94109
Telephone: (415) 436-9333 7 Fax: (415) 436-9993

633 Battery Street San Francisco, CA 94111 Telephone: 415/391-5400; Fax: 415/397-7188

8 RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net
9 LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900
10 San Francisco, CA 94111 Telephone: (415) 433-3200
11 Fax: (415) 433-6382
12
13
14 Counsel for Plaintiffs

THOMAS E. MOORE III (SBN 115107) tmoore@rroyselaw.com ROYSE LAW FIRM, PC 1717 Embarcadero Road Palo Alto, CA 94303 Telephone: 650/813-9700; Fax: 650/813-9777
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

15

UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17

OAKLAND DIVISION

18

) Case No.: 4:08-cv-4373-JSW

19 CAROLYN JEWEL, TASH HEPTING,

)

YOUNG BOON HICKS, as executrix of the )

20 estate of GREGORY HICKS, ERIK KNUTZEN ) PLAINTIFFS CAROLYN JEWEL, ERIK

and JOICE WALTON, on behalf of themselves ) KNUTZEN, AND JOICE WALTON’S

21 and all others similarly situated,

) COMBINED REPLY IN SUPPORT OF

) THEIR MOTION FOR PARTIAL

22

Plaintiffs,

) SUMMARY JUDGMENT AND

) OPPOSITION TO THE GOVERNMENT

23

v.

) DEFENDANT’S CROSS-MOTION FOR

) PARTIAL SUMMARY JUDGMENT

24 NATIONAL SECURITY AGENCY, et al., )

) (Fourth Amendment Violation)

25

Defendants.

)

) Date: December 19, 2014

26 27

) )

Time: 9:00 a.m. Courtroom 5, Second Floor The Honorable Jeffrey S. White

28

Case No. 08-cv-4373-JSW PLAINTIFFS’ REPLY ISO MOTION FOR PARTIAL SUMMARY JUDGMENT RE FOURTH AMENDMENT & OPPOSITION TO DEFENDANT’S CROSS-MOTION

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1

TABLE OF CONTENTS

2

3 INTRODUCTION .......................................................................................................................... 1	  

4 ARGUMENT .................................................................................................................................. 1	  

5 I.	   The Government’s Mass Interception And Copying Of The Internet Communications Of

Plaintiffs And Millions Of Other Americans Is A Seizure .................................................... 1	  

6

A.	   The Fourth Amendment Protects Plaintiffs’ Possessory Interest In The Exclusive

7

Dominion and Control Of The Content Of Their Internet Communications ................... 1	  

8

B.	   The Fourth Amendment Protects Communications in Transit; The Government’s

Arguments To The Contrary Must Be Rejected .............................................................. 6	  

9

1.	   Even Short-Lived Copies Interfere With Plaintiffs’ Possessory Interest

10

And Constitute A Seizure........................................................................................... 6	  

11

2.	   The Government’s Reliance On Contraband Cases In Which Packages Are

Externally Inspected Is Misplaced ............................................................................. 6	  

12

II.	   The Government’s Examination Of The Contents Of Plaintiffs’ Internet

13

Communications Is A Search................................................................................................. 9	  

14 III.	   The Intrusive Searches And Seizures Here Are Outside The Scope Of Any “Foreign

Intelligence” Or Other “Special Needs” Exception To The Warrant Requirement............. 13	  

15

A.	   No “Special Needs” Exception Exists On These Facts.................................................. 13	  

16

B.	   The Decisions On Which The Government Relies Do Not Support A “Special

17

Needs” Exception For Mass Suspicionless Internet Surveillance.................................. 19	  

18 IV.	   Even If The Warrant Requirement Did Not Apply Here, The Mass Seizures And

Searches The Government Conducts Here Are Unreasonable ............................................ 21	  

19

V.	   The Government’s Evidentiary Challenges To The Klein And Marcus Declarations

20

Lack Merit, And Plaintiffs’ Evidence Supports Summary Judgment.................................. 24	  

21

A.	   Mark Klein’s Declaration Is Based On His Personal Knowledge And Experience

At AT&T ........................................................................................................................ 25	  

22

B.	   The Evidence That The Splitter Is Part Of The Government’s Internet Backbone

23

Surveillance Is Admissible............................................................................................. 27	  

24

C.	   The Evidence That Similar Splitters Exist At Other Locations Is Admissible .............. 28	  

25

D.	   The Evidence Of The Electronic Devices In the SG3 Secure Room Is Admissible...... 29	  

26

E.	   The Marcus Declaration Is Admissible Expert Testimony ............................................ 30	  

27

F.	   Plaintiff’s Evidence Is Not Inadmissible As “Stale”...................................................... 31	  

28 VI.	   The State Secrets Privilege Provides No Defense ............................................................... 32	  

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1 VII.	   Plaintiffs’ Motion Is Procedurally Proper ............................................................................ 34	   2 VIII.	  The Government’s Cross-Motion Should Be Denied .......................................................... 35	   3 CONCLUSION ............................................................................................................................. 35	   4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2

Federal Cases

3 Al Haramain Islamic Foundation, Inc. v. Bush,

4

507 F.3d 1190 (9th Cir. 2007)...............................................................................................32

5 Al Haramain Islamic Foundation, Inc. v. U.S. Department of Treasury,

686 F.3d 965 (9th Cir. 2011)...............................................................................14, 16, 21, 22

6

Anestis v. U.S.,

7

__ F. Supp. 3d __, 2014 WL 4928959 (E.D. Ky. Sept. 30, 2014) ........................................28

8 Arizona v. Hicks,

9

480 U.S. 321 (1987) ................................................................................................................8

10 Barthelemy v. Air Lines Pilots Ass’n,

897 F.2d 999 (9th Cir. 1990)...........................................................................................26, 27

11

Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls,

12

536 U.S. 822 (2002) ..............................................................................................................15

13 Berger v. New York,

14

388 U.S. 41 (1967) ..............................................................................................................3, 5

15 Bourgeois v. Peters, 387 F.3d 1303 (11th Cir. 2004).......................................................................................12, 13

16 Caldarola v. Cnty. of Westchester,

17

343 F.3d 570 (2d Cir. 2003)....................................................................................................3

18 Carpenter v. U.S.,

19

484 U.S. 19 (1987) ..................................................................................................................2

20 Cefalu v. Holder, 2013 WL 5315079 (N.D. Cal. Sept. 23, 2013) .....................................................................28

21 Celotex Corp. v. Catrett,

22

477 U.S. 317 (1986) ..............................................................................................................35

23 Chandler v. Miller, 520 U.S. 305 (1997) ..................................................................................................14, 15, 19
24

25

City of Indianapolis v. Edmond, 531 U.S. 32 (2000) .........................................................................................................passim

26 Clapper v. Amnesty Int’l USA,

27

__ U.S. __, 133 S. Ct. 1138 (2013) .......................................................................................34

28

Case No. 08-cv-4373-JSW

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Case4:08-cv-04373-JSW Document294-2 Filed10/24/14 Page5 of 46

1 DIRECTV, Inc. v. Budden, 420 F.3d 521 (5th Cir. 2005).................................................................................................26
2

3

Ex parte Jackson, 96 U.S. 727 (1877) ..............................................................................................................1, 7

4 Ferguson v. City of Charleston,

5

532 U.S. 67 (2001) ....................................................................................................14, 15, 16

6 Florida v. Jardines, __ U.S. __, 133 S. Ct. 1409 (2013) .......................................................................................11
7

Fonseca v. Sysco Food Servs. Of Ariz., Inc.,

8

374 F.3d 840 (9th Cir. 2004).................................................................................................25

9 Fraser v. Goodale,

10

342 F.3d 1032 (9th Cir. 2003)...............................................................................................25

11 General Dynamics Corp. v. U.S.,
__ U.S. __, 131 S. Ct. 1900 (2011) .......................................................................................32 12

Globe Sav. Bank, F.S.B. v. U.S.,

13

61 Fed. Cl. 91 (Fed. Cl. 2004)...............................................................................................28

14 Great Am. Assur. Co. v. Liberty Surplus Ins. Corp.,

15

669 F. Supp. 2d 1084 (N.D. Cal. 2009) ..........................................................................26, 27

16 Halperin v. Kissinger, 807 F.2d 180 (D.C. Cir. 1986) ..............................................................................................14

17

Hepting v. AT&T Corp.,

18

439 F. Supp. 2d 974 (N.D. Cal. 2006) ........................................................................9, 32, 34

19 Hoffa v. U.S.,

20

385 U.S. 293 (1966) ................................................................................................................3

21 Illinois v. Caballes, 543 U.S. 405 (2005) ........................................................................................................10, 11

22

In re Application of the U.S. for a Search Warrant for Contents of Electronic Mail,

23

665 F. Supp. 2d 1210 (D. Or. 2009)........................................................................................4

24 In re Directives to Yahoo! Inc.,

25

FISC-R No. 08-01 (Foreign Int. Surv. Ct. Rev., Aug. 22, 2008)....................................20, 23

26 In re Sealed Case, 310 F.3d 717 (Foreign Int. Surv. Ct. Rev. 2002) ............................................................19, 21

27 In re Sealed Case,

28

494 F.3d 139 (D.C. Cir. 2007) ..............................................................................................33

Case No. 08-cv-4373-JSW

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1 In re Search of Info. Associated with [Redacted] at mac.com, No. 14–228 (JMF), 2014 WL 1377793 (D.D.C. Apr. 7, 2014) ..............................................3
2

3

In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 157 (2d Cir. 2008)..................................................................................................19

4 Jacobson v. Rose,

5

592 F.2d 515 (9th Cir. 1978)...................................................................................................5

6 Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998)...............................................................................................32
7

Katz v. U.S.,

8

389 U.S. 347 (1967) ......................................................................................................3, 5, 14

9 L-3 Commc’ns Integrated Sys. v. U.S.,

10

91 Fed. Cl. 347 (Fed. Cl. 2010).............................................................................................28

11 Lebron v. Wilkins,
820 F. Supp. 2d 1273 (M.D. Fla. 2011) ................................................................................13 12

LeClair v. Hart,

13

800 F.2d 692 (7th Cir. 1986)...................................................................................................2

14 Lujan v. Defenders of Wildlife,

15

504 U.S. 555 (1992) ..............................................................................................................34

16 Maryland v. King, __ U.S. __, 133 S. Ct. 1958 (2013) .................................................................................18, 22

17

Michigan Dept. of State Police v. Sitz,

18

496 U.S. 444 (1990) ........................................................................................................19, 23

19 Nat’l Treasury Employees Union v. Von Raab,

20

489 U.S. 656 (1989) ..............................................................................................................15

21 Noel v. Hall, 568 F.3d 743 (9th Cir. 2009)...................................................................................................5

22

Ortega v. O’Connor,

23

146 F.3d 1149 (9th Cir. 1998)...............................................................................................31

24 Payton v. New York,

25

445 U.S. 573 (1980) ..............................................................................................................23

26 Quintero v. U.S., 2014 WL 201608 (D. Mass. Jan. 15, 2014) ..........................................................................28

27 [Redacted Caption],

28

2011 WL 10945618 (FISC Oct. 3, 2011)........................................................................20, 21

Case No. 08-cv-4373-JSW

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PLAINTIFFS’ REPLY ISO MOTION FOR PARTIAL SUMMARY JUDGMENT RE FOURTH AMENDMENT &

OPPOSITION TO DEFENDANT’S CROSS-MOTION

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1 Riley v. California, 573 U.S. __, 134 S. Ct. 2473 (2014) ...............................................................................20, 21
2

3

Samson v. California, 547 U.S. 843 (2006) ..............................................................................................................21

4 Sjoblom v. Charter Commc’ns, LLC,

5

571 F. Supp. 2d 961 (W.D. Wis. 2008)...........................................................................26, 27

6 Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602 (1989) ..............................................................................................................15
7

Szajer v. City of Los Angeles,

8

632 F.3d 607 (9th Cir. 2011).................................................................................................31

9 U.S. v. Aukai,

10

497 F.3d 955 (9th Cir. 2007)...................................................................................................4

11 U.S. v. Best,
219 F.3d 192 (2d Cir. 2000)..................................................................................................28 12

U.S. v. Bin Laden,

13

126 F. Supp. 2d 264 (S.D.N.Y. 2000)...................................................................................19

14 U.S. v. Brown,

15

884 F.2d 1309 (9th Cir. 1989).................................................................................................7

16 U.S. v. Buck, 548 F.2d 871 (9th Cir. 1977).................................................................................................19

17

U.S. v. Comprehensive Drug Testing, Inc.,

18

621 F.3d 1162 (9th Cir. 2010) (en banc).................................................................................4

19 U.S. v. Councilman,

20

418 F.3d 67 (1st Cir. 2005) (en banc) .....................................................................................5

21 U.S. v. Crist, 627 F. Supp. 2d 575 (M.D. Pa. 2008) .............................................................................12, 13

22

U.S. v. Davis,

23

482 F.2d 893 (9th Cir. 1973)...................................................................................................4

24 U.S. v. DeMoss,

25

279 F.3d 632 (8th Cir. 2002)...................................................................................................7

26 U.S. v. Doe, 960 F.2d 221 (1st Cir. 1992) .................................................................................................26

27 U.S. v. Duka,

28

671 F.3d 329 (3d Cir. 2011)..................................................................................................19

Case No. 08-cv-4373-JSW

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1 U.S. v. England, 971 F.2d 419 (9th Cir. 1992)...................................................................................................7
2

3

U.S. v. Famania-Roche, 537 F.3d 71 (1st Cir. 2008) ...................................................................................................26

4 U.S. v. Ganias,

5

755 F.3d 125 (2d Cir. 2014)....................................................................................................4

6 U.S. v. Gant, 112 F.3d 239 (6th Cir. 1997)...................................................................................................7
7

U.S. v. Gorshkov,

8

2001 WL 1024026 (W.D. Wash. May 23, 2001)....................................................................4

9 U.S. v. Hall,

10

978 F.2d 616 (10th Cir. 1992).................................................................................................7

11 U.S. v. Harvey,
961 F.2d 1361 (8th Cir. 1992).................................................................................................7 12

U.S. v. Hickey,

13

917 F.2d 901 (6th Cir. 1990).................................................................................................25

14 U.S. v. Hoang,

15

486 F.3d 1156 (9th Cir. 2007).................................................................................................7

16 U.S. v. Jacobsen, 466 U.S. 109 (1984) .......................................................................................................passim

17

U.S. v. Jefferson,

18

566 F.3d 928 (9th Cir. 2009)...............................................................................................2, 8

19 U.S. v. Jefferson,

20

571 F. Supp. 2d 696 (E.D. Va. 2008)..................................................................................3, 4

21 U.S. v. Karo, 468 U.S. 705 (1984) ..............................................................................................................10

22

U.S. v. Mohamud,

23

2014 WL 2866749 (D. Or. June 24, 2014) .....................................................................20, 23

24 U.S. v. Neal,

25

36 F.3d 1190 (1st Cir. 1994) ...........................................................................................26, 27

26 U.S. v. Place, 462 U.S. 696 (1983) ....................................................................................................6, 10, 11

27 U.S. v. Schofield,

28

80 Fed. Appx. 798 (3d Cir. 2003) ...........................................................................................7

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1 U.S. v. Scott, 450 F.3d 863 (9th Cir. 2005).................................................................................................23
2

3

U.S. v. Tamura, 694 F.2d 591 (9th Cir. 1982)...................................................................................................8

4 U.S. v. Thomas,

5

447 F.3d 1191 (9th Cir. 2006).................................................................................................2

6 U.S. v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980).................................................................................................19
7

U.S. v. Turk,

8

526 F.2d 654 (5th Cir. 1976)...................................................................................................5

9 U.S. v. Va Lerie,

10

424 F.3d 694 (8th Cir. 2005) (en banc)...................................................................................7

11 U.S. v. Van Leeuwen,
397 U. S. 249 (1970) ...............................................................................................................2 12

U.S. v. Wirtz,

13

357 F. Supp. 2d 1164 (D. Minn. 2005) .................................................................................26

14 U.S. v. Young,

15

153 F.3d 1079 (9th Cir. 1998).................................................................................................4

16 U.S. v. Young, 573 F.3d 711 (9th Cir. 2009).................................................................................................11

17

United States v. U.S. Dist. Ct. (Keith),

18

407 U.S. 297 (1972) ......................................................................................................5, 9, 14

19 Vernonia Sch. Dist. 47J v. Acton,

20

515 U.S. 646 (1995) ..............................................................................................................15

21

State Cases

22 Shulman v. Group W Prods., Inc., 18 Cal. 4th 200 (1998) ............................................................................................................2
23 Federal Statutes
24 17 U.S.C. § 106 ...................................................................................................................................2
25
26 18 U.S.C § 2510 ..................................................................................................................................5
27 18 U.S.C § 2511 ..................................................................................................................................5

28 50 U.S.C. § 1801 ........................................................................................................................passim

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1 50 U.S.C § 1802 ................................................................................................................................17
2 3 50 U.S.C. § 1804 ...............................................................................................................................17 4 50 U.S.C. § 1805 .........................................................................................................................17, 19 5 50 U.S.C. § 1806 .........................................................................................................................33, 34
6 50 U.S.C. § 1881 ...............................................................................................................................12

7

Federal Rules

8 Fed. R. Civ. P. 56 ........................................................................................................................25, 35

9 Fed. R. Evid. 602.........................................................................................................................25, 27

10 Fed. R. Evid. 701...............................................................................................................................26

11 Fed. R. Evid. 703...............................................................................................................................30
12 Fed. R. Evid. 801...................................................................................................................18, 28, 29
13 Fed. R. Evid. 802...............................................................................................................................18
14
Fed. R. Evid. 803...............................................................................................................................28 15

16

Constitutional Provisions

17 U.S. Const., amend. IV ..............................................................................................................passim

18

Legislative Materials

19 FISA Amendments Act of 2008, Pub. L. No. 110-261 (2008) .................................18, 19, 23, 28, 33

20

Other Authorities	  

21 FEDERAL JUDICIAL CENTER, MANAGING DISCOVERY OF ELECTRONIC INFORMATION: A POCKET GUIDE FOR JUDGES (2d ed. 2012) ..................................................................................................12

22 Orin S. Kerr, Fourth Amendment Seizures of Computer Data, 119 Yale L.J. 700 (2010) .................4

23 S. Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, Book

24

II: Intelligence Activities and the Rights of Americans, S. Rep. No. 94-755 (1976) ......................9

25

26

27

28

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1

INTRODUCTION

2

The government does not contest the fundamental Fourth Amendment principles set forth in

3 plaintiffs’ motion—that Americans deserve to be secure in their papers and effects and that the

4 Constitution grants them that security, chiefly, by ensuring that a judge issues a particularized

5 warrant upon probable cause prior to a search or seizure. These principles played a fundamental role

6 in the founding of this country and have been zealously guarded by the courts ever since.

7

The government instead contends that those principles have no application here, where the

8 government is unequivocally breaching the security and privacy of the papers and effects of millions

9 of individuals. Its position essentially is that it can circumvent the Fourth Amendment’s core

10 principles by copying communications in transit on the Internet instead of taking physical possession

11 of the originals, and by searching their contents very quickly with computers instead of searching

12 them with humans. The government further contends that if one of its purposes for the copying and

13 searching the communications is foreign intelligence, then the circumvention is complete, and the

14 Internet has for all practical purposes become a Fourth-Amendment-free zone.

15

The government is wrong. The wholesale, dragnet copying of innocent communications is a

16 seizure; the subsequent full-text review of the content of hundreds of millions of those

17 communications is a search. With a scale reaching the Internet activities of millions of innocent

18 Americans, the foreign intelligence purpose the government articulates is simply insufficient to

19 create an exception to the warrant requirement or to make its seizures and searches reasonable.

20

Plaintiffs are entitled to summary judgment.

21

ARGUMENT

22 I. 23 24 25

The Government’s Mass Interception And Copying Of The Internet Communications Of Plaintiffs And Millions Of Other Americans Is A Seizure
A. The Fourth Amendment Protects Plaintiffs’ Possessory Interest In The Exclusive Dominion and Control Of The Content Of Their Internet Communications
The Fourth Amendment protects “papers” and “effects” not merely for their status as objects,

26 but also for the information they contain. See Ex parte Jackson, 96 U.S. 727, 733 (1877) (protection

27 of letter’s contents in transit). As explained in plaintiffs’ Motion for Partial Summary Judgment

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1 (ECF No. 261; hereinafter “plaintiffs’ motion”), the Fourth Amendment’s protection of “papers” and

2 “effects” applies to the contents of digital communications in transit and prohibits their warrantless

3 seizure by copying. See Plaintiffs’ Motion (ECF No. 261) at 11-12. As the Seventh Circuit

4 observed when holding that IRS agents had engaged in a seizure merely by taking notes and taping

5 dictation describing the contents of certain documents, it “is the information and not the paper and

6 ink itself” that is actually seized. LeClair v. Hart, 800 F.2d 692, 696 n.5 (7th Cir. 1986).

7

A seizure occurs when “there is some meaningful interference with an individual’s

8 possessory interests” in property. U.S. v. Jacobsen, 466 U.S. 109, 113 (1984). “‘[A] possessory

9 interest derives from rights in property delineated by the parameters of law.’” U.S. v. Jefferson,

10 566 F.3d 928, 934 (9th Cir. 2009). As the Ninth Circuit has confirmed, “[a] ‘possessory or

11 ownership interest’ need not be defined narrowly.” U.S. v. Thomas, 447 F.3d 1191, 1197-99 (9th

12 Cir. 2006) (unauthorized driver of a rental car had possessory interest in the car). Here, plaintiffs

13 have a possessory interest in the contents of their communications and that interest extends to the

14 right to exclude others from copying their communications. Plaintiffs’ possessory interest in the

15 contents of their communications exists under property law—including copyright and the common

16 law (see 17 U.S.C. § 106; Carpenter v. U.S., 484 U.S. 19, 26 (1987) (“Confidential business

17 information has long been recognized as property.”))—and under tort law, which protects against the

18 invasion and misappropriation of private information (see Shulman v. Group W Prods., Inc., 18 Cal.

19 4th 200, 232 (1998) (tort to “obtain[] unwanted access to data about[] the plaintiff”).

20

An exercise of “dominion and control” by the government is one type of meaningful

21 interference that results in a seizure. Jacobsen, 466 U.S. at 120-21 & n.18. It can occur when the

22 government asserts control over an item entrusted to a service provider for transit. Id. As the

23 Jacobsen court noted: “[T]he agents took custody of the package from Federal Express after they

24 arrived. Although respondents had entrusted possession of the items to Federal Express, the

25 decision by governmental authorities to exert dominion and control over the package for their own

26 purposes clearly constituted a ‘seizure,’ . . . .” Id. (citing U.S. v. Van Leeuwen, 397 U. S. 249

27 (1970)).

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1

The government interferes with plaintiffs’ possessory interests in their communications and

2 exercises dominion and control over them when it copies those communications at stage one, even 3 though the communications are in transit in intangible form.1 “[W]hile copying the contents of a

4 person’s documents by way of photographs or written notes does not interfere with a person’s

5 possession of those documents, it does interfere with the person’s sole possession of the information

6 contained in those documents: it diminishes the person’s privacy value in that information.” U.S. v.

7 Jefferson, 571 F. Supp. 2d 696, 703 (E.D. Va. 2008). This is because “the Fourth Amendment

8 protects an individual’s possessory interest in information itself, and not simply in the medium in

9 which it exists.” Id. at 702; see also In re Search of Info. Associated with [Redacted] at mac.com,

10 No. 14–228 (JMF), 2014 WL 1377793, at *3 (D.D.C. Apr. 7, 2014) (collecting cases in which

11 copying e-mails held a seizure), vacated on other grounds, 2014 WL 4094565 (D.D.C. Aug. 8,

12 2014).

13

Indeed, the Supreme Court has long held that intangible communications are seized when

14 they are copied. In Berger v. New York, the Court found an electronic eavesdropping statute

15 unconstitutional because it lacked any requirement of particularity and gave officers “a roving

16 commission to ‘seize’ any and all conversations.” 388 U.S. 41, 59 (1967). Noting that the “property

17 sought” was intangible conversations, the Court repeatedly referred to the act of recording—that is,

18 copying—the conversation as a “seizure” under the Fourth Amendment. Id. at 59-60. Similarly, in

19 Katz v. U.S., the Court held that “electronically listening to and recording the petitioner’s words . . .

20 constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.” 389 U.S. 347,

21 353 (1967) (italics added); accord Hoffa v. U.S., 385 U.S. 293, 301 (1966) (“the protections of the

22 Fourth Amendment are surely not limited to tangibles, but can extend as well to oral statements”);

23 Caldarola v. Cnty. of Westchester, 343 F.3d 570, 574 (2d Cir. 2003) (videotaping suspect was a

24 seizure of his image; “The Fourth Amendment seizure has long encompassed the seizure of

25 intangibles as well as tangibles.”).

26

27 1 Stage one is described in Plaintiffs’ Motion (ECF No. 261) at 5-6.
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1

Thus, the government may interfere with intangible possessory interests in information just

2 as it does with physical property—by depriving a person of “exclusive control” over the

3 information. U.S. v. Ganias, 755 F.3d 125, 137 (2d Cir. 2014). In Ganias, the Second Circuit had

4 no difficulty finding that the act of copying of a defendant’s computer files beyond the scope of a

5 warrant was a seizure since it “deprived him of exclusive control over those files.” Id. at 137. In

6 U.S. v. Comprehensive Drug Testing, Inc., the Ninth Circuit likewise held that the government had 7 improperly “seized” data when it copied electronic data outside the scope of a search warrant.2

8 621 F.3d 1162, 1166 (9th Cir. 2010) (en banc); id. at 1176 (“Seizure of, for example, Google’s email

9 servers to look for a few incriminating messages could jeopardize the privacy of millions.”).

10

Making a copy of plaintiffs’ electronic data, as the government does here, interferes with

11 their right to control the information contained in the original copy and is thus a seizure.3 Ganias,

12 755 F.3d at 137; Jefferson, 571 F. Supp. 2d at 702-03; Orin S. Kerr, Fourth Amendment Seizures of

13 Computer Data, 119 Yale L.J. 700, 707 (2010). The government exercises “dominion and control”

14 over the communications by making copies of them with the splitter at stage one and subsequently

15 filtering and then searching the copies at stages two and three. See Jacobsen, 466 U.S. at 120-21;

16 Plaintiffs’ Motion (ECF No. 261) at 4-8. Because plaintiffs have a possessory interest in their

17 communications, the act of copying is a substantial interference with that interest. By making a

18 complete unauthorized copy of plaintiffs’ communications, the government seizes the

19 communications and usurps plaintiffs’ dominion and control over the information in those

20 communications. Id.

21 2 Before Comprehensive Drug Testing, two district courts in the Ninth Circuit had reached the
22 opposite conclusion. U.S. v. Gorshkov, No. CR00-550C, 2001 WL 1024026, at *3 (W.D. Wash.

23

May 23, 2001); In re Application of the U.S. for a Search Warrant for Contents of Electronic Mail, 665 F. Supp. 2d 1210, 1222 (D. Or. 2009). These decisions are no longer sound authority.

24 3 Whether the seizures and searches here are conducted by the government or by AT&T at the
government’s direction is irrelevant. The Fourth Amendment applies whenever a “private party acts 25 as an ‘instrument or agent’ of the government.” U.S. v. Young, 153 F.3d 1079, 1080 (9th Cir. 1998);
26 accord U.S. v. Davis, 482 F.2d 893, 897 (9th Cir. 1973) (search of airline passengers by airline employees at government’s direction was a government search; “The Fourth Amendment applies to
27 a search whenever the government participates in any significant way in th[e] total course of conduct.”), overruled on other grounds by U.S. v. Aukai, 497 F.3d 955 (9th Cir. 2007).
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1

Thus, contrary to the government’s assertion, plaintiffs do have a possessory interest in the

2 contents of their communications even when their communications are in the form of “modulated

3 electromagnetic impulses moving . . . across fiber-optic networks.” Govt. Opp. (ECF No. 285)

4 at 26. Under the government’s argument, digital information would never be considered “seized”

5 unless the government took possession of some sort of physical artifact like a hard drive or a server.

6 But the scope of the Fourth Amendment’s protections do not vary depending on whether a person’s

7 information is carried by ink written on tree pulp or by light waves. See Berger, 388 U.S. at 59-60

8 (conversation was seized when recorded). And of course it is plaintiffs’ information, not the light

9 waves that carry it, that the government seeks here.

10

The conclusion that a seizure is effected the moment plaintiffs’ communications are copied is

11 consistent with the Wiretap Act’s prohibition against “intercept[ing] any wire, oral, or electronic

12 communication,” 18 U.S.C § 2511(1)(a), “through the use of any electronic, mechanical, or other

13 device,” id. at § 2510(4). The Wiretap Act is instructive because Congress drew many of its

14 provisions “to meet the constitutional requirements for electronic surveillance enunciated by” the

15 Supreme Court in Berger and Katz. United States v. U.S. Dist. Ct. (Keith), 407 U.S. 297, 302

16 (1972). As discussed above, Berger and Katz speak directly to the Fourth Amendment’s protection

17 against seizure of intangible communications. Under the Wiretap Act, interception occurs the

18 moment communications are captured by a device, not when the copy is later listened to by a

19 human. U.S. v. Turk, 526 F.2d 654, 658 (5th Cir. 1976); Jacobson v. Rose, 592 F.2d 515, 522 (9th

20 Cir. 1978) (act of listening is unnecessary to establish interception). As the Ninth Circuit has

21 explained, interception “occurs ‘when the contents of a wire communication are captured or

22 redirected in any way.’” Noel v. Hall, 568 F.3d 743, 749 (9th Cir. 2009). The First Circuit has

23 likewise held that emails are intercepted when they are diverted while in transit in order to be

24 copied. U.S. v. Councilman, 418 F.3d 67, 70-71, 79 (1st Cir. 2005) (en banc). Here, the government

25 intercepts and seizes plaintiffs’ communications by copying and diverting them through the splitter

26 at stage one, regardless of whether they are later retained after stages two and three.

27

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B. The Fourth Amendment Protects Communications in Transit; The

1

Government’s Arguments To The Contrary Must Be Rejected

2

1. Even Short-Lived Copies Interfere With Plaintiffs’ Possessory Interest

And Constitute A Seizure 3
The government raises a straw man by arguing that whether a seizure occurs here depends on

4 whether it has delayed delivery of plaintiffs’ Internet communications. Plaintiffs do not contend that

5 the seizure takes the form of a delay in their communications; rather, the copying is itself the

6 seizure, irrespective of any delay.4 Because the government seizes plaintiffs’ communications the

7 moment it creates a copy, the length of time the government keeps these copies is irrelevant to the

8 question of whether a seizure has occurred. In any event, even a “brief detention[]” of a person’s

9 luggage for a dog-sniff is a “seizure.”5 U.S. v. Place, 462 U.S. 696, 697-99, 702-03, 706-07 (1983).

10

2. The Government’s Reliance On Contraband Cases In Which Packages

11

Are Externally Inspected Is Misplaced

12

The government’s reliance on cases in which a sealed package or luggage in transit was

13 lifted, dog-sniffed, or otherwise had its external physical characteristics briefly inspected for signs of

14 contraband without the package or luggage being opened is misplaced. Govt. Opp. (ECF No. 285)

15 at 26-27. The question here is whether the wholesale copying of the contents of millions of

16 communications for the purpose of content searching constitutes a seizure, but the government’s

17 authorities address only the detention of a single object in transit to conduct a brief external physical

18 examination aimed solely at detecting contraband. None of the government’s cases bears any

19 resemblance to the seizures here: none involves the wholesale copying of communications and then,

20 for millions of the seized communications, top-to-bottom full-text searching. The possessory

21 4 The government repeatedly and erroneously asserts that plaintiffs’ position is that the government
22 maintains possession of the copies for only “milliseconds.” Govt. Opp. (ECF No. 285) at 28. Plaintiffs make no contention about how long the government maintains possession of the copies, for
23 it is the copying that is the seizure, regardless of how long the government retains the copies.

24 5 Moreover, where, as here, the purpose of a seizure is a subsequent search that requires probable cause, the seizure also requires probable cause. This is true “no matter how brief” the seizure is. As

25 the Supreme Court observed in Place: “The purpose for which respondent’s luggage was seized, of

course, was to arrange its exposure to a narcotics detection dog. Obviously, if this investigative 26 procedure is itself a search requiring probable cause, the initial seizure of respondent’s luggage for

27

the purpose of subjecting it to the sniff test—no matter how brief—could not be justified on less than probable cause.” 462 U.S. at 706 (italics added).

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1 interests at issue in the two situations—the interest in a package or luggage continuing on its journey

2 versus the interest in excluding others from copying one’s communications and other data—have

3 nothing in common. Ex parte Jackson, 96 U.S. at 733. Moreover, the transience of the detention in

4 the contraband cases meant that the government received only a limited amount and type of

5 information from its external examination. Here, however, even if the government copies the

6 contents of all the communications it intercepts and completes its filtering and full-text analysis in a

7 blink of an eye, the duration of the seizure bears no relationship to its intrusiveness.

8

The government’s cases simply do not speak to either the possessory interest in the contents

9 of a communication, or the interference with that possessory interest that occurs when the

10 communication is copied. None involved inspecting or copying communications or other data found

11 inside a package or luggage. In U.S. v. Hoang, for example, an external dog-sniff occurred without

12 any detention or diversion of the package at all; the dog was let loose in a parcel processing room at

13 Federal Express. 486 F.3d 1156, 1158 (9th Cir. 2007). Only after the dog alerted on the package

14 and the police had reasonable suspicion that the package contained contraband did they detain the

15 package, and the package was not opened until a warrant was obtained. Id. The other package and

16 luggage cases also did not involve copying data or communications inside the container. See U.S. v.

17 England, 971 F.2d 419, 420 (9th Cir. 1992) (dog-sniff of package in the mails); U.S. v. Va Lerie,

18 424 F.3d 694, 696-97 (8th Cir. 2005) (en banc) (moving luggage from bus to bus station where

19 passenger was located to ask passenger’s consent to search); U.S. v. Brown, 884 F.2d 1309, 1311

20 (9th Cir. 1989) (similar); U.S. v. Hall, 978 F.2d 616, 618 (10th Cir. 1992) (lifting luggage to check

21 its weight); U.S. v. Schofield, 80 Fed. Appx. 798, 803 (3d Cir. 2003) (nonprecedential opinion;

22 lifting detergent box to reveal only its unusual weight “almost certainly” not a seizure); U.S. v.

23 DeMoss, 279 F.3d 632, 634-35 (8th Cir. 2002) (lifting package off conveyer belt not a seizure

24 because officers observed only external details that the sender had “virtually guaranteed . . . could be

25 observed by the senses”), U.S. v. Gant, 112 F.3d 239, 242 (6th Cir. 1997) (removing bag from

26 overhead compartment revealed nothing); U.S. v. Harvey, 961 F.2d 1361, 1363 (8th Cir. 1992)

27 (same).

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1

The government wildly overreads the Ninth Circuit’s statement in U.S. v. Jefferson that the

2 possessory interest in a package is “solely in the package’s timely delivery.” 566 F.3d at 933. The

3 Ninth Circuit was speaking only of the detention of a physical container for an external inspection,

4 not authorizing the copying of information or communications transported within the container.

5 Under the government’s expansive and unsupported reading of Jefferson, it could open and copy

6 every single letter mailed in the United States, and there would be no seizure of those

7 communications so long as the original letters were put back in their envelopes and delivered on

8 time. The government likewise overreads Arizona v. Hicks, a case holding that recording a serial

9 number on the outside of a stolen stereo component was not a seizure of the number. 480 U.S. 321,

10 324 (1987). The serial number on the stolen component was not a writing or information the

11 defendant had created and was not part of the defendant’s “papers,” unlike plaintiffs’

12 communications. Like an odor detected by a dog sniff, the serial number was an externally 13 observable characteristic that was used to determine whether the component was contraband.6

14

As explained in plaintiffs’ motion, an unbounded seizure for “detailed examination of

15 records not described in a warrant” is repugnant to the Fourth Amendment. U.S. v. Tamura,

16 694 F.2d 591, 595 (9th Cir. 1982); Plaintiffs’ Motion (ECF No. 261) at 17. The fact that the

17 government can thereafter search the entire scope of the information seized quickly due to modern

18 computer processing power does not eliminate the fact of the initial seizure. The parallels between

19 the general warrants of colonial times that allowed the papers of innocent people to be seized and the

20 general seizures occurring here are clear and obvious. The unifying aspect is the untargeted nature

21 of the authority claimed. While the “papers” that in colonial times were located in the home now

22

23

24

25 6 The government erroneously asserts that Hicks held that moving the component to view the

number was not a seizure. Govt. Opp. (ECF No. 285) at 27. The Supreme Court did not address this 26 point, holding only that “the mere recording of the serial numbers did not constitute a seizure.”

27

Hicks, 480 U.S. at 324. It held that moving the component to view the number was an unconstitutional search. Id.

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1 regularly travel over the Internet, a person’s possessory interest in the content of those “papers” is no 2 less substantial today than it was in the eighteenth century.7

3 II. The Government’s Examination Of The Contents Of Plaintiffs’ Internet

4

Communications Is A Search

“A ‘search’ occurs when an expectation of privacy that society is prepared to consider 5

reasonable is infringed.” Jacobsen, 466 U.S. at 113. As set forth in plaintiffs’ motion, the 6

government conduct a search when, on an ongoing basis and without any modicum of suspicion, it 7

subjects plaintiffs’ Internet activity to “electronic scanning” in the hopes of finding “selectors” that 8

might reveal communications with suspected terrorists. 9

The government’s contention that it has not searched plaintiffs’ Internet communications 10

must be rejected. The government concedes that plaintiffs have a reasonable expectation of privacy 11

in their Internet communications. However, it contends that its dragnet surveillance of those 12

communications does not compromise that interest, and thus is not a search at all, because the 13

communications without the selectors are never “provided to Government officials” or seen by 14

human eyes. Govt. Opp. (ECF No. 285) at 31. 15

The government’s human-eyes thesis is both incorrect and unsupported by authority. No 16

case has drawn the line between searches and non-searches on the basis of exposure to human eyes. 17

And, indeed, were the government’s approach deemed to be the law, it would effectively authorize a 18

digital surveillance state in which a person’s every action and interaction could be technologically 19

monitored and subject to electronic analysis without violating the Fourth Amendment, as long as all 20

21 7 Contrary to the government’s assertion (Govt. Opp. (ECF No. 285) at 30 n.6), Congress found that
22 the NSA violated the Fourth Amendment in Operation Shamrock when it initially made copies of

23

millions of international telegrams, not just by later reading a much smaller subset of them. S. Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, Book II:

24 Intelligence Activities and the Rights of Americans, S. Rep. No. 94-755 at 6, 12, 139 (1976), available at http://www.intelligence.senate.gov/pdfs94th/94755_II.pdf. Likewise in Hepting, the

25 Court recognized that the initial acquisition of these same plaintiffs’ communications by the dragnet

here was a constitutional violation. Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 1009-10 (N.D. 26 Cal. 2006) (“Plaintiffs’ constitutional claim alleges that AT&T provides the government with direct

27

and indiscriminate access to the domestic communications of AT&T customers. . . . AT&T’s alleged actions here violate the constitutional rights clearly established in Keith.”).

28

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1 any human saw was “suspicious” information selected by the technology that some human had 2 programmed.8 The Fourth Amendment provides greater liberty than that.9

3

To support this argument, the government attempts to extend the holding of Place, 462 U.S.

4 at 707, which the Supreme Court held was “sui generis,” far beyond its facts. In Place, the Court

5 held that a “canine sniff” of a single piece of luggage did not constitute a search, relying on two

6 factors. First, the Court noted that a canine sniff “does not require opening the luggage” or an

7 “officer’s rummaging through the contents of the luggage.” Id. Second, the Court noted that “the

8 sniff discloses only the presence or absence of narcotics, a contraband item.” Id. The Court stated,

9 “[w]e are aware of no other investigative procedure that is so limited both in the manner in which

10 the information is obtained and in the content of the information revealed[.]” Id.

11

It is this second characteristic of Place, the fact that the search was designed to detect only

12 contraband and nothing else, that has been subsequently recognized as the critical factor. See

13 Illinois v. Caballes, 543 U.S. 405, 409 (2005) (“[W]e treated a canine sniff by a well-trained

14 narcotics-detection dog as ‘sui generis’ because it ‘discloses only the presence or absence of

15 narcotics, a contraband item.’”). Indeed, the Court has declined to apply Place when the non-human

16 technology used was “capable of detecting lawful activity.” Id.

17

The government’s only other authority has been confined to its facts on the very same basis.

18 In Jacobsen, the Supreme Court applied Place to find that no search was conducted when a chemical

19 test was performed on a white powder found leaking out of package. 466 U.S. at 123. The Court

20 held that “governmental conduct that can reveal whether a substance is cocaine, and no other

21

22 8 See City of Indianapolis v. Edmond, 531 U.S. 32, 42 (2000) (cautioning that applying “a high level of generality” to Fourth Amendment search questions would provide “little check on the ability of
23 authorities”).

24 9 “We cannot accept the Government’s contention that it should be completely free from the constraints of the Fourth Amendment to determine by means of an electronic device, without a

25 warrant and without probable cause or reasonable suspicion, whether a particular article—or a

person, for that matter—is in an individual’s home at a particular time. Indiscriminate monitoring of 26 property that has been withdrawn from public view would present far too serious a threat to privacy

27

interests in the home to escape entirely some sort of Fourth Amendment oversight.” U.S. v. Karo, 468 U.S. 705, 716 (1984).

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1 arguably ‘private’ fact, compromises no legitimate privacy interest.” Id. The Court explicitly stated

2 that its discussion was “confined to possession of contraband.” Id. at 123 n.23.

3

Thus in each case, it was not the fact that the investigation was performed by a non-human

4 that rendered it a non-search, but the fact that any expectation of privacy in hiding contraband, when

5 the contraband was the only thing capable of being detected by the search, is simply not “an interest

6 in ‘privacy that society is prepared to consider reasonable.’” Caballes, 543 U.S. at 409 (quoting

7 Jacobsen, 466 U.S. at 122). “We have held that any interest in possessing contraband cannot be

8 deemed ‘legitimate,’ and thus, governmental conduct that only reveals the possession of contraband

9 ‘compromises no legitimate privacy interest.’” Id. at 408-09 (italics original); see also U.S. v.

10 Young, 573 F.3d 711, 720–21 (9th Cir. 2009) (declining to extend Jacobsen to search of backpack

11 that did not contain only contraband).

12

When the investigative technique is not limited to the detection of contraband, Place and

13 Jacobsen have no application. “The legitimate expectation that information about perfectly lawful

14 activity will remain private is categorically distinguishable from respondent’s hopes or expectations

15 concerning the nondetection of contraband in the trunk of his car.” Caballes, 543 U.S. at 410.

16

Indeed, Place cannot even be extended to all dog sniffs. In Edmond, 531 U.S. at 40, 44, the

17 Court invalidated the use of a narcotics-sniffing dog at a vehicle checkpoint because, like here, it

18 was used as part of a program of mass suspicionless seizures. And in Florida v. Jardines, __ U.S.

19 __, 133 S. Ct. 1409, 1413, 1417-18 (2013), the Supreme Court found it was a search to use a drug-

20 sniffing dog on a homeowner’s porch to investigate the contents of the home.

21

The government does not and cannot claim that the items identified by the search here,

22 Internet communications identified by the selectors, are “contraband.” Moreover, unlike narcotics

23 dogs—which are trained to detect particular odor molecules emanating from physical objects—or a

24 chemical drug test—which is scientifically designed to react to particular chemical compounds—

25 stage three of the government’s surveillance searches the entire contents of the communications.

26 Stage three thus discloses the answer to a multitude of questions—not a single, specific question—

27 and the program can be modified to answer different, or more, questions at any time. Indeed,

28 choosing the search terms employed in stage three of the government’s surveillance involves an

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1 exercise of discretion that simply does not exist when teaching a dog to detect cocaine or developing 2 a chemical test to react to particular narcotics.10

3

Rather, the government’s searching of communications here is more analogous to the use of

4 a “hash value” scan of a computer hard drive, which has been held to be a search. A hash value is an

5 alphanumeric value unique to each computer file that can be used to confirm whether two digital

6 files are the same. FEDERAL JUDICIAL CENTER, MANAGING DISCOVERY OF ELECTRONIC

7 INFORMATION: A POCKET GUIDE FOR JUDGES 38 (2d ed. 2012). In U.S. v. Crist, 627 F. Supp. 2d

8 575, 578, 585 (M.D. Pa. 2008) the court held that “the ‘running of hash values’ is a search protected

9 by the Fourth Amendment.” 627 F. Supp. 2d 575, 578, 585 (M.D. Pa. 2008). “By subjecting the

10 entire computer to a hash value analysis—every file, internet history, picture, and ‘buddy list’

11 became available for Government review.” Id. at 585. “Such examination constitutes a search.” Id.

12

An analogy even closer to the mass surveillance here is found in Bourgeois v. Peters, in

13 which a city requirement that every one of the 15,000 people who sought to attend an annual protest

14 outside of a military base pass through a magnetometer was found to be an unconstitutional search.

15 387 F.3d 1303, 1307, 1316 (11th Cir. 2004). A magnetometer only detects the presence of metal,

16 providing no other information to the human monitoring it. Id. at 1307 n.2. And it neither retains

17 nor tells the person monitoring it anything about anyone who does not possess metal. The court

18 rejected the city’s argument that the magnetometric screening was justified by both past incidents of

19 violence at previous editions of the protest and the “elevated” terrorist threat status issued by the

20 Department of Homeland Security. Id. at 1310-12. Emphasizing the complete absence of any legal

21 10 The government’s “selectors” are nothing like a dog-sniff or chemical test that gives the searcher
22 no discretion as to what is being searched for. Section 702 leaves not only the selection of targets to

23

the discretion of NSA personnel, but also leaves the choice of search selectors for each target to the NSA’s discretion without any FISC review—selectors that the NSA uses to search all

24 communications in stage three. See Plaintiffs’ Motion (ECF No. 261) at 21-23. Because section 702 broadly defines “foreign intelligence information,” targets and selectors need not be associated with

25 any nefarious activity. 50 U.S.C. §§ 1801(e), 1881a(g)(2)(A)(v). It also leaves to the NSA the

discretion to choose the number of selectors per target, along with the discretion to change its list of 26 selectors and add new ones. See Plaintiffs’ Motion (ECF No. 261) at 21-23. In principle and

27

practice, the NSA, not a judge, decides what it will search plaintiffs’ communications for, making the section 702 process a general warrant. See id.

28

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1 support for “the broad authority to conduct mass, suspicionless, warrantless searches,” the court

2 explained that the city’s position “would effectively eviscerate the Fourth Amendment.” Id. at 1311.

3 To the contrary, the Fourth Amendment “establishes searches based on evidence—rather than

4 potentially effective, broad, prophylactic dragnets—as the constitutional norm.” Id. at 1312; see

5 Lebron v. Wilkins, 820 F. Supp. 2d 1273, 1283 (M.D. Fla. 2011) (finding a Fourth Amendment

6 search where drug testing of all welfare recipients was required to receive benefits, but only positive

7 results were stored in a database accessible to government officials).

8

Yet, although they are closer than the examples offered by the government, neither Crist

9 (which involved the scan of a single computer) nor Bourgeois (in which the suspicion was based on

10 past incidents of illegal activity) fully reflects the scope of the surveillance or the complete lack of

11 suspicion in the present case. The mass suspicionless surveillance of plaintiffs’, and millions of

12 other Americans’, Internet communications is far broader in scope than the limited, no-human-eyes

13 contraband investigations that have been found not to be searches. Internet backbone surveillance

14 does not simply subject a single car or a single suitcase to review. It is exponentially greater than

15 the 15,000 people subjected to mass surveillance on a single day in Bourgeois. Instead, millions of

16 people have hundreds of millions of their communications reviewed, and the surveillance is

17 continuous. The expansion is thus twofold – both the number of nonsuspect people subject to the

18 review and the number of nonsuspect communications reviewed is grossly greater than any that have

19 been or could be subject to dog sniffs or chemical testing in the precedents the government relies

20 upon. Investigatory methods, even if undertaken for a legitimate law enforcement purpose, and even

21 if employing a non-human investigative technique, must be proportionate and carefully focused. See

22 Edmond, 531 U.S. at 42-45.

23 III. The Intrusive Searches And Seizures Here Are Outside The Scope Of Any “Foreign

24

Intelligence” Or Other “Special Needs” Exception To The Warrant Requirement

25

A. No “Special Needs” Exception Exists On These Facts

The warrant requirement applies to the government’s mass suspicionless seizures and 26

searches here. As plaintiffs’ motion explains, the Fourth Amendment protects plaintiffs’ “papers” 27

and “effects” from being seized and searched without a warrant. The Fourth Amendment has always 28

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1 provided heightened protection for the contents of communications like the Internet communications

2 at issue here.

3

As plaintiffs’ motion also explains, the Supreme Court has recognized only “‘a few

4 specifically established and well-delineated exceptions’” to the warrant requirement. Al Haramain

5 Islamic Foundation, Inc. v. U.S. Department of Treasury, 686 F.3d 965, 990 (9th Cir. 2011) (quoting

6 Katz, 389 U.S. at 357); see Plaintiffs’ Motion (ECF No. 261) at 24-25. One of these is the “closely

7 guarded” “special needs” exception. Chandler v. Miller, 520 U.S. 305, 309 (1997).

8

The government contends that the special needs exception authorizes the searches and

9 seizures here because a significant purpose of the surveillance is to gather information about foreign

10 powers and their agents. Govt. Opp. (ECF No. 285) at 36-37. But those lower courts that have

11 applied the special needs exception to foreign intelligence gathering have done so with respect to

12 activities far different—and far more targeted—than the mass suspicionless surveillance at issue

13 here. The Supreme Court has never endorsed the application of the special needs exception to

14 foreign intelligence gathering, much less extended it to authorize the seizure and searching of the

15 communications of innocent Americans not suspected of being agents of foreign powers. See Keith,

16 407 U.S. at 321-22. Indeed, Justice Scalia, writing for a unanimous panel of the D.C. Circuit, held

17 that the warrant “requirement attaches to national security wiretaps that are not directed against

18 foreign powers or suspected agents of foreign powers.” Halperin v. Kissinger, 807 F.2d 180, 185

19 (D.C. Cir. 1986). That rule governs here, because plaintiffs are not agents of foreign powers and yet

20 the government is intentionally seizing and searching their communications, along with those of

21 millions of other Americans.

22

An analysis under the special needs doctrine confirms that the warrant requirement applies

23 here. As the high court has emphasized, “[w]hen such ‘special needs’—concerns other than crime

24 detection—are alleged in justification of a Fourth Amendment intrusion, courts must undertake a

25 context-specific inquiry, examining closely the competing private and public interests advanced by

26 the parties.” Chandler, 520 U.S. at 314 (italics added); accord Ferguson v. City of Charleston, 532

27 U.S. 67, 78 (2001).

28

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1

Under the context-specific special needs inquiry, “‘[i]n limited circumstances, where the

2 privacy interests implicated by the search are minimal, and where an important governmental

3 interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized

4 suspicion, a search may be reasonable despite the absence of such suspicion.’” Chandler, 520 U.S.

5 at 314; accord Ferguson, 532 U.S. at 78 (“a balancing test that weighed the intrusion on the

6 individual’s interest in privacy against the ‘special needs’ that supported the program”).

7

Further, the government must show that the primary purpose of the intrusion is something

8 other than law enforcement. Edmond, 531 U.S. at 40-48. “[T]o determine the relevant primary

9 purpose,” the court must “consider all the available evidence.” Ferguson, 532 U.S. at 81; accord

10 Edmond, 531 U.S. at 46. Finally, the government must show in addition that complying with the

11 warrant requirement would be impracticable. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602,

12 631 (1989).

13

As plaintiffs’ motion explains, the suspicionless mass search and seizure of Americans’

14 Internet communications fails the first prong of the “special needs” exception, which requires that

15 “the privacy interests implicated by the search [be] minimal.” Chandler, 520 U.S. at 314. Far from

16 being “minimal,” plaintiffs’ privacy interests in their Internet activities and communications lie at

17 the heart of the Fourth Amendment. A person’s Internet activities encompass a vast array of

18 intimate details about that person’s private life. See Plaintiffs’ Motion (ECF No. 261) at 12-14.

19

Circumstances in which the Supreme Court has approved warrantless special needs searches

20 are ones in which the person searched has a diminished expectation of privacy, for example,

21 schoolchildren who voluntarily choose to participate in extracurricular activities, see Bd. of Educ. of

22 Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 830-32 (2002); Vernonia Sch.

23 Dist. 47J v. Acton, 515 U.S. 646, 654-57 (1995), or workers who voluntarily choose employment in

24 professions that put the safety of others at risk, see Skinner, 489 U.S. at 624-28; Nat’l Treasury

25 Employees Union v. Von Raab, 489 U.S. 656, 671-72 (1989). As Justice Kennedy has explained:

26 “An essential, distinguishing feature of the special needs cases is that the person searched has

27 consented, though the usual voluntariness analysis is altered because adverse consequences (e.g.,

28

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1 dismissal from employment or disqualification from playing on a high school sports team) will

2 follow from refusal.” Ferguson, 532 U.S. at 90-91 (Kennedy, J., concurring).

3

Here, plaintiffs have an undiminished expectation of privacy in the content of their electronic

4 communications. They have not voluntarily chosen to engage in activities that diminish their

5 expectations of privacy or otherwise consented to the search.

6

Nor is the intrusion into plaintiffs’ privacy interest in their communications a minimal one.

7 The intrusion into those communications that the government seizes and searches could not be more

8 complete—the government seizes all of plaintiffs’ communications flowing through AT&T’s

9 Internet backbone connections and searches the entire contents of millions of those communications,

10 every word from top to bottom.

11

None of the Supreme Court’s decisions approving special needs searches involved

12 circumstances remotely similar to those present here. None of those cases involved the

13 suspicionless content-searching of papers or communications. None of those cases involved

14 seizures and searches of the vast scale and magnitude occurring here, extending across the breadth of

15 American society. Testing student athletes or train operators for drug use or checking automobile

16 drivers for sobriety is nothing like searching the contents of the Internet communications of millions

17 of ordinary Americans.

18

On the other side of the balance, the government asserts that its interest in acquiring foreign

19 intelligence information is of the “highest order.” Govt. Opp. (ECF No. 285) at 39. But the

20 government’s interest in acquiring foreign intelligence information, weighty as it is, does not give it

21 a blank check to use any and every means of surveillance to pursue that interest with no regard for

22 how deep and widespread the intrusion into the privacy of innocent Americans. Al Haramain, 686

23 F.3d at 993 (“government’s interest in preventing terrorism,” while “extremely high,” “is no excuse

24 for dispensing altogether with domestic persons’ constitutional rights”). The balance here weighs in

25 favor of plaintiffs.

26

The government also has failed to satisfy the primary-purpose test. Strikingly, the

27 government does not contend that the primary purpose of its Internet backbone surveillance is to

28 collect foreign intelligence information. Instead, it goes no further than asserting that foreign

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1 intelligence collection is “a ‘significant purpose’” of its Internet backbone surveillance, quoting the

2 language of section 702. Govt. Opp. (ECF No. 285) at 36-37; see id. at 37 n.10 (asserting only that

3 “the Section 702 program serves the Government’s need to obtain foreign intelligence” while also

4 promoting other interests). This is not surprising; the government has confirmed that it retains not

5 only foreign intelligence information, but also any information that is evidence of a crime or

6 indicates an imminent threat of death or serious bodily harm, all of which are ordinary law

7 enforcement concerns. ECF No. 253-7 at 8-9, 11. Indeed, the FBI routinely searches

8 communications collected by the NSA’s Internet backbone surveillance when investigating ordinary

9 crimes. ECF No. 262, Ex. A at 137 (7/25/14 Wiebe Decl.).

10

The government’s invocation of the special needs exception additionally fails because it has

11 made no attempt to show that it lacks other practicable alternatives to the mass suspicionless

12 seizures and searches occurring here. The government may believe that mass surveillance is a more

13 convenient method of detecting wrongdoing or ferreting out information (a question certainly open

14 to dispute), but if the Fourth Amendment could be overcome by a showing of mere convenience

15 alone, privacy would cease to exist. Alternatives do exist, and the government is using them. For

16 example, similar to a traditional wiretap, the government has methods by which it can and does

17 collect only the communications actually transmitted to and from phone numbers, email accounts,

18 and websites belonging to individuals and organizations it has targeted for foreign intelligence

19 surveillance. The government’s PRISM surveillance, in which by the government’s description it

20 obtains communications to and from, for example, specific Yahoo! email accounts or specific

21 Facebook accounts, appears to be an example of this. ECF No. 262, Ex. A at 7, Ex. B (7/25/14

22 Wiebe Decl.); 10/24/14 Wiebe Decl., Ex. A at 33-34. So, too, is the government’s surveillance

23 under traditional FISA surveillance orders issued under 50 U.S.C. §§ 1804-1805 or under its

24 emergency surveillance powers under 50 U.S.C. §§ 1802 and 1805(e). The government’s

25 interception of telephone calls to and from phone numbers of foreign powers and agents of foreign

26 powers under a traditional FISA order avoids suspicionless searches and seizures of calls to the

27 phone numbers of innocent Americans. While some of these forms of surveillance may raise their

28 own concerns, there is no doubt that what the government does here is far broader, no different than

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1 listening to every telephone call in the country to see if anyone happens to mention a telephone

2 number associated with a surveillance target. Thus, it is not impracticable to use methods other than

3 mass Internet backbone surveillance to intercept communications that are actually to or from

4 targeted persons.

5

To the extent the government contends it is impracticable to use a warrant to conduct mass

6 suspicionless surveillance of the communications of millions of innocent Americans, that is not

7 because a necessity for speed or some other exigency stands as an impediment to obtaining a warrant

8 or court order in a timely fashion. It is because the government’s goal of seizing and searching

9 through the communications of millions of innocent Americans without suspicion is an illegitimate

10 goal that flies in the face of the Fourth Amendment itself—which, at its “very heart” “forbids

11 searching a person for evidence of a crime when there is no basis for believing the person is guilty of

12 the crime or is in possession of incriminating evidence.” Maryland v. King, __ U.S. __, 133 S. Ct.

13 1958, 1980 (2013) (Scalia, J., dissenting).

14

The government attempts to carry its burden of showing impracticability by relying solely on

15 statements in legislative reports and hearings, but those statements are inadmissible hearsay. Fed. R.

16 Evid. 801(c), 802. Moreover, those statements are insufficiently specific, since they speak only

17 generally about surveillance pursuant to the FISA Amendments Act (which added section 702 to

18 FISA), and do not discuss specifically the Internet backbone surveillance that plaintiffs challenge.

19 The government has admitted conducting two different types of surveillance under section 702:

20 PRISM and Internet backbone surveillance (which it also calls “Upstream”). ECF No. 262,

21 Ex. A at 7 (7/25/14 Wiebe Decl.). PRISM interceptions are limited to specific communications

22 accounts (e.g., email accounts, Facebook accounts, or websites) used by non-U.S. persons to

23 communicate foreign intelligence information. ECF No. 262, Ex. A at 7 (7/25/14 Wiebe Decl.);

24 10/24/14 Wiebe Decl., Ex. A at 33-34. Internet backbone surveillance indiscriminately intercepts all

25 the communications and Internet traffic flowing through key junctions on the Internet backbone, and

26 is not limited to communications by non-U.S. persons or foreign intelligence information. ECF

27 No. 262, Ex. A at 7, 35-37 (7/25/14 Wiebe Decl.). So a statement on the importance of surveillance

28

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1 under the FISA Amendments Act or section 702 says nothing about the specific significance of the

2 Internet backbone seizures and content searching that plaintiffs challenge.

3

B. The Decisions On Which The Government Relies Do Not Support A “Special

Needs” Exception For Mass Suspicionless Internet Surveillance

4

The foreign-intelligence special needs decisions on which the government relies do not

5

support the conclusion that its Internet backbone surveillance satisfies the special needs exception.

6

Because the special needs analysis is a context-specific inquiry, the conclusion that one form of

7

foreign intelligence gathering might, on its particular facts, be exempt from the warrant requirement

8

does not suggest that all forms of foreign intelligence gathering are exempt from the warrant

9

requirement. See Chandler, 520 U.S. at 313-14; compare Michigan Dept. of State Police v. Sitz,

10

496 U.S. 444, 455 (1990) (warrantless roadblock was permissible under Fourth Amendment) with

11

Edmond, 531 U.S. at 41-42 (warrantless roadblock violated Fourth Amendment).

12

The decisions on which the government relies do not address its mass suspicionless Internet

13

backbone surveillance but involve interception only of designated telephone numbers, email

14

accounts, or other specified communications accounts used by a foreign power or an agent of a

15

foreign power. See U.S. v. Duka, 671 F.3d 329, 338 (3d Cir. 2011) (electronic surveillance of

16

several defendants pursuant to a traditional FISA order under 50 U.S.C. § 1805); In re Sealed Case,

17

310 F.3d 717, 720 (Foreign Int. Surv. Ct. Rev. 2002) (review of traditional FISA order under 50

18

U.S.C. § 1805); U.S. v. Truong Dinh Hung, 629 F.2d 908, 911-12 (4th Cir. 1980) (pre-FISA

19

wiretapping and bugging of the telephone and apartment of an agent of a foreign power); U.S. v.

20

Buck, 548 F.2d 871, 875 (9th Cir. 1977) (pre-FISA wiretap of a single phone line); U.S. v. Bin

21

Laden, 126 F. Supp. 2d 264, 269 (S.D.N.Y. 2000) (telephone wiretap and search of home of

22

American citizen living in Kenya based on individualized suspicion linking him to al Qaeda), aff’d

23

sub nom. In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 157 (2d Cir. 2008).

24

Moreover, In re Sealed Case has no precedential value because, like a magistrate judge’s decision

25

granting a search warrant, it is not the product of an Article III adversary proceeding.

26

Equally irrelevant are decisions relating to surveillance conducted under the government’s

27

PRISM program, which by the government’s description is limited to specific communications

28

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1 accounts. For example, In re Directives to Yahoo! Inc., FISC-R No. 08-01 (Foreign Int. Surv. Ct. 2 Rev., Aug. 22, 2008),11 addresses only PRISM surveillance of specific Yahoo! communications

3 accounts, not the mass suspicionless Internet backbone surveillance. See In re Directives to Yahoo!

4 Inc, FISC-R No. 08-01, Yahoo! Inc.’s Opening Brief at 54-55 (5/29/08) (describing surveillance of

5 specific Yahoo! accounts); In re Directives to Yahoo! Inc, FISC No. 105B(G) 07-01,Yahoo! Inc.’s

6 Compliance Report at 2 (5/14/2008) (discussing Yahoo! “user accounts” the government designate 7 for surveillance);12 accord [Redacted Caption], 2011 WL 10945618 at *27 n.67 (FISC, Oct. 3,

8 2011) (“The dispute in In re Directives involved the acquisition by NSA of discrete to/from

9 communications from an Internet Service Provider, not NSA’s upstream collection”). Yahoo! is a

10 participant in PRISM surveillance but does not operate Internet backbone facilities. See ECF

11 No. 262, Ex. B (7/25/14 Wiebe Decl.).

12

U.S. v. Mohamud, 2014 WL 2866749 (D. Or. June 24, 2014), also provides no support for

13 the government here. Mohamud rejected an as-applied challenge to section 702 by a defendant

14 convicted of terrorism charges. It did not purport to analyze the constitutionality of the

15 government’s intentional—and suspicionless—Internet backbone surveillance of the

16 communications of innocent Americans. Mohamud did not address the constitutionality of either the

17 initial suspicionless mass interceptions or the content searching that plaintiffs challenge here. It is

18 not even clear that the Mohamud court knew whether or not the section 702 surveillance at issue

19 occurred under PRISM or was Internet backbone surveillance, or knew whether the defendant was a

20 target of the surveillance or not, for the court denied the defendant any discovery relating to the

21 surveillance. Even on the question it did decide, Mohamud’s analysis is inconsistent with Riley v.

22 California, decided by the Supreme Court the day after Mohamud. 573 U.S. __, 134 S. Ct. 2473

23 (2014). Mohamud’s fundamental rationale is that the government’s targeting and minimization

24 procedures are an adequate substitute for a warrant. That conclusion is in irreconcilable conflict

25 11 The government cites to the superseded 2008 redacted version of the opinion (551 F.3d 1004), but 26 a more complete version was released in September 2014 and is available at
http://www.dni.gov/files/documents/0909/FISC Merits Opinion 20080822.pdf. 27 12 Available at http://www.dni.gov/files/documents/0909/Yahoo Compliance Report 20080514.pdf.
28

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1 with the Supreme Court’s admonition that “government agency protocols” are no substitute for a

2 warrant. Riley, 134 S. Ct. at 2491.

3

The government’s final remaining authority, [Redacted Caption] (cited in plaintiffs’ opening

4 brief as “[Name and docket no. redacted]” and “10/3/11 FISC Opinion,” see Plaintiffs’ Motion (ECF

5 No. 261) at 4 n.3), is equally unpersuasive. Like In re Sealed Case, it lacks precedential value

6 because it was not the product of an Article III adversary proceeding but of a one-sided ex parte

7 process; it is not even an advisory opinion. Its conclusion is that Internet backbone surveillance as it

8 operated in 2011 violated the Fourth Amendment in certain respects. 2011 WL 10945618 at *28-

9 *30. It made no independent analysis of whether that seizure and searching of the communications

10 of innocent Americans violated the Fourth Amendment, deferring instead to an earlier FISC opinion

11 that has never been released. Id. at *24 (“The Court has previously concluded that the acquisition of

12 foreign intelligence information pursuant to Section 702 falls within the ‘foreign intelligence

13 exception’ to the warrant requirement of the Fourth Amendment. See Docket No. [redacted].”).

14 Because [Redacted Caption] does not explain the reasoning of that earlier secret opinion, it adds no

15 weight to the government’s arguments.

16 IV. Even If The Warrant Requirement Did Not Apply Here, The Mass Seizures And

17

Searches The Government Conducts Here Are Unreasonable

As the plaintiffs’ motion explains, warrantless searches and seizures are presumptively 18

unreasonable. Even where an exception to the warrant requirement exists, a search or seizure must 19

still meet the Fourth Amendment’s test of reasonableness. The test of reasonableness, like the 20

special needs analysis, balances the intrusion on plaintiffs’ interests against the strength of the 21

government’s interest, while also looking at the effectiveness of the intrusion at advancing the 22

government’s interest. 23

“Whether a search is reasonable ‘is determined by assessing, on the one hand, the degree to 24

which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for 25

the promotion of legitimate governmental interests.’” Samson v. California, 547 U.S. 843, 848 26

(2006); accord Al Haramain, 686 F.3d at 994. The government agrees it must meet this standard in 27

addition to meeting the special needs exception. Govt. Opp. (ECF No. 285) at 38. 28

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1

Here, the government’s argument fails at the outset because plaintiffs have an undiminished

2 expectation of privacy and because their privacy is invaded by the government’s seizure and top-to-

3 bottom searching of their communications. The Ninth Circuit’s analysis in Al Haramain is equally

4 applicable here: “The cases in which the [Supreme] Court has found warrantless searches to be

5 reasonable all involve very special circumstances and greatly diminished privacy interests—a point

6 repeatedly emphasized by the Court. . . . Here, however, as we have explained, the reach of [the

7 government’s seizure] authority extends to all persons and entities, without limitation. Nothing

8 diminishes the privacy expectation of persons and entities potentially subject to seizure by [the

9 government] because that class includes everyone.” Al Haramain, 686 F.3d at 994 (italics original).

10 So too here, the government’s seizures and searches are not limited to persons with diminished 11 privacy interests but extend to everyone.13

12

The government attempts to denigrate plaintiffs’ privacy interests by arguing that its search

13 is only a “fleeting electronic scanning” that is only “a minimal intrusion, if any, on Plaintiffs’

14 possessory and privacy interests.” Govt. Opp. (ECF No. 285) at 39. But the duration of these

15 searches says nothing about their intrusiveness, unlike some of the contraband searches. The

16 government’s rhetoric cannot paper over the fact that its searches, no matter how swiftly completed,

17 examine the complete contents of a communication from top to bottom.

18

The government also contends that section 702’s significant-foreign-intelligence-purpose

19 requirement and its targeting procedures diminish the intrusion upon plaintiffs’ interests. Govt.

20 Opp. (ECF No. 285) at 39-40. This is a non sequitur; the objective intrusiveness of a search is not

21 diminished by the subjective purposes or intentions of the searcher. And, in any event, the

22 government’s claim that its “targeting” is limited to non-U.S. persons located overseas is

23 meaningless in light of the fact that it intentionally searches the contents of every American’s

24 international communications. Equally off base is the government’s contention that reports by the

25
13 In Maryland v. King, the Supreme Court expressly conditioned its finding that Maryland’s DNA 26 testing of arrestees was reasonable on the fact that it applied only to individuals who had a

27

diminished expectation of privacy because they had been lawfully arrested for a serious offense supported by probable cause. 133 S. Ct. at 1978-79.

28

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1 Executive to Congress and the FISC on its compliance with its targeting procedures diminish the

2 intrusion on plaintiffs’ privacy. Id. at 40. A report to Congress or a court cannot diminish the 3 objective intrusiveness of a search.14

4

Finally, the government seeks to show that Internet backbone surveillance is a “reasonably

5 effective means” for advancing its national security interests by again citing inadmissible hearsay in

6 legislative reports. Govt. Opp. (ECF No. 285) at 40-41. These hearsay reports, like others the

7 government cites, address only section 702 generally, and not Internet backbone surveillance. They

8 certainly do nothing to show that searching the communications of innocent Americans that are not

9 sent to or received from a surveillance target is a “reasonably effective means” of advancing the

10 government’s national security interests. The government then asserts that “[t]he Executive

11 Branch’s assessment of the value and importance of intelligence-gathering activities under the FAA

12 [FISA Amendment Acts] is ‘entitled to deference’” (id. at 41), but it cites no such Executive

13 assessments, much less submits them in an admissible form. And the mere fact that Congress has

14 enacted and reenacted section 702 is no substitute for “empirical evidence” of the effectiveness, not

15 of section 702 in general, but of the specific Internet backbone surveillance practices that plaintiffs

16 are challenging. Sitz, 496 U.S. at 454; U.S. v. Scott, 450 F.3d 863, 870 (9th Cir. 2005) (effectiveness

17 requires an “empirical demonstration”). Moreover, section 702, for its part, far from endorsing mass

18 suspicionless searches of the sort occurring here, says nothing at all about them.

19

Mass suspicionless searches and seizures are the “immediate evils” the Fourth Amendment

20 was designed to protect against. Payton v. New York, 445 U.S. 573, 583 (1980). For all the reasons

21 stated above and in plaintiffs’ motion, the Fourth Amendment leaves no room for mass suspicionless

22 seizures and searches of the contents of communications of millions of innocent Americans.

23

24

25 14 Also meritless is the government’s contention that its mass suspicionless Internet backbone

surveillance of the communications of innocent Americans like plaintiffs is less of a Fourth 26 Amendment intrusion than the much narrower PRISM seizures at issue in In re Directives, which are

27

limited to specific communications accounts used by non-U.S. persons to communicate foreign intelligence information, and the unknown seizures in Mohamud. Govt. Opp. (ECF No. 285) at 39.

28

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V. The Government’s Evidentiary Challenges To The Klein And Marcus Declarations

1

Lack Merit, And Plaintiffs’ Evidence Supports Summary Judgment

2

The government’s evidentiary challenges miss their mark. Along with a wide array of other

3 evidence including the government’s and AT&T’s own admissions, plaintiffs rely on declarations by

4 former AT&T employee Mark Klein, expert Scott Marcus, and AT&T Managing Director James 5 Russell, together with the AT&T documents that are exhibits to Klein’s declaration (the “AT&T

6 documents”), to demonstrate the mass surveillance at issue here and AT&T’s participation in it. But 7 given the narrow scope of plaintiffs’ motion and the government’s and AT&T’s admissions, 8 plaintiffs’ motion cites and relies on only limited portions of the Klein and Marcus declarations. All

9 of those portions are admissible.

10

The government does not even attempt to contest most of the essential facts here. The

11 government admits that: “NSA collects telephone and electronic communications as they transit the

12 Internet ‘backbone’ within the United States.”15 Other undisputed evidence also confirms this fact.16

13 It is also beyond dispute that AT&T conducts surveillance for the NSA under the Foreign

14 Intelligence Surveillance Act, as AT&T itself admits. 10/24/14 Wiebe Decl., Ex. B. Other evidence

15 also confirms AT&T’s participation. See Plaintiffs’ Motion (ECF No. 261) at 10-11 and evidence

16 cited therein.

17

It is also undisputed that the communications copied in bulk from the Internet backbone are

18 filtered and the remaining communications are then searched from top to bottom (stages two and

19 three). See Plaintiffs’ Motion (ECF No. 261) at 6-9 and evidence cited therein.

20

The government also does not dispute Klein’s testimony regarding the splitters installed at

21 AT&T’s San Francisco and use of the splitters to copy AT&T’s Internet backbone traffic and divert

22

23

24 15 ECF No. 227 at ¶ 38, 25:14-16 (12/20/13 NSA Deputy Dir. Fleisch Classified Decl.)
25 16 ECF No. 169 at 17 (12/20/13 NSA Deputy Dir. Fleisch Unclassified Decl.); ECF No. 253-3 at 3
26 (6/27/14 Gilligan Decl., Ex. B); ECF No. 262, Ex. A at 7, 35-37, Ex. B at 3-4 (7/25/14 Wiebe Decl.); ECF No. 174-1 at 26 (1/10/14 Rumold Decl., Ex. 1); Memorandum Opinion (“10/3/11 FISC
27 Opinion”), [Name and docket no. redacted], 2011 WL 10945618, at *2 n.3 (FISC Oct. 3, 2011).
28

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1 the copies into the secret SG3 Secure Room (stage one).17 It hardly could contest this testimony, for

2 Klein was personally in charge of the operation and maintenance of the splitters and the fiber-optic

3 cables between the splitters and the SG3 Secure Room.

4

The government nonetheless contends that plaintiffs’ evidence showing the government’s

5 involvement in the copying and diversion of the communications transiting AT&T’s Internet

6 backbone network, the existence of splitters on AT&T’s backbone network in other cities, and the

7 electronic devices that are within the SG3 Secure Room is not admissible. Govt. Opp. (ECF

8 No. 285) at 14-16. Significantly, the government does not submit any evidence to the contrary that

9 would create a genuine factual dispute; it contends only that plaintiffs’ evidence on these points

10 either lacks foundation or is hearsay and therefore is inadmissible.

11

The government’s contentions lack merit, for plaintiffs’ evidence meets the evidentiary

12 standard for summary judgment: At this stage, the question is whether plaintiffs’ evidence could be

13 presented in an admissible form at trial, not whether it is currently in an admissible form. Fed. R.

14 Civ. P. 56(c)(2); Fonseca v. Sysco Food Servs. Of Ariz., Inc., 374 F.3d 840, 846 (9th Cir. 2004);

15 Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). The portions of the Klein and Marcus

16 declarations that plaintiffs rely upon for this motion are grounded in Klein’s own observations and

17 activities in the course of his job duties at AT&T over many years and Marcus’s unchallenged

18 expertise in the telecommunications field, and the information in the AT&T documents is

19 independently attested to not just by Klein but by Russell. Moreover, the statements of AT&T

20 employees regarding the NSA’s control and direction of the Internet backbone interceptions are

21 admissible nonhearsay.

22

A. Mark Klein’s Declaration Is Based On His Personal Knowledge And Experience

At AT&T

23

Federal Rule of Evidence 602 requires that testimony be based on personal knowledge, but

24

“the threshold of Rule 602 is low.” U.S. v. Hickey, 917 F.2d 901, 904 (6th Cir. 1990). Personal

25

26 17 ECF No. 84-2 at ¶¶ 21-34 (Klein Decl.); ECF Nos. 84-3, 84-4, 84-5, 84-6 (Klein Decl., Exs. A, B, C); ECF No. 89 at ¶¶ 56-58, 62, 70-73, 77, 109 (Marcus Decl.); ECF No. 84-1 at ¶¶ 6, 10-12, 15, 19-
27 23 (Russell Decl.).
28

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1 knowledge need not be expressly stated but can be inferred from the declaration itself. Barthelemy

2 v. Air Lines Pilots Ass’n, 897 F.2d 999, 1018 (9th Cir. 1990). In particular, in the case of testimony

3 by employees about their company’s business operations, “personal knowledge and competence to

4 testify are reasonably inferred from their positions and the nature of their participation in the matters

5 to which they swore.” Id. Moreover, “[p]ersonal knowledge can include ‘inferences and opinions,

6 so long as they are grounded in personal observation and experience.’” U.S. v. Neal, 36 F.3d 1190,

7 1206 (1st Cir. 1994) (bank employee could testify to information she learned in the course of her

8 job, including the status of the bank’s relationship with a federal agency (the Federal Deposit

9 Insurance Corporation) and the locations of its customers, even though her knowledge was based

10 solely on hearsay statements in documents she reviewed); accord U.S. v. Famania-Roche, 537 F.3d

11 71, 76 (1st Cir. 2008) (low-level drug dealer could testify to activities and drug sales by other drug

12 dealers in narcotics organization she was part of); DIRECTV, Inc. v. Budden, 420 F.3d 521, 529 (5th

13 Cir. 2005) (employee could testify about facts concerning another company he learned through a law

14 enforcement investigation); U.S. v. Doe, 960 F.2d 221, 223 (1st Cir. 1992) (gun shop owner could

15 testify that pistol was manufactured in Brazil without stating the basis for his inference); Great Am.

16 Assur. Co. v. Liberty Surplus Ins. Corp., 669 F. Supp. 2d 1084, 1089 (N.D. Cal. 2009) (employee

17 can testify to company policies based on her “experience and perceptions” on the job); Sjoblom v.

18 Charter Commc’ns, LLC, 571 F. Supp. 2d 961, 968-69 (W.D. Wis. 2008) (employees may testify

19 about the activities of their supervisors and co-workers that they observe); U.S. v. Wirtz,

20 357 F. Supp. 2d 1164, 1169-70 (D. Minn. 2005) (employee could testify that employees of a

21 different company provided certain information and documents to his company even though he had

22 no personal contact with the employees of the other company). See also Fed. R. Evid. 701 (lay

23 opinion).

24

Klein’s declaration is solidly grounded in his own personal knowledge, based on his decades

25 of experience with AT&T’s business practices and operations and his observations and activities in

26 the course of his employment. Klein’s job at AT&T’s Folsom Street facility included “oversee[ing]

27 the WorldNet Internet room” (ECF No. 84-2 at ¶ 15 (Klein Decl.)), and he attests that Internet

28 backbone communications data under his oversight was copied and sent over fiber-optic cables into

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1 the SG3 Secure Room. Id. at ¶¶ 27, 34. Indeed, Klein himself was responsible for connecting

2 Internet backbone circuits to the splitter cabinet, as directed by the AT&T documents that he relied

3 on to do his job. Id. at ¶¶ 36, 25, 26 & Exs. A-C. Klein also gives detailed descriptions of Internet

4 backbone circuits he knew to be copied and diverted into the SG3 Secure Room and the types of

5 data carried on those circuits. Id. at ¶¶ 19, 22, 28-34. All of this information is squarely within his

6 personal knowledge and experience and is admissible evidence that satisfies Rule 602. See

7 Barthelemy, 897 F.2d at 1018.

8

9

10

11

12

B. The Evidence That The Splitter Is Part Of The Government’s Internet

Backbone Surveillance Is Admissible

13

Klein’s testimony of the NSA’s involvement at the Folsom Street Facility where he worked

14 is admissible on numerous grounds.

15

First, Klein’s testimony is based on his observations and experiences on the job, and is no

16 different in substance than the testimony of an employee regarding his observations of his

17 company’s interactions with a particular customer or another company. The Court has no doubt

18 many times admitted testimony of this sort, for it is a staple of commercial litigation.

19

For example, Klein, who otherwise had keys and free access to all parts of AT&T’s Folsom

20 Street Facility, was excluded from only the SG3 Secure Room because AT&T’s policy was to

21 restrict access to the room to only persons cleared by the NSA, even in emergencies. ECF No. 84-2

22 at ¶¶ 17, 18 (Klein Decl.). This testimony is based on Klein’s personal knowledge, observations,

23 and experiences of AT&T’s business operations and its policies and practices, and his observations

24 of its employees. See Neal, 36 F.3d at 1206; Great Am. Assur. Co., 669 F. Supp. 2d at 1089;

25 Sjoblom, 571 F. Supp. 2d at 968-69. So, too, is Klein’s testimony of visiting the SG3 Secure Room 26 while it was under construction (where he saw AT&T employee “FSS #2,” who had met with an 27 NSA agent, installing equipment) and of again visiting the room after it was in operation. ECF 28 No. 84-2 at ¶¶ 10, 12, 14, 17 (Klein Decl.).

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1

Second, the statements made to Klein by management and other AT&T employees about the

2 NSA’s activities and the SG3 Secure Room are admissible nonhearsay. AT&T is the agent of the 3 government in assisting the government in electronic surveillance,18 and statements by an agent on a

4 matter within the scope of the agency relationship are admissible nonhearsay. Fed. R. Evid.
5 801(d)(2)(D); Anestis v. U.S., __ F. Supp. 3d __, 2014 WL 4928959, at *4 n.3 (E.D. Ky. Sept. 30,
6 2014); Quintero v. U.S., 2014 WL 201608, at *2 (D. Mass. Jan. 15, 2014); Cefalu v. Holder,
2013 WL 5315079, at *14 n.16 (N.D. Cal. Sept. 23, 2013); L-3 Commc’ns Integrated Sys. v. U.S., 7
91 Fed. Cl. 347, 359 (Fed. Cl. 2010); Globe Sav. Bank, F.S.B. v. U.S., 61 Fed. Cl. 91, 93-95 (Fed. 8
Cl. 2004). Because the statements were made at a time when AT&T and the government were 9
violating not only the Fourth Amendment but also FISA, the statements are also admissible as 10
statements by a coconspirator. Fed. R. Evid. 801(d)(2)(E). 11
In addition to being admissible under Rules 801(d)(2)(D) and (d)(2)(E), the e-mail to Klein 12
from AT&T management and statements by his manager and a co-worker telling of upcoming visits 13
by an NSA agent (ECF No. 84-2 at ¶¶ 10, 16 (Klein Decl.)), are also admissible under Rule 803(3) 14 as evidence that AT&T employees actually met with NSA agents, that the purpose of the first
15 meeting was that “the NSA agent was to interview FSS #2 for a special job” and that the purpose of
16 the second meeting was to discuss “FSS #3’s suitability to perform the special job that FSS #2 had
17 been doing,” that AT&T’s management’s plan and intent was to cooperate with the NSA, and that

18 AT&T thereafter did cooperate with the NSA. Fed. R. Evid. 803(3) (statements reflecting plan or

19 intent are admissible); U.S. v. Best, 219 F.3d 192, 198 (2d Cir. 2000) (statement of plan or intent can

20 be used to “prove that the declarant thereafter acted in accordance with the stated intent”). And

21 Klein’s statements that “The NSA agent came and met with FSS #2” and “The NSA agent did come

22 and speak to FSS #1” are personal observations. ECF No. 84-2 at ¶¶ 10, 16 (Klein Decl.).

23

C. The Evidence That Similar Splitters Exist At Other Locations Is Admissible

24

The evidence that similar splitters exist at other locations on the AT&T backbone network is

25 admissible. The statement of an AT&T employee that splitters exist in other cities, including

26 Seattle, San Jose, Los Angeles, and San Diego (ECF No. 84-2 at ¶ 36 (Klein Decl.)), is admissible

27 18 See 10/24/14 Wiebe Decl., Ex. B. 28

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1 nonhearsay by an agent. Fed. R. Evid. 801(d)(2)(D). One of the AT&T documents also

2 demonstrates that there are four different styles of splitter cabinets used by AT&T, and thus at least

3 four different locations where AT&T’s backbone network is being intercepted. ECF No. 84-2 at

4 Ex. A (Klein Decl.); ECF No. 89 at ¶¶ 113-118 (Marcus Decl.). The document also discloses that

5 there is a splitter located in Atlanta. ECF No. 84-2 at Ex. A at A-17 (Klein Decl.). The AT&T
6 documents are admissible as AT&T business records, as both Klein and Russell make clear, and as
statements by AT&T as the government’s agent. Fed. R. Evid. 801(d)(2)(D), 803(6); see ECF No. 7
84-2 at ¶¶ 25-26, 28 (Klein Decl.); ECF No. 84-1 at ¶¶ 5-6, 20-22 (Russell Decl.). 8
D. The Evidence Of The Electronic Devices In the SG3 Secure Room Is Admissible 9
For purposes of this motion only, plaintiffs accept the government’s representation that after 10
it copies communications from the Internet backbone it filters them and then searches them at stages 11
two and three. See Plaintiffs’ Motion (ECF No. 261) at 5-9 and evidence cited therein. Whether 12
that filtering and searching occurs in the SG3 Secure Room or elsewhere, and what electronic 13
devices are used to perform the filtering and searching, are irrelevant to plaintiffs’ Fourth
14 Amendment claim. Nonetheless, even though it is not essential to their motion, the evidence
15 plaintiffs present regarding the electronic devices in the SG3 Secure Room is admissible.

16

Klein’s testimony regarding the electronic devices in the SG3 Secure Room that were

17 attached to the other end of the fiber-optic cables he was responsible for maintaining is based on the

18 AT&T documents he relied on to do his job, which are themselves admissible business records and

19 admissions. ECF No. 84-2 at ¶¶ 28, 35 & Ex. C (Klein Decl.).

20

21

22

23

24

25

26

27

28

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E. The Marcus Declaration Is Admissible Expert Testimony 1
Marcus’s expert declaration is based on evidence within the Klein declaration and the AT&T 2
documents, as well as the other evidence Marcus cites and Marcus’s own extensive personal
3 experience with and specialized knowledge of the telecommunications networking field and related
4 business practices and economics—all of which he sets forth in his declaration.

5

The government challenges Marcus’s expert testimony because he lacks “personal

6 knowledge” and relies on Klein’s testimony. Govt. Opp. (ECF No. 285) at 17. But Marcus, like any

7 expert, is not limited to his personal knowledge and can rely on the testimony and evidence of

8 others, including hearsay and other forms of evidence that would themselves be inadmissible. Fed.

9 R. Evid. 703. And the government does not challenge Marcus’s qualifications to assess the

10 operation and implications of the splitter cabinet and related equipment. In any event, all of the

11 Klein evidence that Marcus relies upon is competent for the reasons explained above. Moreover,

12 Marcus does not rely on statements made by others that Klein reports, including statements

13 regarding the NSA.

14

The government also challenges Marcus’s qualifications to support his opinion that the

15 government (not AT&T) funded the SG3 Secure Room, claiming that Marcus did not “consider

16 himself an economist” and “has had no economics or corporate finance training.” Govt. Opp. (ECF

17 No. 285) at 18. But plaintiffs’ motion does not depend on who paid for the secret room. And

18 Marcus has more than adequate qualifications to render this opinion.

19

Marcus first concluded that AT&T had no technical or business reason for installing the

20 splitter and sending complete copies of communications transiting its Internet backbone to the SG3

Secure Room. ECF No. 89 at ¶¶ 41-49, 128-139 (Marcus Decl.). The government does not 21
challenge this conclusion, and it is well within Marcus’s expertise. Marcus then examined AT&T’s 22
declining revenues and profits and other evidence of AT&T’s weak financial condition at the time 23
the SG3 Secure Room was installed–facts that the government does not attempt to rebut or contest. 24
Id. at ¶¶ 140-147. He concluded that given the lack of a business or technical purpose for the SG3 25
Secure Room, it was unlikely that AT&T would have funded its installation it at a time when AT&T
26 was financially weak. Id. This common-sense conclusion is also within Marcus’s expertise in the
27 field of economic and business aspects of telecommunications networks—a field in which Marcus

28

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1 has decades of relevant experience, including authoring multiple papers involving economic issues

2 in this field and serving as the Senior Advisor for Internet Technology at the Federal

3 Communications Commission, AT&T’s chief regulator. Id. at ¶¶ 7, 13-18 (network design and

4 capacity planning experience, including economic analysis), ¶¶ 24, 27, 29 (experience and economic

5 knowledge related to telecommunications and experience authoring economic papers).

6

At bottom, the government’s objections to Marcus’s testimony go its weight, not its

admissibility. But the ordinary method for challenging the weight of an expert’s testimony is to 7

submit contrary expert testimony, which the government does not do. In any event, what matters is 8

not who paid for the room but that the installations and operations that Klein describes and Marcus 9
opines about are entirely consistent with the government’s recently disclosed descriptions of its 10
surveillance operations, were conducted in secrecy that had no part in AT&T’s normal business 11
practices, and trace the specific connection between telecommunications services that plaintiffs use
12 and the physical mechanism that initiates the government’s surveillance process.

13 F. Plaintiff’s Evidence Is Not Inadmissible As “Stale”

14

Finally, the government’s contention that Klein or Marcus’s evidence is inadmissible

15 because it is somehow “stale” has no basis in fact or law. First, the government admits that its

16 interception, filtering, and searching of communications from the Internet backbone is active and

17 ongoing. See Plaintiffs’ Motion (ECF No. 261) at 6-9 and evidence cited therein. Given that

18 admission, the “staleness” argument fails utterly.

19

Second, the government cites no authority showing that any such “freshness” rule exists in

20 the context of a civil party’s summary judgment motion. Both decisions the government cites

21 address only whether “stale” evidence is sufficient to provide the reasonable suspicion or probable

22 cause necessary to support a search or seizure—an entirely different question from whether evidence

23 is admissible to help establish a relevant fact in a civil case. Ortega v. O’Connor, 146 F.3d 1149,

24 1162 (9th Cir. 1998) (considering whether an uncorroborated allegation of a one-time event 10 years

25 earlier in which plaintiff had acted inappropriately gave defendants reasonable suspicion to search 26 plaintiff’s office); Szajer v. City of Los Angeles, 632 F.3d 607, 612 (9th Cir. 2011) (considering 27 whether events from five and fifteen years earlier demonstrated probable cause for a warrant). They 28 were rulings about the weight of evidence, not its admissibility. Unrebutted evidence of an ongoing

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1 pattern and practice of unconstitutional conduct like plaintiffs’ evidence here is admissible and 2 supports an inference that the conduct is continuing.19

3 VI. The State Secrets Privilege Provides No Defense

4

The state secrets privilege has no application here for multiple reasons. First, it has no

5 application because plaintiffs’ motion is based solely on public evidence. Even where the

6 government successfully asserts the state secrets privilege, the only result is “[t]he privileged

information is excluded and the trial goes on without it.” General Dynamics Corp. v. U.S., __ U.S. 7
__, 131 S. Ct. 1900, 1906 (2011). “[T]he effect of the government’s successful invocation of 8
privilege ‘is simply that the evidence is unavailable, as though a witness had died, and the case will 9
proceed accordingly, with no consequences save those resulting from the loss of evidence.’”20 Al 10
Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190, 1204 (9th Cir. 2007); Kasza v. Browner, 11
133 F.3d 1159, 1166 (9th Cir. 1998) (“The plaintiff’s case then goes forward based on evidence not 12
covered by the privilege.”).
13 Plaintiffs’ evidence is entirely public; it principally consists of public admissions by the
14 government regarding its Internet backbone surveillance and the Klein and Marcus declarations and

15 documents. The government long ago waived any privilege in any of the matters set forth in the

16 Klein and Marcus evidence, including the documents attached to the Klein declaration. See Hepting,

17 439 F. Supp. 2d at 989; 10/24/14 Wiebe Decl., Ex. C (6/23/06 Hearing Tr., Hepting v. AT&T Corp.,

18 N.D. Cal. No. 06-cv-0672-VRW, ECF No. 284). “Operational details,” such as the identities of the

19 government’s surveillance targets, are irrelevant to the merits of plaintiffs’ claims, and would not be

20 revealed by a ruling in plaintiffs’ favor.

21

22 19 The government also argues that media reports are inadmissible, but plaintiffs do not rely on

23 media reports alone for any fact essential to their motion. They are cited only for general

background. 24 20 The “full and fair adjudication” standard that the government puts forward is not the law. Govt.

25 Opp. (ECF No. 285) at 45. Every evidentiary privilege—indeed, every rule that excludes relevant

evidence—potentially makes the resulting adjudication something less than full and fair. 26 Nonetheless, as with other privileges, when the state secrets privilege causes evidence to be

27

excluded, the case proceeds using the remaining public evidence. General Dynamics, 131 S. Ct. at 1906.

28

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1

Second, the Court has already ruled that 50 U.S.C. § 1806(f) displaces the state secrets

2 privilege with respect to plaintiffs’ statutory claims, and the government has conceded that “the

3 reasoning by which the Court concluded that section 1806(f) preempts application of the privilege to

4 Plaintiffs’ statutory claims would apply equally to Plaintiffs’ constitutional claims.” 7/23/13 Order
5 (ECF No. 153) at 12-13; ECF No. 167 at 2, 6-7. So the government’s attempt to assert the state
6 secrets privilege here is precluded by section 1806(f) and the Court’s prior ruling.
Third, the government’s attempt to invoke the valid-defense exception under the state secrets 7
privilege fails. The government contends that it would use the secret evidence in the Miriam P. 8
declaration (ECF No. 288) to “raise and support defenses in addition to” the defenses already raised 9
in its opposition. Govt. Opp. (ECF No. 285) at 45. Whatever those hypothetical undisclosed 10
defenses are, the Court’s section 1806(f) ruling requires that the government must use section 11
1806(f)’s procedures if it contends secret evidence would show that the surveillance was lawful. 12
Moreover, even if the state secrets privilege rather than section 1806(f) governed here, the valid13
defense exception would not apply because it is limited to government contracting cases. ECF 14 No. 112 at 14-16. Further, even if the state secrets privilege and the valid-defense exception both
15 did apply here, they would require the government to submit evidence proving up a “demonstrably
16 valid,” and not just “plausible” or “colorable,” defense. In re Sealed Case, 494 F.3d 139, 149-51,

17 153 (D.C. Cir. 2007); see ECF No. 112 at 28-29. Plaintiffs submit that the government has not

18 proven up any “demonstrably valid” defense.

19

The government makes one other stab at invoking the state secrets privilege, arguing that it

20 precludes any adjudication of plaintiffs’ standing. Govt. Opp. (ECF No. 285) at 21-23. Part of its

21 argument is just a repetition of its sufficiency-of-the-evidence argument asserting that plaintiffs have

22 not proven that AT&T participates in the government’s Internet backbone surveillance. Id. at 22.

23 But as plaintiffs’ motion explains, the Klein and Marcus evidence, as well as other evidence,

24 establishes AT&T’s participation in Internet backbone surveillance. Further evidence that AT&T’s

25 participation is not secret are the transparency reports AT&T now issues confirming that its 26 customers’ accounts are subject to FISA surveillance. 10/24/14 Wiebe Decl., Ex. B; ECF No. 203 at 27 5-6 & Ex. A. A ruling based solely on this public evidence discloses no state secrets, especially 28 given the government’s privilege waiver and AT&T’s own disclosures. And to the extent that the

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1 government wishes to use secret evidence to contest plaintiffs’ evidence, it must use section

2 1806(f)’s procedure. (Because it was not submitted in accordance with section 1806(f), the secret

3 Miriam P. declaration (ECF No. 288), as well as the government’s other secret filings, may not be

4 used to decide the merits of plaintiffs’ Fourth Amendment claims.) Finally, the government’s
5 incomplete quotation from Clapper v. Amnesty Int’l USA, __ U.S. __, 133 S. Ct. 1138, 1149 n.4
6 (2013), omits that the Court’s actual concern was limited to disclosure of the identities “on the list of
surveillance targets,” nothing more. See ECF No. 177 at 10-16; ECF No. 203. Granting plaintiffs’ 7
motion will disclose nothing about who is a surveillance target. 8
VII. Plaintiffs’ Motion Is Procedurally Proper 9
Plaintiffs first sought relief from the unlawful surveillance at issue here by filing the related 10
Hepting litigation in early 2006. Thereafter, plaintiffs filed this action in 2008. Since this case was 11
filed six years ago, discovery has been completely stayed, even as to nonsecret matters—an 12
unprecedented occurrence in the history of federal civil litigation. It is long past time that this 13
lawsuit moved forward towards a determination on the merits. Plaintiffs’ motion advances toward 14 that goal by tendering one issue for decision—their Fourth Amendment claim relating to the
15 government ongoing seizure and searching of communications from the Internet backbone. The
16 public evidence plaintiffs have presented merits a judgment in their favor.

17

The government seeks to continue avoiding any ruling on the legality of its conduct and

18 argues for further delay and postponement. Its arguments lack merit.

19

It first argues that any motion should be limited to a determination of plaintiffs’ standing.

20 Govt. Opp. (ECF No. 285) at 12. But standing requires a showing that the defendant has caused a

21 legally cognizable harm to the plaintiff—an injury in fact that is legally redressable—and that, and

22 much more, is exactly what plaintiffs’ motion demonstrates by proving the government defendants’

23 liability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). It would be a senseless

24 and contradictory exercise for the Court to hold that plaintiffs have proven that the government

25 intercepts and searches plaintiffs’ communications (thus satisfying the standing components of 26 injury in fact and causation) and that those searches and seizures violate the Fourth Amendment 27 (thus satisfying the standing component of redressability), and yet refuse to use those same findings 28 to hold that the government is liable.

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1

Second, the government argues that plaintiffs’ challenge to its Internet backbone surveillance

2 is outside the bounds of the complaint. Govt. Opp. (ECF No. 285) at 12-13. Plaintiffs, however,

3 have always challenged the government’s Internet backbone surveillance regardless of the shifting

4 legal theories of Executive or statutory authority the government has asserted in defense of its

5 conduct. See ECF No. 233 at 10-14; ECF No. 260 at 2-6. In particular, plaintiffs’ Fourth

6 Amendment claim squarely puts in issue the constitutionality of the government’s Internet backbone

surveillance as it exists today, for its gravamen is that no statute or exercise of Executive authority 7

could constitutionally authorize the surveillance, and thus the government’s shifting defenses or a 8
new statute cannot moot this claim. 9
VIII. The Government’s Cross-Motion Should Be Denied 10
The grounds for the government’s cross-motion for summary judgment are the same as for
11 its opposition and lack merit for all of the reasons stated above.

12

Additionally, however, even if the Court were to deny plaintiffs’ motion, that would still not

13 entitle the government to judgment as a defendant, and the government errs in contending otherwise.

14 Govt. Opp. (ECF No. 285) at 13, 20, 21. Plaintiffs’ motion is one for partial summary judgment,

15 and it advances just a portion of one of the numerous claims alleged in the complaint. Plaintiffs’

16 motion is based only on the public evidence about the government’s Internet backbone surveillance

17 that is currently available. Plaintiffs believe that that evidence is sufficient to establish the specific
18 Fourth Amendment violations raised in their motion. (Contrary to the government’s suggestion,
19 plaintiffs do not waive any claims for other Fourth Amendment violations or concede that the government has fully disclosed all of its conduct.) But if the Court disagrees, plaintiffs remain
20 entitled to continue pursuing their Fourth Amendment claims, as well as their other claims, by
21 conducting discovery. The government relies on Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986),
22 but it omits from the sentence it partially quotes the Supreme Court’s admonition that a defendant is
23 entitled to summary judgment only “after adequate time for discovery.” The Court has thus far
24 denied plaintiffs any discovery whatsoever, and cannot grant summary judgment for the government
25 defendants. See Fed. R. Civ. Pro. 56(d); ECF No. 30; ECF No. 114.

26

CONCLUSION

27

Plaintiffs’ motion for partial summary judgment should be granted and defendants’ motion

28 for partial summary judgment should be denied.

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1 Dated: October 24, 2014 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
/s/ Richard R. Wiebe RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE
CINDY COHN LEE TIEN KURT OPSAHL JAMES S. TYRE MARK RUMOLD ANDREW CROCKER DAVID GREENE ELECTRONIC FRONTIER FOUNDATION
THOMAS E. MOORE III ROYSE LAW FIRM
RACHAEL E. MENY BENJAMIN W. BERKOWITZ MICHAEL S. KWUN AUDREY WALTON-HADLOCK JUSTINA K. SESSIONS PHILIP J. TASSIN KEKER & VAN NEST LLP
ARAM ANTARAMIAN LAW OFFICE OF ARAM ANTARAMIAN
Counsel for Plaintiffs

Case No. 08-cv-4373-JSW

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PLAINTIFFS’ REPLY ISO MOTION FOR PARTIAL SUMMARY JUDGMENT RE FOURTH AMENDMENT &

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 Case4:08-cv-04373-JSW Document285 Filed09/29/14 Page1 of 56

1 JOYCE R. BRANDA Acting Assistant Attorney General
2 JOSEPH H. HUNT
3 Director, Federal Programs Branch

4 ANTHONY J. COPPOLINO Deputy Branch Director
5
JAMES J. GILLIGAN 6 Special Litigation Counsel

7 MARCIA BERMAN Senior Trial Counsel
8
RODNEY PATTON 9 Trial Attorney

10 JULIA BERMAN

Trial Attorney

11

U.S. Department of Justice, Civil Division

12 20 Massachusetts Avenue, NW, Rm. 6102

Washington, D.C. 20001

13 Phone: (202) 514-3358; Fax: (202) 616-8470

Email: james.gilligan@usdoj.gov

14

Attorneys for the Government Defendants

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17

OAKLAND DIVISION

_______________________________________

18

)

)

19 CAROLYN JEWEL, et al.,

) Case No. 4:08-cv-4373-JSW )

20

) GOVERNMENT DEFENDANTS’

21

Plaintiffs,

) OPPOSITION TO PLAINTIFFS’ ) MOTION FOR PARTIAL SUMMARY

) JUDGMENT AND CROSS-MOTION

22

v.

) FOR PARTIAL SUMMARY

) JUDGMENT ON PLAINTIFFS’

23

) FOURTH AMENDMENT CLAIM

NATIONAL SECURITY AGENCY, et al., )

24

) Date: October 31 and November 3, 2014

) Time: 9:00 a.m.

25

Defendants.

) Courtroom 5, Second Floor

) Hon. Jeffrey S. White

26 _______________________________________)

27

28

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ. Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

Case4:08-cv-04373-JSW Document285 Filed09/29/14 Page2 of 56
TABLE OF CONTENTS
PAGE
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................4
A. The Foreign Intelligence Surveillance Act and the FISA Amendments Act of 2008 ..............................................................................................................4
B. Operation of the Section 702 Program and Upstream Collection............................6
C. Plaintiff’s Motion for Partial Summary Judgment...................................................7
ARGUMENT .................................................................................................................................11
I. PLAINTIFFS’ MOTION SHOULD BE DENIED AS PROCEDUARLLY IMPROPER........................................................................................................................11
II. NEITHER THE KLEIN AND MARCUS DECLARATIONS NOR THE MEDIA REPORTS CITED BY PLAINTIFFS CONSTITUTE ADMISSIBLE EVIDENCE TO SUPPORT THEIR STANDING OR FOURTH AMENDMENT CLAIMS .....................13
A. The Klein Declaration Is Not Competent Evidence Because It Is Based on Hearsay and Speculation, Rather Than Personal Knowledge ................14
B. The Marcus Declaration Is Not Competent Evidence Because It Offers Improper Opinion Testimony Based on the Inadmissible Klein Declaration ...................................................................................................16
C. Even if the Klein and Marcus Declarations Were Not Based on Speculation and Hearsay, They Could Not Support Plaintiffs’ Current Standing or the Merits of Their Fourth Amendment Claim .....................18
D. The Unsubstantiated Media Reports on Which Plaintiffs Rely Constitute Inadmissible Hearsay, and Are Entitled to no Weight .........................19
III. PLAINTIFFS HAVE NOT ESTABLISHED THEIR STANDING. AND CANNOT DO SO WITHOUT RISK OF GRAVE DAMAGE TO NATIONAL SECURITY ..................................................................................................20
A. Plaintiffs Have Not Carried Their Evidentiary Burden of Establishing their Standing .................................................................................................................20
i

Case4:08-cv-04373-JSW Document285 Filed09/29/14 Page3 of 56
B. Even if Plaintiffs Had Presented Admissible Evidence to Support Their Standing, the State Secrets Doctrine Would Still Require Entry of Judgment for the Government on the Standing Issue ........................................................................21
IV. PLAINTIFFS SHOULD BE DENIED SUMMARY JUDGMENT, AND JUDGMENT SHOULD INSTREAD BE AWARDED TO THE GOVERNMENT, ON THE MERITS OF PLAINTIFFS’ FOURTH AMENDMENT CLAIM ..................................................23
A. Plaintiffs’ Claim of a Seizure at “Stage 1” Fails as a Matter of Fact and Law ....23
1. Plaintiffs have presented no admissible evidence that Upstream collection under Section 702 in fact involves the “Stage 1” seizure they allege ..................................................................................................24
2. Even if proven, the alleged “Stage 1” splitting of the Internet communications stream would not constitute a Fourth Amendment seizure as a matter of law ......................................................25
3. No authority cited by Plaintiffs supports their seizure claim.....................29
B. Plaintiffs’ Claim That Alleged “Stage 3” Scanning Constitutes a Search of Communications Not Found To Contain Targeted Selectors Is Also Without Merit ....................................................................................................................31
C. The “Stage 1” Seizure and “Stage 3” Search Alleged by Plaintiffs Fall Within the Fourth Amendment’s “Special Needs” Doctrine and Are Reasonable Under the Totality of the Circumstances............................................34
1. The challenged surveillance activities do not require the issuance of a warrant upon probable cause because the Government has a “special need” to collect foreign-intelligence information .....................34
2. The challenged “Stage 1” copying and “Stage 3” scanning of Plaintiffs’ unretained communications are reasonable because the interests of national security far outweigh the minimal intrusion on Plaintiffs’ Fourth Amendment interests.................................38
D. Even if Plaintiffs Had Presented Evidence of a Seizure or Search, Not Justified Under the Special Needs Doctrine, Their Fourth Amendment Claim Still Could Not Be Litigated Without National-Security Information Protected by the State Secrets Privilege.....................................................................................................43
CONCLUSION ..............................................................................................................................45
ii

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TABLE OF AUTHORITIES

CASES

PAGE(S)

Al-Haramain Islamic Found. v. Bush, 507 F.3d 1190 (9th Cir. 2007) ...........................................................................................44

In re Application of the United States of America for a Search Warrant for Contents of Electronic mail [etc.], 645 F. Supp. 2d 1210 (D. Or. 2009) ..........................29

Arizona v. Hicks, 480 U.S. 321 (1987).....................................................................................................27, 29

Berger v. New York, 388 U.S. 41 (1967).............................................................................................................36

Board of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822 (2002).....................................................................................................40, 43

Bras v. Cal. Pub. Utils. Comm'n, 59 F.3d 869 (9th Cir. 1995) .........................................................................................13, 18

Cassidy v. Cherthoff, 471 F.3d 67 (2d Cir. 2006)...........................................................................................37, 43

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)...............................................................................................13, 20, 21

City of Indianapolis v. Edmond, 531 U.S. 32 (2000).............................................................................................................35

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

Courtney v. Canyon Television & Appliance Rental, Inc., 899 F.2d 845 (9th Cir. 1990) .............................................................................................14

DMC Closure Aversion Comm. v. Goia, 2014 U.S. Dist. LEXIS 121644 (N.D. Cal. Aug. 29, 2014)...............................................19

De Boer v. Pennington, 206 F.3d 857 (9th Cir. 2000) .............................................................................................25

In re Directives, 551 F.3d 1004 (FISC Ct. Rev. 2008) ......................................................................... passim

iii

Case4:08-cv-04373-JSW Document285 Filed09/29/14 Page5 of 56
Electronic Frontier Foundation v. Dep't of Justice, 2014 WL 3945646 (N.D. Cal. Aug. 11, 2014) ..................................................................22
Feezor v. Patterson, 896 F. Supp. 2d 895 (E.D. Cal. 2012) ..............................................................................13
Ferguson v. City of Charleston, 532 U.S. 67 (2001).............................................................................................................35
Florida v. Jardines, 133 S. Ct. 1409 (2013) .................................................................................................30, 31
Griffin v. Wisconsin, 483 U.S. 868 (1987)...........................................................................................................35
Haig v. Agee, 453 U.S. 280, 307 (1981)...................................................................................................39
Hepting v. AT&T, 439 F. Supp. 2d 974 (N.D. Cal. 2006) .........................................................................22, 30
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)...................................................................................................39, 41, 42
Illinois v. Caballes, 543 U.S. 405 (2005).....................................................................................................31, 33
Jewel v. NSA, 965 F. Supp. 2d 1090 (N.D. Cal. 2013) ..................................................................... passim
Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998) ................................................................................... passim
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).....................................................................................................20, 21
MacWade v. Kelly, 460 F.3d 260 (2d Cir. 2006)...............................................................................................43
Marcus v. Search Warrants of Property, 367 U.S. 717 (1961)...........................................................................................................29
Maryland v. King, 133 S. Ct. 1958 (2013) .....................................................................................38, 39, 40, 43
iv

Case4:08-cv-04373-JSW Document285 Filed09/29/14 Page6 of 56
Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) .....................................................................................44, 45
National Treas. Employees Union v. Von Raab, 489 U.S. 656 (1989)...........................................................................................................35
New Jersey v. T.L.O., 469 U.S. 325 (1985)...........................................................................................................35
In re Oracle Corp. Sec. Litig., 627 F.3d 376 (9th Cir. 2010) .............................................................................................13
Ortega v. O’Connor, 146 F.3d 1149 (9th Cir. 1998) ........................................................................................19
Pennsylvania v. Mimms, 434 U.S. 106 (1977)...........................................................................................................34
Raglin v. UPS, 1997 U.S. App. LEXIS 13941 ...........................................................................................14
Riley v. California, 134 S. Ct. 2473 (2014) .......................................................................................................29
Samson v. Maryland, 547 U.S. 843 (2006)...........................................................................................................39
In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002).............................................................................36, 37
In re Search of Information Associated with [Redacted] at mac.com [etc.], 2014 WL 1377793 (D.D.C. Apr. 7, 2014) .........................................................................28
Segura v. United States, 468 U.S. 796 (1984).....................................................................................................25, 30
Smith v. Chase Mtg. Credit Corp., 653 F. Supp. 2d 1035 (E.D. Cal. 2009) ............................................................................13
Stanford v. Texas, 379 U.S. 476 (1965)...........................................................................................................29
Stewart v. Wachowski, 574 F. Supp. 2d 1074 (C.D. Cal. 2005) .............................................................................19
v

Case4:08-cv-04373-JSW Document285 Filed09/29/14 Page7 of 56
Stonefire Grill, Inc. v. FGF Brands, Inc., 987 F. Supp. 2d 1023 (C.D. Cal. 2013) .............................................................................14
Szajer v. City of Los Angeles, 632 F.3d 607 (9th Cir. 2010) ............................................................................................19
Tenenbaum v. Simonini, 372 F.3d 776 (6th Cir. 2004) .............................................................................................45
In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 157 (2d Cir. 2008)...............................................................................................43
Terry v. Ohio, 392 U.S. 1 (1968) .............................................................................................................35
Texas v. Brown, 460 U.S. 730 (1983)...........................................................................................................25
United States v. Bin Laden, 126 F. Supp. 2d 264 (S.D.N.Y. 2000) ..............................................................................25
United States v. Brown, 884 F.2d 1309 (9th Cir. 1989) ...........................................................................................25
United States v. Buck, 548 F.2d 871 (9th Cir. 1977) ............................................................................................35
United States v. Clutter, 674 F.3d 980 (8th Cir. 2012) .............................................................................................25
United States v. DeMoss, 279 F.3d 632 (8th Cir. 2002) .............................................................................................27
United States v. Duka, 671 F.3d 329 (3d Cir. 2011)...................................................................................35, 36, 37
United States v. Elmore, 304 F.3d 557 (6th Cir. 2002) .............................................................................................25
United States v. England, 971 F.2d 419 (9th Cir. 1992) .......................................................................................25, 26
United States v. Gant, 112 F.3d 241-42 (6th Cir. 1997) ........................................................................................27
vi

Case4:08-cv-04373-JSW Document285 Filed09/29/14 Page8 of 56
United States v. Gill, 280 F.3d 923 (9th Cir. 2002) ............................................................................................26
United States v. Gorshkov, 2001 WL 1024026 (W.D. Wash. May 23, 2001)...............................................................29
United States v. Hall, 978 F.2d 616 (10th Cir. 1992) .....................................................................................27, 28
United States v. Harvey, 961 F.2d 1361 (8th Cir. 1992) ...........................................................................................27
United States v. Hoang, 486 F.3d 1156 (9th Cir. 2007) ...........................................................................................26
United States v. Jacobsen, 466 U.S. 109 (1984)................................................................................................... passim
United States v. Jefferson, 566 F.3d 928 (9th Cir. 2009) .......................................................................................25, 26
United States v. Jones, 132 S. Ct. 945 (2012) .............................................................................................30, 31, 42
United States v. Kow, 58 F.3d 423 (9th Cir. 1995) ...............................................................................................30
United States v. LaFrance, 879 F.2d 1 (1st Cir. 1989) ..................................................................................................26
United States v. Martinez-Fuerte, 428 U.S. 543 (1976)...........................................................................................................35
United States v. Mohamud, 2014 WL 2866749 (D. Or. June 24, 2014) 2011 WL 10945618 (F.I.S.C. Oct. 3, 2011)................................................................................................ passim
United States v. Place, 462 U.S. 696 (1983)................................................................................................... passim
United States v. Reynolds, 345 U.S. (1953) ................................................................................................................44
United States v. Saboonchi, 990 F. Supp. 2d 536 (D. Md. 2014) ...................................................................................29
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United States v. Schofield, 80 Fed. Appx. 798, 802-03 (3d Cir. 2003).........................................................................27
United States v. Tamura, 694 F.2d 591 (9th Cir. 1982) .............................................................................................30
United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980) ..................................................................................... passim
United States v. U.S. Dist. Ct. (Keith), 407 U.S. 297 (1972).....................................................................................................35, 36
United States v. Va Lerie, 424 F.3d 694 (8th Cir. 2005) .............................................................................................25
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)...........................................................................................................40
United States v. Zacher, 465 F.3d 336 (8th Cir. 2006) .............................................................................................26
Virginia v. Moore, 553 U.S. 164 (2008)...........................................................................................................29
STATUTES
50 U.S.C. § 1801....................................................................................................................5, 6, 42 50 U.S.C. §§ 1803(a), 1804(a), 1805 ...............................................................................................4 50 U.S.C. § 1806(f)................................................................................................................ passim 50 U.S.C. § 1821..............................................................................................................................6 50 U.S.C. § 1881.................................................................................................................... passim Protect America Act (“PAA),
Pub. L. No. 110-55 (2007) ...................................................................................................5 FISA Amendments Act of 2008 (“FAA),
Pub. L. No. 110-261 (2008) .................................................................................................5 FISA Amendments Act Reauthorization Act of 2012,
Pub. L. No. 112-238, 126 Stat. 1631 .................................................................................42
FEDERAL RULES OF CIVIL PROCEDURE
Fed. R. Civ. P. 56(c) ................................................................................................................13, 14
FEDERAL RULES OF EVIDENCE
Fed. R. Evid. 602 ...........................................................................................................................14
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Fed. R. Evid. 701 ...........................................................................................................................14 Fed. R. Evid. 702 .....................................................................................................................17, 18 Fed. R. Evid. 801 .....................................................................................................................14, 15 Fed. R. Evid. 802 ...........................................................................................................................14 LEGISLATIVE MATERIAL 154 Cong. Rec. S6097, S6122 (June 25, 2008) .............................................................................37 S. Rep. No. 112-229, 112th Cong., 2d Sess. (Sept. 20, 2012) .......................................................40 H.R. Rep. 112-645 (I), 112th Cong., 2d Sess. (Aug. 2, 2012)...........................................37, 39, 41 H.R. Rep. 112-645(II), 112th Cong., 2d Sess. (Aug. 2, 2012) ................................................38, 41 S. Rep. No. 95-604 (1977) ...............................................................................................................4 S. Rep. No. 95-701 (1978) ...............................................................................................................5 S. Rep. No. 110-209 (2007) .............................................................................................................5 S. Rep. 112-174, 112th Cong., 2d Sess. (June 7, 2012).....................................................38, 41, 46 Intelligence Activities: Hrgs. Before the Sen. Select Comm. To Study Governmental
Operations With Respect to Intelligence Activities, 94th Cong., Vol. V, 57-59 (1975) .................................................................................................................................30 Modernization of the Foreign Intelligence Surveillance Act: Hearing before S. Select Comm. on Intel., 110th Cong., 1st Sess. (May 1, 2007)..................................5, 37 MISCELLANEOUS Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (July 2, 2014) ...............................................................................................7, 40, 41, 42 The President's Review Group on Intelligence and Communications Technologies, Liberty and Security in a Changing World at 145 (Dec. 12, 2013) ...................................42
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1

INTRODUCTION

2

Plaintiffs filed this action six years ago alleging that the Government was then

3 conducting “an illegal and unconstitutional program of dragnet communications surveillance” in

4 which it acquires the phone calls and electronic communications, “both international and

5 domestic, of practically every American . . . .” Compl. for Const. & Statutory Violations (ECF

6 No. 1) ¶¶ 1, 9, 74-75. Plaintiffs’ motion for partial summary judgment also claims at the outset

7 to prove the existence of “an ongoing program of bulk, untargeted seizure [and search] of the

8 Internet communications of millions of innocent Americans.” Pls.’ Mot. for Partial Summ. Judg.

9 (ECF No. 261) (“Pls.’ Mot.”) at 1. In the end, however, Plaintiffs’ motion presents a

10 dramatically downsized case, one not supported by evidence. The “mass surveillance” depicted

11 in their papers, id., is allegedly carried out under the National Security Agency’s (“NSA’s”)

12 acknowledged “Upstream collection” of communications pursuant to Section 702 of the Foreign

13 Intelligence Surveillance Act (“FISA”). As Plaintiffs purport to describe it, the collection

14 involves a process by which the stream of electronic communications traveling on the fiber-optic

15 network of a telecommunications-service provider is electronically copied, filtered to remove

16 wholly domestic communications, and then scanned for communications containing targeted

17 (e.g., terrorist-associated) selectors, after which the copied communications not found to contain

18 such selectors—the only communications that Plaintiffs place at issue in their motion—are

19 destroyed within milliseconds of their creation, without ever having been seen by a human being.

20

Even this diminished version of the alleged “dragnet” surveillance is unsupported by

21 admissible evidence, and fails to describe either a seizure or search, much less an unreasonable

22 seizure or search, within the meaning of the Fourth Amendment. Plaintiffs’ motion must

23 therefore be denied, their claims dismissed, and judgment awarded instead to the Government,

24 for numerous reasons.

25

First, Plaintiffs’ motion should be denied as procedurally improper and unauthorized

26 under the procedures the Court established for the orderly resolution of the four threshold

27 questions on which the Court directed briefing. Consideration of Plaintiffs’ motion for summary

28 judgment on the merits of their Fourth Amendment claim should be deferred until the Court has

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

1

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1 addressed both those threshold issues and the question of whether the allegations in Plaintiffs’

2 complaint encompass the Section 702 program at all.

3

Second, if the Court decides to entertain the question of summary judgment at this time,

4 then Plaintiffs’ motion should be denied, their claims dismissed, and judgment awarded instead

5 to the Government, because Plaintiffs still have not established their standing to challenge

6 alleged ongoing collection of communications by the NSA. At the summary-judgment stage,

7 Plaintiffs must present sufficient admissible evidence to support each essential element of their

8 claims, including their standing, or judgment must be awarded against them. As Plaintiffs

9 observe, the Government has acknowledged that Upstream involves the collection of certain

10 communications as they transit the Internet backbone networks of telecommunications-service

11 providers, but the technical details of the collection process remain classified. The Klein and

12 Marcus declarations that form the evidentiary basis of Plaintiffs’ claim that the NSA seizes and

13 searches the online communications of millions of Americans, including theirs, rest on hearsay

14 and speculation about activities that allegedly occurred in 2002 and 2003, and are inadmissible to

15 prove anything about the scope, methods, or even the existence of current NSA intelligence-

16 gathering activities, including whether Plaintiffs’ communications are acquired. Moreover,

17 although the failings of those declarations are dispositive of the standing question without

18 implication of state secrets, the Government has also explained in briefing on the Court’s four

19 threshold questions that any attempt to adjudicate Plaintiffs’ standing on grounds requiring

20 consideration of information subject to the Government’s assertion of the state-secrets privilege

21 in this case, even in ex parte proceedings under 50 U.S.C. § 1806(f), risks harmful disclosure of

22 privileged national-security information. Thus, Plaintiffs’ claims must be dismissed.

23

Third, even if Plaintiffs had established their standing, the Government, not Plaintiffs,

24 would still be entitled to summary judgment, because Plaintiffs have not shown as a matter of

25 fact or law that Upstream collection involves the seizures or searches of online communications

26 that they allege. Even if the evidence in the Klein and Marcus declarations was admissible and

27 Plaintiffs’ description of Upstream collection were accepted as true, Plaintiffs still would not

28 succeed in demonstrating that the Government conduct assailed in their motion constitutes a

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 Fourth Amendment seizure or search. It is critical to understand, as Plaintiffs themselves

2 explain, Pls.’ Mot. at 8-9, that the “seizure” and “search” they complain of do not involve

3 communications that are actually ingested by and retained in Government databases for further

4 review and analysis by Government personnel. Rather, Plaintiffs challenge as a seizure and

5 search, respectively, the electronic copying and scanning of those online communications that

6 the Government does not retain because they are not found when scanned to contain targeted

7 selectors. In Plaintiffs’ own telling, those unretained communications are copied, scanned, and

8 then destroyed all within a matter of milliseconds, and they are never seen by any human being.

9 The process Plaintiffs allege does not meaningfully interfere with Plaintiffs’ possessory interests

10 in their online communications, or reveal any information about them to Government personnel.

11 Thus, no Fourth Amendment seizure or search occurs as a matter of law.

12

Fourth, even if Plaintiffs had demonstrated a seizure and search of their online

13 communications not retained by the Government, the Government must prevail under the Fourth

14 Amendment’s “special needs” doctrine. Because Upstream collection under Section 702 serves

15 the Government’s interest in collecting foreign-intelligence information for the protection of

16 national security, information that as a practical matter cannot effectively be acquired by

17 warrant, Upstream collection falls under the “special needs” exception to the warrant

18 requirement. And Upstream collection meets the Fourth Amendment’s essential requirement of

19 reasonableness, because the critical importance of the intelligence-collection capabilities

20 authorized by Section 702, as recognized by all three branches of the Government, far outweighs

21 the vanishingly small degree (if any) to which Upstream collection under the constraints imposed

22 by Section 702 and the Foreign Intelligence Surveillance Court (“FISC”) infringes on Plaintiffs’

23 possessory or privacy interests in online communications that the Government does not acquire.

24

Finally, even if the Court determined that Plaintiffs have standing, and had presented

25 competent evidence of an unreasonable seizure or search, the state-secrets doctrine would still

26 entitle the Government to judgment. As explained in the classified supplement and Classified

27 Declaration of Miriam P., NSA, submitted in camera, ex parte, herewith, the Government

28 possesses detailed operational information about Upstream collection that is necessary to

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 adjudicate Plaintiffs’ Fourth Amendment claim and the Government’s defenses thereto, but

2 which is subject to the assertion of the state-secrets privilege in this case by the Director of

3 National Intelligence (“DNI”), and cannot be disclosed without risking exceptionally grave

4 damage to national security. In the alternative, therefore, the state-secrets doctrine requires that

5 Plaintiffs’ claims be dismissed and judgment entered for the Government.

6

Lacking evidence or a legal basis to support even their pared-down claim of the dragnet

7 surveillance they once alleged, Plaintiffs repeatedly draw attention to the personal information

8 that can be gleaned from an individual’s online communications, and appeal both to the Fourth

9 Amendment’s core values and its historic purposes. But the Court need not overlook the

10 importance of individual privacy interests or forsake the core values of the Fourth Amendment to

11 conclude that Plaintiffs have not shown a violation of their Fourth Amendment rights. Even as

12 Plaintiffs describe it, the Upstream process, undertaken to promote critical national-security

13 interests, does not meaningfully encroach upon Plaintiffs’ privacy or the values the Fourth

14 Amendment is meant to protect. Plaintiffs’ motion for summary judgment should be denied,

15 their claims dismissed, and the Government’s motion granted.

16

BACKGROUND

17

A. The Foreign Intelligence Surveillance Act and the FISA Amendments

18

Act of 2008

19

Congress enacted FISA in 1978 to place certain types of foreign-intelligence surveillance

20 under judicial oversight by requiring the Government to obtain an order authorizing such

21 surveillance from a FISC judge, based on probable cause to believe, inter alia, that the target of

22 the intended surveillance was a foreign power or an agent of a foreign power. See 50 U.S.C.

23 §§ 1803(a), 1804(a), 1805. When Congress enacted FISA, it focused on foreign-intelligence

24 surveillance of persons within the United States, see S. Rep. No. 95-604, at 7 (1977) (statute’s

25 purpose is “to regulate the use of electronic surveillance within the United States for foreign

26 intelligence purposes”), by limiting the definition of “electronic surveillance,” to which FISA’s

27 requirements are keyed, to domestically targeted foreign-intelligence-collection activities. 50

28 U.S.C. § 1801(f). Congress intentionally excluded from FISA the vast majority of Government

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 surveillance then conducted outside the United States, even if it targeted U.S. persons abroad, or

2 incidentally acquired communications to or from U.S. persons or persons located in the U.S.

3 while targeting other parties abroad. See S. Rep. No. 95-701, at 7, 34-35, 71 (1978).

4

In 2006, Congress began considering modernization of FISA because changes in

5 communications technology had rendered its definition of electronic surveillance obsolete. See

6 S. Rep. No. 110-209, at 2-5 (2007); Modernization of the FISA: Hrg. Before the S. Select Comm.

7 on Intel., 110th Cong., 1st Sess., 19 (May 1, 2007) (“May 1, 2007 FISA Mod. Hrg.”) (testimony

8 that FISA’s definition of “electronic surveillance” was “tie[d] . . . to a snapshot of outdated

9 technology”). Whereas international communications were predominantly carried by radio or

10 satellite when FISA was enacted (and so excluded from its definition of electronic surveillance),

11 they were now predominantly carried by fiber-optic cable, and qualified as wire communications

12 potentially included within FISA’s coverage. Id. at 18-19; see 50 U.S.C. § 1801(f)(2), (3)

13 (defining electronic surveillance under FISA). Furthermore, intercepts of wire or other non-radio

14 communications conducted inside the United States were covered under FISA, while those

15 conducted outside the U.S. generally were not. May 1, 2007 FISA Mod. Hrg. at 19; 50 U.S.C.

16 § 1801(f)(2). This was a distinction that technological advances had also rendered outmoded,

17 when “a single communication can transit the world even if the two people communicating are

18 only located a few miles apart.” May 1, 2007 FISA Mod. Hrg. at 19. Due to these technological

19 changes, the Government had to expend significant resources to craft numerous individual FISA

20 applications for surveillance that was originally intended to be outside FISA’s scope. Id. at 18.

21

Congress addressed this problem initially through the Protect America Act (“PAA”), Pub.

22 L. No. 110-55 (2007), and ultimately through its successor statute, the FISA Amendments Act of

23 2008 (“FAA”), Pub. L. No. 110-261 (2008). The FAA provision at issue here, Section 702 of

24 FISA, 50 U.S.C. § 1881a, “supplements pre-existing FISA authority by creating a new

25 framework under which the Government may seek the FISC’s authorization of certain foreign

26 intelligence surveillance targeting . . . non-U.S. persons located abroad,” Clapper v. Amnesty

27 Int’l USA, 133 S. Ct. 1138, 1144 (2013), without regard to the location of the collection. Section

28 702 provides that, upon the FISC’s approval of a “certification” submitted by the Government,

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 the Attorney General and the DNI may jointly authorize, for up to one year, the “targeting of

2 [non-U.S.] persons reasonably believed to be located outside the United States to acquire foreign 3 intelligence information.” 50 U.S.C. § 188la(a), (g).1 The statute does not define this authority

4 by reference to particular technology, other than to specify that acquisitions of communications

5 under Section 702 must involve “the assistance of an electronic communication service

6 provider.” Id. § 1881a(g)(2)(A)(vi). Under the express terms of Section 702, the Government

7 may not intentionally target any person known at the time of acquisition to be in the United

8 States or any U.S. person reasonably believed to be located abroad, or intentionally acquire any

9 communication known at the time of acquisition to be wholly domestic. Id. § 1881a(b). The

10 acquisition must also be “conducted in a manner consistent with the [F]ourth [A]mendment.” Id.

11

B. Operation of the Section 702 Program and Upstream Collection

12

As summarized herein, the Government has described the collection of communications

13 under Section 702, in general terms, in a number of public reports. Upon FISC approval of a

14 certification under Section 702, NSA analysts identify non-U.S. persons located outside the

15 United States who are reasonably believed to possess or receive, or are likely to communicate,

16 foreign-intelligence information designated in the certification. Such a person might be an

17 individual who belongs to a foreign terrorist organization or facilitates its activities. NSA Civil

18 Liberties and Privacy Office Report, NSA’s Implementation of FISA Section 702 at 4 (Apr. 16,

19 2014) (“Civ. Lib. Report”) (Exh. A hereto). Once the NSA has designated such a person as a

20 target, it then tries to identify a specific means by which the target communicates, such as an e-

21 mail address or a telephone number; that identifier is referred to as a “selector.” Selectors may

22 not be key words or the names of targeted individuals, but must be specific communications

23 1 Four requirements must be met for FISC approval of a Section 702 certification. First,
24 the FISC must find that the Government’s “targeting procedures” are reasonably designed to ensure that acquisitions conducted under the authorization (a) are limited to targeting non-U.S.
25 persons reasonably believed to be located outside the United States, and (b) will not intentionally acquire communications known at the time of acquisition to be purely domestic. Id.
26 § 1881a(i)(2)(B). Second, the FISC must find that the Government’s minimization procedures meet FISA’s requirements. Id. §§ 1801(h), 1821(4), 1881a(i)(2)(C). Third, the Attorney
27 General and the DNI must certify, inter alia, that a significant purpose of the acquisitions is to obtain foreign-intelligence information. Id. § 1881a(g)(2)(A)(v), (i)(2)(A). And fourth, the
28 FISC must find that the Government’s targeting and minimization procedures are consistent, not only with FISA, but also with the requirements of the Fourth Amendment. Id. § 1881a(i)(3)(A).

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 accounts, addresses or identifiers. Id.; Intelligence Community’s Collection Programs under

2 Title VII of the FISA at 3 (“IC’s Coll. Programs”) (Exh. B hereto); Privacy & Civil Liberties

3 Oversight Bd. Report on the Surveillance Program Operated Pursuant to Section 702 of the FISA

4 at 32-33, 36 (“PCLOB Report”) (Exhibit C hereto). An electronic-communications-service

5 provider may then be compelled to provide the Government all information or assistance

6 necessary to acquire communications associated with the selector, a process referred to as

7 “tasking.” PCLOB Report at 32-33; Civ. Lib. Report at 4-5.

8

One method through which NSA receives information concerning tasked selectors is

9 known as “Upstream collection.” Upstream collection occurs as communications “transit the

10 Internet ‘backbone’ within the United States.” IC’s Coll. Programs at 3. See also PCLOB

11 Report at 35. Under Upstream collection, tasked selectors are sent to a U.S. electronic-

12 communications-service provider to acquire communications that are transiting the Internet

13 backbone. PCLOB Report at 36-37. Internet communications are first filtered to eliminate

14 potential domestic communications, and are then scanned to capture only communications

15 containing the tasked selector. Id. at 37. “Unless [communications] pass both these screens,

16 they are not ingested into government databases.” Id. (quoted in Pls.’ Mot. at 9). Further

17 operational details regarding the mechanics of Upstream collection remain classified. See, e.g.,

18 Classified Declaration of Miriam P., submitted in camera, ex parte herewith.

19

C. Plaintiff’s Motion for Partial Summary Judgment

20

Plaintiffs’ motion for partial summary judgment seeks a determination that the

21 Government Defendants, through Upstream collection under Section 702, are currently violating

22 the Fourth Amendment by seizing and searching Plaintiffs’ Internet communications. See Pls.’

23 Mot. at 1, 9, 21. Plaintiffs state that they are not, in this motion, challenging any past activities

24 that allegedly occurred under presidential authorization, or the legality of the Government’s

25 collection of telephone communications, telephony metadata, or Internet metadata. See id.

26

The moving Plaintiffs, Jewel, Knutzen, and Walton, claim at different times to have been

27 subscribers to AT&T’s WorldNet Internet service, and they now claim to be subscribers to other

28 AT&T Internet services. Jewel Decl. ¶¶ 2-3; Knutzen Decl. ¶¶ 2-3; Walton Decl. ¶¶ 2-3.

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

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1 Although the Government has not revealed the operational details of Upstream collection and

2 those details remain classified, Plaintiffs base their claim that Upstream collection involves

3 unreasonable seizures and searches of their online communications on their own understanding 4 of Upstream collection as a four-stage process.2 First, according to Plaintiffs, their Internet-

5 service provider, AT&T, “creates and delivers to the government” a copy of “the entire stream of

6 domestic and international [Internet] communications” carried by AT&T’s fiber optic cables,

7 presumably including copies of their communications along with those of millions of other

8 Americans. Pls.’ Mot. at 2, 4-6, 10. Plaintiffs claim these copies are made as the

9 communications flow through junctions (peering links) between AT&T’s network and other

10 providers’ networks on the Internet backbone. Id. at 4 & n.3. Plaintiffs assert that the copying is

11 accomplished using “splitters,” devices that split the light signals on AT&T’s fiber-optic cables

12 to make identical copies of the communications carried on the cables. Id. at 6. The splitters

13 allow a copy of the communications stream to be “diverted for further processing and searching

14 by the NSA,” while still allowing the original stream “to travel as it normally would to its

15 intended destination on the Internet.” Id. Plaintiffs refer to this process as “stage one” of the

16 alleged surveillance (“Stage 1”). Id. at 5-6.

17

Next Plaintiffs assert that, at “stage two” (“Stage 2”), the copied communications are

18 filtered for foreignness, that is, to remove purely domestic communications from the copied

19 stream. Id. at 6. According to Plaintiffs, the copied and filtered communications stream is

20 “searched” at “stage three” (“Stage 3”) for particular selectors, such as email addresses and

21 phone numbers, associated with individual targets. Id. at 6-9. The results are “deposited into

22 government databases for retention” at “stage four” (“Stage 4”). Id. at 8. “‘Only those

23 communications . . . that contain a tasked selector’” are so retained. Id. at 9 n.14 (quoting

24 PCLOB Report at 111 n.476).

25

Plaintiffs’ evidentiary foundation for claimed Stages 1 and 2 rests on two declarations

26 filed by Plaintiffs in 2006 in Hepting v. AT&T, Case No. 06-CV-0676 (N.D. Cal.): the

27

2 To support their assertions regarding activities conducted at the first two stages,

Plaintiffs rely on the inadmissible assertions in the Klein and Marcus declarations. As to the

28 third and fourth stages, Plaintiffs rely largely, albeit not entirely, on facts stated about Upstream

collection in Government reports, discussed supra at 6-7. See Pls.’ Mot. at 6-8 & n.9, 11-14.

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

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1 Declaration of Mark Klein (“Klein Decl.”), a former AT&T employee who retired from AT&T

2 in May 2004, Klein Decl. ¶¶ 2-6, and the Declaration of J. Scott Marcus (“Marcus Decl.”), a

3 purported communications technology expert, Marcus Decl. ¶ 7. Pls.’ Mot. at 6 nn. 5-8. Mr.

4 Klein claims that in 2003, AT&T constructed a new equipment room, known as the “SG3 Secure

5 Room,” at its Folsom Street telecommunications facility in San Francisco, California. According

6 to Mr. Klein, the room was secured with multiple keyed and combination locks, and the regular

7 AT&T technician workforce was not allowed to enter. Klein Decl. ¶¶ 11-12, 17-18. Earlier in

8 2002 an individual, who another AT&T employee supposedly informed Mr. Klein was an NSA

9 agent, interviewed an AT&T Field Support Specialist for a “special job” at Folsom Street; the

10 specialist installed equipment in the SG3 Secure Room in January 2003. Id. ¶¶ 10, 14. In the

11 fall of 2003 another supposed NSA agent interviewed a second AT&T Field Support Specialist

12 who took over the “special job” at Folsom Street in January 2004. Id. ¶ 16.

13

At this time, AT&T provided Internet services to customers through its WorldNet

14 Internet service. Id. ¶ 19. Mr. Klein avers that the WorldNet Internet room at Folsom Street

15 contained telecommunications equipment used to direct e-mails, web-browsing requests, and

16 other Internet-based communications sent to and from customers of AT&T’s WorldNet Internet

17 service. Id. ¶¶ 15, 19. He asserts that in February 2003, a “splitter cabinet” was installed in the

18 WorldNet Internet Room at Folsom Street to duplicate the signals of certain (but not all) of the

19 fiber-optic circuits carrying WorldNet Internet services, and divert the duplicate signals to the

20 SG3 Secure Room, while allowing the original signals to continue as they previously had. The

21 split circuits allegedly were “peering links” that connected the WorldNet Internet network to the

22 networks of fourteen non-AT&T telecommunications companies and two Internet exchange

23 points. He states that the splitters transferred to the SG3 Secure Room the contents of all the

24 electronic voice and data communications going across those links. Id. ¶¶ 24-34; Marcus Decl.

25 ¶ 62. Mr. Marcus, based on his knowledge of “peering traffic patterns” in the industry, infers

26 that the copied communications constituted all or substantially all of AT&T’s off-net IP-based

27 traffic in the San Francisco Bay Area. Marcus Decl. ¶¶ 56, 61, 71-72, 104-08.

28

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1

According to Mr. Klein, an AT&T business document attached to his declaration

2 indicates that the equipment installed in the SG3 Secure Room included a Narus STA 6400

3 Semantic Traffic Analyzer and a Narus Logic Server. Klein Decl. ¶ 35; see also Marcus Decl.

4 ¶¶ 44, 75. Mr. Marcus opines that the Narus system was a “key component” of the SG3

5 equipment configuration shown on the AT&T document, “designed” to analyze large volumes of

6 data in “real time,” at “true carrier” speeds, and was “well suited” to high-speed winnowing

7 down of large volumes of data to identify communications of interest for surveillance purposes.

8 Id. ¶¶ 44, 74, 75, 79-81, 83-85. He also considers it “highly likely” that the SG3 Secure Room

9 was connected to a second fiber-optic network other than AT&T’s, on which signals could be

10 sent out of or into the SG3 Secure Room, although he acknowledges that the documentation

11 provided by Mr. Klein “do[es] not . . . indicate [by] what entities.” Id. ¶¶ 76-77, 87.

12

Mr. Marcus also finds it “credible” that the SG3 Secure Room was intended for purposes

13 of surveillance on a substantial scale. Id. ¶ 6. He opines that the infrastructure constructed at

14 Folsom Street provided AT&T the “capacity” to assist the Government in carrying out

15 warrantless content surveillance of both the domestic and international IP-based communications

16 of people in the United States, with the early stages being “computer-controlled collection and

17 analysis of communications,” and the last stage being “actual human scrutiny.” Id. ¶¶ 3, 38-39;

18 see also id. ¶¶ 88, 90. The components allegedly chosen “[were] exceptionally well suited” to

19 massive, covert surveillance of IP-based data: massive data capture with high-speed scanning at

20 the capture point to identify data of interest, and shipment of those data to a collection point (or

21 points) for more detailed analysis. Mr. Marcus acknowledges that the alleged configuration

22 could have been used solely for commercial applications or routine intercepts, but in his view

23 was vastly in excess of that needed for applications other than surveillance. The most plausible

24 inference, he opines, is that it “was a covert network . . . used to ship data of interest to [] central

25 locations for still more intensive analysis.” Id. ¶¶ 40-43, 45, 47, 49, 88, 90, 129, 136.

26

Mr. Marcus finally opines that it is unlikely that AT&T would have made the necessary

27 financial investments to create the SG3 infrastructure given what he characterizes as its troubled

28 financial condition in 2003. The United States Government, he surmises, is “the most obvious

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 funding source,” supporting the “plausibility” of a government role in the SG3 configurations.

2 Id. ¶¶ 46, 137, 146, 147. He also finds it “plausible” that other splitter cabinets like the one

3 installed at Folsom Street were installed at AT&T facilities in Seattle, San José, Los Angeles,

4 and San Diego, and is consistent with similar deployments at 15-20 AT&T sites. He found it

5 “highly probable” that all or substantially all of AT&T’s traffic from other Internet Service

6 Providers was diverted, including a substantial fraction, probably more than one half, of all

7 AT&T domestic traffic, approximately ten percent of all domestic Internet communications in

8 the United States. Klein Decl. ¶ 36; Marcus Decl. ¶¶ 113, 114, 118, 120, 124-126.

9

On the basis of these assertions regarding the capabilities of equipment allegedly located

10 in a secure room at AT&T’s Folsom Street facility in 2003, but without evidence of their actual

11 use or purpose (even then), Plaintiffs contend that the Government is today violating their Fourth

12 Amendment rights in two ways. First, they maintain that the Government seizes their online

13 communications at Stage 1 of the Upstream process when, as they describe it, AT&T “creates

14 and delivers to the government” a copy of “the entire stream of domestic and international

15 [Internet-based] communications” carried on its fiber-optic network. Pls.’ Mot. at 2, 6, 16-19.

16 Second, Plaintiffs argue that after the copied communications stream is filtered, at alleged

17 Stage 2 (the lawfulness of which they do not contest), to remove purely domestic

18 communications, the remaining communications are searched, at Stage 3, to identify the

19 communications, containing targeted selectors, that will be retained in Government databases for

20 foreign-intelligence purposes. Id. at 6-9, 19-21. Plaintiffs state, without qualification, that “[t]he

21 communications the [G]overnment retains at stage four are not at issue here,” and that their

22 motion challenges only the claimed Stage 1 “seizure of the stream of Internet communications”

23 and Stage 3 “searching . . . of the contents of those communications for selectors.” Id. at 9.

24
25 I.
26
27

ARGUMENT
PLAINTIFFS’ MOTION SHOULD BE DENIED AS PROCEDURALLY IMPROPER. Plaintiffs’ motion for summary judgment on the merits of their Fourth Amendment claim,

28 as it relates to alleged ongoing seizures and searches of their Internet communications, should be

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

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1 denied as procedurally improper. Plaintiffs’ motion is premature in light of the threshold legal

2 issues currently pending before the Court, and is unauthorized under the procedures the Court

3 established for the orderly resolution of those issues.

4

On July 23, 2013, the Court issued a decision on the parties’ prior motions to dismiss or

5 for summary judgment, at the conclusion of which it ordered further briefing on issues

6 pertaining, inter alia, to Plaintiffs’ standing. Jewel v. NSA, 965 F. Supp. 2d 1090, 1112-13 (N.D.

7 Cal. 2013). The Court held a case management conference on September 27, 2013 to discuss

8 and set a schedule for this further briefing, which the Court noted was on “important threshold

9 legal issues.” Tr. of Proceedings dated September 27, 2013 (“Tr.”) at 5. The Court required

10 additional briefing on, inter alia, whether Plaintiffs can establish their standing without

11 impermissible damage to national security, assuming procedures under 50 U.S.C. § 1806(f) may

12 be used here (“question three”). Id. at 6-7.

13

During the case management conference, counsel for Plaintiffs asked the Court whether

14 Plaintiffs could move for partial summary judgment on “one part of one claim where we think

15 we can prove our standing with public evidence,” that is, “[their] Fourth Amendment claim” as it

16 relates to “current ongoing internet interceptions.” Plaintiffs sought leave to address this issue

17 as part of their briefing on question three, whether they can establish their standing without

18 risking damage to national security. Id. at 19-20. The Court answered that such a motion was

19 permissible “[a]s it relates to standing.” Id. at 20. As the transcript makes clear, the Court

20 authorized briefing on the limited issue of whether Plaintiffs could establish their standing to

21 bring a Fourth Amendment claim related to allegedly ongoing Internet interceptions, not full-

22 scale summary judgment briefing on the merits of such a claim. Yet that is what Plaintiffs have

23 filed. Plaintiffs’ motion seeks to litigate the merits of one of their claims before the Court

24 resolves the threshold legal issues it identified, in disregard of the Court’s clearly stated

25 instructions as to how the case should proceed.

26

In addition, the hotly disputed issue of whether Plaintiffs’ complaint even includes the

27 claim on which they purport to move for summary judgment is currently before the Court for

28 decision. The parties have extensively briefed, in the context of their preservation dispute,

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 whether Plaintiffs’ complaint—which alleges unlawful surveillance without any statutory or

2 judicial authorization—even purports to challenge the legality of intelligence programs such as

3 Upstream collection that are authorized by the FISC pursuant to Section 702 of the FISA. See

4 ECF Nos. 229, 233, 235, 243, 253. As the Government has demonstrated at length, it does not.

5 For this reason Plaintiffs are not permitted now to seek summary judgment on this unpled claim.

6 It is “axiomatic” that claims not pled in a complaint “cannot be considered by a court at the

7 summary judgment stage.” Feezor v. Patterson, 896 F. Supp. 2d 895, 903 (E.D. Cal. 2012); see

8 also Smith v. Chase Mtg. Credit Corp., 653 F. Supp. 2d 1035, 1041 n.6 (E.D. Cal. 2009). At the

9 very least, Plaintiffs’ motion for summary judgment should be held in abeyance pending the 10 Court’s decision on this and the other threshold issues now pending.3

11 II. 12 13

NEITHER THE KLEIN AND MARCUS DECLARATIONS NOR THE MEDIA REPORTS CITED BY PLAINTIFFS CONSTITUTE ADMISSIBLE EVIDENCE TO SUPPORT THEIR STANDING OR FOURTH AMENDMENT CLAIMS.
“One of the principal purposes of the summary judgment rule is to isolate and dispose of

14 factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Plaintiffs

15 must support each element of their Fourth Amendment claim, including standing, “with the

16 manner and degree of evidence required at the successive stages of the litigation.” Bras v. Cal.

17 Pub. Utils. Comm’n, 59 F.3d 869, 872 (9th Cir. 1995) (quoting Lujan v. Defenders of Wildlife,

18 504 U.S. 555, 561 (1992)). Plaintiffs must adduce admissible evidence establishing both their

19 standing and the merits of their claim. See Fed. R. Civ. P. 56(c); see also In re Oracle Corp. Sec.

20 Litig., 627 F.3d 376, 385 (9th Cir. 2010) (“A district court’s ruling on a motion for summary

21 judgment may only be based on admissible evidence.”). If Plaintiffs “fail[] to make a showing

22 sufficient to establish the existence of an element essential to [their] case, and on which [they]

23 will bear the burden of proof at trial,” “Rule 56(c) mandates the entry of summary judgment”

24 against them. Celotex Corp., 477 U.S. at 322.

25

As the factual foundation for both their standing and the merits of their claims, Plaintiffs

26 rely largely on Klein and Marcus Declarations. These declarations are the principal support for

27 Plaintiffs’ assertion that all Americans’ communications—or at least all AT&T customers’

28

3 If the Court nonetheless decides to entertain Plaintiffs’ motion, it should, in the

interests of fairness and efficiency, consider the Government’s cross-motion at the same time.

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

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1 communications—are currently subject to “dragnet” seizure and search. See Pls.’ Mot. at 6.

2 According to Plaintiffs, “[t]he Klein and Marcus evidence . . . demonstrates the NSA’s bulk

3 seizure of the content of [P]laintiffs’ AT&T Internet communications from the Internet

4 backbone.” Id. at 10. Neither declaration provides any competent support for that claim.

5

A. The Klein Declaration Is Not Competent Evidence Because It Is Based

on Hearsay and Speculation, Rather Than Personal Knowledge. 6

Rule 56(c) requires that declarations submitted in support of a summary judgment motion

7

“be made on personal knowledge, set out facts that would be admissible in evidence, and show

8

that the . . . declarant is competent to testify on the matters stated.” Fed. R. Civ. P 56(c)(4).

9

Thus, inter alia, materials must be based on the declarant’s personal knowledge, see Fed. R.

10

Evid. 602, rather than hearsay, see Fed. R. Evid. 801, 802, or speculation, see Fed. R. Evid. 701.

11

See also Stonefire Grill, Inc. v. FGF Brands, Inc., 987 F. Supp. 2d 1023, 1037 (C.D. Cal. 2013)

12

(on a motion for summary judgment, “the Court may not consider inadmissible hearsay evidence

13

which could not be presented in an admissible form at trial.”); Raglin v. UPS, 1997 U.S. App.

14

LEXIS 13941, at *10 (“[I]nadmissible hearsay will not be considered a ‘fact’ for the purposes of

15

summary judgment.”) (citing Courtney v. Canyon Television & Appliance Rental, Inc., 899 F.2d

16

845, 851 (9th Cir. 1990)). The Klein Declaration fulfills none of these requirements.

17

Mark Klein, a technician employed by AT&T until 2004, executed his declaration in

18

2006. See Klein Decl. ¶¶ 2, 4. Plaintiffs rely on the Klein Declaration (and attached documents)

19

for a description of the “SG3 Secure Room” at AT&T’s Folsom Street facility, where Plaintiffs

20

claim the Government intercepted and copied AT&T customers’ Internet-based communications.

21

See Pls.’ Mot. at 6 nn.4–8. Mr. Klein purports to describe the installation and operation of the

22

equipment inside that room, and to establish the Government’s involvement in both. See Klein

23

Decl. ¶¶ 10–35. His declaration is the sole asserted factual basis for Plaintiffs’ claims in this

24

regard; as discussed in § II.B, infra, Mr. Marcus, Plaintiffs’ other declarant, does not purport to

25

have independent knowledge of the Folsom Street facility and instead draws the assumptions

26

underlying his discussion from Mr. Klein. But Mr. Klein admits he had no personal knowledge

27

of that room’s contents, or the operation of whatever equipment was installed there. According

28

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

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1 to Mr. Klein, he did not install or operate the equipment in the SG3 Secure Room. See id. In

2 fact, he “was not allowed in the SG3 Secure Room” at all. Id. ¶ 17. He received neither a key,

3 nor the combination that he states was required for entry. Id. Mr. Klein admits he was in that

4 room only once, for “a couple of minutes” while another technician “showed [him] some poorly

5 installed cable.” Id. Thus, although Plaintiffs rely on Mr. Klein to establish the content and

6 purpose of the SG3 Secure Room, he is not qualified to offer testimony on either.

7

Mr. Klein claims that the SG3 Secure Room is the room into which a “splitter cabinet”

8 diverted signals of certain fiber-optic circuits carrying AT&T customers’ internet

9 communication; he claims a copy went to the SG3 Secure Room, and the original signal

10 continued on its path. See id. ¶¶ 24–34. But Mr. Klein can only speculate about what data were

11 actually processed in the SG3 Secure Room, how, and for what purpose, since he was never

12 involved in its operation. Indeed, having spent only a couple of minutes there, Mr. Klein cannot

13 describe what equipment was in that room, much less explain what function it performed.

14 Although Mr. Klein submits the document entitled “Study Group 3, LGX/Splitter Wiring, San

15 Francisco” and claims it “list[s] the equipment installed in the SG3 Secure Room,” see id. ¶ 35,

16 this statement is entitled to no weight since Mr. Klein has no means of knowing that. See id.

17 ¶ 17. Thus, while Mr. Klein notes that the list included “a Narus STA 6400 . . . ‘Semantic

18 Traffic Analyzer,’” id. ¶ 35, which Mr. Marcus claims was designed to analyze large volumes of

19 data and was “well suited” to sort large volumes of data quickly to identify communications of

20 interest for surveillance purposes, Mr. Klein does not claim the Narus STA 6400 was ever

21 actually delivered to or installed in the SG3 Secure Room. See Klein Decl. ¶ 35. As with all of

22 Mr. Klein’s statements regarding the content or function of the SG3 Secure Room, any testimony

23 about the equipment installed there should be disregarded as speculation or hearsay.

24

So, too, with Mr. Klein’s allegations about Government involvement at the Folsom Street

25 facility: his declaration reflects that he had no personal experience of alleged NSA activity there.

26 Instead, his claims about Government involvement are all based on hearsay, see Fed. R. Evid.

27 801(c), 802. Although Mr. Klein asserts that “NSA cleared and approved” a particular person

28 (“FSS #2”) for a “special job,” and that this person installed equipment in the SG3 Secure Room,

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

15

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1 see id. ¶¶ 10, 14, he does not claim to have been present when that alleged clearance was issued,

2 or to have been involved in that work. Instead, an unnamed AT&T employee allegedly told him

3 “to expect a visit from [an] . . . NSA agent,” and he received an e-mail from management that

4 “explicitly mentioned the NSA.” Id. ¶ 10. Such out-of-court statements, offered for the truth of

5 the matters discussed therein, are inadmissible. So too with Mr. Klein’s claim that FSS #1 told

6 [Mr. Klein] “the NSA agent” was to interview another unnamed individual (“FSS #2”) “for a

7 special job,” and FSS #1’s claim that “another NSA agent would again visit” in fall 2003 to 8 speak with FSS #3 about “tak[ing] over” FSS #2’s “special job.” Id. ¶ 16.4

9

Mr. Klein’s claim regarding splitter cabinets in other AT&T locations is no different. He

10 asserts that, while working with “another AT&T technician, [he] learned . . . ‘splitter cabinets’

11 were being installed in other cities, including Seattle, San Jose, Los Angeles and San Diego.” Id.

12 ¶ 36. But Mr. Klein does not purport to have ever installed, serviced, or even seen those alleged

13 splitter cabinets, or to have any personal knowledge of their purpose. Such hearsay evidence is

14 entitled to no weight on a summary judgment motion.

15

In sum, the Klein Declaration rests on hearsay and speculation. Such testimony is

16 inadmissible, and is not probative even of AT&T’s activities in the SG3 Secure Room, much less

17 of any alleged nationwide Government intelligence-gathering programs.

18

B. The Marcus Declaration Is Not Competent Evidence Because It Offers

Improper Opinion Testimony Based on the Inadmissible Klein Declaration. 19

Likewise, the Court should give no weight to the Marcus Declaration, which Plaintiffs

20

offer as “an expert opinion on the implications of [the Klein Declaration its exhibits].” Marcus

21

Decl. ¶ 1. The same provision of Rule 56(c) discussed above, applies to the Marcus Declaration;

22

evidence relied upon on summary judgment must be admissible. See supra at 13. Opinion

23

testimony from a witness proffered as an expert is admissible only if “[the] witness . . . is

24

qualified as an expert by knowledge, skill, experience, training, or education;” “the testimony is

25

based on sufficient facts or data;” “the testimony is the product of reliable principles and

26

4 Mr. Klein asserts that NSA agents conducted the interviews discussed above, but fails to

27 explain the basis for those statements. See id. ¶¶ 10, 16. Barring Mr. Klein’s presence at the

alleged interviews, to which he does not attest, the statements could only be based on hearsay.

28 Likewise, his statement that “[t]o [his] knowledge, only employees cleared by the NSA were

permitted to enter the SG3 Secure Room,” has no apparent basis other than hearsay. See id. ¶ 17.

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

16

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1 methods;” and the proffered expert “has reliably applied the principles and methods to the facts

2 of the case.” Fed. R. Evid. 702. The Marcus Declaration satisfies none of these requirements.

3

The Marcus Declaration was executed in 2006 by J. Scott Marcus, a consultant who had

4 held various “positions involving computers, data communications, economics, and public

5 policy,” Marcus Decl. ¶¶ 7, 27. He also claimed he had “some experience with AT&T’s

6 network” in that, “[w]hen AT&T initially entered the Internet business in 1995,” AT&T

7 contracted with his firm to provide services to AT&T customers. Id. ¶ 13. Mr. Marcus did not

8 claim to have been an AT&T employee, or to have any personal knowledge of the alleged “SG3

9 Secure Room.” See id. Nonetheless, based on the Klein Declaration and its exhibits, Mr.

10 Marcus purports to summarize “the architecture of the SG3 Configuration and its data

11 connectivity,” id. ¶ 64, opines on “the activities likely to be occurring” in the SG3 Secure Room,

12 id. ¶ 78, and opines that the Government paid for it. Id. ¶ 46.

13

Mr. Marcus’s testimony regarding the SG3 Secure Room and other AT&T facilities fails

14 to satisfy Rule 702’s requirement that a putative expert’s testimony must be “based on sufficient

15 facts or data.” Fed. R. Evid. 702(b). Mr. Marcus has no personal knowledge of these facilities,

16 and relies on the Klein Declaration regarding AT&T’s operations. But, as discussed supra, at

17 14-15, that declaration is itself based on hearsay and speculation, and cannot supply the “facts”

18 that Rule 702 requires. For this reason, Mr. Marcus’s conclusions regarding the capabilities of

19 the equipment described by Mr. Klein, or the likely uses of the SG3 Secure Room, are all

20 speculation; there is no evidence in the record from a witness with personal knowledge of the

21 actual contents of the SG3 Secure Room or the uses to which the equipment was put.

22

For example, the Court cannot rely on Mr. Marcus’s discussion about the capabilities of

23 the Narus system as a “key component” of the SG3 Secure Room, including his conclusion that

24 it was “well suited” to high-speed winnowing down of large volumes of data to identify

25 communications for surveillance purposes, see Marcus Decl. ¶¶ 44, 74, 75, 79–81, 83–85, since

26 there is no competent evidence that such a system was actually installed or used there in the first

27 place, see supra at 15. Likewise, his testimony about the “plausibility” of Mr. Klein’s claims

28 regarding splitters to be installed in other AT&T facilities only adds speculation to the hearsay

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

17

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1 testimony of Mr. Klein, see supra 14-15. But on summary judgment, parties must establish the

2 facts necessary to their claims “with the manner and degree of evidence required at the

3 successive stages of the litigation.” Bras, 59 F.3d at 872. The proffered evidence that Mr.

4 Klein’s inadmissible allegations are “plausible,” and so could be true, falls far short of the mark.

5

Mr. Marcus’s claim that the Government funded the SG3 Secure Room is also

6 inadmissible, not only because it is based on Mr. Klein’s inadmissible descriptions of that

7 facility, but also because Mr. Marcus is not qualified to render such an opinion, and there is no

8 evidence that he applied reliable methods to reach his conclusions. See Rule 702(c), (d). Mr.

9 Marcus acknowledges that he “do[es] not consider [himself] an economist,” Marcus Decl. ¶ 29,

10 and he has had no economics or corporate-finance training, see id., Exh. A. Mr. Marcus offers

11 no explanation of the methods he used or the facts he relied on to assess AT&T’s financial

12 condition during the relevant timeframe, see id. ¶¶ 128–147, much less of their reliability, or the

13 reliability of their application in this case. See id. Under Rule 702, Mr. Marcus’s assessments of

14 how AT&T would have behaved based on its financial condition, and what projects it would

15 have funded in 2003, are not admissible evidence and therefore are not competent to support 16 Plaintiffs’ standing or Fourth Amendment claim on summary judgment.5

17

C. Even if the Klein and Marcus Declarations Were Not Based on Speculation

and Hearsay, They Could Not Support Plaintiffs’ Current Standing or the

18

Merits of Their Fourth Amendment Claim.

19

Plaintiffs emphasize that their Fourth Amendment claim addresses ongoing,

20 nationwide intelligence-gathering activities. See Pls.’ Mot. at 1. But, even if their content were

21 admissible, the Klein and Marcus Declarations would be probative only of events that occurred

22 between 2002 and 2003, at least five years before Section 702 was even enacted. See Klein

23 Decl. ¶¶ 10–18. Both declarations were executed in 2006, and are based on Mr. Klein’s account

24 of events that allegedly occurred ten to twelve years ago. See id. Because over a decade has

25

5 Additionally, even if it were based on admissible evidence and the proffered expert

testimony were proper under Rule 702, the Marcus Declaration is contrary to the rule that, “[i]n

26 considering a motion for summary judgment, the court . . . is required to draw all inferences in a

light most favorable to the non-moving party.” Jewel v. NSA, 965 F. Supp. 2d 1090, 1099 (N.D.

27 Cal. 2013) (citation omitted). Mr. Marcus repeatedly urges this Court to do just the opposite—to

accept inferences uniformly favorable to the Plaintiffs’ case. See, e.g., Marcus Decl. ¶¶ 40, 42

28 (acknowledging, but asking the Court to ignore, that the SG3 Configurations could be used for

commercial applications or routine intercepts).

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

18

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1 elapsed since these alleged events, this information is too stale to be admissible. Ortega v.

2 O’Connor, 146 F.3d 1149, 1162 (9th Cir. 1998) (rejecting ten-year-old complaint of improper

3 conduct as basis for search for evidence of harassment); see also Szajer v. City of Los Angeles,

4 632 F.3d 607, 612 (9th Cir. 2010) (finding evidence five to fifteen years old “patently stale”).

5

Similarly, while Plaintiffs ask the Court to conclude, on the strength of these declarations,

6 that the Government’s activities at “stage one” “giv[e] it access to the entire stream of domestic

7 and international communications . . . carried on the fiber-optic cables of [the nation’s leading

8 telecommunications carriers, including AT&T],” Pls.’ Mot. at 6, the information in the

9 declarations does not extend nearly so far. Even if accepted as probative of events at the Folsom

10 Street facility, these declarations can establish only the events at that location. For example, that

11 Mr. Klein may have heard, from an unnamed source, of plans to install splitter cabinets in four

12 additional AT&T locations for some unknown purpose, see Klein Decl. ¶ 36, cannot establish

13 that the Internet communications of all AT&T customers, much less all Americans, are copied as

14 part of the alleged Stage 1 process; nothing in the Klein and Marcus Declarations supports such

15 an inferential leap.

16

Both as to the timeframe and the scope of the alleged intelligence-gathering activities, the

17 Klein and Marcus Declarations fall far short of the factual showing required of Plaintiffs at the

18 summary judgment stage of a legal proceeding.

19

D. The Unsubstantiated Media Reports on Which Plaintiffs Rely Constitute

20

Inadmissible Hearsay, and Are Entitled to no Weight.

21

While Plaintiffs largely rely on the Klein and Marcus Declarations, they also cite a

22 number of unsubstantiated media reports in support of their Fourth Amendment claim. See, e.g.,

23 Pls.’ Mot. 3–4 (discussing Washington Post articles); id. at 10 n.15 (citing articles from the Wall

24 Street Journal and the New York Times). Such media reports are hearsay and inadmissible on a

25 motion for summary judgment. See, e.g., DMC Closure Aversion Comm. v. Goia, 2014 U.S.

26 Dist. LEXIS 121644, at *28, n.12 (N.D. Cal. Aug. 29, 2014); Stewart v. Wachowski, 574 F.

27 Supp. 2d 1074, 1090 (C.D. Cal. 2005). Accordingly, the Court here should give no weight to the

28 media reports that Plaintiffs cite.

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

19

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1

In sum, while Plaintiffs claim the Government currently conducts “indiscriminate,

2 suspicionless seizures” of their Internet communications, Pls.’ Mot. at 25, they have come

3 forward with no admissible evidence to support that claim. Where the party ultimately bearing

4 the burden of proof has failed to establish the existence of an element essential to their case,

5 Rule 56 mandates the entry of summary judgment against that party. Celotex, 477 U.S. at 322.

6 The Court should enter summary judgment against the Plaintiffs here.

7 III. 8 9 10

PLAINTIFFS HAVE NOT ESTABLISHED THEIR STANDING AND CANNOT DO SO WITHOUT RISK OF GRAVE DAMAGE TO NATIONAL SECURITY.
A. Plaintiffs Have Not Carried Their Evidentiary Burden of Establishing Their Standing.
As the Government has briefed numerous times in the course of this litigation, to obtain

11 relief of any kind in this case, Plaintiffs must present “specific facts” showing that they are

12 “among the [persons] injured” by the Government’s alleged unlawful conduct. Amnesty

13 International, 133 S. Ct. at 1149; Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992)

14 (citations and internal quotation mark omitted). That is, Plaintiffs must establish “with the

15 manner and degree of evidence” required at the summary-judgment stage that communications

16 of theirs are currently being seized and searched as part of NSA’s Upstream collection.

17 Defenders of Wildlife, 504 U.S. at 561. They have not done so.

18

Plaintiffs continue to assert that their communications are among those “seized” and

19 “searched” in the course of Upstream collection based on the claim that “AT&T allows the

20 [G]overnment to seize the entire communications stream of its customers,” including Plaintiffs.

21 Pls.’ Mot. at 9-10. Plaintiffs rely entirely on the eight-year-old Klein and Marcus declarations to

22 establish this essential fact. Id. at 6 nn. 5-8. But as discussed above, Mr. Klein lacks any

23 personal knowledge of what equipment actually resided or what activities actually occurred in

24 the “SG3 Secure Room” where he claims that copies of all or substantially all of the

25 communications transiting the peering links at AT&T’s Folsom Street facility were diverted to

26 the NSA. Mr. Marcus attests to the capabilities of equipment that documents provided by Mr.

27 Klein indicate were to be installed in the SG3 Room, but in the final analysis he, too, can only

28 guess at what equipment actually was in use there, its purpose, and “what entities” had access to

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

20

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1 communications allegedly processed there. Moreover, both individual’s testimony is so

2 outdated—concerning events that supposedly took place in 2002 and 2003—that it lacks any

3 probative value as to ongoing activities. Because Plaintiffs have failed to adduce any admissible

4 evidence to support this “essential element of their case,” summary judgment must be awarded

5 against Plaintiffs, not for them. Defenders of Wildlife, 504 U.S. at 562; Celotex, 477 U.S. at 322.

6

At best, Plaintiffs are asking the Court to speculate that Plaintiffs’ communications are

7 among those collected today based on events that allegedly occurred over a decade ago. As the

8 Supreme Court made clear in Amnesty International, such speculation is an impermissible basis

9 on which to predicate Article III standing. 133 S. Ct. at 1149.

10

B. Even if Plaintiffs Had Presented Admissible Evidence to Support

Their Standing, the State Secrets Doctrine Would Still Require Entry

11

of Judgment for the Government on the Standing Issue.

12

Due to the failings of Plaintiffs’ evidence described above, the Court need not consider

13 the impact of the state secrets privilege on the standing issue. However, if the Court were to find

14 Plaintiffs’ declarations admissible and sufficiently probative of Plaintiffs’ standing to raise a

15 genuine issue meriting further inquiry (which it should not), adjudication f the standing issue

16 could not proceed without risking exceptionally grave damage to national security (a threshold

17 issue on which the Court requested briefing). That is so because operational details of Upstream

18 collection that are subject to the DNI’s assertion of the state secrets privilege in this case are

19 necessary to address Plaintiffs’ theory of standing. The Government presented this evidence to

20 the Court in the DNI’s and NSA’s classified declarations of December 20, 2013, and

21 supplements it with the Classified Declaration of Miriam P., NSA, submitted in camera, ex

22 parte, herewith. Disclosure of this evidence would risk informing our Nation’s adversaries of

23 the operational details of the NSA’s Upstream collection, including the identities of electronic-

24 communications-service providers assisting with Upstream collection. The risk of grave damage

25 to national security from disclosure of this evidence remains, notwithstanding the unauthorized

26 public disclosures and official Government releases of previously classified information about

27 certain NSA intelligence-gathering activities since June 2013. See Govt. Defs.’ Reply on

28 Threshold Legal Issues (ECF No. 185) at 18-20 (“Govt.’s Reply on Threshold Issues”).

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

21

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1

Plaintiffs claim in their motion that “[n]o genuine issue of material fact exists that

2 plaintiffs’ provider AT&T is one of the Internet backbone providers at issue.” Pls.’ Mot. at 10.

3 Even if that were so, it would not be sufficient to show that Plaintiffs’ communications,

4 specifically, are subject to any alleged seizure or search involved in Upstream collection. More

5 to the point, however, the Government has already explained, in the course of the briefing on the

6 Court’s four threshold questions, that the same sources Plaintiffs point to in their instant motion

7 as proof of AT&T’s participation in Upstream collection—e.g., the Klein and Marcus

8 declarations, the decision by then-Chief Judge Walker in Hepting v. AT&T, 439 F. Supp. 2d 974

9 (N.D. Cal. 2006), and the NSA Draft Inspector General report—do not in fact prove that AT&T

10 participates in the program or that the Government has so confirmed. Govt.’s Reply on

11 Threshold Issues at 20-24. Indeed, as held by another member of this Court in a recent case, the

12 identities of electronic-communications-service providers assisting with NSA intelligence-

13 gathering activities remain classified. Electronic Frontier Found. v. Dep’t of Justice, 2014 WL

14 3945646, at *5-7 (N.D. Cal. Aug. 11, 2014) (holding that identities of telecommunications-

15 service-providers participating in the NSA’s Section 215 telephony metadata program remain

16 classified, rejecting arguments that providers’ names have been officially acknowledged).

17

As the Court recognized in its July 23, 2013, decision, where evidence must be protected

18 from disclosure in the interests of national security, and that information is needed to adjudicate

19 a claim or any defenses thereto, the plaintiff’s claims must be dismissed and judgment entered

20 for the defendant. See Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998); Jewel, 965 F.

21 Supp. 2d at 1100, 1102-03. The harm to national security here cannot be abated by holding an in

22 camera, ex parte proceeding under 50 U.S.C. § 1806(f). As the Government explained in

23 response to the Court’s third question, because Plaintiffs base their standing on the claim that the

24 entire stream of AT&T’s communications, at least in the San Francisco area, is seized and

25 searched, any adjudication of Plaintiffs’ standing as a result of a § 1806(f) proceeding would

26 necessarily reveal whether or not AT&T participates in Upstream collection, and even more

27 specifically, whether or not AT&T’s Folsom Street facility in San Francisco is involved in

28 Upstream collection. Govt.’s Reply on Threshold Issues at 16. The Supreme Court in Amnesty

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

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1 Int’l, 133 S. Ct. at 1149 n.4, warned against resort to an in camera proceeding in precisely these

2 circumstances—where “the court’s post-disclosure decision about whether to dismiss the suit for

3 lack of standing” would reveal sensitive national security information that the proceeding was

4 designed to protect. See Govt’s Reply on Threshold Issues at 14-16.

5

For these fundamental reasons, Plaintiffs have not established their standing to raise a

6 Fourth Amendment claim based on Upstream collection. Alternatively, even if they had

7 presented sufficient evidence of their standing to raise a genuine issue regarding their standing,

8 the question cannot be litigated without potentially harmful disclosures of privileged national-

9 security information. Plaintiffs’ motion for summary judgment must therefore be denied, their

10 claims dismissed, and judgment awarded to the Government.

11 IV. 12 13 14

PLAINTIFFS SHOULD BE DENIED SUMMARY JUDGMENT, AND JUDGMENT SHOULD INSTEAD BE AWARDED TO THE GOVERNMENT, ON THE MERITS OF PLAINTIFFS’ FOURTH AMENDMENT CLAIM.
A. Plaintiffs’ Claim of a Seizure at “Stage 1” Fails as a Matter of Fact and Law.
The first of the two Fourth Amendment violations asserted by Plaintiffs is that the

15 Government unconstitutionally, through Upstream collection authorized under Section 702 (and

16 FISC orders) seizes their Internet-based communications (and those of millions of other

17 Americans) by obtaining copies automatically created and then delivered to the Government by

18 their Internet service provider, AT&T. Pls.’ Mot. at 2, 16-19. The alleged seizure occurs at what

19 Plaintiffs designate “stage one” of “the [G]overnment’s surveillance process,” where they

20 maintain the Government “taps into the Internet backbone networks of the nation’s leading

21 telecommunications carriers, including AT&T,” to obtain “access to the entire stream” of

22 Internet-based domestic and international communications. According to Plaintiffs, this alleged

23 interception and copying of the “communications stream” is “a general seizure that is not, and

24 never could be, authorized by a valid warrant.” Id. at 6, 16.

25

Plaintiffs’ application for summary judgment on this claim must be denied, and judgment

26 awarded instead to the Government, for two reasons: (1) Plaintiffs have adduced no admissible

27 evidence to support the contention that the NSA’s “Upstream” collection of communications

28 involves the interception and copying of the entire communications stream carried by AT&T (or

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

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1 any other provider); and (2) even if Plaintiffs’ evidence—the “facts” asserted in the Klein and

2 Marcus declarations—were taken at face value, the conduct ascribed to the Government does

3 not, as a matter of law, constitute a Fourth Amendment seizure.

4

1. Plaintiffs have presented no admissible evidence that

Upstream collection under Section 702 in fact involves

5

the “Stage 1” seizure they allege.

6

As discussed above, the Government has acknowledged that pursuant to Section 702 it

7 engages in targeted “Upstream” acquisition of communications as they “transit the Internet

8 ‘backbone’” networks of telecommunications-service providers within the United States.” IC

9 Coll. Pgms. at 3; see supra at 6-7. The Government has not disclosed, however, the technical

10 details of the means by which providers make these targeted communications available to the

11 Government. Those operational details remain classified.

12

As support, therefore, for their allegations that the Government intercepts and copies the

13 entire communications stream from AT&T’s Internet backbone network—the very essence of

14 their seizure claim—Plaintiffs rely exclusively on the attestations of the Klein and Marcus

15 declarations. See Pls.’ Mot. at 6 & nn. 4-8. As discussed supra, § II, nothing that Messrs. Klein

16 and Marcus say about the Government’s alleged interception and copying of Internet-based

17 communications at AT&T’s Folsom Street facility constitutes admissible evidence. Moreover,

18 the information on which both declarants rely about the SG3 Secure Room in 2003 is now more

19 than a decade old, and relates to alleged events occurring years before Section 702 was enacted.

20 It is therefore not probative of any intelligence activity in which the Government currently

21 engages, see supra at 18-19—the exclusive concern, as Plaintiffs themselves state, of their

22 request for summary judgment. Pls.’ Mot. at 1. Thus, Plaintiffs have failed to adduce any

23 competent evidence that Upstream collection, or any other Government intelligence program,

24 involves the interception and copying of the entire communications stream from AT&T’s (or any

25 other provider’s) Internet backbone network, and so doing have presented no evidence to support

26 an essential element of their seizure claim as they have defined it. For this simple reason if no

27 other the Government, not Plaintiffs, is entitled to judgment on Plaintiffs’ seizure claim.

28 Celotex, 477 U.S. at 322.

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1

2. Even if proven, the alleged “Stage 1” splitting of the Internet

communications stream would not constitute a Fourth

2

Amendment seizure as a matter of law.

3

Even if the Klein and Marcus declarations could be accepted as evidence of ongoing

4 Government conduct, the Government would still be entitled to judgment on Plaintiffs’ seizure

5 claim as a matter of law. Plaintiffs allege surveillance involving the real-time interception and

6 copying of electronic communications, without delay or interruption in their flow, followed by

7 filtering for foreignness and scanning for targeted selectors, whereupon, as discussed below, the

8 communications at issue here are destroyed within milliseconds of their creation without

9 retention by the Government. This process does not involve a seizure for which a warrant or

10 probable cause is required, because it does not constitute a Fourth Amendment “seizure” at all.

11

An evaluation of Plaintiffs’ seizure claim must begin with an understanding of what

12 constitutes a seizure for purposes of the Fourth Amendment, a subject bypassed in Plaintiffs’

13 motion. The Fourth Amendment assures the “right of the people to be secure in their persons,

14 houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend IV,

15 cl. 1. As the Supreme Court and the Ninth Circuit have explained, “[d]ifferent interests are

16 implicated by a seizure than by a search. A seizure affects only [a] person’s possessory interests;

17 a search affects a person’s privacy interests.” Segura v. United States, 468 U.S. 796, 806 (1984)

18 (citations omitted); United States v. Jacobsen, 466 U.S. 109, 113 (1984); Texas v. Brown, 460

19 U.S. 730, 747-48 (1983) (Stevens, J., concurring); United States v. Jefferson, 566 F.3d 928, 933

20 (9th Cir. 2009). Accordingly, a Fourth Amendment seizure of property occurs “when there is

21 some meaningful interference with an individual’s possessory interests in that property.”

22 Jacobsen, 466 U.S. at 113; Jefferson, 566 F.3d at 933. “‘Absent such interference, no fourth

23 amendment seizure will be found.’” DeBoer v. Pennington, 206 F.3d 857, 865 (9th Cir. 2000)

24 (quoting United States v. England, 971 F.2d 419, 420 (9th Cir. 1992)). See also, e.g., United

25 States v. Clutter, 674 F.3d 980, 984-85 (8th Cir. 2012); United States v. Va Lerie, 424 F.3d 694,

26 708 (8th Cir. 2005) (no seizure where temporary removal of bus passenger’s checked luggage

27 during a re-fueling stop did not meaningfully interfere with his possessory interests); United

28 States v. Elmore, 304 F.3d 557, 560-61 (6th Cir. 2002); United States v. Brown, 884 F.2d 1309,

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 1311 (9th Cir. 1989) (“[n]o seizure occurred” when detectives arranged to have airline

2 passenger’s checked suitcases held while they obtained his permission to search them).

3

Plaintiffs do not explain what possessory interest they have in the “communications

4 stream”—modulated electromagnetic impulses moving at the speed of light across fiber-optic

5 networks—but it is clear no meaningful interference with any such interest occurs at Stage 1 of

6 the surveillance process they allege, which involves no interruption or delay of communications

7 they send or receive, or retention by the Government of the copied communications that

8 Plaintiffs identify as the subject of their motion.

9

Plaintiffs maintain that due to similarities between electronic communications such as

10 e-mail and traditional forms of communication such as letters and telephone calls, electronic

11 communications are entitled to similar Fourth Amendment protection. Pls.’ Mot. at 11-14. But

12 Plaintiffs do not benefit from that analogy. The Ninth Circuit, together with other courts of

13 appeals, has repeatedly held that the possessory interest protected by the Fourth Amendment in

14 mailed (or privately shipped) letters and packages is “solely in [their] timely delivery.” United

15 States v. Jefferson, 566 F.3d 928, 933-34 (9th Cir. 2009); United States v. Hoang, 486 F.3d 1156,

16 1160 (9th Cir. 2007). Accordingly, the Court of Appeals has held that no Fourth Amendment

17 seizure occurs unless the government’s temporary detention of a mailed letter or package, once

18 in transit, “significantly interfere[s] with [its] timely delivery in the normal course of business.”

19 Hoang, 486 F.3d at 1162 & nn. 2-3 (ten-minute detention of FedEx package for purpose of

20 canine narcotics sniff that did not interfere with package’s scheduled delivery did not implicate

21 the recipient’s Fourth Amendment rights) (citing, inter alia, United States v. Zacher, 465 F.3d

22 336, 338-39 (8th Cir. 2006) and United States v. LaFrance, 879 F.2d 1, 7 (1st Cir. 1989)); see

23 also Jefferson, 566 F.3d at 934-35 (citing United States v. Gill, 280 F.3d 923, 932-33 (9th Cir.

24 2002) (Gould, J., concurring)) ; United States v. England, 971 F.2d 419, 420-21 (9th Cir. 1992)

25 (citing United States v. Place, 462 U.S. 696, 718 n.5 (1983) (Brennan, J., concurring) (“mere

26 detention of mail not in [the defendant’s] custody or control amounts to at most a minimal or

27 technical interference with his person or effects, resulting in no deprivation at all”)).

28

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1

The “Stage 1” duplication of electronic communications alleged by Plaintiffs results in no

2 demonstrated delay in the delivery of anyone’s communications; indeed, Plaintiffs themselves

3 explain that the purpose of the electronic copying that they condemn as a “seizure” is to avoid

4 “interrupting or slowing Internet communications” by “allow[ing] one copy of the [duplicated]

5 communications stream to travel as it normally would to its intended destination on the Internet.”

6 Pls.’ Mot. at 6; see also Marcus Decl. ¶¶ 62, 72-73. Thus, by Plaintiffs’ own telling, Stage 1

7 causes no delay in the communications that Plaintiffs send or receive, as would be required to

8 demonstrate a seizure under the traditional Fourth Amendment principles Plaintiffs invoke.

9

Moreover, because the communications at issue are not retained by the Government,

10 Plaintiffs’ claim is also undermined by precedent holding that no seizure takes place when law-

11 enforcement officers momentarily pick up an item or move it a short distance for the purpose of

12 a brief visual or other non-intrusive form of inspection. For example, in United States v. Hall,

13 978 F.2d 616 (10th Cir. 1992), a narcotics agent proceeded to the luggage area of the train on

14 which a suspected drug courier was traveling and lifted her suitcase from the bin in which it had

15 been stowed. Finding the bag suspiciously heavy, the agent detained it for an intended canine

16 sniff test and, ultimately, a search revealing 40 pounds of marijuana inside. Id. at 618-19. The

17 court held that the agent’s initial “lifting of [the] suitcase did not constitute a seizure because this

18 interference with [the courier’s] possessory interests in her suitcase was minimal.” Id. at 619. In

19 reaching this conclusion, the court relied on Arizona v. Hicks, 480 U.S. 321 (1987), see Hall, 978

20 F.2d at 619-20, where the Supreme Court held that turning over a piece of stereo equipment to

21 read and record its serial number did not “[i]n and of itself” amount to a seizure because “it did

22 not meaningfully interfere with [the defendant’s] possessory interest in either the serial number

23 or the equipment.” Hicks, 480 U.S. at 324 (citation and quotation marks omitted). See also

24 United States v. Schofield, 80 Fed. Appx. 798, 802-03 (3d Cir. 2003) (officer “almost certainly

25 did not seize” box by lifting it during search of car trunk); United States v. DeMoss, 279 F.3d

26 632, 634-36 (8th Cir. 2002) (officer did not seize passing package when he lifted it from

27 conveyor belt); United States v. Gant, 112 F.3d 241-42 (6th Cir. 1997); United States v. Harvey,

28 961 F.2d 1361, 1363-64 (8th Cir. 1992).

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1

The Stage 1 copying of communications that Plaintiffs allege, for the subsequent purpose

2 of real-time filtering for foreignness and scanning to detect communications containing lawfully

3 targeted selectors, is analogous to “pick[ing] up an individual’s property to look at it,” and

4 likewise results in no seizure because “th[e] interference with the [communicant’s] possessory

5 interest” in the communication “is not meaningful.” Hall, 978 F.2d at 619. Plaintiffs and their

6 expert, Mr. Marcus, posit a surveillance process by which millions of Americans’ Internet-based

7 communications are copied, filtered for foreignness, and scanned for targeted selectors in “real

8 time,” at “true carrier speeds,” as those communications propel across providers’ fiber-optic

9 networks at incomprehensible speed. Pls.’ Mot. at 6-8; Marcus Decl. ¶¶ 80, 83. Ultimately

10 some of those communications (those found at Stage 3 to contain targeted selectors) are stored in

11 Government databases (at Stage 4), but that is not the “seizure” complained of; Plaintiffs

12 expressly state that “[t]he communications the [G]overnment retains at stage four are not at issue

13 here.” Pls.’ Mot. at 8-9. Rather, Plaintiffs contest the legality of the alleged seizure of those

14 communications that are not retained in Government databases (because they are not found to

15 contain targeted selectors). But because, under the scenario described by Plaintiffs, these

16 communications are copied, filtered for foreignness, and scanned for targeted selectors in real

17 time as the communications stream at the speed of light, the copies could exist for no more than

18 milliseconds before being discarded or destroyed. There is no meaningful interference with any

19 possessory interest articulated by Plaintiffs that results from the Government’s alleged

20 possession of these copied communications for literally thousandths of a second.

21

The almost instantaneous destruction of the copied communications once they are made

22 distinguishes the scenario alleged by Plaintiffs from situations where government authorities

23 obtain copies of individuals’ electronic information—such as e-mails stored on a provider’s

24 server, or data contained on a laptop computer—and retain it in government databases for

25 investigatory purposes. In such cases, some courts have held that the government’s acquisition

26 and indefinite retention of the copied data constitutes a seizure, because “an individual’s

27 possessory interest in [such data] extends to both the original and any copies made from it.” See,

28 e.g., In re Search of Info. Associated with [Redacted] at mac.com [etc.], 2014 WL 1377793, at

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 *2, 3 (D.D.C. Apr. 7, 2014), vacated on other grounds, 2014 WL 4094565 (D.D.C. Aug. 8,

2 2014); United States v. Saboonchi, 990 F. Supp. 2d 536, 565 (D. Md. 2014). In other such

3 cases, courts have held that no seizure occurs because although the government has obtained a

4 copy, the original dataset remains accessible to the owner and as a result no meaningful interest

5 with his or her possessory interest results. See, e.g., In re Application of the United States of

6 America for a Search Warrant for Contents of Electronic Mail [etc.], 665 F. Supp. 2d 1210,

7 1222 (D. Or. 2009); United States v. Gorshkov, 2001 WL 1024026, at *3 (W.D. Wash. May 23,

8 2001) (citing Hicks, 480 U.S. at 324). But regardless of which view the law ultimately

9 embraces, the situation alleged by Plaintiffs here is materially different from these cases, because

10 they have specified that their claim concerns copies of communications data that the Government

11 does not retain, and which, once created, are almost immediately destroyed. Plaintiffs identify

12 no meaningful interference with their possessory interest in these copied communications that

13 could possibly occur during the vanishingly brief moment of their existence. The copying of

14 communications data that allegedly occurs at Stage 1 is therefore not a seizure.

15

3. No authority cited by Plaintiffs supports their seizure claim.

16

For their part, Plaintiffs cite no authority to support the proposition that Upstream

17 collection involves a seizure of their online communications. First they attempt to equate the

18 alleged electronic copying of a communications data stream with general warrants and writs of

19 assistance, the historic instruments of British oppression that the Fourth Amendment was most

20 urgently intended to prohibit. See Virginia v. Moore, 553 U.S. 164, 168-69 (2008); Pls.’ Mot. at

21 17-18. As the Supreme Court has summarized their history, general warrants were employed by

22 the British Crown to authorize the arrest of all persons suspected of authoring, printing, or

23 distributing seditious publications, together with the seizure of all their personal papers; writs of

24 assistance were issued in pre-revolutionary times to give British officers blanket authority to

25 barge into colonists’ homes in unrestrained search for illegally imported goods. See Stanford v.

26 Texas, 379 U.S. 476, 481-82 (1965); Marcus v. Search Warrants of Property, 367 U.S. 717, 726-

27 29 (1961); see also Riley v. California, 134 S. Ct. 2473, 2494 (2014). No amount of argument

28 on Plaintiffs’ part can succeed in equating the installation of fiber-optic splitters on

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 telecommunications cables far removed from Plaintiffs’ homes, to create copies of electronic

2 data that are then almost instantaneously destroyed, as the legal equivalent of these historic 3 offenses against personal liberty.6

4

There are likewise no valid parallels to be drawn between the transitory creation and

5 destruction of copied communications at Stage 1 with the entry upon the defendants’ places of

6 business and the physical seizures (and retention) of all their business records in United States v.

7 Tamura, 694 F.2d 591, 594-95, 596-97 (9th Cir. 1982) and United States v. Kow, 58 F.3d 423,

8 425 (9th Cir. 1995). See Pls.’ Mot. at 17. Alleged Stage 1 copying of the communications

9 stream does not involve the wholesale physical confiscation from Plaintiffs’ possession of their

10 personal papers or business records, but at best a fleeting grasp and release of electronic data

11 transiting distant fiber-optic cables, without impeding the journeys of Plaintiffs’ communications

12 to their intended destinations on the global communications network. As the process described

13 by Plaintiffs results in no meaningful interference with any possessory interest Plaintiffs have in

14 their electronic communications, it is not a Fourth Amendment seizure and requires neither a 15 warrant, nor individualized suspicion.7

16

17

18

6 The fact that the data actually retained by the Government are “not at issue here,” Pls.’

19

Mot. at 9, also eliminates any valid basis for comparing Stage 1 of the alleged surveillance process here to the NSA’s Cold War-era “Operation Shamrock,” or for Plaintiffs’ continued

20

reliance on this Court’s prior decision in Hepting v. AT&T, 439 F. Supp. 2d 974 (N.D. Cal. 2006), id. at 16-17, 18. See Intelligence Activities: Hrgs. Before the Sen. Select Comm. To

21

Study Governmental Operations With Respect to Intelligence Activities, 94th Cong., Vol. V, 5759 (1975) (statement that during Operation Shamrock NSA acquired and NSA analysts sorted

22

through most international telegrams originating in or forwarding through the United States), available at http://www.intelligence.senate.gov/pdfs94th/94intelligence_activities_V.pdf;

23

Hepting, No. 3:06-cv-00672-VRW, First Amended Compl. ¶¶ 42-46 (ECF No. 8) (alleging that all or substantially all of the communications transmitted through AT&T’s key domestic

24 telecommunications facilities were actually acquired by the Government).

7 Plaintiffs confuse the issue when they assert, in support of their seizure claim, that they

25 have a reasonable expectation of privacy in the copied communications. Pls.’ Mot. at 17. By

definition, the violation of an individual’s reasonable expectation of privacy constitutes a search,

26 not a seizure, see Segura, 468 U.S. at 806; Jacobsen, 466 U.S. at 113, but Plaintiffs do not

contend that electronic copying of their communications in and of itself constitutes a search.

27 Rather, Plaintiffs contend that the alleged duplication of the communications stream is a seizure,

which requires a meaningful interference with a possessory interest. Plaintiffs’ reliance on

28 Florida v. Jardines, 133 S. Ct. 1409 (2013), and United States v. Jones, 132 S. Ct. 945 (2012),

see Pls.’ Mot. at 17, suffers from the same confusion, as both are “search,” not “seizure” cases.

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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B. Plaintiffs’ Claim That Alleged “Stage 3” Scanning Constitutes a Search

1

of Communications Not Found To Contain Targeted Selectors Is Also

Without Merit. 2

Plaintiffs’ second contention is that scanning copied communications at “Stage 3” (after

3

they are filtered for foreignness) for those that contain targeted selectors constitutes a Fourth

4

Amendment search. Pls.’ Mot. at 19-21. In contrast to a seizure, which involves governmental

5

interference with a possessory interest, a Fourth Amendment search occurs when the government

6

obtains information by physically intruding on a constitutionally protected area, or by violating a

7

person’s reasonable expectation of privacy. Jardines, 133 S. Ct. at 1414; Jones, 132 S. Ct. at

8

949-50. Plaintiffs devote a great deal of effort to establishing that they have a reasonable

9

expectation of privacy in their Internet-based communications. Pls.’ Mot. at 11-14. One need

10

not quarrel with the proposition to conclude, nonetheless, that no search of Plaintiffs’ online

11

communications has been demonstrated. Where the official conduct complained of “does not

12

‘compromise any legitimate interest in privacy’ [it] is not a search subject to the Fourth

13

Amendment.” Illinois v. Caballes, 543 U.S. 405, 408 (2005) (quoting Jacobsen, 466 U.S. at

14

123). That is the case here so far as the communications at issue are concerned.

15

As discussed supra, at 28, Plaintiffs and their expert describe Upstream collection as a

16

process by which millions of communications are copied, filtered for foreignness and scanned

17

for targeted selectors in real time, through the use of sophisticated electronic equipment capable

18

of processing large volumes of communications data to identify “traffic of interest.” Pls.’ Mot.

19

at 6-8; Marcus Decl. ¶¶ 79-85. Only afterward, at “Stage 4,” are the results of this filtering and

20

scanning allegedly “deposited into [G]overnment databases for retention” and “actual human

21

scrutiny.” Pls.’ Mot. at 8; Marcus Decl. ¶ 39. But the copied communications retained at

22

Stage 4 are “not at issue,” id. at 9; the only copied communications at issue are those discarded,

23

within milliseconds of their creation, because they are not found as a result of the electronic

24

scanning to contain targeted selectors. Plaintiffs do not allege, much less do they submit

25

admissible evidence to prove, that any information about these discarded communications,

26

including communications of theirs, is provided to Government officials before they are

27

destroyed. They do not explain, for that matter, how Government personnel could know even of

28

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 the existence of any communications in which Plaintiffs or any other U.S. persons engage if they

2 are not among the targeted communications retained at Stage 4.

3

In this respect—that is, the utter lack of information made available to Government

4 personnel—the alleged scanning of unretained communications resembles the narcotics-dog sniff

5 of luggage, and the chemical field test for cocaine, that the Supreme Court held did not constitute

6 Fourth Amendment searches in United States v. Place, 462 U.S. 696, 706-07 (1983) and

7 Jacobsen, 466 U.S. at 123-24, respectively. In Place, DEA agents, suspecting an airline

8 passenger of transporting illegal narcotics, took his luggage from his possession and transported

9 his bags to another location for a “sniff test” by a trained narcotics-detection dog. The dog

10 alerted to one of the bags, after which the agents, upon obtaining a search warrant, opened the

11 bag and discovered more than a kilogram of cocaine inside. 462 U.S. at 698-99. Although

12 ultimately concluding that Place’s luggage had been unconstitutionally seized, the Supreme

13 Court first concluded that subjecting the luggage to the canine sniff test did not constitute a

14 search within the meaning of the Fourth Amendment. The Court explained:

15

A “canine sniff” by a well-trained narcotics detection dog . . . does not require

opening the luggage. It does not expose noncontraband items that otherwise

16

would remain hidden from public view, as does, for example, an officer's

rummaging through the contents of the luggage. Thus, the manner in which

17

information is obtained through this investigative technique is much less intrusive

than a typical search. Moreover, the sniff discloses only the presence or absence

18

of narcotics, a contraband item. Thus, despite the fact that the sniff tells the

authorities something about the contents of the luggage, the information obtained

19

is limited. This limited disclosure also ensures that the owner of the property is

not subjected to the embarrassment and inconvenience entailed in less

20

discriminate and more intrusive investigative methods.

21 Id. at 707 (emphasis added).

22

The Court extended the logic of Place to a chemical test for narcotics in Jacobsen. In

23 that case, employees of a private freight carrier, upon discovering a white powdery substance

24 inside a damaged package, summoned federal narcotics agents. Upon arriving, the agents made

25 an “on the spot” chemical field test that identified the substance as cocaine, leading to the arrest

26 and conviction of the package’s intended recipients. Jacobsen, 466 U.S. at 111-12 & n.1. The

27 Court held that the chemical test did not constitute a Fourth Amendment search, because it

28 “could disclose only one fact . . . whether or not a suspicious white powder was cocaine”—

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 “nothing more”—and therefore “d[id] not compromise any legitimate interest in privacy.” Id. at

2 122-23. “[E]ven if the results are negative,” the Court emphasized, “such a result reveals

3 nothing of special interest.” Id. at 123. The Court observed further that its conclusion was

4 “dictated” by the decision in Place, because the chemical test, like a narcotics-dog sniff, “could

5 reveal nothing about noncontraband items.” Id. at 123-24 & n.24.

6

The logic underlying the decisions in Jacobsen and Place applies equally to Stage 3

7 scanning of communications that do not contain targeted selectors. So far as Plaintiffs maintain

8 or prove, electronic scanning at Stage 3 of communications that are not found to contain targeted

9 selectors results in their immediate destruction, without revealing anything about them to the

10 Government. Indeed, the information gleaned about unretained communications is even less

11 than the modicum of information revealed either by the canine sniff in Place or the chemical

12 field test in Jacobsen. As the Court observed in Place, if the narcotics-detection dog does not

13 alert, that “tells the authorities something about the contents of the luggage” (the absence of

14 illegal drugs) but that information is too “limited” to raise the intrusion to the level of a search.

15 462 U.S. at 707. Likewise, a negative chemical field test reveals “that [a] substance is something

16 other than cocaine,” but that disclosure, too, is of insufficient “interest” to result in a search.

17 Jacobsen, 466 U.S. at 123. Here, so far as Plaintiffs’ evidence indicates, if Stage 3 scanning of a

18 copied communication is negative the Government learns nothing about it—not even that it

19 exists. Accordingly, so far as Plaintiffs’ motion concerns only communications that have not

20 been found to contain targeted selectors, they have not shown that Government personnel obtain

21 any information about Plaintiffs’ communications, the contents thereof, or with whom Plaintiffs

22 communicate online. Thus, under the rationales of Place and Jacobsen, Plaintiffs have made no

23 showing that Stage 3 scanning of their communications “‘compromise[s] any legitimate interest

24 [of theirs] in privacy,’” Caballes, 543 U.S. at 408 (quoting Jacobsen, 466 U.S. at 123), and so

25 have not demonstrated the occurrence of a Fourth Amendment search.

26

Plaintiffs seek to support the opposite conclusion by again invoking historic memory of

27 general warrants and writs of assistance, likening the electronic scanning of communications

28 data copied from fiber-optic cables to a “‘general exploratory rummaging’” of every colonist’s

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 home by British troops. Pls.’ Mot. at 20-21. The comparison is ill-conceived, however, and its

2 logical flaw is exposed by the Court’s reasoning in Place. There the Court explained that a

3 narcotics-dog sniff is distinguishable from “an officer’s rummaging through the contents of [an

4 individual’s] luggage,” because a sniff test does not expose items, other than targeted narcotics,

5 “that otherwise would remain hidden from public view.” 462 U.S. at 707. Thus “the owner of

6 the property is not subjected to the embarrassment and inconvenience entailed in less

7 discriminate and more intrusive investigative methods.” Id. As in Place, communications not

8 found at Stage 3 to contain targeted selectors “remain hidden,” so far as Plaintiffs have

9 demonstrated, from the Government’s view, id., and no search of those communications, much

10 less the equivalent of a house-to-house search of the entire thirteen colonies, takes place. The

11 Government, not Plaintiffs, is entitled to judgment on Plaintiffs’ search claim as a matter of law.

12

C. The “Stage 1” Seizure and “Stage 3” Search Alleged by Plaintiffs Fall Within

the Fourth Amendment’s “Special Needs” Doctrine and Are Reasonable

13

Under the Totality of the Circumstances.

14

Even if the alleged real-time copying and scanning of Plaintiffs’ electronic

15 communications at Stages 1 and 3 constituted seizures and searches within the meaning of the

16 Fourth Amendment, these activities serve special Government needs and, therefore, under settled

17 doctrine, do not require a warrant. They are reasonable under the totality of the circumstances—

18 reflecting Congress’s and the Executive’s careful balancing of the relevant national-security and

19 privacy interests—and are therefore constitutional, because their importance to national security

20 far outweighs any minimal intrusion they impose on Plaintiffs’ Fourth Amendment interests.

21

1. The challenged surveillance activities do not require the issuance

of a warrant upon probable cause because the Government has a

22

“special need” to collect foreign-intelligence information.

23

Plaintiffs argue that the alleged Stage 1 copying and Stage 3 scanning of their

24 communications violate the Fourth Amendment because “[n]ational security does not excuse

25 the need for a warrant” to conduct these activities. Pls.’ Mot. at 14. But under the Supreme

26 Court’s “special needs” doctrine, it does. The “touchstone” of Fourth Amendment analysis “is

27 always ‘the reasonableness in all the circumstances of the particular governmental invasion of a

28 citizen’s personal security.’” Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (per curiam)

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)). “[A]lthough ‘both the concept of probable cause

2 and the requirement of a warrant bear on the reasonableness of a search,’” New Jersey v. T.L.O.,

3 469 U.S. 325, 340 (1985) (citation omitted), “neither a warrant nor probable cause, nor, indeed,

4 any measure of individualized suspicion, is an indispensable component of reasonableness in

5 every circumstance,” National Treas. Emp. Union v. Von Raab, 489 U.S. 656, 665 (1989). In

6 fact, “the traditional probable-cause standard may be unhelpful” when the Government “seeks to

7 prevent” dangers to public safety. Id. at 668.

8

The Supreme Court has recognized exceptions to the warrant requirement in a variety of

9 circumstances, including where “special needs, beyond the need for law enforcement, make the

10 warrant and probable-cause requirement impracticable,” Griffin v. Wisconsin, 483 U.S. 868, 873

11 (1987), and the needs are motivated “at [a] programmatic level” by other governmental

12 objectives. See City of Indianapolis v. Edmond, 531 U.S. 32, 37-40, 48 (2000). Under the

13 “special needs” doctrine, the Fourth Amendment instead requires courts to “employ[] a

14 balancing test that weigh[s] the intrusion on the individual’s [constitutionally protected]

15 interest[s]” against the “‘special needs’ that support[] the program.” Ferguson v. City of 16 Charleston, 532 U.S. 67, 78 (2001).8

17

A number of courts have held that the Government’s “special need” for foreign-

18 intelligence information justifies an exception to the warrant requirement. See, e.g., United

19 States v. Duka, 671 F.3d 329, 340-45 (3d Cir. 2011); In re Directives, 551 F.3d 1004, 1010-12,

20 (FISC Ct. Rev. 2008); United States v. Truong Dinh Hung, 629 F.2d 908, 912-16 (4th Cir. 1980);

21 United States v. Mohamud, 2014 WL 2866749, at *15-18 (D. Or. June 24, 2014); Cf. United

22 States v. Buck, 548 F.2d 871, 875 (9th Cir. 1977) (“Foreign security wiretaps are a recognized

23 exception to the general warrant requirement . . . .”).

24

The rationale for these decisions derives from United States v. U.S. Dist. Court (Keith),

25 407 U.S. 297, 322 (1972), a case involving electronic surveillance for domestic security

26 8 Under the “special needs” doctrine, the Supreme Court has permitted warrantless stops
27 at roadblocks to secure borders, United States v. Martinez-Fuerte, 428 U.S. 543, 566-67 (1976), warrantless searches of probationers’ homes to ensure compliance with probation conditions,
28 Griffin, 483 U.S. at 872-75, and warrantless searches of public school students to enforce school rules, T.L.O., 469 U.S. at 340.

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 purposes, id. at 299. Although the Supreme Court there held that “prior judicial approval” was

2 required for “the type of domestic security surveillance” at issue in that case, id. at 324, the Court

3 recognized that, due to the significant differences between national-security investigations and

4 ordinary criminal investigations, different standards for intelligence surveillance “may be

5 compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate

6 need of Government for intelligence information and the protected rights” of citizens. See id. at

7 322-23; Duka, 671 F.3d at 339-41. The courts that have since addressed the issue of whether the

8 collection of foreign-intelligence information requires a warrant—an issue the Supreme Court

9 specifically reserved, Keith, 407 U.S. at 308, 322-23—have expressly distinguished Keith’s facts

10 in holding that it does not. See In re Directives, 551 F.3d at 1010; In re Sealed Case, 310 F.3d

11 717, 744 (FISA Ct. Rev. 2002); Truong, 629 F.2d at 913. Cf. Clapper v. Amnesty Int’l USA, 133

12 S. Ct. 1138, 1143 (2013) (noting that Keith “implicitly suggested that a special framework for 13 foreign intelligence surveillance might be constitutionally permissible”). 9

14

In concluding that no warrant is required in this context, the courts have emphasized the

15 importance of the national interest in foreign-intelligence gathering above and beyond garden-

16 variety law enforcement, as well as the need for flexibility in the timely collection of

17 intelligence, given the particular nature and objectives of foreign-intelligence collection. See

18 Duka, 671 F.3d at 341; In re Directives, 551 F.3d at 1010-11; Truong, 629 F.2d at 912-14 (4th

19 Cir. 1980); [Redacted Caption], 2011 WL 10945618, at *24 (F.I.S.C. Oct. 3, 2011); Mohamud,

20 2014 WL 2866749, at *16-18. Indeed, both the FISC and a district court of this Circuit have so

21 held in cases, like this one, involving intelligence collection under Section 702. See Mohamud,

22 2014 WL 2866749, at *1, 14-18; [Redacted Caption], 2011 WL 10945618, at *24.

23

This Court should reach the same result, for the same reasons. A “significant purpose” of

24 acquisitions under Section 702 must be, according to the statute’s terms, “to obtain foreign

25 intelligence information,” 50 U.S.C. § 1881a(g)(2)(A)(v), such as information acquired to protect

26 the Nation against foreign attacks, international terrorism, international proliferation of weapons

27

9 Plaintiffs’ reliance (Pls.’ Mot. at 13, 15-17, 23, 25) on Keith and Berger v. New York,

388 U.S. 41 (1967), is thus misplaced because the former involves the Fourth Amendment

28 standard for electronic surveillance in a domestic-security case, Keith, 407 U.S. at 324, and the

latter involves the standard for an ordinary criminal case, Berger, 388 U.S. at 43 & n.1, 62-64.

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 of mass destruction, and clandestine intelligence activities of foreign intelligence services. See

2 id. § 1801(e); see also In re Directives, 551 F.3d at 1011 (PAA, the predecessor to the FAA, had

3 the “stated purpose” of “garnering foreign intelligence” and “[t]here [was] no indication that the

4 collections of information [were] primarily related to ordinary criminal-law enforcement

5 purposes”). Cf. In re Sealed Case, 310 F.3d at 745-46 (“programmatic purpose” of obtaining

6 foreign intelligence was “a special need”); Cassidy v. Chertoff, 471 F.3d 67, 82 (2d Cir. 2006)

7 (interest in preventing terrorist attacks goes “well beyond” law enforcement). Plaintiffs make no

8 serious argument that Upstream collection is undertaken for routine law enforcement or any 9 purpose other than furthering “legitimate national security concerns.” Pls.’ Mot. at 25.10

10

Upstream collection also meets the impracticability requirement of the special-needs

11 doctrine. Congress, in fact, authorized the surveillance activities challenged here by enacting the

12 FAA in 2008 “with a bipartisan majority” and “broad support from the intelligence community.”

13 H.R. Rep. No. 112-645(I), 112th Cong., 2d Sess., at 2 (Aug. 2, 2012), in part because the

14 burdens imposed on the Government’s limited intelligence resources and the delays occasioned

15 by the requirement under then-current law to prepare individualized, probable-cause FISA

16 applications for intelligence collection targeting non-U.S. persons outside the United States were

17 undermining the Government’s ability to collect such information. See 154 Cong. Rec. S6097,

18 S6122 (daily ed., June 25, 2008) (statement of Senator Chambliss) (“[T]he [FAA] will fill the

19 gaps identified by our intelligence officials and provide them with the tools and flexibility they

20 need to collect intelligence from targets overseas.”); May 1, 2007 FISA Mod. Hrg., supra, at 18

21 (testimony of DNI explaining “massive amounts of analytic resources [required] to craft FISA

22 applications” for warrants authorizing collection of the communications of non-U.S. persons

23 10 Plaintiffs do quarrel, however, that collection under Section 702 does not meet the
24 requirements of the special-needs exception because first, the category of foreign intelligence includes “information that relates to national defense” and “foreign affairs,” and second, because
25 obtaining foreign intelligence need only be a “significant purpose” of an acquisition rather than its primary purpose. Pls.’ Mot. at 25 n.24, citing 50 U.S.C. §§ 1801, 1881a(g)(2)(A)(v). But
26 national defense and foreign affairs are Government interests just as unrelated to routine law enforcement as counter-terrorism. And, so long as the Section 702 program serves the
27 Government’s need to obtain foreign intelligence, it does not render the warrant requirement any less impracticable, or render the special-needs exception inapplicable, just because the program
28 also promotes other legitimate governmental interests. See, e.g., Duka, 671 F.3d at 341-45; In re Directives, 551 F.3d at 1011; Mohamud, 2014 WL 2866749, at *18.

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 located abroad); see also H.R. Rep. No. 112-645(II), 112th Cong., 2d Sess., at 2 (Aug. 2, 2012)

2 (technological changes had made FISA “impractical” and “ineffective” in “combatting the

3 quickly evolving threats facing our nation,” whereas the FAA provided “the speed and agility 4 necessary to meaningfully collect foreign intelligence”).11

5

The courts have also long recognized that “attempts to counter foreign threats to the

6 national security require the utmost stealth, speed, and secrecy,” Truong, 629 F.2d at 913, and

7 that conditioning acquisitions of foreign-intelligence information targeted at non-U.S. persons

8 located overseas on obtaining a warrant “would add a procedural hurdle that would reduce the

9 flexibility of executive foreign intelligence initiatives, in some cases delay executive response to

10 foreign intelligence threats,” id., “hinder the government’s ability to collect time-sensitive”

11 foreign intelligence, and thus “impede the vital national security interests that are at stake.” In re

12 Directives, 551 F.3d at 1011; see also United States v. Bin Laden, 126 F. Supp. 2d 264, 273

13 (S.D.N.Y. 2000) (“imposition of a warrant requirement [would] be a disproportionate and

14 perhaps even disabling burden” on Government’s ability to obtain foreign intelligence

15 information). Courts considering the issue have found, in particular, that “application of the

16 warrant requirement would [also] be impracticable” for acquisitions under Section 702.

17 Mohamud, 2014 WL 2866749, at *18; see also [Redacted Caption], 2011 WL 10945618, at *24.

18

Accordingly, the alleged seizure and search about which Plaintiffs complain fall under

19 the Fourth Amendment’s “special needs” exception to the warrant requirement.

20

2. The challenged “Stage 1” copying and “Stage 3” scanning of

21

Plaintiffs’ unretained communications are reasonable because

the interests of national security far outweigh the minimal

22

intrusion on Plaintiffs’ Fourth Amendment interests.

23

Even where a warrant and probable cause are not required, searches and seizures remain

24 subject to the Fourth Amendment’s “traditional standards of reasonableness.” Maryland v. King,

25 133 S. Ct. 1958, 1970 (2013). In assessing the reasonableness of the putative “seizure” and

26 “search” at Stages 1 and 3, the Court must consider the “totality of the circumstances,” Samson

27

11 The Senate Select Committee on Intelligence similarly concluded in 2012 that, without

Section 702 (and the other authorities granted by the FAA) the Intelligence Community’s

28 “ability . . . to respond quickly to new threats and intelligence opportunities” would be

“impede[d].” S. Rep. No. 112-174, 112th Cong., 2d Sess., at 2 (June 7, 2012).

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 v. California, 547 U.S. 843, 848 (2006), weighing “the promotion of legitimate governmental

2 interests against the degree to which [the seizures and searches] intrude[] upon” Plaintiffs’

3 protected Fourth Amendment interests. King, 133 S. Ct. at 1970. Applying this test, the FISA

4 Court of Review found foreign-intelligence collection under the PAA reasonable, In re

5 Directives, 551 F.3d 1012-15, and the Mohamud court recently found reasonable (and thus

6 constitutional) the acquisition of foreign intelligence under Section 702, see Mohamud, 2014 WL

7 2866749, at *19-27. This Court, likewise, should conclude that the claimed seizure and search at

8 issue here are reasonable; indeed, they infringe upon Fourth Amendment interests to a far lesser

9 degree than the intelligence-gathering activities upheld in In re Directives and Mohamud.

10

The Government’s national-security interest in conducting acquisitions pursuant to

11 Section 702 “is of the highest order of magnitude.” In re Directives, 551 F.3d at 1012;

12 [Redacted caption], 2011 WL 10945618, at *25 (same). “[N]o governmental interest is more

13 compelling than the security of the Nation,” Haig v. Agee, 453 U.S. 280, 307 (1981), and

14 combatting international terrorism, one of the principal goals of the FAA of 2008, see H.R. Rep.

15 No. 112-645(I), 112th Cong., 2d Sess., at 4 (Aug. 2, 2012), “is an urgent objective of the highest

16 order.” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010).

17

To be weighed against the promotion of the compelling Government interest in protecting

18 national security is the minimal intrusion on Plaintiffs’ Fourth Amendment interest by Upstream

19 collection as Plaintiffs allege it operates. As explained supra, §§ IV.A and B, the temporary

20 creation of a copy of Plaintiffs’ communications and the equally fleeting electronic scanning of

21 communications not retained by the Government, and about which Government personnel obtain

22 no information, produce a minimal intrusion, if any, on Plaintiffs’ possessory and privacy

23 interests, not the “massive[] intru[sion]” Plaintiffs claim. Pls.’ Mot. at 24.

24

Any intrusion on Plaintiffs’ Fourth Amendment interests is diminished further because

25 “[s]urveillance under [Section 702] is subject to statutory conditions, judicial authorization,

26 congressional supervision, and compliance with the Fourth Amendment,” Amnesty Int’l USA,

27 133 S. Ct. at 1144, and this “matrix of [statutory] safeguards,” In re Directives, 551 F.3d at 1013,

28 contributes further to the program’s reasonableness. See Mohamud, 2014 WL 2866749, at *27;

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 cf. King, 133 S. Ct. at 1979-80 (statutory protections guarding against further invasion of privacy

2 contribute to reasonableness). The statute requires the DNI and the Attorney General to certify,

3 and the FISC to approve, that a significant purpose of an acquisition is to obtain foreign

4 intelligence information, id. § 1881a (g)(2)(A)(v), (i). Section 702 also requires the DNI and the

5 Attorney General annually to certify—and the FISC to so find—that acquisitions will comply

6 with the Fourth Amendment and the statutorily required targeting procedures are reasonably

7 designed to target only non-U.S. persons reasonably believed to be located outside the United

8 States, that is, those who do not have Fourth Amendment rights, United States v. Verdugo9 Urquidez, 494 U.S. 259, 271 (1990). See 50 U.S.C. § 1881a(a), (b), (d)(2), (g), (i). 12 Along

10 with the Executive’s reports to the FISC and to Congress about “compliance with the targeting

11 . . . procedures,” id. § 1881a(l)(1), these requirements contribute to the reasonableness of the 12 collection under Section 702. See Mohamud, 2014 WL 2866749, at *27.13

13

The Fourth Amendment requires only that the acquisitions of intelligence made possible

14 by the alleged seizures and searches at issue here be a “reasonably effective means” of advancing

15 the Government’s goals of protecting the Nation’s security. Board of Educ. of Independent Sch.

16 Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 837-38 (2002). There should be no

17 dispute here that this standard has been met and exceeded because the collection authorized by

18 Section 702, the “primary surveillance authority granted by” the FAA, S. Rep. No. 112-229,

19 112th Cong., 2d Sess., at 4 (Sept. 20, 2012), has been critical to the Government’s efforts to

20

12 Plaintiffs are wrong to complain that the “Executive alone makes all [the] decisions”

21

about targeting “without judicial oversight,” Pls.’ Mot. at 23, because the statute imposes significant limitations on permissible targeting and the purposes for which information may be

22

collected, 50 U.S.C. § 1881a(b), (g)(2)(A)(v), and compliance with those limitations is reviewed by the FISC. See id. § 1881a(i); PCLOB Report at 26-28 (describing FISC’s role as “extensive”

23

in some respects). They are also wrong in dismissing the FISC’s role in the process as that of “an administrative agency” instead of an Article III court. Pls.’ Mot. at 21-22. The FISC

24

determines whether the Executive is complying with the statutory requirements and the Fourth Amendment, see 50 U.S.C. § 1881a(i), and issues orders either approving of certifications (so

25

directives may be issued to electronic communication service providers who must comply or challenge them, see id. § 1881a(h)), or disapproving the certifications so the Government is

26

barred from conducting collections under the certifications if it does not remedy the deficiency. Id. § 1881a(i)(2). See Mohamud, 2014 WL 2866749, at *10-11.

27

13 Cf. Amnesty Int’l, USA, 133 S. Ct. at 1150 (noting importance of requirement that the

FISC “assess whether the Government’s targeting and minimization procedures comport with the

28 Fourth Amendment”); In re Directives, 551 F.3d at 1015 (minimization procedures reduce

impact of any potential privacy intrusions).

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 combat international terrorism and other threats to the United States and its interests abroad. See

2 S. Rep. No. 112-174, 112th Cong., 2d Sess., at 2 (June 7, 2012) (describing collections under the

3 FAA as “critical”); H.R. Rep. No. 112-645(I), 112th Cong., 2d Sess., at 2 (Aug. 2, 2012) (FAA

4 authorities “critical” and “allow[] intelligence professionals to more quickly and effectively 5 monitor terrorist communications”); H.R. Rep. No. 112-645(II), 112th Cong., 2d Sess., at 3 (Aug.

6 2, 2012) (emphasizing “critical import[ance]” of the FAA).

7

In recommending re-authorization of the FAA in 2012, for example, the House

8 Committee on Intelligence, which “held two hearings and multiple classified briefings” on the

9 efficacy of surveillance under the FAA, found that the:

10

importance of the collection of foreign intelligence under the [FAA] . . . cannot be

11

underscored enough. In short, intelligence collected under the FAA is critically important to maintaining our national security. The information collected under

12

this authority is often unique, unavailable from any other source, and regularly provides critically important insights and operationally actionable intelligence on

13

terrorists and foreign intelligence targets around the world.

14 H.R. Rep. No. 112-645(II), 112th Cong., 2d Sess., at 3, 5 (Aug. 2, 2012); see also PCLOB

15 Report at 124 (finding that Upstream collection “has unique value”). Similarly, the Senate Select

16 Committee on Intelligence found—based on “numerous hearings” and years of briefings by

17 Executive Branch officials—that “the authorities provided under the [FAA] have greatly

18 increased the government’s ability to collect information and act quickly against important 19 foreign intelligence targets.” S. Rep. No. 112-174, 112th Cong., 2d Sess., at 2 (June 7, 2012).14

20

The Executive Branch’s assessment of the value and importance of intelligence-gathering

21 activities authorized under the FAA is “entitled to deference.” Humanitarian Law Project, 561

22 U.S. at 32-34. On a daily basis the Executive Branch confronts an array of constantly evolving

23 threats to national security, and is charged with making difficult judgments about how best to

24 counter those threats. See id.; Truong, 629 F.2d at 914 (Executive has “superior expertise” in

25 14 Indeed, even those members of the House Judiciary Committee who “strongly
26 oppose[d]” reauthorization, H.R. Rep. No. 112-645(I), 112th Cong., 2d Sess., at 13 (Aug. 2, 2012) (dissenting views), recognized “[w]ithout question” that the FAA provided the intelligence
27 community with an “important tool” to “collect significant and valuable foreign intelligence.” Id. at 17 (dissenting views). The same was true of the minority views expressed in the report by
28 the House Permanent Select Committee on Intelligence. See H.R. Rep. No. 112-645(II), 112th Cong., 2d Sess., at 10 (Aug. 2, 2012) (minority views).

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 foreign intelligence and is “constitutionally designated as the pre-eminent authority in foreign

2 affairs”). Congress’s judgment regarding the value and importance of intelligence acquisitions

3 authorized under the FAA, as reflected in its 2012 reauthorization of these authorities—including

4 Section 702—see FISA Amendments Act Reauthorization Act of 2012, Pub. L. No. 112-238,

5 126 Stat. 1631, is also entitled to the courts’ respect. Humanitarian Law Project, 561 U.S. at 33-

6 35; see also Jones, 132 S. Ct. at 964 (Alito, J., concurring in the judgment) (“A legislative body

7 is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy 8 and public safety in a comprehensive way.”).15

9

Each court to consider the question has concluded that the Government’s compelling

10 interest in protecting national security justifies the arguably greater intrusion of electronic

11 surveillance under Section 702, and its predecessor, the PAA, on the privacy of those individuals

12 whose electronic communications are, in fact, retained by the Government and are subject to

13 further review and scrutiny by Government officials. See In re Directives, 551 F.3d at 1012-16

14 (finding that the PAA, which authorized surveillance of U.S. persons abroad (and was thus

15 broader than the FAA), “constitute[d] a sufficiently reasonable exercise of governmental power

16 to satisfy the Fourth Amendment”); Mohamud, 2014 WL 2866749, at *24-27 (Section 702

17 acquisition and “subsequent querying” of that surveillance collection is reasonable under the

18 Fourth Amendment). All the more so, the promotion of the Government’s national-security

19 interests through Upstream collection justifies the minimal intrusions on Plaintiffs’ Fourth 20 Amendment interests in communications that are not among those the Government retains.16

21

15 The conclusions reached by Congress about the value of Section 702 and other FAA

22

intelligence-gathering authorities are echoed in other public reports. See PCLOB Report at 2, 104, 107, 110 (July 2, 2014) (Section 702 “valuable and effective”; “provides a degree of

23

flexibility not offered by comparable surveillance authorities”; “help[s] the United States learn more about the membership, leadership structure, priorities, tactics, and plans of international

24

terrorist organizations,” leading “to the discovery” and “disruption” of “previously unknown terrorist plots”; and has been “highly valuable” in serving “other foreign intelligence and foreign

25

policy goals”); The President’s Review Group on Intelligence and Communications Technologies, Liberty & Security in a Changing World, 145 (Dec. 12, 2013) (Exh. D, hereto)

26

(“[S]ection 702 has clearly served an important function in helping the United States to uncover and prevent terrorist attacks both in the United States and around the world.”).

27

16 Courts have reached similar conclusions in other national-security contexts, all

involving arguably greater intrusions on Fourth Amendment interests than Plaintiffs have shown.

28 See also In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 157, 172-77 (2d Cir.

2008) (warrantless and broad electronic surveillance of U.S. citizen abroad constitutional

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1

At bottom, even if Plaintiffs had presented competent evidence to support the conclusion

2 that Fourth Amendment seizures and searches occur when Plaintiffs’ online communications are

3 fleetingly copied while transiting the Internet backbone, and then the copies electronically

4 scanned and destroyed in real time—all without the Government retaining or learning anything

5 about the communications involved—those searches and seizures fall within the foreign-

6 intelligence exception to the warrant requirement, and are reasonable under the totality of the

7 circumstances. Thus no violation of the Fourth Amendment takes place.

8

D. Even if Plaintiffs Had Presented Evidence of a Seizure or Search, Not

Justified Under the Special Needs Doctrine, Their Fourth Amendment

9

Claim Still Could Not Be Litigated Without National-Security Information

Protected by the State Secrets Privilege. 10

Even if the Court were to conclude that Plaintiffs have presented sufficient admissible

11

evidence of facts, which, if true, would demonstrate that Upstream collection involves a Fourth

12

Amendment seizure or search of Plaintiffs’ communications, and that the minimal intrusion upon

13

Plaintiffs’ possessory and privacy interests is not far outweighed by Upstream collection’s

14

promotion of the Government’s compelling interest in national security, then the Government, in

15

the alternative, would still be entitled to summary judgment on Plaintiffs’ Fourth Amendment

16

claims. That is so, because adjudication of those claims and the Government’s defenses thereto

17

would require disclosure of national-security information subject to the DNI’s assertion of the

18

state secrets privilege.

19

Previously in this litigation the DNI asserted the state secrets privilege over “[a]ny

20

information concerning NSA intelligence activities, sources, or methods that may relate to or be

21

necessary to adjudicate plaintiffs’ allegations,” Public Decl. of James R. Clapper, DNI (Sept. 11,

22

2012) (ECF No. 104) ¶ 10.C; see Public Decl. of Frances J. Fleisch, NSA (Sept. 11, 2012) (ECF

23

No. 105) ¶ 14.B, and renewed that assertion of privilege over “information concerning the scope

24

because the government’s need to “intrude was even greater” than the intrusion); Cassidy, 471 25 F.3d at 70 (searches of carry-on luggage and vehicles before boarding ferries); MacWade v.

Kelly, 460 F.3d 260, 269-75 (2d Cir. 2006) (random search of subway passengers’ baggage). 26 Indeed, given the national-security interests at stake, and the minute extent of any infringement

on Fourth Amendment interests at alleged Stages 1 and 3, the balance tips even further in the 27 Government’s favor than in previous “special needs” cases where the Supreme Court has readily

upheld, for example, DNA testing, for identification purposes, of persons taken into custody, 28 King, 133 S. Ct. at 1979-80, and suspicionless urinalysis testing of high-school athletes to

combat drug abuse. Earls, 536 U.S. at 832-34.

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

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1 and operational details of NSA intelligence activities that may [be] relat[ed] to or be necessary to

2 adjudicate plaintiffs’ allegations,” including “operational details related to the collection of

3 communications under FISA section 702.” Public Decl. of James R. Clapper, DNI (Dec. 20,

4 2013) (ECF No. 168) ¶¶ 19.C.1.b, 35 (“Dec. 20, 2013 Clapper Decl.”); see Public Decl. of

5 Frances J. Fleisch, NSA (Dec. 20, 2013) (ECF No. 169) ¶¶ 35.B.1.b, 38, 39. This Court, in

6 Jewel, 965 F. Supp. 2d at 1103, held that “the evidence submitted thus far that the [G]overnment

7 seeks to protect from disclosure contain[s] valid state secrets ‘which, in the interest of national

8 security, should not be divulged’” (quoting United States v. Reynolds, 345 U.S. 1, 10 (1953)).

9

As explained in the classified supplement submitted in camera, ex parte, herewith, the

10 NSA possesses information “concerning operational details related to the collection of

11 communications under FISA section 702,” Dec. 20, 2013 Clapper Decl. ¶ 19.C.1.b, that are

12 necessary to a determination of Plaintiffs’ seizure and search claims, and the Government’s

13 defense thereto. Those facts are set forth in the Classified Decl. of Miriam P., NSA (Sept. 29,

14 2014), also submitted in camera, ex parte, herewith; and as confirmed by the DNI, they fall

15 within the scope of his assertion of the state secrets privilege, already made in this case, over the

16 operational details of the Section 702 program. Decl. of James R. Clapper, DNI (Sept. 29, 2014)

17 (Exh. E, hereto) ¶ 2.

18

When, as here, a court has sustained a claim of state secrets privilege, the evidence

19 subject to the privilege is “completely removed from the case,” Kasza, 133 F.3d at 1166, and the

20 court must then resolve “how the matter should proceed in light of the successful privilege

21 claim.” Al-Haramain Islamic Found. v. Bush, 507 F.3d 1190, 1202 (9th Cir. 2007) (citation and

22 internal quotation marks omitted): Jewel, 965 F. Supp. 2d at 1101. In many situations the

23 exclusion of the privileged evidence will have “‘no consequences save those resulting from the

24 loss of the evidence,’” and “‘the case will proceed accordingly,’” Mohamed v. Jeppesen

25 Dataplan, Inc., 614 F.3d 1070, 1082-83 (9th Cir. 2010) (en banc) (quoting Al-Haramain, 507

26 F.3d at 1204). In some circumstances, however, “application of the privilege may require

27 dismissal of the action,” if, for example, “‘the privilege deprives the plaintiff of information

28 needed to set forth a prima facie case, or the defendant of information that would otherwise give

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

44

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1 the defendant a valid defense to the claim . . . .’” Id. at 1083 (quoting Kasza, 133 F.3d at 1166);

2 Jewel, 965 F. Supp. 2d at 1100.

3

Here, as explained in the classified in camera, ex parte supplement submitted herewith, if

4 the Court were to determine that Plaintiffs have presented competent evidence from which it

5 could be found that either a seizure or search of Plaintiffs’ communications occurs in the

6 Upstream collection process, and that the minimal intrusion on Plaintiffs’ Fourth Amendment

7 interests is not outweighed by the contribution of Upstream collection to national security, then

8 the operational details presented in the Classified Miriam P. Declaration would be necessary to a

9 full and fair adjudication of Plaintiffs’ Fourth Amendment claim, including the Government’s

10 ability to raise and support defenses in addition to those presented herein. That information,

11 however, is excluded from the case due to the DNI’s valid assertion of the state secrets privilege.

12 Kasza, 133 F.3d at 1166. Accordingly, even barring all other grounds discussed herein on which

13 Plaintiffs’ motion should be denied, the state secrets doctrine would require that Plaintiffs’

14 claims be dismissed and judgment awarded instead to the Government. Jeppesen, 614 F.3d at

15 1083; Kasza, 133 F.3d at 1166; Jewel, 965 F. Supp. 2d at 1100; see Tenenbaum v. Simonini, 372 16 F.3d 776, 777 (6th Cir. 2004).17

17

CONCLUSION

18

For the foregoing reasons, Plaintiffs’ motion for partial summary judgment on their

19 Fourth Amendment claim should be denied, and judgment awarded instead to the Government

20 on Plaintiffs’ Fourth Amendment claim as a matter of law.

21

22

17 The Court’s prior conclusion that the privilege is displaced by 50 U.S.C. § 1806(f), Jewel, 965 F. Supp. 2d at 1105-06, with which the Government respectfully continues to

23

disagree, does not alter this conclusion. As the Government explained in response to the Court’s four threshold questions, Plaintiffs must first establish that they are “aggrieved persons” under

24 § 1806(f) before its procedures can be used to determine the legality of electronic surveillance, and notwithstanding recent Government disclosures, a § 1806(f) proceeding and an ensuing court

25 decision risk disclosure of still-classified information that could cause exceptionally grave damage to national security. See Gov. Defs.’ Reply on Threshold Legal Issues at 4-14 (ECF No.

26 185). Moreover, Plaintiffs have expressly declined the use of § 1806(f) proceedings at this time, choosing instead to file a motion “based entirely on public evidence” and “defer section 1806(f)

27 proceedings.” Plaintiffs’ Responses to the Court’s Four Questions at 7 (ECF No. 177). Lastly,

the Court held that § 1806(f) displaces the state secrets privilege “with regard to matters within 28 FISA’s purview,” Jewel, 960 F. Supp. 2d at 1106, but there are no FISA claims against the

Government left in this case. See Joint Case Management Statement at 6-7 (ECF No. 159).

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

45

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1 Dated: September 29, 2014 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully Submitted,
JOYCE R. BRANDA Acting Assistant Attorney General
JOSEPH H. HUNT Director, Federal Programs Branch
ANTHONY J. COPPOLINO Deputy Branch Director
/s/ James J. Gilligan JAMES J. GILLIGAN Special Litigation Counsel MARCIA BERMAN Senior Trial Counsel RODNEY PATTON JULIA BERMAN Trial Attorneys
U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W., Room 6102 Washington, D.C. 20001
Phone: (202) 514-3358 Fax: (202) 616-8470 E-mail: james.gilligan@usdoj.gov
Attorneys for the Government Defendants

Jewel v. NSA, No. 08-cv-4373-JSW: Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ.

Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Amendment Claim

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EXHIBIT A

Case4:08-cv-04373-JSW Document285-1 Filed09/29/14 Page2 of 12
NSA Director of Civil Liberties and Privacy Office Report
NSA's Implementation of Foreign Intelligence Surveillance Act
Section 702
April16J 2014

Case4:08-cv-04373-JSW Document285-1 Filed09/29/14 Page3 of 12
National Security Agency, Civil Liberties and Privacy Office Report
NSA's Implementation of Foreign Intelligence Surveillance Act Section 702
This report was prepared by the National Security Agency (NSA) Civil Liberties and Privacy Office as part of its responsibilities to enhance communications and transparency with the public and stakeholders. Its Director is the primary advisor to the Director ofNSA when it comes to matters of civil liberties and privacy. Created in January 2014, the Office is also charged with ensuring that civil liberties and privacy protection are integrated into NSA activities. The intent of this paper is to help build a common understanding that can serve as a foundation for future discussions about the existing civil liberties and privacy protections.
The mission ofNSA is to make the nation safer by providing policy makers and military commanders with timely foreign intelligence and by protecting national security information networks. NSA collects foreign intelligence based on requirements from the President, his national security team, and their staffs through the National Intelligence Priorities Framework. NSA fulfills these national foreign intelligence requirements through the collection, processing, and analysis of communications or other data, passed or accessible by radio, wire or other electronic means.
NSA's authority to conduct signals intelligence collection for foreign intelligence and counterintelligence purposes is provided primarily by Section 1.7(c)(1) of Executive Order 12333, as amended. The execution ofNSA's signals intelligence mission must be conducted in conformity with the Fourth Amendment. This includes NSA's acquisition of communications to which a U.S. person is a party under circumstances in which the U.S. person has a reasonable expectation of privacy. The Foreign Intelligence Surveillance Act of 1978 (FISA) further regulates certain types of foreign intelligence collection, including that which occurs with compelled assistance from U.S. communications providers.
This Report describes one way in which NSA meets these responsibilities while using Section 702 of FISA, as amended by the FISA Amendments Act of 2008. Although multiple federal agencies participate in Section 702 collection, this paper describes the process by which NSA obtains, uses, shares, and retains communications of foreign intelligence value pursuant to Section 702. It also describes existing privacy and civil liberties protections built into the process.

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The NSA Civil Liberties and Privacy Office (CLPO) used the Fair Information Practice Principles (FIPP) I as an initial tool to describe the existing civil liberties and privacy protections in place for collection done under Section 702 authority?
Section 702 of FISA was widely and publicly debated in Congress both during the initial passage in 2008 and the subsequent re-authorization in 2012. It provides a statutory basis for NSA, with the compelled assistance of electronic communication service providers, to target non-U.S. persons reasonably believed to be located outside the U.S. in order to acquire foreign intelligence information. Given that Section 702 only allows for the targeting of non-U.S. persons outside the U.S., it differs from most other sections ofFISA. It does not require an individual determination by the U.S. Foreign Intelligence Surveillance Court (FISC) that there is probable cause to believe the target is a foreign power or an agent of a foreign power. Instead, the FISC reviews annual topical certifications executed by the Attorney General (A G) and the Director of National Intelligence (DNI) to determine if these certifications meet the statutory requirements. The FISC also determines whether the statutorily required targeting and minimization procedures used in connection with the certifications are consistent with the statute and the Fourth Amendment. The targeting procedures are designed to ensure that Section 702 is only used to target non-U.S. persons reasonably believed to be located outside the U.S.
The minimization procedures are designed to minimize the impact on the privacy on U.S. persons by minimizing the acquisition, retention, and dissemination of non-publicly available U.S. person information that was lawfully, but incidentally acquired under Section 702 by the targeting of non-U.S. persons reasonably believed to be located outside the U.S. Under these certifications the AG and the DNI issue directives to electronic communication service providers (service providers) that require these service providers to "immediately provide the Government with all information ... or assistance necessary to accomplish the acquisition [of foreign intelligence information] in a manner that will protect the secrecy of the acquisition .... " The Government's acquisition of communications under its Section 702 authority thus takes place pursuant to judicial review and with the knowledge of the service providers.
NSA cannot intentionally use Section 702 authority to target any U.S. citizen, any other U.S. person, or anyone known at the time of acquisition to be located within the U.S. The statute also prohibits the use of Section 702 to intentionally acquire any communication as to which the
1 The FIPPS are the recognized principles for assessing privacy impacts. They have been incorporated into E013636, Improving Critical Infrastructure Cybersecurity and the National Strategy for Trusted Identities in Cyberspace. These principles are rooted in the U.S. Department of Health, Education and Welfare's seminal 1973 report, "Records, Computers and the Rights of Citizens." The FIPPs have been implemented in the Privacy Act of 1974, with certain exemptions, including ones that apply to certain national security and law enforcement activities.
2 NSA CLPO will continue to refine its assessment tools to best suit the mission ofNSA, as a member of the Intelligence Community, and to protect civil liberties and privacy.

Case4:08-cv-04373-JSW Document285-1 Filed09/29/14 Page5 of 12
sender and all intended recipients are known at the time of acquisition to be located inside the U.S. Similarly, the statute prohibits the use of Section 702 to conduct "reverse targeting" (i.e., NSA may not intentionally target a person reasonably believed to be located outside of the U.S. if the purpose of such acquisition is to target a person reasonably believed to be located inside the U.S.). All acquisitions conducted pursuant to Section 702 must be conducted in a manner consistent with the Fourth Amendment. NSA's FISC-approved targeting procedures permit NSA to target a non-U.S. person reasonably believed to be located outside the U.S. if the intended target possesses, is expected to receive, and/or is likely to communicate foreign intelligence information concerning one of the certifications executed by the AG and DNI. Although the purpose of Section 702 is to authorize targeting of non-U.S. persons outside the U.S., the statute's requirement for minimization procedures recognizes that such targeted individuals or entities may communicate about U.S. persons or with U.S. persons. For this reason, NSA also must follow FISC-approved minimization procedures that govern the handling of any such communications.
NSA must report to the Office of the Director of National Intelligence (ODNI) and the Department of Justice (DOJ) any and all instances where it has failed to comply with the targeting and/or minimization procedures. In addition, ODNI and DOJ have access to documentation concerning each ofNSA's Section 702 targeting decisions and conduct regular reviews in order to provide independent oversight ofNSA's use of the authority. The FISC Rules of Procedure require the Government to notify the Court of all incidents of noncompliance with applicable law or with an authorization granted by the Court. The Government reports Section 702 compliance incidents to the Court via individual notices and quarterly reports. In addition, the Government reports all Section 702 compliance incidents to Congress in the Attorney General's Semiannual Report. Depending on the type or severity of compliance incident, NSA may also promptly notify the Congressional Intelligence Committees, as well as the President's Intelligence Oversight Board of an individual compliance matter.
Existing Privacy and Civil Liberties Protections: Each of the three branches of federal government oversees NSA's use of the Section 702 authorities. NSA provides transparency to its oversight bodies (Congress, DOJ, ODNI, DoD, the President's Intelligence Oversight Board and the FISC) through regular briefings, court filings, and incident reporting. In addition, DOJ and ODNI conduct periodic reviews ofNSA's use of the authority and report on those reviews. More recently, at the direction ofthe President, the Government has provided additional transparency to the public regarding the program by declassifying FISC opinions and related documents. Although FISA surveillance is normally kept secret from the targets of the surveillance, there are exceptions. For example, if the Government intends to use the results of FISA surveillance, to include Section 702 surveillance, in a trial or other proceeding against a person whose communications were collected, the Government must notify the person so the person can challenge whether the communications were acquired lawfully. These protections implement the general Fair Information Practice Principle (FIPP) of transparency.

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Before an analyst gains access to any NSA signals intelligence data, the analyst must complete specialized training on the legal and policy guidelines that govern the handling and use of the data. Additional training is required for access to Section 702 data. These annual mandatory training requirements include scenario-based training, required reading, and a final competency test. The analyst must pass this test before being granted access. Furthermore, if a compliance incident involves a mistake or misunderstanding of relevant policies, the analyst is re-trained in order to continue to have access to the data acquired pursuant to Section 702.
Next in the Section 702 process is for an NSA analyst to identify a non-U.S. person located outside the U.S. who has and/or is likely to communicate foreign intelligence information as designated in a certification. For example, such a person might be an individual who belongs to a foreign terrorist organization or facilitates the activities of that organization's members. Non-U.S. persons are not targeted unless NSA has reason to believe that they have and/or are likely to communicate foreign intelligence information as designated in a certification; U.S. persons are never targeted.
Once the NSA analyst has identified a person of foreign intelligence interest who is an appropriate target under one of the FISC-approved Section 702 certifications, that person is considered the target. The NSA analyst attempts to determine how, when, with whom, and where the target communicates. Then the analyst identifies specific communications modes used by the target and obtains a unique identifier associated with the target - for example, a telephone number or an email address. This unique identifier is referred to as a selector. The selector is not a "keyword" or particular term (e.g., "nuclear" or "bomb"), but must be a specific communications identifier (e.g., e-mail address).
Next the NSA analyst must verify that there is a connection between the target and the selector and that the target is reasonably believed to be (a) a non-U.S. person and (b) located outside the U.S. This is not a 51% to 49% "foreignness" test. Rather the NSA analyst will check multiple sources and make a decision based on the totality of the information available. If the analyst discovers any information indicating the targeted person may be located in the U.S. or that the target may be a U.S. person, such information must be considered. In other words, if there is conflicting information about the location of the person or the status of the person as a non-U.S. person, that conflict must be resolved before targeting can occur.
For each selector, the NSA analyst must document the following information: (1) the foreign intelligence information expected to be acquired, as authorized by a certification, (2) the information that would lead a reasonable person to conclude the selector is associated with a

Case4:08-cv-04373-JSW Document285-1 Filed09/29/14 Page7 of 12
non-U.S. person, and (3) the information that would similarly lead a reasonable person to conclude that this non-U.S. person is located outside the U.S. This documentation must be reviewed and approved or denied by two senior NSA analysts who have satisfied additional training requirements. The senior NSA analysts may ask for more documentation or clarification, but regardless must verify that all requirements have been met in full. NSA tracks the submission, review, and approval process through the documentation and the senior NSA analysts' determinations are retained for further review by NSA's compliance elements, as well as external oversight reviewers from DOl and DONI. Upon approval, the selector may be used as the basis for compelling a service provider to forward communications associated with the given selector. This is generally referred to as "tasking" the selector.
Existing Privacy and Civil Liberties Protections: NSA trains its analysts extensively through a variety of means to ensure that analysts fully understand their responsibilities and the specific scope of this authority. If the analyst fails to meet the training standards, the analyst will not have the ability to use the Section 702 authority for collection purposes. If the analyst fails to maintain ongoing training standards, the analyst will lose the ability to use the Section 702 authority for collection purposes and all ability to retrieve any data previously collected under the authority. NSA requires any authorized and trained analyst seeking to task a selector using Section 702 to document the three requirements for use of the authority - that the target is connected sufficiently to the selector for an approved foreign intelligence purpose, that the target is a non-U.S. person, and that the target is reasonably believed to be located outside the U.S. This documentation must be reviewed, validated, and approved by the senior analysts who have received additional training. These protections implement the general FIPPs of purpose specification, accountability and auditing, and minimization.
ACCESSING AND ASSESSING COMMUNICATIONS OBTAINED UNDER SECTION 702 AUTHORITY
Once senior analysts have approved a selector as compliant, the service providers are legally compelled to assist the government by providing the relevant communications. Therefore, tasking under this authority takes place with the knowledge of the service providers. NSA receives information concerning a tasked selector through two different methods.
In the first, the Government provides selectors to service providers through the FBI. The service providers are compelled to provide NSA with communications to or from these selectors. This has been generally referred to as the PRISM program.
In the second, service providers are compelled to assist NSA in the lawful interception of electronic communications to, from, or about tasked selectors. This type of compelled service provider assistance has generally been referred to as Upstream collection. NSA's FISCapproved targeting procedures include additional requirements for such collection designed to prevent acquisitions of wholly domestic communications. For example, in certain circumstances NSA's procedures require that it employ an Internet Protocol filter to ensure that the target is

Case4:08-cv-04373-JSW Document285-1 Filed09/29/14 Page8 of 12
located overseas. The process for approving the selectors for tasking is the same for both PRISM and Upstream collection.
Once NSA has received communications of the tasked selector, NSA must follow additional FISC-approved procedures known as the minimization procedures. These procedures require NSA analysts to review at least a sample of communications acquired from all selectors tasked under Section 702, which occurs on a regular basis to verify that the reasonable belief determination used for tasking remains valid.
The NSA analyst must review a sample of communications received from the selectors to ensure that they are in fact associated with the foreign intelligence target and that the targeted individual or entity is not a U.S. person and is not currently located in the U.S. If the NSA analyst discovers that NSA is receiving communications that are not in fact associated with the intended target or that the user of a tasked selector is determined to be a U.S. person or is located in the U.S., the selector must be promptly "detasked." As a general rule, in the event that the target is a U.S. person or in the U.S., all other selectors associated with the target also must be detasked.
Existing Privacy and Civil Liberties Protections: In addition to extensive training, the analyst is required to review the collection to determine that it is associated with the targeted selector and is providing the expected foreign intelligence shortly after the tasking starts and at least annually thereafter. This review allows NSA to identify possible problems with the collection and provides an additional layer of accountability. In addition, NSA has technical measures that alert the NSA analysts if it appears a selector is being used from the U.S. These protections implement the general FIPPs of purpose specification, minimization, accountability and auditing, data quality, and security.
NSA PROCESSING AND ANALYSIS OF COMMUNICATIONS OBTAINED UNDER SECTION 702 AUTHORITY
Communications provided to NSA under Section 702 are processed and retained in multiple NSA systems and data repositories. One data repository, for example, might hold the contents of communications such as the texts of emails and recordings of conversations, while another, may only include metadata, i.e., basic information about the communication, such as the time and duration of a telephone call, or sending and receiving email addresses.
NSA analysts may access communications obtained under Section 702 authority for the purpose of identifying and reporting foreign intelligence. They access the information via "queries," which may be date-bound, and may include alphanumeric strings such as telephone numbers, email addresses, or terms that can be used individually or in combination with one another. FISC-approved minimization procedures govern any queries done on Section 702derived information. NSA analysts with access to Section 702-derived information are trained in the proper construction of a query so that the query is reasonably likely to return valid foreign

Case4:08-cv-04373-JSW Document285-1 Filed09/29/14 Page9 of 12
intelligence and minimizes the likelihood of returning non-pertinent U.S. person information. Access by NSA analysts to each repository is controlled, monitored, and audited. There are, for example, automated checks to determine if an analyst has completed all required training prior to returning information responsive to a query. Further, periodic spot checks on queries by NSA analysts are conducted.
Since October 2011 and consistent with other agencies' Section 702 minimization procedures, NSA's Section 702 minimization procedures have permitted NSA personnel to use U.S. person identifiers to query Section 702 collection when such a query is reasonably likely to return foreign intelligence information. NSA distinguishes between queries of communications content and communications metadata. NSA analysts must provide justification and receive additional approval before a content query using a U.S. person identifier can occur. To date, NSA analysts have queried Section 702 content with U.S. person identifiers less frequently than Section 702 metadata. For example, NSA may seek to query a U.S. person identifier when there is an imminent threat to life, such as a hostage situation. NSA is required to maintain records of U.S. person queries and the records are available for review by both OOJ and ODNI as part of the external oversight process for this authority. Additionally, NSA's procedures prohibit NSA from querying Upstream data with U.S. person identifiers.
Existing Privacy and Civil Liberties Protections: In addition to the training and access controls, NSA maintains audit trails for all queries ofthe Section 702 data. NSA's Signals Intelligence Directorate's compliance staff routinely reviews a portion of all queries that include U.S. person identifiers to ensure that all such queries are only conducted when appropriate. Personnel from DOJ and OONI provide an additional layer of oversight to ensure that NSA is querying the data appropriately. These protections implement the general FIPPs of security, accountability and auditing, and data quality.
NSA DISSEMINATION OF INTELLIGENCE DERIVED FROM COMMUNICATIONS OBTAINED UNDER SECTION 702 AUTHORITY
NSA only generates signals intelligence reports when the information meets a specific intelligence requirement, regardless of whether the proposed report contains U.S. person information. Dissemination of information about U.S. persons in any NSA foreign intelligence report is expressly prohibited unless that information is necessary to understand foreign intelligence information or assess its importance, contains evidence of a crime, or indicates a threat of death or serious bodily injury. Even if one or more of these conditions apply, NSA may include no more than the minimum amount of U.S. person information necessary to understand the foreign intelligence or to describe the crime or threat. For example, NSA typically "masks" the true identities of U.S. persons through use of such phrases as "a U.S. person" and the suppression of details that could lead to him or her being successfully identified by the context. Recipients ofNSA reporting can request that NSA provide the true identity of a masked U.S. person referenced in an intelligence report if the recipient has a legitimate need to know the identity. Under NSA policy, NSA is allowed to unmask the identity only under certain

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conditions and where specific additional controls are in place to preclude its further dissemination, and additional approval has been provided by one of seven designated positions at NSA. Additionally, together DOl and ODNI review the vast majority of disseminations of information about U.S. persons obtained pursuant to Section 702 as part of their oversight process.
Existing Privacy and Civil Liberties Protections: As noted above, NSA only generates signals intelligence reports when the information meets a specific intelligence requirement, regardless of whether the proposed report contains U.S. person information or not. Additionally, NSA's Section 702 minimization procedures require any U.S. person information to be minimized prior to dissemination, thereby reducing the impact on privacy for U.S. persons. The information may only be unmasked in specific instances consistent with the minimization procedures and NSA policy. These protections implement the general FIPPs of minimization and purpose specification.
RETENTION OF UNEVALUATED COMMUNICATIONS OBTAINED UNDER SECTION 702 AUTHORITY
The maximum time that specific communications' content or metadata may be retained by NSA is established in the FISC-approved minimization procedures. The unevaluated content and metadata for PRISM or telephony data collected under Section 702 is retained for no more than five years. Upstream data collected from Internet activity is retained for no more than two years. NSA complies with these retention limits through an automated process.
NSA's procedures also specify several instances in which NSA must destroy U.S. person collection promptly upon recognition. In general, these include any instance where NSA analysts recognize that such collection is clearly not relevant to the authorized purpose of the acquisition rior includes evidence of a crime. Additionally, absent limited exceptions, NSA must destroy any communications acquired when any user of a tasked account is found to have been located in the U.S. at the time of acquisition.
Existing Privacy and Civil Liberties Protections: NSA has policies, technical controls, and staff in place to ensure the data is retained in accordance with the FISC-approved procedures. The automated process to delete the collection at the end of the retention period applies to both U.S. person and non U.S. person the information. There is an additional manual process for the destroying information related to U.S. Persons where NSA analysts have recognized the collection is clearly not relevant to the authorized purpose of the acquisition nor includes evidence of a crime. These protections implement the general FIPPs of minimization and security.

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NSA is subject to rigorous internal compliance and external oversight. Like many other regulated entities, NSA has an enterprise-wide compliance program, led by NSA's Director of Compliance, a position required by statute. NSA's compliance program is designed to provide precision in NSA's activities to ensure that they are consistently conducted in accordance with law and procedure, including in this case the Section 702 certifications and accompanying Section 702 targeting and minimization procedures and additional FISC requirements. As part of the enterprise-wide compliance structure, NSA has compliance elements throughout its various organizations. NSA also seeks to detect incidents of non-compliance at the earliest point possible. When issues of non-compliance arise regarding the way in which NSA carries out the FISC-approved collection, NSA takes corrective action and, in parallel, NSA must report incidents of non-compliance to ODNI and DO] for further reporting to the FISC and Congress, as appropriate or required.
These organizations, along with the NSA General Counsel, the NSA Inspector General, and most recently the Director of Civil Liberties and Privacy have critical roles in ensuring all NSA operations proceed in accordance with the laws, policies, and procedures governing intelligence activities. Additionally, each individual NSA analyst has a responsibility for ensuring that his or her personal activities are similarly compliant. Specifically, this responsibility includes recognizing and reporting all situations in which he or she may have exceeded his or her authority to obtain, analyze, or report intelligence information under Section 702 authority.
Compliance: NSA reports all incidents in which, for example, it has or may have inappropriately queried the Section 702 data, or in which an analyst may have made typographical errors or dissemination errors. NSA personnel are obligated to report when they believe NSA is not, or may not be, acting consistently with law, policy, or procedure. IfNSA is not acting in accordance with law, policy, or procedure, NSA will report through its internal and external intelligence oversight channels, conduct reviews to understand the root cause, and make appropriate adjustments to its procedures.
IfNSA discovers that it has tasked a selector that is used by a person in the U.S. or by a U.S. person, then NSA must cease collection immediately and, in most cases must also delete the relevant collected data and cancel or revise any disseminated reporting based on this data. NSA encourages self-reporting by its personnel and seeks to remedy any errors with additional training or other measures as necessary. Following an incident, a range of remedies may occur: admonishment, written explanation of the offense, request to acknowledge a training point that the analyst might have missed during training, and/or required retesting. In addition to reporting described above, any intentional violation of law would be referred to the NSA Office of Inspector General. To date there have been no such instances, as most recently confirmed by the President's Review Group on Intelligence and Communications Technology.

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External Oversight: As required by the Section 702 targeting procedures, both DOl and ODNI conduct routine oversight reviews. Representatives from both agencies visit NSA on a bimonthly basis. They examine all tasking datasheets that NSA provides to DOl and ODNI to determine whether the tasking sheets meet the documentation standards required by NSA's targeting procedures and provide sufficient information for the reviewers to ascertain the basis for NSA's foreignness determinations. For those records that satisfy the standards, no additional documentation is requested. For tho~e records that warrant further review, NSA provides additional information to DOl and ODNI during or following the onsite review. NSA receives feedback from the DOl and ODNI team and incorporates this information into formal and informal training to analysts. DOl and ODNI also review the vast majority of disseminated reporting that includes u.S. person information.
Existing Privacy and Civil Liberties Protections: The compliance and oversight processes allow NSA to identify any concerns or problems early in the process so as to minimize the impact on privacy and civil liberties. These protections implement the general FIPPs of transparency to oversight organizations and accountability and auditing.
This Report, prepared by NSA's Office of Civil Liberties and Privacy, provides a comprehensive description ofNSA's Section 702 activities. The report also documents current privacy and civil liberties protections.

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EXHIBIT B

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CCaassee41::0183--ccvv--0040387531--JRSJWL DDooccuummeenntt22855-9-2 FFileiledd1019//1229//1134 PPaaggee1100 ooff 1122

CCaassee41::0183--ccvv--0040387531--JRSJWL DDooccuummeenntt22855-9-2 FFileiledd1019//1229//1134 PPaaggee1111 ooff 1122

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EXHIBIT C

Case4:08-cv-04373-JSW Document285-3 Filed09/29/14 Page2 of 29
Privacy	  and	  Civil	  Liber0es	   Oversight	  Board	  	   	  
	   Report	  on	  the	  Surveillance	  Program	  	   	  Operated	  Pursuant	  to	  Sec7on	  702	  	   of	  the	  Foreign	  Intelligence	  Surveillance	  Act	  
	   	  
JULY	  2,	  2014	  
	  	  

Case4:08-cv-04373-JSW Document285-3 Filed09/29/14 Page3 of 29
PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD Report on the Surveillance Program Operated Pursuant to Section 702
of the Foreign Intelligence Surveillance Act JULY 2, 2014

Case4:08-cv-04373-JSW Document285-3 Filed09/29/14 Page4 of 29
Privacy and Civil Liberties Oversight Board David Medine, Chairman Rachel Brand Elisebeth Collins Cook James Dempsey Patricia Wald
i

Case4:08-cv-04373-JSW Document285-3 Filed09/29/14 Page5 of 29
PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD
Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act
Part 1 INTRODUCTION .............................................................................................................................. 1 Part 2 EXECUTIVE SUMMARY.................................................................................................................. 5 Part 3 DESCRIPTION AND HISTORY ................................................................................................. 16
Genesis of the Section 702 Program .................................................................................... 16 Statutory Structure ..................................................................................................................... 20 Acquisition Process ..................................................................................................................... 32 Targeting Procedures ................................................................................................................. 41 Post-Tasking Review .................................................................................................................. 48 Minimization Procedures ........................................................................................................ 50 Internal Agency Oversight ....................................................................................................... 66 External Oversight ....................................................................................................................... 70 Compliance Issues ....................................................................................................................... 77 Part 4 LEGAL ANALYSIS ......................................................................................................................... 80 Statutory Analysis ....................................................................................................................... 80 Constitutional Analysis .............................................................................................................. 86
ii

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Analysis of Treatment of Non-U.S. Persons ....................................................................... 98 Part 5 POLICY ANALYSIS .....................................................................................................................103
Value of the Section 702 Program .......................................................................................104 Privacy and Civil Liberties Implications of the Section 702 Program .................. 111 Part 6 RECOMMENDATIONS ..............................................................................................................134 Part 7 CONCLUSION ...............................................................................................................................149 ANNEXES ...................................................................................................................................................... 150 A. Separate Statement by Chairman David Medine and
Board Member Patricia Wald .........................................................................................151 B. Separate Statement by Board Members Rachel Brand and
Elisebeth Collins Cook ......................................................................................................161 C. July 9, 2013 Workshop Agenda and Link to Workshop Transcript .................166 D. November 4, 2013 Hearing Agenda and Link to Hearing Transcript..............169 E. March 19, 2014 Hearing Agenda and Link to Hearing Transcript ..................172 F. Request for Public Comments on Board Study .......................................................175 G. Reopening the Public Comment Period ....................................................................177 H. Index to Public Comments on www.regulations.gov ............................................178
iii

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Part 1:
INTRODUCTION
I. Background
Shortly after the Privacy and Civil Liberties Oversight Board (“PCLOB” or “Board”) began operation as a new independent agency, Board Members identified a series of programs and issues to prioritize for review. As announced at the Board’s public meeting in March 2013, one of these issues was the implementation of the Foreign Intelligence Surveillance Act Amendments Act of 2008.1
Several months later, in June 2013, two classified National Security Agency (“NSA”) collection programs were first reported about by the press based on unauthorized disclosures of classified documents by Edward Snowden, a contractor for the NSA. Under one program, implemented under Section 215 of the USA PATRIOT Act, the NSA collects domestic telephone metadata (i.e., call records) in bulk. Under the other program, implemented under Section 702 of the Foreign Intelligence Surveillance Act (“FISA”), the government collects the contents of electronic communications, including telephone calls and emails, where the target is reasonably believed to be a non-U.S. person2 located outside the United States.
A bipartisan group of U.S. Senators asked the Board to investigate the two NSA programs and provide an unclassified report.3 House Minority Leader Nancy Pelosi subsequently asked the Board to consider the operations of the Foreign Intelligence Surveillance Court (“FISA court”).4 Additionally, the Board met with President Obama, who asked the Board to “review where our counterterrorism efforts and our values come into

1

See Privacy and Civil Liberties Oversight Board, Minutes of Open Meeting of March 5, 2013, at 4-5,

available at http://www.pclob.gov/SiteAssets/meetings-and-events/5-march-2013-public-

meeting/5%20March%202013%20Meeting%20Minutes.pdf.

2

Under the statute, the term “U.S. persons” includes United States citizens, United States permanent

residents, and virtually all United States corporations.

3

Letter from Tom Udall et al. to the Privacy and Civil Liberties Oversight Board (June 12, 2013),

available at

http://www.pclob.gov/SiteAssets/newsroom/6.12.13%20Senate%20letter%20to%20PCLOB.pdf. Response

available at http://www.pclob.gov/SiteAssets/newsroom/PCLOB_TUdall.pdf.

4

Letter from Democratic Leader Nancy Pelosi to Chairman David Medine (July 11, 2013), available at

http://www.pclob.gov/SiteAssets/newsroom/Pelosi%20Letter%20to%20PCLOB.pdf. Response available at

http://www.pclob.gov/SiteAssets/newsroom/PCLOB%20Pelosi%20Response%20Final.pdf.

1

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tension.”5 In response to the requests from Congress and the President, the Board began a comprehensive study of the two NSA programs. The Board held public hearings and met with the Intelligence Community and the Department of Justice, White House, and congressional committee staff, privacy and civil liberties advocates, academics, trade associations, and technology and communications companies.
During the course of this study, it became clear to the Board that each program required a level of review that was best undertaken and presented to the public in a separate report. As such, the Board released a report on the Section 215 telephone records program and the operation of the FISA court on January 23, 2014.6 Subsequently, the Board held an additional public hearing and continued its study of the second program. Now, the Board is issuing the current report, which examines the collection of electronic communications under Section 702, and provides analysis and recommendations regarding the program’s implementation.
The Section 702 program is extremely complex, involving multiple agencies, collecting multiple types of information, for multiple purposes. Overall, the Board has found that the information the program collects has been valuable and effective in protecting the nation’s security and producing useful foreign intelligence. The program has operated under a statute that was publicly debated, and the text of the statute outlines the basic structure of the program. Operation of the Section 702 program has been subject to judicial oversight and extensive internal supervision, and the Board has found no evidence of intentional abuse.
The Board has found that certain aspects of the program’s implementation raise privacy concerns. These include the scope of the incidental collection of U.S. persons’ communications and the use of queries to search the information collected under the program for the communications of specific U.S. persons. The Board offers a series of policy recommendations to strengthen privacy safeguards and to address these concerns.

II. Study Methodology
In order to gain a full understanding of the program’s operations, the Board and its staff received multiple briefings on the operation of the program, including the technical

5

Remarks by the President in a Press Conference at the White House (Aug. 9, 2013), available at

http://www.whitehouse.gov/the-press-office/2013/08/09/remarks-president-press-conference.

6

See PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD, REPORT ON THE TELEPHONE RECORDS PROGRAM

CONDUCTED UNDER SECTION 215 OF THE USA PATRIOT ACT AND ON THE OPERATIONS OF THE FOREIGN INTELLIGENCE

SURVEILLANCE COURT (2014), available at

http://www.pclob.gov/All%20Documents/Report%20on%20the%20Telephone%20Records%20Program/

PCLOB-Report-on-the-Telephone-Records-Program.pdf.

2

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target, because two non-U.S. persons are discussing a U.S. person, or because a U.S. person was mistakenly targeted. Section 702 therefore requires that certifications also include “minimization procedures” that control the acquisition, retention, and dissemination of any non–publicly available U.S. person information acquired through the Section 702 program.74 As discussed below, the minimization procedures include different procedures for handling U.S. person information depending on the circumstances of how it was acquired. Along with the targeting procedures, the minimization procedures contain the government’s core privacy and civil liberties protections and are more fully discussed throughout this Report.
C. FISC Review
The government’s Section 702 certifications, targeting procedures, and minimization procedures (but not the Attorney General Guidelines) are all subject to review by the FISC.75 In addition to the required procedures and guidelines, the Section 702 certifications are accompanied by affidavits of national security officials76 that further describe to the FISC the government’s basis for assessing that the proposed Section 702 acquisition will be consistent with the applicable statutory authorization and limits.77 Through court filings or the testimony of witnesses at hearings before the FISC, the government also submits additional information explaining how the targeting and minimization procedures will be applied and describing the operation of the program in a way that defines its scope.78
The FISC’s review of the Section 702 certifications has been called “limited” by scholars,79 privacy advocates,80 and in one instance, shortly after the FISA Amendments Act

74

50 U.S.C. § 1881a(e)(1), (g)(2)(A)(ii), (g)(2)(B).

75

50 U.S.C. § 1881a(d)(2), (e)(2), (i). The Attorney General Guidelines must, however, be submitted to

the FISA court. 50 U.S.C. § 1881a(f)(2)(C). Section 702 does have a provision permitting the Attorney General

and the Director of National Intelligence to authorize acquisition prior to judicial review of a certification

under certain exigent circumstances. 50 U.S.C. § 1881a(c)(2). To date, the Attorney General and the Director

of National Intelligence have never exercised this authority.

76

50 U.S.C. § 1881a(g)(2)(C); see, e.g., Memorandum Opinion at 3, [Caption Redacted], [Docket No.

Redacted], 2011 WL 10945618, at *1 (FISA Ct. Oct. 3, 2011) (“Bates October 2011 Opinion”) (noting

submitted affidavits by the Director or Acting Director of NSA and the Director of FBI), available at

http://icontherecord.tumblr.com/post/58944252298/dni-declassifies-intelligence-community-documents.

77

See AUGUST 2013 SEMIANNUAL ASSESSMENT, supra, at A-1 to A-2.

78

See, e.g., Bates October 2011 Opinion, supra, at 5-9, 2011 WL 10945618, at *2-4 (describing 2011

government filings with, and testimony before, the FISA court); id. at 15-16, 2011 WL 10945618, at *5

(describing representations made to the FISA court in prior Section 702 certifications).

79

See, e.g., Laura K. Donohue, Section 702 and the Collection of International Telephone and Internet

Content, at 15, 18, 30-34, available at http://justsecurity.org/wp-

content/uploads/2014/05/donahue.702.pdf.

26

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was passed, by the FISC itself.81 In certain respects, this characterization is accurate. Unlike traditional FISA applications, the FISC does not review the targeting of particular individuals. Specifically, although the Section 702 certifications identify the foreign intelligence subject matters regarding which information is to be acquired, the FISC does not see or approve the specific persons targeted or the specific communication facilities that are actually tasked for acquisition. As such the government does not present evidence to the FISC, nor does the FISC determine — under probable cause or any other standard — that the particular individuals being targeted are non-U.S. persons reasonably believed to be located outside the United States who are being properly targeted to acquire foreign intelligence information.82 Instead of requiring judicial review of these elements, Section 702 calls upon the FISA court only to decide whether the targeting procedures are reasonably designed to ensure compliance with certain limitations and that the minimization procedures satisfy certain criteria (described below). The FISC is not required to independently determine that a significant purpose of the proposed acquisition is to obtain foreign intelligence information,83 although the foreign intelligence purpose of the collection does play a role in the court’s Fourth Amendment analysis.84
In other respects, however, the FISC’s role in the Section 702 program is more extensive. The FISC reviews both the targeting procedures and the minimization procedures, the core set of documents that implement Section 702’s statutory requirements and limitations.85 With respect to the targeting procedures, the FISC must

80

See, e.g., Submission of Jameel Jaffer, Deputy Legal Director, American Civil Liberties Union

Foundation, Privacy and Civil Liberties Oversight Board Public Hearing on Section 702 of the FISA

Amendments Act, at 9 (Mar. 19, 2014), available at http://www.pclob.gov/Library/Meetings-Events/2014-

March-19-Public-Hearing/Testimony_Jaffer.pdf.

81

Memorandum Opinion, In re Proceedings Required by § 702(i) of the FISA Amendments Act of 2008,

Docket Misc. No. 08-01, 2008 WL 9487946, at *5 (FISA Ct. Aug. 27, 2008).

82

See The Intelligence Community’s Collection Programs Under Title VII of the Foreign Intelligence

Surveillance Act, at 2 (2012) (describing differences between targeting individuals under traditional FISA

electronic surveillance provisions and targeting pursuant to Section 702). This document accompanied a

2012 letter sent by the Department of Justice and the Office of the Director of National Intelligence to the

Senate Select Committee on Intelligence and House Permanent Select Committee on Intelligence urging the

reauthorization of Section 702. See Letter from Kathleen Turner, Director of Legislative Affairs, ODNI, and

Ronald Weich, Assistant Attorney General, Office of Legislative Affairs, DOJ to the Honorable Dianne Feinstein,

Chairman, Senate Committee on Intelligence, et. al. (May 4, 2012), available at

http://www.dni.gov/files/documents/Ltr%20to%20HPSCI%20Chairman%20Rogers%20and%20Ranking%

20Member%20Ruppersberger_Scan.pdf.

83

50 U.S.C. § 1881a(i)(2).

84

Additionally, if the FISC determines that a Section 702 certification and related documents are

insufficient on Constitutional or statutory grounds, the FISC cannot itself modify the certification and related

documents governing the Section 702 program, but instead must issue an order to the government to either

correct any deficiencies identified by the FISC within 30 days or to cease (or not begin) implementation of the

certification. 50 U.S.C. § 1881a(i)(3)(B).

85

50 U.S.C. § 1881a(d)(2), (e)(2), (i)(1)(A).

27

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determine that they “are reasonably designed” to “ensure” that targeting is “limited to targeting persons reasonably believed to be located outside the United States.”86 The FISC also must determine that the targeting procedures are reasonably designed to prevent the intentional acquisition of wholly domestic communications.87 In addition, the FISC must also review the proposed minimization procedures under the same standard of review that is required in traditional FISA electronic surveillance and physical search applications.88 The FISC must find that such minimization procedures are “specific procedures” that are “reasonably designed” to control the acquisition, retention, and dissemination of non– publicly available U.S. person information.89 Each time the FISC reviews a Section 702 certification, the FISC must also determine whether the proposed Section 702 acquisition as provided for, and restricted by, the targeting and minimization procedures complies with the Fourth Amendment.90 After conducting its analysis, the FISC must issue a written opinion explaining the reasons why the court has held that the proposed targeting and minimization procedures do, or do not, comply with statutory and Fourth Amendment requirements.91
The FISC has held that it cannot make determinations in a vacuum regarding whether targeting and minimization procedures are “reasonably designed” to meet the statutory requirements and comply with the Fourth Amendment. To the contrary, the FISC “has repeatedly noted that the government’s targeting and minimization procedures must be considered in light of the communications actually acquired,” and that ”[s]ubstantial implementation problems can, notwithstanding the government’s intent, speak to whether the applicable targeting procedures are ‘reasonably designed’ to acquire only the communications of non-U.S. persons outside the United States.’”92 Therefore, although the FISC reviews the targeting procedures, minimization procedures, and related affidavits that

86

50 U.S.C. § 1881a(i)(2)(B)(i).

87

50 U.S.C. § 1881a(i)(2)(B)(ii).

88

Compare 50 U.S.C. § 1881a(i)(2)(C) (requirement to evaluate Section 702 minimization procedures)

with 50 U.S.C. § 1805(a)(3) (requirement to evaluate FISA electronic surveillance minimization procedures)

and 50 U.S.C. § 1824(a)(3) (requirement to evaluate FISA physical search minimization procedures).

89

50 U.S.C. § 1801(h).

90

50 U.S.C. § 1881a(i)(3)(A), (i)(3)(B).

91

50 U.S.C. § 1881a(i)(3)(C). While FISC judges may write opinions explaining their orders with regard

to other aspects of FISA, the statutory requirement for an opinion explaining the rationale of all orders

approving Section 702 certifications is unique within FISA. Though not required by FISA, FISC Rule of

Procedure 18(b)(1) also requires FISC judges to provide a written statement of reasons for any denials of the

government’s other FISA applications. See United States Foreign Intelligence Surveillance Court Rules of

Procedure (“FISC Rule of Procedure”), Rule 18(b)(1), available at

http://www.uscourts.gov/uscourts/rules/FISC2010.pdf.

92

Bates October 2011 Opinion, supra, at 28, 2011 WL 10945618, at *9 (quoting FISC opinion with

redacted docket number).

28

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are submitted with a Section 702 certification, the court’s review is not limited to the four corners of those documents. The FISC also takes into consideration additional filings by the government to supplement or clarify the record, responses to FISC orders to supplement the record,93 and the sworn testimony of witnesses at hearings.94
Commitments regarding how the targeting and minimization procedures will be implemented that are made to the FISC in these representations have been found to be binding on the government. For example, during the consideration of the first Section 702 certification in 2008, the government stated that that the targeting procedures impose a requirement that analysts conduct “due diligence” in determining the U.S. person status of any Section 702 target, even though the phrase “due diligence” is not explicitly found in the text of the NSA targeting procedures. The FISC incorporated the government’s representation regarding due diligence into its opinion, and the government has subsequently reported to Congress and the FISC — as incidents of noncompliance — instances in which the Intelligence Community conducted insufficient due diligence that resulted in the targeting of a U.S. person.95
In evaluating the Section 702 certifications, the court also considers additional filings required by the FISC’s Rules of Procedure. One such rule requires the government to notify the FISA court whenever the government discovers a material misstatement or omissions in a prior filing with the court.96 Another rule mandates that the government report to the FISA court incidents of noncompliance with targeting or minimization procedures previously approved by the court.97 In a still-classified 2009 opinion, the FISC held that the judicial review requirements regarding the targeting and minimization procedures required that the FISC be fully informed of every incident of noncompliance

93

See FISC Rule of Procedure 5(c) (stating that the FISC Judges have the authority to order any party to

a proceeding to supplement the record by “furnish[ing] any information that the Judge deems necessary”).

94

FISC Rule of Procedure 17.

95

See AUGUST 2013 SEMIANNUAL ASSESSMENT, supra, at 29 (describing incidents and stating “In each of

these incidents, all Section 702–acquired data was purged. Together, these [redacted] instances represent

isolated instances of insufficient due diligence that do not reflect the [redacted] of taskings that occur during

the reporting period.”).

96

See FISC Rule of Procedure 13(a).

97

See FISC Rule of Procedure 13(b); SEMIANNUAL ASSESSMENT OF COMPLIANCE WITH PROCEDURES AND

GUIDELINES ISSUES PURSUANT TO SECTION 702 OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT, MAY 2010, at 22 (“MAY

2010 SEMIANNUAL ASSESSMENT”) (discussing requirements under Rule 10(c), the predecessor to Rule 13(b) in

the prior set of FISC Rules of Procedure), available at

http://www.dni.gov/files/documents/FAA/SAR%20May%202010%20Final%20Release%20with%20Exem

ptions.pdf. The government also provides the FISC the Semiannual Section 702 Joint Assessment, portions of

the Section 707 Semiannual report, and a separate quarterly report to the FISC, all of which describe scope,

nature, and actions taken in response to compliance incidents. See The Intelligence Community’s Collection

Programs Under Title VII of the Foreign Intelligence Surveillance Act, supra, at 5; 50 U.S.C. § 1881a(l)(1).

29

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with those procedures. In the 2009 opinion, the court analyzed whether several errors in applying the targeting and minimization procedures that had been reported to the court undermined either the court’s statutory or constitutional analysis. (The court concluded that they did not.)
In addition to identifying errors that could impact the sufficiency of the targeting and minimization procedures, these compliance notices play an additional role in informing the FISC regarding how the government is in fact applying the targeting and minimization procedures. Specifically, the compliance notices must state both the type of noncompliance that has occurred and the facts and circumstances relevant to the incident.98 In doing so, representations to the FISA court have in essence created a series of precedents regarding how the government is interpreting various provisions of its targeting and minimization procedures, which informs the court’s conclusions regarding whether those procedures — as actually applied by the Intelligence Community to particular, real-life factual scenarios — comply with Section 702’s statutory requirements and the Fourth Amendment. For example, while the 2008 FISC opinion incorporated the government’s commitment to apply due diligence in determining the U.S. person status of potential targets, notices of non-compliance filed by the government reflect that the government interprets the targeting procedures to also require due diligence in determining the location of potential targets. Similarly, the government has filed letters clarifying aspects of its “post-tasking” process, which are discussed further below, and it has reported — as compliance incidents — instances when its performance of the posttasking process has not complied with those representations. The government’s interpretations of the targeting and minimization procedures reflected in these compliance filings, however, are not necessarily formally endorsed or incorporated into the FISC’s subsequent opinions. In the Board’s opinion Intelligence Community personnel applying these procedures months or years later may not be aware of the interpretive gloss arising from prior interactions between the government and the FISC on these procedures.
Former FISC Presiding Judge John Bates’ October 3, 2011 opinion provides both an example of the scope of the FISA court’s review of Section 702 certifications in practice and an illustration of what actions the court can take if it determines that the government has not satisfied the court’s expectations to be kept fully, accurately, and timely informed. In April 2011, the government filed multiple Section 702 certifications with the FISC.99 In early May 2011, however, the government filed a letter with the court (under a FISC procedural rule regarding material misstatements or omissions) acknowledging that the scope of the NSA’s “upstream” collection (described below) was more expansive than

98

FISC Rule of Procedure 13(b).

99

Bates October 2011 Opinion, supra, at 3, 2011 WL 10945618, at *1.

30

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previously represented to the court.100 As a result of the filing, the FISC expressed serious concern that the upstream collection, as described by the government, may have exceeded the scope of collection previously approved by the FISC and what could be authorized under Section 702. The FISC therefore ordered the government to respond to a number of questions regarding the upstream collection program.101 Throughout the summer of 2011, the government continued to supplement the record in response to the FISA court’s concerns with a number of filings, including by conducting and reporting to the court the results of a statistical sample of the NSA’s acquisition of upstream collection.102 The government’s supplemental filings discussed both factual matters, such as how many domestic communications were being acquired as a result of the manner in which the government was conducting upstream collection, as well as the government’s legal interpretations regarding how the NSA’s minimization procedures should be applied to such acquisition.103 The FISA court also met with the government and held a hearing to ask additional questions of NSA and Department of Justice personnel.104
Based on this record, Judge Bates ultimately held that in light of the new information, portions of the NSA minimization procedures met neither the requirements of FISA nor the Fourth Amendment and ordered the government to correct the deficient procedures or cease Section 702 upstream collection.105 The government subsequently modified the NSA minimization procedures to remedy the deficiencies identified by the FISA court.106 The FISC continued to have questions, however, regarding upstream collection that had been acquired prior to the implementation of these modified NSA minimization procedures.107 The government took several actions with regard to this past upstream collection, and ultimately decided to purge it all.108

100

Bates October 2011 Opinion, supra, at 5, 2011 WL 10945618, at *2.

101

Bates October 2011 Opinion, supra, at 7, 2011 WL 10945618, at *2.

102

Bates October 2011 Opinion, supra, at 10, 2011 WL 10945618, at *3-4.

103

Bates October 2011 Opinion, supra, at 33-35, 50, 54-56, 2011 WL 10945618, at *11, *17, *18-19.

104

Bates October 2011 Opinion, supra, at 7-9, 2011 WL 10945618, at *4.

105

Bates October 2011 Opinion, supra, at 59-63, 67-80, 2011 WL 10945618, at *20-28.

106

See generally Memorandum Opinion, [Caption Redacted], [Docket No. Redacted], 2011 WL 10947772

(FISA Ct. Nov. 30, 2011) (“Bates November 2011 Opinion”), available at

http://icontherecord.tumblr.com/post/58944252298/dni-declassifies-intelligence-community-documents.

107

See Memorandum Opinion at 26-30, [Caption Redacted], [Docket No. Redacted], 2012 WL 9189263, at

*1-4 (FISA Ct. Sept. 25, 2012) (“Bates September 2012 Opinion”), available at

http://www.dni.gov/files/documents/September%202012%20Bates%20Opinion%20and%20Order.pdf.

108

Bates September 2012 Opinion, supra, at 30-32, 2012 WL 9189263, at *3-4.

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D. Directives
As noted above, Section 702 targeting may occur only with the assistance of electronic communication service providers. Once Section 702 acquisition has been authorized, the Attorney General and the Director of National Intelligence send written directives to electronic communication service providers compelling the providers’ assistance in the acquisition.109 Providers that receive a Section 702 directive may challenge the legality of the directive in the FISC.110 The government may likewise file a petition with the FISC to compel a provider that does not comply with a directive to assist the government’s acquisition of foreign intelligence information.111 The FISC’s decisions regarding challenges and enforcement actions regarding directives are appealable to the Foreign Intelligence Surveillance Court of Review (“FISCR”), and either the government or a provider may request that the United States Supreme Court review a decision of the FISCR.112

III. Acquisition Process: How Does Section 702 Surveillance Actually Work?
Once a Section 702 certification has been approved, non-U.S. persons reasonably believed to be located outside the United States may be targeted to acquire foreign intelligence information within the scope of that certification. The process by which nonU.S. persons are targeted is detailed in the next section. This section describes how Section 702 acquisition takes place once an individual has been targeted.
A. Targeting Persons by Tasking Selectors
The Section 702 certifications permit non-U.S. persons to be targeted only through the “tasking” of what are called “selectors.” A selector must be a specific communications facility that is assessed to be used by the target, such as the target’s email address or telephone number.113 Thus, in the terminology of Section 702, people (non-U.S. persons reasonably believed to be located outside the United States) are targeted; selectors (e.g., email addresses, telephone numbers) are tasked. The users of any tasked selector are

109

50 U.S.C. § 1881a(h).

110

50 U.S.C. § 1881a(h)(4).

111

50 U.S.C. § 1881a(h)(5).

112

50 U.S.C. § 1881a(h)(6). However, as noted in the Board’s Section 215 report, to date, only two cases

have been appealed to the FISCR. One, In re Directives Pursuant to Section 105B of the Foreign Intelligence

Surveillance Act, 551 F.3d 1004 (FISA Ct. Rev. 2008), involved a directive under the Protect America Act, the

predecessor to Section 702, but none have involved Section 702. Nor has the U.S. Supreme Court ever

considered the merits of a FISA order or ruled on the merits of any challenge to FISA.

113

See AUGUST 2013 JOINT ASSESSMENT, supra, at A-2; NSA DCLPO REPORT, supra, at 4; The Intelligence

Community’s Collection Programs Under Title VII of the Foreign Intelligence Surveillance Act, supra, at 3.

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considered targets — and therefore only selectors used by non-U.S. persons reasonably believed to be located abroad may be tasked. The targeting procedures govern both the targeting and tasking process.
Because such terms would not identify specific communications facilities, selectors may not be key words (such as “bomb” or “attack”), or the names of targeted individuals (“Osama Bin Laden”).114 Under the NSA targeting procedures, if a U.S. person or a person located in the United States is determined to be a user of a selector, that selector may not be tasked to Section 702 acquisition or must be promptly detasked if the selector has already been tasked.115
Although targeting decisions must be individualized, this does not mean that a substantial number of persons are not targeted under the Section 702 program. The government estimates that 89,138 persons were targeted under Section 702 during 2013.116
Once a selector has been tasked under the targeting procedures, it is sent to an electronic communications service provider to begin acquisition. There are two types of Section 702 acquisition: what has been referred to as “PRISM” collection and “upstream” collection. PRISM collection is the easier of the two acquisition methods to understand.
B. PRISM Collection
In PRISM collection, the government (specifically, the FBI on behalf of the NSA) sends selectors — such as an email address — to a United States–based electronic communications service provider (such as an Internet service provider, or “ISP”) that has been served a directive.117 Under the directive, the service provider is compelled to give the communications sent to or from that selector to the government (but not communications that are only “about” the selector, as described below).118 As of mid-2011, 91 percent of the

114

NSA DCLPO REPORT, supra, at 4; PCLOB March 2014 Hearing Transcript, supra, at 57 (statement of

Rajesh De, General Counsel, NSA) (noting that a name cannot be tasked).

115

NSA DCLPO REPORT, supra, at 6.

116

OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE STATISTICAL TRANSPARENCY REPORT REGARDING USE OF

NATIONAL SECURITY AUTHORITIES: ANNUAL STATISTICS FOR CALENDAR YEAR 2013, at 1 (June 26, 2014), available at

http://www.dni.gov/files/tp/National_Security_Authorities_Transparency_Report_CY2013.pdf. In calculating

this estimate, the government counted two known people using one tasked email address as two targets and

one person known to use two tasked email addresses as one target. The number of targets is an estimate

because the government may not be aware of all of the users of a particular tasked selector.

117

The Intelligence Community’s Collection Programs Under Title VII of the Foreign Intelligence

Surveillance Act, supra, at 3. See also PCLOB March 2014 Hearing Transcript at 70 (statement of Rajesh De,

General Counsel, NSA) (noting any recipient company “would have received legal process”).

118

PCLOB March 2014 Hearing Transcript at 70; see also NSA DCLPO REPORT, supra, at 5.

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Internet communications that the NSA acquired each year were obtained through PRISM collection.119
The government has not declassified the specific ISPs that have been served directives to undertake PRISM collection, but an example using a fake United States company (“USA-ISP Company”) may clarify how PRISM collection works in practice: The NSA learns that John Target, a non-U.S. person located outside the United States, uses the email address “johntarget@usa-ISP.com” to communicate with associates about his efforts to engage in international terrorism. The NSA applies its targeting procedures (described below) and “tasks” johntarget@usa-ISP.com to Section 702 acquisition for the purpose of acquiring information about John Target’s involvement in international terrorism. The FBI would then contact USA-ISP Company (a company that has previously been sent a Section 702 directive) and instruct USA-ISP Company to provide to the government all communications to or from email address johntarget@usa-ISP.com. The acquisition continues until the government “detasks” johntarget@usa-ISP.com.
The NSA receives all PRISM collection acquired under Section 702. In addition, a copy of the raw data acquired via PRISM collection — and, to date, only PRISM collection — may also be sent to the CIA and/or FBI.120 The NSA, CIA, and FBI all must apply their own minimization procedures to any PRISM-acquired data.121
Before data is entered into systems available to trained analysts or agents, government technical personnel use technical systems to help verify that data sent by the provider is limited to the data requested by the government. To again use the John Target example above, if the NSA determined that johntarget@usa-ISP.com was not actually going to be used to communicate information about international terrorism, the government would send a detasking request to USA-ISP Company to stop further Section 702 collection on this email address. After passing on the detasking request to USA-ISP Company, the government would use its technical systems to block any further Section 702 acquisition from johntarget@usa-ISP.com to ensure that Section 702 collection against this address was immediately terminated.

119

Bates October 2011 Opinion, supra, at 29-30 and n.24, 2011 WL 10945618, at *25 & n.24.

120

Minimization Procedures used by the National Security Agency in Connection with Acquisitions of

Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978,

as Amended, § 6(c) (Oct. 31, 2011) (“NSA 2011 Minimization Procedures”), available at

http://www.dni.gov/files/documents/Minimization%20Procedures%20used%20by%20NSA%20in%20Con

nection%20with%20FISA%20SECT%20702.pdf.

121

NSA 2011 Minimization Procedures, supra, § 6(c).

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C. Upstream Collection
The NSA acquires communications from a second means, which is referred to as upstream collection. Upstream collection is different from PRISM collection because the acquisition occurs not with the compelled assistance of the United States ISPs, but instead with the compelled assistance (through a Section 702 directive) of the providers that control the telecommunications backbone over which communications transit.122 The collection therefore does not occur at the local telephone company or email provider with whom the targeted person interacts (which may be foreign telephone or Internet companies, which the government cannot compel to comply with a Section 702 directive), but instead occurs “upstream” in the flow of communications between communication service providers.123
Unlike PRISM collection, raw upstream collection is not routed to the CIA or FBI, and therefore it resides only in NSA systems, where it is subject to the NSA’s minimization procedures. 124 CIA and FBI personnel therefore lack any access to raw data from upstream collection. Accordingly, they cannot view or query such data in CIA or FBI systems.
The upstream acquisition of telephone and Internet communications differ from each other, and these differences affect privacy and civil liberty interests in varied ways.125 Each type of Section 702 upstream collection is discussed below. In conducting both types of upstream acquisition, NSA employs certain collection monitoring programs to identify anomalies that could indicate that technical issues in the collection platform are causing data to be overcollected.126

122

The Intelligence Community’s Collection Programs Under Title VII of the Foreign Intelligence

Surveillance Act, supra, at 3-4; see also PCLOB March 2014 Hearing Transcript, supra, at 26 (statement of

Rajesh De, General Counsel, NSA) (“The second type of collection is the shorthand referred to as upstream

collection. Upstream collection refers to collection from the, for lack of a better phrase, Internet backbone

rather than Internet service providers.”).

123

See PCLOB March 2014 Hearing Transcript, supra, at 26 (statement of Rajesh De, General Counsel,

NSA) (“This type of collection upstream fills a particular gap of allowing us to collect communications that are

not available under PRISM collection.”).

124

The Intelligence Community’s Collection Programs Under Title VII of the Foreign Intelligence

Surveillance Act, supra, at 4.

125

See PCLOB March 2014 Hearing Transcript, supra, at 27 (statement of Rajesh De, General Counsel,

NSA).

126

AUGUST 2013 SEMIANNUAL ASSESSMENT, supra, at 29.

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1. Upstream Collection of Telephone Communications
Like PRISM collection, the upstream collection of telephone communications begins with the NSA’s tasking of a selector.127 The same targeting procedures that govern the tasking of an email address in PRISM collection also apply to the tasking of a telephone number in upstream collection.128 Prior to tasking, the NSA therefore is required to assess that the specific telephone number to be tasked is used by a non-U.S. person reasonably believed to be located outside the United States from whom the NSA assesses it may acquire the types of foreign intelligence information authorized under one of the Section 702 certifications. Once the targeting procedures have been applied, the NSA sends the tasked telephone number to a United States electronic communication service provider to initiate acquisition.129 The communications acquired, with the compelled assistance of the provider, are limited to telephone communications that are either to or from the tasked telephone number that is used by the targeted person. Upstream telephony collection therefore does not acquire communications that are merely “about” the tasked telephone number.130
2. Upstream Collection of Internet “Transactions”
The process of tasking selectors to acquire Internet transactions is similar to tasking selectors to PRISM and upstream telephony acquisition, but the actual acquisition is substantially different. Like PRISM and upstream telephony acquisition, the NSA may only target non-U.S. persons by tasking specific selectors to upstream Internet transaction collection.131 And, like other forms of Section 702 collection, selectors tasked for upstream Internet transaction collection must be specific selectors (such as an email address), and may not be key words or the names of targeted individuals.132
Once tasked, selectors used for the acquisition of upstream Internet transactions are sent to a United States electronic communication service provider to acquire communications that are transiting through circuits that are used to facilitate Internet

127

PCLOB March 2014 Hearing Transcript, supra, at 26 (statement of Rajesh De, General Counsel, NSA);

id. at 51-53 (statement of Brad Wiegmann, Deputy Assistant Attorney General, National Security Division,

DOJ).

128

NSA DCLPO REPORT, supra, at 6.

129

PCLOB March 2014 Hearing Transcript, supra, at 53-54 (statements of Rajesh De, General Counsel,

NSA, and Brad Wiegmann, Deputy Assistant Attorney General, National Security Division, DOJ).

130

Bates October 2011 Opinion, supra, at 15, 2011 WL 10945618, at *5.

131

NSA DCLPO REPORT, supra, at 5-6.

132

NSA DCLPO REPORT, supra, at 4; PCLOB March 2014 Hearing Transcript, supra, at 57 (statement of

Rajesh De, General Counsel, NSA) (noting that a name cannot be tasked).

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communications, what is referred to as the “Internet backbone.”133 The provider is compelled to assist the government in acquiring communications across these circuits. To identify and acquire Internet transactions associated with the Section 702–tasked selectors on the Internet backbone, Internet transactions are first filtered to eliminate potential domestic transactions, and then are screened to capture only transactions containing a tasked selector. Unless transactions pass both these screens, they are not ingested into government databases. As of 2011, the NSA acquired approximately 26.5 million Internet transactions a year as a result of upstream collection.134
Upstream collection acquires Internet transactions that are “to,” “from,” or “about” a tasked selector.135 With respect to “to” and “from” communications, the sender or a recipient is a user of a Section 702–tasked selector. This is not, however, necessarily true for an “about” communication. An “about” communication is one in which the tasked selector is referenced within the acquired Internet transaction, but the target is not necessarily a participant in the communication.136 If the NSA therefore applied its targeting procedures to task email address “JohnTarget@example.com,” to Section 702 upstream collection, the NSA would potentially acquire communications routed through the Internet backbone that were sent from email address JohnTarget@example.com, that were sent to JohnTarget@example.com, and communications that mentioned JohnTarget@example.com in the body of the message. The NSA would not, however, acquire communications simply because they contained the name “John Target.” In a still-classified September 2008 opinion, the FISC agreed with the government’s conclusion that the government’s target when it acquires an “about” communication is not the sender or recipients of the communication, regarding whom the government may know nothing, but instead the targeted user of the Section 702–tasked selector. The FISC’s reasoning relied upon language in a congressional report, later quoted by the FISA Court of Review, that the

133

The Intelligence Community’s Collection Programs Under Title VII of the Foreign Intelligence

Surveillance Act, supra, at 3-4.

134

Bates October 2011 Opinion, supra, at 73, 2011 WL 10945618, at *26.

135

See, e.g., October 2011 Opinion, supra, at 15-16, 2011 WL 10945618, at *5-6 (describing the

government’s representations regarding upstream collection in the first Section 702 certification the FISC

reviewed).

136

Bates October 2011 Opinion, supra, at 15, 2011 WL 10945618, at *5; Joint Statement of Lisa O.

Monaco, Assistant Attorney General, National Security Division, Dept. of Justice, et. al., Hearing Before the

House Permanent Select Comm. on Intelligence: FISA Amendments Act Reauthorization, at 7 (Dec. 8, 2011)

(“December 2011 Joint Statement”) (statement of Brad Wiegmann, Deputy Assistant Attorney General,

National Security Division, DOJ), available at

http://www.dni.gov/files/documents/Joint%20Statement%20FAA%20Reauthorization%20Hearing%20-

%20December%202011.pdf; PCLOB March 2014 Hearing Transcript, supra, at 55.

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privacy intrusion even in the absence of abuse, and a number of the Board’s recommendations are motivated by a desire to provide more clarity and transparency regarding the government’s activities in the Section 702 program.

II. Value of the Section 702 Program
A. Advantages and Unique Capabilities
The Section 702 program makes a substantial contribution to the government’s efforts to learn about the membership, goals, and activities of international terrorist organizations, and to prevent acts of terrorism from coming to fruition. Section 702 allows the government to acquire a greater range of foreign intelligence than it otherwise would be able to obtain, and it provides a degree of flexibility not offered by comparable surveillance authorities.
Because the oversight mandate of the Board extends only to those measures taken to protect the nation from terrorism, our focus in this section is limited to the counterterrorism value of the Section 702 program, although the program serves a broader range of foreign intelligence purposes.457
Section 702 enables the government to acquire the contents of international telephone and Internet communications in pursuit of foreign intelligence. While this ability is to some degree provided by other legal authorities, particularly “traditional” FISA and Executive Order 12333, Section 702 offers advantages over these other authorities.
In order to conduct electronic surveillance under “traditional” FISA (i.e., Title I of the Foreign Intelligence Surveillance Act of 1978), the government must persuade the Foreign Intelligence Surveillance Court (“FISC” or “FISA court”), under a standard of probable cause, that an individual it seeks to target for surveillance is an agent of a foreign power, and that the telephone number or other communications facility it seeks to monitor is used, or is about to be used, by a foreign power or one of its agents.458 In addition, a high-level executive branch official must certify (with a supporting statement of facts) that a significant purpose of the surveillance is to obtain foreign intelligence, and that the information sought cannot reasonably be obtained through normal investigative techniques.459 To meet these requirements and satisfy the probable cause standard, facts must be gathered by the Intelligence Community, a detailed FISA court application must be drafted by the DOJ, the facts in the application must be vetted for accuracy, the senior

457

See page 25 of this Report.

458

50 U.S.C. § 1805(a)(2).

459

50 U.S.C. § 1804(a)(6).

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government official’s certification must be prepared, the Attorney General must approve the application, and the application must be submitted to the FISA court, which must review it, determine if the pertinent standards are met, and, if so, grant it.460 These steps consume significant time and resources.461 In practice, FISA applications are lengthy and the process not infrequently takes weeks from beginning to final approval.462
This system is deliberately rigorous, for it was designed to provide a check on the government’s surveillance of U.S. persons and other people located in the United States. Its goal was to prevent the abusive and politically motivated surveillance of U.S. persons and domestic activists that had occurred under the guise of foreign intelligence surveillance in the mid-twentieth century. Under FISA, electronic surveillance may be directed only at individuals who are acting at the behest of a foreign power (such as a foreign government or international terrorist organization), only for legitimate foreign intelligence purposes, and only where the aims of the surveillance cannot be achieved by other means.463 The statute’s procedural hurdles help to ensure that surveillance takes place only after detailed analysis, a strong factual showing, measured judgment by high-level executive branch officials, and approval by a neutral judge.
Although the FISA process was designed for surveillance directed at people located in the United States, the government later sought and obtained approval from the FISA court to use this process to target foreign persons located outside the United States as well. Developments in communications technology and the Internet services industry meant that such surveillance could feasibly be conducted from within the United States in some instances.464 Utilizing the process of traditional FISA to target significant numbers of individuals overseas, however, required considerable time and resources, and government officials have argued that it slowed and sometimes prevented the acquisition of important intelligence.465

460

See 50 U.S.C. §§ 1804, 1805.

461

These steps also must be repeated each time the government wishes to continue the surveillance

beyond the time limit specified in the original order. See 50 U.S.C. § 1805(d).

462

FISA permits surveillance to begin prior to court approval in emergency situations, but in order to

exercise this option the Attorney General must make a determination that an emergency exists and that the

factual basis required for the surveillance exists, and an application must be submitted to the FISA court for

the normal probable cause determination within seven days. See 50 U.S.C. § 1805(e).

463

Moreover, when the target of surveillance is a U.S. person, that person must be “knowingly” acting on

behalf of a foreign power. See 50 U.S.C. § 1801(b)(1), (2). An exception to the requirement that the target be

acting on behalf of a foreign power permits a so-called “lone wolf” with no apparent connection to a foreign

power to be targeted, if there is probable cause that the person is engaged in international terrorism or

proliferation of weapons of mass destruction. See 50 U.S.C. §§ 1801(b)(1)(C), (D), 1805(a)(2)(A).

464

See pages 16-18 of this Report.

465

See pages 18-19 of this Report.

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Section 702 imposes significantly fewer limits on the government when it targets non–U.S. persons located abroad, permitting greater flexibility and a dramatic increase in the number of people who can realistically be targeted.466 Rather than approving or denying individual targeting requests, the FISA court authorizes the surveillance program as a whole, approving the certification in which the government identifies the types of foreign intelligence information sought and the procedures the government uses to target people and handle the information it obtains.467 Targets of surveillance need not be agents of foreign powers; instead, the government may target any non-U.S. person overseas whom it reasonably believes has or is likely to communicate designated types of foreign intelligence.468 The government need not have probable cause for this belief, or for its belief that the target uses the particular selector, such as a telephone number or email address, to be monitored. There is no requirement that the information sought cannot be acquired through normal investigative techniques. Targeting decisions are made by NSA analysts and reviewed only within the executive branch.469 Once monitoring of a particular person begins, it may continue until new information indicates that the person no longer is an appropriate target. Whether a person remains a valid target must be reviewed annually.470
These differences allow the government to target a much wider range of foreigners than was possible under traditional FISA. For instance, people who might have knowledge about a suspected terrorist can be targeted even if those people are not themselves involved in terrorism or any illegitimate activity.
In addition to expanding the pool of potential surveillance targets, Section 702 also enables a much greater degree of flexibility, allowing the government to quickly begin monitoring new targets and communications facilities without the delay occasioned by the requirement to secure approval from the FISA court for each targeting decision.
As a result of these two factors, the number of people who can feasibly be targeted is significantly greater under Section 702 than under the traditional FISA process. And

466

Under FISA and the FISA Amendments Act, the term “United States person” includes U.S. citizens,

legal permanent residents, unincorporated associations with a substantial number of U.S. citizens or legal

permanent residents as members, and corporations incorporated in the United States. It does not include

associations or corporations that qualify as a “foreign power.” See 50 U.S.C. § 1801(i).

467

50 U.S.C. § 1881a(a), (i).

468

NSA DIRECTOR OF CIVIL LIBERTIES AND PRIVACY OFFICE REPORT: NSA’S IMPLEMENTATION OF FOREIGN

INTELLIGENCE SURVEILLANCE ACT SECTION 702, at 4 (April 16, 2014) (“NSA DCLPO REPORT”), available at

http://www.dni.gov/files/documents/0421/702%20Unclassified%20Document.pdf.

469

NSA DCLPO REPORT, supra, at 4-5.

470

Analysts are required to review the communications acquired from a target at least annually, to

ensure that the targeting is still expected to provide the foreign intelligence sought and that the person

otherwise remains an appropriate target under Section 702. See NSA DCLPO REPORT, supra, at 6.

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indeed, the number of targets under the program has been steadily increasing since the statute was enacted in 2008.
The government also conducts foreign intelligence surveillance outside of the United States against non-U.S. persons under the authority of Executive Order 12333. In some instances, this surveillance can capture the same communications that the government obtains within the United States through Section 702. And because this collection takes place outside the United States, it is not restricted by the detailed rules of FISA outlined above.471 Nevertheless, Section 702 offers advantages over Executive Order 12333 with respect to electronic surveillance. The fact that Section 702 collection occurs in the United States, with the compelled assistance of electronic communications service providers, contributes to the safety and security of the collection, enabling the government to protect its methods and technology. In addition, acquiring communications with the compelled assistance of U.S. companies allows service providers and the government to manage the manner in which the collection occurs. By helping to prevent incidents of overcollection and swiftly remedy problems that do occur, this arrangement can benefit the privacy of people whose communications are at risk of being acquired mistakenly.
B. Contributions to Counterterrorism
The Section 702 program has proven valuable in a number of ways to the government’s efforts to combat terrorism. It has helped the United States learn more about the membership, leadership structure, priorities, tactics, and plans of international terrorist organizations. It has enabled the discovery of previously unknown terrorist operatives as well as the locations and movements of suspects already known to the government. It has led to the discovery of previously unknown terrorist plots directed against the United States and foreign countries, enabling the disruption of those plots.
While the Section 702 program is indeed a program, operating to some degree as a cohesive whole and approved by the FISA court accordingly, its implementation consists entirely of targeting specific individuals about whom the government already knows something. Because surveillance is conducted on an individualized basis where there is reason to target a particular person, it is perhaps unsurprising that the program yields a great deal of useful information.
The value of the Section 702 program is to some extent reflected in the breadth of NSA intelligence reporting based on information derived from the program. Since 2008, the number of signals intelligence reports based in whole or in part on Section 702 has

471

FISA does not generally cover surveillance conducted outside the United States, except where the

surveillance intentionally targets a particular, known U.S. person, or where it acquires radio communications

in which the sender and all intended recipients are located in the United States and the acquisition would

require a warrant for law enforcement purposes. See 50 U.S.C. §§ 1801(f), 1881c.

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increased exponentially. A significant portion of those reports relate to counterterrorism, and the NSA disseminates hundreds of reports per month concerning terrorism that include information derived from Section 702. Presently, over a quarter of the NSA’s reports concerning international terrorism include information based in whole or in part on Section 702 collection, and this percentage has increased every year since the statute was enacted. These reports are used by the recipient agencies and departments for a variety of purposes, including to inform senior leaders in government and for operational planning.
More concretely, information acquired from Section 702 has helped the Intelligence Community to understand the structure and hierarchy of international terrorist networks, as well as their intentions and tactics. In even the most well-known terrorist organizations, only a small number of individuals have a public presence. Terrorist groups use a number of practices to obscure their membership and activities. Section 702 has enabled the U.S. government to monitor these terrorist networks in order to learn how they operate and to understand how their priorities, strategies, and tactics continue to evolve.
Monitoring these networks under Section 702 has led the government to identify previously unknown individuals who are involved in international terrorism. Identifying such persons allows the government to pursue new efforts focusing on those individuals and the disruption of their activities, such as taking action to prevent them from entering the United States. Finally, the flexibility of Section 702 surveillance enables the government to effectively maintain coverage on particular individuals as they add or switch their modes of communications.
As important as discovering the identities of individuals engaged in international terrorism is determining where those individuals are located. Modern communications permit the members of a terrorist group, and even a small number of people involved in a specific plot, to be spread out all over the world. Information acquired from Section 702 has been used to monitor individuals believed to be engaged in terrorism.
In one case, for example, the NSA was conducting surveillance under Section 702 of an email address used by an extremist based in Yemen. Through that surveillance, the agency discovered a connection between that extremist and an unknown person in Kansas City, Missouri. The NSA passed this information to the FBI, which identified the unknown person, Khalid Ouazzani, and subsequently discovered that he had connections to U.S.based Al Qaeda associates, who had previously been part of an abandoned early stage plot to bomb the New York Stock Exchange. All of these individuals eventually pled guilty to providing and attempting to provide material support to Al Qaeda.
Finally, pursuit of the foregoing information under Section 702 has led to the discovery of previously unknown terrorist plots and has enabled the government to
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disrupt them. By providing the sites of specific targets of attacks, the means being contemplated to carry out the attacks, and the identities and locations of the participants, the Section 702 program has directly enabled the thwarting of specific terrorist attacks, aimed at the United States and at other countries.
For instance, in September 2009, the NSA monitored under Section 702 the email address of an Al Qaeda courier based in Pakistan. Through that collection, the agency intercepted emails sent to that address from an unknown individual located in the United States. Despite using language designed to mask their true intent, the messages indicated that the sender was urgently seeking advice on the correct mixture of ingredients to use for making explosives. The NSA passed this information to the FBI, which used a national security letter to identify the unknown individual as Najibullah Zazi, located near Denver, Colorado. The FBI then began intense monitoring of Zazi, including physical surveillance and obtaining legal authority to monitor his Internet activity. The Bureau was able to track Zazi as he left Colorado a few days later to drive to New York City, where he and a group of confederates were planning to detonate explosives on subway lines in Manhattan within the week. Once Zazi became aware that law enforcement was tracking him, he returned to Colorado, where he was arrested soon after. Further investigative work identified Zazi’s coconspirators and located bomb-making components related to the planned attack. Zazi and one of his confederates later pled guilty and cooperated with the government, while another confederate was convicted and sentenced to life imprisonment. Without the initial tip-off about Zazi and his plans, which came about by monitoring an overseas foreigner under Section 702, the subway-bombing plot might have succeeded.
In cases like the Zazi and Ouazzani investigations, one might ask whether the government could have monitored the communications of the overseas extremists without Section 702, using the traditional FISA process. In some instances, that might be the case. But the process of obtaining court approval for the surveillance under the standards of traditional FISA may, for the reasons explained above, limit the number of people the government can feasibly target and increase the delay before surveillance on a target begins, such that significant communications could be missed.
The Board has received information about other instances in which the Section 702 program has played a role in counterterrorism efforts. Most of these instances are included in a compilation of 54 “success stories” involving the Section 215 and 702 programs that was prepared by the Intelligence Community last year in the wake of Edward Snowden’s unauthorized disclosures. Other examples have been shared with the Board more recently. Information about these cases has not been declassified, but some general information about them can be shared. In approximately twenty cases that we have reviewed, surveillance conducted under Section 702 was used in support of an already existing counterterrorism investigation, while in approximately thirty cases, Section 702
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information was the initial catalyst that identified previously unknown terrorist operatives and/or plots. In the vast majority of these cases, efforts undertaken with the support of Section 702 appear to have begun with narrowly focused surveillance of a specific individual whom the government had a reasonable basis to believe was involved with terrorist activities, leading to the discovery of a specific plot, after which a short, intensive period of further investigation ensued, leading to the identification of confederates and arrests of the plotters. A rough count of these cases identifies well over one hundred arrests on terrorism-related offenses. In other cases that did not lead to disruption of a plot or apprehension of conspirators, Section 702 appears to have been used to provide warnings about a continuing threat or to assist in investigations that remain ongoing. Approximately fifteen of the cases we reviewed involved some connection to the United States, such as the site of a planned attack or the location of operatives, while approximately forty cases exclusively involved operatives and plots in foreign countries.472
C. Contributions to Other Foreign Intelligence Efforts
As noted above, the oversight mandate of our Board extends only to those measures taken by the government to protect the nation from terrorism. Some governmental activities, including the Section 702 program, are not aimed exclusively at preventing terrorism but also serve other foreign intelligence and foreign policy goals. The Section 702 program, for instance, is also used for surveillance aimed at countering the efforts of proliferators of weapons of mass destruction.473 Given that these other foreign intelligence purposes of the program are not strictly within the Board’s mandate, we have not scrutinized the effectiveness of Section 702 in contributing to those other purposes with the same rigor that we have applied in assessing the program’s contribution to counterterrorism. Nevertheless, we have come to learn how the program is used for these other purposes, including, for example, specific ways in which it has been used to combat weapons proliferation and the degree to which the program supports the government’s efforts to gather foreign intelligence for the benefit of policymakers. Our assessment is that the program is highly valuable for these other purposes, in addition to its usefulness in supporting efforts to prevent terrorism.

472

The examples described in this paragraph do not represent an exhaustive list of all instances in

which the Section 702 program has proven useful, even in counterterrorism efforts.

473

See S. Rep. No. 112-229, at 32 (2012) (appendix reproducing Background Paper on Title VII of FISA

Prepared by the Department of Justice and the Office of the Director or National Intelligence) (“Section 702 . . .

lets us collect information about the intentions and capabilities of weapons proliferators and other foreign

adversaries who threaten the United States.”).

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III. Privacy and Civil Liberties Implications of the Section 702 Program
A. Nature of the Collection under Section 702
1. Programmatic Surveillance
Unlike the telephone records program conducted by the NSA under Section 215 of the USA PATRIOT Act, the Section 702 program is not based on the indiscriminate collection of information in bulk. Instead, the program consists entirely of targeting specific persons about whom an individualized determination has been made. Once the government concludes that a specific non-U.S. person located outside the United States is likely to communicate certain types of foreign intelligence information — and that this person uses a particular communications “selector,” such as an email address or telephone number — the government acquires only those communications involving that particular selector.474
Every individual decision to target a particular person and acquire the communications associated with that person must be documented and approved by senior analysts within the NSA before targeting. Each targeting decision is later reviewed by an oversight team from the DOJ and the ODNI (“the DOJ/ODNI oversight team”) in an effort to ensure that the person targeted is reasonably believed to be a non-U.S. person located abroad, and that the targeting has a legitimate foreign intelligence purpose. The FISA court does not approve individual targeting decisions or review them after they are made.
Although the “persons” who may be targeted under Section 702 include corporations, associations, and entities as well as individuals,475 the government is not exploiting any legal ambiguity by “targeting” an entity like a major international terrorist organization and then engaging in indiscriminate or bulk collection of communications in order to later identify a smaller subset of communications that pertain to the targeted entity. To put it another way, the government is not collecting wide swaths of communications and then combing through them for those that are relevant to terrorism or contain other foreign intelligence. Rather, the government first identifies a communications identifier, like an email address, that it reasonably believes is used by the target, whether that target is an individual or an entity. It then acquires only those communications that are related to this identifier.476 In other words, selectors are always

474

See pages 20-23 and 32-33 of this Report.

475

See 50 U.S.C. §§ 1801(m), 1881a(a).

476

The NSA’s “upstream collection” (described elsewhere in this Report) may require access to a larger

body of international communications than those that contain a tasked selector. Nevertheless, the

government has no ability to examine or otherwise make use of this larger body of communications, except to

promptly determine whether any of them contain a tasked selector. Only those communications (or more

precisely, “transactions”) that contain a tasked selector go into government databases. See pages 36-41 of this

Report.

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For now, therefore, “about” collection is an inextricable part of the NSA’s upstream collection, which we agree has unique value overall that militates against eliminating it entirely. As a result, any policy debate about whether “about” collection should be eliminated in whole or in part may be, to some degree, a fruitless exercise under present conditions. From our perspective, given a choice between the status quo and crippling upstream collection as a whole, we believe the status quo is reasonable. As explained later, however, because of the serious and novel questions raised by “about” collection as a constitutional and policy matter, we recommend that the NSA develop technology that would allow it to selectively limit or segregate certain forms of “about” communications — so that a debate can be had in which the national security benefits of the different forms of “about” collection are weighed against their respective privacy implications.
We emphasize, however, that our acceptance of “about” collection rests on the considerations described above — the inextricability of the practice from a broader form of collection that has unique value, and the limited nature of what “about” collection presently consists of: the acquisition of Internet communications that include the communications identifier of a targeted person. Although those identifiers may sometimes be found in the body of a communication, the government is not making any effort to obtain communications based on the ideas expressed therein. We are not condoning expanding “about” collection to encompass names or key words, nor to its use in PRISM collection, where it is not similarly inevitable. Finally, our unwillingness to call for the end of “about” collection is also influenced by the constraints that presently govern the use of such communications after acquisition. As with all upstream collection, “about” communications have a default retention period of two years instead of five, are not routed to the CIA or FBI, and may not be queried using U.S. person identifiers.
4. Multi-Communication Transactions (“MCTs”)
The technical means used to conduct the NSA’s upstream collection result in another issue with privacy implications. Because of the manner in which the agency intercepts communications directly from the Internet “backbone,” the NSA sometimes acquires communications that are not themselves authorized for collection (because they are not to, from, or “about” a tasked selector) in the process of acquiring a communication that is authorized for collection (because it is to, from, or “about” a tasked selector). In 2011, the FISA court held that the NSA’s procedures for addressing this problem were inadequate, and that without adequate procedures this aspect of the NSA’s collection practices violated the Fourth Amendment. The government subsequently altered its procedures to the satisfaction of the FISA court. Based on the Board’s assessment of how those procedures are being implemented today, the Board agrees that existing practices strike a reasonable balance between national security and privacy.
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EXHIBIT D

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LIBERTY AND SECURITY IN A CHANGING WORLD
12 December 2013
Report and Recommendations of The President’s Review Group on Intelligence
and Communications Technologies

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Transmittal Letter
Dear Mr. President: We are honored to present you with the Final Report of the Review
Group on Intelligence and Communications Technologies. Consistent with your memorandum of August 27, 2013, our recommendations are designed to protect our national security and advance our foreign policy while also respecting our longstanding commitment to privacy and civil liberties, recognizing our need to maintain the public trust (including the trust of our friends and allies abroad), and reducing the risk of unauthorized disclosures.
We have emphasized the need to develop principles designed to create strong foundations for the future. Although we have explored past and current practices, and while that exploration has informed our recommendations, this Report should not be taken as a general review of, or as an attempt to provide a detailed assessment of, those practices. Nor have we generally engaged budgetary questions (although some of our recommendations would have budgetary implications).
We recognize that our forty-six recommendations, developed over a relatively short period of time, will require careful assessment by a wide range of relevant officials, with close reference to the likely consequences. Our goal has been to establish broad understandings and principles that
1

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can provide helpful orientation during the coming months, years, and decades.
We are hopeful that this Final Report might prove helpful to you, to Congress, to the American people, and to leaders and citizens of diverse nations during continuing explorations of these important questions. Richard A. Clarke Michael J. Morell Geoffrey R. Stone Cass R. Sunstein Peter Swire
2

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According to NSA, section 702 “is the most significant tool in NSA collection arsenal for the detection, identification, and disruption of terrorist threats to the US and around the world.” To cite just one example, collection under section 702 “was critical to the discovery and disruption” of a planned bomb attack in 2009 against the New York City subway system” and led to the arrest and conviction of Najibullah Zazi and several of his co-conspirators.145
According to the Department of Justice and the Office of the Director of National Intelligence in a 2012 report to Congress:
Section 702 enables the Government to collect information effectively and efficiently about foreign targets overseas and in a manner that protects the privacy and civil liberties of Americans. Through rigorous oversight, the Government is able to evaluate whether changes are needed to the procedures or guidelines, and what other steps may be appropriate to safeguard the privacy of personal information. In addition, the Department of Justice provides the joint assessments and other reports to the FISC. The FISC has been actively involved in the review of section 702 collection. Together, all of these mechanisms ensure thorough and continuous oversight of section 702 activities. . . .
Section 702 is vital to keeping the nation safe. It provides information about the plans and identities of terrorists,
145 National Security Agency, The National Security Agency: Missions, Authorities, Oveersight and Partnerships (August 9, 2013).
143

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allowing us to glimpse inside terrorist organizations and obtain information about how those groups function and receive support. In addition, it lets us collect information about the intentions and capabilities of weapons proliferators and other foreign adversaries who threaten the United States.146
In reauthorizing section 702 for an additional five years in 2012, the Senate Select Committee on Intelligence concluded:
[T]he authorities provided [under section 702] have greatly increased the government’s ability to collect information and act quickly against important foreign intelligence targets. The Committee has also found that [section 702] has been implemented with attention to protecting the privacy and civil liberties of US persons, and has been the subject of extensive oversight by the Executive branch, the FISC, as well as the Congress. . . . [The] failure to reauthorize [section 702] would “result in a loss of significant intelligence and impede the ability of the Intelligence Community to respond quickly to new threats and intelligence opportunities.”147
Our own review is not inconsistent with this assessment. During the course of our analysis, NSA shared with the Review Group the details of 54
146 Background Paper on Title VII of FISA Prepared by the Department of Justice and the Office of the Director of National Intelligence (ODNI), Appendix to Senate Select Committee on Intelligence, Report on FAA Sunsets Extension Act of 2012, 112th Congress, Cong., 2d Session (June 7, 2012). 147 Senate Select Committee on Intelligence, Report on FAA Sunsets Extension Act of 2012, 112th Congress, 2d Session (June 7, 2012).
144

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counterterrorism investigations since 2007 that resulted in the prevention of terrorist attacks in diverse nations and the United States. In all but one of these cases, information obtained under section 702 contributed in some degree to the success of the investigation. Although it is difficult to assess precisely how many of these investigations would have turned out differently without the information learned through section 702, we are persuaded that section 702 does in fact play an important role in the nation’s effort to prevent terrorist attacks across the globe.
* * * * * * * * *
Although section 702 has clearly served an important function in helping the United States to uncover and prevent terrorist attacks both in the United States and around the world (and thus helps protect our allies), the question remains whether it achieves that goal in a way that unnecessarily sacrifices individual privacy and damages foreign relations. Because the effect of section 702 on United States persons is different from its effect on non-United States persons, it is necessary to examine this question separately for each of these categories of persons.
C. Privacy Protections for United States Persons Whose Communications are Intercepted Under Section 702 Recommendation 12
We recommend that, if the government legally intercepts a communication under section 702, or under any other authority that justifies the interception of a communication on the ground that it is directed at a non-United States person who is located outside the United
145

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EXHIBIT E

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Case4:08-cv-04373-JSW Document285-6 Filed09/29/14 Page1 of 2

1 JOYCE R. BRANDA Acting Assistant Attorney General
2 JOSEPH H. HUNT Director, Federal Programs Branch
3 ANTHONY J. COPPOLINO Deputy Branch Director
4 JAMES J. GILLIGAN Special Litigation Counsel
5 james.gilligan@usdoj.gov MARCIA BERMAN
6 Senior Trial Counsel marcia.berman@usdoj.gov
7 RODNEY PATTON Trial Attorney
8 JULIA BERMAN Trial Attorney
9 U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, NW
10 Washington, D.C. 20001 Phone: (202) 616-8480; Fax: (202) 616-8470
11 Attorneys for the Government Defs. in their Official Capacity

12

13

14

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

15

OAKLAND DIVISION

16

17

)

)

18 CAROLYN JEWEL, et al.,

)

)

19

)

Plaintiffs,

)

20

)

v.

)

21

)

NATIONAL SECURITY AGENCY, et al., )

22

)

)

23

Defendants.

)

)

24

)

)

25

Case No. 4:08-cv-04373-JSW PROPOSED ORDER

26

27

The above-captioned case is before the Court on Plaintiffs’ Motion for Partial Summary

28 Judgment, ECF No. 261. The Court, having considered the Plaintiffs’ motion, the Government

Defendants’ opposition, and any reply thereto, IT IS HEREBY ORDERED, that Plaintiffs’

Case4:08-cv-04373-JSW Document285-6 Filed09/29/14 Page2 of 2

1 motion for partial summary judgment is DENIED.

2 AND IT IS SO ORDERED.

3

4

5

Dated: __________________

6

_________________________________ JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 
 Case4:08-cv-04373-JSW Document299-2 Filed11/07/14 Page1 of 31

1 JOYCE R. BRANDA Acting Assistant Attorney General
2 JOSEPH H. HUNT
3 Director, Federal Programs Branch

4 ANTHONY J. COPPOLINO Deputy Branch Director
5
JAMES J. GILLIGAN 6 Special Litigation Counsel

7 MARCIA BERMAN Senior Trial Counsel
8
RODNEY PATTON 9 Trial Attorney

10 JULIA BERMAN

Trial Attorney

11

U.S. Department of Justice, Civil Division

12 20 Massachusetts Avenue, NW, Rm. 6102

Washington, D.C. 20001

13 Phone: (202) 514-3358; Fax: (202) 616-8470

Email: james.gilligan@usdoj.gov

14

Attorneys for the Government Defendants

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17

OAKLAND DIVISION

_______________________________________

18

)

19 CAROLYN JEWEL, et al.,

) Case No. 4:08-cv-4373-JSW )

) GOVERNMENT DEFENDANTS’

20

Plaintiffs,

) REPLY IN SUPPORT OF THEIR ) CROSS-MOTION FOR PARTIAL

21

) SUMMARY JUDGMENT ON

v.

) PLAINTIFFS’ FOURTH

22

) AMENDMENT CLAIM

) 23 NATIONAL SECURITY AGENCY, et. al., ) Date: December 19, 2014

) Time: 9:00 a.m.

24

Defendants.

) Courtroom 5, Second Floor ) Hon. Jeffrey S. White

25

)

26

27

28

Jewel v. NSA, No. 4:08-cv-4373-JSW: Gov’t Defs.’ Reply in Support of Cross-Motion for Partial Summary Judgment on Pls.’ Fourth Amendment Claim

Case4:08-cv-04373-JSW Document299-2 Filed11/07/14 Page2 of 31

1

TABLE OF CONTENTS

2

PAGE

3 INTRODUCTION ...........................................................................................................................1

4 ARGUMENT...................................................................................................................................1

5 I.
6

PLAINTIFFS HAVE ADDUCED NO COMPETENT EVIDENCE TO SUPPORT THEIR STANDING OR THE MERITS OF THEIR CLAIM ..........................1

7 A. Plaintiffs Have Not Presented Competent Evidence of the

8

Equipment Actually Installed in the SG3 Secure Room or

Its Purposes ..............................................................................................................2 9

10

B. Plaintiffs Have Presented No Competent Evidence of NSA

Involvement in Activities Conducted in the SG3 Secure Room..............................4

11

C. Plaintiffs Have Presented No Competent Evidence of Ongoing

12

Activity at the Folsom Street Facility, or Elsewhere, to Support

13

Their Claims.............................................................................................................5

14 II.
15
16
17
18
19 III.
20

PLAINTIFFS’ CLAIMS OF FOURTH AMENDMENT SEARCHES AND SEIZURES ALSO FAIL AS A MATTER OF LAW ................................................7
A. In Addition to the Lack of Supporting Evidence, Plaintiffs Offer No Legal Support for Their ”Stage 1” Seizure Claim .............................................7
B. Plaintiffs Also Offer No Legal Support for Their “Stage 3” Search Claim ..........................................................................................................10
UPSTREAM COLLECTION IS REASONABLE UNDER THE SPECIAL NEEDS DOCTRINE .........................................................................................................13

21 IV. 22
23

IN THE ALTERNATIVE, PLAINTIFFS’ FOURTH AMENDMENT CLAIM MUST BE DISMISSED BECAUSE IT CANNOT BE LITIGATED WITHOUT NATIONAL-SECURITY INFORMATION PROTECTED BY THE STATE SECRETS PRIVILEGE ........................................................................20

24 CONCLUSION..............................................................................................................................21 25

26

27

28

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i

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1

TABLE OF AUTHORITIES

2 CASES

PAGE(S)

3

Al-Haramain Islamic Found., Inc. v. U.S. Dep’t of the Treasury, 4 686 F.3d 965 (9th Cir. 2012) .................................................................................................... 14

5 Arizona v. Hicks,
6 480 U.S. 321 (1987)................................................................................................................... 10

7 Barry v. Trustees of the Int’l Ass’n Full-Time Salaried Officers & Employees
8 of Outside Local Unions & Dist. Counsel’s (Iron Workers) Pension Plan, 467 F. Supp. 2d 91 (D.D.C. 2006) ...................................................................................... 15, 16
9

10

Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988)................................................................................................................... 15

11
Berger v. State of New York, 12 388 U.S. 41 (1967)....................................................................................................................... 9

13 Bhasin v. Bluefield Regional Med. Ctr., Inc., 14 62 F.3d 1414 (Table), 1995 WL 465796 (4th Cir. Aug. 8, 1995) ............................................... 6

15 Board of Educ. of Indep. Sch. Dist. of Pottawatomie Co. v. Earls, 16 536 U.S. 832 (2002) .................................................................................................................. 19

17 Bourgeois v. Peters, 387 F.3d 1303 (11th Cir. 2004) ................................................................................................. 12
18
19 Camara v. Municipal Court, 387 U.S. 523 (1967) .................................................................................................................. 13
20 Cassidy v. Cherthoff,
21 471 F.3d 67 (2d Cir. 2006)......................................................................................................... 18
22 Chertkova v. Connecticut Gen. Life Ins. Co.,
23 210 F.3d 354 (Table), 2000 WL 349277 (2d Cir. Apr. 4, 2000) ................................................ 5

24 Clapper v. Amnesty Int’l, 25 133 S. Ct. 1138 (2013) .............................................................................................................. 12

26 Dimas v. Michigan Dep’t of Civil Rights, 27 2004 WL 1397558 (W.D. Mich. Mar. 19, 2004) ........................................................................ 6
28 Family Home & Fin. Ctr., Inc. v. FHLMC, 525 F.3d 822 (9th Cir. 2008) ...................................................................................................... 6

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1

Florida v. Jardines, 133 S. Ct. 1409 (2013) .............................................................................................................. 10

2 Gathercole v. Global Assocs.,
3 560 F. Supp. 642 (N.D. Cal. 1983) ........................................................................................... 16

4 Gilbrook v. City of Westminster, 5 177 F.3d 839 (9th Cir. 1999) ..................................................................................................... 15

6 Herrera v. Perry, 7 2014 WL 2557644 (C.D. Cal. Mar. 19, 2014) ............................................................................ 6

8 Hobson v. Wilson, 556 F. Supp. 1157 (D.D.C. 1982) ............................................................................................. 16
9
10 Illinois v. Caballes, 543 U.S. 405 (2005)................................................................................................................... 11
11 Indianapolis v. Edmond,
12 531 U.S. 32 (2000)..................................................................................................................... 14
13 In re James Wilson Assocs.,
14 965 F.2d 160 (7th Cir. 1992) ....................................................................................................... 3

15 Johnson v. City of Pleasanton, 16 982 F.2d 350 (9th Cir. 1992) ..................................................................................................... 15

17 Katz v. United States, 18 389 U.S. 347 (1967)..................................................................................................................... 9

19 Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998) .................................................................................................. 20
20

21

LeClair v. Hart, 800 F.2d 692 (7th Cir. 1986) ....................................................................................................... 9

22
MacWade v. Kelly, 23 460 F.3d 260 (2d Cir. 2006) ................................................................................................ 13, 18

24 Mariani v. United States, 25 80 F. Supp. 2d 352 (M.D. Pa. 1999) ......................................................................................... 16

26 Maryland v. King, 27 133 S. Ct. 1958 (2013)............................................................................................................... 14

28

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1

Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) ............................................................................................................ 13, 19

2 In re Oracle Corp. Sec. Litig.,
3 627 F.3d 376 (9th Cir. 2010) ....................................................................................................... 6

4 Ortega v. O'Connor, 5 146 F.3d 1149 (9th Cir. 1998) ..................................................................................................... 5

6 Perry v. Ethan Allen, Inc., 7 115 F.3d 143 (2d Cir. 1997) ........................................................................................................ 6

8 Rakas v. Illinois, 439 U.S. 128 (1978)................................................................................................................... 12
9
10 [Redacted], 2011 WL 10945618 (FISC Oct. 3, 2011) .................................................................................. 19
11 Riley v. California,
12 134 S. Ct. 2473 (2014) .............................................................................................................. 18
13 SW Traders LLC v. United Specialty Ins. Co.,
14 409 Fed. Appx. 96 (9th Cir. 2010) ............................................................................................. 6

15 Samson v. California, 16 547 U.S. 843 (2006)................................................................................................................... 18

17 Sanchez v. Echo, Inc., 18 2008 WL 2951339 (E.D. Pa. Jan. 9, 2008) ................................................................................. 6

19 In re Search of Info. Associated with [Redacted]@mac.com, 2014 WL 1377793 (D.D.C. Apr. 7, 2014) ................................................................................... 9
20

21

Sobel v. Hertz Corp., 291 F.R.D. 525 (D. Nev. 2013) ................................................................................................. 16

22
United States v. $133,420 in U.S. Currency, 23 672 F.3d 629 (9th Cir. 2012) ....................................................................................................... 6

24 United States v. Aukai, 25 497 F.3d 955 (9th Cir. 2007) .............................................................................................. 13, 14

26 United States v. Beale, 27 736 F.2d 1289 (9th Cir. 1984) ..................................................................................................... 8

28

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1

United States v. Brown, 884 F.2d 1309 (9th Cir. 1989) ..................................................................................................... 8

2 United States v. Clutter,
3 674 F.3d 980 (8th Cir. 2012) ....................................................................................................... 8

4 United States v. Comprehensive Drug Testing, Inc., 5 513 F.3d 1085 (9th Cir. 2008) aff’d en banc, 621 F.3d 1162 (9th Cir. 2010) ............................. 9

6 United States v. Councilman, 7 418 F.3d 67 (1st Cir. 2005) ......................................................................................................... 9

8 United States v. Crist, 627 F. Supp. 2d 575 (M.D. Pa. 2008) ........................................................................................ 11
9
10 United States v. DeMoss, 279 F.3d 632 (8th Cir. 2002) ................................................................................................. 9, 10
11 United States v. England,
12 971 F.2d 419 (9th Cir. 1992) ...................................................................................................... 7
13 United States v. Frazin,
14 780 F.2d 1461 (9th Cir. 1986) .................................................................................................. 13

15 United States v. Ganias, 16 755 F.3d 125 (2d Cir. 2014)......................................................................................................... 9

17 United States v. Gant, 18 112 F.3d 239 (6th Cir. 1997) ................................................................................................. 8, 10

19 United States v. Hall, 978 F.2d 616 (10th Cir. 1992) .................................................................................................. 10
20

21

United States v. Hoang, 486 F.3d 1156 (9th Cir. 2007) ................................................................................................ 7, 8

22
United States v. Jacobsen, 23 466 U.S. 109 (1984)............................................................................................................ passim

24 United States v. Jefferson, 25 566 F.3d 928 (9th Cir. 2009) ............................................................................................. 7, 8, 10

26 United States v. Jefferson, 27 571 F. Supp. 2d 696 (E.D. Va. 2008) .......................................................................................... 9

28

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1

United States v. Jones, 132 S. Ct. 945 (2012) ................................................................................................................ 13

2 United States v. Karo,
3 468 U.S. 705 (1984) .................................................................................................................. 11

4 United States v. Kington, 5 801 F.2d 733 (5th Cir. 1986) ....................................................................................................... 9

6 United States v. Knotts, 7 460 U.S. 276 (1983)................................................................................................................... 12

8 United States v. Mann, 829 F.2d 849 (9th Cir. 1987) ...................................................................................................... 9
9
10 United States v. Martinez-Fuerte, 428 U.S. 543 (1976) ............................................................................................................ 13, 19
11 United States v. Miller,
12 425 U.S. 435 (1976) .................................................................................................................. 13
13 United States v. Mohamud,
14 2014 WL 2866749 (D. Or. June 24, 2014) .................................................................... 13, 16, 17

15 United States v. Place, 16 462 U.S. 696 (1983) ........................................................................................................ 8, 10, 11

17 United States v. Pulliam, 18 405 F.3d 782 (9th Cir. 2005) ..................................................................................................... 12

19 United States v. Terriques, 319 F.3d 1051 (8th Cir. 2003) ..................................................................................................... 9
20

21

United States v. U.S. Dist. Court (Keith), 407 U.S. 297 (1972) ............................................................................................................ 12, 13

22
United States v. Va Lerie, 23 424 F.3d 694 (8th Cir. 2005) .................................................................................................. 7, 8

24 In re Warrant to Search a Certain E-Mail Account, 25 2014 WL 1661004 (S.D.N.Y. Apr. 25, 2014) ....................................................................... 9, 11

26 West v. Drury Co., 27 2009 WL 1532491 (N.D. Miss. 2009) ........................................................................................ 6

28

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1

Wilson v. Bradlees of New England, Inc., 250 F.3d 10 (1st Cir. 2001) ......................................................................................................... 5

2

3 STATUTES

4 18 U.S.C. § 2511(a) ........................................................................................................................ 9 18 U.S.C. §§ 2510-2520 ............................................................................................................... 12
5 50 U.S.C. § 1806(f)....................................................................................................................... 21 6 50 U.S.C. § 1812(a) ...................................................................................................................... 12
50 U.S.C. § 1871........................................................................................................................... 12 7 50 U.S.C. § 1881a ................................................................................................................... 12, 18
50 U.S.C. § 1881f ......................................................................................................................... 12 8
9 FEDERAL RULE OF EVIDENCE

10 Fed. R. Evid 401 ............................................................................................................................. 5

11

Fed. R. Evid. 801(c), 802 .............................................................................................................. 15 Fed. R. Evid 803(8)................................................................................................................. 15, 16

12 LEGISLATIVE MATERIAL
13

14

H.R. Rep. No. 112-645, 112th Cong., 2d Sess. (Aug. 2, 2012) ........................................ 14, 15, 16 S. Rep. No. 99-541, 99th Cong., 2d Sess. (1986) ........................................................................ 11

15 S. Rep. No. 110-209 (2007) .............................................................................................. 14, 15, 16 S. Rep. No. 112-174, 112th Cong., 2d Sess. (June 7, 2012)................................................... 14, 16
16 S. Rep. No. 112-229, 112th Cong., 2d Sess. (Sept. 20, 2012) ...................................................... 16

17 May 1, 2007 FISA Modernization Hearing ............................................................................ 14, 17

18 MISCELLANEOUS

19 Bruce E. Boyden, Can a Computer Intercept Your Email?, 20 34 Cardozo L. Rev. 669 (2012) ................................................................................................ 11

21 Legal Ethics, Law. Deskbk. Prof. Resp. § 1.6-2(c) (2013-2014 ed.) ........................................... 11

22 Orin S. Kerr, Searches and Seizures in a Digital World, 23 119 Harv. L. Rev. 531 (2005) ................................................................................................... 11

24 Privacy & Civil Liberties Oversight Bd. Report on the Surveillance Program Operated Pursuant to Section 702 of the FISA ......................................................................................... 16
25
26 Richard A. Posner, Privacy, Surveillance, and Law, 75 U. Chi. L. Rev. 254 (2008) .................. 11

27 The President’s Review Group on Intelligence and Communications Technologies, Liberty and Security in a Changing World (Dec. 12, 2013) ..................................................... 16
28

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Use Of E-Mail Service Provider That Scans E-Mails For Advertising Purposes, NY Eth. Op. 820 (2008) ............................................................................................................ 11

2 Wigmore Evid. § 4.7.2 ................................................................................................................... 3
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1

INTRODUCTION

2

Plaintiffs’ effort to invalidate NSA1 “Upstream” acquisition of online communications

3 containing targeted selectors, based on an alleged violation of their Fourth Amendment rights,

4 fails in every way. They adduce no competent evidence of Upstream’s operation to support

5 either their standing, or the merits of their claim. Their allegations, even if taken as true, do not

6 establish that alleged Stage 1 copying of online communications, and electronic Stage 3

7 scanning, result in a seizure and search of the only communications that Plaintiffs put at issue:

8 those that are not retained by the Government, but which, having been found not to contain

9 targeted selectors, are instead destroyed within milliseconds of their creation. Even if Plaintiffs

10 had alleged and proven a technical seizure or search under the Fourth Amendment, the minimal

11 intrusion on Fourth Amendment interests caused by the electronic duplication, scanning, and

12 almost immediate destruction of communications that are never seen by Government officials

13 would still be vastly outweighed by Upstream’s critical contributions to national security. And

14 although the Government is entitled to judgment for all these reasons based on the public record,

15 in the alternative judgment should be entered for the Government because privileged national

16 security information, subject to the DNI’s assertion of the state secrets privilege, is required for a

17 full and fair adjudication of the case, but cannot be disclosed without risking exceptionally grave

18 damage to national security. See generally Gov’t Mem. Plaintiffs’ attempts to sustain their

19 Fourth Amendment claim in the face of these conclusions, see Pls.’ Opp., meet with no success.

20 I.
21

ARGUMENT
PLAINTIFFS HAVE ADDUCED NO COMPETENT EVIDENCE TO SUPPORT THEIR STANDING OR THE MERITS OF THEIR CLAIM.

22

The issue here is whether the Government is “violating the Fourth Amendment by …

23 ongoing seizures and searches of plaintiffs’ Internet communications.” Pls.’ Mot. at 1 (emphasis

24 added). Thus, while Plaintiffs emphasize that “[t]he [G]overnment admits …‘NSA collects

25 telephone and electronic communications as they transit the Internet “backbone” within the

26 1 Terminology used but not otherwise defined herein shall have the same meaning as in
27 the Gov’t Defs.’ Opp. to Pls.’ Mot. for Partial Summ. Judg. & Cross-Mot. for Partial Summ. Judg. on Pls.’ Fourth Am. Claim (ECF No. 286-6) (“Gov’t Mem.”). Pls.’ Combined Reply in
28 Support of Their Mot. for Partial Summ. Judg. & Opp. to the Gov’t Defs.’ Cross-Mot. for Partial Summ. Judg. (see ECF No. 294) is cited herein as “Pls.’ Opp.”

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1 United States,’” Pls.’ Opp. at 24, 31, the NSA’s activities, in general, are immaterial to the

2 showing Plaintiffs must make. Rather, Plaintiffs must present admissible evidence that (1) their

3 communications are seized, (2) as part of NSA Upstream collection, (3) on an ongoing basis.

4

Plaintiffs attempt to meet this burden by arguing that their telecommunications provider,

5 AT&T, “allows the government to seize the entire communications stream of its customers” at

6 Stage 1 of the collection process. Pls.’ Mot. at 10; see Pls.’ Opp. at 3. But this claim depends

7 wholly on the description of the SG3 Secure Room in the Klein and Marcus declarations. See id.

8 at 3 n.1; Pls.’ Mot. at 6 nn. 5–8. To support Plaintiffs’ claim, then, those declarations must, at a

9 minimum, present admissible evidence establishing: (1) that the equipment in the SG3 Secure

10 Room was used for the surveillance activity that Plaintiffs allege; (2) that the NSA received data

11 processed by the equipment in that room; and (3) that the activity Plaintiffs allege took place in

12 2003 and 2004 remains ongoing. As explained below and in the Government’s cross-motion, see

13 Gov’t Mem. at 14–20, the declarations contain no such evidence.

14

A. Plaintiffs Have Not Presented Competent Evidence of the Equipment

Actually Installed in the SG3 Secure Room or Its Purposes. 15
Plaintiffs proffer no admissible evidence regarding the equipment allegedly installed in

16 the SG3 Secure Room or the purposes for which it was used. Although Plaintiffs contend that “it

17 is not essential to their motion,” Pls.’ Opp. at 29, the contents and purpose of the SG3 Secure

18 Room are central to their claim; without such evidence, Plaintiffs’ allegations amount to AT&T

19 splitting signals from one room to another at Folsom Street for some unknown purpose.

20 Plaintiffs cite to paragraphs 24–34 of the Klein Declaration, as well as Exhibits A, B, and

21 C thereto, as the basis for the argument that the equipment allegedly located in the SG3 Secure

22 Room serves the function that they claim. Pls.’ Mot. at 6 nn. 5–8. But in those paragraphs of

23 Mr. Klein’s declaration, he does not describe the contents and purpose of the SG3 Secure Room.

24 Rather, he focuses on his work elsewhere with a splitter cabinet that he states diverted copies of

25 certain signals into that room. See Klein Decl. ¶¶ 24–34. As to what, if anything, happened to

26 those signals once inside the room—the key information that Plaintiffs’ evidence must

27 establish—Mr. Klein is silent except to point to Exhibit C to his declaration,

28 which purportedly includes a list of equipment to be

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1 installed in the SG3 Secure Room. Id. ¶ 35 & Exh. C at 3-

2

3

Notably, while Plaintiffs defend much of the Klein declaration as “within his personal

4 knowledge,” they exclude his testimony regarding the SG3 Secure Room from that argument.

5 See Pls.’ Opp. at 25–27. Rather, they claim that Klein’s testimony regarding the devices in the

6 SG3 Secure Room “is based on the AT&T documents he relied on to do his job.” Id. at 29. The

7 declaration does not support that claim. As to Exhibit C, the document in question, Mr. Klein

8 states only (and ambiguously) that “[i]n the course of [his] employment, [he] reviewed [it];” he

9 does not attest that the equipment listed in the document was in fact installed in the SG3 Secure

10 Room. Klein Decl. ¶ 28. Based on his own statements, Mr. Klein did not work in or, except on

11 one brief occasion, ever set foot in the SG3 Secure Room, id.¶ 17, and he is not competent to

12 offer evidence of the equipment actually installed there, much less the purpose of that equipment.

13

14

15

.

16

Likewise, Mr. Marcus does not claim personal knowledge or provide other competent

17 evidence regarding the equipment in the SG3 Secure Room or its purpose. He simply assumes

18 the equipment in Klein Exhibit C was in fact installed there. Plaintiffs nonetheless urge the

19 Court to rely on his testimony because, under Rule 703, a witness proffered as an expert “is not

20 limited to his personal knowledge and can rely on the testimony and evidence of others . . . that

21 would themselves be inadmissible.” Pls.’ Opp. at 30. But Plaintiffs ignore that “[t]he fact that

22 inadmissible evidence is the (permissible) premise of [an] expert’s opinion does not make that 23 evidence admissible for other purposes, purposes independent of the opinion.” In re James 24 Wilson Assocs., 965 F.2d 160, 173 (7th Cir. 1992); see also Wigmore Evid. § 4.7.2. Thus, Rule 25 703 does not permit Mr. Marcus’s purported expertise to transform hearsay and speculation into 26 admissible evidence about what was actually installed (or occurred) in the SG3 Secure Room. 27 On the contrary, because Mr. Marcus’s proffered opinions are not “based on sufficient facts or 28 data” as required by Rule 702(b), those opinions are inadmissible too. See Gov’t Mem. at 17–18.

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1

In sum, Plaintiffs offer no admissible evidence regarding the equipment actually installed

2 in the SG3 Secure Room, or, more importantly, the purpose of that equipment.2 Plaintiffs,

3 therefore, have adduced no competent evidence that their communications were collected for

4 purposes of surveillance, even in 2003-04. Their claim should be rejected on that basis alone.

5

B. Plaintiffs Have Presented No Competent Evidence of NSA Involvement

in Activities Conducted in the SG3 Secure Room.

6

Similarly, neither the Klein nor the Marcus declaration provides admissible evidence of

7 Government involvement in the SG3 Secure Room. For all of the reasons explained in the
8 Government’s cross-motion, Mr. Marcus’s testimony that it is “plausible” the Government

9 funded the room does not pass muster under Rule 702; he lacks both expertise in corporate

10 finance and a factual foundation for the conclusions he offers, see Gov’t Mem. at 16–18.

11 Nor can Mr. Klein’s testimony establish Government involvement here. Plaintiffs now

12 claim that Mr. Klein saw an AT&T management technician who had met with an NSA agent

13 installing equipment in the SG3 Secure Room, see Pls.’ Opp. at 27, and that AT&T management

14 sent an email establishing AT&T’s intention to work with NSA, see id. at 28. Mr. Klein’s

15 declaration does not support either statement. Mr. Klein does not state that he observed a

16 management technician installing equipment in the SG3 Secure Room as Plaintiffs claim, see

17 Pls.’ Opp. at 27; rather, he notes that he saw “a workman apparently working on the door lock

18 for the room.” Klein Decl. ¶ 12. So, too, with the email that Mr. Klein mentions. He states that

19 management sent an email regarding “the pending visit” and that the email “explicitly mentioned

20 the NSA.” Id. ¶ 10. Based on Mr. Klein’s two-year-old recollection of that scant text, Plaintiffs

21 urge the Court to find that two separate meetings occurred between AT&T and NSA, infer a

22 resulting agreement between AT&T and NSA to work together, and conclude that “AT&T

23 thereafter did cooperate with the NSA.” Pls’ Opp. at 28. There is no basis in Mr. Klein’s

24 declaration—or, indeed, in common sense—for these sweeping conclusions.

25 Similarly, although Plaintiffs claim that Mr. Klein knew that only personnel cleared by

26 NSA could access the SG3 Secure Room “based on [his] personal knowledge, observations, and

27 2 Plaintiffs’ proffered evidence is even less probative of what, if any, activity occurred at
28 other AT&T facilities where Mr. Klein claims “[he] learned that other . . . ‘splitter cabinets’ were being installed.” Klein Decl. ¶ 36.

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1 experiences of AT&T’s business operations and its policies and practices,” Pls.’ Opp. at 27, no

2 such assertions appear in Mr. Klein’s declaration. Indeed, Plaintiffs do not even cite to the

3 declaration as support for that claim. See id. Where Mr. Klein’s declaration specifically

4 discusses the claimed NSA restriction on access to the SG3 Secure Room, he qualifies it with the

5 disclaimer “[t]o my knowledge,” Klein Decl. ¶ 17, and goes on to discuss the limitations on that

6 knowledge, see id. (noting that he had no access to the SG3 Secure Room). In reality, Mr. Klein

7 makes clear that his testimony is based on hearsay. See, e.g., id. ¶ 16 (“FSS# 1 told me that

8 another NSA agent would again visit . . .”). And while Plaintiffs argue that “statements made to

9 Klein by management and other AT&T employees about NSA’s activities . . . are admissible

10 nonhearsay” because AT&T is the Government’s “agent” and “co-conspirator,” Pls.’ Opp. at 28,

11 these arguments assume the very conclusions Plaintiffs are trying to prove. Plaintiffs ask the

12 Court to assume a relationship exists to facilitate the admission of the very statements that 13 Plaintiffs claim establish the relationship. The Court should reject such circular reasoning.3

14

C. Plaintiffs Have Presented No Competent Evidence of Ongoing Activity at

the Folsom Street Facility, or Elsewhere, to Support Their Claims. 15
Most importantly, Plaintiffs’ claim of “ongoing seizures and searches,” Pls.’ Mot. at 1,

16 rests wholly on stale “evidence” of activities occurring over ten years ago, five years before

17 Section 702 was enacted, and has no probative value regarding the scope, sources, or methods of

18 Upstream collection today. Plaintiffs maintain—without citation to any authority—that there is

19 no “freshness” rule of evidence, Pls.’ Opp. at 31, but to the contrary, before evidence may be

20 admitted as relevant, it must be probative of the matter before the Court, and on this basis courts

21 routinely exclude evidence that is too remote in time.4 As the Ninth Circuit held in Ortega v.

22

23

3 In support of their agency theory, Plaintiffs cite AT&T’s 2014 Transparency Report as an admission that “AT&T conducts surveillance for the NSA under the [FISA].” See Pls.’ Opp.

24

at 24. But the timeframe covered by the report—July 1–December 31, 2013—is irrelevant to whether the Government was in any way involved in the alleged activity in the SG3 Secure

25

Room over ten years ago. At best the report reveals in general that AT&T recently responded to national security demands under FISA from unidentified Government agencies, and not whether

26

AT&T did or did not participate in any particular form of collection (such as Upstream, PRISM, or traditional FISA orders) at the behest of any particular agency.

27

4 See Fed. R. Evid. 401; see, e.g., Wilson v. Bradlees of New England, Inc., 250 F.3d 10

(1st Cir. 2001) (affirming exclusion and restriction of “stale hearsay” and other unduly

28 prejudicial material); Chertkova v. Connecticut Gen. Life Ins. Co., 210 F.3d 354 (Table), 2000

WL 349277, at *4 (2d Cir. Apr. 4, 2000) (affirming exclusion “as too distant, evidence of events

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1 O’Connor, 146 F.3d 1149, 1162 (9th Cir. 1998), evidence of events occurring over ten years ago

2 is too stale even to meet a requirement of reasonable suspicion, much less to prove by a

3 preponderance of the evidence that conduct of which a litigant complains remains ongoing. See

4 also Herrera v. Perry, 2014 WL 2557644, at *8 (C.D. Cal. Mar. 19, 2014) (denying preliminary

5 injunction where plaintiff “[had] not presented any evidence that [alleged] tampering [and] 6 fabricating evidence over ten years ago remain on-going”).5

7

The only contemporary evidence that Plaintiffs cite is the Government’s acknowledgment

8 that Upstream collection of communications from the Internet backbone is “active and ongoing.”

9 See Pls’ Opp. at 31. But that general acknowledgment does not establish that collection occurs at

10 Folsom Street, that Plaintiffs’ communications are included, or that the means employed actually

11 resemble the four-stage process Plaintiffs describe—either now, or at any time in the past. For

12 lack of evidence to support Plaintiffs’ Fourth Amendment claim, or their standing to raise it, the 13 Court should grant the Government’s cross-motion for summary judgment.6

14 that had allegedly occurred 11 years before the relevant period”); Perry v. Ethan Allen, Inc., 115 F.3d 143, 150 (2d Cir. 1997) (affirming exclusion of events more than six months prior to
15 alleged harassment as “too remote to have probative value”); Bhasin v. Bluefield Regional Med. Ctr., Inc., 62 F.3d 1414 (Table), 1995 WL 465796, at *4 (4th Cir. Aug. 8, 1995) (affirming
16 exclusion of events from early 1980s as “too remote” from a discharge in 1992); West v. Drury Co., 2009 WL 1532491, at *1 (N.D. Miss. 2009) (excluding medical record more than a decade
17 old); Sanchez v. Echo, Inc., 2008 WL 2951339, *4 (E.D. Pa. Jan. 9, 2008); Dimas v. Michigan Dep’t of Civil Rights, 2004 WL 1397558, at *12, n.2 (W.D. Mich. Mar. 19, 2004) (excluding
18 statements ten years prior to alleged discrimination as “too remote in time . . . to be probative”).

19

5 Indeed, even if the Klein and Marcus declarations eked past the threshold of relevance, Plaintiffs’ burden is still to present a quantum of evidence on which a reasonable trier

20

of fact could find that the surveillance activities they allege are ongoing, and that they include Plaintiffs’ communications. See In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.

21

2010). Speculation regarding events occurring over ten years ago is at best a mere “scintilla of evidence in support of the [P]laintiff's position,” and as such is “insufficient” to avoid summary

22 judgment. United States v. $133,420 in U.S. Currency, 672 F.3d 629, 638 (9th Cir. 2012).

6 Plaintiffs contend that even if the proffered evidence does not meet their burden, the

23 Court cannot grant summary judgment for the Government because they are “entitled” to pursue

discovery. Pls.’ Opp. at 35, citing Fed. R. Civ. P. 56(d). To be entitled to Rule 56(d) discovery,

24 parties must establish (1) that they have “set forth in affidavit form the specific facts [that they]

hope[] to elicit from further discovery; (2) [that] the facts sought exist; and (3) [that these]

25 sought-after facts are ‘essential’ to oppose summary judgment.” Family Home & Fin. Ctr., Inc.

v. FHLMC, 525 F.3d 822, 827 (9th Cir. 2008). The facts sought “must be based on more than

26 mere speculation.” SW Traders LLC v. United Specialty Ins. Co., 409 Fed. Appx. 96, 98–99 (9th

Cir. 2010). Here, Plaintiffs cite to two affidavits previously submitted in this litigation, see Pls.’

27 Opp. at 35 (citing ECF Nos. 30, 114), but they do not fulfill Rule 56(d)’s requirements. Both

declarations list sweeping categories of discovery, see ECF No. 30 ¶¶ 7, 11, 12; ECF No. 114 ¶¶

28 7, 11, 12, but fail to state the particular facts they hope to prove or to establish that the facts exist,

offering only such generalities as “the discovery would lead to evidence regarding the nature and

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II. PLAINTIFFS’ CLAIMS OF FOURTH AMENDMENT SEARCHES AND

1

SEIZURES ALSO FAIL AS A MATTER OF LAW.

2

A. In Addition to the Lack of Supporting Evidence, Plaintiffs Offer No

Legal Support for Their “Stage 1” Seizure Claim.

3

Plaintiffs likewise offer no legal support for their claim that the alleged (but unproven)

4 copying of online communications at Stage 1 of the Upstream process constitutes a Fourth

5 Amendment seizure. See Gov’t Mem. at 23-30. Exclusively at issue here are copies of

6 communications that in Plaintiffs’ telling are electronically created at Stage 1, scanned for

7 targeted selectors at Stage 3, and then, because they are found to contain no such selectors, are

8 destroyed, all within milliseconds of their creation. See Gov’t Mem. at 28-29; Pls.’ Mot. at 9.

9 Plaintiffs now assert that Upstream collection interferes with a right to “sole possession” and

10 “exclusive control” of the information these communications contain. Pls.’ Opp. at 3, 4. But

11 they still have not explained how the alleged creation and destruction of copied communications

12 within milliseconds “meaningful[ly] interfere[s]” with such an interest, so as to constitute a

13 Fourth Amendment seizure. See United States v. Jacobsen, 466 U.S. 109, 113 (1984).

14

Plaintiffs maintain that the “act of copying” itself effects a seizure “the moment” the

15 copies are made, regardless of how long they are kept, by interfering with this “right to

16 [exclusive] control.” Pls.’ Opp. at 4-6. This concept of a seizure ignores the requirement that

17 interference with a possessory interest in property be meaningful, and the Ninth Circuit has

18 rejected the proposition, upon which Plaintiffs’ argument depends, “that any detention of

19 [property] constitutes a fourth amendment seizure.” United States v. England, 971 F.2d 419, 421

20 (9th Cir. 1992); see also United States v. Jefferson, 566 F.3d 928, 933-34 (9th Cir. 2009)

21 (rejecting contention that possessory interest in package arose at the time it was removed from

22 the mail stream); United States v. Hoang, 486 F.3d 1156, 1160-62 (9th Cir. 2007) (similar). As

23 explained in United States v. Va Lerie, 424 F.3d 694, 706 (8th Cir. 2005) (en banc):

24

[N]ot all police interference with an individual’s property constitutes a Fourth

25

Amendment seizure, i.e., the police do not seize property every time they handle private property. By requiring some meaningful interference with an individual’s

26

possessory interests in property, the Supreme Court inevitably contemplated excluding inconsequential interference with an individual’s possessory interests.

27

28 scope of the Government’s surveillance program.” Id. ¶ 20. Such conclusory statements do not provide the specific showing required under Rule 56(d).

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1 Applying these principles, the courts, including the Ninth Circuit, have refused to find Fourth

2 Amendment seizures where detentions of property lasting much longer than those alleged here 3 resulted in no consequential interference with the owners’ possessory interests.7 These cases,

4 and those previously cited by the Government involving the momentary handling of property for

5 brief non-intrusive inspections, see Gov’t Mem. at 27, dispel the notion that the alleged “act of

6 copying” communications itself constitutes a seizure “the moment” it occurs.

7

Plaintiffs attempt to dismiss this body of precedent on the basis that the cases “do not

8 speak to [interference with] the possessory interest in the contents of [] communication[s],” Pls.’

9 Opp. at 7, but they do not explain the supposed import of this distinction. These cases illustrate

10 the principle, announced in Jacobsen, that interference with a possessory interest must be

11 meaningful before a seizure can take place. Under this principle as elaborated in the case law, no

12 such interference with a right of exclusive control over the content of communications has been

13 shown merely from the alleged act of copying them, where, in Plaintiffs’ own telling, the copies

14 are destroyed within milliseconds.

15

Plaintiffs cite United States v. Place, 462 U.S. 696 (1983) for the proposition that even a

16 brief detention of property can result in a seizure, Pls.’ Opp. at 6, but in contrast to the initial 90-

17 minute detention of the traveler’s luggage in Place, id. at 709, the lifetime of the copied

18 communications here is vanishingly brief, and involves none of the circumstances or ensuing

19 consequences that Place considered, and that the Ninth Circuit and other courts look to, in

20 determining whether a seizure has occurred: no property is taken from anyone’s immediate

21 possession; no property is destroyed; delivery of no one’s communications is delayed; and no 22 one’s freedom of movement is impeded.8 Once the allegedly copied communications are

23 scanned and destroyed, all within milliseconds of their creation, “exclusive” control over the

24

7 See, e.g., United States v. Clutter, 674 F.3d 980, 983-85 (8th Cir. 2012) (detention of

25

defendant’s home computers after he had been jailed); Jefferson, 566 F.3d at 931-35 (overnight detention of express mail); Hoang, 486 F.3d at 1158, 1160-62 (ten-minute detention of FedEx

26

package); United States v. Gant, 112 F.3d 239, 240, 242 (6th Cir. 1997) (moving passenger’s tote bag from overhead bin to seat for narcotics “sweep” of bus by drug-sniffing dog).

27

8 See Jacobsen, 466 U.S. at 124-25; Clutter, 674 F.3d at 984-85; Jefferson, 566 F.3d at

934-35; Hoang, 486 F.3d at 1160; Va Lerie, 424 F.3d at 703-07; Gant, 112 F.3d at 242; United

28 States v. Brown, 884 F.2d 1309, 1311 (9th Cir. 1989); United States v. Beale, 736 F.2d 1289,

1289-90, 1292 (9th Cir. 1984). See also Place, 462 U.S. at 718 n.5 (Brennan, J., concurring).

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1 communications is restored to the parties as if the copies allegedly obtained by the Government 2 had never been created at all.9

3

For their part, Plaintiffs cite no authority for the proposition that the “act of copying” a

4 communication results in a seizure “the moment it occurs.” To a one, the cases Plaintiffs cite in

5 support of this assertion involved situations where government agents not only copied or

6 recorded the contents of oral or electronic communications, but also retained those copied

7 communications indefinitely, in some cases for months and years at a time, and used the contents 8 for their own investigative or prosecutorial purposes.10 The Government has already explained,

9 however, that the allegations here are distinguishable from the circumstances of such precedents,

10 because they concern copies of communications that are not retained or put to any use by the

11 Government, and instead are destroyed instantaneously after their creation once it is determined

12 (by electronic means) that they do not contain targeted selectors. See Gov’t Mem. at 28-29.

13 Plaintiffs do not cite a single case in which the copying of digital information alone, without 14 retention, was held to be a seizure.11 Plaintiffs warn that “[u]nder the [G]overnment’s argument,

15 digital information would never be considered ‘seized’ unless [it] [also] took possession of … a

16

9 In holding that no seizure occurs when government agents briefly handle or detain a

17

piece of mail or stowed luggage, courts have further observed that persons who place items in the mail, or check baggage with a carrier, have no reasonable expectation that those items will

18

not be touched, handled, or moved around by strangers en route to their destination. United States v. Terriques, 319 F.3d 1051, 1055 (8th Cir. 2003); United States v. DeMoss, 279 F.3d 632,

19

635 (8th Cir. 2002); see also Jacobsen, 466 U.S. at 113. Likewise, Plaintiffs can have no reasonable expectation that intermediate copies of their communications will not be made (and

20

for some period stored) by numerous computers as they make their way across the Internet, see, e.g., United States v. Councilman, 418 F.3d 67, 69-70 (1st Cir. 2005), or that copies of the

21

communications will not continue to reside on faraway, even overseas servers of the providers to which the parties to Plaintiffs’ communications subscribe. See In re Warrant to Search a

22 Certain E-Mail Account, 2014 WL 1661004, at *4 (S.D.N.Y. Apr. 25, 2014).

10 See Katz v. United States, 389 U.S. 347, 348 (1967); Berger v. State of New York, 388

23 U.S. 41, 45 (1967); United States v. Ganias, 755 F.3d 125, 128-30, 137 (2d Cir. 2014); United

States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085, 1093 (9th Cir. 2008), aff’d en banc,

24 621 F.3d 1162 (9th Cir. 2010); In re Search of Info. Associated with [Redacted]@mac.com, 2014

WL 1377793, at *2 (D.D.C. Apr. 7, 2014). See also LeClair v. Hart, 800 F.2d 692, 693 (7th Cir.

25 1986); United States v. Jefferson, 571 F. Supp. 2d 696, 699-700, 703 (E.D. Va. 2008).

26

11 Plaintiffs are also unaided by cases holding that a prohibited acquisition of electronic

communications occurs under the Wiretap Act, 18 U.S.C. § 2511(a), “when the contents of a

27 wire communication are captured or redirected in any way.” Pls.’ Opp. at 5. Statutory

enactments can satisfy the requirements of the Fourth Amendment, but do not affect the scope of

28 the protections it affords. See United States v. Mann, 829 F.2d 849, 851-53 (9th Cir. 1987);

United States v. Kington, 801 F.2d 733, 737 (5th Cir. 1986).

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1 hard drive or a server” containing the data. Pls.’ Opp. at 5. But again they miss the point. The

2 critical distinction is not whether the Government obtains communications by electronically

3 copying them or seizing the hardware on which they reside, but whether the Government’s

4 retention of the data is of such duration, or results in other consequences, as to meaningfully 5 interfere with the owner’s possessory interests. Plaintiffs have made no such showing here.12

6

B. Plaintiffs Also Offer No Legal Support for Their “Stage 3” Search Claim.

7

The Government has shown that, under the reasoning of Place and Jacobsen, electronic

8 scanning of copied communications that occurs at Stage 3 of the alleged Upstream process does

9 not constitute a search of the only communications that Plaintiffs have placed at issue here:

10 those not found to contain targeted selectors, which are immediately destroyed, not retained by

11 the Government. Because under Plaintiffs’ scenario Government agents obtain no information

12 about the communications, their contents, the parties to them, or even that they exist, the alleged

13 electronic scanning of those communications for targeted selectors “does not compromise any

14 legitimate interest in privacy.” Jacobsen, 466 U.S. at 122-23; see Gov’t Mem. at 31-33.

15

Plaintiffs contest the point that no search occurs if no information is actually provided to

16 Government agents. Pls.’ Opp. at 9, 11. But in so doing they take issue with first principles, see

17 Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013) (“exclusive basis” for invoking Fourth

18 Amendment’s protections against unreasonable searches requires that the “Government obtain[ ]

19 information”), and the rationale of Place, 462 U.S. at 707 (canine sniff of luggage for narcotics is

20 not a search because it does not otherwise expose the contents of the luggage to Government

21 agents), as extended in Jacobsen, 466 U.S. at 123-24. And contrary to Plaintiffs’ contention that 22 “[t]he [G]overnment’s human-eyes thesis is … unsupported by authority,” Pls.’ Opp. at 9, the

23 distinction between electronically scanning digital information for data of interest and actually 24 revealing that information to human beings is recognized by courts, Congress, commentators,

25

12 Plaintiffs again conflate possessory and privacy interests when they argue that the

alleged Stage 1 copying of communications is “intrusive” because, no matter how briefly the

26 copies are retained, they are scanned in the interim (at Stage 3) for targeted selectors. Pls.’ Opp.

at 7; see Gov’t Mem. at 30 n.7. Courts have held repeatedly that it does not matter to the seizure

27 inquiry that government agents briefly handle, detain, or divert an object for the purpose of

gleaning information through some non-invasive technique. See, e.g., Arizona v. Hicks, 480 U.S.

28 321, 324-25 (1987); Jefferson, 566 F.3d at 931-32, 934-35; DeMoss, 279 F.3d at 634, 635-36;

Gant, 112 F.3d at 240, 242; United States v. Hall, 978 F.2d 616, 618-20 (10th Cir. 1992).

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1 and other legal authorities.13 It is also supported by the Supreme Court’s decision in United

2 States v. Karo, 468 U.S. 705, 712-13 (1984) (placement of an unmonitored tracking device

3 among suspect’s belongings did not infringe upon his privacy because until monitored by

4 Government agents the device “conveyed no information at all”).

5

Plaintiffs next argue that the holdings of Place and Jacobsen do not apply to investigative

6 techniques that can reveal something other than the presence or absence of contraband, Pls.’

7 Opp. at 10-11, but once again they fail to grapple with the issue at hand. Jacobsen teaches that

8 the critical question in each case involving an alleged search is whether “[o]fficial conduct …

9 ‘compromise[d] any legitimate interest in privacy.’” See Illinois v. Caballes, 543 U.S. 405, 408

10 (2005), quoting Jacobsen, 466 U.S. at 123. Here, the alleged automated scanning of

11 communications that are not found to contain targeted selectors reveals no information about

12 them, not even the fact of their existence, and is thus designed, like the chemical test in

13 Jacobsen, so that “it could reveal nothing” about non-targeted communications. Jacobsen,466

14 U.S. at 124 n.24; see Gov’t Mem. at 33. So far as these communications are concerned, Stage 3

15 scanning for selectors “does not expose” anything about them “that otherwise would remain

16 hidden from public view.” Place, 462 U.S. at 707. Hence, the “official conduct” alleged in this 17 proceeding involves no search under the Fourth Amendment.14

18

13 See In re Warrant to Search a Certain E-Mail Account, supra, 2014 WL 1661004,

19

at *6; S. Rep. No. 99-541, 99th Cong., 2d Sess. 20 (1986) (“monitor[ing] a stream of transmissions in order to properly route, terminate, and otherwise manage the individual

20

messages” is not prohibited by the Wiretap Act because “[t]hese monitoring functions . . . do not involve humans listening in on voice conversations”); Bruce E. Boyden, Can a Computer

21

Intercept Your Email?, 34 Cardozo L. Rev. 669, 673 (2012) (arguing that “automated processing [of e-mail] that is not contemporaneously reviewable by . . . humans, and does not produce a

22

record for later human review, is not an interception [under] the Wiretap Act”); Richard A. Posner, Privacy, Surveillance, and Law, 75 U. Chi. L. Rev. 245, 254 (2008) (“Computer searches

23

do not invade privacy because search programs are not sentient beings. Only [a] human search should raise constitutional or other legal issues.”); Orin S. Kerr, Searches and Seizures in a

24

Digital World, 119 Harv. L. Rev. 531, 547-48, 551-54 (2005) (contending that “a search of data stored on a hard drive occurs when that data … is exposed to human observation”); Use of

25

E-Mail Service Provider That Scans E-Mails For Advertising Purposes, NY Eth. Op. 820 (2008) (a lawyer may use an e-mail service provider that conducts computer scans of e-mails to generate

26

computer advertising, without breaching client confidentiality, where the e-mails are not reviewed by or provided to human beings other than the sender and recipient); Legal Ethics,

27 Law. Deskbk. Prof. Resp. § 1.6-2(c) (2013-2014 ed.) (“general rule” same).

14 Plaintiffs cite no authority to support their contrary view. See Pls.’ Opp. at 12-13. As

28 a result of the “hash value” analysis conducted on the defendant’s computer in United States v.

Crist, 627 F. Supp. 2d 575, 578 (M.D. Pa. 2008), law-enforcement agents actually obtained

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1

Whether scanning communications that are found to contain targeted selectors (and are

2 therefore retained) infringes upon a legitimate expectation of privacy is not at issue here.15

3 Plaintiffs, having identified no communications of their own that fall into that category, have

4 excluded it from the ambit of their summary judgment motion, Pls.’ Mot. at 9, and cannot

5 “vicariously assert[ ]” the Fourth Amendment rights of persons whose communications are found

6 to contain targeted selectors to support their very different claim. Rakas v. Illinois, 439 U.S. 128,

7 133-34 (1978); United States v. Pulliam, 405 F.3d 782, 789-90 & n.3 (9th Cir. 2005). The only

8 question that is or can be presented by Plaintiffs’ motion is whether they have shown a violation

9 of their own Fourth Amendment rights, and as a matter of law (as well as fact), the answer is no.

10

All else failing, Plaintiffs warn that failure to adopt their view of the Fourth Amendment

11 will license “a digital surveillance state,” Pls.’ Opp. at 9, albeit a peculiar one in which the state

12 avoids collecting information about the vast majority of the millions of people upon whom it

13 supposedly spies. The Supreme Court has repeatedly refused in the past to accept such dire

14 predictions as a substitute for application of settled constitutional principles, see, e.g., United

15 States v. Knotts, 460 U.S. 276, 283-84 (1983), and there is no reason to indulge them in the 16 circumstances here.16 Plaintiffs have not demonstrated that Upstream collection involves

17 searches (or seizures) that violate their Fourth Amendment rights.

18 information from which they were able to glean the contents of over 170 files on the computer. Bourgeois v. Peters, 387 F.3d 1303, 1307, 1314 n.9 (11th Cir. 2004), was an action to enjoin
19 mass magnetometer screening at an outdoor political protest, including physical searches of individuals and their belongings in instances when the magnetometers revealed the presence of
20 metal on their persons. (It was not disputed that the magnetometer screening constituted a search.) In contrast, Plaintiffs’ claim here does not encompass those instances where Stage 3
21 scanning of communications reveals the presence of targeted selectors.

22

15 Hence, the Government’s position here does not turn on whether communications that contain targeted selectors may be considered “contraband.” See Pls.’ Opp. at 11.

23

16 For foreign intelligence purposes, FISA already prohibits “electronic surveillance and

the interception of domestic wire, oral, or electronic communications” except as the statute itself

24 allows. 50 U.S.C. § 1812(a). (Electronic surveillance for federal law enforcement purposes is

regulated by Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-

25 2520, see United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 302 (1972).) Section 702, in

particular, “create[s] a comprehensive scheme in which the [FISC] evaluates the Government’s

26 certifications, targeting procedures, and minimization procedures” to ensure that they meet

statutory requirements, and “comport with the Fourth Amendment.” Clapper v. Amnesty Int’l,

27 133 S. Ct. 1138, 1154 (2013) (citing 50 U.S.C. § 1881a(a), (c)(1), (i)(2)-(3)). Congress oversees

the Government’s exercise of its Section 702 authority, 50 U.S.C. §§ 1871, 1881a(l), 1881f, and

28 has demonstrated its willingness and ability, both in enacting FISA and otherwise, to

legislatively “balance privacy and public safety in a comprehensive way,” United States v. Jones,

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III. 1 2

UPSTREAM COLLECTION IS REASONABLE UNDER THE SPECIAL NEEDS DOCTRINE.
The Government demonstrated in its opening brief that even if the alleged real-time

3 electronic copying and scanning of online communications constitute seizures and searches

4 under the Fourth Amendment, these activities are constitutional under Fourth Amendment

5 “special needs” analysis because (1) temporarily creating copies of online communications and

6 electronically scanning them for targeted selectors, followed by their immediate destruction, at

7 most minimally intrudes on Fourth Amendment interests, and (2) Upstream collection of foreign

8 intelligence makes significant contributions to national security. Gov’t Mem. at 34-43.

9

Plaintiffs’ responses are unavailing. They argue first that warrantless searches have only

10 been upheld under the special needs doctrine where the persons searched had diminished

11 expectations of privacy due to their choice to engage in certain regulated activities, and second

12 that no similar special needs case involves seizures and searches on such a scale as allegedly

13 occurs under Upstream collection. Pls.’ Opp. at 15-16. These arguments misstate the Supreme

14 Court’s special needs jurisprudence. “The special needs doctrine does not require that the

15 subject of the search possess a diminished privacy interest.” MacWade v. Kelly, 460 F.3d 260,

16 269 (2d Cir. 2006). See also United States v. Aukai, 497 F.3d 955, 960 (9th Cir. 2007) (en banc)

17 (“The constitutionality of an airport screening search . . . does not depend on consent.”). While

18 many of the Court’s special needs cases have involved diminished privacy expectations, “the

19 Supreme Court never has implied—much less actually held—that a reduced privacy expectation

20 is a sine qua non of special needs analysis,” MacWade, 460 F.3d at 269, and the Court has in fact

21 applied special needs analysis where individual expectations of privacy were undiminished. See,

22 e.g., Camara v. Municipal Court, 387 U.S. 523, 537 (1967) (routine building inspections for

23 health-code compliance); Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990)

24 (warrantless traffic checkpoints to screen for intoxicated drivers); United States v. Martinez-

25
132 S. Ct. 945, 964 (2012) (Alito J., concurring). See Keith, 407 U.S. at 302; United States v. 26 Frazin, 780 F.2d 1461, 1465 (9th Cir. 1986) (noting Congress enacted the Right to Financial
Privacy Act in response to the holding of United States v. Miller, 425 U.S. 435 (1976), that bank 27 customers have no legitimate expectation of privacy in bank records). The criminal justice
system also provides a forum for persons whose communications are actually acquired (and used 28 against them) to place the exercise of the Government’s Section 702 authority under judicial
scrutiny. See United States v. Mohamud, 2014 WL 2866749, at *15-18 (D. Or. June 24, 2014).

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1 Fuerte, 428 U.S. 543 (1976) (same to screen for illegal aliens). See also Al-Haramain Islamic

2 Found., Inc. v. U.S. Dep’t of the Treasury, 686 F.3d 965, 991-92 (9th Cir. 2012) (discussing

3 these as “major” special needs cases).

4

To be sure, the Supreme Court has explained that in cases involving “substantial

5 expectations of privacy” the special needs test requires the program to serve “some purpose other

6 than ‘to detect evidence of ordinary criminal wrongdoing.’” Maryland v. King, 133 S. Ct. 1958,

7 1978 (2013) (quoting Indianapolis v. Edmond, 531 U.S. 32, 38 (2000)). Significantly, Plaintiffs

8 acknowledge that “a significant purpose” of Upstream collection under Section 702 is to obtain

9 foreign intelligence. Pls.’ Opp. at 16-17. Thus, contrary to Plaintiffs’ argument, Upstream

10 collection fits comfortably within the special needs doctrine because its undisputed

11 programmatic purpose exceeds normal law enforcement needs. Nor is the scale of the seizures

12 and searches alleged here unprecedented in special needs cases. See Aukai, 497 F.3d at 956,

13 958-62 (applying the special needs analysis to uphold warrantless screening by TSA of all

14 commercial aircraft passengers—some 700 million people each year).

15

Plaintiffs next take issue with the Government’s demonstration that it is impracticable to

16 obtain a warrant based on probable cause every time it seeks to collect intelligence targeting non-

17 U.S. persons outside the United States, arguing that the Congressional committee reports cited by

18 the Government in support of this conclusion are inadmissible hearsay and not specific to

19 Upstream collection. Pls.’ Opp. at 18. Significantly, Plaintiffs do not challenge Congress’s

20 determination, reflected in the reports and the enactment of Section 702, that having to obtain

21 individual FISA warrants to collect this type of intelligence, merely as an unintended result of

22 changes in technology, seriously burdened the Government’s intelligence resources and impeded

23 its collection of foreign intelligence; and that authorization of surveillance under the terms and 24 conditions of Section 702 substantially improved the Government’s ability to quickly and 25 effectively monitor terrorist communications. See, e.g., H.R. Rep. No. 112-645(II) at 2-3; id. (I) 26 at 4; S. Rep. No. 112-174 at 2; S. Rep. No. 110-209 at 5; May 1, 2007 FISA Mod. Hrg. at 18; 27 Gov’t Mem. at 4-5. Plaintiffs’ attempts to diminish the force of these conclusions on hearsay 28 and specificity grounds are entirely without merit.

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1

The Congressional reports cited by the Government are admissible under Federal Rule of

2 Evidence 803(8), which provides that a public record or statement setting forth factual findings

3 from a legally authorized investigation is not excluded as hearsay if “neither the source of

4 information nor other circumstances indicate a lack of trustworthiness.” See also Beech Aircraft

5 Corp. v. Rainey, 488 U.S. 153, 162, 170 (1988) (factually based conclusions or opinions

6 admissible too, if trustworthy). Public records are presumed trustworthy, and the burden of

7 establishing a basis for excluding a public record falls on the party opposing the evidence.

8 Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9th Cir. 1999); Johnson v. City of

9 Pleasanton, 982 F.2d 350, 352 (9th Cir. 1992). Courts look to four factors in assessing a public

10 report’s trustworthiness: (1) the timeliness of the investigation; (2) the special skill or expertise

11 of the investigating official; (3) whether a hearing was held and the level at which it was

12 conducted; and (4) possible motivation problems. Beech Aircraft, 488 U.S. at 167 n.11; Barry v.

13 Trustees of the Int’l Ass’n Full-Time Salaried Officers & Employees of Outside Local Unions &

14 Dist. Counsel’s (Iron Workers) Pension Plan, 467 F. Supp. 2d 91, 97 (D.D.C. 2006). Courts also

15 ask whether findings and conclusions in Congressional reports are the product of serious

16 investigation rather than political grandstanding, and whether members of the minority party

17 dissented from the report. Barry, 467 F. Supp. 2d at 98-100 (discussing cases).

18

The sum total of Plaintiffs’ argument on this front is to declare that the Congressional

19 statements relied on to demonstrate impracticability (and Upstream’s effectiveness), are

20 “inadmissible hearsay,” citing to Fed. R. Evid. 801(c), 802. Pls.’ Opp. at 18, 23. Plaintiffs have

21 “produced no evidence [or even argument] whatsoever to raise doubts about the reliability” of

22 these Congressional statements, nor challenged the motives of the reporting committees.

23 Gilbrook, 177 F.3d at 858. See also Johnson, 982 F.2d at 353. This is no surprise, as the factors

24 noted above all point in favor of the reports’ reliability, and, therefore, admissibility.

25

The statements cited by the Government are contained in timely reports on the FISA

26 Amendments Act (“FAA”), see S. Rep. No. 110-209, and the reauthorization of the FAA (which

27 would have expired at the end of the year in which those reports were issued). See H.R. Rep.

28 No. 112-645(II) at 2. The issuing committees—the House and Senate Select Committees on

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1 Intelligence and Committees on the Judiciary—all had expertise in the subject of the collection

2 of foreign intelligence under the FISA and the FAA. See, e.g., S. Rep. No. 112-174 at 2, 7;

3 S. Rep. No. 110-209 at 1; H.R. Rep. No. 112-645(II) at 3-4. In addition, the committees held

4 hearings and briefings on the issues discussed in the reports. See H.R. Rep. No. 112-645(I) at

5 3-4; H.R. Rep. No. 112-645(II) at 4-6; S. Rep. 112-229 at 9; S. Rep. No. 112-174 at 2; S. Rep.

6 No. 110-209 at 2. Finally, there is no suggestion that the reports’ conclusions are the product of

7 improper motives or grandstanding; they reflect serious bipartisan consideration of important

8 national security issues, with little minority dissent (principally related to issues of privacy,

9 transparency, and oversight for which the Government did not cite the reports). See H.R. Rep.

10 No. 112-645(II) at 10-11; H.R. Rep. No. 112-645(I) at 17-21; S. Rep. No. 112-174 at 10-12; but

11 see S. Rep. No. 112-229 at 15-16. Other FAA legislative history cited by the Government, such

12 as the 2007 FISA Modernization Hearing, has been cited by other courts, see Mohamud, 2014

13 WL 2866749, at * 7-8, indicating its reliability as well. See Sobel v. Hertz Corp., 291 F.R.D.

14 525, 533 (D. Nev. 2013). Thus, the Congressional reports relied upon by the Government are

15 admissible under Fed. R. Evid. 803(8). See, e.g., Barry, 467 F. Supp. 2d at 99-101; Mariani v.

16 United States, 80 F. Supp. 2d 352, 358-61 (M.D. Pa. 1999); Gathercole v. Global Assocs., 560 F. 17 Supp. 642, 647 (N.D. Cal. 1983); Hobson v. Wilson, 556 F. Supp. 1157, 1181 (D.D.C. 1982).17

18

Plaintiffs’ further argument that the public reports cited by the Government should be

19 disregarded because they are not specific to Upstream collection is also meritless. Congress’s

20 determination that it is impracticable to obtain individual warrants for purposes of foreign

21 intelligence collection targeted at non-U.S. persons does not turn on which method the

22 Government uses instead to collect such intelligence. Because of changes in technology, the

23 Government was required under FISA to obtain judicial authorization to collect the 24 communications of non-U.S. persons located outside the U.S. (a result not intended by FISA’s 25 original authors, see Gov’t Mem. at 4-5), “significantly divert[ing] NSA analysts from their

26 17 The Privacy & Civil Liberties Oversight Bd. Report on the Surveillance Program
27 Operated Pursuant to Section 702 of the FISA, and the report of The President’s Review Group on Intelligence and Communications Technologies, Liberty and Security in a Changing World
28 (Dec. 12, 2013) —both of which Plaintiffs themselves cite (Pls.’ Opp. at 17-18, 24 n.16; Pls.’ Mot. at 4 n.3, 7 n.10, 8 n.12-13, 9 & n.14, 22, 25 n.24)—are likewise trustworthy.

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1 counterterrorism mission” and “degrad[ing] capabilities in the face of a heightened terrorist

2 threat environment.” S. Rep. No. 110-209 at 5; see also May 1, 2007 FISA Mod. Hrg. at 18

3 (“massive amounts of analytic resources” used “to craft FISA applications”). There is no reason

4 to think that this is any less so in situations where the Government collects communications of

5 non-U.S. persons located abroad via Upstream instead of PRISM.

6

Nevertheless, the Government further addresses Upstream’s value to national security, to

7 the extent possible in unclassified terms, in the public portions of the supplemental Classified

8 Declaration of Miriam P., submitted herewith (“Nov. 7 Class. Miriam P. Decl.”). As the public

9 portions of the declaration confirm, the justifications for authorizing Section 702 collection

10 without requiring individualized warrants apply to Upstream as well as PRISM collection, and

11 imposing a warrant requirement each time a selector must be targeted for Upstream collection 12 would result in the loss of critical foreign intelligence information. Id. ¶¶ 32-33.18

13

Plaintiffs also try to distinguish cases holding that the Government’s special need for

14 foreign intelligence information justifies an exception to the warrant requirement, see Gov’t

15 Mem. at 35-36, on the basis that they concerned PRISM not Upstream collection. But they fail

16 here too to explain why the method of collection matters to the reasoning of these cases. Pls.’

17 Opp. at 19-21. Courts have held that collection of foreign intelligence does not require a warrant

18 because of the importance of the national interest in foreign-intelligence gathering above and 19 beyond normal law enforcement, and because of the need for flexibility and timeliness in the 20 collection of foreign intelligence, given its particular nature and objectives. See Gov’t Mem. at 21 36. The justifications for excepting foreign-intelligence collection from the warrant requirement 22 apply equally whether the Government collects intelligence as communications transit the 23 Internet backbone (Upstream), directly from Internet service providers (PRISM), or, for that 24 matter, pursuant to traditional FISA orders . See Nov. 7 Class. Miriam P. Decl. ¶¶ 32-33.19

25

18 The classified information in Ms. P.’s supplemental declaration is not relied on here,

26

§ III, but is submitted in support of the Government’s alternative argument, infra, § IV, at 20-21, that if Plaintiffs’ Fourth Amendment claim is not rejected on the basis of the public record, then

27

a full and fair adjudication of the special needs issue would require disclosure of information protected by the state secrets privilege, mandating dismissal of Plaintiffs’ claim on that basis.

28

19 Plaintiffs’ additional criticism of Mohamud’s determination that the targeting and

minimization procedures contribute to the reasonableness of Section 702 surveillance as

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1

Accordingly, the special needs doctrine applies to the alleged real-time electronic

2 copying and scanning of online communications, and these alleged activities must be upheld as

3 reasonable, particularly insofar as they involve communications that the Government does not

4 retain. Even if alleged Stage 1 copying and Stage 3 scanning of unretained communications

5 were deemed seizures and searches, they involve minimal intrusions on Fourth Amendment

6 interests and are necessary to an effective means of gathering foreign intelligence important to

7 the protection of national security. See supra, at 7-11; Gov’t Mem. at 25-29; 31-34; 39-42.

8

Seeking to resist this conclusion, Plaintiffs assert that the “duration” of the “electronic

9 scanning” says nothing about its “intrusiveness,” because the communications’ contents are

10 “examine[d]” from “top to bottom,” Pls.’ Opp. at 22. But these characterizations disregard the

11 critical fact—under the program as Plaintiffs contend it operates, no information about the

12 communications at issue is ever made known to Government personnel. Neither the law nor

13 common-sense notions of privacy support treating as constitutionally indistinguishable the

14 “intrusion” caused in a millisecond by an automated scan of communications that reveals no

15 information about them, and the intrusion that would be wrought by Government agents poring

16 for hours over the same set of communications in search of targeted selectors. See supra, at

17 10-11; Cassidy v. Cherthoff, 471 F.3d 67, 79 (2d Cir. 2006) (noting brevity and unintrusiveness 18 of search); MacWade, 460 F.3d at 273 (same).20

19 inconsistent with “the Supreme Court’s admonition [in Riley v. California, 134 S. Ct. 2473, 2491

20

(2014)] that ‘government agency protocols’ are no substitute for a warrant,” Pls.’ Opp. at 20-21, is off the mark. The targeting and minimization procedures for Section 702 surveillance are

21

required by the statute and approved by the FISC (see Gov’t Mem. at 6 n.1), not merely protocols voluntarily developed by government agencies (which can still factor into a totality-of-

22 the-circumstances reasonableness analysis). See Riley, 134 S. Ct. at 2491.

20 Plaintiffs also dispute that the putative searches here are less intrusive than those

23 upheld by other courts, Pls.’ Opp. at 23 n.14; Gov’t Mem. at 39, because those cases (they assert)

involved PRISM, not Upstream, collection. Plaintiffs again miss (or ignore) the point. Those

24 cases involved communications that had been retained by the Government; the instant motion

does not. Plaintiffs also attempt to dismiss various statutory safeguards such as restrictions on

25 targeting and the purposes for which communications may be acquired, reporting requirements

to facilitate Congressional oversight as “non sequitur[s]” when it comes to the reasonableness of

26 “search[ing] the contents” of the communications. Pls.’ Opp. at 22-23. But, although Plaintiffs

challenge only the alleged initial stages of Upstream collection, their reasonableness still must be

27 assessed in light of the ultimate programmatic purposes for which they are undertaken, measures

to assess whether those purposes are being achieved, and protections ensuring that these

28 activities are not conducted for purposes or in a manner unauthorized by the statute. See 50

U.S.C. § 1881a; Samson v. California, 547 U.S. 843, 848 (2006).

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1

Plaintiffs also argue, without citation, that the alleged copying and scanning of unretained

2 communications is unreasonable because there are “other practicable alternatives” to Upstream

3 that are less intrusive, such as PRISM collection and traditional FISA surveillance orders. Pls.’

4 Opp. at 17. But the special needs doctrine requires only that the Government employ “a

5 reasonably effective means”—and not “the least intrusive means,”—of addressing the special

6 need. Board of Educ. of Indep. Sch. Dist. of Pottawatomie Co. v. Earls, 536 U.S. 832, 837

7 (2002). The choice among reasonable alternatives “remains with the governmental officials who

8 have a unique understanding of, and a responsibility for, limited public resources,” Sitz, 496 U.S.

9 at 453-54; see also Martinez-Fuerte, 428 U.S. at 566. Plaintiffs’ speculation that the

10 Government can accomplish the same goals through PRISM collection and traditional FISA

11 warrants is simply irrelevant. It is also incorrect.

12

The Government has already shown that Upstream collection is a reasonably effective

13 means of meeting its special need to obtain foreign intelligence information, a need Plaintiffs

14 concede is “weighty.” Gov’t Mem. at 40-42; Pls.’ Opp. at 16. Plaintiffs contend, however, that

15 the Government’s reliance on legislators’ assessment of the importance and effectiveness of

16 Section 702 surveillance (including Upstream) when Congress reauthorized the statute—an

17 assessment based on numerous hearings and years of briefings from Executive Branch officials,

18 Gov’t Mem. at 41—is “no substitute for ‘empirical evidence of the effectiveness’” of Upstream

19 collection specifically. Pls.’ Opp. at 23. The FISC has found, however, that “NSA’s upstream

20 collection is uniquely capable of acquiring certain types of targeted communications containing

21 valuable foreign intelligence information.” [Redacted], 2011 WL 10945618, at *10 (FISC Oct.

22 3, 2011) (emphasis added). What can also be stated publicly is that Upstream collection is

23 capable of acquiring certain valuable foreign intelligence that cannot be collected under PRISM 24 or other methods authorized by FISA, Nov. 7 Class. Miriam P. Decl., ¶¶ 8, 12-13, 16, “fills a 25 critical gap in U.S. intelligence gathering,” id. ¶ 17, allows the NSA to respond quickly and 26 effectively to developing threats, id., and contributes “significant and sometimes uniquely 27 valuable foreign intelligence necessary to protect the Nation’s security,” id. This assessment 28 corroborates judgments jointly reached by the political Branches in adopting and reauthorizing

Jewel v. NSA, No. 4:08-cv-4373-JSW: Gov’t Defs.’ Reply in Support of

Cross-Motion for Partial Summary Judgment on Pls.’ Fourth Amendment Claim

19

Case4:08-cv-04373-JSW Document299-2 Filed11/07/14 Page29 of 31

1 Section 702, is entitled to the Court’s deference, Gov’t Mem. at 41-42, and is plainly sufficient to

2 award judgment to the Government on Plaintiffs’ Fourth Amendment claim.

3 IV. 4 5

IN THE ALTERNATIVE, PLAINTIFFS’ FOURTH AMENDMENT CLAIM MUST BE DISMISSED BECAUSE IT CANNOT BE LITIGATED WITHOUT NATIONAL-SECURITY INFORMATION PROTECTED BY THE STATE SECRETS PRIVILEGE.
As set forth in the Government’s opening brief and the classified ex parte supplement

6 thereto, even if the Court were to conclude that Plaintiffs have presented competent evidence that

7 Upstream collection involves either seizures or searches of Plaintiffs’ communications, and that
8 the minimal intrusion on Plaintiffs’ Fourth Amendment interests is not outweighed by

9 Upstream’s contributions to national security, then in the alternative judgment still must lie for

10 the Government. That is so because operational details about Upstream that are necessary to a

11 full and fair adjudication of Plaintiffs’ standing, their claims of Fourth Amendment seizures and

12 searches, and the Government’s defenses thereto, are subject to the DNI’s assertion of the state

13 secrets privilege, and excluded from the case. Gov’t Mem. at 21, 43-45.

14 The same is now also true regarding the special needs analysis. Although Plaintiffs

15 question the sufficiency of the public evidence demonstrating the importance and effectiveness

16 of Upstream, Pls.’ Opp. at 23, the NSA also possesses classified information, set forth in the

17 supplemental Miriam P. declaration, regarding the operational details of the Upstream program

18 that supports the Government’s position on these points as well. Because these details cannot be

19 disclosed without risking exceptionally grave damage to national security, they fall within the

20 category of operational details concerning the Section 702 program, described in prior NSA

21 declarations, on which the DNI based his assertions of the state secrets privilege. Nov. 7 Class.

22 Miriam P. Decl. ¶¶ 5, 34. Therefore, this information, too, must be “completely removed from

23 the case.” Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998). For this additional reason,

24 the state secrets doctrine requires that Plaintiffs’ Fourth Amendment claim be dismissed, even

25 barring all other grounds on which judgment should be awarded to the Government.

26 Plaintiffs err when they argue that the state secrets privilege has no application here

27 because their motion is based solely on public evidence. Pls.’ Opp. at 32. Although judgment

28 should be entered for the Government based on the publicly available evidence, if the Court

Jewel v. NSA, No. 4:08-cv-4373-JSW: Gov’t Defs.’ Reply in Support of

Cross-Motion for Partial Summary Judgment on Pls.’ Fourth Amendment Claim

20

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1 determined otherwise then in the alternative Plaintiffs’ claim would still have to be dismissed

2 because a full and fair adjudication of the claim and the Government’s defenses thereto would

3 require harmful disclosures of national-security information that is protected by the state secrets

4 privilege and must be excluded from the case. Gov’t Mem. at 43.

5

Beyond that point, Plaintiffs repeat arguments to which the Government has previously

6 responded. Pls.’ Opp. at 33-34. FISA section 106, 50 U.S.C. § 1806(f), does not preclude

7 assertion of the state secrets privilege here, even under the Court’s prior ruling regarding

8 § 1806(f). Gov’t Mem. at 45 n.17. The valid defense prong of the state secrets doctrine is not

9 limited to Government contracting cases, Gov’t Defs.’ Reply in Support of 2d Mot. to Dismiss &

10 for Summ. Judg. (ECF No. 119) at 6-7, and turns not on the actual validity of a defense but the

11 unavailability of the evidence required to support it. Id. at 11 & n.17. Plaintiffs’ assertion that

12 the Government “has not proven up any ‘demonstrably valid’ defense” is entitled to no weight,

13 because they are not privy to the classified operational details regarding the Upstream program

14 that support the Government’s additional defenses.

15

CONCLUSION

16

For the reasons stated above, the Government’s cross-motion for partial summary

17 judgment on Plaintiffs’ Fourth Amendment claim should be granted.

18
Dated: November 7, 2014 19

20

Respectfully submitted

21

JOYCE R. BRANDA

22

Acting Assistant Attorney General

23

JOSEPH H. HUNT

Director, Federal Programs Branch

24

ANTHONY J. COPPOLINO

25

Deputy Branch Director

26

27

28

Jewel v. NSA, No. 4:08-cv-4373-JSW: Gov’t Defs.’ Reply in Support of

Cross-Motion for Partial Summary Judgment on Pls.’ Fourth Amendment Claim

21

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1

/s/ James J. Gilligan

JAMES J. GILLIGAN

2

Special Litigation Counsel

3

MARCIA BERMAN

Senior Trial Counsel 4

RODNEY PATTON

5

Trial Attorney

6

JULIA BERMAN

Trial Attorney 7

U.S. Department of Justice

8

Civil Division, Federal Programs Branch

20 Massachusetts Avenue, N.W., Room 6102

9

Washington, D.C. 20001

Phone: (202) 514-3358

10

Fax: (202) 616-8470

E-mail: james.gilligan@usdoj.gov 11

Attorneys for the Government Defendants 12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Jewel v. NSA, No. 4:08-cv-4373-JSW: Gov’t Defs.’ Reply in Support of

Cross-Motion for Partial Summary Judgment on Pls.’ Fourth Amendment Claim

22

 
 Case4:08-cv-04373-JSW Document243 Filed06/06/14 Page1 of 19

1 STUART F. DELERY Assistant Attorney General
2 JOSEPH H. HUNT Director, Federal Programs Branch
3 ANTHONY J. COPPOLINO Deputy Branch Director
4 JAMES J. GILLIGAN Special Litigation Counsel
5 MARCIA BERMAN Senior Trial Counsel
6 BRYAN DEARINGER Trial Attorney
7 RODNEY PATTON Trial Attorney
8 JULIA BERMAN Trial Attorney
9 U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, NW, Rm. 7346
10 Washington, D.C. 20001 Phone: (202) 514-4782; Fax: (202) 616-8470
11
Attorneys for the Government Defendants 12 in their Official Capacity

13

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

14

OAKLAND DIVISION

_______________________________________

15

)

Case No. 4:08-cv-4373-JSW

CAROLYN JEWEL, et al.,

)

16

)

OPPOSITION TO PLAINTIFFS’

Plaintiffs,

)

EMERGENCY APPLICATION TO

17

)

ENFORCE COURT’S TEMPORARY

v.

)

RESTRAINING ORDER

18

)

NATIONAL SECURITY AGENCY, et al., )

19

)

Date: June 6, 2014

20

Defendants.

) )

Time: 2:00 p.m. Courtroom 5, 2nd Floor

_______________________________________) 21

The Honorable Jeffrey S. White

22

23

24

25

26

27

28

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1

INTRODUCTION

2

Assuming that the Court’s June 5, 2014 order requires an immediate halt to destruction of

3 all Section 702 materials, that order creates an extremely significant operational crisis for the

4 National Security Agency. As set forth in the accompanying declaration of Richard H. Ledgett,

5 Deputy Director of the NSA (“Ledgett Decl.”) (attached hereto as Exhibit A), it may not be

6 possible to comply immediately or in the near term with the Court’s order without shutting down

7 all systems and databases that collect and store Section 702 communications data, which will

8 have enormous adverse consequences for NSA’s ability to perform its foreign intelligence

9 mission. In the long term, NSA could not comply with this preservation mandate without

10 violating Foreign Intelligence Surveillance Court (FISC)-ordered minimization procedures that

11 are essential to the program’s compliance with statutory and constitutional requirements, and

12 without potentially severe operational difficulties that could jeopardize national security.

13

The Court entered its order without hearing from the Government. In this brief, we

14 attempt to correct some of the misimpressions underlying Plaintiffs’ filings, and consequently

15 the Court’s order, and to persuade the Court to vacate its June 5 order. First, the preservation of

16 information acquired pursuant to Section 702 is far more complex and fraught with legal,

17 technical, and operational difficulties than the preservation of the Section 215 telephony

18 metadata. Unlike the Section 215 telephony metadata program, which resides on a discrete

19 computer systems architecture, communications acquired pursuant to Section 702 reside within

20 multiple databases contained on multiple systems. Those databases and systems are designed to

21 effectuate FISC-approved minimization procedures that require (with certain limitations) the

22 destruction (purge) upon recognition of certain communications and the age-off of certain raw

23 data within either two years or five years from the expiration of the certification authorizing its

24 acquisition. Halting these purges and age-offs to preserve all Section 702 material, as we

25 understand the Court to have ordered, would require significant technical changes to these

26 databases and systems and would have the effect of forcing NSA into non-compliance with

27 FISC-approved minimization procedures, thus placing the entire program in legal jeopardy.

28

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1 Thus, far from maintaining the status quo, ordering the preservation of all Section 702 materials

2 requires the reconfiguration of the software and hardware used in these databases and systems.

3

Changes of this magnitude to database and systems architecture normally take months to

4 engineer and test; to comply immediately with the Court’s order, the NSA may have to shut

5 down all the databases and systems that contain Section 702 information. Such a shutdown

6 would suspend acquisition of communications pursuant to Section 702 and analyst access to

7 communications acquired under Section 702. NSA would lose access to what would be

8 otherwise lawfully collected signals intelligence information on foreign intelligence targets that

9 are vital to the performance of NSA’s foreign intelligence mission. Section 702 is the most

10 significant tool in NSA’s arsenal for detecting, identifying, and disrupting terrorist threats to the

11 United States and around the world. The impact of a shutdown of the databases and systems that

12 contain Section 702 information cannot be overstated.

13

Second, the Temporary Restraining Order Plaintiffs seek to enforce (ECF No. 189) did

14 not expressly apply to Section 702 materials, nor did the context in which it was entered involve

15 Section 702 materials. Rather, the TRO was intended to prevent the destruction of Section 215

16 telephony metadata that was scheduled to age-off pursuant to retention limitations imposed by

17 the Foreign Intelligence Surveillance Court as a condition for its collection.

18

Third, the parties are in the middle of briefing whether this case implicates Section 702 at

19 all. Plaintiffs’ complaints do not challenge Section 702 activity, which was public when

20 Plaintiffs filed their complaints, and to find that they challenge FISC-authorized activity would

21 be to invert their central claim against unauthorized activity. Moreover, it is highly unlikely that

22 any of Plaintiffs’ communications have been acquired under Section 702. The statute authorizes

23 only targeted surveillance of non-U.S. persons located overseas; it is not a bulk collection

24 program like the Section 215 telephony metadata program (another reason why it does not fit

25 within Plaintiffs’ claims of dragnet surveillance). It is also pure speculation as to whether

26 Plaintiffs’ communications have been caught up in any incidental overcollection that has

27 occurred under the program, and illogical to suspend the very FISC requirements designed to

28 protect against this.

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1

For all of these reasons, it would be a gross distortion of the Government’s preservation

2 obligations to require it to preserve all Section 702 material for purposes of this litigation.

3

BACKGROUND

4 The March 10, 2014 Temporary Restraining Order

5

The dispute regarding the scope of the Government Defendants’ preservation obligations

6 arose in the above-captioned cases after the Government confirmed the authenticity of an

7 unlawfully-disclosed Secondary Order of the FISC directing the production to the NSA of bulk

8 call detail records under Section 215 of the USA Patriot Act. Following that disclosure and

9 confirmation, several plaintiffs filed new suits challenging the legality of the Government’s

10 acquisition of bulk telephony metadata under Section 215. See, e.g., First Unitarian v. NSA, No.

11 3:13-cv-3287(JSW) (N.D. Cal.). To enable the Government to preserve information that may be

12 relevant to those cases, in February 2014, the Government sought relief from the FISC 13 requirement that telephony metadata acquired under Section 215 be destroyed after five years.1

14

Citing the Government’s filing before the FISC, Plaintiffs emailed the Government

15 Defendants seeking “specific reaffirmation that bulk telephone records collected by the NSA

16 have been preserved in the Jewel case.” ECF No. 186, Exh. E at 7. Plaintiffs then sought a

17 temporary restraining order “prohibiting . . . [the Government Defendants] from destroying any

18 evidence relevant to the claims at issue in this action, including but not limited to prohibiting the 19 destruction of any telephony metadata or ‘call detail’ records.” Id. at 1.2 On March 10, 2014,

20

21

22

1 The Government Defendants’ Brief Regarding Compliance with Preservation Orders,

at 2-9 (ECF No. 229), further details the background related to this dispute.

23

2 Although Plaintiffs’ motion for a temporary restraining order claimed that “[t]here

24 has been litigation challenging the lawfulness of the government’s telephone metadata collection activity, Internet metadata collection activity, and upstream collection activity pending in the

25 Northern District of California continuously since 2006,” ECF No. 186 at 2, Plaintiffs provide no

26

citation or support for that contention. In reality, the claims in Jewel and Shubert, and the balance of the MDL litigation, were directed only at presidentially-authorized NSA intelligence

27 activities, unauthorized by a court order. See Gov’t Defs.’ Brief Regarding Compliance with

Preservation Orders at 13-26 (ECF No. 229) (explaining that Plaintiffs did not, until the current 28 preservation dispute, purport to challenge any FISC-authorized intelligence gathering programs).

3
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1 this Court issued a temporary restraining order containing the above-quoted language, and, inter

2 alia, setting a hearing for March 19, 2014 to address the issue further. ECF No. 189 at 2.

3

At the March 19, 2014 hearing, the Government Defendants noted that “the concern”

4 before the Court “[was] the telephony metadata that were subject to the age-off requirements

5 under the FISC’s orders.” Am. Tr. of Proceedings 7:22–24 (Mar. 19, 2014) (attached hereto as

6 Exhibit B). The Court agreed: “That’s correct. . . . and the occasion, of course, for the Court’s

7 issuing of the Temporary Restraining Order plus having [the March 19, 2014 hearing] is because

8 of the potentially imminent threat that these documents or this metadata would be destroyed

9 pursuant to federal statute.” Id. at 7:25–8:4.

10

At the same hearing, the Court rejected Plaintiffs’ request that the Government

11 Defendants, within 15 days, “disclose whether they have destroyed telephone records, Internet

12 metadata records, Internet or telephone content data, or any other evidence potentially relevant to

13 these lawsuits since the commencement of Hepting, et al. v. AT&T et al. litigation (No. 06-cv-

14 0672) in January 2006.” See id. at 91:16–17 (rejecting Paragraph 4 of Plaintiffs’ proposed

15 preservation order, ECF No. 191-1). Indeed, the Court specifically refused to order preservation

16 of “telephone records, Internet metadata records, Internet or telephone content data without

17 regard to when the government obtained them or the legal authority under which the government

18 obtained them,” see id. at 91:18–24 (rejecting Paragraph 1 of Plaintiffs’ proposed preservation

19 order, ECF No. 191-1), because this requirement was “too broad” and “the Plaintiffs’ suggested

20 language on the scope of materials to be preserved [was] not sufficiently tethered to their

21 Complaint.” Id. at 91: 18–19, 22–24. The Court then specifically directed, in the context of

22 addressing the preservation order for First Unitarian, that preservation obligations should extend

23 no farther than “the evidence that relates to the precise claims made by Plaintiffs in [their]

24 complaint.” Id. at 91:24–92:2.

25

Finally, at the conclusion of that hearing, the Court instructed the Government to brief its

26 compliance with the preservation order issued in Jewel. Id. at 92: 9–17.

27

28

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1 The Current Dispute

2

Pursuant to this Court’s March 19, 2014 order in Jewel and the Shubert Plaintiffs’

3 unopposed request that the same briefing also address compliance with this Court’s preservation

4 order in Shubert, see Shubert ECF No. 117, the parties are currently briefing the scope of the

5 Government’s preservation obligations in Jewel and Shubert. The Government Defendants

6 submitted their opening brief on these issues on May 9, 2014. See ECF No. 229.

7

While the Jewel Plaintiffs responded on May 30, 2014, ECF No. 233, the Shubert

8 Plaintiffs requested a 6-day extension. See Email Exchange among Counsel (attached hereto as

9 Exhibit C) at 4. The Government Defendants consented to this request, provided they could

10 address the Shubert and Jewel Plaintiffs’ submissions in a single reply on June 27, 2014. Id.

11 The Jewel Plaintiffs, however, stated that they would agree to the Shubert Plaintiffs’ request only

12 “if the government [could] assure [them] that no additional data will be destroyed in the

13 meantime.” Id.

14

In response, the Government Defendants explained that their May 9, 2014 submission

15 addressed their compliance with their preservation obligations, and emphasized that nothing—

16 apart from the Shubert Plaintiffs’ extension request—had changed since the Court established the

17 briefing schedule regarding this very issue. Id. at 3. The Shubert Plaintiffs submitted the

18 parties’ stipulation seeking additional time on June 2, 2014, Shubert ECF No. 122, and, on June

19 3, 2014, this Court granted the requested relief, moving their deadline to June 5, 2014 and the

20 deadline for the Government Defendants’ reply to June 27, 2014. ECF No. 234.

21

All the while, the Jewel Plaintiffs continued to demand an assurance that “no additional

22 information will be destroyed in the meantime.” See Exh. C at 2–3. The Government

23 Defendants reminded Plaintiffs that the Court was aware of the parties’ disagreement over the

24 Government’s preservation obligations, and that that dispute was already the subject of ongoing

25 briefing. Id. 1–2. The Government Defendants offered two proposals to present the issues to the

26 Court within approximately one week, including moving the deadline for their own submission

27 (recently extended by the Court to June 27, 2014 to accommodate the Shubert Plaintiffs’

28 extension request) two weeks forward to the original deadline of June 13, 2014. The

5
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1 Government Defendants urged Plaintiffs to avoid emergency briefing on these matters because

2 “[t]he preservation issues at hand are complex and technical, and involve highly significant

3 operational activities of the Intelligence Community under FISC authorization.” Id.

4

Plaintiffs refused the Government Defendants’ offers to brief these matters fully by June

5 13, 2014. Id. at 1. Instead, Plaintiffs filed an emergency application that identified, for the first

6 time, specific evidence, as opposed to their broad demand that “no additional evidence be

7 destroyed,” see Exh C at 1–3. See ECF No. 235. In that submission, Plaintiffs referred to

8 “evidence relating to the mass interception of Internet communications [the NSA] is conducting

9 under section 702,” and, in particular, “evidence relating to [the NSA’s] use of ‘splitters’ to

10 conduct bulk interceptions of the content of Internet communications from the Internet

11 ‘backbone’ network of AT&T.” Id. at 1. Without supporting citation or explanation, Plaintiffs

12 asserted “[the March 20, 2014 temporary restraining order] and the context in which it was

13 entered” supported a broad interpretation of that order.

14

Before the Government Defendants had the opportunity to explain the complex technical

15 and operational issues implicated by the preservation of material acquired pursuant to Section

16 702—or to be heard as to the likely impact of such an undertaking for the NSA’s national

17 security mission—the Court ordered the Government “not to destroy any documents that may be

18 relevant to the claims at issue in this action, including the Section 702 materials.” Order, Jewel

19 ECF No. 236 (June 5, 2014) at 2. Promptly after that order issued, the Government Defendants

20 attempted to contact the Court telephonically, and then moved for an emergency stay of that

21 order, explaining that it “would cause severe operational consequences for the [NSA’a] national

22 security mission.” ECF No. 237.

23

Plaintiffs opposed that emergency motion, asking “How can the preservation of these

24 intercepted communications cause a ‘loss of access to lawfully collected signals intelligence

25 information’?” and asserting, without citation or support, “[t]hat information will remain 26 accessible even though it is being preserved.” ECF No. 238 at 1.3 The Declaration of the

27 3 In the same submission, Plaintiffs argued that the Government should have treated
28 the March 10, 2014 temporary restraining order as extending to activities undertaken pursuant to

6
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1 Deputy Director of the NSA answers Plaintiffs’ question, and demonstrates that Plaintiffs’

2 conjectures bear no resemblance to the potentially-affected infrastructure at the NSA or the

3 enormous difficulties and impairment to NSA’s core mission that preservation of all Section 702

4 material would entail.

5

ARGUMENT

6 I.

PRESERVING ALL SECTION 702 DATAWOULD CREATE SEVERE LEGAL AND

7

TECHNICAL DIFFICULTIES THAT COULD JEOPARDIZE THE OPERATION OF

THE PROGRAM AND PLACE NATIONAL SECURITY AT RISK. 8
As set forth in Deputy Director Ledgett’s declaration, complying with a mandate to

9 preserve would place the continued operation of the Section 702 program in jeopardy, both in the

10 near and long term.

11 Complying with this Court’s June 5 order would significantly undercut critical privacy

12 protections applying to NSA’s handling of Section 702 data. Section 702 facilitates the targeted

13 acquisition of foreign intelligence information concerning foreign targets located outside the

14 United States under FISC oversight and in compliance with the Fourth Amendment. See 50

15 U.S.C. § 1881a. Under this program, electronic communication service providers supply

16 information to the Government pursuant to authorized directives issued by the Attorney General

17 and the Director of National Intelligence (“DNI”). See ODNI Fact Sheet at 1 (June 8, 2013)

18 (attached hereto as Exhibit D); see 50 U.S.C. § 1881a(h). The FISA requires the Attorney

19 General and DNI to adopt certain minimization procedures, see id. § 1881a(e), the purposes of

20 which are, for example, “to minimize the acquisition and retention, and prohibit the

21

22 Section 702 “especially in light of the extensive discussions between Court and counsel at the

23

March 19, 2014 hearing on the evidence preservation dispute.” ECF No. 238 at 1–2. Plaintiffs cite nothing in the transcript of those proceedings to support their view. See id. Indeed, the

24 Court’s holdings at the March 19 hearing support the opposite conclusion, since the Court found that the preservation order Plaintiffs proposed for First Unitarian was “too broad” and was “not
25 sufficiently tethered to [the] Complaint.” Am. Tr. of Proceedings 91:18–24 (Mar. 19, 2014).

26

The Court thus specifically rejected Plaintiffs’ contention that the Government should be required to preserve “telephone records, Internet metadata records, Internet or telephone content

27 data without regard to when the government obtained them or the legal authority under which the

government obtained them.” See id. (rejecting Paragraph 1 of Plaintiffs’ proposed preservation 28 order, ECF No. 191-1); see also supra, discussing the March 19, 2014 hearing.

7
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1 dissemination, of nonpublicly available information concerning unconsenting United States

2 persons consistent with the need of the United States to obtain, produce, and disseminate foreign

3 intelligence information.” Id. §§ 1801(h), 1821(4). The FISC must approve these specific

4 procedures and any amendment to them. See id. § 1881a(i).

5

NSA minimization procedures are intended to ensure, inter alia, that the collection is

6 consistent with the Fourth Amendment and are too numerous to detail here. See id. § 7 1881a(b)(5). 4 By way of example, though, the NSA must not retain information pursuant to its

8 so-called PRISM collection any longer than “five years from the expiration date of the

9 certification authorizing the collection,” whereas information “known to contain communications

10 of or concerning United States persons [must] be destroyed upon recognition . . .” if it does not

11 meet one of the requirements for retention. Minimization Procedures Used by the National

12 Security Agency in Connection with Acquisitions of Foreign Intelligence Information Pursuant

13 to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended (“Minimization

14 Procedures”) at 7 (attached hereto as Exhibit E). Similarly, with regard to information acquired 15 through NSA’s “upstream collection techniques,” id. at 7,5 unevaluated information “may be

16 retained no longer than two years from the expiration date of the certification authorizing the

17 collection,” whereas information that is “known to contain communications of or concerning

18 United States persons will be destroyed upon recognition” if it does not meet one of the 19 requirements for retention. Id.6 Complying with this Court’s June 5 Order to preserve

20

21

4 Each agency that receives the Section 702 collection has its own FISC-approved

minimization procedures and may retain and disseminate communications acquired under

22 Section 702 only in accordance with those procedures. The Court’s June 5 Order would

23

similarly impact the minimization procedures implemented by the other agencies that receive Section 702-derived information.

24

5 Upstream collection refers to NSA’s collection of telephone and electronic

communications as they transit the Internet backbone within the United States.

25

6 The text of this brief refers here only to two examples of retention limits and purging

26

requirements. Other situations and the associated minimization procedures and compliance requirements are set forth in detail in the Minimization Procedures such as those involving a

27 change in the target’s location (determined to be inside the United States) or his status

(determined to be a U.S. person), attorney-client communications, “domestic communications,” 28 and “foreign communications of or concerning United States persons.” Minimization Procedures

8
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1 indefinitely all Section 702 material will conflict with these current time limits for the retention

2 of data as well as the requirements that certain information be destroyed “upon recognition.” See

3 Minimization Procedures at 7-9.

4

Amending the current minimization procedures—which is no small matter and cannot be

5 done immediately to comply with this Court’s June 5 Order7—to appropriately adjust all the

6 retention limits and all purging requirements will place the program in jeopardy. See Ledgett

7 Decl. ¶ 2 (declaring that NSA cannot effectuate this Court’s order while remaining in compliance

8 with the statute and related FISC orders). The FISC has previously approved the NSA’s

9 minimization procedures for collections under Section 702. See Aug. 24, 2012 FISC Op., 2012

10 WL 9189263, at *2-3; Nov. 30, 2011 FISC Op., 2011 WL 10947772; Oct. 3, 2011 FISC Op.,

11 2011 WL 10945618. To take one example, however, in an opinion issued on October 3, 2011,

12 the FISC found that the NSA’s minimization procedures as applied to one aspect of the proposed

13 collection—NSA’s upstream collection of internet transactions containing multiple

14 communications, or “MCTs”—was statutorily and constitutionally deficient. See Oct. 3, 2011 15 FISC Op., 2011 WL 10945618.8

16

17 at 7-9. All of these procedures will be impacted if the NSA were to comply with the Court’s

18

June 5 Order. 7 The Attorney General and the Director of National Intelligence (“DNI”), who are

19 responsible for amending the statutorily-based minimization procedures, see 50 U.S.C. §

1881a(i)(1)(C), must execute under oath an amended certification that contains the requisite 20 statutory findings concerning the amended minimization procedures, that is, the certification

21 must contain the findings that the amended procedures meet the statutory definition of minimization procedures, will be submitted to the FISC for approval, and are consistent with the

22 requirements of the Fourth Amendment. See id. §§ 1881a(g)(1)(A), (2)(A)(ii) & (iv). Pursuant

23

to the FISA, the FISC then has 30 days in which to review the amended certification and minimization procedures and to issue an order either approving them or finding them deficient.

24 See id. § 1881a(i)(1)(B) & (3)(A), (B). Although the Attorney General and DNI can authorize

the use of the amended minimization procedures pending the FISC’s review, so that the

25 amendment could be effective immediately upon execution, see 50 U.S.C. § 1881(a)(i)(1)(C), the

26

FISC would still have to approve the certification and minimization procedures. At bottom, even if NSA could otherwise comply with this Court’s June 5 order, compliance could not begin

27 immediately. 8 The Deputy Director of the NSA provides another example. If the NSA was prohibited
28 from purging inadvertently acquired communications of American citizens and other U.S.

9
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1

In that opinion, the FISC explained that, under the NSA’s then-proposed minimization

2 procedures, thousands of wholly domestic communications and other discrete communications

3 that are not to or from a targeted selector but that are to, from, or concerning a United States

4 person could be retained by the NSA for at least five years, even if the communications had no

5 direct connection to a targeted selector and thus were unlikely to contain foreign intelligence

6 information. See id. at * 17-29. As a result, the FISC concluded that the proposed NSA

7 minimization procedures failed to meet the statutory requirements of minimization procedures

8 and did not pass constitutional muster. Id. The Attorney General and DNI adopted new

9 minimization procedures designed to cure these deficiencies and sought the FISC’s approval as

10 required. See Nov. 30, 2011 FISC Mem. Op., available at

11 http://www.dni.gov/index.php/newsroom/press-releases/191-press-releases-2013/915-dni-

12 declassifies-intelligence-community-documents-regarding-collection-under-section-702-of-the-

13 foreign-intelligence-surveillance-act-fisa.

14

The FISC’s rationale for approving these new procedures as compliant with FISA and

15 consistent with the requirements of the Fourth Amendment is instructive here. See id. at 11-15.

16 As for the then-newly proposed two-year retention limits for upstream acquisitions, the FISC

17 found that this limit “strikes a more reasonable balance between the government’s national

18 security needs and the requirements that non-target information concerning United States

19 persons and persons in the United States be protected.” Id. at 13. The “principal problem,” the

20 FISC continued, with the measures previously proposed that the FISC had rejected was that

21 “rather than requiring the identification and segregation of information ‘not relevant to the

22 authorized purpose of the acquisition’ or the destruction of such information promptly following

23 acquisition, NSA’s [previously proposed] handling of MCTs tended to promote the retention of

24 information, including information of or concerning United States persons with no direct

25 connection to any target.” Id. at 14 (emphasis added).

26

27
persons as this Court’s order of June 5 seems to require, such a situation could create a violation 28 of a statute, 50 U.S.C. § 1809, which contains criminal penalties. Ledgett Decl. ¶ 4.

10
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1

So too here. The Court’s June 5 Order requires the retention of this type of information

2 indefinitely that might be otherwise purged upon recognition or aged-off after the pertinent time

3 period. By requiring that information be retained indefinitely, the Court’s order destroys “the

4 reasonable balance” the FISC found to have satisfied statutory and Constitutional requirements

5 for upstream collection. See FISC Mem. Op. (Nov. 30, 2011), at 13. These are but two

6 examples. The Court’s June 5 Order cannot be reconciled with the FISC-approved procedures

7 that have been carefully designed to be consistent with the Constitution and with the “need of the

8 United States to obtain, produce, and disseminate foreign intelligence information.” 50 U.S.C. §

9 1801(h).

10

In addition to putting the Section 702 program in jeopardy, compliance with this Court’s

11 order of June 5 is also likely to have “an immediate, specific, and harmful impact on the national

12 security of the United States” because the NSA may not be able to comply immediately with the

13 order without shutting down the Section 702 program. See Ledgett Decl. ¶ 2. The impact of

14 compliance with this Court’s June 5 Order on the NSA—and on the national security of this

15 country—would have immediate adverse consequences. In the near term, attempts to fully

16 comply with the Court’s June 5 Order would be a massive and uncertain endeavor because the

17 NSA may have to shut down all databases and systems that contain Section 702 information in

18 an effort to comply. See id. ¶¶ 2-3.

19

The reason why the NSA would have to suspend these operations is that the NSA’s

20 databases are optimized to ensure compliance with the legal requirements of FISA, which

21 includes the FISC-authorized and approved minimization procedures for the retention of

22 information as well as the NSA’s legal obligation to purge or otherwise promptly destroy certain

23 information it collects, as discussed above. See id. ¶ 3. And, unlike bulk telephony metadata

24 collected under the Section 215 program, communications acquired pursuant to Section 702

25 resides within multiple databases contained on multiple, operationally complex systems. See id.

26 ¶ 3. This means that, as an initial step in attempting to comply with this Court order, the NSA

27 may need to take all databases containing Section 702 data offline while NSA operators and

28 technical staff determine whether and how all of the data that would otherwise be destroyed in

11
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1 order to comply with the FISA and the Constitution could be retained indefinitely instead in

2 compliance with this Court’s June 5 Order. See id. ¶ 5. Prior to implementing these changes,

3 the NSA must thoroughly develop and test the proposed modifications in order to avoid

4 unforeseen consequences that could cause FISC compliance problems or impact the NSA’s

5 ability to provide foreign intelligence to protect the country. See id.

6

Throughout this period of time, NSA analysts would be unable to access foreign

7 intelligence information already stored in these repositories, and the NSA would be unable to

8 ingest (or add) any incoming foreign intelligence information into these repositories for review

9 and analysis. See id. This direct loss of access to significant foreign intelligence would

10 immediately impact the national security of the United States. Id. ¶ 3. As numerous officials

11 within the Intelligence Community have publicly stated, and as the evidence shows, the

12 acquisition of communications pursuant to Section 702 of the FISA is the most significant tool in

13 the NSA’s collection arsenal for the detection, identification, and disruption of terrorist threats to

14 the U.S. and around the world. Id. ¶ 7. For example, the information gathered under this

15 program has provided the U.S. Government with “critical leads to help prevent potential terrorist

16 events in countries around the world, has yielded intelligence regarding proliferation networks,

17 has directly and significantly contributed to successful operations to impede the proliferations of

18 weapons of mass destruction and related technologies, and has provided significant and unique

19 intelligence regarding potential cyber threats. Id.

20

In short, as the Deputy Director of the NSA concluded, any decision that might impair

21 NSA operations in this manner could immediately deprive the nation of this valuable tool and 22 cause immediate and grave danger to the national security. Id.9

23

24

9 The Deputy Director of the NSA also notes that, in the short and long-term, an order

prohibiting the destruction of any Section 702 data will cause a lack of or delay of access to

25 lawfully collected signals intelligence because (1) the NSA has only a finite amount of data

26

storage capacity and so the NSA would be limited in its ability to store newly collected nonSection 702 data; (2) implementation of the Court’s order would introduce latency into the

27 system (such as lengthening the query response time for analysts) which could prevent analysts

from identifying, analyzing, and disseminating critical intelligence to prevent an attack; and (3) 28 there will be foreseen and unforeseen consequences to implementing the Court’s June 5 Order,

12
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Case4:08-cv-04373-JSW Document243 Filed06/06/14 Page14 of 19

1 II. THE COURT’S TEMPORARY RESTRAINING ORDER DOES NOT INCLUDE

2

SECTION 702 MATERIALS, NOR ARE SECTION 702 MATERIALS RELEVANT

TO PLAINTIFFS’ CLAIMS.

3 The TRO that Plaintiffs seek to enforce does not apply to Section 702 materials, either

4 expressly or implicitly.10 See Fed. R. Civ. P. 65(d)(1) (“Every order granting and injunction and

5 every restraining order must . . . state its terms specifically; and describe in reasonable detail . . .

6 the act or acts restrained or required.”); see also Del Webb Cmtys., Inc. v. Partington, 652 F.3d

7 1145, 1150 (9th Cir. 2011). Plaintiffs never sought a temporary restraining order over these

8 materials—a fact made clear in their original motion for a temporary restraining order. That

9 motion did not request relief regarding Section 702 activities, but rather, concerned “the same

10 telephonic records at issue in First Unitarian Church v. NSA,” which Plaintiffs repeatedly

11 specified as bulk “telephone metadata records” or “call-detail records.” Pls.’ Ex Parte Mot. for

12 TRO, Dkt. No. 186 at 1, 2; see id. at 3-4 (“The Jewel complaint alleged unlawful and

13 unconstitutional acquisition of call-detail records, including the ‘call-detail records collected

14 under the [NSA’s] bulk telephony metadata program . . . . While the Plaintiff[s] ultimately want

15 the call-detail records destroyed at the conclusion of the case, there is no doubt that the call-

16 records ‘may be relevant’ in the interim.”); see also Pls.’ Ex Parte Mot. for TRO in First

17

18 which could include scheduled and unscheduled outages to ensure FISC compliance and compliance with this Court’s order. See Ledgett Decl. ¶ 8.

19

10 If the Court were to construe Plaintiffs’ application as a motion for a new TRO to

cover Section 702 materials, such a motion should be denied not only for the reasons that follow, 20 but also for failure to establish any of the requirements for an “extraordinary and drastic remedy”

21 before the merits of the preservation dispute have been decided. Munaf v. Geren, 553 U.S. 674, 689-90 (2008); see also Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832,

22 839 n.7 (9th Cir. 2001) (standard for a TRO is the same as for a preliminary injunction). Such

23

drastic relief is appropriate only “upon a clear showing that the plaintiff is entitled to such relief,” including the demonstration “(1) that it is likely to succeed on the merits, (2) that it is

24 likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in its favor, and (4) that an injunction is in the public interest.” Earth Island Inst. v.
25 Carlton, 626 F.3d 462, 469 (9th Cir. 2010) (citing Winter v. NRDC, 555 U.S. 7, 19 (2008)).

26

Plaintiffs bear the burden of demonstrating that each of these four factors is met. DISH Network Corp. v. FCC, 653 F.3d 771, 777 (9th Cir. 2011). “[A]n injunction must be narrowly tailored . . .

27 to remedy only the specific harms shown by the plaintiffs rather than to enjoin all possible

breaches of the law.” Iconix, Inc. v. Tokuda, 457 F. Supp. 2d 969, 998 (N.D. Cal. 2006) (citing 28 Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004)).

13
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Case4:08-cv-04373-JSW Document243 Filed06/06/14 Page15 of 19

1 Unitarian, 08-cv-3287, Dkt. No. 86 (same in every respect). Nor have Plaintiffs at any time

2 sought to extend the scope of the TRO beyond the bulk collection of telephony metadata. See,

3 e.g., Am. Tr. of Proceedings at 62:5–9 (Counsel for Plaintiffs) (“[W]e specifically excluded from

4 the class in Jewel anybody who was involved with a terrorist [organization]. We’re talking about

5 ordinary people and bulk collection.”), and id. at 62:25– 63:5 (“[T]he idea here is to map the

6 preservation obligations to the allegations of the Complaint. And the allegations of the

7 Complaint are about bulk collection”). Because “an injunction should be tailored to eliminate

8 only the specific harm alleged,” Experience Hendrix L.L.C. v. Hendrixlicensing.com, LLC, 742

9 F.3d 377, 388 (9th Cir 2014) (internal quotation omitted), it would be error to interpret the TRO

10 beyond its terms and the harms alleged in Plaintiffs’ original motion.

11

The context surrounding Plaintiffs’ original motion for a temporary restraining order

12 likewise underscores its specific focus. That motion, and the TRO resulting therefrom, dealt

13 with the specific context of the impending destruction of aged-off bulk telephony metadata

14 obtained pursuant to Section 215 of the FISA, in compliance with FISC-ordered data retention

15 limits. See Gov’t Defs.’ Notice Regarding Order of the FISC (filed in First Unitarian, No. 13-

16 cv-3287, Dkt. No. 85) (notifying Court and Plaintiffs of the FISC’s denial of the Government’s

17 motion for leave to retain call-detail records beyond FISC-ordered retention deadlines). See also

18 supra at 3-5.

19

In the face of the language of the TRO, the motion that precipitated it, the statements

20 made by Plaintiffs’ counsel in open court, and the context surrounding the parties’ preservation

21 dispute, Plaintiffs would nevertheless have this Court believe that its TRO related to bulk

22 telephony metadata covers the “destruct[ion of] evidence relating to surveillance under section

23 702,” see Pls. Mot., Ex. E. But not only did Plaintiffs not seek a temporary restraining order

24 over such materials, see supra, they did not even raise the potential preservation of Internet or

25 telephone content generally (not Section 702 materials specifically) until after the TRO was

26 entered and after being told by this Court that the occasion for its issuance was the impending

27 destruction of aged-off bulk telephony metadata, during later briefing. See Pls.’ Opening Br. Re

28 Evid. Preservation at 1 (ECF No. No. 191). That later briefing led to a preservation order in the

14
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1 First Unitarian case—an order that concerns the bulk telephony metadata program, not Section

2 702 activities—and to the Court establishing a separate briefing schedule to resolve the parties’

3 disagreement regarding the scope of the Government’s preservation obligations in Jewel and

4 Shubert. See Am. Minute Order, Dkt. No. 206 at 2.

5

In sum, the TRO Plaintiffs seek to enforce was intended to prevent, and does prevent, the

6 destruction of Section 215 telephony metadata that was scheduled to age-off pursuant to

7 retention limitations imposed by the FISC as a condition for its collection. It does not apply to

8 Section 702 materials, nor did the context in which it was entered involve such materials.

9

The burden to the Government and harm to the NSA’s mission from preserving all

10 Section 702 material is particularly unwarranted given the irrelevance of this material to

11 Plaintiffs’ claims. As the Court is aware, the Government vigorously disputes that Plaintiffs’

12 claims encompass any FISC-authorized activity, given, among other things, the fact that the

13 complaints challenge intelligence-gathering activities that occurred without any statutory or

14 judicial authority. However, to read those complaints as challenging activity authorized by

15 Section 702 would be particularly egregious. Section 702 is a publicly acknowledged

16 intelligence collection program that clearly operates pursuant to both statutory and judicial

17 authority. It was enacted before Plaintiffs filed their complaint, and was challenged in a public

18 lawsuit the day it was enacted in 2008. See Clapper v. Amnesty International, 133 S. Ct. 1138,

19 1146 (2013). Plaintiffs did not, however, challenge any Section 702 activities in their complaint,

20 and they subsequently disavowed any relevance of Section 702 to their claims. See Gvt. Defs.’

21 Brief Regarding Compliance with Preservation Orders at 16-17 (ECF No. 229).

22

Moreover, the common thread of Plaintiffs’ claims is a challenge to mass surveillance

23 activities—i.e., the bulk, “dragnet” collection of communications and communications records—

24 in contrast to targeted surveillance activities. Section 702 undisputedly permits the targeting of

25 non-U.S. persons reasonably believed to be located outside the United States in order to acquire

26 foreign intelligence information. Section 702 does not authorize the bulk acquisition of domestic

27 communications, nor does it permit the targeting of any person known to be in the United States

28 or any U.S. person reasonably believed to be located abroad. See 50 U.S.C. §§ 1881a(a), (b);

15
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1 Clapper v. Amnesty International, 133 S. Ct. 1138, 1144 (2013); Klayman v. Obama, 957 F.

2 Supp. 2d 1, 8 n.6 (D.D.C. 2013).

3

Plaintiffs themselves emphasized this distinction, with respect to Section 702, as recently

4 as January of this year. In explaining why footnote four of Amnesty International does not apply 5 to their case,11 Plaintiffs told the Court that deciding their “claims of untargeted surveillance will

6 not reveal who the government has targeted for surveillance, because that fact is irrelevant and

7 unnecessary to plaintiffs’ claims.” Plaintiffs’ Responses to the Court’s Four Questions at 10

8 (ECF No. 177). They went on to distinguish claims based on Section 702 from their case as

9 follows:

10

Clapper was a targeted surveillance lawsuit, not an untargeted surveillance lawsuit like this one. . . . The Clapper plaintiffs made a facial challenge to the

11

constitutionality of 50 U.S.C. § 1881a (section 702 of FISA), a statute that

authorizes only targeted surveillance . . . . The Clapper plaintiffs alleged their

12

future communications likely would be intercepted because they

13

communicated with persons who were likely targets of surveillance, not because they were subject to a program of untargeted mass surveillance.

14 Id. at 10-11 (emphasis added). Plaintiffs cannot have it both ways—they cannot maintain one

15 view of the scope of their claims for purposes of arguing that the Government is destroying

16 potentially relevant evidence, and the opposite view for purposes of arguing that Amnesty

17 International’s footnote four does not apply to their case.

18

Consistent with these statements, Plaintiffs have not alleged that they were targeted under

19 Section 702 (which would be implausible since Plaintiffs are U.S. persons), or that they

20 communicated or communicate with anyone who was or is targeted under Section 702. To the

21 extent that Plaintiffs will argue that the Section 702 program is a program of untargeted mass

22 surveillance based on the fact that, due to technological limitations, NSA’s upstream collection

23 results in the acquisition of Internet transactions containing multiple communications, it is purely

24 speculative that Plaintiffs’ communications are included in this incidental overcollection. In

25

26

11 See Jewel v. NSA, 965 F. Supp. 2d 1090, 1113 (N.D. Cal. 2013) (explaining that footnote four of Amnesty International “not[es] that, pursuant to hypothetical in camera

27 proceedings permitted under [50 U.S.C.] § 1806(f), ‘the court’s postdisclosure decision about

whether to dismiss the suit for lack of standing would surely signal to the terrorist whether his 28 name was on the list of surveillance targets.’”).

16
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Case4:08-cv-04373-JSW Document243 Filed06/06/14 Page18 of 19

1 2011, NSA’s upstream collection constituted only approximately 9% of the total Internet

2 communications being acquired by the NSA under Section 702. Oct. 3, 2011 FISC opinion,

3 2011 WL 10945618, at * 9.

4

An argument based on incidental overcollection under upstream also overlooks the fact

5 that the NSA has implemented a host of minimization procedures, which the FISC has approved,

6 pursuant to which the NSA, inter alia, (1) identifies and segregates those types of Internet

7 transactions that are most likely to contain wholly domestic communications and non-target

8 communications to or from U.S. persons or persons located in the United States, (2) restricts

9 analysts’ access to segregated transactions, (3) destroys transactions determined to contain

10 wholly domestic communications, and (4) destroys all Internet transactions two years after the

11 date of the certification authorizing the collection. See November 30, 2011 FISC opinion at 7-

12 15. Thus, even if Plaintiffs’ communications had in fact been incidentally acquired under NSA’s

13 upstream collection (a highly speculative proposition), the minimization procedures make it

14 “exceedingly unlikely” that any of those communications have been maintained. Ledgett Decl. ¶

15 9. An order requiring the preservation of all Section 702 material would, ironically, abrogate the

16 very protections put in place by the FISC to ensure that the NSA’s upstream collection complies

17 with the Fourth Amendment, all so that Plaintiffs can attempt to show that it did not.

18

CONCLUSION

19

For all the foregoing reasons, the Court should deny Plaintiffs’ Emergency Application to

20 Enforce the Court’s Temporary Restraining Order and vacate its June 5, 2014 order.

21 Dated: June 6, 2014

Respectfully Submitted,

22

STUART F. DELERY

23

Assistant Attorney General

24

JOSEPH H. HUNT

25

Director, Federal Programs Branch

26

/s Anthony J. Coppolino

ANTHONY J. COPPOLINO

27

Deputy Branch Director

28

17
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1

JAMES J. GILLIGAN Special Litigation Counsel

2

james.gilligan@usdoj.gov

3

/s Marcia Berman

4

MARCIA BERMAN Senior Trial Counsel

5

marcia.berman@usdoj.gov

6

BRYAN DEARINGER

RODNEY PATTON

7

JULIA BERMAN

8

Trial Attorneys

9

U.S. Department of Justice

Civil Division, Federal Programs Branch

10

20 Massachusetts Avenue, NW, Rm. 6102

11

Washington, D.C. 20001 Phone: (202) 514-4782

12

Fax: (202) 616-8460

13

Attorneys for the Government Defendants

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

18
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 Case4:08-cv-04373-JSW Document235 Filed06/05/14 Page1 of 4

1 CINDY COHN (SBN 145997)

RACHAEL E. MENY (SBN 178514)

cindy@eff.org 2 LEE TIEN (SBN 148216)

rmeny@kvn.com PAULA L. BLIZZARD (SBN 207920)

3 KURT OPSAHL (SBN 191303) JAMES S. TYRE (SBN 083117)

MICHAEL S. KWUN (SBN 198945) AUDREY WALTON-HADLOCK (SBN 250574)

4 MARK RUMOLD (SBN 279060)

BENJAMIN W. BERKOWITZ (SBN 244441)

ANDREW CROCKER (SBN 291596) 5 DAVID GREENE (SBN 160107)

JUSTINA K. SESSIONS (SBN 270914) KEKER & VAN NEST, LLP

ELECTRONIC FRONTIER FOUNDATION 633 Battery Street

6 815 Eddy Street

San Francisco, CA 94111

7 San Francisco, CA 94109

Telephone: 415/391-5400; Fax: 415/397-7188

Telephone: 415/436-9333; Fax: 415/436-9993

8

THOMAS E. MOORE III (SBN 115107)

RICHARD R. WIEBE (SBN 121156) 9 wiebe@pacbell.net

tmoore@rroyselaw.com ROYSE LAW FIRM, PC

10

LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900

1717 Embarcadero Road Palo Alto, CA 94303

11 San Francisco, CA 94111

Telephone: 650/813-9700; Fax: 650/813-9777

Telephone: 415/433-3200; Fax: 415/433-6382

12

ARAM ANTARAMIAN (SBN 239070)

aram@eff.org

13

LAW OFFICE OF ARAM ANTARAMIAN

1714 Blake Street

14

Berkeley, CA 94703

Tel.: 510/289-1626

15 Counsel for Plaintiffs

16

UNITED STATES DISTRICT COURT

17

FOR THE NORTHERN DISTRICT OF CALIFORNIA

18

OAKLAND DIVISION

19

) Case No.: 4:08-cv-4373-JSW

CAROLYN JEWEL, TASH HEPTING,

)

20 YOUNG BOON HICKS, as executrix of the ) IMMEDIATE ACTION REQUESTED

estate of GREGORY HICKS, ERIK KNUTZEN ) 21 and JOICE WALTON, on behalf of themselves ) PLAINTIFFS’ EMERGENCY

and all others similarly situated, 22
Plaintiffs, 23

) APPLICATION TO ENFORCE THE

) ) )

COURT’S TEMPORARY RESTRAINING ORDER

v. 24
NATIONAL SECURITY AGENCY, et al., 25
Defendants. 26

) ) )

HEARING REQUESTED FOR JUNE 6, 2014

) )

Courtroom 5, 2nd Floor The Honorable Jeffrey S. White

27

28
Case No. 08-cv-4373-JSW PLAINTIFFS’ EMERGENCY APPLICATION TO ENFORCE THE COURT’S TEMPORARY RESTRAINING ORDER

Case4:08-cv-04373-JSW Document235 Filed06/05/14 Page2 of 4

1

By this emergency application, plaintiffs seek immediate enforcement of the evidence

2 preservation Temporary Restraining Order (the “TRO”) entered by the Court on March 10, 2014

3 (ECF No. 189) and reaffirmed in the Court’s April 17, 2014 Amended Minute Order (ECF

4 No. 206). Because of the urgency of this matter, plaintiffs respectfully request that the Court hear

5 the parties on this matter on Friday, June 6, 2014 at a time convenient to the Court. Plaintiffs

6 have conferred with counsel for the plaintiffs in Shubert v. Obama and they join in this application.

7 Plaintiffs also informed defendants, as of 10:30 am PDT today, that they are seeking this relief.

8 Cohn Decl., Exh. E.

9

In its TRO, the Court ordered the government to refrain from any further destruction of

10 evidence pending final resolution of the parties’ dispute over the government’s evidence

11 preservation obligations: “Accordingly, it is HEREBY ORDERED that Defendants, their officers,

12 agents, servants, employees, and attorneys, and all those in active concert or participation with

13 them are prohibited, enjoined, and restrained from destroying any potential evidence relevant to the

14 claims at issue in this action, including but not limited to prohibiting the destruction of any

15 telephone metadata or ‘call detail’ records, pending further order of the Court.” ECF No. 189 at 2

16 (emphasis added). In its Amended Minute Order, the Court reiterated that the TRO’s prohibition

17 on any evidence destruction remains in effect until the Court has finally decided the evidence

18 preservation dispute: “The Court extends the temporary restraining order issued on March 10,

19 2014 until a final order resolving the matter is issued.” ECF No. 206 at 1.

20

In communications with the government this week, plaintiffs learned to their surprise that

21 the government is continuing to destroy evidence relating to the mass interception of Internet

22 communications it is conducting under section 702 of the Foreign Intelligence Surveillance Act.

23 This would include evidence relating to its use of “splitters” to conduct bulk interceptions of the

24 content of Internet communications from the Internet “backbone” network of AT&T, as described

25 in multiple FISC opinions and in the evidence of Mark Klein and J. Scott Marcus, ECF Nos. 84,

26 85, 89, 174 at Ex. 1.

27

Specifically, in connection with the modification of the evidence preservation briefing

28 schedule earlier this week, plaintiffs’ counsel sought assurances from the government that no

Case No. 08-cv-4373-JSW

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1 evidence destruction would occur if the briefing schedule were extended. Cohn Decl. Ex. A. After

2 initially giving a cryptic response, the government finally confirmed today that in its view the TRO 3 does not require it to preserve evidence relating to Internet content interceptions and that it has not 4 stopped the routine destruction of such evidence. Cohn Decl., Exs. B, C and D. The government 5 stated: “The Court is presently considering whether the Government must preserve material

6 obtained under Section 702 of FISA in the context of the Jewel/Shubert litigation. In the

7 meantime, pending resolution of the preservation issues in this case, we have been examining with 8 our clients how to address the preservation of data acquired under the Section 702 program in light 9 of FISC imposed data retention limits (even though we disagree that the program is at issue in

10 Jewel and Shubert).” This, quite plainly, means that the government has interpreted the March 10,

11 2014 TRO as putting it under no current obligation to preserve evidence it has collected under

12 section 702 despite the clear language of the TRO and the context in which it was entered.

13

Once again, the government has apparently secretly and unilaterally reinterpreted its

14 obligations under the Court’s evidence preservation orders, without notice to the Court or to

15 plaintiffs, and has determined that it need not engage in preservation of relevant evidence. This

16 time, however, there can be no dispute that the government was aware of broad scope of the TRO 17 and the Court’s intention that no destruction occur of evidence plaintiffs contend is relevant until 18 the Court has decided the matter.

19

Plaintiffs request an immediate hearing before the Court on Friday, June 6, 2014 to enforce

20 the existing TRO and to impose on the government whatever further measures are necessary to

21 ensure that no destruction of evidence occurs before the Court has decided the pending evidence

22 preservation dispute.

23 Dated: June 5, 2014

Respectfully submitted,

24

/s/ Cindy Cohn

25

CINDY COHN LEE TIEN

26

KURT OPSAHL

JAMES S. TYRE

27

MARK RUMOLD

ANDREW CROCKER 28

Case No. 08-cv-4373-JSW

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PLAINTIFFS’ EMERGENCY APPLICATION TO ENFORCE THE COURT’S TEMPORARY RESTRAINING ORDER

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DAVID GREENE

1

ELECTRONIC FRONTIER FOUNDATION

2

RICHARD R. WIEBE

3

LAW OFFICE OF RICHARD R. WIEBE

4

THOMAS E. MOORE III

ROYSE LAW FIRM 5

6

RACHAEL E. MENY MICHAEL S. KWUN

7

BENJAMIN W. BERKOWITZ

JUSTINA K. SESSIONS

8

AUDREY WALTON-HADLOCK

PAULA L. BLIZZARD

9

KEKER & VAN NEST LLP

10 ARAM ANTARAMIAN

11

LAW OFFICE OF ARAM ANTARAMIAN

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Counsel for Plaintiffs

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Case No. 08-cv-4373-JSW

-3-

PLAINTIFFS’ EMERGENCY APPLICATION TO ENFORCE THE COURT’S TEMPORARY RESTRAINING ORDER

 
 Case4:08-cv-04373-JSW Document236 Filed06/05/14 Page1 of 2

United States District Court For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
9

10 CAROLYN JEWEL, ET AL.,

11

Plaintiffs,

No. C 08-04373 JSW

12 v.

13 NATIONAL SECURITY AGENCY, ET AL.,

14

Defendants.

15 16 VIRGINIA SHUBERT, ET AL.,

No. C 07-00693 JSW

17

Plaintiffs,

18 v.

19 BARACK OBAMA, ET AL.,

ORDER RE EMERGENCY APPLICATION TO ENFORCE THE COURT’S TEMPORARY RESTRAINING ORDER

20

Defendants.

/

21

22

On March 10, 2014, this Court entered a temporary restraining order requiring the

23 preservation of relevant evidence pending the parties’ further briefing and the Court’s final

24 determination of the preservation issues. In its restraining order, the Court required that the

25 government refrain from “destroying any potential evidence relevant to the claims at issue in

26 this action, including but not limited to prohibiting the destruction of any telephone metadata or

27 ‘call detail’ records, pending further order of the Court.” (Order dated March 10, 2014 at 2.)

28

Case4:08-cv-04373-JSW Document236 Filed06/05/14 Page2 of 2

United States District Court For the Northern District of California

1

On June 5, 2014, the Court received an emergency filing from Plaintiffs in which they

2 contend that the government may be in violation of the Court’s restraining order. Defendants

3 shall file a response to Plaintiffs’ emergency filing by no later than 12:00 noon PST on Friday,

4 June 6, 2014. At that time, the Court shall decide whether and when to have a hearing on this

5 matter. In the interim, the restraining order remains in effect: Defendants are ordered not to

6 destroy any documents that may be relevant to the claims at issue in this action, including the

7 Section 702 materials.

8

IT IS SO ORDERED.

9 Dated: June 5, 2014
10
11

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

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2

 
 Case4:08-cv-04373-JSW Document300 Filed11/07/14 Page1 of 10

101' ' >I ( IU I '>I hOI Oil'•

JOYCE R. BRANDA 2 Acting Assistant Attorney General 3 JOSEPH II. HUNT 4 Director, Federal Programs Branch

5 ANTHONY J. COPPOLTNO 6 Deputy Branch Director

1 JAMES J. GILLIGAN 8 Special Litigation Counsel 9 MARCIA BERMAN 10 Senior Trial Counsel

11 RODNEY PATTON 12 JULIA BERMAN 13 Trial Attorneys

14 U.S. Department of Justice 15 Civil Division. Federal Programs Branch 16 20 Massachusetts Avenue. NW 17 Washington. D.C. 20001

18 Phone: (202) 514-3358 19 Fax: (202) 616-8470

20 Allorneys.for the United States and Government 21 Defendants Sued in their Official Capacities

22

23

UNITED STATES DISTRICT C O URT

24

NORTHERN DISTRICT O F CALIFORNIA

25

OAKLAND DIVISION

26

21 CAROLYN JEWEL. et al..

)

Case No. 4:08-ev-4373-JSW

28

29

Plaintiffs.

)

)

C LASSIFIED DEC LARATION

30
31 v.

)

OF MIRIAM P.,

)

NATIONAL SECURITY AGENCY

32

)

33 NATIONAL SECURITY AGENCY. eta!.. )

EX PARTE, IN CA MERA SUBMISSION

34

35

Defendants.

36

37

)

Date: December 19, 2014

)

Time: 9:00 a.m.

)

Courtroom 5, 2nd Floor

The Honorable Jeffrey S. White

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39

40

41

Classified In Camera, £x Parte Declaration of Miriam P., National Security Agency Jewel. v. NSA (No. 4:08-cv-4873-JSW)

I Ol' <if t ttl I 'II Mil ()IU'

Case4:08-cv-04373-JSW Document300 Filed11/07/14 Page2 of 10

I ()P '•I ( IH I '•I '•Of ORh

l. (U) I, Miriam P., do hereby state and declare as follows:

2

2. (U) I am the Deputy Chief of Staff for Signals Intelligence (SIGINT) Policy and

3 Corporate Issues for the Signals Intelligence Directorate (SLD) of the National Security Agency

4 (NSA). an intelligence agency wi thin the Department of Defense.

5

3. (U) I am responsible for. among other things. protecting NSA SIGI NT activities.

6 sources. and methods against unauthorized disclosures. Under Executive Order No. 12333. the

7 NSA SIGINT Di rectorate is responsible for the collection, processing. and dissctrlination of

& SIGINT information for the foreign intelligence purposes of the United States. 46 Fed. Reg.

9 59941 (Dec. 4. 1981) as amended by Executive Order 13284 (2003). Executive Order 13355

10 (2004). 69 Fed. Reg. 53.593 (Aug. 27, 2004): Executive Order 13470 (2008). 73 Fed. Reg.

11 45325. I have been designated an original TOP SECRET classification authority under

12 Executive Order (E.O.) 13526, 75 Fed. Reg. 707 (Jan. 5. 20 10). and Department of Defense

13 Manual No. 5200.1, Vol. 1, Information and Security Program (Feb. 24. 20 12).

14

4. (U) My statements herein arc based upon my personal knowledge of SIGINT

15 collection and NSA operations, the information available to me in my capacity as the Deputy

16 Chief ofStafffor SIGINT Policy and Corporate Issues for SID, and the advice of counsel.

17

5. (U) 1submit this declaration for three purposes. First. this declaration describes o

18 the public record, to the extent practicable, th c. effectiveness of the NSA's ·'Upstream'· collection

19 of communications under Section 702 of the Foreign Intelligence Surveillance Act ("FISA'') as a

20 method of gathering foreign intelligence information. Second, this declaration provides some

21 details on the effectiveness of the program that cannot be disclosed on the public record.

22 Although the Government has released to the public some information about NSA 's Upstream

23 collection, the operational details and much of the information about its efTectiveness, set forth

24 below in classified paragraphs, has not been ofllcially disclosed and remains classified. Because

25 the disclosu re of this information could reasonably be expected to cause exceptionally grave

26 damage to national security. it falls within the NSJ\'s claim ofstatutory privilege under Section 6

Classified In Camera. E.x Porte Declaration of Miriam P.. National Security Agency Jewel. v. NSA (No. 4:08-<:v-4873-JSW)
FOJ' fil ,(: Rl.l '!>I "Hll OR'I

Case4:08-cv-04373-JSW Document300 Filed11/07/14 Page3 of 10

I 01' ''l't'RI 1 ~I '1<01 OR?<

of the National Security Agency Act of 1959. Public Law No. 86-36 (codified at 50 U.S.C. § 2 360 1 et seq.), see Classified. Ex Parte Declaration of Frances J. Fleisch, NSA ~, 8. 44(B)(l)(b)
3 (Dec. 20. 20 13), which, in turn. formed the basis of the assertion of the state secrets privilege by
4 the Director of National Intelligence ('' DN I"). See Public Declaration of James R. Clapper, ONI
5 (Sept. II . 20 12) (ECF No. I04) mf 3, 9. II ; Public Declaration of James R. Clapper, DNI (Dec.
6 20, 2013) (ECF No. 168) ~ 4. 9. 1L 19.C.I.b. And finally, I describe the impracticability o f 7 obtaining a warrant each time the NSA needs to target a selector fo r Upstream collection of 8 communicat ions.

9

6.

(U) Under the authority of Section 702 of the FISA Amendments Act ('·FAA")

10 the NSA acquires information through two different methods. Under the PRISM collection, the

11 government sends selectors, such as an e-mail address. to a United States-based electronic

12 communication service provider that has been served with a directive issued in accordance with

13 the criteria of Section 702. The provider, such as an Internet Service Provider (''lSP"). then

1-t furnishes to the government the communications from specific accounts that have been targeted

15 for collection . The content of telephone calls is not acquired through the PRI SM collection. I

16 understand that PRISM collection is not at issue in the current motions practice before the Court.

17

7. (U) Upstream collection, in contrast. involves the compelled assistance (through

18 a Section 702 directive) of certain providers that control the telecommunications backbone over

t9 which telephone and Internet-based communications transit. Unlike PRISM , Upstream

20 collection generally involves the acquisition of certain communications as they traverse the

21 telecommunications backbone.

22

(U) lmpracticabiJity of Acquiring the Same Information through Other Methods

23

8. (U) The NSA·s Upstream collection is capable of acquiring certain types of

2·1 targeted communications containing valuable foreign intelligence information that cannot be

25 collected under PRISM or other SJGINT methods authorized by FISA.

Classified In Camera, £t Parte Declaration of Miriam P., National Security Agency Jell'el. ,.. NSA (No. 4:08-cv-4873-JSW)
I ell' '!I CRt I •I '•UI t IIU•

Case4:08-cv-04373-JSW Document300 Filed11/07/14 Page4 of 10
I PP bH Rl l ''il ' )\UI'ORtJ

2 3
4 5 6 7

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II

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25

12. (U) ln addition, unlike 702 PRISM collection. 702 Upstream is a valuable source

26 of "abouts" collection in which the targeted identifier (e.g., an e-mai l address) is comajned in the

Classified Jn Camera,£\· f'arte Declaration of Miriam P., National Security Agency Jewel. v. NSA (No. 4:08-cv-4873-JSW)
lOP SI.'LRI I .SI it<OI"Oitt•

Case4:08-cv-04373-JSW Document300 Filed11/07/14 Page5 of 10

I 01' !it PRI T !if' 11/Ul onh

content of the communication. For example, a communication would be acquired vi.a Upstream

2 collection if the targeted selector was found only in the body of an e-mail message an d not in the

3 "to/from" line.

4

13. (U) "Abouts'' communications are a valuable source of foreign intelligence

5 information that cannot be obtained through other FISA collection techniques currently used. 6 including PRISM collection.

7

8

9

10

II

12

13

14

15

16

17

18

19

20

21

16. (U) Acqui ring the content of certain telephone calls through Upstream collection

22 allows NSA to acquire significant foreign intelligence information that it may not otherwise

2J obtain through other methods of signals intelligence.

24

Classified In Camera, Ex Pal'le Declaration of Miriam P., National Security Agency Jewel. v. NSA (No. 4:08-cv-4873-JSW)
1 Of' fit CRFf>'il ,?<f()l OIH~

Case4:08-cv-04373-JSW Document300 Filed11/07/14 Page6 of 10

fOP 'il UU I 'II .t<Ort lll?o

(U) Contribution of Upstream Collection to NSA's Mission

2

17. (U) Upstream collection fills a critical gap in U.S. intelligence gathering.

3 Upstream collection has enabled the NSA to acquire-quickly and effectively-a greater range 4 of foreign intelligence information that it otherwise wou ld not be able to obtain. Upstream 5 collection is a proven critical tool in the collection of significant and sometimes uniquely 6 valuable foreign intelligence information necessary to protect the Nation's security. It allows the 7 NSA to direct collection agai nst targets quickly so that the NS/\ can nimbl y turn collection into

8 actionable intelligence leads for the Intelligence Community. Below is an outline of some of the 9 ways Upstream collection has contributed significantly to the NSA's mission to defend the 10 United States and its interests at home and abroad.

II

12

13

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15

16

17

18

19

20

21

22

23

24

25

26

Classified In Camera. £r: Parte Declaration of Miriam P.. National Stx:urity Agency Jewel. ''· NSA (No. 4 :08-cv-4873-JSW)
'I 01' "!I t'ltl I il l<i(H'OitH

Case4:08-cv-04373-JSW Document300 Filed11/07/14 Page7 of 10
I 01' ·,t tltl I 'II >401 OR'•
2 3
5 6 7
9 10 II 12 13 1·1 15 16 17 18 19
20
21 22
Classified In Camera, Ex Parte Declaration of Miriam P., National Security Agency Jewel. ,.. NSA (No. 4:08-<:v-4873-JSW)
IOP !11 ( Rl I> 'tl 'Mil CtltN

Case4:08-cv-04373-JSW Document300 Filed11/07/14 Page8 of 10
I Of' !il ( Rl I '>I ' <OF'tllt'•
2 3
5
6 7 8 9 10 II 12 13 14 15 16 17 18 19
20
21 22
23 24 25 26
Classified In Camera, Ex Parle Declaration of Miriam P.. National Security Agency
Jewel. v. NSA (No. 4:08-cv-4873-JSW)
I 01' \I t ttl I >I .M>I DIU~

Case4:08-cv-04373-JSW Document300 Filed11/07/14 Page9 of 10
1Ill' '>I t Ill I ';! ?cOl Oll' 4

2 3

5

6

7

8

9

10

II

12

13

14

(U) Impracticality of Obtaining a Warrant

15

32. (U) The reasons for which the Government sought the authority and renewal of

16 the authority provided in Section 702 to collect intell igence targeted at non-U.S. persons located

17 outside the United States without individualized warrants apply to both of NSA 's methods of

18 collection under Section 702- Upstrcam and PRISM.

19

33. (U) Requiring the NSA to obtain a FISA (or other type of) warrant each time the

20 NSA needs to target a selector tasked for Upstream collection would be impractical and could

21 result in the loss of critical foreibrn intelligence information such as that described above.

22 Requiring the Government to obtain a warratlt each time the NSA needed to task a selector also

23 would be impractical given the significant number of selectors that need to be tasked for

24 Upstream collection. Additionally. given that the collection of signals intelligence to obtain

25 foreign intelligence information requires speed and flexibility so that NSA can respond to new

26 and quickly evolving threats facing our nation, imposing a warrant requirement would reduce

Classified In Camera. £r Parte Declaration or Miriam P.. National Security Agency Jewel. "· NSA (No. 4:08-cv-4873-JSW)

Case4:08-cv-04373-JSW Document300 Filed11/07/14 Page10 of 10

I Ul' 'cl t ll I I 'II "•01 tlRh

NSA 's flexibi lity and significantly slow its ability to respond to fast-moving threat scenarios and

2 evolving efforts by our adversaries to evade detection through frequent shi fts in their

3 communication patterns or platforms. Such a warrant requirement would also impose an

4 extraordinary burden on the NSA 's intelligence resources. diverting resources from mission

s critical activities. And, finally, the delays inherent in such a requirement would impede the

6 NSA·s ability to collect cri tical and time-sensitive foreign intelligence information. Critical 7 intel ligence would be lost.

8

(U) Conclusion

9

34. (U) The information set forth in the classified paragraphs above fa ll withjn the

10 NSA's assett ion of statutory privilege under Section 6 of the National Security Agency Act.

II which, in turn, fo rmed tbe basis of the DN r s assertion of the state secrets privilege and so canno

12 be disclosed for purposes of addressing the allegations in Plaintiffs· Combined Reply in Support

13 of their Motion for Partial Summary Judgment and Opposition to the Government Defendants'

I-I Cross-Motion for Partial Summary J udgment (or for any other purpose) without risking

IS exceptionally grave damage to national security.

16

(U) I declare under penalty of perjury that the foregoing is true and correct.

17

DATE: November 7. 20 14

18

19

20

(U) Miriam P.

21

(U) Deputy Chief of Staff for

22

SIGINT Policy and Corporate Issues, S ignals

23

lntelligence Directorate

Classified In Camera, Ex Parle Declaration of Miriam J>.. National Security Agency Je~rel. \'. NSA (No. 4:08-cv-4873-JSW)
I 01' 'il t'IH I 'rl l'4f Jl OIH4

 
 Case4:08-cv-04373-JSW Document261 Filed07/25/14 Page1 of 31

1 CINDY COHN (SBN 145997)

RACHAEL E. MENY (SBN 178514)

cindy@eff.org 2 LEE TIEN (SBN 148216)
KURT OPSAHL (SBN 191303) 3 JAMES S. TYRE (SBN 083117)
MARK RUMOLD (SBN 279060)

rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) AUDREY WALTON-HADLOCK (SBN 250574) BENJAMIN W. BERKOWITZ (SBN 244441)

4 ANDREW CROCKER (SBN 291596)

JUSTINA K. SESSIONS (SBN 270914)

DAVID GREENE (SBN 160107)

PHILIP J. TASSIN (SBN 287787)

5 ELECTRONIC FRONTIER FOUNDATION KEKER & VAN NEST, LLP

815 Eddy Street 6 San Francisco, CA 94109
Telephone: (415) 436-9333 7 Fax: (415) 436-9993

633 Battery Street San Francisco, CA 94111 Telephone: 415/391-5400; Fax: 415/397-7188

8 RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net
9 LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900
10 San Francisco, CA 94111 Telephone: (415) 433-3200
11 Fax: (415) 433-6382
12
13
14 Counsel for Plaintiffs

THOMAS E. MOORE III (SBN 115107) tmoore@rroyselaw.com ROYSE LAW FIRM, PC 1717 Embarcadero Road Palo Alto, CA 94303 Telephone: 650/813-9700; Fax: 650/813-9777
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

15

UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17

OAKLAND DIVISION

18

) Case No.: 4:08-cv-4373-JSW

19 CAROLYN JEWEL, TASH HEPTING,

)

YOUNG BOON HICKS, as executrix of the )

20 estate of GREGORY HICKS, ERIK KNUTZEN ) PLAINTIFFS CAROLYN JEWEL, ERIK

and JOICE WALTON, on behalf of themselves ) KNUTZEN, AND JOICE WALTON’S

21 and all others similarly situated,

) NOTICE OF MOTION AND MOTION

) FOR PARTIAL SUMMARY JUDGMENT

22

Plaintiffs,

)

) (Fourth Amendment Violation)

23

v.

)

) Date: October 31, 2014

24 NATIONAL SECURITY AGENCY, et al., ) Time: 9:00 a.m.

) Courtroom 5, Second Floor

25

Defendants.

) The Honorable Jeffrey S. White

26

27

28

Case No. 08-CV-4373-JSW PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT RE FOURTH AMENDMENT

Case4:08-cv-04373-JSW Document261 Filed07/25/14 Page2 of 31

1

TABLE OF CONTENTS

2 NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT.................. 1	  

3 MEMORANDUM OF POINTS AND AUTHORITIES................................................................. 2	  

4 I.	   INTRODUCTION .................................................................................................................... 2	  

5 II.	   STATEMENT OF FACTS ...................................................................................................... 3	  

6

A.	   The Government Seizes And Searches Communications Flowing Through The

Nation’s Internet Backbone .............................................................................................. 3	  

7

B.	   Seizure And Searching Of Plaintiffs’ Communications From AT&T’s Internet

8

Backbone .......................................................................................................................... 9	  

9 III.	   ISSUES FOR DECISION .................................................................................................... 11	  

10 IV.	   ARGUMENT ....................................................................................................................... 11	  

11

A.	   The Fourth Amendment’s Fundamental Principles—And The Warrant

Requirement—Apply With Full Force To The Digital World, And Protect

12

Plaintiffs’ Private Internet Communications .................................................................. 11	  

13

1.	   The Fourth Amendment Guarantees Fundamental Personal Privacy By

Prohibiting Suspicionless, Indiscriminate Government Intrusions Into

14

Americans’ Papers And Effects................................................................................ 11	  

15

2.	   The Fourth Amendment’s Warrant Requirement Is The Time-Tested

Mechanism That Prevents Government Overreaching And Suspicionless

16

Searches, And It Applies To Digital Seizure And Searching Of Electronic

Communications....................................................................................................... 14	  

17

B.	   Stage One: The Government’s Warrantless, Suspicionless Mass Seizure Of

18

Domestic Internet Communications Violates The Fourth Amendment ......................... 16	  

19

C.	   Stage Three: The Government’s Warrantless, Suspicionless Searching Of The

Contents Of Plaintiffs’ Internet Communications Is Unconstitutional .......................... 19	  

20

D.	   The Government’s Defenses Fail ................................................................................... 21	  

21

1.	   Section 702 Orders Cannot Substitute For Constitutionally-Required

22

Warrants ................................................................................................................... 21	  

23

2.	   The “Special Needs” Exception Cannot Justify The Government’s Dragnet .......... 24	  

24 V.	   CONCLUSION ..................................................................................................................... 25	  

25

26

27

28

Case No. 08-CV-4373-JSW

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PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT RE FOURTH AMENDMENT

Case4:08-cv-04373-JSW Document261 Filed07/25/14 Page3 of 31

1

TABLE OF AUTHORITIES

2

Federal Cases	  

3 Al Haramain Islamic Foundation, Inc. v. U.S. Department of Treasury,

686 F.3d 965 (9th Cir. 2011) ........................................................................................................ 24

4

Andresen v. Maryland,

5

427 U.S. 463 (1976) ..................................................................................................................... 20

6 Berger v. New York,

388 U.S. 41 (1967) ..................................................................................................... 13, 15, 17, 23

7

Camara v. Municipal Court of San Francisco,

8

387 U.S. 523 (1967) ..................................................................................................................... 11

9 Chandler v. Miller,

520 U.S. 305 (1997) ..................................................................................................................... 24

10

Coolidge v. New Hampshire,

11

403 U.S. 443 (1971) ..................................................................................................................... 15

12 Doe 1 v. AOL LLC,

552 F.3d 1077 (9th Cir. 2009) ...................................................................................................... 13

13

Ex parte Jackson,

14

96 U.S. 727 (1877) ................................................................................................................. 12, 14

15 Florida v. Jardines,

133 S. Ct. 1409 (2013) ................................................................................................................ 17

16

Go-Bart Importing Co. v. U.S.,

17

282 U.S. 344 (1931) ..................................................................................................................... 18

18 Halperin v. Kissinger,

807 F.2d 180 (D.C. Cir. 1986) ............................................................................................... 14, 17

19

Hepting v. AT&T Corp.,

20

439 F. Supp. 2d 974 (N.D. Cal. 2006).................................................................................... 10, 16

21 Home Building & Loan Ass’n v. Blaisdell,

290 U.S. 398 (1934) ..................................................................................................................... 25

22

In re Grand Jury Subpoenas Dated Dec. 10, 1987,

23

926 F.2d 847 (9th Cir. 1991) ........................................................................................................ 15

24 Joffe v. Google, Inc.,

729 F.3d 1262 (9th Cir. 2013) ........................................................................................................ 6

25

Katz v. U.S.,

26

389 U.S. 347 (1967) ......................................................................................................... 13, 16, 17

27 Marcus v. Search Warrant of Property, 367 U.S. 717 (1961) ......................................................................................................... 12, 18, 20
28

Case No. 08-CV-4373-JSW

-ii-

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT RE FOURTH AMENDMENT

Case4:08-cv-04373-JSW Document261 Filed07/25/14 Page4 of 31

1 Marron v. U.S.,

275 U.S. 192 (1927) ..................................................................................................................... 15

2

Maryland v. Garrison,

3

480 U.S. 79 (1987) ....................................................................................................................... 15

4 [Name and docket no. redacted],

2011 WL 10945618 (FISC Oct. 3, 2011) ............................................................................... 4, 7, 8

5

Olmstead v. United States,

6

277 U.S. 438 (1928) ............................................................................................................... 11, 15

7 Payton v. New York,

445 U.S. 573 (1980) ....................................................................................................................... 2

8

Riley v. California,

9

573 U.S. __, 134 S. Ct. 2473 (2014) ..................................................................................... passim

10 Stanford v. Texas,

379 U.S. 476 (1965) ............................................................................................................... 12, 18

11

Steagald v. U.S.,

12

451 U.S. 204 (1981) ..................................................................................................................... 20

13 U.S. v. Abrams,

615 F.2d 541 (1st Cir. 1980) ........................................................................................................ 17

14

U.S. v. Bridges,

15

344 F.3d 1010 (9th Cir. 2003) ...................................................................................................... 15

16 U.S. v. Choate,

576 F.2d 165 (9th Cir. 1978) ........................................................................................................ 12

17

U.S. v. Collins,

18

845 F.2d 145 (1987) ..................................................................................................................... 19

19 U.S. v. Cotterman,

709 F.3d 952 (9th Cir. 2013) ........................................................................................................ 12

20

U.S. v. Jones,

21

565 U.S. __, 132 S. Ct. 945 (2012) ....................................................................................... passim

22 U.S. v. Kow,

58 F.3d 423 (9th Cir. 1995) .......................................................................................................... 17

23

U.S. v. Tamura,

24

694 F.2d 591 (9th Cir. 1982) ........................................................................................................ 17

25 U.S. v. U.S. District Court (Keith),

407 U.S. 297 (1972) ................................................................................................... 13, 15, 16, 25

26

U.S. v. Van Leeuwen,

27

397 U.S. 249 (1970) ............................................................................................................... 12, 14

28

Case No. 08-CV-4373-JSW

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PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT RE FOURTH AMENDMENT

Case4:08-cv-04373-JSW Document261 Filed07/25/14 Page5 of 31

1 U.S. v. Warshak,

631 F.3d 266 (6th Cir. 2010) ........................................................................................................ 12

2

Virginia v. Moore,

3

553 U.S. 164 (2008) ............................................................................................................... 18, 21

4

Federal Statutes	  

5 50 U.S.C. § 1801(e) .......................................................................................................................... 25

6 50 U.S.C. § 1804(a) .......................................................................................................................... 22

7 50 U.S.C. § 1805(c) .......................................................................................................................... 22

8 50 U.S.C. § 1881a................................................................................................................. 21, 22, 25

9

Constitutional Provisions	  

10 U.S. Const., amend. IV.............................................................................................................. passim

11

Legislative Materials	  

12 S. Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, Book

II: Intelligence Activities and the Rights of Americans, S. Rep. No. 94-755 at 139 (1976) ........ 18

13

Other Authorities	  

14

Barton Gellman, How 160,000 Intercepted Communications Led To Our Latest NSA Story,

15

Washington Post, July 11, 2014 ..................................................................................................... 4

16 Barton Gellman, Julie Tate & Ashkan Soltani, In NSA-Intercepted Data, Those Not Targeted Far

Outnumber The Foreigners Who Are, Washington Post, July 5, 2014 .......................................... 4

17

Dan York, IPv4 Exhaustion Gets Real – Microsoft Runs Out Of U.S. Addresses For Azure Cloud –

18

Time To Move To IPv6!, Internet Society (June 13, 2014) ............................................................ 7

19 Ingmar Poese et al., IP Geolocation Databases: Unreliable?, ACM SIGCOMM Computer Comm.

Rev., April 2011 ............................................................................................................................. 7

20

James Bamford, The Agency That Might Be Big Brother, New York Times, Dec. 25, 2005 .......... 19

21

Michael Barbaro and Tom Zeller, Jr., “A Face Is Exposed for AOL Searcher No. 4417749” (New

22

York Times, Aug. 9, 2006)........................................................................................................... 13

23 Sen. Frank Church, Meet the Press, NBC, August 17, 1975............................................................ 19

24 Testimony of the Hon. James Robertson (U.S. District Judge, ret.), “Workshop Regarding

Surveillance Programs Operated Pursuant to Section 215 of the USA PATRIOT Act and Section

25

702 of the Foreign Intelligence Surveillance Act,” Transcript at 35-37 (July 9, 2013) ............... 22

26

27

28

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NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT 1

(Fourth Amendment Violation, Limited To The Government’s Ongoing Seizure And

2

Searching Of Internet Communications)

3

PLEASE TAKE NOTICE that on October 31, 2014 at 9:00 a.m. in Courtroom 5, Second

4 Floor, United States District Court, 1301 Clay Street, Oakland, CA, plaintiffs Carolyn Jewel, Erik

5 Knutzen, and Joice Walton will move for partial summary judgment holding that defendants

6 National Security Agency, United States, Department of Justice, Barack H. Obama, Michael S.

7 Rogers, Eric H. Holder, Jr., and James R. Clapper, Jr. (in their official capacities) (collectively, the

8 “government defendants”) have violated the Fourth Amendment rights of plaintiffs Jewel, Knutzen, 9 and Walton by seizing and searching their Internet communications.1

10

The ground for this motion is that defendants are conducting an ongoing program of bulk,

11 untargeted seizure of the Internet communications of millions of innocent Americans, including

12 plaintiffs Jewel, Knutzen, and Walton, and subsequently searching many of those communications.

13 Plaintiffs’ motion is based on the accompanying memorandum and declarations of Carolyn Jewel,

14 Erik Knutzen, Joice Walton, and Richard Wiebe, the filings and pleadings of record in this action

15 and the related action of Hepting v. AT&T (No. 06-cv-00672-VRW), and the argument and evidence

16 presented at the hearing of this motion.

17

In this motion, plaintiffs seek a determination that the government defendants are violating

18 the Fourth Amendment by their ongoing seizures and searches of plaintiffs’ Internet

19 communications.

20

At this time, plaintiffs do not seek a determination of the government defendants’ liability

21 for: a) past Fourth Amendment violations, including during periods that those activities were

22 conducted solely under presidential authority without any Foreign Intelligence Surveillance Court

23 order; b) past or present Fourth Amendment violations arising from government activities other than

24 Internet communications seizure or searching; or c) past or present violations of statutory and

25 constitutional provisions other than the Fourth Amendment. Those claims are outside the scope of

26
27 1 The other two plaintiffs, Tash Hepting and Young Boon Hicks (as executrix of the estate of Gregory Hicks), are not joining in this motion as they are not current AT&T Internet customers.
28

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1 this motion and are not at issue here. Plaintiffs also do not seek at this time a determination of the

2 appropriate remedy for the government defendants’ ongoing Fourth Amendment violations.

3 4 I. 5

MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION The eyes and ears of the government now sit on the Internet. The government

6 indiscriminately copies and searches communications passing through the Internet’s key domestic

7 junctions, on what is called the Internet “backbone.” By doing so, the government is operating a

8 digital dragnet—a technological surveillance system that makes it impossible for ordinary

9 Americans not suspected of any wrongdoing to engage in a fully private online conversation, to

10 privately read online, or to privately access any online service. Millions of innocent Americans have

11 their communications seized and searched as part of this dragnet even when the government is not

12 targeting them or those with whom they communicate.

13

This unprecedented mass surveillance violates the core purpose of the Fourth Amendment—

14 to protect Americans’ privacy against indiscriminate and suspicionless searches and seizures.

15 “Indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the

16 immediate evils that motivated the framing and adoption of the Fourth Amendment.” Payton v. New

17 York, 445 U.S. 573, 583 (1980); accord Riley v. California, 573 U.S. __, 134 S. Ct. 2473, 2494

18 (2014).

19

The government’s indiscriminate mass collection of Internet communications creates two

20 separate Fourth Amendment violations:

21

First, the government unconstitutionally seizes plaintiffs’ Internet communications.

22 Technology at plaintiffs’ Internet service provider, AT&T, automatically creates and delivers to the

23 government a copy of plaintiffs’ online activities, along with those of millions of other innocent

24 Americans—including email, live chat, reading and interacting with websites, Internet searching,

25 and social networking.

26

Second, the government unconstitutionally searches the content of much of the

27 communications stream it has seized. The government admits that it searches the content of the

28

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1 online communications that it has seized if it believes there is some indication that the origin or

2 destination of the communication is outside the United States.

3

The Fourth Amendment prohibits the government from intercepting, copying, or searching

4 through Americans’ communications without a warrant issued by a neutral and detached magistrate,

5 upon probable cause, particularly describing the place to be searched and the things to be seized.

6 The government conducts the seizures and searches at issue here without a Fourth Amendment

7 warrant. While the government does obtain a periodic order from the Foreign Intelligence

8 Surveillance Court (FISC) approving its general “targeting” and “minimization” procedures, those

9 orders are simply not warrants. The FISC does not specify or limit the persons whose

10 communications the government may seize or search, the communications facilities or accounts

11 from which the government may seize communications, or what information the government may

12 search for within the seized communications. The government alone determines these, without any

13 judicial review. The FISC also does not make any determination that there is probable cause or

14 reasonable suspicion to believe that the government’s seizures or searches will yield foreign

15 intelligence information.

16

In truth, no valid warrant could authorize the government’s admitted practices here. The

17 government’s targeting and minimization procedures are no substitute for the fundamental

18 protections that the Constitution guarantees to all Americans. The ongoing dragnet seizure and

19 search of innocent Americans’ Internet activities violates the Fourth Amendment.

20 II. STATEMENT OF FACTS

21

A. The Government Seizes And Searches Communications Flowing Through The

Nation’s Internet Backbone

22

The information revealed by a person’s Internet activities paints an intimate and richly

23

detailed portrait of the person’s life—often on a day-by-day or minute-by-minute basis. It is

24

precisely this deeply personal information that the government is seizing and searching. The

25

Washington Post recently examined a sample of 160,000 Internet communications intercepted and

26

retained by the NSA. Even after significantly more filtering and minimization than is at issue here,

27

the Post reported: “Many other files, described as useless by the analysts but nonetheless retained,

28

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1 have a startlingly intimate, even voyeuristic quality. They tell stories of love and heartbreak, illicit

2 sexual liaisons, mental-health crises, political and religious conversions, financial anxieties and

3 disappointed hopes. The daily lives of more than 10,000 account holders who were not targeted are 4 catalogued and recorded nevertheless.”2

5

The government conducts its domestic surveillance by seizing and searching Internet

6 communications as they flow through major fiber-optic network junctions on the Internet 7 “backbone.”3 Almost all ordinary Internet traffic travels at some point over the Internet backbone—

8 high-capacity, long-distance fiber-optic cables controlled by major Internet providers such as

9 AT&T. The seizures at issue here occur on the junctions between AT&T and other providers on the

10 backbone.

11

12

13 2 Barton Gellman, Julie Tate & Ashkan Soltani, In NSA-Intercepted Data, Those Not Targeted Far
14 Outnumber The Foreigners Who Are, Washington Post, July 5, 2014, available at
15 http://www.washingtonpost.com/world/national-security/in-nsa-intercepted-data-those-not-targetedfar-outnumber-the-foreigners-who-are/2014/07/05/8139adf8-045a-11e4-8572-
16 4b1b969b6322_story.html; see also Barton Gellman, How 160,000 Intercepted Communications Led To Our Latest NSA Story, Washington Post, July 11, 2014, available at
17 http://www.washingtonpost.com/world/national-security/your-questions-answered-about-the-posts-
recent-investigation-of-nsa-surveillance/2014/07/11/43d743e6-0908-11e4-8a6a18 19355c7e870a_story.html.

19 3 See, e.g., ECF No. 227 at ¶ 38, 25:14-16 (12/20/13 NSA Deputy Dir. Fleisch Classified Decl.)

20

(“NSA collects electronic communications with the compelled assistance of electronic communications service providers as they transit Internet ‘backbone’ facilities within the United

21 States”); ECF No. 169 at 17 (12/20/13 NSA Deputy Dir. Fleisch Unclassified Decl.); ECF No. 253-3 at 3 (6/27/14 Gilligan Decl., Ex. B (The Intelligence Community’s Collection Programs Under Title

22 VII of the Foreign Intelligence Surveillance Act)) (“NSA collects telephone and electronic

communications as they transit the Internet ‘backbone’ within the United States”); 7/25/14 Wiebe 23 Decl., Ex. A at 7, 35-37 (Privacy and Civil Liberties Oversight Board, Report on the Surveillance

24

Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (“PCLOB 702 Report”) (July 2, 2014)); ECF No. 174-1 at 26 (1/10/14 Rumold Decl., Ex. 1 (Memorandum

25 Opinion (“9/25/12 FISC Opinion”), [Name and docket no. redacted] (FISC Sept. 25, 2012));

Memorandum Opinion (“10/3/11 FISC Opinion”), [Name and docket no. redacted], 2011 WL

26 10945618, at *2 n.3 (FISC Oct. 3, 2011); 7/25/14 Wiebe Decl., Ex. B (NSA PRISM slides) at 3-4.

27 As these sources explain, the government also describes its Internet backbone seizures and searches
as “upstream” collection. 28

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1

As relevant to this motion, the government’s surveillance process occurs in four stages,

2 illustrated below:

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

First, as shown in stage one, the government taps into the Internet backbone networks of the

2 nation’s leading telecommunications carriers, including AT&T, giving it access to the entire stream

3 of domestic and international communications (“communications stream”) carried on the fiber-optic

4 cables of those carriers. The communications stream includes all varieties of Internet activities,

5 including email, live chat, and Internet telephone and video calls, as well as activities such as web 6 browsing, video viewing, and search queries and results.4

7

To accomplish this access while not interrupting or slowing Internet communications carried

8 by AT&T, the communications stream is copied.5 The copying is done via a simple technology

9 called a fiber-optic “splitter.”6 A splitter is a device that “splits” the light signals on a fiber-optic

10 cable, making identical copies of the communications stream carried on the cable.7 The splitters

11 installed at AT&T allow one copy of the communications stream to travel as it normally would to its

12 intended destination on the Internet while a second copy of the communications stream is diverted 13 for further processing and searching by the NSA.8

14

Second, as shown in stage two above, after the communications stream is copied, the

15 government roughly filters it in an attempt to eliminate wholly domestic communications and leave 16 only communications in which at least one end is located outside the United States.9 This filtering

17 4 ECF No. 84-2 at ¶¶ 9, 19, 34 (Mark Klein Decl.). See also, e.g., Joffe v. Google, Inc., 729 F.3d 18 1262, 1264 (9th Cir. 2013) (noting that analogous interception of WiFi network data “includes
everything transmitted by a device connected to a Wi-Fi network, such as personal emails, 19 usernames, passwords, videos, and documents”).

20 5 ECF No. 84-2 at ¶¶ 24-34 (Klein Decl.); ECF No. 89 at ¶¶ 56, 62, 72 (J. Scott Marcus Decl.).

21 6 ECF No. 84-2 at ¶¶ 24-34 (Klein Decl.).

22 7 ECF No. 84-2 at ¶¶ 21-22, 23-25 (Klein Decl.); ECF No. 89 at ¶¶ 56-58, 109 (Marcus Decl.).

8 ECF No. 84-2 at ¶¶ 25-34 (Klein Decl.); ECF Nos. 84-3, 84-4, 84-5, 84-6 (Klein Decl., Exs. A, B, 23 C); ECF No. 89 at ¶¶ 56, 62, 70-73, 77 (Marcus Decl.); see also ECF No. 84-1 at ¶¶ 6, 10-12, 15,

24

19-23 (AT&T Managing Director-Asset Protection James Russell authenticating Klein Declaration statements and documents).

25 9 The government says it applies an Internet Protocol (“IP”) filter to the seized communications in an
26 attempt to limit its search to only those communications that either terminate or originate abroad. ECF No. 174-5 at 1-2 (1/10/14 Rumold Decl., Ex. 5 (“Procedures Used By The National Security
27 Agency For Targeting . . . ”)). An IP filter functions by sifting communications based on their destination “IP address”—a numerical label assigned to each device connected to the Internet. (In
28 (footnote continued on next page)

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1 intentionally keeps communications between Americans and persons located abroad. Moreover, this

2 filtering is imprecise as to purely domestic communications, resulting in a significant amount of 3 purely domestic traffic in the filtered communications stream.10

4

Third, as shown in stage three above, the government searches the entire contents of the

5 filtered communications stream for particular “selectors”—email addresses, domain names, phone

6

7 (footnote continued from previous page)

the case of a home or business network, many computers or other devices may share the single IP 8 address on the Internet that is assigned to the modem or router through which they connect to the

9

Internet.) An IP address gives a computer the ability to locate another device connected to the Internet and, in some circumstances, it serves as a loose proxy for geographic location. However, IP

10 filters are only rough indicators of physical location. ECF No. 89 at ¶¶ 110-11 (Marcus Decl.); Ingmar Poese, et al., IP Geolocation Databases: Unreliable?, ACM SIGCOMM Computer Comm.

11 Rev., April 2011, at 56 (reporting 2-4% error rates in country geolocation with commercial

databases), available at http://www.sigcomm.org/sites/default/files/ccr/papers/2011/April/197116212 1971171.pdf.

13 Recently, for example, communications sent by accountholders on Microsoft servers in the United States appeared to IP geolocation filters to be communications that were originating from South
14 America, not the United States. Dan York, IPv4 Exhaustion Gets Real – Microsoft Runs Out Of U.S. 15 Addresses For Azure Cloud – Time To Move To IPv6!, Internet Society (June 13,
2014), http://www.internetsociety.org/deploy360/blog/2014/06/ipv4-exhaustion-gets-real-microsoft16 runs-out-of-u-s-addresses-for-azure-cloud-time-to-move-to-ipv6.

17 10 One reason why the government’s filtering fails to exclude domestic communications is the inaccuracy of IP geolocation. See n.9 above. Another reason is that the pathway a communication

18 takes on the Internet from its origin to its destination is unpredictable and can change with every

transmission. A communication between two domestic parties can follow a path that takes it outside 19 the United States for part of its journey; thus, as the FISC noted, “NSA’s upstream collection devices

20

will acquire a wholly domestic ‘about’ [communication] if it is routed internationally.” 10/3/11 FISC Opinion, 2011 WL 10945618, at *11. A third reason is that the websites and Internet

21 services that appear to be domestic may be located anywhere in the world unbeknownst to the user. As the President’s Review Group noted: “Today, and unbeknownst to US users, websites and cloud

22 servers may be located outside the United States. Even for a person in the US who never knowingly

sends communications abroad, there may be collection by US intelligence agencies outside of the 23 US.” 7/25/14 Wiebe Decl., Ex. F at 183 (President’s Review Group on Intelligence and

24

Communications Technologies, Liberty and Security in a Changing World). The providers of Internet services may back up or store a user’s data on servers anywhere in the world. For example,

25 Yahoo! provides the AT&T-branded email services that plaintiffs Knutzen and Walton use. Knutzen

Decl. at ¶ 5; Walton Decl. at ¶ 5. The NSA has intercepted massive bulk shipments of user email

26 accounts by Yahoo! between its United States and overseas servers, shipments that are completely

unknown to the user. 7/25/14 Wiebe Decl., Ex. C at 2-3 (Special Source Operations Weekly, 27 3/14/13 edition).

28

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1 numbers, or other identifiers.11 The government intentionally includes Americans’ international

2 communications, including those of plaintiffs, in these searches. As noted above, the searches also

3 include many wholly domestic Internet communications.

4

In stage four, the results of the seizing and searching described above are then deposited into

5 government databases for retention.12 It is only at this fourth stage in the process that the

6 government deems the information “collected” or “acquired.”13 And it is only these retained

7 communications that the government takes into account in asserting that its Internet backbone

8 seizures and searches are “targeted,” ignoring the first three stages outlined above. The

9 11 ECF No. 227 at ¶ 64, p. 45:6-9 (12/23/13 NSA Deputy Dir. Fleisch Classified Decl.);

10 7/25/14 Wiebe Decl., Ex. D at 7 (12/8/11 Monaco/Inglis/Litt Joint Statement); 10/3/11 FISC

11

Opinion, 2011 WL 10945618, at *5-*6; ECF No. 253-3 at 4 (The Intelligence Community’s Collection Programs Under Title VII of the Foreign Intelligence Surveillance Act); ECF No. 254-1

12 at 8 (Corrected Defs. Reply Br. Re Preservation Orders) (citing 10/3/11 FISC Opinion, 2011 WL 10945618, at *10, *27); ECF No. 174-1 at 26 (9/25/12 FISC Opinion).

13 As these sources note, the government sometimes refers to communications whose contents contain

14 a reference to a selector as “about” communications.

15 12 The PCLOB 702 Report acknowledges: “The NSA’s ‘upstream collection’ (described elsewhere in this Report) may require access to a larger body of international communications than those that
16 contain a tasked selector.” 7/25/14 Wiebe Decl., Ex. A at 111 n.476 (PCLOB 702 Report).

17 13 See, e.g, 7/25/14 Wiebe Decl., Ex. A at 37 (PCLOB 702 Report), describing “acquired” as the point of “ingest[ion] into government databases.”

18 The government consistently uses terms like “collection” and “acquired” in its public discussions not

19 as ordinary people use those terms, but very specifically to mean a point after the government has

actual custody or control over communications. For instance, Department of Defense regulations

20 provide that information is considered to be collected only after it has been “received for use by an

employee of a DoD intelligence component,” and that “[d]ata acquired by electronic means is 21 ‘collected’ only when it has been processed into intelligible form,” without regard to when the

22 information was initially acquired by a surveillance device. DOD 5240 1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons § C.2.2.1 at 15

23 (Dec. 1982), provided in Plaintiffs’ Federal Rule of Evidence Section 1006 Summary of Voluminous

Evidence, ECF No. 113 at 46:9-18. [Vol. II, Ex. 24, p.1070]. Similarly, DNI Clapper later explained

24 his Senate testimony in which, in response to a direct question from Senator Wyden, he denied

“collecting” data on millions or hundreds of millions of Americans by stating: “[T]here are honest 25 differences on the semantics when someone says ‘collection’ to me, that has a specific meaning,

26 which may have a different meaning to him [Senator Wyden].” Interview by Andrea Mitchell with

DNI

James

R.

Clapper

(June

8,

2013),

available

at

27 http://www.dni.gov/index.php/newsroom/speeches-and-interviews/195-speeches-interviews-

2013/874-director-james-r-clapper-interview-with-andrea-mitchell. 28

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1 communications the government retains at stage four are not at issue here. Instead, this motion

2 challenges the constitutionality of the initial seizure and search: stage one, the wholesale seizure of

3 the stream of Internet communications; and stage three, the searching, post-IP-filtering, of the

4 contents of those communications for selectors.

5

The PCLOB 702 Report describes the overall process as follows, explicitly adopting the

6 government’s use of the term “acquire” as only occurring at stage four:

7

Once tasked, selectors used for the acquisition of upstream Internet transactions are

sent to a United States electronic communication service provider to acquire

8

communications that are transiting through circuits that are used to facilitate

Internet communications, what is referred to as the “Internet backbone.” The

9

provider is compelled to assist the government in acquiring communications across

10

these circuits. To identify and acquire Internet transactions associated with the

Section 702–tasked selectors on the Internet backbone, Internet transactions are

11

first filtered to eliminate potential domestic transactions, and then are screened to

capture only transactions containing a tasked selector. Unless transactions pass

12

both these screens, they are not ingested into government databases.

13 7/25/14 Wiebe Decl., Ex. A at 36-37 (PCLOB 702 Report) (citations omitted).14 As the PCLOB

14 noted, “[n]othing comparable [to the government’s Internet backbone surveillance] is permitted as a

15 legal matter or possible as a practical matter with respect to analogous but more traditional forms of

16 communication.” Id. at 122.

17

B. Seizure And Searching Of Plaintiffs’ Communications From AT&T’s Internet

Backbone 18

Plaintiffs Jewel, Knutzen, and Walton are AT&T Internet service subscribers. Jewel Decl. at

19

¶¶ 2-3; Knutzen Decl. at ¶¶ 2-3; Walton Decl. at ¶¶ 2-3. Each of them relies on the Internet to send

20

and receive personal and professional emails, to stay in touch with friends and loved ones, and to

21

conduct private activities including web browsing and social media. Jewel Decl. at ¶¶ 4-5, Knutzen

22

Decl. at ¶¶ 4, 6; Walton Decl. at ¶¶ 4, 6. Plaintiff Carolyn Jewel is a novelist who communicates

23

online with fans and members of the publishing industry and uses the Internet to research the

24

25 14 “Nevertheless, the government has no ability to examine or otherwise make use of this larger body
26 of communications, except to promptly determine whether any of them contain a tasked selector. Only those communications (or more precisely, ‘transactions’) that contain a tasked selector go into
27 government databases.” 7/25/14 Wiebe Decl., Ex. A at 111 n.476 (PCLOB 702 Report).

28

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1 settings for her fiction. Jewel Decl. at ¶¶ 1, 5, 7. Plaintiff Erik Knutzen is a writer who blogs about

2 urban homesteading, staying in touch with others in his field via various online mediums. Knutzen

3 Decl. at ¶¶ 1, 7. Plaintiff Joice Walton is a recording who artist who promotes her music on her

4 website and through social media and email. Walton Decl. at ¶¶ 1, 7-8.

5

As described above, at stage one, AT&T allows the government to seize the entire

6 communications stream of its customers carried on a portion of the Internet backbone. Thus, the

7 government has seized the electronic communications of each of these three plaintiffs. Additionally,

8 each of them has had their communications searched, as described in stage three above. At a

9 minimum, this includes their international communications since, like nearly all Internet users, each

10 plaintiff has routinely communicated with persons whose email service is hosted abroad (see Jewel

11 Decl. at ¶ 6; Knutzen Decl. at ¶ 8; Walton Decl. at ¶ 7), and each has visited websites that are hosted

12 abroad (see Jewel Decl. at ¶ 8; Knutzen Decl. at ¶ 9; Walton Decl. at ¶ 9).

13

No genuine issue of material fact exists that plaintiffs’ provider AT&T is one of the Internet

14 backbone providers at issue. Even on the much more limited record that existed eight years ago, this

15 Court in Hepting (per Walker, C.J.) found that “AT&T and the government have for all practical

16 purposes already disclosed that AT&T assists the government in monitoring communication

17 content.” Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 991-92 (N.D. Cal. 2006). The Klein and

18 Marcus evidence, described above, demonstrates the NSA’s bulk seizure of the content of plaintiffs’ 19 AT&T Internet communications from the Internet backbone.15 ECF No. 84-2 (Klein Decl.); ECF

20 No. 89 at ¶¶ 56-58, 62, 70-73, 77 (Marcus Decl.). The NSA Draft OIG Report also demonstrates

21 AT&T’s participation. ECF No. 147, Ex. A (NSA Draft OIG Report). Specifically, the NSA Draft

22 OIG Report describes in detail the NSA’s relationship with two telecommunications companies

23 described as “Company A” and “Company B” in the report, and observes that the NSA’s

24 relationship with each company gives NSA access to large volumes of communications “transiting

25 the United States through fiber-optic cables, gateway switches, and data networks.” Id. at 27-29, 33-

26
27 15 AT&T’s continuing participation in Internet seizure and collection was confirmed again in 2013 by the Wall Street Journal. ECF No. 174-2; see also ECF No. 174-4.
28

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1 34. The report says that Company A and Company B were the two largest providers of international

2 telephone calls into and out of the United States when surveillance began in 2001. Id. at 27. Federal

3 Communications Commission records confirm that AT&T and MCI/Worldcom (now Verizon) were

4 the country’s two largest international telephone call providers at that time. 7/25/14 Wiebe Decl.,

5 Ex. E (Common Carrier Bureau, FCC, 1999 International Telecommunications Data at 29, fig. 9

6 (Dec. 2000)).

7 III. ISSUES FOR DECISION

8

1. Does the warrantless, suspicionless seizure of plaintiffs’ communications as part of a

9 mass seizure and copying of Internet communications violate the Fourth Amendment?

10

2. Does the warrantless, suspicionless searching of the contents of plaintiffs’ Internet

11 communications violate the Fourth Amendment?

12 IV. ARGUMENT

13

A. The Fourth Amendment’s Fundamental Principles—And The Warrant

Requirement—Apply With Full Force To The Digital World, And Protect

14

Plaintiffs’ Private Internet Communications

15

1. The Fourth Amendment Guarantees Fundamental Personal Privacy By

Prohibiting Suspicionless, Indiscriminate Government Intrusions Into

16

Americans’ Papers And Effects

17

The Fourth Amendment is a fundamental guarantee of personal privacy, “a right of the

18 people which ‘is basic to a free society.’” Camara v. Municipal Court of San Francisco, 387 U.S.

19 523, 528 (1967). The Supreme Court has emphasized in “countless decisions” that “[t]he basic

20 purpose of this Amendment . . . is to safeguard the privacy and security of individuals against

21 arbitrary invasions by governmental officials.” Id. (emphasis added). As Justice Brandeis explained

22 in his famous dissent in Olmstead v. United States, the Founders “sought to protect Americans in

23 their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the

24 government, the right to be let alone . . . ” 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

25

Protecting privacy in personal communications such as plaintiffs’ Internet communications is

26 one of the core principles of the Fourth Amendment. The Fourth Amendment expressly designates a

27 person’s “papers” and “effects” as two of the four categories it shields from government intrusion.

28 U.S. Const., amend. IV. The Amendment “embod[ies] a particular concern for government trespass

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1 upon the areas (‘persons, houses, papers, and effects’) it enumerates.” U.S. v. Jones, 565 U.S. __,

2 132 S. Ct. 945, 950 (2012). The Founders’ special protection for papers and effects stems directly

3 from their determination to prohibit the indiscriminate, suspicionless rummaging and seizure of any

4 person’s papers that the English Crown had conducted using “general warrants”—warrants that

5 failed to specify the papers that were sought, the person whose papers could be searched and seized,

6 or the place to which the search for the papers was limited. Riley, 134 S. Ct. at 2494; Stanford v.

7 Texas, 379 U.S. 476, 480-85 (1965); Marcus v. Search Warrant of Property, 367 U.S. 717, 726-29

8 & n.22 (1961).

9

The Fourth Amendment protects a person’s information in digital as well as physical form.

10 “The papers we create and maintain not only in physical but also in digital form reflect our most

11 private thoughts and activities.” U.S. v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013) (en banc).

12 The Ninth Circuit has held en banc that emails “implicate[] the Fourth Amendment’s specific

13 guarantee of the people’s right to be secure in their ‘papers.’ The express listing of papers ‘reflects

14 the Founders’ deep concern with safeguarding the privacy of thoughts and ideas—what we might

15 call freedom of conscience—from invasion by the government.’ These records are expected to be

16 kept private and this expectation is ‘one that society is prepared to recognize as “reasonable.”’” Id.

17 at 964 (citations omitted); accord U.S. v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010).

18

The Fourth Amendment also protects a person’s communications when they are in transit, as

19 are plaintiffs’ Internet communications here. Ex parte Jackson, 96 U.S. 727, 733 (1877) (“Whilst in

20 the mail, [letters] can only be opened and examined under like warrant, issued upon similar oath or

21 affirmation, particularly describing the thing to be seized, as is required when papers are subjected to

22 search in one’s own household.”); accord U.S. v. Van Leeuwen, 397 U.S. 249, 251 (1970); U.S. v.

23 Choate, 576 F.2d 165, 174 (9th Cir. 1978).

24

Even apart from the Fourth Amendment’s specific protection of “papers” and “effects,”

25 plaintiffs’ electronic communications are protected because plaintiffs have a reasonable expectation

26

27

28

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1 of privacy in them.16 Berger v. New York, 388 U.S. 41, 51 (1967); see also U.S. v. U.S. District

2 Court (Keith), 407 U.S. 297, 313 (1972) (hereinafter, “Keith”); Katz v. U.S., 389 U.S. 347, 353

3 (1967).

4

The Supreme Court recently affirmed that the government’s search and seizure of digital

5 information implicates core Fourth Amendment values and triggers the warrant requirement. Riley,

6 134 S. Ct. at 2495 (“The fact that technology now allows an individual to carry such information in

7 his hand does not make the information any less worthy of the protection for which the Founders

8 fought.”). The Court specifically noted the protectable privacy interests one has in her Internet

9 browsing records, explaining, “Internet search and browsing history, for example, can be found on

10 an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a 11 search for certain symptoms of disease, coupled with frequent visits to WebMD.”17 Id. at 2490. The

12 Court went on to detail how a person’s digital information gives a complete picture of a person’s

13 most private thoughts and actions—even beyond what a general search of their home might reveal.

14 Id. at 2489-91.

15

The Supreme Court’s conclusion that the digital information in cell phones is protected by

16 the Fourth Amendment because, “[w]ith all they contain and all they may reveal, they hold for many

17 Americans ‘the privacies of life’” (Id. at 2494-95) is equally, if not more, applicable to the digital

18 information plaintiffs transmit over the Internet. The Court noted:

19

First, a cell phone collects in one place many distinct types of information—an

address, a note, a prescription, a bank statement, a video—that reveal much more in

20

combination than any isolated record. Second, a cell phone’s capacity allows even

just one type of information to convey far more than previously possible. The sum of 21

22 16 The “reasonable expectation of privacy test” is the alternative test for the scope of Fourth Amendment protections. See U.S. v. Jones, 132 S. Ct. at 950, 953; id. at 954-55 (Sotomayor, J.,
23 concurring); id. at 959-60 (Alito, J., concurring). 24 17 The power of browsing and search history to reveal a person’s life was demonstrated in 2006
when AOL inadvertently released the three-month search history of over 650,000 AOL users. Doe 1 25 v. AOL LLC, 552 F.3d 1077, 1079 (9th Cir. 2009). Even though AOL did not release the names of
the users, it was an easy task for reporters to use an individual’s browsing history to identify and 26 track down the individual. Michael Barbaro and Tom Zeller, Jr., “A Face Is Exposed for AOL
Searcher No. 4417749” (New York Times, Aug. 9, 2006), available at 27 http://www.nytimes.com/2006/08/09/technology/09aol.html?pagewanted=all.
28

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an individual’s private life can be reconstructed through a thousand photographs

1

labeled with dates, locations, and descriptions; the same cannot be said of a

2

photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his

3

pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of

all his communications with Mr. Jones for the past several months, as would routinely

4

be kept on a phone.

5 Id. at 2489. This same information about a person can be determined from their stream of

6 communications flowing through the Internet backbone. Indeed, the Court noted that much of the

7 information it was protecting in Riley is increasingly not stored on phones themselves but in the

8 Internet “cloud,” with phones used to access the information over the Internet. Id. at 2491. Thus, the

9 Fourth Amendment privacy interests in digital information that the Supreme Court recognized in

10 Riley are fully applicable to the Internet activities of plaintiffs that the government is seizing—

11 emails, web browsing and searching, live chat, voice calls, social networking, photos, videos, or

12 otherwise.

13

2. The Fourth Amendment’s Warrant Requirement Is The Time-Tested

Mechanism That Prevents Government Overreaching And Suspicionless

14

Searches, And It Applies To Digital Seizure And Searching Of Electronic

Communications

15

Like other “papers” and “effects,” plaintiffs’ electronic communications can only be seized

16

and searched with a warrant issued by a neutral and detached judicial officer, supported by probable

17

cause and describing with particularity the communications to be seized. See Ex parte Jackson, 96

18

U.S. at 733; Van Leeuwen, 397 U.S. at 251. National security does not excuse the need for a warrant

19

to intercept or search plaintiffs’ communications. “It is now clear that [the warrant] requirement

20

attaches to national security wiretaps that are not directed against foreign powers or suspected agents

21

of foreign powers.” Halperin v. Kissinger, 807 F.2d 180, 185 (D.C. Cir. 1986) (Scalia, Circuit

22

Justice, for the court).

23

The warrant requirement is not a dusty formalism but the tested method for protecting

24

Americans’ privacy against government intrusion. The Supreme Court recently affirmed: “Our

25

cases have historically recognized that the warrant requirement is an ‘important working part of our

26

machinery of government,’ not merely an ‘inconvenience to be somehow weighed against’” the

27

government’s interest in proceeding without a warrant. Riley, 134 S. Ct. at 2493 (citations omitted).

28

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1 Its two components are probable cause and the particularity requirement, both judged before any

2 search or seizure occurs by an independent and detached judicial officer. U.S. Const., amend. IV.

3

The probable cause requirement ensures that no search occurs where there is less than

4 probable cause or, worse, no suspicion at all. Keith, 407 U.S. at 316 (“The further requirement of

5 ‘probable cause’ instructs the magistrate that baseless searches shall not proceed.”); Coolidge v. New

6 Hampshire, 403 U.S. 443, 467 (1971) (same). It also serves to limit the scope of the search. In re

7 Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 857 (9th Cir. 1991).

8

The particularity requirement ensures that “those searches deemed necessary [are] as limited

9 as possible.” Coolidge, 403 U.S. at 467. The “need for particularity” “is especially great in the case

10 of [electronic] eavesdropping” because it “involves an intrusion on privacy that is broad in scope.”

11 Berger, 388 U.S. at 56. It ensures that “the search will be carefully tailored to its justifications,”

12 eliminating the threat of “general searches.” Maryland v. Garrison, 480 U.S. 79, 84 (1987). The

13 particularity requirement also makes general searches “impossible” by ensuring that when it comes

14 to what can be searched or seized, “nothing is left to the discretion of the officer executing the

15 warrant.” Marron v. U.S., 275 U.S. 192, 195-96 (1927); see also Berger, 388 U.S. at 49-50, 56, 58-

16 59; U.S. v. Bridges, 344 F.3d 1010, 1016 (9th Cir. 2003) (“Search warrants . . . are fundamentally

17 offensive to the underlying principles of the Fourth Amendment when they are so bountiful and

18 expansive in their language that they constitute a virtual, all-encompassing dragnet of personal

19 papers and property to be seized at the discretion of the State.”).

20

Judicial warrants based on particularity and probable cause are especially crucial in

21 electronic surveillance, where searches and seizures occur without leaving a trace and where the

22 threat to privacy is especially great. Keith, 407 U.S. at 313 (“the broad and unsuspected

23 governmental incursions into conversational privacy which electronic surveillance entails necessitate

24 the application of Fourth Amendment safeguards”). “Few threats to liberty exist which are greater

25 than that posed by the use of eavesdropping devices.” Berger, 388 U.S. at 63; accord Olmstead, 277

26 U.S. at 476 (1928) (Brandeis, J., dissenting) (“writs of assistance and general warrants are but puny

27 instruments of tyranny and oppression when compared with wire-tapping”). Because electronic

28

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1 seizures of communications occur by stealth, they can easily “evade[] the ordinary checks that

2 constrain abusive law enforcement practices.” Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring).

3

The warrant requirement is therefore essential: the alternative of “bypassing a neutral

4 predetermination of the scope of a search leaves individuals secure from Fourth Amendment

5 violations ‘only in the discretion of the [government].’” Katz, 389 U.S. at 358-59. “[P]ost-

6 surveillance review would never reach the surveillances which failed to result in prosecutions. Prior

7 review by a neutral and detached magistrate is the time-tested means of effectuating Fourth

8 Amendment rights.” Keith, 407 U.S. at 318 (citation omitted). This concern is heightened in the

9 case of mass surveillance, where the overwhelming majority of those whose communications are

10 seized and searched are not even suspected of a crime or of being an agent of a foreign power. As

11 the Supreme Court recently affirmed: “[A] warrant ensures that the inferences to support a search

12 are ‘drawn by a neutral and detached magistrate instead of being judged by the officer engaged in 13 the often competitive enterprise of ferreting out crime.’” Riley, 134 S. Ct. at 2482.18

14

B. Stage One: The Government’s Warrantless, Suspicionless Mass Seizure Of

Domestic Internet Communications Violates The Fourth Amendment

15

The government’s seizure of the contents of the Internet activities of plaintiffs and millions

16

of other Americans at the Internet backbone facilities of AT&T—the first stage of the government’s

17

surveillance—is unconstitutional. It is a general seizure that is not, and never could be, authorized

18

by a valid warrant. As this Court (per Walker, C.J.) previously concluded: “Because the alleged

19

dragnet here encompasses the communications of ‘all or substantially all of the communications

20

transmitted through [AT&T’s] key domestic telecommunications facilities,’ it cannot reasonably be

21

said that the program as alleged is limited to tracking foreign powers. Accordingly, AT&T’s alleged

22

actions here violate the constitutional rights clearly established in Keith [requiring a warrant for

23

electronic surveillance of persons who are not agents of foreign powers].” Hepting, 439 F. Supp. 2d

24

at 1010.

25

26 18 As described further in Section D(1) below, the Supreme Court also firmly rejected the notion that
27 government protocols alone could substitute for a warrant: “[T]he Founders did not fight a revolution to gain the right to government agency protocols.” Riley, 134 S. Ct. at 2491.
28

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1

The Court’s conclusion remains correct. Because the contents of plaintiffs’ communications

2 fall within the Fourth Amendment’s categorical protection of a person’s “papers” and “effects,” the

3 warrantless copying done at the Internet backbone is per se a Fourth Amendment violation. See

4 Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013) (“When the Government obtains information by

5 physically intruding on persons, houses, papers, or effects, a search within the original meaning of

6 the Fourth Amendment has undoubtedly occurred.” (internal quotation marks omitted)); Jones, 132

7 S. Ct. at 950 n.3. Independently, plaintiffs also have a reasonable expectation of privacy in their

8 communications, which is violated when the government seizes their communications without a

9 warrant. Katz, 389 U.S. at 353, 356-59; Berger, 388 U.S. at 55-64; Halperin v. Kissinger, 807 F.2d

10 at 185.

11

No warrant could justify the mass, suspicionless seizures occurring here. Even in cases of

12 seizures under valid warrants, the Ninth Circuit has routinely invalidated wholesale seizure of

13 documents as a violation of the Fourth Amendment. Although the Court has noted that “all items in

14 a set of files may be inspected during a search” in order to find the particular documents described in

15 a warrant whose seizure is supported by probable cause, “the wholesale seizure for later detailed

16 examination of records not described in a warrant is significantly more intrusive” and is precisely

17 “’the kind of investigatory dragnet that the fourth amendment was designed to prevent.’”

18 U.S. v. Tamura, 694 F.2d 591, 595 (9th Cir. 1982) (quoting U.S. v. Abrams, 615 F.2d 541, 543

19 (1st Cir. 1980)) (italics original).

20

Similarly, in U.S. v. Kow, 58 F.3d 423 (9th Cir. 1995), the Ninth Circuit found that a search

21 warrant that “contained no limitations on which documents . . . could be seized or suggested how

22 they related to specific criminal activity” failed the particularity requirement. 58 F.3d at 427. The

23 Court held that “generalized seizure” of a large group of documents may be justified only if there is

24 a showing that there is probable cause that the entire set of records are likely to show evidence of

25 criminal activity. Id.

26

In the Fourth Amendment, the Founders “emphasize[d] the purpose to protect against all

27 general searches. Since before the creation of our government, such searches have been deemed

28 obnoxious to fundamental principles of liberty. . . . The need of protection against them is attested

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1 alike by history and present conditions.” Go-Bart Importing Co. v. U.S., 282 U.S. 344, 357 (1931).

2 “Opposition to such searches was in fact one of the driving forces behind the Revolution itself.”

3 Riley, 134 S. Ct. at 2494. “The immediate object of the Fourth Amendment was to prohibit the

4 general warrants and writs of assistance that English judges had employed against the colonists,”

5 Virginia v. Moore, 553 U.S. 164, 168-69 (2008), and its words “reflect the determination of those

6 who wrote the Bill of Rights that the people of this new Nation should forever ‘be secure in their

7 persons, houses, papers, and effects’ from intrusion and seizure by officers acting under the

8 unbridled authority of a general warrant,” Stanford, 379 U.S. at 481-82.

9

The government’s indiscriminate, suspicionless bulk seizure of plaintiffs’ Internet activities

10 here is the modern-day equivalent of the hated “general warrants” that the Fourth Amendment was

11 meant to stamp out forever. As the Supreme Court explained in Marcus, it was precisely this power

12 to seize papers and effects indiscriminately, in bulk, and without particularized suspicion—the same

13 conduct the government is engaging in here—that made general warrants objectionable as “‘totally

14 subversive of the liberty of the subject.’” Marcus, 367 U.S. at 728-29. This is equally true today, as

15 the Supreme Court recently reaffirmed in Riley.

16

Because of this clear historical antipathy towards general warrants, the nation has never had

17 to address dragnet surveillance anything like the government’s practices here. The most analogous

18 situation was the NSA’s post-World War II “Operation Shamrock,” where, with the cooperation of

19 the telegraph companies, the NSA collected copies of each and every international telegram that was

20 sent into and out of the United States from 1945 to 1975. The constitutionality of that mass

21 collection was never considered by the courts, but Congress did address it and the Church

22 Committee, charged with investigating the mass surveillance, concluded that it violated the Fourth

23 Amendment rights of those who sent telegrams. S. Select Comm. to Study Governmental

24 Operations with Respect to Intelligence Activities, Book II: Intelligence Activities and the Rights of 25 Americans, S. Rep. No. 94-755 at 139 (1976).19 Indeed, Senator Church warned:

26

27 19 Available at http://www.intelligence.senate.gov/pdfs94th/94755_II.pdf.
28

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[The government’s] capability at any time could be turned around on the American

1

people, and no American would have any privacy left, such is the capability to

2

monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide.20

3 Such surveillance alters “the relationship between citizen and government in a way that is inimical

4 to a democratic society,” Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring) (citation omitted), by

5 creating the specter that the government can peer into its citizens’ private communications at any

6 moment.

7

If the Fourth Amendment means anything, it means that the government may not engage in

8 indiscriminate, suspicionless, mass surveillance of its own citizens. But that is exactly what the

9 government has done here, by sitting on the Internet and seizing plaintiffs’ communications as they

10 pass through AT&T’s facilities. That seizure violates the Fourth Amendment.

11 C. Stage Three: The Government’s Warrantless, Suspicionless Searching Of The

12

Contents Of Plaintiffs’ Internet Communications Is Unconstitutional

13

The Fourth Amendment is independently violated by the government’s warrantless and

14 indiscriminate content searching of plaintiffs’ Internet communications after it seizes them—stage 15 three of the government’s surveillance.21 To find targeted “selectors,” i.e., email addresses, websites

16 or similar identifiers of one or multiple persons or entities, the government undisputedly searches the

17 contents of vast numbers of innocent Americans’ Internet activities, both international and 18 domestic.22 This includes plaintiffs, none of whom has been suspected of any wrongdoing but each

19 20 Sen. Frank Church, Meet the Press, NBC, August 17, 1975, available at http://www.nbcnews.com
20 /video/meet-the-press/52669547#52669547, at 5:50 to 6:40, and quoted in James Bamford, The
Agency That Might Be Big Brother, New York Times, Dec. 25, 2005, available at http://www.nytim 21 es.com/2005/12/25/weekinreview/25bamford.html?pagewanted=print.

22 21 Seizing and searching the communications of known foreign terrorists, even if constitutional, does

not give the government license to circumvent the warrant requirement in searching plaintiffs’ 23 communications. The Fourth Amendment does not sanction “constitutionality by proximity:” a

24

warrant to search your neighbor’s house does not validate a search of your house. See U.S. v. Collins, 845 F.2d 145, 145-46 (1987).

25 22 As noted above, the government’s filtering (stage two in the figure on page 5) for some indication 26 of foreignness is imperfect. See supra at nn. 9-10. But even if stage two filtering were completely
effective, the stage three searching is intended to, and does, search the contents of communications

27 of plaintiffs and millions of other “United States persons” within the United States who are not
surveillance targets and who are not suspected of being agents of a foreign power or possessing 28 (footnote continued on next page)

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1 of whom has attested to communications with people abroad and visiting websites hosted abroad.

2 See Jewel Decl. at ¶¶ 6, 8; Knutzen Decl. at ¶¶ 8, 9; Walton Decl. at ¶¶ 8, 9. Because these

3 suspicionless searches of plaintiffs’ Internet activities are conducted without a warrant, they violate

4 the Fourth Amendment.

5

Like the unconstitutional seizures discussed above, the government’s warrantless searching

6 of the communications of persons suspected of no wrongdoing is nothing more than a suspicionless

7 and unconstitutional general search at the government’s discretion. It is the same “general,

8 exploratory rummaging” that the Fourth Amendment prohibits. Andresen v. Maryland, 427 U.S.

9 463, 480 (1976). Like general warrants, searching the communications stream of millions of

10 persons for “selectors” (without any suspicion of the persons whose communications are searched)

11 gives the government “the most general discretionary authority,” Marcus, 367 U.S. at 726; has no

12 limits on place or duration, id. at 729 n.22; and “provide[s] no judicial check on the determination of

13 the executing officials that the evidence available justifie[s] an intrusion,” Steagald v. U.S., 451 U.S.

14 204, 220 (1981).

15

Moreover, the searches here are more extensive than even the broadest general warrant, since

16 the government performs its content searches on the entire post-filtering communications stream.

17 Searching of the communications stream means that hundreds of millions of communications are

18 searched that do not contain the selectors along with the relatively few that do. These

19 communications that are searched and found not to contain the selectors are the communications of

20 millions of innocent Americans with no connection to any surveillance target. For comparison, for

21 the colonial general warrants to be the equivalent of the searches here, the British troops would have

22 had to search every home that ever received a package from abroad. This fact is elided in the

23 government’s assertions regarding its collection from the Internet backbone, in which it claims, for

24 instance, that it ultimately retains only roughly 22 million electronic communications in 2011. See

25
26 (footnote continued from previous page) foreign intelligence information. Whether the searching is of all plaintiffs’ communications or only
27 their international or internationally transiting communications after stage two filtering does not change the conclusion of unconstitutionality.
28

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1 ECF No. 254-1 at 7:16-17. As described above, the government here is only counting the

2 communications it retains at the end (stage four in the figure above), not all those it searches (stage

3 three). This is akin to the British only counting the homes where they found some evidence of

4 smuggling, not all of those they searched pursuant to their general warrants.

5

The government’s searches are unconstitutional because the government has no warrant

6 authorizing its content searching, and because the searches are indiscriminate and suspicionless

7 general searches that no warrant could properly authorize.

8

D. The Government’s Defenses Fail

9

1. Section 702 Orders Cannot Substitute For Constitutionally-Required

Warrants

10

The government’s chief affirmative defense for the legality of its domestic Internet backbone

11

seizures and content searching has been that it currently conducts these activities under color of a

12

FISC Order under section 702 of the FISA Amendments Act (50 U.S.C. § 1881a). This defense

13

fails.

14

The section 702 orders upon which the government relies to conduct its Internet backbone

15

seizures and searches are nothing like warrants, and they do not satisfy the Fourth Amendment.

16

Section 702 orders only approve protocols for future seizures by the government. But as the

17

Supreme Court explained in Riley: “[T]he Founders did not fight a revolution to gain the right to

18

government agency protocols.” Riley, 134 S. Ct. at 2491. And of course, neither section 702, nor

19

any order issued under it, can relax the Fourth Amendment’s requirements. The Fourth Amendment

20

is not merely a “redundant guarantee of whatever limits on search and seizure legislatures might

21

have enacted.” Virginia v. Moore, 553 U.S. at 168.

22

Section 702 orders have none of the features required for a valid, constitutional warrant. In

23

sharp contrast to the particularity and probable cause requirements of warrants, section 702 orders

24

are periodic administrative approvals by the FISC of very generalized targeting and minimization

25

procedures. Under section 702, the government proposes these procedures and then negotiates their

26

terms with the FISC if it raises any objections. In doing so, the FISC acts in essence as an

27

28

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1 administrative agency engaged in prospective rulemaking, not as a court issuing a warrant.23 Indeed,

2 unlike a warrant or a traditional FISA order, a FISC order under section 702 does not authorize the

3 search or seizure of anything from anyone. Rather, the Executive subsequently decides what

4 communications to seize and compels the seizure by issuing directives to telecommunications

5 providers. 50 U.S.C. § 1881a(h)(1).

6

For comparison, under a traditional FISA order, the government would be required in

7 support of its application to specify to the FISC its surveillance targets, what evidence supports the

8 belief that the targets are agents of a foreign power and that surveillance of their communications is

9 likely to yield foreign intelligence information, what communications facilities it will subject to

10 surveillance, and what information the government’s surveillance is seeking. 50 U.S.C. § 1804(a);

11 see 7/25/14 Wiebe Decl., Ex. A at 24 (PCLOB 702 Report). The order would be limited to

12 surveillance of the communications of particular identified targets and could not authorize mass

13 suspicionless seizures as are occurring here. 50 U.S.C. § 1805(c).

14

In contrast, the decisions about the actual surveillance conducted pursuant to a section 702

15 order are made by the Executive without any judicial review. A section 702 order does not specify

16 or limit the persons whose communications the government may seize or search, the

17 communications facilities or accounts from which the government may seize communications, or

18 what information the government may search for within the seized communications. 50 U.S.C.

19 § 1881a(i)(1)(A), (i)(2), (i)(3)(A); 7/25/14 Wiebe Decl., Ex. A at 24-25, 27 (PCLOB 702 Report).

20 The FISC never determines whether there is probable cause (or any level of suspicion) that seizing

21 the communications from a particular Internet backbone facility will yield the communications of a

22 non-U.S. person located outside the United States who possesses foreign intelligence information.

23 7/25/14 Wiebe Decl., Ex. A at 24-25, 27 (PCLOB 702 Report). As to searching of the seized

24 communications, the FISC never determines whether there is probable cause (or any level of

25
26 23 See, e.g., Testimony of the Hon. James Robertson (U.S. District Judge, ret.), “Workshop Regarding Surveillance Programs Operated Pursuant to Section 215 of the USA PATRIOT Act and
27 Section 702 of the Foreign Intelligence Surveillance Act,” Transcript at 35-37 (July 9, 2013), available at http://www.pclob.gov/All Documents/July 9, 2013 Workshop Transcript.pdf.
28

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1 suspicion) that each (or even any) of the communications the government is searching will yield

2 evidence of wrongdoing or foreign intelligence information, or that the persons whose

3 communications are searched are non-U.S. persons located outside the United States. Id. No court

4 ever reviews the selectors that the government uses to search the contents of communications of

5 persons like plaintiffs not suspected of anything. ECF No. 253-3 at 2-3 (The Intelligence

6 Community’s Collection Programs Under Title VII of the Foreign Intelligence Surveillance Act).

7 The Executive alone makes all of these decisions without judicial oversight. These are

8 impermissible general seizures and searches.

9

Section 702 involves far less judicial scrutiny than even the electronic surveillance statute the

10 Supreme Court found constitutionally inadequate in Berger, the case that launched the application of

11 the Fourth Amendment to electronic surveillance. In Berger, the Supreme Court considered a state

12 statute that authorized electronic surveillance and required prior judicial approval, but did not

13 require as part of that approval either probable cause or a description of the particular conversations

14 to be seized. Among its deficiencies, the Court noted that naming the surveillance target “does no

15 more than identify the person whose constitutionally protected area is to be invaded rather than

16 ‘particularly describing’ the communications, conversations, or discussions to be seized.” 388 U.S.

17 at 59. The Court found the electronic surveillance statute in Berger unconstitutional, even though it

18 required prior judicial approval, because it authorized “indiscriminate use of electronic devices” and

19 “actually permits general searches by electronic devices.” Id. at 58.

20

The Fourth Amendment requires a warrant before plaintiffs’ Internet activities may be seized

21 from the Internet backbone and searched because the personal privacy interests the Fourth

22 Amendment protects are at their zenith here. Only enforcement of the warrant requirement—by

23 requiring a particularized description of the communications to be seized and the places from which

24 they are to be seized, and by requiring a judicial determination that probable cause exists to support

25 the seizure and search—can adequately protected plaintiffs’ privacy interests in their Internet

26 activity.

27

28

Case No. 08-cv-4373-JSW

23

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT RE FOURTH AMENDMENT

Case4:08-cv-04373-JSW Document261 Filed07/25/14 Page29 of 31

2. The “Special Needs” Exception Cannot Justify The Government’s

1

Dragnet

2

“In most circumstances, searches and seizures conducted without a warrant are ‘per se

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

4 delineated exceptions.’” Al Haramain Islamic Foundation, Inc. v. U.S. Department of Treasury, 686

5 F.3d 965, 990 (9th Cir. 2011) (quoting Katz, 389 U.S. at 357).

6

The warrantless, suspicionless mass seizures of communications occurring here cannot be

7 justified under the “special needs” exception to the warrant requirement. See Chandler v. Miller,

8 520 U.S. 305, 313-14 (1997). As the Supreme Court has explained, “When such ‘special needs’—

9 concerns other than crime detection—are alleged in justification of a Fourth Amendment intrusion,

10 courts must undertake a context-specific inquiry, examining closely the competing private and

11 public interests advanced by the parties.” Id. (internal citations omitted).

12

The “special needs” exception is a “closely guarded category.” Chandler, 520 U.S. at 309.

13 Its requirements are rigorous: “‘In limited circumstances, where the privacy interests implicated by

14 the search are minimal, and where an important governmental interest furthered by the intrusion

15 would be placed in jeopardy by a requirement of individualized suspicion, a search may be

16 reasonable despite the absence of [individualized] suspicion.’” Id. at 314.

17

Here, the suspicionless mass seizure of Americans’ Internet communications fails the first

18 prong of the “special needs” exception. Plaintiffs’ privacy interest in their Internet activities, far

19 from being “minimal,” lies at the heart of the Fourth Amendment. As previously described, a

20 person’s Internet activities encompass a vast array of intimate details about that person’s private life.

21 The government intrudes massively on plaintiffs’ privacy interest in their Internet activities by

22 copying every single one of plaintiffs’ communications passing through the Internet backbone. It

23 also does so by content-searching a subset of plaintiffs’ Internet activity filtered by IP address,

24 without any individualized suspicion.

25

Nor does the important purpose of the government’s surveillance overcome its massive

26 intrusion into the privacy of plaintiffs and millions of other Americans. Although “the government’s

27 interest in preventing terrorism . . . is extremely high,” the importance of that interest “is no excuse

28 for the dispensing altogether with domestic persons’ constitutional rights.” Al Haramain Islamic

Case No. 08-cv-4373-JSW

24

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT RE FOURTH AMENDMENT

Case4:08-cv-04373-JSW Document261 Filed07/25/14 Page30 of 31

1 Foundation, 686 F.3d at 993; see also Keith, 407 U.S. at 316-21 (rejecting government’s argument

2 that national security required dispensing with the warrant requirement in domestic security

3 surveillance cases). “Emergency does not create power. Emergency does not increase granted

4 power or remove or diminish the restrictions imposed upon power granted or reserved. . . . [¶] . . .

5 [E]ven the war power does not remove constitutional limitations safeguarding essential liberties.”

6 Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 425-26 (1934). Allowing even legitimate

7 national security concerns to override the most fundamental of Fourth Amendment protections—the

8 prohibition on the modern-day equivalent of the despised “general warrant”—would turn the 9 Constitution on its head and destroy the basic civil liberties that the Founders fought to protect.24

10 V. 11

CONCLUSION The government’s indiscriminate, suspicionless seizures and content searches at issue here

12 violate the fundamental privacy rights of plaintiffs and millions of other Americans, as guaranteed

13 by the Fourth Amendment. The Fourth Amendment requires that the government must obtain a

14 warrant by showing individualized suspicion, probable cause, and a particularized description of the

15 communications to be seized or searched. Enforcing those bedrock Fourth Amendment

16 requirements here is necessary to keep the government within constitutional bounds, and to preclude

17 the general searches and seizures the government is now conducting.

18

For the foregoing reasons, plaintiffs respectfully request that the Court rule that (1) the

19 government’s seizure of plaintiffs’ Internet communications violates the Fourth Amendment

20 and (2) the government’s content searching of plaintiffs’ Internet communications violates the

21 Fourth Amendment.

22 24 Moreover, the government’s purpose is far broader than simply addressing terrorist threats.
23 Section 702 permits collection of any “foreign intelligence information,” a broadly-defined category that includes information that relates to national defense or foreign affairs. 50 U.S.C. § 1801(e).
24 And even as to that category, section 702 requires only that foreign intelligence be a significant
purpose of the investigation, not the sole or even primary purpose. 50 U.S.C. § 1881a(g)(2)(A)(v). 25 This is far beyond the limited category of important government interests that could justify
26 dispensing with the warrant requirement of the Fourth Amendment. In addition, the fruits of section 702 seizures and searches are admittedly used for even more remote purposes. They include, as a
27 “routine practice,” searching by the FBI in ordinary criminal cases, thus rendering the special needs exception inapplicable. See 7/25/14 Wiebe Decl., Ex. A at 137-38 (PCLOB 702 Report).
28

Case No. 08-cv-4373-JSW

25

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT RE FOURTH AMENDMENT

Case4:08-cv-04373-JSW Document261 Filed07/25/14 Page31 of 31

1 Dated: July 25, 2014
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
/s/ Richard R. Wiebe RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE
CINDY COHN LEE TIEN KURT OPSAHL JAMES S. TYRE MARK RUMOLD ANDREW CROCKER DAVID GREENE ELECTRONIC FRONTIER FOUNDATION
THOMAS E. MOORE III ROYSE LAW FIRM
RACHAEL E. MENY MICHAEL S. KWUN BENJAMIN W. BERKOWITZ AUDREY WALTON-HADLOCK JUSTINA K. SESSIONS PHILIP J. TASSIN KEKER & VAN NEST LLP
ARAM ANTARAMIAN LAW OFFICE OF ARAM ANTARAMIAN
Counsel for Plaintiffs

Case No. 08-cv-4373-JSW

26

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT RE FOURTH AMENDMENT

 
 PAGES 1 - 53

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE JEFFREY S. WHITE, JUDGE

CAROLYN JEWEL, TASH HEPTING, ET AL,)

)

PLAINTIFFS,

)

)

VS.

) NO. C 08-04373 JSW

)

NATIONAL SECURITY AGENCY, ET AL, )

) OAKLAND, CALIFORNIA

DEFENDANTS.

) FRIDAY

) JUNE 6, 2014

___________________________________) 2:00 O'CLOCK P.M.

VIRGINIA SHUBERT, ET AL,

)

)

PLAINTIFFS,

)

)

VS.

) NO. C 07-00693 JSW

)

GEORGE W. BUSH, ET AL,

)

)

DEFENDANTS.

)

)

___________________________________)

TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

FOR PLAINTIFFS JEWEL, ET AL:

ELECTRONIC FRONTIER FOUNDATION 815 EDDY STREET SAN FRANCISCO, CALIFORNIA 94109 BY: CINDY COHN, ATTORNEY AT LAW ANDREW CROCKER, ESQUIRE KURT OPSAHL, ESQUIRE

FURTHER APPEARANCES ON NEXT PAGE

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

AND
RICHARD R. WIEBE, ESQUIRE ONE CALIFORNIA STREET, SUITE 900 SAN FRANCISCO, CALIFORNIA 94111

AND
FOR PLAINTIFFS BOTEIN, ET AL (BY TELEPHONE):

ROYSE LAW FIRM 1717 EMBARCADERO ROAD PALO ALTO, CALIFORNIA 94303 BY: THOMAS MOORE, ESQUIRE
EMERY CELLI BRINCKERHOFF & ABADY, LLP 75 ROCKEFELLER PLAZA 20TH FLOOR NEW YORK, NY 10019 BY: ILANN MAAZEL, ESQUIRE

FOR DEFENDANTS NATIONAL U.S. DEPARTMENT OF JUSTICE AND SECURITY AGENCY, ET AL: CIVIL DIVISION
20 MASSACHUSETTS AVENUE N.W. WASHINGTON, D.C. 20530 BY: MARCIA BERMAN, ASSISTANT UNITED STATES ATTORNEY (BY TELEPHONE) ANTHONY COPPOLINO, ASSISTANT UNITED STATES ATTORNEY (BY TELEPHONE) RODNEY PATTON, ASSISTANT UNITED STATES ATTORNEY JULIA BERMAN, ASSISTANT UNITED STATES ATTORNEY (BY TELEPHONE) BRYAN DEARINGER, ASSISTANT UNITED STATES ATTORNEY (BY TELEPHONE) AND NATIONAL SECURITY AGENCY 9800 SAVAGE ROAD PORT MEADE, MD. 20755
BY: CHAD BAYSE, ESQUIRE
REPORTED BY: KATHERINE WYATT, CSR 9866, RMR, RPR

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

3

1 JUNE 6, 2014

2:00 O'CLOCK P.M.

2

3

P R O C E E D I N G S

4

THE COURT: GOOD AFTERNOON, EVERYBODY. PLEASE BE

5 SEATED, AND CALL THE CASE.

6

THE CLERK: CALLING CASE NUMBER C-08-4373, CAROLYN

7 JEWEL, ET AL VERSUS NATIONAL SECURITY AGENCY, ET AL AND CASE

8 NUMBER C-07-0693, VIRGINIA SHUBERT, ET AL VERSUS GEORGE W.

9 BUSH, ET AL.

10

COUNSEL, PLEASE STATE YOUR APPEARANCES. COUNSEL IN

11 COURT, FIRST.

12

MS. COHN: GOOD AFTERNOON, YOUR HONOR. CINDY COHN,

13 OF THE ELECTRIC FRONTIER FOUNDATION ON BEHALF OF THE JEWEL

14 PLAINTIFFS.

15

THE COURT: GOOD AFTERNOON.

16

THE CLERK: AND ON THE PHONE?

17

MR. COPPOLINO (BY PHONE): GOOD AFTERNOON, YOUR

18 HONOR. THIS IS ANTHONY COPPOLINO WITH THE DEPARTMENT OF

19 JUSTICE, CIVIL DIVISION. AND I'M JOINED IN MY OFFICE BY A

20 NUMBER OF MY COLLEAGUES: MARCIA BERMAN, BRYAN DEARINGER,

21 RODNEY PATTON, JULIA BERMAN.

22

AND WE'RE ON SPEAKERPHONE, YOUR HONOR, BUT WE'RE THE

23 ONLY PEOPLE THAT ARE IN THE OFFICE HERE.

24

THE COURT: ALL RIGHT. AND ARE YOU ABLE TO HEAR THE

25 COURT?

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

4

1

MR. COPPOLINO (BY PHONE): I AM, YOUR HONOR, VERY

2 WELL. THANK YOU.

3

THE COURT: AND WERE YOU ABLE TO HEAR MS. COHN?

4

MR. COPPOLINO (BY PHONE): YES, I HEAR HER VERY WELL,

5 TOO. 6 7

THE COURT: YES. AND PLEASE -MR. MAAZEL (BY PHONE): AND, YOUR HONOR, ILANN

8 MAAZEL, EMERY, CELLI, BRINCKERHOFF & ABADY, FOR THE SHUBERT

9 PLAINTIFFS ALSO ON THE PHONE.

10

THE COURT: ALL RIGHT. WELCOME.

11

AND IT WOULD BE VERY HELPFUL TO THE COURT REPORTER

12 AND COURT IF WHEN PEOPLE ON THE PHONE SPEAK, PLEASE IDENTIFY 13 YOURSELF. AND I JUST NOTED THERE WERE TWO BERMANS. SO IF 14 EITHER OF THE BERMANS SPEAK, PLEASE MENTION YOUR FIRST NAME, AS

15 WELL, SO WE KNOW WHICH BERMAN IS SPEAKING.

16

ALL RIGHT. SO I HAVE REVIEWED BOTH SIDES' BRIEFING

17 AND THE SUPPORTING DECLARATION AND EXHIBITS. AND I WANTED TO

18 ASK SOME QUESTIONS TO FOLLOW UP ON AND WHAT WAS POSED. AND AS

19 COUNSEL ON THE PHONE AND IN COURT KNOW WELL, THIS COURT DOES 20 READ THE BRIEFS AND THE CASES, SO I DON'T NEED COUNSEL TO 21 MERELY REITERATE WHAT IS IN THEIR BRIEFS, UNLESS IT'S TO

22 HIGHLIGHT A SPECIFIC RESPONSE TO THE COURT'S QUESTION.

23

IF I ASK A QUESTION IT MEANS THAT I DON'T FEEL LIKE

24 THE INFORMATION HAS BEEN PROVIDED TO THE COURT AT THIS POINT.

25 SO IT'S POSSIBLE IN THE HEAT OF BATTLE I MAY HAVE MISSED SOME

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

5

1 OF IT, BUT THAT'S WHY I WANT YOU TO ANSWER THESE QUESTIONS.

2

SO THE FIRST QUESTION -- AND AS I USUALLY DO, I'M

3 GOING TO BEGIN THE QUESTION WITH A PREAMBLE SO YOU UNDERSTAND

4 WHERE THE COURT IS COMING FROM, AND THEN ASK COUNSEL QUESTIONS.

5

YOU'RE ALWAYS FREE ONCE YOU ANSWER THE QUESTION TO

6 QUARREL WITH THE COURT'S PREAMBLE. BUT PLEASE ANSWER THE

7 QUESTION FIRST, AND THEN YOU CAN TELL THE COURT WHY ITS

8 PREAMBLE WAS -- YOU DISAGREE WITH IT.

9

SO QUESTION NUMBER:

10

"WITH REGARD TO THE COLLECTION OF COMMUNICATIONS

11

PURSUANT TO SECTION 702, DEFENDANTS HAVE REPRESENTED

12

THAT THE INFORMATION IS RELEVANT, AND PLAINTIFFS HAVE

13

DISTINGUISHED THEIR SECTION 215 CHALLENGES. IN HIS

14

DECLARATION OF DECEMBER, 2013, ASSERTING PRIVILEGE,

15

DIRECTOR OF NATIONAL INTELLIGENCE, JAMES R. CLAPPER,

16

CONCEDES THAT COMMUNICATIONS COLLECTED PURSUANT TO

17

FISC, F-I-S-C, ORDERS UNDER SECTION 702, QUOTE: 'MAY

18

RELATE TO OR BE NECESSARY TO ADJUDICATE PLAINTIFFS'

19

ALLEGATIONS,'" UNQUOTE.

20

AND THAT IS THE SO-CALLED "CLAPPER DECLARATION,"

21 DOCKET 22O AT PARAGRAPH 61.

22

"HOWEVER, IN THEIR BRIEFING ON THEIR STATUS AS

23

AGGRIEVED PARTIES, PLAINTIFFS DISTINGUISH THEIR

24

CURRENT BROAD UNTARGETED TELEPHONY META DATA CLAIMS

25

FROM THE AMNESTY INTERNATIONAL VERSUS CLAPPER

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

6

1

PLAINTIFFS' CHALLENGES TO SECTION 702, 702 SPECIFIC

2

AND TARGETED SURVEILLANCE PROGRAM."

3

AND I'M CITING HERE PLAINTIFFS' RESPONSE TO THE

4 COURT'S QUESTIONS AT 10 THROUGH 11.

5

SO TO THE PLAINTIFFS: ON WHAT BASIS DO PLAINTIFFS

6 CONTEND THAT THE DATA COLLECTED PURSUANT TO SECTION 702 IS,

7 QUOTE, "RELEVANT," UNQUOTE, TO THEIR PENDING CLAIMS?

8

AND, SECONDLY: WHERE IN THE COMPLAINT DO PLAINTIFFS

9 SPECIFICALLY SEEK REDRESS FOR VIOLATIONS OF THEIR

10 CONSTITUTIONAL AND STATUTORY RIGHTS PURSUANT TO THE PROGRAM

11 EFFECTUATED UNDER SECTION 702?

12

MS. COHN: THANK YOU, YOUR HONOR. I THINK THAT TO

13 ANSWER YOUR QUESTION THE 702 PROGRAM DIDN'T EXIST AS A 702

14 PROGRAM WHEN WE FILED THE CASE.

15

WHAT WE HAD EVIDENCE OF FROM THE VERY BEGINNING OF

16 THIS IS THAT THE NSA HAS ACCESS TO COMMUNICATIONS AS THEY FLOW

17 OVER THE FIBER OPTIC CABLES, AND SPECIFICALLY THE AT&T BUILDING

18 ON FOLSOM STREET, BUT IN AT&T FACILITIES ACROSS THE COUNTRY.

19

SO OUR COMPLAINT HAS ALWAYS BEEN BASED ON WHAT THE

20 GOVERNMENT DOES. AND AS TIME HAS GONE ON, THE GOVERNMENT HAS

21 NOW GIVEN A STATUTORY LABEL TO WHAT IT IS DOING IN TERMS OF

22 ACCESSING INFORMATION OFF THE FIBER OPTIC CABLES.

23

AND THEY SAY THAT IT'S NOW JUSTIFIED UNDER SECTION

24 702 OF THE FISA AMENDMENTS ACT, WHICH WAS PASSED IN 2008.

25

THE WAY THAT THIS PROGRAM WORKS IS A TWO-STEP

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

7

1 PROCESS. AND A LOT OF CONFUSION IN THESE CASES HAS TO DO WITH

2 ALLYING THE DIFFERENCES BETWEEN THE TWO STEPS. THE FIRST STEP

3 IS THAT THE GOVERNMENT COLLECT EVERYTHING COMING OFF OF THOSE

4 CABLES. COLLECT IT ALL IS WHAT IT COMES OUT IN THE MOST RECENT

5 SLIDES THAT HAVE COME OUT.

6

AND THEN, THE GOVERNMENT TAKES A SERIES OF STEPS TO

7 REDUCE, TO MINIMIZE WHAT IT HAS COLLECTED. AND THE

8 MINIMIZATION PROCEDURES THAT THEY INCLUDE THERE ARE THEIR

9 EFFORTS TO TRY TO LIMIT THE FIRST STEP TO A SECOND STEP, WHICH

10 IS I THINK WHAT THEY ARE CALLING "TARGETED SURVEILLANCE"

11 BECAUSE IT'S DONE PURSUANT TO SELECTORS.

12

NOW, SELECTORS AREN'T JUST PEOPLE. THERE'S SOME

13 FIGHTS ABOUT WHAT A SELECTOR IS. BUT TO KEEP THE WAY THAT THIS

14 WORKS IN MIND, THERE'S A TWO-STEP PROCESS. THE FIRST THING IS

15 THEY COLLECT EVERYTHING. AND THE SECOND THING IS THEY TAKE A

16 SERIES OF MEASURES TO LIMIT WHAT THEY RETAIN TO WHAT I THINK

17 THEY WOULD DEEM TARGETED.

18

THE FIGHT IN OUR CASE HAS BEEN LARGELY ABOUT STEP

19 ONE: WHETHER THERE'S A CONSTITUTIONAL QUESTION AT THE TIME THE

20 GOVERNMENT GAINS CUSTODY OF EVERYTHING IN THE FIRST INSTANCE.

21

THE GOVERNMENT'S ARGUMENT IS SECTION 702 IS ABOUT THE

22 SECOND STEP, THE TARGETING STEP. AND THAT THE FIRST STEP JUST

23 DOESN'T MATTER OR DOESN'T COUNT OR SHOULDN'T HAVE ANY STANDING.

24 AND SO THERE'S CONFUSION IN THE WAY THE CONVERSATION HAS

25 HAPPENED, BECAUSE WE'RE TALKING ABOUT STEP ONE, AND THEY ARE

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

8

1 LARGELY TALKING ABOUT STEP TWO.

2

AND SO WHEN WE TALK ABOUT CLAPPER, THE CLAPPER CASE,

3 WAS A CASE IN WHICH THE PLAINTIFF SAID:

4

"BASED ON THE GOVERNMENT'S STATEMENTS ABOUT WHO

5

IS KEEPING INFORMATION ABOUT IT UNDER STEP TWO, WE

6

THINK WE'RE IT."

7

THE PLAINTIFFS IN THE CLAPPER CASE WAS AMNESTY

8 INTERNATIONAL. IT WAS PEOPLE WHO ARE ENGAGED IN COMMUNICATIONS

9 WITH PEOPLE WHO THEY REASONABLY SUSPECT THE GOVERNMENT MIGHT BE

10 SURVEILLING.

11

SO WHEN WE SAY THAT THE CLAPPER CASE WAS ABOUT

12 TARGETED SURVEILLANCE IT'S BECAUSE THE PLAINTIFFS WERE ARGUING

13 THAT THEY WERE WHAT WAS BEING KEPT IN THE SECOND STEP OF THIS

14 SURVEILLANCE. AND WE'RE ARGUING ON BEHALF OF THE MILLIONS AND

15 MILLIONS OF ORDINARY PEOPLE WHOSE INFORMATION IS CAPTURED AND

16 SCANNED AS PART OF STEP ONE.

17

SO THE TERMINOLOGY HAS CHANGED SO MUCH. SO THE

18 GOVERNMENT ORIGINALLY CLAIMED THAT "COLLECT" DIDN'T MEAN STEP

19 ONE. "COLLECT" MEANT WHAT THEY HAD AFTER STEP TWO. NOW THEY

20 SAY IT'S A TARGETED PROGRAM BECAUSE WHAT THEY KEEP IS ONLY THE

21 STUFF THAT THEY KEEP, SO THAT'S TARGETED. SO THE WHOLE PROGRAM

22 IS A TARGETED PROGRAM.

23

BUT THAT'S NOT -- I DON'T THINK THAT'S A FAIR

24 CHARACTERIZATION OF HOW 702 IS OPERATING, FRANKLY. THEY ARE

25 COLLECTING EVERYBODY'S STUFF FIRST, AND THEN SORTING OUT SECOND

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

9

1 WHAT THEY NEED. BOTH OF THOSE STEPS ARE CONSTITUTIONALLY

2 SIGNIFICANT.

3

DID I EXPLAIN THAT WELL?

4

THE COURT: WELL, YOU EXPLAINED IT WELL, BUT I DON'T

5 KNOW IF YOU ARE GETTING TO THE DIRECT ANSWER, WHICH IS WHERE IN

6 THE COMPLAINT DO YOU ALLEGE VIOLATION OF WHAT YOU'RE CALLING

7 STEP TWO, OR THE 702 PROGRAM?

8

MS. COHN: STEP ONE IS WHAT WE ARE --

9

THE COURT: I THOUGHT YOU MEANT STEP ONE WAS THE

10 COLLECTION, THE MASS COLLECTION OF META DATA.

11

MS. COHN: NO. THE MASS COLLECTION OF EVERYTHING,

12 CONTENT AND META DATA.

13

THE COURT: ALL RIGHT.

14

MS. COHN: THE FIBER OPTIC CABLES CARRY BOTH CONTENT

15 AND META DATA.

16

OKAY. SO THAT'S STEP ONE.

17

MS. COHN: THAT'S STEP ONE.

18

THE COURT: ALL RIGHT. STEP TWO IS THE SO CALLED

19 "TARGETED APPROACH."

20

MS. COHN: RIGHT.

21

THE COURT: DOES YOUR COMPLAINT OR CAN YOU CITE THE

22 COURT IN YOUR COMPLAINT TO ANYWHERE WHERE STEP TWO IS RELEVANT

23 TO THE PLAINTIFFS' CLAIMS IN THIS CASE?

24

MS. COHN: WELL, PLAINTIFFS HAVE A DIFFICULT TIME

25 UNDERSTANDING WHETHER THEIR INFORMATION CONTINUES TO BE

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

10

1 RETAINED BY THE GOVERNMENT AFTER THE GOVERNMENT APPLIES ITS

2 MINIMIZATION PROCEDURES BECAUSE THOSE PROCEDURES ARE SECRET.

3 SO WE'VE FOCUSED OUR CASE ON STEP ONE, WHICH IS THE INITIAL

4 COLLECTION.

5

THE COURT: WELL, LET ME STOP YOU RIGHT THERE. SO

6 LET'S ASSUME THAT -- YOU KNOW, I WANT TO MAKE SURE THAT THE

7 GOVERNMENT AND THE PLAINTIFFS ARE TALKING ABOUT THE SAME THING.

8 OR MAYBE THERE IS -- I'LL LET YOU CONFER WITH YOUR COCOUNSEL

9 THERE.

10

MS. COHN: I'M GRABBING THE COMPLAINT, YOUR HONOR.

11

THE COURT: IT'S OKAY TO DO THAT. BUT IF WHAT YOU'RE

12 SAYING IS THAT THE STEP ONE, YOU KNOW, WHOLESALE OR LARGE

13 COLLECTION UNDIFFERENTIATED, IF YOU WILL, IS SOMETHING -- IS

14 THAT SOMETHING THAT YOU ARGUE IS DONE PURSUANT TO SECTION 215?

15

MS. COHN: NO.

16

THE COURT: YOU'RE SAYING THAT THAT'S DONE PURSUANT

17 TO 702.

18

MS. COHN: CORRECT.

19

THE COURT: OKAY. SO OKAY. NOW, WHERE IN YOUR

20 COMPLAINT IS IT SPECIFICALLY ALLEGED THAT 702 OR ACTIONS UNDER

21 702 BY THE GOVERNMENT ARE VIOLATING THE CONSTITUTIONAL RIGHTS

22 OF THE PLAINTIFFS?

23

MS. COHN: WELL, YOUR HONOR, THE COMPLAINT ISN'T

24 BASED ON SECTION 702, BECAUSE IT WASN'T UNTIL VERY RECENTLY

25 THAT WE LEARNED THAT THE GOVERNMENT IS DOING THIS BEHAVIOR

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

11

1 UNDER A CLAIM OF AUTHORITY UNDER SECTION 702. WHAT THE

2 COMPLAINT IS ABOUT IS ABOUT THE BEHAVIOR. THE COMPLAINT IS

3 ABOUT THE WHOLESALE COPYING OF THE COMMUNICATIONS OF AT&T

4 CUSTOMERS OFF OF THE FIBER OPTIC CABLES.

5

THE COURT: WHICH YOU CONTEND IS DONE BOTH PURSUANT

6 TO 215 OR 702 OR JUST 702?

7

MS. COHN: NO, YOUR HONOR. JUST 702. A DUAL

8 COMPLAINT HAS TWO PIECES. SO IF I -- IT'S A LITTLE CONFUSING.

9

THE COURT: ONE IS PRESIDENT BUSH -- SO-CALLED

10 PRESIDENT BUSH AUTHORIZED COLLECTIONS, AND THE SECOND ONE IS

11 THE SO CALLED "FISA AUTHORIZED COLLECTION"?

12

MS. COHN: NO, YOUR HONOR. IF I MAY.

13

THE COURT: PLEASE.

14

MS. COHN: THERE ARE TWO FACTUAL PIECES IN OUR CASE.

15 ONE IS THE TELEPHONE RECORDS COLLECTION, AND THE SECOND IS THE

16 COLLECTION OFF OF THE FIBER OPTIC CABLES. SO THERE ARE TWO

17 DISTINCT ACTIVITIES THAT IT IS GOVERNMENT IS DOING.

18

NOW, POST SNOWDEN, THE GOVERNMENT HAS ADMITTED THAT

19 THERE ARE TWO DIFFERENT STATUTORY BASES UPON WHICH IT'S DOING

20 THESE TWO SEPARATE PROGRAMS. IT'S COLLECTING THE PHONE RECORDS

21 UNDER SECTION 215. IT'S COLLECTING THE INTERNET CONTENT UNDER

22 702.

23

BUT OUR COMPLAINT IS BASED ON THESE TWO BEHAVIORS.

24 THE GOVERNMENT'S STATUTORY OR OTHER ARGUMENTS UPON WHICH IT

25 THINKS IT CAN DO THIS BEHAVIOR HAVE SHIFTED OVER TIME.

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

12

1

AND SO TODAY IT'S UNDER 702. FOR AWHILE THEY WERE

2 USING THE PEN REGISTER STATUTE FOR PIECES OF THIS. SO OUR

3 COMPLAINT HAS NEVER BEEN TIED TO THE GOVERNMENT'S DEFENSES.

4 IT'S TIED TO THE BEHAVIORS.

5

THE COURT: ALL RIGHT. MR. COPPOLINO, ARE YOU GOING

6 TO RESPOND INITIALLY ON BEHALF OF THE GOVERNMENT?

7

MR. COPPOLINO (BY PHONE): I AM, YOUR HONOR. THANK

8 YOU, YOUR HONOR. THIS IS ANTHONY COPPOLINO.

9

AND FIRST, YOUR HONOR, I APPRECIATE YOU DOING THIS BY

10 PHONE ON SHORT NOTICE. AND I WANTED TO THANK YOU FOR THAT,

11 YOUR HONOR.

12

THE COURT: UNLESS THERE WAS ANY WAY THAT YOU GUYS

13 COULD BE BEAMED OVER HERE I ASSUME THAT THAT WOULD BE

14 NECESSARY. AND YOU DON'T NEED TO THANK THE COURT, BUT GO

15 AHEAD.

16

MR. COPPOLINO (BY PHONE): YOUR HONOR, THANK YOU.

17

SO I HARDLY KNOW WHERE TO BEGIN. BUT I WILL START

18 WITH THIS. FIRST OF ALL, THE CONTENTION THAT 702 DID NOT EXIST

19 WHEN THE COMPLAINT WAS FILED IS A FALSEHOOD. 702 WAS ENACTED

20 IN 2008, IN JULY OF 2008, AS PART OF THE FISA ACT AMENDMENTS OF

21 2008.

22

NOT ONLY DID IT EXIST BEFORE THIS COMPLAINT WAS

23 FILED, THE JEWEL PLAINTIFFS KNEW ABOUT IT, BECAUSE IT'S

24 PRECISELY WHY THEY FILED SUIT. THAT LEGISLATION CREATED

25 IMMUNITY FOR THE TELECOMMUNICATION COMPANIES. AND THE OTHER

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

13

1 LAWSUIT THAT EFF BROUGHT ON BEHALF OF THESE SAME PLAINTIFFS

2 CALLED "HEPTING" GOT DISMISSED BECAUSE OF THAT STATUTE BASED ON

3 THE IMMUNITY PROVISIONS, AND JUDGE WALKER DISMISSED THE CASE.

4

THAT STATUTE ALSO HAD A TITLE WHICH CREATED WHAT WE

5 CALL THE "FISA ACT AMENDMENTS OF 2008," WHICH ESTABLISHED

6 SECTION 702 OF THE FISA. SO IT'S NOT TRUE THAT IT DIDN'T EXIST

7 BEFORE THE LAWSUIT WAS FILED.

8

AND IN AMNESTY INTERNATIONAL THE PLAINTIFFS IN THAT

9 SUIT, THE ACLU OVER IN NEW YORK, KNEW QUITE WELL IT EXISTED.

10 THEY FILED A COMPLAINT, I THINK, THE DAY IT WAS ENACTED INTO

11 LAW. AND THAT MADE A LOT OF HEADLINES, AND IT WAS LITIGATED.

12 AND IT WAS ALL, ALL PUBLIC. NO SECRET PROGRAM. AND IT WAS OUT

13 THERE.

14

SO THAT STATEMENT IS JUST NOT TRUE.

15

THE SECOND THING THAT'S NOT TRUE IS HER PROGRAM

16 DESCRIPTION. 702 IS A PUBLIC STATUTORY PROGRAM. IF YOU LOOK

17 AT THE AMNESTY INTERNATIONAL DECISION, IT DETAILS HOW THAT

18 PROGRAM OPERATES. AND SO THAT IS THE SOURCE OF WHAT SHOULD BE

19 THE COURT'S UNDERSTANDING FOR THIS PROGRAM AND HOW IT OPERATES.

20

HER DESCRIPTION OF STEP ONE AND STEP TWO, I DON'T

21 THINK I'VE EVER HEARD THIS BEFORE. IT'S NEVER BEEN BRIEFED AS

22 FAR AS I CAN TELL. AND ONE OF THE PROBLEMS THAT WE'RE HAVING

23 HERE IS WE'RE HERE BEFORE THE COURT ON AN EMERGENCY TRO, AND

24 WE'RE TALKING FOR THE FIRST TIME ABOUT SECTION 702.

25

IT'S NOT IN THE COMPLAINT. IT'S NEVER BEEN BRIEFED.

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

14

1 THIS COURT HAS NEVER BEEN GIVEN AN OPPORTUNITY TO UNDERSTAND

2 THE INS AND OUTS OF HOW IT WORKS AND WHETHER THERE'S A STEP ONE

3 OR TWO OR NOT.

4

IN FACT, THE SUPREME COURT DELINEATED PRECISELY HOW

5 THE PROGRAM OPERATES. AND IT IS A TARGETED PROGRAM. IT IS A

6 PROGRAM THAT IS TARGETED AT SPECIFIC SELECTORS, THAT IS PHONE

7 NUMBERS OR EMAIL ACCOUNTS. THAT'S THE FIRST THING THAT

8 DISTINGUISHES IT FROM THE ALLEGATIONS IN THIS CASE.

9

THE SECOND THING THAT DISTINGUISHES IT. I THINK MOST

10 IMPORTANTLY, IS THAT IT IS DIRECTED AT NON U.S. PERSONS

11 LOCATED -- REASONABLY BELIEVED TO BE LOCATED OUTSIDE THE UNITED

12 STATES.

13

THE PLAINTIFFS COULDN'T POSSIBLY BE TARGETED UNDER

14 THIS PROGRAM. AT LEAST NOT LEGALLY. AND THEY DON'T ALLEGE

15 THAT THEY WERE TARGETED UNDER THIS PROGRAM. AND SO THEY

16 COULDN'T BE THE TARGET OF A SURVEILLANCE UNDER THIS PROGRAM AS

17 A MATTER OF LAW.

18

SO THE ONLY POSSIBLE ARGUMENT THEY COULD POSSIBLY

19 MAKE HERE IS THAT THEIR COMMUNICATIONS WERE SOMEHOW

20 INCIDENTALLY, UNLAWFULLY COLLECTED. THAT IS PURE RANK

21 SPECULATION.

22

IN FACT, ONE OF THE REASONS I THINK WE SHOULD

23 CONTINUE TO BRIEF THIS ON THE SCHEDULE THAT YOU HAVE ALREADY

24 SET FORTH IS I QUESTION WHETHER THEY HAVE EVEN ARTICULATED

25 STANDING FOR BRINGING A SECTION 702 CLAIM. AMNESTY

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

15

1 INTERNATIONAL DISPOSES OF THAT. AMNESTY INTERNATIONAL SAYS YOU

2 CANNOT COME TO COURT AND SPECULATE THAT YOU MIGHT BE SUBJECT TO

3 THIS SURVEILLANCE AUTHORITY AND HAVE STANDING. AND THEY

4 DISPOSED OF THAT ARGUMENT, AND THAT IS EXACTLY WHAT THE

5 PLAINTIFFS ARE DOING BASED ON THEIR OWN SPECULATION AS TO HOW

6 IT WORKS, STEP ONE AND STEP TWO.

7

SO FOR PURPOSES OF TODAY'S HEARING, TO KIND OF BRING

8 THIS BACK, WE DISAGREE WITH THEIR ASSESSMENT OF HOW THIS THING

9 WORKS. BUT YOU SHOULDN'T BE ENTERING A TRO CAUSING THE

10 PRESERVATION OF DATA THAT IS COLLECTED UNDER THIS HUGELY

11 SIGNIFICANT PROGRAM WITHOUT FULLY UNDERSTANDING HOW THE PROGRAM

12 OPERATES AND WITHOUT ITS RELEVANCE TO THE SUIT.

13

NOW, THE FACT THAT THEY DIDN'T PLEAD IT TO US SHOULD

14 BE DISPOSITIVE. IT WAS A KNOWN PROGRAM. THE PLAINTIFF IN

15 AMNESTY PLED IT. THEY COULD HAVE PLED IT. AND THEY COULD HAVE

16 MADE WHATEVER ARGUMENTS THEY WANT.

17

IN FACT, I'LL POINT OUT THERE WAS A PREDECESSOR

18 STATUTE CALLED THE "PROTECT AMERICA ACT," WHICH WAS

19 IMPLEMENTED IN THE TRANSITION BETWEEN THE SO-CALLED "TERRORIST

20 SURVEILLANCE PROGRAM" AND THE FISA ACT AMENDMENTS.

21

AND ANOTHER LAWYER IN THIS MULTIPLE DISTRICT

22 LITIGATION IN THE CENTER FOR CONSTITUTIONAL RIGHTS CASE, CAME

23 INTO COURT AND ASKED TO AMEND HIS COMPLAINT TO CHALLENGE THAT

24 STATUTE. MS. COHN WAS IN THE COURTROOM THAT DAY. I HAVE THE

25 TRANSCRIPT. THEY DIDN'T CHALLENGE THE PAA, EITHER. AND THAT

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

16

1 WAS A PUBLIC STATUTE AS WAS FAA.

2

SO IT IS -- THIS PROGRAM IS, IN OUR VIEW, NOT

3 RELEVANT TO THIS LAWSUIT. BUT ON THE TOPIC THAT IS AT ISSUE

4 HERE, EVEN IF YOU THINK IT WAS, FOR THE REASONS WE SET FORTH

5 THE COURT SHOULD NOT ISSUE THE KIND OF PRESERVATION ORDER THAT

6 THEY SOUGHT. AND, INDEED, WE IDENTIFIED THE PROBLEMS WITH THE

7 ORDER THAT YOU ISSUED YESTERDAY. AND WE CAN TALK ABOUT THAT

8 FURTHER.

9

I DO WANT TO TAKE ISSUE BEFORE I GIVE UP THE

10 MICROPHONE HERE, YOUR HONOR, WITH SOME OF YOUR PREAMBLE, AND

11 JUST POINT OUT THAT WE HAVE NOT CONCEDED THAT SECTION 702 IS

12 RELEVANT TO THE CLAIMS. WHAT WE HAVE SAID IS THAT IN ORDER TO

13 LITIGATE THE CLAIMS AND IN ORDER, INDEED, TO DISPUTE THE CLAIMS

14 THE GOVERNMENT -- THE SOURCES AND METHODS UTILIZED UNDER 702

15 WOULD BE AT RISK OF DISCLOSURE AND, HENCE, THEY WERE SUBJECT TO

16 THE STATES SECRETS PRIVILEGE, DIRECTOR CLAPPER'S STATES SECRETS

17 PRIVILEGE.

18

IT WAS NOT A CONCESSION THAT THEY CHALLENGED 702. IT

19 WAS NOT A CONCESSION THAT 702 IS RELEVANT TO THE CLAIM. IT

20 SIMPLY POINTS OUT THAT IN ORDER TO LITIGATE THE CASE AND

21 DISPROVE THE CLAIMS AND, INDEED, TO SHOW THAT THEIR CLAIM THAT

22 THESE ACTIVITIES WERE OCCURRING WITHOUT STATUTORY AND JUDICIAL

23 AUTHORITY WE WOULD HAVE TO GET INTO THE SOURCES AND METHODS

24 THAT WERE, IN FACT, BEING UTILIZED UNDER STATUTORY LAW.

25

THE COURT: ALL RIGHT, MS. COHN.

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

17

1

MS. COHN: YES, YOUR HONOR. I DID GET A CHANCE TO

2 LOOK THROUGH THE COMPLAINT, YOUR HONOR. FROM PARAGRAPHS 50 TO

3 PARAGRAPHS 80 OF THE JEWEL COMPLAINT WE DESCRIBE THE NSA'S

4 DRAGNET INTERCEPTION OF COMMUNICATIONS TRANSMITTED THROUGH AT&T

5 FACILITIES. THAT'S THE FACTUAL PREDICATE FOR ONE HALF OF THE

6 JEWEL CASE. THE OTHER PART BEING THE TELEPHONE RECORDS.

7

AND SO THE JEWEL COMPLAINT DIDN'T -- AGAIN, THE

8 GOVERNMENT'S LEGAL RATIONALES HAVE SHIFTED. NOW HE'S TOLD YOU

9 HE'S NOT EVEN CONCEDING THAT 702 IS WHAT IS AT ISSUE IN THIS

10 CASE.

11

THE COURT: WHAT ABOUT THE ARGUMENT THE GOVERNMENT

12 JUST MADE THAT ALL OF THIS, THIS PROGRAM, BY ITS EXISTING NAME

13 AND PREDECESSOR NAMES WAS WELL-KNOWN TO THE PLAINTIFFS IN THIS

14 CASE?

15

MS. COHN: NO, YOUR HONOR. I THINK THAT'S JUST

16 FACTUALLY INCORRECT. THE GOVERNMENT HAS REVEALED ASPECTS OF

17 ITS SURVEILLANCE IN A VERY LIMITED AND CABINED WAY OVER TIME.

18

THEY STARTED BY, YOU KNOW, PRESIDENT BUSH SAID:

19

"IF YOU ARE TALKING TO MEMBERS OF AL QAEDA, WE

20

WANT TO BE LISTENING."

21

AND SO THE PRESUMPTION THERE AND DEFENSE THERE WAS

22 THAT THIS WAS JUST ABOUT TARGETED SURVEILLANCE TO SPECIFIC

23 TERRORISTS TARGETS.

24

WE THEN LEARNED IT WAS A MUCH BIGGER PROGRAM AND THAT

25 IT ACTUALLY COLLECTED THE INFORMATION OF MILLIONS AND MILLIONS

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

18

1 OF PEOPLE ON THE WAY TO THAT LITTLE BIT THAT THEY -- THIS

2 PROCESS OF REVELATION HAS GONE ON OVER TIME.

3

AT THE TIME THAT THE FISA AMENDMENTS ACTS WAS PASSED

4 THE GOVERNMENT CLAIMED THAT 702 ONLY REPRESENTED A VERY

5 TARGETED PROGRAM AND THAT IT WOULDN'T INVOLVE THE COLLECTION OF

6 MILLIONS OF INNOCENT AMERICANS' COMMUNICATIONS CONTENT.

7

THEY BASICALLY SAID THAT'S NOT WHAT IT WAS. THAT IT

8 WAS A TARGETED PROGRAM, "TARGETED" MEANING IF YOU ARE TALKING

9 TO SOMEBODY WHO IS ON THEIR SELECTOR LIST, ONE WAY OR ANOTHER,

10 THAT'S WHAT THEY ARE COLLECTING.

11

AND WE HAVE ALWAYS MAINTAINED THAT THAT'S A

12 INCOMPLETE DESCRIPTION OF WHAT THE GOVERNMENT'S DOING, AND IT

13 ALLIES SOME VERY IMPORTANT CONSTITUTIONAL QUESTIONS. SO WE HAVE

14 ALWAYS GROUNDED OUR LAWSUIT NOT ON THE GOVERNMENT'S LEGAL

15 DEFENSES. AND IS THIS UNDER 702? WAS IT UNDER 215? IS IT

16 UNDER THE PEN REGISTER STATUTE? IS IT UNDER THE GOVERNMENT'S

17 EXECUTIVE AUTHORITY?

18

THOSE ARE ALL THE GOVERNMENT'S DEFENSES FOR ITS

19 ACTIVITIES.

20

OUR COMPLAINT TALKS ABOUT A PARTICULAR BEHAVIOR BY

21 THE GOVERNMENT. THE ACCESS UNDER PARAGRAPHS 50 THROUGH 80 ARE

22 THE INITIAL DESCRIPTION OF A MASSIVE COLLECTION OF

23 COMMUNICATIONS, AND THE VERY SPECIFIC TECHNOLOGIES INVOLVED,

24 WHICH ARE DESCRIBED IN THE DECLARATION OF MARK KLEIN, THE

25 EXPERT DECLARATION OF J. SCOTT MARCUS.

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

19

1

AND OUR CASE SAYS THIS THING THAT THEY ARE DOING IS

2 UNCONSTITUTIONAL, AND IT ISN'T JUSTIFIED BY ANY STATUTE. AND

3 THAT'S WHAT WE'VE BEEN ALLEGING ALL ALONG. AND FOR THE

4 GOVERNMENT TO TRY TO LIMIT THE SCOPE OF OUR CASE BASED UPON THE

5 FACT THAT WE WEREN'T QUITE AWARE OF WHAT PARTICULAR STATUTORY

6 BASES THEY WERE CLAIMING AT ANY PARTICULAR POINT IN TIME FOR

7 THIS BEHAVIOR IS, I THINK, FRANKLY, QUITE UNFAIR TO US GIVEN

8 THE SECRECY HERE.

9

THE COURT: A COUPLE OF RELATED QUESTIONS, WHICH

10 IS -- AND THEN I'LL GIVE MR. COPPOLINO A CHANCE TO RESPOND. I

11 REVIEWED THE TRANSCRIPT OF OUR PREVIOUS PROCEEDINGS AND ALSO

12 THE ORDER THAT THE PLAINTIFFS PRESENTED, WHICH WOULD HAVE BEEN

13 MUCH BROADER -- IT WAS MUCH BROADER THAN WHAT THE GOVERNMENT --

14 WHAT THE COURT ULTIMATELY ENTERED.

15

AND THERE WAS A COLLOQUY WITH THE COURT IN WHICH IT

16 APPEARED TO THE COURT THAT THE PLAINTIFFS WERE FORESWEARING OR

17 ESCHEWING AN ARGUMENT UNDER -- IF NOT 702, SPECIFICALLY, THEN

18 BEHAVIOR THAT IS DESCRIBED.

19

AM I CORRECT IN THAT ASSUMPTION?

20

MS. COHN: YES, YOUR HONOR. I'M AFRAID YOU ARE. IF

21 I GAVE YOU THAT IMPRESSION, THEN I WAS -- THAT WAS INCORRECT.

22

THE COURT: WELL, THE FIRST ONE IS IN THERE. THE

23 SECOND ONE MAY BE INTERPRETATIVE. THE FIRST ONE IS U.S. OR

24 BROADER ORDER THAT MIGHT HAVE INCLUDED WHAT YOU'RE TALKING

25 ABOUT NOW. AND I FELT THAT THAT WAS TOO BROAD, AND I DID NOT

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

20

1 ISSUE THE ORDER TO THAT EFFECT.

2

SO WHAT DO YOU SAY ABOUT THAT?

3

MS. COHN: WELL, TO THE EXTENT THAT YOU SCALED BACK

4 OUR PROPOSED ORDER, YOUR HONOR, I DON'T THINK THAT YOU SCALED

5 IT BACK IN ORDER TO EXCLUDE ONE HALF OF THE FACTUAL ALLEGATIONS

6 IN OUR COMPLAINT FROM BEING REQUIRED TO BE PRESERVED.

7

I MEAN, IT'S TRUE THAT WE CAME TO YOUR HONOR WITH AN

8 IMMEDIATE PROBLEM. AND THE IMMEDIATE PROBLEM HAD TO DO WITH

9 THE FACT THAT THE GOVERNMENT HAD BEEN TOLD BY THE FISC THAT

10 THEY HAD TO DESTROY TELEPHONE RECORDS.

11

AND IT WASN'T UNTIL THE MONDAY BEFORE WE TALKED TO

12 YOU ON THE WEDNESDAY THAT I REALIZED THAT BASED UPON THE

13 GOVERNMENT'S RATIONALE IT DIDN'T SEEM THAT THEY WERE PRESERVING

14 EVIDENCE UNDER THE SECTION 702 PROGRAMS, EITHER, BECAUSE IT WAS

15 ON THAT MONDAY THAT THEY FINALLY PRESENTED THEIR SECRET

16 DECLARATIONS FROM 2007 WHERE THEY TOOK THE POSITION,

17 UNBEKNOWNST TO US, THAT THE FISC ORDERS, ANYTHING THAT HAPPENED

18 AFTER THE FISC ORDERS CAME INTO PLACE WASN'T INCLUDED AT ALL IN

19 THEIR PRESERVATION OBLIGATION.

20

THE COURT: ALL RIGHT.

21

MS. COHN: AND SO I DIDN'T READ, AND I DON'T READ,

22 WHAT HAPPENED IN TERMS OF YOU NOT ACCEPTING MY PROPOSED ORDER

23 AS SAYING THE GOVERNMENT CAN CONTINUE DESTROY EVIDENCE UNDER

24 PART OF -- NOW THAT WE KNOW THAT THEY DON'T THINK THEY HAVE A

25 PRESERVATION DUTY UNDER SECTION 702, IT'S OKAY FOR THEM TO

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

21

1 CONTINUE TO DESTROY EVIDENCE WHILE WE SORT OUT WHAT HAPPENED

2 FOR THE LAST SEVEN YEARS.

3

THE COURT: ALL RIGHT. MR. COPPOLINO.

4

MR. COPPOLINO (BY PHONE): THANK YOU, YOUR HONOR. A

5 COUPLE OF POINTS HERE. FIRST OF ALL, THE TRANSITION FROM THE

6 TERRORIST SURVEILLANCE PROGRAM TO THE PROTECT AMERICA ACT IN

7 SECTION 702 IS DETAILED IN OUR PAPERS. AND THE NOTION THAT THE

8 LAWSUIT HAS TO BE -- AND PRESERVATION OBLIGATIONS HAVE TO BE

9 DRIVEN BY GENERAL ALLEGATIONS OF CONDUCT IS NOT CORRECT.

10

I THINK THE COURT HAS TO FIND SPECIFICALLY, AND

11 SHOULD FIND, PARTICULARLY IN A CASE OF AN INJUNCTION, THAT THE

12 REQUESTED PRESERVATION STEPS ARE RELEVANT TO PARTICULAR CLAIMS.

13

AND ALL THAT WE HAVE POINTED OUT IN THESE LAST TWO

14 DAYS TO YOU IS THAT THE STEPS THAT THEY ARE ASKING US TO TAKE

15 WITH RESPECT TO 702, ARE, A: UNMOORED FROM ANY CLAIM REGARDING

16 702, WHICH IS EXTRAORDINARILY SIGNIFICANT. IT WAS AN

17 ESTABLISHED PROGRAM. AND, B: WITH RESPECT TO THE DATA

18 DELETION POLICIES OF THE NSA THAT ARE GOVERNED BY FISC

19 REQUIREMENTS AND MINIMIZATION PROCEDURES, THAT THAT WOULD CAUSE

20 EXTRAORDINARY HARM TO NATIONAL SECURITY IF WE WERE TO GO

21 FORWARD WITH THAT.

22

NOW, WITH RESPECT TO THE TRO, WE SET FORTH IN THE

23 PAPERS THAT WE FILED A SHORT TIME AGO THE EVOLUTION OF THE TRO

24 IN FIRST UNITARIAN AND HOW IT COVERED SECTION 215. AND YOU

25 CORRECTLY NOTE THAT YOU SPECIFICALLY REJECTED A PROPOSED ORDER

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

22

1 THEY SUBMITTED THAT CALLED FOR THE PRESERVATION OF ALL

2 COMMUNICATION CONTENT. AND THAT WOULD HAVE BEEN THEIR HOOK TO

3 TRY TO GET TO 702. THAT'S SET FORTH IN OUR PAPERS. I'M NOT

4 GOING TO REPEAT IT.

5

BUT EXCEPT TO JUST SAY THIS: THE TRO, THE EXISTING

6 TRO, DOES NOT COVER 702. SO THIS ISN'T A REQUEST TO MODIFY

7 ANYTHING. THIS IS A RENEWED TRO REQUEST BASED ON A CLAIM THAT

8 HASN'T BEEN BROUGHT.

9

WHAT I WOULD URGE THE COURT TO DO IS, FIRST OF ALL,

10 TO STAY OR SET ASIDE THE ORDER YOU ISSUED YESTERDAY. TAKE

11 FURTHER BRIEFING ON THIS ISSUE UNDER THE CURRENT BRIEFING

12 SCHEDULE WHICH WAS IN PLACE. AND, IN PARTICULAR, I THINK WE

13 NEED TO HAVE BRIEFING ON WHETHER THEY HAVE STATED A CLAIM UNDER

14 SECTION 702, AND WHETHER THEY HAVE ESTABLISHED THEIR STANDING

15 ON THE PLEADINGS UNDER 702.

16

AND THE REASON I SAY THAT IS I LITIGATED AMNESTY

17 INTERNATIONAL IN DISTRICT COURT, ME AND ONE OF MY COLLEAGUES IN

18 NEW YORK. AND SO I'M VERY FAMILIAR WITH THAT CASE. AND I

19 THINK IT'S VERY IMPORTANT THAT THE COURT HAVE A FULL

20 UNDERSTANDING OF 702, HAVE FULL BRIEFING ON THAT QUESTION,

21 INCLUDING THE QUESTION OF WHETHER THEY HAVE STATED A CLAIM AND

22 HAVE STANDING, BEFORE YOU ISSUE A PRESERVATION ORDER UNDER THAT

23 PROGRAM.

24

PARTICULARLY WHAT THEY HAVE ASKED FOR IN THESE PAST

25 FEW DAYS, WHICH IS ALL DOCUMENTS, ALL MATERIAL RELATED TO 702,

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

23

1 WHICH CLEARLY WOULD INCLUDE THE DATA THAT IS COLLECTED UNDER

2 THAT PROGRAM, WHICH IS SUBJECT TO FISC MINIMIZATION

3 REQUIREMENTS.

4

AND AS THE DEPUTY DIRECTOR OF NSA EXPLAINED

5 ATTEMPTING TO CARRY THAT OUT IN THE IMMEDIATE FUTURE AND EVEN

6 LONG-TERM WILL CAUSE VERY SIGNIFICANT OPERATIONAL PROBLEMS.

7

THE COURT: ALL RIGHT. I WANT TO MOVE ON. I WILL

8 GIVE YOU AN OPPORTUNITY TO ADDITIONAL POINTS AT THE END, BUT I

9 WANT TO MAKE SURE I GET THROUGH MY QUESTIONS IN A COMPLETE WAY.

10 AND SO I'M NOT CUTTING EITHER SIDE OFF WITH RESPECT TO ANY

11 ISSUE, BUT I DO WANT TO GET THROUGH MY INITIAL QUESTIONS THAT I

12 PREPARED BASED UPON THE FILINGS.

13

SO QUESTION NUMBER TWO -- AND, AGAIN, I'LL START WITH

14 A PREAMBLE, AND THEN I'M GOING TO ADDRESS THE QUESTION IN THE

15 FIRST INSTANCE TO PLAINTIFFS.

16

"THE CASES REVIEWING THE MERITS OF THE

17

CONSTITUTIONAL CHALLENGES TO THE DRAGNET SURVEILLANCE

18

PROGRAM HAVE ALL FOUND STANDING AS A MATTER OF LAW."

19

AND FOR THAT I'D LIKE YOU TO SEE KLAYMAN,

20 K-L-A-Y-M-A-N, V. CLAPPER, 957 F. SUPP. 2D 1, 26 THROUGH 28,

21 DECIDED BY THE DISTRICT OF COLUMBIA COURT, FEDERAL COURT IN

22 2013.

23

SMITH V. OBAMA, NUMBER 13-O257. THE SLIP OPINION AT

24 THREE NOTE TWO. DISTRICT OF IDAHO, DECIDED JUNE 3RD, 2014.

25

ACLU VERSUS CLAPPER, 959 F. SUPP. 2D 724 AT 746,

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

24

1 DECIDED IN THE SOUTHERN DISTRICT OF NEW YORK IN 2013, WHICH

2 STATES, QUOTE:

3

"AGGREGATED TELEPHONY META DATA IS RELEVANT

4

BECAUSE IT ALLOWS THE QUERYING TECHNIQUE TO BE

5

COMPREHENSIVE. ARMED WITH ALL THE META DATA NSA CAN

6

DRAW CONNECTIONS IT MIGHT OTHERWISE NEVER BE ABLE TO

7

FIND," UNQUOTE.

8

SO THE QUESTION IS THIS:

9

"IF THIS COURT SIMILARLY FINDS STANDING AS A

10

MATTER OF LAW TO PURSUE THE MERITS OF THEIR CLAIMS,

11

WOULD PLAINTIFFS STILL SEEK THE CONTINUED

12

PRESERVATION OF THE EVIDENCE SOUGHT BY THE COURT'S

13

EXISTING PRESERVATION AND RESTRAINING ORDERS?"

14

MS. COHN: SO, YOUR HONOR, THOSE ORDERS HAD TO DO

15 JUST WITH THE TELEPHONY META DATA. THEY DIDN'T HAVE TO DO WITH

16 THE CONTENT COLLECTION.

17

BUT I THINK THE ANSWER TO YOUR QUESTION IS: YES, IF

18 THE COURT WERE TO FIND AS A MATTER OF LAW THAT THE MASS

19 COLLECTION OF CONTENTS, JUST LIKE THE MASS COLLECTION OF META

20 DATA, BY DEFINITION HAD TO INCLUDE OUR CLIENTS, BECAUSE THAT'S

21 WHAT "MASS" MEANS, THEN, YES, YOUR HONOR, I THINK THAT WOULD

22 GET US OUT OF THIS PROBLEM. THAT IS, ESSENTIALLY THE ADVERSE

23 INFERENCE THAT I ASKED YOU TO PROVIDE.

24

MY HESITATION IS THAT I THINK THAT STANDING IS THE

25 ONLY ISSUE TO WHICH THAT FACT WILL HAVE TO GO. I'M A LITTLE

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

25

1 HESITANT GIVEN HOW LITIGATION GOES TO SAY THAT STANDING IS THE

2 ONLY ISSUE THAT THOSE FACTS MIGHT GO TO. BUT IT'S THE ONE THAT

3 IS OBVIOUSLY MOST FOREMOST IN OUR MINDS AT THE MOMENT.

4

THE COURT: WELL, THE REASON I ASK THE QUESTION IS

5 OBVIOUSLY, THAT TO THE EXTENT THAT THE ANSWER WERE IN THE

6 AFFIRMATIVE IN THE SENSE THAT THE NEED FOR PRESERVATION ORDER

7 WOULD GO AWAY IF THE COURT WERE TO FIND -- AT LEAST FOR

8 PURPOSES OF THE NEXT STAGES OF LITIGATION -- THE COURT WERE TO

9 FIND THE EXISTENCE OF STANDING, THAT WOULD REMOVE A BIG -- NOT

10 A "BIG," BUT AT LEAST A PIECE OF THIS LITIGATION THAT'S

11 CURRENTLY BEFORE THE COURT. SO THAT'S NUMBER ONE.

12

AND RELATED TO THAT IS IF THE REMEDY THAT THE

13 PLAINTIFFS ARE SEEKING IS AN ADVERSE INFERENCE, THE COURT WOULD

14 OBVIOUSLY ASK THE QUESTION:

15

"WELL, IF I GIVE YOU THAT, IF I GIVE THE

16

PLAINTIFFS THAT ADVERSE INFERENCE, WHERE DOES THAT

17

LEAVE US?"

18

AND IF THE ANSWER IS: THEN, YOU NO LONGER NEED TO BE

19 CONCERNED WITH THE DESTRUCTION OF DOCUMENTS, THEN A FORTIORI,

20 IF I CONCLUSIVELY FOUND THAT THERE WAS STANDING BASED UPON THE

21 FACTORS THAT WERE RELIED ON BY THESE OTHER DISTRICT COURTS, I

22 WOULD ASSUME THE ANSWER WOULD BE THE SAME.

23

SO WHY LITIGATE A POINT THAT IS REALLY NOT IN -- IS

24 NOT CONTESTED HERE IS REALLY THE POINT.

25

MS. COHN: I AGREE, YOUR HONOR. I MEAN, THIS IS WHY

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

26

1 WE CAME UP WITH THIS IDEA OF AN ADVERSE INFERENCE. AGAIN, I

2 WOULD LIKE TO TIE IT TO THE FACTS RATHER THAN THE STANDING

3 LEGAL QUESTION JUST BECAUSE I'M NERVOUS ABOUT -- LIFE IS LONG.

4 I'M NERVOUS THAT THEY MAY TRY TO ARGUE THE FACT THAT WE CAN'T

5 DEMONSTRATE THAT OUR CLIENTS' COMMUNICATIONS WERE INCLUDED IN

6 THIS GOES TO SOME OTHER FACT AFTER WE'RE DONE WITH STANDING,

7 BUT --

8

THE COURT: THAT'S GOING TO BE MY NEXT QUESTION.

9

MS. COHN: -- I THINK THAT IF YOU WERE TO PROVIDE THE

10 ADVERSE INFERENCE THAT WE'RE TALKING ABOUT, THEN WE DON'T NEED

11 THEM TO KEEP THE INFORMATION.

12

WE'VE SAID THIS FROM THE BEGINNING, YOUR HONOR. IT'S

13 A SOMEWHAT AWKWARD POSITION FOR US TO BE STANDING HERE TRYING

14 TO ARGUE THE GOVERNMENT HAS TO KEEP INFORMATION WE DIDN'T THINK

15 THEY SHOULD COLLECT IN THE FIRST PLACE.

16

SO IF WE CAN MAKE THIS PROCESS MOVE FORWARD IN A WAY

17 THAT REDUCES THE AMOUNT OF INFORMATION THAT THE GOVERNMENT HAS

18 TO KEEP WITHOUT HARMING MY CLIENTS' ABILITY TO MAKE THEIR CASE,

19 THEN THAT'S THE BEST WORLD. AND THAT'S THE WORLD WE WOULD LIKE

20 TO GET TO.

21

THE COURT: ALL RIGHT. LET ME -- MR. COPPOLINO, I'M

22 GOING TO GIVE YOU A FULL OPPORTUNITY TO RESPOND TO THE SAME

23 QUESTION. BUT I WOULD LIKE TO ADD A QUESTION TO YOU THAT MIGHT

24 ILLUMINATE THE INFORMATION THAT I'M SEEKING.

25

AND, OF COURSE, I'D LIKE RESPONSES TO BOTH. AND I'M

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

27

1 SURE YOU CAN KEEP TRACK OF ALL OF IT.

2

SO THE QUESTION I WANT TO ASK OF THE GOVERNMENT IN

3 ADDITION TO RESPONDING TO THE RESPONSE THAT MS. COHN JUST

4 PROVIDED IS AS FOLLOWS:

5

"DO THE GOVERNMENT DEFENDANTS MAINTAIN THAT

6

PLAINTIFFS MUST SHOW INDIVIDUALIZED STANDING THAT

7

THEIR SPECIFIC COMMUNICATIONS HAVE BEEN COLLECTED, OR

8

HAVE PLAINTIFFS DEMONSTRATED STANDING BY VIRTUE OF

9

THE GOVERNMENT'S POSITION THAT THE SURVEILLANCE

10

PROGRAM IS ONLY EFFECTIVE IF IT IS COMPREHENSIVE?"

11

MR. COPPOLINO.

12

MR. COPPOLINO (BY PHONE): YOUR HONOR, LET ME ANSWER

13 THE LAST QUESTION FIRST.

14

THE COURT: OKAY.

15

MR. COPPOLINO (BY PHONE): WE'VE NOT AGREED WITH THAT

16 PROPOSITION. AND THAT WAS THE PROPOSITION THAT WAS PRESENTED

17 BY JUDGE LEON IN KLAYMAN. THAT IS THAT THE MERE -- A MERE

18 PROGRAMMATIC DESCRIPTION AS A BROAD PROGRAM OR AS A BULK

19 PROGRAM IS NOT SUFFICIENT TO ESTABLISH THAT A PARTICULAR PERSON

20 HAS BEEN SUBJECT TO THAT PROGRAM, IN OUR VIEW.

21

LET ME MAKE A COUPLE OF OTHER POINTS ABOUT THAT. ONE

22 IS THAT IN THE CASES THAT YOU CITED, FIRST OF ALL, THEY WERE

23 ALL ABOUT THE SECTION 215 TELEPHONY META DATA COLLECTION.

24 WE'RE HERE TALKING ABOUT POSSIBLE PRESERVATION ON AN ENTIRELY

25 DIFFERENT PROGRAM, SECTION 702. BUT AS TO SECTION -- AND I

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

28

1 DON'T THINK EVEN IF YOU FELT -- AND I'M NOT CONCEDING THIS --

2 BUT EVEN IF YOU FELT THEY HAD STANDING WITH RESPECT TO

3 TELEPHONY META DATA, FOR SOME REASON, IT WOULD EXTEND TO

4 SECTION 702, AND IT SHOULD NOT.

5

THEY ARE TRYING TO MERGE THESE PROGRAMS AS TO ONE BIG

6 THING. AND IT'S NOT CORRECT, FACTUALLY. IT'S NEVER BEEN

7 BRIEFED. AND THAT IS WHAT IS NOT FAIR, PARTICULARLY WHERE IN

8 702 WE HAVE A CLEARLY ESTABLISHED STATUTORY FRAMEWORK OF HOW

9 THAT PROGRAM IS CONDUCTED. IT IS NOT 215. IT IS NOT BULK META

10 DATA COLLECTION.

11

IT'S A TARGETED COMMUNICATION SURVEILLANCE PROGRAM

12 AGAINST NON U.S. PERSONS LOCATED OUTSIDE THE UNITED STATES. SO

13 WHATEVER YOU MAY THINK ABOUT STAYING WITH RESPECT TO 215, IT

14 WOULD NOT COVER 702.

15

ANOTHER POINT I WOULD MAKE WITH RESPECT TO THE 215

16 CASES THAT YOU IDENTIFIED IS -- AND THIS IS NOTEWORTHY -- IN

17 THE KLAYMAN CASE MY RECOLLECTION IS THAT JUDGE LEON DID NOT

18 FIND STANDING FOR 702. IN FACT, HE FOUND THAT THEY HAD FAILED

19 TO ALLEGE SUFFICIENT FACTS TO ESTABLISH A CLAIM THAT THEY HAD

20 BEEN COLLECTING UNDER 702.

21

AND THAT'S PRECISELY THE PROBLEM IN THIS CASE. IT'S

22 EXACTLY THE SAME THING. AND SO I WOULD URGE YOU TO LOOK AT

23 FOOTNOTE SIX OF JUDGE LEON'S DECISION.

24

EVEN THOUGH WE DIDN'T DO TOO WELL OTHERWISE IN THAT

25 CASE, WE WON THAT ONE. AND THAT CASE IS ON APPEAL, BY THE WAY,

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

29

1

YOUR HONOR, AND THE STANDING QUESTION IS SQUARELY AT ISSUE.

2

AND THE THIRD POINT I WOULD MAKE -- AND, AGAIN, I

3 THINK THIS IS A BIT FAR AFIELD FROM THE 702 TOPIC WE WANTED TO

4 TALK ABOUT, BUT I WOULD MAKE THIS POINT. THE PLAINTIFFS IN

5 THIS CASE, THEIR ALLEGED -- THEIR TELECOMMUNICATIONS COMPANY IS

6 AT&T. AND THEIR ALLEGATIONS OF SURVEILLANCE ALL CONCERN AT&T.

7

NONE OF THESE OTHER CASES, TO MY RECOLLECTION,

8 INVOLVED AT&T PLAINTIFFS. NOW, THE GOVERNMENT HAS MAINTAINED A

9 LINE IN THIS CASE, AS WELL AS IN THOSE CASES, THAT THERE HAS

10 BEEN NO DISCLOSURE OR CONFIRMATION OF THE SPECIFIC CARRIERS

11 THAT HAVE BEEN INVOLVED IN THE SECTION 215 PROGRAM.

12

AND, IN FACT, WE'VE -- EXCEPT FOR ONE -- EXCEPT FOR A

13 VERIZON CARRIER FOR ONE FISC ORDER ISSUED IT FOR ONE DISCRETE

14 PERIOD OF TIME. AND THAT'S IT.

15

AND WE SET THIS FORTH, AGAIN, FOR THIS COURT IN OUR

16 MOST RECENT FILING IN WHICH THE DNI ASSERTED THE STATES SECRET

17 PRIVILEGE AND EXPLAINED TO THE COURT THAT NOTWITHSTANDING ALL

18 THESE TERRIBLE DISCLOSURES THAT OCCURRED OVER THE PAST YEAR --

19 IN FACT, THIS IS THE ONE YEAR ANNIVERSARY -- DISCLOSURES THAT

20 WE ARE CONVINCED THAT HAVE SERIOUSLY HARMED THE NATIONAL

21 SECURITY OF THIS COMPANY, WE HAVE CONTINUED TO PROTECT THE

22 IDENTITY OF PARTICULAR TELECOMMUNICATION CARRIERS THAT ARE

23 ALLEGED TO HAVE ASSISTED THE NSA, NOT ONLY IN THE SECTION 215

24 PROGRAM, WHICH WAS AT ISSUE IN THE CASES YOU CITED, BUT ALSO IN

25 THE PRESIDENT'S SURVEILLANCE PROGRAM, ACTIVITIES WHICH ARE AT

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

30

1 ISSUE IN JEWEL AND SHUBERT, AS WELL.

2

SO WE HAVE NOT CONCEDED THAT STANDING COULD BE FOUND

3 BASED ON THE MERE EXISTENCE OF THE BULK TELEPHONY META DATA

4 PROGRAM, IF THAT IS YOUR QUESTION.

5

SO I THINK THE PRESERVATION ISSUE HAS TO BE EXAMINED

6 SEPARATELY. WITH RESPECT TO THE PSP PROGRAM WE SET FORTH IN

7 DETAIL FOR YOU HOW WE HAVE PRESERVED THAT PROGRAM, THOSE

8 ACTIVITIES.

9

IN THE FIRST UNITARIAN CASE THAT THEY BROUGHT, WHICH

10 IS A 215 CASE, WE HAVE GONE THROUGH THE PRESERVATION PROCESS IN

11 THAT MATTER WITH RESPECT TO SECTION 215. AND SO THIS MATTER

12 THAT HAS BEEN RAISED THIS PAST WEEK CONCERNS SECTION 702,

13 DIFFERENT PROGRAM, DIFFERENT ISSUES AND MUCH, MUCH MORE

14 DIFFERENT COMPLICATIONS INVOLVED IN PRESERVATION.

15

THANK YOU, YOUR HONOR.

16

THE COURT: ALL RIGHT, MS. COHN.

17

MR. MAAZEL (BY PHONE): YOUR HONOR, MAY SHUBERT

18 PLAINTIFFS BE HEARD?

19

OF COURSE. OF COURSE. ANYTIME YOU WANT TO SPEAK,

20 JUST PLEASE PIPE UP. I WASN'T MEANING TO EXCLUDE YOU. GO

21 HEAD.

22

MR. MAAZEL (BY PHONE): THANK YOU, YOUR HONOR.

23

THE COURT: JUST RESTATE YOUR FULL NAME FOR ME.

24

MR. MAAZEL (BY PHONE): ILANN MAAZEL, FOR THE SHUBERT

25 PLAINTIFFS.

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

31

1

THE COURT: OKAY. GO AHEAD.

2

MR. MAAZEL (BY PHONE): AND JUST A COUPLE OF POINTS,

3 YOUR HONOR. THE FIRST IS THAT, YOU KNOW, THE SHUBERT CASE

4 WHICH WAS FILED IN 2006 WAS FILED BEFORE THERE WAS A 702. AND

5 THE SHUBERT CASE ENCOMPASSES NOT JUST AT&T BUT OTHER PHONE 6 COMPANIES, INCLUDING VERIZON. ONE OF THE PLAINTIFFS, MAYBE TWO 7 OF THE PLAINTIFFS, WERE VERIZON CUSTOMERS. VERIZON WAS ALSO

8 THE SUBJECT OF THAT NOW CONFIRMED FISC ORDER CONCERNING META

9 DATA.

10

SO MR. COPPOLINO'S ARGUMENTS THAT HE JUST MADE, YOU

11 KNOW, DO NOT APPLY -- CERTAINLY DO NOT APPLY TO THE SHUBERT

12 CASE.

13

FROM OUR PERSPECTIVE, THE 702 ISSUE IS A BIT OF A

14 FEAT OF MISDIRECTION BY THE GOVERNMENT BECAUSE WHAT YOUR HONOR

15 ORDERED IS THAT THE GOVERNMENT MAY NOT DESTROY ANY POTENTIAL

16 EVIDENCE RELEVANT TO THE CLAIMS.

17

AND IN SHUBERT AND IN JEWEL SOME OF THE COURT CLAIMS

18 INCLUDE IMPROPER COLLECTION OF CONTENT, MASS COLLECTION OF

19 CONTENT. AND THEY WERE NOT SUPPOSED TO DESTROY ANY EVIDENCE

20 RELEVANT TO THAT.

21

WHAT WE HAVE LEARNED IN THE LAST FEW DAYS IS THAT

22 APPARENTLY THEY ARE KEEPING META DATA, BUT THEY ARE DESTROYING

23 CONTENT. THEY ARE DESTROYING CONTENT WHICH IS AT THE HEART OF 24 MUCH OF THE JEWEL COMPLAINTS AND THE SHUBERT COMPLAINT. SO 25 WHETHER THEY CALL IT 702 OR SOME OTHER NUMBER, THE IRREFUTABLE

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

32

1 FACT IS THAT THERE ARE CLAIMS CHALLENGED, AMONG OTHER THINGS,

2 THE ILLEGAL COLLECTION OF CONTENT. AND THEY HAVE NOW ADMITTED

3 THAT THEY ARE DESTROYING THE CONTENT.

4

AND SO THEY HAVE VIOLATED THE TRO. WHETHER THEY

5 CLAIM THAT IT'S 702 PROGRAM OR SOME OTHER PROGRAM. AND THAT, I

6 THINK, IS THE HEART OF WHAT THIS HEARING IS ABOUT. THAT BOTH

7 INDIVIDUAL PRESERVATION ORDERS AND THE CONTINUING OBLIGATION TO

8 PRESERVE EVIDENCE, AND NOW UNDER YOUR HONOR'S TRO, THEY SHOULD

9 HAVE BEEN MAINTAINING ALL POTENTIAL EVIDENCE RELEVANT TO OUR

10 CLAIM, WHICH INCLUDE THE ILLEGAL COLLECTION OF CONTENT.

11

MR. COPPOLINO (BY PHONE): YOUR HONOR, MAY I RESPOND?

12

THE COURT: NO, I WANT TO GIVE HIM A CHANCE TO FINISH

13 AND THEN I'M GOING TO ASK MS. COHN TO RESPOND TO WHAT YOU SAID.

14 AND THEN, OF COURSE, MR. COPPOLINO, I'LL GIVE YOU A CHANCE TO

15 REPLY.

16

MR. COPPOLINO (BY PHONE): OKAY.

17

THE COURT: PROCEED, COUNSEL.

18

MR. MAAZEL (BY PHONE): AND SO NEITHER THE SHUBERT OR

19 JEWEL COMPLAINTS, AS FAR AS I CAN TELL, IS A FACIAL CHALLENGE

20 TO SECTION 702. IT'S A CHALLENGE TO THIS MASS COLLECTION.

21 AMONG OTHER THINGS, IT'S A CHALLENGE TO THIS MASS COLLECTION OF

22 CONTENT, WHICH AMONG OTHER THINGS, THE FOURTH AMENDMENT.

23

AND SO THAT'S THE EVIDENCE THEY SHOULD HAVE PRESERVED

24 UNDER THE TRO. AND THAT'S THE EVIDENCE THEY SHOULD HAVE

25 PRESERVED BEFORE THE TRO. AND I BELIEVE THAT'S WHY WE ARE

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

33

1 HERE.

2

THE COURT: ALL RIGHT. MS. COHN.

3

MS. COHN: WELL --

4

THE COURT: HOW DO YOU PRONOUNCE IT? IS IT COHEN

5 (PHONETIC) OR COHN?

6

MS. COHN: I PRONOUNCE IT LIKE THERE'S AN E EVEN

7 THOUGH THERE'S NOT. SO IT'S COHEN (PHONETIC).

8

THE COURT: ALL RIGHT.

9

MS. COHN: BUT I'LL ANSWER TO EITHER.

10

THE COURT: THANK YOU.

11

MS. COHN: I MEAN, I THINK THAT MR. MAAZEL HAS SAID

12 CORRECTLY THAT, YOU KNOW, THESE COMPLAINTS ARE BASED UPON THE

13 GOVERNMENT'S COLLECTION OF CONTENT. THE GOVERNMENT DOESN'T

14 WANT US TO SUE THEM OVER THE MASS COLLECTION OF CONTENT. BUT

15 THAT DOESN'T HAVE ANYTHING TO SAY TO THE SCOPE OF THEIR

16 PRESERVATION EFFORTS.

17

AND, YOU KNOW, IT'S DISTRESSING TO ME THAT WE'RE

18 HAVING THIS CONVERSATION IN 2014. WE SHOULD HAVE HAD IT IN

19 2007, BECAUSE WE'VE BEEN SUING ABOUT THE MASS COLLECTION OF

20 CONTENT, FRANKLY, SINCE 2006 WHEN WE BROUGHT THE FIRST CASE IN

21 2007, WHEN WE BROUGHT THE FIRST PRESERVATION ORDER.

22

AND THE GOVERNMENT HAS ENGAGED IN A SERIES OF

23 UNILATERAL REINTERPRETATIONS OF OUR CASE TO LIMIT ITS

24 PRESERVATION EFFORTS. AND I THINK THAT THAT'S -- THAT'S JUST

25 NOT RIGHT UNDER THE WAY THE PRESERVATION IS SUPPOSED TO WORK?

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

34

1 AND NOW HERE WE ARE AGAIN.

2

WE WERE HERE IN MARCH BECAUSE IT TURNED OUT THAT THEY

3 DECIDED THAT OUR COMPLAINTS WEREN'T ABOUT THE MASS COLLECTION

4 OF ANYTHING UNDER THE FISC ORDERS, BUT ONLY THE MASS COLLECTION

5 OF THINGS UNDER THE PRESIDENT'S AUTHORITY. THAT'S JUST NOT

6 TRUE.

7

AND NOW WE FIND THAT THEY'VE MADE ANOTHER CUT. AND

8 THE CUT IS THAT, WELL, MAYBE WE WERE SUING THEM OVER THE MASS

9 COLLECTION OF TELEPHONE RECORDS, BUT WE WEREN'T SUING THEM OVER

10 THE MASS COLLECTION OF CONTENT. AND SO, THEREFORE, THEY DON'T

11 HAVE TO PRESERVE THE CONTENT THEY ARE COLLECTING UP. IT'S JUST

12 ANOTHER ATTEMPT TO TRY TO RECONSTRUE WHAT WE ARE SUING OVER IN

13 ORDER TO LIMIT THEIR PRESERVATION DUTIES.

14

WE MAY HAVE A FIGHT WITH THE GOVERNMENT ABOUT THE

15 SCOPE OF OUR COMPLAINT. THAT'S WHAT I THOUGHT WE WERE

16 BRIEFING. THAT'S WHAT WE WERE BRIEFING. YOU KNOW, MY BRIEF

17 WAS FILED LAST FRIDAY. BUT WHAT I THOUGHT WAS GOING TO HAPPEN

18 IN THE MEANTIME IS THAT THE GOVERNMENT WOULD STOP DESTROYING

19 EVIDENCE.

20

AND SO WE'RE HERE BECAUSE IT TURNED OUT -- AND I KIND

21 OF DISCOVERED THIS BY HAPPENSTANCE -- THAT THE GOVERNMENT

22 DIDN'T READ YOUR TRO AS REQUIRING A PRESERVATION OF THE STATUS

23 QUO PENDING CONSIDERATION OF THE CONTENT COLLECTION ISSUES IN

24 JEWEL ONCE WE'D SETTLED THE RECORDS ISSUES.

25

AND I JUST THINK IT'S ONLY FAIR FOR THEM TO HAVE TO

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

35

1 STOP PRESERVING UNTIL WE CAN SORT OUT WHAT'S AT ISSUE IN THE

2 CASE. AND FOR THEM TO -- FOR THEM TO CONTINUE TO DESTROY

3 EVIDENCE IN THE MEANTIME STRIKES ME AS TREMENDOUSLY UNFAIR

4 BECAUSE, YOU KNOW, MAYBE THEY WILL WIN, BUT, YOU KNOW, MAYBE WE

5 WILL.

6

THE COURT: ALL RIGHT. MR. COPPOLINO.

7

MR. COPPOLINO (BY PHONE): THANK YOU, YOUR HONOR. I

8 THINK WE'RE GOING TO HAVE TO RESPECTFULLY DISAGREE WITH WHO IS

9 ENGAGED IN A MASSIVE MISDIRECTION IN THIS LAWSUIT, BECAUSE IN

10 OUR VIEW IT IS THE PLAINTIFFS THAT ARE TRYING TO REWRITE THEIR

11 COMPLAINT IN ORDER TO BRING IN FISA-AUTHORIZED ACTIVITY THAT

12 WERE NEVER PLED WHEN ALL OF THEIR COMPLAINTS -- AND WE'VE

13 DETAILED THIS IN THE BRIEFS THAT WE'VE FILED OVER THE PAST

14 MONTHS -- CLEARLY CHALLENGE ACTIVITY WITHOUT STATUTORY AND

15 JUDICIAL AUTHORIZATION.

16

I'M QUITE CONFIDENT THAT THAT IS THE CLEAR GRAVAMEN

17 OF THE COMPLAINT. THE SHUBERT COMPLAINT, IN PARTICULAR, IS

18 UNAMBIGUOUSLY A CHALLENGE TO THE PRESIDENT'S SURVEILLANCE

19 PROGRAM. AND WHILE SHUBERT MAY HAVE FILED BEFORE 702, THEY

20 AMENDED TWICE, AND THEY NEVER CHALLENGED 702, NUMBER ONE.

21

NUMBER TWO, AS FAR AS THIS MASS COLLECTION OF

22 CONTENT, THEY ARE SETTING THAT FORTH AS IF IT'S SOME

23 ESTABLISHED FACT. AND THEY ARE PINNING IT ON 702. I THINK

24 THAT THE POINT THAT WE HAVE BEEN MAKING -- AND YOU CAN SEE IT

25 NOW IN OUR DECLASSIFIED DECLARATIONS -- IT THAT THAT'S BEEN A

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

36

1 FALSEHOOD FROM THE BEGINNING.

2

THE COURT: JUST ONE MOMENT. I REALLY DON'T WANT YOU

3 TO -- YOU CAN ARGUE THE ARGUMENTS. I DON'T WANT YOU TO

4 CHARACTERIZE THEIR ARGUMENTS, AND I CERTAINLY DON'T WANT YOU TO

5 ACCUSE SOMEBODY OF FALSEHOOD. WE HAVE EXCELLENT COUNSEL IN

6 THIS CASE, AND I JUST REALLY DON'T WANT THAT. SO PLEASE

7 REFRAIN FROM MAKING THOSE KINDS OF CHARGES.

8

MR. COPPOLINO (BY PHONE): LET ME JUST REPHRASE IT.

9

THE COURT: THANK YOU.

10

MR. COPPOLINO (BY PHONE): THAT EVERY DNI THAT HAS

11 PROVIDED A STATES SECRETS DECLARATION -- AND A LOT OF THOSE

12 HAVE NOW BEEN DECLASSIFIED -- HAS BEEN MADE CLEAR -- IN FACT,

13 THEY STATE ON THE PUBLIC RECORD STATE STARTING IN 2006 AND

14 SEVEN THAT THE GOVERNMENT HAS NOT ENGAGED IN A CONTENT DRAGNET.

15 AND WE HAVE SPECIFICALLY IDENTIFIED AND DEFINED CONTENT. AND

16 WE MADE CLEAR THAT THAT ALLEGATION WAS NOT TRUE.

17

AND WHAT WE SAID IN THOSE PRIVILEGE ASSERTIONS IS

18 THAT TO DISAPPROVE IT YOU WOULD NEED TO KNOW INTELLIGENT

19 SOURCES AND METHODS AS WELL AS THEN-STILL CLASSIFIED

20 ACTIVITIES.

21

NOW, THE ONE DIFFERENCE, THOUGH, WITH RESPECT TO

22 CONTENT IS THAT 702 IS NOT A CLASSIFIED ACTIVITY. THE SOURCES

23 AND METHODS ARE. BUT 702 WAS A PUBLICLY-ACKNOWLEDGED PROGRAM.

24

PRIOR TO THAT THE TERRORIST SURVEILLANCE PROGRAM WAS

25 A PUBLICLY-ACKNOWLEDGED PROGRAM. PRESIDENT BUSH DESCRIBED IT

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

37

1 AS LINKED TO INTERNATIONAL COMMUNICATIONS INVOLVING AL QAEDA.

2

THEY NEVER CHALLENGED 702, NOT TSP IN JEWEL OR

3 SHUBERT. THEY NEVER CHALLENGED PROTECT AMERICA ACT. THEY

4 NEVER CHALLENGED 702.

5

WHAT THEY HAVE CLAIMED IS THAT THERE IS A MASS

6 COMMUNICATION DRAGNET, WHICH THE GOVERNMENT HAS CONSISTENTLY

7 DENIED FROM THE BEGINNING OF THESE LAWSUITS.

8

NOW, WE'RE TALKING ABOUT 702 IN THIS PRESERVATION

9 DISPUTE. IT'S A SEPARATE STATUTORY PROGRAM. PUBLIC HAS

10 EXISTED BEFORE JEWEL AND CERTAINLY WHILE SHUBERT HAS BEEN

11 PENDING. THAT PROGRAM HAS DEFINED STATUTORY TERMS. AND IF YOU

12 WOULD RECEIVE BRIEFING ON THIS AND ALSO BRIEFING NOT ONLY ON

13 HOW THE PROGRAM OPERATES, BUT WHETHER THEY HAVE STATED A CLAIM

14 AND HAVE STANDING UNDER THAT PROGRAM, YOU WOULD NOT ENTER A

15 PRESERVATION ORDER THAT WOULD REQUIRE THE NSA TO EFFECTIVELY

16 SHUT DOWN ITS COLLECTION UNDER THAT PROGRAM.

17

THIS IS NOT ABOUT THE DESTRUCTION OF EVIDENCE THAT IS

18 RELEVANT TO THIS CASE. THE INFORMATION THAT NSA CYCLES OFF

19 THROUGH ITS DATA DELETION POLICY IS DONE PURSUANT TO ORDERS OF

20 THE FISC IN A PROGRAM THAT WAS NEVER CHALLENGED AND IS NOT

21 RELEVANT IN THIS LAWSUIT.

22

IT IS NOT ABOUT THE DESTRUCTION OF EVIDENCE HERE.

23 WHAT IT IS ABOUT IS THE POTENTIAL DESTRUCTION OF NSA'S ABILITY

24 TO COLLECT FOREIGN INTELLIGENCE ON BEHALF OF THE UNITED STATES.

25

IF YOU WERE TO KEEP THIS ORDER IN PLACE -- AND WE SET

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

38

1 THAT FORTH FOR THE COURT. AND I HAVE TO URGE THE COURT THAT

2 WHILE ALL THESE ARGUMENTS ARE INTERESTING ABOUT THE PRIOR

3 HISTORY OF THIS LAWSUIT, THE IMMEDIATE QUESTION THAT WE REALLY

4 NEED RELIEF ON IS THE SENTENCE IN YOUR ORDER WHICH REQUIRES THE

5 NSA, THE GOVERNMENT, TO SAVE ALL -- ANY DOCUMENTS THAT MAY BE

6 RELEVANT TO THE CLAIMS IN THIS ACTION, INCLUDING SECTION 702

7 MATERIALS.

8

THAT IS A VERY SERIOUS OPERATIONAL PROBLEM FOR THE

9 NSA.

10

THE COURT: ALL RIGHT. MS. COHN, I WANT YOU TO

11 ANSWER THE FOLLOWING QUESTION, BECAUSE I THINK MR. COPPOLINO

12 JUST PUT HIS -- MIXED METAPHORS HERE -- PUT HIS FINGER ON THE

13 ELEPHANT IN THE ROOM. BUT WHICH IS IN AN UNCLASSIFIED SWORN

14 DECLARATION, THE GOVERNMENT HAS ASSERTED THAT IF THE COURT

15 WERE, FOR WHATEVER REASON, EVEN INCLUDING IF I ACCEPTED THE

16 PLAINTIFFS' POSITION HERE TO ISSUE -- MAINTAIN THE ORDER THAT I

17 ISSUED ON AN EMERGENCY BASIS, THAT IT WOULD DO GRAVE DAMAGE TO

18 OUR NATIONAL SECURITY.

19

WE'RE ALL CITIZENS OF THIS COUNTRY. WE ALL REALLY

20 WANT SECURITY. WE ALSO WANT OUR CONSTITUTIONAL RIGHTS TO BE

21 HONORED. BUT HOW CAN THE COURT IN THE FACE OF THAT -- AND

22 THERE'S NOTHING IN RESPONSE, AND I'M NOT CRITICIZING THE

23 PLAINTIFFS THAT, YOU KNOW, IT'S HARD FOR THEM TO THWART IT.

24 BUT IT IS IN A NONCLASSIFIED DOCUMENT.

25

HOW IS THE COURT TO SAY:

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

39

1

"WELL, YEAH, THEY SAY THAT. BUT, YOU KNOW, I'M

2

JUST GOING TO DISREGARD THAT, AND I'M GOING TO,

3

NOTWITHSTANDING THAT, ORDER THEM TO PRESERVE ALL

4

THESE DOCUMENTS AND SHUT DOWN THIS PROGRAM"?

5

MS. COHN: YEAH, YOUR HONOR. WE'VE BEEN CONCERNED.

6 I MEAN, HONESTLY, IT'S A LITTLE FRUSTRATING THAT WE'RE EIGHT

7 YEARS LATER AND THEY ARE FINALLY SURFACING A PRACTICABILITY

8 PROBLEM THAT WE SHOULD HAVE BEEN TALKING ABOUT A LONG TIME AGO.

9

BUT TO THE EXTENT THAT THEY HAVE A PRACTICABILITY

10 PROBLEM HERE -- AND I'M NOT AGREEING NECESSARILY THAT THEY DO.

11 AND I'D CERTAINLY BE WILLING TO OFFER SOME TECHNICAL ASSISTANCE

12 TO THE GOVERNMENT TO FIGURE OUT HOW IT IS THEY COULD PRESERVE

13 RELEVANT EVIDENCE, IF THEY'D LIKE TO. I THINK THERE ARE PEOPLE

14 THAT WOULD BE WILLING TO HELP THEM.

15

BUT LET'S ASSUME FOR AN INSTANT THAT THEY ARE

16 CORRECT, THAT'S WHY WE KEEP TALKING ABOUT AN ADVERSE INFERENCE,

17 YOUR HONOR. THERE'S A WAY. IT'S THE GOVERNMENT'S POSITION

18 ABOUT WHAT OUR BURDEN IS TO DEMONSTRATE STANDING AND MAYBE

19 OTHER THINGS. BUT CERTAINLY STANDING THAT CREATES THE NEED FOR

20 US TO HAVE THIS INFORMATION.

21

WE'VE NEVER THOUGHT THAT WE NEEDED TO BE ABLE TO

22 POINT TO CAROLYN JEWEL'S COMMUNICATIONS INSIDE THEIR DATABASES

23 IN ORDER FOR HER TO BE ABLE TO SUE. THERE'S ALL SORTS OF OTHER

24 EVIDENCE, INCLUDING THE FISC OPINIONS AND OTHER THINGS.

25

THE STEP ONE, THE MASSIVE CONTENT COLLECTION THAT

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

40

1 HAPPENS FIRST BEFORE STEP TWO, THE MINIMIZATION AND TARGETING

2 IS NOT ACTUALLY A VERY BIG SECRET. I DON'T THINK IT'S A SECRET

3 AT ALL AT THIS POINT.

4

BUT IF THE COURT WERE TO FIND, AS WE WERE TALKING

5 EARLIER, THAT THIS EVIDENCE WOULD DEMONSTRATE THAT OUR CLIENTS'

6 COMMUNICATIONS -- AND, YOU KNOW, OUR CLIENTS ARE A CLASS OF

7 AT&T CUSTOMERS SO THERE'S A LOT OF PEOPLE -- WERE INCLUDED IN

8 THE INFORMATION THAT WAS COLLECTED INITIALLY AND SEARCHED.

9 THERE ARE SEARCHES THAT HAPPENED INITIALLY, TOO, INCLUDING

10 ABOUT SEARCHING, SEARCHING ABOUT THE TARGET.

11

SO IF MY CLIENT, CAROLYN JEWEL, WHO WRITES, YOU KNOW,

12 FANTASY NOVELS, IF SHE WRITES A NOVEL IN WHICH SOMEBODY

13 MENTIONS, YOU KNOW, OSAMA BIN LADEN, THAT WOULD COME UP

14 PRESUMABLY IN A SEARCH FOR A TERRORIST. SO ABOUT COMES UP AS

15 WELL AS OTHER THINGS IN THE SEARCHING.

16

IF YOU WERE TO MAKE AN ADVERSE INFERENCE OR A FINDING

17 AS A MATTER OF LAW THAT OUR CLIENTS' INFORMATION IS INCLUDED IN

18 THESE MASS COLLECTIONS THEN WE DON'T NEED THEM TO PRESERVE IT

19 ANYMORE.

20

AND WE'VE OFFERED THIS FROM THE VERY BEGINNING

21 BECAUSE WE REALLY DON'T WANT THE NEEDS OF OUR CASE FOR OUR

22 CLIENTS TO BE ABLE TO PROVE THEIR CASE TO GET IN THE WAY OF THE

23 GOVERNMENT DOING ITS JOB TO PROTECT US. BUT THERE OUGHT TO BE

24 A WAY TO DO BOTH.

25

THE COURT: WELL, I WOULD SUGGEST -- AND I'LL HEAR

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

41

1 FROM MR. COPPOLINO -- THAT WE'RE TALKING ABOUT MAYBE TWO

2 DIFFERENT THINGS HERE. IT'S ONE THING TO HAVE AN ADVERSE

3 INFERENCE WITH RESPECT TO THE 215 PROGRAM, AND ANOTHER THING TO

4 HAVE AN ADVERSE INFERENCE WITH RESPECT TO THE 702 PROGRAM,

5 BECAUSE, NUMBER ONE, THE COURT WOULD HAVE TO FIRST FIND THAT

6 702 WAS CLEARLY IMPLICATED IN THE CURRENT LAWSUITS.

7

AND, SECONDLY, TO FIND AN ADVERSE INFERENCE THAT THE

8 GOVERNMENT EITHER WRONGLY DESTROYED EVIDENCE OR THEY HAVE

9 EVIDENCE WITHIN THEIR POSSESSION WHICH THEY COULD LAWFULLY AND

10 PROPERLY COME FORTH WITH, BUT THEY ARE NOT, AND, THEREFORE,

11 JUST LIKE WITH ANY EVIDENCE IN ANY CASE WOULD SUBJECT THEM TO

12 AN ADVERSE INFERENCE.

13

THE ANSWER MAY BE SLIGHTLY DIFFERENT WITH RESPECT TO

14 702 VERSUS 215. WOULD YOU AGREE WITH THAT?

15

MS. COHN: WELL, YOUR HONOR, I THINK YOU CAN GET

16 THERE FOR BOTH. I THINK WITH SECTION 215, YOU KNOW, WE NOW

17 KNOW THAT THERE ARE SOME TELEPHONE RECORDS THAT THEY HAVE

18 DESTROYED. BUT SO THERE IS A QUESTION THERE ABOUT WHAT TO DO

19 IN THE CONTEXT OF THIS CASE AND THE FIRST UNITARIAN CASE WITH

20 REGARD TO THE PHONE RECORDS.

21

BUT WITH REGARD TO THE CONTENT COLLECTION I THINK

22 YOUR HONOR CAN SAY TO THE EXTENT THAT PLAINTIFFS CAN ESTABLISH

23 THAT SUCH A PROGRAM EXISTS, THE NARROWER QUESTION ABOUT WHETHER

24 OUR CLIENTS' COMMUNICATIONS WERE INCLUDED IN THIS PROGRAM IS

25 ONE THAT WE GET THE BENEFIT OF THE DOUBT IN.

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

42

1

SO WE'D STILL HAVE -- I MEAN, WE STILL HAVE THE

2 BURDEN TO DEMONSTRATE THE MASS COLLECTION. AND IT'S TRUE THAT

3 THE DESTRUCTION OF THEIR RECORDS OF THE MASS COLLECTION WOULD

4 BE VERY -- YOU KNOW, COULD BE PROBLEMATIC FOR THAT -- IN THAT

5 REGARD.

6

BUT I THINK THAT THE PIECE THAT'S MORE IMPORTANT FOR

7 US IN THE MOMENT IS THAT IF WE CAN DEMONSTRATE THAT THAT MASS

8 COLLECTION OCCURS, WHETHER IT'S UNDER 702 OR ANY OTHER

9 PROGRAM -- FRANKLY, YOU KNOW, WE ARE TALKING ABOUT 702 BECAUSE

10 THAT'S WHAT THE GOVERNMENT HAS NOW JUST WITHIN THE PAST YEAR

11 INDICATED THAT THE UPSTREAM COLLECTION IS SOMETHING THAT THEY

12 ARE DOING UNDER 702.

13

AND WE ALSO DIDN'T KNOW IT WAS CALLED "UPSTREAM" WHEN

14 WE STARTED. WE CALL IT DIRECT ACCESS TO THE FIBER OPTIC CABLES

15 AT AT&T IN ACCORDANCE WITH THE EVIDENCE THAT WE HAVE PRESENTED.

16

NOW, WE SEE DOCUMENTS THAT HAVE COME OUT, INCLUDING

17 FISC OPINIONS, THAT APPEAR TO CHARACTERIZE THAT BEHAVIOR AND

18 CALL IT "UPSTREAM" AND APPEAR TO INDICATE THAT THE GOVERNMENT'S

19 LEGAL JUSTIFICATION FOR UPSTREAM LIES IN SECTION 702.

20

THOSE TWO THINGS ARE, I THINK, TRUE TODAY. BUT I

21 DON'T THINK THAT THE FACT THAT IT'S DIFFICULT TO CHARACTERIZE

22 WHAT THEY ARE DOING IN A STATUTORY BASIS SHOULD GET IN THE WAY

23 OF US GETTING A RULING FROM THIS COURT ABOUT WHETHER THE MASS

24 COLLECTION OF THE COMMUNICATIONS CONTENT OF MILLIONS OF

25 INNOCENT AMERICANS IS CONSTITUTIONAL OR NOT.

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

43

1

THE COURT: ALL RIGHT. MR. COPPOLINO.

2

MR. COPPOLINO (BY PHONE): THANK YOU, YOUR HONOR.

3

I WANT TO START MY RESPONSE TO THIS RECENT DISCUSSION

4 BY SAYING THAT I REALLY THINK IT DEMONSTRATES THAT YOU SHOULD

5 RECEIVE SOME FURTHER BRIEFING BEFORE YOU ISSUE A FURTHER TRO 6 WITH RESPECT TO 702, THE IMMEDIATE ISSUE BEFORE THE COURT ON A 7 COUPLE OF POINTS.

8

ONE IS THAT I DON'T BELIEVE THE COURT CAN GRANT

9 ADVERSE INFERENCES WITH RESPECT TO STANDING OR JURISDICTIONAL

10 ISSUES. I THINK THERE'S LAW ON THAT, AND I THINK WE OUGHT TO

11 AT LEAST INVESTIGATE IT AND BRIEF JUST AS A GENERAL MATTER.

12

SECONDLY, I THINK YOU IDENTIFIED THE TWO ISSUES

13 DIRECTLY WITH RESPECT TO ADVERSE INFERENCE. AND I DON'T THINK

14 EITHER OF THOSE WOULD BE SATISFIED. AND I DO THINK YOU HAVE TO

15 VIEW THIS BY CLAIM.

16

I DON'T CONCEDE THAT AB ADVERSE INFERENCE WOULD BE

17 APPROPRIATE UNDER 215 OR TELEPHONY META DATA. FOR ONE THING,

18 WITH RESPECT TO TELEPHONY META DATA, UNDER THE PRESIDENT'S

19 SURVEILLANCE PROGRAM, WE HAVE PRESERVED IT, AND WE HAVE

20 DETAILED THAT TO THE COURT.

21

SO THERE WOULD BE NO BASIS FOR ANY ADVERSE INFERENCES

22 WITH RESPECT TO THE PSP WHATSOEVER. AND I DON'T BELIEVE THERE

23 WOULD BE ONE WITH RESPECT TO 215, AS WELL.

24

AND AS TO 702, BEFORE YOU COULD GET -- AS YOU, I

25 THINK, CORRECTLY POINTED OUT, BEFORE YOU COULD GET TO THE

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

44

1 QUESTION OF AN ADVERSE INFERENCE AS TO 702 ON A CONTENT

2 DRAGNET, YOU HAVE TO ESTABLISH THAT YOU HAVE STANDING AND THAT

3 YOU HAVE STATED A CLAIM, AND THAT ANY RELEVANT EVIDENCE TO THAT

4 CLAIM WOULD HAVE BEEN DESTROYED.

5

AND 702, AS I'VE SAID BEFORE -- AND I THINK YOU

6 SHOULD PERHAPS RECEIVE SOME BRIEFING ON IT. AND WE HAVE A

7 BRIEF DUE ON JUNE 27TH -- 702 IS AGAIN DIRECTED AT NON U.S.

8 PERSONS REASONABLY BELIEVED TO BE LOCATED OUTSIDE THE UNITED

9 STATES. SO THESE PLAINTIFFS CAN'T POSSIBLY BE 702 TARGETS.

10

WHAT THEY ARE ARGUING IS THAT THEY ALLEGED -- THEY

11 WERE INCIDENTALLY COLLECTED, I THINK, AS SOME PART OF A CONTENT

12 DRAGNET. AND THEY SPECIFICALLY TALK ABOUT THIS UPSTREAM

13 COLLECTION.

14

THAT REALLY BEARS SOME INVESTIGATION ON YOUR PART,

15 YOUR HONOR, BECAUSE UPSTREAM -- AND WE'RE HAPPY TO SUPPLY YOU

16 WITH WHAT YOU NEED -- UPSTREAM IS A REFERENCE TO A TYPE OF

17 COLLECTION UNDER 702 AT WHICH CERTAIN INFORMATION WAS COLLECTED

18 OFF OF DATA LINKS.

19

AND MS. COHN'S RIGHT. JUDGE JOHN BATES ISSUED

20 SEVERAL OPINIONS IN THE FISC ABOUT THAT. AND THEY ARE ALL

21 DECLASSIFIED NOW. THERE WAS A COMPLIANCE INCIDENT. AND THAT

22 INCIDENT CONCERNED, IN VERY SIMPLISTIC TERMS, WHETHER THE NSA

23 WAS OVERCOLLECTING COMMUNICATIONS PURSUANT TO ITS 702

24 AUTHORITY.

25

IN OTHER WORDS, IT HAD SPECIFIC TARGETS AND SPECIFIC

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

45

1 SELECTORS THAT IT WAS COLLECTING ON. BUT IN THE PROCESS FOR

2 TECHNICAL REASONS IT WAS COLLECTING MORE COMMUNICATIONS OF

3 NONTARGETS. AND THAT WAS THE COMPLIANCE INCIDENT BEFORE JUDGE

4 BATES. IT WAS NOT A CONTENT DRAGNET. IT WAS A PROBLEM WITH

5 HOW 702 COLLECTED INTERNET COMMUNICATIONS OF FOREIGN TARGETS

6 LOCATED OUTSIDE THE U.S.

7

WHAT'S INTERESTING, TOO, ABOUT THAT IS THAT JUDGE

8 BATES NEVER ULTIMATELY HELD THAT THE ACQUISITION VIOLATED THE

9 CONSTITUTION. THE PROBLEM IN THAT CASE WAS THE MINIMIZATION

10 PROCEDURES WERE NOT SUFFICIENT TO PROTECT THE FOURTH AMENDMENT

11 INTERESTS OF THE PEOPLE OF THE UNITED STATES.

12

AND SO HE ORDERED THAT HAD THEY BE CHANGED, AND THEY

13 WERE CHANGED. AND HE APPROVED THEM. AND IN ADDITION, IN THE

14 PROCESS OF NOT ONLY APPROVING THE MINIMIZATION PROCEDURES, NSA

15 IMPLEMENTED NEW SYSTEM ARCHITECTURE THAT DID A BETTER JOB AT

16 ASSURING THAT THOSE COMMUNICATIONS WERE MINIMIZED AND

17 ULTIMATELY DESTROYED, WHICH IS THE GOAL HERE. IT'S PART OF THE

18 STATUTORY FRAMEWORK NOT TO COLLECT ON U.S. CITIZENS. AND WHEN

19 YOU'VE INCIDENTALLY DONE IT, DESTROY IT.

20

IRONICALLY, THE PRESERVATION OBLIGATIONS THAT THEY

21 ARE TRYING TO IMPOSE WOULD VACATE JUDGE BATES' DECISION AND

22 REQUIRE NSA TO SUSPEND THAT SYSTEM ARCHITECTURE THAT WE CREATED

23 AT THE COST OF UNDOUBTEDLY MILLIONS OF DOLLARS IN ORDER TO

24 PRESERVE EVIDENCE WITH THE LIKELIHOOD THAT IT WOULD EVER BE

25 RELEVANT TO THIS LAWSUIT WOULD PROBABLY BE ZERO, BECAUSE THEY

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

46

1 COULDN'T BE TARGETS. AND THEY ARE ONLY SPECULATING AS TO

2 WHETHER THEY COULD HAVE BEEN INCIDENTALLY COLLECTED. AND THEY

3 DON'T LIKELY HAVE STANDING ANYMORE UNDER AMNESTY INTERNATIONAL,

4 AS WE'VE ARGUED TO THIS COURT BEFORE.

5

THE COURT: ANYTHING FURTHER YOU WANT TO SAY?

6

MS. COHN: WELL, YOUR HONOR, I WOULD JUST POINT OUT

7 THAT THE DEFINITION OF "COLLECTED" THE GOVERNMENT HAS A PRETTY

8 CRAMPED DEFINITION OF "COLLECTED."

9

THEIR DEFINITION OF "COLLECTED" MEANS "TARGETED,"

10 RESULTING FROM THEIR TARGETED SEARCHES. AND WE KNOW THIS. I

11 MEAN, THIS WAS THE SUBJECT OF A LOT OF PUBLIC DISCUSSION WHEN

12 THIS THING FIRST CAME OUT BECAUSE THERE WAS CONGRESSIONAL

13 TESTIMONY WHERE THE WORD "COLLECTION" WAS USED.

14

AND THEN, IT TURNED OUT THAT THE GOVERNMENT

15 COLLECTION MEANT MUCH FURTHER ALONG IN THE PROCESS, MUCH MORE

16 LIKE OUR STEP TWO RATHER THAN STEP ONE.

17

AND, AGAIN, I THINK THAT WHAT IS GOING ON HERE, BIG

18 PICTURE, WHEN THEY ARE CHARACTERIZING SECTION 702 IS THAT THEY

19 ARE SAYING IT'S A TARGETED PROGRAM BECAUSE THEY DON'T COUNT

20 ANYTHING THAT HAPPENS BEFORE THEY ARE TARGETS.

21

AND OUR CONVERSATION IS KIND OF AT CROSS PURPOSES

22 BECAUSE OUR CLIENTS ARE ORDINARY PEOPLE. THEY ARE MILLIONS OF

23 AT&T CUSTOMERS. AND THE QUESTION IS: DOES THE GOVERNMENT GET

24 CUSTODY OF THEIR COMMUNICATIONS AND SEARCH THROUGH THEM ON THE

25 WAY TO ITS TARGETED PROGRAMS.

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

47

1

I THINK THE ANSWER IS FAIRLY CLEARLY YES AT THIS

2 POINT. AND YOU CAN READ THAT INTO THE WAY THE FISC OPINIONS

3 ARE LOOKING AT THINGS.

4

BUT I THINK MR. COPPOLINO IS TRYING TO WIN HIS CASE

5 HERE RATHER THAN TALK ABOUT THE SCOPE OF EVIDENCE PRESERVATION.

6 THE SCOPE OF EVIDENCE PRESERVATION OUGHT TO BE BASED UPON OUR

7 COMPLAINT AND WHAT WE'RE SUING OVER. WE ARE CLEARLY SUING OVER

8 THE MASS COLLECTION OF CONTENT. THAT'S WHAT PARAGRAPHS 50

9 THROUGH 80 OF THE COMPLAINT TALK ABOUT.

10

THEY ARE NOT TIED TO EXECUTIVE AUTHORITY VERSUS FISC.

11

IT'S NOT TIED TO 702 VERSUS SOME OTHER STATUTE THAT

12 THE CONGRESS MIGHT PASS IN THE FUTURE TO LET THE GOVERNMENT

13 CONTINUE TO DO THE SAME THING.

14

IT'S ABOUT THE MASS COLLECTION OF CONTENT AND WHETHER

15 THAT'S CONSTITUTIONAL OR STATUTORILY AUTHORIZED BY ANY STATUTE.

16 I DON'T THINK 702 AUTHORIZES --

17

THE COURT: ALL RIGHT. MR. COPPOLINO, ANY FINAL

18 WORDS?

19

MR. COPPOLINO (BY PHONE): I THINK A FEW, YOUR HONOR.

20 FIRST, THANK YOU FOR YOUR PATIENCE AND FOR THIS LONG HEARING.

21

SECONDLY, I'M NOT TRYING TO WIN MY CASE ON THE

22 MERITS. I'M TRYING TO PROTECT NSA'S VERY SIGNIFICANT NATIONAL

23 SECURITY INTEREST IN MAINTAINING THE INTEGRITY OF THE 702

24 PROGRAM, WHICH WE DON'T BELIEVE IS EVEN AT ISSUE.

25

BUT EVEN IF YOU THOUGHT IT WAS AT ISSUE -- AND YOU

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

48

1 DON'T HAVE TO DECIDE THAT ISSUE -- THE STEPS THAT THEY HAVE

2 ASKED TO TAKE WITH RESPECT TO THE PRESERVATION OF DATA ON 702

3 ARE NOT REASONABLE JUST AS A PRESERVATION MATTER, BECAUSE THEY

4 ARE FAR TOO BURDENSOME, FAR TOO IMPRACTICABLE. THEY RISK

5 COMPROMISING NATIONAL SECURITY. AND THEY SHOULD NOT BE ALLOWED

6 TO STAND, EVEN IF YOU FELT THAT IN SOME WAY BY SOME MANNER 702

7 WAS PROPERLY AT ISSUE IN THE LAWSUIT.

8

I DON'T KNOW IF I'M GOING TO GET ANOTHER CHANCE TO

9 SPEAK, SO I THOUGHT I WOULD JUST SAY THAT IN CONCLUSION, YOUR

10 HONOR, THAT WE HAVE ASKED THAT YOU WOULD STAY OR RESCIND

11 YESTERDAY'S ORDER FOR THE REASONS THAT WE HAVE -- YOU KNOW, WE

12 IDENTIFIED IN OUR PAPERS TODAY.

13

AND WHAT I WOULD ASK THE COURT TO DO IS IF YOU ARE

14 NOT READY TO RULE TODAY ON ALL OF THESE ISSUES IN TERMS OF

15 EXTENDING THE TRO TO 702, THAT YOU AT LEAST STAY YESTERDAY'S

16 ORDER.

17

IF YOU ARE GOING TO RULE AND RULE AGAINST US AND

18 ORDER THE PRESERVATION OF ALL DATA RELEVANT TO 702, AS YOU DID

19 YESTERDAY, WE WOULD ASK THAT YOU ADMINISTRATIVELY SAY THAT SO

20 WE CAN CONSIDER OUR APPELLATE OPTIONS IN THE NINTH CIRCUIT.

21

AND IF YOU DECIDE LATER TO ISSUE SUCH A RULING WE

22 WOULD ASK THAT YOU ISSUE AN ADMINISTRATIVE STAY WITH THAT

23 RULING SO THAT WE COULD SEEK OUR RELIEF FROM THE NINTH CIRCUIT.

24

THE COURT: ALL RIGHT. MS. COHN, ANY PARTING WORDS?

25

MS. COHN: NO, YOUR HONOR. WELL, YES, OF COURSE,

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

49

1 YOUR HONOR, A COUPLE OF WORDS. AND I WILL TRY TO KEEP IT

2 SHORT.

3

THE COURT: MY VACUUM THEORY THAT NATURE AND LAWYERS

4 HATE A VACUUM WHEN GIVEN A CHANCE TO --

5

MS. COHN: IT'S TRUE. MY CAT HATES THE VACUUM, TOO.

6

THE COURT: OKAY.

7

MS. COHN: BUT I THINK THAT, YOU KNOW, WE FELT WE HAD

8 AN EVIDENCE PRESERVATION ORDER IN PLACE IN THIS CASE IN 2007

9 THAT SPECIFICALLY REQUIRED THE GOVERNMENT TO PRESERVE ALL

10 EVIDENCE RELEVANT TO THIS CASE, RELEVANT TO OUR CLAIMS.

11

WHEN WE DISCOVERED IN MARCH THAT THE GOVERNMENT HAD

12 MASSIVELY AND SECRETLY REINTERPRETED THAT, WE ASKED YOU FOR

13 EMERGENCY RELIEF, AND YOU GRANTED IT.

14

I'M -- YOU KNOW, IT'S KIND OF DEJA VU ALL OVER AGAIN

15 FOR ME TO BE STANDING UP HERE AGAIN TRYING TO ARGUE THAT THE

16 GOVERNMENT NEEDS TO PRESERVE ALL EVIDENCE RELEVANT TO OUR

17 CLAIMS.

18

THEY DO. THAT'S JUST A BEDROCK FACTOR. I'VE TRIED

19 TO GIVE YOUR HONOR, AND I'VE SUGGESTED THE COURT A WAY AROUND

20 THIS PROBLEM FOR US. I THINK THE ADVERSE INFERENCE IS THE WAY

21 TO GO. THERE MAY BE SOME OTHER WAY TO GO THAT WILL WORK ON

22 THIS. I DON'T WANT EVIDENCE PRESERVATION OBLIGATIONS TO GET IN

23 THE WAY OF THE GOVERNMENT'S EFFORTS TO PROTECT THE NATIONAL

24 SECURITY.

25

BUT I ALSO DON'T WANT THE GOVERNMENT'S CLAIMS OF ITS

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

50

1 NEEDS FOR NATIONAL SECURITY TO EFFECTIVELY LET IT CHECKMATE OUR

2 CASE BY DESTROYING THE VERY EVIDENCE THAT THEY SAY --

3

THE COURT: ALL RIGHT.

4

MS. COHN: -- WE NEED IN ORDER TO --

5

THE COURT: ALL RIGHT. SO THE MATTER IS SUBMITTED.

6 I WOULD LIKE TO ISSUE SOME -- A RULING ONE WAY OR THE OTHER

7 THIS EVENING -- TODAY.

8

SO I WOULD LIKE -- I AM GOING TAKE A BREAK TO

9 CONSIDER COUNSEL'S ARGUMENTS, REVIEW THE BRIEFS, AND I'LL BE

10 BACK. SO STAY AROUND. ALL RIGHT? THANK YOU.

11

AND, COUNSEL, WOULD IT BE POSSIBLE FOR YOU TO STAY ON

12 THE PHONE? IT WILL BE 15, 20 MINUTES.

13

MR. COPPOLINO (BY PHONE): ABSOLUTELY, YOUR HONOR.

14

THE COURT: THANK YOU VERY MUCH.

15

(THEREUPON, A RECESS WAS TAKEN.)

16

THE CLERK: REMAIN SEATED. COME TO ORDER. COURT IS

17 AGAIN IN SESSION.

18

THE COURT: ALL RIGHT. MR. COPPOLINO AND COMPANY,

19 ARE YOU STILL ON THE PHONE?

20

MR. COPPOLINO (BY PHONE): WE ARE, YOUR HONOR.

21

THE COURT: ALL RIGHT. VERY WELL.

22

SO I'M GOING TO ISSUE -- GIVEN THE LATE HOUR AND THE

23 LIKE, I'M GOING TO ISSUE MY RULING FROM THE BENCH.

24

OBVIOUSLY, YOU CAN ORDER A TRANSCRIPT OF MY RULING,

25 AND YOU'LL HAVE THAT MEMORIALIZED.

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

51

1

SO THE RULING IS AS FOLLOWS: WITH REGARD TO THE

2 COLLECTION OF COMMUNICATIONS PURSUANT TO SECTION 702, ON THIS

3 RECORD THE COURT SIMPLY DOES NOT HAVE SUFFICIENT EVIDENCE AND

4 LEGAL AUTHORITY TO RULE CONCLUSIVELY AT THIS TIME.

5

ACCORDINGLY, TO THE EXTENT PLAINTIFFS SEEK TO ENFORCE

6 THIS COURT'S EARLIER PRESERVATION ORDERS TO INCLUDE DATA

7 COLLECTED PURSUANT TO SECTION 702, THAT REQUEST IS DENIED ON

8 THIS CURRENT RECORD WITHOUT PREJUDICE.

9

IN ORDER TO PROTECT THE GOVERNMENT'S IMPORTANT

10 FUNCTION TO MAINTAIN OUR NATIONAL SECURITY PROGRAMS, AS SHOWN

11 BY THE DECLARATION OF RICHARD A. LEDGETT, L-E-D-G-E-T-T,

12 DIRECTOR OF NATIONAL -- DEPUTY DIRECTOR NATIONAL SECURITY

13 AGENCY, THE COURT CANNOT ISSUE A RULING AT THIS TIME REQUIRING

14 THAT THE GOVERNMENT DEFENDANTS RETAIN ALL DATA COLLECTED

15 PURSUANT TO SECTION 702.

16

ACCORDINGLY, THE GOVERNMENT RESCINDS -- THE COURT

17 RESCINDS ITS ORDER DATED JUNE 5TH, 2014 AS TO THE RETENTION OF

18 THE SECTION 702 EVIDENCE, BUT MAINTAINS ITS RULING WITH REGARD

19 TO THE PRESERVATION OF ALL DATA RELEVANT TO PLAINTIFFS' PENDING

20 CLAIMS.

21

IN ORDER TO PROVIDE THE COURT WITH SUFFICIENT

22 BRIEFING ON VARIOUS OPEN ISSUES, BOTH THAT WERE ALREADY OPEN

23 AND ONES THAT WERE RAISED BY TODAY'S PROCEEDINGS, THE COURT

24 HEREBY ORDERS THE PARTIES TO BRIEF THE FOLLOWING ISSUES IN

25 THEIR UPCOMING SUBMISSIONS DUE TO THE COURT.

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

52

1

DEFENDANTS HAVE RESPONSIVE BRIEFS DUE JUNE 27TH AND

2 PLAINTIFFS MAY FILE A RESPONSE TO THAT BRIEF BY NO LATER THAN

3 JULY 18, 2014.

4

AND THE ISSUES ARE AS FOLLOWS. ONE: WHETHER

5 PLAINTIFFS' CLAIMS ENCOMPASS SECTION 702, AND WHAT IS THE SCOPE

6 OF THE COLLECTION ACTIVITIES UNDER THAT PROVISION?

7

THE SECOND ISSUE: THE APPROPRIATENESS OF AN ADVERSE

8 INFERENCE OR STANDING BASED UPON THE ALLEGED DESTRUCTION OF

9 DOCUMENTS COLLECTED PURSUANT TO BOTH SECTIONS 215 AND 702.

10

SO ALTHOUGH I WAS SPEAKING FAST, BUT NOT AS FAST AS

11 COUNSEL, I WILL URGE YOU TO ORDER THE TRANSCRIPT OF THESE

12 REMARKS.

13

SO I'M NOT ENTERTAINING FURTHER ARGUMENT, BUT IS

14 THERE ANYTHING FURTHER THAT THE PLAINTIFFS WISH TO STATE?

15

MS. COHN: YOUR HONOR, I WOULD BE REMISS IF I DIDN'T

16 REMIND YOU WE HAD SOME OTHER MATTERS IN THE FIRST UNITARIAN

17 CASE THAT WE'RE WAITING FOR A HEARING DATE ON.

18

THE COURT: YOU WILL GET IT.

19

MS. COHN: AND THE FOUR QUESTIONS IN JEWEL, AS WELL.

20

THE COURT: RIGHT.

21

MS. COHN: I THINK I UNDERSTAND. SHOULD WE SET A

22 HEARING DATE --

23

THE COURT: NO.

24

MS. COHN: -- ON THESE MATTERS?

25

THE COURT: I WILL SET A HEARING AS APPROPRIATE.

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

53

1

MS. COHN: OKAY.

2

THE COURT: ALL RIGHT. MR. COPPOLINO, ANYTHING

3 FURTHER FROM THE GOVERNMENT?

4

MR. COPPOLINO (BY PHONE): NOTHING FURTHER, YOUR

5 HONOR. THANK YOU VERY MUCH.

6

THE COURT: ALL RIGHT. THANK YOU VERY MUCH. WE'RE

7 ADJOURNED.

8

(THEREUPON, THIS HEARING WAS CONCLUDED.)

9 STENOGRAPHY CERTIFICATION

10

"I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT

FROM THE RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER."

11

JULY 5, 2014

KATHERINE WYATT

12 ________________________________

13

14

15

__________________________

16

17

18

19

20

21

22

23

24

25

KATHERINE WYATT, PRO TEM REPORTER, CSR, RMR (925) 212-5224

 
 Case 4:08-cv-04373-JSW Document 333 Filed 12/18/15 Page 1 of 17 Case: 15-16133, 12/18/2015, ID: 9798089, DktEntry: 48-1, Page 1 of 17

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CAROLYN JEWEL; ERIK KNUTZEN; JOICE WALTON, on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants,
and
TASH HEPTING; GREGORY HICKS, Plaintiffs,
v.
NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director, in his official and personal capacities; MICHAEL V. HAYDEN, in his personal Capacity; UNITED STATES OF AMERICA; GEORGE W. BUSH, President of the United States, in his official and personal capacities; RICHARD B. CHENEY, in his personal capacity; DAVID S. ADDINGTON, in his personal capacity; DEPARTMENT OF JUSTICE; ALBERTO R. GONZALES, in his personal capacity; JOHN D. ASHCROFT, in his personal capacity; JOHN M. MCCONNELL, Director of National Intelligence, in his official

No. 15-16133
D.C. No. 4:08-cv-04373-
JSW
OPINION

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2

JEWEL V. NATIONAL SECURITY AGENCY

and personal capacities; JOHN D. NEGROPONTE, in his personal capacity; MICHAEL B. MUKASEY, Attorney General; BARACK OBAMA; ERIC H. HOLDER, JR., Attorney General; DENNIS C. BLAIR,
Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted October 28, 2015—Pasadena, California
Filed December 18, 2015
Before: Michael Daly Hawkins, Susan P. Graber, and M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown

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JEWEL V. NATIONAL SECURITY AGENCY

3

SUMMARY*

Jurisdiction / Rule 54(b) Certification
The panel dismissed the appeal for lack of jurisdiction because the appeal did not meet the requirements of Fed. R. Civ. P. 54(b) certification, and remanded to the district court for further proceedings.
The panel concluded that Rule 54(b) certification was not warranted because the question of whether the copying and searching of plaintiff’s Internet communications violated the Fourth Amendment – which was the only issue that the district court certified as final under Rule 54(b) in a case involving statutory and constitutional challenges to government surveillance programs – was intertwined with several other issues that remained pending in district court and this interlocutory appeal would only prolong final resolution of the case.

COUNSEL
Richard R. Wiebe (argued), Law Office of Richard R. Wiebe, San Francisco, California; Cindy A. Cohn, Lee Tien, Kurt Opsahl, James S. Tyre, Mark Rumold, Andrew Crocker, Jamie L. Williams, and David Greene, Electronic Frontier Foundation, San Francisco, California; Rachael E. Meny, Michael S. Kwun, Audrey Walton-Hadlock, Benjamin W. Berkowitz, Justina K. Sessions, and Philip J. Tassin, Keker &
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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4

JEWEL V. NATIONAL SECURITY AGENCY

Van Nest, LLP, San Francisco, California; Thomas E. Moore III, Royse Law Firm, PC, Palo Alto, California; Aram Antaramian, Law Office of Aram Antaramian, Berkeley, California, for Plaintiffs-Appellants.

Henry C. Whitaker (argued), Douglas N. Letter, and H. Thomas Byron III, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C, for Defendants-Appellees.

OPINION
McKEOWN Circuit Judge:
This appeal is the second trip to our court for a group of plaintiffs in their long-running statutory and constitutional challenges to government surveillance programs. In the last appeal, we reversed the district court’s dismissal of all claims on standing grounds and remanded for further proceedings, including determination of whether the “claims are foreclosed by the state secrets privilege.” Jewel v. Nat’l Sec. Agency, 673 F.3d 902, 905 (9th Cir. 2011). Several years of further proceedings have yet to produce a final judgment. Most recently, the district court dismissed a Fourth Amendment claim—which was only one among several claims— regarding Internet surveillance, on the grounds that plaintiffs lacked standing and that their claim was barred by the state secrets privilege. Jewel v. Nat’l Sec. Agency, No. C0804373, 2015 WL 545925, at *1 (N.D. Cal. Feb. 10, 2015). The court then certified that single issue as final under Federal Rule of Civil Procedure 54(b).

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JEWEL V. NATIONAL SECURITY AGENCY

5

The government filed a motion to dismiss the appeal for lack of jurisdiction, arguing that certification was improper under Rule 54(b). We agree. Our task is to address the juridical concerns surrounding the appeal of less than a complete judgment and to “scrutinize the district court’s evaluation of such factors as the interrelationship of the claims so as to prevent piecemeal appeals in cases which should be reviewed only as single units.” Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 10 (1980). Because the Fourth Amendment question is intertwined with several other issues that remain pending in district court and because this interlocutory appeal would only prolong final resolution of the case, we conclude that the Rule 54(b) certification was not warranted and dismiss the appeal for lack of jurisdiction.

BACKGROUND

This appeal arises out of ongoing litigation concerning Internet and cell phone surveillance programs the government began in the aftermath of the terrorist attacks on September 11, 2001.1 In 2008, Carolyn Jewel, Tash Hepting, Gregory Hicks, Erik Knutzen, and Joice Walton filed a complaint on behalf of themselves and others similarly situated against the United States, the National Security Agency (“NSA”), and a number of high-level government officials in their personal and official capacities. The complaint included seventeen counts, raising both constitutional and statutory claims and seeking injunctive relief and monetary damages. In summary, the complaint alleges that government officials

1 The Jewel case is one of many similar cases, some of which have been consolidated under the Multidistrict Litigation provisions of 28 U.S.C. § 1407. See Jewel, 673 F.3d at 906 nn.1 & 2; see also Jewel v. Nat’l Sec. Agency, No. C06-179, 2010 WL 235075, at *4 (N.D. Cal. Jan. 21, 2010).

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JEWEL V. NATIONAL SECURITY AGENCY

engaged in continuing warrantless surveillance within the United States that had begun under a secret presidential order. The “terrorist surveillance program,” some aspects of which were publicly acknowledged by the government in 2005, involved collecting data on millions of Internet and cell phone users. According to plaintiffs, the telecommunications company AT&T collaborated with the NSA to divert Internet traffic into secure rooms at AT&T facilities in San Francisco and to provide customer records to the government. Through this collaboration, the government allegedly collected data on cellular telephone communications, text messages, email, and other forms of Internet communication without a warrant. Jewel, 673 F.3d at 906.

In 2010, the district court dismissed the action with prejudice, holding that plaintiffs lacked a sufficiently particularized injury and therefore lacked standing on all claims. Jewel, 2010 WL 235075, at *1. On appeal, we reversed and held that “Jewel’s claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury. Nor do prudential considerations bar this action.” Jewel, 673 F.3d at 905. The case was remanded to the district court “with instructions to consider, among other claims and defenses, . . . the government’s assertion that the state secrets privilege bars this litigation.” Id. at 913–14.

After remand, the district court addressed the interaction between the state secrets privilege and sovereign immunity as those issues pertain to the statutory claims under the Foreign Intelligence Surveillance Act (“FISA”), the Electronic Communications Privacy Act (“Stored Communications Act”), the Wiretap Act, and the Administrative Procedure

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JEWEL V. NATIONAL SECURITY AGENCY

7

Act. Jewel v. Nat’l Sec. Agency, 965 F. Supp. 2d 1090 (N.D. Cal. 2013). The district court determined:

• The government’s state secrets privilege does not compel complete dismissal of the action because sufficient information regarding the surveillance program had been made public such that the subject matter of the suit itself is not a state secret. Id. at 1102–03.

• The “FISA procedural mechanism prescribed under 50 U.S.C. § 1806(f) preempts application of the state secrets privilege.” Id. at 1103. Title 18 U.S.C. § 2712 applies to claims under the Stored Communications Act and the Wiretap Act, thus preempting the state secrets doctrine for those claims. Id. at 1105, 1107–08.

• The damages claims under FISA are barred by sovereign immunity, but damages are not barred under the Stored Communications Act or the Wiretap Act. Id. at 1108.

• Plaintiffs cannot seek injunctive relief for their Stored Communications Act and Wiretap Act claims because Patriot Act § 223, amending 18 U.S.C. §§ 2520(a) and 2707(a), impliedly limited authority to sue the United States for forms of relief other than damages. Id. at 1109.

The district court’s order disposed of eleven of the seventeen claims and explicitly declined to address any of the constitutional claims, which included First and Fourth Amendment challenges to Internet and phone surveillance

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programs and an alleged violation of the separation of powers principle. Id. at 1097, 1112. Nor did the court address the possible defenses, such as qualified immunity, that might be available to individual defendants. The district court requested further briefing on the scope of FISA preemption with regard to the constitutional claims, noting that plaintiffs had the burden to show standing to sue without risking impermissible damage to ongoing national security efforts. Id. at 1112. The court also requested briefing on the “recent disclosure of the government’s continuing surveillance activities and the statement by the Director of National Intelligence that certain information . . . should be declassified and immediately released to the public.” Id. at 1113.

While the parties were in the process of briefing these questions, three of the five plaintiffs, Jewel, Knutzen, and Walton (collectively “Jewel” or the “Jewel plaintiffs”), moved for partial summary judgment on one aspect of their Fourth Amendment claim related specifically to Internet interception because they thought the public record supported their claim. Jewel specifically limited the scope of the motion to only one aspect of the Fourth Amendment claim “[a]t this time.”2 Jewel alleges that the government is engaging in a dragnet Internet interception program called

2 The motion narrowed the request for relief as follows: “At this time, plaintiffs do not seek a determination of the government defendants’ liability for: a) past Fourth Amendment violations, including during periods that those activities were conducted solely under presidential authority without any Foreign Intelligence Surveillance Court order; b) past or present Fourth Amendment violations arising from government activities other than Internet communications, seizure or searching; or c) past or present violations of statutory and constitutional provisions other than the Fourth Amendment.”

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“Upstream” collection, and that this program is an element of the government’s collection of communications under FISA § 702. Under this program, the NSA designates “non-U.S. persons located outside the United States who are reasonably believed to possess or receive, or are likely to communicate, foreign intelligence information.” Jewel, 2015 WL 545925, at *1. Once specific telephone numbers or email addresses associated with these individuals are identified, the NSA, assisted by the telecommunications providers, filters Internet communications “in an effort to remove all purely domestic communications” in order to capture designated communications. Id. at *2. The Jewel plaintiffs contend that this program constitutes surveillance of private communications without a warrant or individualized suspicion, in violation of the Fourth Amendment. Id. The government has “acknowledged the existence of the Upstream collection process . . . . [, h]owever, the technical details of the collections process remain classified.” Id.

In an order denying Jewel’s motion for summary judgment and granting the government’s cross-motion, the district court held that plaintiffs failed to establish a sufficient factual basis for standing to challenge the ongoing Internet data collection program. Although the court agreed that Jewel could demonstrate concrete injury if the Internet interception program operated in the way proffered, “the evidence at summary judgment is insufficient to establish that the Upstream collection process operates in the manner in which Plaintiffs allege it does” and that, based on classified materials relating to Upstream collection, “the Plaintiffs’ version of the significant operational details of the Upstream collection process is substantially inaccurate.” Id. at *4. The court further held that the Fourth Amendment claims “must be dismissed because even if Plaintiffs could establish

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standing . . . any possible defenses would require impermissible disclosure of state secret information.” Id. at *1.

Granting Jewel’s motion under Rule 54(b), the district court certified that “adjudication of this claim is a final determination and that no just reason exists for delay in entering final judgment on this claim.” Other than a bare recitation of the rule, the court offered no explanation or analysis regarding the certification. After Jewel filed this appeal, the government responded with a motion to dismiss the appeal for lack of jurisdiction.

ANALYSIS

We begin with the foundational rule that generally we have jurisdiction to hear an appeal only if it arises from a final order, and “[a]n order granting partial summary judgment is usually not an appealable final order under 28 U.S.C. § 1291 because it does not dispose of all of the claims.” Am. States Ins. Co. v. Dastar Corp., 318 F.3d 881, 884 (9th Cir. 2003) (citing 28 U.S.C. § 1291). An important exception is found in Rule 54(b), which provides in relevant part:

When an action presents more than one claim for relief . . . or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.

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The Rule was adopted “specifically to avoid the possible injustice of delay[ing] judgment o[n] a distinctly separate claim [pending] adjudication of the entire case. . . . The Rule thus aimed to augment, not diminish, appeal opportunity.” Gelboim v. Bank of Am. Corp., 135 S. Ct. 897, 902–03 (2015) (citations omitted). The Supreme Court has put some meat on this bare-bones rule. In highlighting the importance of juridical concerns with piecemeal appeals, the Court explained the role of a court of appeals in reviewing a Rule 54(b) certification:

The court of appeals must, of course, scrutinize the district court’s evaluation of such factors as the interrelationship of the claims so as to prevent piecemeal appeals in cases which should be reviewed only as single units. But once such juridical concerns have been met, the discretionary judgment of the district court should be given substantial deference, for that court is “the one most likely to be familiar with the case and with any justifiable reasons for delay.”

Curtiss-Wright Corp., 446 U.S. at 10 (citations omitted).

We review de novo the “juridical concerns” determination, first asking whether the certified order is sufficiently divisible from the other claims such that the “case would [not] inevitably come back to this court on the same set of facts.” Wood v. GCC Bend, LLC, 422 F.3d 873, 879 (9th Cir. 2005). This inquiry does not require the issues raised on appeal to be completely distinct from the rest of the action, “so long as resolving the claims would ‘streamline the

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ensuing litigation.’” Noel v. Hall, 568 F.3d 743, 747 (9th Cir. 2009) (citation omitted).

The determination regarding Rule 54(b)’s equitable analysis ordinarily “is left to the sound judicial discretion of the district court to determine the ‘appropriate time’ when each final decision in a multiple claims action is ready for appeal.” Wood, 422 F.3d at 878 (quoting Curtiss-Wright Corp., 446 U.S. at 8). Although we encourage district courts to make factual findings and to explain their reasons for certifying under Rule 54(b) in order to facilitate appellate review, see Morrison-Knudsen Co. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981), we have held that the “lack of such findings is not a jurisdictional defect as long as we can independently determine the propriety of the order.” Noel, 568 F.3d at 747 n.5. Thus, if a district court does not make any findings or give any explanation, we turn to the record to discern whether Rule 54(b) certification was warranted. Here, similar to Noel, the district court did not explain why it found that no just reason existed to delay entering judgment. Unlike Noel, however, based on the record before us we conclude that Rule 54(b) certification was not appropriate.

As in Wood, “[w]e start (and mostly stop) with juridical concerns.” 422 F.3d at 879. We face the same hurdle encountered in Wood: “[w]e have no district court finding . . . about the interrelationship of the claims or issues, and the effect of the relationship on the likelihood of piecemeal appeals.” Id. at 880.

The certification order carves out a single claim: “that the copying and searching of their Internet communications is conducted without a warrant or any individualized suspicion and, accordingly, violates the Fourth Amendment.” This

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claim is but one of seventeen asserted in the complaint. Even excluding the claims seeking damages under FISA and injunctive relief under other statutes, which were dismissed in 2013,3 still undecided are a number of constitutional and statutory claims relating to both Internet interception and cell phone surveillance. See Jewel, 965 F. Supp. 2d at 1112–13 (listing the dismissed issues). In the absence of a roadmap in the certification order, we are left to unscramble how these complex claims (and the government’s defenses) intersect and overlap.

The district court observed that “Plaintiffs seek adjudication as to their Fourth Amendment Claim with regard only to the NSA’s acknowledged Upstream collection of communications.” Jewel, 2015 WL 545925, at *2 (emphasis added). Jewel’s counsel characterized the claim on appeal as “the entirety of the Fourth Amendment Internet interception claim against the government.” This effort to carve out a specific, severable claim obscures the fact that the Internet interception theory is not the only Fourth Amendment argument, nor is the Fourth Amendment the only ground for relief alleged to arise from the Internet interception program, nor does the appeal encompass all plaintiffs or all defendants. It quickly becomes apparent that the Rule 54(b) order does not present final adjudication of a complete claim on the facts, the theories for relief, or the parties. See Houston Indus. Inc. v. United States, 78 F.3d 564, 567 (Fed. Cir. 1996) (“The resolution of individual issues within a claim does not satisfy the requirements of Rule 54(b).”).

3 Those dismissal orders were not certified under Rule 54(b) and are not part of this appeal.

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Jewel’s assertion that the Fourth Amendment Internet interception claim is factually distinct from the rest of the litigation is unconvincing. Jewel divides the claims into four categories, which they suggest are distinct: Internet content, Internet records (metadata), telephone content, and telephone records (metadata). All four categories rely on interconnected factual allegations that the government collaborated with telecommunications providers to obtain information about domestic communications in a manner that is either unconstitutional or beyond the government’s statutory authority. Indeed, the complaint presents one section entitled “Factual Allegations Related to All Counts.” We conclude that “this case would inevitably come back to this court on the same set of facts.” See Wood, 422 F.3d at 879.

Apart from the common and intersecting facts, the nature of the claims makes piecemeal certification inappropriate. Jewel attempts to bifurcate the Fourth Amendment claims, focusing this appeal on Internet interception, while leaving the Fourth Amendment phone records claims in district court. Notably, however, all five plaintiffs have Fourth Amendment claims related to their phone records allegations. They also have damages claims against individual defendants for Fourth Amendment violations that have not yet been addressed by the district court.

The carve-out approach suffers from another infirmity— not even all of the Internet interception claims are raised in this appeal. For example, the First Amendment claims remain unresolved in the district court, as do many of the statutory Internet interception claims. See Jewel, 965 F. Supp. 2d at 1112. Significantly, the Internet interception claims rely on overlapping elements of the same allegedly

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illegal government actions. Whether pleading constitutional or statutory violations, the “legal right to relief stems largely from the same set of facts and would give rise to successive appeals that would turn largely on identical, and interrelated, facts.” Wood, 422 F.3d at 880. The district court’s conclusion that the plaintiffs “failed to establish a sufficient factual basis to find they have standing to sue under the Fourth Amendment regarding the possible interception of their Internet communications” cannot be limited to the narrow Fourth Amendment claim. Jewel, 2015 WL 545925, at *1. The court rejected Jewel’s standing argument because plaintiffs failed to describe the Internet interception program accurately. Id. at *4. It is only logical that this reasoning raised a potential standing bar for all claims related to the same government program. The district court further held that, even if plaintiffs could establish standing to challenge the Internet interception program, “any possible defenses would require impermissible disclosure of state secret information.” Id. at *1 (emphasis added).4 The alternative state secrets holding presents the same conundrum as the court’s standing ruling: it is not practical to cabin the ruling to the Fourth Amendment claim, thus presenting a realistic risk of duplicative litigation on remaining claims.

A final complication is that not all of the parties are included in this appeal, nor does this appeal resolve all of the Jewel plaintiffs’ claims. See Spiegel v. Trustees of Tufts Coll., 843 F.2d 38, 44 (1st Cir. 1988) (“It will be a rare case where Rule 54(b) can appropriately be applied when the

4 The district court did not address the relationship between this holding and its previous determination that FISA § 1806(f) preempts the state secrets doctrine for Stored Communications Act and Wiretap Act claims. See Jewel, 965 F. Supp. 2d. at 1108.

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contestants on appeal remain, simultaneously, contestants below.”). Only three of the five plaintiffs pursued the Fourth Amendment motion for summary judgment. Jewel explains that this is because two of the plaintiffs were not AT&T Internet customers and, therefore, did not claim that the government had collected information regarding their Internet use. Nevertheless, this circumstance fractures the appeal even further, especially because the facts and legal theories relied upon by the Jewel plaintiffs to show standing for the Fourth Amendment argument are not substantially different from some of the other constitutional and statutory claims, which apply to all plaintiffs.

In sum, the “practical effect of certifying the [Fourth Amendment] issue[] in this case is to deconstruct [the] action so as to allow piecemeal appeals with respect to the same set of facts.” Wood, 422 F.3d at 880.

Apart from juridical concerns, which counsel against certification, we are not convinced that this appeal meets the “no just reason for delay” prong of Rule 54(b). Our consideration of the single issue served up for interlocutory review is more likely to cause additional delay than it is to ameliorate delay problems. See Sussex Drug Prods. v. Kanasco, Ltd., 920 F.2d 1150, 1156 (3d Cir. 1990) (“The interlocking factual relationship of the various counts leading to the likelihood that a subsequent appeal would again seek review of the issues presented here also suggests that it was not in the interests of sound judicial administration for the district court to certify this judgment as final.”).

We are sympathetic to the Jewel plaintiffs’ desire to bring at least part of this case to a close. But awaiting a decision on a single claim, which is not a linchpin claim either factually

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or legally, does not advance this result. In fact, the result of this appeal has been to bring the district court proceedings to a halt. Both sides point fingers as to why no final decision has been reached. We do not take sides in that debate, except to say that the parties’ and judicial resources would be better spent obtaining a final judgment on all of the claims, instead of detouring to the court of appeals for a piecemeal resolution of but one sliver of the case.

CONCLUSION

Because the appeal does not meet the requirements of Rule 54(b), we lack jurisdiction over the appeal. The government’s motion to dismiss is granted, and the case is remanded to the district court for further proceedings.

CERTIFICATION REVERSED; APPEAL DISMISSED; CASE REMANDED.

Each party shall bear its own costs on appeal.

 
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United States District Court For the Northern District of California

1

2

3

4

5

6

7

8

9

IN THE UNITED STATES DISTRICT COURT

10 FOR THE NORTHERN DISTRICT OF CALIFORNIA
11

12 CAROLYN JEWEL, ET AL.,

13

Plaintiffs,

No. C 08-04373 JSW

14 v.

15 NATIONAL SECURITY AGENCY, ET AL.,

16

Defendants.

17

18 /
19

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS’ CROSSMOTION

20

Now before the Court is the motion for summary judgment filed by Defendants National

21 Security Agency, United States, Department of Justice, Paul M. Nakasone, Donald J. Trump,

22 William Barr, and Daniel Coats, in their official capacities (collectively, “Defendants”) and the

23 cross-motion to proceed to resolution on the merits filed by Plaintiffs Carolyn Jewel, Tash

24 Hapting, Young Boon Hicks, as executrix of the estate of Gregory Hicks, Erik Knutzen, and

25 Joice Walton, on behalf of themselves and all other individuals similarly situated (“Plaintiffs”).

26

Having considered the parties’ papers, including Defendants’ classified submissions,

27 and the parties’ arguments, the Court GRANTS Defendants’ motion for summary judgment and

28 DENIES Plaintiffs’ cross-motion for summary judgment.

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United States District Court For the Northern District of California

1

BACKGROUND

2 A. Factual Procedural Background.

3

This case is one of many arising from claims that the federal government, with the

4 assistance of major telecommunications companies, conducted widespread warrantless dragnet

5 communications surveillance of United States citizens following the attacks of September 11,

6 2001. On September 18, 2008, Plaintiffs filed this putative class action on behalf of themselves

7 and a class of similarly situated persons described as “millions of ordinary Americans . . . who

8 use[] the phone system or the Internet” and “a class comprised of all present and future United

9 States persons who have been or will be subject to electronic surveillance by the National

10 Security Agency without a search warrant or court order since September 12, 2001.”

11 (Complaint at ¶¶ 1, 7, and 9.) The Court is now faced with the challenge of determining

12 whether, as Plaintiffs describe it, the data and metadata collection programs may violate

13 Plaintiffs’ remaining statutory protections afforded them by the Wiretap Act and the Electronic

14 Communications Privacy Act or the Stored Communications Act. Further, the Court is tasked

15 with the preliminary question whether the Plaintiffs may maintain their claims based on the

16 evidence of their standing and the potential that continued litigation may imperil national

17 security.

18

According to the allegations in the Complaint, a program of dragnet surveillance (the

19 “Program”) was first authorized by Executive Order of the President on October 4, 2001. (Id. at

20 ¶¶ 3, 39.) Under this Program (and subsequently under statutory authorities) the NSA

21 undertook the collection of non-content telephony and Internet metadata in bulk, and the

22 contents of certain Internet communications. (See id. at ¶¶ 3-13, 39; see also Dkt. No. 389,

23 Declaration of Michael S. Rogers (“Rogers Decl.”) ¶¶ 40, 47-48, 51-52.) Plaintiffs allege that,

24 in addition to eavesdropping on or reading specific communications, Defendants have

25 “indiscriminately intercepted the communications content and obtained the communications

26 records of millions of ordinary Americans as part of the Program authorized by the President.”

27 (Complaint ¶ 7.) The core component of the Program is a nationwide network of sophisticated

28 communications surveillance devices attached to the key facilities of various

2

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1 telecommunications companies that carry Americans’ Internet and telephone communications.

2 (Id. at ¶¶ 8, 42.) Plaintiffs allege that Defendants have unlawfully solicited and obtained the

3 private telephone and internal transactional records of millions of customers of the

4 telecommunications companies, including records indicating who the customers communicated

5 with, when those communications took place and for how long, among other sensitive

6 information. Plaintiffs allege these records include both domestic and international

7 communications. (Id. at ¶ 10.) Plaintiffs sue Defendants “to enjoin their unlawful acquisition

8 of the communications and records of Plaintiffs and class members, to require the inventory and

9 destruction of those that have already been seized, and to obtain appropriate statutory, actual,

10 and punitive damages to deter future illegal surveillance.” (Id. at ¶ 14.)

11

Plaintiffs originally alleged seventeen counts against Defendants: violation of the

12 Fourth Amendment (counts 1 and 2); violation of the First Amendment (counts 3 and 4);

13 violation of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. §§ 1809, 1810

14 (counts 5 and 6); violation of the Wiretap Act, 18 U.S.C. § 2511(1)(a), (b), and (d) (counts 7

15 through 9); violation of the Electronic Communications Privacy Act or the Stored

16 Communications Act, 18 U.S.C. § 2703(a), (b), and (c) (counts 10 through 15); violation of the

17 Administrative Procedure Act, 5 U.S.C. § 701 et seq. (count 16); and violation of separation of

18 powers (count 17).

19

After the Complaint was filed on September 18, 2008, Defendants moved to dismiss and

20 alternatively sought summary judgment as to all claims. Defendants argued that the Court

21 lacked jurisdiction over the statutory claims because the Government had not waived its

22 sovereign immunity. Defendants moved for summary judgment on the remaining claims based

23 primarily on the contention that the information necessary to litigate the claims was properly

24 subject to the state secrets privilege.

25

The district court, the Honorable Vaughn R. Walker presiding, dismissed the claims

26 without leave to amend based on the finding that Plaintiffs had failed to make out the prima

27 facie allegations necessary to establish standing. (Dkt. No. 57.)

28

3

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United States District Court For the Northern District of California

1

On appeal, the Ninth Circuit Court of Appeals reversed the district court’s dismissal of

2 the Complaint on the ground of lack of standing. The appeals court concluded that, at the

3 pleadings stage, “Jewel [had] alleged a sufficiently concrete and particularized injury. Jewel’s

4 allegations are highly specific and lay out concrete harms arising from the warrantless

5 searches.” See Jewel v. National Security Agency, 673 F.3d 902, 909-10 (9th Cir. 2011).

6 Although the appellate court remanded on the basis that it was premature to dismiss premised

7 upon lack of standing, the court noted that “procedural, evidentiary, and substantive barriers”

8 might ultimately doom Plaintiffs’ proof of standing. See id. at 911. The court remanded “with

9 instructions to consider, among other claims and defenses, whether the government’s assertion

10 that the state secrets privilege bars this litigation.” Id. at 913-14.

11

Upon remand, Plaintiffs filed a motion for partial summary adjudication urging the

12 Court to reject Defendants’ state secret defense. Defendants cross-moved to dismiss on the

13 basis of sovereign immunity for the statutory claims and for summary judgment on the assertion

14 of the state secrets privilege.

15

On July 23, 2013, this Court granted Plaintiffs’ motion for partial summary adjudication

16 by rejecting the state secrets defense as having been displaced by the statutory procedure

17 prescribed in 50 U.S.C. Section 1806(f) of FISA. (Dkt. No. 153.) The Court granted

18 Defendants’ motions to dismiss Plaintiffs’ claims for damages under FISA and all statutory

19 claims for injunctive relief on the basis of sovereign immunity. Further, the Court reserved

20 ruling on the Defendants’ motions for summary judgment on the remaining non-statutory

21 claims.

22

On July 25, 2014, Plaintiffs moved for partial summary judgment on their Fourth

23 Amendment claims and on September 29, 2014, Defendants cross-moved on the threshold issue

24 of standing and on the merits of the Fourth Amendment claim. On February 10, 2015, this

25 Court denied Plaintiffs’ motion and granted Defendants’ motion for partial summary judgment

26 on Plaintiffs’ Fourth Amendment claims. (Dkt. No. 321.) Relying on both the public record

27 and Defendants’ classified submissions, the Court found that Plaintiffs had failed to establish a

28 sufficient factual basis to assert they had standing to sue under the Fourth Amendment

4

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United States District Court For the Northern District of California

1 regarding the possible interception of their Internet communications. Further, the Court found

2 that the Fourth Amendment claim would otherwise have to be dismissed because even if

3 Plaintiffs could establish standing, such a potential claim would have to be dismissed on the

4 basis that any possible defenses would require the impermissible disclosure of state secret

5 information.

6

On May 20, 2015, this Court granted Defendants’ motion for entry of judgment under

7 Federal Rule of Civil Procedure 54(b) on the basis that the threshold issue of standing and its

8 adjudication in the Fourth Amendment context was a final determination and no just reason

9 existed for delay in entering final judgment on the constitutional claim. (Dkt. No. 327.)

10

Plaintiffs appealed that ruling, and on December 18, 2015, the Ninth Circuit, dismissed

11 the appeal, reversed the certification, and remanded to this Court. (Dkt. No. 333.) The

12 appellate court found that the severable claim of liability under the Fourth Amendment did not

13 encompass all plaintiffs or defendants or all remaining claims and therefore the piecemeal

14 resolution of individual issues did not satisfy the requirements of Rule 54(b). The Ninth Circuit

15 remanded with instructions to expend the parties’ and the district court’s resources in an effort

16 to obtain a final and comprehensive judgment of this entire matter.

17

Immediately upon remand, on February 19, 2016, this Court lifted the stay of discovery

18 on the remaining statutory claims and admonished the parties to seek resolution of all remaining

19 matters by summary adjudication on the merits, with the benefit of any potentially available

20 discovery. (Dkt. No. 340.) The Court permitted Plaintiffs to serve discovery requests limited to

21 the issue of their standing to pursue the remaining statutory claims. The Court directed

22 Defendants to file its unclassified objections and responses to Plaintiffs’ requests in the public

23 record, and to submit classified documents and information responsive to Plaintiffs’ discovery

24 requests ex parte and in camera. The Court also tasked the Defendants to marshal all evidence

25 bearing on the issue of Plaintiffs’ standing, even if it had not been specifically requested by

26 Plaintiffs. (Dkt. No. 356.)

27

On August 17, 2018, after having reviewed both the classified and public materials

28 produced and in the record, this Court issued an order requiring the parties to file cross motions

5

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United States District Court For the Northern District of California

1 for summary judgment on the issue of Plaintiffs’ standing or lack of standing as to each of the

2 remaining claims. (Dkt. No. 410.)

3

The currently pending cross-motions are now ripe for resolution.

4 B. Legal Framework Background.

5

In its order dated July 23, 2013, the Court found that, after the Ninth Circuit remanded

6 this Court’s order finding that Plaintiffs lacked standing prior to the proffer of discovery, the

7 Court could utilize the statutory procedure prescribed in 50 U.S.C. Section 1806(f) of FISA

8 (“Section 1806(f)”) in order to address the ongoing litigation. Further, the Court found that the

9 state secrets defense did not require immediate dismissal of the matter. In that order, the Court

10 found that the use of the procedural mechanism established by Section 1806(f) would not

11 automatically result in the summary exclusion of all potentially classified information. Rather

12 than merely permitting the assertion of the state secrets privilege to result in immediate

13 dismissal of this action, the Court has, on numerous occasions, permitted Defendants to supply

14 classified evidence for the Court’s in camera review. See also In re National Security Agency

15 Telecommunications Records Litigation, 564 F. Supp. 2d 1109, 1111 (N.D. Cal. 2008) (“FISA

16 preempts the state secrets privilege in connection with electronic surveillance for intelligence

17 purposes . . . .”). Having found that Section 1806(f) of FISA displaces the state secrets

18 privilege as a procedural mechanism in cases in which electronic surveillance yields potentially

19 sensitive evidence by providing secure procedures under which courts can consider national

20 security evidence, this Court has determined that the application of the state secrets privilege

21 would not automatically apply to summarily exclude litigation of this action.

22

Subsequent to this Court’s determination that FISA preempts the state secrets privilege

23 in connection with electronic surveillance for intelligence purposes, the Ninth Circuit similarly

24 and more recently concluded that “in enacting FISA, Congress displaced the common law

25 dismissal remedy created by the Reynolds state secrets privilege as applied to electronic

26 surveillance within FISA’s purview.” Fazaga v. Federal Bureau of Investigation, 916 F.3d

27 1202, 1230 (9th Cir. 2019). The court held that the electronic surveillance claims brought by

28 the plaintiffs in that case were “not subject to outright dismissal at the pleading stage,” and

6

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United States District Court For the Northern District of California

1 remanded so that the district court could employ the procedures established by Section 1806(f)

2 to review evidence over which Defendants had asserted the state secrets privilege. Id. at 1226,

3 1251. This Court has, in the lengthy course of this case, employed those procedures.

4

Now, having required briefing on the remaining statutory claims and having required the

5 proffer of evidence regarding standing from both Plaintiffs and Defendants, both public and

6 classified, the Court may determine the full extent of the threshold legal issue regarding whether

7 Plaintiffs have standing to sue and the determination, regardless whether Plaintiffs have

8 standing to sue, if the Court may proceed to the merits of this case. As discussed at greater

9 length in Section II of the Court’s Supplemental Classified Order Granting Defendants’ Motion

10 for Summary Judgment and Denying Plaintiffs’ Cross-Motion (“Classified Order”) filed

11 herewith, after over ten years of litigation and multiple disclosures, the Court accepts the

12 representation of the Defendants that they are unable to defend the litigation or to pursue it to

13 resolution on the merits without grave risk to the national security.

14

ANALYSIS

15 A. Legal Standard on Motion for Summary Judgment.

16

A principal purpose of the summary judgment procedure is to identify and dispose of

17 factually unsupported claims. Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986).

18 Summary judgment is proper when the “pleadings, depositions, answers to interrogatories, and

19 admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

20 any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.

21 Civ. P. 56(a). “In considering a motion for summary judgment, the court may not weigh the

22 evidence or make credibility determinations, and is required to draw all inferences in a light

23 most favorable to the non-moving party.” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.

24 1997).

25

The party moving for summary judgment bears the initial burden of identifying those

26 portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine

27 issue of material fact. Celotex, 477 U.S. at 323; see also Fed. R. Civ. P. 56(c). An issue of fact

28 is “genuine” only if there is sufficient evidence for a reasonable fact finder to find for the non-

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1 moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is

2 “material” if it may affect the outcome of the case. Id. at 248. Once the moving party meets its

3 initial burden, the non-moving party must go beyond the pleadings and, by its own evidence,

4 “set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).

5

In order to make this showing, the non-moving party must “identify with reasonable

6 particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275,

7 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)

8 (stating that it is not a district court’s task to “scour the record in search of a genuine issue of

9 triable fact”); see also Fed. R. Civ. P. 56(e). If the non-moving party fails to point to evidence

10 precluding summary judgment, the moving party is entitled to judgment as a matter of law.

11 Celotex, 477 U.S. at 323; see also Fed. R. Civ. P. 56(e)(3).

12 B. Legal Standard on Threshold Issue of Standing.

13

“[T]here can be no genuine issue as to any material fact” where a party “fails to make a

14 showing sufficient to establish the existence of an element essential to that party’s case, and on

15 which [it bears] . . . the burden of proof.” Celotex, 477 U.S. at 322. Standing is “an essential

16 . . . part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife,

17 504 U.S. 555, 560 (1992). In order for Plaintiffs to establish Article III standing, they must

18 show they: “(1) suffered injury in fact, (2) that is fairly traceable to the challenged conduct of

19 the [Defendants], (3) that is likely to be redressed by a favorable judicial decision.” Spokeo,

20 Inc. v. Robins, __ U.S. __, 136 S. Ct. 1540, 1547 (2016) (citing Lujan, 504 U.S. at 650-61).

21 Plaintiffs bear the burden of proving the existence of standing to sue. See, e.g., United States v.

22 Hays, 515 U.S. 737, 743 (1995). Plaintiffs must be able to establish standing for each claim and

23 for each form of relief. See, e.g., DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006);

24 Davidson v. Kimberly Clark, 889 F.3d 956, 967 (9th Cir. 2018).

25

“In other words, plaintiffs here must show their own metadata was collected by the

26 government.” Obama v. Klayman, 800 F.3d 559, 562 (D.C. Cir. 2015) (citations omitted;

27 emphasis in original); see also Halkin v. Helms, 690 F.2d 977, 999-1000 (D.C. Cir. 1982)

28 (“[T]he absence of proof of actual acquisition of appellants’ communications is fatal to their

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1 watchlisting claims.”) Because a demonstration of standing is an “indispensable part of their

2 case,” and in order to prevail on their motion for summary judgment, Plaintiffs must support

3 their allegations of standing “in the same way as any other matter on which [they] bear the

4 burden of proof, i.e., with the manner and degree of evidence required at the successive stages

5 of the litigation.” Bras v. Cal. Pub. Utils. Comm’n, 59 F.3d 869, 872 (9th Cir. 1995) (quoting

6 Lujan, 504 U.S. at 561). Plaintiffs must proffer admissible evidence establishing both their

7 standing as well as the merits of their claims. See Fed. R. Civ. P. 56(c); see also In re Oracle

8 Corp. Sec. Litig., 627 F.3d 376, 385 (9th Cir. 2010) (holding that the court’s ruling on summary

9 judgment must be based only on admissible evidence); see also Orr v. Bank of America NT &

10 SA, 285 F.3d 764, 773 (9 th Cir. 2001) (citing Fed. R. Evid. 901(a)) (holding that a trial court

11 may only consider admissible evidence on ruling on a motion for summary judgment and

12 authentication is a “condition precedent to admissibility”). If Plaintiffs are unable to make a

13 showing sufficient to establish an essential element of their claim on which they bear the burden

14 at trial, summary judgment must be granted against them. See Celotex Corp., 477 U.S. at 322.

15

“To establish Article III Standing, an injury must be ‘concrete, particularized, and actual

16 or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’”

17 Clapper v. Amnesty International USA, 568 U.S. 398, 409 (2013) (“Clapper”) (quoting

18 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)). “Although imminence is

19 concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to

20 ensure that the alleged injury is not too speculative for Article III purposes – that the injury is

21 certainly impending.” Id. (citing Lujan, 504 U.S. at 565 n.2) (emphasis in original). Thus, the

22 Supreme Court has “repeatedly reiterated that ‘the threatened injury must be certainly

23 impending to constitute injury in fact,’ and that ‘[a]llegations of possible future injury’ are not

24 sufficient.” Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (emphasis in

25 original)).

26

In order to establish standing on the remaining statutory grounds, Plaintiffs must be able

27 to show that they have suffered an injury in fact that is (1) “concrete [and] particularized,” (2)

28 “fairly traceable to the challenged action[s]” of the defendants, and (3) “redressable by a

9

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1 favorable ruling.” Clapper, 568 U.S. at 409. In order to demonstrate that Plaintiffs have

2 suffered the requisite injury in fact, Plaintiffs must, using publicly available facts, adduce

3 admissible evidence that the contents of their communications or the metadata regarding those

4 communications were subject to the intelligence-collection activities they challenge in this case.

5 Plaintiffs must demonstrate that they “personally suffered a concrete and particularized injury in

6 connection with the conduct about which [they] complain.” Trump v. Hawaii, 138 S. Ct. 2392,

7 2416 (2018); see also Clapper, 568 U.S. at 411 (“[R]espondents fail to offer any evidence that

8 their communications have been monitored under § 1881a, a failure that substantially

9 undermines their standing theory.”); Halkin, 690 F.2d at 999-1000 (holding that the absence of

10 proof of actual acquisition of appellants’ communications was fatal to their claims).

11

In Clapper, the Court found that allegations that plaintiffs’ communications would be

12 intercepted were too speculative, attenuated, and indirect to establish injury in fact that was

13 fairly traceable to the governmental surveillance activities. 568 U.S. at 408-13. The Clapper

14 Court held that plaintiffs lacked standing to challenge the NSA’s surveillance under FISA

15 because their “highly speculative fear” that they would be targeted by surveillance relied on a

16 “speculative chain of possibilities” insufficient to establish a “certainly impending” injury. Id.

17

For their claim under the Wiretap Act, Plaintiffs must demonstrate an injury-in-fact

18 occurred for each and every plaintiff where any communication traveling on the Internet

19 backbone was intercepted, copied, or redirected, diverting it from its normal course. See

20 George v. Carusone, 849 F. Supp. 159, 163 (D. Conn. 1994) (quoting United States v.

21 Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992), cert. denied, 506 U.S. 847 (1992)). For a claim

22 under the Stored Communications Act, Plaintiffs must demonstrate an “injury from the

23 collection, and maintenance in a government database, of records relating to them.” American

24 Civil Liberties Union v. Clapper, 785 F.3d 787, 801 (2d Cir. 2015); see also Konop v. Hawaiian

25 Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002) (construing “intercept” in light of ordinary

26 meaning, i.e.,, “to stop, or interrupt in progress or course before arrival.”) (citation omitted).

27 ///

28 ///

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1 C. Legal Standard on State Secrets Privilege.

2

The state secrets privilege has two applications: as a rule of evidentiary privilege,

3 barring only the secret evidence from exposure during litigation, and as a rule of non-

4 justiciability, when the subject matter of the lawsuit is itself a state secret, necessitating

5 dismissal. See Fazaga, 916 F.3d at 1227; see also American Civil Liberties Union v. National

6 Security Agency, 493 F.3d 644, 650 n.2 (6th Cir. 2007). The first application of evidentiary

7 withholding can serve to remove only certain specific pieces of evidence or can be applied to

8 compel the removal of a sufficiently broad swath of evidence which may have the consequence

9 of requiring dismissal of the entire suit. Such a dismissal may be necessitated by the instances

10 in which the removal of evidence disables a plaintiff from the ability to establish the prima facie

11 elements of a claim without resort to privileged information or instances in which the removed

12 evidence bars the defendant from establishing a defense. See Kasza v. Browner, 133 F.3d 1159,

13 1166 (9th Cir. 1998).

14

Once documents pursuant to a successful claim of privilege are withheld, the case may

15 proceed with the omission of the secret or closely entangled evidence. Alternatively, if

16 application of the state secrets bars too much, the court may be required to dismiss the action in

17 its entirety. Such instances include when, without the secret evidence, a plaintiff is unable to

18 prove the prima facie elements of a claim with nonprivileged evidence. See id. Or the privilege

19 may apply to bar information that would otherwise give the defendant a valid defense to the

20 claim, thus requiring dismissal. See id. Lastly, the court may be compelled to dismiss when,

21 although the claims and defenses may be stated without reference to privileged evidence, “it

22 may be impossible to proceed with the litigation because – privileged evidence being

23 inseparable from nonprivileged information that will be necessary to the claims or defenses –

24 litigating the case to a judgment on the merits would present an unacceptable risk of disclosing

25 state secrets.” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1083 (9th Cir. 2009) (en

26 banc) (citations omitted); see also Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 279-80

27 (4th Cir. 1980) (en banc) (per curiam) (Phillips, J., specially concurring and dissenting)

28 (concluding that “litigation should be entirely foreclosed at the outset by dismissal of the

11

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1 action” if it appears that “the danger of inadvertent compromise of the protected state secrets

2 outweighs the public and private interests in attempting formally to resolve the dispute while

3 honoring the privilege”).

4

Alternatively, the state secrets privilege may be invoked to bar litigation of the matter in

5 its entirety where “the trial of which would inevitably lead to the disclosure of matters which

6 the law itself regards as confidential, and respecting which it will not allow the confidence to be

7 violated.” Totten v. United States, 92 U.S. 105, 107 (1875). Where the very subject matter of

8 the lawsuit is a matter of state secret, the action must be dismissed without reaching the

9 question of evidence. See Al-Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190, 1197

10 (9th Cir. 2007) (“Al-Haramain”) (citations omitted); see also Sterling v. Tenet, 416 F.3d 338,

11 348 (4th Cir. 2005) (holding that dismissal is proper where “sensitive military secrets will be so

12 central to the subject matter of the litigation that any attempt to proceed will threaten disclosure

13 of the privileged matters.”).

14 D. Analysis of Plaintiffs’ Standing.

15

The Court finds that two of the required elements for standing are at issue at this

16 procedural posture: the question whether any individual plaintiff suffered any concrete and

17 particularized injury as well as the issue whether any potential injury could possibly be found to

18 be redressable by a favorable judgment. The Court addresses both elements in order.

19

1. Plaintiffs’ Evidentiary Proffer of Their Alleged Injury.

20

Throughout the pendency of this action, Plaintiffs have consistently argued that they

21 have suffered injury by the creation of a large, untargeted, dragnet surveillance program

22 designed to “intercept all or substantially all of its customers’ communications, . . . [which]

23 necessarily inflicts a concrete injury that affects each customer in a distinct way, depending on

24 the content of that customer’s communications and the time that customer spends using AT&T

25 services.” Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 1001 (N.D. Cal. 2006). In this matter,

26 the Ninth Circuit has held that although the harm alleged by Plaintiffs is widely shared, that

27 does not necessarily render it a generalized grievance. See Jewel, 673 F.3d at 909-10 (“[W]e

28

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1 conclude that Jewel alleged a sufficiently concrete and particularized injury, Jewel’s allegations

2 are highly specific and lay out concrete harms arising from the warrantless searches.”).

3

However, at the summary judgment stage where their allegations must be supported by

4 specific facts, Plaintiffs continue to maintain that the NSA’s surveillance programs must have

5 been comprehensive to be effective. Plaintiffs assert that their allegations regarding whether

6 their communications were intercepted in mass surveillance efforts are more likely than not true

7 because of the large, untargeted nature of the program. Precisely this argument was rejected by

8 the court in Obama v. Klayman, in which the court found that the assertions of standing based

9 on mass comprehensive surveillance were too speculative and ultimately unpersuasive. 800

10 F.3d at 567 (holding that plaintiffs’ “assertion that NSA’s collection must be comprehensive in

11 order for the program to be most effective is no stronger than the Clapper plaintiffs’ assertions

12 regarding the government’s motive and capacity to target their communications.”). In the

13 absence of a factual predicate to establish any particular harm on behalf of any specific

14 individual plaintiff, the Court must review and adjudicate the effect of the classified evidence

15 regarding Plaintiffs’ standing to sue. That review and adjudication is contained in the Court’s

16 Classified Order filed herewith.

17

In their attempt to establish the specific factual predicate based on public evidence for

18 their contention that Plaintiffs have, as specific named individuals, been injured by interception

19 of their communications, Plaintiffs rely in large part on the declarations of Mark Klein and

20 James W. Russell and their proffered experts, as well as an additional former AT&T employee

21 to present the relevant operational details of the surveillance program. Just as they had before

22 when contesting the violation of their Fourth Amendment rights, Plaintiffs assert that these

23 declarations support the contention that customers’ communications were the subject of a

24 dragnet seizure and search program, controlled by or at the direction of the Defendants. Having

25 reviewed the factual record in its entirety, the Court finds the Plaintiffs’ evidence does not

26 support this claim.

27

Plaintiffs again rely on the declaration of Klein, a former AT&T technician who

28 executed a declaration in 2006 about his observations involving the creation of a secure room at

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1 the AT&T facility at Folsom Street in San Francisco. (Dkt. No. 84-2, Declaration of Mark

2 Klein (“Klein Decl.”) ¶¶ 8-18.) However, the Court confirms its earlier finding that Klein

3 cannot establish the content, function, or purpose of the secure room at the AT&T site based on

4 his own independent knowledge. See Fed. R. Civ. P. 56(c)(4). The limited knowledge that

5 Klein does possess firsthand does not support Plaintiffs’ contention about the actual operation

6 of the data collection process or the alleged agency role of AT&T. Klein can only speculate

7 about what data were actually processed and by whom in the secure room and how and for what

8 purpose, as he was never involved in its operation. Lastly, the documents attached to Klein’s

9 declaration are not excepted from the hearsay objection on the basis that they are admissible

10 business records. (Dkt. No. 84-3, 84-4, 84-5, 84-6, Klein Decl. Exs. A-C.) The timing of the

11 creation of these attachments indicate that they were not simultaneous records of acts or events

12 that were occurring at or around the time of the documents’ creation. See Fed. R. Evid. 803(6).

13

Plaintiffs again propound the declaration of James Russell who relies on the Klein

14 declaration and attached exhibits with regard to the interconnections between AT&T and other

15 internet providers. (Dkt. No. 84-1, Declaration of James W. Russell ¶¶ 5, 6, 10, 12, 19-22.)

16 Having twice found those exhibits inadmissible for the truth of the matters asserted therein, the

17 Court similarly finds Russell’s proffered conclusions unreliable.

18

To this existing evidentiary record, Plaintiffs now add the declaration of another former

19 technician at AT&T, Phillip Long, who declares that without explanation, “sometime in the first

20 half of the 2000s,” he was directed to reroute AT&T’s Internet backbone connections through

21 the Folsom Street facility, “rather than through the nearest frame relay or ATM switch.” (Dkt.

22 No. 417-5, Declaration of Phillip Long ¶¶ 11, 12.) Long declares that he can offer no

23 engineering or business reason for this reconfiguration. (Id. at ¶ 15.) The addition of Long’s

24 declaration does not serve to corroborate AT&T’s participation in the alleged governmental

25 collection program.

26

Plaintiffs’ previously-disclosed experts, J. Scott Marcus and Dr. Brian Reid, rely upon

27 Klein’s observations and documents to formulate their expert opinions. Just as the Court

28 determined in the context of the Fourth Amendment cross-motions for summary judgment with

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1 regard to the Marcus opinion, the Court finds that these expert conclusions are not based on

2 sufficient facts or data where the underlying declaration is based on hearsay and speculation.

3 For example, Dr. Reid, relying upon the description of the Folsom facility furnished by Klein,

4 offers an opinion about the likelihood that Plaintiffs’ communications “passed through the

5 peering site at AT&T’s Facility . . . along with the rest of the traffic passing over all of the

6 peering-link fibers into which splitters were installed . . . were replicated.” (Dkt. No. 417-6,

7 Declaration of Brian Reid ¶¶ 2, 20-23.) As the Court has found, the evidence relied upon by

8 Plaintiffs’ experts regarding the purpose and function of the secure equipment at AT&T and

9 assumed operational details of the program is not probative as it is not based on sufficient facts

10 or data. See Fed. R. Evid. 702(b).

11

In addition to these experts, Plaintiffs now proffer the opinions of two more experts,

12 Ashkan Soltani and Matthew Blaze. Like the experts earlier proffered by Plaintiffs, Professor

13 Blaze opines that, after review of the Klein declaration and exhibits, he believes “it is highly

14 likely that the [internet] communications of all plaintiffs passed through peering-link fibers

15 connected to the splitter . . . at the AT&T Folsom Street Facility.” (Dkt. No. 417-7, Declaration

16 of Matthew Blaze ¶¶ 2, 11, 41-46.) Again the Court has found that the evidence relied upon by

17 Plaintiffs’ expert regarding the purpose and function of the secure equipment at AT&T and

18 assumed operational details of the program is not probative as it is not based on sufficient facts

19 or data. See Fed. R. Evid. 702(b). Lastly, Plaintiffs proffer Mr. Soltani as an expert who opines

20 that a surveillance network of the type Plaintiffs conjecture would also likely intercept the

21 communications of users of cloud-based email applications such as Google’s gmail or Yahoo

22 mail. (Dkt. No. 417-8, Declaration of Ashkan Soltani ¶ 16.) This unquantified likelihood of

23 interception regarding some users’ email based on the posited Internet surveillance connection

24 points and collection process is insufficient to constitute specific evidence of injury. Further,

25 the premise upon which Mr. Soltani’s opinion derives is not based on sufficient facts or data.

26 See Fed. R. Evid. 702(b).

27

Plaintiffs further make the unsupported allegation that AT&T, Verizon, Verizon

28 Wireless, and Sprint were acting in concert with or as agents of Defendants to produce phone

15

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1 records in bulk.1 Plaintiffs contend that the Government has admitted that these large service

2 providers were participants in the NSA bulk collection of telephony metadata. In support of

3 this contention, Plaintiffs submit a Primary Order issued by the Foreign Intelligence

4 Surveillance Court (“FISC”) authorizing the NSA to collect such bulk data for a 90-day period,

5 from unidentified, redacted telecommunications service providers. (Dkt. No. 417-4,

6 Declaration of Richard R. Weibe, Ex. A at 1.) This redacted order was issued in FISC docket

7 Business Records (“BR”) 10-10 and was declassified and publicly released by the Director of

8 National Intelligence. (Id. at ¶ 3.) Plaintiffs also offer a copy of an excerpt from an NSA

9 Inspector General compliance audit report which includes a letter regarding a non-compliance

10 incident in the telephone call records program. (See id., Ex. B at 28-29.) The excerpt of the

11 report and attached letter were released in response to a Freedom of Information Act (“FOIA”)

12 lawsuit brought by the New York Times against the National Security Administration in 2015.

13 (See id. at ¶ 4.) The letter, filed with the FISC, identifies in the caption the telecommunications

14 companies, including AT&T, Verizon, Verizon Wireless, and Sprint, that were compelled by

15 the Primary Order BR 10-10 to produce records. (Id., Ex. B at 28.)

16

In response, Defendants contend that, although the redacted Primary Order from the

17 FISC (in which the names of the providers were redacted) was authenticated by the

18 Government, the second letter (which purports to identify the names of those providers) has not

19 been authenticated by the Government.2 Because the letter was inadvertently disclosed in an

20

21

1 Plaintiffs have only been able to establish that the Government has admitted to working with Verizon Business Network Systems for a brief period of time, which does not

22

indicate that data from other network providers were ever collected. See Obama, 800 F.3d at 563 (holding that because “plaintiffs are Verizon Wirelesss subscribers and not Verizon

23

Business Network Systems subscribers . . . the facts marshaled by plaintiff do not fully establish that their own metadata was ever collected.”).

24

2 Defendants also argue that the letter has no evidentiary value as it was downloaded

25

by Plaintiffs from the New York Times article written about the FOIA lawsuit. See Schwarz v. Lassen County ex rel. Lassen County Jail, 2013 WL 5425102, at *10 (E.D. Cal. Sept. 27,

26

2013) (“evidence procured off the Internet is adequate for almost nothing” without authentication). However, in response, Plaintiffs proffer the affidavit of an attorney for the

27

New York Times in the FOIA lawsuit, who declares that the excerpt and attached letter were produced by the NSA in August 2015 in that matter. (See Dkt. No. 431, Declaration of

28

David E. McGraw, ¶¶ 2, 5-6.) Mr. McGraw indicates that the attorneys representing the NSA at the Department of Justice notified him that the letter contained in the audit report had

been “inadvertently produced” and had asked for its return. (Id. at ¶ 7.)

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1 unrelated matter and has not been authenticated by the Government, the Court finds it cannot

2 rely on it. See, e.g., Al-Haramain, 507 F.3d at 1205. Further, there has been no waiver of the

3 state secret privilege over the document. The Court accepts Defendants’ representation that

4 whether or not the letter is authentic is itself classified information the disclosure of which

5 could reasonably be expected to cause grave harm to national security. (See also Dkt. No. 422,

6 Notice of Lodging of Classified Materials for In Camera, Ex Parte Review at 2, Declaration of

7 Jonathan Darby, National Security Agency Director of Operations, ¶¶ 16-20.)

8

Lastly, Plaintiffs seek to introduce what is labeled a working draft of a report prepared

9 by the Office of the Inspector General for the National Security Agency (“Draft OIG Report”)

10 with a supporting declaration from Edward Snowden. (Dkt. No. 432, Declaration of Edward J.

11 Snowden, Ex. 1; Dkt. No. 147, Declaration of Richard R. Wiebe, Ex. A.) The Draft OIG Report

12 does not in fact name AT&T or Verizon as participants in any possible collection efforts, it is

13 labeled as a draft, and Defendants do not authenticate the exhibit. Accordingly, the Court finds

14 it cannot rely on it. See, e.g., Al-Haramain, 507 F.3d at 1205. Plaintiffs’ contention that

15 Snowden may authenticate the purported NSA document is not persuasive, either by way of his

16 current declaration or in the future through live testimony. See Orr, 285 F.3d at 773 (holding

17 that a trial court may only consider admissible evidence on ruling on a motion for summary

18 judgment and authentication is a “condition precedent to admissibility”). Further, there has

19 been no waiver of the state secret privilege over the document and Defendants have objected on

20 the basis of the privilege to Plaintiffs’ requests for admissions regarding the authenticity of this

21 document. (Dkt. No. 414-1, Government Defendants’ Supplemental and Revised Response to

22 Plaintiffs’ Revised First Set of Requests for Admission Limited to Standing, at 70-73.)

23

The underlying premise that AT&T worked in the capacity of an agent for Defendants is

24 without factual or substantive evidentiary support. And Plaintiffs have still not adduced

25 admissible evidence of the actual equipment installed in the secure room or the activities

26 conducted there. After review of the entirety of the evidentiary record, the Court finds the

27 propounded evidence is not probative or admissible as to the actual conditions or purposes of

28 the apparatus at the AT&T facility or their role at the time at issue in this case.

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1

The Court finds that Plaintiffs have failed to proffer sufficient admissible evidence to

2 indicate that records of their communications were among those affected by Defendants.

3 Although there are materials in the public record that allude to possible surveillance programs,

4 the Court finds that the “argument that ‘the cat is already out of the bag’ is unsupported by the

5 record and contrary to the government’s” classified submissions. See Military Audit Project v.

6 Casey, 656 F.2d 724, 744-45 (D.C. Cir. 1981). Although in this public order, the Court is

7 unable to address the sum of all evidence relevant to standing, the Court has addressed the

8 classified evidence relating to standing in detail in its Classified Order, filed in conjunction with

9 this one. (See Classified Order Section I.) Although neither the Court nor Defendants can

10 confirm or deny the allegations as made by Plaintiffs in their proffer of evidence in support of

11 standing, the Court addresses the operative, but classified, facts separately in detail.

12

In addition, having reviewed the classified portion of the record, the Court concludes

13 that even if the public evidence proffered by Plaintiffs were sufficiently probative to establish

14 standing, adjudication of the standing issue could not proceed without risking exceptionally

15 grave damage to national security. The details of the alleged data collection process that are

16 subject to the Defendants’ assertion of the state secrets privilege are necessary to address

17 Plaintiffs’ theory of standing as well as to engage in a full and fair adjudication of Defendants’

18 substantive defenses.

19

2. Redressability.

20

Another necessary element to establish Article III standing is the requirement that any

21 concrete and particularized injury be “redressable by a favorable ruling.’” Clapper, 568 U.S. at

22 409. Here, the Court cannot issue a judgment without exposing classified information. And, by

23 evaluating the classified information, the Court has determined that it cannot render a judgment

24 either as to the merits or as to any defense on the issue of standing. Any finding or final

25 judgment would disclose information that might imperil the national security. See, e.g.,

26 Klayman, 800 F.3d at 568 (finding that “the government’s silence regarding the scope of bulk

27 collection is a feature of the program, not a bug.”) (citing Clapper, 568 U.S. at 412 n.4 (“the

28 court’s postdisclosure decision about whether to dismiss the suit for lack of standing would

18

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1 surely signal to the terrorist whether his name was on the list of surveillance targets.”)). The

2 same “considerations apply with equal force here, where the government has sought to maintain

3 a similarly strategic silence regarding the scope of its bulk collection.” Id. In order to issue a

4 dispositive decision on the standing issue, a finding of standing would necessitate disclosure of

5 possible interception of plaintiffs’ communications, thereby signaling injury. Such a disclosure

6 may imperil national security. Any attempt to prove the specific facts of the programs at issue,

7 or to defend against the Plaintiffs’ analysis of the programs would risk disclosure of the

8 locations, sources, methods, assisting providers, and other operational details of Defendants’

9 intelligence-gathering activities. At this advanced procedural posture, the Court is bound to

10 accept the Defendants’ representation that disclosure of these details reasonably could be

11 expected to cause exceptionally grave damage to national security.

12

Even if, utilizing only public evidence, the Plaintiffs could ostensibly plead sufficient

13 facts to support their claim of standing to pursue their remaining statutory causes of action, the

14 Court finds that it faces the intractable problem that proceeding further with this case would

15 cause exceptionally grave harm to the national security. The Court cannot issue any

16 determinative finding on the issue of whether or not Plaintiffs have standing without taking the

17 risk that such a ruling may result in potentially devastating national security consequences. See,

18 e.g., Clapper, 568 U.S. at 412 n.4. Notwithstanding the fact that this Court has thoroughly

19 reviewed all of the evidence submitted with regard to Plaintiffs’ standing, making any

20 determination to address Plaintiffs’ allegations regarding the scope of the data collection

21 program would risk informing adversaries of the specific nature and operational details of the

22 process and scope of Defendants’ participation in the program. Accordingly, the Court finds

23 that Plaintiffs are unable to show either that they have suffered a concrete and particularized

24 injury or that any such potential injury could be redressable by a favorable ruling. As the Ninth

25 Circuit predicted early on in the development of this case, “procedural, evidentiary, and

26 substantive barriers” might ultimately doom Plaintiffs’ proof of standing. Jewel, 673 F.3d at

27 911. This Court found, and the Ninth Circuit has affirmed, that the assertion of the state secrets

28 privilege did not warrant dismissal at the pleadings stage without a thorough and complete

19

Case 4:08-cv-04373-JSW Document 462 Filed 04/25/19 Page 20 of 26

United States District Court For the Northern District of California

1 investigation of the evidence. Jewel, 965 F. Supp. 2d 1090, 1105-06 (N.D. Cal. 2013); Jewel,

2 673 F.3d at 909-10; see also Fazaga, 916 F.3d at 1226, 1232, 1234. However, the Court, after

3 extensive in camera review of the classified materials and a similarly thorough review of the

4 public evidence, finds that making any particularized determination on standing in order to

5 continue with this litigation may imperil the national security.3 The Court also addresses this

6 finding in its Classified Order.

7 E. Defendants’ Assertion of the State Secrets Privilege.

8

The privilege asserted by Defendants here seeks to protect information vital to the

9 national security and may be invoked by the Government where it is shown, “from all the

10 circumstances of the case, that there is a reasonable danger that compulsion of the evidence will

11 expose . . . matters which, in the interest of national security, should not be divulged.” United

12 States v. Reynolds, 345 U.S. 1, 6-7 (1953).

13

The analysis of whether the state secrets privilege applies involves three distinct steps.

14 First, the Court must ascertain whether the procedural requirements for invoking the privilege

15 have been satisfied. Jeppesen, 614 F.3d at 1080 (quoting Al-Haramain, 507 F.3d at 1202).

16 Second, the Court must make an independent determination whether the information is

17 privileged. In determining whether the privilege attaches, the Court may consider a party’s

18 need for access to the allegedly privileged materials. See Reynolds, 345 U.S. at 11. Lastly, the

19 “ultimate question to be resolved is how the matter should proceed in light of the successful

20 privilege claim.” El-Masri v. United States, 479 F.3d 296, 304 (4th Cir. 2007).

21

In order to satisfy the requirements of the first step, the Government must submit a

22 “formal claim of privilege, lodged by the head of the department which has control over the

23 matter, after actual personal consideration by that officer.” Id. (quoting Reynolds, 345 U.S. at

24 7-8). The assertion of privilege “must by presented in sufficient detail for the court to make an

25

26

3 After thorough review of the evidence submitted in relation to Plaintiffs’ statutory

27

claims and marshaled by Defendants to satisfy the Court’s broader order regarding the threshold standing issue, the Court is satisfied that its analysis of the Fourth Amendment

28

standing to sue remains law of the case and rests on solid legal ground. See Jewel v. National Security Agency, 2015 WL 545925, at *5 (N.D. Cal. Feb. 10, 2015). Therefore,

Plaintiffs’ request to reconsider that decision is DENIED.

20

Case 4:08-cv-04373-JSW Document 462 Filed 04/25/19 Page 21 of 26

United States District Court For the Northern District of California

1 independent determination of the validity of the claim of privilege and the scope of the evidence

2 subject to the privilege.” Id. Such an invocation must be made only after “serious, considered

3 judgment, not simply [as] an administrative formality.” United States v. W.R. Grace, 526 F.3d

4 499, 507-08 (9th Cir. 2008) (en banc). “The formal claim must reflect the certifying official’s

5 personal judgment . . . [and] must be presented in sufficient detail for the court to make an

6 independent determination of the validity of the claim of privilege and the scope of the evidence

7 subject to the privilege.” Jeppesen, 614 F.3d at 1080.

8

The Court finds that this step has been satisfied by the submission of the public

9 declaration of the Principal Deputy Director of National Intelligence, serving as Acting Director

10 of National Intelligence and acting head of the Intelligence Community, following her personal

11 consideration of the matters at issue here. (See Dkt. No. 388-2, Declaration of Principal Deputy

12 Director of National Intelligence, ¶¶ 8, 19; Dkt. No. 104, Declaration of James R. Clapper ¶ 2;

13 Dkt. No. 168, Declaration of James R. Clapper ¶ 2.) This claim of privilege is further supported

14 by the declaration of Admiral Michael Rogers, in which he explains the nature of the evidence

15 itself and details the specific harms that could be expected to result from disclosure of the

16 information. (See Dkt. No. 389, Rogers Decl. ¶¶ 2, 331; see also Classified Order at n.1.)

17

In order to satisfy the requirements of the second step, the Court is able to assess

18 independently, based on both the public and classified submissions by Defendants, and from all

19 of the evidence in the record accumulated over the years of litigating this case, that there is a

20 reasonable danger the disclosure of the information at issue here would be harmful to national

21 security. See, e.g., Jewel, 965 F. Supp. 2d at 1103; Jewel, 2015 WL 545925, at *1, *5. The

22 Court must “sustain a claim of privilege when it is satisfied, ‘from all the circumstances of the

23 case, that there is a reasonable danger that compulsion of the evidence will expose . . . matters

24 which, in the interest of national security, should not be divulged.’” Jeppesen, 614 F.3d at 1081

25 (quoting Reynolds, 345 U.S. at 10). Here, the Court has made “an independent determination

26 whether the information is privileged.” Al-Haramain, 507 F.3d at 1202. In making this

27 determination, the Court must strike the appropriate balance “between protecting national

28 security matters and preserving an open court system.” Id. at 1203. “This inquiry is a difficult

21

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United States District Court For the Northern District of California

1 one, for it pits the judiciary’s search for truth against the Executive’s duty to maintain the

2 nation’s security.” El-Masri, 479 F.3d at 304. In evaluating the need for secrecy, the Court

3 must defer to the Executive on matters of foreign policy and national security. See Jeppesen,

4 614 F.3d at 1081-82. However, the assertion of the state secrets doctrine does not “represent a

5 complete surrender of judicial control over access to the courts.” El-Masri, 479 F.3d at 312.

6 Rather, in order to ensure that the doctrine is not asserted more frequently and sweepingly than

7 necessary, “it is essential that the courts continue critically to examine instances of its

8 invocation.” Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C. Cir. 1983). However, should the Court

9 find that the materials must not be divulged, “the evidence is absolutely privileged, irrespective

10 of the plaintiffs’ countervailing need for it.” See Jeppesen, 614 F.3d at 1081 (citing Reynolds,

11 345 U.S. at 11).

12

The final element of the determination regarding the Government’s assertion of the state

13 secrets privilege is the court answering the ultimate question regarding how the matter should

14 proceed in light of the legitimate claim of privilege. See Jeppesen, 614 F.3d at 1080. “The

15 court must assess whether it is feasible for the litigation to proceed without the protected

16 evidence and, if so, how.” Id. at 1082. When the Government successfully invokes the state

17 secrets privilege, “the evidence is completely removed from the case.” Kasza, 133 F.3d at

18 1166. The court is then tasked with disentangling the nonsensitive information from the

19 privileged evidence. Often, after the privileged evidence is excluded, “the case will proceed

20 accordingly, with no consequences save those resulting from the loss of evidence.” Al-

21 Haramain, 507 F.3d at 1204 (quoting Ellsberg, 709 F.3d at 64). However, there “will be

22 occasions when, as a practical matter, secret and nonsecret information cannot be separated. In

23 some cases, therefore, ‘it is appropriate that the courts restrict the parties’ access not only to

24 evidence which itself risks the disclosure of a state secret, but also those pieces of evidence or

25 areas of questioning which press so closely upon highly sensitive material that they create a

26 high risk of inadvertent or indirect disclosures.’” Jeppesen, 614 F.3d at 1082 (quoting Bareford

27 v. Gen. Dynamics Corp., 973 F.2d 1138, 1143-44 (5th Cir. 1992)); see also Kasza, 133 F.3d at

28 1166 (“[I]f seemingly innocuous information is part of a . . . mosaic, the state secrets privilege

22

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United States District Court For the Northern District of California

1 may be invoked to bar its disclosure and the court cannot order the government to disentangle

2 this information from other [i.e., secret] information.”)

3

Plaintiffs maintain that the Ninth Circuit’s recent decision in Fazaga precludes the Court

4 from dismissing this case on state secrets grounds, and that the Court must use the procedures of

5 Section 1806(f) to decide Plaintiffs’ statutory claims notwithstanding Defendants’ assertions

6 that even a finding on the threshold question of standing will cause grave harm to national

7 security. Fazaga addressed a challenge to an allegedly unlawful FBI counter-terrorism

8 investigation involving electronic surveillance. 916 F.3d at 1210-11. The district court

9 dismissed all but one of plaintiff’s claims at the pleading stage without further discovery based

10 on the Government’s assertion of the state secrets privilege. Id. at 1211. The Ninth Circuit

11 reversed, concluding that Section 1806(f)’s procedures are to be used when “aggrieved persons”

12 challenge the legality of electronic surveillance and that the district court erred by dismissing

13 the case without reviewing the evidence, “including the evidence over which the Attorney

14 General asserted the state secrets privilege, to determine whether the electronic surveillance was

15 lawfully authorized and conducted.” Id. at 1238, 1252.

16

Defendants contend that the ex parte, in camera procedures authorized under Section

17 1806(f) apply only to the determination of whether alleged electronic surveillance was lawful,

18 and not to the threshold determination of whether Plaintiffs are “aggrieved persons” who have

19 been subject to surveillance in the first place. See, e.g., Wikimedia Foundation v. National

20 Security Agency, 335 F. Supp. 3d 772, 786 (D. Md. 2018). In other words, in Defendants’ view,

21 Section 1806(f) displaces the state secrets privilege only as to a determination of lawfulness

22 after Plaintiffs’ standing has been demonstrated using non-classified evidence. The Court notes

23 that in the procedural posture in which Fazaga reached the Ninth Circuit, the plaintiff’s status

24 as an aggrieved person had not yet been tested through discovery. Thus, the Ninth Circuit was

25 not presented with the issue of what to do when, as here, the answer to the question of whether a

26 particular plaintiff was subjected to surveillance – i.e., is an “aggrieved person” under Section

27 1806(f) – is the very information over which the Government seeks to assert the state secrets

28 privilege. Instead, in remanding for further proceedings, the court in Fazaga held that “[t]he

23

Case 4:08-cv-04373-JSW Document 462 Filed 04/25/19 Page 24 of 26

United States District Court For the Northern District of California

1 complaint’s allegations are sufficient if proven to establish that Plaintiffs are ‘aggrieved

2 persons.’” Id. at 1216 (emphasis added).

3

This Court owes significant deference to the Executive’s determination that, as

4 described at oral argument, even a simple “yea or nay” as to whether Plaintiffs have standing to

5 proceed on their statutory claims would do grave harm to national security. See Jeppesen, 614

6 F.3d at 1081-82 (“In evaluating the need for secrecy, ‘we acknowledge the need to defer to the

7 Executive on matters of foreign policy and national security and surely cannot legitimately find

8 ourselves second guessing the Executive in this arena.’”) (quoting Al-Haramain, 507 F.3d at

9 1203); see also Al-Haramain, 507 F.3d at 1203 (“[A]t some level, the question whether Al-

10 Haramain has been subject to NSA surveillance may seem, without more, somewhat innocuous

11 . . . . But our judicial intuition about this proposition is no substitute for documented risks and

12 threats posed by the potential disclosure of national security information.”). The Court has not

13 “accept[ed] at face value the government’s claim or justification of privilege” on the issue of

14 Plaintiffs’ standing to pursue their remaining statutory claims, but instead has reviewed all of

15 the classified evidence submitted by Defendants in response to Plaintiffs’ discovery requests

16 and this Court’s orders. See id. That comprehensive review distinguishes this case from

17 Fazaga, and in fact from any other case involving state secrets cited by the parties or known to

18 this Court. Under the unique procedural posture of this case, and where the very issue of

19 standing implicates state secrets, the Court finds that it is not foreclosed under the holding in

20 Fazaga and Section 1806(f) from now dismissing on state secrets grounds.

21

Here, having reviewed the materials submitted and having considered the claims alleged

22 and the record as a whole, the Court finds that, just as they did when disputing the violation of

23 the Fourth Amendment in the parties’ previous cross-motions for summary judgment,

24 Defendants have again successfully invoked the state secrets privilege. This Court has

25 previously found and maintains that, given the multiple public disclosures of information

26 regarding the surveillance program, the very subject matter of the suit does not constitute a state

27 secret. However, at this procedural posture and with the development of a full and extensive

28

24

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United States District Court For the Northern District of California

1 record on the threshold issue of standing, the Court finds that permitting further proceedings

2 would jeopardize the national security.

3

The Court finds that because a fair and full adjudication of the Plaintiffs’ claims and the

4 Defendants’ defenses would require potentially harmful disclosures of national security

5 information that are protected by the state secrets privilege, the Court must exclude such

6 evidence from the case. See Jeppesen, 614 F.3d at 1083 (holding that “application of the

7 privilege may require dismissal” of a claim if, for example, “the privilege deprives the plaintiff

8 of information needed to set forth a prima facie case, or the defendant of information that would

9 otherwise give the defendant a valid defense to the claim”). Addressing any defenses involves a

10 significant risk of potentially harmful effects any disclosures could have on national security.

11 See Kasza, 133 F.3d at 1166.

12

Having allowed the full development of the record and having reviewed the universe of

13 documents and declarations produced by both parties to this action both publicly and under the

14 procedures of Section 1806(f) of FISA, the Court finds that it has reached the threshold at which

15 it can go no further. The Court accepts the assertion of the state secrets privilege at this

16 procedural juncture to mandate the dismissal of this action. Accordingly, based on both the

17 determination that it cannot rule whether or not Plaintiffs have standing to proceed and that the

18 well-founded assertion of privilege mandates dismissal, the Court GRANTS Defendants’

19 motion for summary judgment and DENIES Plaintiffs’ cross-motion to proceed to resolution on

20 the merits.4

21 F. Plaintiffs’ Request for Additional Discovery and for Discovery Sanctions.

22

Further, having reviewed the universe of classified and public documents produced by

23 Defendants, the Court is satisfied that Defendants have met their discovery obligations.

24 (See Classified Order at 2.) The Court finds that no evidentiary sanction for evidence spoliation

25

26

4 As to all remaining claims, judgment is entered against Government officials in

27

their personal capacities for both damages and equitable relief under the Constitutional and statutory provisions. The personal-capacity claims were stayed pending “resolution of any

28

dispositive motion by the Government Defendants.” (Order granting stipulation, Dkt. No. 93 at 1-2.) Having granted summary judgment in favor of Defendants, all personal-capacity

claims are resolved in Defendants’ favor as well.

25

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United States District Court For the Northern District of California

1 is warranted and there is no basis to grant Plaintiffs’ request to continue the resolution of the

2 cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56(d). In

3 light of the Court’s determination that this action cannot proceed further, under Section 1806(f)

4 or otherwise, disclosure to the Plaintiffs of the classified evidence submitted by Defendants is

5 not “necessary to make an accurate determination of the legality of the surveillance.” 50 U.S.C.

6 § 1806(f). Accordingly, Plaintiffs’ renewed requests for access to the classified evidence

7 Defendants have submitted, for a further declassification review of that evidence, and for

8 further discovery or evidentiary sanctions are DENIED.

9

CONCLUSION

10

For the foregoing reasons, the Court GRANTS Defendants’ motion for summary

11 judgment and DENIES Plaintiffs’ cross-motion for summary judgment. The Court shall issue a

12 separate classified order which shall be preserved in the Court’s sealed record pending any

13 further proceeding. All classified evidence lodged with the Court by Defendants shall also be

14 so preserved in the sealed record. A separate judgment will issue and the Clerk shall close the

15 file.

16

17

IT IS SO ORDERED.

18 Dated: April 25, 2019 19

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

20

21

22

23

24

25

26

27

28

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31
1327601.v1
32

ELECTRONIC FRONTIER FOUNDATION CINDY COHN (SBN 145997) cindy@eff.org DAVID GREENE (SBN 160107) LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303) JAMES S. TYRE (SBN 083117) ANDREW CROCKER (SBN 291596) JAMIE L. WILLIAMS (SBN 279046) AARON MACKEY (SBN 286647) 815 Eddy Street San Francisco, California 94109 Telephone: (415) 436-9333 Facsimile: (415) 436-9993
THOMAS E. MOORE III (SBN 115107) tmoore@rroyselaw.com ROYSE LAW FIRM 149 Commonwealth Dr., Ste 1001 Menlo Park, CA 94025 Telephone: (650) 813-9700 Facsimile: (650) 813-9777
Attorneys for Plaintiffs

KEKER, VAN NEST & PETERS LLP RACHAEL E. MENY (SBN 178514) rmeny@keker.com BENJAMIN BERKOWITZ (SBN 244441) bberkowitz@keker.com PHILIP J. TASSIN (SBN 287787) ptassin@keker.com 633 Battery Street San Francisco, California 94111 Telephone: (415) 391-5400 Facsimile: (415) 397-7188
LAW OFFICE OF RICHARD R. WIEBE RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net 44 Montgomery St., Ste. 650 San Francisco, California 94104 Telephone: (415) 433-3200 Facsimile: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) Antaramian@sonic.net LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

CAROLYN JEWEL, TASH HEPTING, YOUNG BOON HICKS, as executrix of the estate of GREGORY HICKS, ERIK KNUTZEN and JOICE WALTON, on behalf of themselves and all other similarly situated,
Plaintiffs,
v.
NATIONAL SECURITY AGENCY, et al.,
Defendants.

Case No. 08-cv-04373-JSW PLAINTIFFS’ NOTICE OF APPEAL AND REPRESENTATION STATEMENT

PLAINTIFFS’ NOTICE OF APPEAL AND REPRESENTATION STATEMENT Case No. 08-cv-04373-JSW

Case 4:08-cv-04373-JSW Document 465 Filed 05/20/19 Page 2 of 5

1

PLEASE TAKE NOTICE that all Plaintiffs hereby appeal to the United States Court of

2 Appeals for the Ninth Circuit from the Final Judgment entered in this action on April 25, 2019

3 (Dkt. No. 464) and all orders subsumed therein, including but not limited to: the Court’s

4 February 10, 2015 Order Granting Defendants’ Motion for Partial Summary Judgment (Dkt. No.

5 321), the Court’s June 13, 2018 Order Denying Plaintiffs’ Motion for Access to Classified

6 Discovery Materials (Dkt. No. 404), the Court’s August 28, 2018 Order Regarding Parties’ Joint

7 Discovery Letter Brief (Dkt. No. 412), the Court’s April 25, 2019 Order Granting Defendants’

8 Motion for Summary Judgment and Denying Plaintiffs’ Cross-Motion to Proceed to the Merits

9 (Dkt. No. 462), and the Court’s April 25, 2019 Classified Order (Dkt. No. 463).

10

Plaintiffs’ Representation Statement is attached to this Notice as required by Ninth Circuit

11 Rule 3-2(b).

12

13 Dated: May 20, 2019
14 15 16 17 18 19 20 21 22 23 24 25 26

By: s/ Aaron Mackey Aaron Mackey
ELECTRONIC FRONTIER FOUNDATION CINDY COHN (SBN 145997) DAVID GREENE (SBN 160107) LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303) JAMES S. TYRE (SBN 083117) ANDREW CROCKER (SBN 291596) JAMIE L. WILLIAMS (SBN 279046) AARON MACKEY (SBN 286647) 815 Eddy Street San Francisco, California 94109 Telephone: (415) 436-9333 Facsimile: (415) 436-9993
KEKER, VAN NEST & PETERS LLP RACHAEL E. MENY (SBN 178514) BENJAMIN BERKOWITZ (SBN 244441) PHILIP J. TASSIN (SBN 287787) 633 Battery Street San Francisco, California 94111 Telephone: (415) 391-5400 Facsimile: (415) 397-7188

27

28

30

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PLAINTIFFS’ NOTICE OF APPEAL AND REPRESENTATION STATEMENT

31

Case No. 08-cv-04373-JSW

32

Case 4:08-cv-04373-JSW Document 465 Filed 05/20/19 Page 3 of 5

1

RICHARD R. WIEBE (SBN 121156)

LAW OFFICE OF RICHARD R. WIEBE

2

44 Montgomery St., Ste 650

San Francisco, California 94104

3

Telephone: (415) 433-3200

Facsimile: (415) 433-6382

4

THOMAS E. MOORE III (SBN 115107)

5

THE MOORE LAW GROUP

149 Commonwealth Dr., Ste. 1001

6

Menlo Park, California 94025

Telephone: (650) 813-9700

7

Facsimile: (650) 813-9777

8

ARAM ANTARAMIAN (SBN 239070)

LAW OFFICE OF ARAM ANTARAMIAN

9

1714 Blake Street

Berkeley, CA 94703

10

Telephone: (510) 289-1626

11 Attorneys for Plaintiffs
12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

2

PLAINTIFFS’ NOTICE OF APPEAL AND REPRESENTATION STATEMENT

31

Case No. 08-cv-04373-JSW

32

Case 4:08-cv-04373-JSW Document 465 Filed 05/20/19 Page 4 of 5

1

REPRESENTATION STATEMENT

2

The undersigned represents Plaintiffs-Appellants Carolyn Jewel, Tash Hepting, Young

3 Boon Hicks (as executrix of the Estate of Gregory Hicks), Erik Knutzen, and Joice Walton and

4 submits this Representation Statement pursuant to Federal Rule of Appellate Procedure 12(b) and

5 Circuit Rule 3-2(b). The following list identifies all parties to the action, and it identifies their

6 respective counsel by name, address, telephone number, and email address where appropriate.

7

8 Dated: May 20, 2019 9

By: s/ Aaron Mackey Aaron Mackey

10

PARTIES

COUNSEL OF RECORD

11 Plaintiffs-appellants Carolyn Jewel, Tash

CINDY COHN cindy@eff.org

Hepting, Young Boon Hicks (as executrix of DAVID GREENE davidg@eff.org

12 the estate of Gregory Hicks), Erik Knutzen, LEE TIEN tien@eff.org

and Joice Walton.

KURT OPSAHL kurt@eff.org

13

JAMES S. TYRE jstyre@eff.org

ANDREW CROCKER andrew@eff.org

14

JAMIE L. WILLIAMS jamie@eff.org

15

AARON MACKEY amackey@eff.org

ELECTRONIC FRONTIER FOUNDATION

16

815 Eddy Street

San Francisco, CA 94109

17

Telephone: (415) 436-9333

18

Fax: (415) 436-9993

19

RICHARD R. WIEBE wiebe@pacbell.net

LAW OFFICE OF RICHARD R. WIEBE

20

44 Montgomery St., Ste. 650

San Francisco, California 94104

21

Telephone: (415) 433-3200

22

Facsimile: (415) 433-6382

23

RACHAEL E. MENY rmeny@kvn.com

BENJAMIN W. BERKOWITZ

24

bberkowitz@kvn.com

PHILIP J. TASSIN ptassin@kvn.com

25

KEKER, VAN NEST & PETERS LLP

26

633 Battery Street San Francisco, CA 94111

27

Telephone: (415) 391-5400

Fax: (415) 397-7188

28

30

3

PLAINTIFFS’ NOTICE OF APPEAL AND REPRESENTATION STATEMENT

31

Case No. 08-cv-04373-JSW

32

Case 4:08-cv-04373-JSW Document 465 Filed 05/20/19 Page 5 of 5

1
2
3
4
5
6
7
8 9 Attorneys for Defendants-Appellees
Government Entities and Official-Capacity 10 Individuals: National Security Agency,
Department of Justice, United States of 11 America, President Donald J. Trump,
Director of National Intelligence Daniel 12 Coats, NSA Director Paul M. Nakasone, 13 Attorney General William Barr.
14
15
16
17
18

THOMAS E. MOORE III tmoore@rroyselaw.com ROYSE LAW FIRM 149 Commonweath Dr., Ste 1001 Menlo Park, CA 94025 Telephone: (650) 813-9700 Facsimile: (650) 813-9777
ARAM ANTARAMIAN Antaramian@sonic.net LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626 JOSEPH H. HUNT Assistant Attorney General ANTHONY J. COPPOLINO tony.coppolino@usdoj.gov Deputy Branch Director JAMES J. GILLIGAN james.gilligan@usdoj.gov Special Litigation Counsel RODNEY PATTON rodney.patton@usdoj.gov Senior Trial Counsel JULIA HEIMAN julia.heiman@usdoj.gov Senior Counsel OLIVIA HUSSEY SCOTT olivia.hussey.scott@usdoj.gov Trial Attorney

19

U.S. Department of Justice

20

Civil Division 1100 L Street, N.W.,

21

Room 11200

Washington, 20005

22

Tel: (202) 305-7919

Fax: (202) 616-8470 23 Attorneys for Personal-Capacity Defendants- JAMES R. WHITMAN

24

Appellees: Keith B. Alexander, Michael V. Hayden, George W. Bush, Richard B.

U.S. Department of Justice 1425 New York Ave., N.W.

25 Cheney, David S. Addington, Alberto R. Gonzales, John D. Ashcroft, John M.

Washington, DC 20005 Tel: 202-616-4169

26 McConnell, John D. Negroponte, Michael

Fax: 202-416-4314

Mukasey 27

Email: james.whitman@usdoj.gov

28

30

4

PLAINTIFFS’ NOTICE OF APPEAL AND REPRESENTATION STATEMENT

31

Case No. 08-cv-04373-JSW

32

 
 ADRMOP,APPEAL,CLOSED,E-Filing
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:08-cv-04373-JSW

Jewel et al v. National Security Agency et al

Date Filed: 09/18/2008

Assigned to: Hon. Jeffrey S. White

Date Terminated: 04/25/2019

Relate Case Cases: 4:06-cv-00672-JSW

Jury Demand: Plaintiff

4:13-cv-03287-JSW

Nature of Suit: 440 Civil Rights:

Case in other court: 9th Circuit, 10-15616

Other

Ninth Circuit Court of Appeals, 15- Jurisdiction: U.S. Government

16133

Defendant

Ninth Circuit, 19-16066

Cause: 28:1331 Fed. Question

Plaintiff Carolyn Jewel

represented by James Samuel Tyre Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415-436-9333 Fax: 415-436-9993 Email: jstyre@jstyre.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron David Mackey Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415-436-9333 Fax: 415-436-9993 Email: amackey@eff.org ATTORNEY TO BE NOTICED

Andrew Crocker Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 (415) 436-9333 Fax: (415) 436-9993 Email: andrew@eff.org

ATTORNEY TO BE NOTICED
Aram Vazken Antaramian Attorney at Law 1714 Blake St Berkeley, CA 94703 510-289-1626 Email: antaramian@sonic.net ATTORNEY TO BE NOTICED
Audrey Helena Hadlock Keker Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111 415-391-5400 Fax: 415-397-7188 Email: ahadlock@keker.com TERMINATED: 06/01/2017
Benjamin Berkowitz Keker, Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111 415-391-5400 Fax: 415-397-7188 Email: bberkowitz@keker.com ATTORNEY TO BE NOTICED
Cindy Ann Cohn Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415-436-9333 Fax: 415-436-9993 Email: cindy@eff.org ATTORNEY TO BE NOTICED
David A Greene Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415-436-9333 x105 Fax: 415-436-9993 Email: davidg@eff.org ATTORNEY TO BE NOTICED

Jamie L Williams Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415-436-9333 Fax: 415-436-9993 Email: jamielee.williams@gmail.com ATTORNEY TO BE NOTICED
Justina Kahn Sessions Wilson Sonsini Goodrich & Rosati, P.C. One Market Plaza, Spear Tower, Suite 3300 San Francisco, CA 94105 415-947-2000 Fax: 415-947-2099 Email: jsessions@wsgr.com ATTORNEY TO BE NOTICED
Kevin Stuart Bankston Center for Democracy and Technology 1634 I Street NW #1100 Washington, DC 20006 202-637-9800 Fax: 202-637-0968 Email: kbankston@cdt.org TERMINATED: 01/31/2012 ATTORNEY TO BE NOTICED
Kurt Bradford Opsahl Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415-436-9333 Fax: 415-436-9993 Email: kurt@eff.org ATTORNEY TO BE NOTICED
Lee Tien Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415-436-9333

Fax: 415-436-9993 Email: tien@eff.org ATTORNEY TO BE NOTICED
Mark Thomas Rumold Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 (415)436-9333 Fax: 415-436-9993 Email: mark@eff.org TERMINATED: 08/13/2018
Michael S Kwun Keker, Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111-1809 415-391-5400 Fax: 415-397-7188 Email: mkwun@keker.com TERMINATED: 05/03/2018
Paula Lenore Blizzard Keker & Van Nest LLP 633 Battery Street San Francisco, CA 94111 (415) 391-5400 Fax: (415) 397-7188 Email: paula.blizzard@doj.ca.gov TERMINATED: 07/17/2014
Philip James Tassin Keker, Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111-1809 415-391-5400 Fax: 415-397-7188 Email: ptassin@keker.com TERMINATED: 05/01/2020
Rachael Elizabeth Meny Keker, Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111-1809 415-391-5400 Fax: 415-397-7188

Plaintiff Tash Hepting

Email: rmeny@keker.com ATTORNEY TO BE NOTICED
Richard R. Wiebe Law Office Of Richard R. Wiebe 44 Montgomery Street Suite 650 San Francisco, CA 94111 415-433-3200 Fax: 415-433-6382 Email: wiebe@pacbell.net ATTORNEY TO BE NOTICED
Thomas Edward Moore , III Haynes & Boone LLP 525 University Avenue, Suite 400 Palo Alto, CA 94301 (650) 687-8829 Fax: (650) 687-8801 Email: thomas.moore@haynesboone.com ATTORNEY TO BE NOTICED
represented by James Samuel Tyre (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron David Mackey (See above for address) ATTORNEY TO BE NOTICED
Andrew Crocker (See above for address) ATTORNEY TO BE NOTICED
Aram Vazken Antaramian (See above for address) ATTORNEY TO BE NOTICED
Audrey Helena Hadlock (See above for address) TERMINATED: 06/01/2017
Benjamin Berkowitz

(See above for address) ATTORNEY TO BE NOTICED
Cindy Ann Cohn (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
Jamie L Williams (See above for address) ATTORNEY TO BE NOTICED
Justina Kahn Sessions (See above for address) ATTORNEY TO BE NOTICED
Kevin Stuart Bankston (See above for address) TERMINATED: 01/31/2012 ATTORNEY TO BE NOTICED
Kurt Bradford Opsahl (See above for address) ATTORNEY TO BE NOTICED
Lee Tien (See above for address) ATTORNEY TO BE NOTICED
Mark Thomas Rumold (See above for address) TERMINATED: 08/13/2018
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
Paula Lenore Blizzard (See above for address) TERMINATED: 07/17/2014
Philip James Tassin (See above for address)

Plaintiff
Gregory Hicks TERMINATED: 12/04/2012

TERMINATED: 05/01/2020
Rachael Elizabeth Meny (See above for address) ATTORNEY TO BE NOTICED
Richard R. Wiebe (See above for address) ATTORNEY TO BE NOTICED
Thomas Edward Moore , III (See above for address) ATTORNEY TO BE NOTICED
represented by James Samuel Tyre (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Crocker (See above for address) ATTORNEY TO BE NOTICED
Aram Vazken Antaramian (See above for address) ATTORNEY TO BE NOTICED
Audrey Helena Hadlock (See above for address) TERMINATED: 06/01/2017
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
Cindy Ann Cohn (See above for address) ATTORNEY TO BE NOTICED
Justina Kahn Sessions (See above for address) ATTORNEY TO BE NOTICED
Kevin Stuart Bankston (See above for address)

Plaintiff Erik Knutzen

TERMINATED: 01/31/2012 ATTORNEY TO BE NOTICED
Kurt Bradford Opsahl (See above for address) ATTORNEY TO BE NOTICED
Lee Tien (See above for address) ATTORNEY TO BE NOTICED
Mark Thomas Rumold (See above for address) TERMINATED: 08/13/2018
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
Paula Lenore Blizzard (See above for address) TERMINATED: 07/17/2014
Philip James Tassin (See above for address) TERMINATED: 05/01/2020
Rachael Elizabeth Meny (See above for address) ATTORNEY TO BE NOTICED
Richard R. Wiebe (See above for address) ATTORNEY TO BE NOTICED
Thomas Edward Moore , III (See above for address) ATTORNEY TO BE NOTICED
represented by James Samuel Tyre (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron David Mackey

(See above for address) ATTORNEY TO BE NOTICED
Andrew Crocker (See above for address) ATTORNEY TO BE NOTICED
Aram Vazken Antaramian (See above for address) ATTORNEY TO BE NOTICED
Audrey Helena Hadlock (See above for address) TERMINATED: 06/01/2017
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
Cindy Ann Cohn (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
Jamie L Williams (See above for address) ATTORNEY TO BE NOTICED
Justina Kahn Sessions (See above for address) ATTORNEY TO BE NOTICED
Kevin Stuart Bankston (See above for address) TERMINATED: 01/31/2012 ATTORNEY TO BE NOTICED
Kurt Bradford Opsahl (See above for address) ATTORNEY TO BE NOTICED
Lee Tien (See above for address)

Plaintiff
Joice Walton on behalf of themselves and all others similarly situated

ATTORNEY TO BE NOTICED
Mark Thomas Rumold (See above for address) TERMINATED: 08/13/2018
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
Paula Lenore Blizzard (See above for address) TERMINATED: 07/17/2014
Philip James Tassin (See above for address) TERMINATED: 05/01/2020
Rachael Elizabeth Meny (See above for address) ATTORNEY TO BE NOTICED
Richard R. Wiebe (See above for address) ATTORNEY TO BE NOTICED
Thomas Edward Moore , III (See above for address) ATTORNEY TO BE NOTICED
represented by James Samuel Tyre (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron David Mackey (See above for address) ATTORNEY TO BE NOTICED
Andrew Crocker (See above for address) ATTORNEY TO BE NOTICED
Aram Vazken Antaramian (See above for address)

ATTORNEY TO BE NOTICED
Audrey Helena Hadlock (See above for address) TERMINATED: 06/01/2017
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
Cindy Ann Cohn (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
Jamie L Williams (See above for address) ATTORNEY TO BE NOTICED
Justina Kahn Sessions (See above for address) ATTORNEY TO BE NOTICED
Kevin Stuart Bankston (See above for address) TERMINATED: 01/31/2012 ATTORNEY TO BE NOTICED
Kurt Bradford Opsahl (See above for address) ATTORNEY TO BE NOTICED
Lee Tien (See above for address) ATTORNEY TO BE NOTICED
Mark Thomas Rumold (See above for address) TERMINATED: 08/13/2018
Michael S Kwun (See above for address) TERMINATED: 05/03/2018

Plaintiff
Young Boon Hicks Executrix of the Estate of Gregory Hicks

Paula Lenore Blizzard (See above for address) TERMINATED: 07/17/2014
Philip James Tassin (See above for address) TERMINATED: 05/01/2020
Rachael Elizabeth Meny (See above for address) ATTORNEY TO BE NOTICED
Richard R. Wiebe (See above for address) ATTORNEY TO BE NOTICED
Thomas Edward Moore , III (See above for address) ATTORNEY TO BE NOTICED
represented by James Samuel Tyre (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron David Mackey (See above for address) ATTORNEY TO BE NOTICED
Andrew Crocker (See above for address) ATTORNEY TO BE NOTICED
Aram Vazken Antaramian (See above for address) ATTORNEY TO BE NOTICED
Audrey Helena Hadlock (See above for address) TERMINATED: 06/01/2017
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED

Cindy Ann Cohn (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
Jamie L Williams (See above for address) ATTORNEY TO BE NOTICED
Justina Kahn Sessions (See above for address) ATTORNEY TO BE NOTICED
Kurt Bradford Opsahl (See above for address) ATTORNEY TO BE NOTICED
Lee Tien (See above for address) ATTORNEY TO BE NOTICED
Mark Thomas Rumold (See above for address) TERMINATED: 08/13/2018
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
Paula Lenore Blizzard (See above for address) TERMINATED: 07/17/2014
Philip James Tassin (See above for address) TERMINATED: 05/01/2020
Rachael Elizabeth Meny (See above for address) ATTORNEY TO BE NOTICED
Richard R. Wiebe

V. Defendant National Security Agency

(See above for address) ATTORNEY TO BE NOTICED
Thomas Edward Moore , III (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Joseph Coppolino U.S. Department of Justice, Civil Divisi 20 Massachusetts Avenue, N.W. Room 6102 Washington, DC 20530 (202) 514-4782dc Email: tony.coppolino@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
James J. Gilligan USDOJ, Civil Division, Federal Programs Branch 1100 L Street, N.W. Room 11200 Washington, DC 20005 202-514-3358 Fax: 202-616-8470 Email: james.gilligan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Kenneth Haas King Spalding LLP 1700 Pennsylvania Ave., NW Suite 200 Washington, DC 20006 202-626-5502 Email: alexander.haas@usdoj.gov TERMINATED: 11/06/2009 ATTORNEY TO BE NOTICED
Caroline Joy Anderson Department of Justice

20 Massachusetts Avenue Washington, DC 20530 202-305-8645 Email: Caroline.J.Anderson@usdoj.gov ATTORNEY TO BE NOTICED
Julia Alexandra Heiman United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW Washigton, DC 20530 949-350-8719 Email: julia.heiman@usdoj.gov ATTORNEY TO BE NOTICED
Marcia Berman U.S. Dept. of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Room 7204 Washington, DC 20530 202-514-3330 Fax: 202-616-8470 Email: marcia.berman@usdoj.gov ATTORNEY TO BE NOTICED
Olivia Hussey Scott U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L St. N.W. Room 11112 Washington, DC 20005 202-616-8491 Fax: 202-616-8470 Email: Olivia.Hussey.Scott@usdoj.gov ATTORNEY TO BE NOTICED
Paul Gerald Freeborne U.S. Department of Justice Civil Division 20 Massachusetts Ave. N.W., Room 6108

Defendant
Keith B. Alexander Director, in his official and personal capacities TERMINATED: 02/06/2017

Washington, DC 20001 202-353-0543 Fax: 202-616-8460 Email: paul.freeborne@usdoj.gov ATTORNEY TO BE NOTICED
Rodney Patton U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W. Room 11022 Washington, DC 20005 United Sta 202-305-7919 Fax: 202-305-2685 Email: Rodney.Patton@usdoj.gov ATTORNEY TO BE NOTICED
Timothy Andrew Johnson United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20530 202-514-1359 Fax: 202-616-8470 Email: timothy.johnson4@usdoj.gov TERMINATED: 06/08/2018
represented by Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James R. Whitman U.S. Department of Justice 1425 New York Ave., N.W. Washington, DC 20005 202-616-4169

Defendant Michael V. Hayden in his personal capacity
Defendant United States of America

Fax: 202-416-4314 Email: james.whitman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Kenneth Haas (See above for address) TERMINATED: 11/06/2009 ATTORNEY TO BE NOTICED
Julia Alexandra Heiman (See above for address) ATTORNEY TO BE NOTICED
Marcia Berman (See above for address) ATTORNEY TO BE NOTICED
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
represented by James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Kenneth Haas (See above for address) TERMINATED: 11/06/2009 ATTORNEY TO BE NOTICED
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Edward Ahern U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 (202) 305-0633 Email: Paul.Ahern@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Kenneth Haas (See above for address) TERMINATED: 11/06/2009 ATTORNEY TO BE NOTICED
Caroline Joy Anderson (See above for address) ATTORNEY TO BE NOTICED
Julia Alexandra Heiman (See above for address) ATTORNEY TO BE NOTICED
Marcia Berman (See above for address) ATTORNEY TO BE NOTICED
Olivia Hussey Scott (See above for address) ATTORNEY TO BE NOTICED
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED

Defendant George W. Bush President of the United States, in his official and personal capacities TERMINATED: 02/06/2017
Defendant Richard B. Cheney in his personal capacity
Defendant David S. Addington in his personal capacity

Timothy Andrew Johnson (See above for address) TERMINATED: 06/08/2018
represented by James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Kenneth Haas (See above for address) TERMINATED: 11/06/2009 ATTORNEY TO BE NOTICED
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
represented by James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Kenneth Haas (See above for address) TERMINATED: 11/06/2009 ATTORNEY TO BE NOTICED
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
represented by James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
United States Department of Justice

Alexander Kenneth Haas (See above for address) TERMINATED: 11/06/2009 ATTORNEY TO BE NOTICED
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Kenneth Haas (See above for address) TERMINATED: 11/06/2009 ATTORNEY TO BE NOTICED
Caroline Joy Anderson (See above for address) ATTORNEY TO BE NOTICED
Julia Alexandra Heiman (See above for address) ATTORNEY TO BE NOTICED
Marcia Berman (See above for address) ATTORNEY TO BE NOTICED
Olivia Hussey Scott (See above for address) ATTORNEY TO BE NOTICED
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Rodney Patton

Defendant Alberto R. Gonzales in his personal capacity TERMINATED: 02/06/2017
Defendant John D. Ashcroft in his personal capacity TERMINATED: 02/06/2017
Defendant John M. McConnell Director of National Intelligence, in his official and personal capacities

(See above for address) ATTORNEY TO BE NOTICED
Timothy Andrew Johnson (See above for address) TERMINATED: 06/08/2018
represented by James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Kenneth Haas (See above for address) TERMINATED: 11/06/2009 ATTORNEY TO BE NOTICED
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
represented by James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Kenneth Haas (See above for address) TERMINATED: 11/06/2009 ATTORNEY TO BE NOTICED
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
represented by James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Kenneth Haas (See above for address)

Defendant John D. Negroponte in his personal capacity
Defendant Michael B. Mukasey TERMINATED: 02/06/2017

TERMINATED: 11/06/2009 ATTORNEY TO BE NOTICED
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
represented by James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Kenneth Haas (See above for address) TERMINATED: 11/06/2009 ATTORNEY TO BE NOTICED
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
represented by James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Kenneth Haas (See above for address) TERMINATED: 11/06/2009 ATTORNEY TO BE NOTICED
Paul Gerald Freeborne (See above for address) ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED

Defendant Barack Obama TERMINATED: 02/06/2017
Defendant Eric Holder TERMINATED: 02/06/2017

represented by Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline Joy Anderson (See above for address) ATTORNEY TO BE NOTICED
Julia Alexandra Heiman (See above for address) ATTORNEY TO BE NOTICED
Marcia Berman (See above for address) ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia Alexandra Heiman (See above for address) ATTORNEY TO BE NOTICED
Marcia Berman (See above for address) ATTORNEY TO BE NOTICED

Defendant Dennis C Blair
Defendant Mr. Donald J. Trump in his official capacity as President of the United States

Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Joseph Coppolino U.S. Department of Justice, Civil Division 1100 L Street N.W. Room 11500 Washington, DC 20530 (202) 514-4782dc Email: tony.coppolino@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline Joy Anderson (See above for address) ATTORNEY TO BE NOTICED
Julia Alexandra Heiman (See above for address) ATTORNEY TO BE NOTICED
Marcia Berman (See above for address) ATTORNEY TO BE NOTICED
represented by James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline Joy Anderson (See above for address) ATTORNEY TO BE NOTICED
Julia Alexandra Heiman (See above for address)

Defendant Michael P. Dempsey in his official capacity as Acting Director of National Intelligence
Defendant Michael S. Rogers in his official capacity as Director of the NSA

ATTORNEY TO BE NOTICED
Olivia Hussey Scott (See above for address) ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
Timothy Andrew Johnson (See above for address) TERMINATED: 06/08/2018
represented by James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline Joy Anderson (See above for address) ATTORNEY TO BE NOTICED
Julia Alexandra Heiman (See above for address) ATTORNEY TO BE NOTICED
Olivia Hussey Scott (See above for address) ATTORNEY TO BE NOTICED
represented by James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline Joy Anderson (See above for address) ATTORNEY TO BE NOTICED
Julia Alexandra Heiman (See above for address) ATTORNEY TO BE NOTICED

Defendant Dana J. Boente in his official capacity as Acting Attorney General of the United States
Amicus People For the American Way Foundation

Olivia Hussey Scott (See above for address) ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
Timothy Andrew Johnson (See above for address) TERMINATED: 06/08/2018
represented by James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline Joy Anderson (See above for address) ATTORNEY TO BE NOTICED
Julia Alexandra Heiman (See above for address) ATTORNEY TO BE NOTICED
Olivia Hussey Scott (See above for address) ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
represented by Babak Siavoshy 396 Simon Hall UC Berkeley School of Law, Clinic Administration Office Berkeley, CA 94720-7200 510-684-7177 Email: bsiavoshy@gmail.com TERMINATED: 06/19/2013 LEAD ATTORNEY

Amicus Reporters Committee for Freedom of the Press Reporters Committee for Freedom of the Press
Amicus American Society of News Editors Amicus The Committee to Protect Journalists

ATTORNEY TO BE NOTICED
Jennifer Marie Urban UC-Berkeley/Law School Faculty 396 Simon Hall School of Law University of California Berkeley, CA 94720-7200 510-642-7338 Email: jurban@law.berkeley.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bruce D. Brown The Reporters Committee for Freedom of the Press 1101 Wilson Blvd. Suite 1100 Arlington, VA 22209 703-807-2100 Email: bbrown@rcfp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Koltun Joshua Koltun Attorney One Sansome Street Suite 3500, No. 500 San Francisco, CA 94104 415-680-3410 Fax: 866 462 5959 Email: joshua@koltunattorney.com ATTORNEY TO BE NOTICED
represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED

Amicus Courthouse News Service
Amicus First Amendment Coalition
Amicus First Look Media, Inc.
Amicus Gannett Co.
Amicus Investigative Reporters & Editors (IRE)
Amicus The Investigative Reporting Workshop
Amicus The McClatchy Company
Amicus The Media Consortium
Amicus

represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED

Media News Group
Amicus The National Press Club
Amicus National Public Radio, Inc.
Amicus National Press Photographers Association
Amicus Online News Association
Amicus The Seattle Times Company
Amicus The Tully Center for Free Speech
Amicus WP Company LLC dba The Washington Post
Amicus National Association of Criminal Defense Lawyers

represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Koltun (See above for address) ATTORNEY TO BE NOTICED
represented by Catherine Rachel Gellis 3020 Bridgeway #247 SAUSALITO, CA 94965

United Sta 202-642-2849 Email: cathy@cgcounsel.com ATTORNEY TO BE NOTICED
Michael Henry Page Durie Tangri LLP 217 Leidesdorff Street San Francisco, CA 94111 415-376-6403 Fax: 415-236-6300 Email: mpage@durietangri.com ATTORNEY TO BE NOTICED

Date Filed 09/18/2008
09/18/2008 09/18/2008 09/18/2008
09/18/2008

# Docket Text
1 CLASS ACTION COMPLAINT against all defendants ( Filing fee $ 350, receipt number 34611023512.) SUMMONS ISSUED. Filed byGregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, Tash Hepting. (mcl, COURT STAFF) (Filed on 9/18/2008) (mcl, COURT STAFF). (Additional attachment(s) added on 8/20/2015: # 1 Civil Cover Sheet) (jlmS, COURT STAFF). (Entered: 09/18/2008)
2 Certificate of Interested Entities or Persons by Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, Tash Hepting. (mcl, COURT STAFF) (Filed on 9/18/2008) (mcl, COURT STAFF). (Entered: 09/18/2008)
3 ADR SCHEDULING ORDER: Case Management Statement due by 1/2/2009. Case Management Conference set for 1/9/2009 08:30 AM. (Attachments: # 1 Order setting CMC, # 2 Standing Order, # 3 CM Standing Order for All Judges)(mcl, COURT STAFF) (Filed on 9/18/2008) (Entered: 09/18/2008)
4 Summons Issued as to National Security Agency, Keith B. Alexander, Michael V. Hayden, United States of America, George W. Bush, Richard B. Cheney, David S. Addington, Department of Justice, Alberto R. Gonzales, John D. Ashcroft, John M. McConnell, John D. Negroponte, U.S. Attorney and U.S. Attorney General. (mcl, COURT STAFF) (Entered: 09/18/2008)
CASE DESIGNATED for Electronic Filing. (mcl, COURT STAFF) (Entered: 09/18/2008)

10/07/2008 10/07/2008 10/21/2008
10/21/2008
10/28/2008 10/28/2008 10/29/2008 11/26/2008 11/26/2008 12/15/2008

5 CLERKS NOTICE re: Failure to E-File and/or Failure to Register as an E-Filer. (mcl, COURT STAFF) (Filed on 10/7/2008) (Entered: 10/07/2008)
6 Letter dated 9/21/08 from James Alfred Miller, Jr. (mcl, COURT STAFF) (Filed on 10/7/2008) (Entered: 10/09/2008)
7 MOTION to Relate Case Administrative Motion by Plaintiffs to Consider Whether Cases Should be Related; Declaration of Kevin S. Bankston; Proof of Service filed by Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, Tash Hepting. (Bankston, Kevin) (Filed on 10/21/2008) (Entered: 10/21/2008)
8 Proposed Order re 7 MOTION to Relate Case Administrative Motion by Plaintiffs to Consider Whether Cases Should be Related; Declaration of Kevin S. Bankston; Proof of Service ; Deeming Cases Related and Assigning Jewel to MDL Docket No. 06-1791 VRW, In Re National Security Agency Telecommunications Records Litigation by Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, Tash Hepting. (Bankston, Kevin) (Filed on 10/21/2008) (Entered: 10/21/2008)
9 ORDER by Chief Judge Vaughn R Walker granting 7 Motion to Relate Case. C06-0672 and C08-4373 are related. LR3-12. (cgk, COURT STAFF) (Filed on 10/28/2008) (Entered: 10/28/2008)
Cases associated: Create association to 3:06-cv-00672-VRW. (cgk, COURT STAFF) (Filed on 10/28/2008) (Entered: 10/28/2008)
Case Reassigned to Judge Hon. Vaughn R. Walker. Judge Hon. Charles R. Breyer no longer assigned to the case. (as, COURT STAFF) (Filed on 10/29/2008) (Entered: 10/29/2008)
10 NOTICE of Appearance by Alexander Kenneth Haas (Haas, Alexander) (Filed on 11/26/2008) (Entered: 11/26/2008)
11 STIPULATION by National Security Agency, Keith B. Alexander, United States of America, George W. Bush, Department of Justice, John M. McConnell. (Haas, Alexander) (Filed on 11/26/2008) (Entered: 11/26/2008)
12 CERTIFICATE OF SERVICE by Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, Tash Hepting of Summons and Complaint (Bankston, Kevin) (Filed on 12/15/2008) (Entered: 12/15/2008)

01/23/2009 01/23/2009 01/26/2009 01/26/2009 01/30/2009 04/03/2009
04/03/2009

13 NOTICE of Appearance by James R. Whitman on behalf of the individual capacity defendants (Whitman, James) (Filed on 1/23/2009) (Entered: 01/23/2009)
14 NOTICE of Appearance by Paul Gerald Freeborne on behalf of federal defendants sued in their official capacity and the other agency defendants (Freeborne, Paul) (Filed on 1/23/2009) (Entered: 01/23/2009)
15 MOTION for Extension of Time to File Answer re 1 Complaint, filed by National Security Agency, Keith B. Alexander, Michael V. Hayden, United States of America, George W. Bush, Richard B. Cheney, David S. Addington, Department of Justice, Alberto R. Gonzales, John D. Ashcroft, John M. McConnell, John D. Negroponte, Michael B. Mukasey. (Freeborne, Paul) (Filed on 1/26/2009) (Entered: 01/26/2009)
16 MOTION for Extension of Time to File Answer re 1 Complaint, (CORRECTED VERSION) filed by National Security Agency, Keith B. Alexander, Michael V. Hayden, United States of America, George W. Bush, Richard B. Cheney, David S. Addington, Department of Justice, Alberto R. Gonzales, John D. Ashcroft, John M. McConnell, John D. Negroponte, Michael B. Mukasey. (Haas, Alexander) (Filed on 1/26/2009) (Entered: 01/26/2009)
17 ORDER by Judge Vaughn R Walker GRANTING Docs #15, 16, Unopposed Motion for Extension of Time to Answer. All defendants shall answer or otherwise respond to the Complaint on or before 4/3/2009. The 3/26/2009 hearing is vacated. (cgk, COURT STAFF) (Filed on 1/30/2009) (Entered: 01/30/2009)
18 MOTION to Dismiss, MOTION for Summary Judgment filed by Barack Obama, Eric Holder, Dennis C Blair, National Security Agency, Keith B. Alexander, United States of America, Department of Justice. Motion Hearing set for 6/25/2009 02:30 PM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Appendix of Exhibits, # 2 Affidavit Public Declaration of DNI Dennis C. Blair, # 3 Affidavit Declaration of Deborah A. Bonanni, National Security Agency)(Coppolino, Anthony) (Filed on 4/3/2009) (Entered: 04/03/2009)
19 NOTICE by Barack Obama, Eric Holder, Dennis C Blair, National Security Agency, Keith B. Alexander, United States of America, Department of Justice re 18 MOTION to Dismiss MOTION for Summary Judgment Notice of Lodging of Classified In Camera Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence (Coppolino, Anthony) (Filed on 4/3/2009) (Entered: 04/03/2009)

04/03/2009 04/03/2009 04/03/2009
04/08/2009 04/08/2009 04/27/2009 05/01/2009

20 NOTICE by Barack Obama, Eric Holder, Dennis C Blair, National Security Agency, Keith B. Alexander, United States of America, Department of Justice re 18 MOTION to Dismiss MOTION for Summary Judgment Notice of Lodging of Classified In Camera Ex Parte Declaration of Deborah A. Bonanni, National Security Agency (Coppolino, Anthony) (Filed on 4/3/2009) (Entered: 04/03/2009)
21 NOTICE by Barack Obama, Eric Holder, Dennis C Blair, National Security Agency, Keith B. Alexander, United States of America, Department of Justice re 18 MOTION to Dismiss MOTION for Summary Judgment Notice of Lodging of Classified In Camera Ex Parte Supplemental Memorandum of Government Defendants in Support of Motion to Dismiss and for Summary Judgment (Coppolino, Anthony) (Filed on 4/3/2009) (Entered: 04/03/2009)
22 MOTION Individual capacity defendants' motion for administrative relief to enlarge the time to answer or otherwise respond to plaintiffs' complaint filed by Keith B. Alexander, Michael V. Hayden, George W. Bush, Richard B. Cheney, David S. Addington, Alberto R. Gonzales, John D. Ashcroft, John M. McConnell, John D. Negroponte, Michael B. Mukasey. (Attachments: # 1 Affidavit Declaration of James R. Whitman, # 2 Proposed Order)(Whitman, James) (Filed on 4/3/2009) (Entered: 04/03/2009)
23 Memorandum in Opposition to Individual Capacity Defendants' 22 Motion for Administrative relief to Enlarge the Time to Answer or Otherwise Respond to Plaintiffs' Complaint filed by Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, Tash Hepting. (Cohn, Cindy) (Filed on 4/8/2009) Modified on 4/9/2009 (slh, COURT STAFF). (Entered: 04/08/2009)
24 Proposed Order re 23 Memorandum in Opposition, to Individual Capacity Defendants' Motion for Administrative Relief to Enlarge the Time to Answer or Otherwise Respond to Plaintiffs' Complaint by Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, Tash Hepting. (Cohn, Cindy) (Filed on 4/8/2009) (Entered: 04/08/2009)
25 ORDER by Judge Vaughn R Walker denying without prejudice 22 motion to enlarge time to answer or otherwise respond to plaintiffs' complaint. Individual defendants shall have until June 25, 2009 within which to answer or otherwise respond. (vrwlc3, COURT STAFF) (Filed on 4/27/2009) (Entered: 04/27/2009)
26 STIPULATION to Revise Hearing Date and to Set Briefing Schedule by Barack Obama, Eric Holder, Dennis C Blair, National Security Agency, Keith B. Alexander, United States of America,

05/08/2009 05/08/2009 06/02/2009 06/03/2009 06/03/2009
06/26/2009
07/10/2009

Department of Justice. (Coppolino, Anthony) (Filed on 5/1/2009) (Entered: 05/01/2009)
27 ORDER approving 26 Stipulation, filed by United States of America, at al. In addition, date established by 25 Order on Motion for Miscellaneous Relief by which individual government defendants shall answer or otherwise respond is also hereby extended to July 15, 2009. Signed by Judge Vaughn R Walker on 5/8/2009. (vrwlc3, COURT STAFF) (Filed on 5/8/2009) (Entered: 05/08/2009)
Set/Reset Hearings: Opposition due: 6/3/2009. Govt's Reply due: 6/26/2009. Motion Hearing set for 7/15/2009 10:30 AM in Courtroom 6, 17th Floor, San Francisco. (cgk, COURT STAFF) (Filed on 5/8/2009) (Entered: 05/08/2009)
28 NOTICE of Appearance by Rachael Elizabeth Meny Paula A. Blizzard, Michael S. Kwun, and Audrey Walton-Hadlock (Meny, Rachael) (Filed on 6/2/2009) (Entered: 06/02/2009)
29 Memorandum in Opposition re 18 MOTION to Dismiss MOTION for Summary Judgment Plaintiffs' Opposition to Government Defendants' Motion to Dismiss and for Summary Judgment filed byGregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, Tash Hepting. (Meny, Rachael) (Filed on 6/3/2009) (Entered: 06/03/2009)
30 DECLARATION of Cindy Cohn in Opposition to 29 Memorandum in Opposition, Declaration of Cindy Cohn Pursuant to Fed. R. Civ. P. 56(f) in Opposition to Government Defendants' Motion to Dismiss and For Summary Judgment filed byGregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, Tash Hepting. (Attachments: # 1 Exhibit A)(Related document(s) 29 ) (Meny, Rachael) (Filed on 6/3/2009) (Entered: 06/03/2009)
31 Reply to Opposition re 18 MOTION to Dismiss MOTION for Summary Judgment Government Defendants' Reply in Support of Motion to Dismiss and for Summary Judgment filed byKeith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Exhibit Exhibits to Government Defendants' Reply)(Coppolino, Anthony) (Filed on 6/26/2009) (Entered: 06/26/2009)
32 MOTION Individual capacity defendants' motion for relief from the Court's Orders of April 27, 2009, and May 8, 2009 filed by David S. Addington, Keith B. Alexander, John D. Ashcroft, George W. Bush, Richard B. Cheney, Alberto R. Gonzales, Michael V. Hayden, John M. McConnell, Michael B. Mukasey, John D. Negroponte. Motion Hearing

07/13/2009 07/13/2009 07/13/2009 07/15/2009
07/31/2009

set for 9/17/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Whitman, James) (Filed on 7/10/2009) (Entered: 07/10/2009)
33 MOTION Administrative Relief from Improper Motion for Reconsideration by Individual Capacity Defendants filed by Tash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. Motion Hearing set for 7/15/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Cohn, Cindy) (Filed on 7/13/2009) (Entered: 07/13/2009)
34 Declaration of Cindy A. Cohn in Support of 33 MOTION Administrative Relief from Improper Motion for Reconsideration by Individual Capacity Defendants filed byTash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 33 ) (Cohn, Cindy) (Filed on 7/13/2009) (Entered: 07/13/2009)
35 NOTICE by Tash Hepting, Carolyn Jewel, Erik Knutzen, Joice Walton PLAINTIFFS' NOTICE OF ADDITIONAL EVIDENCE IN OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUDGMENT (Attachments: # 1 Exhibit, # 2 Exhibit)(Blizzard, Paula) (Filed on 7/13/2009) (Entered: 07/13/2009)
36 Minute Entry: Motion Hearing held on 7/15/2009 before Chief Judge Vaughn R Walker. 1. Def's Motion to Dismiss and for Summary Judgment (Doc 18). 2. Motion for Relief filed by Individual Capacity Defendants (Doc 32)-not argued. 3. Plas' Motion for Administrative Relief (Doc 33). The Court heard argument from counsel. The Court submitted the matter. The court to issue written ruling. Hearing on Government Individual Capacity Defendants motion for relief (doc 32) set for 9/17/2009 at 10:00 AM. (Court Reporter Lydia Zinn.) (cgk, COURT STAFF) (Date Filed: 7/15/2009) (Entered: 07/21/2009)
37 Transcript of Proceedings held on 07/15/2009, before Judge Vaughn R. Walker. Court Reporter/Transcriber Lydia Radovich Zinn, Telephone number (415) 531-6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 10/26/2009. (Zinn, Lydia) (Filed on 7/31/2009) (Entered: 07/31/2009)

08/03/2009
08/03/2009 08/04/2009 08/05/2009 08/24/2009 09/01/2009 09/03/2009

38 MOTION for Leave to File Supplemental Brief on the Scope of FISA Act Preemption filed by Tash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Supplement Supplemental Memorandum on the Scope of FISA Act Preemption, # 2 Affidavit Wiebe Declaration ISO Supplemental Memorandum, # 3 Exhibit A to Wiebe Decl., # 4 Exhibit B to Wiebe Decl., # 5 Exhibit C to Wiebe Decl., # 6 Exhibit D to Wiebe Decl., # 7 Exhibit E to Wiebe Decl., # 8 Proposed Order Allowing Supplemental Memorandum)(Blizzard, Paula) (Filed on 8/3/2009) (Entered: 08/03/2009)
39 Declaration of Cindy A. Cohn in Support of 38 MOTION for Leave to File Supplemental Brief on the Scope of FISA Act Preemption filed byTash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 38 ) (Blizzard, Paula) (Filed on 8/3/2009) (Entered: 08/03/2009)
40 ORDER by Judge Vaughn R Walker granting 38 motion for leave to file post-hearing brief. Defendants may file a brief on the same subject and of no greater length on or before 9/3/2009. (vrwlc3, COURT STAFF) (Filed on 8/4/2009) (Entered: 08/04/2009)
41 STIPULATION to Set Briefing Schedule by David S. Addington, Keith B. Alexander, John D. Ashcroft, George W. Bush, Richard B. Cheney, Alberto R. Gonzales, Michael V. Hayden, John M. McConnell, Michael B. Mukasey, John D. Negroponte. (Whitman, James) (Filed on 8/5/2009) (Entered: 08/05/2009)
42 Memorandum in Opposition to Individual Capacity Defendants' Motion for Relief filed byTash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Bankston, Kevin) (Filed on 8/24/2009) (Entered: 08/24/2009)
43 STIPULATION to Extend Time to Respond to Supplemental Brief (Dkt. 38-1) and Proposed Order by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Coppolino, Anthony) (Filed on 9/1/2009) (Entered: 09/01/2009)
44 Reply in support re 32 MOTION Individual capacity defendants' motion for relief from the Court's Orders of April 27, 2009, and May 8, 2009 filed byDavid S. Addington, Keith B. Alexander, John D. Ashcroft, George W. Bush, Richard B. Cheney, Alberto R. Gonzales, Michael V. Hayden, John M. McConnell, Michael B. Mukasey, John D. Negroponte. (Whitman, James) (Filed on 9/3/2009) Modified on 9/4/2009 (ys, COURT STAFF). (Entered: 09/03/2009)

09/03/2009
09/04/2009 09/17/2009 10/28/2009 11/06/2009 11/10/2009 11/16/2009
12/15/2009

45 Statement of Non-Opposition re 32 MOTION Individual capacity defendants' motion for relief from the Court's Orders of April 27, 2009, and May 8, 2009 Statement in Support of Individual Capacity Defs.' Motion for Relief from Court Orders filed byKeith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Related document(s) 32 ) (Berman, Marcia) (Filed on 9/3/2009) (Entered: 09/03/2009)
46 Reply Memorandum Government Defendants' Response to Plaintiffs' Supplemental Brief (Dkt. 38-1) filed byDennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Coppolino, Anthony) (Filed on 9/4/2009) (Entered: 09/04/2009)
47 Minute Entry: Motion Hearing re doc #s 32 and 33 held on 9/17/2009 before Chief Judge Vaughn R Walker, the court submitted the matter. (Date Filed: 9/17/2009). (Court Reporter Jim Yeomans.) (cgk, COURT STAFF) (Date Filed: 9/17/2009) (Entered: 09/21/2009)
48 NOTICE by United States of America of Order by Court of Appeals Granting Rehearing En Banc (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Ahern, Paul) (Filed on 10/28/2009) (Entered: 10/28/2009)
49 NOTICE by United States of America Withdrawal of Appearance (Haas, Alexander) (Filed on 11/6/2009) (Entered: 11/06/2009)
50 Joint MOTION for Entry of Order Regarding Preservation of Evidence filed by United States of America. (Attachments: # 1 Exhibit 1, Dkt. 393 in 06-cv-1791-VRW, # 2 Proposed Order)(Ahern, Paul) (Filed on 11/10/2009) (Entered: 11/10/2009)
51 ORDER by Chief Judge Vaughn R Walker GRANTING doc [#50] JOINT MOTION FOR ENTRY OF ORDER REGARDING PRESERVATION OF EVIDENCE. Counsel representing each party shall, not later than 12/15/2009, submit to the Court under seal and pursuant to FRCP 11, a statement that the directive in paragraph D, has been carried out. (cgk, COURT STAFF) (Filed on 11/16/2009) (Entered: 11/16/2009)
52 NOTICE by Tash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton of Manual Filing (Bankston, Kevin) (Filed on 12/15/2009) (Entered: 12/15/2009)

12/15/2009 12/15/2009 12/15/2009 12/15/2009 12/17/2009
12/23/2009
01/20/2010 01/21/2010 01/25/2010

53 NOTICE by United States of America re 51 Order on Motion for Miscellaneous Relief, Notice of Manual Filing (Ahern, Paul) (Filed on 12/15/2009) (Entered: 12/15/2009)
67 Response to the Court's Order of 11/13/09 regarding preservation of evidence byNational Security Agency. (far, COURT STAFF) (Filed on 12/15/2009) (hdjS, COURT STAFF). Modified on 4/8/2014 (hdjS, COURT STAFF). (Entered: 07/21/2010)
68 FILED UNDER SEAL Response of the individual capacity defendants to the court's order of 11/13/09 regarding preservation of evidence by. (far, COURT STAFF) (Filed on 12/15/2009) (jlmS, COURT STAFF). (Entered: 07/21/2010)
69 FILED UNDER SEAL Declaration of Kevin S. Bankston in compliance with preservation order filed byPlaintiffs. (far, COURT STAFF) (Filed on 12/15/2009) (jlmS, COURT STAFF). (Additional attachment(s) added on 7/16/2019: # 1 ) (cjlS, COURT STAFF). (Entered: 07/21/2010)
54 NOTICE by David S. Addington, Keith B. Alexander, John D. Ashcroft, George W. Bush, Richard B. Cheney, Alberto R. Gonzales, Michael V. Hayden, John M. McConnell, Michael B. Mukasey, John D. Negroponte re 51 Order on Motion for Miscellaneous Relief, Notice of Manual Filing (Whitman, James) (Filed on 12/17/2009) (Entered: 12/17/2009)
55 NOTICE by Tash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton re 18 MOTION to Dismiss MOTION for Summary Judgment , Plaintiffs' Local Rule 7-13 Notice That Government Defendants' Motion Has Been Under Submission More Than 120 Days (Wiebe, Richard) (Filed on 12/23/2009) (Entered: 12/23/2009)
56 AMENDED DOCUMENT by Carolyn Jewel. Amendment to Substitute Yoo & Goldsmith for Does 1 & 2. (Moore, Thomas) (Filed on 1/20/2010) (Entered: 01/20/2010)
57 ORDER by Judge Vaughn R. Walker granting 18 Motion to Dismiss; granting motion to dismiss in MDL Docket No. 3:06-cv-1791 VRW (member case no. 3:07-cv-0693 VRW) (Attachments: # 1 Appendix) (hlk, COURT STAFF) (Filed on 1/21/2010) (Entered: 01/21/2010)
58 JUDGMENT. IT IS ORDERED AND ADJUDGED that in accordance with the Court's January 21, 2010 Order, judgment is hereby entered in this case in favor of defendants and against plaintiffs. (cgk, COURT STAFF) (Filed on 1/25/2010) (Entered: 01/25/2010)

01/28/2010 02/04/2010 03/19/2010
03/22/2010 03/23/2010 04/22/2010
04/26/2010 06/08/2010 02/07/2011

59 NOTICE of Change of Address by Richard R. Wiebe (Wiebe, Richard) (Filed on 1/28/2010) (Entered: 01/28/2010)
60 ORDER re 57 1/21/2010 Order on Motion to Dismiss. Signed by Judge Vaughn R. Walker on 2/4/2010. (hlk, COURT STAFF) (Filed on 2/4/2010) (Entered: 02/04/2010)
61 NOTICE OF APPEAL as to 58 Judgment, 57 Order on Motion to Dismiss, Order on Motion for Summary Judgment, Order on Motion for Miscellaneous Relief, by Tash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. Filing fee $ 455, Receipt Number 34611043712.(far, COURT STAFF) (Filed on 3/19/2010) (Entered: 03/22/2010)
62 Copy of Notice of Appeal and Docket sheet mailed to all counsel (Attachments: # 1 docket sheet)(far, COURT STAFF) (Filed on 3/22/2010) (Entered: 03/22/2010)
63 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 61 Notice of Appeal, (Attachments: # 1 docket sheet, # 2 cover letter, # 3 USCA appeal notification form)(far, COURT STAFF) (Filed on 3/23/2010) (Entered: 03/23/2010)
64 Transcript of Proceedings held on 09/12/09, before Judge Vaughn R. Walker. Court Reporter/Transcriber James Yeomans, Telephone number (415) 863-5179. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 7/21/2010. (jjy, COURT STAFF) (Filed on 4/22/2010) (Entered: 04/22/2010)
65 USCA Case Number 10-15616 9th Circuit for 61 Notice of Appeal, filed by Gregory Hicks, Tash Hepting, Erik Knutzen, Carolyn Jewel, Joice Walton. (far, COURT STAFF) (Filed on 4/26/2010) (Entered: 04/26/2010)
66 ORDER of USCA as to 61 Notice of Appeal, filed by Gregory Hicks, Tash Hepting, Erik Knutzen, Carolyn Jewel, Joice Walton (far, COURT STAFF) (Filed on 6/8/2010) (Entered: 06/08/2010)
70 ORDER of USCA (far, COURT STAFF) (Filed on 2/7/2011) (Entered: 02/07/2011)

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05/17/2012 05/18/2012
07/02/2012

71 ORDER of USCA as to 61 Notice of Appeal, filed by Gregory Hicks, Tash Hepting, Erik Knutzen, Carolyn Jewel, Joice Walton (far, COURT STAFF) (Filed on 4/6/2011) (Entered: 04/06/2011)
72 ORDER of USCA as to 61 Notice of Appeal, filed by Gregory Hicks, Tash Hepting, Erik Knutzen, Carolyn Jewel, Joice Walton (far, COURT STAFF) (Filed on 4/6/2011) (Entered: 04/06/2011)
73 ORDER of USCA (far, COURT STAFF) (Filed on 8/19/2011) (Entered: 08/19/2011)
74 ORDER of USCA (far, COURT STAFF) (Filed on 9/19/2011) (Entered: 09/19/2011)
75 USCA OPINION. (far, COURT STAFF) (Filed on 1/12/2012) (Entered: 01/12/2012)
76 NOTICE of Change In Counsel by Cindy Ann Cohn Withdrawal of Kevin Bankston (Cohn, Cindy) (Filed on 1/31/2012) (Entered: 01/31/2012)
77 MANDATE of USCA (far, COURT STAFF) (Filed on 2/23/2012) (Entered: 02/23/2012)
78 CLERKS Letter Spreading Mandate to Counsel (far, COURT STAFF) (Filed on 2/23/2012) (Entered: 02/23/2012)
79 Letter from Plaintiffs requesting assignment to a District Court judge. (Cohn, Cindy) (Filed on 5/9/2012) (Entered: 05/09/2012)
80 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Thelton E. Henderson for all further proceedings. Judge Hon. Vaughn R. Walker no longer assigned to the case.. Signed by Executive Committee on 5/15/12. (as, COURT STAFF) (Filed on 5/15/2012) (Entered: 05/15/2012)
81 ORDER OF RECUSAL. Signed by Judge Thelton E. Henderson on 05/17/12. (tehlc3, COURT STAFF) (Filed on 5/17/2012) (Entered: 05/17/2012)
82 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Jeffrey S. White for all further proceedings. Judge Hon. Thelton E. Henderson no longer assigned to the case.. Signed by Executive Committee on 5/18/12. (as, COURT STAFF) (Filed on 5/18/2012) (Entered: 05/18/2012)
83 MOTION for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense filed by Tash Hepting, Gregory

07/02/2012 07/02/2012 07/02/2012 07/02/2012 07/02/2012 07/02/2012

Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. Motion Hearing set for 11/2/2012 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. Responses due by 7/16/2012. Replies due by 7/23/2012. (Attachments: # 1 Proposed Order)(Wiebe, Richard) (Filed on 7/2/2012) (Entered: 07/02/2012)
84 Administrative Motion to File Under Seal filed by Tash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Exhibit A to Klein Decl, # 4 Exhibit B Klein Decl, # 5 Exhibit C Part 1 Klein Decl, # 6 Exhibit C Part 2 Klein Decl, # 7 Proposed Order)(Wiebe, Richard) (Filed on 7/2/2012) (Entered: 07/02/2012)
85 Declaration of Mark Klein in Support of 83 MOTION for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense filed byTash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 83 ) (Wiebe, Richard) (Filed on 7/2/2012) (Entered: 07/02/2012)
86 Declaration of J. Kirk Wiebe in Support of 83 MOTION for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense filed byTash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 83 ) (Wiebe, Richard) (Filed on 7/2/2012) (Entered: 07/02/2012)
87 Declaration of Thomas A. Drake in Support of 83 MOTION for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense filed byTash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 83 ) (Wiebe, Richard) (Filed on 7/2/2012) (Entered: 07/02/2012)
88 Declaration of William E. Binney in Support of 83 MOTION for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense filed byTash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 83 ) (Wiebe, Richard) (Filed on 7/2/2012) (Entered: 07/02/2012)
89 Declaration of J. Scott Marcus in Support of 83 MOTION for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense filed byTash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Exhibit A-D, # 2 Exhibit E, # 3 Exhibit F, # 4 Exhibit G, # 5 Exhibit H-K, # 6 Exhibit L-N, # 7 Exhibit O-Q, # 8 Exhibit R, # 9 Exhibit S, # 10 Exhibit T-V, # 11 Exhibit W-Y)(Related document(s) 83 ) (Wiebe, Richard) (Filed on 7/2/2012) (Entered: 07/02/2012)

07/02/2012 07/02/2012 07/02/2012 07/03/2012 07/11/2012 07/11/2012 07/11/2012 07/23/2012

90 Declaration of Cindy Cohn in Support of 83 MOTION for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense filed byTash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 83 ) (Cohn, Cindy) (Filed on 7/2/2012) (Entered: 07/02/2012)
91 STIPULATION WITH PROPOSED ORDER re 83 MOTION for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense Stipulation to Set Briefing Schedule filed by Tash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Cohn, Cindy) (Filed on 7/2/2012) (Entered: 07/02/2012)
92 CERTIFICATE OF SERVICE by Tash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton re 84 Administrative Motion to File Under Seal (Wiebe, Richard) (Filed on 7/2/2012) (Entered: 07/02/2012)
93 ORDER GRANTING 91 STIPULATION RE: BRIEFING SCHEDULE FOR CROSS MOTIONS FOR SUMMARY JUDGMENT: Motion Hearing set for 11/2/2012 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White.. Signed by Judge Jeffrey S. White on 7/3/12. (jjoS, COURT STAFF) (Filed on 7/3/2012) (Entered: 07/03/2012)
94 MOTION to Stay Proceedings, Notice of Motion, and Defs.' Case Management Statement filed by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. Responses due by 7/25/2012. Replies due by 8/1/2012. (Attachments: # 1 Proposed Order)(Berman, Marcia) (Filed on 7/11/2012) (Entered: 07/11/2012)
95 STIPULATION WITH PROPOSED ORDER re 94 MOTION to Stay Proceedings, Notice of Motion, and Defs.' Case Management Statement Stipulation to Expedite Motion to Stay Proceedings filed by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Berman, Marcia) (Filed on 7/11/2012) (Entered: 07/11/2012)
96 ORDER GRANTING 95 STIPULATION to Expedite Motion to Stay Proceedings. Responses due by 7/23/2012.. Signed by Judge Jeffrey S. White on 7/11/12. (jjoS, COURT STAFF) (Filed on 7/11/2012) (Entered: 07/11/2012)
97 RESPONSE (re 94 MOTION to Stay Proceedings, Notice of Motion, and Defs.' Case Management Statement ) filed byTash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton.

(Attachments: # 1 Exhibit A, # 2 Proposed Order)(Moore, Thomas) (Filed on 7/23/2012) (Entered: 07/23/2012)

07/26/2012

98 ORDER GRANTING: 94 Motion to Stay Proceedings. Signed by Judge Jeffrey S. White on July 26, 2012. (jswlc3, COURT STAFF) (Filed on 7/26/2012) (Entered: 07/26/2012)

08/07/2012

99 NOTICE by Tash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton re 98 Order, Terminate Motions, Terminate Deadlines and Hearings Notice of Ninth Circuit Decision in Al Haramain v. Obama (Wiebe, Richard) (Filed on 8/7/2012) (Entered: 08/07/2012)

08/10/2012

100 STIPULATION WITH PROPOSED ORDER Re Joint Proposed Briefing Schedule filed by Tash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Cohn, Cindy) (Filed on 8/10/2012) (Entered: 08/10/2012)

08/21/2012

101 ORDER GRANTING 100 STIPULATION Re Joint Proposed Briefing Schedule.Hearing on Cross Motions for Summary Judgment set for 11/2/2012 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White.. Signed by Judge Jeffrey S. White on 8/20/12. (jjoS, COURT STAFF) (Filed on 8/21/2012) (Entered: 08/21/2012)

09/12/2012

102 Second MOTION to Dismiss and for Summary Judgment; Opposition to Plaintiffs' Partial Motion for Summary Judgment filed by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. Motion Hearing set for 11/2/2012 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. Responses due by 10/9/2012. Replies due by 10/19/2012. (Coppolino, Anthony) (Filed on 9/12/2012) (Entered: 09/12/2012)

09/12/2012

103 EXHIBITS re 102 Second MOTION to Dismiss and for Summary Judgment; Opposition to Plaintiffs' Partial Motion for Summary Judgment Exhibits 1 to 5 filed byKeith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Related document(s) 102 ) (Coppolino, Anthony) (Filed on 9/12/2012) (Entered: 09/12/2012)

09/12/2012

104 Declaration in Support of 102 Second MOTION to Dismiss and for Summary Judgment; Opposition to Plaintiffs' Partial Motion for Summary Judgment Public Declaration of James R. Clapper Director of National Intelligence filed byKeith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United

States of America. (Related document(s) 102 ) (Coppolino, Anthony) (Filed on 9/12/2012) (Entered: 09/12/2012)

09/12/2012

105 Declaration in Support of 102 Second MOTION to Dismiss and for Summary Judgment; Opposition to Plaintiffs' Partial Motion for Summary Judgment Public Declaration of Frances Fleisch National Security Agency filed byKeith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Related document(s) 102 ) (Coppolino, Anthony) (Filed on 9/12/2012) (Entered: 09/12/2012)

09/12/2012

106 NOTICE by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America re 102 Second MOTION to Dismiss and for Summary Judgment; Opposition to Plaintiffs' Partial Motion for Summary Judgment Notice of Lodging of Classified Declaration of James R. Clapper Director of National Intelligence (Coppolino, Anthony) (Filed on 9/12/2012) (Entered: 09/12/2012)

09/12/2012

107 NOTICE by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America re 102 Second MOTION to Dismiss and for Summary Judgment; Opposition to Plaintiffs' Partial Motion for Summary Judgment Notice of Lodging of Classified Declaration of Frances Fleisch National Security Agency (Coppolino, Anthony) (Filed on 9/12/2012) (Entered: 09/12/2012)

09/24/2012

108 STIPULATION WITH PROPOSED ORDER Stipulation and Request to Reset Hearing Date; Set Briefing Schedule filed by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Coppolino, Anthony) (Filed on 9/24/2012) (Entered: 09/24/2012)

09/25/2012

109 ORDER GRANTING AS MODIFIED 108 STIPULATION to Reset Hearing Date; Set Briefing Schedule. Motion Hearing set for 12/14/2012 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White.. Signed by Judge Jeffrey S. White on 9/25/12. (jjoS, COURT STAFF) (Filed on 9/25/2012) (Entered: 09/25/2012)

10/02/2012

110 STIPULATION WITH PROPOSED ORDER and Request to Set Briefing Schedule filed by Tash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Cohn, Cindy) (Filed on 10/2/2012) (Entered: 10/02/2012)

10/03/2012 111 ORDER DENYING STIPULATION TO RESET BRIEFING SCHEDULE. Signed by Judge Jeffrey S. White on 10/3/12. (jjoS, COURT STAFF) (Filed on 10/3/2012) (Entered: 10/03/2012)

10/09/2012

112 REPLY (re 83 MOTION for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense ) and Opposition to the Government Defendants' Cross-Motion filed byTash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Wiebe, Richard) (Filed on 10/9/2012) (Entered: 10/09/2012)

10/09/2012

113 Appendix FRE 1006 Summary of Voluminous Evidence in Support of Plaintiffs' Motion for Summary Judgment and Opposition to the Government Defendants' Cross-Motion filed byTash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Wiebe, Richard) (Filed on 10/9/2012) (Entered: 10/09/2012)

10/09/2012

114 DECLARATION of Cindy Cohn in Opposition to 102 Second MOTION to Dismiss and for Summary Judgment; Opposition to Plaintiffs' Partial Motion for Summary Judgment filed byTash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 102 ) (Cohn, Cindy) (Filed on 10/9/2012) (Entered: 10/09/2012)

10/09/2012

115 Request for Judicial Notice in Opposition to Government Defendants' Motion to Dismiss and for Summary Judgment filed byTash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Cohn, Cindy) (Filed on 10/9/2012) (Entered: 10/09/2012)

10/09/2012

116 Declaration of Kurt Opsahl in Support of 83 MOTION for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense and Opposition to the Government Defendants' Cross Motion filed byTash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Exhibit Manual Filing Notification, # 2 Certificate/Proof of Service of Manual Filing)(Related document(s) 83 ) (Opsahl, Kurt) (Filed on 10/9/2012) (Entered: 10/09/2012)

10/09/2012

211 EXHIBITS: 1-11 re 116 Declaration of Kurt Opsahl in Support Motion for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense and Opposition to the Government Defendants' Cross Motion, filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 116 ) (jlmS, COURT STAFF) (Filed on 10/9/2012) (Additional attachment(s) added on 8/21/2015: # 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, Part 1 of 3, # 12 Exhibit 11, Part 2 of

3, # 13 Exhibit 11, Part 3 of 3) (jlmS, COURT STAFF). (Entered: 05/01/2014)

10/09/2012

212 EXHIBITS: 12-29 re 116 Declaration of Kurt Opsahl in Support Motion for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense and Opposition to the Government Defendants' Cross Motion, filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 116 ) (jlmS, COURT STAFF) (Filed on 10/9/2012) (Additional attachment(s) added on 8/21/2015: # 1 Exhibit 12, # 2 Exhibit 13, # 3 Exhibit 14, # 4 Exhibit 15, # 5 Exhibit 16, # 6 Exhibit 17, # 7 Exhibit 18, # 8 Exhibit 19, # 9 Exhibit 20, # 10 Exhibit 21, # 11 Exhibit 22, # 12 Exhibit 23, # 13 Exhibit 24, # 14 Exhibit 25, # 15 Exhibit 26, # 16 Exhibit 27, # 17 Exhibit 28, # 18 Exhibit 29) (jlmS, COURT STAFF). (Entered: 05/01/2014)

10/09/2012

213 EXHIBITS: 30-64 re 116 Declaration of Kurt Opsahl in Support Motion for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense and Opposition to the Government Defendants' Cross Motion, filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 116 ) (jlmS, COURT STAFF) (Filed on 10/9/2012) (Additional attachment(s) added on 9/9/2015: # 1 Exhibit 31, # 2 Exhibit 32, # 3 Exhibit 33, # 4 Exhibit 34, # 5 Exhibit 35, # 6 Exhibit 36, # 7 Exhibit 37, # 8 Exhibit 38, # 9 Exhibit 39, # 10 Exhibit 40, # 11 Exhibit 41, # 12 Exhibit 42, # 13 Exhibit 43, # 14 Exhibit 44, # 15 Exhibit 45, # 16 Exhibit 46, # 17 Exhibit 47, # 18 Exhibit 48, # 19 Exhibit 49, # 20 Exhibit 50, # 21 Exhibit 51, # 22 Exhibit 52, # 23 Exhibit 53, # 24 Exhibit 54, # 25 Exhibit 55, # 26 Exhibit 56, # 27 Exhibit 57, # 28 Exhibit 58, # 29 Exhibit 59, # 30 Exhibit 60, # 31 Exhibit 61, # 32 Exhibit 62, # 33 Exhibit 63, # 34 Exhibit 64) (jlmS, COURT STAFF). (Additional attachment(s) added on 9/9/2015: # 1 Main Document) (jlmS, COURT STAFF). Modified on 9/9/2015 (jlmS, COURT STAFF). (Entered: 05/01/2014)

10/09/2012

214 EXHIBITS: 65-101 re 116 Declaration of Kurt Opsahl in Support Motion for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense and Opposition to the Government Defendants' Cross Motion, filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 116 ) (jlmS, COURT STAFF) (Filed on 10/9/2012) (Additional attachment(s) added on 9/9/2015: # 1 Exhibit 65, # 2 Exhibit 66, # 3 Exhibit 67, # 4 Exhibit 68, # 5 Exhibit 69, # 6 Exhibit 70, # 7 Exhibit 71, # 8 Exhibit 72, # 9 Exhibit 73, # 10 Exhibit 74, # 11 Exhibit 75, # 12 Exhibit 76, # 13 Exhibit 77, # 14 Exhibit 78, # 15 Exhibit 79, # 16 Exhibit 80, # 17 Exhibit 81, # 18 Exhibit 82, # 19 Exhibit 83,

# 20 Exhibit 84, # 21 Exhibit 85, # 22 Exhibit 86, # 23 Exhibit 87, # 24 Exhibit 88, # 25 Exhibit 89, # 26 Exhibit 90, # 27 Exhibit 91, # 28 Exhibit 92, # 29 Exhibit 93, # 30 Exhibit 94, # 31 Exhibit 95, # 32 Exhibit 96, # 33 Exhibit 97, # 34 Exhibit 98, # 35 Exhibit 99, # 36 Exhibit 100, # 37 Exhibit 101) (jlmS, COURT STAFF). (Entered: 05/01/2014)

10/09/2012

215 EXHIBITS: 102-108 re 116 Declaration of Kurt Opsahl in Support Motion for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense and Opposition to the Government Defendants' Cross Motion, filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 116 ) (jlmS, COURT STAFF) (Filed on 10/9/2012) (Additional attachment(s) added on 9/11/2015: # 1 Exhibit 102, # 2 Exhibit 103, # 3 Exhibit 104; Part 1 of 2, # 4 Exhibit 104; Part 2 of 2, # 5 Exhibit 105, # 6 Exhibit 106, # 7 Exhibit 107, # 8 Exhibit 108) (jlmS, COURT STAFF). (Entered: 05/01/2014)

10/09/2012

216 EXHIBITS: 109-114 re 116 Declaration of Kurt Opsahl in Support Motion for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense and Opposition to the Government Defendants' Cross Motion, filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 116 ) (jlmS, COURT STAFF) (Filed on 10/9/2012) Modified on 9/17/2015 (jlmS, COURT STAFF). (Additional attachment(s) added on 9/18/2015: # 1 Exhibit 109; Part 1 of 2, # 2 Exhibit 109; Part 2 of 2, # 3 Exhibit 110, # 4 Exhibit 111, # 5 Exhibit 112; Part 1 of 3, # 6 Exhibit 112; Part 2 of 3, # 7 Exhibit 112; Part 3 of 3, # 8 Exhibit 113, # 9 Exhibit 114) (jlmS, COURT STAFF). Modified on 9/18/2015 (jlmS, COURT STAFF). (Entered: 05/01/2014)

10/09/2012

217 EXHIBITS: 115-120 re 116 Declaration of Kurt Opsahl in Support Motion for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense and Opposition to the Government Defendants' Cross Motion, filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 116 ) (jlmS, COURT STAFF) (Filed on 10/9/2012) Modified on 9/18/2015 (jlmS, COURT STAFF). (Additional attachment(s) added on 9/18/2015: # 1 Exhibit 116; Part 1 of 4, # 2 Exhibit 116; Part 2 of 4, # 3 Exhibit 116; Part 3 of 4, # 4 Exhibit; Part 4 of 4, # 6 Exhibit 117, # 7 Exhibit 118, # 8 Exhibit 119, # 9 Exhibit 120) (jlmS, COURT STAFF). (Additional attachment(s) added on 9/24/2015: # 10 Exhibit 115) (jlmS, COURT STAFF). (Entered: 05/01/2014)

10/09/2012 218 ***ERRONEOUS ENTRY; DUPLICATE OF PREVIOUSLY FILED EXHIBITS. PLEASE REFER TO DOCUMENT

NOS. 211 - 217 ***

EXHIBITS (CD - Copies of Exhibits 1-120) re 116 Declaration of Kurt Opsahl in Support Motion for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense and Opposition to the Government Defendants' Cross Motion, filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 116 ) (jlmS, COURT STAFF) (Filed on 10/9/2012) (jlmS, COURT STAFF). Modified on 1/4/2016 (jlmS, COURT STAFF). Modified on 1/4/2016 (jlmS, COURT STAFF). (Entered: 05/01/2014)

10/12/2012

117 NOTICE of Appearance by Babak Siavoshy and Jennifer Urban as Counsel on Behalf of Amicus Curiae People For the American Way Foundation (Siavoshy, Babak) (Filed on 10/12/2012) (Entered: 10/12/2012)

10/12/2012

118 MOTION for Leave to File Brief of Amicus Curiae People For the American Way Foundation In Support of Plaintiffs' Partial Motion for Summary Judgment, MOTION to File Amicus Curiae Brief In Support of Plaintiffs' Motion for Partial Summary Judgment filed by People For the American Way Foundation. Responses due by 10/19/2012. Replies due by 10/26/2012. (Attachments: # 1 Amicus Brief)(Siavoshy, Babak) (Filed on 10/12/2012) (Entered: 10/12/2012)

10/19/2012

119 REPLY (re 102 Second MOTION to Dismiss and for Summary Judgment; Opposition to Plaintiffs' Partial Motion for Summary Judgment ) Government Defendants' Reply in Support of Second Motion to Dismiss and for Summary Judgment filed byKeith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Exhibit Exhibit to Government Defendants' Reply)(Coppolino, Anthony) (Filed on 10/19/2012) (Entered: 10/19/2012)

10/19/2012

120 OBJECTIONS to re 115 Request for Judicial Notice, 116 Declaration in Support, 113 Appendix, Government Defendants' Objection to Plaintiffs' Evidentiary Filings by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Coppolino, Anthony) (Filed on 10/19/2012) (Entered: 10/19/2012)

10/30/2012 121 ORDER by Judge Jeffrey S. White granting 118 Motion for Leave to File Amicus Curiae Brief (jjoS, COURT STAFF) (Filed on 10/30/2012) (Entered: 10/30/2012)

11/13/2012

122 ORDER by Judge JEFFREY S. WHITE granting 84 Administrative Motion to File Under Seal (jjoS, COURT STAFF) (Filed on 11/13/2012) (Entered: 11/13/2012)

12/03/2012 123 Statement of Fact of Death of Gergory Hicks by Tash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Cohn, Cindy) (Filed on 12/3/2012) (Entered: 12/03/2012)

12/03/2012 124 STIPULATION WITH PROPOSED ORDER Substituting Party filed by Tash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Cohn, Cindy) (Filed on 12/3/2012) (Entered: 12/03/2012)

12/04/2012

125 Incorrect Document Attached - Please disregard and see Doc. No. 126 ORDER GRANTING 124 STIPULATION Substituting Party. Signed by Judge JEFFREY S. WHITE on 12/4/12. (jjoS, COURT STAFF) (Filed on 12/4/2012) Modified on 12/4/2012 (jjoS, COURT STAFF). (Entered: 12/04/2012)

12/04/2012

126 ORDER GRANTING 124 STIPULATION Substituting Party. Signed by Judge Jeffrey S. White on 12/4/12. (jjoS, COURT STAFF) (Filed on 12/4/2012) (Entered: 12/04/2012)

12/10/2012

127 NOTIFICATION OF REQUEST TO VIDEO RECORD DECEMBER 14, 2012 MOTION HEARING Pursuant to General Order 65 and the Cameras in the Courtroom Pilot Project. NO LATER THAN 5:00 p.m. PST on December 11, 2012, all parties shall complete the attached Party Response Form and email it to cameras@cand.uscourts.gov. (Attachments: # 1 Party Response Form) (cmw, COURT STAFF) (Filed on 12/10/2012) (Entered: 12/10/2012)

12/12/2012

128 NOTICE REGARDING PROPOSED VIDEO RECORDING - All Parties Have Consented to the Video Recording of the December 14, 2012 Motion Hearing as part of the Cameras in the Courtroom Pilot Project. (cmw, COURT STAFF) (Filed on 12/12/2012) (Entered: 12/12/2012)

12/12/2012

129 NOTICE by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton Notice of Amended Ninth Circuit Decision in Al-Haramain v. Obama (Cohn, Cindy) (Filed on 12/12/2012) (Entered: 12/12/2012)

12/12/2012 130 NOTICE OF QUESTIONS FOR HEARING. Signed by Judge Jeffrey S. White on December 12, 2012. (jswlc2, COURT STAFF) (Filed on 12/12/2012) (Entered: 12/12/2012)

12/12/2012

131 NOTICE by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton Notice of Additional Authorities Pursuant To The Court's December 12, 2012 Order (Wiebe, Richard) (Filed on 12/12/2012) (Entered: 12/12/2012)

12/14/2012 132 Minute Entry: Motion Hearing held on 12/14/2012 before Jeffrey S. White (Date Filed: 12/14/2012). (Court Reporter Joan Columbini.) (jjoS, COURT STAFF) (Date Filed: 12/14/2012) (Entered: 12/14/2012)

12/14/2012

Received Document (EXHIBIT) 1 re 132 Motion Hearing. (hdjS, COURT STAFF) (Filed on 12/14/2012) (Entered: 12/21/2012)

12/21/2012

133 Transcript of Proceedings held on December 14, 2012, before Judge Jeffrey S. White. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, Telephone number 415-255-6842. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 1/11/2013. Redacted Transcript Deadline set for 1/22/2013. Release of Transcript Restriction set for 3/21/2013. (Columbini, Joan) (Filed on 12/21/2012) (Entered: 12/21/2012)

01/15/2013

134 STIPULATION WITH PROPOSED ORDER regarding substitution of party filed by David S. Addington, Keith B. Alexander, John D. Ashcroft, George W. Bush, Richard B. Cheney, Alberto R. Gonzales, Michael V. Hayden, John M. McConnell, Michael B. Mukasey, John D. Negroponte. (Whitman, James) (Filed on 1/15/2013) (Entered: 01/15/2013)

01/16/2013

135 ORDER by Judge Jeffrey S. White granting 134 Stipulation: The deadline for filing a motion or stipulation for substitution regarding Mr. Hicks claims against the individual capacity defendants is extended until sixty days after the issuance of an order by this Court deciding the cross-motions filed by the plaintiffs and the government defendants sued in their official capacity. (tdm, COURT STAFF) (Filed on 1/16/2013) (Entered: 01/16/2013)

02/12/2013

136 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d (Pollack v. Hogan) filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 83 , 102 ) (Wiebe, Richard) (Filed on 2/12/2013) (Entered: 02/12/2013)

02/27/2013

137 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d filed byKeith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Clapper v. Amnesty International)(Related document(s) 83 , 102 ) (Berman, Marcia) (Filed on 2/27/2013) (Entered: 02/27/2013)

02/27/2013 138 ORDER RE ADDITIONAL BRIEFING. Signed by Judge Jeffrey S. White on February 27, 2013. (jswlc2, COURT STAFF) (Filed on 2/27/2013) (Entered: 02/27/2013)

03/06/2013

139 Supplemental Brief by Govt. Defs. Addressing Clapper v. Amnesty Int'l filed byKeith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Berman, Marcia) (Filed on 3/6/2013) (Entered: 03/06/2013)

03/13/2013

140 Supplemental Brief re 83 MOTION for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense, 138 Order, 102 Second MOTION to Dismiss and for Summary Judgment; Opposition to Plaintiffs' Partial Motion for Summary Judgment ; Plaintiffs' Supplemental Brief re: Clapper v. Amnesty International filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 83 , 138 , 102 ) (Wiebe, Richard) (Filed on 3/13/2013) (Entered: 03/13/2013)

04/04/2013 141 NOTICE of Change of Address by Cindy Ann Cohn (Cohn, Cindy) (Filed on 4/4/2013) (Entered: 04/04/2013)

06/07/2013

142 NOTICE by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America re 83 MOTION for Partial Summary Judgment Rejecting the Government Defendants' State Secret Defense, 102 Second MOTION to Dismiss and for Summary Judgment; Opposition to Plaintiffs' Partial Motion for Summary Judgment Notice and Request that the Court Hold the Pending Cross-Motions for Summary Judgment in Abeyance (Berman, Marcia) (Filed on 6/7/2013) (Entered: 06/07/2013)

06/13/2013

143 RESPONSE to re 142 Notice (Other),, Plaintiffs' Opposition to Government Defendants' Request to Stay Litigation by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Proposed Order)(Wiebe, Richard) (Filed on 6/13/2013) (Entered: 06/13/2013)

06/13/2013

144 DECLARATION of Thomas E. Moore III in Opposition to 142 Notice (Other),, filed byTash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 142 ) (Moore, Thomas) (Filed on 6/13/2013) (Entered: 06/13/2013)

06/19/2013 145 NOTICE by People For the American Way Foundation Of Withdrawal Of Certain Counsel For Amicus Curiae (Siavoshy, Babak) (Filed on 6/19/2013) (Entered: 06/19/2013)

06/19/2013

146 Response re 143 Response ( Non Motion ), Government Defendants' Response to Plaintiffs' Opposition to Defendants' June 7, 2013 Notice byKeith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Coppolino, Anthony) (Filed on 6/19/2013) (Entered: 06/19/2013)

07/02/2013

147 DECLARATION of Richard R. Wiebe in Opposition to 142 Notice (Other),, filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Exhibit Exhibit A, Part 1 of 5, # 2 Exhibit Exhibit A, Part 2 of 5, # 3 Exhibit Exhibit A, Part 3 of 5, # 4 Exhibit Exhibit A, Part 4 of 5, # 5 Exhibit Exhibit A, Part 5 of 5)(Related document(s) 142 ) (Wiebe, Richard) (Filed on 7/2/2013) (Entered: 07/02/2013)

07/08/2013

148 ORDER by Judge Jeffrey S. White GRANTING 83 Plaintiff's Motion for Partial Summary Judgment; GRANTING IN PART and DEFERRING RULING IN PART on 102 Defendants' Motion to Dismiss and for Summary Judgment. (jswlc2, COURT STAFF) (Filed on 7/8/2013) (Entered: 07/08/2013)

07/08/2013

Set/Reset Deadlines:, Set/Reset Hearing pursuant to: 148 Order on Motion for Partial Summary Judgment, Order on Motion to Dismiss,, Case Management Statement due by 8/16/2013. Case Management Conference set for 8/23/2013 01:30 PM in Courtroom 11, 19th Floor, San Francisco. (jjoS, COURT STAFF) (Filed on 7/8/2013) (Entered: 07/08/2013)

07/12/2013 149 NOTICE of Appearance by Mark Thomas Rumold (Rumold, Mark) (Filed on 7/12/2013) (Entered: 07/12/2013)

07/15/2013

150 MOTION for Reconsideration re 148 Order on Motion for Partial Summary Judgment, Order on Motion to Dismiss,, filed by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Proposed Order)(Cohn, Cindy) (Filed on 7/15/2013) (Entered: 07/15/2013)

07/16/2013

151 Proposed Order Plaintiffs' Corrected [Proposed] Order Clarifying July 8, 2013 Order (ECF No. 148) by Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Cohn, Cindy) (Filed on 7/16/2013) (Entered: 07/16/2013)

07/16/2013 152 MOTION to Relate Case filed by Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Cohn, Cindy) (Filed on 7/16/2013) (Entered: 07/16/2013)

07/23/2013 153 AMENDED ORDER. Signed by Judge Jeffrey S. White on July 23, 2013. (jswlc2, COURT STAFF) (Filed on 7/23/2013) (Entered: 07/23/2013)

07/24/2013 154 ORDER by Judge Jeffrey S. White granting 152 Motion to Relate Case (jjoS, COURT STAFF) (Filed on 7/24/2013) (Entered: 07/24/2013)

07/30/2013

155 STIPULATION WITH PROPOSED ORDER to Continue Case Management Conference filed by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Berman, Marcia) (Filed on 7/30/2013) (Entered: 07/30/2013)

08/05/2013

156 ORDER GRANTING 155 Stipulation to Continue Case Management Conference. Case Management Statement due by 9/20/2013. Case Management Conference set for 9/27/2013 01:30 PM in Courtroom 11, 19th Floor, San Francisco. Signed by Judge Jeffrey S. White on August 5, 2013. (jswlc3, COURT STAFF) (Filed on 8/5/2013) (Entered: 08/05/2013)

09/11/2013 157 NOTICE of Appearance by Benjamin Berkowitz (Berkowitz, Benjamin) (Filed on 9/11/2013) (Entered: 09/11/2013)

09/11/2013 158 NOTICE of Appearance by Justina Kahn Sessions (Sessions, Justina) (Filed on 9/11/2013) (Entered: 09/11/2013)

09/20/2013 159 CASE MANAGEMENT STATEMENT Joint filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Wiebe, Richard) (Filed on 9/20/2013) (Entered: 09/20/2013)

09/27/2013 160 Minute Entry: Status Conference held (Date Filed: 9/30/2013). (Court Reporter Debra Pas.) (jjoS, COURT STAFF) (Date Filed: 9/30/2013) Modified on 9/30/2013 (jjoS, COURT STAFF). (Entered: 09/30/2013)

09/30/2013

161 AMENDED Minute Entry: (Correction re: Briefing Schedule) Status Conference held (Date Filed: 9/30/2013). (Court Reporter Debra Pas.) (jjoS, COURT STAFF) (Filed on 9/30/2013) (Entered: 09/30/2013)

10/01/2013 162 TRANSCRIPT ORDER by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton for Court Reporter Debra Pas. (Cohn, Cindy) (Filed on 10/1/2013) (Entered: 10/01/2013)

10/03/2013

163 TRANSCRIPT ORDER by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America for Court Reporter Debra Pas. (Gilligan, James) (Filed on 10/3/2013) (Entered: 10/03/2013)

10/30/2013

164 Transcript of Proceedings held on 9-27-2013, before Judge Jeffrey S. White. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431-1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/28/2014. (Related documents(s) 162 ) (Pas, Debra) (Filed on 10/30/2013) (Entered: 10/30/2013)

11/01/2013 165 NOTICE of Change of Address by Thomas Edward Moore, III (Moore, Thomas) (Filed on 11/1/2013) (Entered: 11/01/2013)

12/11/2013 166 NOTICE of Appearance by Andrew Gellis Crocker (Crocker, Andrew) (Filed on 12/11/2013) (Entered: 12/11/2013)

12/20/2013

167 Supplemental Brief of Govt. Defs. on Threshold Legal Issues as Ordered by the Court at the Sept. 27, 2013 Case Management Conference filed byKeith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Berman, Marcia) (Filed on 12/20/2013) (Entered: 12/20/2013)

12/20/2013

168 Declaration of James Clapper , Director of National Intelligence (Public Declaration) filed byKeith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Berman, Marcia) (Filed on 12/20/2013) (Entered: 12/20/2013)

12/20/2013

169 Declaration of Frances J. Fleisch , National Security Agency (Public Declaration) filed byKeith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Berman, Marcia) (Filed on 12/20/2013) (Entered: 12/20/2013)

12/20/2013

170 NOTICE by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America of Lodging of In Camera, Ex Parte Classified Declaration of James R. Clapper, Director of National Intelligence (Berman, Marcia) (Filed on 12/20/2013) (Entered: 12/20/2013)

12/20/2013 171 NOTICE by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America of Lodging of In Camera, Ex Parte Classified Declaration of Frances J.

Fleisch, Acting Deputy Director of the National Security Agency (Berman, Marcia) (Filed on 12/20/2013) (Entered: 12/20/2013)

12/20/2013

172 NOTICE by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America of Filing Declassified Declarations (Attachments: # 1 2007 Declaration of J. Michael McConnell, Director of National Intelligence, filed in Jewel v. NSA and Shubert v. Obama, # 2 2007 Declaration of Lt. Gen. Keith B. Alexander, Director, National Security Agency, filed in Jewel v. NSA and Shubert v. Obama, # 3 2009 Declaration of Dennis C. Blair, Director of National Intelligence, filed in Jewel v. NSA, # 4 2009 Declaration of Dennis C. Blair, Director of National Intelligence, filed in Shubert v. Obama, # 5 2009 Declaration of Deborah A. Bonanni, National Security Agency, filed in Jewel v. NSA, # 6 2009 Declaration of Lt. Gen. Keith B. Alexander, Direcotr, National Security Agency, filed in Shubert v. Obama, # 7 2012 Declaration of James R. Clapper, Director of National Intelligence, filed in Jewel v. NSA and Shubert v. Obama, # 8 2012 Declaration of Frances J. Fleisch, National Security Agency, filed in Jewel v. NSA and Shubert v. Obama)(Berman, Marcia) (Filed on 12/20/2013) (Entered: 12/20/2013)

01/10/2014 173 RESPONSE to re 172 Notice (Other),,,, by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Cohn, Cindy) (Filed on 1/10/2014) (Entered: 01/10/2014)

01/10/2014

174 Declaration of Mark Rumold in Support of 173 Response ( Non Motion ) filed byTash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (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)(Related document(s) 173 ) (Rumold, Mark) (Filed on 1/10/2014) (Entered: 01/10/2014)

01/28/2014

175 STIPULATION WITH PROPOSED ORDER to Extend Briefing Schedule for Partial Summary Judgment Motion filed by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Cohn, Cindy) (Filed on 1/28/2014) (Entered: 01/28/2014)

01/29/2014

176 ORDER by Judge JEFFREY S. WHITE granting 175 Stipulation to Extend Briefing Schedule for Partial Summary Judgment Motion (jjoS, COURT STAFF) (Filed on 1/29/2014) (Entered: 01/29/2014)

01/31/2014

177 Supplemental Brief re 167 Supplemental Brief, PLAINTIFFS RESPONSES TO THE COURTS FOUR QUESTIONS filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice

Walton. (Related document(s) 167 ) (Wiebe, Richard) (Filed on 1/31/2014) (Entered: 01/31/2014)

01/31/2014

178 Declaration in Support of 177 Supplemental Brief, DECLARATION OF RICHARD R. WIEBE IN SUPPORT OF PLAINTIFFS RESPONSES TO THE COURTS FOUR QUESTIONS filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 177 ) (Wiebe, Richard) (Filed on 1/31/2014) (Entered: 01/31/2014)

02/10/2014

179 First MOTION for leave to appear in Pro Hac Vice in Jewel et al. v. NSA et al. ( Filing fee $ 305, receipt number 0971-8362288.) filed by Reporters Committee for Freedom of the Press. (Attachments: # 1 Certificate of Good Standing)(Brown, Bruce) (Filed on 2/10/2014) (Entered: 02/10/2014)

02/10/2014

180 STIPULATION WITH PROPOSED ORDER to Extend the Briefing Schedule on the Court's Four Questions and to Vacate the Briefing Schedule on Plaintiffs' Motion for Partial Summary Judgment filed by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Berman, Marcia) (Filed on 2/10/2014) (Entered: 02/10/2014)

02/11/2014

181 ORDER by Judge JEFFREY S. WHITE granting 180 Stipulation to Extend the Briefing Schedule on the Court's Four Questions and to Vacate the Briefing Schedule on Plaintiffs' Motion for Partial Summary Judgment (jjoS, COURT STAFF) (Filed on 2/11/2014) (Entered: 02/11/2014)

02/11/2014 182 ORDER by Judge JEFFREY S. WHITE granting 179 Motion for Pro Hac Vice for Bruce D. Brown (jjoS, COURT STAFF) (Filed on 2/11/2014) (Entered: 02/11/2014)

02/27/2014

183 STIPULATION WITH PROPOSED ORDER (Second Stipulation and Proposed Order To Extend the Briefing Schedule on the Court's Four Questions) filed by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Gilligan, James) (Filed on 2/27/2014) (Entered: 02/27/2014)

03/03/2014

184 ORDER by Judge JEFFREY S. WHITE granting 183 Second Stipulation and Proposed Order To Extend the Briefing Schedule on the Court's Four Questions (jjoS, COURT STAFF) (Filed on 3/3/2014) (Entered: 03/03/2014)

03/07/2014 185 RESPONSE to Court's Threshold Issues (Government Defendants' Reply on Threshold Legal Issues as Ordered by the Court at the September 27, 2013, Status Conference) by Keith B. Alexander, Dennis

C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Gilligan, James) (Filed on 3/7/2014) (Entered: 03/07/2014)

03/10/2014

186 MOTION for Temporary Restraining Order filed by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Declaration of Cindy Cohn, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Proposed Order)(Cohn, Cindy) (Filed on 3/10/2014) (Entered: 03/10/2014)

03/10/2014 187 ORDER RE TEMPORARY RESTRAINING ORDER. Signed by Judge Jeffrey S. White on 3/10/14. (jjoS, COURT STAFF) (Filed on 3/10/2014) (Entered: 03/10/2014)

03/10/2014

Set/Reset Deadlines as to (186 in 3:08-cv-04373-JSW) MOTION for Temporary Restraining Order , (86 in 3:13-cv-03287-JSW) MOTION for Temporary Restraining Order . Responses due by 3/10/2014 by 2:00 p.m. P.S.T. (jjoS, COURT STAFF) (Filed on 3/10/2014) (Entered: 03/10/2014)

03/10/2014

188 RESPONSE to Court's Order re: Plaintiffs' Motion for TRO by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Gilligan, James) (Filed on 3/10/2014) (Entered: 03/10/2014)

03/10/2014

189 ORDER GRANTING (86 in 3:13-cv-03287-JSW) Motion for Temporary Restraining Order, (186 in 3:08-cv-04373-JSW) Motion for Temporary Restraining Order. Motions due by 3/13/2014 at 2:00 p.m. Responses due by 3/17/2014 at 11:00 a.m. Replies due by 3/18/2014 at 2:00 p.m. Motion Hearing set for 3/19/2014 02:00 PM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. Signed by Judge Jeffrey S. White on March 10, 2014. (jswlc3, COURT STAFF) (Filed on 3/10/2014) (Entered: 03/10/2014)

03/11/2014

190 ERRATA re 185 Response ( Non Motion ), Gvt. Defs.' Reply on Threshold Legal Issues as Ordered by the Court at the Sept. 27, 2013 Status Conference by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Corrected Gvt. Defs.' Reply on Threshold Legal Issues Ordered by the Court)(Berman, Marcia) (Filed on 3/11/2014) (Entered: 03/11/2014)

03/13/2014 191 Brief Plaintiffs' Opening Brief Re Evidence Preservation filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice

Walton. (Attachments: # 1 Proposed Order)(Cohn, Cindy) (Filed on 3/13/2014) (Entered: 03/13/2014)

03/14/2014

192 Clerks Notification of Request for Video Recording (Attachments: # 1 Party Response to Request for Video Recording) (zml, COURT STAFF) (Filed on 3/14/2014) (Entered: 03/14/2014)

03/17/2014

193 RESPONSE to re 191 Brief (Government Defendants' Response to Plaintiffs' Opening Brief re Preservation) by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Gilligan, James) (Filed on 3/17/2014) (Entered: 03/17/2014)

03/17/2014

194 NOTICE by Keith B. Alexander, Dennis C Blair, George W. Bush, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America (Government Defendants' Notice of Filing of Ex Parte, In Camera Declaration of Teresa H. Shea, Director of the Signals Intelligence Directorate, NSA) (Gilligan, James) (Filed on 3/17/2014) (Entered: 03/17/2014)

03/18/2014 195 Clerk's Notice Regarding Proposed Video Recording (zml, COURT STAFF) (Filed on 3/18/2014) (Entered: 03/18/2014)

03/18/2014

196 Brief re 191 Brief Plaintiffs' Reply Brief Re Evidence Preservation filed byTash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 191 ) (Cohn, Cindy) (Filed on 3/18/2014) (Entered: 03/18/2014)

03/18/2014

197 NOTICE OF QUESTIONS FOR HEARING. Signed by Judge Jeffrey S. White on March 18, 2014. (jswlc2, COURT STAFF) (Filed on 3/18/2014) (Entered: 03/18/2014)

03/19/2014

198 TRANSCRIPT ORDER by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America for Court Reporter Lydia Zinn. (Gilligan, James) (Filed on 3/19/2014) (Entered: 03/19/2014)

03/19/2014

199 *** SEE CORRECTED TRANSCRIPT AT 201 . *** Transcript of Proceedings held on 3/19/2014, before Judge Jeffrey S. White. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531-6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days

from date of this filing. Release of Transcript Restriction set for 6/17/2014. (Zinn, Lydia) (Filed on 3/19/2014) Modified on 3/20/2014 (fff, COURT STAFF). (Entered: 03/19/2014)

03/19/2014

206 AMENDED Minute Entry: Motion Hearing held on 3/19/2014 before Judge Jeffrey S. White (Date Filed: 3/19/2014) re (186 in 3:08-cv04373-JSW) MOTION for Temporary Restraining Order and (86 in 3:13-cv-03287-JSW) MOTION for Temporary Restraining Order. (Court Reporter Lydia Zinn.) (jjoS, COURT STAFF) (Date Filed: 3/19/2014) (jjoS, COURT STAFF) (Filed on 3/19/2014) Modified on 4/18/2014 (jlmS, COURT STAFF). (Entered: 04/17/2014)

03/20/2014

200 Minute Entry: Motion Hearing held on 3/19/2014 before Judge Jeffrey S. White (Date Filed: 3/20/2014) re (186 in 3:08-cv-04373-JSW) MOTION for Temporary Restraining Order and (86 in 3:13-cv-03287JSW) MOTION for Temporary Restraining Order. (Court Reporter Lydia Zinn.) (jjoS, COURT STAFF) (Date Filed: 3/20/2014) (Entered: 03/20/2014)

03/20/2014

201 Amended Transcript of Proceedings (amended both to reflect a correction of the hearing date on the cover page, and a correction as to the contact information for the National Security Agency) held on 03/19/2014, before Judge Jeffrey S. White. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531-6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 6/18/2014. (Zinn, Lydia) (Filed on 3/20/2014) (Entered: 03/20/2014)

03/21/2014

202 NOTICE by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton Notice of Opinion and Order by Foreign Intelligence Surveillance Court (Cohn, Cindy) (Filed on 3/21/2014) (Entered: 03/21/2014)

03/24/2014

203 Supplemental Brief re 167 Supplemental Brief, 190 Errata, 177 Supplemental Brief, PLAINTIFFS REPLY Re QUESTION THREE (Clapper) OF THE COURTS FOUR QUESTIONS filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 167 , 190 , 177 ) (Wiebe, Richard) (Filed on 3/24/2014) (Entered: 03/24/2014)

03/26/2014 204 RESPONSE to the Court's Question About Rule 11 Certifications by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric

Holder, National Security Agency, Barack Obama, United States of America. (Berman, Marcia) (Filed on 3/26/2014) (Entered: 03/26/2014)

04/01/2014

205 ORDER RE UNDER SEAL DOCUMENTS. Signed by Judge Jeffrey S. White on 4/1/14. (jjoS, COURT STAFF) (Filed on 4/1/2014) (Entered: 04/01/2014)

04/21/2014

207 STIPULATION WITH PROPOSED ORDER for an Extension of Time to Process for Public Filing Certain Classified Declarations and for an Extension of Time To File a Rule 11 Certification Regarding Preservation in First Unitarian, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, Tash Hepting. (Gilligan, James) (Filed on 4/21/2014) Modified on 4/22/2014 (jlmS, COURT STAFF). (Entered: 04/21/2014)

04/21/2014

208 NOTICE of Appearance of Counsel filed by Aram Vazken Antaramian, filed by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton (Antaramian, Aram) (Filed on 4/21/2014) Modified on 4/22/2014 (jlmS, COURT STAFF). (Entered: 04/21/2014)

04/21/2014

209 NOTICE of Identification of Classified Declarations Filed on the Public Record in Redacted Form and Those Undergoing Classification Review, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America (Gilligan, James) (Filed on 4/21/2014) Modified on 4/22/2014 (jlmS, COURT STAFF). (Entered: 04/21/2014)

04/22/2014

210 ORDER GRANTING (107 in 4:13-cv-03287-JSW) and (207 in 4:08-cv-4373-JSW) STIPULATION for an Extension of Time To Process for Public Filing Certain Classified Declarations and for an Extension of Time To File a Rule 11 Certification Regarding Preservation. Signed by Judge Jeffrey S. White on April 21, 2014. (jswlc3, COURT STAFF) (Filed on 4/22/2014) (Entered: 04/22/2014)

05/05/2014

219 Classified Declaration of Michael B. Mukasey in Support of 209 Notice of Identification of Classified Declarations Filed on the Public Record in Redacted Form and Those Undergoing Classification Review/Declassified 2008 Certification of Attorney General Mukasey, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Related document(s) 209 ) (Berman, Marcia) (Filed on 5/5/2014) Modified on 5/6/2014 (jlmS, COURT STAFF). Modified on 5/6/2014 (jlmS, COURT STAFF). Modified on 5/6/2014 (jlmS,

COURT STAFF). Modified on 5/6/2014 (jlmS, COURT STAFF). (Entered: 05/05/2014)

05/05/2014

220 Classified Declaration of James R. Clapper, DNI in Support of 209 Notice of Identification of Classified Declarations Filed on the Public Record in Redacted Form and Those Undergoing Classification Review, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Related document(s) 209 ) (Berman, Marcia) (Filed on 5/5/2014) Modified on 5/6/2014 (jlmS, COURT STAFF). Modified on 5/6/2014 (jlmS, COURT STAFF). Modified on 5/6/2014 (jlmS, COURT STAFF). (Entered: 05/05/2014)

05/05/2014

221 Classified Declaration of J. Michael McConnell, DNI in Support of 209 Notice of Identification of Classified Declarations Filed on the Public Record in Redacted Form and Those Undergoing Classification Review/Declassified 2007, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Related document(s) 209 ) (Berman, Marcia) (Filed on 5/5/2014) Modified on 5/6/2014 (jlmS, COURT STAFF). Modified on 5/6/2014 (jlmS, COURT STAFF). Modified on 5/6/2014 (jlmS, COURT STAFF). (Entered: 05/05/2014)

05/05/2014

222 Classified Declaration of John D. Negroponte, DNI Negroponte in Support of 209 Notice of Identification of Classified Declarations Filed on the Public Record in Redacted Form and Those Undergoing Classification Review/Declassified 2006 filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Related document(s) 209 ) (Berman, Marcia) (Filed on 5/5/2014) Modified on 5/6/2014 (jlmS, COURT STAFF). Modified on 5/6/2014 (jlmS, COURT STAFF). (Entered: 05/05/2014)

05/05/2014

223 Supplemental Declaration of John D. Negroponte in Support of 209 Notice of Identification of Classified Declarations Filed on the Public Record in Redacted Form and Those Undergoing Classification Review/Declassified 2006 Supplemental Declaration of DNI Negroponte, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Related document(s) 209 ) (Berman, Marcia) (Filed on 5/5/2014) Modified on 5/6/2014 (jlmS, COURT STAFF). (Entered: 05/05/2014)

05/05/2014

224 Classified Declaration of Lt. General Keith B. Alexander in Support of 209 Notice of Identification of Classified Declarations Filed on the Public Record in Redacted Form and Those Undergoing Classification

Review/Declassified 2006, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Related document(s) 209 ) (Berman, Marcia) (Filed on 5/5/2014) Modified on 5/6/2014 (jlmS, COURT STAFF). (Entered: 05/05/2014)

05/05/2014

225 Classified Declaration of Lieutenant General Keith B. Alexander in Support of 209 Notice of Identification of Classified Declarations Filed on the Public Record in Redacted Form and Those Undergoing Classification Review/Declassified 2007, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Related document(s) 209 ) (Berman, Marcia) (Filed on 5/5/2014) Modified on 5/6/2014 (jlmS, COURT STAFF). (Entered: 05/05/2014)

05/05/2014

226 Classified Declaration of William B. Black, Acting Director, NSI in Support of 209 Notice of Identification of Classified Declarations Filed on the Public Record in Redacted Form and Those Undergoing Classification Review/Declassified 2006, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Related document(s) 209 ) (Berman, Marcia) (Filed on 5/5/2014) Modified on 5/6/2014 (jlmS, COURT STAFF). (Entered: 05/05/2014)

05/05/2014

227 Classified Declaration of Frances Fleisch in Support of 209 Notice of Identification of Classified Declarations Filed on the Public Record in Redacted Form and Those Undergoing Classification Review/Declassified 2013, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Related document(s) 209 ) (Berman, Marcia) (Filed on 5/5/2014) Modified on 5/6/2014 (jlmS, COURT STAFF). (Entered: 05/05/2014)

05/05/2014

228 Classified Declaration of Teresa H. Shea in Support of 209 Notice of Identification of Classified Declarations Filed on the Public Record in Redacted Form and Those Undergoing Classification Review/Declassified 2014, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Related document(s) 209 ) (Berman, Marcia) (Filed on 5/5/2014) Modified on 5/6/2014 (jlmS, COURT STAFF). (Entered: 05/05/2014)

05/09/2014

229 Brief re Compliance with Preservation Orders, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America.

(Berman, Marcia) (Filed on 5/9/2014) Modified on 5/12/2014 (jlmS, COURT STAFF). (Entered: 05/09/2014)

05/09/2014

230 [REDACTED] Classified Declaration of Miriam P., National Security Agency Ex Parte, In Camera Submission, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Berman, Marcia) (Filed on 5/9/2014) Modified on 5/12/2014 (jlmS, COURT STAFF). (Entered: 05/09/2014)

05/09/2014

231 NOTICE of Lodging of Classified NSA Declaration, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America (Berman, Marcia) (Filed on 5/9/2014) Modified on 5/12/2014 (jlmS, COURT STAFF). (Entered: 05/09/2014)

05/09/2014

232 Declaration of Anthony J. Coppolino filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Berman, Marcia) (Filed on 5/9/2014) Modified on 5/12/2014 (jlmS, COURT STAFF). (Entered: 05/09/2014)

05/30/2014

233 Brief re: the Government's Non-Compliance with the Court's Evidence Preservation Orders filed byTash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Proposed Order)(Cohn, Cindy) (Filed on 5/30/2014) (Entered: 05/30/2014)

06/03/2014

234 ORDER GRANTING STIPULATION CONCERNING BRIEFING SCHEDULE. Signed by Judge Jeffrey S. White on 6/3/14. (jjoS, COURT STAFF) (Filed on 6/3/2014) (Entered: 06/03/2014)

06/05/2014

235 Emergency Ex Parte MOTION to Enforce the Court's Temporary Restraining Order, filed by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Declaration of Cindy Cohn)(Cohn, Cindy) (Filed on 6/5/2014) Modified on 6/6/2014 (jlmS, COURT STAFF). (Entered: 06/05/2014)

06/05/2014

236 ORDER re 235 Emergency Ex Parte Application to Enforce the Court's Temporary Restraining Order. Signed by Judge Jeffrey S. White on 6/5/14. (jjoS, COURT STAFF) (Filed on 6/5/2014) (Entered: 06/05/2014)

06/05/2014 237 Emergency MOTION to Stay re 236 Order Emergency Motion to Stay the Court's June 5, 2014 Order filed by Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of

America. Responses due by 6/6/2014. Replies due by 6/13/2014. (Coppolino, Anthony) (Filed on 6/5/2014) (Entered: 06/05/2014)

06/05/2014

238 Memorandum in Opposition re 237 Emergency Motion to Stay Order filed by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Cohn, Cindy) (Filed on 6/5/2014) Modified on 6/6/2014 (jlmS, COURT STAFF). (Entered: 06/05/2014)

06/06/2014

239 ORDER SETTING HEARING. APPLICATION TO ENFORCE Temporary Restraining Order Hearing set for 6/6/2014 02:00 PM.. Signed by Judge Jeffrey S. White on 6/6/14. (jjoS, COURT STAFF) (Filed on 6/6/2014) (Entered: 06/06/2014)

06/06/2014

240 NOTICE of Phone Number for Government Counsel for Emergency Hearing, filed by Department of Justice re 239 Order, filed by Eric Holder, National Security Agency, Barack Obama, United States of America (Coppolino, Anthony) (Filed on 6/6/2014) Modified on 6/9/2014 (jlmS, COURT STAFF). (Entered: 06/06/2014)

06/06/2014

241 MOTION for Extension of Time to File Opposition to Plaintiffs' Emergency Motion to Enforce Court's Temporary Restraining Order, filed by Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Coppolino, Anthony) (Filed on 6/6/2014) Modified on 6/9/2014 (jlmS, COURT STAFF). Modified on 6/9/2014 (jlmS, COURT STAFF). (Entered: 06/06/2014)

06/06/2014

242 ORDER by Judge Jeffrey S. White granting in part 241 Motion for Extension of Time to File Opposition. Signed by Judge Jeffrey S. White, on 06/06/2014 (jswlc2, COURT STAFF) (Filed on 6/6/2014) Modified on 6/9/2014 (jlmS, COURT STAFF). (Entered: 06/06/2014)

06/06/2014

243 Memorandum in Opposition re 235 Emergency Ex Parte Motion to Enforce the Court's Temporary Restraining Order, filed by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Berman, Marcia) (Filed on 6/6/2014) Modified on 6/9/2014 (jlmS, COURT STAFF). (Entered: 06/06/2014)

06/06/2014

244 Declaration of Richard H. Ledgett, Jr. in Support re 243 Memorandum in Opposition filed by United States of America. (Attachments: # 1 Ex. B, # 2 Ex. C, # 3 Ex. D, # 4 Ex. E)(Related document(s) 243 ) (Berman, Marcia) (Filed on 6/6/2014) Modified on 6/9/2014 (jlmS, COURT STAFF). (Entered: 06/06/2014)

06/06/2014

245 Declaration of James Gilligan in Support of 243 Memorandum in Opposition filed by United States of America. (Related document(s) 243 ) (Berman, Marcia) (Filed on 6/6/2014) Modified on 6/9/2014 (jlmS, COURT STAFF). (Entered: 06/06/2014)

06/06/2014

246 Minute Entry: Temporary Restraining Order Hearing - Non-evidentiary held on 6/6/2014 before Judge Jeffrey S. White (Date Filed: 6/6/2014). (Court Reporter: Kathy Wyatt.) (jjoS, COURT STAFF) (Date Filed: 6/6/2014) Modified on 6/11/2014 (jlmS, COURT STAFF). (Entered: 06/09/2014)

06/09/2014

247 TRANSCRIPT ORDER for Motion Hearing Held on 06/06/2014, filed by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton for Court Reporter: Katherine Wyatt. (Cohn, Cindy) (Filed on 6/9/2014) Modified on 6/10/2014 (jlmS, COURT STAFF). (Entered: 06/09/2014)

06/13/2014

248 Letter to Judge Jeffrey S. White re Telephonic Hearing Held on 06/06/14, from Marica Berman, dated 06/12/14. (kc, COURT STAFF) (Filed on 6/13/2014) (jlmS, COURT STAFF). Modified on 8/5/2014 (jlmS, COURT STAFF). (Entered: 06/16/2014)

06/13/2014

249 ORDER RE REQUEST by Judge Jeffrey S. White, signed on 06/13/14. (kc, COURT STAFF) (Filed on 6/13/2014) (jlmS, COURT STAFF). Modified on 8/5/2014 (jlmS, COURT STAFF). Modified on 8/5/2014 (jlmS, COURT STAFF). (Entered: 06/16/2014)

06/20/2014

250 RESPONSE to 122 Order, filed by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Cohn, Cindy) (Filed on 6/20/2014) Modified on 8/5/2014 (jlmS, COURT STAFF). Modified on 8/5/2014 (jlmS, COURT STAFF). (Entered: 06/20/2014)

06/23/2014

251 ORDER by Judge Jeffrey S. White, signed on 06/23/14. (jlmS, COURT STAFF) (Filed on 6/23/2014) Modified on 8/5/2014 (jlmS, COURT STAFF). Modified on 8/5/2014 (jlmS, COURT STAFF). (Additional attachment(s) added on 8/5/2014: # 2 Main Document II) (jlmS, COURT STAFF). (Additional attachment(s) added on 8/7/2014: # 3 Main Document) (jlm, COURT STAFF). Modified on 8/7/2014 (jlmS, COURT STAFF). ***DOCUMENT UNSEALED BY ORDER OF THE COURT, PLEASE SEE DOCUMENT NO. 275 *** (Entered: 06/23/2014)

06/23/2014

252 RESPONSE to 131 Order, filed by Virginia Shubert (jlmS, COURT STAFF) (Filed on 6/23/2014) (Additional attachment(s) added on 8/5/2014: # 1 Main Document) (jlmS, COURT STAFF). Modified on 8/5/2014 (jlmS, COURT STAFF). (Additional attachment(s) added on

8/5/2014: # 2 Main Document II) (jlmS, COURT STAFF). (Additional attachment(s) added on 8/7/2014: # 4 Main Document) (jlm, COURT STAFF). Modified on 8/7/2014 (jlmS, COURT STAFF). ***DOCUMENT UNSEALED BY ORDER OF THE COURT, PLEASE SEE DOCUMENT NO. 275 *** (Entered: 06/23/2014)

06/27/2014

253 Reply Memornadum re Compliance With Preservation Orders, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Declaration of James J. Gilligan, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Gilligan, James) (Filed on 6/27/2014) Modified on 6/30/2014 (jlmS, COURT STAFF). (Entered: 06/27/2014)

06/30/2014

254 ERRATA to 253 Reply Memorandum, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Exhibit (Corrected Government Defendants' Reply Brief Regarding Compliance With Preservation Orders))(Gilligan, James) (Filed on 6/30/2014) Modified on 7/1/2014 (jlmS, COURT STAFF). (Entered: 06/30/2014)

06/30/2014

255 Administrative Motion to File Under Seal Response to June 23, 2014 Order filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Declaration of Marcia Berman, # 2 Proposed Order, # 3 Document sought to be filed under seal)(Berman, Marcia) (Filed on 6/30/2014) (Entered: 06/30/2014)

07/02/2014 256 ORDER by Judge JEFFREY S. WHITE granting 255 Administrative Motion to File Under Seal (jjoS, COURT STAFF) (Filed on 7/2/2014) (Entered: 07/02/2014)

07/11/2014

257 ORDER by Judge Jeffrey S. White, signed on 07/11/14. (jlmS, COURT STAFF) (Filed on 7/11/2014) (Additional attachment(s) added on 8/5/2014: # 2 Main Document) (jlmS, COURT STAFF). Modified on 8/5/2014 (jlmS, COURT STAFF). Modified on 8/5/2014 (jlmS, COURT STAFF). (Additional attachment(s) added on 8/7/2014: # 4 Main Document) (jlm, COURT STAFF). Modified on 8/7/2014 (jlmS, COURT STAFF). ***DOCUMENT UNSEALED BY ORDER OF THE COURT, PLEASE SEE DOCUMENT NO. 275 *** (Entered: 07/11/2014)

07/16/2014

258 NOTICE of Withdrawal of Paula L. Blizzard as Counsel for Plaintiffs, filed by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Blizzard, Paula) (Filed on

7/16/2014) Modified on 7/17/2014 (jlmS, COURT STAFF). (Entered: 07/16/2014)

07/16/2014

259 NOTICE of Appearance of Philip James Tassin as Counsel, filed by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton (Tassin, Philip) (Filed on 7/16/2014) Modified on 7/17/2014 (jlmS, COURT STAFF). (Entered: 07/16/2014)

07/18/2014

260 Final Brief Re Enforcement of Evidence Preservation Orders (Pursuant to the Court's June 6, 2014 Order) filed by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Cohn, Cindy) (Filed on 7/18/2014) Modified on 7/21/2014 (kcS, COURT STAFF). (Entered: 07/18/2014)

07/25/2014

261 MOTION for Partial Summary Judgment filed by Carolyn Jewel, Erik Knutzen, Joice Walton. Motion Hearing set for 10/31/2014 09:00 AM in Courtroom 5, 2nd Floor, Oakland before Hon. Jeffrey S. White. Responses due by 8/8/2014. Replies due by 8/15/2014. (Attachments: # 1 Proposed Order)(Wiebe, Richard) (Filed on 7/25/2014) (Entered: 07/25/2014)

07/25/2014

262 Declaration of Richard R. Wiebe in Support of 261 MOTION for Partial Summary Judgment filed byCarolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 261 ) (Wiebe, Richard) (Filed on 7/25/2014) (Entered: 07/25/2014)

07/25/2014

263 Declaration of Carolyn Jewel in Support of 261 MOTION for Partial Summary Judgment filed byCarolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 261 ) (Wiebe, Richard) (Filed on 7/25/2014) (Entered: 07/25/2014)

07/25/2014

264 Declaration of Erik Knutzen in Support of 261 MOTION for Partial Summary Judgment filed byCarolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 261 ) (Wiebe, Richard) (Filed on 7/25/2014) (Entered: 07/25/2014)

07/25/2014

265 Declaration of Joice Walton in Support of 261 MOTION for Partial Summary Judgment filed byCarolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 261 ) (Wiebe, Richard) (Filed on 7/25/2014) (Entered: 07/25/2014)

07/28/2014

266 Administrative Motion to File Under Seal re Response to the Court's Order of July 11, 2014, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Response to Court Order)(Berman, Marcia)

(Filed on 7/28/2014) Modified on 7/29/2014 (jlmS, COURT STAFF). (Entered: 07/28/2014)

07/29/2014

267 STIPULATION WITH PROPOSED ORDER to Extend Briefing Schedule re 261 Motion for Partial Summary Judgment, filed by David S. Addington, Keith B. Alexander, John D. Ashcroft, Dennis C Blair, George W. Bush, Richard B. Cheney, Department of Justice, Alberto R. Gonzales, Michael V. Hayden, Tash Hepting, Young Boon Hicks, Eric Holder, Carolyn Jewel, Erik Knutzen, John M. McConnell, Michael B. Mukasey, National Security Agency, John D. Negroponte, Barack Obama, United States of America, Joice Walton. (Cohn, Cindy) (Filed on 7/29/2014) Modified on 7/30/2014 (jlmS, COURT STAFF). (Entered: 07/29/2014)

07/31/2014

268 MOTION for Leave to File Brief Amici Curiae in Support of Plaintiff's Motion for Partial Summary Judgment filed by Reporters Committee for Freedom of the Press, American Society of News Editors, The Committee to Protect Journalists, Courthouse News Service, First Amendment Coalition, First Look Media, Inc., Gannett Co., Investigative Reporters & Editors (IRE), The Investigative Reporting Workshop, The McClatchy Company, The Media Consortium, Media News Group, The National Press Club, National Public Radio, Inc., National Press Photographers Association, Online News Association, The Seattle Times Company, The Tully Center for Free Speech, WP Company LLC dba The Washington Post. (Attachments: # 1 Proposed Amici Brief, # 2 Proposed Order)(Koltun, Joshua) (Filed on 7/31/2014) Modified on 8/1/2014 (kcS, COURT STAFF). (Entered: 07/31/2014)

08/01/2014

269 NOTICE of Appearance of Catherine Rachel Gellis as Counsel, filed by National Association of Criminal Defense Lawyers (Gellis, Catherine) (Filed on 8/1/2014) Modified on 8/4/2014 (jlmS, COURT STAFF). (Entered: 08/01/2014)

08/01/2014

270 NOTICE of Appearance of Michael Henry Page as Counsel, filed by National Association of Criminal Defense Lawyers (Page, Michael) (Filed on 8/1/2014) Modified on 8/4/2014 (jlmS, COURT STAFF). (Entered: 08/01/2014)

08/01/2014

271 MOTION for Leave to File Amicus Curiae Brief, filed by National Association of Criminal Defense Lawyers. Responses due by 8/15/2014. Replies due by 8/22/2014. (Attachments: # 1 Declaration of Michael H. Page, # 2 Exhibit A to Declaration of Michael H. Page, # 3 Amicus Curiae Brief, # 4 Proposed Order)(Gellis, Catherine) (Filed on 8/1/2014) Modified on 8/4/2014 (jlmS, COURT STAFF). (Entered: 08/01/2014)

08/04/2014

272 ORDER GRANTING 267 Stipulation to Extend Briefing Schedule on 261 Motion for Partial Summary Judgment. Opposition due by 9/19/2014. Reply due by 10/17/2014. Signed by Judge Jeffrey S. White on August 4, 2014. (jswlc3, COURT STAFF) (Filed on 8/4/2014) (Entered: 08/04/2014)

08/04/2014

273 ORDER by Judge Jeffrey S. White GRANTING 266 Administrative Motion to File Under Seal Response to Court's Order of July 11, 2014. (jswlc3, COURT STAFF) (Filed on 8/4/2014) (Entered: 08/04/2014)

08/04/2014

274 MOTION for Leave to File CORRECTED Amici Curiae Brief filed by American Society of News Editors, Courthouse News Service, First Amendment Coalition, First Look Media, Inc., Gannett Co., Investigative Reporters & Editors (IRE), Media News Group, National Press Photographers Association, National Public Radio, Inc., Online News Association, Reporters Committee for Freedom of the Press, The Committee to Protect Journalists, The Investigative Reporting Workshop, The McClatchy Company, The Media Consortium, The National Press Club, The Seattle Times Company, The Tully Center for Free Speech, WP Company LLC dba The Washington Post. (Attachments: # 1 Exhibit CORRECTED Proposed Amici Curiae Brief)(Koltun, Joshua) (Filed on 8/4/2014) (Entered: 08/04/2014)

08/05/2014 275 ORDER GRANTING ADMINISTRATIVE MOTION TO UNSEAL. Signed by Judge JEFFREY S. WHITE on 8/5/14. (jjoS, COURT STAFF) (Filed on 8/5/2014) (Entered: 08/05/2014)

08/05/2014

276 Transcript of Proceedings held on 6-6-14, before Judge Jeffrey White. Court Reporter/Transcriber Katherine Wyatt, Telephone number 925212-5224. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 247 Transcript Order, ) Release of Transcript Restriction set for 11/3/2014. (Related documents(s) 247 ) (kpw, COURT STAFF) (Filed on 8/5/2014) (Entered: 08/05/2014)

08/11/2014

277 Proposed Order re 275 Order [Proposed] Corrected Order Granting Plaintiffs' Administrative Motion to Unseal by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Cohn, Cindy) (Filed on 8/11/2014) (Entered: 08/11/2014)

08/11/2014 278 ORDER GRANTING 277 Corrected Order Granting 275 Plaintiffs' Administrative Motion to Unseal. Signed

by Judge JEFFREY S. WHITE on 8/11/14. (jjoS, COURT STAFF) (Filed on 8/11/2014) (Entered: 08/11/2014)

09/16/2014

279 MOTION for Extension of Time to File Response/Reply as to 261 Motion for Partial Summary Judgment, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Proposed Order, # 2 Exhibit 1)(Berman, Marcia) (Filed on 9/16/2014) Modified on 9/17/2014 (jlmS, COURT STAFF). (Entered: 09/16/2014)

09/16/2014

Set/Reset Deadlines as to 279 Motion for Extension of Time to File Response/Reply as to 261 Motion for Partial Summary Judgment. Responses due by 9/22/2014. (jlmS, COURT STAFF) (Filed on 9/16/2014) (Entered: 09/17/2014)

09/18/2014

280 Memorandum in Opposition re 279 Motion for Extension of Time to File Response/Reply as to Motion for Partial Summary Judgment, filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Proposed Order)(Cohn, Cindy) (Filed on 9/18/2014) Modified on 9/19/2014 (jlmS, COURT STAFF). (Entered: 09/18/2014)

09/19/2014 281 ORDER by Judge JEFFREY S. WHITE granting in part 279 Motion for Extension of Time to File Response/Reply (jjoS, COURT STAFF) (Filed on 9/19/2014) (Entered: 09/19/2014)

09/23/2014

282 MOTION for Extension of Time to File Response/Reply as to 261 MOTION for Partial Summary Judgment until 11 a.m. on Monday, September 29, to Allow for Religious Observance filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Proposed Order, # 2 Exhibit 1)(Berman, Julia) (Filed on 9/23/2014) (Entered: 09/23/2014)

09/24/2014

283 ORDER by Judge JEFFREY S. WHITE granting 282 Motion for Extension of Time to File Response until 11 a.m. on Monday, September 29, Responses due by 11:00 a.m. 9/29/2014. (jjoS, COURT STAFF) (Filed on 9/24/2014) (Entered: 09/24/2014)

09/29/2014

284 MOTION for Leave to File Excess Pages filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Proposed Order, # 2 Exhibit 1)(Berman, Julia) (Filed on 9/29/2014) (Entered: 09/29/2014)

09/29/2014

285 Memorandum in Opposition re 261 Motion for Partial Summary Judgment, filed by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Proposed Order)(Gilligan, James) (Filed on 9/29/2014) Modified on 9/30/2014 (jlmS, COURT STAFF). (Entered: 09/29/2014)

09/29/2014

286 Cross MOTION for Partial Summary Judgment, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. Motion Hearing set for 12/5/2014 09:00 AM in Courtroom 5, 2nd Floor, Oakland before Hon. Jeffrey S. White. Responses due by 10/14/2014. Replies due by 10/21/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit (Government Defendants Opposition To Plaintiffs Motion For Partial Summary Judgment And Cross-Motion For Partial Summary Judgment On Plaintiffs Fourth Amendment Claim), # 7 Proposed Order)(Gilligan, James) (Filed on 9/29/2014) Modified on 9/30/2014 (jlmS, COURT STAFF). (Entered: 09/29/2014)

09/29/2014

287 NOTICE of Lodging of the Classified Declaration of Miriam P. of the National Security Agency and a Classified Supplement to the Government Defendants Opposition and Cross-Motion for Partial Summary Judgment for In Camera, Ex Parte Review, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America (Berman, Julia) (Filed on 9/29/2014) Modified on 9/30/2014 (jlmS, COURT STAFF). (Entered: 09/29/2014)

09/29/2014

288 [REDACTED] Declaration of Miriam P. in Support of 286 Cross Motion for Partial Summary Judgment, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Related document(s) 286 , 285 ) (Berman, Marcia) (Filed on 9/29/2014) Modified on 9/30/2014 (jlmS, COURT STAFF). (Entered: 09/29/2014)

09/29/2014

289 Memorandum in Opposition re 284 Motion for Leave to File Excess Pages, filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Proposed Order)(Cohn, Cindy) (Filed on 9/29/2014) Modified on 9/30/2014 (jlmS, COURT STAFF). (Entered: 09/29/2014)

09/30/2014

290 ORDER GRANTING 284 MOTION for Leave to File Excess Pages; DENYING Request to Strike Cross Motion for Summary Judgment; Setting Briefing Schedule and Continuing Hearing.

Motion Hearing set for 12/12/2014 09:00 AM in Courtroom 5, 2nd Floor, Oakland before Hon. Jeffrey S. White. Signed by Judge JEFFREY S. WHITE on 9/30/14. (jjoS, COURT STAFF) (Filed on 9/30/2014) (Entered: 09/30/2014)

10/03/2014

291 MOTION for Extension of Time to File Response/Reply as to 286 Cross Motion for Partial Summary Judgment, filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Proposed Order)(Cohn, Cindy) (Filed on 10/3/2014) Modified on 10/6/2014 (jlmS, COURT STAFF). (Entered: 10/03/2014)

10/07/2014

292 RESPONSE (re 291 MOTION for Extension of Time to File Response/Reply as to 286 Cross MOTION for Partial Summary Judgment ) filed byKeith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Proposed Order)(Berman, Marcia) (Filed on 10/7/2014) (Entered: 10/07/2014)

10/08/2014

293 ORDER GRANTING AS MODIFIED 291 PLAINTIFFS' ADMINISTRATIVE MOTION TO EXTEND TIME TO FILE REPLY ON MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO CROSS MOTION. Signed by Judge JEFFREY S. WHITE on 10/7/14. (jjoS, COURT STAFF) (Filed on 10/8/2014) (Entered: 10/08/2014)

10/24/2014

294 Administrative Motion to File Under Seal Plaintiffs' Combined Reply ISO Motion for Partial Summary Judgment and Opposition to Defendants' Cross-Motion for Partial Summary Judgment filed by Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Proposed Order, # 2 Redacted MPSJ Opp/Reply, # 3 Sealed MPSJ Opp/Reply)(Wiebe, Richard) (Filed on 10/24/2014) (Entered: 10/24/2014)

10/24/2014

295 Declaration in Support of 261 MOTION for Partial Summary Judgment filed byCarolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 261 ) (Wiebe, Richard) (Filed on 10/24/2014) (Entered: 10/24/2014)

10/24/2014

296 Proposed Order re 286 Cross MOTION for Partial Summary Judgment Denying Defendants' Cross-Motion for Partial Summary Judgment by Carolyn Jewel, Erik Knutzen, Joice Walton. (Wiebe, Richard) (Filed on 10/24/2014) (Entered: 10/24/2014)

10/24/2014

297 MOTION to Strike 287 Notice of Lodging of the Classified Declaration of Miriam P. of the National Security Agency and a Classified Supplement to the Government Defendants Opposition and Cross-

Motion for Partial Summary Judgment for In Camera, Ex Parte Review, filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. Responses due by 11/7/2014. Replies due by 11/14/2014. (Attachments: # 1 Proposed Order)(Moore, Thomas) (Filed on 10/24/2014) Modified on 10/27/2014 (jlmS, COURT STAFF). (Entered: 10/24/2014)

10/28/2014

298 Memorandum in Opposition re 297 Motion to Strike, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Proposed Order)(Berman, Julia) (Filed on 10/28/2014) Modified on 10/29/2014 (jlmS, COURT STAFF). (Entered: 10/28/2014)

11/07/2014

299 Administrative Motion to File Under Seal and for Enlargement of Page Limitation filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Proposed Order, # 2 Redacted Reply in Support of Government Defendants' Cross-Motion for Partial Summary Judgment, # 3 Sealed Reply in Support of Government Defendants' Cross-Motion for Partial Summary Judgment)(Gilligan, James) (Filed on 11/7/2014) (Entered: 11/07/2014)

11/07/2014

300 Declaration of Miriam P. in Support of 299 Cross-Motion for Partial Summary Judgment, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Gilligan, James) (Filed on 11/7/2014) Modified on 11/10/2014 (jlmS, COURT STAFF). (Entered: 11/07/2014)

11/07/2014

301 NOTICE of Lodging of 300 Classified Declaration of Miriam P., NSA in Support of the Government Defendants' Cross-Motion for Partial Summary Judgment, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America (Gilligan, James) (Filed on 11/7/2014) Modified on 11/10/2014 (jlmS, COURT STAFF). (Entered: 11/07/2014)

11/12/2014

302 Consent MOTION for Extension of Time to File the Declaration of James R. Clapper, Director of National Intelligence, in Support of Gov't Defs.' Reply Brief, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Declaration of James R. Clapper, Director of National Intelligence)(Berman, Marcia) (Filed on 11/12/2014) Modified on 11/13/2014 (jlmS, COURT STAFF). (Entered: 11/12/2014)

11/13/2014

303 ORDER by Judge JEFFREY S. WHITE granting 299 Administrative Motion to File Under Seal and for Enlargement of Page Limitation (jjoS, COURT STAFF) (Filed on 11/13/2014) (Entered: 11/13/2014)

11/14/2014

304 Proposed Order re 302 Consent MOTION for Extension of Time to File the Declaration of James R. Clapper, Director of National Intelligence, in Support of Gov't Defs.' Reply Brief by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Berman, Marcia) (Filed on 11/14/2014) (Entered: 11/14/2014)

11/14/2014 305 ORDER by Judge JEFFREY S. WHITE granting 302 Motion for Extension of Time to File (jjoS, COURT STAFF) (Filed on 11/14/2014) (Entered: 11/14/2014)

12/10/2014

306 ORDER by Judge JEFFREY S. WHITE granting 294 Administrative Motion to File Under Seal Plaintiffs' Combined Reply ISO Motion for Partial Summary Judgment and Opposition to Defendants' Cross-Motion for Partial Summary Judgment (jjoS, COURT STAFF) (Filed on 12/10/2014) (Entered: 12/10/2014)

12/10/2014

307 ORDER by Judge JEFFREY S. WHITE granting 274 Motion for Leave to File Brief Amici Curiae in Support of Plaintiff's Motion for Partial Summary Judgment (jjoS, COURT STAFF) (Filed on 12/10/2014) (Entered: 12/10/2014)

12/10/2014

308 ORDER by Judge JEFFREY S. WHITE granting 271 Motion to File Amicus Curiae Brief (jjoS, COURT STAFF) (Filed on 12/10/2014) (Entered: 12/10/2014)

12/16/2014 309 Notice of Questions for Hearing. Signed by Judge Jeffrey S. White on December 16, 2014. (jswlc2, COURT STAFF) (Filed on 12/16/2014) (Entered: 12/16/2014)

12/17/2014

310 NOTICE of Additional Authorities, filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton (Wiebe, Richard) (Filed on 12/17/2014) Modified on 12/18/2014 (jlmS, COURT STAFF). (Entered: 12/17/2014)

12/17/2014

311 NOTICE of Appearance of Appearance of Rodney Patton, filed by Keith B. Alexander, George W. Bush, Department of Justice, John M. McConnell, Michael B. Mukasey, National Security Agency, Barack Obama, United States of America (Patton, Rodney) (Filed on 12/17/2014) Modified on 12/18/2014 (jlmS, COURT STAFF). (Entered: 12/17/2014)

12/17/2014

312 NOTICE of Additional Authorities for Dec. 19, 2014 Hearing, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America (Attachments: # 1 Ex. A 50 USC 3605, # 2 Ex. B NSA Minimization Procedures, # 3 Ex. C U.S. v. Heckenkamp, # 4 Ex. D Amer. Fed. State Cty. Muni. Empl. v. Scott, # 5 Ex. E Ollier v. Sweetwater Union H.S. Dist., # 6 Ex. F U.S. v. Bonds, # 7 Ex. G U.S. v. Bridgeforth, # 8 Ex. H In re Nat'l Sec. Agency Tel. Recs. Lit.)(Berman, Marcia) (Filed on 12/17/2014) Modified on 12/18/2014 (jlmS, COURT STAFF). (Entered: 12/17/2014)

12/19/2014 313 Minute Entry for proceedings held before Hon. Jeffrey S. White: Motion Hearing held on 12/19/2014. (jjoS, COURT STAFF) (Date Filed: 12/19/2014) (Entered: 12/19/2014)

12/19/2014 314 RESPONSE to re 309 Order Plaintiffs' Citations to the Record in Response to Question No. 1 by Carolyn Jewel, Erik Knutzen, Joice Walton. (Cohn, Cindy) (Filed on 12/19/2014) (Entered: 12/19/2014)

12/19/2014

315 TRANSCRIPT ORDER for Motion for Partial Summary Judgment, before Judge Jeffrey S. White by Carolyn Jewel, Erik Knutzen, Joice Walton for Court Reporter Diane Skillman. (Cohn, Cindy) (Filed on 12/19/2014) Modified on 12/22/2014 (jlmS, COURT STAFF). (Entered: 12/19/2014)

12/22/2014

316 TRANSCRIPT ORDER for Hearing on Cross-Motions for Partial Summary Judgment Held on 12/19/14, before Judge Jeffrey S. White, filed by United States of America for Court Reporter: Diane Skillman. (Gilligan, James) (Filed on 12/22/2014) Modified on 12/23/2014 (jlmS, COURT STAFF). (Entered: 12/22/2014)

12/23/2014

317 NOTICE of Lodging of Classified Declaration for Ex Parte, In Camera Review, filed by Keith B. Alexander, George W. Bush, Department of Justice, Eric Holder, John M. McConnell, Michael B. Mukasey, National Security Agency, Barack Obama, United States of America (Patton, Rodney) (Filed on 12/23/2014) Modified on 12/24/2014 (jlmS, COURT STAFF). (Entered: 12/23/2014)

01/05/2015

318 Transcript of Proceedings held on December 19, 2014, before Judge Jeffrey S. White. Court Reporter Diane E. Skillman, Telephone number 510-451-2930, Diane_Skillman@cand.uscourts.gov, diane.transcripts@aol.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days

from date of this filing. (Re 316 Transcript Order, 315 Transcript Order ) Release of Transcript Restriction set for 4/6/2015. (Related documents(s) 316 , 315 ) (Skillman, Diane) (Filed on 1/5/2015) (Entered: 01/05/2015)

01/23/2015

319 Revised Proposed Order re 286 Cross Motion for Partial Summary Judgment, 261 Motion for Partial Summary Judgment, by Carolyn Jewel, Erik Knutzen, Joice Walton. (Wiebe, Richard) (Filed on 1/23/2015) Modified on 1/26/2015 (jlmS, COURT STAFF). (Entered: 01/23/2015)

01/28/2015

320 MOTION to Strike 319 Revised Proposed Order, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. Responses due by 2/11/2015. Replies due by 2/18/2015. (Attachments: # 1 Proposed Order)(Gilligan, James) (Filed on 1/28/2015) Modified on 1/29/2015 (jlmS, COURT STAFF). (Entered: 01/28/2015)

02/10/2015

321 ORDER DENYING PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT Signed by Judge JEFFREY S. WHITE on 2/10/15. (jjoS, COURT STAFF) (Filed on 2/10/2015) Modified on 2/10/2015 (jjoS, COURT STAFF). (Entered: 02/10/2015)

02/13/2015

322 NOTICE of Appearance of David A Greene as Counsel, filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton (Greene, David) (Filed on 2/13/2015) Modified on 2/17/2015 (jlmS, COURT STAFF). (Entered: 02/13/2015)

04/17/2015

323 MOTION for Entry of Judgment under Rule 54(b) filed by Carolyn Jewel, Erik Knutzen, Joice Walton. Motion Hearing set for 5/22/2015 09:00 AM in Courtroom 5, 2nd Floor, Oakland before Hon. Jeffrey S. White. Responses due by 5/1/2015. Replies due by 5/8/2015. (Attachments: # 1 Proposed Order)(Crocker, Andrew) (Filed on 4/17/2015) (Entered: 04/17/2015)

05/01/2015

324 Memorandum in Opposition re 323 Motion for Entry of Judgment under Rule 54(b), filed by Keith B. Alexander, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Proposed Order)(Patton, Rodney) (Filed on 5/1/2015) Modified on 5/1/2015 (jlmS, COURT STAFF). (Entered: 05/01/2015)

05/08/2015

325 REPLY (re 323 MOTION for Entry of Judgment under Rule 54(b) ) filed byCarolyn Jewel, Erik Knutzen, Joice Walton. (Crocker, Andrew) (Filed on 5/8/2015) (Entered: 05/08/2015)

05/18/2015

326 STIPULATION WITH PROPOSED ORDER to Cancel the Scheduled Hearing on May 22, 2015 and Decide Plaintiffs' Rule 54(b) Motion on the Papers, filed by Keith B. Alexander, George W. Bush, Department of Justice, Eric Holder, John M. McConnell, Michael B. Mukasey, National Security Agency, Barack Obama, United States of America, Carolyn Jewel. (Patton, Rodney) (Filed on 5/18/2015) Modified on 5/19/2015 (jlmS, COURT STAFF). (Entered: 05/18/2015)

05/20/2015

327 ORDER by Judge JEFFREY S. WHITE granting 323 Motion for Entry of Judgment under Rule 54(b) (jjoS, COURT STAFF) (Filed on 5/20/2015) (Entered: 05/20/2015)

05/21/2015 328 JUDGMENT ON FOURTH AMENDMENT CLAIM. Signed by Judge Jeffrey S. White on 5/21/15. (jjoS, COURT STAFF) (Filed on 5/21/2015) (Entered: 05/21/2015)

06/04/2015

329 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Carolyn Jewel, Erik Knutzen, Joice Walton. Appeal of Order on Motion for Partial Summary Judgment, Order on Motion to Strike, 321 , Judgment 328 (Appeal fee of $505 receipt number 0971-9575031 paid.) (Crocker, Andrew) (Filed on 6/4/2015) Modified on 6/5/2015 (jlmS, COURT STAFF). (Entered: 06/04/2015)

06/04/2015

330 USCA Case Number 15-16133 Ninth Circuit Court of Appeals for 329 Notice of Appeal, filed by Erik Knutzen, Carolyn Jewel, Joice Walton. (kk, COURT STAFF) (Filed on 6/4/2015) (Entered: 06/05/2015)

07/07/2015

331 Transcript Designation Form for proceedings held on 12/19/14, 9/27/13, 12/14/12 before Judge Jeffrey S. White, re 329 Notice of Appeal, Transcript due by 8/3/2015. (Crocker, Andrew) (Filed on 7/7/2015) (Entered: 07/07/2015)

07/21/2015

332 NOTICE of Appearance of Jamie L. Williams as Counsel, filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton (Williams, Jamie) (Filed on 7/21/2015) Modified on 7/22/2015 (jlmS, COURT STAFF). (Entered: 07/21/2015)

12/18/2015

333 USCA Memorandum: That Certification is Reversed; Appeal is Dismissed; Case Remanded. Each party shall bear its own costs on appeal, as to 329 Notice of Appeal. USCA No. 15-16133. (jlmS, COURT STAFF) (Filed on 12/18/2015) (Entered: 12/18/2015)

01/01/2016

334 MOTION for Discovery , MOTION to Lift Stay filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen. Motion Hearing set for 2/5/2016 09:00 AM in Courtroom 5, 2nd Floor, Oakland before Hon. Jeffrey S. White. Responses due by 1/15/2016. Replies due by

1/22/2016. (Attachments: # 1 Proposed Order)(Tyre, James) (Filed on 1/1/2016) (Entered: 01/01/2016)

01/13/2016

335 STIPULATION WITH PROPOSED ORDER to Modify Briefing Schedule and Hearing Date on Plaintiffs Motion To Dissolve Discovery Stay Re: Counts 9, 12, & 15 re 334 Motion for Discovery, Motion to Lift Stay, filed by Keith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America, Carolyn Jewel. (Gilligan, James) (Filed on 1/13/2016) Modified on 1/14/2016 (jlm, COURT STAFF). (Entered: 01/13/2016)

01/14/2016

336 ORDER GRANTING AS MODIFIED 335 STIPULATION to Modify Briefing Schedule and Hearing Date on Plaintiffs Motion To Dissolve Discovery Stay Re: Counts 9, 12, & 15. Responses due by 1/22/2016. Replies due by 1/29/2016. Motion Hearing set for 2/26/2016 09:00 AM in Courtroom 5, 2nd Floor, Oakland before Hon. Jeffrey S. White. Signed by Judge Jeffrey S. White on 1/14/16. (jjoS, COURT STAFF) (Filed on 1/14/2016) (Entered: 01/14/2016)

01/22/2016

337 RESPONSE (re 334 MOTION to Dissolve Discovery Stay) filed byKeith B. Alexander, Dennis C Blair, Department of Justice, Eric Holder, National Security Agency, Barack Obama, United States of America. (Attachments: # 1 Proposed Order)(Gilligan, James) (Filed on 1/22/2016) Modified on 1/25/2016 (jlmS, COURT STAFF). (Entered: 01/22/2016)

01/29/2016

338 REPLY (re 334 MOTION for Discovery MOTION to Lift Stay ) filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen. (Wiebe, Richard) (Filed on 1/29/2016) (Entered: 01/29/2016)

02/10/2016 339 MANDATE of USCA: Issued pursuant to FRAP Rule 41(a), as to 329 Notice of Appeal, USCA No. 15-16133. (jlmS, COURT STAFF) (Filed on 2/10/2016) (Entered: 02/12/2016)

02/19/2016 340 ORDER by Judge Jeffrey S. White GRANTING 334 Motion for Discovery and to Lift Stay. (jswlc2, COURT STAFF) (Filed on 2/19/2016) (Entered: 02/19/2016)

12/19/2016

341 Joint Discovery Letter Brief of Plaintiffs and the Government Defendants, filed by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, National Security Agency, United States Department of Justice, United States of America. (Wiebe, Richard) (Filed on 12/19/2016) Modified on 12/27/2016 (jlmS, COURT STAFF). (Entered: 12/19/2016)

12/19/2016

342 Proposed Order re 341 Joint Discovery Letter Brief, by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Wiebe, Richard) (Filed on 12/19/2016) Modified on 12/27/2016 (jlmS, COURT STAFF). Modified on 3/16/2017 (jlmS, COURT STAFF). (Entered: 12/19/2016)

02/06/2017

343 ANSWER to Complaint with Jury, filed by Keith B. Alexander, Dennis C Blair, Eric Holder, National Security Agency, Barack Obama, United States Department of Justice, United States of America. (Gilligan, James) (Filed on 2/6/2017) Modified on 2/7/2017 (jlmS, COURT STAFF). (Entered: 02/06/2017)

02/20/2017

344 NOTICE of Change of Address of Counsel for Plaintiffs, filed by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton (Wiebe, Richard) (Filed on 2/20/2017) Modified on 2/21/2017 (jlmS, COURT STAFF). (Entered: 02/20/2017)

02/24/2017 345 NOTICE of Change of Address by Thomas Edward Moore, III (Moore, Thomas) (Filed on 2/24/2017) (Entered: 02/24/2017)

03/15/2017

346 Joint MOTION for a Case Management Conference, filed by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, National Security Agency, National Security Agency, United States Department of Justice, United States of America. (Wiebe, Richard) (Filed on 3/15/2017) Modified on 3/16/2017 (jlmS, COURT STAFF). Modified on 3/16/2017 (jlmS, COURT STAFF). (Entered: 03/15/2017)

03/21/2017

347 ORDER by Judge Jeffrey S. White addressing 341 Discovery Letter Brief and granting 346 Motion for Hearing. (jswlc2S, COURT STAFF) (Filed on 3/21/2017) (Entered: 03/21/2017)

03/21/2017

Set Deadlines/Hearings: Joint Case Management Statement due by 5/5/2017. Further Case Management Conference set for 5/19/2017 11:00 AM in Courtroom 5, 2nd Floor, Oakland. (jjoS, COURT STAFF) (Filed on 3/21/2017) (Entered: 03/21/2017)

04/05/2017 348 NOTICE by Carolyn Jewel of Firm Name and Email Address Change (Meny, Rachael) (Filed on 4/5/2017) (Entered: 04/05/2017)

04/17/2017

349 NOTICE of Lodging of Classified Submission by the Government Defendants by Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America (Gilligan, James) (Filed on 4/17/2017) Modified on 4/18/2017 (cpS, COURT STAFF). (Entered: 04/17/2017)

04/28/2017

350 NOTICE by Dana J. Boente, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America of Filing of Redacted Version of the Classified Submission the Government Defendants Lodged With the Court In Camera and Ex Parte on April 17, 2017 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Patton, Rodney) (Filed on 4/28/2017) Modified on 5/1/2017 (cpS, COURT STAFF). (Entered: 04/28/2017)

05/05/2017

351 STIPULATION WITH PROPOSED ORDER to continue stay of claims against individual-capacity defendants and to excuse those defendants from the case management conference filed by David S. Addington, Keith B. Alexander, John D. Ashcroft, George W. Bush, Richard B. Cheney, Alberto R. Gonzales, Michael V. Hayden, John M. McConnell, Michael B. Mukasey, John D. Negroponte, Carolyn Jewel, et al. (Whitman, James) (Filed on 5/5/2017) Modified on 5/8/2017 (cpS, COURT STAFF). (Entered: 05/05/2017)

05/05/2017

352 JOINT CASE MANAGEMENT STATEMENT for May 19, 2017 Case Management Conference filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, United States of America, United States Department of Justice. (Wiebe, Richard) (Filed on 5/5/2017) Modified on 5/8/2017 (cpS, COURT STAFF). (Entered: 05/05/2017)

05/08/2017

353 ORDER by Judge Jeffrey S. White granting 351 Stipulation to continue stay of claims against individual-capacity defendants and to excuse those defendants from the case management conference. (jjoS, COURT STAFF) (Filed on 5/8/2017) (Entered: 05/08/2017)

05/08/2017

354 Separate Addendum to re 352 Joint Case Management Statement, filed byUnited States of America, United States Department of Justice. (Attachments: # 1 Appendix A, Exhibit 1, # 2 Appendix A, Exhibit 2, # 3 Appendix A, Exhibit 3, # 4 Appendix A, Exhibit 4, # 5 Appendix A, Exhibit 5, # 6 Appendix A, Exhibit 6, # 7 Appendix A, Exhibit 7)(Related document(s) 352 ) (Berman, Julia) (Filed on 5/8/2017) Modified on 5/9/2017 (cpS, COURT STAFF). (Entered: 05/08/2017)

05/12/2017 355 NOTICE of Appearance by Caroline Joy Anderson (Anderson, Caroline) (Filed on 5/12/2017) (Entered: 05/12/2017)

05/19/2017

356 Minute Entry for proceedings held before Hon. Jeffrey S. White: Further Case Management Conference held on 5/19/2017.Total Time in Court 1 hour 54 minutes. Court Reporter Name Diane Skillman. (jjoS, COURT STAFF) (Date Filed: 5/19/2017) Modified on 5/23/2017 (cjlS, COURT STAFF). (Entered: 05/22/2017)

05/22/2017

357 TRANSCRIPT ORDER for proceedings held on 05/19/2017 before Hon. Jeffrey S. White by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, for Court Reporter Diane Skillman. (Tassin, Philip) (Filed on 5/22/2017) (Entered: 05/22/2017)

05/22/2017

358 NOTICE of Filing of Redacted Version of FISC'S Memorandum Opinion and Order, Dated April 26, 2017 by National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Attachments: # 1 Exhibit)(Patton, Rodney) (Filed on 5/22/2017) Modified on 5/23/2017 (cjlS, COURT STAFF). (Entered: 05/22/2017)

05/22/2017

359 TRANSCRIPT ORDER for proceedings held on 05/19/17 before Hon. Jeffrey S. White by United States Department of Justice, United States of America, for Court Reporter Diane Skillman. (Berman, Julia) (Filed on 5/22/2017) (Entered: 05/22/2017)

06/01/2017

360 NOTICE OF WITHDRAWAL by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Hadlock, Audrey) (Filed on 6/1/2017) Modified on 6/2/2017 (cjlS, COURT STAFF). (Entered: 06/01/2017)

06/02/2017

361 RESPONSE to Court's Minute Order re: Law Clerk Access to Classified Information by National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Berman, Julia) (Filed on 6/2/2017) (Entered: 06/02/2017)

06/02/2017

362 Transcript of Proceedings held on May 19, 2017, before Judge Jeffrey S. White. Court Reporter Diane E. Skillman, telephone number 925899-2812, Diane_Skillman@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 357 Transcript Order, ) Release of Transcript Restriction set for 8/31/2017. (Related documents(s) 357 ) (Skillman, Diane) (Filed on 6/2/2017) (Entered: 06/02/2017)

06/09/2017

363 STIPULATION WITH [PROPOSED] ORDER to Reset Briefing Schedule Regarding Required Destruction of Upstream Communications Previously Acquired by Defendant NSA filed by National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America, Carolyn Jewel.

(Berman, Julia) (Filed on 6/9/2017) Modified on 6/12/2017 (cjlS, COURT STAFF). (Entered: 06/09/2017)

06/12/2017

364 ORDER by Judge Jeffrey S. White granting 363 Stipulation to Reset Briefing Schedule Regarding Required Destruction of Upstream Communications Previously Acquired by Defendant NSA. (jjoS, COURT STAFF) (Filed on 6/12/2017) (Entered: 06/12/2017)

06/13/2017

365 Government Defendant's Opening Brief Regarding Preservation of Upstream Internet Communications Previously Acquired Under Section 702 of the Foreign Intelligence Surveillance Act by National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Attachments: # 1 Exhibit, # 2 Exhibit)(Patton, Rodney) (Filed on 6/13/2017) Modified on 6/14/2017 (cjlS, COURT STAFF). (Entered: 06/13/2017)

06/15/2017

366 Plaintiffs Statement On 361 The Government Defendants Response To Courts Minute Order Re: Law Clerk Access To Classified Information by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Wiebe, Richard) (Filed on 6/15/2017) Modified on 6/16/2017 (cjlS, COURT STAFF). (Entered: 06/15/2017)

06/20/2017

367 Plaintiffs' Evidence Preservation 2017 Update Brief filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Cohn, Cindy) (Filed on 6/20/2017) Modified on 6/21/2017 (cjlS, COURT STAFF). (Entered: 06/20/2017)

06/27/2017

368 Government Defendants' Reply Re: Preservation of Upstream Internet Communications Previously Acquired Under Section 702 of the Foreign Intelligence Surveillance Act filed by Dennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Gilligan, James) (Filed on 6/27/2017) Modified on 6/28/2017 (cjlS, COURT STAFF). (Entered: 06/27/2017)

06/27/2017 369 NOTICE of Appearance by Timothy Andrew Johnson (Johnson, Timothy) (Filed on 6/27/2017) (Entered: 06/27/2017)

06/30/2017

370 STIPULATION WITH PROPOSED ORDER to Extend Time to File Plaintiffs' Evidence Preservation 2017 Update Brief Reply, filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, National Security Agency, Donald J. Trump, United States Department of Justice, United States of America (Cohn, Cindy) (Filed on 6/30/2017) Modified on 7/3/2017 (jlmS, COURT STAFF). (Entered: 06/30/2017)

06/30/2017

371 Statement re 366 Statement, Government Defendants' Statement in Response to Plaintiffs' Statement re: Law Clerk Access to Classified Information by National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Johnson, Timothy) (Filed on 6/30/2017) (Entered: 06/30/2017)

06/30/2017

372 ORDER by Judge Jeffrey S. White GRANTING 370 Stipulation re Briefing Schedule. (jswlc2S, COURT STAFF) (Filed on 6/30/2017) (Entered: 06/30/2017)

07/05/2017

373 Plaintiffs' Evidence Preservation 2017 Update Reply Brief re 368 Brief by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Cohn, Cindy) (Filed on 7/5/2017) Modified on 7/6/2017 (cjlS, COURT STAFF). (Entered: 07/05/2017)

07/19/2017 374 ORDER RE PRESERVATION ISSUES. Signed by Judge Jeffrey S. White on July 19, 2017. (jswlc2S, COURT STAFF) (Filed on 7/19/2017) (Entered: 07/19/2017)

08/03/2017

375 Proposed Stipulated Protective Order filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Wiebe, Richard) (Filed on 8/3/2017) Modified on 8/3/2017 (cjlS, COURT STAFF). (Entered: 08/03/2017)

08/04/2017 376 ORDER by Judge Jeffrey S. White granting 375 Stipulated Protective Order. (jjoS, COURT STAFF) (Filed on 8/4/2017) (Entered: 08/04/2017)

08/09/2017

377 Stipulation and [Proposed] Order to Extend Time to Respond to Discovery filed by Dennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Gilligan, James) (Filed on 8/9/2017) Modified on 8/10/2017 (cjlS, COURT STAFF). (Entered: 08/09/2017)

08/10/2017 378 ORDER by Judge Jeffrey S. White granting 377 Stipulation to Extend Time to Respond to Discovery. (jjoS, COURT STAFF) (Filed on 8/10/2017) (Entered: 08/10/2017)

10/04/2017

379 Second Extension of Time to Respond to Discovery Requests on Standing filed by Dennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Barack Obama, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. Responses due by 10/10/2017. (Attachments: # 1 Affidavit (Declaration of James J. Gilligan), # 2 Affidavit (Redacted Declaration of NSA Deputy Director of Capabilities), # 3 Proposed Order)(Gilligan,

James) (Filed on 10/4/2017) Modified on 10/5/2017 (cjlS, COURT STAFF). (Entered: 10/04/2017)

10/05/2017

380 Administrative Motion to File Under Seal Portions of the Declaration of Elizabeth B. filed by Dennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Barack Obama, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Redacted Version of Declaration of Elizabeth B., # 4 Unredacted version of Declaration of Elizabeth B.)(Anderson, Caroline) (Filed on 10/5/2017) (Entered: 10/05/2017)

10/09/2017

381 Stipulation and [Proposed] Order Granting an Extension of Time filed by Carolyn Jewel, Erik Knutzen, Joice Walton. (Tassin, Philip) (Filed on 10/9/2017) Modified on 10/10/2017 (cjlS, COURT STAFF). (Entered: 10/09/2017)

10/10/2017 382 ORDER by Judge Jeffrey S. White granting 381 Stipulation Granting an Extension of Time. (jjoS, COURT STAFF) (Filed on 10/10/2017) (Entered: 10/10/2017)

10/12/2017

383 OPPOSITION/RESPONSE (re 379 Second Extension of Time to Respond to Discovery Requests on Standing ) filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Proposed Order)(Wiebe, Richard) (Filed on 10/12/2017) (Entered: 10/12/2017)

10/23/2017

384 ORDER RE DEFENDANTS' REQUEST FOR EXTENSION OF TIME. Signed by Judge Jeffrey S. White on 10/23/17. (jjoS, COURT STAFF) (Filed on 10/23/2017) (Entered: 10/23/2017)

10/31/2017 385 ORDER by Judge JEFFREY S. WHITE granting 380 Administrative Motion to File Under Seal. (jjoS, COURT STAFF) (Filed on 10/31/2017) (Entered: 10/31/2017)

01/18/2018

386 STIPULATION WITH PROPOSED ORDER to Extend Time to Respond to Discovery filed by Dennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Attachments: # 1 Affidavit (Declaration of James J. Gilligan in Support of Stipulation and Proposed Order to Extend Time to Respond to Discovery), # 2 Affidavit (Declaration of Dr. Mark O., Chief, Office of Compliance for Capabilities, NSA))(Gilligan, James) (Filed on 1/18/2018) (Entered: 01/18/2018)

01/19/2018 387 ORDER by Judge Jeffrey S. White granting 386 Stipulation to Extend Time to Respond to Discovery. (jjoS, COURT STAFF) (Filed on 1/19/2018) (Entered: 01/19/2018)

02/16/2018

388 The Government Defendants' Notice of Submission of Their Classified and Unclassified Response to the Court's May 22, 2017 Order by National Security Agency, United States Department of Justice, United States of America. (Attachments: # 1 Appendix A, # 2 Appendix B)(Berman, Julia) (Filed on 2/16/2018) Modified on 2/20/2018 (cjlS, COURT STAFF). (Entered: 02/16/2018)

03/30/2018

389 NOTICE OF FILING OF REDACTED VERSION OF THE CLASSIFIED DECLARATION THE GOVERNMENT DEFENDANTS LODGED WITH THE COURT IN CAMERA AND EX PARTE ON FEBRUARY 16, 2018 by National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Patton, Rodney) (Filed on 3/30/2018) Modified on 4/2/2018 (cjlS, COURT STAFF). (Entered: 03/30/2018)

04/02/2018

390 NOTICE OF FILING OF CLASSIFIED DECLARATION OF DR. MARK O., NATIONAL SECURITY AGENCY FILED BY THE GOVERNMENT DEFENDANTS FOR THE COURTS IN CAMERA AND EX PARTE REVIEW by National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Patton, Rodney) (Filed on 4/2/2018) Modified on 4/3/2018 (cjlS, COURT STAFF). (Entered: 04/02/2018)

05/03/2018

391 NOTICE of Withdrawal of Michael Kwun as Counsel for Plaintiffs by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Kwun, Michael) (Filed on 5/3/2018) Modified on 5/4/2018 (cjlS, COURT STAFF). (Entered: 05/03/2018)

05/07/2018 392 NOTICE of Appearance by Olivia Rose Hussey Scott (Scott, Olivia) (Filed on 5/7/2018) (Entered: 05/07/2018)

05/07/2018

393 MOTION Access to Classified Discovery Materials Pursuant to 18 USC sec. 2712(b)(4) filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. Motion Hearing set for 7/6/2018 09:00 AM in Oakland, Courtroom 5, 2nd Floor before Judge Jeffrey S. White. Responses due by 5/21/2018. Replies due by 5/29/2018. (Attachments: # 1 Proposed Order Proposed Order)(Wiebe, Richard) (Filed on 5/7/2018) (Entered: 05/07/2018)

05/10/2018

394 ADMINISTRATIVE MOTION Advance Hearing Date on Motion re 393 MOTION Access to Classified Discovery Materials Pursuant to 18 USC sec. 2712(b)(4) filed by Carolyn Jewel. Responses due by

5/14/2018. (Attachments: # 1 Proposed Order)(Moore, Thomas) (Filed on 5/10/2018) (Entered: 05/10/2018)

05/15/2018

395 OPPOSITION/RESPONSE (re 394 ADMINISTRATIVE MOTION Advance Hearing Date on Motion re 393 MOTION Access to Classified Discovery Materials Pursuant to 18 USC sec. 2712(b)(4) ) filed byDennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Attachments: # 1 Proposed Order)(Gilligan, James) (Filed on 5/15/2018) (Entered: 05/15/2018)

05/16/2018

396 ORDER DENYING 394 Administrative Motion Advance Hearing Date on 393 Motion Access to Classified Discovery Materials Pursuant to 18 USC sec. 2712(b)(4). Signed by Judge Jeffrey S. White on May 16, 2018. (jswlc3S, COURT STAFF) (Filed on 5/16/2018) (Entered: 05/16/2018)

05/18/2018

397 ADMINISTRATIVE MOTION for Enlargement of Page Limit filed by Dennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. Responses due by 5/22/2018. (Attachments: # 1 Proposed Order)(Gilligan, James) (Filed on 5/18/2018) (Entered: 05/18/2018)

05/18/2018

398 OPPOSITION/RESPONSE (re 397 ADMINISTRATIVE MOTION for Enlargement of Page Limit ) filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Proposed Order)(Wiebe, Richard) (Filed on 5/18/2018) (Entered: 05/18/2018)

05/21/2018

399 ORDER by Judge JEFFREY S. WHITE granting 397 Administrative Motion for Enlargement of Page Limit. (jjoS, COURT STAFF) (Filed on 5/21/2018) (Entered: 05/21/2018)

05/21/2018

400 OPPOSITION/RESPONSE (re 393 MOTION Access to Classified Discovery Materials Pursuant to 18 USC sec. 2712(b)(4) ) filed byDennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Attachments: # 1 Proposed Order)(Gilligan, James) (Filed on 5/21/2018) (Entered: 05/21/2018)

05/29/2018

401 REPLY (re 393 MOTION Access to Classified Discovery Materials Pursuant to 18 USC sec. 2712(b)(4) ) filed byCarolyn Jewel. (Moore, Thomas) (Filed on 5/29/2018) (Entered: 05/29/2018)

06/08/2018

402 Consent MOTION to Withdraw as Attorney (Timothy A. Johnson) filed by National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. Responses due by 6/22/2018. Replies due by 6/29/2018. (Johnson, Timothy) (Filed on 6/8/2018) (Entered: 06/08/2018)

06/13/2018

403 NOTICE of Filing of Classified Declaration of Dr. Mark O., National Security Agency, Filed by the Government Defendants for the Court's In Camera and Ex Parte Review by National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Attachments: # 1 Exhibit)(Patton, Rodney) (Filed on 6/13/2018) Modified on 6/14/2018 (cjlS, COURT STAFF). (Entered: 06/13/2018)

06/13/2018

404 ORDER by Judge Jeffrey S. White DENYING 393 Plaintiffs' Motion for Access to Classified Discovery Materials and REQUIRING Additional Briefing.(jswlc2S, COURT STAFF) (Filed on 6/13/2018) (Entered: 06/13/2018)

06/22/2018

405 Stipulated Request for an Extension of Time to Respond to the Courts June 13, 2018 Order filed by National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Attachments: # 1 Exhibit 1)(Heiman, Julia) (Filed on 6/22/2018) Modified on 6/22/2018 (cjlS, COURT STAFF). (Entered: 06/22/2018)

07/05/2018

406 ORDER by Judge JEFFREY S. WHITE granting 405 Stipulation for an Extension of Time to Respond to the Courts June 13, 2018 Order. (jjoS, COURT STAFF) (Filed on 7/5/2018) (Entered: 07/05/2018)

07/20/2018

407 RESPONSE re 404 Order on Motion for Miscellaneous Relief and to the Court's June 13, 2018 Briefing Order by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Wiebe, Richard) (Filed on 7/20/2018) Modified on 7/23/2018 (cjlS, COURT STAFF). (Entered: 07/20/2018)

07/20/2018

408 RESPONSE to the Court's Order Requiring Additonal Briefing on Five Issues Concerning the Government's Assertions of Privilege by Dennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Gilligan, James) (Filed on 7/20/2018) (Entered: 07/20/2018)

08/10/2018

409 NOTICE by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton of Withdrawal of Mark Rumold as Counsel for Plaintiffs (Rumold, Mark) (Filed on 8/10/2018) (Entered: 08/10/2018)

08/17/2018 410 ORDER REQUIRING DISPOSITIVE MOTIONS BRIEFING. Signed by Judge Jeffrey S. White on August 17, 2018. (jswlc2S, COURT STAFF) (Filed on 8/17/2018) (Entered: 08/17/2018)

08/24/2018

411 Joint Discovery Letter Brief filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, United States of America, National Security Agency. (Attachments: # 1 Proposed Order)(Wiebe, Richard) (Filed on 8/24/2018) Modified on 8/27/2018 (cjlS, COURT STAFF). (Entered: 08/24/2018)

08/28/2018 412 ORDER REGARDING 411 Joint Discovery Letter Brief. Signed by Judge Jeffrey S. White on 8/28/18. (jjoS, COURT STAFF) (Filed on 8/28/2018) (Entered: 08/28/2018)

09/07/2018

413 Government Defendants Notice of Motion and Motion for Summary Judgment as to Plaintiffs Statutory Claims filed by Dennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. Responses due by 9/28/2018. Replies due by 10/12/2018. (Attachments: # 1 Proposed Order)(Gilligan, James) (Filed on 9/7/2018) Modified on 9/10/2018 (cjlS, COURT STAFF). (Entered: 09/07/2018)

09/19/2018

414 Errata to 388 the Government Defendants' Unclassified Response to the Court's May 22, 2017 Order by Dennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Attachments: # 1 Government Defendants' Supplemental and Revised Response to Plaintiffs' Revised First Set of RFAs - Limited to Standing)(Heiman, Julia) (Filed on 9/19/2018) Modified on 9/20/2018 (cjlS, COURT STAFF). (Entered: 09/19/2018)

09/26/2018

415 ADMINISTRATIVE MOTION Enlargement of Page Limit for Plaintiffs' Opposition re 413 Government Defendants Notice of Motion and Motion for Summary Judgment as to Plaintiffs Statutory Claims) filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. Responses due by 10/1/2018. (Attachments: # 1 Proposed Order)(Greene, David) (Filed on 9/26/2018) (Entered: 09/26/2018)

09/26/2018

416 ORDER by Judge Jeffrey S. White granting 415 Unopposed Administrative Motion Enlargement of Page Limit for Plaintiffs' Opposition. (jjoS, COURT STAFF) (Filed on 9/26/2018) (Entered: 09/26/2018)

09/28/2018 417 OPPOSITION/RESPONSE (re 413 Government Defendants Notice of Motion and Motion for Summary Judgment as to Plaintiffs Statutory

Claims) ) Notice and Motion to Proceed to Resolution of the Merits Using the Procedures of Section 1806(f) filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Declaration of Rick R. Wiebe in Support of Plaintiffs' FRCP 56(d) Request for Further Discovery on Standing, # 2 Declaration of Cindy A. Cohn in Opposition to the Government's Motion for Summary Judgment, # 3 Declaration of David A. Greene in Opposition to the Government's Motion for Summary Judgment, # 4 Declaration of Rick R. Wiebe in Opposition to the Government's Motion for Summary Judgment, # 5 Declaration of Phillip Long, # 6 Declaration of Dr. Brian Reid, # 7 Declaration of Professor Matthew Blaze, # 8 Declaration of Ashkan Soltani, # 9 Declaration of Carolyn Jewel in Opposition to the Government Defendants' Motion for Summary Judgment, # 10 Declaration of Tash Hepting in Opposition to the Government Defendants' Motion for Summary Judgment, # 11 Declaration of Young Boon Hicks in Opposition to the Government Defendants' Motion for Summary Judgment, # 12 Declaration of Erik Knutzen in Opposition to the Government Defendants' Motion for Summary Judgment, # 13 Declaration of Joice Walton in Opposition to the Government Defendants' Motion for Summary Judgment, # 14 Proposed Order)(Wiebe, Richard) (Filed on 9/28/2018) (Entered: 09/28/2018)

10/05/2018

418 Plaintiffs' [Corrected Proposed] Order re 417 Opposition/Response to Motion by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Wiebe, Richard) (Filed on 10/5/2018) Modified on 10/9/2018 (cjlS, COURT STAFF). (Entered: 10/05/2018)

10/11/2018

419 Stipulated and [Proposed] Order Requesting for an Extension of Time and Enlargement of Page Limit for Dispositive Motions Briefing filed by Dennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America, Carolyn Jewel. (Heiman, Julia) (Filed on 10/11/2018) Modified on 10/12/2018 (cjlS, COURT STAFF). (Entered: 10/11/2018)

10/12/2018

420 ORDER by Judge Jeffrey S. White granting 419 Stipulation for an Extension of Time and Enlargement of Page Limit for Dispositive Motions Briefing. Responses due by 10/17/2018. Replies due by 11/2/2018.(jjoS, COURT STAFF) (Filed on 10/12/2018) (Entered: 10/12/2018)

10/18/2018

421 REPLY (re 413 Government Defendants Notice of Motion and Motion for Summary Judgment as to Plaintiffs Statutory Claims) ) filed byDennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Attachments:

# 1 Declaration of Rodney Patton, # 2 Exhibit (Government Defendants' Response to Plaintiffs' Rule 56(d) Request for Further Discovery), # 3 Proposed Order)(Gilligan, James) (Filed on 10/18/2018) (Entered: 10/18/2018)

10/18/2018

422 Notice of Lodging of Classified Materials for In Camera, Ex Parte Review by Dennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Gilligan, James) (Filed on 10/18/2018) Modified on 10/19/2018 (cjlS, COURT STAFF). (Entered: 10/18/2018)

10/18/2018

423 ADMINISTRATIVE MOTION for an Extension of 3 Hours and 23 Minutes to File their Reply Brief in Support of their Motion for Summary Judgment and Opposition to Plaintiffs' Motion to Proceed filed by Dennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. Responses due by 10/22/2018. (Attachments: # 1 Proposed Order)(Heiman, Julia) (Filed on 10/18/2018) (Entered: 10/18/2018)

10/19/2018 424 NOTICE of Appearance by Aaron David Mackey as counsel for Plaintiffs (Mackey, Aaron) (Filed on 10/19/2018) (Entered: 10/19/2018)

10/22/2018

425 NOTICE OF FILING OF REDACTED VERSION OF CLASSIFIED DECLARATION OF DR. MARK O. THE GOVERNMENT DEFENDANTS LODGED WITH THE COURT IN CAMERA AND EX PARTE ON OCTOBER 18, 2018 by Dana J. Boente, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Attachments: # 1 Declaration)(Patton, Rodney) (Filed on 10/22/2018) Modified on 10/23/2018 (cjlS, COURT STAFF). (Entered: 10/22/2018)

10/25/2018

426 ORDER by Judge Jeffrey S. White granting 423 Administrative Motion for an Extension of 3 Hours and 23 Minutes to File their Reply Brief in Support of their Motion for Summary Judgment and Opposition to Plaintiffs' Motion to Proceed. (jjoS, COURT STAFF) (Filed on 10/25/2018) Modified on 10/25/2018 (jjoS, COURT STAFF). (Entered: 10/25/2018)

10/31/2018

427 ADMINISTRATIVE MOTION for an Enlargement of the Page Limitation for Plaintiffs' Reply in Support of Their Motion to Proceed to Resolution on the Merits Using the Procedures of Section 1806(f) filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. Responses due by 11/5/2018. (Attachments:

# 1 Proposed Order)(Greene, David) (Filed on 10/31/2018) (Entered: 10/31/2018)

10/31/2018

428 ORDER y Judge Jeffrey S. White GRANTING 427 Administrative Motion for Additional Pages. (jswlc2S, COURT STAFF) (Filed on 10/31/2018) (Entered: 10/31/2018)

11/02/2018

429 Administrative Motion to File Under Seal Plaintiffs' Reply filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Proposed Order Proposed Order Sealing Plaintiffs' Reply, # 2 Redacted Version of Plaintiffs' Reply, # 3 Unredacted Version of Plaintiffs' Reply)(Wiebe, Richard) (Filed on 11/2/2018) (Entered: 11/02/2018)

11/02/2018

430 REPLY (re 413 Government Defendants Notice of Motion and Motion for Summary Judgment as to Plaintiffs Statutory Claims) ) and Plaintiffs' Motion to Proceed to the Merits Using the Procedures of Section 1806(f) 417 filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Wiebe, Richard) (Filed on 11/2/2018) (Entered: 11/02/2018)

11/02/2018

431 Declaration of David McCraw in Support of 430 Reply to Opposition/Response, filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 430 ) (Wiebe, Richard) (Filed on 11/2/2018) (Entered: 11/02/2018)

11/02/2018

432 Declaration of Edward Snowden in Support of 430 Reply to Opposition/Response, filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 430 ) (Wiebe, Richard) (Filed on 11/2/2018) (Entered: 11/02/2018)

11/09/2018

433 ADMINISTRATIVE MOTION to Strike Plaintiffs' Improper Surreply to Government Defendants' Summary Judgment Motion, or, in the Alternative, for Leave to Respond to Plaintiffs' Filing by November 30, 2018 re 430 Reply to Opposition/Response, 431 Declaration in Support, 432 Declaration in Support and Objection, pursuant to Local Rules 7-3(d)(1) and 7-11, filed by Dana J. Boente, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. Responses due by 11/13/2018. (Attachments: # 1 Declaration of Olivia Hussey Scott, # 2 Proposed Order, # 3 Alternative Proposed Order)(Scott, Olivia) (Filed on 11/9/2018) (Entered: 11/09/2018)

11/13/2018

434 OPPOSITION/RESPONSE (re 433 ADMINISTRATIVE MOTION to Strike Plaintiffs' Improper Surreply to Government Defendants' Summary Judgment Motion, or, in the Alternative, for Leave to Respond to Plaintiffs' Filing by November 30, 2018 re 430 Reply to

Opposition/Res ) filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Proposed Order Denying the Government's Administrative Motion)(Wiebe, Richard) (Filed on 11/13/2018) (Entered: 11/13/2018)

11/20/2018

435 ORDER by Judge Jeffrey S. White GRANTING 429 Administrative Motion to File Under Seal. (jswlc3S, COURT STAFF) (Filed on 11/20/2018) (Entered: 11/20/2018)

11/20/2018

436 ORDER GRANTING AS MODIFIED 433 ADMINISTRATIVE MOTION for Leave to Respond to Plaintiffs' Filing by November 30, 2018. Government Defendants' response due by November 30, 2018. Plaintiffs may file a final sur-reply by 12/7/2018. Signed by Judge Jeffrey S. White on November 20, 2018. (jswlc3S, COURT STAFF) (Filed on 11/20/2018) (Entered: 11/20/2018)

11/30/2018

437 NOTICE OF FILING OF REDACTED VERSION OF CLASSIFIED DECLARATION OF JONATHAN L. DARBY THE GOVERNMENT DEFENDANTS LODGED WITH THE COURT IN CAMERA AND EX PARTE ON OCTOBER 18, 2018 by National Security Agency, Donald J. Trump, United States of America. (Attachments: # 1 Declaration)(Patton, Rodney) (Filed on 11/30/2018) Modified on 12/3/2018 (cjlS, COURT STAFF). (Entered: 11/30/2018)

11/30/2018

438 Administrative Motion to File Under Seal Portions of Sur-Reply in Support of the Government Defendants' Motion for Summary Judgment as to Plaintiffs' Statutory Claims filed by Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Attachments: # 1 Proposed Order, # 2 (Redacted Version of Sur-Reply in Support of the Government Defendants' Motion for Summary Judgment as to PLaintiffs' Statutory Claims), # 3 (Unredacted Version of Sur-Reply in Support of the Government Defendants' Motion for Summary Judgment as to PLaintiffs' Statutory Claims))(Gilligan, James) (Filed on 11/30/2018) (Entered: 11/30/2018)

11/30/2018

439 Government Defendants' Sur-Reply (re 413 Government Defendants Notice of Motion and Motion for Summary Judgment as to Plaintiffs Statutory Claims) filed by Dennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Barack Obama, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Attachments: # 1 Exhibit (Declaration of William P. Fritzlen))(Gilligan, James) (Filed on 11/30/2018) Modified on 12/3/2018 (cjlS, COURT STAFF). (Entered: 11/30/2018)

12/03/2018

440 CLERK'S NOTICE SETTING HEARING ON CROSS MOTIONS FOR SUMMARY JUDGMENT: Motion Hearing set for 2/1/2019 09:00 AM in Oakland, Courtroom 5, 2nd Floor before Judge Jeffrey S. White. (jjoS, COURT STAFF) (Filed on 12/3/2018) (Entered: 12/03/2018)

12/07/2018

441 Administrative Motion to File Under Seal Plaintiffs' Surreply filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Proposed Order, # 2 Redacted Version of Plaintiffs' Surreply, # 3 Unredacted Version of Plaintiffs' Surreply)(Wiebe, Richard) (Filed on 12/7/2018) (Entered: 12/07/2018)

12/07/2018

442 PLAINTIFF'S SURREPLY re 413 Government Defendants Notice of Motion and Motion for Summary Judgment as to Plaintiffs Statutory Claims and 417 Plaintiffs' Motion to Proceed to the Merits Using the Procedures of Section 1806(f) filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Wiebe, Richard) (Filed on 12/7/2018) Modified on 12/10/2018 (cjlS, COURT STAFF). (Entered: 12/07/2018)

12/17/2018

443 NOTICE of Change of Address by Olivia Hussey Scott Julia A. Heiman, Rodney Patton, James J. Gilligan, and Anthony J. Coppolino (Scott, Olivia) (Filed on 12/17/2018) (Entered: 12/17/2018)

12/17/2018

Electronic filing error. [err102] REMINDER: Counsel must update personal profile for change of contact information to be in effect Re: 443 Notice of Change of Address filed by Dana J. Boente, United States of America, Michael P. Dempsey, United States Department of Justice, Michael S. Rogers, Donald J. Trump, National Security Agency. (cjlS, COURT STAFF) (Filed on 12/17/2018) (Entered: 12/17/2018)

12/19/2018

444 ORDER by Judge Jeffrey S. White granting 438 Administrative Motion to File Under Seal. (jjoS, COURT STAFF) (Filed on 12/19/2018) (Entered: 12/19/2018)

12/19/2018 445 ORDER by Judge Jeffrey S. White granting 441 Administrative Motion to File Under Seal. (jjoS, COURT STAFF) (Filed on 12/19/2018) (Entered: 12/19/2018)

01/16/2019

446 ADMINISTRATIVE MOTION for a Stay of Proceedings in Light of Lapse of Appropriations filed by Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. Responses due by 1/22/2019. (Attachments: # 1 Affidavit (Declaration of James J. Gilligan), # 2 Proposed Order)(Gilligan, James) (Filed on 1/16/2019) (Entered: 01/16/2019)

01/18/2019

447 OPPOSITION/RESPONSE (re 446 ADMINISTRATIVE MOTION for a Stay of Proceedings in Light of Lapse of Appropriations ) filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Proposed Order)(Wiebe, Richard) (Filed on 1/18/2019) (Entered: 01/18/2019)

01/22/2019

448 ORDER by Judge Jeffrey S. White granting 446 Administrative Motion for a Stay of Proceedings in Light of Lapse of Appropriations. (jjoS, COURT STAFF) (Filed on 1/22/2019) (Entered: 01/22/2019)

01/22/2019

Set/Reset Deadlines as to 413 Government Defendants Notice of Motion and Motion for Summary Judgment as to Plaintiffs Statutory Claims). Motion Hearing set for 3/29/2019 09:00 AM in Oakland, Courtroom 5, 2nd Floor before Judge Jeffrey S. White. (jjoS, COURT STAFF) (Filed on 1/22/2019) (Entered: 01/22/2019)

01/28/2019

449 NOTICE TO THE COURT OF THE RESTORATION OF APPROPRIATIONS by National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Patton, Rodney) (Filed on 1/28/2019) Modified on 1/30/2019 (cjlS, COURT STAFF). (Entered: 01/28/2019)

03/01/2019

450 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d filed byTash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Exhibit Fazaga v. FBI)(Related document(s) 417 , 413 ) (Wiebe, Richard) (Filed on 3/1/2019) (Entered: 03/01/2019)

03/04/2019 451 ORDER DIRECTING PARTIES TO SUBMIT SUPPLEMENTAL BRIEFING. Signed by Judge Jeffrey S. White on 3/4/19. (jjoS, COURT STAFF) (Filed on 3/4/2019) (Entered: 03/04/2019)

03/11/2019

452 Plaintiffs' Supplemental Brief re Fazaga v. FBI re 417 Opposition/Response to Motion, 451 Order, 413 Government Defendants Notice of Motion and Motion for Summary Judgment as to Plaintiffs Statutory Claims filed by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Related document(s) 417 , 451 , 413 ) (Wiebe, Richard) (Filed on 3/11/2019) Modified on 3/12/2019 (cjlS, COURT STAFF). (Entered: 03/11/2019)

03/11/2019

453 The Government Defendants Response to the Courts Order Directing the Parties to Submit Supplemental Briefing on the Effect of Fazaga v. FBI filed by Dennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America. (Gilligan,

James) (Filed on 3/11/2019) Modified on 3/12/2019 (cjlS, COURT STAFF). (Entered: 03/11/2019)

03/13/2019

454 Clerk's Notice of Video Recording Request. Video Camera hearing set for 3/29/2019 09:00 AM. Objections to Video Recording due 3/20/2019. (dtmS, COURT STAFF) (Filed on 3/13/2019) (Entered: 03/13/2019)

03/14/2019

455 NOTICE OF QUESTIONS FOR HEARING. Signed by Judge Jeffrey S. White on March 14, 2019. (jswlc2S, COURT STAFF) (Filed on 3/14/2019) (Entered: 03/14/2019)

03/25/2019 456 CLERK'S NOTICE NOTICE REGARDING VIDEO RECORDING (jjoS, COURT STAFF) (Filed on 3/25/2019) (Entered: 03/25/2019)

03/25/2019

457 NOTICE OF ADDITIONAL AUTHORITIES FOR MARCH 29, 2019 HEARING by National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America (Attachments: # 1 Exhibit, # 2 Exhibit)(Patton, Rodney) (Filed on 3/25/2019) Modified on 3/26/2019 (cjlS, COURT STAFF). (Entered: 03/25/2019)

03/29/2019

458 Minute Entry for proceedings held before Judge Jeffrey S. White: Hearing on Motion for Summary Judgment held on 3/29/2019. Total Time in Court: 2 hours 30 minutes. Court Reporter: Diane Skillman. (jjoS, COURT STAFF) (Date Filed: 3/29/2019) (Entered: 03/29/2019)

03/29/2019

459 TRANSCRIPT ORDER for proceedings held on 3-29-2019 before Judge Jeffrey S. White by Tash Hepting, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, for Court Reporter Diane Skillman. (Wiebe, Richard) (Filed on 3/29/2019) (Entered: 03/29/2019)

04/01/2019

460 TRANSCRIPT ORDER for proceedings held on 03-29-2019 before Judge Jeffrey S. White by Dennis C Blair, Dana J. Boente, Michael P. Dempsey, National Security Agency, Michael S. Rogers, Donald J. Trump, United States Department of Justice, United States of America, for Court Reporter Diane Skillman. (Gilligan, James) (Filed on 4/1/2019) (Entered: 04/01/2019)

04/05/2019

461 Transcript of Proceedings held on March 29, 2019, before Judge Jeffrey S. White. Court Reporter Diane E. Skillman, telephone number 925899-2812, Diane_Skillman@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript

Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 460 Transcript Order, 459 Transcript Order ) Release of Transcript Restriction set for 7/5/2019. (Related documents(s) 460 , 459 ) (Skillman, Diane) (Filed on 4/5/2019) (Entered: 04/05/2019)

04/25/2019

462 ORDER by Judge Jeffrey S. White granting 413 MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS CROSS MOTION. (jjoS, COURT STAFF) (Filed on 4/25/2019) (Entered: 04/25/2019)

04/25/2019 463 NOTICE OF FILING OF CLASSIFIED ORDER. Signed by Judge JEFFREY S. WHITE on 4/25/19. (jjoS, COURT STAFF) (Filed on 4/25/2019) (Entered: 04/25/2019)

04/25/2019 464 JUDGMENT. Signed by Judge JEFFREY S. WHITE on 4/25/19. ***Civil Case Terminated.(jjoS, COURT STAFF) (Filed on 4/25/2019) (Entered: 04/25/2019)

05/20/2019

465 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Appeal fee of $505 receipt number 097113364759 paid.) AND REPRESENTATION STATEMENT (Mackey, Aaron) (Filed on 5/20/2019) (Entered: 05/20/2019)

05/21/2019

466 USCA Case Number 19-16066 Ninth Circuit for 465 Notice of Appeal, filed by Gregory Hicks, Young Boon Hicks, Tash Hepting, Erik Knutzen, Carolyn Jewel, Joice Walton. (cpS, COURT STAFF) (Filed on 5/21/2019) (Entered: 05/22/2019)

06/13/2019

467 Transcript Designation Form for proceedings held on 7/15/09; 9/17/09; 12/14/12; 9/27/13; 3/19/14; 6/6/14; 12/19/14; 5/19/17; 3/29/19 before Judge VRW, JSW, re 465 Notice of Appeal, Transcript due by 6/19/2019. (Mackey, Aaron) (Filed on 6/13/2019) (Entered: 06/13/2019)

05/01/2020

468 NOTICE OF WITHDRAWAL OF COUNSEL PHILIP TASSIN by Tash Hepting, Gregory Hicks, Young Boon Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Tassin, Philip) (Filed on 5/1/2020) Modified on 5/4/2020 (cjlS, COURT STAFF). (Entered: 05/01/2020)

01/27/2021 469 ORDER of USCA. (cjlS, COURT STAFF) (Filed on 1/27/2021) (Entered: 01/27/2021)

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 1 2
3 4 5 • 6
·-·······~···•··?
8 9 10 11 12 . 13 14

STUART F. DELERY Acting Assistant Attorney General JOSEPH H. HUNT Director, Federal Programs Branch VINCENT M. GARVEY Deputy Branch Director ANTHONY J. COPPOLINO Special Litigation Counsel MARCIA BERMAN Senior Trial Counsel U.S. Department of Justice
'Division, Federal Progra:ms Branch··-·····20 Massachusetts Avenue, NW Washington, D.C. 20001 Phone: (202) 514-4782' Fax: (202) 616-8460 Attorneys for the United States and Government Defendants Sued in their Official Capacities

.,___ ·--

UNITED STATES DISTRICT COURT ·• NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DMSION

15 CAROLYN JEWEL, etal.
16
Plaintiffs,
17
18 v..
19
NATIONAL SECURITY AGENCY, fl. gj_.
20
Defendants.
21
22
23
24

) No. 08-cv-4873-JSW )
) CLASSIFIED DECLARATION ) OF JAMES R. CLAPPER ) DIRECTOR OF NATIONAL ) INTELLIGENCE
)
) EX PARTE, IN CAMERA ) SUBMISSION
)
Date: November 2, 2012 Time: 9:00 a.m. Courtroom: 11- 19th Floor Judge JeffreyS. White

25
I, James R. Clapper, do hereby state and declare as follows:
26

27

~INTRODUCTION

28

1. {11) I am the Director of National Intelligence (DNI) of the United States. I have

Classified In Camera, Ex Parte Declaration of James R. Clapper, Director of National Intelligence Jewel et al. v. National Security Agency et al. (OS-cv-4873-JSW)

held this position since August 9, 2010. In my capacity as the DNI, I oversee the United States

2 Intelligence Community and serve as the principal intelligence adviser to the President. Prior to

3 serving as the DNI, I served as the Director of the Defense Intelligence Agency from 1992 to

4 1995, the Director of the National Geospatial-Intelligence Agency from 2001 to 2006, and the
5
Under Secretary of Defense for Intelligence from 2007 to 2010, where I served as the principal
6
staff assistant and advisor to the Secretary and Deputy Secretary of Defense on intelligence,
1
8 counterintelligence, and security matters for the Department of Defense. In my capacity as the

9 Under Secretary of Defense for Intelligence, I simultaneously served as the Director of Defense

lO
Intelligence for the DNI.

11

12

2. ~he purpose of this declaration isJ:o formally assert, in my capacity as the

13 Director ofNational Intelligence and head of the United States Intelligence Community, the state

14 secrets privilege and a statutory privilege under the National Security Act, see 50 U.S.C. § 403-
15
l(i)(l), in order to protect intelligence sources and methods that are at risk of disclosure in the
16
above-captioned case as well as in Shubert v. Obama (07-cv-00693) (M: 06-cv-1791). The
17
18 statements made herein are based on my personal knowledge as well as on information provided

19 to me in my official capacity as the Director of National Intelligence.

20

~SUMMARY

<

21

3. ~In the course of my official duties, I have been advised of this lawsuit and the

22

23 allegations at issue in the plaintiffs' complaints in the Jewel and Shubert actions. In personally

24 considering this matter, I have executed a separate unclassified declaration dated September 12,

25 2012. Moreover, I have readand personally considered the information contained in the.Public
26
and the In Camera, Ex Parte Declaration of Frances J. Fleisch, National Security Agency (NSA),
27
executed on September 11, 2012 (hereafter "Classified NSA Declaration"). Disclosure of the
28

Classified In Camera, Ex Parte Declaration of James R. Clapper, Director of National Intelligence Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

·.~gcg//QR-CC»'l~lOFO~l
information covered by my and NSA's privilege assertions reasonably could be expected to

2 cause exceptionally grave damage to the national security of the United States and, therefore, the

3 information should be excluded from any use in this case. In addition, it is my judgment that

4 sensitive state secrets concerning NSA~s sources, methods and activities are so central to the
5
subject matter of the litigation that any attempt to proceed in this case will substantially risk the
6
disclosure of the classified privileged national security information described herein and will
7
8 therefore risk exceptionally grave damage to the national security of the United States.

9

4.

10
lawsuit put at risk of disclosure information concerning several highly classified and critically
II
important NSA intelligence activities that commenced after the 9111 terrorist attacks, which were
12
13 subsequently transitioned to the authority of the Foreign Intelligence Surveillance Act ("FISA"),

14 and continue to be utilized by the NSA. See Classified NSA Declaration Tf5-ll; 27-51.

15

5.

16
the NSA, with the assistance of telecommunication companies including AT&T and Verizon, h
17
indiscriminately intercepted the content and obtained the communications records of millions of
18

19 ordinary Americans as part of an alleged presidentially authorized "Program" after 9111, see,

20 e.g., Jewel Complaint at TJ[ 2-13; 39-97; Shubert Second Amended Complaint (SAC) TI 1-7~ 62-

21 91, further litigation risks the disclosure of information concerning several classified NSA

22
intelligence activities, sources and methods,
23

24

in connection with NSA' s (1) targeted

25 content surveillance aimed at al-Qa'ida and affiliated terrorist organizations, pursuant to the

26 Terrorist Surveillance Program ("TSP") and later pursuant to FISA authority; (2) the bulk
27
collection and targeted analysis of non-content information about telephone and Internet
28

ci~~~if1ed"/;; Camera,Iix"Parte Decl~ti7>~"~:fj~;;;- R~ Clappe;, Directo~-orti;ii(;n~i Tntell-igen~e
Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

communications-critically important and highly sensitive activities that have also been

2 conducted pursuant to Foreign Intelligence Surveillance Court ("FISC") orders, or other

3 authority, and that enable the NSA to uncover the contacts

4

and(3)-

5

6

7

8

. This lawsuit therefore puts at risk of disclosure

9 information concerning essential foreign intelligence-gathering activities utilized to meet the
10
extremely serious threat of another terrorist attack on the U.S.Homeland, a threat which I
11
describe further below.
12
6.

14 asserting the state secrets privilege and the DNI's authority to protect intelligence sources and
15 methods pursuant to 50 U.S.C. § 403-1(i)(l) to protect against the disclosure of the highly
16
classified intelligence sources and methods put at issue in this case and vital to the national
17
security of the United States, including: (1) any information that would tend to confirm or deny
18
19 whether particular individuals, including the named plaintiffs, have been subject to the alleged
20 NSA intelligence activities; (2) information concerning NSA intelligence sources and methods,
21 including facts demonstrating that the content collection under the TSP was limited to specific
22
al-Qa'ida and associated terrorist-related international communications and that the NSA did not
23
24 and does not otherwise conduct a dragnet of content surveillance as plaintiffs allege; (3) facts
25 that would tend to confirm or deny other intelligence activities authorized by the President after
26 9/11 and later transitioned to the authority of the FISA that is, the existence of the NSA' s bulk
27
non-content (i.e., meta data) collection, and any information about those activities; and (4).
28

Classified In Camera, Ex Parte Dec:;i;;tio~R-. Clap~r, Direct~~ ~6~atl~~fut~lllg~~~e
Jewel et at. v. National Security Agency et al. (08-cv-4873-JSW)

2

I specifically concur with the NSA that public speculation about

alleged NSA activities does not diminish the need to protect intelligence sources and methods

4 from further exposure, and that official confirmation and disclosure of the classified privileged

national security information described herein would cause exceptionally grave damage to the
6
national security. For these reasons, as set forth further below, I request that the Court uphold
7
8 the state secrets and statutory privilege assertions that I make herein, as well as the statutory

9 privilege assertion made by the NSA pursuant to Section 6 of the National Security Agency Act,

10
see 50 U.S.C. § 402 (note), and protect the information described in this declaration from

11
disclosure.
12

13

~ CLASSIF1CATION OF DECLARATION

14

7. "(SHSIIINF) ~ursuant to the standards in Executive Order 13526, this declaration

15

'/HCSOOR:COP'lfNOFOR:n. The details

16
concerning these classification markings are set forth in the Classified NSA Declaration at !J['J[12-
17
15 and are briefly summarized here. Under Executive Order 13526, information is classified
18

19 "TOP SECRET" if unauthorized disclosure of the information reasonably could be expected to

20 cause exceptionally grave damage to the national security of the United States; "SECRET" if
21
unauthorized disclosure of the information reasonably could be expected to cause serious
22
damage to national security; and "CONFIDENTIAL" if unauthorized disclosure of the
23
24 information reasonably could be expected to cause identifiable damage to national security. At
25 the beginning of each paragraph of this declaration, the letters "U," "C," "S," and "TS" indicate

26 respectively that the information is either UNCLASSIFIED, or is classified CONFIDENTIAL,
27
SECRET, or TOP SECRET.
28

5
ciasSilleJTnc~£7/>arte Declarntion of Ja.mes If ciapp~r, Dlrector~fNa"tiona1 Int~llige~~~---· Jewel et aL v. National Security Agency et aL (08-cv-4873-JSW)

TOP 8ECRET/R'8W81-l/HC~'IORCQNlNQfOI& 8. ~SNSI/fNF) Additionally, this declaration also contains Sensitive Compartmented
2 Information (SCI), which is subject to special access and handling requirements because it
3 involves or derives from particularly sensitive intelligence sources and methods. This
4 declaration references communications intelligence, also referred to as special intelligence (SI),
5
which is a subcategory of SCI that identifies information that was derived from exploiting
6
7 cryptographic systems or other protected sources by applying methods or techniques, or from 8 intercepted foreign communications. This declaration also references human intelligence (HCS),
9 another subcategory of SCI that identifies information derived from individuals who provide
10
intelligence information.
II
•• 9.
15 about the Terrorist Surveillance Program (TSP), a controlled access signals intelligence program
16
under presidential authorization in response to the attacks of September 11, 2001. Information
17
pertaining to this program is denoted with the special marking "TSP."
18
19
20
21
22
10.
23
24 foreign governments, foreign nationals, or non-U.S. citizens without permission of the originator 25 and in accordance with DNI policy. The "O~CON" designator means that the originator of the
26 information controls to whom it is released.
27
28
6 ---------·~-C~l-as~si~fi~ed~-In-C-a-m-e-ra-, -E-x -P-ar-te--D-e-cl-ar·at·io-n-o-f-Ja-m-e-s-R-. -Cl-app·~~·:oi~~to~·~fN~tional Intelligence
Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

2

11. (U) The position of Director of National Intelligence was created by Congress in

3 the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108-458, §§ 1011(a) and
4 1097, 118 Stat. 3638,3643-63, 3698-99 (2004) (amending sections 102 through 104 of Title I of
5
the National Security Act of 1947). Subject to the authority, direction, and control of the
6
President, the Director of National Intelligence serves as the head of the U.S. Intelligence
7
8 Community and as the principal adviser to the President, the National Security Council, and the

9 Homeland Security Council for intelligence matters related to the national security. See 50
10 u.s.c. § 403(b)(l), (2).
11
12. ~The United States "Intelligence Community" includes the Office of the

13 Director of National Intelligence; the Central Intelligence Agency; the National Security

14 Agency; the Defense Intelligence Agency; the National Geospatial-Intelligence Agency; the

15 National Reconnaissance Office; other offices within the Department of Defense for the
16
collection of specialized national intelligence through reconnaissance programs; the intelligence
17
elements of the military services, the Federal Bureau of Investigation, the Department of the
18
19 Treasury, the Department of Energy, the Drug Enforcement Administration, and the Coast

20 Guard; the Bureau of Intelligence and Research of the Department of State; the elements of the

21 Department of Homeland Security concerned with the analysis of intelligence information; and
22
such other elements of any other department or agency as may be designated by the President, or
23
jointly designated by the DNI and heads of the department or agency concerned, as an element o
24

25 the Intelligence Community. See 50 U.S.C. § 40la(4).

26

13. ~The responsibilities and authorities of the Director of National Intelligence

27
are set forth in the National Security Act of 1947, as amended. See 50 U.S.C. § 403-1. These
28

7

2 of the departments and agencies of the Executive Branch, the Chairman of the Joint Chiefs of

3 Staff and senior military commanders, and the Senate and House of Representatives and
4 committees thereof. See 50 U.S.C. § 403-l(a)(l ). The DNI is also charged with establishing the
5
objectives of, determining the requirements and priorities for, and managing and directing the
6
7 tasking, collection, analysis, production, and dissemination of national intelligence by elements
of the Intelligence Community. Id. § 403-l(f)(l)(A)(i) and (ii). The DNI is also responsible for

9 developing and determining, based on proposals submitted by the heads of agencies and
lO
departments within the Intelligence Community, an annual consolidated budget for the National
11
_ _ _ _. Intelligence Program for presentation to the President, for ensuring the effective execution of the - - - - -
12
13 annual budget for intelligence and intelligence-related activities, and for managing and allotting

14 appropriations for the National Intelligence Program. Id. § 403-l(c)(l)-(5).

15

14. ~In addition, the National Security Act of 1947, as amended, provides that

16
"[t]he Director of National Intelligence shall protect intelligence sources and methods from
17

unauthorized disclosure." 50 U.S.C. § 403-l(i)(l). Consistent with this responsibility, the DNI
18

19 establishes and implements guidelines for the Intelligence Community for the classification of

20 information under applicable law, Executive orders, or other Presidential directives and access to
21
and dissemination of intelligence. ld. § 403-l(i)(2)(A), (B). In particular, the DNI is responsible
22
for the establishment of uniform standards and procedures for the grant of access to Sensitive
23
24 Compartmented Information ("SCf') to any officer or employee of any agency or department of
25 the United States, and for ensuring the consistent implementation of those standards throughout
26 such departments and agencies. Id. § 403-l(j)(l), (2).
27
15. ~By virtue of my position as the Director of National Intelligence, and unless
28

TOP 8ECRETitr8Pf8i -,~qiCSfiO:R:CO~U~lOPO~l otherwise directed by the President, I have access to all intelligence related to the national

2 security that is collected by any department, agency, or other entity of the United States. See 50

3 U.S.C. § 403-1(b); Executive Order 12333 § 1.3(a), as amended. Pursuant to Executive Order

4 13526, the President has authorized me to exercise original TOP SECRET classification

5
authority.
6
7

~SSERTION OF STATE SECRETS PRIVILEGE

8

16. ~ After careful and actual personal consideration of the matter, based upon my

9 own knowledge and information obtained in the course of my official duties, including the
10
information contained in the Public and Classified In Camera, Ex Parte Declaration of Frances J.
11
____..,"2_, Fleisch, National Securit:,y_6gency, I have det~rmined that the disclosure of certain
1
13 information-as set forth herein and described in more detail in the Classified NSA

14 Declaration-would cause exceptionally grave damage to the national security of the United

15 States and, therefore, must be protected from disclosure and excluded from this case. Thus, as to
16
this information, I formally assert the state secrets privilege. In addition, it is my judgment that
17
sensitive state secrets concerning NSA's sources, methods and activities are so central to the
18
19 subject matter of the litigation that any attempt to proceed in the case will substantially risk the

20 disclosure of the privileged information described herein and in more detail in the classified
21 declarations, and will therefore risk exceptionally grave damage to the national security of the
22
United States.
23

24
ASSERTION OF STATUTORY PRIVILEGE UNDER NATIONAL SECURITY ACT

25

M 17.

Through this declaration, I also hereby invoke and assert a statutory privilege

26

27 held by the Director of National Intelligence under the National Security Act to protect the

28 information described herein, see 50 U.S.C. § 403-1(i)(l). My assertion of this statutory

9
Classified In Camera, Ex Parte Declaration of James R. Clapper, Director of National Intelligence Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

'TOP SECRE't'h''TSffSI

/11€9//0RCOH/HOFORH

privilege for intelligence sources and methods is coextensive with my state secrets privilege

2 assertion.

AA_INFORMATION SUBJECT TO ASSERTIONS OF PRIVILEGE

4

18. ~ In general and unclassified terms, the following categories of information

are subject to my state secrets and statutory privilege assertions:

6

A. ~ Information concerning the specific nature of the

7

terrorist threat posed by al-Qa'ida and its affiliates and

8

other threats to the United States; and

9

B. ~Information that may tend to confirm or deny whether

10

the plaintiffs have been subject to any alleged NSA

intelligence activity that may be at issue in this matter; and

11

'tR) ---=----· C.

Any information concerning NSA intelligence

---.....,~····1--------~-:,_a_c,t.iv.i.ti~es-,-s-o-u-rc-e-s~, ~o-r :m:e:th-o:d.s.t.h.a.t -m-a-yor-e-la~t-e to or be

13

necessary to adjudicate plaintiffs' allegations, including

allegations that the NSA, with the assistance of

14

telecommunications carriers such as AT&T and Verizon,

indiscriminately intercepts the content of communications

15

and also collects the communication records of millions of

16

Americans as part of an alleged "Program" authorized by

the President after 9/11. See, e.g., Jewel Complaint fi 2-13;

17

39-97; Shubert SAC fi 1-9; 57-58; 62-91.

18

~The scope of this assertion includes but is not limited

19

to:

20

(i)AAinformation concerning the scope and

operation of the now inoperative "Terrorist Surveillance
21
Program" ("TSP") regarding the interception of the content

22

of certain one-end international communications

reasonably believed to involve a member or agent of al-

23

Qa'ida or an affiliated terrorist organization, and any other

24

information related to demonstrating that the NSA does not

otherwise engage in the content surveillance dragnet that

25

the plaintiffs allege; and

26

(ii) ~Information concerning whether or not the

27

NSA obtained from telecommunications companies such as

AT&T and Verizon communication transactional records as

28

alleged in the Complaint; see, e.g., Jewel Complaint fi 10;

82-97; Shubert SAC '][102; and

10
·classified In Camera, Ex Parte Declarat!";n of James R. Clapp~r:rn~~~"t;;;[N~I~t~iii;.;;
Jewel el al. v. National Security Agency el al. (08-cv-4873-JSW)

TOP SBCRETiffSP/SI -'~ICS//ORCO~~JDFORt'I

2

deny

wh(eitiih~~T;)\ITnf&oTrmoratVioenritzhoant

may (and

tend to confirm or to the extent relevant

or necessary, any other telecommunications carrier),

provided assistance to the NSA in connection with any

alleged activity, see, e.g., Jewel Complaint Tif 2, 7-8, 10,

4

13, 50-97; Shubert SAC €J{lj[ 6, 10-13; 66-68.

5
~ESCRIPTION OF INFORMATION SUBJECT TO PRIVILEGE AND HARM OF

6

DISCLOSURE

7

A. ~ Information Concerning the al-Oa'ida Terrorist Threat

8
19. ~ The intelligence activities, sources, and methods that are implicated by this
9
lawsuit, and put at risk of disclosure in further proceedings, must be viewed and understood in
10

11 the context of the threat faced by the United States. In unclassified terms, more than a decade

·:r after the September lltti attacks, we remain in a global conflict with ai-Q;.ia;-~e face an
13
evolving threat from its affiliates and adherents. America's campaign against terrorism did not
14
end with the mission at Bin Ladin's compound. Indeed, the threats we face have become more
15
16 diverse. As al-Qa'ida' s core leadership struggles to remain relevant, the group has turned to its

17 affiliates and adherents to carry out attacks and to advance its ideology. These groups are from

18 an array of countries, including Yemen, Somalia, Nigeria, and Iraq. To varying degrees, these

19
groups coordinate their activities and follow the direction of al-Qa'ida leaders in Pakistan. Many
20
of the extremist groups themselves are multidimensional, blurring the lines between terrorist
21

22 groups, insurgency, and criminal gangs.

23

20. ~For example, al-Qa'ida in the Arabian Peninsula (AQAP) remains of

24 particular concern to the United States. The National Counterterrorism Center (NCTC) assesses
25
that this is the most likely entity to attempt attacks in the west. Even in the wake of Anwar al-
26
27 Aulaqi's death, this group maintains the intent and capability to conduct anti-US attacks with

28 little to no warning. In its three attempted attacks against the US Homeland -- the airliner plot of

11
Classified In Camera, Ex Parte Declaration of James R. Clapper, Director of National lntelligence Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

'TOP SBCRET'//'fSPfSI

;'/fiCSh'ORCOUf.NOFOR-N

December 2009, an attempted attack against US-bound cargo planes in October 2010, and an

2 airliner plot in May 2012 similar to the 2009 attempt-- AQAP has shown an awareness of the

3 capabilities of Western security procedures and demonstrated its efforts to adapt. We remain

4 concerned about AQAP's efforts to exploit the security vacuum associated with the Arab unrest,
5
even though the group has suffered recent setbacks in these efforts. The death of al-Aulaqi
6
probably temporarily slowed AQAP' s external plotting efforts but did not deter the group from
7

8 attempting another aviation attack in May 2012.

9

21. ~ AQAP has attempted to continue publishing the English-language Inspire

10
magazine-previously spearheaded by al-Aulaqi and now-deceased Samir Khan-in order to·
1l
_ _ _ _ • mobilize Western-based individuals for violent!_~tion. While the deaths of al-Aulaqi and _!{h~
12
13 have affected the quality of the magazine, the publication endures and continues to reach a wide

14 global audience of extremists.

15

22. ~Similarly, since the withdrawal of US forces from Iraq in 2011, al-Qa'idain

16
Iraq (AQI) has conducted nearly monthly simultaneous coordinated country-wide attacks against
17
government, security, and Shia civilian targets in Iraq. During the past two years its media
18

19 statements have reaffirmed the group's commitment to al-Qa'ida's global ideology and have

20 encouraged attacks in the West. In July 2012, AQI's leader, Abu Du'a, a.k.a. Abu Bakr al-
21 Baghdadi, issued his first public audio statement since taking over the group in 2010 in which he
22
threatened to attack the US Homeland, praised the US defeat in Iraq, and applauded the actions
23
24 of the Syrian population in rising up against the Asad regime. The statement included the
25 phrase, "We say to those that have fallen out of communication, oh sleeping people wake up. Oh

26 sitting people rise," which possibly is a call to Iraqi populations in and outside the region to
27
become more involved in AQI activities.
28

12

TO'P :S'ECltB'flffSPISI

'HCSHOR:CHNR'(OFOR~J

23. (U) AQI's propaganda statements have cited its support for uprisings against

2 secular governments in the Middle East and North Africa, and in a June statement, the group expressed solidarity with the Syrian Sunni population. In January 2011, it published an
4 explosives training video that called for lone wolf attacks in the West and against so-called

apostate regimes in the Middle East.
6
24. ~uring the past two years, American and Canadian authorities have arrested
7
several North America-based AQI associates, highlighting the potential threat posed to the

9 United States. In May 2011, the FBI arrested Kentucky-based Iraqi nationals Waad Alwan and
10
Shareef Hamadi for attempting to send weapons and explosives from Kentucky to Iraq and
11

13 December. In January 2010, Canadian authorities arrested dual Iraqi-Canadian citizen Faruq 'Isa

14 who is accused of vetting individuals on the internet for suicide operations in Iraq.

15

25. ~We continue to monitor al-Shabaab and its foreign fighter cadre as a potentia

16
threat to the US Homeland, although the group is mainly focused on combating the ongoing
17
Kenyan and Ethiopian incursions into Somalia which have eroded its territorial safehaven since
18

19 late last year. The group, which formally merged with al-Qa'ida in February 2012, also remains

20 intent on conducting attacks against regional and Western targets in East Africa, especially in
21
countries supporting the Transitional Federal Government (TFG) and allied forces in Somalia.
22
Probable al-Shabaab sympathizers recently conducted several low-level attacks in Kenya. Al-
23
Shabaab leaders in the past have publicly called for transnational attacks, including threatening
24
25 to avenge the January 2012 death of British national and al-Shabaab senior foreign fighter Bilal

26 Berjawi.
27
26.
28

~ Al-Qa 'ida in the Lands of the Islamic Maghreb (AQIM) and Boko Haram

13

-- ~ ~~~-

------·-~--·---~--~--~~---· -----~--

. ··--·- ,....,_ ···"-~------~~-~~-~--------

Classified In Camera, Ex Parte Declaration of James R. Clapper, Director of National Intelligence

Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

TOP ~'E:Citffi'tffSP/81 -/IICS//OR:CC»lL}~O:flQRW have shown minimal interest in targeting the US Homeland and remain focused on local and

2 regional attack plotting, including targeting Western interests including through kidnap-for-

ransom operations. AQIM is actively working with local extremists in northern Mali to establish

4 a safehaven from which to advance future operational activities. Boko Haram probably has an
5
emerging awareness of US persons or entities in the US with connections to Nigeria. The group'
6
spokesman in April publicly threatened to find a way to attack a US-based news organization if
7

8 its coverage of Islam did not change.

9

M 27.

In addition, while most Pakistani and Afghan militant groups pose a more

lO
direct threat to U.S. interests and our allies in that region. the Intelligence Community continues

11

w

to watch for indicators that any of these groups, networks. or individuals are actively pursuing or

12

13 have decided to incorporate operations outside of Sooth Asia as a strategy to achieve their

14 objectives. Tehrik-e Taliban Pakistan (TIP) leaders have repeatedly threatened attacks against

15 the U.S., including after the death of Bin Ladin in May 2011. NCTC assesses that TTP' s claim

16
of responsibility for the failed Times Square bombing in May 2010 demonstrates its willingness
17
to act on this intent.
18

19

28. ('o}.:ro the extent classified information about the al-Qa'ida threat, from

20 September 11, 2001 to the present, or the many other threats facing the United States, would be
21 at issue in attempting to litigate this case, such infoll'Dation could not be disclosed without
22
revealing intelligence sources, methods, and information of the United States and thereby 23
causing exceptionally grave damage to the national security. Therefore, I assert the state secrets
24
25 and DNI statutory privilege to protect such informatfun from disclosure. Some of the classified

26 threat information is described further below.
27
29. tSilOCfNF} The NCTC's current classified threat assessment underscores the
28

14

... --_.,...-~-~ ,_ .,_ ~

. ----

Classified In Camera, Ex Parte Declaration of James R. Clapper, Director of National Intelligence

Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

TOP 8ECRE'f'/{fSPfSI

'HCgnOJteOiqiNOFORN

continuing threat posed by al-Qa'ida and its affiliates. While NCTC assess that "core" al-Qa'ida

2 is probably currently unable to carry out complex, coordinated, large-seale attacks in the West,

3 the terrorist threat to the United States has diversified to include groupa affiliated or allied with

4 al-Qa'ida. For example, the NCTC assesses that Pakistan-based al-Qa!ida remains intent on
5
conducting terrorist attacks inside the United States. Although the group's operational
6
capabilities have been severely degraded by leadership losses and setbacks in recent years, the
7
8 threat has not been eliminated. NCTC assesses that these terrorist adversaries remain determined

9 to strike, including via smaller and simpler plots that may be more difficult to detect. Preventing
to attacks remains the Intelligence Community's highest priority. In this evolving threat landscape,
11
the Intelligence Community continues to work together to disrupt terrorist plots against the US at
12
13 home and overseas, to significantly degrade al-Qa'ida through relentless counterterrorism (CT)

14 pressure in key global safe havens, and to share key information with domestic and international

15 partners.

16

(1) {s7tNJQ Counterterrorism Successes Against al-Qa'ida

l7

30. ~ Major counterterrorism successes and momentous global events in recent
18

19 years have altered the terrorist threat landscape in a way that lessens the direct threat of a large-

20 scale, operationally complex, mass-casualty attack against the U.S. Homeland in the near-term.
21

22

23

24

25

26

27

31. ~The deaths of Pakistan-based al-Qa'ida leader Usama Bin Ladin and

28

fi ICSl/ORCONfllOFORll AQAP planner Anwar al-Aulaqi in 2011 removed two of the most influential drivers of the

2 terrorist threat against the Homeland. These two leaders provided strategic oversight and

3 operational guidance for the majority of the most notable large-scale attacks and attempted

4 attacks against the United States since 2001. Additionally, they were responsible for providing
5
inspiration to a global audience of al-Qa'ida members, allies, and adherents about the necessity
6
of attacking the "far" enemy in order to achieve the longstanding goal of the global jihad. In the
7

8

9

lO

II

12

13

••••••••••••••

33. ~Al-Qa'ida has not conducted a successful attack in the West since 2005,

28

16

'fOP SECRET/ffSWSI

'liC£ "OR CC»T'.WOEOR N

and last trained and deployed operatives to the United States for attacks in 2009. •

2

3

4

5

6

7

(2)

9 10

- 34. ('lSIIHCS.110CfNF) Notwithstanding the successes described above, al-

Qa'ida and its global affiliates continue to pose a threat to the Nation's security. Pakistan-based
1l

12 al-Qa'ida continues to demonstrate some intent to conduct attacks against the US. Intelligence

13 reporting indicates that al-Qa'ida leader Ayman al-Zawahiri is maintaining Bin Ladin's desire to

14 strike the United States, and looking to leverage the group's affiliates as a means to overcome
15
their own operational constraints. NCTC assesses that the group almost certainly would attempt
16
to attack the United States if resources, including viable operatives, were available. Zawahiri
17

18

19 20

21

22
23 •

Al-Qa'ida's prospects for rebounding from its weakened state are low and depend on its

24 ability to protect its Pakistan-based cadre and global influence, while addressing deficiencies in

25 leadership and operational capabilities. Despite its shrinking leadership cadre, persistent unrest
26
in places such as Yemen, Libya, Syria, and Egypt, and the impending withdrawal of U.S. forces
27
from Afghanistan, may provide core al-Qa'ida an opportunity to al-Qa'ida a propaganda
28

17
Classified In Camera, e;p;;;;·~n~cl;;ti~~:ci~p~;:Dir~t;~-N~tlonal·l~tclilg~n~~ .. ,
Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

TQP SFCRFTtrfSPlSI

'MCS t/OR:Cillt~IOPOR:'PI

opportunity to claim victories over the US and reinvigorate its image as the leader of the global

2 movement.

3

35.

lO

36. ~n addition, against this backdrop of a weakened core al-Qa'ida, NCTC

11
assesses that in the coming years the U.S. will be facing a more interdependent and diverse
12

13 terrorist threat than we have experienced to date, which will likely be more difficult to detect.

111•••• 14 An expanded set of terrorist adversaries

15

in recent years have carried on al-Qa'ida's mantle and attempted to strike in and

16
against the U.S. Homeland. Al-Qa'ida's affiliate groups are likely to remain committed to al-
17
Qa'ida's ideology and to seek opportunities to strike US interests in their operating areas or in
18

19 the West. The intent and capability of each affiliate to conduct transnational attacks varies

20 widely, however, in large part because of their focus on achieving local and regional goals.

21 However~ increasing collaboration between al-Qa'ida's affiliates will further shift the focal point
22
of the global jihad away from South Asia, in particular as the groups share expertise, advice and
23
24 inspiration in ways that improve their attack capabilities and/or understanding of our

25 counterterrorism capabilities and tactics.

26

37. ~AQAP continues its efforts to conduct attacks against in the

27
region and in the West. AQAP remains committed to its regional a g e n d a · · · · · ·
28

18

E;p;;;;· ----- --~---- · Ct~;~i'fTed- i~c~

Declaration of James R. ClapJ;"er, Director-or"i-4~~11igenc;--------- - - - - - - - -

Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

2

3

Additionally, periodic reporting reveals AQAP intentions to conduct

4 attacks in neighboring Gulf States

. AQAP is bolstering its ability to

5
target the West by investigating diverse tactics, identifying potential targets, and seeking
6

operatives suitable for operations in the West.
7

8

9

10
38. (TSUIIC !IIJOCINF) AQAP as o f - 2012 was pursuing multiple plots

II
against
12

diplomatic officials in Sanaa,

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27
39.
28

CI;-~fi~fu Camera, Ex Parte Declaration of James R~ CtaPp;-Director ofN;t;;;;l Intellig~~~;· . ~~,·~··----·---~- "~~·
Jewel et al. v. National Security Age11cy et al. (08-cv-4873-JSW)

---·········------------·-------

2

3

4

5

6

7

8

I
•

I

• • • • • • • • • • • • • • •

(3) ~ AI-Oa'ida's Weapons and Tactics

27

<0

28

42. ~e continuing al-Qa'ida threat can also be seen in the type of weapons

20
- - - - · · - - - - · - · - - - - - - - - - - - Classified In Camera, Ex Parte Declaration of James R. Clapper, Director of-N- ati-on-al-I- nt- ell-ig-en·ce---·--~----·~-
Jewel eta/. v. National Security Agency et at. (08-cv-4873-JSW)

2
In its propaganda al-Qa'ida has encouraged "lone-wolf"
4 extremists to conduct Homeland small arms attacks because firearms are easy to acquire and use
5
effectively in the US, an assertion borne out by a number of homegrown violent extremists'
6
small-arms attacks and disrupted plots over the past 3 years.
7
8
9
10
11
Al-Qa'ida-inspired extremists will
12
13
14
15
16
17
•
I
• • •
I
•
I I
• •
21
Classified In Camera, Ex Parte ~laration of James R. Clapper, Director of National Intelligen~-e- - · Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

2

4 5

-(4)

6

44.

I

I

I
•••••••••••
I

22
• • • •
I

I

22
Classified In Camera, Ex Parte Declaration of James R Clapper, Director of National lnlelligence Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

2 3 4

6

7

8

9

10

II

12

13

14

15

16

17

46. ~ sum, a variety of entities continue to pose a significant threat to the

18 nation's security. The Government is utilizing all lawful intelligence gathering capabilities,
19
including those set forth in the Classified NSA Declaration, to meet these threats and to protect
20
the American people. I set forth this information not only to provide the Court with background
21
22 information necessary to understand why the intelligence activities implicated by or directly at

23 issue in this case are being undertaken, but also to assert a claim of privilege over classified

24 threat information. The Government cannot disclose classified threat information in addressing
25
plaintiffs' allegations or other issues in this case, or even in publicly supporting its assertion of
26
privilege, because to do so would disclose to our adversaries what we know of their plans a.'ld
27
28 how we may be obtaining information about them. Such disclosures would lead our adversaries

23
Classified In Camera, Ex Parte Declaration of James R. Clapper, Director of National Intelligence Jewel et al. v. NatioMl Security Agency eta/. (08-cv-4873-JSW)

2 thereby increasing the risk of non-detection. In addition, disclosure of threat information might

3 reveal human sources for the U:nfted. States, compromise those sources, and put lives in danger.
4 Accordingly, although I believe that classified threat information is crucial to understanding the
5
importance to our national security of the NSA intelligence activities, sources, and methods
6
implicated by the plaintiffs' allegations, I must assert the state secrets privilege and the DNI's
7
8 statutory privilege over this classified threat information because of the exceptionally grave

9 danger to national security that could reasonably be expected to result from its disclosure.

10

II

B. ~Information That May Tend to Confirm or Deny Whether the Plaintiffs

Have Been Subject to the Alleged NSA Intelligence Activities.

I2
47. ~ext, I am also asserting privilege over information that would reveal
13

I4 whether particular individuals, including the named plaintiffs in this lawsuit, have been subject

I5 to the alleged NSA intelligence activities. Disclosure of such information would cause
I6
exceptionally grave damage to the national security.
I7
48.
18

19

20

2I

22

23

24

25

26

Accordingly, I assert the state secrets and DNI statutory

27 privilege as to this information.
28

24
Classified In Camera, Rx Parte Declaration of James R. Clapper, Director of National Intelligence Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

'fO¥ SBCltB'ftff3ft3i -

qlCS//ORCO:N/~lOFORN

49. -ct1Jfhe NSA cannot publicly confirm or deny whether any particular individual

2 is subject to surveillance activities. If the NSA were to reveal that an individual is the target of
3 - surveillance, the collection capability relating to that individual-would certiuniy rn; compromised:
4 On the other hand, if the NSA were to reveal that an individual is not the target of surveillance,
5
adversaries would know that a particular individual has avoided surveillance and is a secure
6
source for communicating. Moreover, providing assurances to those individuals who are not
7
8 being targeted quickly becomes unworkable when faced with a case in which an individual has

9 in fact been targeted. If the NSA were to confirm that any specific individual is not the target of
10
surveillance, but later refuse to confirm or deny that information in a case involving an actual
ll
target, it would be apparent that surveillance was occurring in the latter case. The only recourse
12
13 for the NSA is to neither confirm nor deny whether someone has been targeted or subject to NS

14 activities, regardless of whether the individual has been targeted or not. To say otherwise when

15 challenged in litigation would result in the frequent, routine exposure of NSA information,

16
sources, and methods, and would severely undermine surveillance activities in general.
17
C. ~nformation Concerning NSA Activities, Sources, or Methods.
18

19

50. "'(t:f}-Furthermore, I am asserting privilege over any other facts concerning NSA

20 intelligence activities, sources, or methods that may relate to or be necessary to adjudicate the
21 plaintiffs' claims, including allegations that the NSA, with the assistance of telecommunications
22
companies including AT&T and Verizon, has indiscriminately intercepted the content and
23
obtained the communications records of millions of ordinary Americans as part of an alleged
24
25 presidentially authorized "Program" after 9/11. See, e.g., Jewel Comp. <Jr1[2-13; 39-97; Shubert

26 SAC Tl[ 1-9; 62-91 As noted above, my privilege assertion encompasses (1) facts concerning the
27
operation of the now-defunct Terrorist Surveillance Program, including any facts needed to
28

TOP SFCRFTIITSPlSI -/MCSNORCOP't!NOFORN

25

Classified In Camera, Ex Parte Declaration of James R. Clapper, Director of National Intelligence Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

'fOP SECRET/fFSPISI -LAIC~IIORC~Jl~JO~ demonstrate that the TSP was limited to the interception of the content1 of one-end foreign

2 communications reasonably believed to involve a member or agent of al-Qa'ida or an affiliated

3 terronsiorganlzation, arid that the NSA does not otherwise conducta dragnetofcontent

4 surveillance as the plaintiffs allege; and (2) information concerning whether or not the NSA
5
obtains transactional communication records from telecommunications companies such as
6
7 AT&T and Verizon as plaintiffs allege.

8

51. ~s the NSA indicates, see Public NSA Declaration <J[ 11, the NSA's

9 collection of the content of communications under the TSP was directed at international
10
communications in which a participant was reasonably believed to be associated with al-Qa'ida
11
or an affiliated organization. Thus, as the Government has previously statecl, plaintiffs'
12
13 allegation that the NSA has indiscriminately collected the content of millions of communications

14 sent or received by people inside the United States after 9111 under the TSP is false. I concur

15 with the NSA that to the extent it must demonstrate in this case that the TSP was not the content
16
dragnet plaintiffs allege, or demonstrate that the NSA has not otherwise engaged in the alleged
17
content dragnet, highly classified NSA intelligence sources and methods about the operation of
18

19 the TSP and other NSA intelligence activities would be disclosed which would cause exceptional

20 harm to national security. 2

21

22

1 ~ The term "content" is used herein to refer to the substance, meaning, or purport of

a communication, as defined in 18 U.S.C.§ 2510(8).
23

24

~he Government has publicly confirmed that, in addition to the "Terrorist

Surveillance Program," other intelligence-activities were authorized by the President after the

25 9/11 attacks in a single authorization that was periodically reauthorized. See Unclassified

Inspector General Report on the President's Surveillance Program (10 July 2009) ("IG Rept.") at 26 5, available at www.dni.gov/files/documents/Newsroom/Reports and Pubs/report 071309.htm.

27 However, those other intelligence activities remain highly classified, see Public IG Rept. at 5, and subject to the DNI privilege assertions. As the IG report also indicates, activities that were
28 originally authorized by the President along with the TSP were subsequently authorized under orders issued by the FISC. See Public IG Rept. at 30. As a result of this transition, the final

26

Classified Jn Camera, Ex Parte Declaration of James R. Clapper, Director of National Intelligence Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

TOr S:ECRE'f/ffSP/SI -lllfCStfORCONINOFORN 52. ~I am also asserting privilege over information concerning whether or not the

2 NSA obtained from telecommunications companies such as AT&T and Verizon the complete

----·'""''~-·

j>

4 companies' millions of customers. I concur with the NSA that confirmation or denial of any
5
information concerning this allegation would cause exceptionally grave harm to national
6
security, including by risking disclosure of whether or not the NSA utilizes particular
7
8 intelligence sources and methods and, thus, the NSA's capabilities or lack thereof.

9

53. fi'S/fFSPlSJI/OCfNF) In particular, as set forth in the Classified NSA

10
Declaration, the United States faced urgent and immediate intelligence challenges after the
11
September 11 attacks, and undertook signals intelligence activities pursuant to presidential
12
13 authorization that were designed to meet those challenges and to detect and prevent future

14 terrorist attacks by al-Qa'ida and its affiliates. Those activities include the TSP and similar

15 sources and methods of content surveillance that later became subject to FISA authority, as well

16
as the bulk collection of telephony and Internet non-content meta data that was also later
17
transitioned to FISA authority and used to discover collltacts
18

19

See Classified NSA Declaration Tl27-51.

20

54. ~ased on my personal consideration and judgment as to the harm disclosure

21 would cause to national security, my privilege assertion includes, but is not limited to, the
22
following activities discussed in the Classified NSA Declaration.
23
55. (TSlffSP,'SIJlOCftW) First, I assert privilege over facts concerning the operatio
24
25 of the TSP and any other NSA intelligence activities needed to demonstrate that the TSP was

26
27 presidential authorization for the Presidential Surveillance Program activities authorized after the 9/11 attacks expired on February 1, 2007. /d. at 30. To the extent plaintiffs' allegations seek to
28 put at issue the nature of these other classified activities, they are encompassed by my privilege assertion in this litigation as well.
27

Classified In Camera, Ex Parte Declaration of James R. Clapper, Director of National Intelligence Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

limited to the interception of one-end foreign communications reasonably believed to involve a 2 member or agent of al-Qa'ida or an affiliated terrorist organization, and that the NSA does not

4 those concerning (1) how targets were selected under the TSP; (2) how specific methods were
5
used under the TSP to intercept telephone and Internet communications and to minimize the risk
6
of collecting non-target communications and purely domestic communications; (3) the nature
7

and identity of the targets under the TSP,

; (4) and additional

9 classified details about the operation of the TSP that would be necessary to litigate the plaintiffs'

10
allegations (to the extent relevant) including facts concerning the operational swiftness and
II
agility of the TSP, particularly in conjunction with meta data analysis;
12

13

; and the effectiveness and success of the TSP;

14 and (5) other NSA surveillance activities that may be needed to address and disprove the content

15 dragnet allegations,

16
-

See Classified NSA Declaration <ft 63-73. In my judgment, revealing or

17

risking disclosure of the foregoing NSA intelligence activities, sources, and methods in order to
18

19 show that the NSA is not conducting the "dragnet" on the content of communications that

20 plaintiffs allege would cause exceptional harm to national security by disclosing to our

21 adversaries the ability of the United States to monitor and track their activities and

22
communications.
23

24

56. ('f'SiffSPt'SII/OCINF) Second, I also assert privilege over facts that would

25 disclose or describe the NSA's meta data collection activities. See Classified NSA Declaration

26 Til 74-83. In my judgment, the NSA is unable to disclose any information about the existence or
27
operation of the NSA's bulk collection or targeted analysis oflnternet or telephony metadata
28

28
Classified In Camera, Ex Parte Declaration of James R. Clapper, Director of National Intelligence Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

2 important intelligence tools the NSA uses, and they have never been officially confirmed or

3

4 undermine an essential tool for tracking possible terrorist plots and would help foreign

5
adversaries evade detection. Such a disclosure would also undermine ongoing intelligence
6
operations authorized by the FISC.
7

8

57. ('f'S1ffSPISII/0CfNF) Finally, I also assert privilege over information

9 concerning NSA activities conducted pursuant to FISA authority and Executive Order 12333, as
10
described by the NSA. See Classified NSA Declaration ']['I[ 37-51; 84. In my judgment,
11
disclosure of current surveillance activities under these authorities, either directly or indirectly,
12
13 would seriously compromise, if not destroy, vital ongoing intelligence operations. My privilege

14 assertion extends to the existence of any information concerning the (i) FISC Pen Register Order,

15 as subsequently reauthorized until its expiration in December, 2011, see id. Tl[ 48-51; (ii) FISC
16
Telephone Business Records Order, as subsequently reauthorized, see id. 'I[ 4 7 ; -
17
(iv) FISC Foreign Telephone and Email Order, see id.
18
19 TJ[ 38-40; (v) particular NSA sources and methods utilized under authority of the Protect

20 America Act and the FISA Amendments Act of 2008, including directives issued to particular

21 telecommunication carriers under those Acts, see id. TJ[ 41-45; and (vi) NSA's use of similar

22
sources and methods pursuant to Executive Order 12333, see id. 'I[ 82.
23

24

58. ('f'SlffSP/-SII/OCfNF) I concur with the NSA that the activities discussed herein

25 and described further by the NSA--in particular the meta data collection activities--are among th

26 most important intelligence tools available to the United States for protecting the Homeland fro
27
another catastrophic terrorist attack. I also concur that
28

29
Classified In Camera, Ex Parte Declaration of James R. Clapper, Director of National Intelligence Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

In ~my judgment, after personaf

4 consideration of the matter, disclosing the information described herein and by the NSA would

5
compromise these critical activities, sources, and methods, thereby helping our adversaries evade
6
detection and causing exceptionally grave damage to the national security of the United States.
7

8

D. ~laintiffs' Allegations that Certain Telecommunications Carriers

Provided Assistance to the NSA with the Alleged Activities.

9

10

59. ~In addition, I am asserting privilege over information that may tend to

11 confirm or deny whether or not AT&T, Verizon, or to the extent necessary, any other particular

12 telecommunications provider, has assisted the NSA with alleged intelligence activities. The
13
disclosure of any information that would tend to confirm or deny allegations of such assistance
14
would cause exceptionally grave harm to the national security. Confirming or denying such
15
16 allegations, again, would reveal to foreign adversaries whether or not the NSA utilizes particular

17 intelligence sources and methods and, thus, either compromise actual sources and methods or

18 disclose that the NSA does not utilize a particular source or method. Such confirmation or denial
19
would also replace speculation with certainty for hostile foreign adversaries who are balancing
20
the risk that a particular channel of communication may not be secure against the need to
21
22 communicate efficiently.

23

60 .

• • • • •

30
Classified In Camera, Ex Parte Declaration of James R. Clapper. Director of National Intelligence Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW)

Classified In Camera, Ex Parte Declaration of James R. Clapper, Director of National Intelligence Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW}

I

I I

I

I

I

I

I

•

I

-• • • • • • • • •

21

64.

@RISK OF LITIGATION
' (TS/R'SP/SI/JOCJN.F} Finally, I concur with the NSA that further litigation of

22
this case will inherently risk the disclosure of highly classified activities. While plaintiffs
23

wrongly allege that the NSA is conducting a dragnet program of content surveillance, disproving
24

25 plaintiffs' speculation would risk or require revealing NSA intelligence activities, sources and

26 methods, including bulk metadata collection activities. Those vital activities, as described
27
herein, are highly classified, sensitive, and fragile, and any effort to disclose information about
28

'!UP SECREI//13f!JSI -/FICSUQRCONINOFORN

32

Classified In Camera, Ex Parte Declaration of James R. Clapper, Director of National Intelligence Jewel et al. v. National Security Agency et at. (08-cv-4873-JSW)

them could have grave consequences for the national security.

2 3
65. ~In sum, I am asserting the state secrets privilege and the DNI's statutory
4
5 privilege set forth in 50 U.S.C. § 403-l(i)(l) to protect the classified national security 6 information described herein and in the Classified NSA Declaration. Moreover, because 7 proceedings in this case risk disclosure of privileged and classified intelligence-related

information, I respectfully request that the Court not only protect that information from
9
10 disclosure, but take all steps necessary, including dismissal of this action, to protect the
11 intelligence information, sources, and methods described herein in order to prevent exceptional

12 harm to the national security of the United States.

13
I declare under penalty of perjury that the foregoing is true and correct.

14

!L 15 DATE: September 2012
16 17 18

~2~~ AMEs R. cLAPPE Director of National Intelligence

19

20

21

22

23

24

25 26 27 28

TOP SECRET/ITSP/SI-UHC~4'0RCOM~lOFORW

33

Classified In Camera, Ex Parte Declaration of James R. Clapper, Director of National Intelligence Jewel et al. v. National Security Agency et a/. (08-cv-4873-JSW)

 
 TOP S ECR-ETI~-+>->¥~-w.

MICHAEL F. HERTZ 2 Acting Assistant Attorney General
DOUGLAS N. LETTER 3 Terrorism Litigation Counsel
JOSEPH H. HUNT 4 Director, Federal Programs Branch 5 VINCENT M. GARVEY
Deputy Branch Director 6 ANTHONY J. COPPOLINO
Special Litigation Counsel 7 U.S. Department of Justice 8 Civil Division, Federal Programs Branch
20 MassachusettsAvenue, NW 9 Washington, D.C. 20001
Phone: (202) 5 14-4782 10 Fax: (202) 616-8460
II
Attorneys for the United Scates and 12 Government Defendants Sued in their
Official Capacities
13

J4

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16 CAROLYN JEWEL, et al.
17
P laintiffs,
18

19
v.

20
NATIONAL SECURITY AGENCY eta/.
21

22

Defend ants.

23

24

) No. 08-cv-4873~VRW ) ) CLASSIFIED DECLARATION ) OF DEBORAH A. BONANNI, ) NATlONAL SECURITY AGENCY
)
) EX PARTE, IN CAMERA ) SUBMISSION
)
) Date: June 25, 2009 ) Time: 2:30p.m.
) Courtroom 6, l tb Floor
) Chief Judge Vaughn R. Walker

25

26

27

28 Derived From· NSAICSSM 1-5
Datod: 2009040 Declassify On: 2034040

Classified In Camera, Ex Parte Declaration of Deborah A. Bonanni. Na1ional Security Agency
Carolyn Jewel. e/ nl. 1'. Nntio11al SP.curity Agency, et a/. (No.~~~} ~ _
W.P£ ECR-El~//TSPN8 1~~

2
3 l.

(U) Introduction

(U) Table of Contents

4 II.

(U) Summary

5 Ill.
6
IV.
7
8
9

(U) Classification of Declaration
(U) Background Information
A. (U) The National Security Agency B. (U) September 11 , 2001 and the al Qaeda Threat. C. (U) Summary ofNSA Activities After 9/11 to Meet al Qaeda Threat

10 V. II VI. 12 13 14 15

(U) NSA Information Protected by Privilege Assertions
(U) Description aflnfonnation Subject to Privilege and the Harm of Disclosure
A. (U) Information That May Tend to Confirm or Deny Whether or Not the Plaioti Have Been Subject to the AJleged NSA Activities
B. (U) Information Related to NSA Activities, Sources, and Methods Implicated by Plaintiffs' Allegations

!6

1. (U) Plaintiffs' Allegations of a Communications Dragnet

17
(a) (U) Information Related to Terrorist Surveillance Program

18

(b) (U) Plaintiffs' Allegations Concerning the Collection of

19

Communication Records

20
2. fF&ISIIIOCfNF) lnfonnation Concerning Current FISA Authorized

21

Activities and Specific FISC Orders.

22

3. (U) Plaintiffs' Allegations that AT&T Provided Assistance to the NSA

23

with the Alleged Activities

24 VII. (U) Risks of Allowing Litigation to Proceed
25 VIII. (U) Swnmary and Conclusion
26

27

28

Classified In Camero, £.x Parte Declaration of Dcboroh A. Bonanni, Nctional Security Agency

carolyn Jewe(. er of. v. Nartonaf Secunl)> AgMcy. el ol. (

W)

TOP SECRET/IT8.PNS+-

·roP8ECR ET/lT8~~
CLASSIFIED DECLARATJON OF DEBORAH A. BONANNI
NATIONAL SECURITY AGENCY
(U) I, Deborah A. Bonanni, do hereby state and declare as follows:

I. (U) Introduction
4

5

I. (U) I am the ChiefofStaff for the National Security Agency (NSA), an

6
intel ligence agency within the Department of Defense. I have held this position since February
7
2006. As the Chief of Staff, under our internal regulations, and in the absence of the Deputy
8

9 Director and the Director, I am responsible for directing the NSA, overseeing the operaHons

10 undertaken to carry out its mission and, by specific charge of the President and the Director of

I J National Intelligence, protecting NSA activities and intelligence sources and methods. I have
12
been designated an originaJ TOP SECRET classification authority under Executive Order No.
13
14 12958, 60 Fed. Reg. 19825 (1995), as amended on March 25,2003, and Department ofDefense
15 Directive No. 5200.1 -R. Information Security Program Regulation, 32 C.F.R. § l59a.l2 (2000).

16
2. (U) The purpose of this declaration is to support an assertion of the military and
17
18 state secrets privilege (hereafter "state secrets privilege") by the Director ofNationallntelligence

19 ("DNI") as the head of the intelligence comml.l.Ility, as well as the DNI's assertion of a statutory

20 privilege llllder the National Security Act, to protect infonnation related to NSA activities
2!
described herein below. Lieutenant General Keith Alexander, the Director of the National
22
Security Agency, has been sued in his official and individual capacity in the above captioned cas
23
24 and has recused himself from the decision ofwhether to assert the statutory privilege in his

25 officjaJ capacity. As the Deputy Director is currently out of the office on temporary duty, by
26 operation of our intemal regulations and by specific delegatjon of the Director, 1 am authorized t
27
review the materials associated with this litigation, prepare whatever declarations I detennine are
28
appropriate, and determine whether to assert the NSA 's statutory privilege. Through this

Cla..;s iflerl/n CnmeM. E.x Parll! Declaration of Deborah A. Bonanni, National Security Agency
Carolyn Jl!wel. et a/. v. Nallona/ SectJrlty Agency, ~~ ~'·. ~~ ~ ~W)
+OP SE(;RGTI! F~R~

declaration, 1 hereby invoke and assert the NSA 's statutory privilege set forth in Section 6 of the

2 National Security Agency Act of 1959, Public Law No. 86-36 (codified as a note to 50 U.S.C.
3 § 402) ("NSA Act"), to protect the infonnation related to NSA activities described herein below.

The statements made herein are based on my personal knowledge ofNSA activities and

5
operations, and on infonnation made available to me as the ChiefofStaffofthe NSA.
6

7

II. (U) Summary

8

3. (U) In the course of my official duties, l have been advised of this litigation and I

9 have reviewed the allegations in the Complaint in this case. In sum, plaintiffs allege that, after
10
the 9/11 attacks, the NSA received presidential authorization to engage io surveillance activities
II
far broader than the publ icly acknowledged "Terrorist Surveillance Program'' ("TSP"), which
12
13 involved the interception of specific international communications involving persons reasonably

14 believed to be associated with a! Qaeda and affiliated terrorist organizations. Plaintiffs allege

15 that the NSA , with the assistance of telecommunication comp anies including AT&T, has
16
indiscriminately intercepted the content and obtained the communications records of millions of
17
18 ordin ary Americans as part of an alleged presidentially-authorized "Program" after 9/11. See
19 Complaint at~ 2-13; 39-97. l cannot disclose on the public record the nature of ar~y NSA

20 information implicated by the p)aintiffs' allegations. However, as described further below, the
~I
disclosure of information related to the NSA's activities, sources and methods implicated by the 22
plaintiffs' allegations reasonably could be expected to cause exceptionally grave damage to the
23
24 national security of the United States and, for this reason, are encompassed by the DNI's state
2.S secrets and statutory privilege asSertions, as well as by my assertion of U1e NSA statutory

26 privilege, and should be protected from disclosure io this case. In addition, it js my judgment
27
that sensit ive state secrets are so central to the subject matter of the litigation that any attempt to
28
proceed in the case risks the disclosure of the classi fied privileged national securi ty information

Cla5sified In Camero. Ex Parle Declaration of.Deborah A Bonanni, National So:rurity Agency

Carolyn Jewel. et a/. v. National Security Agency, et a/. (No.-

· RW)

TOP &~ET/ffSfWS+.

tGRCONINGFGR-N

'J'OP SE€-ORC-eNfN.G.f:@R:.N described herein and exceptionally grave damage to the national security of the United States.

2

4. (TSI!FSPHSI/IOCINF) The allegations in th.is lawsuit put at issue the disclosure

3 of info.nnation concerning several highly classified and critically important NSA intelligence

4 activities that commenced after th~ 9/J I terrorist attacks, but which are now conducted pursuant

to authority of the Foreign lntelligence Surveillance Act ("FISA"), including ongoing activities
6
7 conducted under orders approved by the Foreign Intelligence Surveillance Court ("FISC").
8 Plaintiffs' allegation that the NSA undertakes indiscriminate surveillance of the content1 of

9 millions of communications sent or received by people inside the United States---under the now
10
defunct-TSP or otherwise---is false, as discussed below. The NSA's collection of the content of
1l
communications under the TSP was directed at international communications in which a
12
13 participant was reasonably believed to be associated with al Qaeda or an affiliated organization

14 and did not constitute the kind of dragnet collection of the content ofmillions of Americans'

IS telephone or Internet communications that the plaintiffs allege. Although the existence of the
16
TSP has been acknowledged, the details of that program remain highly classified, along with
17
details of related content surveillance activities undertaken after the TSP pursuant to orders of
18
19 the FISC. This information could not be disclosed to address or disprove or otherwise litigate

20 the plaintiffs' allegation of a content dragnet without causing exceptional harm to NSA's sources

21 and methods of gathering intelligence---including methods currently used to detect and prevent

22
further terrorist attacks under the authority of the FISA.
23

24

5. (TS/rfSIV/SII/OCINFt Jn addition, as the Court should also be aware from prior

25 classified declarations submirted by the NSA in related proceedings, the NSA has collected,

26 pursuant to presidentiaJ authorization and currently under subsequent FISC orders, non-content
27

28
1 (fS/1811/0CfNF) The term "content" is used herein to refer to the substance, meaning, or purport of a communication, as defined in 18 U.S.C. § 2510(8), as opposed to the type of addressing or routing info.nnation referred throughout this declaration as "meta data."

Cla~ificd In Camera. Ex Parte Declaration ofDeborah A. Bonanni. No.tional Securiry Agency Carolyn Jewel. e1 al. Y. Naliomll SecurUy Agency. et at. (No.~RW)
TOP SECRE~-/BRGGN+NGffiR..N

information (i.e., meta data) about telephone

2 highly sophisticated analytical tools that can uncover the cootacts

3 members or agents o

As noted above and detailed

4 below, the content surveillance subject to presidential authorization after 9/ll was not the
5
content dragnet surveillance that plaintiffs allege, and the co1lection of.non-content information,
6
7 while significant in scope remains a highly classified matter currently under FISA authorization.

8 For the NSA to attempt to explain, clarify, disprove, or otherwise litigate plaintiffs' allegations

9 regarding a communications dragnet would require the NSA to confirm the existence of, or
10
disclose facts concerning, intelligence sources and methods for the co11ection of non-content
ll
information related to communications, as well as current NSA operations under FISC Orders---
12
13 disclosures that would cause exceptional harm to national security.

14

6.

15 telecommunications carriers, in particular AT&T, assisted the NSA in alleged intelligence
16
activities cannot be confirmed or denied without risking exceptionally grave harm to national
17
18 security. Because the NSA has not undertaken the alleged dragnet collection of communications
19 content, no carrier has assisted in that alleged activity.

20

21

22

23

24

25

26

27

Cln.ssilicd In Camera, Ex Parte Oeolaralion of Dcbomh A. Bonanni, National Security Agency

Carolyn Jew€1, el al. v. National Security Aseney, eta/. (N

VRW)

+OP SEGRET,.·.,~~l:-0¥-llRrl--

2 3

4
5
would cause exceptionaJly grave damage to the

7 national security.

8

7.

9 statutory privilege assertions, and my own statutory privilege assertion, seek to protect against
10
the disclosure of the highly classified intelligence sources and methods put at issue in this case
II
and vital to the national security of the United States, including: (1) any information that would
12
13 tend to confinn or deny whether particular individuals, including the named plaintiffs, have been

14 subject to the alleged NSA intelligence activities; {2) information concerning NSA intelligence

IS sources and methods, including facts demonstrating that the content collection under the TSP
16
was limited to specific al Qaeda and associated terrorist-related international communications
[ 7
18 and was not a content surveillance dragnet as plaintiffs allege; (3) facts that would tend to
19 confirm or deny the existence of the NSA's bulk meta data coUection and use, and any

20 information about those activities; and (4) the fact that

21

TI1e fact that there has been public speculation

22
about alleged NSA activities does not diminish the need to protect intelligence sources and
23

24 methods from further expoS'Ure. Official confirmation and disclosure of the classified privileged

25 national security information described herein would cause exceptionally grave damage to the

26 national security. for these reasons, as set forth further below, 1request that the Court uphold
27
the state secrets and statutory privilege assertions that the DNI and I now make, and protect the
28
information describtXJ in this declaration from disclosure.

Classified Jn Camera, Ex Parte Declaration of Deborah A Bona~~oi, National Security Agency

Caroly11Jewel, eta!. v. NationaiSecuriryAgency, eta/. (No.

-YRW)

q::efLS-Eb-t+l~.l-1-h-t'-fft.rt-

::r..gp &EC'RET/f f S P / / S I - Y N e m III. {U) Classification of Declaration

2

8. -tSf/81:1/NFt This declaration is classified TOP SECRET/ITSP//SI-ECI

3

CON/NOFORN pursuant to the standards in Executive Order No. I2958, as amended

4 by Executive Order No. 13292. Under Executive Order No. 12958, information is classified
5
"TOP SECRET" if unauthorized disclosure of the information reasonably could be expected to
6
7 cause exceptionally grave damage to the national security ofthe United States; "SECRET" if

8 unauthorized disclosure of the information reasonably could be expected to cause serious

9 damage to national security; and "CONFIDENTIAL" ifunauthorized disclosure of the
10
information reasonably could be expected to cause identifiable damage to national security. At
11
the beginning of each paragraph of this declaration, the letter or letters in parentheses
1'2
13 designate(s) the degree of classification of the information the paragraph contains. When used
[4 for this purpose, the letters ''U," "C," "S," and "TS" indicate respectively that the information is
15 either UNCLASSIFIED, or is classified CONFIDENTIAL, SECRET, or TOP SECRE~.
16
9. (SN81HNF} Additionally, this declaration also contains Sensitive Compartmented
17
18 Infonnation (SCI), which is "information that not only is classified for natjonal security reasons
\9 as Top Secret, Secret, or Confidential, but aJso is subject to special access and handling
20 requirements because it involves or derives from particularly sensitive intelligence sources and
21
methods." 28 C.F.R. § 17.18(a). Because of the exceptional sensitivity and vulnerability of such
22
infonnation, these safeguards and access requirements exceed the access standards that are
23
24

25 26 27
28

Clas.llif..,.J In Camera, Ex Parte Dccluration of Dclx>rah A BQnanni, National Security Agency

Corol)m JI!WCI, eta/. v. Nal•onal ~urity Aseney, cl a!. ( N o . . . , R W }

+OP £bGR6TiffSPUSI

/ORCO~VNGFORN

normally required foTr OinPfoSnEnaCtRioEnToNfTthSeP/s/SaI -m~tio,lnQRlCevOeNl./NSOpeFcOifRicNally, this declaration

2 references communications intelligence (COMfNT), also referred to as special intelligence (Sl),

3 which is a subcategory of SCI. COMTNT or SI identifies SCI that was derived from ex.pJoiting

4 cryptographic systems or other protected sources by applying methods or techniques, or from

5
intercepted foreign communications.
6

7

l 0.

& related to or derived from the Terrorist Surveillance Program (TSP), a controlled access signals

9 intelligence program under presidential authorization in response to the attacks of September 11,
10
2001. Although TSP was publicly acknowledged by then-President Bush in December 2005,
II
details about the program remain highly classified and strictly compartmented. Jnfonnation
12
13 pertaining to this program is denoted with the special marking "TSP" and requires more

14 restrictive handling.

15

16

17

18

19

20

21

22
It. -{SHSIHNF) In addition to the fact that classified infonnation contained herein
23
24 may not be revealed to any person without authorization pursuant"to Executive Order 12958, as
25 amended, this declaration contains information that may not be released to foreign governments,

26 foreign nationals, or non- U.S. citizens without pennission of the originator and in accordance
27

28

Classified in Camera, Ex Pane Declaration of Oebo~ A. Bonanni, National Security Agency Carolyn Jewel. et al. v. NatioTUtl Security Agency, ~~ at. (No.. . . .RW)

+OP 8EGRET//T&P//SJ

/GRCONlNOFORN

TOP--8ECRET/A'SPI/SI -

/ORGON/Jl.JOFOR-N

with DNI policy. This jnformation is labeled "NOFORN." The "ORCON" designator means

2 that the originator of the iofonnation controls to whom jt is released.

J

IV. {U) Background Information

4 A. (U) The NationaJ Security Agency
5
12. (U) The NSA was established by Presidential Directive in 1952 as a separately
6
7 organized agency within the Department of Defense. The NSA's foreign intelligence mission

8 includes the responsibility to collect, process, analyze, produce, and disseminate signals

9 intelligence (SIGINT) information, of which communications intell igence ("~OMINT") is a

10
significant subset, for (a) national foreign intelligence purposes, (b) counterintelligence purposes
11
and (c) the support ofmilitary operations. See Executive Order 12333, § 1.7(c), as amended. 5
12

13

13. ffSNSI) Signals intelligence (SIGINT) cons1sts of three subcategories:

14 (1) communications intelligence (CO MINT)~ (2) electronic intelligence (ELINT); and (3) foreign

15 instrumentation signals intelligence (FISINT). Communications intelligence (COMTNT) is
16
defined as "all procedures and methods used in the interception of communications and the
17
obtaining of infonnation from such communications by other than the intended recipients." 18
18
19 U.S.C. § 798. COMINT includes information derived from the interception of foreign and

20 international communications, such as voice, facsimi le, and computer-to-computer information
21 conveyed via a number of means
22
Electronic intelligence (ELINT) is technical intelligence information derived from
2.3
24 foreign non-communications electromagnetic radiations except atomic detonation or radioactive
25 sources-in essence, radar systems affiliated with military weapons platforms (e.g., anti-ship) and

26 civilian systems (e.g., shipboard and air traffic control radars). Foreign instrumentation signals

27

28

5 (U) Section 1.7(c) ofE.O. J2333, as amended, specifically authorizes the NSA to

"Collect (including through clandestine means), process, analyze, produce, and disseminate

signals intelligence information for foreign intelligence and counterintelligence purposes to

support national and departmental missions."

Classilicd In Camera, Ex P(lrte Declaration of Deborah A. Bonanni. National Security Agency

Carolyn Jewel. er ol. v Narionn/ Securiry Agency. eta/. (N

VRW)

intelligence (FlSfNT) is derived from non-U.S. aerospace surfaces and subsurface systems whic

2 may have either military or civilian applications.

3

14. (SHSI/fN~ The NSA 's SJGINT responsihilities jnclude establishing and

4 operating an effective unified organization to conduct SIGINT activities set forth in Executive
5
Order No. 12333, § l.l2(b), as amended. In performing its S1GTNT mission, NSA has
6
7 developed a sophisticated worldwide SIGINT collection network that acquires, among other

8 things , foreign and international electroni c communications and related information. The

9 technological infrastructure that supports the NSA ' s foreign intelligence information collection

10
network has taken years to develop at a cost of bitlions of dollars and untold human effort. It
J I
relies on sophisticated collection and processing technology.
12

13

15. (U) There are two primary reasons for gathering and analyzing foreign

14 intelligence information. The first, and most important, is to gain infonnation required to direct

15 U.S. resources as necessary to counter external tlueats and in support of military operations. The
16
second reason is to obtain information necessary to the formulation ofU.S. foreign policy.
17
18 Foreign intelligence information provided by the NSA is thus relevant to a wide range of
19 important issues, including military order of battle; threat warnings and readiness; arms

20 proliferation; international terrorism; counter-intelligence; and foreign aspects of international
21 narcoti<.:S trafficking.
22
16. 1SNSIIINF} The NSA 's ability to produce foreign intelligence information
23
24 depends on its access to foreign and international electronic communications. Foreign

25 intelligence produced by COMINT activities is an extremely important part of the overall forei

26 inteJligence information available to the United States and is often unobtainable by other means.
27
Public disclosure of either the capability to collect specific commtmications or the substance of
28
the information derived from such collection itself can easily alert targets to the vulnerabi lity of

Classified In Camera. £x Parte Dech~rntion ofDebornh A. Bonanni. National Security Agency

I)

Carolyn Jew<:/. ef at. v. Na11onal Securl(v Agency eta/. (No ~RW)

+GP-&EG~TI/TSP//8-1- -teR-GQN+NOFOR N

TOP SECR&~.'ORGONfll.IOFORN
their communications. Disclosure ofeven a single communication holds the potential of

2 revealing intell\gence collection techniques that are applied against targets around the world. 3 Once alected, targets can frustrate COMINT collection by using different or new encryption 4 techniques, by disseminating disinformation, or by utilizing a different communications link.

Such evasion techniques may inhibit access to the target's communications and therefore deny
6
7 the United States access to information crucial to the defense of the United States both at home

8 and abroad. COMINT is provided special statutory protection under 18 U.S.C. § 798, which

9 makes it a crime to knowingly disclose to an unauthori?.ed person classified information
10
"concerning the communication intelligence activities of the United States or any foreign
II
government."
12
13 B. (U) September 11, 2001 and the al Qaeda Threat.

14

17. (U) On September 11, 200l , the a1 Qaeda terrorist network launched a set of

15 coordjnated attacks along the East Coast of the United States. Four commercial jetliners, each
16
carefully selected to be fully loaded with fuel for a transcontinental flight, were hijacked by al
17
18 Qacda operatives. Those operatives targeted the Nation's financial center in New York with two
19 of the jetliners, which they deliberately flew into the Twin Towers of the World Trade Center.

20 AI Qaeda targeted the headquarters of the Nation's Armed Forces, the Pentagon, with the third
21 jetliner. AI Qaeda operatives were apparently headed toward Washington, D.C. with the fourth
22
jetliner when passengers struggled with the hijackers and the plane crashed in Shanksville,
23
24 Pennsylvania. The intended target of this fourth jetliner was most evidently the White House or

25 the Capitol, strongly suggesting that al Qaeda's jntended mission was to strike a decapitation

26 blow to the Government of the United States- to kill the President, the Vice President, or
27
Members of Congress. The attacks of September 1I resulted in approximately 3,000 deaths-
28
the highest single-day death toll from hostile foreign attacks in the Nation's history. In addition,

CIO$Si fic:d In Cameru, Ex Porte De<:laration of Dliborah A. Bonanni, National Security Agency

Cffrnlyn Jewel, ~I a/. "· Nalional Securily Agency, 1:1 a/. (N

·YRW)

these attacks shut down air travel in the United States, disrupted the Nation' s financial markets

2 and government operations, and caused billions of dollars of damage to the economy.

3

18. (U) On St:ptember 14, 200 I, a national emergency was declared ''by reason of the

terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the
5
continuing and immediate threat of further attacks on the United States." Presidential
6
7 Proclamation No. 7463, 66 Fed. Reg. 48199 (Sept. 14, 2001). The United States also
immediately began plans for a mil itary response directed at al Qaeda's training grounds and

9 havens in Afghanistan. On September 14, 200 I, both Houses of Congress passed a Joint
\0
Resolut ion authorizing the President of the United States "to use all necessary and appropriate
ll
force against those nations, organizations, or persons he determines plarmed, authorized,
12
13 committed, or aided the tenorist attacks'' of September 11. Authorization for Use of Military

14 Force, Pub. L. No. I07-40 § 21 (a), 115 Stat. 224, 224 (Sept. 18, 200 I) ("Cong. Auth.").

15 Congress also ex.pressty acknowledged that the attacks rendered it "necessary and appropriate"
16
for the United States to exercise jts right "to protect United States citizens both at bome and
17
abroad," and acknowledged in particular that "the President has authority under the Constitution
18
19 to take action to deter and prevent acts of international terrorism against the United States." !d.

20 pmbl.

21

19. (U) Also after the 9/11 attacks, a Military Order was issued stating that the attacks

22
of September II "created a state of anned conflict," see Military Order by the President § 1(a),
23

24 66 Fed. Reg. 57833, 57833 (Nov. 13, 2001), and that al Qaeda terrorists "possess both the

2S capability and the intention to undertake further terrorist attacks against the United States that, if

26 not detected and prevented, will cause mass deaths, mass injuries, and massive destruction of
27
pt'operty, and may place at risk the continuity of the operations of the United States
28
Govenunent," and concluding that "an extraordinary emergency exists for national defense

ex CIMI'Iifivd In Camera. rarre [)(:x;lanuion of Debornh A. Bonanni. National Security Agency
Care~lyn Jewel, et al. v. National Security Agency, ct ~~. ~~·~ R~ ___ . •
TOP SCGRBT/ffS -NQ.JiGl~N

purposes." Military Order,§ l(c), (g), 66 . Reg. at 57833-34. Indeed, shortly after the

2 attacks, on October 2, 200 l, NATO took the unprecedented step of invoking Article 5 of the

3 North At lantic Treaty, which provides that an "anned attack against one or more of [the parties]

4 shall be considered an attack against them all." North Atlantic Treaty, Apr. 4, 1949, art. 5, 63

5
Stat. 2241,2244, 34 U.N.T.S. 243,246.
6

7

20. (U) As a result of the unprecedented attacks ofSeptember II, 2001, the United

8 States found itself immediately propelled into a worldwide war against a network of terrorist

9 groups, centered on and affiliated with al Qaeda, that possesses the evolving capability and
10
intention of inflicting further catastrophic attacks on the United States. That war is continuing
II
today, at home as well as abroad. Moreover, the war against a\ Qaeda and its allies is a different
12
13 kind of war, against a very different enemy, than any other war or enemy the Nation has

14 previously faced. AI Qaeda and its supporters operate not as a traditional nation-state but as a

15 diffuse, decentralized global network of individuals, cells, and loosely associated, often dis
16
groups, that act sometimes in concert, sometimes independentl y, and sometimes in the United
17
States, but always in secret-and their mission is to destroy lives and to disrupt a way of life
18
19 through terrorist acts. AJ Qaeda works in the shadows; secrecy is essential to a1 Qaeda's success

20 in plotting and executing its terrorist attacks.

21

21. ~The Classified In Camera, Ex Parte Declaration of Admiral Dennis

22
C. Blair, Director of National Intelligence, details the particular facets of the continuing aJ Qaeda
23

24 threat and, thus, the exigent need for the NSA intelligence activities described here. The NSA

25

26

27

28
Global telecommunications networks, especially the Internet, have

Classtfioo /11 Comero . fix Parte Dedal1ltion nf Debornh A. BooaMi. National Security Agency
Carolyu Jewel. et al. v. National Secunty t1 gency. eta/. (No~ ~!'] _ ~<;;EC RET/(f'SP//SI ~8N/NOF OKN

developed in recent years into a loosely interconnected system-a network of networks-that is 2 ideally suited for the secret communications needs of loosely affiliated terrorist cells. HWldreds 3 of Internet service providers, or "ISPs," and other providers of communications services offer a 4 wide variety of global communications options, often free of charge.
5 6 7 8 9
10 11 12
14 15 16 17 18 19
20
21
22 23 24
25
26
27
28

Classified /n Camera, Ex Pa,te Declaration of Deborah A. Bonanni. National Security Agency

Carotyu Jewel. er at. v Nactonflf Secvrify Agency. eta(.

-VRW)

TOP SECRE1,

2

23. fFSIISJHOCfNF) Our efforts against al Qaeda and its affiliates therefore present

3 critical challenges for the Nation's communications intelligence capabilities. First, in this new
4 kind of war, more than in any other we have ever faced, communications intelligence is essential
5
to our ability to identify the enemy and to detect and disrupt its plans for further attacks on the
6
7 United States. Communications intelligence often is the only means we have to learn the
identities of particular individuals who are involved in terrorist activities and the existence of

9 particular terrorist threats. Second, at the same time that communications intelligence is more
10
important than ever, the decentralized, non~hierarchica l nature of the enemy and their
ll
sophistication in exploiting the agility of modern telecommunications make successful
12
13 communjcations intelligence more difficult than ever. It is against this backdrop that the risks
14 presented by this litigation should be assessed, in particular the risks of disclosing particular

15 NSA sources and methods implicated by the claims.

16
C.
17
18

(U) Summary ofNSA Activities After 9/11 to Meet al Qaeda ThreaL 24. (=F8N811/0CINF) After the September 11 attacks, the NSA received presidential

19 authorization and direction to detect and prevent further terrorist attacks within the United States

20 by intercepting the content of telephone and Internet communications for wh ich there were
2l reasonable grounds to believe that (1) such communications originated or tenninated outside the
22
United States and (2) a party to such communication was a member or agent of al Qaeda or an
23
24 affiliated terrorist organization. The existence of this activity was disclosed by then-President
25 Bush in December 2005 (and subsequently referred to as the "Terrorist Surveillance Program'' or
26 "TSP").7
27

28
7 {lJ) On January 17, 2007, the Attorney General made public the general facts that new orders of the Foreign Intelligence Surveillance Court had been issued that authorized the Government to target for collection international communications into or out of the United States

Cla.ssifitd In Camera. Ex Parle Declaration of Ot:borah A. Bonanni, National Security Agency

Carolyn Jewel, e1 af. v. National Securily Agency, e1 al. (N

W)

+9fi-&ECR6l=N1-&P.fi~OFORN 25. {~In mo~and classified terms, the NSA has

2 utilized a number of critically important intel1igence sources and methods to meet the threat of
3 another mass casualty terrorist attack on the United States-methods that were designed to work
4 in tandem and continue to this day under authority of the FISC. As noted above, one such
5
method involved the program publicly acknowledged by then-President Bush as the TSP, fn
6
7 which the NSA intercepted the content of telephone and Internet communications pursuant to 8 presidential authorization.8 As described further below, under the TSP, NSA did not engage in
9 plaintiffs' alleged dragnet surveillance of communication content, but intercepted the content of
10
particular communications where reasonable grounds ex.isted to believe one party involved a

member of agent oral Qaeda or affi liated terrorist organization based on particular "selectors"
12
13 (phone numbers or Internet addresses) associated with that target. In addition to collecting the

14 content of particular communications, the NSA has also collected non-content communication
15 information known as "meta data ." Specifically, after the 9/ll attacks, the NSA collected bulk
16
meta data related to telephony communications for the purpose of conducting targeted analysis to
17

18

19 where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization; that, as a result of these orders, lillY electroruc
20 swveillance that had been occurring as part of the TSP was then being conducted subject to the
approval of the FISA Court; and that, under these circumstances, the TSP was not reauthorized.
21

22

8 (TSfffSPHSIIfOCINF) The first presidential authorization of the TSP was on October

4, 200 I, and the TSP was reauthorized approximately every 30-60 days throughout the existence

23 of the program. The documents authorizing the TSP also contained the authorizations fo(' the

24 meta data activities described herein. The authorizations, moreover, evolved over time, and during certain periods authorized other activities (this declaration is not intended to and

25

26

27

28

Classified Jn Camera. £x Parte Declarotion of Deborah A. Bonanni, National Security Agency

Carolyn Jewel, et af. v. Notional Security Agency, et of. (

VRW)

Telephony meta data is infonnation derived from call detail

2 records that reflect non-content information such as, but not limited to, the date, time, and

3 duration of telephone calls, as well as the phone numbers used to place and receive the calls.9 In

4
addition, since the 9/11 attacks, the NSA has collected bulk meta data related to Internet
5
communications. Internet meta data is header/router/addressing information, such as the '<to,"
6
7 ''from," "cc," and "bcc"lines, as opposed to the body or "re" lines, of a standard email.

8

26. (TSllSINOCINF} Each of the foregoing activities continues in some form under

9 authority of the FISA and, thus, the NSA utilizes the same intelligence sources and methods
10
today to detect and prevent further terrorist attacks that it did after the 9/J 1 attacks. First, as
II
noted above, on January 10, 2007, the FISC issued two orders authorizing the Government to
12
13 conduct certain electronic surveillance that had been occuning under the TSP. The FISC Orders

14 were implemented on January 17, 2007 and, thereafter, any electronic surveillance that had been

IS occurring as part of the TSP became subject to the approval of the FISC and the TSP was not
16 reauthorized. 10
\7

18

19

20

21

22

23

24

25

26

27

28
10 ffSH81HOC/NF) As also described further(~ 64-67 infra), the FISC has extended
these orders with some modifications, and the Foreign Telephone and Email Order later expired
in August 2007 and was supplanted by authority enacted by Congress first under the Protect

Cla:l\1ilicd In Camera, & f'arte D~IM~tcon of Dcbordh A.. Bonunni, NtUionul Security Agency ~wulyn Jcwd, el a/. v. Nallonal Securiry Agency, el a/. (No~RW)

TOP SECRETNTSPI/SI

/ORCOWNOFORN

27.

the co llection of telephony meta data,

2 since May 2006 certain telecommunication providers have been required by an order of the FISC

3 to produce to the NSA on a daily basis all telephony meta data that they create ("FISC Telephon

4 Business Records Order"). The FJSC Telephone Business Records Order has been reauthorized
5
approximately every 90 days since it was first issued. Although this collection is broad in scope,
6
7 the NSA was authorized by the FISC to query the archived telephony data with identified
8 telephone numbers for which there are facts giving rise to a reasonable, articulable suspicion that

9 the number is associated with

ercafter referred to

10 as a "RAS" determination).11 Historically, only a tiny fraction of telephony meta data records
II
collected by the NSA has actually been presented to a trained professional for analysis. As
12

discussed further below (see~~ 49-57 infra), while the vast majority of records are thus never

14 viewed by a human at the NSA, it is still necessary to collect the meta data in bulk in order to

15 utilize sophisticated and vital analytical tools for tracking the contacts
16
for protecting the national security of the United States.
17

Ill

19

20 America Act and then the FISA Amendments Act of 2008 to authorize foreign intelligence surveillance of targets located overseas without indivjduaJ court orders.
21

22

11 (TS/fSIHOClNF) As set forth further below (mJ 6 1-63 infra), NSA's compliance with

this limitation in the FlSC Order has been subject to further proceedings in the FISC that

commenced with a compliance report by the government on January 15, 2009, which indicated

24

that the NSA had also been querying incoming telephony meta data with selectors for counterterrorism targets subj ect to NSA surveillance under Executive Order 12333, as to which

25 the NSA had not made a "RAS" detennination. On Marc.h 2, 2009, the FISC renewed the Order

26

authorizing the bulk telecommunications

cparrorviies~ ion to NSAu of businesstrseucbojredcstecdonthtaaitnaincgtivtietlyeptohonneywmliemtaitdataitoanfsr,om

27 including that the NSA may query the meta data only after a motion is granted on a case-by-case basis (unless otherwise necessary to protect against imminent threat to human life). The FISC

28 also required the Government to report to the FISC on its review of revisions to the meta data

collection and analysis process, and that report shall include affidavits describing the value of the

collection of telephony meta authorized by the FISC Telephone Business Records Order.

Classified In Camera. E:x fane Declaration of Deborah A. Bonl1Jl11i, N11tiooa1 St:Gurity Agency Carolyn kwe~ et al. Y. National Security Agency, et ai. (No. . .RW)

TOP SEGRET//TSPt/81

/ORCON/NOFORN

28.

y 2004, the collection of Internet meta

2 data jn bulk has been conducted pursuant to an order of the FISC authorizing the use of a pen 3 register and trap and trace device ("FISC Pen Register Order'' or "PRTI Order"). See 18 U.S.C.

§ 3127 (defining "pen register" and ''irap and trace device"). Pursuant to the FISC Pen Register
5
Order, which has been reauthorized approximately every 90 days since it was first issued, the
6
7 NSA is authorized to col1ect, in bulk, meta data associated with electronic communications

8

9

10

11

12

13

Although the NSA collects email meta data in bulk

14

it has been authorized by the FISC to query the archived meta data only using email

15 addresses for which there are facts giving rise to a reasonable, articulable suspicion that the emai

16
address is associated with

imilar restrictions were

17

in place under the presidential authorization). As with buJk telephony meta data collection, bulk
18

19 Internet meta data collection is necessary to allow the NSA to use critical and unique analytical

20 capabiIities to track the contacts (even retrospectively)

known

21 terrorists. Like telephony meta data activities, Internet meta data collection and analysis are vital
22

23

24

25

26

27

28

Classified In Camero. Ex Po1le Declaration ~fDeborah A. Bononni, National Security Asency

Carolyn Jewel. e1 al. v. Nalfonol Security Agency. e1 ol.

RW)

:rep SECRE=f/n ~~
tools for protecting the United States from

accordingly, information pertaining to

2 those activities is highly classified. 13

3

V. (U) Information Protected by Privileg~

4
29. (U) In general and unclassified terms, the following categories of information are
5
subject to the DNI's assertion of the state secrets privilege and statutory privilege under the
6
7 National Security Act, as well as my assertion of the NSA statutory privilege:

8

A. Information that may tend to confirm or deny whether the

plaintiffs have been subject to any alleged NSA intelligence

9

activity that may be at issue in this matter; and ·

10
B. Any information concerning NSA intelligence activities,

II

sources, or methods that may relate to or be necessary to

adjudicate plaintiffs' allegations, including allegations that

12

the NSA, with the assistance of telecommunications

13

carriers such as AT&T, indiscriminately intercepts the

content of communications and also collects the

14

communication records of millions of Americans as part of

IS

an alleged presidentially authorized "Program" after 9/11. See. e.g., Complaint at m12~ l3; 39-97.

16
The scope of this assertion includes but is not limited to:
17

18

(i) Information concerning the scope and operation of the now inoperative •'Terrorist Surveillance Progcam"

19

C'TSP") regarding the interception of the content of certain

one-end international communications reasonably believed

20

to involve a member or agent of al-Qaeda or an affiliated

21

terrorist organization, and any other information related to

demonstrating that the NSA does not other:wise engage in

22

the content surveillance dragnet that the plaintiffs allege;

and
23

24

(ii) Infonnation concerning whether or not the NSA

obtained from telecommurucations companies such as

25

26

27

13 (TSiffSfWSJHOCINF) As the NSA has previously advised the Court in related

proceedings, and describes further below (see note 22..J!!Jj;E), the bulk collection of Internet meta

28 data pursuant to presidential authorization ceased in -

2004. See In Camera, Ex Parte

Classified Declaration of Lt. Gen. Keith B. Alexander at, 31 n.8, MDL No. 06- J791-VRW

(N.D. Cal.) (relating to all actions against the MCI and Verizon. Defendants) (submitted Apr. 20,

2007).

Classified Jn Comei'"O. E.r Pam Declaration of O<:borah A. Bonanni, National Securily Aseney

Cu1olyn )1!\l'f!l. at nl v. Narionol Se~curil)> Agency, er a/. (No.

R W}

TOP SBCRET/,

AT&T communication

records as alleged in

the Complaint; see, e.g., Complaint~~ 10; 82-97; and

2

(iii) Information that may tend to confirm or deny

3

whether AT&T (and to the extent relevant or necessary,

any other telecommunications carrier}, has provided

4

assistance to the NSA in connection with any aJieged

5

activity.

6

VI. (U) Description of Information Subject to Privilege and th~ Harm of Disclosure

7 A.
8

(U) Information That May Tend to C onfirm or Deny Whether the Plaintiffs Have Been S ubj ect to Any Alleged NSA Activities.

9

30. (U) The first major category of information as to which I am supporting the DNI'

10
assertion of privilege, and asserting the NSA' s own statutory privilege, concerns information as
II
to whether particular individuals, including the named plaintiffs in this lawsuit, have been
12

13 subject to aJ Jeged NSA intelligence activities. As set forth below, disclosure of such infonnation

14 would cause exceptionally grave hann to the national security.

15

16
31 . (TS!ffSPJ.C~I/IOC/NF) The five named plaintiffs in this cas~Tash Hepting,
17
18 Gregory Hicks, Carolyn Jewel} Erik Knutzen and Joice Walton have alleged that, pursuant to a
19 presidentiall y authorized program after the 9/ll attacks, the NSA, with the assistance of AT&T,

20 has acquired and continues to acquire the content ofphone calls, ernails, instant messages, text
21 messages, web and other communications, both international and domestic, of millions of
22
ordinary Aroericans---"practically every American who uses the phone system or the Internet"---
.23
24 including the plaintiffs, as well as private telephone and Internet transaction records of millions

25 of AT&T customers, again including information concerning the plaintiffs' telephone and

26 Internet communications. See, e.g., Complaint, 7, 9, 10; see also ,1139-97. As set forth
27
herein, the NSA does not engage in "dragnet" surveil lance of the content of communications as
28
pJainti ffs allege,

Classified In Camera. E.x Partt Declaration of Deborah A. Bonanni, National Secwity Agency

2

CarOlyn Jewel. eta/. v. Nmionat Security Agency. et al.

RW)

TO P 8ECREl/n

IGR~

2
4
s
6 7 8 9 10 I I 12 13 14 15 16
17
I ll 19 20 21
22 23 24 25
26
27

Q~t!6l11 Camera. E.x Por-10 Declllrntion ofDebOT9h A. Bonanni. Nationo) Security Agency

2

Caro(vn Jewel. e1 at. v. NattoMl Security Agency. e1 a/. (No

RW}

2

3

4

5

(i

7

8

9 10

II 12

13 14

15

16
34. (U) As a matter of course, the NSA cannot publicly confinn or deny whether any
17
individual is subject to surveillance activities because to do so would tend to reveal actuaJ
18
19 targets. For example, if the NSA were to confirm in this case and others tha1 specific individuals

20

21

22

23 24

25

26

27

preVlo

pnor

telephony meta data records was presented to an

28 analyst for review, see

, Ex Parte Declaration of Lieutenant General Keith

B. Alexander in Shubert, el al. v. Hush, et al.. (Case No. 07-cv-693) (dated May 25, 2007) 1 27,

and the scope of that disparity remains generally the same.

Classified In Camera. Ex Parte Deda:-ation of Deborah A. Bonanni, National Security Agency Carolyn Jew~!. el o/. v. Nat!onal Securiry Agency. el a/. (No.~ ~] _
TOP SECRETifTS PHSr-~6NJNOFORN-

are not targets of surveillance, but later refuse to comment (as it would have to) in a case

2 involving ao actual target, an actual or potentiaJ adversary of the United States could easily
3 deduce by comparing such responses that the person in the latter case is a target. There can be 4 great harm in revealing targets of foreign intelligence surveillance. If an individual knows or
5
suspects he is a target of U.S. intelligence activities, he would naturally tend to alter his behavior
6
7 to take new precautions against surveillance. 1n addition, revealing who is not a target would
8 indicate who has avoided surveillance and reveal the limitations ofNSA's capabilities. Such
9 information could lead an actual or potential adversary, secure in the knowledge that he is not
10
under surveillance, to convey information; alternatively, such a person may be unwittingly
II
utilized or even forced to convey information through a secure channel to a hostile foreign
12
\3 adven;ary. In short, revealing which channels are free from surveillance and which are not
14 would also reveal sensitive intelligence methods and thereby could help any adversary evade
15 detection and capitalize on limitations in NSA 's capabilities.1l!
16
17
18
19

20

21

22

23

24

25

26

27

28

~

I

Classifi~d /rr Camera. Ex far1e [k.c1arntion of Deborah A. 13onanm. National Security Agency

2

Carolyn Jewel. ct a/. v. National Securuy Agency. c1 a/.

-VRW)

8 B.
9
10

(U) Jnfo.-mation Related to NSA Activities, Sources, or Methods Implicated by the Plaintiffs' AJlegations and the Harm to National Security oflts Disclosure.
1. (U) Plaintiffs' Allegations of a Co mmunicatioos Dragnet.

11

36. (U) I am also supporting the DNJ's assertion of privilege and asserting the NSA's

12 statutory privilege over any other facts concerning NSA intelligence activities, sources, or
13
methods that may relate to or be necessary to litigate the plaintiffs' claims and allegations,
14
including that (i) the NSA is indiscriminately intercepting the content of communications of
IS
16 millions of ordinary Americans, see, e.g., Complaint~ 7, 9, 10, and (ii) that the NSA is

17 collecting the private telephone and Internet transaction records of millions of AT&T customers,

18 again including infonnatioo concerning the plaintiffs' telephone and Intemct communications.
19
See e.g., Complaint mJ 7, 9, 10, 13, 82~97. As described above, the scope of the government's
20
21 privilege assertion includes but is not limited to : (I) facts concerning the operation of the now
22 inoperative Terrorist Surveillance Program and any other NSA activities needed to demonstrate

23 that the TSP was limited to the interception of the content of on~end international
24 communications reasonably believed to involve a member or agent of al Qaeda or an affiliated
25
terrorist organization and that the NSA does not otherwise conduct the content surveillance
26
27 dragnet that the plaintiffs allege; and (2) infonnation concerning whether or not the NSA obtains

2& transactional communication records from telecommunications companies such as AT&T as

Clnssifu~d In Ct.mcra, Ex Porte. D.:clamtion of Debora.h A. Bonanni, Natioual St:>eurhy A0oncy

2

Carolyn Jewel. et at. u. Nacionol Security Asency, et at.

W)

TOP Sf:CRE'fn"f3f /13J-! ! ! I !'ORC0tq/NQFORN plaintiff'S allege. As set forth below, the disclosure o such in formation would cause

2 exceptionally grave hann to national security.

3

(a) (U) Information Related to the Terrorist Surveillance Program.

4

37. (U) After the ex istence of the TSP was officially acknowledged in December

5
2005, tbe Government stated that the NSA's coJlecLion of the content of communications under

7 the TSP was directed at international communications in which a participant was reasonably

8 believed to be associated withal Qaeda or an affili ated organization. Plaintiffs' allegation that

9 the NSA has undertaken indiscriminate surveillance of the content of millions of
10
communications sent or received by people inside the United States after 9111 under the TSP is
II
therefore false, again as the Government has previously stated.19 But to the extent the NSA must
12
13 demonstrate that content swveillance under the TSP was so limited, and was not plaintiffs'

14 alleged content dragnet, or demonstrate that the·NSA has not otherwise engaged in the alleged

15 content dragnet, highly classified NSA intelligence sources and methods about the operation of
16
the TSP and NSA intelligence activities would be subject to disclosure or the risk of disclosure.
! 7
The disclosure of whether and to what ex.tent the NSA utilizes certain intelligence sources and
18
19 methods would reveal to foreign adversaries the NSA's capabilities, or lack thereof, enabli.ng

20 them to either evade particular channels of communications that are being monitored, or exploit

21 channels of communications that are not subject to NSA activities---in either case risk-ing

22
exceptionally grave harm to national security.
23

24

38. (U) The privileged information that must be protected from disclosure includes

25 the followi ng classified details co.ncem)ng content surveillance under the now inoperative TSP .

26

39. (TSHTSPHSIHOCINF) First, interception of the content of communications

27
under lhe TSP was triggered by a r8Jlge of information, including sensitive foreign intelligence,
28

19 See, e.g., Public Declaration ofNSA Director Alexander in the Shubert action (07 -cv693 -YRW) at~ 16.

Classtfiod In Camero, E.x Parte Dc<:laration of Dcbor<ih A. Bonnt~ni, National Security Agency

2

Carolyn JtW61. t!l ol. v. Nolionol ~<."1,,..;'>' Agency, e/ al. (No.~ RW)

TOP ScCR:ET/fl'Sf'l/91·

IOHCONINOFOR-N-

obtained or derived from various sources indicating that a particular phone number or email
2 address is reasonably believed by the U.S. intelligence Community to be associated with a 3 member or agent of aJ Qaeda or an affiliated terrorist organization. Professional intelligence 4 officers at the NSA undertook a careful but expeditious analysis of that information, and
5
considered a number of possible factors, in determining whether it would be appropriate to target
6
7 a telephone number or email address under the TSP. Those factors included whether the target 8 phone number or email address was: (1) reasonably believed by the U.S. Intelligence 9 Community, based on other authorized collection activities or other law enforcement or
10
intelligence sources, to be used by a member or agent of a1 Qaeda or an affiliated terrorist
II 12 I 3 14 IS 16 17 18 19
20
21
22
23
24 25 26 27 28
C{as_qified In Crmw•o. £x P!frfe Occlaratioo of Debo~ A. Bonanni, National Security Agency c.;nrolyn Jewel. e( of. v. Naliorraf Security Agl!ncy. e1 of. ~~o.~RW)
m:J2....~*-!-I·FF&P..f.i~~GFGR-N

40.

2 grounds to believe that the target is a member or agent of al Qaeda or an affiliated terrorist

3 organization, the NSA took steps to focus the interception on the specific a! Qaeda-related target

" and on communications of that target that were to or from a foreign country. In this respect , the

5

NSA's collection efforts were

the NSA had

6

7 reasonable grounds to believe carry th:e "one-end" foreign communicat1ons of members or agents

8 of al Qaeda or affiliated terrorist organizations.

9

41.

10

II

12

13

14

15

16

17

18

19

20

21

22

2J

24

25

26

27

28

C la•sifoed In Camern, £.-.Park Oeclt~rntion ofOclx>rnh A. BoMnni, National Security Ag<!ncy

CMofyn Jf!we/. eraf. v. Narwlllll Security Agency. er at. (No

73-VRW)

2

3

4

5
43. fFSfffSPHSIHOCINF) The NSA took specific steps in the actual TSP
6
7 interception process to minimize the risk that the communications of non-targets were
8 intercepted. With respect to telephone commtmications, specific telephone numbers identified

9 through the analysis outlined above were
10
that the only communications
ll
intercepted were those to or from the targeted number of an individual who was reasonably
12
13 believed to be a member or agent of a\ Qaeda or an affiliated terrorist organization.

14

44. (TS/rTSPNSlNOC/NF) For the interception of the content of Internet

15 communications under the TSP, the NSA used identifying information obtained through its

16
analy::;is of the target, such as email addresses
17

target for collection the

communications of individuals reasonably believed to be members or agents of al Qaeda or an
18

19 affiliated terrorist organization.

20

21

22

23

24

25

26

27

28

CI<IS5ified In Camera. Ex Parle Declaration of Deborah A. Bonanni, National Security Agency

Carolyn Jewel, el a/. v. Nalional Security Agency. eJ al. (No. - : R W )

TOP SECREl'fiT&PHSI

'/ORCONINOFORt>J

2

3

4

h "key words" other than the targeted selectors

5
themselves. Rather, the NSA targeted for collection only email addresses
6

7

ated with suspected members or agents of aJ Qaeda or affiliated terrorist

8 organizations, or communications in which such

mentioned ln

9 addition, due to technical limitations of the hardware and software, incidental collection of non-
10
target communications has occurred, and in such circumstances the NSA applies its
I I
minimization procedures to ensure that communications of non-targets are not disseminated. To
]2
the extent such facts would be necessary to dispel plaintiffs' erroneous content dragnet

14 allegatjons, they could not be disclosed without reveaJing highly sensitive intelligence methods.

IS

45. (TSfFfSPHSIHOCINF) In addition to procedures designed to ensure that the TSP

16
was limited to the international communications of al Qaeda members and affiliates, the NSA
17

18 also took additional steps to ensure that the privacy rights of U.S. persons were protected. •

19

20

21

22

23

24

25

26

27

28

Clnss1ficd In Came~o. F..r Pan11 Oecl!muion of Deborah A. Bonanni, NatiOnal Securiry Agency

3

Ca rofyfl Jewel. ei of. v. .'VatiOfla( Secunry Age11cy. ec at. (No.~RW)

TOP SECRETNTSPffSI-

/ORCON/NOfORN ..

2

3

4

5

6

7

8

9

10

\l

12

13

14

15

16

17
18 foregoing information about the targeted scope of content collection under the TSP could not be
19 disclosed, in order to address and rebut plaintiffs' allegation that the NSA, with the assistance of

20 AT&T, engaged in the alleged content dragnet, without revealing specific NSA sources and
2l methods and thereby causing exceptionally grave damage to the national security.
22

23

24

22 (UI'FOUO) In addition, in implementing the TSP, the NSA applied the existing Legal

25 Compliance and Minimization Procedures applicable to U.S. persons to the extent not

inconsistent with the presidential authorization. See United States Signals Intelligeoce Directive 26 (USS ID) l8. These procedures require that the NSA refrain from intentionally acquiring the

27 communications ofU.S. persons who are not the targets of its surveillance activities, that it destroy upon recognition any communications solely between or among persons in the U.S. that

28 it inadvertently acquires, and that it refrai.n from identifying U.S. persons in its intelligence

reports w1less a senior NSA official determines that the recipient of the report requires such

information in order to perform a lawful function assigned to it and the identity of the U.S.

person is necessary to understand the foreign intelligence or to assess its significance.

Classif1ed In Camera. Ex Parte Declaration of Deborah A. Bononoi, National Security Agency

3

Carolyn Jewel. e1 a/. v, National Security Agency. eta/. (No.•

VRW)

TOP 8ECR FfJ.qSPI/SI

90RCON/NOFORN

47.

2 NSA intelligence activities would be needed to address or prove that the NSA does not conduct
3
4

5

6 7

8

9

IO
ln short, there is no other ''dragnet" program authorized by the President after 9/11
II
under which the NSA intercepts the content of virtually all domestic and international
12
!3 communications as the plaintiffs allege. Again, however, information about NSA content

14 surveillance activities beyond the TSP could not be disclosed in order to address and rebut

IS plaintiffs' allegation without revealing specific NSA sources and methods and thereby causing

]6
exceptionally grave damage to national security.23
17

(b) (U) Plaintiffs' Allegations Concerning the Collection of Communication

18

Records.

19
48. (U) As noted above, plaintiffs also allege that the NSA is collecting the private
20

21 telephone and Internet transaction records of millions of AT&T customers, again including

22 information concerrung the plaintiffs' telephone and Internet communications. See. e.g.,

23

24

23 (f&ITSPHSIHOCINF) To the extent relevant to this case, additional facts about the

operational details of the TSP and subsequent FlSA authorized content surveillance activities

25 also could not be disclosed without exceptional harm to national security, including for example

infonnation that would demonstrate the operational swiftness and effectiveness ofutilizi 26 content surveillance in ·unction with the meta data activities. As noted

27
TSP, in conjunction with meta 28 collection and analysis described herein, allowed the NSA to obtain rapidly not only the content
of a particular communication, but connections between that target and others who may fonn a web of al Qaeda conspirators.

Classified In Camera, & Pane Declaration of Deborah A. Bonanni, National Security Agency

CCJrolyn J~el, el a/. v. National Secunty Agency. et a/.

W)

1'0P SECRFf,'·"''Q-D-1~ Complaint mJ7, 9, 10, 13, 82-97. ConfirmatiOn or denial of any information concerning whether

2 the NSA collects communication records would also disclose information about whether or not
3 the NSA utilizes particular intelligence sources and methods and, thus, the NSA's capabilities or
4 lack thereof, and would cause exceptionally grave hann to national security.
5
49. (TSNS(J/OCfNF) ln addition to implicating the NSA's content collection

7 activities authorized after the 9/ll attacks, the plaintiffs' allegations also put directly at issue the
R NSA 's bulk collection of non-content communication meta data. As explained above, the NSA
9 has not engaged in the alleged dragnet of communication content, and, as now explained below,
10
to address plaintiffs' allegations concerning the bulk collection of non-content information
II
would require disclosure ofNSA sources and methods that would cause exceptional harm to
12
national security. As also explained herein, these meta data collection activities are now subject

14 to the orders and supervision of the FISC.

15

50.

16
2004 pursuant to the FISC Pen Register Order, the NSA co11ectcd bulk meta data associated with
17
electronic communications
18

19

20

21

22

23

24

25

26

27

28

Classified /n Camera, Ex Partr: Dedaration of Deborah A. Bonanni, National Securily Agency

U.rolyn Jewel. et a/. v. Natianol Sea1rity Agency. eJ at.

R W)

TOP SEE'RETiff"SP

TOP SEER ET/.'-P'rt¥J~ -pursuant to the FISC Telephone Records

~1-ttH.P..''~~·G FORN-
, certain telecommunication companies

2 provide the NSA with bulk telephony meta data in the fonn of call detail records derived from

3 information kept by those companies in the ordinary course ofbusiness. See V'IJ25, 27, supra.
4
51. ff&HSIHOCINF} The bulk meta data collection activities that have been
5
undertaken by the NSA since 9/ll are vital tools for protecting the United States from another
6
7 catastrophic terrorist attack. Djsclosure of these meta data activities, sources, or methods would 8 cause exceptionally grave hann to national security. It is not possible to target collection solely 9 on known terrorist telephone identifiers and effectively discover the existence, location, and
10
plans of terrorist adversaries.
II 12
13 14 15 16 17 18 19
20
21
22 23 24 25 26 27
28

Classified In Camera, Ex Parte Declaration of Deborah A. Bonanni, National S~rity Agency Carolyn Jewel. ct at. v. NallOnol Security Agency. et a/. (No. 08-cv-4873- V RW)
TOP SECRET/ffSPI/SJ ~ORCON/NOFORN

3 to keep track of such operatives is through meta data collection and analysis.
4

5
t'fSttSfi Technical Details of Analytic Capabilities
6

7

52. ffSHSIHOC/NfJ In particular, the bulk collection of Internet and telephony

8

9

10

ll
Contact-chaining allows the NSA to identify telephone numbers and email addresses
12

13 that have been in contact with kno

and addresses; in tum, those

14 contacts can be targeted for immediate query and analysis as
15 and addresses are identified. When the NSA performs a contact-chaining query on a terrorist-
16
associated telephone identifier
17

18

19

20

21

22

23

25 26 27
2R

Classified In Camera. £.x Par~ Occlaration of Deborah A. Bonanni, National Security Agency

C<1rolyt1 Jewel. e1 ol. v. NaJional Security Agency. et aL (No. 08

-VRW)

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

18

19

20

21

22

23

24

25

55. ff'Sf~Because it is impossible to detennine in advance

26 which particular piece of meta data will turn out to identify a terrorist, collecting meta data in

27
bulk is vital for the success of contact-chaining

NSA analysts know that t

28

terrorists' telephone calls are located somewhere in the billions of data bits; what they cannot

Classified In Carrn:ra. £x Porte Decl3.01tion of Deborah A. Bonanni, National Securily Agency

3

Carol.vn Jewel. et a l. v. NaUonal Secunry Age~~cy. eta/.

W}

know ahead of time is exactly where. The ability to accumulate meta data substantially (nr.r'P.A'~"'-~1
2 NSA 's ability to detect and identify these targets. One particular advantage ofbulk meta data
3 collection is that it provides a historical perspective on past contact activity that cannot be 4 captured in the present or prospectively. Such historical links may be vital to identifying new
5
targets, because the meta data may contain links that are absolutely unique, pointing to potential
7 targets that otherwise would be missed.
8 9
10
II
These sources and methods enable the NSA to segregate some of that very
12
13 small amount of otherwise undetectable but highly valuable infotlllation from the overwhelm1ng 14 amount of other infonnation that has no intelligence value whatsoever-in colloquial tenns, to 15 find at least some of the needles hidden in the haystack. If employed on a sufficient volume of
16
\7
18 19 20 21
22
56. ffS//-81/INF) The foregoing discussion is not hypothetical. ~noted previously,
23
24 since inception of the first FrSC Telephone Business Records Order, NSA has provided 275 25 reports to the FBI. These reports have provided a total of 2,549 telephone identifiers as being in 26 contact w1th identifiers associated with
27 28

Classified In Camera. £x Pane Declt11111ion of Deborah A. Bonanni. National Security Agency

3

Carolyn Jewel. et al. v. Nauonal Security Agency. et a/.

W)

TOP SECRETbTSf'HSI -

'/ORCON /N O f O R N -

2

)

4
57. (TS#Sli/OC.tNFt Accordingly, adjudication of plaintiffs' allegations concerning

5
the collection of non-content meta data and records about communication transactions would ris
b

7 or require disclosure of critical NSA sources and methods for

co ntacts of

8 terrorist communications as well as the existence of current NSA activities under FISC Orders.

9 Despite media speculation about these activities, official confirmation and disclosure of the

10
NSA 's bulk collection and targeted analysis of telephony meta data would confum to aU of our

II

foreign adversaries
12

existence of these critical intelligence

13 capabilities and thereby severely undermine NSA 's ability to gather infonnation concerning

14 terrorist connections and cause exceptional harm to oational security.

15

2. (TS.l/SIJ/OCJNF) Information Concerning Current FISA Authorized

16

Acdvities and Specific FISC Orden.

17

58. (TSIJTSPt/SIIIOC/INF) I am also supporting the DNI's state secrets privilege

18 assertion, and asserting NSA's statutory privilege, over infonnation concerning the various
19
orders of the Foreign intelligence Surveillance Court mentioned throughout this declaration that
20
authorize NSA intelligence collection activities, as well as NSA surveillance activities conducted
21

22 pursuant to the Protect America Act ("PAA'') and current activities authorized by the FISA

23 Amendments Act of 2008. As noted herein, the three NSA intelligence activities initiated after
24
the September 11 attacks to detect and prevent a further al Qaeda attack-(i) content collection
2S
of targeted al Qaeda and associated terrorist-related communications under what later was called
26
27 the TSP; (ii) internet meta data bulk collection; and (iii) telephony meta data bulk collection-
28 have been subj ect to various orders of the FISC (as well as FISA statutory authority) and are no

Classtf•cd Jn Cam~ro. Ex Porte Declaration ofDeborah A. Bonanni, National Security Agency

Carolyn Jewel. ~~ a/. v. NotiOIUJ/ Security Agency. et a/. (No.

W)

TOP SECRC:F!!T-sPHS~BROON.£NefeR-N-
longer being conducted under presidential authorization. The bulk collection of non-content

2 transactional data for internet communications was first authorized by the FISC in the July 2004

3 FISC Pen Register Order, and the bulk collection of non-content telephony meta data was first
4 authorized by the FISC in May 2006. The existence and operational details of these orders, and
5
of subsequent FISC orders reauthorizing these activities, remain highly classified and disclosure
6
7 of this informatjon would cause exceptional hann to national security.25 In addition, while the

8 Govenunent has acknowledged tbe general existence of the January 10, 2007 FISC Orders

9 authorizing electronic survelllance similar to that undertaken i.n the TSP, the content of those
10
orders, and facts concerning the NSA sources and methods they authorize, cannot be disclosed
II
without likewise causing exceptional harm to national security. Subsequent content surveillance
12
13 sources and methods utilized by the NSA under the PAA and, currently, under the FISA

14 Amendments Act of2008 likewise cannot be disclosed. I summarize below the proceedings that

15 have occurred under authority of the FISA or the FISC.

16
59. fFSHSIJIOCf!NP) (a) Internet Meta Data: Pursuan t to the FISC Pen Register
17
Order, which has been reauthorized approximately every 90 days after it was first issued, NSA is
18

l9 authorized to collect in bulk

meta data associated with

20

21

22

23

24

2s ~ For this reason, the FISC Telephone Business Records Order and

25 FISC Pen Register Orders prohibit any person from disclosing to any other person that the NSA

has sought or obtained the telephony meta data, other than to (a) those persons to whom 26 disclosure is necessary to comply with the Order; (b) an attorney to obtain legal advice or

27 assistance with respect to the production of meta data in response to the Order; or (c) other persons as permitted by the Director of the FBl or the Director's designee. The FISC Orders

28 further provide that any person to whom disclosure is made pursuant to (a), (b), or (c) shall be

subject to the nondisclosure requirements applicable to a person to whom the Order is directed in

the same manner as such person.

Classifoed Jn Comcra. Ex Partl! Declaration of Deborah A. Bonanni, National Security Agency

4

Carolyn Jewel, eta/. v. Nat1ona/ Security Agency. eta/. (No.

RW)

2

3

4

5
The NSA is authorized to query the archived
6
7 meta data collected pursuant to the FISC Pen Register Order using email addresses for which
8 there were facts giving rise to a reasonable, articulable suspicion that the email

9 address was associated wi

10
Order was most recently reauthorized on -
II
providers through
12

2009, and requires continued assistance by

13

60. (TSHSINOCNNF) (b) Telephony Meta Data : Beginrtiog in May 2006, the NSA 's

14 bulk collection of telephony meta data, previously subject to presjdential authorization, was

15 authorized by the FISC Telephone Business Records Order. Like the FISC Pen Register Order,
16
the FISC Telephone Business Records Order was reauthorized approximately every 90 days.
17
Based on the finding that reasonable grounds existed that the production was relevant to efforts
18

19 to protect against international terrorism, the Order required

to

20 produce to the NSA ..call detail records" or "telephony metadata" pursuant to 50 U.S.C. §
21 186l[c] (authorizing the production ofbusiness records for, inter alia, an investigation to protect
22
against international terrorism). Telephony meta data was compiled from call detail data
2)
24 maintained by the providers in the ordinary course of business that reflected non-content

25 infonnation such as the date, time, and duration of telephone calls, as well as the phone numbers

26 used to place and receive the calls. The NSA was authorized by the FISC to query the archived
27
telephony meta data solely with identified telephone numbers for which there were facts giving
28

Classified In Com era. £.t Parle Declaration of Deborah A. Booanrti, National Security Agency

41

Carolyn Jewel, et al. v. NatiOnal Securicy A.gency. el a/.

RW)

TOP 3ECRE'ffff~:ONINOf0R~
rise to a reasonable, articulable suspicion that the number was associated with

2

a "RAS" determinati on). The FISC Telephone Business

3 Records Order was most recently reauthorized on March 2, 2009, but subject to new specific
4 limitations, which l summarize next.
s
61. (TSIISIHOCHNF) As noted above (note 11 supra), on January 15, 2009, the
6
7 Department of Juslice ("DOJ") submitted a compliance incident report related to the Business

8 Records Order to the FISC, based on infonnation provided to DOJ by the NSA, which indicated

9 that the NSA 's prior reports to the FISC concerning implementation of the FISC Telephone
10
Business Records Order had not accuratel y reported the eJCtent to which NSA had been querying
II
the telephony meta data acquired from carriers. In sum, this compliance incident related to a
12
13 process whereby currently tasked telephony selectors (i.e. phone numbers) reasonably believed

14 to be associated with authorized counter terrorism foreign intelligence targets associated wi

15

Executive Order 12333 were reviewed against

16
the incoming telephony metadata to detennine if that number had been in contact with a number
17

in the United States. This process occurred prior to a formal determination by NSA that
18

19 reasonable articulable suspicion existed that the selector was associated with

20

was not consistent with NSA 's prior descriptions of the

21 process for querying telephony meta data.
22
62. ff-Sf/81-i/OC//NF) By Order dated March 2, 2009 , the FISC has directed that the
23
24 NSA may continue to acquire cal l detail records of telephony meta data in accordance with the

25 FISC Telephone Business Record Orders, but is prohibited from accessing data acquired eJCcept

26 in a limited manner. In particular, the Government may request through a motion that the FISC
27
authorize querying of the telephony meta data for purposes of obtaining foreign intelligence on a
'28
case-by-case basis (unless otherwise necessary to protect against imminent threat to human life,

Classified In Camera, £x Pane Dedaration of Deborah A. Bonanni, National Security Agency

Carolyn Jewel. el a/. v. National Securify Agency. e1 a/.

S73· V RW)

subject to report to the FISC the next business ay). In addition, the FISC imposed other

2 obligations on the Government, including to report on its ongoing review of the matter and to fit 3 affidavits de.<;cribing the continuing value of the telephony meta data collection to the national
4
security of the United States and to certify that the infonnation sought is relevant to an

authorized investigation.
6

7

63.

on this and other compliance issues to ensure that this vital intelligence too) works appropriately

9 and effectively. For purposes of this litigation, and the privilege assertions now made by the
10
DNI and by the NSA, the intelligence sources and methods described herein remain highly
11

12

13

14 compromise vital NSA sources and methods and result in exceptionally grave harm to national
15 security.
16
64. (FS/ffSPHSIHOCHNF) (c) Content Collection: On January 10,2007, the FISC
17
I& issued orders authorizing the Government to conduct certain electronic surveillance that had
19 been occurring under the TSP. Those Orders

20

21

22

23

24

25

26

where the Government determined that there was probable

27

28
and (2) the communication is to or from a foreign country (i.e.,

CI3SSlfied In Camera, Ex Part.e Declllration of Deborah A. Bonanni, National Security Agency

4

Carolyn Jewel, ct a/. v. Nalional Security Age:;_~y,;,._e~ ~~·. ~~? ~~~)

'"fOP SECRF~RCONfN9fe.R-N

a on~end foreign communication to or from

2 surveillance that was occurring as part of the TSP became subject to the approval of the FISA 3 Court and the TSP was not reauthorized. 27
4
65. EfSNSlll0€1/NF1 The Foreign Telephone and Email Order remained in effect

until the Protect America Act (..PAA") was enacted in August 2007. Under the PAA, the FISA'
6
7 definition of"electronic surveillance" was clarified to exclude "surveillance directed at a person

reasonably believed to be located outside the United States.'' 50 U.S.C. § 1805A. The PAA

9 authorized the DNl and the Attorney General to jointly "authorize the acquisition of
10
foreign intelligence information concerning persons reasonably believed to be outside the
11
United States" for up to one year, id. § 1805B(a), and to issue directives to communications
12
13 service providers requiring them to "immediately provide the Government with all information,

14 facilities, and assistance necessary to accomplish the acquisition" of necessary intelligence

15 infom1ation, id. § 1805B(e). Such directives were ·

16

content surveillance of overseas targets unde(' the PAA

17

18

66. tfSI/SII/OCINF7 Beginning i~ 2008, expiring directives that had been

19 issued under the PAA for content surveillance of overseas targets (including surveillance of

20 speci
21 22
2l 24 25 26 27 28

overseas) were replaced by new directives for such surveillance

Classified fn Camera. f.x Pa11e Dt::clilration of Debornh A. Bonunn~ National S~urily Agency

Carolyn Je'wel, Cl al. v. Nalifm(l/ s~curlty Agency, <U al. (No.

W)

secwity.

2

69.

3 indiscriminate dragnet of the content of domestic and international communications as the
4

5

6

7

8

9

10

II

12
13 expected to cause exceptionally grave harm to national security.

14

70.

15

16

17

18

19

20

21

22

23 24

25

26

27

28

Clas_~ified In Cumera. £.x Parle Dedararion of Deborah A. Bonanni, National Security Agency

__.. _. _ Cnrolyr. l<!wcl, e1 al. v. NaliotTa/ Secunly Agency, et al. (No.~~~!']

~

TeP SECRETI/TSf'l/&1·-~0R N-

2 J
4
5 6
7
8 9
10 ll 12 13 14 15 16 17 18 19
20
21 22 23 24
25 26
27
28

ex Classi(ic:d In Camera, farce Dcclarution of Deborah A.. Bonanni, National Securil'}l Agency

Carnlyn Jc:wel, ,., al. v. Nativnal Security Agency, ~(a(..

W)

2 3
4
5 6
7
8 9 lO ll
12 13 14 IS 16 17 18 19
20
21
22 23 24 25 26 27
28

Classified In Camera, fir Parte Declaration of Deborah A. Booanni, National Security Agency

Caro/y,. Jewel, eta/. v. National Security Agency. el a/.

RW)

73.
2
3 4
5 6 7 8 9
10
"
12 13 14 LS 16 17 18 19
20
21
22
23 24 25 26
27
28

Classificcl/n Cumera. £s. f'arte Declaration ofDeborah A. Bonanni. Narional Security Agency

CArolyn Jcwd, cf a/. v. National Security (lgency. el al. (No. . .VRW)

TOP SECRF.T/tFSPI.'S I

90R CO~-

2 3
4
5 6 7 8 9 10
II 12 13 14 IS 16 17 18 19
20
21 22
23 24
25
26 27 28
Classified In Camero, Ex Pane Dcclarotion ofDeborah A. Bonanni, National Security Agency Carol.vn Jewel. e1 of v. Noz,onol Security Agency, ct a/ (No.~VRW)
TOP StCREl7ffSi¥fSi~FeRN

2 3
5 6 7 8 9 10 I I 12 13 14 IS 16 I? 18
19
20
21
22 23 24 25 26 27 28

Classified lrr Camera. Ex Parte Declaration of Deboroh A. Bonanni, National Security Agency

5

Carolyn kwttl, ftl a/. v. Nafiona{ Securuy Agency. era/. (No. 08-cv-41!73-VRW)
--=FGP--SEE'R:E1-h' l" SPHSt~N-/N OfORN-

2
4
5 6
7 8 9 10 II 12 13 14 IS 16 17 18
19 20
21
22 23 24 25 26 27 28

Classified In Camero.. Ex Parle Ooclaralion of Oeborah A. Bonanni, Na1ion111 Security Agency

5

Caro(m kwcol. ec al. 1t Natconu{ Security Agency. e1 at. (No.~RW)

ffifl-"sE€R-f7FfFf&PHS-~GONtN OF0R-N-

2 3 4 5 6 7 8 9 10 II 12 l3 14 15 16 17 18 !9 20 21
22 23 24 25 26 27 28

Class;lied ln Camera, Ex Pane ~lurotion of Ddxlrah A. Bonanni. National Security Agency

CorolynJ~~I. etal. v. NolionalSecurityAgency, et ol. (No.•

YRW)

-=tQP SECRETttTSPh'Sl-

/IORfONfNOFORN-

2 3
4
5 6 7
9
10 II 12 13 14 1.5 16 17 18
19 20 21 22 23 24 25 26 27 28
Classified In Camera. Ex Parte Declaration of Deborah A. Bonanni , Natiooal Security Agency Carolyn Jewel. et a/. v. NaJfonal Security ARency. et of. <_No.~~W)
TeP-S-F.C-RET/ffSPH~RCONfNOFORN

2

3

4

5

6

7

80.

VII. (U) Risks of AJJowing Litigation to Proceed

8 facts, and issues raised by this case, it is my judgment that sensitive state secrets are so central to

9 the subject matter of the litigation that any attempt to proceed wiU substantially risk the

10
disclosure of the privileged state secrets described above. Although plaintiffs' alleged content
II
surveillance dragnet does not occur, proving why that is
12

13

directly implicate highly classified

14 intelligence information and activities. Similarly, attempting to address plaintiffs' allegations
15 with respect to the bulk collection of non-content information and records containing
16
transactional metn data about communications would also compromise currently operative NSA
17
sources and methods that are essential to protecting national security, including for detecting and
18
19 preventing a terrorist attack.

20

21

22
my judgment, any effort to probe the outer-bounds of such classified information would pose
23

24

35 fFSfff&PflSIJ/OO'NF) In its prior classified declarations in this action, the NSA has

2S set forth specific examples ofhow the intelligence sources and methods utilized by the NSA

after the 9/1 1 attacks, including content surveillance under the TSP and pursuant to subsequent

26 FlSA authority, as well as non-content meta data collection and analysis, have led to the

27 development by the NSA of actionable intelligence and important counter-terrorism efforts. See. e.g., Classifted In Camera, Ex Parte Declaration of LTG Keith B. Alexander in Shubert, et al. v.

28 Bush, et al., (Case No. 07-cv-693) (dated May 25, 2007) at 35-43, ~ 58-61. To the extent that

such information would be relevant to any litigation in this action, however, they could not be

disclosed without revealing specific NSA intelligence infonnation, sources, and methods, and

subject to the government's privilege assertion.

Classified In Camero, £:.):Parte Declaration of Deborah A. Bonanni, National Sc:curity Agency

Carolyn Jewel, e1 a/. v NaJ/onal Securiry Agency. eta/.

RW)

TOP SECRFf/,' :~~H· inherent and significant risks of the disclosure of that information, including critically sensitive

2 information about NSA sources, methods, operations,

Indeed, any

3 effort merely to allude to those facts in a non-classified fashion could be revealing of classified

4
details that should not be disclosed . Even seemingly rn.lnor or innocuous facts, in the context of
5
this case or other non-classified infonnation, can tend to reveal, particularly to sophisticated
6
7 foreign adversaries, a much bigger picture of U.S. intelligence gathering sources and methods.

8

81. fFSHSih'NF1 The United States has an overwhelming interest in detecting and

9 thwarting further mass casualty attacks by al Qaeda. The United States has already suffered one
10
attack that killed thousands, disrupted the Nation's financial center for days, and successfully
t I
struck at the command and control center for the Nation's military. AI Qaeda continues to
12
13 possess the ability and clear, stated intent to carry out a massive attack in the United States that

14 could result in a significant loss of life, as well as have a devastating impact on the U.S.

15 economy . According to the most recent intelligence analysis, attacking the U.S. Homeland
16
remains one of al Qaeda's top operational priorit ies, see Classified In Camera Ex Parte
17
Declaration of Admiral Dennis C. Blair, Director ofNational Intelligence, and a1 Qaeda will
18
19 keep trying for high-impact attacks as long as its central couunand structure is functioning and

20 affiliated groups are capable of furthering its intere.'>ts.

21

82. fFSHSI/fNF:) AI Qaeda seeks to use our own communications infrastructure

22
against us as they secretly attempt to infiltrate agents into the United States, waiting to attack at a
23

24 time of their choosing. One of the greatest challenges the United States confronts in the ongoing

25 effort to prevent another catastrophic terrorist attack against the Homeland is the critical need to

26 gather intelligence quickly and effectively. Time is of the essence in preventing terrorist attacks,
27
and the government faces sigJJ ificant obstacles in finding and tracking agents of al Qaeda as they
28
manipulate modem technology in an attempt to communicate wh.ile remaining undetected. The

Classified in Camero, Ex Parte i)Qclaration of Deborah A. Bonanni, National Security Agency

.s

Coroly11 Jewot. el ol. v. Nalionnl Sec.,·ity Agency, ct a!.. (No.~RW)

'ffiP SECR£i-fA:&p~-GRGONINOFO RN

1'0f' SECJtE17'tf3 Ptt31--

'tORCONfNOFORN

NSA sources, methods, and activities described herein are vital tools in this effort.

2

VUI. (U) Conclusion

3

83. (U) ln sum, I support the DNl's assertion of the state secrets privilege and

4
statutory privilege to prevent the disclosure of the jnformation described herein and detailed
5
herein. I aJso assert a statutory privilege under Section 6 of the National Security Act with
6
7 respect to the information described herein which concerns the functions of the NSA. Moreover,

because proceedings in thi s case risk disclosure of privileged and classified intelli gence-related

9 information, 1respectfully request that the Court not only protect that information from

10
disclosure but also dismiss this case to prevent exceptional hann to the national security of the
II
United Scates.
12

13

J declare under penalty ofperjury that the foregoing is true and correct.

~ )4 DATE :3~J_M9

IS

DEBORAH A. BONANNI

16

Chief of Staff

National Security Agency

17

18

19

20

21

22

23

24

25

26

27

28

Classif1ed In Camera, f.x Parte Declaration ofDebomh A. Bonanni, National Security Agency

5

Carolyn Jewel. et at. v. National Security Agency. eta/. (No.

 
 .tl - ItsF <f CI(J I 'I il

tJttC 0 , C <OI 01{ i!

S r GART F. DELERY
Acting Assistant Allomey General JOSEPH 1-1. HUNT 3 Director. Federal Programs Branch VfNCE\J I \1. GA RVEY
Deputy Branch Director
5 A.NTHCV\ Y J. COPPOUNO Speci:.~ l Litigation Counsel
6 MARCIA BERMAN Senior Irial Counsel
7 U.S. Department of Justice Civil Division. Federal Programs Branch 20 Massachusetts :\\~nue. :--JW
9 Washin!;!ton. D.C. ~O(J() l
Phone: (202 ) 5 1 4-~782/fax : (:202) 616-8460 10 Auornc>ys /or !he Unil~tcl S1t11n and Gontmmem II Defenclan/.1' Sued in their q[!icia/ Capocilies

12

UNITED STATES DISTRJCT COURT

NORTHERN DISTRICT OF CALIFORNIA

IJ

SAN FRANCISCO DIVISION

l.l
CAROLYN JEWEL. era/.
15

No. 08-cv-4873-JSW

16 v.

Plaintiffs.

C LASSI FIED DECLARATION OF
FRANCES J. FLEISCH,

17

NATIONAL SECUlUTY AGENCY

'\.\TI0:--..\1. SECUtiTY AGL:\"CY c l CJ.!.
IS

> EX PARTE, IN CAMERA

Defendants.

) SUBMISSION

)

:w

) Date: November2.2012

) Time: 9:00 a.m.

21

) Cour1room ll . I ()111 Floor

)
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ __ ) Judge J-::ffrey S. White

25 11

{ l,l,,IJkJ /u ( •lmt•ra Lt I'<Mt D..'.\:l.lf'.tiiOO o l f ranee' I l lc•~h '<~IIUII.JI ccunl~ \gene~ '\\\ I

.:!
I.
' J[.

(li) lmrodUl:t il.ln (ll) Summary

5 Ill. () IV.
7
8
()
10
II
12 IJ 1-l 15 16 17 18 19 211 2 I 22 23
\'.
~-~
25 VI.
211
27
2~

(U) Classi fication of Declaration

(U) Background Information

A. ( U) The l\::ltional Security /\gency

B. (U) Septemba II. 2001 and the al Qaeda Threat

c.

('fSfflSf//§11/8€/Nf) Pn.:-;iJ~ntially-Authorized NSA Acti,·itics

After 9/ll

I. (TS/ITSPNSIN8E:ilF) Ba,kcl !- Telephony and Emai l Content Collection

2. fFS!:'f6P/:'51:'/8CHIF) Busker 2 - Bulk Telephony Meta Data
Collection

3. (TShifSP:':'SI:\'Q~lF) Bosker 3 - Bulk Internet Meta Data Collection

4.

D. ff8NSIH8C'!'lf) Current NSA Activitie:-; . ransitioned from Presidential Authority

l. (TIJH81X8CP.'IF) Collection of Communication Contem

2.

t'f'8;¥81h'8€/¥J~ Colkction o f Bulk Telephony Meta data

(Business Records)

"'..).

fFSI/ISI//8CP.W, Collection of Bulk Internet Meta data

(ll) lnlonnation Subj~t:t to DNI and :'\SA Privikg~ Assertions

(U) Harm of Discl osure of Pri vi leged Information

A. (U) Tnformation Concerning Whether the Plaintills Have Been Subject to the Alleged NSA Activities

I.

2.

Paue
4
5
12 14 14 16
~()
21
25
26
27
28
28
34
35 38 40 40
40 42

u,,,,,,kd ,, ( <lnt.·r,r L' J>artr lkd.IC.tll\10 \lt'Frun'.:' I J.lcl'"" 'J.IIunaJ (\~\:Uril~ \g~n..~

( 'um~\ 11 J.-... I .t ,,( ' \tJI/1111,11 \.-., 1/f"'l\ lg.-n~, t'l 1t/ 1' " OS·<.' -187J-J' \\ I

I 01 il CIG T . 131 \I -

ORt O < <OI 61< c

l UP ~EfR:['T.: T:sP.'/SI -

h'ORCOt<ftc!OI 'ORH

3.

(TSI'/SIHOCR'~P) Halm of Disclosing Whether Piainti ffs

43

2

were Subject to NSA Activities

3

B. (lf) lnfom1a tion Related to NSA Adivities, Sources. or Methods

45

fmplicated by Plaintiffs· Allegations of a Cotnmunications ..Dragnet'"
4

j

I. (U) Information Concerning Plaintiffs' Content Surveillance

45

Allegat ions

6

7

(a) (U) Information Related to the Terrorist Surveillance

47

Program

8

(b) (TSI/6 h¥8C~Jf) lnformalion Related to Content

52

9

Surveillance Under Other Authority

10

2. (U) Plaimiffs· Allegations Concerning the Collection of

54

II

Communication Records

12

3.

(TS~/S I/?9CR'Jf) Information Concemi og Current PJSA

60

13

Authorized Activities and Specific FISC Orders

14

4. (U) lnfonnatio n Conceming Plaintiffs' Allegations that

Telecommunicat ions Carriers Provided Assistance to NSA

61

15

16

(a)

65

17
66
18

19
68
20

21

7l

22

23

(e)

2.1

74

25 VII. (U) Risks of Allowing Litigation to Proceed

78

:!6 VIII. (U) Conclusion

80

27

28

Cla-;,ifi.:d In Cwm:ra, J:;.x f>arte Dcdanuion ofl·ranc~:~ J. Fh:i~d1. Natinnal s~curit~ Ag l·no.:~

( ·arolm Jl!ud. 111 a/. I' .\mional Securin· ..lge11cT. eta/. (No. 08-o.:v-4873-JSW)

3

·

1'0P SEC~~'TY;.T~r ".si•-

//OR:COHmOFORi4

H JI 11 t ~I. I I q .sl -

OI~E O,CJI<OI 01< '

CLASSIFIED DECLARATION OF FRANCES J. FLEISCH

'ATIONAL SECURJTV AGENCY

(lJ) l. Franc~~ J. Fleisch, do hereby tate and declare as fo llows:

l.

(U) Introduction

I. (U) I am the Executive Director lor the National Security Agenr.:y (NSA). an
intellig~n~:e agency \.Vit11in the Department or D~::li:ns~. I have held this pi)Sitiun sin~~ June 2010.
7
As the Ex~:cutive Director. I serve as an :tdjunct to !he Deputy Director for all NSA maners.
8
9 Under our internal rcgui:.Jtions. and in the ;Jbscn..:e of the Director and Deputy DirL'.:tor. I am
IO responsihk f(,r directing the ~S ,\. overseeing the operations undcnaken to c~:~rry out its mission
II and. by spel:i fie charge or the President and the Director of National Intelligence. protecting 1\ S,
12
activities and intelligence sources and methods. I have bt:en designated an original TOP SECRE·-
IJ
classification authority under t:.xecutive Order No. 13526. 75 Fed. Reg. 707 (2009) and
14
15 Depanment of Defense Directi\ ~ No. 5~00. 1-R. lnformatitlll and Security Pr11gram Regulation.
lo 32 C.F.R. § 159a.12 (2000).
17
( U) The purpose of th.is declaration is to support a.n assenion of the military and
IX
19 state sec rets privilege (hereatier. "slate secrets privifege") by the Director of Nationallntelligenc·
:w ("DNf..) as the head of the Intelligence Community, as well as the ONI's asserti on of a statutory
21
privilege under the National Security Act. to protect information related to NSA ac..:ti\ iti.:s
., described h~·rein below. Ul.'ltl·f~rl Keith B. Ah:xander. the Oircl:tor of the Nation;rl Sccurit)
- ->
Agency. has b~en sued in his official and individuaJ capacity in the above captioned litigation an

:?5 has rt:~o:usd himself from the decision on ''hdhcr to assert privilege in his oDi..:ial~:apacity. As
26 the E:-;t:·cutive Director. and by specific delegation ofthe Director, I am authori-zed to review the
27
materials associated with this litigation. prep(lre whatever declarations I determine are

approprialc. and tktermine -v. hcth~r to a-.~l..'rt the NS,C\- s Sl\llli!Or) pri\ ilege. rhrough this

st - ( lu.,,tlii:J In ( rmwrr1. £>:Purl<' lkd,mllino of I r.mc<!:o J r kt....:h. '<Jtlllnal ".:.:unt~ \gt.:n~

( aro/111 Jt u..J ,r ctf 1 \ tJtlmml <it•.ttrl/1 IXt'lln r!/ tJ/ t'\<' 08-•·,--1&73-J\\\ 1

101 tl.ntET T3T

onco·., ·.;urnw .

I Of 3[('ftE'f/, "!"~l'l i~ I --N6 ~COJM<O FO I': l4
declaration, I hereby invoke and assert the NSA·s statutory privilege set forth in Section 6 of the

2 National Security Agency Act of I959, Public Law No. 86-36 (codified as a note to 50 U.S.C. §

J 402) (''NSA Act"), to protect the information related to NSA activities described here in below.

4 The statements made herein are based on my personal knowledge of NSA activities and
5
operations. and on information made ava ilable to me as the Executi ve Director of the NSA. 1
6
u. (U) Summary
7

8

3.

(U) In the course of my official duties, f have been advised of the above-captione

9
.Jewel. Shubert. and In re NSA Telecommunications Record~ Litigufion, and I have reviewed the
10

I I allegations raised in this litigation, including the Complaint filed in the Jewel action on Septemb

12 18, 2008, and the Second Amended Complaint ("SAC"') filed in the above-re ferenced Shuberl

I J action on May 8. 20 I2. 2 In sum. plaintiffs allege that. after the 9/ I I anacks. the NSA received
14
presidential author1zation to engage in ··dragnet"' communicatiot1s surveillance in concen with
15
major telecommunications companies. See. e.g., Jewel Com pl. ~~ 2-3 ; Shubert SAC ~~ 1-7.
16
17 Plaint i!Ts allege that the presjdenti all y-aut horized activities at issue in this litigation went beyond

18 the ··Terrorist Surveillance Program" (..TSP"), which was publicly acknowledged by the Preside

20
1 (U) Thjs declaration addresses and asserts privilege with respect to allegations raised in

21 the above-captioned .Jewel action as well as a separate action---Shubert v. Obama (07~cv-00693 ).

22

In addition, the hann to natjona l security that would result from the disclosure ofNSA sow-ces and methods described herein is applicable to similar allegations conceming NSA activities

23 raised in other lawsuits in In re NSA Telecommunications Records Litigation (M :06-cv- 179 1)

24

2 fifS:'ISI/:'8€/iplf) Starting in 2006. the Director of National Intelligence, supported by

25 declarations from the NSA like th is one, has asserted the state secrets privilege and related statutory privileges concemi ng NSA intelligence sources and methods in several other cases 1hat
fls 26 have been before this court. including in a 2006 lawsuit brought by the: plainti in Jewel against

AT&T (Hepting v. AT& 7) (06~cv-00672), as well as in 2007 with respect to lawsuits brought 27 against Verizon Communiculions, and aga in in 1007 and 2009 in the Shuberl action. and also in

2S 2009 in the Jewel action. Thjs declaration concerns the same sources and methods that were at issue in those prior declarations. and sets torth substantially the same facts and hanns lO national

securi ty previously described to the court. In light of the passage of time, this submission

updates. expands upon, and supplants prior privilege assertions in this litigation.

Clas;; ilied In Cunwm, /·:y !'•.me DC'daration (If !-ranees .1. Fki~..-h. '\atio11al SLTurity Agi!IK~

Corolm J ell"d e l of. ,.. Nm wnul Securitv Agl!ncr. eta/ tNI.l. O~·cv-487J·JSW)

.

TOP 8ECRtf/>T~ I'dM I -NORCOtVNOFOf~H

':t - 'Iflf' SLfR£1 f'T

8 ftCu :, ' , ~f@ R::;

in Dc~~rnb40!r 2005 a.nd '' as limited to the inter~epllon o f specilic inlernatinnal comrnunit:atinn-.

2 involving P(''""ons rc<~sonahly believed to he associateLI ,,-ith al Qaeda and affiliated terrorist 3 organizations. Reither, plaintiffs allege thfit other intelligence activities were also authorized by -1 the President after 9/l I. and that. with thL· ~J ss i s tant:t: of telecommunication compnnies. i.ncluding

AT&'l and Vt:rizon. the NSA has indi scrimi nately intercepted the t.:ontent and obtained the
6
communjcations records of millions of ordinary AmLTit:<ms as part ,,fan alk·:;~:d pro..:sidl'Tlli;JJiy-
7
authorized ··Program" after 9/11. See .leH'el Compl. c:~ 2-13; 39-97; Shuberf SAC ~f 1-7: 57-58:

9 60-91 .
]I)
4. (U) I cannot di sdose on the public record the specilic nature ofNSA information
I I
or acti vities implicated by the plaintiffs· alkgations..\s described fUJ1her belo""· the disclosure
12
of information related to the NSA's activities. source~. and methods implicated by the plaintiffs'

I~ allegations reasonably could be expected to cause exceptionally grave damage to the national
15 securiry of the United States. In additio n. it is my judgment that sensitive state secrets are so
16
central to t111..· "uhkct maner of the liti.:;atinn tbat any attempt to pm~t:l.'d in the case risks

disclosure of the cl<:~~sitied privileged national security inlonnation described herein and
18
II.) exceptionally grave damage to the oational security of the United States. 5.
21 disclosure of infonnation cun~.:~ming S~\ ('ral highly dassified and critically imponant NSA

intdligence <ll·ti\ itics. smn·t:cs. and methods that commenced under presidential authorization

afier the 91 II terrorist anacks. bur which were larer transitioned to the authority of the Foro..:ii:!n
2-1
lnrclligence SurveiJiance Act ("FISA''). including ongoing activities conducted under orders 26 approved by the Foreign Intelligence Survt:illance Court ("F1SC'):1 As described in more detail
27

As descrihed further helow. p11r.suan1 10 the FISA and

spcc ilic orders of the FISC. the intelligence :1di\ iti~o: thaLf\SA ...:arri..:s out under the authority of

th~.: FISA and aul110rizatinn of the FISC are classitied. NSA"s FI SC-appro,~d ~1ctivities that are

at issue here are classified at the TOP SEC RET//C'OMINT leve l a~ their unauthori zed disclosure

<.'l.t.~~ili.:J /11 lltml!r<t. ex /'m·te Lk daration niTranccs J. F lct~ch . Na~ inn;d Security ,\~·l·u.:~

( 'rll'oll 11 .ll'll'el I!I a/ ,., .\'wuma[ .\ ('t/11'/11', li(<?IIC'I . "''a! (No. 08-C\ --'X7l-J:-.\\· 1

fO P !iii TREr -T S: P 'l:t -

~R0~7!/;.'tJf()Jl : J

below, starting in October 2001, then-Presiden

tssued a presidential authorization that

1 directed the NSA to undet1ake three discrete activities after the 9/J I atiacks that were designed
J to enhance NSA ·s capability to detect and prevent further attacks. (Collectively these activities

were designated by the NSA code-name ·<STELLARWfND''.)

j

A. ('f8hif8P:¥8JN8 C/l'lf) Baskel I - Content Collection: The first presidentially-

6

authorized activity after the 9/11 attacks was the collection of the conient" of

certain intemational communications (telephone and Internet) reasonably believed
7
to involve a member of a terrorist organization. From the outset this activity was

limited by the NSA to "one-end international.. communications- that is. to or

from the United States. This content collection activity was directed at groups

engaged in international terrotism and. start ing March 2004, was limited to

10

intemational communications reasonably believed to involve an individual

associated speciftca!ly withal Qaeda or its affiliated organizations. When

II

public ly acknowledged i.n Decem ber 2005, this content collection activity was

referred to as the ..Terrorist Surveillance Program.'' The TSP authorization ended

12

in February 2007 and was initially replaced by orders of the FISC, which were

13

later supplanted by Congressional amendments to the FISA that authorized the

NSA to collect certain communications of non-U.S. persons located overseas.

I-I

B.

~~~o.; Basket 2 - Telephonv Meta Data: The second

15

activity undertaken the NSA after the 9/l l attacks. pursuant to the same

16

presidential authorization, entailed the bulk collection of telephony "meta data''--

which is information derived from call detail records that reflects, but is not

17

limited to, the date, time. and duration of telephone calls, as well as the phone

numbers used to place and recei ve the calls. As described below, this activity was

18

transitioned to an order of the FISC starting in May 2006 and. whjle subject to

ll)

subsequent modification by the FISC. remains in place today.

20

c.

~~M~ Basket 3 - fnlernetlvfela Data: The third

:!I

acttv1ty

NSA after the 9/ 11 attacks. again pursuant to the same

presidential authorization, was the bulk collection of lmemet meta data.. which is

22

header/router/addressing infom1ation. such as the ·'to.'' ..from," "cc,.. and ..bee''

lines on an email. as opposed to the content or subject Jines of a swndard email.

23

As descri bed below, this activity was transitioned to an order of the FlSC starting

in July 2004 until December 2011 , when NSA decided not to seek reauthorization of this ac tivity. 5

2.5

26 could reasonably be expected to cause exceptionally grave damage to the nalional security of the United States.
27
-1 (TS//SJ;;eerNP) The tenn ..content'' is used herein to refer to the substance, meaning~ or purport of a communication. as. defined in 18 U.S.C. § 251 0(8 ). as opposed to the type of addressing or routing infonnation referred throughout this declaration as ..meta data."

5 ("fS//81//8 C/'Pl F)

ChJssilicd /11 Cama,l. !): /'(lr/e De~: on o ranees

••IHt

g~o·n~:~

Caro~vn Je wel.,., ul. 1·. .\'ammo! ,\l'('l/l'in· :·lg(·m:l', t!l a/. !No. 08-cv-<1873-JSW)
fe)f ~ECftET, .' l RP,'/Rl- -.'tOltCOl4/ fH9F0 1Hd

6.

~'f'S/J'FSPNSJ/:'0C:~JI7) Plaintiffs' allegations put at issue all three NSA activities

2
originally authorized by the President after the 9/11 attacks and later transitioned to FISA
3
authority. For example. plaintiffs in both the Jewel and ,)'huber! actions allege that the NSA was
4

5 authorized by the President to engage in a communications "dragnet'· al1er 9/il that included the

6 indiscriminate collection of the con tent or millions or telephony and Internet communications.
7 See Jewel Campi.~~ 7. 9, 73. 74. 81: Shubert SAC~~ 7, 70. 84. Th is allegat ion of a c:on1e111
8
"dragnet"' is false, however. The NSA "s collection ofthe content of communications (i.e., the
9
substance, meaning or purport of the communication) under the post 911 I presidential
10
II authorization was directed at one~end international communications in which a participant was

12 reasonably believed to be assoc iated with a group engaged in international terrorism (later
13
limited to al Qaeda and its afti liates), and was focused on specific "selectors'" (such as phone
14
numbers and [ntemet addresses ) believed to be associated with such individuals. The content
15
16 surveillance authorized therefore did not constitute the kind of "'dragnet" co llection of the

17 content of mi IIions of Americans· telephone or Internet communications that the plai nti tTs aliege

18 Indeed. as set fort h below
19
However. the operational detruls ofthe TSP and other
20
NSA content collection activities cou ld not be disc losed to address, disprove, or otherwise
21
22 litigate the plaintitTs' allegati on of a content '·dragnet" without causing exceptional harm to

23 NSA 's sources and methods of gathering intelligence---including methods currently used to

24
detect and prevent further terrorist auacks under the authority of the FJSA.

2'i

7.

fF8;';'F8 1V:'S I:':'OC:~IF) Similarly, plaintifts' allegations that the NSA has

26

27 collected certain non-conten t in lormation {i.e .. meta data) about telephone and Internet

28

l·lassilicu '''Comer, ,. I.Y Parte 01)clanuion uf !-ranees J. Fkbch. Na1ional ~ccuri :~ Agl:'nc-y

Carolm Jewel. e1 ol. v. .\'(1/t(>l·tul .'i<'cltrill' lgeiiC\', et (1/. tNo C:&-cv-4&73-J S\\ 1

.

1 Ol' !::iECR::F F/>=rSP//tll -

VORCOt4HJOfOR:N

TOP S[CR:ET/.'TSP.'.'Sl -

'.'O RCOH'l'IOrOR:!'J

communications cannot be addressed wit hout risking or requiring disclosure of hi ghl y sens itive

2 sources and methods that continue to be utilized today and causing exceptionally grave damage

3 to national security. As explained below. the bulk collection of meta data enables highl y

sophisticated analytical tools that can uncover the contac

or

.s
members or agents
6

8.
7

8 te lecommunications carriers. including AT&T (at issue in Jewel) and Verizon (at issue in

9 Shubert). and other carriers at issue in other lawsuits in In re NSA Telecommunications Record
10
Litigation. assisted the NSA in alleged intelligence activities cannot be confim1ed or denied
II
without risking exceptionally grave damage to national security. Because the NSA has not
12
IJ undertaken the alleged ''dragnet" collection of communications content, no carrier has assisted in
I-I that alleged activity.

I.S

16

17

I ll

Jl)

:10

21

2.1 24 25
2(>
27 28

Cia sitil.'d ht Camera. E..Y: fane D'--clar.uicm ofFran..:l·~ J. l'lc•:.ch. ' ationnl St'Curil~ Ag.~:n~~

Carn~m .li!lvc/. eta/. 1·• •\-utiOllal Security ..fgem:v. eta/

\\ )

2 3
5
7
9
II 12
I ..I 15 16 17 18 ll)
20
21 22 2.3
24
25 26
27
28

(' l a;;s ifi~::tl '" C r/11/(;'f'{l, r:.:s POI'/r:' Dcc laralion of f r.JIICI::$ J. Flcisd1. Notional S.:curil) Agent:~

Com(1•n Jl!ll'el, er ul. v. ,\ urirmul Sec'lll'i~l· lgency . i?1 nl. r

SW)

II

ass~ninrls. I or ~Lt ftt: l u 'l !WN~ll ~ ·:o iH'Ot</h'O I .O R ?J

below. the ON I' s slale secrets and sramtory pn v1ege

and my O\\ n statutory privilege

ass~rtion on behalfofth~ NSA, seek to protect against the disclosure of the highly classifi~d

3 intdligence sources and methods put at issue in thi s case. includin~: (I) any information that

would tend 10 confinn or deny whet.her particular individuals. including th~ named plaintiffs.

have been subject to the alleged NSA in11.:H ig~nc:e acti viti e.: ( 2 ) infonnation concerning NSA
6
- - 7 intelli gence smm.:l·:-. ~md mdhods. includin.~.. fa~o:ls dcmoll:-.lnttill:.! thai the cqmt:nt c~..lllection undt-r
th~ fSP ''a~ limi1ed to lerrori st-rdated intemati0na l ~lHn municarions. and th:lt NSA did not and

9 does not otherwise engage in plaintiffs· ulh:gcd contenl survei llance ··dragncf': (3) facts that
10
would tend to cnnfim1 or deny the other intelligence activi til..'s authorized by tJ1c President after
II
911 1 and later transitioned to the aulhori ty of the FISA - that is. existence of the NSA's bulk
12
IJ meta datn colb.:ti,lll. and any iuformalion about th os~.: a('tivitic~: and (4) the titct
14
15 particular. th~ fact that there has been public specu lation about all~:~cd NSA activities. including
16
in media reports. books. or plaintiffs· dec larations. does not diminish the need to protect
17
intelligence sources and methods from fu11her exposure. I he process of sorting out what is true,
18
19 part ly true. or ..vholl y false in public reports or in piC'Iintiffs' allegations and declarations, would
:w necessaril y risk or require disclosure of what in fact the NSA has undertaken, when. ho\v. and
21 under what authority. As set forth herein. such oflicial contirmnrion and disclosure of classified

privileged national security infonnation by the Government would remove any doubt as to

NSA·s ;tdual sour~t·s ;.1nd methods. con.fim1 to our adversaries ,.vhat channels of communication

25 Lo ;:t\ 11id. and cause exceptionally grave damage to the natinnal stl:uri ty. For these rl!asons. as set

tonh l'unher below. I request that the Court uphold the DN 1·s state secrets and statutory priv1 lege

assertions. a$ \\el l as the NSA stan.JtOl) pri vilt!g~ assertion that I now raise. and protect the
28
inli)mlatinn described in this declaration from disclosure.

li.J "'li.:d In C'wtt.Ya Lt /'mit Ikdur.uion oi l ranc~"' J Hci!-Ch '.JIIC'Il<~l <.i..:cunt~ \pen~·~

('rJro(ln.lt!lld eta/\'

- 1!!-1·J"\\ 1

II

Ill.
2

T~F ~EC ~ ET/1 l ::iP/,Jl(U) Classification of OecJaration

:/ORCOfM40FOf\:t4

12. (Sh'8111~i f) This declaration is classified TOP SECRET//TSP//S -

3 - /ORCON/NOFORN pursuant to the standards in Executive Order No. 13526. See 75 Fed.

Reg. 707 (Dec. 29, 2009). Under Executive Order No. 13526. infonnation is classified "TOP
5
SECRET.. if unauthorized disclosure of the infonnation reasonably could be expected to cause
6
exceptionally grave damage to the national security of the United Sates; "SECRET'' if
7
8 unauthorized disclosure of the infonnation reasonably could be expected to cause serious

damage to national security: and ··cONFIDENTJAL.. if unauthorized disclosure of the
10
information reasonably could be expected to cause identifiable damage to national security. At
II
the beginning of each paragraph of this declaration. the let1er or letters in parentheses
1:!
13 designate(s) the degree of classification of the information the r aragraph contains. When used
s:· 14 for this purpose, the let1ers "'U." "C." .. and "TS'" indicate rr pectivel y that the infonnation is
1.> ei ther UNCLASSIFIED. or is classified CONFIDENTIAL. SECRET. or TOP SECRET.7
16
13. (U71 P5Jt;t8) Additionall y, this declaration also contains Sensitive Compartmented
17
ln fo nnation (SCI). which is ··information that not only is classified for national security reasons
18
19 as Top Secret, Secret, or Contldential, but also is subject to special access and handling
20 requirements because it involves or derives from particularly sensitive intelligence so urces and
:!I methods.'' 28 C.F.R. § 17.18(a). Because or the exceptional sensitivity and vulnerability of such

information. these safeguards and access requirements exceed the access standards that are
23
normally required for information of the same classification level. Specifically, this declaration

25 26 27 28

fred In amera. E.'i !'art(' D~::darali(ln of

J. Fleisch. 111ic•mrl

ril~ AgciH: y

( ·11rn~'" J...-,.·el. t•t al. v. Nmional Security . l~t'll(l <' I a/ (No. 08-cv-1873-JSWl

T?5f ~EC ftC l'n l ~ I I :Jj -

NOftCOf<,,4QFOR14

TO P !1CCRE I',';SifSP//8-

NOnCO?VHOFOFUJ

references communications intelligence (COMfNT), also refe1Ted to as special intelli gence (SI),

2 which is a subcategory of SCI. COM !NT or Sl identifies SCI that was derived from exploiting
cryptographic systems or other protected sources by appl ying methods or tec hniques, or from
-1
foreign communications.
5
14.
6
related to or derived from the STELLARWIND program. a controlled access signals intelligence
7
program under Presidential authorization created in response to the auacks of9/l 1. In thi s

declaration, infonnat ion pertaining to the STELL ARWfND program is denoted with th e spec ial 10 marking ··Tsp·· and requires more restricti ve handling. 8 Despite the December 2005 public
ll
acknowledgment of the TSP, detai ls about the TSP program as well as the STELLARWIND
12
13 program in its entirety, remain bighly classified and strictl y compartmented.
14
15
16
17
18
19
20
21

~~..-. Jntormation pertaining to the STELLAR WIND
24 program can also be denoted with the speci(ll marking "STLw.·· In prior declarations and

25 briefing materials. NSA has used the "'TSP'' designarion to refer to the onion of the

rhat was blicl disci d b then-P

her 2

26

27

28

Cla~silkd InC

1011 ram:es

( ·arolyrr Jewel. C!l ul. ,.. :\atim/(// Sccuril)' .-lgell<)'. ef ol (No. 08-cv--l-87 3-J!) W)
16 1 .S IX k.F I ,, I ~r n~ -J/Ci ~C<'l M 40FO~ fq

15.

mfom1ation contained herein may not be

re vea led to any person wi1hout au!horization pursuant to Exec uti ve Order 13526. this declaration

) contains information that may not be release<.! to foreign govenunems. foreign nationals. or non-

U.S. citizens without permission of the origina10r and in accordance with DNT policy. This
5
in.fonnation is labeled "NOFORN:· The ''ORCON" designator means that the originator of the
6
infonnation controls to whom it is released.
7
s JV. (U) Background Information

I)

A. (U) The National Security Agencv

tO
16. (U) The NSA was establi shed by Presidential Directive in 1952 as a separately
II
organized agency within the Department of Defense. The NSA·s foreign intelligence mi ssion
1:!

13 includes the responsibility to collect, process, analyze. p oduce, and disseminate signals

I~ intelligence (SIGJN T) information. of which communic· ions intelligence (''COMINT') is a

15 significant subset. for (a) nationa.l foreign imelligence pl oses, (b} counterintelligence purposes,
16 and (c) the support ofmilitary operations. See Executive Order 12333, § 1.7(c). as amended. 10
17
17. fFSNSI:\'l'J f) Signals intelligence (SIGfNT) consists of three subcategories:
18
19 ( 1) communications intelligence (COMTNT): (2) electronic intelligence (EUND: and (3) foreign

20 instrumentation signals intelligence (FJS INT). Communications intelligence (COM INT) is 21 defined as ''all procedures and methods used in the interception of communications and the
22

10 (U) Executive Order 12333, reprinted as amended in 50 U.S.C § 401 note. general ly 27 describes the NSA's authority to collect toreign intelligence that is not subject to the FISA

definition of electronic surveillance, including activities undertaken abroad. Section I.7(c) of

E.O. 12333, as amended, specitically authorizes the NSA to "Collect (including through

clandestine means), process, analyze. produce, and disseminate signals intelligence infom1ation

for foreign intelligence and counterintelligence purposes to support national and departmental

missions. ''

r_r Cl<t.-~ilkd '" ( .t/1/11'/'(/, Parlt:! Dedarati<•n (If lt\UIC<.::S J. ~ ki ~r li. 1\alinnal Se.:uril> !'\f!.COC)

c,m)~V/1 Je wel. 1!1111. \'. :\'mi~J/7{// Si!c/1,.;,..,. .lgnl(l', (!( rtl. (

s"' i

J.

I Cli Ttt Kl!: r/ T~f'N~!-.':'O R CO t t/?JOrOR?J
obtain.ing of informntion from such communicarion~ by other than the intended recipients... 18

2 U.S.C. § 798. COMTNT includes information derived from the interception of foreign and 3 intemational communications, ~uch as voice. facsimile. and computer-to-computer information

conveyed via a number or mean
5
Electronic intelligence (EUNT) is technical intelligence information derived from
6
foreign non-communications electromagnetic radiations except atomic detonation or radioactive
7
sources---in essence, radar systems aftiliated with military weapons platforms (e.g., anti-ship)

9 and civilian systems (e.g., shipboard and air traffic control radars). Foreign instrumentation
10
signals intelligence (FISfNT) is derived from the intercept of foreign electromagnetic emissions
II
associated wi th the testing and operational deployment of non-U.S. aerospace, surface. and
12
13 subsurface systems.

1--1

18. (U) The NSA·s SIGfNT responsibilities include establishing and operating an

15 effective unified organization to conduct SIGINT activities set forth in Executive Order No.
16
12333, § 1.7(c)(2), as amended. In performing its SlGfNT mission, NSA has developed a
17
sophjsticated worldwide SJGINT collection network that acquires, among other things. foreign
18
I'J and international electronic communications and related information. The technological

20 infrastructure that supports the NSA·s foreign intelligence information collect.ion network has

:!I taken years to develop at a cost of billions of dollars and untold human effort. It relies on
22
sophisticated collection and processing technology.
2J
19. (lJ) T11ere are two primary reasons for gathering and analyzing foreign

25 intelligence in fom1at ion. The first. and most important. is to gai n information required to direct
26 U.S. resources as necessary to counter external threats and in support of military operati ons. The
27
second reason is to obtain information necessary to the tbrmulation of U.S. foreign policy.
28
Foreign intelligence infonnation provided by the NSA is thus relevant to a wide range of

Cl;"'ifi>;"d /11 Cmwra. Jy Parr.· De-claration of 1-iaJl\:<::< J. l'ki~<:h. Nillional Sr~:urity Agency

c.,·o(l'/1 Jewel. era/. l' .c\uiirlllal Se,·urify -l.f:C'II(l'. el ol. (

SW}

or fOf !H t MT q=p,p q1" " " ' tiREo • '10[ CJRJ ,
important issues. including militar) order ban e: l real warnings and readi ncs ·: arms

2 prolikLration: int~.:matitmaltl·rrorism: counter-inteilig~:nc":: and fon:i~n aspects of intl!mational

J narcotics traffic~ ing.

~

20. (LI) The NSA ·s ability to produce foreign intellig~.:nce information depends on its

5
alT\.'S..'> to lim:il:!n and i.ntenmtilltWI eh::~tronk com lllllnications. 1-oreign intdligcnce produced by

CQ\,1fj\; r activities is an e:-:tremely import<mt part of1he overaU toreign intelligence infonnation
7
8 avai lable to th~.: l :nited States and is o lten unobtainable hy other lllL'al\~. Public disclosure of

9 either the capability to collect speci fie communication$ or the substance of the information
10
derived from such coHection itself can easi Iy alert targets to the vulnerability of their
II
communications. Disclosure ore' en a singk c(1mmuni<.:ation hold-. the potential of r..:-n~aling
12
13 intelligence collection techniques t.hat are applied against targets around the world. Once alerted.
14 targets can frustrate COMfNT collection by using dirti.:rent or new encryption t~chniques, by

15 di~seminating disinformation. or by utiliz ing a different conununications link. Such evasion
16
techniques may inhibit acc~ss to the target' s communications and therefore deny Lhe United

State" access to infom1ation crucial 10 the dt.•lensc of the l ."nited States both at home and abroad.
18
* ll) COM fNT is provided special statutory protec1ion under 18 U.S.C. 798. which makes it a crime
20 to knowingly disclose to an unauthorized person classiticd information ..concerning the
21 communication intelligence activities of the United States or any toreign government...

B. (U) September Ill 2001 and the al Qacda Tbreal

21. (lJ) On September II, 2001. the at Qaeda terrorist network launched a set of

25 coordinated anacks along the East Coast of the United States. Four commercial jetliners. ~:ach <.:l.lrefuily sek~:ll·d to be fully loaded v.·ith fuel for a transcontinental !light. were hijacked by at

Qaeda operati' ~::~. Those operatives targeted the Nation·s tlnancial center in Ne\\ York " ·ith two

of th~ jetliners. which they deliberatdy tlew into the Twin Towers of t h~ World I rade Center.

t 'lu~,j lkd lu Cm ncru '-' Part<' DeciJmtinn ~,r l-r11111.:C~ .1. l'ki~~:h. li.Ji.ll illn.tl ~n:urit~ Ago.:n~~
Cam~111 .l.:w.-1 f!l "' ,. \ otumnl St!,·unty l gl!ll(\ c!l (1/ (N<1. 08-i:v-487 1-Js \~ )
1e-w iiLtftf r ·:rr;r ·· - t1FH?c . ::!lor cit s:

tor sl CIU 1 r tl .11-

oR:tc re ·,of< if\ ,

AI Qacda t.:~rgeted the headquartersofthc 1ation's Armed Forces. the Pentagon. ''ith the 1hird

2 j~tliner. AI Qaeda op,:rati\1..·-; \h:n:: appan.:nll) h~;nkJ l\l\\~trd W~tshinkrton. D.C. \\-ith t h~ fourlh _1 jetliner'' hen passengers struggled v.~th the hijackers and the plane crashed in Shanks,·i lle.

Pennsylvania. The inlended target of this fourth jetliner was most evidently the White House or

the Capilol. strongly suggesting that al Qa~::da's intended mission was to strike a decapitation
or blov.· to the Government Ihe United States-to kill the President. the Vice PresiJent. or
7
Memb~..·r:-. of c~111gress. The att;t\:ks ofSepll'lllh:r II resulkd in approximate!) 3.000 d~aths<} the highest :-.ingle-day dea~h loll from hosli k l~lreig_n attacks in the Nation·s his10ry. In addition.

these attack!' shur down air travel in the United States. disrupted t.hl· \"ation's fin;mcial marl~.·~:-.
II
and government operatrons. and caused billions of dollars of damage to the economy.
12
~2. (U) On September 14. 200 I. a national emergency was dec!<m:d ··by reason or the

I-I terrorist attacks at rhe World Iradt• Center. New York. New York, and the Penlagon. and t.he I ~ continuing and immediate threat of further auacks on the t lnited States." Presidential

Proclamation No. 7463.66 h.·J. Reg. 48199 (Sept. 14. 2001 ). The United Stat!:s also
J 7
imrnedia1dy began plans for a military respons~ directed al al Qaeda's training grounds and
II\
19 havens in Afghan.istan. On September 14, 200 I, both Houses of Congress p~ss(d a Joint
Resolu1ion authorizing the President of Ihe United States "to use all necessary and appropriate
21 force against those nations. orgunizations. 1lr persons he dct~rmines planned. authori zed.
22
commitll'd. ~)raided the krrorist auucks" of September II. Authori1ation for U e of Militar~

Force. Pub. L. No. 107-40 ~ 21(a)_ 115 Stat. 224.224 (Sepl. 18. 2001) ("Cong. Auth.").

Congress also expressly acknowledged thai lhe auacks rendcn.:d it "n".:~ssar~ and appropric:~te..

for the United States to exercise its righ1 " to protect United Slates citizens both at home and 27 abroad.'' and acknowledg~d in par1icula.r that ··the President has aurhority under the Constitulion

to take action to deter aud prevent ~Jets of intemalivnal terrorism against the l'nill.:d States... lei.

<<''-' Cla.."•li\.'\1 llr ( cmr.'m E..t Pari~ lkd.tr.ui,,n ul l-rdlll'~:- J I ki....:h_ "'ati,,nal ~~"Cunl) \g.f!fK·~

( 'ar<l~\ •r ln~t•/ t' / ttl 1 \mhmnl ~·c urlfl 1,1!.-ll<"l , ., tJ!

fJl!-t:\---tR1l-J'- \\ 1

1 <If' .if t ftl T P 'IF

Oltc Oh ,c: <Jf'Of\. <

pmbi.JI

23. (U) As a resuh of the unprecedented attacks of September l I. 200 I . the United

3 States found itselfinunediately propelled into a conflict withal Qaeda and its associated forc es. a

set of groups that possesses the evolving capabi lity and intention of inHicting further attacks on
5
the United States. That conflict is continuing today. at home as well as abroad. Moreover. the
conflict against al Qaeda and its allies is a very different kind ofcontlict. against a very ditTerent
7
enemy. than any other contlict or enemy the Nation has previously faced. AI Qaeda and its

affiliates operate not as a traditional nation-state but as a diiTuse, decentralized network of
IU
individuals, ce ll s. and loosely associated, often disparate groups. that act someti mes in concert.
II
sometimes independently. and sometimes in the United States. but always in secret- and their
12
13 mission is to destroy lives and to disntpt a way of life th rough terrorist acts. AI Qaeda works in

14 the shadows: secrecy is essential to al Qaeda·s success in plotting and executing its tenorist

15 attacks.
16
24. ('f8N81A'rtfij The 9/ t I attacks posed signi fieant challenges for the NSA ·s signals
17
intelligence mission because ol
18

19

20

21

Global telecommunications networks, especially the Internet, have

22

23

11 (U) Following the 9/ 1l attacks. the United States also immediately began plans for a

military response directed at al Qaeda's training grounds and havens in Afghanistan. A Military
24 Order was issued stating that the attacks of September 1l "created a state of armed corrll ict.'' see

25 Military Order by the President§ I(a). 66 Fed. Reg. 57833. 57833 (Nov. 13. 200\ ). and that al Qaeda terrorists ··possess both the capability and the intention to undertake further teiTOrist

26 attacks against the Uniled States that if not detected and prevented, wi II cause mass deaths. mass

i.njuries, and massive destruction of property. and may place at ri sk the continuity of the 27 operations or the Uni ted States Govemment.'' and concluding that ··an ex traordinary emergency

28 exists for national defense purposes." Mi litary Order.§ I (c). (g). 66 Fed. Reg. at 57833-34. Indeed, shortly after the attacks, NATO took the unprel:edented step of invoking article 5 of the

North At lant ic Treaty. which prov ides that an ··arn1ed attack against one or more of [the parties]

shall be considered an attack against them all." North Atlantic Treaty, Apr. 4. 1949. rui. 5, 63

Stat. 224 1. 2244, 34 U.N.T.S. 243, 246.

Cla~si fi\:d /11 Cwllt'ra. /::..\ Parle D.:cl;;r<tlion nfl,.r;m,·,·s J. Fk'lst·h. National Securit~· Agenc~

Coru~l'/1 Jewel. l?f ol. v. 1\€1timwl Securill' ./.!!1!11<:1·. eta/.

SWl

·1er -~1!1!: 1\:Ef\';ir:JPJ!H -/.'ORCOtJ/tJOFOfH~
developed in recent years into a loosel y interconnected system-a network of networks-that is 2 ideally suited for the secret communications needs or loosely affiliated ienorist cells. Hundreds 3 of Internet service providers, or ·'lSPs:· and other providers of communications services offer a
wide variety of global communications options, often free of charge.
5
(>
7
9
II 12 13 14 15 16 17 18 19
20
21 22
23 24 25 26
28

Cl a~:o: ilic.:J In Camero. /:'..t P(Jrte Dl:'da1·ation of Fr<mc~s J. I lci~ch. N:ttionul Sc~urity Ag,~ncy

('(lro~'''l .l~t~<'l:'i. c•t 11/. v. :\'otional S~tctll'ity .·/gel/(:1·. eta/. (No.

·.I SW}

2

3

4 cri tica l challenges for tl'le Na tion's communications intelligence capabilities. First, in this type
5
of conJlict. more so than in any other we have ever faced, communications intelligence is
6
essential to our ability to identify the enemy and to detect and disn1pt its plans for further attacks
7
8 on the United States. Communications intelligence often is the only means we have to leam the

9 identities of particular individuals who are involved in terrorist activities and the ex istence of
10
particular te1Torist threats. Second. at the same time that communications intelligence is more
II
important than ever. the decentralized, non-hierarchica l nature of the enemy and their
12
lJ sophistication in exploiting the agility of modem tetecommunjcations make successful

l.l communications intelligence more difficul t than ever. It is against this backdrop that the risks

15 presented by this litigation should be assessed. in particular the risks of disclosing NSA sources

16
and methods implicated by the claims being raised.
17
c. ('t'Sf/'f..,P'//SII/6C/P4F' Presidentiallv-Authorizcd NSA Activities After 9/11
18

19

27. (TS/:q;gp;)<gJ;';'Q€:'PfJ') As indicated above, i.n December 2005 then-President

20 Bush acknowledged the existence of a presidentially-authorized NSA activity called the

21 ''Terrorist Surveillance Program·· under which NSA was authorized to intercept the content of

specific international communications involving persons reasonably believed to be associated
23
24 wi th aJ Qaeda and affi li ated terrori st organizations. As also noted. other intelligence activities
25 were authorized by the President after the 9111 attacks in a single authorization and were
26 subsequently authorized under orders issued by the Foreign Intelligence Surveillance Court
27
("'FISC} As described below. disclosure of the intelligence sources and methods involved in
28
the TSP and other classified activities reasonably can be expected to cause exceptionally grave

Chl.~:'iti~d h1 Camera. l;.r Parte Dedanllion (~f ham:<'~ J. Fki~ch. Nalion<~ l Sc~·uril) /\g.:n~·>

Curolw1Jewd 1!1 a/. 1·. \01ional ,\ecurifl· . 1 -.en~T. et of. (No. 08-c-1 -1873-.1$\V)

:!I

.

TOP f.H:fft~T.'i'ifi'S PJ/8 1-HORCON;'tJOI-OIUJ

1Of ~ LCftE'r;/'fJ?/;81-1/0ftC'OP J/?JOI'OR~~ damage to national securi ty.

28. ('f5h'XfSP#SI;'?OC~Jf) In the extraordinary circumstances afte r the 911 I attacks

3 ---when the Intelligence Co mmunity believed further catastrophic attacks may be imminent---

the President directed the NSA to address important gaps in its intelligence co llection acti vities,
5
and to undertake fUJ1h er measures to detect and prevent future attacks. Startin g in October 200 I
and cont inu ing ,.vith mod ifications, the President authorized NSA to undertake three activi ties. '2
7
Whi le these act ivities were distinct in nature, they were designed to work in tandem to meet the

9 threat of another mass casualty tenorist attack by enabling NSA to not only intercept the coment
10
of particular terrorist communications, but to identify other phone munbers and email addresses
II
with which a terrorist had been in contacr - and thus. potentially, to ident ify other indi victuals
12
13 who may be involved in ptouing ten orist attacks. 13

14 l.

(l'S//'t'Sf'/:'SI//OC~#f) Basket l - Telepbonv and Email Content Collection

15

29. (TS#TSP#SI;1;'8C/.,JF) First, the NSA was authorized by the President to

16

intercept

the

cont

ent

1 .!

of certai n

te lephone

and

Internet

communications

to r

wh ich

there

we re

17

reasonable grounds to believe that suc h com munications originated or terminated ou tsjde the
18

19 United States.

20
12 ('i"SN8lf/8CJiPJF) In other lawsuits in In re NSA Telecommunications Records 21 Liti~ation. some plaintiffs allege that NSA commenced the particular presidentially-authorized
intelligence activities put at issue in the allegations prior to the 9/1 1 attacks. The activi ties described herei n were authorized by the Presiden( a(ter the 9/J 1 attacks.

2J
13 (S;';'Nf) Each Preside ntial aulhorization (with the exception of the first such authorization) was supported by a threat assessment memorandum signed by the Director o f 25 Central Intelligence until 2005 and thereaf1er by the Director of National Intelligence, which documented the current threat to the U.S. homeland and to U.S. interests abroad from al Qaeda 26 and affiliated terrol.'ist o rganizations. The DN I has separately asserted privilege i.n order to prevent the disclosure of classifi ed al Qaeda flue at infonnation.
27

.28

14 ('f~//~tJ'fe~;''') Aga in. the tem1 "content'' is used herein to refe r to the substance,

meaning , or purpon of a communicatio n, as defined in I 8 U.S .C. ~ 2510(8). as distinguished

from the type of addressing or routing info rm at ion referred throughout this declaration as ··meta

data ."

('lassiticd In< 'aml!rn. F.x Part~> Dcclamlion of Franc.:' J. riL·i~·h. Nat ional Se"Curi l~ Agency

Corul,m JFWel. ti'l a/_ ,. Smionnl Securif)• ..J.I!enc,•·. eta/. tNo. 08-cv-4873-.ISW)

21

'fOP fH·.c n:FFl1'fSI:>/:'S -

.'.'ORC'OH'l>lO I.( HH' '

2

Thus. the initial scope of the authorization pem1itted NSA to intercept

3 communications where a commun ican t was not only reasonably believed to be a member or

agent of al Qaeda and affiliated organizations. hut or other intemationalterrorisr organizations as

5
wei
6

Starting in March 2004. the presidential au thorization for

content collection was lim ited to the col lection of international communications where a party to
7

8 such communication was reasonabl y believed to be a member or agent of al Qaeda or an

Q affiliated terrorist organi zation. The ex istence ofthis activiry was disclosed by then-President
10
I3ush in December 2005 and subsequently referred to as the '·Terrorist Surveillance Program"
11
("TSP''). The 11rst presidential authorization of the TSP was on October 4. 200 I, and the TSP
12
13 was reauthorized approximately every 30-60 days throughout the existence of the program. 15

I.J

30.

15 international telephone corrununications
16

17

18

19

20

21

22

~.~ (T8;';'f8P/s'ISI:':'8C/PH*) The specific wording of the presidential authorizations

evolved over time and during certain periods authorized other activities (this declaration is not

2J intended to and does not full y describe the authorizations and the differences in those

authorizations over time). For example, as already noted. the documents am
24

25

26

27

28

Cl;;..;,! ri,·d In Cnmero. C.r Por1e D~:d.lro.~tion o( h'anc~~ J l·kr::d1. N,ni<mal Sccuril~ Agcnc.v

Caru/m Jl!wel. (!'/ al. ,. National Se;:urifl· tl,l!<'ll~'\', ct ctl. (No. OR-cv-4873-JSW}

·

., en , e( l'tL, ; i"f~r//~ -·/OftCOt M40rORtJ

9

31. fJiS/:'Ii'ePXSIN8C/l'lf) Authorization of the TSP was intended to address an

10
important gap in NSA ·s intelligence collection activities---namely, that significant changes in
II
communications technology since the enactment of the Foreign Intelligence Surveillance Act in
12
13 1978 meant that NSA faced great difficulties in identifying foreign terrorist operatives who were

14 communicating with individuals within the United States. FJSA established the framework tor

IS court approval of the U.S. Government's efforts to conduct foreign intelligence surveillance of
16
individuals in the United States. When FlSA was enacted in 1978, most international
17
c.:ommuJlications to or from the United States were transmitted via satellite or radio tedu1ol ogy.
18
19 Congress incentionally excluded the vast majority of satellite or radio communications from the

definition of··electronic survei llance" in the FISA. See 50 U.S.C. § 1801 (f). The interception of

21 domestic communications within the United States. which were carried nearly exclusively on a

wire. for foreign intel ligence purposes. generally required a court order. As a rcsul
23

24

25

26

the FfSA did limit NSA·s ability to co llect "one-end.. telephone or Internet

27
international communications to orJi·om the United States on a wire inside the United States.

l"la.-..~i lied In ( ·, IIINm. L·.x Porte D.:dar:ation of FrJnC{'S J. Fleisch. N.ttio.11a l S~uri 1~ 1\gen(_\

Cnru~l'n.lewel. (Jtul. 1· :Voti0/1{1/ Sentrif.l· .·lgl.'nCl'. ef a/ \N(>. 08-n --1873-J~W)

2

TOP !Sf.@RE1 4' F!iP.'JC I -

':'ORCOH'HOFORH

I UP SEC Rt: I uI <~ ~~ $1 -,, () fH OIMOOI*Oftl 4
32. fF@h\Sf8P//S I//8 C:'l'JF) Since the time FISA was enacted, sweeping advances in

2 modem telecommun.icati ons technology upset the balance struck by Congress in 1978. By 200 l .

3 most international communications to or from the United States were on a wire and many
4 domestic communications had increasingly become wireless. As a result of this change in
5
com munications technology, the NSA·s collection from inside the United States of internalional
6
communications (previously carried primarily via radio transmission) had shrunk considerably
7
s and the Government was forced to prepare FISA applicati ons if it wished to collect rhe

9 commun.ications of non -U.S. persons located overseas. These circumstances presented a
I()
significant concern in the exceptional circumstances after 9/11. The NSA confronted the urgen t
II
need to identify further pl ots to attack U.S. interests both domestically and abroad. To do so. it
11
u needed to intercept the communications of terrorist operatives who, as described a b o v e -

14

Further, as the

IS

l6
the Uni ted States was faced with the prospect of
17
losing vital intelligence---and failing to detect another feared imminent attack --- while the
18

19 Government prepared

indi vidual applications for FISA Court authorizatjon on a

2o large number of rapidly changing selectors. 17

.2 1

33. (l'8;';Sf8PN81;1'8E/1'iF) Accordingly, after the 9/11 anacks, the President directed

22
the NSA immediately to con·ecr the gap in collecting the content of international
23

24 communications from kno'vV11 or suspected foreign terrorists to or from !he United States. As

described be low, Congress subseq uentl y agreed to certain amendments to the FISA to address

26 this collection gap and grant NSA llexibility to collect quickJy on overseas, non~U .S. person
27

Clussi lied In Comt'm. £y Porte D~I:IMalion ot rranccs J. Fleisch. Nati1mal Security Ag~nC)

Coro~l'il .Jewel. 1!1 al. 1'. Notiollal St-curi(l' ..l,genc:t•. e1 ,1/. (

W)

't- IEJP 81 t'ltr 1 T\F

6ft(tJi < •OI ott<

targ~ts \\ithout individual FISC orders. Thus. sources and methods by which the NSA

intercepted the content of informalion untkr the TS P are stillutiliz.ed t(hlt~ undl'r similar FISA

J authority and remain highly sensitive nlld cl;~ssified infom1ation concerning the means by which

the NSA may obtai n significant fo reign inte lli gence infom1ation. including. but not limited. to

5
h:rrorist thrt:ah.
6

2.

(TSI+ff~WI/fH;~'8EI?''if) Bask et 2 - Bulk Telephonv Meta Data Colleclion

7

8

34.

9 by the President, again pursuant to the same presidentia l authorization. was the bul k collection
10
meta data re lated to udephm1). cornmunil:ations. As noted, telephony meta data is information
II
derived from call detai l r~..\:Prds that r.:ll~:L't 1w n-content in fonnati\Hl sud1 as. but not limited 10.
I:?
or 13 the date. time. nnd duration telephone calls. as well as the phone numbers used to place and
14 receive the calts. 1.s l11e purpose of collecti ng telephony meta data in bulk is to query this

15 in.tormation vvi th particular "selectors·· (i.e. phone numbers) reasonably believed to be assoc iated
16
w·i£h a member or agent of al Qaeda or afliliated terrorist organ ization in order to ascertain other
17
contacts and p<m e m s of comn1lmicatitlns tor that sdl'd llr. Thus. while t.he a mount of telephony
I~
19 meta data obtained through the bulk collection under presidential authorization was signjficant.

20

::?\

25

( 'l;c;,jJkd In Comt'''tl /~,. !'ane D.:d uml ion o1Tnm~:r' .1. Fl.:-isch. Nationa l Sct:urit~ Ag.:nc~

C'aro(\ 11 Jt•wd f.'I of ,. \ (/1/CIII,t/ .\.,,•uri~,. l~e11£:l c!l rd (~ n . 08-.:' -'1873-Jo;; \\'}

l fW CHXR£T'T!1f2 '''11-

. @FH?@: , : , ~H@RH

·1·0r ::!FCFterFTSPNS I-

.'/O RCOH.'PJOIAOIUJ

only a tiny frac tion of telephony meta data records collected by the NSA has actually been

2 presented to a tr11ined professional for anal ysis. 19 However, the co llection of meta data in bulk is

necessary Co utilize sophisticated and vital analytical tools for tracking the contact-

of al Qaeda and its afliliates. Again. the particular sources and methods
5
by which the NSA collects and analyzes telephony meta data remain in use today pursuant to

7 authority of the F!SA and Executive Order 12333. and constitute highly significant tools for detecting and preventing terrorist attacks and thus lor protecting nat ional security.

9

3. ('fSH'fSf'l'/511//e e /f<P) Basket 3- Bulk Internet Meta Data Collection

10
35.

The third discrete NSA activity authorized

II

by the President , again pursuant to the same presidential authorization, was the NSA collected
12

13 bulk meta data related to Internet communications--- ht!ader/router addressing infom1ation, such

14 as the ··to:· .. from." ..cc," and ·<bee.. lines. as opposed to the content or subject lines, of a

15 standard email.20 tn addition to collecting the content ofpanicular communications-
16

17

J8

19

21 As with telephony meta

20

11

19 (TS;'fFSPI/SI#OC:~lF) NSA estimates that by the end of2006. only- o f the

te lephony meta data collected had actually been retrieved for analysis.

1J 24
25 26
J.7
28

Clns,ifi~,'tl ht Cumem. F:~ Purte D~clarat ion of Fr<:~m:c' J. I l::i ~d1. Nullnna l c;;ccu rity A!!.:ncy

<. ·w .,f, 11 J,••,wl. e1a/. ' '· .\uliwtol s.-curtt\· lg('n, 1·. et ul. IN

W)

TOP SCC I~ET'/Tfi P//0 1-','0RCO H~l O H.> R~J data. NSA would then query the bulk Internet meta data with particular "selectors'" (e.g email 1 address) reasonably believed to be associated with a member or agent of al Qaeda or affiliated 3 terrorist organization in order to ascertain other contact~of Internet communications for that selec!Or (and thus. again. only a tiny fraction of Internet meta data collected was viewed hy an analyst).
7

9

10
4.
II

12

36.

13

14

I 5

16

17

18

19

20

21

22

23

25
26
27
28

Cl:1~~ifi.:d In Camera. l::.r Pone Dcda ration of Franc~·::: J. Flci:::~:h. National Sccurit) 1\go:ncy

Caro~l'lt Jeu·<'l. 1(/a/. 1·. National Secuntv AgetiC)'. e/ al. (No. 08-cv-·Ht?3-JSW)

1

fel f' ~EC:R::ETh'T~P//S I-//ORCON/?JO I 'O R ~J

l 'eF SECftETN'I'SPNUI-h't)R:C'O~J/tlOFO~PJ
D. ~ SII SIJJeerNfl) Current NSA Activities Tra nsitioned from Presideotial
Authority
2
37. fJl8;';Sf8P//S I/18@;1(f) The three sources and methods of intelligence collection
J
initially aulhorized by the President immediately fo llowing 9/ 11 have evolved over the last

5 eleven years and continue to be utilized today. Thus, disclosure of the part icular sources and methods described herein as they were uti Iized under presidential authorization would
7
compromise the use of those sources and methods under other authority and thereby risk

exceptionally grave damage to national security.
9

10

l. (1 ,;;; 3 11JeeJ,4f) Collectioo of Communica tion Conteot

II

38. (TS#$., P:':'SI;\'8C/,IF) First. in January of 2007, the content interception

12 activities that had been occurring under the TSP were transitioned to authority of the FISA.22
13
Specifically, on January 10. 2007, the FISC issued orders authorizing the Govenunent to conduct
14
certain electronic surveillance that had been occurring w1der !'he TSP. Those orders included:
15

16

17

18

11)

20
Email Order:· which authorized electronic surveillance of telephone and Internet
21

22 communications

where the Government detennined that there

23 was probable cause to believe that (i) one of the communicants is a member or agent o

15

2~ (F8N81:\'8@/Pff) This declarat ion generally desctibes the transition of all three

Presidentially-authorized activities to FISA authority, but does not describe in detail the FISC

Orders themselves, the details oftheir periodic renewaL specific legal issues that arose. the 27 process involved in obtaining FfSC approval, continual brielings to the various congressional

2S oversight committees, or any subsequent compl iance issues and COITective action taken as a result of those inciden ts. The FLSC undertakes close oversight ofNSA activities that are subject

to the FISA. and NSA has worked extensively to ensure compliance with FISC orders. including

those described herein.

Cl;l'~i li..:d In (·,ol/t'ril. /;~x !'artI! D<:dar.•tion of f-rarHxs J. Fki!'ch. National Security Ag.~:ncy

Caro/l'n Jl!wel. e/ a/. 1·. :\'otiunal S.tnmll· i lg encl1• et at. (No. 08-cv-.f873-JSW)

2

.

·reP 815C ft~T/T8PNS -I/OR:COPVHOI " ORPS

and (ii) the communication is to or from a foreign country 2 (i.e .. a one-end foreign communication to or from the United States). Thereafter, any electronic 3 surveillance. as that tcm1 is de t~med in the F fSA (see 50 U.S. C. § \80 I (f)). that was occurring as 4 part of the TSP became subject to the approval of the FISA Coun and the TSP was not

23
23 (U) On January 17. 2007. th e Attorney Genera I made pub! ic the general facts that new
orders of the Foreign Intelligence Surveillrutce Court had been issued that authorized the 25 Govemmem to target for collection international communications into or out of rhe United State
where there is probable cause to believe that one of the commun icants is a member or agent of al
26 Qaeda or an associated terrorist organi zation; that, as a resuh of these orders. any electron ic
survei llance that had been occurring as part of the TSP was then being conducted subject to the 27 approval of the FISA Court: and that. under these circumstances. the TSP was not reauthorized.

28
communications o

the January 2007 t of

ClilsSilku In Camera. Ex: Purl!! D~d;tratiol ) ofFrnnN·~ J. Fkisch. Nati~111al S~4.·urity A~~·m: y

Camlm.leu·d ~~a/. 1'. N,,tioool Securit\1 . l!(t'I/Cl'. et ol (NO. OI!·CV··I873-JSW)

.

fOY .JEt'ltt,'/i·rz;l //!~ -r/OR:COlM~OFOFZI~

2 .3
40. (TS//Sb'/0€;1Pl F) The process or seeking renewal of the January 2007 FISC
5
Foreign Telephone and Email Order after its original 90 day authoriza tion ultimately led the Executive Bmnch to press for and Congress to enac t amendmen ts to the FISA that granted NSA
7
8 greater flexibility to collect the content of i.memational communications without the need for \) individual FISC orders for each se lec tor targeted.
10 11
12 13 14 15 16 17
19 20 21
22
23
25
27
- ..
~

Chts-sili.:d In Camero. Ex Parle Ded••ration nf Fran~~:~ J. F ld~ch. Nation~~l Security Agcnc~

c·arolrn Jewel. eta/. 1'. :Votionul Slf.<-'uriti· A~<·ncT. eta/. (No . 0!!-cv-.JS7.3-JSWl

.

TOP SECR:ETi'TSPHfJ I-

//ORCOlMJO I- ORN

2
J
As discussed next. this prompted NSA to
5
seek additional statutory authority under the FTSA to intercept the content of international

7

8

4 1. fFSI\'fSP:':'g l/fQ€:'1>11'1 In August 2007, Congress enacted the Protect America

9 Act (..PAA'"), which granted NSA additional flexibility under the FISA to target international
10
communications without an individual court order for each selector. Under the PAA , the FrSA's
II
defin ition of ·'e lectronic surveillance'' was clarified to exclude •·s urvei ll ance d irected at a person
12
lJ reasonably beli eved to be located outside the United States'' 50 U.S.C. § 1805A. Thi s change in
14 the defin iti on of electronic surveillance under the FISA permi tted the NSA to in tercept

15 communications off of a wire inside the United States without an individual court order so long
16
as the target was located outside the United States. This restored some of the operational
17
fl exibility needed to swiftly target rapidly changing selectors on multiple terrorist targets that
18
I<) existed under the TS P. The PA.A eliminated the need for the Foreign Telephone and Email

20 Order. and that Order expired after the PAA was enacted.

21

42. fifSh'SI//OC/~4F) The PAA authorized the DNl and the Attorney General to

22
jointly ··authorize the acquisition of foreign intelligence infom1mion concerning persons
23

24 reasonabl y believed to be outside the United States" for up to one year. id. § 1805B(a), and to

25 issue directives to communications service providers requiring them to ··im mediately provide the

26

27

2&

In r·amo>ru. £.x Part!! Dcclannh'n of" Franc<-:> J. Fleisch. Na1ional Securil) AgcnC)

Ca r•1lyn .It'"''''· ~:t al v Nm ional Seuwirr lgenc_t·. i?l ol. (No. 08-cv-4873-JS W1

3

TOP Sl :CI"lCJ:.':'T!5P:'.'SI-

.'.'OR0 0tJHJOFORN

,·ar ~EC I~ET//TSP//fli-1'/0 RCO?JH~O I-OR?J
Government with all infonnation, facilities, and assistance necessary to accomplish the

acquisition·· of necessary intelligence in!ormation. id. ~ I!>05B(e). Such directives were issued

to a number of telecommunication and internet service providers.
4 and the NSA conducted content surveillance of overseas targets under the PAA with the
5
assistance of those telecommunication caniers. More specitically. in Augu st 2007. the Attorney
6
7 General and ON l iss ued the requisite certifications, and, among other things. con rent collection
under the PAA continued as to persons reasonably believed to be outside the United States

involving communi cati ons of
10
Under the PAA, approximately. fore)gn
II
selectors that had been anthorized under the Foreign Telephone and Email Order were
12
13 transitioned to collection by NSA under authority of the PAA.

14

43. (TSXSI.NOC 'tJF) The PAA was enacted as a temporary me sure set to expire in

15 180 days. and it ultimately did expire on February 16. 2008 (although dire tives issued under the
16
PAA continued in eflect until their stated expiration dates). On July II, 2008, the Foreign
17
Intelligence Surveillance Act Amendments Act of2008 (FAA) was signed into law. Section 702
18
19 of the FAA created new statutory authority and procedures that permitted the target ing of non-

20 United States persons reasonably believe to be outside oft he United States without indi vid ual
21 FISC orders but subject to directives issued to telecommun ications CaiTiers by the Director of
22
National Intelligence and the Attorney General Lmder Section 702(h) of the FISA for the
23
continuation of overseas surveillance under this new authority. See 50 U.S.C. § 1881 a( h) (as
24
added by the FJSA Act of 2008, P.L. II 0-261 ). Directives that had been issued lUlder the PAA

26 for content surveillance of overseas targets (including surveillance or speciti~ targets
27
overseas) were thus replaced by new directives for such surveillance issued pursuant lo the FAA.

While the existence of prior PAA authority and curTem FAA authority are set forth in public

( l:.~ssi/i.:d In Canu!r,s. [.,· Parle D~:daration ,,f I ranees J. FkiS(;h. l\:ttioiiWI So.:nu·it) Ag..:m:~

Caro~l'll .I!!wei. 1'1 ol. ,.. .\'{l(imwl Scrurily .-lgl!ncy. ('/a/ (

W l

3

FOP \tCftEl g ·;t' ';I -

d fH (J'c hOI Oft';

s tatutory provisions. the opcr.nionaJ details of the sources and methods used by NSA to carry out

2 that authnrit~ rl.'lilain hi~hly clas:-.i lied.

J

44. (TS:':'fSP;¥51t:'Q€ '!Nf) As with 1be- TSP. lJ1c purpose of the new authority in

or Section 702 the FAA W<IS to account lor changes in communications technology si nce 1978
5
whereby internat ional communications were increasingly transrni lled !o lhe United States viC~
6
fi.ber optic cable and . consequently. increasingly subject to FJSA·s definition of electron1c
7
surveillance and requin:n11.:nt:-. B~ ~r:mting NSA the authorit~ 1\1 condu~:t acqui~i t ions in.-.i..k the

United States by targeting non-United States persons located 0utsidc lhe United States in order to
Ill
acq uire lbr~ign intelligence infom1ation without the need fo r individualized FISC mdcrs
II
approving surveillance for each individua l target, Section 702 permitted the NSA to continue to
!2
13 undertake content surveillance for overseas targets in a manner similar to that permi tted under

1-1 the TSP. As ofAugust 20\2. NSA presently has a rota) of approximately

indjvidual

I.S foreign selectors under coverage pursuant to Section 702 of the FAA. Se-ction 702 has proven to
t fl
be a critical tool in the Government's efforts to acqujre significant foreign intelligt:n~o:e nt:c~~:-;ar~
17
to protect the ~ation·s security and has quickly become one of the most important k~al
18
19 authorities Available to the Intelligence Community.

'20

45. (l'~//+ii'/:'OIN80'Pif) ln sum. the post 9/11 content surveil lance activities

21 undenakcn by the NSA evolved from the presidentially authorized TSP to the FISC Foreign
22
Telephunl' anJ Email Order. to the dir(·Lti\ L's issued untkr the PAA and. ultimately. to the
13
directives that are now being issued put:sUdlll to the FISA Amendments Act of2008. Each

aut..horizJt.ion sought to enable the NSA £O undl.'t1ake content surveillance on numerous multiple

targets ovcrscas without the need to obtnin advance coun approv<.~l for each target. But, as

explained further below. none or these contelll surveillance activities has enwiled the kind of

indiscriminate " dragnd" content sun·ciIlance of domestic or international telephony or lnternL'I

I t )l' d CRf5/' fSP ' 'fii -'.'ORCO"<'?\OFEHth

communications that the plain~iffs. aJJeg~. Rather. from the outset. cuntent col k ction bv the NSA

( I

•

1 has focused on imernational cormnuo.i<.:ation'\ r~a:-..unahly believed to im·nh t: ,lc nwist

3 organization

2. fi'SHSI/fOCfol>Jf) Collect'ioo of Bulk Tclepboo\' Meta data (Business Records)

46.

7 amhorized by then· President Bush at(er the 9/1 I attacks was rhe bulk collection of meta data
rel,ated 10 telephony communications--- again. information derived from call detail records that
I) reflect non-content information such as. but not limited to. the date. time and duration of
10
td ephone calls. as well as the phone numbers used to place al.ld received the calls. That activity.
II
which began pursuant to Presidential authorization in October 2001. continues today under the
12.
amhoriry of the FlSA.

II

~7. 4'TS/CT~ Pit~ IIJOCP'W) Bcginninbl in Vtay 21106. th..., hulk collection of noo-

15 content telephony meta data. previously su~ject to Presidential authorization. was authorized by
lb
the F!SC pursu;tnt to what is known as the Telephone Business Records Order. The FISC found
17
!hat. in order to protec£ against intemationalterrorisrn. reasonable grounds existed to order
I~
!') cenain telecommunic<llion carriers to produce to the NSA in bulk --call detnil records·· or

"telephony rneta data;· pursuant to 50 U.S.C. 9 1861 (c) (authorizing the production of business

2t records for. imer alia. an investigation to protect against international terrorism). \Vl1ile ti.:Us buJ k
.,.,
coUe~tion is again very broad in scope. the NSA has been authorized by 'the FISC to query the

a.lich ived telephony data sukly '.vith identified tckrhonc numbers for which there are facts givi ng

25 rise to a reasonabk. articubhk suspicion lhat that the number is ~t-;sociah.:d with (among other

foreign targets

(referred to as a ··RAS..

-._,., detennination). Bulk tdephony meta data collection. as cont[nued lObe authorized under fiSA

28
authority. remains a viral soun:~ and method needed to utilize sophisticated anal~ ti~:al tools for

Cl a:~sfikJ /11 Caml!l'tl, 1-:.1· /'(.11'/t! Ik<.:l .:trulion of Fran.:(·~ J. Fh: i~ch . Nulional Sn ::urily Ago:uo:~ r ·ornfl·n Je wel. et a!. 1· \ otimwl .\ n ·urin· lgiWt: l . t'f ul ( N n. tlR-cv-"187J-.ISW)
'1( >I :qi .C'~ E r/ -r:~H' /.'::11-/!0:f't('OtM~ < H'O I~t~

track in

2

3. ('ifSNSh¥8C:WF) Co llection of Bulk Internet Meta data

J

48. fFS#fSP:4'61#8C:'P:lf) As also d~scribed above, the third activity authorized by

then- President Bush after the 9/11 attacks was the bulk collection of meta data related to rnternet
5
communjcations. NSA carried out this bulk collection activity under presidential authorization

During the period from

2004.an

8 application was prepared and submitted to the FISC to continue the bulk collection of Internet

meta data. fn July 2004. the FISC authorized the bulk collection of Internet meta data through

10
the use of a pen register and trap and trace device ("'FISC Pen Register Order·· or ..PRTT
II
Order''). See 50 U.S.C. § 1841 , et seq. (defining '"pen register"' and "trap and trace device..).
12

IJ

49. (l'S/ISIX8C:'P:lf) iJlitiall y. under the PRTT Order, NSA was authorized to

J.t collect, in bulk. meta data associated with electronic communication

1.5

in a manner similar to that which NSA had utilized under presidential

16
authorization. Specifically, the collection of l.nternet meta data
17
authorized because
18

had been

19

20

21
21
Intemet meta data in bul

In addition. while NSA was authorized to collect it was permitted to query the archived meta data

24 only using Internet selectors for which there were facts giving rise to a reasonabte. articulable

25 suspicion that the email address was assoc iated with

26

As with bulk collection of telephony meta data

27
collection, the bulk collection of Internet meta data allowed the NSA to use critical and unique
28
analytical capabilities to trach: the contacts (even retrospectively

Clas:-i tkd /11 {. ·wn<·ra. £,,Parte D~o:d<mtli,m or I ranees J. fl eisch. NatiPnat Security Agency Cam~l·n./ew.-1. et (1/. 1', Notional Securit,t· Agen( \', t•tul (No. 08-~:v-4873-JSW>
I UP SI~:Citl! I , I ~ P//~1-.'/0itC OH,'HO FORPJ

known terro rists.

2

50. ff~//5HN8€/Nf) The FISC Pen Register Order was reauthorized approximately

J every 90 days from July 2004 until December 2011.17 In December 2011 , NSA did not seck

reaut hori zati on of the PRTT Order after conc luding that this activity was too limi ted in scope to
5
justify further resources.
6

7

8

9

10

II

12

13

14

15

16

17

18

19

20

Thus, the disclosure of this source and method would

21 compromise NSA ·s current collec tion activities and analytical capabilities and cause

23

24 FJSA, staning i

with FISC oversight of NSA activities subject to the authori zation for the PRTT Order was discontinued wbi le

25

lved certain compliance issues with !he FISC. The PRTT Order was reauthori zed in

until its last authorization expired in December 20 I I.

2o

27

28

(.'la~itkd In Camem, 1-. \ Partt" Dc:daration of I ran.:e~ .1. t=ki:;..·h. Nut ional S.:curity Agency

Cnrn~l'll )t'H'e/ . l!l o f. 1'. •\ a ltona/ Security Ag<tn<·v. t'lu!. I

W)

TOP ~ECRET//TSJF//S I-1/0RC O?J 'l'lOrOIH J
exceptionally grave damage to the national security of the United States.

2

51. (T~//'f'~fi1'~11/0Cfl4F) The .Je-..,e/ and Shubert plaintiffs allege that in March

3 2004. the Acting Attorney General of the Department of Justice refused to reauthorize certain
4 aspects of the activities authorized by the President after the 9/ I I attacks. See Jewel Com pl. ~~
5
45-49: Shuben SAC~ 97-99. I was not the Executive Director ofNSA in March 2004, nor was I
6
personally involved in the matter at issue, and this declaration does nor describe the tull details
7

8

Q

10

II 12

13

14 15 16

17 18

19

20 21

2.l 24 25 26 27

2 3

V. (U) Information Subject to ONI and NSA Privil ege Assertions
5
52. e'fSJ\5fSP¥/St//OCH'4F) As the foregoing discussion indicates, a wide range of
6
intelligence sources and methods, used over the past decade and still in use today, are at risk of
7
8 discl osure in this la"vsuit. While the plaintin·s· allegations are focused on the period immediate]

fo llowing 9/1 I. and seek to challenge alleged activities undertaken pursuant to presidential
10
authorization. the sow-ces and methods used by NSA at that time continue to be used under
II
subsequent authorizations. To expose a source and method. based on its use during one period o
12
I _', time, under one authority. would compromise, if not destroy, NSA 's ability to use that method

14 today. All of the presidentially authorized activities being challenged in t11is lawsui( (starting in

15 July 2004) were pJaced under other FISA authority and have been subject to Congressional

16
oversighL The need to protect these sources and methods con tinues to exist notwithstanding
17
plaintiffs· challenge to the lawfulness of their use under presidential authorization.
18

19

53. (l'SHifS P//S ih'OC/tfF) Accordingly, the NSA seeks to protect from disclosw-e in

20 (his case the sources and methods its has utilized to undenake (i) content survei llance under the

21 TS P, including information needed to demonstrate thai the TSP was not the content ·'d(agnet..
22
plainti tfs allege; (ii} bul k collection of telephon y meta data: (iii) bulk collection of Internet meta
'-)·''
data, including the analytjcal tools for querying such data to detect ten-oris! contacts; (iv) facts
2:1
25 concerning whether any NSA surveillance activities have been directed at or collected any

16

27

28

Clas~iti~t.l /11 Cum~r". ;.~.,. Parte Dcduralion of Fr-dllc~s J. Fleisch. National S(.•curity Agcm:)

Co•·o~\'11 Jewel. (!f ol. ,. Smional Securin·. h!eiWL .·r al. 1~o

SW)

H9P 8ECIH .l/.TSP.':'SI -

A'Oftt'Otl:'l'J0FOR:tt

intonnation conceming the plaintiffs (which wo\lld risk disclosure of the existence and scope of

2 the source and methods at issue): and (

3

54. (U) In general and unclassilied terms. the following categories of information are
6
subject to the DNI's assenion of the slate secrets privilege and statutory privilege under the
7
National Security Act. as well<:~s my assertion of the NSA statutory pri vilege:

A. (U) lnfonnation that may tend to confiml or deny whether

10

the plai ntiffs have been subject to any alleged NSA

intelligence acti vity that may be at issue in this matter; and

II

B. (U) Any infonnation concerning NSA intelligence

12

activities, sources, or methods that may relate to or be

13

necessary to adjudicate plaintiffs' allegations, including

allegations that the NSA. with the assistance of

14

telecommunications carriers such as AT&T and Verizon,

indiscriminately intercepts the conrent of communications

15

and also collects the com muni catio n records of millions of

16

Americans as part of an alleged ··Program·· authori zed by

the President after 9/J 1. See. e.g., Je·wel Comp. ~~ 2-13:

17

39-97: Shuberl SAC~~ 1-9: 57-58: 62-91.

The scope of this assertion includes but is not limited to:

19
(i) (U) Information concerning the scope and

20

operation of the now inoperative "Terrorist Surveillance

Program" ("TSP'') regarding the interception of the conten t

21

of ce11ain one-end international communicat ions

reasonabl y believed to involve a member or agent of al-

Qaeda or an affiliated terrorist organization, and any other

23

information related to demonstrating that the NSA does not

otherwise engage in the content surveillance ..dragnet'' that

the plaintiffs allege: and

25

(ii) (U) Information concerning whether or not the

26

NSA obta ined from telecommu nications companies such as

AT&T and Verizon corrununication transactional records as

alleged in the Complaint: see. e.g .. Jewel Complaint ~ I0:

28

82-97: Shuhen SAC ~ I02: and

(i ii) (U) lnlonnation that may tend to conti rm or deny whether AT&T. Verizon (and to the extent relevant or

(.'l:l~:-i l i.:d In Comero. £., Porro• lk.: larHtion of r rJJICt'S J. fl~i~.:h . N:u ional S..:curnv Agency

('aro~pt.fewel. 1!1 fl(. 1'. ,\'n tiunul s.·,·urii,Y lgl!lli.) ', Cf (1/. 1 N~1. 08-cv-4873-JSW)

J

'fOP SEE!ltET ,"f3P/:'01 -J/ORCOH'l'l~FQRPI

-' VI.

I tiP .'< 1 Cltr! f'; .·l ~~ ~~ ~~ --.,.,.O itt 'OIG ·h01'< >f04
lll.:cessary, any other telecommunications carrier). ha,·e pmvided assistance to the NS.\ in COlllll'dion with any alleged activity: see. q~...h·He/ Cnmplaint ~~ 2 ~ 7-8. 10; 13 50-97: Shuber1 SAC'!" 6. I0- 13: 66-68.
(U) Harm of Disclosure of Privileged Informacion

A. (U} Information Concerni.og \Vh ether the Plaintiffs Have Occn Subject to tbe Alleged NSA Activilics

55. (U) The tirst n1ajor category of infomKttion as w which I am supporting the DNJ'

as~cnion ofpri' ikg~. <:md ass~rting the \iS.\'s own st~:~tutOry privikgl'. Ct,nn:rn~ infonnation as

') to \\·htther particular individual s. including the named plaintiffs in this la,,suiL hm·e been

subject to allegl·d NSA inteWgence activities. A::; ::.d forth below. disclosure of such inJormation
II
would cause exceptionally grave damage to :the national security.
12
I.

1-l

5(1. ff$;'"ffj P/fS IH8CI1'ff) The named plaintiffs in the ./ell't!/.1 1 and Slwher13: cases

15 allege thnt content of their ovm telephone and Internet communications have been and continue

16
to be subject to unlawful search and seizure by the NSA. along with the content of

17

communications

of

mi

II

ions

of

ordinary

Arnericalls

:

1
.1

As set

forth

herein. the NSA does not

18

19

20

J t (ll) Accordi ng to the Complain!. named plain tiffs in the J<>wel case are Tash Heptin g,

Gregory Hicks. Carolyn Jewe l, Erik Knutzen. and Joice Wa lton.

'21

32 ( U) According to the Second Amended Complaint. the named plaintiffs in the Slwher

case are Virginia Shubert. Noha Arafa. Sarah DranoiY. and Hilary Botein.

23

H (U) Specifkally. the Jewel Plaintiffs allege that pursuant to a presidentially authorized

program after the 9/l l auack~. the :'\SA. with the assistance of AT&T. acquir~d and continues to

acquire th~ content of phone call s, emaiIs. instant m~ssages. text messages, web and other

communications. both intemational and domestic . of millions of ordinary Americans

26 ---..practicall) C'.-ery Amcril:an who uses the phone S)Slem or the lnt~mct..--- includi.ng the

Pla.intills. Sel! .le11TI ( '0mplain1.--: 7. 9. I0: .H't' af.,u iJ. at u 39-97. The Slwhen Plaintiffs

allege that the contents ~' r ..,.imwlly every tekphnne. Intenll't and crn::tiI commurti.cation s~m

28 from or receivt:d "'ithin the nited States since shortly aft.c:r September II , 200 1... including Plainti ffs' commun ications. are being. "searched. seit.cd. intl.!n::epted. anJ subject to surveillance

* "'ithnut a \\(trrant. ~ourt orJer or any other lawli.JI authorialtit.m in ,·iolation of the Foreign
Tntcll i genc~ Sun ei ll ancL' Act of 1978. 50 U.S.C. 1810... .\'ee Slm h!!rt SAC ,. I: .\ee also id. c;.- 5.

7.

("';~,)llio.:d /11 C.utt.·r,l ( \ fwf•' l kdo~ruumt ul franl'O.::. J. I lct'<.'h. 'J,JtJun.tl '>o.:~urit~ •\go.:nc~ ( aruhnJeud, ~tal 1 \aLttmul curm l}{t'IIC'\ t•tul l ' tl 118· 0.: \ -ll!7).J:O.\\ 1

.u

I dla :ll <: R:l I I SP 'H -

OfH: O' c 'cOl OlPi

TOP fJECRI.:T//TSP//SI -

s'/ORCON/N OrOIHoJ

engage in ·'dragnet" surveillance of the content of communications as plaintiff:-; al

2

5
7
9
II 12 13 14 15 16 17 18 19
20 21 22 23 24 25
26

Cla~sili~u In Camera. L~ f>cm.• Dechu·uuon or Franc.:s J. Fleisch. N;:uional Se<.:urily Age-n<.:y
Carolyn J<~••·el. el ul. •·. 1\'otimw/ Securi(1' l,l!enq . £'1 a/. (No. 08-cv-4873-JSW)
TOP S~C R ~T'/T~P//S I -.uORCOH~IOIAOR ~I

2

.~

4

57. (TS//TSP#SV?OC!t~F) Further. the named plaintiffs in Je1-ve/ and Shubert allege

5
that the NSA has been and is continuing to collect the private telephone and Internet transaction
6
records of millions of Americans. with the assistance oftelecommunication carriers. again
7

8 including information concerning the plaintiffs· telephone and Internet communications:\6

I (I II 12

14

15

16

17

18

)9

10

21

22

36 (U) Specifically, the .Jewel plaintiffs allege that NSA has ··unlawfully solicited and

23 obtaine-d from telecommunications companies the complete and ongoing disclosure of the pri

telephone and internet transactional records'· of millions of ordinary Americans, including

plainri fls. See Jew~tl Complaint~~ 7, I0, II. 13, 82-97. The Shubert plaintiffs allege that "NSA

25 now monitors huge volumes of records of domestic emaj Is and Intemet searches... [and] receives this so-called 'transactional· data trom ... private companies .. .''See Shuberl SAC

2() ~ 102.

27

ranc.::~

Ag~:n~:y

CC1n1~1 ·n Jewl'l. el "'· 1'. :\'a11ooa/ St>curi1y . lgenty. t!l ol. (No. 08-C\-~87:'-JSWI
ifQP glX' RLT//TSP.'/5 1-','O'R:CO'l' I.'I>J O~QRN

2

.3

4

5

6

7

8

9

59. (U) As a matter of course. the NSA cannot publicly confirm or deny whether any

10
indiv idual is s ubject to survei llance activ ities because to do so wou ld tend to re veal actual
II
targets. For example. if the NSA were to confim1 in these two cao;es and others that specific
12

l3 indi vidual s are not targets of surveillance, but later refuse to comment (as it would have to) in a

1-t case involving an actual target, an actual or potential adversary of the United States could easily

15 deduce by comparing such responses that the person in the latter case is a target. The hann of
16
revealing targe ts of foreign intelligence surveillance should be obvious. If an individual knows
17
or suspects he is a target of U.S. intelligence activities. he would naturally tend to a lter his
Ill
19 behavior to take new precautions against surveillance. In addition. revealing \.vho is not a target

20 would indicate who has avoided surveillance and what .may be a secure channel for
21
communication. Such in.fonnation could lead an actual or potential adversary, secure in the
22

23

24

t1me

25

the bulk collectio n of Internet meta data purs uant to orders of the FISC (the PRTT Order) expi red in December 20 I I, NSA estimates tl~ge of Intemct meta data that it

26 collected had been reduced to approximately- - - With respect to telephony meta

data, NSA has previously estimated that, prior to the 2006 FISC Order. about 27 telephony meta data records was presented to an analyst for review.

\'ononctl Secudl1 lg,'IILT. c1 a/. (No. (18-c~t-..JR7 3-JSW)
I OP !if!( I\L !11 l.ifli· u,,I - -//O ff: CO IM40FO~N

f'O~ ~I :c K£'T/J f~P//:~1 " " " ''/OR:COPHHOFORH
knowledge that he is not under surveillance. to e p a 10stile forejgn adversary convey

2 i.nl'onnation; altematively. such a person may be unwittingly utilized or even forced to convey .3 infonnation throllgh a secure channel to a hosti le fore)gn adversary. Revealing which channels

are free from surveillance and which are not would al so reveal sensi tive intelligence methods
5
thereby could help any adversary evade detection and capi tali ze on limitations in NSA's
6
7 capabilities.40

8

60.

<)

10
I I
12
IJ 14
15 16
17 IS
19 20
21 22
23 24 25 26 27 2S

mnera.

Nauonal $('curiry Agency

Cnro~l'll )t'wd "'a/. ,._ Nmional Secunfl· . lg i!IICT . f!l nl. !No. OlS·C\·4873-JS W)

TOP SECRET/FrBP//51-

/.'ORCOtd/1'c!O I .OIH <

2

3

B. (U) Information Related to NSA Activities, Sources, or Methods

Implicated bv Plaintiffs' Allegations of a Communications "Dragnet"
4

5

61. (U) I am also supp011ing the DNI's assertion of privilege and asserting the NSA·s

statutory p1ivi lege over any other facls conceming NSA intelligence activities, sources, or
7
methods that may relate to or be necessary to litigate the plaintiffs· claims and allegations.

including that: ( 1) the NSA is indiscriminately intercepting the content of communications of
9
10 millions of ordinary Americans, see e.g.. Jewel Complaint~~ 7, 9, I0; Shubert SAC~~ I. 5, 7;
II and (2) that the NSA is collecting the private telephone and Internet transactional records of
1.2 Americans with the assistance oftelecommunications carriers, again including information
13
concerning the plaintiiTs' telephone and lntemet communications. See Jewel Complaint~~ 7. 10,
14
11. 13. 82-97; see Shuberl SAC~ 102. As described above, lhe scope of the government' s
15
16 privilege assertion includes but is not limited to: (I) information concerning the now inoperati ve
17 ·'Terrorist Surveillance Program" and any other NSA activities that would be at risk of disc losure
18 or required in demonstrating that the NSA has not engaged in content ··dragnet" surveillance
19
activities that the plaintilfs allege; and (2) i.nformation concerning whether or not the NSA
20
obtains transactional communications records from telecommunicat ions companies. As set to rth
21
22 below. the disclosure of such information would cause exceptionally grave damage to national
23 security.
24
I. (U) Ioformation Concerning Plaintiffs' Content Surveillance Allegations
25
62. (U) After lhe existence of the TSP was officially acknowledged in December
26
2005, the Government stated that this ac tivity was Iimited to the interception of the content of

28 certain communications for which there were reasonable grounds to believe that: (I} such

communication originated or terminated outside the United States; and (2} a party to such

( ' IM~ilku /11 Coml!'ru. t.\ Parlrt Dec kmHit.m oi'Fran•.x~s J. l'l~isch. Na1ional Sc..:unl~ Agenc~
C. ·ai'(J/yn.Jpu•e/. N a/. 1·. Nmionn! Sec urin· Agenty. e1 a/. (No. 08·C\ --l 873-JSW J
'P61 ~LCfH I;';lz!j p//8 1 -'.'0 Rf8l'I:'~JOIAO ~H l

';I - 1()(' ':t ( R£ f I':J>

Oftt'U' I ':()f Oft':

communic::uion is a memb~.:r or agent of al Qaeda or an aHil iat~d terrorist organization.

:! Nonl.!thd~!>S. plaintiff!>. alkgc that the '\~A ind i-..criminatdy ink·rcept:; th~ wntcnt,,f

comnwni<.:a:ions of mi Ilions of ordinary t\m~ricans. Set: e.g . Jcu·cf Complaint • ' 7. 9. l 0: see
Shubert SAC ~· I , 5. 7. As the Government has also previously stated. -II plainti lrs· <.~llegation
that the NSA has undertaken indiscriminate surveillance orthe content"~ of millions of

.. communil·at ions sent or rccei,·ed by people inside the Unired Swtes after 9/11 under the TSP is
I
t31se. But to the e;.;tent th~ NSA must Jcmon:,tr;l!e that content :;un l..'illance under the TSP WJS

I) so Hmired. and was Tlllt plaintiff..;· alleged content ··dragnet... or Jemonstrate that th~ '1\JSA hus no
10 otherwise engaged in the alleged content "dragnet:· highl~ da..;si tied NSA intell igence sources
II
and m~·thods about the operation of the TSP and current NSA intelligence activities would be
12
IJ su~ject to disclosure or the risk of disclosure. The disclosure or whether and to w hat extent the
II NSA uti liLcs certain imellig~o:nce sources and methods wou ld rev~:·al to fo reign advns<~rks tht:
IS '\SA·s capabil ities, or lack thereof. enabling Lhem to either C\ adc particular channels of
l (l
communical ions that are bt!ing monitored_ or exploit channels of communications that are not
17
subject toNS.-\ acti vities- in t>ither case risking exceptionally hrrave damage to national security.
IX

19

20

21

11 '

(U) See Public D~claration of D~:.·nnis Blair. Di rector ., r ~ational Intelligence.

•· 15 (April 3. 2009) (Okt. 18-3 in .JeH·ef action (08-cv-4.17)): Public Declaration or Deborah tl..
Bonanni. National Security Agency ,I 14 (Dkt. 18-4 in .Je,n·l <H.:tion (08-cv-4373): Public

Declaration of Dennis Blai r. Director of Nationa l Intelligence, ,!15 (October 30. 2009) (Dkt.
27 680-L in .\'hubal act ion (MDL 06-cv- 1791 ): Public Dec laration o f Lt. Gen. Keith B. Alexander.

ationa! S~.:curity A gene~ ., 19 (Dkl. 680-1 in Slwherl action (M DL 06-cv-179 1).

.t! (U) The tenn ··~ontent"· is used hacin to refer to thl' substance. meaning. or purpon ol a communication as de lined in 18 U.S.C. ~ :251 0(8}.

< la"ilh.'\1/11 ( am.•r,, Lt l'urt. lk, l..tr.lllon of I ranc.."' J l lc:-.<h. ' JI10n.d ')\.'\:Unt~ \~.:n~'

("urol,lll /,~ad c'ltlfl \,/l•m~o~/\r,,n/1 1.1!0:/ICl t.'lti/J"\:> OK...:\ ·-I!r-'3-J\ \\J

I{

1 UP ' ;I '( RF T 1 Ff:P 11:1 -

.EJRCf Pc ' qt) J t;JP;

TE9P' !";I :CRET//'fMPNS I -

NOR: COt<L'JJOPOR:H

(a) (V) Information Rela ted to the Terrorist Surveillance Progra m

2

63. (U) First. a range of operational details concerning the Terrorist Survei llance

3 Program remains properly classified and privileged from disclosure, and could not be disclosed

to address plai_ntiffs' content ··dragnet" allegations incl uding the followi ng TSP- relatcd

5
in tonnat ion.
6

7

64. ('f"'f?f"'f8'SIN80'PJF' First. interception of the content of communications

under the TSP was triggered by a range of information. induding sensitive foreign intell igence,

9 obtained or derived from various sources, indicating that a particular phone number or email
10
address was reasonably believed by the U.S. Intelligence Community to be assoc iated wi th a
II
member or agent of al Qaeda or an affi liated terrori st organization. Profess ional inte ll igence

13 officers at the NSA undertook a careful but expeditious analysis of that infom1ation, and I-I considered a number of possible factors, in determining whether it would be appropriate to target 15 a telephone number or lntemet selectors under the TSP. Those factors included whether the
I&
target phone nwnber or email address was: ( I) reasonably believed by the U.S. lntell igence
17
Community, based on other authorized collection activities or other Jaw enforcement or
18
19 intelligence sources. to be used by a member or agent of al Qaeda or an affiliated terrorist 20 organization·
21
22 23 24
25
26
27
28

(Miera.

ranCt''>

1 ~t:h . National

Co.rof.Fn )t'H·d el ol. ,., National Seom~, . : IRC'/1('1'. t'l of. (No. 08-cv-48 73-JSW)
'f'<"'f' !JLCttl. /L /iftiPN~l -//OR:CE9?t'mUrORH

2

3

·I

5
65. f'f!ih'ifSPIIS:I1/8C'P'4F) Once the NSA determined that there were reasonable
6
7 grounds to believe that the target was a member or agem ofa l Qaeda or an aftiliated terrorist
s organization. the NSA took steps to focus the interception on the specific al Qaeda-related target

9 and on corrununications oftbat target that were to or from a foreign count ry. In this respect. the

10
NSA 's collection efforts

that the NSA had

II

reasonable grounds to believe carry the ·'one-end foreign·· communications of members or
12

13 of al Qaeda or affiliated terrorist organizations.

1-t

66.

15

16

17

18

19

20

21

22

2.3

2-t

25

26

27

2S

13

68. (TSSTSP#SJ//OC~f) The NSA took specific st-eps i.n the actual TSP

14 interception process to minimize the risk that the communications of non-targets were

15 intercepted. With respect to telephone communications, specitlc telephone numbers identified

16
through the analysis outlined above
17
18

so that the on ly communications

19 intercepted were those to or from the targeted number of an individual who was reasonably

believed to be a member or agent of al Qaeda or an affiliated terro rist organization.
21

:?.2

23

24

25

2(1

27

('l as.~i lkd /11 Co111era, E-r ?nne D~clar<Hivn of France~ J. Fleisch. National S.:.:uril) Ag.erH.:~

Caru!Fn .li!ll"d e1 of. r·. .Va1ional Securil\" .·ll?CIICI'. e1 al. (No. Olh:v-487J-JSW)

.

TOP SEE'~ET.'iFSPl/EJI -//OA:fO?J.'N OFORN

J e5f' 31!( ft t~.'F/t'F~t· /itJI -//ORCOtJ/tJOI 'ORH
69. (T:S;%qleP#SIX8 0'tJP~ For the interception of the content of Internet

2 communications tUlder the TSP, the NSA used identifying infonnation obtained th rough its

J analysis of the target_ such as emai l addres

to target for coJlection the

4 communications of individuals reasonably believed w be members or agents of al Qaeda or an
5
alii liated tertorist organization.

7

The NSA did not search the content of the

10
communicati

with "key words" (such as '"wedding·· or ·'jihad"') other

II
than the targeted selectors themselves. See Jewel Complaint~ I I; Shubert SAC~~ 70, 72
12

IJ (alleging key word searches on communications content). Rather. the NSA targeted for

14 collection only Jntemet add

associated with suspected

15 members or agents of al Qaeda or aftiliated terrorist organizations, or communications in which

16
such

were mentioned. In addi tion. due to technical limitations of the

17

hardware and software, incidental collection of non-target communications occurred, and in such
IR

19 circumstances the NSA applied its o1inimization procedures to ensure that communications of

20 non-targets were not disseminated. To the extent such facts would be necessary to dispel

21 plaintiffs· erroneous content ''dragnet'· allegations. they could not be disclosed without revealing
22
highly sensitive intelligence methods."' 5

24

70. f'fS/l"FSfh'SIH8 CH'I f ) In addition to procedures designed to ensure that the TSP

2s was limited to the international communications of aJ Qacda members and affil iates. the NSA

26
2i 28

Cla."siticd 1'1 Camero. E.~ Parte Ocdaration ol' Fr~tnct'S .1. Flc·isch. National Sel'urit) Agency

Carui\'IJ .Jewel. eta!. I', ·\atiouaf Se('uritv . l gCIIC:\', el at. (No 08-cv-4873-JSW)

.

TOP' f:n:ti~tl liT~ I~//~ 1 - ·/o~COTM~OFOrt~ ~

·reP 8Cflt12 r/;'if'OP//81 -

.'.'0RCOtJ/HOFOFHJ

also took additional steps to ensure that the privacy rights of U.S. persons were protected.

2 J -1

6 7

9

I (I

II

12

lJ

I..J

15

16

17

18

19

20

21

~6 (TSA<r~~t:'~I//Qf&/~W) rn addition. in implementing the TSP. the NSA was directed
22
by the President to minimize the in.fonnation collected concerrung American citizens. to the

23 extent consistent \vith the effective accomplishment ofthe mission of detection and prevention o

acts of terrorism within the United States. The President fi.Jrt.her directed that any failure to

2-1 adhere to the provisions of the authorizations should be reported to the President. Accordingly,

25 NSA applied its existing Legal Compliance and Minimization Procedures applicable to U.S. persons to the extent not inconsistent with the presidential authorizat ion. See Unjted States

2(> Signals fntelligence Directive (USSID) 18. These procedures require that the NSA refrain from

intentionally acquiring the communications of U.S. persons who are not the targets of its 27 surveillance activities, that it destroy upon recognition any communications solely between or

among persons in the U.S. that it inadve11ently acquires, and that it minimize all U.S. person

identities in intelligence reporting unless a senior NSA official determines upon individual

request that the recipient of the report requires such infonnation in order to perfonn a lawful

function assigned to it and the identity of the U,S. person is necessary to understand the foreign

intelligence or to assess irs significance.

Clas~itkd In Cuml'ra. Ex Parte O~ciMati on n iTranc~~ J. Fl~isdt Natio11al <\ecurity Ag~::n<:y

Caroll'll Je11 .;/. e1 af. 1·. ,\'ational S<'<"ll!'ill· ..l~,,n, r. n a/. ( No. 08·cv-4 87.l-hWI

5

.

ft'JI2 ~E:CiftEif .T:ti'/.'8 1--

NO:RCOPVHOFORtJ

11
about the targeted scope of content collection under the TSP could not be disclosed, in order to
12
address and rebut plaintiffs' allegation that the NSA, with the ssistance of AT&T and Verizon,

1-i engaged in the alleged content "dragnet,"' without revealing s cilic NSA sources and methods

15 and thereby causing exceptionally grave damage to the nation I security

16
(b) ff~//BI//8€/'PJf) Information Related to Content Surveillance

17

Under Other Authority

IS

72.

19
TSP, infonnation concerning other NSA intelligence activities. sources, and methods wo uld be a
20
risk of disclosure or required to address aJlega ti ons or prove that there has been no ··dragnet..
2 J

12 program authori zed by the President after 9111 under whic h the NSA intercepts the content of

23 virtually all domestic and international communications as the plaintiffs al
24 25 26 27

.28

C la:.sitkd In ('amt'm. £x Porte Dcdaralivn or Franl·c;; J. f-ldsch. National Sccurily Ag~ncy

< ·am~,.,, J,·..·el. L'f a/ ,._ A'mional Securny .l)(l'IICT. <'I al. {No. OR-l·1'·4lP3- JS WI

l012 eECR£1 ' f!!iP/.'8 1-

'i OR:COtMJOFOR:H

10
73. fFS//SINOC'l'ff) In addition, as outlined above. the content surveillance
II
activities authorized under the TSP were transitioned in January 2007 to FlSC-authoriLed
12
[J electronic surveillance under Title I of the FISA and then, subsequently. to the Protect Am nca
1-l Act of2007. and then ultimately under Section 702 of the FISA Amendments Act of2008. 15 Again, wh.i le the statutory authority is publicly known, the operational details of the survei lance
16
activities remain highly classified. NSA continues to utilize sources and methods for content
17
surveillance similar to that utilized under the TSP whereby the conten t of international telephone
I&
)') and lntemet communications are captured
2()
21
22
13
25
26 27 28

Classili.::u In< ·am.:ru. '-' Purt.r Dedara tion of frances J. Fleisch. Na1it>n<1l Sc~:uri1 ~ t\g.:n'.''

Caro~l'll }l!lH!I. 1!1 a/. \·. :\auonal Se<u ril.t /,".;!enr.t ·. el of. (No. 08-cv-48 7.3-J~ W)

"fOP SLC R: [ l-N5P.lP//!j i-

.'/ORCO? VNOFORN

- • - •-
selectors reasonably

2 believed to be associated with terrorist targets, includ in 3 Disclos ure of particular sources and methods utilized under the TSP. in order to litigate

plaintiffs· "dragnet·· allegations under presidentia l authorization. would compromise the use of
5
similar sources and methods today. And disclosure of these sources and methods as currently

utilized. in order to demonstrate there is no ongoing surveillance "dragnet:· as alleged, would
7
likewise compromise vital intelligence collection operations under FlSA and other authority and.

9 again, cause exceptionally grave damage to current efforts w detect and prevent terrorist

1IJ attacks.48
II
2.
12

(U) Plaintiffs' Allegations Concerning the Collection of Communicatjon Records

D
74. (U) Ptaintitfs also allege that the NSA is collecting the private telephone and
14
Internet transaction records of millions of Americans. again including information concemi.ng
15

16 the plaintiffs' telephone and lntemet communications. See, e.g.. Je'l-l'el Complaint

17 ~~ 7, I0. 11. 13, 82-97; see Shubert SAC~ l02. To address these allegations would risk or

18 require disclosure of NSA sources and methods and reasonably could be expected to cause
19
exceptionally grave damage to national security.
21}
75. (i't'Sh'SI//8C/~4P) In addition to implicating the NSA's content collection
21
22 activities authorized after the 9111 attacks. the plaintiffs' allegations put directly at issue the

48 ('f\~//:~H//6e/Nfi') To the extent relevant to this case. additional facts about the 24 operational details of the TSP ru1d subsequent FISA authorized content surveillance activities

25 could not be disclosed without causing exceptionally grave damage to national security. including for example infonnation that would demonstrate the operational swiftness and

26 effective

futili ·

· ·· ·

27

28

, m cOnJuncllon wt meta

ton

sen

n.

the NSA to obtain rapidly nol only the content of a particular communication, but connections

between that target and olhers who may form a web of al Qaeda conspirators.

Cla~,i l'led In ( ·amcra. r:;x Port~ D~claration of Fr.Jnc~s J. Flcisd1 . N:ui<>nal St·curi•y Agency

Coro~~·11 ./ewt-1. ''I a/. ''· Nmional Securill' .1genrT. et (1/. (No. 08-C\ -4873-JSW l

5

I 0 1 .!f!t IU! I 11 I .~)1 ti~ I-//6~C61M4'01't>~l4

1012 !if:CR:ET/JTSP/!SI -

:'.'ORCO?UNOFOfUJ

NSA' s bulk collection of non-content communication meta data. As explained above. the NSA

2 has not engaged in the alleged "dragnet" of communication coment, and to address plaintiffs' 3 allegations concerning the bulk co llection of non-content infonnation would require disclosure
4
of NSA sources and methods that would cause exceptionally grave damage to nati onal security.

10
76. (TSh'SIN8Cfi'Jf) The bul k meta data collection activities that have been
I I
undertaken by the NSA since 911 I are vital tools for protecting the United States fro m another
12
13 catastrophic terrorist attac k. Disclosure of these meta data activities, sources. or methods ·ould 14 cause exceptionally grave damage to national security. It is not possible to target co llectio 15 solely on know11 terrorist telephone identifiers and effectively discover the ex istence, local
16
and plans of terrori st adversari es.
17
I~
19
20
21
22 23
25
26 27
Meta data co llec tion and analysis provides a vital and effecti ve
capabi lily to keep track of such operati ves.

C l:ts'<ili.;d /11 Came• a. £,· fa,.te D~lar:1tivn ol'l · r<~nce, J. Fle1:;ch. National Security Agenc)

( "arulm Jewel. e l a/. \' tYrJ/1011(1/ se~·ttrtfl• . l~t'lll"l'. Cl ul. (N,). O~-cv-l8 73 -J SW )

5

.

FOP SE(RCT,4'TSPNS[-.'/01't COtM40FOI\~H

f(H ~~ :cKCF,/T~P', /~ -

i'/ORE'OtNHO I.OR?J

77. (TSNSJNOC'l>JF) In pa11icular. the bulk co ll ection of Internet and telephony meta

2 data allows the NSA to use critical and unique analytical capabilities to track the contacts-

3

ofmembers or agents o

4

5
ontact-chaioing allows the NSA to identify telephone numbers and emai l addresses

that have been in contact with knovm
7

numbers and addresses; in tum, those

8 contacts can be targeted for immediate query and analysis as new

numbers

9 and addresses are identified. When the NSA perfonns a contact-chaining query on a terrorist-
10
associated telephone identifier,
II
12

1-l
15 I (I 17 18 19 20 .21

23
24 25
26 .27

C l a~~ilit:d In Crm1ero. Fx 1'11rt~: Declaration ofFram:..:~ J. Flei~t'h. National S..:~:urit~ /\gene}

Camlrn Jeu·,d. (!/a/ I' \ 'a/IIJI/{1/ s.' {"l/Vifl". il?t'IJC\", el al. (No. US-..:v-4873 -JSWl

.

I C51" gpt.ltt.T;>rJf i '~ 1 -//0RCOt~t'fiOFOR:H

2 J

5 6 7 8

10

I I

12

13

14

15

l6

17

18

I\)

80.

Because it is impossible to determine in advance

20 which particu lar piece of meta data wi II tum out to identify a terrorist, collecting meta data in

.21 bulk is vital for the success of conract-chaini

. NSA analysts knO\v that th

22
terrorists· telephone calls are located somewhere in the billi ons of data bits: what they cannot
23

24 know ahead of time is exactly where. The ability to accumulate meta data substantially inc

25 NSA ·s ability to detect and identity these targets. One particular advantage of bulk meta data

26 collection is that it provides a historical perspective on past contact activity that cannot be
27
captured in the present or prospectively. Such hjstoricallinks may be vital to identi1ying new
28
targets. because the meta data may contain links that are absolutely unique. pointing to potential

( 'las~ i ti cJ f, Camera. 1-:.x l'arte Dedar;Jiion o(' frances J. Fki:;ch. Nalional Scturil) Ag.~:.nt') Camlrn .leH·el. "'nl. ,.. .\'alional St>curily Axcncy. t'l ol. (No. 08·t:V··I8 73·JSW J
f 012 8ECft:ET//T9P//S I -//ORCOt0i0 fOR~J

2
J

7

These sources and methods enable 1he NSA to segregare some of that very

8 small amount of otherwise undetectable but highly valuable inJonnation from the overwhelming

9 amount of other infom1ation that has no intelligence value whatsoever- in co lloquial tenns. to
10
lind at least some of the needles hidden in the haystack. If employed on a suflicjent volume of
II
raw data. contact chaini
12
IJ contacts that were previously unknown.

14

IS

16

17
82. (T~II,.~ P/I~IJ1et::J'I'41') As explained above. the bu lk meta data collection
18
19 activities that began under presidential authorization were transitioned to the authority of the

20 FISA in July 2004 (PRTT Order for Internet meta data collection) and May 2006 (Business
21 Records Order for telephony meta data collection). The PRTT Order was in e!Tect until
22
December 20 II and the Business Records Order remains in effect. Thus, long after the
23
presidential authorization expired, NSA continued bulk meta data collection activities under
24
25 FfSA authori ty

26

27

28

Cl a~~i lit-J In Camera. Lr Parte Dccl:tr.-nion or Frances J. Ft.:isch. National Security Agency

Corvlyn .lcll"e/. <'I a/. 1·. ;\atumal Securtty I.!Zency. el a/. (No. OS-cv-t 87J-JSW)

TOF ~JECRCl -'T!'iP.'/S I-

NORCOtM40f'OI\i4

1 J

5 6
7
8

10 I I 12

13

14

15

83. ('fSh'SII/OC!!'JF) Accordingly. adjudication of plaintiffs' allegations concerning

16
the collection or non-content meta data and records about communication transactions would ris
17
or require disclosure of critical NSA sources and methods for trackin~ contacts of
18

19 terrorist communications as well as the existence of current NSA activities under Fl

20

Despite media speculation about these activities. official confirmation and disclosure

21 ofthe NSA' s bulk collection and targeted analysis of telephony meta data would confirm to all

2.2
of our foreign adversar·

the existence of these critical

intelligence capabi litles and thereby severely undermine NSA 's abilit y to gather information
1-1
25 concerning teJTori st connec tions and cause exceptional ham1 to national securit y.

26 27 28

or C las_,ified , , Camera. t·:..y f'(ll"/(' D.:d ar olti on PraJICl::' J. r kisch. \:..ui onal '\ecuri ly Agcm·y

Cam~m .ll!lrel. e1 a /. ,._.\'ational Securi11· . f.!!ency. (>I al.

SW)

l'OP 8ECRET//TSP/.'!ii -

.'/ORCO?Vt40FOR:t<

3.

( L~li~f)}~e>T41") lnform atioo Co ncerning Current FISA Authorized

Activities and Specific FISC Orders

84. (TSA'Ii'SPNBI//8€/~lf) I am also supporting the DNI"s state secrets privilege
J
assertion. and asserting NSA ·s statutory pri vilege. over information concerning the various

5 orders of the Foreign l.ntell igence Survei Ilance Court mentioned throughout this declaration that

authorize NSA intelligence collection activities, as wel l as NSA surveillance activities conducted
7 pursuant to the now lapsed Protect America Act C'PAA"") and current activities authorized by the
8
FISA Amendments Act of 2008. As explained herein, the three NSA intelligence activities

10 initiated after the September I I atlacks to detect and prevent a further al Qaeda attack-(i)

11 content collection of targeted al Qaeda and associa ted terrorist-related communications under

12 what later was called the TSP; (ii) internet meta data bulk collection: and (iii) telephony meta
13
data bulk collection-have. beginning in January 2007. July 2004. and May 2006 respectively,
14
been conducted pursuant to FISA and are no longer being conducted under presidential
15
I(I authorization. FISC Orders authorizing the bulk collection of non-content transactional data fo r

17 internet conununications commenced in the July 2004 FISC Pen Register Order and expired i.n

18 December 20 II, and FISC Orders authorizing the bulk collection of non-content telephony meta
19
data commenced i.n May 2006 and remain ongoing. Tile existence and operational details of
20
these orders remain highly classified, and disclosure of infonnation concerning the orders would
21
22 cause exceptional harm to national security by revealing the existence and nature of still sensitiv
intelligence sources and methods.49 In addition, wh.i lethe Government has acknowledged the
24

25

4
Q

('fS//Sis'/8Ch'Jf)

For

this

reason.

the

FISC

Telephone

Business

Records

Order

26 prohibits any person from disclosing to any other person that the NSA has sought or obtained the

telephony meta data, other than to (a) those persons to whom disclosure is necessary to comply 27 with the Order: (b) an attorney to obtain lega l advice or assistance with respect to the production

2f< of meta data in response to the Order: or (c) other persons as pe1mined by the Director of the FBI or the Director's designee. They further provide that any person to whom disclosure is made

pursuant to (a). (b). or (c) shall be subject to the nondisclosure requirements applicable to a

person to whom the Order is direc!ed in the same manner as such person. The bulk Pen Register

orders say that the telecommunications companies who are served with them shall not ..disclose

Cla...~i licd ''' Com!'t"ll. £x Parte l)cci<U"Jtion of Fra oc.:~ J. Fkisch. Ni1l i<>Oil l S.:curily :\gen.:;.

( ·arolyn Jt?wel. et (1/ v. :\'atiu,,t! Secrmtv Agemy I!I al (

W)

6(

general ex istence of the January I0. 2007 FI

ers autJ1orizi ng electronic survei !lance

simi Jar to that undertaken in the TSP, the content of those orders, and facts concerning the NSA

3 sources and methods they authorize, cannot be disclosed without likewise causing exceptional 4 hann to national security. Likewise, the part ic ul ar content surveillance sources and methods

utili zed by the NSA pursuant to the PAA and, cunent ly, under the FISA Amendments Act of
6
2008, likewise cannot be disclosed. For these reasons, the privilege asse11ion by the DN I, and
7
8 my assertion of NSA ·s statutory privilege. encompass the FISC Orders and the sources and

9 methods they concern.

10
4. (lJ) Information Concerning Plaintiffs' Allegations that Telecommuni cations

II

Carriers Provided Assistance to the NSA

12

85. (U) The tina) major category of NSA intelligence sources and methods as to

13
which I am supporting tJ1e DNI's asset1ion ofprivilege, and asserting the NSA's statutory
14
privilege. concerns information that may tend to confirm or deny whether or not AT&T and
15

16 Veri zo n (or to the extent necessary whether or not any other telecommunications provider) has

17 assisted the NSA with alleged intelligence acri viti~s. 50 The Jewel plaintiffs and three of the

Shubert plaintiffs allege that tbey are customers of AT&T. and that AT&T participated in the
I~
alleged surveillance activities that the plaintiffs seek to challenge. Additionally. at least one
20
Shubert plaintiff also claims to be a customer ofVerizon. and that Verizon similarly participated
21
22 the exisrence of the NSA ·s investigation. or the pen registers and/or trap and trace devices unless and until ordered by the Court."
14
25
26
27
28

TOI' !: I .Cit l. l . I !iP 'til-

'OH:CO ' : ' :0 1HIUc

in the alleged surveillance activities that the plaintifts seer.. to chal lenge. Confinnation or denial

2 of a rdatinnsn ip bl.'tween thl.' ~S. \ and.\ r&T. \·L·,i ;on. or any utllL·r t~o.·l~o:communication carrier on aJieged inte lligence aui,·iti~::. would cau~~ excepti•maJiy grave damage lO n:llional s~cu rity.
or Confirming or den~ ing <,th.:h allegat io n~ :l..;,i:;t;.~nL:-.· wou ld reveal to foreign ad' t:r~:..tries

(>
compromise actual sources and methods or revecl l that NSA does not uti li%e a particula r source
7
and method. Such facts v.:ould allow indi viduals. to inc lude America·s adversaries. to
'.1 accumulate information und draw conclusions abo ut how the U.S . Government collec ts
I (I
commun icat ions. its techn.icnl capabilities. and its sources and methods. Any U.S. Government
II
con firmation or d('ninl \\t)uld rt"place specu lati on with certaint~ tor hust ik t(n~:ign adversaries
12
IJ who are balancing the risk t.hat a part icular channe l of commuoication may not he- secure agai nst
I-I the need to con:ununicah:: cfficicmly. Such confirmation or denial would ~dltn\ ad\ cr:"<uies to
" tocus with certai nty on a panicular channel that is ~ecur~.5 1
1(\
86. (U) Indeed. Consrress reco~'lliLcd the need to protect the identities of
17
telecommunications carriers alleged to ha' l' assisted the NSA wben it enacted provisions of 1he
I~
19 FISA Amendments Act of2008 that barred lawsui ts against telecommunication caniers aJieged
to have assisted the NSA aller the 9/11 altacks. In enacting thi s legislation. the Senate Select
:!l Committee on Intelligence. after extensive oversight of the Terrori st Survei ll ance Program.
tound that ..elect ronic surveillance for law enfun:~:ment and intelligence purp~,:;~..·s depends in

2-l

15
.:'I ( l ' 1 For C'xampk. if 'S:\ wt:rc to admit publicly in response to an infom1~tion requ~..·st that uo relationship ''ilh teh:~,;ommuoications companies 1\. B. and C ex ists, but in n.::'ponse to" s..:para1e information rcques1 abo ut company D stat~ only that no r~spon sc could b~ maJe. this \\(ltdJ give rise to the inll:rt>m:~ rbat NSA has a r\.'lcoJtionship with compnny D. Owr time. thl: a<:cumulation of thv~L· in fcr.:-nces would disclose the capabilities (sourc~s and rm:thods) ofNS.\'s
intelligence activities nnd infonn our advl!rsnrics of the degree to wh.ich 1\S:\ can successfully exploit particular communications. Our ad\1-~rsaries can then develop countermeasures to thwart
NSA ·s abilities to collect rheir commun ications.

Classili..:d In Camem l~r: l'nrtc lkd aw rion orFrunn·:- J H cbd1. J'; ational !:kcuriry t\gcm:~

<'om(l'll .lewd e1 a/. 1· \'ational 'i4!omf\ IJ::o.'l/<:1 , .:r ul. IN n. Oll·C\ - 187J-J"i\\')

6

1OP SL::':C RF J '/TS P/."H-

.4 o nco~, I>JOI 'OIHJ

great part on the cooperation of private compames operate the nation's telecommunications 2 system." S. Rep. I I0-209 (2007) at 9 (accompanying S. 2248. Foreign Intelligence Survei \lance _, /\ct of 1978 Amendments Act of 2008). Notably, the SSC I e:<pressly stated that. in connection
with alleged post-9/ll assistance. "it would be inappropriate to disclose the names of the
s
electronic communication service providers from whjch assistance was sought. the activities in which the Government was engaged or in which the providers assisted , or the detaj\s regarding
7
any such assistance.·· /d. The Committee added that the '"identities of persons or entities vvho l) provide assistance to the intelligence community are properly protected as sources and methods
10
of intelligence.'· /d.
11
87.
12
14 15 to 17
18 19 20 21 22 B
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Cla~$ilied In Cam11ra. L\ P(lrte Declaralion of France<> J. rlcisch. Nalional ')l·curil~' Ag<:nl'Y
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"fOP SECI~C-1 '/, TSP.'/S I-.'/ORCOtONO FO IU I

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Caro~m }l!wel. <'I a/., .. ."Vmimw/5)ecurity Agency. eta/. (No. 0~-~·v-.1873-JSW)
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Cl:~s~iticd In Caml!l'a. Ex Porte Dech1ra1ion <•f Fr-aO('cs .1. Fleisch. Nalional Sccurily Agcnc)

Carn~v11 Je wel. el at. 1'. i\'ational Sec·w'lf.\ . lgen~:v. et at. ( N ( ' I _ . .SWl

TOP ~EC R:E'f//T~ Pft'S I

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Classified In Camera. Ex Parte Declaration of Frances J. Fleisch, National Security Agency

Carolyn Jewel. eta/. v. National Security Agency, et al.

W}

2 3 4 5 6 7 8 9 10 II 12 13
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15 16 17 18 19 20 21 22 23 24 25 26 27 28
Classified In Camero, £x Parte Dedaration of Frances J. Fleisch, National Security Agency Carolyn Jewel. et al. v. National Security Agency, e1 a/. (No. 08-cv-4873-JSW)
TOP SEGRfT//'i'SJ'//8 1-NOI H!'O~U~JOl'OFHJ

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amera.

on o ·ranees J.

S..:,urity Ag~ncy

Carol\'11 .lrwel. et uf. 1·. National S('CIIrtl\' ..l~t>nc\·. et of. (No. 08-cv-4873-JSWI

.

TUP SECRl:·u>n:W//SI-

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2-l
:!5 VII.

(U) Risks of Allowing Litigation to Proceed

26

I 12.

27
facts. and issues raised by these cases. it is my judgment that sensitive state secrets are so central
28
to the s ubj ect matter of the litigation that any attempt to proceed wi ll sub$tantially risk the

or Cla~~ilkd l11 ('amem. b Parte Dcclarmion Frances J. J' ki~h. Na tional Sccuril) Age ncy

( 'aro~l'lt .Jewel. et at. ' '· l\·crllon(l/ Securi~l· .·(.f!ency. e1 of.

SW)

H~P C.iECRJ:T/!T8P.'.'81- ' '0RE'Otl.'tiOJAOIHl
di sclosure or the privileged state secrets described above. Although plaintiffs· alleged contenl

surveiIlance '"dragnet'' did not and does not occur. proving why that is so.

3

would direct ly implicate

4 h.igh.ly classified intelligence int(mnation and activities. Similarly. attempting to address
5
plaintiffs' allegations with respect tO the bulk coll ec tion ofnon~content information and records
6
con tai ning transactional meta data about communications would also compromise currently
7
8 operative NSA sources and methods that are essential to protecting national secu rity. including

9 for detecting and preventing a terrorist attack.
10

J I

12

IJ

lo my j udgment, any effort to probe the

14 outer bounds of such classified i.nfonnation would pose inherent and signi tica.nt risks or the

disclosure of that infonnat1on. including criticall y sensitive information about NSA sources.
16
methods, operations, targets, and relationships. Indeed, any effort merely to allude to those facts
17
in a non-classified fashion co uld be reveal ing of classified details that should not be disclosed.
18
Jl) Even seemingly minor or innocuous facts. in the context of these cases or other non-classified
20 information. can tend to reveal, particularly to sophisticated foreign adversaries. a much bigger
21 picture of U.S. intelligence ga thering sources and methods.
22
11 3. (TfSN~IJ.!tlf1 The United States has an overwhelming interest in detecti ng and
23
24 thwarting further mass casua lty attacks by al Qaeda and olher terrorist organ.izations. The Unite
25 States has already suffered one massive attack that killed thousands, disrupted the Nation's
26 financial center for days. and successfully struck at the command and control center for the
27
Nati on's military. AI Qaeda and other terrorist groups continue to pursue the ability and have

clearly stated an intent to carry out a massi ve attack in the United States that could result in a

Clns~i linl In Camer(l. I.'" Purtt· I )(·l." laratiou of h<tnt'\':i .1. Fk1~ch. Nl'ltiona l Securily /\ge-ne>

ConJ/yn )t:'ll"t'l. <'I a/.,..~,,f!mlal Si!{'ltdf_t· lga"Y· e1 al <N

SW)

7

~~~~~~

significant loss of lite. as "ell as have ad~'

114. (TSHSI:%'!"Jn As s~·t fiHih above. terrorist organi7.ations around the world seeks to

use our own communicntions infrastructure ::JgCJinst us as 1hey secretly anempt to infihrate agents

into th~ I ::1ited States. wai ting 10 artack Cll a time of their choosing. One of the greatest

challenges the United Stales confronts in the ongoi ng effort to prevent another catastrophic

terrorist anack against the Homeland is the critical need to gather imel!ige nce quickly and
7
effectively. Time is ofthe ~'iS~'IH.:e in pn:\~·ntill~ tcmJrist ~lllads. and th.: g c'\\.'rlllnCnt ra~·I.'S

1) significant obstacles in finding and tracking terrorist operatives as they manipulate modem

10 technology in an al1empt to communicate ~vvhile remaining undetected. TheN~'\ sources.
II
methods, and activities tkscribed herein are vital tools in this effon.
12
13 VIII. (U) Conclusion

II

I 15. (U) In .sum. I suppon the DNI':-; a=-~~rtion of the state secrets pri\'i lege and

'" statutory pri,·ilege to prevent 1he disclosure of the information described herein and detailed
If>
herein. I al~o assen a statutory pri vileg~ under Section 6 of the Natiooal Security Agency Act
17
with respect to the infonmttion described herei n which concems the functions and acti vities of
18
19 the NSA. Moreover. because proceedings in thi s case risk disclosure of pri vileged and classified

20 intelligence·related information. I respl."!ctfully request that the Coun not only protect that 21 information from disclosure but also dismiss this case to prevent exceptiona l harm to the national

sec.:urity of the l.!nih..·d St~ltt•s.

:H

I declare under penally of perjury that the foregoing i~ true and correct.

~t. DATE: ~ , II . I z_
27

d .. 'l a tL ceJ '@:- ~LLtJ c. IJ
Frances J. Fleisch
Executi ve Director
Nation<ll Security Agem:y

C'·•"ilicd /1: ( am.•ra Lr Part< IA.••:I.trJtillO <1CI ran~.., .I 1 1\:i"-'h. '\':~twnal ~..-.:unt) \~icn-.' Crtmhll.h'"lc,/ 11 a/ ' \arum.II \ ·,urm 1~.·1141 <'!rtf 1'-u ON-e~ - Hn3.J">\\ 1