fl.,ry~. ~~!u,.(J~·B'BNN,,Y17?878~~1 ~ Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page1 of 32

1 CINDY COHN (SBN 145997) cindy@eff.org LEE TIEN (SBN 148216)

RrmAeCnHy@AEkLv.n.comEE~.N..N,,·'';,'.Y.,I/ io) //.·"·. 0q. )
MICHAEL.,SFKWUN (SBN'1I98 .

KURT OPSAHL (SBN 191303)

BENJAMIN :W..,BERKOWIlTZ{SBN 244441)

3 MATTHEW ZIMMERMAN (SBN 212423) KEKEERR& VAANN'N'NEESSTT/L/LL'PLP,'",,

MARK RUMOLD (SBN 279060)

633 Battery Street

·' ·,

4 DAVID GREENE (SBN 160107)

San Francisco, California 94111

/G /'~fI~/G55

JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street

Tel.: (415) 391-5400; Fax: (415) 397-7188 RICHARD R. WIEBE (SBN 121156)

San Francisco, CA 94109

wiebe@pacbell.net

Tel.: 415/436-9333; Fax: 415/436-9993

LAW OFFICE OF RICHARD R. WIEBE

7

One California Street, Suite 900

THOMAS E. MOORE III (SBN 115107)

San Francisco, CA 94111

8 tmoore@moorelawteam.com

Tel.: 415/433-3200; Fax: 415/433-6382

THE MOORE LAW GROUP

9 228 Hamilton Avenue, 3rd Floor

ARAM ANTARAMIAN (SBN 239070)

Palo Alto, CA 943001I

aram@eff.org

10 Tel.: 650/244-1500; Fax: 650/798-5001

LAW OFFICE OF ARAM ANTARAMIAN

1714 Blake Street

11 Attorneys for Plaintiffs

Berkeley, CA 94703

Telephone: (510) 289-1626

12

UNITED STATES DISTRICT COURT

13
£ UIFo13 NORTHERN DISTRICT
14
cC 1tt!: 3 FIRST UNITARIAN CHURCH OF LOS

:UIFO~u
y:+SE

3287

15 ANGELES; BILL OF RIGHTS DEFENSE

COMMITTEE; CALGUNS FOUNDATION, )

16 INC.; CALIFORNIA ASSOCIATION OF

)

FEDERAL FIREARMS LICENSEES, INC.;

) COMPLAINT FOR

17 COUNCIL ON AMERICAN ISLAMIC

) CONSTITUTIONAL AND

RELATIONS-CALIFORNIA; COUNCIL ON ) STATUTORY VIOLATIONS,

18 AMERICAN ISLAMIC RELATIONS-OHIO; ) SEEKING DECLARATORY AND

COUNCIL ON AMERICAN ISLAMIC

) INJUNCTIVE RELIEF

19 RELATIONS-FOUNDATION, INC.; FRANKLIN)

ARMORY; FREE PRESS; FREE SOFTWARE )

20 FOUNDATION; GREENPEACE, INC.; HUMAN)

RIGHTS WATCH; MEDIA ALLIANCE;

)

21 NATIONAL ORGANIZATION FOR THE

)

REFORM OF MARIJUANA LAWS,

) DEMAND FOR JURY TRIAL

22 CALIFORNIA CHAPTER; OPEN

)

TECHNOLOGY INSTITUTE; PEOPLE FOR )

23 THE AMERICAN WAY; PUBLIC

)

KNOWLEDGE; STUDENTS FOR SENSIBLE )

24 DRUG POLICY; TECHFREEDOM; and

)

UNITARIAN UNIVERSALIST SERVICE

)

25 COMMITTEE;

)

Plaintiffs,

)

26

v.

)

)

27 NATIONAL SECURITY AGENCY and KEITH )

B. ALEXANDER, its Director, in his official and )

28 individual capacities:; the UNITED STATES OF )

COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page2 of 32

1 AMERICA; DEPARTMENT OF ImDSSTTIICE and )

ERIC H. HOLDER, its Attorney General, in his )

2 official and individual capacities; Acting Assistant )

Attorney General for National Security JOHN P. )

3 CARLIN, in his official and individual capacities; )

FEDERAL BUREAU OF INVESTIGATION and )

4 ROBERT S. MUELLER, its Director, in his

)

official and individual capacities; JAMES R.

)

5 CLAPPER, Director of National Intelligence, in )

his official and individual capacities, and DOES 1-· )

6 100,

)

)
7 ___________________D D__efe_enf_de_a_nnt_sd._a__n_t_s_.)))
8 --------------------------------)

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page3 of 32

-

----

- .~----

1

1. Plaintiffs bring this action on behalf of themselves and, where indicated, on behalfof

2 their members and staff. Plaintiffs allege as follows:

3

PRELIMINARY STATEMENT

4

2. Plaintiffs, as described more particularly below, are associations, as well as the

5 members and staffs of associations, who use the telephone to engage in private communications

6 supportive of their associations and activities, including engaging in speech, assembly, petition for

7 the redress of grievances, and the exercise of religion.

8

3. This lawsuit challenges an illegal and unconstitutional program ofdragnet electronic

9 surveillance, specifically the bulk acquisition, collection, storage, retention, and searching of

10 telephone communications information (the "Associational Tracking Program") conducted by the

11 National Security Agency (NSA) and the other defendants (collectively, "Defendants").

12

4. The Associational Tracking Program is vast. It collects telephone communications

13 information for all telephone calls transiting the networks ofall major American telecommunication

14 companies, including Verizon, AT&T, and Sprint, ostensibly under the authority of section 215 of

15 the USA PATRIOT Act, codified at 50 U.S.C. § 1861.

16

5. The communications information that Defendants collect in the Associational

17 Tracking Program is retained and stored by Defendants in one or more databases. The Program

18 collects information concerning all calls wholly within the United States, including local telephone

19 calls, as well as all calls between the United States and abroad, regardless of a connection to

20 international terrorism, reasonable suspicion ofcriminality, or any other form ofwrongdoing. This

21 information is stored for at least five years. Defendants have indiscriminately obtained, and stored

22 the telephone communications information of millions of ordinary Americans as part of the

23 Associational Tracking Program.

24

6.

Defendants search and analyze the Associational Tracking Program's database(s) for

25 various purposes, including but not limited to, obtaining the communications history of particular

26 phone numbers, which, when aggregated, reveals those numbers' contacts and associations over

27 time.

28

1 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page4 of 32

1

7. Defendants' collection oftelephone communications information includes, but is not

2 limited to, records indicating who each customer communicates with, at what time, for how long and

3 with what frequency communications occur. This communications information discloses the

4 expressive and private associational connections among individuals and groups, including Plaintiffs

5 and their members and staff.

6

8. The Associational Tracking Program has been going on in various forms since October

7 2001.

8

9. The bulk collection of telephone communications information without a valid,

9 particularized warrant supported by probable cause violates the First, Fourth, and Fifth Amendments,

10 as well as statutory prohibitions and limitations on electronic surveillance.

11

10. Defendants' searches of the Associational Tracking Program database(s) without a

12 valid, particularized warrant supported by probable cause violate the First, Fourth, and Fifth

13 Amendments.

14

11. Plaintiffs are organizations, associations, and advocacy groups, their staffs, and their

15 members who are current subscribers to Verizon and other telephone services. Using the

16 Associational Tracking Program, Defendants collect, acquire, retain, and search the telephone

17 communications records ofthe telephone communications ofPlaintiffs and their members and staff.

18

JURISDICTION AND VENUE

19

12. This court has subject matter jurisdiction over the federal claims pursuant to 28 U.S.C.

20 § 1331,5 U.S.C. § 702, and the Constitution.

21

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

22 contacts with this district generally and, in particular, with the events herein alleged, that Defendants

23 are subject to the exercise ofjurisdiction of this court over the person of such Defendants and that

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

25

14. Plaintiffs are informed, believe, and thereon allege that a substantial part ofthe events

26 giving rise to the claims herein alleged occurred in this district and that Defendants and/lor agents of

27 Defendants may be found in this district.

28

2 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page5 of 32

1

15. Intradistrict Assignment: Assignment to the San Francisco/Oakland division is

2 proper pursuant to Local Rule 3-2(c) and (d) because a substantial portion of the events and

3 omissions giving rise to this lawsuit occurred in this district and division.

4

PARTIES

5

16. PlaintiffFirst Unitarian Church ofLos Angeles (First Unitarian) was founded in 1877

6 by Caroline Seymour Severance, a woman who worked all her life for causes such as the abolition of

7 slavery and women's suffrage. First Unitarian is located in Los Angeles, California. Throughout its

8 history members of First Unitarian defined their religious goals in terms ofjustice, equality, and

9 liberty for all persons. During the middle decades ofthe 20th century, First Unitarian provided aid to

10 Japanese-Americans displaced by internment camps, defended free speech against anti-communist

11 hysteria, and protested nuclear proliferation. In the 1980s, First Unitarian provided sanctuary to

12 Central American refugees and, in recent decades, First Unitarian opened its building as a

13 community center for the economically-depressed and ethnically-diverse neighborhood of

14 MacArthur Park. Members of First Unitarian have been quick to engage in difficult work and

15 controversial ideas and are proud oftheir contribution to moving the world closer to justice for all.

16 First Unitarian brings this action on behalf of itself and its adversely affected members and staff.

17

17. Plaintiff Bill of Rights Defense Committee (BORDC) is a non-profit, advocacy

18 organization based in Northhampton, Massachusetts. BORDC supports an ideologically, politically,

19 ethnically, geographically, and generationally diverse grassroots movement focused on educating

20 Americans about the erosion offundamental freedoms; increasing civic participation; and converting

21 concern and outrage into political action. BORDC brings this action on behalf of itself and its

22 adversely affected staff.

23

18. PlaintiffCalguns Foundation, Inc. (CGOF) is a non-profit, membership organization

24 based in San Carlos, California. CGF works to support the California firearms community by

25 promoting education for all stakeholders about California and federal firearm laws, rights, and

26 privileges, and defending and protecting the civil rights ofCalifornia gun owners. In particular, CGF

27 operates a hotline for those with legal questions about gun rights in California. PlaintiffCGF brings

28 this action on behalf of itself and on behalf of its adversely affected members and staff.

3 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page6 of 32

1

19. Plaintiff California Association of Federal Firearms Licensees, Inc. (CAL-FFL) is a

2 non-profit, industry association of, by, and for firearms manufacturers, dealers, collectors, training

3 professionals, shooting ranges, and others, advancing the interests of its members and the general

4 public through strategic litigation, legislative efforts, and education. CAL-FFL expends financial and

5 other resources in both litigation and non-litigation projects to protect the interests of its members

6 and the public at large. CAL-FFL brings this action on behalf of itself and its adversely affected

7 members and staff.

8

20. Plaintiffs Council on American Islamic Relaattiioonnss-- California (CAIR-CA), Council on

9 American Islamic Relations-Ohio (CAIR-OHIO), and Council on American Islamic Relations-

10 Foundation, Inc. (CAIR-F) are non-profit, advocacy organization with offices in California, Ohio,

11 and Washington, D.C., respectively. CAIR-CA, CAIR-OHIO, and CAIR-F's missions are to

12 enhance the understanding oflslam, encourage dialogue, protect civil liberties, empower American

13 Muslims, and build coalitions that promote justice and mutual understanding. CAIR-CA, CAIR-

14 OHIO, and CAIR-F bring this action on behalfof themselves and their adversely affected staffs.

15

21. Plaintiff Franklin Armory, a wholly owned subsidiary of CBE, Inc., is a state and

16 federally licensed manufacturer of firearms located in Morgan Hill, California. Franklin Armory

17 specializes in engineering and building products for restrictive firearms markets, such as California.

18 Franklin Armory is a member ofCAL-FFL. Franklin Armory brings this suit on its own behalf.

19

22. Plaintiff Free Press is anon-profit, advocacy organization based in Washington, D.C.

20 Free Press's mission is to build a nationwide movement to change media and technology policies,

21 promote the public interest, and strengthen democracy by advocating for universal and affordable

22 Internet access, diverse media ownership, vibrant public media, and quality journalism. Free Press

23 brings this action on behalf of itself and its adversely affected members and staff.

24

23. Plaintiffthe Free Software Foundation (FSF) is a non-profit, membership organization

25 based in Boston, Massachusetts. FSF helped pioneer a worldwide free software movement and

26 provides an umbrella of legal and technical infrastructure for collaborative software development

27 internationally. FSF brings this action on behalf of itself and its adversely affected members and

28 staff.

4 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page7 of 32

1

24. Plaintiff Greenpeace, Inc. (Greenpeace) is a non-profit, membership organization

2 headquartered in Washington, D.C. Through a domestic and international network of offices and 3 staff, Greenpeace uses research, advocacy, public education, lobbying, and litigation to expose

4 global environmental problems and to promote solutions that are essential to a green and peaceful S future. Greenpeace brings this action on behalfofitselfand its adversely affected members and staff.

6

2S5. PlaintiffHuman Rights Watch (HRW) is a non-profit, advocacy organization, based in

7 New York, New York. Through its domestic and international network of offices and staff, HRW

8 challenges governments and those in power to end abusive practices and respect international human

9 rights law by enlisting the public and the international community to support the cause of human

10 rights for all. HRW brings this action on behalf of itself and its adversely affected staff.

11

26. Plaintiff Media Alliance is a non-profit, membership organization based in Oakland,

12 California. Media Alliance serves as a resource and advocacy center for media workers, non-profit

13 organizations, and social justice activists to make media accessible, accountable, decentralized,

14 representative ofsociety's diversity, and free from covert or overt government control and corporate 1S dominance. Media Alliance brings this action on behalfofitselfand its adversely affected members

16 and staff.

17

27. PlaintiffNational Organization for the Reform ofMarijuana Laws, California Chapter

18 (NORML, California Chapter) is a non-profit, membership organization located in Berkeley,

19 California. NORML, California Chapter is dedicated to reforming California's marijuana laws and

20 its mission is to establish the right of adults to use cannabis legally. NORML, California Chapter

21 brings this action on behalf of itself and its adversely affected members and staff.

22

28. PlaintiffOpen Technology Institute (OTI), part ofthe New America Foundation, is a

23 non-profit, public policy institute based in Washington, D.C. OOTIlI's mission is strengthening human 24 communication through grounded research, technological innovation, and the reform of political 25 structures; helping to promote affordable, universal, and ubiquitous communications 26 through partnerships with communities, researchers, industry, and public interest groups; and

27 maximizing the potentials of innovative open technologies for poor, rural, and other underserved 28 constituencies. OTI brings this action on behalf of itself and its adversely affected staff.

5 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page8 of 32

1

29. Plaintiff People for the American Way (PFAW) is a non-profit, membership

2 organization based in Washington, D.C. With over 595,000 members, PFAW's primary function is

3 the education of its members, supporters, and the general public as to important issues that impact

4 fundamental civil and constitutional rights and freedoms, including issues concerning civil liberties,

5 government secrecy, improper government censorship, and First Amendment freedoms. PFAW

6 brings this action on behalf of itself and its adversely affected members and staff.

7

30. Plaintiff Public Knowledge is a non-profit, advocacy organization based in

8 Washington, D.C. Public Knowledge is dedicated to preserving the openness ofthe Internet and the

9 public's access to knowledge, promoting creativity through the balanced application of copyright

1l 0 laws, and upholding and protecting the rights of consumers to use innovative technology lawfully.

11 Public Knowledge brings this action on behalf of itself and its adversely affected staff.

12

31. Plaintiff Students for Sensible Drug Policy (SSDP) is a non-profit, membership

13 organization based in Washington, D.C. With over 3,000 members, SSDP is an international,

14 grassroots network of students who are concerned about the impact drug abuse has on our

15 communities, but who also know that the War on Drugs is failing our generation and our society.

16 SSDP creates change by bringing young people together and creating safe spaces for students ofall

17 political and ideological stripes to have honest conversations about drugs and drug policy. SSDP

18 brings this action on behalf of itself and its adversely affected membership and staff.

19

32. Plaintiff TechFreedom is a non-profit, think tank based in Washington, D.C.

20 TechFreedom's mission is promoting technology that improves the human condition and expands

21 individual capacity to choose by educating the public, policymakers, and thought leaders about the

22 kinds of public policies that enable technology to flourish. TechFreedom seeks to advance public

23 policy that makes experimentation, entrepreneurship, and investment possible, and thus unleashes

24 the ultimate resource: human ingenuity. TechFreedom brings this action on behalfof itself and its

25 adversely affected staff.

26

33. Plaintiff Unitarian Universalist Service Committee (UUSC) is a non-profit,

27 membership organization based in Cambridge, Massachusetts. UUSC advances human rights and

28 social justice around the world, partnering with those who confront unjust power structures and

6 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page9 of 32

1 mobilizing to challenge oppressive policies. Through a combination of advocacy, education, and

2 partnerships with grassroots organizations, UUSC promotes economic rights, advances

3 environmental justice, defends civil liberties, and preserves the rights of people in times of

4 humanitarian crisis. UUSC brings this action on behalfof itselfand its adversely affected members

5 and staff.

6

34. All Plaintiffs make and receive telephone calls originating within the United States in

7 furtherance oftheir mission and operations. In particular, Plaintiffs make and receive telephone calls

8 to and from their members, staffs, and constituents, among other groups, in furtherance of their

9 mission and operations, including advancing their political beliefs, exchanging ideas, and

10 formulating strategy and messages in support of their causes.

11

35. Each of the Plaintiffs above that is a membership organization and that brings this

12 action on behalfofits members has members whose communications information has been collected

13 as part of the Associational Tracking Program.

14

36. Defendant NSA is an agency under the direction and control of the Department of

15 Defense that collects, processes, and disseminates signals intelligence. It is responsible for carrying

16 out at least some of the Associational Tracking Program challenged herein.

17

37. Defendant General Keith B. Alexander is the current Director of the NSA, in office

18 since April of 2005. As NSA Director, General Alexander has authority for supervising and

19 implementing all operations and functions of the NSA, including the Associational Tracking

20 Program. General Alexander personally authorizes and supervises the Associational Tracking

21 Program.

22

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

23 and entities.

24

39. Defendant Eric H. Holder is the current Attorney General of the United States, in

25 office since February of2009. Attorney General Holder personally approves, authorizes, supervises,

26 and participates in the Associational Tracking Program on behalf of the Department of Justice.

27

28

7 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page10 of 32

1

40. Defendant John B. Carlin is the current Acting Assistant Attorney General for

2 National Security. In that position, defendant Carlin participates in the Department of Justice's

3 implementation of the Associational Tracking Program.

4

41. Defendant Federal Bureau ofIlnvestigation (FBI) is a component ofthe Department of

5 Justice that conducts federal criminal investigation and collects domestic intelligence. FBI is

6 responsible for carrying out at least some of the Associational Tracking Program activities

7 challenged herein.

8

42. Defendant Robert S. Mueller is the current Director of the FBI, in office since

9 September of 20011. As FBI Director, defendant Mueller has ultimate authority for supervising and

10 implementing all operations and functions ofthe FBI, including its participation in the Associational

11 Tracking Program. Defendant Mueller personally authorizes and supervises the FBI's participation

12 in the Associational Tracking Program.

13

43. Defendant Lieutenant General (Ret.) James R. Clapper is the Director of National

14 Intelligence (DNI), in office since August of2010O. Defendant Clapper participates in the activities of

15 the U.S. intelligence community, including the Associational Tracking Program.

16

44. Defendants DOES 1-100 are persons or entities who have authorized or participated in

17 the Associational Tracking Program. Plaintiffs will allege their true names and capacities when

18 ascertained. Upon information and belief each is responsible in some manner for the occurrences 19 herein alleged and the injuries to Plaintiffs herein alleged were proximately caused by the acts or

20 omissions of DOES 1-100 as well as the named Defendants.

21

FACTUAL ALLEGATIONS RELATED TO ALL COUNTS

22

STATUTORY BACKGROUND

23

45. 50 U.S.C § 1861, the codification of section 215 of the USA PATRIOT Act, as

24 amended, is entitled "Access to certain business records for foreign intelligence and surveillance

25 purposes." Section 1861 provides narrow and limited authority for the Foreign Intelligence 26 Surveillance Court (FISC) to issue orders for the production of "any tangible things (including

27 books, records, papers, documents, and other items) for an investigation to obtain foreign 28 intelligence information not concerning a United States person or to protect against international

8 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page11 of 32

1 terrorism or clandestine intelligence activities." The limitations on section 1861 orders include the

2 following:

3

• an order may be issued only upon "a statement of facts showing that there are

4

reasonable grounds to believe that the tangible things sought are relevant to an

5

authorized investigation;"

6

• the tangible things sought to be produced by an order must be described "with

7

sufficient particularity to permit them to be fairly identified;" and

8

• an order "may only require the production of a tangible thing if such thing can be

9

obtained with a subpoena duces tecum issued by a court ofthe United States in aid of

10

a grand jury investigation or with any other order issued by a court of the United

11

States directing the production of records or tangible things."

12

THE ASSOCIATIONAL TRACKING PROGRAM

13

46. The Associational Tracking Program is electronic surveillance that collects and

14 acquires telephone communications information for all telephone calls transiting the networks ofall

15 major American telecommunication companies, including Verizon, AT&T, and Sprint. Every day,

16 the Associational Tracking Program collects information about millions oftelephone calls made by

17 millions of Americans. This includes information about all calls made wholly within the United

18 States, including local telephone calls, as well as communications between the United States and

19 abroad.

20

47. Defendants' Associational Tracking Program collects and acquires call detail records

21 and comprehensive communications routing information about telephone calls. The collected

22 information includes, but is not limited to, session identifying information (e.g., originating and

23 terminating telephone number, International Mobile Subscriber Identity (IMSI) number, 24 International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone

25 calling card numbers, and time and duration ofcall. Defendants acquire this information through the

26 use of a surveillance device.

27

48. Beginning in 2001, participating phone companies voluntarily provided telephone

28 communications information for the Associational Tracking program to Defendants. Since 2006, the

9 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page12 of 32

1 FISC, at the request ooffDDeeffeennddaants, has issued orders under 50 U.S.C. § 1861 purporting to compel

2 the production of communications information, including communications information not yet in

3 existence, on an ongoing basis, as part of the Associational Tracking Program.

4

49. As an example, attached hereto as Exhibit A, and incorporated herein by this

5 reference, is an Order issued under 50 U.S.C. § 1861 requiring the production of communications

6 information for use in the Associational Tracking Program.

7

50. DNI Clapper has admitted the Order is authentic, as indicated in Exhibit B, attached

8 hereto and incorporated by this reference.

9

51. The Order is addressed to Verizon Business Network Services Inc., on behalfofMCI

10 Communications Services Inc., d/b/a Verizon Business Services (individually and collectively

11 "Verizon"). Verizon is one of the largest providers of telecommunications services in the United

12 States with over 98 million subscribers. Through its subsidiaries and other affiliated entities that it

13 owns, controls, or provides services to, Verizon provides telecommunications services to the public

14 and to other entities. These subsidiaries and affiliated entities include Verizon Business Global,

15 LLC; MCI Communications Corporation; Verizon Business Network Services, Inc.; MCI

16 Communications Services, Inc.; and Verizon Wireless (Cellco Partnership).

17

BULK COLLECTION, ACQUISITION, AND STORAGE

18

52. The Associational Tracking Program collects and acquires telephone communications

19 information for all telephone calls transiting the networks ofall major American telecommunication

20 companies, including Verizon, AT&T, and Sprint.

21

53. The telephone communications information Defendants collect and acquire in bulk as

22 part of the Associational Tracking Program is retained and stored by Defendants in one or more

23 databases. These databases contain call information for all, or the vast majority, of calls wholly

24 within the United States, including local telephone calls, and calls between the United States and

25 abroad, for a period of at least five years. Defendants have indiscriminately obtained and stored the

26 telephone communications information ofmillions of ordinary Americans, including Plaintiffs, their

27 members, and staffs, as part of the Associational Tracking Program.

28

10 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page13 of 32

1

54. Defendants' bulk collection and acquisition oftelephone communications infornmnation

2 includes, but is not limited to, records indicating who each customer communicates with, at what

3 time, and for how long. The aggregation of this infornmnation discloses the expressive, political,

4 social, personal, private, and intimate associational connections among individuals and groups,

5 which ordinarily would not be disclosed to the public or the government.

6

55. Through the Associational Tracking Program, Defendants have collected, acquired,

7 and retained, and continue to collect, acquire, and retain, bulk communications infornmnation of

8 telephone calls made and received by Plaintiffs, their members, and their staffs. This infornmnation is

9 otherwise private.

10

56. Plaintiffs' associations and political advocacy efforts, as well as those of their

11 members and staffs, are chilled by the fact that the Associational Tracking Program creates a

12 permanent record of all of Plaintiffs' telephone communications with their members and

13 constituents, among others.

14

57. Plaintiffs' associations and political advocacy efforts, as well as those of their

15 members and staffs, are chilled by Defendants' search and analysis ofinfornmnation obtained through

16 the Associational Tracking Program and Defendants' use and disclose of this information and the

17 results of their searches and analyses.

18

58. Plaintiffs' telephone communications infornmnation obtained, retained, and searched

19 pursuant to the Associational Tracking Program was at the time of acquisition, and at all times

20 thereafter, neither relevant to an existing authorized criminal investigation nor to an existing

21 authorized investigation to protect against international terrorism or clandestine intelligence

22 activities.

23

59. Defendants' bulk collection, acquisition, and retention of the telephone

24 communications infornmnation of Plaintiffs, their members, and their staffs is done without lawful

25 authorization, probable cause, and/or individualized suspicion. It is done in violation ofstatutory and

26 constitutional limitations and in excess of statutory and constitutional authority. Any judicial,

27 administrative, or executive authorization (including any order issued pursuant to the business

28 records provision of50 U.S.C. § 1861) ofthe Associational Tracking Program or ofthe acquisition

11 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page14 of 32

1 and retention of the communications information of Plaintiffs, their members, and their staffs is

2 unlawful and invalid.

3

60. Defendants' bulk collection, acquisition, and retention of the telephone

4 communications information of Plaintiffs, their members, and their staffs is done (a) without

5 probable cause or reasonable suspicion to believe that Plaintiffs, their members, and their staffs have

6 committed or are about to commit any crime or engage in any international terrorist activity; (b)

7 without probable cause or reasonable suspicion to believe that Plaintiffs, their members, or their

8 staffs are foreign powers or agents offoreign powers; and (c) without probable cause or reasonable

9 suspicion to believe that the communications ofPlaintiffs, their members, and their staffs contain or

10 pertain to foreign intelligence information, or relate to an investigation to obtain foreign intelligence

11 information.

12

61. Defendants, and each of them, have authorized, approved, supervised, performed,

13 caused, participated in, aided, abetted, counseled, commanded, induced, procured, enabled,

14 contributed to, facilitated, directed, controlled, assisted in, or conspired in the Associational Tracking

15 Program and in the collection, acquisition, and retention of the telephone communications

16 information of Plaintiffs, their members, and their staffs. Defendants have committed these acts

17 willfully, knowingly, and intentionally. Defendants continue to commit these acts and will continue

18 to do so absent an order of this Court enjoining and restraining them from doing so.

19

SEARCH

20

62. Through the Associational Tracking Program, Defendants have searched and continue

21 to search communications information of telephone calls made and received by Plaintiffs, their

22 members, and their staffs.

23

63. Plaintiffs' telephone communications information searched pursuant to the

24 Associational Tracking Program was, at the time of search and at all times thereafter, was neither

25 relevant to an existing authorized criminal investigation nor to an existing authorized investigation to

26 protect against international terrorism or clandestine intelligence activities.

27

64. Defendants' searching of the telephone communications information of Plaintiffs is

28 done without lawful authorization, probable cause, and/or individualized suspicion. It is done in

12 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page15 of 32

1 violation of statutory and constitutional limitations and in excess of statutory and constitutional

2 authority. Any judicial, administrative, or executive authorization (including any business records

3 order issued pursuant 50 U.S.C. § 1861) ofthe Associational Tracking Program or ofthe searching

4 of the communications information of Plaintiffs is unlawful and invalid.

5

65. Defendants' searching of the telephone communications information of Plaintiffs is

6 done (a) without probable cause or reasonable suspicion to believe that Plaintiffs, their members, or

7 their staffs, have committed or are about to commit any crime or engage in any international terrorist

8 activity; (b) without probable cause or reasonable suspicion to believe that Plaintiffs, their members,

9 or their staffs are foreign powers or agents of foreign powers; and (c) without probable cause or

10 reasonable suspicion to believe that Plaintiffs', their members'", or their staffs' communications

11 contain or pertain to foreign intelligence information or relate to an investigation to obtain foreign

12 intelligence information.

13

66. Defendants, and each of them, have authorized, approved, supervised, performed,

14 caused, participated in, aided, abetted, counseled, commanded, induced, procured, enabled,

15 contributed to, facilitated, directed, controlled, assisted in, or conspired in the Associational Tracking

16 Program and in the search or use of the telephone communications information of Plaintiffs, their

17 members, and their staff. Defendants have committed these acts willfully, knowingly, and

18 intentionally. Defendants continue to commit these acts and will continue to do so absent an order of

19 this Court enjoining and restraining them from doing so.

20

COUNT I

21

Violation of First Amendment-Declaratory, Injunctive, and Other Equitable Relief

(Against All Defendants) 22

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

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

68. Plaintiffs, their members, and their staffs use telephone calls to communicate and to 25

associate within their organization, with their members and with others, including to communicate 26

anonymously and to associate privately. 27

28

13 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page16 of 32

1

69. By their acts alleged herein, Defendants have violated and are violating the First

2 Amendment free speech and free association rights of Plaintiffs, their members, and their staffs,

3 including the right to communicate anonymously, the right to associate privately, and the right to

4 engage in political advocacy free from government interference.

5

70. By their acts alleged herein, Defendants have chilled and/or threaten to chill the legal

6 associations and speech of Plaintiffs, their members, and their staffs by, among other things,

7 compelling the disclosure of their political and other associations.

8

71. Defendants are irreparably harming Plaintiffs, their members, and their staffs by

9 violating their First Amendment rights. Plaintiffs have no adequate remedy at law for Defendants'

10 continuing unlawful conduct, and Defendants will continue to violate Plaintiffs' legal rights unless

11 enjoined and restrained by this Court.

12

72. Plaintiffs seek that this Court declare that Defendants have violated the First

13 Amendment rights of Plaintiffs, their members, and their staffs; enjoin Defendants, their agents,

14 successors, and assigns, and all those in active concert and participation with them from violating the

15 First Amendment to the United States Constitution; and award such other and further equitable relief

16 as is proper.

17

COUNT II

18

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

(Against All Defendants)

19

73. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs 1 20

through 66 of this complaint, as if set forth fully herein. 21

74. Plaintiffs have a reasonable expectation ofprivacy in their telephone communications,
22

23 including in their telephone communications information. 23

24

75. By the acts alleged herein, Defendants have violated Plaintiffs' reasonable

25 expectations ofprivacy and denied Plaintiffs their right to be free from unreasonable searches and 25

26 seizures as guaranteed by the Fourth Amendment to the Constitution ofthe United States, including, 26

but not limited to, obtaining per se unreasonable general warrants. Defendants have further violated
27

28

14 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page17 of 32

1 Plaintiffs' rights by failing to apply to a court for, and for a court to issue, a warrant prior to any

2 search and seizure as guaranteed by the Fourth Amendment.

3

76. Defendants are now engaging in and will continue to engage in the above-described

4 violations ofPlaintiffs' constitutional rights, and are thereby irreparably harming Plaintiffs. Plaintiffs

5 have no adequate remedy at law for Defendants' continuing unlawful conduct, and Defendants will

6 continue to violate Plaintiffs' legal rights unless enjoined and restrained by this Court.

7

77. Plaintiffs seek that this Court declare that Defendants have violated their Fourth

8 Amendment rights; enjoin Defendants, their agents, successors, and assigns, and all those in active

9 concert and participation with them from violating the Plaintiffs' rights under the Fourth

10 Amendment to the United States Constitution; and award such other and further equitable reliefas is

11 proper.

12

COUNT III

13

Violation of Fifth Amendment-Declaratory, Injunctive, and Equitable Relief

(Against All Defendants)

14

78. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs 1 15

16 through 66 of this complaint, as if set forth fully herein. 16

79. Plaintiffs, their members, and their staffs have an informational privacy interest in 17

their telephone communications information, which reveals sensitive information about their 18

19 personal, political, and religious activities and which Plaintiffs do not ordinarily disclose to the 19

20 public or the government. This privacy interest is protected by state and federal laws relating to 20

privacy of communications records and the substantive and procedural right to due process 21

22 guaranteed by the Fifth Amendment. 22

80. Defendants through their Associational Tracking Program secretly collect, acquire, 23

retain, search, and use the bulk telephone communications information ofPlaintiffs, their members,
24

and their staff without providing notice to them, or process by which they could seek redress.
25

26 Defendants provide no process adequate to protect their interests. 26

27

81. Defendants collect, acquire, retain, search, and use the bulk telephone communications

information of Plaintiffs, their members, and their staff without making any showing of any 28

15 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page18 of 32

1 individualized suspicion, probable cause, or other governmental interest sufficient or narrowly

2 tailored to justify the invasion of Plaintiffs' due process right to informational privacy.

3

82. Defendants collect and acquire the bulk telephone communications information of

4 Plaintiffs, their members, and their staff under, inter alia, Section 215 of the USA-PATRIOT Act
5 (50 Uu..sS..cC.. § 1861).

6

83. On information and belief, Defendants' information collection and acquisition

7 activities rely on a secret legal interpretation of 50 U.S.C. § 1861 under which bulk telephone

8 communications information of persons generally is as a matter of law deemed a "tangible thing"

9 "relevant" to "an investigation to obtain foreign intelligence information not concerning a United

10 States person or to protect against international terrorism or clandestine intelligence activities," even

11 without any particular reason to believe that telephone communications information is a "tangible

12 thing" or that the telephone communications information of any particular person, including

13 Plaintiffs, their members, and their staff, is relevant to an investigation to obtain foreign intelligence

14 information not concerning aU.S. person or to protect against international terrorism or clandestine

15 intelligence activities.

16

84. This legal interpretation of 50 U.S.C. § 1861 is not available to the general public,

17 including Plaintiffs, their members, and their staff, leaving them and all other persons uncertain

18 about where a reasonable expectation of privacy from government intrusion begins and ends and

19 specifically what conduct may subject them to electronic surveillance.

20

85. This secret legal interpretation of 50 U.S.C. § 1861, together with provisions of the

21 FISA statutory scheme that insulate legal interpretations from public disclosure and adversarial

22 process, fails to establish minimal guidelines to govern law enforcement and/or intelligence

23 collection.

24

86. The secret legal interpretation of50 U.S.C. § 1861 used in the Associational Tracking

25 Program and related surveillance programs causes section 1861 to be unconstitutionally vague in

26 violation of the Fifth Amendment and the rule of law. The statute on its face gives no notice that it

27 could be construed to authorize the bulk collection oftelephone communications information for use

28 in future investigations that do not yet exist.

16 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page19 of 32

1

87. By these and the other acts alleged herein, Defendants have violated and are

2 continuing to violate the right to due process under the Fifth Amendment of Plaintiffs, their

3 members, and their staff.

4

88. By the acts alleged herein, Defendants' conduct proximately caused harm to Plaintiffs.

5

89. On information and belief, Defendants are now engaging in and will continue to

6 engage in the above-described violations of Plaintiffs' constitutional rights, and are thereby

7 irreparably harming Plaintiffs. Plaintiffs have no adequate remedy at law for Defendants' continuing

8 unlawful conduct, and Defendants will continue to violate Plaintiffs' legal rights unless enjoined and

9 restrained by this Court.

10

90. Plaintiffs seek that this Court declare that Defendants have violated their due process

11 rights under the Fifth Amendment to the United States Constitution; enjoin Defendants, their agents,

12 successors, and assigns, and all those in active concert and participation with them from violating the 13 Plaintiffs' due process rights; and award such other and further equitable relief as is proper.

14

COUNT IV

15

Violation of 50 U.S.C. § 1861-DecIlaratory, Injunctive and Other Equitable Relief

(Against All Defendants) 16

91. Plaintiffs repeat and incorporate herein by reference the allegations in paragraph 1 17

18 through 66 of this complaint, as if set forth fully herein. 18

92. The business records order provision set forth in 50 U.S.C. § 186611limits Defendants' 19

20 ability to seek telephone communications information. It does not permit the suspicionless bulk 20

21 collection of telephone communications information unconnected to any ongoing investigation. It 21

22 does not permit an order requiring the production of intangible things, including telephone 22

communications information not yet in existence. 23

24

93. Defendants' Associational Tracking Program and the collection, acquisition, retention,

searching, and use ofthe telephone communications records of Plaintiffs, their members, and their 25

26 staffexceed the conduct that may be lawfully authorized by an order issued under 50 U.S.C § 1861. 26

27

28

17 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page20 of 32

1

94. By the acts alleged herein, Defendants are acting in excess oftheir statutory authority

2 and in violation ofthe express statutory limitations and procedures Congress has imposed on them in
3 50 Uu..sS..cC.. § 1861.

4

95. Sovereign immunity for this claim is waived by 5 U.S.C. § 702.

5

96. Defendants are now engaging in and will continue to engage in the above-described

6 acts in excess of Defendants' statutory authority and in violation of statutory limitations and

7 procedures of 50 U.S.C. § 1861 and are thereby irreparably harming Plaintiffs. Plaintiffs have no

8 adequate remedy at law for Defendants' continuing unlawful conduct, and Defendants will continue

9 to violate Plaintiffs' legal rights unless enjoined and restrained by this Court.

10

97. Plaintiffs seek that this Court declare that Defendants have acted in excess of

11 Defendants' statutory authority and in violation ofstatutory limitations and procedures of 50 U.S.C.

12 § 1861; declare that Defendants have thereby irreparably harmed and will continue to irreparably

13 harm Plaintiffs; enjoin Defendants, their agents, successors, and assigns, and all those in active

14 concert and participation with them from acting in excess of Defendants' statutory authority and in

15 violation of statutory limitations and procedures of 50 U.S.C. § 1861; and award such other and

16 further equitable relief as is proper.

17

COUUNNTTV

18

Motion For Return Of Unlawfully Searched And Seized Property Pursuant To

Federal Rule of Criminal Procedure 41(g)

19

98. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs 1 20

21 through 97 of this complaint, as if set forth fully herein. 21

99. This Court has civil equitable jurisdiction under Federal Rule of Criminal Procedure 22

23 41 (g) to order the return of illegally searched and seized property. 23

100. Defendants, by their Associational Tracking Program and their bulk collection,
24

acquisition, retention, searching, and use ofthe telephone communications information offPPllaaiintiffs, 25

26 have unlawfully searched and seized Plaintiffs' telephone communications information. Plaintiffs are 26

aggrieved by Defendants unlawful seizure and search of their telephone communications 27

information. 28

18 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page21 of 32

1

101. Plaintiffs seek an order directing the return of their telephone communications

2 information in the possession, custody, or control of Defendants, their agents, successors, and

3 assigns, and all those in active concert and participation with them.

4

PRAYER FOR RELIEF

5

WHEREFORE, Plaintiffs respectfully request that the Court:

6

1. Declare that the Program as alleged herein violates without limitation Plaintiffs'

7

rights under the First, Fourth, and Fifth Amendments to the Constitution; and their

8

statutory rights;

9

2. Award to Plaintiffs equitable relief, including without limitation, a preliminary and

10

permanent injunction pursuant to the First, Fourth, and Fifth Amendments to the

11

United States Constitution prohibiting Defendants' continued use of the Program,

12

and a preliminary and permanent injunction pursuant to the First, Fourth, and Fifth

13

Amendments requiring Defendants to provide to Plaintiffs an inventory of their

14

communications, records, or other information that was seized in violation of the

15

First, Fourth, and Fifth Amendments, and further requiring the destruction of all

16

copies ofthose communications, records, or other information within the possession,

17

custody, or control of Defendants.

18

3. Award to Plaintiffs reasonable attorneys' fees and other costs of suit to the extent

19

permitted by law.

20

4. Order the return and destruction of their telephone communications information in

21

the possession, custody, or control of Defendants, their agents, successors, and

22

assigns, and all those in active concert and participation with them.

23

5. Grant such other and further relief as the Court deems just and proper.

24 25
26

27
28

19 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page22 of 32

1 DATED: July 16,2013

Respectfully submitted,

2

3

4

LEETIEN

KURT OPSAHL

5

MATTHEW ZIMMERMAN

MARK RRUUMOLD

6

DAVID GREENE

JAMES S. TYRE

7

ELECTRONIC FRONTIER FOUNDATION

8

RICHARD R. WIEBE

LAW OFFICE OF RICHARD R. WIEBE

9

THOMAS E. MOORE III

10

THE MOORE LAW GROUP

11

RACHAEL E. MENY

MICHAEL S. KWUN

12

BENJAMIN W. BERKOWITZ

KEKER & VAN NEST, LLP

13

ARAM ANTARAMIAN

14

LAW OFFICE OF ARAM ANTARAMIAN

15

Attorneyvs for Plaintiffs

16

JURY DEMAND 17

Plaintiffs hereby request ajury trial for all issues triable by jury including, but not limited to,

18

those issues and claims set forth in any amended complaint or consolidated action.

19

DATED: July 16,2013 20 21

Respectfully submitted,
.c=FR-

22

CINDY CO

LEETIEN

23

KURT OPSAHL

MATTHEW ZIMMERMAN

24

MARKKRRUMOLD

DAVID GREENE

25

JAMES S. TYRE

ELECTRONIC FRONTIER FOUNDATION 26

27

RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE

28

THOMAS E. MOORE III

20 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page23 of 32

1

THE MOORE LAW GROUP

2

RACHAEL E. MENY

MICHAEL S. KWUN

3

BENJAMIN W. BERKOWITZ

KEKER & VAN NEST, LLP

4

ARAM ANT ARAMIAN

5

LAW OFFICE OF ARAM ANTARAMIAN

6

Attorneyvs for Plaintiffs

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

21 COMPLAINT

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page24 of 32
Exhibit A

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page25 of 32 TOP SECRETI/I/SI/II/NOFORN
UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, D.C.

IN RE AAPPPPLLICATION OF THE

FEDERAL BUREAU OF INVESTIGATION

FOR AN ORDER REQUIRING THE

Docket Number: BR .

PRODUCTION OF TANGIBLE THINGS

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

1 33 - 8 0

SERVICES, INC. D/B/A VERIZON

BUSINESS SERVICES.

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

Derived from: Declassify on: .

TOP SEECCRREETT/I/ISSIII/NOFORN
Pleadings in the above-captioned docket 12 April2200338

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page26 of 32 TOP SECREETTI/I/SI//INNOOFORN
on an ongoing daily basis thereafter for the duration of this Order, unless otherwise ordered by the Court, an electronic copy of the following tangible things: all call detail records or "telephony metadata" created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls. This Order does not require Verizon to produce telephony metadata for communications wholly originating and terminating in foreign countries. Telephony metadata includes comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call. Telephony metadata does not include the substantive content of any communication, as defined by 18 U.S..Cc. § 2510(8), or the name, address, or financial information of a subscriber or customer.
IT IS FUR1HER ORDERED that no person shall disclose to any other person that the FBI or NSA has sought or obtained tangible things under this Order, other than to: (a) those persons to whom disclosure is necessary to comply with such Order; (b) an attorney to obtain legal advice or assistance with respect to the production of things in response to the Order; or (c) other persons as permitted by the Director of the FBI or the Director's designee. A person to whom disclosure is made pursuant to (a), (b), or (c)
TOP SECREETTI/I/SI//INNOOFORN
2

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page27 of 32
TOP SECRET/I/ISSIII//NOFORN shall be subject to the nondisclosure requirements applicable to a person to whom an Order is directed in the same manner as such person. Anyone who discloses to a person described in (a), (b), or (c) that the FBI or NSA has sought or obtained tangible things pursuant to this Order shall notify such person of the nondisclosure requirements of this Order. At the request of the Director of the FBI or the designee of the Director, any person making or intending to make a disclosure under (a) or (c) above shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request.
IT IS FURTHER ORDERED that service of this Order shall be by a method agreed upon by the Custodian of Records of Verizon and the FBI, and if no agreement is reached, service shall be personal.
-- Remainder ofpage intentionally left blank. --
TOP SECRETI//ISSIII/I/NOFORN
3

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page28 of 32 TOP SECRREETT//l/SSIII/I/NNOOFORN

This authorization requiring the production of certain call detail records or

/9""' 1 '" "telephony metadataa"" created by Verizon expires on the

day of July, 2013, at

5:0000p.m., Eastern Time.

Signed -_-_-_-~~-))_:'!\.-- _?-5-_- -2_0-1_3- E _ a_s_tEeasrtenrn TTiimmee Date Time

nited States Foreign In lligence Surveillance Court

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

TOP SECRETI//ISSII//NOFORN 4

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page29 of 32
Exhibit B

CaOseF3F:1I3C-cEv-\~0. 328T7H-JECSDIRDEocCuTmOeRnt1OFFiNledAA07TT/1I6IO/O 13-LaPIIaNgNTeT3EE0LLoLLfII3GG2EEN~CCEE

L ![4 " D DIlINI O G

I N T !f l l il G !I N H C !I

I H "T T! ! G O~ A" 4T TI l 0DM "

DNI Statement on Recent Unauthorized Disclosures of Classified Information

June 6,,220013
DNI Statement on Recent Unauthorized Disclosures of Classified Information The highest priority of the Intelligence Community is to work within the constraints of law to collect, analyze and understand information related to potential threats to our national security.
The unauthorized disclosure of a top secret U.S. court document threatens potentially long-lasting and irreversible harm to our ability to identify and respond to the many threats facing our nation.
The article omits key information regarding how a classified intelligence collection program is used to prevent terrorist attacks and the numerous safeguards that protect privacy and civil liberties.
I believe it is important for the American people to understand the limits of this targeted counterterrorism program and the principles that govern its use. In order to provide a more thorough understanding of the program, I have directed that certain information related to the "business records" provision of the Foreign Intelligence Surveillance Act be declassified and immediately released to the public.
The following important facts explain the purpose and limitations of the program:

• The judicial order that was disclosed in the press is used to support a sensitive intelligence collection operation, on which members of Congress have been fully and repeatedly briefed. The classified program has been authorized by all three branches of the Government.
• Although this program has been properly classified, the leak of one order, without any context, has created a misleading impression of how it operates. Accordingly, we have determined to declassify certain limited information about this program.
• The program does D.Q1 allow the Government to listen in on anyone's phone calls. The information acquired does D.Q1 include the content of any communications or the identity of any subscriber. The only type of information acquired under the Court's order is telephony metadata, such as telephone numbers dialed and length of calls..
• The collection is broad in scope because more narrow collection would limit our ability to
•, II o0

CaOOse~-F3F:F1lI3CC-EcEv---0328T7H-JECSDIRDEocCuTmOeRnt1OFFiNledAA0T7T/!1IO6O/1A3-tLLPIaNgNeTT3EE1LLoLfLI3GI2EGNE~NEC~- - '

--

-

l IADIIIG

- ---
f IITILLIGIIICI

1 IITIGRATIOII

DNI Statement on Recent Unauthorized Disclosures of Classified Information

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

Case3:13-cv-03287-JCS Document1 Filed07/16/13 Page32 of 32
()FFICE cC THE [D)IIRREECCTTOR OF N ATIO . !IIN\TTEELLLLIIGGEE=:\"'CE

l !A AD O III IIIG G

I IN IT T!! llL l IIG G!NN C C!!

I IHI T T!!G GIRI A AT T IIOON H

DNI Statement on Recent Unauthorized Disclosures of Classified Information

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

.-., I -,

 
 Case3:13-cv-03287-JSW Document9 Filed09/10/13 Page1 of 28

1 CINDY COHN (SBN 145997)

RACHAEL E. MENY (SBN 178514)

cindy@eff.org

rmeny@kvn.com

2 LEE TIEN (SBN 148216)

MICHAEL S. KWUN (SBN 198945)

KURT OPSAHL (SBN 191303)

BENJAMIN W. BERKOWITZ (SBN 244441)

3 MATTHEW ZIMMERMAN (SBN 212423) KEKER & VAN NEST, LLP

MARK RUMOLD (SBN 279060)

633 Battery Street

4 DAVID GREENE (SBN 160107)

San Francisco, California 94111

JAMES S. TYRE (SBN 083117)

Tel.: (415) 391-5400; Fax: (415) 397-7188

5 ELECTRONIC FRONTIER FOUNDATION

815 Eddy Street

RICHARD R. WIEBE (SBN 121156)

6 San Francisco, CA 94109

wiebe@pacbell.net

Tel.: (415) 436-9333; Fax: (415) 436-9993

LAW OFFICE OF RICHARD R. WIEBE

7

One California Street, Suite 900

THOMAS E. MOORE III (SBN 115107)

San Francisco, CA 94111

8 tmoore@moorelawteam.com

Tel.: (415) 433-3200; Fax: (415) 433-6382

ROYSE LAW FIRM, PC

9 1717 Embarcadero Road

ARAM ANTARAMIAN (SBN 239070)

Palo Alto, CA 94303

aram@eff.org

10 Tel.: 650-813-9700; Fax: 650-813-9777

LAW OFFICE OF ARAM ANTARAMIAN

1714 Blake Street

11 Attorneys for Plaintiffs

Berkeley, CA 94703

Telephone: (510) 289-1626

12

UNITED STATES DISTRICT COURT 13

NORTHERN DISTRICT OF CALIFORNIA 14

SAN FRANCISCO DIVISION 15

FIRST UNITARIAN CHURCH OF LOS

) Case No: 3:13-cv-03287 JSW

16 ANGELES; ACORN ACTIVE MEDIA; BILL OF )

RIGHTS DEFENSE COMMITTEE; CALGUNS ) FIRST AMENDED COMPLAINT

17 FOUNDATION, INC.; CALIFORNIA

) FOR CONSTITUTIONAL AND

ASSOCIATION OF FEDERAL FIREARMS ) STATUTORY VIOLATIONS, 18 LICENSEES, INC.; CHARITY AND SECURITY ) SEEKING DECLARATORY AND

NETWORK; COUNCIL ON AMERICAN 19 ISLAMIC RELATIONS-CALIFORNIA;

) INJUNCTIVE RELIEF )

COUNCIL ON AMERICAN ISLAMIC 20 RELATIONS-OHIO; COUNCIL ON

) Hon. Jeffrey S. White ) Courtroom 11 - 19th Floor

AMERICAN ISLAMIC RELATIONS-

)

21 FOUNDATION, INC.; FRANKLIN ARMORY; )

FREE PRESS; FREE SOFTWARE

)

22 FOUNDATION; GREENPEACE, INC.; HUMAN ) DEMAND FOR JURY TRIAL

RIGHTS WATCH; MEDIA ALLIANCE;

)

23 NATIONAL LAWYERS GUILD; NATIONAL )

ORGANIZATION FOR THE REFORM OF

)

24 MARIJUANA LAWS, CALIFORNIA CHAPTER;)

PATIENT PRIVACY RIGHTS; PEOPLE FOR )

25 THE AMERICAN WAY; PUBLIC

)

KNOWLEDGE; SHALOM CENTER;

)

26 STUDENTS FOR SENSIBLE DRUG POLICY; )

TECHFREEDOM; and UNITARIAN

)

27 UNIVERSALIST SERVICE COMMITTEE,

)

)

28

Plaintiffs,

)

FIRST AMENDED COMPLAINT

Case3:13-cv-03287-JSW Document9 Filed09/10/13 Page2 of 28

1

v.

)

)

2 NATIONAL SECURITY AGENCY and KEITH )

B. ALEXANDER, its Director, in his official and )

3 individual capacities; the UNITED STATES OF )

AMERICA; DEPARTMENT OF JUSTICE and )

4 ERIC H. HOLDER, its Attorney General, in his )

official and individual capacities; Acting Assistant )

5 Attorney General for National Security JOHN P. )

CARLIN, in his official and individual capacities; )

6 FEDERAL BUREAU OF INVESTIGATION and )

JAMES B. COMEY, its Director, in his official )

7 and individual capacities; ROBERT S.

)

MUELLER, former Director of the FEDERAL )

8 BUREAU OF INVESTIGATION, in his individual)

capacity; JAMES R. CLAPPER, Director of

)

9 National Intelligence, in his official and individual )

capacities, and DOES 1-100,

)

10

)

Defendants.

)

11

)

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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28 FIRST AMENDED COMPLAINT
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1

1. Plaintiffs bring this action on behalf of themselves and, where indicated, on behalf of

2 their members and staff. Plaintiffs allege as follows:

3

PRELIMINARY STATEMENT

4

2. Plaintiffs, as described more particularly below, are associations, as well as the

5 members and staffs of associations, who use the telephone to engage in private communications

6 supportive of their associations and activities, including engaging in speech, assembly, petition for

7 the redress of grievances, and the exercise of religion.

8

3. This lawsuit challenges an illegal and unconstitutional program of dragnet electronic

9 surveillance, specifically the bulk acquisition, seizure, collection, storage, retention, and searching of

10 telephone communications information (the “Associational Tracking Program”) conducted by the

11 National Security Agency (NSA) and the other defendants (collectively, “Defendants”).

12

4. The Associational Tracking Program is vast. It collects telephone communications

13 information for all telephone calls transiting the networks of all major American telecommunication

14 companies, including Verizon, AT&T, and Sprint, ostensibly under the authority of section 215 of

15 the USA PATRIOT Act, codified at 50 U.S.C. § 1861.

16

5. The communications information that Defendants collect in the Associational

17 Tracking Program is retained and stored by Defendants in one or more databases. The Program

18 collects information concerning all calls wholly within the United States, including local telephone

19 calls, as well as all calls between the United States and abroad, regardless of a connection to

20 international terrorism, reasonable suspicion of criminality, or any other form of wrongdoing. This

21 information is stored for at least five years. Defendants have indiscriminately obtained, and stored

22 the telephone communications information of millions of ordinary Americans as part of the

23 Associational Tracking Program.

24

6. Defendants search and analyze the Associational Tracking Program’s database(s) for

25 various purposes, including but not limited to, obtaining the communications history of particular

26 phone numbers, which, when aggregated, reveals those numbers’ contacts and associations over

27 time.

28

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1

7. Defendants’ collection of telephone communications information includes, but is not

2 limited to, records indicating who each customer communicates with, at what time, for how long and

3 with what frequency communications occur. This communications information discloses the

4 expressive and private associational connections among individuals and groups, including Plaintiffs

5 and their members and staff.

6

8. The Associational Tracking Program has been going on in various forms since October

7 2001.

8

9. The bulk collection of telephone communications information without a valid,

9 particularized warrant supported by probable cause violates the First, Fourth, and Fifth Amendments,

10 as well as statutory prohibitions and limitations on electronic surveillance.

11

10. Defendants’ searches of the Associational Tracking Program database(s) without a

12 valid, particularized warrant supported by probable cause violate the First, Fourth, and Fifth

13 Amendments.

14

11. Plaintiffs’ records are searched even if they are not targets of the search.

15

12. Plaintiffs are organizations, associations, and advocacy groups, their staffs, and their

16 members who are current subscribers to Verizon and other telephone services. Using the

17 Associational Tracking Program, Defendants seize, collect, acquire, retain, and search the records of

18 the telephone communications of Plaintiffs, their members and staff, and others seeking to associate

19 and communicate with them.

20

JURISDICTION AND VENUE

21

13. This court has subject matter jurisdiction over the federal claims pursuant to 28 U.S.C.

22 § 1331, 5 U.S.C. § 702, and the Constitution.

23

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

24 contacts with this district generally and, in particular, with the events herein alleged, that Defendants

25 are subject to the exercise of jurisdiction of this court over the person of such Defendants and that

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

27

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

28

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

2 Defendants may be found in this district.

3

16. Intradistrict Assignment: Assignment to the San Francisco/Oakland division is

4 proper pursuant to Local Rule 3-2(c) and (d) because a substantial portion of the events and

5 omissions giving rise to this lawsuit occurred in this district and division.

6

PARTIES

7

17. Plaintiff First Unitarian Church of Los Angeles (First Unitarian) was founded in 1877

8 by Caroline Seymour Severance, a woman who worked all her life for causes such as the abolition of

9 slavery and women’s suffrage. First Unitarian is located in Los Angeles, California. Throughout its

10 history members of First Unitarian defined their religious goals in terms of justice, equality, and

11 liberty for all persons. During the middle decades of the 20th century, First Unitarian provided aid to

12 Japanese-Americans displaced by internment camps, defended free speech against anti-communist

13 hysteria, and protested nuclear proliferation. In the 1980s, First Unitarian provided sanctuary to

14 Central American refugees and, in recent decades, First Unitarian opened its building as a

15 community center for the economically-depressed and ethnically-diverse neighborhood of

16 MacArthur Park. Members of First Unitarian have been quick to engage in difficult work and

17 controversial ideas and are proud of their contribution to moving the world closer to justice for all.

18 First Unitarian brings this action on behalf of itself and its adversely affected members and staff.

19

18. Plaintiff Acorn Active Media is an outlet for technically skilled members to build

20 technical resources for groups, non-profits, and individuals who otherwise do not have the capacity

21 or would not be able to afford these services. Since Acorn’s inception in January 2004, it has

22 engaged in website design, web application development, general technical consulting and hardware

23 support, and organizational database development for a diverse array of groups, individuals, and

24 organizations from around the globe. Acorn members have supported democracy advocates and

25 independent media outlets worldwide, often working directly with communities laboring under

26 hostile and oppressive regimes. Plaintiff Acorn brings this action on behalf of itself and its adversely

27 affected volunteers and members.

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1

19. Plaintiff Bill of Rights Defense Committee (BORDC) is a non-profit, advocacy

2 organization based in Northhampton, Massachusetts. BORDC supports an ideologically, politically,

3 ethnically, geographically, and generationally diverse grassroots movement focused on educating

4 Americans about the erosion of fundamental freedoms; increasing civic participation; and converting

5 concern and outrage into political action. BORDC brings this action on behalf of itself and its

6 adversely affected staff.

7

20. Plaintiff Calguns Foundation, Inc. (CGF) is a non-profit, membership organization

8 based in San Carlos, California. CGF works to support the California firearms community by

9 promoting education for all stakeholders about California and federal firearm laws, rights, and

10 privileges, and defending and protecting the civil rights of California gun owners. In particular, CGF

11 operates a hotline for those with legal questions about gun rights in California. Plaintiff CGF brings

12 this action on behalf of itself and on behalf of its adversely affected members and staff.

13

21. Plaintiff California Association of Federal Firearms Licensees, Inc. (CAL-FFL) is a

14 non-profit, industry association of, by, and for firearms manufacturers, dealers, collectors, training

15 professionals, shooting ranges, and others, advancing the interests of its members and the general

16 public through strategic litigation, legislative efforts, and education. CAL-FFL expends financial and

17 other resources in both litigation and non-litigation projects to protect the interests of its members

18 and the public at large. CAL-FFL brings this action on behalf of itself and its adversely affected

19 members and staff.

20

22. Plaintiff Charity and Security Network’s mission is to protect civil society’s ability to

21 carry out peacebuilding projects, humanitarian aid, and development work effectively and in a

22 manner consistent with human rights principles and democratic values. To accomplish this, the

23 Network focuses on: coordinating advocacy by bringing together stakeholders from across the

24 nonprofit sector with policymakers to support needed changes in U.S. national security rules; and

25 raising awareness, dispelling myths and promoting awareness of the positive contribution civil

26 society makes to human security. CSN brings this action on behalf of itself and its adversely affected

27 membership and staff.

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1

23. Plaintiffs Council on American Islamic Relations – California (CAIR-CA), Council on

2 American Islamic Relations-Ohio (CAIR-OHIO), and Council on American Islamic Relations-

3 Foundation, Inc. (CAIR-F) are non-profit, advocacy organization with offices in California, Ohio,

4 and Washington, D.C., respectively. CAIR-CA, CAIR-OHIO, and CAIR-F’s missions are to

5 enhance the understanding of Islam, encourage dialogue, protect civil liberties, empower American

6 Muslims, and build coalitions that promote justice and mutual understanding. CAIR-CA, CAIR-

7 OHIO, and CAIR-F bring this action on behalf of themselves and their adversely affected staffs.

8

24. Plaintiff Franklin Armory, a wholly owned subsidiary of CBE, Inc., is a state and

9 federally licensed manufacturer of firearms located in Morgan Hill, California. Franklin Armory

10 specializes in engineering and building products for restrictive firearms markets, such as California.

11 Franklin Armory is a member of CAL-FFL. Franklin Armory brings this suit on its own behalf.

12

25. Plaintiff Free Press is a non-profit, advocacy organization based in Washington, D.C.

13 Free Press’s mission is to build a nationwide movement to change media and technology policies,

14 promote the public interest, and strengthen democracy by advocating for universal and affordable

15 Internet access, diverse media ownership, vibrant public media, and quality journalism. Free Press

16 brings this action on behalf of itself and its adversely affected members and staff.

17

26. Plaintiff the Free Software Foundation (FSF) is a non-profit, membership organization

18 based in Boston, Massachusetts. FSF helped pioneer a worldwide free software movement and

19 provides an umbrella of legal and technical infrastructure for collaborative software development

20 internationally. FSF brings this action on behalf of itself and its adversely affected members and

21 staff.

22

27. Plaintiff Greenpeace, Inc. (Greenpeace) is a non-profit, membership organization

23 headquartered in Washington, D.C. Through a domestic and international network of offices and

24 staff, Greenpeace uses research, advocacy, public education, lobbying, and litigation to expose

25 global environmental problems and to promote solutions that are essential to a green and peaceful

26 future. Greenpeace brings this action on behalf of itself and its adversely affected members and staff.

27

28. Plaintiff Human Rights Watch (HRW) is a non-profit, advocacy organization, based in

28

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1 New York, New York. Through its domestic and international network of offices and staff, HRW

2 challenges governments and those in power to end abusive practices and respect international human

3 rights law by enlisting the public and the international community to support the cause of human

4 rights for all. HRW brings this action on behalf of itself and its adversely affected staff.

5

29. Plaintiff Media Alliance is a non-profit, membership organization based in Oakland,

6 California. Media Alliance serves as a resource and advocacy center for media workers, non-profit

7 organizations, and social justice activists to make media accessible, accountable, decentralized,

8 representative of society’s diversity, and free from covert or overt government control and corporate

9 dominance. Media Alliance brings this action on behalf of itself and its adversely affected members

10 and staff.

11

30. Plaintiff National Lawyers Guild, Inc. is a non-profit corporation formed in 1937 as

12 the nation’s first racially integrated voluntary bar association. For over seven decades the Guild has

13 represented thousands of Americans critical of government policies, from antiwar, environmental

14 and animal rights activists, to Occupy Wall Street protesters, to individuals accused of computer-

15 related offenses. From 1940-1975 the FBI conducted a campaign of surveillance, investigation and

16 disruption against the Guild and its members, trying unsuccessfully to label it a subversive

17 organization. The NLG brings this action on behalf of itself and its adversely affected membership

18 and staff.

19

31. Plaintiff National Organization for the Reform of Marijuana Laws, California Chapter

20 (NORML, California Chapter) is a non-profit, membership organization located in Berkeley,

21 California. NORML, California Chapter is dedicated to reforming California’s marijuana laws and

22 its mission is to establish the right of adults to use cannabis legally. NORML, California Chapter

23 brings this action on behalf of itself and its adversely affected members and staff.

24

32. Plaintiff Patient Privacy Rights (PPR) is a bipartisan, non-profit organization with

25 12,000 members in all 50 states. It works to give patients control over their own sensitive health

26 information in electronic systems, with the goal of empowering privacy and choices that protect jobs

27 and opportunities and ensure trust in the patient-physician relationship. The lack of privacy of health

28

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1 information causes millions of individuals every year to refuse or delay needed medical treatment or

2 hide information, putting their health at risk. PPR brings this action on behalf of itself and its

3 adversely affected members and volunteers.

4

33. Plaintiff People for the American Way (PFAW) is a non-profit, membership

5 organization based in Washington, D.C. With over 595,000 members, PFAW’s primary function is

6 the education of its members, supporters, and the general public as to important issues that impact

7 fundamental civil and constitutional rights and freedoms, including issues concerning civil liberties,

8 government secrecy, improper government censorship, and First Amendment freedoms. PFAW

9 brings this action on behalf of itself and its adversely affected members and staff.

10

34. Plaintiff Public Knowledge is a non-profit, advocacy organization based in

11 Washington, D.C. Public Knowledge is dedicated to preserving the openness of the Internet and the

12 public’s access to knowledge, promoting creativity through the balanced application of copyright

13 laws, and upholding and protecting the rights of consumers to use innovative technology lawfully.

14 Public Knowledge brings this action on behalf of itself and its adversely affected staff.

15

35. Plaintiff the Shalom Center seeks to be a prophetic voice in Jewish, multireligious, and

16 American life. It connects the experience and wisdom of the generations forged in the social,

17 political, and spiritual upheavals of the last half-century with the emerging generation of activists,

18 addressing with special concern the planetary climate crisis and the power configurations behind that

19 crisis. The Shalom Center brings this action on behalf of itself and its adversely affected membership

20 and staff.

21

36. Plaintiff Students for Sensible Drug Policy (SSDP) is a non-profit, membership

22 organization based in Washington, D.C. With over 3,000 members, SSDP is an international,

23 grassroots network of students who are concerned about the impact drug abuse has on our

24 communities, but who also know that the War on Drugs is failing our generation and our society.

25 SSDP creates change by bringing young people together and creating safe spaces for students of all

26 political and ideological stripes to have honest conversations about drugs and drug policy. SSDP

27 brings this action on behalf of itself and its adversely affected membership and staff.

28

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1

37. Plaintiff TechFreedom is a non-profit, think tank based in Washington, D.C.

2 TechFreedom’s mission is promoting technology that improves the human condition and expands

3 individual capacity to choose by educating the public, policymakers, and thought leaders about the

4 kinds of public policies that enable technology to flourish. TechFreedom seeks to advance public

5 policy that makes experimentation, entrepreneurship, and investment possible, and thus unleashes

6 the ultimate resource: human ingenuity. TechFreedom brings this action on behalf of itself and its

7 adversely affected staff.

8

38. Plaintiff Unitarian Universalist Service Committee (UUSC) is a non-profit,

9 membership organization based in Cambridge, Massachusetts. UUSC advances human rights and

10 social justice around the world, partnering with those who confront unjust power structures and

11 mobilizing to challenge oppressive policies. Through a combination of advocacy, education, and

12 partnerships with grassroots organizations, UUSC promotes economic rights, advances

13 environmental justice, defends civil liberties, and preserves the rights of people in times of

14 humanitarian crisis. UUSC brings this action on behalf of itself and its adversely affected members

15 and staff.

16

39. All Plaintiffs make and receive telephone calls originating within the United States in

17 furtherance of their mission and operations. In particular, Plaintiffs make and receive telephone calls

18 to and from their members, staffs, and constituents, among other groups and individuals seeking to

19 associate with them, in furtherance of their mission and operations, including advancing their

20 political beliefs, exchanging ideas, and formulating strategy and messages in support of their causes.

21

40. Each of the Plaintiffs above is a membership organization and brings this action on

22 behalf of its members has members whose communications information has been collected as part of

23 the Associational Tracking Program.

24

41. Defendant NSA is an agency under the direction and control of the Department of

25 Defense that seizes, collects, processes, and disseminates signals intelligence. It is responsible for

26 carrying out at least some of the Associational Tracking Program challenged herein.

27

42. Defendant General Keith B. Alexander is the current Director of the NSA, in office

28

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1 since April of 2005. As NSA Director, General Alexander has authority for supervising and

2 implementing all operations and functions of the NSA, including the Associational Tracking

3 Program. General Alexander personally authorizes and supervises the Associational Tracking

4 Program.

5

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

6 and entities.

7

44. Defendant Department of Justice is a Cabinet-level executive department in the United

8 States government charged with law enforcement, defending the interests of the United States

9 according to the law, and ensuring fair and impartial administration of justice for all Americans.

10

45. Defendant Eric H. Holder is the current Attorney General of the United States, in

11 office since February of 2009. Attorney General Holder personally approves, authorizes, supervises,

12 and participates in the Associational Tracking Program on behalf of the Department of Justice.

13

46. Defendant John B. Carlin is the current Acting Assistant Attorney General for

14 National Security. In that position, defendant Carlin participates in the Department of Justice’s

15 implementation of the Associational Tracking Program.

16

47. Defendant Federal Bureau of Investigation (FBI) is a component of the Department of

17 Justice that conducts federal criminal investigation and collects domestic intelligence. FBI is

18 responsible for carrying out at least some of the Associational Tracking Program activities

19 challenged herein.

20

48. Defendant James B. Comey is the current Director of the FBI, in office since

21 September of 2013. As FBI Director, defendant Comey has ultimate authority for supervising and

22 implementing all operations and functions of the FBI, including its participation in the Associational

23 Tracking Program. Defendant Comey personally authorizes and supervises the FBI’s participation in

24 the Associational Tracking Program.

25

49. Defendant Robert S. Mueller is the previous Director of the FBI, from September,

26 2001-September, 2013. As FBI Director, defendant Mueller had ultimate authority for supervising

27 and implementing all operations and functions of the FBI, including its participation in the

28

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1 Associational Tracking Program. Defendant Mueller personally authorized and supervised the FBI’s

2 participation in the Associational Tracking Program.

3

50. Defendant Lieutenant General (Ret.) James R. Clapper is the Director of National

4 Intelligence (DNI), in office since August of 2010. Defendant Clapper participates in the activities of

5 the U.S. intelligence community, including the Associational Tracking Program.

6

51. Defendants DOES 1-100 are persons or entities who have authorized or participated in

7 the Associational Tracking Program. Plaintiffs will allege their true names and capacities when

8 ascertained. Upon information and belief each is responsible in some manner for the occurrences

9 herein alleged and the injuries to Plaintiffs herein alleged were proximately caused by the acts or

10 omissions of DOES 1-100 as well as the named Defendants.

11

FACTUAL ALLEGATIONS RELATED TO ALL COUNTS

12

STATUTORY BACKGROUND

13

52. 50 U.S.C § 1861, the codification of section 215 of the USA PATRIOT Act, as

14 amended, is entitled “Access to certain business records for foreign intelligence and surveillance

15 purposes.” Section 1861 provides narrow and limited authority for the Foreign Intelligence

16 Surveillance Court (FISC) to issue orders for the production of “any tangible things (including

17 books, records, papers, documents, and other items) for an investigation to obtain foreign

18 intelligence information not concerning a United States person or to protect against international

19 terrorism or clandestine intelligence activities.” The limitations on section 1861 orders include the

20 following:

21

• an order may be issued only upon “a statement of facts showing that there are

22

reasonable grounds to believe that the tangible things sought are relevant to an

23

authorized investigation;”

24

• the tangible things sought to be produced by an order must be described “with

25

sufficient particularity to permit them to be fairly identified;” and

26

• an order “may only require the production of a tangible thing if such thing can be

27

obtained with a subpoena duces tecum issued by a court of the United States in aid of

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1

a grand jury investigation or with any other order issued by a court of the United

2

States directing the production of records or tangible things.”

3

THE ASSOCIATIONAL TRACKING PROGRAM

4

53. The Associational Tracking Program is electronic surveillance that collects and

5 acquires telephone communications information for all telephone calls transiting the networks of all

6 major American telecommunication companies, including Verizon, AT&T, and Sprint. Every day,

7 the Associational Tracking Program collects information about millions of telephone calls made by

8 millions of Americans. This includes information about all calls made wholly within the United

9 States, including local telephone calls, as well as communications between the United States and

10 abroad.

11

54. Defendants’ Associational Tracking Program collects and acquires call detail records

12 and comprehensive communications routing information about telephone calls. The collected

13 information includes, but is not limited to, session identifying information (e.g., originating and

14 terminating telephone number, International Mobile Subscriber Identity (IMSI) number,

15 International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone

16 calling card numbers, and time and duration of call. Defendants acquire this information through the

17 use of a surveillance device.

18

55. Beginning in 2001, participating phone companies voluntarily provided telephone

19 communications information for the Associational Tracking program to Defendants. Since 2006, the

20 FISC, at the request of Defendants, has issued orders under 50 U.S.C. § 1861 purporting to compel

21 the production of communications information, including communications information not yet in

22 existence, on an ongoing basis, as part of the Associational Tracking Program.

23

56. As an example, attached hereto as Exhibit A, and incorporated herein by this

24 reference, is an Order issued under 50 U.S.C. § 1861 requiring the production of communications

25 information for use in the Associational Tracking Program.

26

57. DNI Clapper has admitted the Order is authentic, as indicated in Exhibit B, attached

27 hereto and incorporated by this reference.

28

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1

58. The Order is addressed to Verizon Business Network Services Inc., on behalf of MCI

2 Communications Services Inc., d/b/a Verizon Business Services (individually and collectively

3 “Verizon”). Verizon is one of the largest providers of telecommunications services in the United

4 States with over 98 million subscribers. Through its subsidiaries and other affiliated entities that it

5 owns, controls, or provides services to, Verizon provides telecommunications services to the public

6 and to other entities. These subsidiaries and affiliated entities include Verizon Business Global,

7 LLC; MCI Communications Corporation; Verizon Business Network Services, Inc.; MCI

8 Communications Services, Inc.; and Verizon Wireless (Cellco Partnership).

9

BULK SEIZURE COLLECTION, ACQUISITION, AND STORAGE

10

59. The Associational Tracking Program seizes, collects and acquires telephone

11 communications information for all telephone calls transiting the networks of all major American

12 telecommunication companies, including Verizon, AT&T, and Sprint.

13

60. The telephone communications information Defendants seize, collect and acquire in

14 bulk as part of the Associational Tracking Program is retained and stored by Defendants in one or

15 more databases. These databases contain call information for all, or the vast majority, of calls wholly

16 within the United States, including local telephone calls, and calls between the United States and

17 abroad, for a period of at least five years. Defendants have indiscriminately obtained and stored the

18 telephone communications information of millions of ordinary Americans, including Plaintiffs, their

19 members, and staffs, as part of the Associational Tracking Program.

20

61. Defendants’ bulk seizure, collection and acquisition of telephone communications

21 information includes, but is not limited to, records indicating who each customer communicates

22 with, at what time, and for how long. The aggregation of this information discloses the expressive,

23 political, social, personal, private, and intimate associational connections among individuals and

24 groups, which ordinarily would not be disclosed to the public or the government.

25

62. Through the Associational Tracking Program, Defendants have seized, collected,

26 acquired, and retained, and continue to seize, collect, acquire, and retain, bulk communications

27 information of telephone calls made and received by Plaintiffs, their members, and their staffs. This

28

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1 information is otherwise private.

2

63. Because of the Associational Tracking Program, Plaintiffs have lost the ability to

3 assure confidentiality in the fact of their communications to their members and constituent.

4 Plaintiffs’ associations and political advocacy efforts, as well as those of their members and staffs,

5 are chilled by the fact that the Associational Tracking Program creates a permanent record of all of

6 Plaintiffs’ telephone communications with their members and constituents, among others.

7

64. Plaintiffs’ associations and political advocacy efforts, as well as those of their

8 members and staffs, are chilled by Defendants’ search and analysis of information obtained through

9 the Associational Tracking Program and Defendants’ use and disclose of this information and the

10 results of their searches and analyses.

11

65. Plaintiffs’ telephone communications information obtained, retained, and searched

12 pursuant to the Associational Tracking Program was at the time of acquisition, and at all times

13 thereafter, neither relevant to an existing authorized criminal investigation nor to an existing

14 authorized investigation to protect against international terrorism or clandestine intelligence

15 activities.

16

66. Defendants’ bulk seizure, collection, acquisition, and retention of the telephone

17 communications information of Plaintiffs, their members, and their staffs is done without lawful

18 authorization, probable cause, and/or individualized suspicion. It is done in violation of statutory and

19 constitutional limitations and in excess of statutory and constitutional authority. Any judicial,

20 administrative, or executive authorization (including any order issued pursuant to the business

21 records provision of 50 U.S.C. § 1861) of the Associational Tracking Program or of the acquisition

22 and retention of the communications information of Plaintiffs, their members, and their staffs is

23 unlawful and invalid.

24

67. Defendants’ bulk seizure, collection, acquisition, and retention of the telephone

25 communications information of Plaintiffs, their members, and their staffs is done (a) without

26 probable cause or reasonable suspicion to believe that Plaintiffs, their members, and their staffs have

27 committed or are about to commit any crime or engage in any international terrorist activity; (b)

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1 without probable cause or reasonable suspicion to believe that Plaintiffs, their members, or their

2 staffs are foreign powers or agents of foreign powers; and (c) without probable cause or reasonable

3 suspicion to believe that the communications of Plaintiffs, their members, and their staffs contain or

4 pertain to foreign intelligence information, or relate to an investigation to obtain foreign intelligence

5 information.

6

68. Defendants, and each of them, have authorized, approved, supervised, performed,

7 caused, participated in, aided, abetted, counseled, commanded, induced, procured, enabled,

8 contributed to, facilitated, directed, controlled, assisted in, or conspired in the Associational Tracking

9 Program and in the seizure, collection, acquisition, and retention of the telephone communications

10 information of Plaintiffs, their members, and their staffs. Defendants have committed these acts

11 willfully, knowingly, and intentionally. Defendants continue to commit these acts and will continue

12 to do so absent an order of this Court enjoining and restraining them from doing so.

13

SEARCH

14

69. Through the Associational Tracking Program, Defendants have searched and continue

15 to search communications information of telephone calls made and received by Plaintiffs, their

16 members, and their staffs. Defendants use the communications information acquired for the

17 Associational Tracking Program for a process known as “contact chaining” — the construction of an

18 associational network graph that models the communication patterns of people, organizations, and

19 their associates.

20

70. As part of the Associational Tracking Program, contact chains are created both in an

21 automated fashion and based on particular queries. Contact chain analyses are typically performed

22 for two degrees of separation (or two “hops”) away from an intended target. That is, an associational

23 network graph would be constructed not just for the target of a particular query, but for any number

24 in direct contact with that target, and any number in contact with a direct contact of the target.

25 Defendants sometimes conduct associational analyses up to three degrees of separation (“three

26 hops”) away.

27

71. The searches include Plaintiffs’ communications information even if plaintiffs are not

28

14

FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW

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1 targets of the government and even if they are not one, two or more “hops” away from a target. All

2 telephone communications information is searched as part of the Associational Tracking Program.

3

72. Plaintiffs’ telephone communications information searched pursuant to the

4 Associational Tracking Program was, at the time of search and at all times thereafter, was neither

5 relevant to an existing authorized criminal investigation nor to an existing authorized investigation to

6 protect against international terrorism or clandestine intelligence activities.

7

73. Defendants’ searching of the telephone communications information of Plaintiffs is

8 done without lawful authorization, probable cause, and/or individualized suspicion. It is done in

9 violation of statutory and constitutional limitations and in excess of statutory and constitutional

10 authority. Any judicial, administrative, or executive authorization (including any business records

11 order issued pursuant 50 U.S.C. § 1861) of the Associational Tracking Program or of the searching

12 of the communications information of Plaintiffs is unlawful and invalid.

13

74. Defendants’ searching of the telephone communications information of Plaintiffs is

14 done (a) without probable cause or reasonable suspicion to believe that Plaintiffs, their members, or

15 their staffs, have committed or are about to commit any crime or engage in any international terrorist

16 activity; (b) without probable cause or reasonable suspicion to believe that Plaintiffs, their members,

17 or their staffs are foreign powers or agents of foreign powers; and (c) without probable cause or

18 reasonable suspicion to believe that Plaintiffs’, their members’, or their staffs’ communications

19 contain or pertain to foreign intelligence information or relate to an investigation to obtain foreign

20 intelligence information.

21

75. Defendants, and each of them, have authorized, approved, supervised, performed,

22 caused, participated in, aided, abetted, counseled, commanded, induced, procured, enabled,

23 contributed to, facilitated, directed, controlled, assisted in, or conspired in the Associational Tracking

24 Program and in the search or use of the telephone communications information of Plaintiffs, their

25 members, and their staff. Defendants have committed these acts willfully, knowingly, and

26 intentionally. Defendants continue to commit these acts and will continue to do so absent an order of

27 this Court enjoining and restraining them from doing so.

28

15

FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW

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1

INJURY COMMON TO ALL PLAINTIFFS

2

76. Each and every Plaintiff is informed and believes that its associational activities have

3 been harmed since the existence of the Associational Tracking Program became publicly known.

4 Each Plaintiff has experienced a decrease in communications from members and constituents who

5 had desired the fact of their communication to Plaintiff to remain secret, especially from the

6 government and its various agencies, or has heard employees, members or associates express

7 concerns about the confidentiality of the fact of their communications with Plaintiffs. Those

8 Plaintiffs who operate hotlines have observed a decrease in calls to the hotlines and/or an increase in

9 callers expressing concern about the confidentiality of the fact of their communications. Since the

10 disclosure of the Associational Tracking Program, Plaintiffs have lost the ability to assure their

11 members and constituents, as well as all others who seek to communicate with them, that the fact of

12 their communications to Plaintiffs will be kept confidential, especially from the federal government,

13 including its various agencies. This injury stems not from the disclosure of the Associational

14 Tracking Program, but from the existence and operation of the program itself. Before the public

15 disclosure of the program, Plaintiffs’ assurances of confidentiality were illusory.

16

77. For instance, these specific Plaintiffs experienced the following:

17

(a) Plainitff First Unitarian has a proud history of working for justice and

18 protecting people in jeopardy for expressing their political views. In the 1950s, it resisted the

19 McCarthy hysteria and supported blacklisted Hollywood writers and actors, and fought California's

20 'loyalty oaths' all the way to the Supreme Court. And in the 1980s, it gave sanctuary to refugees from

21 civil wars in Central America. The principles of its faith often require the church to take bold stands

22 on controversial issues. Church members and neighbors who come to the church for help should not

23 fear that their participation in the church might have consequences for themselves or their families.

24 This spying makes people afraid to belong to the church community.

25

(b) Plaintiff Calguns Foundation runs a hotline for that allows the general public

26 to call to ask questions about California's byzantine firearms laws. It has members who would be

27 very worried about having their calls taped and stored by NSA/FBI when they're enquiring about

28

16

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Case3:13-cv-03287-JSW Document9 Filed09/10/13 Page19 of 28

1 whether firearms and parts they possess are felonious in California. It has a phone number

2 specifically so people or their loved ones can call from jail becaues Californians are often arrested

3 for actually innocent possession oruse of firearms.

4

(c) Plaintiff NLG notes that much of its work involves cases (some high profile)

5 involving individuals who have been charged with aiding terrorism or who have been monitored by

6 the FBI and Joint Terrorism Task Forces for their political activism. Knowledge that its email and

7 telephonic communications may likely be monitored has resulted in restricting what its employees

8 and members say over the telephone and in email about legal advocacy and work related to NLG

9 litigation or legal defense committees. In several instances, it has had to convene in-person meetings

10 to discuss sensitive matters. One example is its “Green Scare” hotline for individuals contacted by

11 the FBI, either as targets or in relation to environmental or animal rights cases. NLG immediately

12 advises Hotline callers that the line may not be secure, asks limited information before referring

13 callers to specific NLG attorneys in their geographic area, and does not keep notes or records of the

14 calls. One foundation funder asks for records of Hotline calls, but in response the NLG can only send

15 general examples of the types of calls it receives.

16

(d) Plaintiff Human Rights Watch conducts research and advocacy such that its

17 effectiveness and credibility depend heavily on being able to interview those with direct knowledge

18 of human rights abuses, be they victims, witnesses, perpetrators, or knowledgeable bystanders such

19 as government officials, humanitarian agencies, lawyers and other civil society partners. Because

20 this type of research and reporting can endanger people and organizations, our stakeholders—

21 including even our researchers and/or consultants--often require us to keep their identities or other

22 identifying information confidential. HRW has staff in these offices who talk to the above-

23 mentioned types of stakeholders by telephone to conduct research. HRW is concerned that many of

24 these stakeholders will have heightened concerns about contacting us through our offices now that

25 we are aware the NSA is logging metadata of these calls. This impairs HRW’s research ability

26 and/or causes HRW to rely more on face-to-face encounters or other costly means of holding secure

27 conversations.

28

17

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1

(e) Plaintiff Shalom Center’s Executive Director, Rabbi Arthur Waskow, was

2 subjected to COINTELPRO activity (warrantless searches, theft, forgery) by the FBI between 1968

3 and 1974. He took part in a suit against the FBI and the Washington DC police (Hobson v. Wilson)

4 for deprivation of the “right of the people peaceably to assemble.” Rabbi Waskow won in DC

5 Federal District Court and the part of the suit that focused on the FBI was upheld in the DC Circuit

6 Court of Appeals. The result of this experience is that he has been very troubled and frightened by

7 the revelations of warrantless mass searches of telephone and Internet communications by the NSA.

8 For several weeks, as the revelations continued, Rabbi Waskow realized the likelihood that the

9 organization he leads, the Shalom Center, and he were under illegitimate surveillance and —

10 because of its involvement in legal and nonviolent opposition to US government policy in several

11 fields — possibly worse. This realization made him rethink whether he wanted to continue in sharp

12 prophetic criticism and action in regard to disastrous public policies. Rabbi Waskow had trouble

13 sleeping, delayed some essays and blogs he had been considering, and worried whether his actions

14 might make trouble for nonpolitical relatives. Rabbi Waskow certainly felt a chill fall across his

15 work of peaceable assembly, association, petition, and the free exercise of his religious convictions.

16

COUNT I

17 Violation of First Amendment—Declaratory, Injunctive, and Other Equitable Relief
(Against All Defendants) 18

78. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding 19

paragraphs of this complaint, as if set forth fully herein. 20

79. Plaintiffs, their members, and their staffs use telephone calls to communicate and to 21

associate within their organization, with their members and with others, including to communicate 22

anonymously and to associate privately. 23

80. By their acts alleged herein, Defendants have violated and are violating the First 24

Amendment free speech and free association rights of Plaintiffs, their members, and their staffs, 25

including the right to communicate anonymously, the right to associate privately, and the right to 26

engage in political advocacy free from government interference. 27

81. By their acts alleged herein, Defendants have chilled and/or threaten to chill

28

18

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Case3:13-cv-03287-JSW Document9 Filed09/10/13 Page21 of 28

1 the legal associations and speech of Plaintiffs, their members, and their staffs by, among other

2 things, compelling the disclosure of their political and other associations, and eliminating Plaintiffs’

3 ability to assure members and constituents that the fact of their communications with them will be

4 kept confidential.

5

82. Defendants are irreparably harming Plaintiffs, their members, and their staffs by

6 violating their First Amendment rights. Plaintiffs have no adequate remedy at law for Defendants’

7 continuing unlawful conduct, and Defendants will continue to violate Plaintiffs’ legal rights unless

8 enjoined and restrained by this Court.

9

83. Plaintiffs seek that this Court declare that Defendants have violated the First

10 Amendment rights of Plaintiffs, their members, and their staffs; enjoin Defendants, their agents,

11 successors, and assigns, and all those in active concert and participation with them from violating the

12 First Amendment to the United States Constitution; and award such other and further equitable relief

13 as is proper.

14

COUNT II

15

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

(Against All Defendants) 16

84. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs 1 17

through 66 of this complaint, as if set forth fully herein. 18

85. Plaintiffs have a reasonable expectation of privacy in their telephone communications, 19

including in their telephone communications information. 20

86. By the acts alleged herein, Defendants have violated Plaintiffs’ reasonable 21

expectations of privacy and denied Plaintiffs their right to be free from unreasonable searches and 22

seizures as guaranteed by the Fourth Amendment to the Constitution of the United States, including, 23

but not limited to, obtaining per se unreasonable general warrants. Defendants have further violated 24

Plaintiffs’ rights by failing to apply to a court for, and for a court to issue, a warrant prior to any 25

search and seizure as guaranteed by the Fourth Amendment. 26

87. Defendants are now engaging in and will continue to engage in the above-described 27

violations of Plaintiffs’ constitutional rights, and are thereby irreparably harming Plaintiffs.

28

19

FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document9 Filed09/10/13 Page22 of 28

1 Plaintiffs have no adequate remedy at law for Defendants’ continuing unlawful conduct, and

2 Defendants will continue to violate Plaintiffs’ legal rights unless enjoined and restrained by this

3 Court.

4

88. Plaintiffs seek that this Court declare that Defendants have violated their Fourth

5 Amendment rights; enjoin Defendants, their agents, successors, and assigns, and all those in active

6 concert and participation with them from violating the Plaintiffs’ rights under the Fourth

7 Amendment to the United States Constitution; and award such other and further equitable relief as is

8 proper.

9

COUNT III

10

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

(Against All Defendants) 11

89. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs 1 12

through 66 of this complaint, as if set forth fully herein. 13

90. Plaintiffs, their members, and their staffs have an informational privacy interest in 14

their telephone communications information, which reveals sensitive information about their 15

personal, political, and religious activities and which Plaintiffs do not ordinarily disclose to the 16

public or the government. This privacy interest is protected by state and federal laws relating to 17

privacy of communications records and the substantive and procedural right to due process 18

guaranteed by the Fifth Amendment. 19

91. Defendants through their Associational Tracking Program secretly seize, collect, 20

acquire, retain, search, and use the bulk telephone communications information of Plaintiffs, their 21

members, and their staff without providing notice to them, or process by which they could seek 22

redress. Defendants provide no process adequate to protect their interests. 23

92. Defendants seize, collect, acquire, retain, search, and use the bulk telephone 24

communications information of Plaintiffs, their members, and their staff without making any 25

showing of any individualized suspicion, probable cause, or other governmental interest sufficient or 26

narrowly tailored to justify the invasion of Plaintiffs’ due process right to informational privacy. 27

93. Defendants seize, and acquire the bulk telephone communications information of

28

20

FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document9 Filed09/10/13 Page23 of 28

1 Plaintiffs, their members, and their staff under, inter alia, section 215 of the USA-PATRIOT Act (50

2 U.S.C. § 1861).

3

94. On information and belief, Defendants’ information seizure, collection and acquisition

4 activities rely on a secret legal interpretation of 50 U.S.C. § 1861 under which bulk telephone

5 communications information of persons generally is as a matter of law deemed a “tangible thing”

6 “relevant” to “an investigation to obtain foreign intelligence information not concerning a United

7 States person or to protect against international terrorism or clandestine intelligence activities,” even

8 without any particular reason to believe that telephone communications information is a “tangible

9 thing” or that the telephone communications information of any particular person, including

10 Plaintiffs, their members, and their staff, is relevant to an investigation to obtain foreign intelligence

11 information not concerning a U.S. person or to protect against international terrorism or clandestine

12 intelligence activities.

13

95. This legal interpretation of 50 U.S.C. § 1861 is not available to the general public,

14 including Plaintiffs, their members, and their staff, leaving them and all other persons uncertain

15 about where a reasonable expectation of privacy from government intrusion begins and ends and

16 specifically what conduct may subject them to electronic surveillance.

17

96. This secret legal interpretation of 50 U.S.C. § 1861, together with provisions of the

18 FISA statutory scheme that insulate legal interpretations from public disclosure and adversarial

19 process, fails to establish minimal guidelines to govern law enforcement and/or intelligence seizure

20 and collection.

21

97. The secret legal interpretation of 50 U.S.C. § 1861 used in the Associational Tracking

22 Program and related surveillance programs causes section 1861 to be unconstitutionally vague in

23 violation of the Fifth Amendment and the rule of law. The statute on its face gives no notice that it

24 could be construed to authorize the bulk seizure and collection of telephone communications

25 information for use in future investigations that do not yet exist.

26

98. By these and the other acts alleged herein, Defendants have violated and are

27 continuing to violate the right to due process under the Fifth Amendment of Plaintiffs, their

28

21

FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document9 Filed09/10/13 Page24 of 28

1 members, and their staff.

2

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

3

100. On information and belief, Defendants are now engaging in and will continue to

4 engage in the above-described violations of Plaintiffs’ constitutional rights, and are thereby

5 irreparably harming Plaintiffs. Plaintiffs have no adequate remedy at law for Defendants’ continuing

6 unlawful conduct, and Defendants will continue to violate Plaintiffs’ legal rights unless enjoined and

7 restrained by this Court.

8

101. Plaintiffs seek that this Court declare that Defendants have violated their due process

9 rights under the Fifth Amendment to the United States Constitution; enjoin Defendants, their agents,

10 successors, and assigns, and all those in active concert and participation with them from violating the

11 Plaintiffs’ due process rights; and award such other and further equitable relief as is proper.

12

COUNT IV

13

Violation of 50 U.S.C. § 1861—Declaratory, Injunctive and Other Equitable Relief

(Against All Defendants) 14

102. Plaintiffs repeat and incorporate herein by reference the allegations in paragraph 1 15

through 66 of this complaint, as if set forth fully herein. 16

103. The business records order provision set forth in 50 U.S.C. § 1861 limits Defendants’ 17

ability to seek telephone communications information. It does not permit the suspicionless bulk 18

seizure and collection of telephone communications information unconnected to any ongoing 19

investigation. It does not permit an order requiring the production of intangible things, including 20

telephone communications information not yet in existence. 21

104. Defendants’ Associational Tracking Program and the seizure, collection, acquisition, 22

retention, searching, and use of the telephone communications records of Plaintiffs, their members, 23

and their staff exceed the conduct that may be lawfully authorized by an order issued under 50 U.S.C 24

§ 1861. 25

105. By the acts alleged herein, Defendants are acting in excess of their statutory authority 26

and in violation of the express statutory limitations and procedures Congress has imposed on them in 27

50 U.S.C. § 1861.

28

22

FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document9 Filed09/10/13 Page25 of 28

1

106. Sovereign immunity for this claim is waived by 5 U.S.C. § 702.

2

107. Defendants are now engaging in and will continue to engage in the above-described

3 acts in excess of Defendants’ statutory authority and in violation of statutory limitations and

4 procedures of 50 U.S.C. § 1861 and are thereby irreparably harming Plaintiffs. Plaintiffs have no

5 adequate remedy at law for Defendants’ continuing unlawful conduct, and Defendants will continue

6 to violate Plaintiffs’ legal rights unless enjoined and restrained by this Court.

7

108. Plaintiffs seek that this Court declare that Defendants have acted in excess of

8 Defendants’ statutory authority and in violation of statutory limitations and procedures of 50 U.S.C.

9 § 1861; declare that Defendants have thereby irreparably harmed and will continue to irreparably

10 harm Plaintiffs; enjoin Defendants, their agents, successors, and assigns, and all those in active

11 concert and participation with them from acting in excess of Defendants’ statutory authority and in

12 violation of statutory limitations and procedures of 50 U.S.C. § 1861; and award such other and

13 further equitable relief as is proper.

14

COUNT V

15

Motion For Return Of Unlawfully Searched And Seized Property Pursuant To

Federal Rule of Criminal Procedure 41(g) 16

109. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs 1 17

through 97 of this complaint, as if set forth fully herein. 18

110. This Court has civil equitable jurisdiction under Federal Rule of Criminal 19

Procedure 41(g) to order the return of illegally searched and seized property. 20

111. Defendants, by their Associational Tracking Program and their bulk seizure, 21

collection, acquisition, retention, searching, and use of the telephone communications information of 22

Plaintiffs, have unlawfully searched and seized Plaintiffs’ telephone communications information. 23

Plaintiffs are aggrieved by Defendants unlawful seizure and search of their telephone 24

communications information. 25

112. Plaintiffs seek an order directing the return of their telephone communications 26

information in the possession, custody, or control of Defendants, their agents, successors, and 27

assigns, and all those in active concert and participation with them.

28

23

FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document9 Filed09/10/13 Page26 of 28

1

PRAYER FOR RELIEF

2

WHEREFORE, Plaintiffs respectfully request that the Court:

3

1. Declare that the Program as alleged herein violates without limitation Plaintiffs’

4

rights under the First, Fourth, and Fifth Amendments to the Constitution; and their

5

statutory rights;

6

2. Award to Plaintiffs equitable relief, including without limitation, a preliminary and

7

permanent injunction pursuant to the First, Fourth, and Fifth Amendments to the

8

United States Constitution prohibiting Defendants’ continued use of the Program,

9

and a preliminary and permanent injunction pursuant to the First, Fourth, and Fifth

10

Amendments requiring Defendants to provide to Plaintiffs an inventory of their

11

communications, records, or other information that was seized in violation of the

12

First, Fourth, and Fifth Amendments, and further requiring the destruction of all

13

copies of those communications, records, or other information within the possession,

14

custody, or control of Defendants.

15

3. Award to Plaintiffs reasonable attorneys’ fees and other costs of suit to the extent

16

permitted by law.

17

4. Order the return and destruction of their telephone communications information in

18

the possession, custody, or control of Defendants, their agents, successors, and

19

assigns, and all those in active concert and participation with them.

20

5. Grant such other and further relief as the Court deems just and proper.

21 DATED: September 10, 2013

Respectfully submitted,

22

/s/ Cindy Cohn

23

CINDY COHN LEE TIEN

24

KURT OPSAHL MATTHEW ZIMMERMAN

25

MARK RUMOLD DAVID GREENE

26

JAMES S. TYRE ELECTRONIC FRONTIER FOUNDATION

27

28

24

FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document9 Filed09/10/13 Page27 of 28

1

RICHARD R. WIEBE

LAW OFFICE OF RICHARD R. WIEBE

2

THOMAS E. MOORE III

3

THE MOORE LAW GROUP

4

RACHAEL E. MENY

MICHAEL S. KWUN

5

BENJAMIN W. BERKOWITZ

KEKER & VAN NEST, LLP

6

ARAM ANTARAMIAN

7

LAW OFFICE OF ARAM ANTARAMIAN

8

Attorneys for Plaintiffs

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

25

FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW

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1

JURY DEMAND

2

Plaintiffs hereby request a jury trial for all issues triable by jury including, but not limited to,

3 those issues and claims set forth in any amended complaint or consolidated action.

4 DATED: September 10, 2013

Respectfully submitted,

5

/s/ Cindy Cohn

6

CINDY COHN LEE TIEN

7

KURT OPSAHL MATTHEW ZIMMERMAN

8

MARK RUMOLD DAVID GREENE

9

JAMES S. TYRE ELECTRONIC FRONTIER FOUNDATION

10 RICHARD R. WIEBE

11

LAW OFFICE OF RICHARD R. WIEBE

12

THOMAS E. MOORE III

THE MOORE LAW GROUP

13 RACHAEL E. MENY

14

MICHAEL S. KWUN

BENJAMIN W. BERKOWITZ

15

KEKER & VAN NEST, LLP

16

ARAM ANTARAMIAN

LAW OFFICE OF ARAM ANTARAMIAN

17 Attorneys for Plaintiffs

18

19

20

21

22

23

24

25

26

27

28
26 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW

 
 Case3:13-cv-03287-JSW Document26 Filed11/06/13 Page1 of 4

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF SASCHA ME) INRATH FOR ACORN ACTIVE ME) DIA IN SUPPORT OF PL)AINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor
)

26

27

28

DECLARATION OF SASCHA MEINRATH FOR ACORN ACTIVE MEDIA ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document26 Filed11/06/13 Page2 of 4

1

I, SASCHA MEINRATH, hereby declare:

2

1. I am the Co-founder and President of the Acorn Active Media Foundation. The facts

3 contained in the following affidavit are known to me of my own personal knowledge and if called

4 upon to testify, I could and would competently do so.

5

2. Our organization engages in software, website, and technical development in support

6 of the global justice movement.

7

3. The Acorn Active Media Foundation is an outlet for technically skilled members to

8 build technical resources for groups, non-profits, and individuals who otherwise do not have the

9 capacity or would not be able to afford these services. Since Acorn’s inception in January 2004, it

10 has engaged in website design, web application development, general technical consulting and

11 hardware support, and organizational database development for a diverse array of groups,

12 individuals, and organizations from around the globe. Acorn members have supported democracy

13 advocates and independent media outlets worldwide, often working directly with communities

14 laboring under hostile and oppressive regimes.

15

4. In addition, members of the Acorn Active Media Foundation work directly on several

16 U.S. Government-funded initiatives to help bring free, safe communications to people living under

17 some of the most repressive regimes on the planet. The security of the communications with these

18 individuals and communities often is a matter of life and death for our local partners and the active

19 surveillance of these communications certainly raises profound risks for our local partners. Thus, it

20 would be an unfortunate reality that one arm of the US Government is actively undermining the

21 work of the US State Department, USAID, and the Broadcasting Board of Governors by surveilling

22 our work.

23

5. The collection of our phone records by the government has resulted in (1) harassment,

24 membership withdrawal, and/or discouragement of new members, and (2) other consequences which

25 objectively suggest an impact on, or ‘chilling’ of, the members’ associational rights. I say this

26 because of the following facts:

27

6. The Acorn Active Media Foundation was previously involved with a similar case

28

1

DECLARATION OF SASCHA MEINRATH FOR ACORN ACTIVE MEDIA

ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document26 Filed11/06/13 Page3 of 4

1 whereby an entire server that Acorn helped maintain and that hosted the websites and other materials

2 of multiple organizations was improperly seized by the government based on an investigation into

3 one of the organizations. The result was substantial harm to the news-gathering activities of

4 organizations Acorn supported. The ensuing technical recovery and lawsuit required substantial

5 time from Acorn members and lead to active concerns about ongoing surveillance of our work.

6

7. When the news of the government’s collection of phone records and other

7 communications-related information became public, numerous members of the Acorn Active Media

8 Foundation became increasingly concerned that our initiatives are once again being swept up into

9 surveillance, including surveillance that is targeted at others. In particular, this is because Acorn's

10 members work daily with human rights workers and democracy advocates around the globe on

11 highly sensitive initiatives. This is true even though some of those initiatives are directly funded by

12 other portions of the U.S. Government.

13

8. This fear of collection in general, and of the possible targeting of our associates, has

14 had a chilling effect on communications. Our work is predicated upon the trust of the individuals

15 and communities we interact with, and as more information is gleaned about the nature of the NSA's

16 surveillance, local partners around the globe have been increasingly hesitant about communicating

17 with our team.

18

9. The Associational Tracking Program activities have harmed us because we have

19 experienced a decrease in communications from associates, especially human rights workers and

20 democracy advocates in the U.S. and around the world. While we have worked diligently to ensure

21 PGP encryption of critical communications, concerns have already been raised by human rights

22 advocates in Syria, Turkey, and Cuba about the security of their communications with Acorn

23 members.

24

10. Prior to the disclosure of the Associational Tracking Program, we tried to assure our

25 partners about the security and confidentiality of their communications with Acorn members, but it

26 seems that those assurances were not well founded. Since the disclosure of the program, we can no

27 longer provide those assurances.

28

2

DECLARATION OF SASCHA MEINRATH FOR ACORN ACTIVE MEDIA

ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document26 Filed11/06/13 Page4 of 4

1

11. Moreover, the ongoing revelations, the government’s unclear and changing responses

2 and public misdirection have left us unable to reassure our members and associates that additional

3 forms of surveillance, as yet unconfirmed or actively denied by the government are not also

4 occurring, leaving us scrambling to implement alternative forms of confidential communication --

5 many of which require technological acumen that our local partners simply do not have.

6

I declare under penalty of perjury under the laws of the United States of America that

7 the foregoing is true and correct. Executed on November 1, 2013 at San Francisco, California.

8

9

10

__________________________

11

SASCHA MEINRATH

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

DECLARATION OF SASCHA MEINRATH FOR ACORN ACTIVE MEDIA

ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document27 Filed11/06/13 Page1 of 4

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF SHAHID BU)TTAR ON BEHALF OF THE BILL OF) RIGHTS DEFENSE CO)MMITTEE IN SUPPORT OF PL)AINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor

26

27

28
DECLARATION OF SHAHID BUTTAR FOR THE BILL OF RIGHTS DEFENSE COMMITTEE ISO
PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document27 Filed11/06/13 Page2 of 4

1 I, SHADID BUTTAR, hereby declare:

2

1. I am the Executive Director of The Bill Of Rights Defense Committee. The facts

3 contained in the following affidavit are the products of my own personal knowledge and if called

4 upon to testify, I can and will competently do so.

5

2. Our organization builds grassroots coalitions at the local, statewide and national

6 levels for the purpose of advancing the civil liberties guaranteed under the Bill of Rights.

7

3. Until 2013, we were a telecommunications customer of Verizon.

8

4. The collection of our phone records by the government has resulted in (1) harassment,

9 withdrawal of constituent partners, and/or the suppression of engagement by new constituent

10 partners out of fear that their association with an organization like the Bill of Rights Defense

11 Committee that advocates for individual civil liberties will expose them to governmental scrutiny,

12 and (2) other consequences which include, but are not limited to, an objective impact on, or

13 ‘chilling’ of, the members’ associational rights, the narrowing of speech by members in civil

14 discourse, the suppression of member’s civic participation in demonstrations protected by the First

15 Amendment, the cancelation of receipt of informational literature such as email listservs and

16 physical mailings and the muting and/or suppression of the scope and quality of political speech to

17 such an extent that it occurs in the capacity that the member remains connected with the

18 organization.

19

4. The Associational Tracking Program activities have harmed us because they have

20 diminished our member engagement. Prior to the disclosures, our supporters were generally eager to

21 engage in activism promoting individual civil liberties. Following the disclosures, many individuals

22 have expressed to us a declining willingness to engage grassroots organizing out of concern that it

23 will make them a target of government harassment. This has caused them to become less involved in

24 our work where they otherwise would have maintained their involvement. Our organization’s

25 programs and funding have both suffered as a result.

26

5. Since the disclosure of the Associational Tracking Program, we have lost the ability

27 to assure our members and constituents, as well as all others who seek to communicate with us, that

28 1
DECLARATION OF SHAHID BUTTAR FOR THE BILL OF RIGHTS DEFENSE COMMITTEE ISO PLAINTIFFS’ MSJ CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document27 Filed11/06/13 Page3 of 4

1 the fact of their communications to and with us will be kept confidential.

2

6. Since the disclosure, it has become clear that our previous assurances of confidentiality

3 to our supporters were in fact not true.

4

7. As a result, we can no longer promise our supporters that we will treat their

5 communications as confidential. Because the NSA’s secret activities have been revealed only in part,

6 and because the government has not fully described the extent of the surveillance, we cannot be sure

7 that alternative modes of communication will be confidential.

8

8. Specifically, we have experienced the following:

9

(a) A supporter of the Bill Of Rights Defense Committee who currently lives in

10 Washington, D.C. and works as an artist has confirmed that NSA data collection chilled his personal

11 willingness to engage in political speech and activism. This person’s fears are based on prior

12 incidents, rather than conjecture: he has previously endured police violence and misconduct in the

13 context of prior restraints on First Amendment activity, for which he has been awarded a favorable

14 court judgment.

15

(b) Across our network are thousands of grassroots activists who have proactively

16 challenged government spying in a variety of capacities, including by organizing marches, rallies,

17 protests, and other grassroots coalition activities. Each of these supporters has reasons to be

18 particularly concerned about NSA spying, and several have indicated feeling personally intimidated

19 by the prospect of government agencies monitoring their correspondence and telecommunications.

20

I declare under penalty of perjury under the laws of the United States of America that

21 the foregoing is true and correct. Executed on October __, 2013 at Washington, DC.

22

23

__________________________

24

SHADID BUTTAR

25

26

27

28 2
DECLARATION OF SHAHID BUTTAR FOR THE BILL OF RIGHTS DEFENSE COMMITTEE ISO PLAINTIFFS’ MSJ CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document27 Filed11/06/13 Page4 of 4

I the fact of their communicationsto and with us will be kept confidential.

2

6. Sincethedisclosure,it hasbecomeclearthatour previousassuranceosf confidentiality

3 our supporterswerein fact not true.

4

7. As a result,we can no longer promiseour supportersthat we will treat their

5 communicationsasconfidential.BecausetheNSA's secretactivitieshavebeenrevealedonly in part,

6 andbecausethe governmenthasnot fully describedthe extentof the surveillance,we cannotbesure

7 that alternativemodesof communicationwill be confidential.

8

8. Specifically, we have experiencedthe following:

9

(a) A supporter of the Bill of Rights Defense Committee who currently lives in

1 0 Washington,D.C. andworks asanartisthasconfirmedthatNSA datacollection chilled his personal

ll willingness to engagein political speechand activism. This person's fears are basedon prior

t 2 incidents,ratherthan conjecture:he haspreviously enduredpolice violence andmisconductin the

1 3 contextof prior restraintson First Amendmentactivity, for which he hasbeenawardeda favorable t4 courtjudgment.

15

(b) Across our network are thousandsof grassrootsactivists who have proactively

t 6 challengedgovernmentspying in a variety of capacities,including by organizingmarches,rallies,

t 7 protests, and other grassrootscoalition activities. Each of these supportershas reasonsto be

1 8 particularlyconcernedaboutNSA spying,andseveralhaveindicatedfeeling personallyintimidated

T 9 by the prospectof governmentagenciesmonitoring their correspondenceandtelecommunications.

20

I declareunderpenaltyof perjury underthe lawsof theUnited Statesof America that

2 l the foregoing is true and correct.Executedon October 4 ,2013 in Washington,DC.

22

23

24

SHAHID UTTAR

25

26

27

28

DECLARATIONOFSHAHIDBUTTARFORTHE BILL OFRIGHTS DEFENSECOMMITTEEISOPLAINTIFFSM' SJ
aAqF Nn l?-crr-??R7 TQ\tr/

Case3:13-cv-03287-JSW Document31 Filed11/06/13 Page1 of 4

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.,

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF BRANDON CO)MBS FOR CALIFORNIA AS)SOCIATION OF FEDERAL FIR) EARMS LICENSEES IN)SUPPORT OF PLAINTIFFS' MO) TION FOR PARTIAL SUMMARY JU)DGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Courtroom 11 - 19th Floor

26

27

28
DECLARATION OF BRANDON COMBS FOR CALIFORNIA ASSOCIATION OF FEDERAL FIREARMS LICENSEES ISO PLAINTIFFS' MSJ

Case3:13-cv-03287-JSW Document31 Filed11/06/13 Page2 of 4

1

I, BRANDON COMBS, hereby declare:

2

1. I am the President of California Association of Federal Firearms Licensees (CAL-

3 FFL). The facts contained in the following affidavit are known to me of my own personal

4 knowledge and if called upon to testify, I could and would competently do so.

5

2. Our organization advocates for the interests of its members and the general public

6 through strategic litigation, legislative efforts, and education. CAL-FFL expends financial and

7 other resources in both litigation and non-litigation projects to protect the interests of its

8 members and the public at large.

9

3. The collection of our phone records by the government has resulted in

10 (1) harassment, membership withdrawal, and/or discouragement of new members, and (2) other

11 consequences which objectively suggest an impact on, or ‘chilling’ of, the members’

12 associational rights. I say this because of the following facts:

13

4. Some people, including both current and prospective CAL-FFL members, do not

14 wish to have the calls to the Association tracked, monitored, or otherwise recorded by the

15 government due to the often sensitive nature of the communications.

16

5. The Associational Tracking Program activities have harmed us because we have

17 experienced a decrease in communications from members and constituents who had desired the

18 fact of their communication to Plaintiff to remain secret.

19

6. We have experienced an increase in people, both members and non-members,

20 expressing concern about the confidentiality of their communications.

21

7. Since the disclosure of the Associational Tracking Program, we have lost the

22 ability to assure our members and constituents, as well as all others who seek to communicate

23 with use, that the fact of their communications to and with us will be kept confidential.

24

8. We made assurances of confidentiality prior to the disclosures, but now we are

25 concerned that were based not based in fact.

26

9. Moreover, we remain unable to assure confidentiality to our members because we

27 are unable to have confidence that the governmental surveillance is limited to just what is now

28 1
DECLARATION OF BRANDON COMBS FOR CALIFORNIA ASSOCIATION OF FEDERAL FIREARMS LICENSEES ISO PLAINTIFFS' MSJ CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document31 Filed11/06/13 Page3 of 4

1 publicly available. We fear that other forms of surveillance may reach communications that our

2 members make with us through means other than the telephone, leaving us with no reasonable

3 suggestion for our members who wish to communicate with us confidentially.

4

I declare under penalty of perjury under the laws of the United States of America that the

5 foregoing is true and correct. Executed on October 29, 2013 at Turlock, California.

6

__________________________

7

BRANDON COMBS

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2
DECLARATION OF BRANDON COMBS FOR CALIFORNIA ASSOCIATION OF FEDERAL FIREARMS LICENSEES ISO PLAINTIFFS' MSJ CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document31 Filed11/06/13 Page4 of 4

publicly available. We fear that other forms of surveillance may reach communications that our

2 members make with us through means other than the telephone, leaving us with no reasonable

3 suggestion for our members who wish to communicate with us confidentially.

4

I declare under penalty of perjury under the laws of the United States of America that the

5 foregoing is true and correct. Executed on Oct b

at Turlock, California.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2
DECLARATION OF BRANDON COMBS FOR CALIFORN IA ASSOCIATIOl\ OF FEDERA L FIREARMS LICENSEES ISO PLAINTIFFS' MSJ CA SE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document28 Filed11/06/13 Page1 of 6

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.,

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF ZAHRA BIL) LOO FOR THE COUNCIL ON AM) ERICAN-ISLAMIC RELATIONS CA)LIFORNIA IN SUPPORT OF PL)AINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor

26

27

28

DECLARATION OF ZAHRA BILLOO FOR THE COUNCIL ON AMERICAN-ISLAMIC RELATIONS

CALIFORNIA ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document28 Filed11/06/13 Page2 of 6

1

I, Zahra Billoo, hereby declare:

2

1. I am the Executive Director of the San Francisco Bay Area office of the Council on

3 American-Islamic Relations, California chapter. The facts contained in the following affidavit are

4 known to me of my own personal knowledge and if called upon to testify, I could and would

5 competently do so.

6

2. CAIR-CA is a chapter of CAIR, America's largest Muslim civil liberties and

7 advocacy organization. Its mission is to enhance the understanding of Islam, encourage dialogue,

8 protect civil liberties, empower American Muslims, and build coalitions that promote justice and

9 mutual understanding. Each year we provide direct and free legal services to hundreds of California

10 Muslims complaining of discrimination and targeting based on their religious beliefs. We reach

11 thousands more through our “know your rights” workshops at campuses, community centers, and

12 mosques across the state.

13

3. The compelled disclosure of our phone records to the government has resulted in an

14 inability to assure our constituency that the fact of their communication with us is, indeed,

15 confidential, leading to an increased reticence on the part of the California Muslim community to

16 seek our organization’s assistance. This reticence, in turn, undermines our ability to effectively

17 advance and advocate CAIR’s mission: enhancing the understanding of Islam and protecting the

18 civil liberties of our constituents.

19

4. I say this based on the following facts:

20

5. CAIR provides legal services and advice to individuals unjustly targeted by

21 government surveillance and investigations. Of the hundreds of individuals we represent and serve,

22 many call with complaints of FBI visits and other law enforcement harassment. These individuals

23 are overwhelmingly innocent Americans who are being contacted by federal law enforcement to be

24 “voluntarily” questioned about their religious beliefs and political activities.

25

6. For example: in Islamic Shura Council v. FBI, 11 plaintiffs including CAIR-CA and

26 CAIR-CA’s Greater Los Angeles Area Executive Director Hussam Ayloush, learned that the FBI

27 had been monitoring them for an extended period of time, had kept extensive records of this

28

1

DECLARATION OF ZAHRA BILLOO FOR THE COUNCIL ON

AMERICAN-ISLAMIC RELATIONS CALIFORNIA ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document28 Filed11/06/13 Page3 of 6

1 surveillance and had then misrepresented having any documents about it in response to a FOIA

2 request filed by plaintiffs

3

7. To provide another example, between 2011 and 2012, CAIR-CA’s attorneys have

4 assisted over 170 Californians complaining of FBI visits and harassment. In the overwhelming

5 majority of these cases, the complainants were never charged with any crime. In instances where the

6 complainants did not assert their right to counsel immediately and did agree to speak with law

7 enforcement, they were then surprised to be questioned about their religious beliefs and practices.

8

8. Many members of the Muslim community are afraid of upsetting law enforcement by

9 asserting their rights. They often believe the promises and threats made by FBI agents to

10 “complicate” or escalate things, talk to their neighbors and employers, or even assist with or harm

11 immigration applications. Further, many members of the community are even unaware of their rights

12 and so cooperate from a broader place of fear and a general sense of unawareness of the

13 unconstitutional nature of the interaction. Because of these concerns, our clients and constituents

14 often ask for the utmost confidentiality when seeking our help.

15

6. Further, many members of the California Muslim community fear their

16 communications are being surveilled by law enforcement. These fears are not speculative.

17

7. For example, CAIR-CA represents Yasir Afifi. In 2010, Afifi discovered what he later

18 learned was a GPS tracking device under his car during a routine oil change. He took pictures of the

19 device, placed them on the internet to attempt to learn what it was, and just a couple of days later was

20 visited by FBI agents outside his apartment. The agents identified themselves and in no uncertain

21 terms asked for the device to be returned. They threatened him, if he didn’t return the device. When

22 he did, the agents questioned him about his family and community members. FOIA documents

23 obtained on his behalf, as well as conversations with one of the FBI agents and the mechanic who

24 performed the oil change confirmed Afifi’s account of what happened.

25

8. Similarly, the ACLU and Advancing Justice-Asian Law Caucus obtained thousands of

26 pages of documents revealing the FBI’s “outreach” efforts in Northern California mosques. The

27 documents showed that for several years agents had visited dozens of Bay Area Muslim houses of

28

2

DECLARATION OF ZAHRA BILLOO FOR THE COUNCIL ON

AMERICAN-ISLAMIC RELATIONS CALIFORNIA ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document28 Filed11/06/13 Page4 of 6

1 worship under the guise of conducting outreach but instead had been gathering information, which

2 would be filed as intelligence. While many community leaders had for so long been receptive to law

3 enforcement attempts to build relationships, learning later that outreach was never the primary

4 objective confirmed the fears of many.

5

9. CAIR was able to make assurances of confidentiality prior to the disclosure of the

6 Associational Tracking Program and attempt to continue to do so. However, since the disclosure, we

7 cannot assure our clients and constituents, as well as all others who seek to communicate with us, that

8 the fact of their communications to and with us are confidential.

9

10. Further, we can no longer assure our constituents that their communications with us

10 will not, in the eyes of the federal government, implicate them or otherwise create a relationship with

11 another individual who has also contacted CAIR to seek assistance.

12

11. To illustrate, CAIR-CA’s four offices manage intake lines that allow the general

13 public, and, more specifically, members of the American Muslim community, to call to seek help if

14 they are contacted by law enforcement or if they have concerns about law enforcement, surveillance,

15 or travel abroad. Some callers explain that they are afraid to speak over the phone for fear of

16 monitoring, and will either withhold all identifying information in conversations or will insist on

17 meeting in person.

18

12. The overwhelming majority of people who contact us are never indicted or otherwise

19 formally accused of any crime.

20

13. Nevertheless, CAIR-CA’s work does involve cases (some high profile) involving

21 individuals who have been charged with aiding terrorism or who have been monitored by the FBI and

22 Joint Terrorism Task Forces for their religious and political activism.

23

14. It is my understanding that the government uses the Associational Tracking Program

24 to investigate the contacts and relationships between those suspected of terrorism-related activities

25 and crimes.

26

15. It is also my understanding that, when using the Associational Tracking Program, the

27 government often examines multiple “degrees” of relationships between individuals, or “hops” of

28

3

DECLARATION OF ZAHRA BILLOO FOR THE COUNCIL ON

AMERICAN-ISLAMIC RELATIONS CALIFORNIA ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document28 Filed11/06/13 Page5 of 6

1 associations. This means the government can examine the contact patterns and relationships between

2 an individual and their contacts; their contacts’ contacts; and the contacts of their contacts’ contacts. I

3 understand that these webs of associations can expand to include many thousands, if not millions, of

4 people.

5

16. By virtue of this “guilt by association” form of analysis, large swaths of the California

6 Muslim community may be subject to government scrutiny, simply by virtue of having contacted

7 CAIR and because of CAIR’s advocacy efforts on behalf of those wrongly accused. That is, if a

8 CAIR client accused of a terrorism-related crime contacts us, all those who contact CAIR may

9 subsequently be put at risk of government scrutiny, solely through their shared “association” with

10 CAIR.

11

17. Since the disclosure of the Associational Tracking Program, we have lost the ability to

12 confidently assure American Muslim community members, as well as all others who seek to

13 communicate with us, that the fact of their communications to and with us will be kept confidential.

14

18. When the very act of communicating by phone with those we aim to serve puts our

15 constituents at risk for further government scrutiny, our organizational mission is essentially

16 undermined. The Associational Tracking Program undermines CAIR’s ability to effectively

17 accomplish its mission of defending the civil liberties of American Muslims.

18

I declare under penalty of perjury under the laws of the United States of America that

19 the foregoing is true and correct. Executed on _______ __, 2013 at _____, California.

20

21

__________________________

22

ZAHRA BILLOO

23

24

25

26

27

28

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DECLARATION OF ZAHRA BILLOO FOR THE COUNCIL ON

AMERICAN-ISLAMIC RELATIONS CALIFORNIA ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document28 Filed11/06/13 Page6 of 6

ssociations. This means the government can examine the contact patterns and relationships between

2 individual and their contacts; their contacts' contacts; and the contacts of their contacts' contacts. I

3 nderstand that these webs of associations can expand to include many thousands, if not millions of

4

5

16. By virtue of this "guilt by association" form of analysi , large swaths of the California

6 uslim community may be subject to government scrntiny, simply by virtue of having contacted

7 AIR and because of CAlR 's advocacy efforts on behalf of those wrongly accused. That is, if a

8 AIR client accused of a terrorism-related crime contacts us , all those who contact CAlR may

9 ubsequently be put at risk of government scrntiny, solely through their shared "association" with

10

11

17. Since the disclosure of the Associational Tracking Program, we have Jost the ability to

12 onfidently assure American Muslim community members, a well as all others who seek to

13 ommunicate with us, that the fact of their communications to and with us will be kept confidential.

14

18. When the very act of communicating by phone with those we aim to serve puts our

15 onstituents at risk for further government scrutiny, our organizational mission is essentially

16 dermined. The Associational Tracking Program undermines CAIR's ab ility to effectively

17 ccomplish its mission of defending the civil libertie of American Muslims.

18

I declare under penalty ofperjury under the laws of the United States ofAmerica that

19 the foregoing is true and correct. Executed on ~Dvernb:r _\ , 2013 at ~anto(hu Califomia.

20

21

22

23

24

25

26

27

28

4

DECLARATION OF ZAHRA BILLOO FOR THE COUNCIL ON AMERICAN-ISLAMIC RELATIONS CALIFORNIA ISO PLAINTIFFS' MSJ
CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document29 Filed11/06/13 Page1 of 5

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF GADEIR ABBAS ON) BEHALF FOR THE COUNCIL ON) AMERICAN-ISLAMIC RE)LATIONS IN SUPPORT OF PL)AINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGMENT
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor
)

26

27

28

DECLARATION OF GADEIR ABBAS ON BEHALF FOR THE COUNCIL ON AMERICAN-ISLAMIC

RELATIONS IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Case3:13-cv-03287-JSW Document29 Filed11/06/13 Page2 of 5

1

I, Gadeir Abbas, hereby declare:

2

1. I am the Staff Attorney with CAIR Foundation. The facts contained in the following

3 affidavit are known to me of my own personal knowledge and if called upon to testify, I could and

4 would competently do so.

5

2. Our organization seeks to enhance the understanding of Islam, encourage dialogue,

6 and empower American Muslims. Additionally, CAIR Foundation provides legal services to

7 persons who are injured by private or governmental actors subjecting them to discriminatory

8 treatment. Many of the individuals who CAIR Foundation represents are on government watch lists

9 that prevent or inhibit their travel, some of whom are located outside the United States. Others are

10 the target of coercive FBI requests to submit to interrogation.

11

3. The collection of our phone records by the government has and continues to (1)

12 inhibit CAIR Foundation’s ability to communicate with its clients in furtherance of its legal services

13 and (2) have other consequences which objectively suggest an impact on, or a ‘chilling’ of, our

14 organization’s associational rights.

15

4. I say this because of the following facts:

16

a. On numerous occasions, prospective clients and current clients have been

17

unwilling to communicate frankly over the phone or via email due to concerns of

18

government surveillance. This has hindered my ability to provide legal services

19

and has also interfered with my ability to assess whether or not to retain

20

particular clients.

21

b. Additionally, believing that the United States would possess records pertaining to

22

any communication I make, I have been forced to counsel clients in person rather

23

than over the phone to avoid surveillance. In some instances, we have removed

24

the batteries from our phones when particularly sensitive discussions arose to

25

prevent the collection of data.

26

c. In a few instances, I have had to utilize specialized encryption computer software

27

to communicate with persons overseas. Such communications cannot and do not

28

1

DECLARATION OF GADEIR ABBAS ON BEHALF FOR THE COUNCIL

ON AMERICAN-ISLAMIC RELATIONS ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document29 Filed11/06/13 Page3 of 5

1

qualitatively replace the utility of communicating over the phone.

2

d. And as a general matter, because many of the persons CAIR Foundation

3

represents are subject to tangible manifestations of federal government scrutiny,

4

discretion and confidentiality in their communications and associations with us is

5

of paramount importance to such persons. Knowing that the government is

6

certainly logging communications such persons may have with CAIR Foundation

7

will deter these persons from seeking our assistance.

8

e. The Associational Tracking Program has also interfered with my ability to

9

communicate with co-counsel about issues that pertain to our legal representation

10

of clients.

11

5. Thus, the Associational Tracking Program activities have harmed us because we have

12 assumed extra burdens and have otherwise been inhibited in providing our legal services with clients

13 who had desired the fact of their communication to us to remain secret.

14

6. Further, we can no longer assure prospective clients, current clients, constituents, and

15 CAIR affiliates that their communications with us will not, in the eyes of the federal government,

16 implicate them or otherwise create a relationship with another individual who has also contacted

17 CAIR to seek assistance.

18

7. To illustrate, CAIR Foundation serves as the national headquarters for all local and

19 regional CAIR offices. Although each local affiliate is an independent legal entity, CAIR Foundation

20 frequently communicates by phone with those offices.

21

8. CAIR Foundation, and most CAIR affiliates, provide legal advice and support for

22 Muslims who are being threatened with or who have experienced law enforcement harrassment of

23 some nature. The overwhelming majority of people who contact us are never indicted, however, or

24 are never otherwise formally accused of any crime.

25

9. Nevertheless, CAIR Foundation’s work does involve cases (some high profile)

26 involving individuals who have been charged with aiding terrorism or who have otherwise come

27 under formal government indictment or scrutiny, such as those on watch lists maintained by the

28

2

DECLARATION OF GADEIR ABBAS ON BEHALF FOR THE COUNCIL

ON AMERICAN-ISLAMIC RELATIONS ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document29 Filed11/06/13 Page4 of 5

1 federal government which are comprised of individuals the government considers “known or

2 appropriately suspected terrorists.”

3

10. It is my understanding that the government uses the Associational Tracking Program

4 to investigate the contacts and relationships of those suspected of terrorism-related activities and

5 crimes.

6

11. It is also my understanding that, when using the Associational Tracking Program, the

7 government often examines multiple “degrees” of relationships between individuals, or “hops” of

8 associations. This means the government can examine the contact patterns and relationships between

9 an individual and their contacts; their contacts’ contacts; and the contacts of their contacts’ contacts. I

10 understand that these webs of associations can expand to include many thousands, if not millions, of

11 people.

12

12. By virtue of this “guilt by association” form of analysis, large swaths of the American

13 Muslim community may be subject to government scrutiny, simply by virtue of having contacted

14 CAIR and because of CAIR’s advocacy efforts on behalf of those who have sought CAIR’s help.

15 That is, if a CAIR client accused or suspected of a terrorism-related crime contacts us, all those who

16 contact CAIR — including our constituents, prospective clients, other CAIR affiliates, and even

17 CAIR affiliate’s prospective clients — are accordingly put at risk of government scrutiny, solely

18 through their shared “association” with CAIR.

19

13. Since the disclosure of the Associational Tracking Program, we have lost the ability to

20 confidently assure American Muslim community members, as well as all others who seek to

21 communicate with us, that the fact of their communications to and with us will be kept confidential.

22

14. When communications to which we are a party trigger additional government scrutiny,

23 our organizational mission is undermined. The Associational Tracking Program makes it more

24 difficult for CAIR to effectively accomplish its mission of defending the civil liberties of American

25 Muslims.

26

///

27

///

28

3

DECLARATION OF GADEIR ABBAS ON BEHALF FOR THE COUNCIL

ON AMERICAN-ISLAMIC RELATIONS ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document29 Filed11/06/13 Page5 of 5

1

I declare under penalty of perjury under the laws of the United States of America that

2 the foregoing is true and correct. Executed on _N_ov_e_m_b_er _1_, 2013 at Washington DC.

3

__________________________

4

GADEIR BBAAS

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

DECLARATION OF GADEIR ABBAS ON BEHALF FOR THE COUNCIL

ON AMERICAN-ISLAMIC RELATIONS ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document30 Filed11/06/13 Page1 of 5

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF JENNIFER NIM) ER FOR THE COUNCIL ON AM) ERICAN-ISLAMIC RELATIONS OH) IO IN SUPPORT OF PL)AINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor

26

27

28 DECLARATION OF JENNIFER NIMER FOR THE COUNCIL ON AMERICAN-ISLAMIC RELATIONS OHIO
ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document30 Filed11/06/13 Page2 of 5

1

I, Jennifer Nimer, hereby declare:

2

1. I am the Legal Director for the Council on American Islamic Relations – Ohio

3 (“CAIR-OHIO”). The facts contained in the following affidavit are known to me of my own

4 personal knowledge and if called upon to testify, I could and would competently do so.

5

2. CAIR-Ohio is the largest Muslim civil rights organization in Ohio. We have three

6 active chapters in Cleveland, Columbus, and Cincinnati. We handle thousands of telephone calls per

7 year from our community. We serve approximately 200,000 Muslims across the state of Ohio.

8

3. CAIR-OHIO provides legal services to persons who are injured due to discriminatory

9 treatment by private or governmental actors.

10

4. In addition to working on cases involving discrimination, we also handle thousands of

11 referrals and inquiries from the Muslim and interfaith communities across the state. The referrals

12 could be seeking anything from a speaker for an interfaith panel to requests for help with a domestic

13 violence situation, immigration issues, requests for marital or psychiatric counseling, requests for

14 charitable assistance, drug abuse issues, juvenile legal cases, etc.

15

5. In short, CAIR-Ohio is a clearing house for all things related to the Muslim

16 community, as we are the main contact center for Muslims in Ohio. We frequently handle some of

17 the most sensitive and personal issues in the community, issues that require a high degree of trust,

18 confidentiality and privacy between us and our constituents.

19

6. The collection of our phone records by the government has and continues to (1)

20 inhibit CAIR-Ohio’s ability to communicate with individuals seeking our help and (2) has other

21 consequences which objectively suggest an impact on, or ‘chilling’ of, our organization’s

22 associational rights.

23

7. I say this because of the following facts:

24

8. On numerous occasions, prospective clients and current-clients have been unwilling to

25 communicate frankly over the phone or email due to concerns of government surveillance. This has

26 hindered my organization’s ability to provide legal services and has also interfered with my

27 organization’s ability to assess whether or not to help or retain particular clients.

28

1

DECLARATION OF JENNIFER NIMER FOR THE COUNCIL ON

AMERICAN-ISLAMIC RELATIONS OHIO ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document30 Filed11/06/13 Page3 of 5

1

9. Additionally, believing that the United States would possess records pertaining to any

2 communication my organization makes, we have been forced to counsel clients in person rather than

3 over the phone to avoid surveillance.

4

10. And as a general matter, because many of the persons CAIR-OHIO represents are

5 subject to tangible manifestations of federal government scrutiny - discretion and confidentiality in

6 their communications and associations with us is of paramount importance to such persons.

7 Knowing that the government is certainly logging communications such persons may have with

8 CAIR-OHIO deters these persons from seeking our assistance.

9

11. Thus, the Associational Tracking Program activities have harmed us because we have

10 assumed extra burdens and have otherwise been inhibited in providing our legal services to clients

11 who had desired the fact of their communication to us to remain secret.

12

12. CAIR-OHIO’s work does involve cases (some high profile) involving individuals

13 who have been charged with aiding terrorism or have otherwise come under formal government

14 indictment or scrutiny.

15

10. It is my understanding that the government uses the Associational Tracking Program

16 to investigate the contacts and relationships between those suspected of terrorism-related activities

17 and crimes.

18

11. It is also my understanding that, when using the Associational Tracking Program, the

19 government often examines multiple “degrees” of relationships between individuals, or “hops” of

20 associations. This means the government can examine the contact patterns and relationships between

21 an individual and their contacts; their contacts’ contacts; and the contacts of their contacts’ contacts.

22 I understand that these webs of associations can expand to include many thousands, if not millions,

23 of people.

24

12. By virtue of this “guilt by association” form of analysis, large swaths of the Ohio

25 Muslim community may be subject to government scrutiny, simply by virtue of having contacted

26 CAIR-OHIO and because of CAIR-OHIO’s advocacy efforts on behalf of those wrongly accused.

27 That is, if a CAIR-OHIO client accused or suspected by government of wrongdoing contacts us, all

28

2

DECLARATION OF JENNIFER NIMER FOR THE COUNCIL ON

AMERICAN-ISLAMIC RELATIONS OHIO ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document30 Filed11/06/13 Page4 of 5

1 those who contact CAIR-OHIO — including our constituents and prospective clients — are

2 accordingly put at risk of government scrutiny, solely through their shared “association” with CAIR-

3 OHIO.

4

13. Since the disclosure of the Associational Tracking Program, we have lost the ability to

5 confidently assure Ohio Muslim community members, as well as all others who seek to communicate

6 with us, that the fact of their communications to and with us will be kept confidential.

7

14. When the very act of communicating by phone with those we aim to serve puts our

8 constituents at risk for further government scrutiny, our organizational mission is essentially

9 undermined. The Associational Tracking Program makes it more difficult for CAIR-OHIO to

10 effectively accomplish its mission of defending the civil liberties of Muslims in Ohio.

11

15. Our organization also sometimes works on international causes that are not necessarily

12 popular causes. For example, we have helped arrange rallies for issues related to the Palestinian cause

13 as well as actions supporting the cessation of violence in Syria. Our Cleveland Chapter organized

14 dozens of local groups to host an event in Cleveland to break the Israeli Siege of Gaza. Our Cleveland

15 Chapter also organized hundreds of protestors to rally against Israel’s war against Lebanon and

16 organized hundreds of people to protest against the purchase of Israel Bonds by local officials in

17 Cuyahoga County. These actions in support of unpopular causes often go against current US foreign

18 policy and involve “countries of interest” to the US government. These actions are frequently

19 organized via telephone banking to community members. Due to the Associational Tracking

20 Program, CAIR-Ohio is now forced to reconsider whether it can subject community members to

21 government scrutiny during such telethon campaigns. As such, when the very act of communicating

22 by telephone increases the chances of scrutiny upon the communities we serve, we are forced to make

23 difficult choices about the types of activities we engage in with respect to our constituents, thus

24 forcing us to forgo certain first amendment activities.

25

16. Additionally, if the government has an interest in the telephone toll records and

26 metadata of particular “communities of interest” in order to drill down into calling patterns of

27 particular “persons of interest” within certain “communities of interest”, it is highly likely that

28

3

DECLARATION OF JENNIFER NIMER FOR THE COUNCIL ON

AMERICAN-ISLAMIC RELATIONS OHIO ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document30 Filed11/06/13 Page5 of 5

1 government would have an interest in the myriad associations of CAIR-OHIO, the main organization

2 that handles legal and social issues for the Ohio Muslim community. Because of the nature and

3 volume of calls we receive and make to the Ohio Muslim community, it is reasonable to believe that

4 our organization would be subjected to additional scrutiny through our telephone toll records.

5

I declare under penalty of perjury under the laws of the United States of America that

6 the foregoing is true and correct. Executed on __O_c_t_o_b_e_r 2_8__, 2013 at Columbus, Ohio.

7

8

9

10

_______________________

JENNIFER NIMER

11

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15

16

17

18

19

20

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27

28

4

DECLARATION OF JENNIFER NIMER FOR THE COUNCIL ON

AMERICAN-ISLAMIC RELATIONS OHIO ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document32 Filed11/06/13 Page1 of 4

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF GENE HO) FFMAN, JR. FOR CALGUNS FO)UNDATION, INC. IN SUPPORT OF) PLAINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor
)

26

27

28
DECLARATION OF GENE HOFFMAN, JR. FOR CALGUNS FOUNDATION, INC. ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document32 Filed11/06/13 Page2 of 4

1

I, GENE HOFFMAN, JR., hereby declare:

2

1. I am the Chairman of The Calguns Foundation (“CGF”). The facts contained in the

3 following affidavit are known to me of my own personal knowledge and if called upon to testify, I

4 could and would competently do so.

5

2. Our organization is a non-profit member-based organization based in San Carlos,

6 California. CGF defends Californians who are unjustly accused of violating California’s byzantine

7 firearms laws while also working to vindicate the civil rights of California gun owners by

8 challenging unconstitutional California laws. Additionally, we educate the public and government

9 about California gun laws and the civil rights of California gun owners.

10

3. The collection of our phone records by the government has resulted in (1) harassment,

11 membership withdrawal, and/or discouragement of new members, and (2) other consequences which

12 objectively suggest an impact on, or ‘chilling’ of, the members’ associational rights.

13

4. I say this because of the following facts: As part of our service of defending those

14 unjustly charged with violating California gun law, we run an emergency hotline that also serves as a

15 general information resource. Gun owners in California are justifiably concerned about whether any

16 of the firearms they own are illegal in California as California makes the possession of ordinary

17 firearms (in the other 49 states) a crime. Further, California gun laws prohibit certain combinations

18 of cosmetic features on rifles or pistols. Much of CGF’s work is performed on message boards or via

19 email, or social media. However, gun owners who are worried that they are in possession of a

20 banned firearm do not wish to create an electronic trail of their inquiry and have traditionally turned

21 to the phone to make that inquiry. Being known to have called the CGF hotline would leave a trail of

22 evidence detrimental to any criminal action, and furthermore, the fear that such a call will give the

23 government proof of the state of mind that the otherwise law abiding gun owner knew she was

24 committing a crime.

25

5. Calguns has members who would be very worried about having their calls taped and

26 stored by NSA/FBI when they’re enquiring about whether firearms and parts they possess are

27 felonious in California. It has a phone number specifically so people or their loved ones can call

28

1

DECLARATION OF GENE HOFFMAN, JR. FOR CALGUNS FOUNDATION,

INC. ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document32 Filed11/06/13 Page3 of 4

1 from jail because Californians are often arrested for actually innocent possession or use of firearms.

2

6. The Associational Tracking Program activities have harmed us because we have

3 experienced a decrease in communications from members and constituents who had desired the fact

4 of their communication to Plaintiff to remain secret. Many gun owners are distrustful of government

5 or of having any record of their status as gun owners. At least one of our members is only known to

6 us by his online alias and he would only directly contact us via telephone from a blocked number. He

7 has not phoned since the disclosures that lead to this action.

8

7. Many of our constituents have expressed concern about the confidentiality of the fact

9 of their telephone communications with us. Those who do call now leave fewer details in their

10 voicemails of the concern or issue they are calling about, forcing staff and volunteers to make

11 additional contacts to the caller, or more quickly refer the caller to one of our outside attorneys. This

12 creates more expense than if a non-attorney volunteer could have answered a question.

13

8. Since the disclosure of the Associational Tracking Program, we have lost the ability

14 to assure our members and constituents, as well as all others who seek to communicate with us, that

15 the fact of their communications to and with us will be kept confidential.

16

9. We are also concerned because it seems that the promises of confidentiality from the

17 government that we made prior to the disclosures were untrue.

18

10. Moreover, the ongoing secrecy of the government’s surveillance activities, and the

19 various incomplete or misleading government statements about it, have left us unable to reassure our

20 members and associates that additional forms of surveillance, as yet unconfirmed or currently denied

21 by the government are not also occurring, leaving us with no alternative forms of communication

22 that we can use and still assure those who contact us will remain confidential.

23

11. The telephone provider for the Calguns is Toktumi d.b.a. Line2.

24

25

I declare under penalty of perjury under the laws of the United States of America that

26 the foregoing is true and correct. Executed on October, 3_0_ 2013 at Redwood City, California.

27

28

2

DECLARATION OF GENE HOFFMAN, JR. FOR CALGUNS FOUNDATION,

INC. ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document32 Filed11/06/13 Page4 of 4

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3

DECLARATION OF GENE HOFFMAN, JR. FOR CALGUNS FOUNDATION

INC. ISO PLAINTIFFS' MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document33 Filed11/06/13 Page1 of 4

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF KAY GUINANE FO)R CHARITY & SECURITY NE)TWORK IN SUPPORT OF PL)AINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGEMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor
)

26

27

28
DECLARATION OF KAY GUINANE FOR CHARITY & SECURITY NETWORK ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document33 Filed11/06/13 Page2 of 4

1

I, KAY GUINANE, hereby declare:

2

1. I am the Director of the Charity & Security Network. The facts contained in the

3 following affidavit are known to me of my own personal knowledge and if called upon to testify, I

4 could and would competently do so.

5

2.

Our organization works to protect civil society’s ability to carry out effective

6 peacebuilding projects, humanitarian aid, development and other public benefit work in a manner

7 consistent with human rights principles and democratic values. To accomplish this, the Charity &

8 Security Network focuses on convening stakeholders and sponsoring dialog; raising awareness,

9 dispelling myths and promoting a framework based on protecting the positive contribution civil

10 society makes to human security; and coordinating advocacy by engaging the nonprofit sector with

11 to support needed changes in national security rules.

12

3. The collection of our phone records by the government has resulted in other

13 consequences which objectively suggest an impact on, or ‘chilling’ of, the members’ associational

14 rights.

15

4. I say this because: 1.) the issues we address are sensitive, involving the nexus of

16 national security, human rights and humanitarian law. To do our work effectively we must be able to

17 share information among members and between staff and membership. The Associational Tracking

18 Program has inhibited our ability to share information as needed. 2.) One of our core functions is to

19 facilitate dialog between civil society and government to address the problems humanitarian,

20 peacebuilding, human rights defenders and others have in carrying out their missions due to overly

21 broad national security rules. Our ability to plan, facilitate and develop strategy for such dialog has

22 been inhibited by the knowledge that our communications information is collected and retained by

23 the government.

24

5. We have experienced an increase in members expressing concern about the

25 confidentiality of the fact of their communications, among each other and with staff. Because our

26 members are located in many different places, it is necessary to use conference calls and email

27 listservs for ongoing communications. This includes conducting meetings of our Advisory

28

1

DECLARATION OF KAY GUINANE FOR CHARITY & SECURITY

NETWORK ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document33 Filed11/06/13 Page3 of 4

1 Board as well as topical working groups that collect and assess information and develop strategies.

2 Some members have declined to discuss certain issues over the phone, making it necessary to plan

3 in-person meetings that will incur extra time and travel costs. Other members have declined to hold

4 some discussions by email.

5

6. Since the disclosure of the Associational Tracking Program, we have lost the ability

6 to assure our members and constituents, as well as all others who seek to communicate with us, that

7 the fact of their communications to and with us will be kept confidential. We have had to develop

8 factual materials to share to explain the scope of the program and its impact on our operations.

9

7. We assumed that, we had confidentiality in our communications with us prior to the

10 current revelations, but we’ve since learned that we did not actually have confidentiality.

11

8. Our concerns about lack of confidentiality have become more acute because of the

12 government’s ongoing refusal to give a clear answer about the extent to which organizations like

13 ours are subject to surveillance.

14

9. We have been forced to expend time and resources on exploring new technologies

15 that may protect the privacy of our communications, although we cannot be sure they will actual

16 ensure confidentiality. Some activities are delayed until in-person meetings can be arranged. On an

17 ongoing basis, the surveillance program inhibits the ability of staff and membership to communicate

18 about sensitive factual and strategic issues. This hampers our ability to effectively carry out our

19 work.

20

I declare under penalty of perjury under the laws of the United States of America that

21 the foregoing is true and correct. Executed on October ___, 2013 at ______________, ________.

22

[City]

[State]

23 __________________________

24

KAY GUINANE

25

26

27

28

2

DECLARATION OF KAY GUINANE FOR CHARITY & SECURITY

NETWORK ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document33 Filed11/06/13 Page4 of 4

Board as well as topical working groups that collect and assess information and develop strategies.

2 Some members have declined to discuss certain issues over the phone, making it necessary to plan

3 in-person meetings that will incur extra time and travel costs. Other members have declined to hold

4 some discussions by email.

5

6. Since the disclosure ofthe Associational Tracking Program, we have lost the ability

6 to assure our members and constituents, as well as all others who seek to communicate with us, that

7 the fact of their communications to and with us will be kept confidential. We have had to develop

8 factual materials to share to explain the scope of the program and its impact on our operations.

9

7.

We assumed that, we had confidentiality in our communications with us prior to the

l 0 current revelations but we ve since learned that we did not actually have confidentiality.

11

8. Our concerns about lack of confidentiality have become more acute because of the

12 government s ongoing refusal to give a clear answer about the extent to which organizations like

13 ours are subject to surveillance.

14

9.

We have been forced to expend time and resources on exploring new technologies

15 that may protect the privacy of our communications, although we cannot be sure they will actual

16 ensure confidentiality. Some activities are delayed until in-person meetings can be arranged. On an

17 ongoing basis, the surveillance program inhibits the ability of staffand membership to communicate

18 about sensitive factual and strategic issues. This hampers our ability to effectively carry out our

19 work.

20

I declare under penalty ofperjury under the laws ofthe United States ofAmerica that

21 the foregoing is true and correct. Executed on October ~ 2013 at ~

[Ci

[State]

22 23

fbG!~

24

25

26

27

28

2

DECLARATION OF KAY GUINANE FOR CHARITY & SECURJTY

NETWORK ISO PLAINTIFFS ' MSJ

CASE NO. l 3-cv-3287 JSW

Case3:13-cv-03287-JSW Document34 Filed11/06/13 Page1 of 4

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.,

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF JAY JA)COBSON FOR THE FRANKLIN AR)MORY IN SUPPORT OF PL)AINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor
)

26

27

28

DECLARATION OF JAY JACOBSON FOR THE FRANKLIN ARMORY ISO OF PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document34 Filed11/06/13 Page2 of 4

1

I, JAY JACOBSON, hereby declare:

2

1. I am the President of Franklin Armory. The facts contained in the following affidavit

3 are known to me of my own personal knowledge, and if called upon to testify, I could and would

4 competently do so.

5

2. Our organization designs, manufactures, and distributes firearms for resale through

6 our dealer network in the commercial marketplace.

7

3. The collection of our phone records by the government is an unreasonable harassment

8 and an interference of our legal business enterprise. Furthermore, our customers are now less likely

9 to contact Franklin Armory for warranty repairs, customer service information, and/or price quotes

10 because the simple act of contacting us will identify the caller as a likely gun owner. Undoubtedly

11 this scenario has had a chilling effect on all of our customers and has led to an unnecessary

12 constriction of information exchange between us (the manufacturer) and our end-user customers.

13

4. We know that we have been harmed by the NSA’s activities because we have had

14 customers articulate that they will be more careful about who they call and when so that they may

15 avoid being targeted and identified as a gun owner. Undoubtedly, the government’s actions have

16 had a chilling effect. Concurrently, we have noticed that phone calls to our facility have decreased

17 by over 70%. Even considering market conditions and a traditional summertime lull, the decrease in

18 call volume is notable.

19

5. We have also had customers on Facebook take a public stand against the actions of

20 the NSA. The customer responses have invariably been grounded in Constitutional arguments.

21 Undoubtedly, these patriotic customers realize that they have overtly posted dissenting comments on

22 a public forum, but in doing so, they have brought up important points. One customer noted that he

23 has already lost the ability to remain an unidentified gun owner. Another pointed out that the NSA is

24 operating in derogation of the Firearm Owners Protection Act as well as the Constitution. No one

25 has voiced support for the NSA’s actions.

26

6. Our telephone service provider is Verizon Business.

27

1

28

DECLARATION OF JAY JACOBSON FOR THE FRANKLIN ARMORY

ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document34 Filed11/06/13 Page3 of 4

1

I declare under penalty of perjury under the laws of the United States of America that the

2 foregoing is true and correct. Executed on October __, 2013 at Minden, Nevada.

3

__________________________

4

JAY JACOBSON

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

2

28

DECLARATION OF JAY JACOBSON FOR THE FRANKLIN ARMORY

ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document34 Filed11/06/13 Page4 of 4

I decl:ire undcr pmalt) ofpcrJUI)' l.IPdct 1hc ta~-s ofthe Unittd Slatc<S orAmcnca tha1 the

2 forcgOUl.J b tn1et1nd c~ct. Executed 1mOclober.zj 2013 at f\1in~n. ~e\;id;&,

J
4

~

5

6

7

8 9

10

II 12

13

14 IS

16

17

18

19

20 21 22

2J
24

25
26
27
... 2
2¥ll-~~~~~O-lC\A~-~TT~ O,-,,.~,.-v-.-.-,oe~'°~,-J~--OTalt-E-FRA~-,-,-1,-,-..~\tO.Y
rso rt-A1'n•t-s- \.IS.I
CASf ~0 I J.-n ·JZl7 .tS\\

Case3:13-cv-03287-JSW Document35 Filed11/06/13 Page1 of 4

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF MATTHEW F. WO) OD FOR FREE PRESS IN SU)PPORT OF PLAINTIFFS’ MO) TION FOR PARTIAL SUMMARY JU)DGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor
)

26

27

28
DECLARATION OF MATTHEW F. WOOD FOR FREE PRESS ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document35 Filed11/06/13 Page2 of 4

1

I, MATTHEW F. WOOD, hereby declare:

2

1. I am the Policy Director of Free Press. The facts contained in the following affidavit

3 are known to me of my own personal knowledge and if called upon to testify, I could and would

4 competently do so.

5

2. Free Press is a non-profit, advocacy organization building a nationwide movement to

6 change media and technology policies. We work with our 625,000 activists throughout the United

7 States and around the world to ensure that technological tools empower people and strengthen

8 democracy rather than undermining it. We call for universal and affordable access to an open

9 Internet, freedom of the press, and other policies that promote free communication, access to

10 information, and individual privacy. Our advocacy depends on organizing our members and

11 amplifying their voices in policy debates, either by gathering written petitions from them, or by

12 facilitating their direct interaction via phone and in person with their elected representatives and

13 other decision makers.

14

3. The collection of our phone records by the government has resulted in (1) harassment,

15 membership withdrawal, and/or discouragement of new members, and (2) other consequences which

16 objectively suggest an impact on, or “chilling” of, the members’ associational rights.

17

4. I say this because our members who wish to speak about the Associational Tracking

18 Program and other such government programs have conveyed to me, and to other members of our

19 staff, their reservations and increased concern about discussing such topics in the knowledge that the

20 same government is tracking their communications – and in the belief that speaking out against these

21 programs could, perversely, result in additional scrutiny and monitoring of such members’

22 communications with our organization, government officials, and our members’ friends and family

23 members.

24

5. The Associational Tracking Program activities have thus harmed Free Press because

25 we have experienced a decrease in telephone communications from members and constituents who

26 had desired the fact of their communication to our organization and to their elected representatives

27 either to remain secret or to remain free from such tracking and monitoring.

28

1

DECLARATION OF MATTHEW F. WOOD FOR FREE PRESS ISO

PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document35 Filed11/06/13 Page3 of 4

1

6. Since the disclosure of the Associational Tracking Program, we have lost the ability

2 to assure our members, as well as all others who seek to communicate with us to discuss our

3 advocacy efforts generally as well as our specific advocacy against these programs, that the fact of

4 their communications to and with us will be kept confidential.

5

7. Prior to the disclosure, we assured confidentiality to those who telephoned us. But it

6 now appears that it was not correct to do so.

7

8. Moreover, the pattern of distortion and lawless conduct by the NSA, exacerbated by

8 the intense secrecy of its activities, have left us unable to reassure our members and associates that

9 additional forms of surveillance, as yet unconfirmed or actively denied by the government are not

10 also occurring, leaving us with no alternative forms of confidential communication.

11

I declare under penalty of perjury under the laws of the United States of America that

12 the foregoing is true and correct. Executed on October __, 2013 at Washington, D.C.

13

14

__________________________

15

MATTHEW F. WOOD

16

17

18

19

20

21

22

23

24

25

26

27

28

2

DECLARATION OF MATTHEW F. WOOD FOR FREE PRESS ISO

PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document35 Filed11/06/13 Page4 of 4

1

6. Since the disclosure ofthe Associational Tracking Program, we have lost the ability

2 to assure our members, as well as all others who seek to communicate with us to discuss our

3 advocacy efforts generally as well as our specific advocacy against these programs, that the fact of

4 their communications to and with us will be kept confidential.

5

7. Prior to the disclosure, we assured confidentiality to those who telephoned us. But it

6 now appears that it was not correct to do so.

7

8. Moreover, the pattern of distortion and lawless conduct by the NSA, exacerbated by

8 the intense secrecy ofits activities, have left us unable to reassure our members and associates that

9 additional forms of surveillance, as yet unconfirmed or actively denied by the government are not

10 also occurring, leaving us with no alternative forms of confidential communication.

11

I declare under penalty ofperjury under the laws ofthe United States ofAmerica that

12 the foregoing is true and correct. Executed on October~ 2013 at Washington, D.C.

13

14

~q,;-Jod(

15

MATTHEW F. WOOD

16

17

18

19

20

21

22

23

24

25

26

27
2811-~~~~~~~~~~~~~~2~~~~~~~~~~~~~~~~~-
DECLARATION OF MATTHEWF. WOOD FOR FREE PRESS ISO PLAINTIFFS' MSJ
CASE NO. I 3-cv-3287 JSW

Case3:13-cv-03287-JSW Document36 Filed11/06/13 Page1 of 6

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.,

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF JOHN SU)LLIVAN FOR FREE SOFTWARE FO)UNDATION IN SUPPORT OF PL)AINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor
)

26

27

28

DECLARATION OF JOHN SULLIVAN FOR FREE SOFTWARE FOUNDATION ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document36 Filed11/06/13 Page2 of 6

1

I, JOHN SULLIVAN, hereby declare:

2

1. I am the Executive Director of the Free Software Foundation. The facts contained in

3 the following affidavit are known to me of my own personal knowledge and if called upon to testify,

4 I could and would competently do so.

5

2. Our organization helped pioneer a worldwide free software movement and provides

6 an umbrella of legal and technical infrastructure for collaborative software development

7 internationally. We advocate for the freedom, privacy, and autonomy of computer users, primarily

8 by making sure that the software running on their computers is fully under their control. Free “as in

9 freedom” software users choose their software on ethical grounds according to these concerns, the

10 same way many vegetarians reject meat or labor activists reject sweatshop clothing. Because free

11 software is developed collaboratively and often by grassroots communities, it is a force for social

12 change. Its developers are very aware of what corporate and government interests are being

13 challenged with their software.

14

3. The collection of our phone records by the government has resulted in (1) harassment,

15 membership withdrawal, and/or discouragement of new members, and (2) other consequences which

16 objectively suggest an impact on, or ‘chilling’ of, the members’ associational rights.

17

4. I say this because of the following facts:

18

a. Many of our supporters are software developers working on an operating

19

system to be used instead of Microsoft or Apple, called GNU/Linux. Unlike

20

those proprietary operating systems, all of the code for GNU/Linux is

21

publicly available for inspection and modification. A widespread motivation

22

for developing software this way is to make it very difficult for “backdoors”

23

such as those now known to be part of Microsoft Windows, to be introduced

24

by the government or corporations. Even though their work is legal, because

25

these developers know that their work may complicate government

26

surveillance efforts, they are concerned about being targeted. A key

27

28

1

DECLARATION OF JOHN SULLIVAN FOR FREE SOFTWARE

FOUNDATION ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document36 Filed11/06/13 Page3 of 6

1

organizational function of the FSF is to serve as an important point of contact

2

and coordination between developers working on this project. If we cannot

3

promise the confidentiality of our communications, this category of our

4

supporters will think twice before associating with us or with other members

5

through us.

6

b. Other of our software developer members are working in areas that are

7

legally controversial. They work on free software to protect anonymity

8

online, or to circumvent technological protection measures in order to access

9

copyrighted works to which they have a legal right, or on encryption software

10

that, while legal, may be used by criminals as well. These members are even

11

more concerned about the privacy of their communications, living in fear that

12

their work may be misconstrued as illegal.

13

c. As one of our members has told us directly, “While I do work very openly in

14

my day to day life in free software, and I am quite clearly an outspoken

15

advocate of free software, and the free software movement, the fact private

16

communications may be turned over to the government would result in a sort

17

of chilling effect. For instance, I would be reluctant to ask the FSF questions

18

about the legal status of code with federal regulation, such as the implications

19

of distributing cryptographic software under the GNU GPL, or questions

20

regarding privacy software, such as Tor, for fear it may implicate me later,

21

when someone else misuses such software. It would place me in an awkward

22

situation, one where I cannot ask a question about software without being

23

lumped into a group which may misuse such software. If I have misgivings

24

about such things, as an open and outspoken free software contributor, I fear

25

what the pseudo-anonymous contributors to free software communities must

26

think.”

27

5. This chilling effect extends beyond our members who are software

28

2

DECLARATION OF JOHN SULLIVAN FOR FREE SOFTWARE

FOUNDATION ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document36 Filed11/06/13 Page4 of 6

1 developers, to members who are also just free software users and advocates. Many of our members,

2 when they joined, have cited our work to support software that respects their privacy and freedom

3 as a primary reason for their association. Any revelation that the records of the communications

4 with us are being collected discredits us as an organization capable of protecting the very interest

5 that motivated them to associate with us. As a concrete example, some of our supporters are

6 refusing to attend the annual member conference we host in the United States, explicitly because of

7 surveillance.

8

6. Finally, this chilling also affects our current staff and ability to hire new staff, who

9 accept relatively low pay rates in order to do a job they feel can make a positive difference in the

10 world. Knowing that doing this job puts them in the crosshairs of government surveillance is a

11 powerful deterrent that threatens to make working for us just not worth it. Anything that

12 complicates our ability to attract and retain quality staff directly undercuts our mission of building a

13 strong association of free software supporters.

14

7. Since the disclosure of the Associational Tracking Program, we have lost the ability

15 to assure our members and constituents, as well as all others who seek to communicate with us, that

16 the fact of their communications to and with us will be kept confidential.

17

8. Prior to the disclosure, we assured confidentiality to those who contacted us. But we

18 now know that those assurances were not true.

19

9. Moreover, the pattern of distortion and lawless conduct by the NSA, exacerbated by

20 the intense secrecy of its activities, have left us unable to reassure our members and associates that

21 additional forms of surveillance, as yet unconfirmed or actively denied by the government are not

22 also occurring, leaving us with no alternative forms of confidential communication. This is

23 extremely damaging for us, because the success of our movement depends concretely on the ability

24 for dispersed individuals to collaborate freely and openly.

25

///

26

///

27

///

28

3

DECLARATION OF JOHN SULLIVAN FOR FREE SOFTWARE

FOUNDATION ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document36 Filed11/06/13 Page5 of 6

1

I declare under penalty of perjury under the laws of the United States of America that the

2 foregoing is true and correct. Executed on October __, 2013, at Boston, MA, 02110.

3

__________________________

4

JOHN SULLIVAN

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DECLARATION OF JOHN SULLIVAN FOR FREE SOFTWARE

FOUNDATION ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document36 Filed11/06/13 Page6 of 6

1 II

I declare under penalty of perjury under the laws of the United States of America that the

2 II foregoing is true and correct. Executed on October}~ 2013, at Boston, MA, 02110.

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DECLARATION OF JOHN SULLIVAN FOR FREE SOFTWARE

FOUNDATION ISO PLAINTIFFS' MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document37 Filed11/06/13 Page1 of 5

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF THE RE)VEREND RICK HOYT FOR THE FIR) ST UNITARIAN CHURCH OF LO)S ANGELES IN SUPPORT OF PL)AINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor

26

27

28
DECLARATION OF THE REVEREND RICK HOYT FOR THE FIRST UNITARIAN CHURCH OF LOS ANGELES ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document37 Filed11/06/13 Page2 of 5

1

I, THE REVEREND RICK HOYT, hereby declare:

2

1. I am the Minister of the First Unitarian Church of Los Angeles. The Minister is the

3 senior staff position of the organization which is owned by the church members through a Board of

4 Trustees. The facts contained in the following affidavit are known to me of my own personal

5 knowledge and if called upon to testify, I could and would competently do so.

6

2. Our organization does charitable work as a non-profit religious organization. We

7 serve our church members and their families (about 100 persons/week) with programs of worship,

8 religious education, fellowship, pastoral care, social justice, evangelism, and connection to the

9 Unitarian Universalist tradition. And we serve the neighbors of the church (about 1,000

10 persons/week) with programs of education, health, social service and community activity.

11

3. The collection of our phone records by the government has resulted in (1) harassment,

12 membership withdrawal, and/or discouragement of new members, and (2) other consequences which

13 objectively suggest an impact on, or ‘chilling’ of, the members’ associational rights.

14

4. I say this because of the following facts:

15

a) Government surveillance is not a paranoid fantasy for First Church but a

16 historical fact. In the 1950s some members of First Church and our minister, Rev. Stephen

17 Fritchman, were subpoenaed by the House Un-American Activities Committee. Our minister was

18 required to testify before the committee on three separate occasions. Rev. Fritchman writes in his

19 autobiography (Heretic, Skinner House, pubs., 1977; pp.122-123) that “My new congregation [First

20 Church] had members who had repeatedly been visited by the F.B.I. to know whether they were

21 ready to talk about their past associations… old sins or new ones; were they ready to talk and name

22 their friends. I was told again and again of these merciless house calls by the pair of crew-cut, well-

23 dressed, deadpan visitors – what we came to know as the ‘Brooks Brothers,’ boys from J. Edgar

24 Hoover’s local branch of the Federal monitors of our words and deeds.” Plainclothes government

25 agents regularly attended church services at this time to hear what was preached and see who

26 attended. First Church discontinued keeping a membership list during this time to avoid implicating

27 our members. Some of our current members have been with the church long enough to remember

28

1

DECLARATION OF THE REVEREND RICK HOYT FOR THE FIRST

UNITARIAN CHURCH OF LOS ANGELES ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document37 Filed11/06/13 Page3 of 5

1 government surveillance of the church; and we have all heard the stories. After his retirement Rev.

2 Fritchman received a copy of his FBI file through a freedom of information request. We keep it in

3 our archives.

4

b) In the 1980s, First Church responded to the pleas of our neighbors, many of

5 whom are immigrants from Central America, to provide sanctuary from the civil wars they had fled

6 in their home countries. US policy at the time put them in danger of deportation. First Church

7 resisted US policy by offering sanctuary to our neighbors in our church building and some of these

8 refugees are now church members. Some of these First Church members have personal stories of

9 being physically tortured at the hands of their government. They understand the real possibility and

10 danger of coming to the attention of the government for political action, and they bring this

11 perspective to their current lives in the US. They are understandably wary of government

12 surveillance as they continue to speak out on issues and advocate for public policies that run counter

13 to current US positions.

14

c) Our church continues to be a fierce advocate for justice for the oppressed and

15 marginalized in Los Angeles, the United States and worldwide, including advocating for change to

16 existing US policy such as around immigration laws, rights for gays and lesbians, or military action.

17 This work is directly tied to our Unitarian Universalist faith principle of the power of individuals to

18 amplify their voices through collective organizations to change society. Although some church

19 members may welcome the public attention this advocacy work brings, others may choose, and

20 should be allowed to choose, to remain private and to speak out only through the voice of the church

21 organization. The threat of exposure has caused potential visitors to stay away, and members to

22 withdraw from the community, resulting in the church losing its voice and damaging our faith and

23 our organization. Even more damaging is the effect on our neighbors, many of whom depend on the

24 church for basic necessities such as our weekly food distribution, and life-enhancing programs such

25 as exercise classes, and math tutoring for children. Our neighbors now fear that a simple contact

26 with the church inquiring about a church program will bring scrutiny upon other aspects of their

27 lives, or bring their persons to the attention of a government that they may have reason to fear.

28

2

DECLARATION OF THE REVEREND RICK HOYT FOR THE FIRST

UNITARIAN CHURCH OF LOS ANGELES ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document37 Filed11/06/13 Page4 of 5

1

5. The Associational Tracking Program activities have harmed us because we have

2 experienced a decrease in communications from members and constituents who had desired the fact

3 of their communication to Plaintiff to remain secret.

4

6. Many members of our larger community have expressed concern about the

5 confidentiality of the fact of their telephone communications with us. First Church members have

6 expressed anxiety to me about which sorts of communication might be looked at by the NSA

7 program.

8

7. Since the disclosure of the Associational Tracking Program, we have lost the ability

9 to assure our members and constituents, as well as all others who seek to communicate with us, that

10 the fact of their communications to and with us will be kept confidential. We made assurances of

11 confidentiality prior to the disclosure, but we now know that we were mistaken.

12

8. As noted above, the principles of its faith often require the church to take bold stands

13 on controversial issues. Church members and neighbors who come to the church for help should not

14 fear that their participation in the church might have consequences for themselves or their families.

15 This spying makes people afraid to belong to the church community.

16

9. The telephone provider for the church is Intermedia using voice-over-internet. Our

17 internet provider is AT&T. At least one member of our Board of Trustees has Verizon as a

18 telephone provider.

19

I declare under penalty of perjury under the laws of the United States of America that

20 the foregoing is true and correct. Executed on October __, 2013 at Los Angeles, California.

21

__________________________

22

THE REVEREND RICK HOYT

23

24

25

26

27

28

3

DECLARATION OF THE REVEREND RICK HOYT FOR THE FIRST

UNITARIAN CHURCH OF LOS ANGELES ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document37 Filed11/06/13 Page5 of 5

I

5. The Associational Traoking Program activities have harmed us because we have

J experienced a dec:rease in commwrications from membeïs änd constrtuents who had desired the fact

J of ttreir commr.mication to Plaintiff to remain seçTet.

4

6. Many mçmbers of our largor cornmunrty have urpressed concem about the

5 confidentiality of thç fact of their telephone communications with us. First Church members have

6 expressed anxiety to me about whiçh sorts of communicatiou might be looked at by the NSA

n plogratït.

I

7 .

Since the disclosure of the Associational Trackrng Ptogra.ur, we hre lost the ability

I to aÊsure oru members and constihrents, as well as all others who seek to communicate with ru,.that
l0 the fact of their communications to and wittr us will be kept confidcntial. We made assurflnces of

l1 confidentiatity prior to the disclosure, but we now know that we were mistaken.

1a

g. As noted above, the principles of its faitll qftcn require thc ohurch to take bold stands

'L

TJ on conkoversial issues. Chruch members and neighbors who come to the churoh for help should not

L4 fear that their participation ialhe church might havc aons€quences for themselves or theit families.

15 This spying makes people afraid to belong to the chruch oommuÏlity

l6

g. The telcphoue provider for the chr:¡ch is Intermedia using voice-over-intemet. Our

17 intemet provider is AT&T. At least one member of our Board of Trustees has Verizon âs fl

18 telephone provider.

t9

I declare under penalty ofperjury wrder the laws of the United States of Americarhat

z0 the forcgoing is true and correct' Executed on

at Los Angeles, California.

2l
))

23 24 25
26 27
z8 ND RICKHOYT FORTFIE FIRST
TINITARIANCHIJRCHOFLOSA]{çELESISOPLAINTIFFS'M$J CASE N(). 13-cv-3287 JSrff

Case3:13-cv-03287-JSW Document38 Filed11/06/13 Page1 of 5

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.,

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF DEEPA PA)DMANABHA FOR GR)EENPEACE, INC., IN SUPPORT OF) PLAINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor
)

26

27

28

DECLARATION OF DEEPA PADMANABHA FOR GREENPEACE, INC., ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document38 Filed11/06/13 Page2 of 5

1

I, DEEPA PADMANABHA, hereby declare:

2

1. I am a Staff Attorney with Greenpeace, Inc. (“Greenpeace”). The facts contained in

3 the following affidavit are known to me of my own personal knowledge and if called upon to testify,

4 I could and would competently do so.

5

2.

Greenpeace is an advocacy organization dedicated to combating the most serious

6 threats to the planet’s biodiversity and environment. Since 1971, Greenpeace has been at the

7 forefront of environmnetal activism through non-violent protest, research, lobbying, and public

8 education. Greenpeace has approximately 350,000 members and fourteen offices in the United

9 States.

10

3. The collection of our phone records by the government has resulted in (1) harassment,

11 membership withdrawal, and/or discouragement of new members, and (2) other consequences which

12 objectively suggest an impact on, or ‘chilling’ of, the members’ associational rights. I say this

13 because of the facts listed below.

14

4. As part of its environmental advocacy, Greenpeace staff and members engage in

15 communications, via telephone and email, on a daily basis. Individuals contacted include

16 representatives of multinational organizations, government officials, scientific experts, and

17 Greenpeace members.

18

5. Greenpeace is aware that it has been targeted for surveillance in the past by the NSA.

19 For example, in 1992 British intelligence officials revealed to the London Observer that in the 1990s

20 the NSA had used the word “Greenpeace” as a keyword to intercept communications. Government

21 documents obtained under the Freedom of Information Act (FOIA) reveal that Greenpeace has been

22 the subject of surveillance by the FBI and Joint Terrorism Task Forces, whose internal documents

23 contend that the organization is associated with “suspicious activity with a connection to

24 international terrorism.” Documents obtained through FOIA also indicate that the FBI has used

25 confidential informants to obtain information about Greenpeace activities.

26

6. In October 2003, the Department of Justice indicted Greenpeace using a 19th century

27 statute that had not been invoked for over a century. This information was widely reported in the

28 1
DECLARATION OF DEEPA PADMANABHA FOR GREENPEACE, INC., ISO PLAINTIFFS’ MSJ
CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document38 Filed11/06/13 Page3 of 5

1 New York Times and other national media outlets.

2

7. In July 2005, the American Civil Liberties Union, in response to a FOIA request,

3 received 2,383 pages of internal FBI documents regarding the surveillance of Greenpeace. News of

4 the FBI’s possession of these documents and investigations of Greenpeace were widely reported in

5 the New York Times and other news outlets.

6

8. In September 2010, a report by the Department of Justice’s Inspector General noted

7 several instances in which the FBI had conducted improper investigations of Greenpeace. This

8 information was reported by ABC News, as well as other national media outlets.

9

9. Greenpeace’s past and recent activities make the organization a likely target for

10 government surveillance. Greenpeace has used various means, including non-violent direct action,

11 to actively publicize the ties between our presidential administrations and the fossil fuel industry.

12

10. Because of the nature of Greenpeace’s communications, Greenpeace’s recent

13 activities, and the U.S. government’s past surveillance of Greenpeace, Greenpeace members have a

14 well-founded belief that their communications have been, or currently are being, intercepted by the

15 NSA.

16

11. Greenpeace’s telephone calls with its members, as well as other individuals and

17 organizations, are vital to its organizational goal of addressing environmental problems of global

18 magnitude. The mission requires free and open communication with colleagues, members, experts,

19 and leaders of government and industry.

20

12. Since May 2000, Greenpeace has operated six Verizon plain old telephone service

21 (POTS) lines used for inbound and outbound faxing.

22

13. From August 2000 through January 2013, Greenpeace operated two Primary Rate

23 Interface (PRI) lines connected to the Private Branch Exchange (PBX) based in the Greenpeace

24 Headquarters office in Washington, DC. Greenpeace directly contracted with MetTel for these

25 services, and the underlying carrier was Verizon.

26

14. The Associational Tracking Program substantially impairs the ability of Greenpeace

27 to engage in communications that are vital to its mission. Knowledge of the Associational Tracking

28 2
DECLARATION OF DEEPA PADMANABHA FOR GREENPEACE, INC., ISO PLAINTIFFS’ MSJ
CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document38 Filed11/06/13 Page4 of 5

1 Program creates a chilling effect on Greenpeace members who wish to communicate information by

2 telephone that they reasonably believe could be used to disrupt Greenpeace’s lawful activities

3 through preemptive action against legitimate, and peaceful, protests.

4

15. Since the disclosure of the Associational Tracking Program, we cannot reassure those

5 who contact Greenpeace and as well as those we actively seek out for collaboration that their

6 communications with Greenpeace will be confidential.

7

16. Moreover, the pattern of distortion and lawless conduct by the NSA, exacerbated by

8 the intense secrecy of its activities, have left us unable to reassure our members and associates that

9 additional forms of surveillance, as yet unconfirmed or actively denied by the government, are not

10 also occurring, leaving us with no alternative forms of confidential communication.

11

I declare under penalty of perjury under the laws of the United States of America that

12 the foregoing is true and correct. Executed on October __, 2013 at Washington, DC.

13

__________________________

14

DEEPA PADMANABHA

15

16

17

18

19

20

21

22

23

24

25

26

27

28 3
DECLARATION OF DEEPA PADMANABHA FOR GREENPEACE, INC., ISO PLAINTIFFS’ MSJ
CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document38 Filed11/06/13 Page5 of 5

I Program creates a chilling effect on Greenpeace members who wish to communicate information by

2 telephone that they reasonably believe could be used to disrupt Greenpeace's lawful activities

3 through preemptive action against legitimate, and peaceful, protests.

4

15. Since the disclosure ofthe Associational Tracking Program, we cannot reassure those

5 who contact Greenpeace and as well as those we actively seek out for collaboration that their

6 communications with Greenpeace will be confidential.

7

16. Moreover, the pattern of distortion and lawless conduct by the NSA, exacerbated by

8 the intense secrecy of its activities, has left us unable to reassure our members and associates that

9 additional forms of surveillance, as yet unconfirmed or actively denied by the government, are not

10 also occurring, leaving us with no alternative forms of confidential communication.

11

I declare under penalty ofperjury under the laws ofthe United States ofAmerica that

32 12 the foregoing is true and correct. Executed on October 2013 at Washington, DC.

13

oD~~?~

14

~EPAPADMANABHA

15

16

17

18

19

20

21

22

23

24

25

26

27

28
3
DECLARATION OF DEEPA PADMANABHA FOR GREENPEACE, INC., ISO PLAINTIFFS' MSJ
CASE NO. I3-cv-3287 JSW

Case3:13-cv-03287-JSW Document39 Filed11/06/13 Page1 of 4

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF DINAH PO)KEMPNER FOR HUMAN RIG) HTS WATCH IN SUPPORT OF PL)AINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor
)

26

27

28
DECLARATION OF DINAH POKEMPNER FOR HUMAN RIGHTS WATCH ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document39 Filed11/06/13 Page2 of 4

1

I, DINAH POKEMPNER, hereby declare:

2

1. I am the General Counsel ofHuman Rights Watch. The facts contained in the following

3 affidavit are known to me of my own personal knowledge and if called upon to testify, I could and

4 would competently do so.

5

2. Our organization conducts research and advocacy on human rights conditions around the

6 globe, in conjunction with activists, civil society organizations, and victims of human rights

7 violations in many countries (collectively, "our associates").

8

3. The collection of our phone records by the government has resulted in (1) intimidation,

9 withdrawal, and/or discouragement of existing and new associates, and (2) other consequences

10 which objectively suggest an impact on, or 'chilling' of, the associational rights of those who

11 collaborate with us. 1say this because of the following facts:

12

4. We conduct research and advocacy such that its effectiveness and credibility depend

13 heavily on being able to interview those with direct knowledge of human rights abuses, be they

14 victims, witnesses, perpetrators, or knowledgeable bystanders such as government officials,

15 humanitarian agencies, lawyers and other civil society partners. Because this type of research and

16 reporting can endanger people and organizations, our stakeholders-including even some of our

17 researchers and/or consultants-often require us to keep their identities or other identifying

18 information confidential. HRW has staffin these offices who talk to the above-mentioned types of

19 stakeholders by telephone to conduct research. HRW believes that many ofthese stakeholders now

20 have heightened concerns about contacting us through our offices now that we are aware the NSA is

21 logging metadata of these calls. This impairs HRW' s research ability and/or causes HRW to rely

22 more on face-to-face encounters or other costly means ofholding secure conversations.

23

5. One particular area where we work is with prisoners, illegal migrants and asylum-

24 seekers, victims of torture and others who fear contact or revelation of their identities to the

25 government. This includes victims in the United States. From past experience, we know that

26 where these types of individuals are identified to authorities, they may suffer reprisal for being

27 known to associate with or pass information to groups like Human Rights Watch. For example,

28

1

DECLARATION OF DINAH POKEMPNER FOR HUMAN RIGHTS

WATCH ISO PLAINTIFFS' MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document39 Filed11/06/13 Page3 of 4

1 some women prisoners in Michigan who reported sexual harassment to us by prison guards alleged

2 they suffered retaliation. Michigan authorities subsequently sought, unsuccessfully, to discover the

3 identities of yet other such women from us.

4

6. Because of this knowledge, to protect victims and witnesses from retaliation for

5 associating with us, we have for some time mailed them materials in blank envelopes, rather than

6 envelopes that bear our name and return address, and arranged our telephone service not to display

7 the company and number when we make outside calls.

8

7. Whereas before we were fairly confident that telephone communications with our

9 research and advocacy staff were secure and confidential, we now need to find other ways to

10 reassure these types of informants and partners that their contact with us is secure and will not put

11 them at risk of retaliation.

12

8. We have experienced an increase in questions from our researchers, other staff, external

13 partners and potential associates expressing concern about the confidentiality of the fact of their

14 communications with HRW itself and among our staff and associates. While it is difficult to get

15 precise information about communications that did not occur, based on the concerns raised by

16 others, 1believe that some individuals may have refrained from reporting human rights abuses to us

17 and some partners may have refrained from contacting us due to their concerns about security and

18 confidentiality.

19

9. Our security team and Operations Department are studying new protocols and issuing

20 frequent advice on the need to use caution to keep confidential communications secure, increasing

21 their workload.

22

10. Since the disclosure of the Associational Tracking Program, we have lost the ability to

23 assure our associates, sources and staff, as well as all others who seek to communicate with us, that

24 the fact oftheir communications to and with us will be kept confidential. We also realized that the

25 promises ofconfidentiality we made prior to the disclosures were probably not accurate and should

26 not have been relied upon by our partners.

27

11. Moreover, the NSA's continued secrecy of the full range of its activities, and the

28

2

DECLARATION OF DINAH POKEMPNER FOR HUMAN RIGHTS

WATCH ISO PLAINTIFFS' MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document39 Filed11/06/13 Page4 of 4

1 confusing messages they have sent about it over time, have left us unable to reassure our members

2 and associates that additional forms of surveillance, as yet unconfirmed or actively denied by the

3 government are not also occurring, leaving us with few options for alternative forms ofconfidential

4 communication.

5

12. HRW's telephone service provider is Verizon Business.

6

I declare under penalty of perjury under the laws ofthe United States ofAmerica that

7 the foregoing is true and correct. Executed on October 3..1_, 2013 at New York, New York.

8 9

~£Jli~

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

DECLARATION OF DINAH POKEMPNER FOR HUMAN RIGHTS

WATCH ISO PLAINTIFFS' MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document40 Filed11/06/13 Page1 of 4

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.,

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF TRACY RO)SENBERG FOR MEDIA AL)LIANCE IN SUPPORT OF PL)AINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor
)

26

27

28

DECLARATION OF TRACY ROSENBERG FOR MEDIA ALLIANCE ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document40 Filed11/06/13 Page2 of 4

1

I, TRACY ROSENBERG, hereby declare:

2

1. I am the Executive Director of Media Alliance. The facts contained in the following

3 affidavit are known to me of my own personal knowledge and if called upon to testify, I could and

4 would competently do so.

5

2. Our organization is a non-profit, membership organization based in Oakland,

6 California. Media Alliance served as a resource and advocacy center for media workers, non-profit

7 organizations, and social justice advocates to make media accessible, accountable, decentralized,

8 representative of society’s diversity, and free from covert or overt government control and corporate

9 dominance. Media Alliance brings this action on behalf of itself and its adversely affected members

10 and staff.

11

3. The collection of our phone records by the government has resulted in (1) harassment,

12 membership withdrawal, and/or discouragement of new members, and (2) other consequences which

13 objectively suggest an impact on, or ‘chilling’ of, the members’ associational rights.

14

4. I say this because of the following facts:

15

5. Media Alliance is a subscriber of AT&T for both wired and wireless telephone

16 service.

17

6. Many of our members access resources we provide like classes that provide training

18 in editing skills or public relations or they purchase regional press lists and how-to books or they

19 subscribe to a job listing service. They may or may not agree with stances the organization takes on

20 telecom policy and regulation, including specific actions by government officials, and have

21 expressed concern to us that transactional activity within my organization may be surveilled and/or

22 recorded by government agencies.

23

7. The Associational Tracking Program activities have harmed us because we have

24 experienced a decrease in communications from members and constituents who had desired the fact

25 of their communication to Media Alliance to remain secret.

26

8. Media Alliance regularly files comments with government agencies like the Federal

27 Communications Commission and the Federal Trade Commission as well as participating in

28 1
DECLARATION OF TRACY ROSENBERG FOR MEDIA ALLIANCE ISO PLAINTIFFS’ MSJ
CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document40 Filed11/06/13 Page3 of 4

1 regional, state and federal hearings on a variety of issues relating to the telecom and media policy

2 and regulation. In addition, we provide training and resources to a variety of local not-for-profit

3 organizations and individuals engaged in the practice of journalism and communications work. We

4 have always assured our members that their privacy is guaranteed and the membership in our

5 organization, which at times can be quite critical of the actions of governmental organizations in the

6 telecom and media policy arena, would not endanger their relationships with governmental entities,

7 including public funding for not-for-profit organizations, and the issuance of press passes for

8 journalists just because we did not and do not disclose our membership roster nor our transactional

9 customer lists to governmental agencies without the permission of the member involved. Recent

10 revelations regarding phone metadata collection has rendered those assurances false and not

11 permitted us to continue to state that policy. This has had and will continue to have a chilling effect

12 on our membership rolls.

13

9. Specifically we have experienced the following:

14

Several organizational members have asked to have their membership terminated and their

15 data expunged from our database after purchasing products or services (and purchasing memberships

16 for the purpose of receiving discounted prices on those products or services in the wake of recent

17 publicity about the extent of telephone metadata surveillance. Media Alliance has experienced a

18 significant increase in the number of individuals expressing concern about the privacy of their

19 inquiries and transactions with our organization, more than a doubling from any previous year. I

20 have been in this position since 2007 and the increase is unprecedented. Moreover, we have had a

21 large number of individuals go beyond expressing concern to request the end of their memberships.

22

I declare under penalty of perjury under the laws of the United States of America that the

23 foregoing is true and correct. Executed on October __, 2013 at Oakland, California.

24

__________________________

25

TRACY ROSENBERG

26

27

28 2
DECLARATION OF TRACY ROSENBERG FOR MEDIA ALLIANCE ISO PLAINTIFFS’ MSJ
CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document40 Filed11/06/13 Page4 of 4

I regional, state and federal hearings on a variety ofissues relating to the telecom and media policy

2 and regulation. In addition, we provide training and resources to a variety of local not-for-profit

3 organizations and individuals engaged in the practice ofjournalism and communications work. We

4 have always assured our members that their privacy is guaranteed and the membership in our

5 organization, which at times can be quite critical ofthe actions ofgovernmental organizations in the

6 telecom and media policy arena, would not endanger their relationships with governmental entities,

7 including public funding for not-for-profit organizations, and the issuance of press passes for

8 journalists just because we did not and do not disclose our membership roster nor our transactional

9 customer lists to governmental agencies without the pennission of the member involved. Recent 10 revelations regarding phone metadata collection has rendered those assurances false and not

11 pennitted us to continue to state that policy_ This has had and will continue to have a chilling effect

12 on our membership rolls_

13

9. Specifically we have experienced the following:

14

Several organizational members have asked to have their membership terminated and their

15 data expunged from our database after purchasing products or services (and purchasing memberships

16 for the purpose ofreceiving discounted prices on those products or services in the wake ofrecent

17 publicity about the extent of telephone metadata surveillance. Media Alliance has experienced a

18 significant increase in the number of individuals expressing concern about the privacy of their
19 inquiries and transactions with our organization, more than a doubling from any previous year_ I

20 have been in this position since 2007 and the increase is unprecedented_ Moreover. we have had a

21 large number ofindividuals go beyond ex.pressing concern to request the end oftheir memberships.

22

I declare under penalty of perjury under the laws of the United States of America that the

23 foregoing is true and correct. Executed on Octobei".l.~ 2013 at Oakland, California.

24

r-r~------

25

1RACY ROSENBERG

26

27

28 2
DECLARATION OF TRACY ROSENBERG FOR MEDIA ALLIANCE ISO PLAINTIFFS' MSJ
CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document41 Filed11/06/13 Page1 of 4

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.,

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF HEIDI BO)GHOSIAN FOR THE NATIONAL LA)WYERS GUILD IN SUPPORT OF PL)AINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor
)

26

27

28

DECLARATION OF HEIDI BOGHOSIAN FOR THE NATIONAL LAWYERS GUILD ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document41 Filed11/06/13 Page2 of 4

1

I, HEIDI BOGHOSIAN, hereby declare:

2

1. I am the Executive Director of the National Lawyers Guild. The facts contained in

3 the following affidavit are known to me of my own personal knowledge and if called upon to testify,

4 I could and would competently do so.

5

2. Our organization provides legal services, through our approximately 4,000 members,

6 for individuals involved in legal cases where civil and constitutional rights are often in jeopardy. Our

7 National Office functions as a hub for the coordination and organization of legal defense and issue-

8 related advocacy on a broad range of topics often deemed controversial by several U.S. government

9 agencies. We have represented animal rights, environmental and information activists and others

10 targeted by the FBI and local law enforcement agencies.

11

3. The collection of our phone records by the government has resulted in (1) diminished

12 membership participation, (2) withdrawal or discouragement of new members joining, (3) other

13 consequences which objectively suggest an impact on, or “chilling” of, the members’ associational

14 rights. Most notably, we believe young attorneys refraining from taking on certain cases out of fear

15 of government surveillance and retaliation.

16

4. I say this because of the following facts: All of our National Office telephone lines

17 and web services are provided by Verizon. Upon hearing news reports that Verizon was under FISA

18 court order to turn over vast troves of customer data to the NSA, Guild members working on

19 initiatives to support the Petition for Compassionate Release of Lynne Stewart and the civil matter

20 Panagacos v. Towery (a case involving U.S. Army surveillance, infiltration, and the disruption of

21 peace groups in Washington state) altered their mode of communication due to concerns about

22 increased government surveillance of communication between lawyers, lawyers and their clients,

23 and lawyers and members of the media. Staff working in the National Office are curtailing the

24 duration and content of electronic communications that we deem privileged in nature.

25

The Associational Tracking Program activities have harmed us because we have experienced

26 a decrease in communications from members and constituents who had desired the fact of their

27 communication to Plaintiff to remain secret. Revelations of NSA surveillance in the press has caused

28 1
DECLARATION OF HEIDI BOGHOSIAN FOR THE NATIONAL LAWYERS GUILD ISO PLAINTIFFS’ MSJ CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document41 Filed11/06/13 Page3 of 4

1 NLG members working on litigation and advocacy to restrict discussion of legal strategy, case

2 updates and confidential information to in-person meetings or to written correspondence sent by

3 mail. Practical restraints on the frequency of these meetings results in less robust information to pass

4 between attorneys and has potentially hindered Guild members from providing as vigorous a legal

5 representation as would have otherwise been possible with secure electronic communication

6 channels.

7

5. We also have experienced an increase in persons expressing concern to us about the

8 confidentiality of the fact of their communications.

9

6. Since the disclosure of the Associational Tracking Program, we have lost the ability

10 to assure our members and constituents, as well as all others who seek to communicate with us, that

11 the fact of their communications to and with us will be kept confidential.

12

7. Moreover, the pattern of distortion and lawless conduct by the NSA, exacerbated by

13 the intense secrecy of its activities, have left us unable to reassure our members and associates

14 that additional forms of surveillance, as yet unconfirmed or actively denied by the government are

15 not also occurring, leaving us with no alternative forms of confidential communication.

16

8. I declare under penalty of perjury under the laws of the United States of America that

17 the foregoing is true and correct. Executed on October __, 2013 at New York, New York.

18

__________________________

19

HEIDI BOGHOSIAN

20

21

22

23

24

25

26

27

28 2
DECLARATION OF HEIDI BOGHOSIAN FOR THE NATIONAL LAWYERS GUILD ISO PLAINTIFFS’ MSJ CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document41 Filed11/06/13 Page4 of 4

NLG members working on litigation and advocacy to restrict discussion of legal strategy, case

2 updates and confidential information to in-person meetings or to written correspondence sent by

3 mail. Practical restraints on the frequency ofthese meetings results-in less robust information to pass

4 between attorneys and has potentially hindered Guild members from providing as vigorous a legal

5 representation as would have otherwise been possible with secure electronic communication

6 channels.

7

5. We also have experienced an increase in persons expressing concern to us about the

8 confidentiality of the fact of their communications.

9

6. Since the disclosure of the Associational Tracking Program, we have lost the ability

10 to assure our members and constituents, as well as all others who seek to communicate with us, that

11 the fact of their communications to and with us will be kept confidential.

12

7. Moreover, the pattern of distortion and lawless conduct by the NSA, exacerbated by

13 the intense secrecy of its activities, have left us unable to reassure our members and associates

14 that additional forms of surveillance, as yet unconfirmed or actively denied by the government are

15 not also occurring, leaving us with no alternative forms of confidential communication.

16

8. I declare under penalty of perjury under the laws ofthe United States of America that

17 the foregoing is true and correct. Executed on October 2j, 201 at New York, New York.

18

19

20

21

22

23

24

25

26

27

28
2
DECLARATION OF HEIDI BOGHOSIAN FOR THE NATIONAL LAWYERS GUILD ISO PLAINTIFFS' MSJ CASE NO. l 3-cv-3287 JSW

Case3:13-cv-03287-JSW Document42 Filed11/06/13 Page1 of 4

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.,

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF DALE GI)ERINGER FOR THE CA)LIFORNIA CHAPTER OF NO)RML IN SUPPORT OF PL)AINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGMENT
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor
)

26

27

28
DECLARATION OF DALE GIERINGER FOR CA NORML ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document42 Filed11/06/13 Page2 of 4

1

I, DALE GIERINGER, hereby declare:

2

1. I am the Director of the California chapter of the National Organization for the

3 Reform of Marijuana Laws (“NORML”). The facts contained in the following affidavit are known

4 to me of my own personal knowledge and if called upon to testify, I could and would competently do

5 so.

6

2. NORML advocates for the right of adults to use marijuana legally and assists users

7 with legal and health issues related to marijuana use.

8

3. The collection of our phone records by the government has resulted in (1) harassment,

9 membership withdrawal, and/or discouragement of new members, and (2) other consequences which

10 objectively suggest an impact on, or ‘chilling’ of, the members’ associational rights.

11

4. I say this because of the following facts:

12

5. Cal NORML routinely fields inquiries from countless individuals with legal concerns

13 and questions about marijuana on our telephone hotline (Verizon # 415-563-5858). Included are

14 many seriously ill individuals who use marijuana for medical purposes in accordance with California

15 state law (Proposition 215), but whose activities remain subject to federal arrest and prosecution.

16 Callers frequently express concern to us that their communications be held confidential out of fear of

17 repercussions from law enforcement.

18

6. California NORML has always maintained a strict policy of not revealing the identity

19 of our members or hotline callers. Our mailing list is held strictly confidential. For many years, we

20 had caller ID blocked on our public hotline (415-563-5858) so as to assure callers that their calls

21 wouldn’t be traced. The value of this service would have been rendered negligible had their IDs

22 actually been tracked by NSA and federal enforcement officials. A few years ago, California

23 NORML decided to abandon caller ID blocking because we were unable to return a growing number

24 of calls that were coming from people who wrongly assumed that we knew their return phone

25 number via caller ID, even though we didn’t have it. However, we have continued to maintain a

26 policy of strict privacy in all communications.

27

1

28

DECLARATION OF DALE GIERINGER FOR THE CALIFORNIA

CHAPTER OF NORML ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document42 Filed11/06/13 Page3 of 4

1

7. California NORML and its members are highly sensitive to the fact that numerous of

2 our members and supporters have been arrested, prosecuted, or otherwise harassed for marijuana

3 offenses by federal law enforcement authorities, even when their activities are specifically permitted

4 under state or local law. Scores of such federal arrests are recorded on our website at:

5 http://www.canorml.org/costs/federal_medical_marijuana_prisoners_and_cases.

6

8. California NORML is further aware of press reports that the DEA has a Special

7 Operations Division that partners with NSA and other federal agencies to maintain a secret massive

8 database of telephone records to launch criminal investigations. The DEA has been reported to

9 cover up its misuse of this secretly obtained data by a tactic known as “parallel construction,” in

10 which a secret investigation is launched against a suspect in order to develop legal evidence for a

11 search warrant, without divulging the secretly obtained phone records that were the original source

12 of the tip (“Exclusive: U.S. directs agents to cover up program used to investigate Americans,”

13 Reuters Aug. 5, 2013: http://www.reuters.com/article/2013/08/05/us-dea-sod-

14 idUSBRE97409R20130805).

15

9. California NORML experienced an abrupt drop in the number of hotline calls we

16 received after revelation of NSA’s phone surveillance program in late June. Prior to then, we

17 received an average of about 15-20 calls daily on our hotline; afterwards, calls dropped to 5 -10 per

18 day. This data supports our belief that the NSA program had a chilling effect on our constituents’

19 willingness to communicate with us. Moreover, several of our members have expressed similar

20 concerns in this regard.

21

I declare under penalty of perjury under the laws of the United States of America that the

22 foregoing is true and correct. Executed on October ___, 2013 at Oakland, California

23

__________________________

24

DALE GIERINGER

25

26

27

2

28

DECLARATION OF DALE GIERINGER FOR THE CALIFORNIA

CHAPTER OF NORML ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document42 Filed11/06/13 Page4 of 4

I

7 .

Califorrria NORML arrd its members are highly sensitive to the fact that numerous of

? r,.'$ ïneïßbÊrs arrd Suppofters have been arrested. prosecuted, or otherwise harassed for marijuana

J offenses by tbderal iaw enfbrcement authorities, even when their activities are specifically permitted

JI uuder state or local law. ,$cores of such fcderal ånËsts are recordcd on ot¡f website at:

) htç : //www. canorml.org/costs/fbderal -medical-marijuanairisonÖfs-and.-caseS'

6

g. Calitbrnia NORML is ftuthor èwäre of press repoïts that the DEA has o Special

t operations Þivision thatpartners with N$A and other federal agencies to maintain a sEcîot masslve

I database of tetephone records to launch crininal iovestigations. The DEA heÊ been reported to

I cover up its misuse of this seoretþ obtained data by a tactic knor¡¿n as 'þarallel coustruction," iü

l0 which a secret investigation is launched against a suspect in order to develop legal evideuoe for a

ll search warraïrt. without divulging the secrctly obtarned phone records that were the originaÌ source

tz of the tip (..Exclusive: IJ.S. directs agerts to covËr up progfam used to investigate Americans,"

13 Reuters Aug- 5, 2013:

http : /iwww.rÈuters.com/article/20 1 3/0 8/05/us-dea-sod-

14 idusBRE97409R2o I 3 08os).

15

g. CaliforniaNORMI. experienced an abrup drop in the number of hotline calls we

16 received after reveiation of NSA's phone surveillarrce program in late June. Prïot to then" we

L7 received ail averâge of about tS-20 calls daily on ou¡ hotline; afterwatds, calls dropped to 5 -10 per

I8 day. This data supports our belief that rhc NSz\ program had a chilling e{fect on our cortstiü¡nnts'

I9 willingness to communicatc with us. Moreovef, several of our mernbers have expressed similaf

20 Çoilcerns in this rcgard.

2t

I dcclare under pemlty of perjury under the laws of the United Staæs of America that the

27, foregoing is tuc and corrçct. Executed on October Z?-Z}tg at Oakland' Califomia

23

24

25

26

27

28

NSCLARNTION OF DALE CIÈRINGER FOR TTÍE CALIFORNIA

CI.IÂPTER OF NORMI. ¡SÖ PLATNTIFIÌS' MSJ

CASE NO- l3-cv-3287 JSrtr

Case3:13-cv-03287-JSW Document43 Filed11/06/13 Page1 of 4

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.,

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF DEBORAH LIU FO)R PEOPLE FOR THE AMERICAN WA) Y IN SUPPORT OF PLAINTIFFS’ MO) TION FOR PARTIAL SUMMARY JU)DGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor
)

26

27

28

DECLARATION OF DEBORAH LIU FOR PEOPLE FOR THE AMERICAN WAY ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document43 Filed11/06/13 Page2 of 4

1

I, DEBORAH LUI, hereby declare:

2

1. I am the General Counsel and Corporate Secretary of People For the American Way.

3 The facts contained in the following affidavit are known to me of my own personal knowledge and if

4 called upon to testify, I could and would competently do so.

5

2. Our organization has over 595,000 members and communicates regularly with those

6 members, supporters, and the general public about important issues that impact fundamental civil

7 and constitutional rights and freedoms, including issues concerning civil liberties, government

8 secrecy, improper government censorship, and First Amendment freedoms.

9

3. The collection of our phone records by the government has resulted in (1) harassment,

10 membership withdrawal, and/or discouragement of new members, and (2) other consequences which

11 objectively suggest an impact on, or ‘chilling’ of, the members’ associational rights.

12

4. The Associational Tracking Program is harmful to our organizations’ work because of

13 its negative impact on the free communication from our members and members of the general public

14 who contact us daily on matters of import, including complaints or expressions of dissatisfaction

15 with the government, legislative bodies, and elected officials.

16

5. Some of our members have expressed concern about the confidentiality of the fact of

17 their communications and have stated to use that knowledge of the Associational Tracking Program

18 is a deterrent to calling our organization to express a concern, complaint or to provide information

19 relevant to our work.

20

6. Since the disclosure of the Associational Tracking Program, we have lost the ability

21 to assure our members and constitutents, as well as all others who seek to communicate with us, that

22 the fact of their communcations to and with us will be kept confidential.

23

7. In addition, the ongoing failure of the government to provide information to the

24 public about its mass surveillance activities has left us unable to reassure our members and

25 associates that additional forms of surveillance, are not also occurring, leaving us with a difficult

26 task in finding alternative forms of confidential communication.

27

8. Our current telephone provider is Megapath. From 2008-2011 our provider was

28

1

DECLARATION OF DEBORAH LIU FOR PEOPLE FOR THE AMERICAN

WAY ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document43 Filed11/06/13 Page3 of 4

1 Verizon Business.

2

I declare under penalty of perjury under the laws of the United States of America that the

3 foregoing is true and correct. Executed on October __, 2013 at Washington DC.

4

5

6

__________________________ DEBORAH LIU

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

DECLARATION OF DEBORAH LIU FOR PEOPLE FOR THE AMERICAN

WAY ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document43 Filed11/06/13 Page4 of 4

1 Verizon Business. -

2

I declare under penalty of perjury under the laws of the United States of America that the

3 foregoing is true and correct. Executed on October 30, 2013 at Washington DC.

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

2

DECLARATION OF DEBORAH LIU FOR PEOPLE FOR THE AMERICAN

WAY ISO PLAINTIFFS' MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document44 Filed11/06/13 Page1 of 3

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF SHERWIN SIY FO)R PUBLIC KNOWLEDGE IN SU)PPORT OF PLAINTIFFS’ MO) TION FOR PARTIAL SUMMARY JU)DGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor
)

26

27

28
DECLARATION OF SHERWIN SIY FOR PUBLIC KNOWLEDGE ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document44 Filed11/06/13 Page2 of 3

1

I, Sherwin Siy, hereby declare:

2

1. I am the Vice President of Legal Affairs of Public Knowledge. The facts contained in

3 the following affidavit are known to me of my own personal knowledge and if called upon to testify,

4 I could and would competently do so.

5

2. Our organization is a non-profit public interest advocacy organization based in

6 Washington, D.C. Public Knowledge is dedicated to preserving the openness of the Internet and the

7 public’s access to knowledge, promoting creativity through the balanced application of copyright

8 laws, and upholding and protecting the rights of consumers to use innovative technology lawfully.

9

3. The collection of our phone records by the government has resulted in reduced

10 communications with our members, constituents, and allies, chilling their associational rights.

11

4. Since the disclosure of the Associational Tracking Program, we have lost the ability to

12 assure our members and constituents, as well as all others who seek to communicate with us, that the

13 fact of their communications to and with us will be kept confidential.

14

5. Moreover, the pattern of distortion and lawless conduct by the NSA, exacerbated by the

15 intense secrecy of its activities, have left us unable to reassure our members and associates that

16 additional forms of surveillance, as yet unconfirmed or actively denied by the government are not

17 also occurring, leaving us with no alternative forms of confidential communication.

18

6. Public Knowledge engages in public advocacy on matters of intellectual property and

19 telecommunications law. While not directly representing clients, we frequently receive calls from

20 constituents seeking advice on whether their activities comport with the law, which is often complex

21 and frequently misstated in the popular media. In recent years, government authorities, and not just

22 private parties, have increasingly used disproportionate measures to address instances of alleged

23 infringement, to the point of staging armed raids on alleged secondary infringers in cases that, in

24 prior years, would likely have merited a civil suit or service of a warrant or summons. The increasing

25 criminalization of copyright infringement, alongside a heightened rhetoric that frequently claims that

26 infringing copyrights on entertainment media is a national security issue, means that callers are less

27 1
28
DECLARATION OF SHERWIN SIY FOR PUBLIC KNOWLEDGE ISO PLAINTIFFS’ MSJ
CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document44 Filed11/06/13 Page3 of 3

1 likely to contact Public Knowledge’s staff to ask for advice or share information.

2

I declare under penalty of perjury under the laws of the United States of America that

3 the foregoing is true and correct. Executed on October 31, 2013 at Washington, DC.

4

5

6

/s/ Sherwin Siy SHERWIN IY S

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27 2
28
DECLARATION OF SHERWIN SIY FOR PUBLIC KNOWLEDGE ISO PLAINTIFFS’ MSJ
CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document45 Filed11/06/13 Page1 of 6

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF DEBORAH C. PE)EL, MD, FOR PATIENT PRIVACY RIG) HTS FOUNDATION IN SU)PPORT OF PLAINTIFFS’ MO) TION FOR PARTIAL SUMMARY JU)DGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor

26

27

28
DECLARATION OF DEBORAH C. PEEL, MD, FOR PATIENT PRIVACY RIGHTS FOUNDATION ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document45 Filed11/06/13 Page2 of 6

1

I, DEBORAH C. PEEL, MD, hereby declare:

2

1. I am the Founder and Chair of Patient Privacy Rights (“PPR”), a 501(c)(3) non-profit

3 foundation. The facts contained in the following affidavit are known to me of my own personal

4 knowledge and if called upon to testify, I could and would competently do so.

5

2. As a national health privacy advocacy organization, Patient Privacy Rights

6 Foundation educates the public about the elimination of health privacy and advocates for effective

7 privacy-protective laws and technical solutions that will restore trust in the patient-physician

8 relationship and electronic health systems, so patients will be willing to share sensitive health

9 information with physicians and other health professionals, and use electronic systems and data

10 exchanges.

11

3. The collection of our phone records by the government has (1) discouraged new

12 members, constituents, media, whistleblowers, and consumers from calling our office phone line to

13 seek information, help, and advice when their sensitive health information has been used or

14 disclosed; or discussing sensitive legal actions concerning corporate, state or federal government

15 violations of privacy; and (2) discouraged phone conversations with experts from other advocacy

16 organizations about collaborative efforts to hold industry or government accountable for privacy

17 health privacy violations, or to plan legal interventions at the state or federal level. The lack of

18 private phone calls has diminished the willingness of consumers, the media, members, and

19 whistleblowers to call PPR, creating a ‘chilling’ effect on key consumer services PPR offers, on

20 users’ and members’ associational rights, on whistleblowers willingness to speak, and on

21 collaborative advocacy efforts with other privacy and consumer organizations and experts and

22 actions such as lawsuits and campaigns to protect citizens’ rights to health information privacy.

23

4. I say this because of the following facts:

24

Patient Privacy Rights’ office line has been a key resource for consumers, members, the

25 media, and whistleblowers since 2006. Although our website offers resources and information,

26 phone calls are essential for discussion of sensitive matters concerning hidden use, disclosure, and

27 sale of the nation’s personal health information. PPR is a subscriber of Time Warner.

28

1

DECLARATION OF DEBORAH C. PEEL, MD, FOR PATIENT PRIVACY

RIGHTS FOUNDATION ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document45 Filed11/06/13 Page3 of 6

1

5. The Associational Tracking Program activities have harmed PPR because we have

2 experienced a decrease in communications from whistleblowers, members and users who would

3 have requested that their communications with Plaintiff remain secret.

4

6. PPR experienced a decrease in calls to our office phone line during the summer. For

5 example, prior to the revelations of NSA tracking, we received on average 40 calls per month. After

6 the NSA revelations became public, we received on average only 20 calls per month.

7

7. The NSA revelations have caused heightened attention to health data security

8 breaches and requests for help and resources to deal with breaches, but nevertheless have resulted in

9 a decrease in whistleblower calls. Since September, more people have expressed concerns to us

10 about health information security breaches.

11

8. Since the disclosure of the Associational Tracking Program, we can no longer assure

12 our members and constituents, as well as all others who seek to communicate with us, that their

13 communications to and with us can be kept confidential.

14

9. We make strong assurances of confidentiality of information shared with PPR in our

15 privacy policy, but clearly in light of NSA tracking, those assurances were false.

16

10. Moreover, the pattern of distortion and lawless conduct by the NSA, exacerbated by

17 the intense secrecy of its activities, have left us unable to reassure our members and the public that

18 additional forms of surveillance, as yet unconfirmed or actively denied by the government are not

19 also occurring, leaving us with no alternative forms of confidential communication.

20

11. Patient Privacy Rights works to protect the public’s fundamental Constitutional, state

21 and federal rights to health information privacy. We work to inform the public about how the

22 healthcare industry and government violate patients’ rights to health information privacy. We offer

23 technical and legal solutions to enable the benefits of technology while eliminating current

24 technology-caused harm from hidden health data surveillance, collection, disclosure, sale, and

25 misuse. 40-50 million patients per year delay or avoid essential treatment or hide information to try

26 and protect the privacy of their health data because they know health data is used to damage

27 reputations, jobs, credit, and more. The lack of health information privacy causes bad health

28

2

DECLARATION OF DEBORAH C. PEEL, MD, FOR PATIENT PRIVACY

RIGHTS FOUNDATION ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document45 Filed11/06/13 Page4 of 6

1 outcomes. At the same time, patients cannot obtain electronic copies of health data or obtain a 2 ‘chain of custody’ to track the hidden flows of their health information. See theDataMap.org1, a

3 project PPR supports to map the hidden flows of health data inside and outside the US. As the

4 nation’s leading health privacy advocacy organization, PPR has over 20,000 members in all 50

5 states. PPR leads the bipartisan Coalition for Patient Privacy, representing 10.3 million US citizens

6 who want to control the use of personal health data in electronic systems. In 2007-2008, PPR led 7 development of the PPR Trust Framework, 75+ auditable criteria2 to measure how effectively

8 technology systems protect data privacy. The Framework can be used for research about privacy

9 and to certify health IT systems. Since 2011, PPR has convened the ‘International Summits on the 10 Future of Health Privacy’,3 co-hosted by Georgetown Law Center. In 2012, PPR proposed a 5-year

11 plan to move the US health IT system from institutional to patient control over health data in 12 Information Privacy in the Evolving Healthcare Environment.4 As a privacy organization, PPR tries

13 to hold itself to the highest privacy standards and practices. PPR promised users and members that

14 any information shared with PPR would remain private. Our online privacy policy states, “We do

15 not share, sell, rent, or lease your email address or any personal information. EVER.” The

16 revelations that the NSA collects and stores all phone calls and metadata violates PPR’s members’

17 and users’ expectations that their phone conversations with our staff were private and would not be

18 disclosed.

19

///

20

///

21

///

22

///

23

24

1 theDataMap.org
25 2 http:/patientprivacyrights.org/wp-content/uploads/2013/04/%C2%A9-2010-to-2013-PPRs-Trust-Framework-Brief-

26

Summary-and-Auditable-Critera.pdf 3 http://www.healthprivacy summitl.org/events/2013-health-privacy-summit/event-summary-

27

1bfa9be80d364092aeed1a8803377fa8.aspx. 4 http://ebooks.himss.org/product/information-privacy-in-evolving-healthcare-environment44808.

28

3

DECLARATION OF DEBORAH C. PEEL, MD, FOR PATIENT PRIVACY

RIGHTS FOUNDATION ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document45 Filed11/06/13 Page5 of 6

1

12. Specifically, the key consequenses of NSA surveillance on the public and Plaintiff’s

2 members are:

3

a. Phone and email surveillance has made whistleblowers afraid to report government

4 and industry health privacy violations to PPR because all calls, metadata, and emails are being

5 collected and stored by NSA.

6

b. Knowledge that telephonic communications are monitored has forced our employees

7 and members to restrict what they say over the telephone about privacy violations, legal advocacy,

8 and work related to litigation or legal defense committees.

9

c. NSA surveillance forces us to convene in-person meetings to discuss sensitive

10 matters. This is very difficult for PPR because our office is in Austin, Texas and we serve the entire

11 country. PPR must rely more on more time-consuming and costly face-to-face meetings or attempt

12 to find and purchase technology so we can hold private conversations.

13

d. PPR must revise its privacy policy.

14

e. PPR must advise callers that phone calls and metadata are not secure, ask for limited

15 information and ensure timely deletion of any notes of the calls.

16

f. PPR’s effectiveness and credibility depend on being able to interview people with

17 direct knowledge of violations of health information privacy rights, including victims, witnesses,

18 perpetrators, whistleblowers, or knowledgeable bystanders such as government officials or industry

19 employees, other advocacy organizations, and lawyers and other civil society partners. PPR is

20 concerned that many of these parties will fear contacting our office knowing that the NSA logs all

21 calls and metadata.

22

I declare under penalty of perjury under the laws of the United States of America that the

23 foregoing is true and correct. Executed on October __, 2013 at Austin, Texas.

24

25

26

__________________________ DEBORAH C. PEEL MD

27

28

4

DECLARATION OF DEBORAH C. PEEL, MD, FOR PATIENT PRIVACY

RIGHTS FOUNDATION ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document45 Filed11/06/13 Page6 of 6

1

12. Specifically, the key consequenses ofNSA surveillance on the public and Plaintiffs

2 members are:

3

a. Phone and email surveillance has made whistleblowers afraid to report government

4 and industry health privacy violations to PPR because all calls, metadata, and emails are being

5 collected and stored by NSA.

6

b. Knowledge that telephonic communications are monitored has forced our employees

7 and members to restrict what they say over the telephone about privacy violations, legal advocacy,

8 and work related to litigation or legal defense committees.

9

c. NSA surveillance forces us to convene in-person meetings to discuss sensitive

10 matters. This is very difficult for PPR because our office is in Austin, Texas and we serve the entire

11 country. PPR must rely more on more time-consuming and costly face-to-face meetings or attempt

12 to find and purchase technology so we can hold private conversations.

13

d. PPR must revise its privacy policy.

14

e. PPR must advise callers that phone calls and metadata are not secure, ask for limited

15 information and ensure timely deletion of any notes of the calls.

16

f. PPR's effectiveness and credibility depend on being able to interview people with

17 direct knowledge of violations of health information privacy rights, including victims, witnesses,

18 perpetrators, whistleblowers, or knowledgeable bystanders such as government officials or industry

19 employees, other advocacy organizations, and lawyers and other civil society partners. PPR is

20 concerned that many ofthese parties will fear contacting our office knowing that the NSA logs all

21 calls and metadata.

22

I declare under penalty of perjury under the laws of the United States of America that the

23 foregoing is true and correct. Executed on October 29, 2013, at Austin, Texas.

24

25

26

27

28

4

DECLARATION OF DEBORAH C. PEEL, MD, FOR PATIENT PRIVACY

RIGHTS FOUNDATION ISO PLAINTIFFS' MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document46 Filed11/06/13 Page1 of 4

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF RABBI AR)THUR WASKOW FOR THE SH)ALOM CENTER IN SUPPORT OF PL)AINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor
)

26

27

28
DECLARATION OF RABBI ARTHUR WASKOW FOR THE SHALOM CENTER ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document46 Filed11/06/13 Page2 of 4

1

I, RABBI ARTHUR WASKOW, hereby declare:

2

1. I am the Director of The Shalom Center. The facts contained in the following

3 affidavit are known to me of my own personal knowledge and if called upon to testify, I could and

4 would competently do so.

5

2. Our organization draws on ancient and modern Jewish wisdom, teachings, and

6 practice to seek peace, pursue justice, and heal our wounded Earth. We especially address the power

7 configurations (in Jewish tradition, the “pharaohs”) that bring plagues upon human society and the

8 planet.

9

3. The Shalom Center receives its wired telephone service from Verizon Business

10 Services and its wireless services from Verizon Wireless.

11

4. The collection of our phone records by the government has resulted in (1) harassment,

12 membership withdrawal, and/or discouragement of new members, and (2) other consequences which

13 objectively suggest an impact on, or ‘chilling’ of, the members’ associational rights.

14

5. I say this because of the following facts: I was personally subjected to

15 COINTELPRO activity (warrantless searches, theft, forgery) by the FBI between 1968 and 1974. I

16 took part along with other plaintiffs in a suit against the FBI and the Washington DC police (Hobson

17 v. Wilson) for deprivation of the “right of the people peaceably to assemble.” We won in DC

18 Federal District Court and the part of the suit that focused on the FBI was upheld in the DC Circuit

19 Court of Appeals. The result of this experience is that I have been very troubled and frightened by

20 the revelations of warrantless mass searches of telephone and Internet communications by the NSA.

21 For several weeks, as the revelations continued, I realized the likelihood that the organization I lead,

22 The Shalom Center, and I were under illegitimate surveillance and – because of our involvement in

23 legal and nonviolent opposition to US government policy in several fields – possibly worse. For

24 example, I delayed publication of some essays on bringing religious outlooks to bear on possible US

25 war in Syria; possible State Department collusion with major oil companies in certifying the Tar

26 Sands Pipeline; and on the NSA surveillance, a violation of Torah as well as of the Consititution.

27 These activities seemed especially likely to have called down NSA surveillance and possibly

28

1

DECLARATION OF RABBI ARTHUR WASKOW FOR THE SHALOM

CENTER ISO PLAINTIFF’S MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document46 Filed11/06/13 Page3 of 4

1 additional attacks on our work.

2

6. This realization made me rethink whether I wanted to continue in sharp religiously

3 rooted prophetic criticism and action in regard to disastrous public policies. I had trouble sleeping,

4 delayed some essays and blogs I had been considering, and worried woried whether my actions

5 might make trouble for nonpolitical relatives. I certainly felt a chill fall across my work of peaceable

6 assembly, association, petition, and the free exercise of my religious convictions. Since as the

7 Rabbinic Director of The Shalom Center I am the chief spokesperson for its religious outlook and

8 religious work, this chilling effect has slowed down, inhibited, and distorted the expression of our

9 religious concerns.

10

7. Since the disclosure of the Associational Tracking Program, supporters and donors of

11 the Shalom Center have expressed concerns about the confidentiality of their communications.

12

8. Because the extent of the NSA’s surveillance activities is unknown and because of the

13 secrecy of these activities, we have been unable to ensure that these supporters of the Shalom Center

14 can communicate with us in confidence. We have considered other means of communication with

15 these supporters, but many of them require technological acumen that our local partners simply do

16 not have.

17

I declare under penalty of perjury under the laws of the United States of America that

18 the foregoing is true and correct. Executed on October, __, 2013 at Philadelphia, PA.

19

20

__________________________

21

RABBI ARTHUR WASKOW

22

23

24

25

26

27

28

2

DECLARATION OF RABBI ARTHUR WASKOW FOR THE SHALOM

CENTER ISO PLAINTIFF’S MSJ

CASE NO. 13-cv-3287 JSW

ûCT-31-eØ13 ElS:19P FR0l'4:THE SHÊLOIÍ CENTER e1S8448494

ïO:14154369993

Case3:13-cv-03287-JSW Document46 Filed11/06/13 Page4 of 4

P.3

f il aoünonai auaclls on oul worK.
-¿l tl

3 ll rooted prorphetic criticism and action ín regard to disastrous pubtic policies. I had trouble sleeping
a lldelayed some ess&ys and blogs I had been consídering and worried woried whether my actions

5 ll might ms¡ce tnouble for nonpolitical relatives. I certainly fett a chill fall a¿¡oss mv work of peacsble
ó [f assembi¡r- association, petition, and rhe free exercise of my religious convicrions. Sinco æ the
l¡
7 JIRåbbinic Director of The Shalom Center I am the chief spokesperson for its religious outlook and
I .l
ll relieious wort this chilline effect has slowed down- inhibited. atrd distort€d üe exoression of our

v Ifellg'ous ootrcerns.

r0il

7. Sincethedisclosr¡¡e ofthe Associational Trackine Proeram-$¡Doorærsanddonors of

il

I I lithe Shalom CcntEr have exoressed concerns about the confidentialiw of their

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12 tl

8. Because theextsntoftù€ NSA's sr¡nreillanceeøivities isr¡nknoumandbecar¡seoftbe

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il ll secrecy

ofdrese

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r¡nable

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f + llcan communicatç with us i¡ confide,nce. We bave consiM other means of commrmicdi,on with

tl
15 ll these supPofters, but rnnny of them require technological ac¡men that our local partners simply do
-lo-ililtoli¡åve.

I 7 ll

I declare under penalt-v of pe{ur-v under the laws of the United States of America that

lS

tl
llthe

foregoing

is true andcorrect Executed

on Oc'¡ober,Ql,

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atPhiladelphi4

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DECLÂF¿TION OF P*ÀJBI A}.T!{LIR CENTER ISO CASE NO. I

.q,SKOWFORTHË SHALOM F'S MSI
JSW

Case3:13-cv-03287-JSW Document47 Filed11/06/13 Page1 of 4

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.,

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF ANASTACIA CO)SNER FOR STUDENTS FOR SE)NSIBLE DRUG POLICY IN SU)PPORT OF PLAINTIFFS’ MO) TION FOR PARTIAL SUMMARY JU)DGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor

26

27

28

DECLARATION OF ANASTACIA COSNER FOR STUDENTS FOR SENSIBLE DRUG POLICY ISO MSJ

Case3:13-cv-03287-JSW Document47 Filed11/06/13 Page2 of 4

1

I, ANASTACIA COSNER, hereby declare:

2

1. I am the Deputy Director of Students for Sensible Drug Policy. The facts contained in

3 the following affidavit are known to me of my own personal knowledge and if called upon to testify, I

4 could and would competently do so.

5

2. Our organization educates and trains young people about harms caused by the war on

6 drugs. We involve young people in the political process and discuss alternatives to the failed policies

7 of drug prohibition.

8

3. The collection of our phone records by the government has resulted in (1) harassment,

9 membership withdrawal, and/or discouragement of new members, and (2) other consequences which

10 objectively suggest an impact on, or ‘chilling’ of, the members’ associational rights.

11

4. I say this because of the following facts:

12

The Associational Tracking Program activities have harmed us because we have

13 experienced a decrease in communications from members and constituents who had desired the fact

14 of their communication to Plaintiff to remain secret.

15

5. For example, we have experienced a decrease in calls to our hotline. For example,

16 prior to the revelations of government tracking, we received on average 6 calls per day, but since the

17 revelations became public, we have received on average only 3 calls per day.

18

6. This is not surprising because many people who we approach to become members of

19 our organization are worried about others discovering their support of a controversial issue.

20

7. We have also seen an increase in members and potential members expressing concern

21 about the confidentiality of the fact of their communications with us.

22

8. Since the disclosure of the Associational Tracking Program, we have lost the ability to

23 assure our members and constituents, as well as all others who seek to communicate with us, that the

24 fact of their communications to and with us will be kept confidential. The assurances of

25 confidentiality we made prior to the disclosure, were apparently incorrect.

26

9. Moreover, the pattern of distortion and lawless conduct by the NSA, exacerbated by

27 the intense secrecy of its activities, have left us unable to reassure our members and associates that

28 additional forms of surveillance, as yet unconfirmed or actively denied by the government are not

1
DECLARATION OF ANASTACIA COSNER FOR STUDENTS FOR SENSIBLE DRUG POLICY ISO MOTION FOR MSJ CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document47 Filed11/06/13 Page3 of 4

1

2 also occurring, leaving us with no alternative forms of confidential communication.

3

I declare under penalty of perjury under the laws of the United States of America that

4 the foregoing is true and correct. Executed on October __, 2013 at Washington, DC.

5

__________________________

6

ANASTACIA COSNER

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2
DECLARATION OF ANASTACIA COSNER FOR STUDENTS FOR SENSIBLE DRUG POLICY ISO MOTION FOR MSJ CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document47 Filed11/06/13 Page4 of 4

also occurring, leaving us with no alternative forms of confidential communication.

2

I declare under penalty of perjury under the laws ofthe United States of America that

3 the foregoing is true and correct. Executed on October~l, 2013 at Washington, DC.

4

~~<>-GrvtL-

5

ANASiACIA COSNER

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2
f"\t::f"'T AD A Tlr'l1'T r'lt:: A 1'1 A CT A f"'I A f"'r'IC1'Tt::D t::r'ID CTI Tf"\t::1'TTC t::r'ID

Case3:13-cv-03287-JSW Document48 Filed11/06/13 Page1 of 6

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.,

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF BERIN SZOKA ON) BEHALF OF TECHFREEDOM IN)SUPPORT OF PLAINTIFFS’ MO) TION FOR PARTIAL SUMMARY JU)DGMENT
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor
)

26

27

28

DECLARATION OF BERIN SZOKA ON BEHALF OF TECHFREEDOM ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document48 Filed11/06/13 Page2 of 6

1

I, BERIN SZOKA, hereby declare:

2

1. I am the President of TechFreedom. The facts contained in the following affidavit are

3 known to me of my own personal knowledge and, if called upon to testify, I could and would

4 competently do so.

5

2. Our organization is a non-profit1 think tank based in Washington, D.C. Our mission is

6 promoting technology that improves the human condition and expands individual capacity to choose

7 by educating the public, policymakers, and thought leaders about the kinds of public policies that

8 enable technology to flourish. TechFreedom seeks to advance public policy that makes

9 experimentation, entrepreneurship, and investment possible, and thus unleashes the ultimate

10 resource: human ingenuity.

11

3. All of TechFreedom’s employees use Verizon for business and personal purposes.

12 The compelled disclosure of our phone records to the government will decrease our organization’s

13 capacity to effectively communicate with policymakers, journalists, thought leaders, civil society

14 allies, and our donors.

15

4. TechFreedom’s ability to effectively advocate for our positions and influence

16 lawmakers, policymakers, journalists and thought leaders, as well as to raise funds from donors,

17 often hinges on our ability to communicate, and develop, our policy positions in confidence.

18

5. Since the disclosure of the Associational Tracking Program, we have lost the ability

19 to assure policymakers, journalists, thought leaders, civil society allies, and our donors, that the fact

20 of their communications to and with us will be kept confidential.

21

6. Indeed, in many circumstances, disclosure of the fact and timing of a particular

22 communication is more important and revealing than the content of the communication.

23

7. This is particularly so in the case of TechFreedom’s fundraising. Private

24 communication is often essential for fundraising purposes: Some donors are less willing to engage

25

26 1 We have applied for federal tax-exempt status under Section 501(c)(3); while we have not yet 27 received that status, we are operating according to the requirements of federal tax law.

28

1

DECLARATION OF BERIN SZOKA ON BEHALF OF TECHFREEDOM

ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document48 Filed11/06/13 Page3 of 6

1 with the organization and its employees if they know the fact of their communications will not be

2 confidential.

3

8. Moreover, the timing of our communication with other parties, such as donors, might

4 imply a chain of causation between donations, positions we take, and changes to the intellectual

5 landscape that result from our advocacy – even where such causation does not actually exist. Such

6 inaccurate perceptions could substantially damage our reputation for independence or even

7 potentially jeopardize our non-profit status. Even if we were vindicated, the mere fact of an

8 investigation or suggestion of impropriety could damage our reputation, limit our effectiveness and

9 harm our ability to raise support for our work.

10

9. This fear is neither speculative nor abstract. Indeed, my former think tank, The

11 Progress & Freedom Foundation (PFF), was the subject of a three year investigation by the Internal

12 Revenue Service into whether PFF had, by funding a college course (Renewing American

13 Civilization”) taught by then-House-Speaker Newt Gingrich, violated its tax-exempt status by

14 engaging in electoral politics. The investigation ultimately concluded that the course and course

15 book "were educational in content," rather than electoral. While this finding vindicated PFF, the

16 investigation did considerable damage to PFF’s reputation, its relationship with Gingrich, and its

17 ability to raise money from individuals who sympathized with Gingrich’s futurist views. Combined

18 with speculation that the investigation was itself politically motivated, this experience further chilled

19 PFF’s ability to exercise its free speech rights within the confines of its tax-exempt status by causing

20 its future employees to be excessively cautious about engaging in speech that either might

21 conceivably raise legitimate questions of tax law or that might raise the ire of those in a position to

22 launch another such investigation.

23

10. The disclosure of TechFreedom’s communication records similarly harms our ability

24 to fully advocate and advance our positions with policymakers.

25

11. For example, if TechFreedom has taken a public position on a particular issue, and

26 policymakers are poised to vote on that issue, the content of our communication to policymakers and

27 their staffs can safely be inferred: our communications will likely be consistent with our

28

2

DECLARATION OF BERIN SZOKA ON BEHALF OF TECHFREEDOM

ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document48 Filed11/06/13 Page4 of 6

1 public position.

2

12. In this example, however, the fact and timing of our communication with a lawmaker

3 can be substantially more revealing. For example, if TechFreedom communicates with a

4 policymaker shortly before that policymaker shifts his or her public position to align more closely

5 with TechFreedom’s position, it can safely be assumed that TechFreedom’s communication had

6 some influence over that decision.

7

13. Because of the acrimonious and partisan nature of Washington politics, the

8 Associational Tracking Program will necessarily cause policymakers to be more inhibited with their

9 communications with TechFreedom. For some policymakers, a change in their policy positions

10 attributable to TechFreedom’s advocacy may imply, accurately or not, an association or relationship

11 that the policymaker might otherwise be unwilling to publicly acknowledge.

12

14. This inhibition, in turn, hinders TechFreedom’s ability to advocate effectively for its

13 ideas.

14

15. Similarly, our communications with journalists and foreign nationals is limited by the

15 risk of disclosure. Knowing that the government will retain a record of all our communications, and

16 the inevitable possibility of disclosure, will reduce the likelihood of such individuals working with

17 TechFreedom on important Internet freedom issues, which are inherently trans-national and often

18 require collaboration with foreign civil society groups and policymakers.

19

16. Given the nature of our work, all the parties we deal with are exceptionally sensitive

20 to the risk of breaches of data collected by the government – be they inadvertent, the result of

21 malicious attacks on U.S. government servers, or intentional leaks or disclosures by politically

22 motivated individuals. Nor are the parties we deal with likely to accept official insistence that data

23 collected for one purpose by one agency will not be shared with other government agencies or with

24 policymakers. In short, the fact the government collects our call records in the first instance is

25 sufficient to inhibit parties from engaging with us without inhibition.

26

17. The compelled disclosure to the government of all TechFreedom’s telephone

27 communications, and the associated risk that those communications may later be disclosed, is a

28

3

DECLARATION OF BERIN SZOKA ON BEHALF OF TECHFREEDOM

ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document48 Filed11/06/13 Page5 of 6

1 risk some policymakers, journalists, thought leaders, civil society allies, and donors are unwilling to

2 take.

3

18. As a result, the Associational Tracking Program has chilled TechFreedom’s ability to

4 effectively advocate for our positions and advance our organizational mission.

5

I declare under penalty of perjury under the laws of the United States of America that

6 the foregoing is true and correct. Executed on October ___, 2013 at ______________, ________.

7

[City]

[State]

8 __________________________

9

BERIN SZOKA

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

DECLARATION OF BERIN SZOKA ON BEHALF OF TECHFREEDOM

ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document48 Filed11/06/13 Page6 of 6

1 risk some policymakers, journalists, thought leaders, civil society allies, and donors are unwilling to

2 take.

3

18. As a result, the Associational Tracking Program has chilled TechFreedom’s ability to

4 effectively advocate for our positions and advance our organizational mission.

5

I declare under penalty of perjury under the laws of the United States of America that

6 the foregoing is true and correct. Executed on October _2_9_, 2013 at __W__a_s_h_i_n_g_to_n___, ___D_C____.

7

[City]

[State]

8 __________________________

9

BERIN ZOKAS

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

DECLARATION OF BERIN SZOKA ON BEHALF OF TECHFREEDOM

ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document49 Filed11/06/13 Page1 of 4

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.,

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) DE)CLARATION OF CONSTANCE KA)NE FOR UNITARIAN UN)IVERSALIST SERVICE CO)MMITTEE IN SUPPORT OF PL)AINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGMENT
)
)
) Da)te: February 7, 2014 Tim) e: 9:00 A.M. Ho)n. Jeffrey S. White Courtroom 11 - 19th Floor

26

27

28
DECLARATION OF CONSTANCE KANE FOR UNITARIAN UNIVERSALIST SERVICE COMMITTEE ISO PLAINTIFFS’ MSJ

Case3:13-cv-03287-JSW Document49 Filed11/06/13 Page2 of 4

1

I, CONSTANCE KANE, hereby declare:

2

1. I am the Vice President and Chief Operating Officer of the Unitarian Universalist

3 Service Committee (“UUSC”). The facts contained in the following affidavit are known to me of

4 my own personal knowledge and if called upon to testify, I could and would competently do so.

5

2. Plaintiff UUSC partners with grassroots organizations that courageously confront

6 unjust systems and human rights violations.

7

3. As a membership organization that does not seek nor accept government funds,

8 UUSC is able to advocate for a broad range of justice-oriented public policies, some of which are

9 controversial. Often this work is done in active conflict zones or other sites of humanitarian disaster.

10 Additionally, our partners often represent marginalized populations, including survivors of torture,

11 many of whom fled persecution in their country of origin and have open asylum cases in the United

12 States; active military members organizing to protect and exercise their right to free speech; human

13 rights activists in countries with active conflict; and migrant workers in the informal economy who

14 are denied basic protections and rights due to their residency status. We carry out many of our

15 conversations with partners over the phone, as the organizations with which we work are spread

16 across the globe. We believe that these partners are now hesitant to contact our organization or to

17 speak freely as a result of the revelation of the NSA’s dragnet surveillance, including the bulk

18 acquisition, storage, and searching of telephone communications information.

19

4. Furthermore, because the people we work with are marginalized by definition,

20 knowledge of the work they are doing and who they are doing it with renders them extremely

21 vulnerable and even endangers them. Knowing that their calls are being monitored in any way has,

22 understandably, dissuaded them from working with us and other partners. This significantly inhibits

23 our ability to effectively carry out our mission of promoting social justice.

24

5. UUSC is a telephone subscriber of Comcast.

25 ///

26 ///

27

28

1

DECLARATION OF CONSTANCE KANE FOR UNITARIAN

UNIVERSALIST SERVICE COMMITTEE ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document49 Filed11/06/13 Page3 of 4

1

I declare under penalty of perjury under the laws of the United States of America that

2 the foregoing is true and correct. Executed on November __, 2013 at Cambridge, Massachusetts.

3

4

__________________________

5

CONSTANCE KANE

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

DECLARATION OF CONSTANCE KANE FOR UNITARIAN

UNIVERSALIST SERVICE COMMITTEE ISO PLAINTIFFS’ MSJ

CASE NO. 13-cv-3287 JSW

Case3:13-cv-03287-JSW Document49 Filed11/06/13 Page4 of 4

I declare under penalty ofperjury under the laws ofthe United States ofAmerica that
i_, 2 the foregoing is true and correct. Executed on November 2013 at Cambridge, Massachusetts.

3

4 CONSTANCE KANE
5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

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24

25

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2

DECLARATION OF CONSTANCE KANE FOR UNITARIAN

UNIVERSALIST SERVICE COMMITTEE ISO PLAINTIFFS ' MSJ

CASE NO . 13-cv-3287 JSW

 
 Case4:08-cv-04373-JSW Document228 Filed05/05/14 Page1 of 17
Approved for public release May 5, 2014

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
Approved for public release May 5, 2014

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)

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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
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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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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
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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
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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
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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
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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
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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
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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

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 Case3:13-cv-03287-JSW Document60 Filed11/18/13 Page1 of 3

DAVIS WRIGHT TREMAINE LLP

1 Thomas R. Burke (CA State Bar No. 141930)

DAVIS WRIGHT TREMAINE LLP

2 505 Montgomery Street, Suite 800

San Francisco, California 94111

3 Telephone: (415) 276-6500

Facsimile: (415) 276-6599

4 Email:

thomasburke@dwt.com

5 Edward J. Davis (application for admission pro hac vice forthcoming)

Linda Steinman (application for admission pro hac vice forthcoming) 6 Lacy H. Koonce, III (application for admission pro hac vice forthcoming)

7

Eric Feder (application for admission pro hac vice forthcoming) DAVIS WRIGHT TREMAINE LLP

8 1633 Broadway, 27th Floor

New York, New York 10019

9 Telephone: (212) 489-8230

Facsimile: (212) 489-8340 10

11 Attorneys For Amicus Curiae PEN American Center

12

IN THE UNITED STATES DISTRICT COURT

13

THE NORTHERN DISTRICT OF CALIFORNIA

14

SAN FRANCISCO DIVISION

15 FIRST UNITARIAN CHURCH OF LOS 16 ANGELES, et al.,

17

Plaintiffs,

18

- against -

19 NATIONAL SECURITY AGENCY, et al.,

20

Defendants.

21

) Case No. 3:13-CV-03287 JSW ) ) MOTION OF NON-PARTY PEN ) AMERICAN CENTER FOR LEAVE TO ) FILE BRIEF AS AMICUS CURIAE IN ) SUPPORT OF PLAINTIFFS ) ) ) ) ) )

22

Non-party PEN American Center (“PEN”) hereby moves the Court for leave to file the

23 accompanying brief as amicus curiae in the above-captioned case, in support of Plaintiffs. Both

24 Plaintiffs and Defendants have consented to the filing of this brief.

25

PEN is a non-profit association of writers that includes poets, playwrights, essayists,

26 novelists, editors, screenwriters, journalists, literary agents and translators. PEN has

27 approximately 3,700 members and is affiliated with PEN International, the global writers’

28 organization with 144 centers in more than 100 countries in Europe, Asia, Africa, Australia, and

1
Motion of Non-Party PEN American Center for Leave to File Brief as Amicus Curiae Case No. 3:13-CV-03287 JSW DWT 22968534v1 0050033-000045

Case3:13-cv-03287-JSW Document60 Filed11/18/13 Page2 of 3

DAVIS WRIGHT TREMAINE LLP

1 the Americas. PEN International was founded in 1921, in the aftermath of the first World War, by

2 leading European and American writers who believed that the international exchange of ideas was

3 the only way to prevent disastrous conflicts born of isolation and extreme nationalism. Today,

4 PEN works along with the other chapters of PEN International to advance literature, protect

5 freedom of expression, and advocate for writers all over the world who are persecuted because of

6 their work.

7

PEN submits the accompanying brief to highlight for the Court the ways in which the

8 government’s comprehensive collection of telephone call information particularly harms writers

9 by endangering the privacy that is necessary for the free exploration and exchange of ideas, and

10 the freedom of association and expression the Constitution protects.

11

Amicus curiae submissions are generally accepted by district courts where they concern

12 “legal issues that have potential ramifications beyond the parties directly involved” or where “the

13 amicus has ‘unique information or perspective that can help the court beyond the help that the

14 lawyers for the parties are able to provide.’” NGV Gaming, Ltd. v. Upstream Point Molate, LLC,

15 355 F. Supp. 2d 1061, 1067 (N.D. Cal. 2005) (quoting Cobell v. Norton, 246 F.Supp.2d 59, 62

16 (D.D.C.2003)); see also Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1063 (7th

17 Cir. 1997) (Posner, J.) (“An amicus brief should normally be allowed . . . when the amicus has

18 unique information or perspective that can help the court beyond the help that the lawyers for the

19 parties are able to provide.”). As then-Judge Alito explained in another case,

20

[s]ome friends of the court are entities with particular expertise not

21

possessed by any party to the case. Others argue points deemed too

far-reaching for emphasis by a party intent on winning a particular

22

case. Still others explain the impact a potential holding might have

on an industry or other group. 23

Neonatology Assocs., P.A. v. C.I.R., 293 F.3d 128, 132 (3d Cir. 2002) (Alito, J.). 24

25

PEN aims to assist in all these ways. The parties will naturally focus their arguments on

26 the effects the collection of phone records by the National Security Agency (“NSA”) has on the

27 plaintiffs and their communications with their members, staff and other individuals and groups.

28 As the accompanying brief shows, PEN is particularly qualified to provide the Court with

2
Motion of Non-Party PEN American Center for Leave to File Brief as Amicus Curiae Case No. 3:13-CV-03287 JSW DWT 22968534v1 0050033-000045

Case3:13-cv-03287-JSW Document60 Filed11/18/13 Page3 of 3

DAVIS WRIGHT TREMAINE LLP

1 perspectives on the broader impact such government surveillance has on writers and on First

2 Amendment interests, drawing on the experience and research of its members and PEN’s own

3 research and advocacy, including a recently-published independent survey of its membership

4 commissioned by PEN. PEN and its members are acutely aware of the inhibiting effect that the

5 NSA’s routine, comprehensive surveillance can have, not only on individual writers but on the

6 evolution of thought and ideas generally, which depend crucially on privacy – the freedom to

7 make connections, communicate with one another, and experiment and create that the Constitution

8 has long protected. Indeed, PEN’s recent member survey demonstrates that the NSA’s mass

9 surveillance is already affecting writers’ behavior, causing many to censor themselves and restrict

10 their research, communications, and writings. The perspectives offered by PEN’s members in the

11 proposed brief thus provide views of the issues and the stakes in this case beyond those the parties

12 are likely to provide in their submissions.

13

For these reasons, PEN respectfully requests that the Court grant this motion for leave to

14 file the accompanying brief.

15 Dated: November 18, 2013 16 17 18 19 20

Respectfully submitted,
DAVIS WRIGHT TREMAINE LLP
By: /s/ Thomas R. Burke Thomas R. Burke
Attorneys for Amicus Curiae PEN American Center

21

22

23

24

25

26

27

28

3
Motion of Non-Party PEN American Center for Leave to File Brief as Amicus Curiae Case No. 3:13-CV-03287 JSW DWT 22968534v1 0050033-000045

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 Case3:13-cv-03287-JSW Document53-1 Filed11/15/13 Page2 of 24

Jennifer M. Urban (SBN 209845) 1 jurban@law.berkeley.edu
2 SAMUELSON LAW, TECHNOLOGY &
PUBLIC POLICY CLINIC
3 UNIVERSITY OF CALIFORNIA, BERKELEY, SCHOOL OF LAW
4 396 Simon Hall Berkeley, CA 94720-7200
5 Telephone: (510) 684-7177 6 Facsimile: (51 0) 643-4625

7

Attorney for Amici Curiae EXPERTS IN THE HISTORY OF

8

EXECUTIVE SURVEILLANCE: JAMES BAMFORD,DR.LOCHJOHNSON,AND

9 PETERFENN

10 On the Brief: Clinical Students
11 Charles Crain Samia Hossain
12 Jesse Koehler

13

UNITED STATES DISTRICT COURT 14

FOR THE NORTHERN DISTRICT OF CALIFORNIA 15

SAN FRANCISCO DIVISION 16

17

FIRST UNITARIAN CHURCH OF LOS ANGELES, eta/.,

) Case No.: 3:13-cv-03287 JSW )

18 19
v.

Plaintiffs,

) BRIEF AMICUS CURIAE OF EXPERTS

) ) )

IN THE HISTORY OF EXECUTIVE SURVEILLANCE: JAMES BAMFORD,

) LOCH JOHNSON, AND

20

) PETERFENN

NATIONAL SECURITY AGENCY, eta/.,

)

21

) Courtroom 11, 19th Floor

22

Defendants.

) Hon. Jeffrey S. White )

) 23

24 25

26

27 28

BRIEF AMICUS CURIAE: EXPERTS IN HIST. OF EXEC. SURVEILLANCE CASE NO. : 3:13-cv-03287 JSW

Case3:13-cv-03287-JSW Document53-1 Filed11/15/13 Page3 of 24

TABLE OF CONTENTS 1 TABLE 0 F AUTH0 RITIES ........................................................................................................... ii

2 INTEREST OF AMICUS CURIAE................................................................................................ v

3 SUMMARY OF ARGUMENT .......................................................................................................vi

4 ARGUMENT..................................................................................................................................... 1

5

I. CONGRESS PASSED FISA TO REIN IN PRECISELY THE TYPE OF

6

OVERBROAD SURVEILLANCE OF INNOCENT AMERICANS THAT HAS

REEMERGED SINCE 2001........................................................................................................ 1

7

II. HISTORY DEMONSTRATES THAT, IN THE ABSENCE OF PROPER

8

OVERSIGHT, EXECUTIVE SURVEILLANCE PROGRAMS EXPAND IN PURPOSE,

COLLECT EVER-GREATER VOLUMES OF INFORMATION, AND ARE OPERATED

9

WITHOUT SUFFICIENT REGARD FOR THEIR LEGALITY OR EFFECTIVENESS... 2

10

A. Without proper oversight, executive surveillance programs naturally expand,

creating the risk of misuse........................................................................................................ 3 11

i. Prior to the advent of FISA' s protections, initially narrow programs expanded into

12

illegality and began targeting constitutionally protected activities........................................ 3

13

ii. Since 2001, surveillance programs have followed this historical pattern by expanding

14

in secret and cataloguing of the activities of innocent Americans......................................... 5

15

B. Ongoing technological advances allow the collection and storage of vast amounts of data, increasing the risk that innocent Americans' records will be acquired, retained,

16

and misused. .............................................................................................................................. 7

17

C. Executive officials responsible for surveillance programs naturally shield their

activities from scrutiny, encouraging expansion and impeding necessary oversight....•.. 10

18 i. In the pre-FISA era, the executive shielded legally questionable programs from

19

oversight, reducing their effectiveness and permitting misuse............................................. 10

20

ii. Since 2001 the executive, despite FISA's oversight requirements, has once again

shielded its actions from the other branches of government; as a result intelligence agencies

21

have conducted operations of questionable legality and efficacy......................................... 12

22

Ill. THIS COURT SHOULD PROPERLY INTERPRET SECTION 215'S RELEVANCE

23

REQUIREMENT AS A RESTRAINT ON EXPANSIVE SURVEILLANCE...................... 14

24 CONCLUSION ............................................................................................................................... 15

25

26

27

28
BRIEF AMICUS CURIAE: EXPERTS IN HIST. OF EXEC. SURVEILLANCE CASE NO.: 3:13-CV-03287 JSW

Case3:13-cv-03287-JSW Document53-1 Filed11/15/13 Page4 of 24

TABLE OF AUTHORITIES
1 CASES
2 Amended Memorandum Opinion, Docket No. BR 13-109 (FISC Aug. 29, 2013) ............................ 6

3 Berger v. State ofN Y., 388 U.S. 41 (1967) ........................................................................................ 6

4 Clapper v. Amnesty International, 132 S. Ct. 2431 (2012) .............................................................. 15

5 Memorandum Opinion and Order (FISC Oct. 3, 2011) .................................................................... 13

6 Order, Docket No. BR 08-13 (FISC Mar. 2, 2009) ...................................................................... 6, 13

7 Secondary Order, Docket No. BR 13-80 (FISC Apr. 25, 2013) ................................................... 8, 15

8 STATUTES

50 U.S.C. § 1803 (2006) ..................................................................................................................... 2 9
50 u.s.c. § 1805 (2006) ..................................................................................................................... 2
10

50 U.S.C. § 1807 (2006) ..................................................................................................................... 2
11

50 U.S.C. § 1808 (2006) ..................................................................................................................... 2 12

50 U.S.C. § 1861 (2006) ..................................................................................................................... 1 13

OTHER AUTHORITIES

14 Administration White Paper: Bulk Collection ofTelephony Metadata Under Section 215 of the

15

USA PATRIOT Act, Aug. 9, 2013 ............................................................................................. 1, 8

16

Andrea Peterson, Obama says NSA has plenty ofcongressional oversight. But one congressman says it's a farce, Wash. Post. (October 9, 2013), http://www.washingtonpost.com/blogs/the-

17

switch/wp/2013/1 0/09/obama-says-nsa-has-plenty-of-congressional-oversight-but-one-

congressman-says-its-a-farce/....................................................................................................... 14

18 Barton Gellman & Ashkan Soltani, NSA collects millions ofe-mail address books globally, Wash.

19

Post (Oct. 14, 2013 ), http://www.washingtonpost.com/world/national-security/nsa-collects-

millions-of-e-mail-address-books-globally/2013/10/14/8e58b5be-34f9-11e3-80c6-

20

7e6dd8d22d8f_story.html ............................................................................................................. 10

21 Barton Gellman & Ashkan Soltani, NSA infiltrates links to Yahoo, Google data centers worldwide,

22

Snowden documents say, Wash. Post (Oct. 30, 2013), http://www.washingtonpost.com/world/national-security/nsa-infiltrates-links-to-yahoo-google-

23

data-centers-worldwide-snowden-documents-say/2013/1 0/30/e51d661 e-4166-11 e3-8b74-

d89d714ca4dd_story.html .............................................................................................................. 9

24 Barton Gellman & Matt DeLong, How the NSA 's MUSCULAR program collects too much data

25

from Yahoo and Google, Wash. Post (Oct. 30, 2013),

http://apps.washingtonpost.com/g/page/world/how-the-nsas-muscular-program-collects-too-

26

much-data-from-yahoo-and-google/543/...................................................................................... 11

27

28
11 BRIEF AMICUS CURIAE: EXPERTS IN HIST. OF EXEC. SURVEILLANCE
CASE NO.: 3:13-CV-03287 JSW

Case3:13-cv-03287-JSW Document53-1 Filed11/15/13 Page5 of 24

Barton Gellman, US. surveillance architecture includes collection ofrevealing Internet, phone

1

metadata, Wash. Post (June 15, 2013), http:l/articles.washingtonpost.com/2013-06-

2

15/news/39993852_1_comey-national-intelligence-intelligence-collection .................................. 5

3

Carol D. Leonnig, Court: Ability to police US. spying program limited, Wash. Post (Aug. 15, 2013), http://www.washingtonpost.com/politics/court-ability-to-police-us-spying-program-

4

limited/2013/08/15/4a8c8c44-05cd-11e3-a07f-49ddc7417125_print.html.. ................................ 13

5 Eric Lichtblau & James Risen, Spy Agency Mined Vast Data Trove, Officials Report, N.Y. Times, Dec. 24, 2005, at AI ....................................................................................................................... 5

6 H.R. Rep. No. 109-333 (2005) (Conf. Rep.) .................................................................................... 13

7 Hearings Before the Senate Select Comm. to Study Governmental Operations with Respect to

8

Intelligence Activities, 94th Cong., 1st Sess., Vol. 5 (1975) .......................................................... 7

9 Jack Goldsmith, The Terror Presidency (2009) ............................................................................... 12

10 James Ball, NSA stores metadata ofmillions ofweb usersfor up to a year, secret files show, The

Guardian (Sept. 30, 2013), http://www.theguardian.com/world/2013/sep/30/nsa-americans-

11

metadata-year-documents ............................................................................................................... 8

12 James Bamford, The Puzzle Palace: Inside the National Security Agency, America's Most Secret

Intelligence Organization (1982)................................................................................................... 4 13

James Bamford, The Shadow Factory: The NSA From 9/11 to the Eavesdropping on America

14

(2008) ...................................................................................................................................... 12, 13

15 James Risen & Laura Poitras, NS.A. Examines Social Networks Of US. Citizens, N.Y. Times,

16

Sept. 29, 2013, at A1 ...................................................................................................................... 9

17 Kashmir Hill, Blueprints OfNSA 's Ridiculously Expensive Data Center In Utah Suggest It Holds Less Info Than Thought, Forbes (July 24, 2013),

18

http://www.forbes.com/sites/kashmirhill/20 13/07/24/blueprints-of-nsa-data-center-in-utah-

suggest-its-storage-capacity-is-less-impressive-than-thought/ ....................................................... 8

19

Kate Tummarello, Senators repackage surveillance bills as comprehensive reform, The Hill (Sept.

20

25, 2013), http:l/thehill.com/blogs/hillicon-valley/technology/324687-senators-repackage-

surveillance-bills-as-comprehensive-reform ................................................................................ 14 21

22

L. Britt Snider, Unlucky SHAMROCK: Recollections from the Church Committee's Investigation of NSA, Stud. Intelligence, Winter 1999-2000 ............................................................................... 3, 4

23 Letter from James Sensenbrenner to Attorney General Eric Holder (Sept. 6, 2013) ....................... 13

24 Loch K. Johnson, A Season ofInquiry: The Senate Intelligence Investigation (1985) ...................... 5

25 Offices of the Inspectors General, Unclassified Report on the President's Surveillance Program

26

(2009) ("PSP IG Group Report") ........................................................................................... 12, 14

27 Oversight ofthe Administration's Use ofFISA Authorities: Hearing Before the H Comm. on the Judiciary, 113th Cong. (July 17, 2013) .......................................................................................... 9

28

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Peter Fenn, When the NSA Was Spying on the Congress, U.S. News & World Rep. (Sept. 27,

1

2013), http://www.usnews.com/opinionlblogs/Peter-Fenn/2013/09/27/when-the-nsa-spied-on-

2

the-congress .................................................................................................................................... 2

Peter P. Swire, The System ofForeign Intelligence Surveillance Law, 72 Geo. Wash. L. Rev. 1306

3

(2004) .............................................................................................................................................. 2

4 Peter Swire, A Reasonableness Approach to Searches After the Jones GPS Tracking Case, 64 Stan.

5

L. Rev. Online 57 (2012) ................................................................................................................ 6

6 Presidential News Conference, Wash. Post (Dec. 19, 2005), http://www.washingtonpost.com/wpdyn/content/article/2005/12/19/AR2005121900375.html .............................................................. 5

7 Press Release, Wyden, Udall Statement on the Disclosure ofBulk Email Records Collection

8

Program (July 2, 2013)................................................................................................................. 14

9 Robert Bloom & William J. Dunn, The Constitutional Infirmity ofWarrantless NSA Surveillance:

The Abuse ofPresidential Power and the Injury to the Fourth Amendment, 15 Wm. & Mary Bill

10

Rts. J. 147 (2006) ............................................................................................................................ 8

11 Senate Select Comm. to Study Governmental Operations with Respect to Intelligence Activites,

Intelligence Activities and the Rights of Americans (Book II), S. Rep. No. 94-755 (1976)

12

("Church Committee Book II") .............................................................................................passim

13 Senate Select Comm. to Study Governmental Operations with Respect to Intelligence Activities,

14

Supplemental Detailed Staff Reports on Intelligence Activities and the Rights of Americans

(Book III), S. Rep. No. 94-755 (1976) ("Church Committee Book III") ........................ .4, 5, 7, 11

15 Time to Rein in the Surveillance State, ACLU, https://www.aclu.org/time-rein-surveillance-state-0

16
........................................................................................................................................................ 9

17

18

19

20

21

22

23

24

25

26

27

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INTEREST OF AMICUS CURIAE 1
Amici are experts in the history of executive surveillance in the United States. They believe 2
that this history sheds light on the origins and importance of the congressional and judicial 3
oversight structures implicated by this case. Amici's sole interest is to assist this Court in applying
4 Section 215 of the USA PATRIOT Act by illuminating similarities between the ongoing bulk
5 telephone records surveillance at issue here and the government's past surveillance activities.
6
Amicus James Bamford served as an intelligence analyst with the United States Navy. In 7
1982 he published The Puzzle Palace, the first comprehensive history of the National Security 8
Agency ("NSA"). In three subsequent books and numerous articles he has chronicled the activities 9
of the NSA from its inception, through the post-9/11 era, to the present day. As the foremost 10
historian of the National Security Agency, Mr. Bamford has an unparalleled understanding of the 11
development and growth of American surveillance programs. 12
Amicus Loch Johnson served as special assistant to the chair of the Church Committee and 13
as staff director of the House Subcommittee on Intelligence Oversight. He also worked with the 14
Chair of the Aspin-Brown Commission on Intelligence. He is currently Regents Professor of 15
Political Science at the University of Georgia and the editor of Intelligence and National Security. 16
From his firsthand experiences with the Church Committee investigations and the Aspin-Brown 17
Commission, Mr. Johnson is directly familiar with the complex features of American intelligence 18
agencies and their oversight. 19
Amicus Peter Fenn served as Washington Chief of Staff for Senator Frank Church during 20
his committee's intelligence investigation and on the staff of the Senate Intelligence Committee. 21
Mr. Fenn's work with Senator Church, and his subsequent experience with the first standing Senate
22
committee dedicated to overseeing intelligence gathering, allow him to speak to the intricacies of 23
that oversight.
24
Amici understand the features, histories, roles, and capabilities of American intelligence 25
agencies, and therefore understand the necessity of robust intelligence oversight. Thus, Amici seek
26 to assist this Court in understanding the historical and institutional context of this case.
27

28

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1

SUMMARY OF ARGUMENT

2

The central issue facing this Court is whether the government's present interpretation and

3 application of Section 215 of the USA PATRIOT Act ascribes the proper meaning to the term

4 "relevance." As amici explain, the government's interpretation of Section 215 grants the executive

5 expansive power to determine the parameters of its surveillance of Americans; historical patterns

6 that have reemerged since 2001 show the dangers of this approach.

7

As amici know from their extensive research and from personal experience, recent

8 surveillance activities, and the executive's justifications for them, share core features with

9 surveillance programs that operated from the 1930s into the 1970s. These features include:

10 expansion of surveillance programs beyond their original purpose; a tendency to collect as much

11 information as possible, with the result that surveillance expands as technology advances; and a

12 preoccupation with secrecy that thwarts an effective evaluation of these programs' effectiveness or

13 legality.

14

As amici also know from their expertise, these features are present even when executive

15 officials act in good faith; they are inherent to secret surveillance programs and can therefore only

16 be addressed through effective oversight. Surveillance in the mid-twentieth century expanded from

17 its original national security focus into bulk collection of Americans' communications data and the

18 targeting of Americans exercising their First Amendment associational rights; modem programs

19 directed at international terrorism have similarly expanded to sweep up Americans' domestic

20 telephone records. Advancing technology exponentially increases the capacity to collect and

21 analyze data, multiplying the risk that Americans' communications will be acquired and misused.

22

These modem programs must therefore be subject to effective oversight to reduce the risk

23 that secrecy will mask escalating abuse. When Americans, like the members of Plaintiffs'

24 organizations, challenge the executive's acquisition of their communications data, it is the role of

25 the judiciary to apply the appropriate statutory and constitutional limits on executive surveillance.

26 Amici therefore respectfully ask this Court to give Section 215's "relevance" requirement its

27 natural reading as a restraint on, and not an invitation for, massive executive surveillance.

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1

ARGUMENT

I. CONGRESS PASSED FISA TO REIN IN PRECISELY THE TYPE OF OVERBROAD

2

SURVEILLANCE OF INNOCENT AMERICANS THAT HAS REEMERGED SINCE

3

2001.

This case asks the Court to decide whether the executive's prospective and ongoing 4

collection and storage of Americans' telephone records is justified on the grounds that the data are 5

"relevant" to an ongoing foreign intelligence investigation as required by Section 215 of the USA 6

PATRIOT Act. Section 215 amended 50 U.S.C. § 1861 to allow the collection of telephone and 7

other records only if "there are reasonable grounds to believe that the tangible things sought are 8

relevant to an authorized investigation ... to obtain foreign intelligence information not concerning 9

a United States person or to protect against international terrorism or clandestine intelligence 10

activities." 50 U.S.C. § 1861(b)(2)(A) (2006). The executive argues that Section 215 justifies the 11

collection and storage of all Americans' telephone records, "even when any particular record is 12

unlikely to directly bear on the matter being investigated," if "the Government has reason to 13

believe that conducting a search of [those records] will produce counterterrorism information." See
14

Administration White Paper: Bulk Collection of Telephony Metadata Under Section 215 of the 15

USA PATRIOT Act, Aug. 9, 2013, at 8, 10. 16

History counsels caution when the executive claims expansive power to set the limits of its 17

own surveillance of Americans. As the committee led by Senator Frank Church found in its 18

definitive investigation of mid-twentieth-century surveillance, "[i]ntelligence collection programs 19

naturally generate ever-increasing demands for new data" and, "[i]n time of crisis, the Government 20

will exercise its power to conduct domestic intelligence activities to the fullest extent." Senate 21

Select Comm. to Study Governmental Operations with Respect to Intelligence Activities,
22

Intelligence Activities and the Rights of Americans (Book II), S. Rep. No. 94-755, at 4, 289 (1976) 23

("Church Committee Book II"). These programs become abusive when constitutional "checks and 24

balances designed ... to assure accountability have not been applied." /d. at 289. 25

The Church Committee found that, by the 1970s, executives of both parties had conducted 26

surveillance targeting "numerous individuals and groups who engaged in no criminal activity and 27

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1 who posed no genuine threat to the national security." !d. at 12. Targets included Supreme Court

2 Justice William 0. Douglas; members of the civil rights movement, including Martin Luther King,

3 Jr.; Senator Adlai Stevenson and Congressman Abner Mikva; White House advisers and

4 congressional staff members; "journalists and newsmen;" and ordinary "teachers, writers, and

5 publications." !d. at 8-12, 17, 49. Recent disclosures by the NSA even add Senator Frank Church

6 himself to that list of targets. Peter Fenn, When the NSA Was Spying on the Congress, U.S. News &

7 World Rep. (Sept. 27, 2013), http://www.usnews.com/opinionlblogs/Peter-Fenn/2013/09/27/when-

8 the-nsa-spied-on-the-congress.

9

Congress responded by asserting its oversight role-first by conducting investigations and

10 then by passing legislation. In 1978, Congress created the Foreign Intelligence Surveillance Act

11 ("FISA") oversight regime to end the four-decade era of expansive and abusive surveillance

12 detailed by the Church Committee. See Peter P. Swire, The System of Foreign Intelligence

13 Surveillance Law, 72 Geo. Wash. L. Rev. 1306, 1320-25 (2004). FISA imposed both congressional

14 oversight and judicial review by the Foreign Intelligence Surveillance Court ("FISC") to provide

15 checks on executive surveillance programs. See 50 U.S.C. §§ 1803, 1805, 1807, 1808 (2006).

16

Recent disclosures show that patterns from the pre-FISA era have reemerged since the 9/11

17 terrorist attacks. These developments are troubling but unsurprising-they follow a clear historical

18 pattern. In the absence of effective oversight, surveillance programs expand, with abuse following

19 and eventually flourishing. This Court should give Section 215 's "relevance" requirement its

20 natural reading as a check on, rather than a license for, expansive executive surveillance powers.

21 This is consistent with the language of the statute, the lessons of history, and FISA's protective

22 regime.

23 II. HISTORY DEMONSTRATES THAT, IN THE ABSENCE OF PROPER OVERSIGHT,

EXECUTIVE SURVEILLANCE PROGRAMS EXPAND IN PURPOSE, COLLECT

24

EVER-GREATER VOLUMES OF INFORMATION, AND ARE OPERATED

WITHOUT SUFFICIENT REGARD FOR THEIR LEGALITY OR EFFECTIVENESS. 25

Amici seek to highlight the central lesson of the pre-FISA era: the expansion of executive

26

surveillance programs creates an inherent and grave risk that, over time, those programs will be

27

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1 misused to monitor Americans' constitutionally protected activities.

2

Post-9/11 surveillance programs share core features with the programs criticized by the

3 Church Committee in its report: a drift by agencies into overbroad collection practices; a continual

4 expansion of surveillance fueled by increases in technological capacity; and a preoccupation with

5 secrecy that makes it difficult to assess either the programs' effectiveness or whether they have

6 expanded beyond legal and constitutional limits.

7

Importantly, history shows that these features do not result from the isolated decisions of

8 ill-intentioned officials. Rather, these problems are inherent to secret surveillance programs-

9 including those created by well-intentioned officials for appropriate purposes-and are exacerbated

10 by insufficient transparency and oversight.

11

These features led to the growth and misuse of executive surveillance in the mid-twentieth

12 century and persisted until Congress addressed them with FISA' s structural protections. Today,

13 they have reemerged in the bulk collection of communications records at issue here and in the

14 government's defenses ofthis practice.

15 A. Without proper oversight, executive surveillance programs naturally expand, creating the

risk of misuse.

16 The history of executive surveillance in the twentieth century demonstrates that programs

17 operating without robust external and internal oversight expand beyond their original purposes,

18 often into illegal conduct. Features of post-9111 programs follow this pattern.

19 i. Prior to the advent ofFISA 's protections, initially narrow programs expanded into

20

illegality and began targeting constitutionally protected activities.

21

Operation SHAMROCK, which monitored millions of telegrams sent by Americans

22 between 1947 and 1975, is a striking example of the overbroad surveillance documented by the

23 Church Committee. As former Central Intelligence Agency ("CIA") Inspector General L. Britt

24 Snider reported, the operation that would become the dragnet SHAMROCK program began with a

25 clear national security purpose-monitoring and censoring information leaving the country during

26 World War II. See L. Britt Snider, Unlucky SHAMROCK: Recollections from the Church

27 Committee's Investigation of NSA, Stud. Intelligence, Winter 1999-2000, at 45, 48-49. After the

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1 war, however, the agency that would later become the NSA continued and expanded the
2 monitoring program through secret arrangements with three major telecommunications companies.
3 See id. at 48-49; see also James Bamford, The Puzzle Palace: Inside the National Security Agency, 4 America's Most Secret Intelligence Organization 302-15 (1982).

5

By the time SHAMROCK was terminated in 1975, it had grown to become "probably the

6 largest governmental interception program affecting Americans ever undertaken," with NSA

7 analysts using new computing methods to review about 150,000 telegrams per month-including

8 the majority of the international telegrams leaving New York City. Senate Select Comm. to Study

9 Governmental Operations with Respect to Intelligence Activities, Supplemental Detailed Staff

10 Reports on Intelligence Activities and the Rights of Americans (Book III), S. Rep. No. 94-755, at 11 765 (1976) ("Church Committee Book III"); Snider, supra, at 45. Telegrams were picked up daily

12 and fed into a computer that "kick[ed] out" full texts of any telegrams containing key words,

13 phrases, names, locations, or addressees. See Bamford, The Puzzle Palace, supra, at 313.

14

SHAMROCK's purpose expanded along with its data collection and it eventually targeted

15 many Americans exercising their First Amendment rights, including Black Power movement 16 participants and Vietnam War opponents. See id. at 317-22. Congress's investigation found that

17 the program violated laws against domestic spying and laws "protecting the privacy of the mails

18 and forbidding the interception of communications." Church Committee Book II at 58.

19

As SHAMROCK grew, the NSA also began focusing its surveillance efforts on "watch list"

20 names submitted by other federal agencies. This intelligence-sharing program expanded piecemeal

21 and over time into abuse. Watch-list surveillance initially focused on protecting the President and

22 other government officials and on Federal Bureau of Investigation ("FBI") requests, in light of the

23 embargo against Cuba, that the NSA flag communications of American companies "doing business

24 with individuals in Cuba and the Cuban government" and the "personal messages" of individuals

25 traveling to or from that country. Church Committee Book III at 744-45. But the watch list soon

26 developed into a wide-ranging domestic surveillance program that targeted law-abiding citizens.

27 See id. at 747-50. In 1967, responding to pressure from the executive, the Department ofthe Army

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1 established a "civil disturbance unit" that used the NSA to monitor American civil rights and

2 antiwar organizations for "foreign involvement." Id Between 1966 and 1973, the NSA intercepted

3 messages of 1680 Americans and activist groups-not because of evidence of wrongdoing, but

4 because the NSA had been given the "unprecedented" task of hunting for evidence that activists

5 were under foreign influence. Loch K. Johnson, A Season of Inquiry: The Senate Intelligence

6 Investigation 105 (1985); Church Committee Book III at 746.

7

The NSA conducted watch list surveillance without a charter until formalizing the program

8 as "MINARET" in 1969. The NSA created MINARET's secret charter both to formalize watch list

9 procedures and to hide the agency's tracking of Americans. Church Committee Book III at 748-49.

10

ii. Since 2001, surveillance programs have followed this historical pattern by expanding in

secret and cataloguing ofthe activities ofinnocent Americans.

11
Despite the additional oversight required by the ASA regime, post-9111 executive

12 surveillance programs have similarly expanded beyond legal limits, creating a serious and ongoing

13 risk that they will be used for illegal monitoring and targeting.

14 The President's Surveillance Program ("PSP"), a warrantless surveillance operation

15 approved by President George W. Bush after 9/11, began with a clear national security purpose-

16 targeting international calls of people with known links to terrorist groups. Presidential News

17 Conference, Wash. Post (Dec. 19, 2005), http://www.washingtonpost.com/wp-

18 dyn/content/article/2005112119/AR2005121900375.html. But the PSP expanded into what some

19 officials described as "a large data-mining operation," collecting and analyzing a vast quantity of

20 international and domestic Internet and telephone communications. Eric Lichtblau & James Risen,

21 Spy Agency Mined Vast Data Trove, Officials Report, N.Y. Times, Dec. 24, 2005, at AI. By 2004,

22 the Attorney General and the FBI Director had concluded that the PSP's warrantless bulk

23 collection of Internet metadata was illegal and threatened to resign if it continued without FISC

24 approval. See Barton Gellman, US. surveillance architecture includes collection of revealing

25 Internet, phone metadata, Wash. Post (June 15, 2013), http:/larticles.washingtonpost.com/2013-06-

26 15/news/39993 852_1_comey-national-intelligence-intelligence-collection.

27 Despite subsequent moves to subject executive surveillance to congressional and judicial

28

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1 scrutiny, these programs have continued to expand. The bulk, prospectively authorized collection

2 of telephone records at issue here-an outgrowth of the PSP-epitomizes this trend. In the FISC's

3 March 2009 Order reviewing the records program and addressing Section 215' s relevance 4 requirement, Judge Walton noted that nearly all the collected telephone records pertained to "non-

5 U.S. persons who are not the subject of an FBI investigation to obtain foreign intelligence

6 information," "U.S. persons who are not the subject of an FBI investigation to protect against 7 international terrorism or clandestine intelligence activities," and "data that otherwise could not be 8 legally captured in bulk by the government." Order, Docket No. BR 08-13, at 11-12 (FISC Mar. 2, 9 2009). The court could only approve such a program, Judge Walton explained, based on "the

10 government's explanation, under oath," of how the collection was vital to national security and on 11 its use of constitutionally required minimization procedures restricting access to the collected 12 metadata. ld at 12; see Peter Swire, A Reasonableness Approach to Searches After the Jones GPS 13 Tracking Case, 64 Stan. L. Rev. Online 57 (2012) (citing Berger v. State ofNY, 388 U.S. 41,59 14 (1967)) (explaining Congress's enshrinement of Berger's constitutional requirements in statutory

15 minimization procedures).

16

However, the court noted that "[f]rom the inception of this ... program, the NSA's data

17 accessing technologies and practices were never adequately designed to comply with the governing

18 minimization procedures," that there had been "repeated inaccurate statements made in the

19 government's submissions," and that court-imposed safeguards had "been so frequently and

20 systemically violated that it can fairly be said that this critical element of the overall ... regime has

21 never functioned effectively." Order, Docket No. BR 08-13, at 11, 14-15 (FISC Mar. 2, 2009).

22 Judge Walton concluded that "[t]o approve such a program, the Court must have every confidence

23 that the government is doing its utmost to ensure that those responsible for implementation fully

24 comply with the Court's orders. The Court no longer has such confidence." Id at 12. But see

25 Amended Memorandum Opinion, Docket No. BR 13-109, at 5 n.8 (FISC Aug. 29, 2013).

26

As the trajectory of pre-FISA and post-9/11 surveillance demonstrates, it is simply the

27 nature of such programs-even when led by well-intentioned officials-to incrementally expand

28

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1 and begin collecting data outside their legitimate scope.

2 B. Ongoing technological advances allow the collection and storage of vast amounts of data,

increasing the risk that innocent Americans' records will be acquired, retained, and

3

misused.

4

The Church Committee further concluded that Project MINARET suffered from a

5 "multiplier effect." Church Committee Book III at 750. The NSA collected as much information as

6 possible to be analyzed later, resulting in the expansion of the number of targeted individuals and

7 organizations as well as surveillance of people who simply came into contact with those who ended

8 up on watch lists. See id. Thus, MINARET surveilled innocent Americans, from "members of

9 radical political groups" to "citizens involved in protests against their Government." !d. at 749-50.

10 Communications collected by the NSA included, for example, those "discussing a peace concert"

11 and "a pro-Vietnam war activist's invitations to speakers for a rally." !d. at 750.

12

Technological advances contributed to this multiplier effect. Telegraph companies' move to

13 magnetic tapes from paper made it possible for the NSA to search quickly for particular names;

14 thereafter, "telegrams to or from, or even mentioning, U.S. citizens whose names appeared on the

15 watch list . . . would have been sent to NSA's analysts, and many would subsequently be

16 disseminated to other agencies." Hearings Before the Senate Select Comm. to Study Governmental

17 Operations with Respect to Intelligence Activities, 94th Cong., 1st Sess., Vol. 5, at 59 (1975). The

18 Church Committee specifically warned that "the technological capability of Government

19 relentlessly increases," that "the potential for abuse is awesome," and that Congress must create

20 "restraints which not only cure past problems but anticipate and prevent the future misuse of

21 technology." Church Committee Book II at 289.

22

The committee was prescient. Since the mid-1970s, increasing technological capacity to

23 collect and store data has enormously magnified the risk that innocent Americans will be surveilled

24 and later improperly targeted. Advances in storage capacity and "data mining" techniques allow the

25 NSA to collect and analyze immense amounts of information. This includes "all call detail records

26 or 'telephony metadata' created by Verizon for communications ... [including those] wholly

27 within the United States, including local telephone calls," Secondary Order, Docket No. BR 13-80,

28

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1 at 2 (FISC Apr. 25, 2013), as well as a year's worth of records ofthe online activities of millions of

2 Internet users. James Ball, NSA stores metadata of millions of web users for up to a year, secret

3 files show, The Guardian (Sept. 30, 2013), http://www.theguardian.com/world/2013/sep/30/nsa-

4 americans-metadata-year-documents.

5

Repeating-and dwarfing-the NSA's impulse to warehouse MINARET watch list data, a

6 recent government white paper argues that the NSA's "analytic tools ... require the collection and

7 storage of a large volume of metadata," necessitating that aggregated call records be available for

8 five years. See Administration White Paper: Bulk Collection of Telephony Metadata Under Section

9 215 of the USA PATRIOT Act, Aug. 9, 2013, at 13. The NSA's storage capacity has become

10 almost unfathomably large; Internet infrastructure experts estimate that a new $2 billion Utah

11 facility can store between twelve exabytes and five zettabytes of communication information.

12 Kashmir Hill, Blueprints OfNSA 's Ridiculously Expensive Data Center In Utah Suggest It Holds

13 Less Info Than Thought, Forbes (July 24, 2013), http://www.forbes.com/sites/kashmirhill/

14 2013/07/24/blueprints-of-nsa-data-center-in-utah-suggest-its-storage-capacity-is-less-impressive-

15 than-thought. Even under the lower estimate, this single facility could store full voice recordings of

16 every U.S. phone call for the next forty years. See id.

17

Events since 2001 have also demonstrated the extraordinarily difficult challenge the

18 executive faces in attempting to limit its use of such a vast trove of Americans' communications

19 data. Just as MINARET ensnared people only tangentially related to investigations, the PSP-

20 which initially sought to intercept telephone numbers and email addresses from members of al-

21 Qaeda-"naturally expanded to include individuals linked more and more tenuously with the

22 originally identified targets." Robert Bloom & William J. Dunn, The Constitutional Infirmity of

23 Warrantless NSA Surveillance: The Abuse of Presidential Power and the Injury to the Fourth

24 Amendment, 15 Wm. & Mary Bill Rts. J. 147, 156 (2006).

25

Still, no known pre-9/11 program collected as much of the communications data of so many

26 Americans as the ongoing telephone records collection at issue here. See Secondary Order, No. BR

27 13-80, at 2 (FISC Apr. 25, 20 13). Yet recent disclosures also reveal that the NSA is directly

28

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1 targeting far more people's data than previously understood or disclosed. During a July 2013
2 hearing before the House Committee on the Judiciary, NSA Deputy Director John C. Inglis 3 confirmed that NSA analysts perform three-hop queries for phone record analysis, rather than the 4 one- or two-hop analysis previously disclosed. Oversight of the Administration's Use of FISA 5 Authorities: Hearing Before the H Comm. on the Judiciary, 113th Cong. (July 17, 2013). This 6 means that, once the agency identifies a suspect, it reviews all of that person's contacts, then all of 7 these first-hop people's contacts, and finally all of those people's contacts. The NSA thus routinely

8 examines the calling records of Americans with no direct relationship to an investigation's target.

9 By targeting a single person whose call history includes 40 contacts, it can sweep the phone

10 records of roughly 2.5 million people into the review. See Time to Rein in the Surveillance State,

11 ACLU, https://www.aclu.org/time-rein-surveillance-state-O (last visited Nov. 5, 2013).

12

Recently disclosed NSA documents demonstrate that this dragnet collection has grown to

13 pose a tangible threat to the constitutional rights of an unknown number of Americans. Since late 14 2011, the NSA has been conducting '"large-scale graph analysis on very large sets of

15 communications metadata without ... check[ing] foreignness' of every e-mail address, phone

16 number, or other identifier," generating sophisticated maps of Americans' associational

17 connections. James Risen & Laura Poitras, NS.A. Examines Social Networks Of U.S. Citizens,

18 N.Y. Times, Sept. 29, 2013, at Al.

19

Further, the NSA-authorized only by executive order-has been tapping the internal

20 communications links that connect both Google's and Yahoo's data centers into worldwide private

21 networks, allowing it to collect metadata, text, audio, and video "at will from hundreds of millions
22 of user accounts, many of them belonging to Americans." See Barton Gellman & Ashkan Soltani, 23 NSA infiltrates links to Yahoo, Google data centers worldwide, Snowden documents say, Wash.
24 Post (Oct. 30, 20 13), http://www.washingtonpost.com/world/national-security/nsa-infiltrates-links25 to-yahoo-google-data-centers-worldwide-snowden-documents-say/20 1311 0/30/e51 d661 e-416626 11e3-8b74-d89d714ca4dd_story.html. And, according to NSA documents, last year the agency 27 intercepted 500,000 email address books and instant messaging "buddy lists" per day, likely

28

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1 acquiring the contacts of millions or tens of millions of Americans. See Barton Gellman & Ashkan

2 Soltani, NSA collects millions of e-mail address books globally, Wash. Post (Oct. 14, 2013),

3 http://www.washingtonpost.com/world/national-security/nsa-collects-millions-of-e-mail-address-

4 books-globally/20 13/1 0/14/8e58b5be-34f9-11e3-80c6-7e6dd8d22d8f_story.html.

5

Thus, the multiplier effect-a natural phenomenon greatly accelerated by technological

6 advances-has already resulted in the collection of enormous and growing amounts of innocent

7 Americans' personal information, ensnaring them in a searchable catalogue. History shows, and

8 present NSA practices confirm, that this information is vulnerable to misuse and targeted abuse.

9 C. Executive officials responsible for surveillance programs naturally shield their activities

from scrutiny, encouraging expansion and impeding necessary oversight. 10
A review of executive surveillance programs shows that even well-meaning public servants,

11 acting in good faith, are not in the best position to judge their own actions or account for the

12 behavior of the massive bureaucracies they supervise. The executive's priority is to conduct

13 sensitive intelligence operations in secret. Accordingly, executive officials naturally limit outside

14 scrutiny of their actions. But secrecy has historically veiled the scope of executive surveillance

15 programs and risked their expansion and eventual misuse.

16

i.

In the pre-FISA era, the executive shielded legally questionable programs from

17

oversight, reducing their effectiveness and permitting misuse.

18

Before FISA's implementation, the executive routinely failed to provide accurate

19 information to Congress about the scope of its domestic surveillance, instead shrouding its

20 activities in secrecy. Upon the outbreak of World War II, Attorney General Robert Jackson gave

21 Congress an inaccurate account of the FBI's national security role. Jackson wrote that the FBI

22 would "confine its activities to the investigation of violation ofFederal statutes [and] the collecting

23 of evidence in cases in which the United States is or may be a party in interest." Church Committee

24 Book II at 30. But, as Jackson himself later said, the FBI was actually conducting "steady

25 surveillance" of people "likely" to break the law due to sympathies for foreign dictatorships. !d.

26

Similarly, after World War II, the Truman Administration ramped up its surveillance

27 programs while providing only partial and contradictory information to Congress. The Secretary of

28

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1 Defense approached the House and Senate Judiciary Committees in an effort to put SHAMROCK

2 on firm legal ground; but the Defense Department was reluctant to have the issue discussed by the

3 whole Congress and ultimately abandoned the effort. See Church Committee Book III at 769-70.

4

The executive eventually prioritized secrecy over concern for the programs' effectiveness.

5 As noted above, the Church Committee found that the NSA subjected MINARET to more stringent

6 secrecy than other programs in part "to conceal [the NSA's] involvement in activities which [went]

7 beyond its regular mission," and instead targeted domestic American activities. Id at 749.

8

Such secrecy prevented Congress from evaluating the efficacy of programs like

9 SHAMROCK and MINARET. When the Church Committee finally viewed the whole of the

10 surveillance programs, it raised significant doubts about their supposed benefits. It found that

11 "[b]etween 1960 and 1974, the FBI conducted over 500,000 separate investigations of persons and

12 groups under the 'subversive' category ... [y]et not a single individual or group [had] been

13 prosecuted since 1957 under the laws which ... [were] the main alleged statutory basis for such

14 FBI investigations." Church Committee Book II at 19. Compared to the FBI's other investigatory

15 methods, the committee found, "domestic intelligence surveillance programs . . . produced

16 surprisingly few useful returns in view of their extent," and were sometimes even a nuisance

17 because they distributed information without first vetting its usefulness. See id at 18, 259.

18

Recent NSA materials discussing its tapping of Google and Yahoo data centers echo the

19 Church Committee's findings that the collection of vast troves of electronic surveillance data was

20 often counterproductive. NSA analysts felt that the "relatively small intelligence value [some data]

21 contain[] does not justify the sheer volume of data collected," complaining that it "'dilut[ed]' their

22 workflow." Barton Gellman & Matt DeLong, How the NSA 's MUSCULAR program collects too

23 much data from Yahoo and Google, Wash. Post (Oct. 30, 2013),

24 http:/lapps.washingtonpost.com/g/page/world/how-the-nsas-muscular-program-collects-too-much-

25 data-from-yahoo-and-google/543.

26

Thus, even as executive surveillance programs expand to target groups and individuals

27 protected by the First Amendment, they become less useful as tools for protecting national security.

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1 Secrecy masks this ineffectiveness until scandals draw congressional and public attention.

2

ii. Since 2001 the executive, despite FISA 's oversight requirements, has once again

shielded its actions from the other branches ofgovernment; as a result intelligence

3

agencies have conducted operations ofquestionable legality and efficacy.

4

Like their predecessors, executive officials since 9/11 have been reluctant to allow adequate

5 scrutiny-whether internal, by courts, or by Congress-of their activities. This excessive secrecy

6 has made assessing these programs difficult or impossible, inviting waste and abuse.

7

Jack Goldsmith, who headed the Justice Department's Office of Legal Counsel for seven

8 months during the Bush Administration, noted that "[f]rom the beginning the administration could

9 have taken ... steps to ramp up terrorist surveillance in indisputably lawful ways that would have

10 minimized the likelihood of a devastating national security leak. But ... [t]he White House had

11 found it much easier to go it alone, in secret." Jack Goldsmith, The Terror Presidency 182 (2009). 12 This choice grew partially from an understandable desire to move as quickly as possible in light of

13 new threats and partially from a desire to protect the executive's prerogatives against what

14 administration officials viewed as needless interference from other branches. See id. at 181.

15

This secrecy hampered attempts, even by executive officials themselves, to evaluate the

16 appropriateness and legality of post-9/11 programs. The Justice Department denied the NSA

17 inspector general's request to see the legal analysis supporting the President's Surveillance

18 Program. James Bamford, The Shadow Factory: The NSA From 9/11 to the Eavesdropping on

19 America 116 (2008). Outside of the FBI, only the Attorney General and two other Justice

20 Department officials knew the details of the PSP, and one attorney had sole responsibility for

21 evaluating its legality. !d. This lack of review created the risk of mistakes. An unclassified 2009

22 internal report found that, when other Justice Department attorneys eventually reviewed the legal

23 justification for the PSP, they found that it failed to address seminal case law, ignored FISA

24 language restraining warrantless surveillance, and misstated the scope of the program. See Offices

25 of the Inspectors General, Unclassified Report on the President's Surveillance Program 11-13

26 (2009) ("PSP IG Group Report").

27

The executive has also shielded the full extent of the PSP and other programs from judicial

28

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1 and congressional oversight. For example, at first the FISC was not consulted about the PSP's legal

2 footing; only the presiding judge was told, and then only that it was a presidential decision. 3 Bamford, The Shadow Factory, supra, at 116. Since the executive submitted to FISC oversight, the

4 FISC has criticized it for repeatedly providing inaccurate reports of its activities. As FISC Chief

5 Judge Walton recently noted, the court cannot independently investigate issues of noncompliance

6 and must instead rely on the accuracy of information provided to it by the government. Carol D. 7 Leonnig, Court: Ability to police US. spying program limited, Wash. Post (Aug. 15, 2013),

8 http://www.washingtonpost.com/politics/court-ability-to-police-us-spying-program9 limited/2013/08/15/4a8c8c44-05cd-11e3-a07f-49ddc7417125_print.html.

10

In his March 2009 Order, Judge Walton criticized the NSA for misleading the court for

11 nearly three years about the scope and use of the telephone records collection. Order, Docket No.

12 BR 08-13, at 8-9 (FISC Mar. 2, 2009). Judge Walton found that the government's inaccurate

13 testimony prevented the NSA and the FISC "from taking steps to remedy daily violations of the 14 minimization procedures set forth in FISC orders and designed to protect . . . call detail records

15 pertaining to telephone communications of U.S. persons located within the United States ... whose 16 call detail information could not otherwise have been legally captured in bulk." !d. at 9; see also 17 Memorandum Opinion and Order, at 16 n.14 (FISC Oct. 3, 2011) (assessing the NSA's Internet 18 communications records collection and noting that key inaccuracies comprised "the third instance

19 in less than three years in which the government has disclosed a substantial misrepresentation

20 regarding the scope of a major collection program").

21

Nor has Congress been able to provide an effective check. As Rep. James Sensenbrenner-

22 the Chairman ofthe House Judiciary Committee when Section 215 was passed-recently explained
23 in a letter to the Attorney General, "The administration's interpretation to allow for bulk collection 24 is at odds with Congressional intent [to limit access to specific records] and with both the plain and 25 legal meanings of 'relevance."' Letter from James Sensenbrenner to Attorney General Eric Holder 26 (Sept. 6, 2013); see also H.R. Rep. No. 109-333, at 90 (2005) (Conf. Rep.). Rep. Justin Amash 27 recently described how excessive secrecy thwarts congressional oversight efforts: "You don't

28

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1 know what questions to ask because you don't know what ... kind of things are going on....

2 [Y]ou just have to guess and it becomes a totally ridiculous game of 20 questions." Andrea

3 Peterson, Obama says NSA has plenty ofcongressional oversight. But one congressman says it's a

4 farce, Wash. Post. (October 9, 2013), http://www.washingtonpost.com/blogs/the-

5 switch/wp/2013/1 0/09/obama-says-nsa-has-plenty-of-congressional-oversight-but-one-

6 congressman-says-its-a-farce.

7

Excessive secrecy also encourages needlessly overbroad collection and makes it practically

8 impossible to evaluate the efficacy of today's programs. For instance, the Justice Department's

9 inspector general "found it difficult to assess or quantify the overall effectiveness of the PSP" in

10 FBI counterterrorism efforts; the CIA's inspector general also "was unable to independently draw

11 any conclusion on the [program's] overall effectiveness." PSP IG Group Report at 33-34.

12

Senate Intelligence Committee members Ron Wyden and Mark Udall recently explained

13 that, contrary to the government's statement that it ended its nationwide bulk Internet and email

14 records collection program in 2011 for operational and resource reasons, the program was actually

15 terminated because senators "spent a significant portion of 2011 pressing intelligence officials to

16 provide evidence of its effectiveness" and those officials "were unable to do so." Press Release,

17 Wyden, Udall Statement on the Disclosure of Bulk Email Records Collection Program (July 2,

18 2013). Nor, Senator Udall said, has the bulk telephone records program "provided unique value" in

19 stopping threats; he criticized the executive's attempts to demonstrate the program's successes as

20 "not stand[ing] up to scrutiny." Kate Tummarello, Senators repackage surveillance bills as

21 comprehensive reform, The Hill (Sept. 25, 2013), http://thehill.com/blogs/hillicon-

22 valley/technology/3 24687-senators-repackage-surveillance-bills-as-comprehensive-reform.

23 III. THIS COURT SHOULD PROPERLY INTERPRET SECTION 215'S RELEVANCE

REQUIREMENT AS A RESTRAINT ON EXPANSIVE SURVEILLANCE.

24 Post-9/11 surveillance programs, including the bulk telephone records collection at issue in

25 this case, are following a historical pattern by expanding to challenge legal and constitutional

26 limits. Congress designed the modem oversight regime to check just such a renewed expansion.

27 When the FISA oversight process breaks down and Americans challenge the executive's

28

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1 acquisition of their communications data, it is the role of the judiciary to apply statutory and

2 constitutional limits to executive surveillance. Unlike in previous cases, see, e.g., Clapper v.

3 Amnesty International, 132 S. Ct. 2431 (2012), the Court is no longer limited by a lack of detail

4 about the contested surveillance. See Secondary Order, Docket No. BR 13-80 (FISC Apr. 25,

5 2013 ). The expansion and abuse of executive surveillance detailed by the Church Committee-and

6 the troubling recent reemergence of similar activities and trends-counsels a different course from

7 that requested by the government. The present situation should guide this Court to order the

8 executive to limit its surveillance activities to what is allowed under a proper application of Section

9 215, consistent with FISA' s safeguards.

10

CONCLUSION

11

Amici thus respectfully request that this Court apply Section 215's "relevance" requirement

12 as a restraint on expansive surveillance, in light of the plain meaning of the statute, historical

13 patterns of surveillance expansion, and lessons learned in the aftermath of previous abuses.

14 DATED: November 15,2013 15 16 17 18 19 20 21 22 23 24

Respectfully submitted,

By:

/s/ Jennifer M. Urban

Jennifer M. Urban

SAMUELSON LAW, TECHNOLOGY &

PUBLIC POLICY CLINIC

UNIVERSITY OF CALIFORNIA,

BERKELEY, SCHOOL OF LAW

396 Simon Hall

Berkeley, CA 94720-7200

Telephone: (510) 684-7177

Facsimile: (510) 643-4625

Attorney for Amici Curiae EXPERTS IN THE HISTORY OF EXECUTIVE SURVEILLANCE: JAMES BAMFORD, LOCHJOHNSON,ANDPETERFENN

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CERTIFICATION OF SERVICE
1 I hereby certify that on November 15, 2013, I electronically filed the foregoing EXPERTS IN THE
2
HISTORY OF EXECUTIVE SURVEILLANCE'S MOTION FOR LEAVE TO FILE BRIEF 3
AMICUS CURIAE IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY 4
JUDGMENT with the Clerk of CoUI1 for the United States District Court for the Northern District 5
of California by using the ECF system. All participants in the case registered CM/ECF users 6
and will be served with a Notice of Docket Activity.
7

8 Letitia McDowell
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1 DURIE TANGRI LLP RAGESH K. TANGRI (SBN 159477)
2 rtangri@durietangri.com MICHAEL H. PAGE (SBN 154913)
3 mpage@durietangri.com 217 Leidesdorff Street
4 San Francisco, CA 94111 Telephone: 415-362-6666
5 Facsimile: 415-236-6300

6 Attorneys for Amicus Curiae NATIONAL ASSOCIATION OF CRIMINAL DEFENSE
7 LAWYERS

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

11

FIRST UNITARIAN CHURCH OF LOS

Case No. 3:13-cv-03287-JSW

12 ANGELES; ACORN ACTIVE MEDIA; BILL OF RIGHTS DEFENSE COMMITTEE;
13 CALGUNS FOUNDATION, INC.; 14 CALIFORNIA ASSOCIATION OF FEDERAL
FIREARMS LICENSEES, INC.; CHARITY 15 AND SECURITY NETWORK; COUNCIL ON

BRIEF AMICUS CURIAE OF THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
Ctrm: 11 - 19th Floor Judge: Honorable Jeffrey S. White

AMERICAN ISLAMIC RELATIONS-

16 CALIFORNIA; COUNCIL ON AMERICAN

ISLAMIC RELATIONS-OHIO; COUNCIL ON 17 AMERICAN ISLAMIC RELATIONS

18 FOUNDATION, INC.; FRANKLIN ARMORY; FREE PRESS; FREE SOFTWARE

19 FOUNDATION; GREENPEACE, INC.;

HUMAN RIGHTS WATCH; MEDIA 20 ALLIANCE; NATIONAL LAWYERS GUILD;

21

NATIONAL ORGANIZATION FOR THE REFORM OF MARIJUANA LAWS,

22 CALIFORNIA CHAPTER; PATIENT PRIVACY RIGHTS; PEOPLE FOR THE

23 AMERICAN WAY; PUBLIC KNOWLEDGE;

SHALOM CENTER; STUDENTS FOR 24 SENSIBLE DRUG POLICY; TECHFREEDOM;

25

and UNITARIAN UNIVERSALIST SERVICE COMMITTEE,

26 Plaintiffs,

27 v.

28 NATIONAL SECURITY AGENCY and KEITH

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1 B. ALEXANDER, its Director, in his official and

individual capacities; the UNITED STATES OF 2 AMERICA; DEPARTMENT OF JUSTICE and

3

ERIC H. HOLDER, its Attorney General, in his official and individual capacities; Acting

4 Assistant Attorney General for National Security JOHN P. CARLIN, in his official and individual

5 capacities; FEDERAL BUREAU OF

INVESTIGATION and JAMES B. COMEY, its 6 Director, in his official and individual capacities;

7

ROBERT S. MUELLER, former Director of the FEDERAL BUREAU OF INVESTIGATION, in

8 his individual capacity; JAMES R. CLAPPER, Director of National Intelligence, in his official

9 and individual capacities, and DOES 1-100,

10

Defendants.

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1 2 3 I. 4 II. 5 6 7 8 9 10 11 III. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS Page
THE INTEREST OF AMICUS CURIAE .........................................................................................1 ARGUMENT ...................................................................................................................................1 A. Wholesale Collection Deprives Clients of Their Right to Counsel by Vitiating the
Confidentiality of Attorney-Client Communications and Attorney Files............................1 1. The Strong Protections Afforded to the Confidentiality of Legal Work:
Attorney-Client Privilege, Work Product, and Duty of Confidentiality ..................1 2. Bulk Seizure Violates Confidentiality Rules and Impairs the Right to a
Defense ....................................................................................................................4 B. The Government’s Current Practices Eviscerate FISA’s Relevance and
Minimization Requirements.................................................................................................6 CONCLUSION ..............................................................................................................................11
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1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Gonzalez v. United States,

553 U.S. 242 (2008)...............................................................................................................................3

5

Hickman v. Taylor,

6

329 U.S. 495 (1947)...........................................................................................................................1, 2

7 Marquez v. Miranda,

No. C 92-3934 FMS, 1998 WL 57000 (N.D. Cal. Jan. 28, 1998) .........................................................3

8

Maryland v. King,

9

133 S. Ct. 1 (2012) .................................................................................................................................7

10 Padilla v. Kentucky,

130 S. Ct. 1473 (2010) ...........................................................................................................................3

11

Roe v. Flores-Ortega,

12

528 U.S. 470 (2000)...............................................................................................................................3

13 Rompilla v. Beard,

545 U.S. 374 (2005)...............................................................................................................................3

14

Swidler & Berlin v. United States,

15

524 U.S. 399 (1998)...........................................................................................................................1, 2

16 X Corp. v. Doe,

805 F. Supp. 1298, 1307-10 (E.D. Va. 1992),

17

aff’d mem., 17 F.3d 1435 (4th Cir. 1994) ..............................................................................................2

18 Statutes

19 50 U.S.C. § 1801(a) .....................................................................................................................................9

20 50 U.S.C. § 1801(b) .....................................................................................................................................9

21 50 U.S.C. § 1801(h) ...................................................................................................................................10

22 50 U.S.C. § 1861........................................................................................................................................10

23 Other Authorities

24 124 Cong. Rec. 34,845 (1978) .....................................................................................................................9

25 124 Cong. Rec. 35,389 (1978) .....................................................................................................................9

26 5 Intelligence Activities: Hearings on S. Res. 21 Before the Select Comm. to Study

Governmental Operations with Respect to Intelligence Activities of the United States,

27

94th Cong. 9 (1975) ...........................................................................................................................8, 9

28 ABA STANDARDS FOR CRIMINAL JUSTICE, DEFENSE FUNCTION 4-3.1 (3d ed. 1993) ..................................3
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1 Adam Liptak, Justices Wrestle Over Allowing DNA Sampling at Time of Arrest, N.Y.

TIMES (Feb. 26, 2013) ............................................................................................................................7

2

Barton Gellman, NSA infiltrates links to Yahoo, Google data centers worldwide, Snowden

3

documents say, WASHINGTON POST, (Oct. 30, 2013) ............................................................................7

4 H.R. REP. NO. 95-1283 (1978)...................................................................................................................10

5 Minimization Procedures Used By the NSA in Connection With Acquisitions of Foreign

Intelligence Information Pursuant to Section 702 of the Foreign Intelligence

6

Surveillance Act of 1978, as Amended (July 1, 2008) ..........................................................................8

7 Rules

8 ABA MODEL RULES OF PROF’L CONDUCT R. 1.6 (1983) ............................................................................2

9 Constitutional Provisions

10 U.S. CONST. amend. VI................................................................................................................................6

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1 I. THE INTEREST OF AMICUS CURIAE

2

Amicus National Association of Criminal Defense Lawyers (“NACDL”) is a nonprofit voluntary

3 professional bar association that works on behalf of criminal defense attorneys to ensure justice and due

4 process for those accused of crime or misconduct. NACDL was founded in 1958. It has a nationwide

5 membership of approximately 10,000 and up to 40,000 with affiliates. NACDL’s members include

6 private criminal defense lawyers, public defenders, military defense counsel, law professors, and judges.

7 NACDL is the only nationwide professional bar association for public defenders and private criminal

8 defense lawyers. The American Bar Association recognizes NACDL as an affiliated organization and

9 awards it full representation in its House of Delegates.

10

NACDL files numerous amicus briefs each year in the United States Supreme Court and other

11 courts, seeking to provide amicus assistance in cases that present issues of broad importance to criminal

12 defendants, criminal defense lawyers, and the criminal justice system as a whole. Of particular relevance

13 here, the surveillance challenged in this action poses a direct, concrete threat to the right of association

14 and confidentiality that is critical to an effective defense in criminal cases. NACDL has therefore 15 decided to present its views for the Court’s consideration.1

16 II. ARGUMENT

17

A. Wholesale Collection Deprives Clients of Their Right to Counsel by Vitiating the

Confidentiality of Attorney-Client Communications and Attorney Files

18

1. The Strong Protections Afforded to the Confidentiality of Legal Work:

19

Attorney-Client Privilege, Work Product, and Duty of Confidentiality

20

Keeping a client’s information confidential is among a lawyer’s most fundamental duties. The

21 principle of confidentiality manifests itself in the attorney-client privilege, “one of the oldest recognized

22 privileges for confidential communications.” Swidler & Berlin v. United States, 524 U.S. 399, 403

23 (1998). It finds expression in the work-product doctrine, recognized by the Supreme Court sixty-six

24 years ago in Hickman v. Taylor, 329 U.S. 495 (1947). And the American Bar Association Model Rules

25 of Professional Conduct, on which lawyers’ ethics codes in most states are based, prohibit attorneys from

26 “reveal[ing] information relating to the representation of a client” absent the client’s consent, except

27

28

1 The Government has consented to the filing of this brief, while reserving the right to object on other grounds.

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1 under narrowly circumscribed conditions. ABA MODEL RULES OF PROF’L CONDUCT (“MRPC”) R. 1.6(a)

2 (1983).

3

Confidentiality serves crucial functions in the American legal system. In the context of litigation,

4 the Supreme Court has found that:

5

[I]t is essential that a lawyer work with a certain degree of privacy, free

from unnecessary intrusion by opposing parties and their counsel. Proper

6

preparation of a client’s case demands that he assemble information, sift

what he considers to be the relevant from the irrelevant facts, prepare his

7

legal theories and plan his strategy without undue and needless

interference.

8

9 Hickman, 329 U.S. at 510-11. Similarly, the protections of the attorney-client privilege “encourage full

10 and frank communication between attorneys and their clients and thereby promote broader public

11 interests in the observance of law and the administration of justice.” Swidler & Berlin, 524 U.S. at 403

12 (internal quotation marks omitted).

13

Confidentiality also serves important interests outside the context of litigation. The ethical

14 prohibition on “reveal[ing] information relating to the representation of a client” is broader than the

15 attorney-client privilege and the attorney work-product doctrine. See, e.g., X Corp. v. Doe, 805 F. Supp.

16 1298, 1307-10 (E.D. Va. 1992) (explaining difference between attorney-client privilege and duty of

17 confidentiality), aff’d mem., 17 F.3d 1435 (4th Cir. 1994); MRPC R. 1.6 cmt. 3 (“The rule of client-

18 lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer

19 through compulsion of law.”). The ethical duty of confidentiality:

20

[C]ontributes to the trust that is the hallmark of the client-lawyer

relationship. The client is thereby encouraged to seek legal assistance and

21

to communicate fully and frankly with the lawyer even as to embarrassing

or legally damaging subject matter. The lawyer needs this information to

22

represent the client effectively and, if necessary, to advise the client to

refrain from wrongful conduct. Almost without exception, clients come to

23

lawyers in order to determine their rights and what is, in the complex of

laws and regulations, deemed to be legal and correct. Based upon

24

experience, lawyers know that almost all clients follow the advice given,

and the law is upheld.

25

26 MRPC R. 1.6 cmt. 2.

27

The duty of confidentiality has particular significance for criminal defense lawyers. The

28 American Bar Association’s Standards for Criminal Justice, to which the courts have looked often in

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1 determining the professional duties of criminal defense lawyers,2 emphasize the importance of protecting

2 the client’s confidentiality. Standard 4-3.1(a) provides that “[d]efense counsel should seek to establish a

3 relationship of trust and confidence with the accused,” and it adds: “Defense counsel should explain the

4 necessity of full disclosure of all facts known to the client for an effective defense, and defense counsel

5 should explain the extent to which counsel’s obligation of confidentiality makes privileged the accused’s

6 disclosures.” ABA STANDARDS FOR CRIMINAL JUSTICE, DEFENSE FUNCTION 4-3.1(a) (3d ed. 1993)

7 (“ABA STANDARDS”). The Commentary explains that “[n]othing is more fundamental to the lawyer-

8 client relationship than the establishment of trust and confidence. Without it, the client may withhold

9 essential information from the lawyer. Thus, important evidence may not be obtained, valuable defenses

10 neglected, and, perhaps most significant, defense counsel may not be forewarned of evidence that may be

11 presented by the prosecution.” ABA STANDARDS 4-3.1 cmt.

12

The Standards (and relevant case authority from this District) address a circumstance analogous

13 to the surveillance at issue here. Standard 4-3.1(b) provides that “[t]o ensure the privacy essential for

14 confidential communication between defense counsel and client, adequate facilities should be available

15 for private discussions between counsel and accused in jails, prisons, courthouses and other places where

16 accused persons must confer with counsel.” ABA STANDARDS 4-3.1(b). The Commentary declares: “It

17 is fundamental that the communication between client and lawyer be untrammeled. The reading by

18 prison officials of correspondence between prisoners and their lawyers inhibits communication and

19 impairs the attorney-client relationship, may compel time-consuming and expensive travel by the lawyer

20 to assure confidentiality, or even prevent legitimate grievances from being brought to light.” Id. cmt.

21 See also Marquez v. Miranda, No. C 92-3934 FMS, 1998 WL 57000, at *2-3 (N.D. Cal. Jan. 28, 1998)

22 (holding that prison guards’ practice of conducting brief “scans” of prisoner’s legal mail violated

23 prisoner’s rights under First and Sixth Amendments because of “potential chilling effect” of such review

24 which “renders[] the prisoner less willing or able to raise substantial legal issues.”).

25

26

27 2 See, e.g., Padilla v. Kentucky, 130 S. Ct. 1473, 1482 (2010); Gonzalez v. United States, 553 U.S. 242,

28

249 (2008); Rompilla v. Beard, 545 U.S. 374, 387 (2005); Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000).

3

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1

Defense counsel and other attorneys, in short, have a unique obligation to ensure the

2 confidentiality of their communications with, and on behalf of, their clients, and to avoid—sometimes at

3 considerable cost and effort—employing means of communication that may compromise that

4 confidentiality. But today, for the first time, we are confronted with a legal regime in which there are no

5 longer any secure alternatives: A regime in which details of virtually every attorney-client

6 communication are not merely at risk of being intercepted, retained, and reviewed, but in which details of

7 all of those communications are in fact being seized and retained.

8

2. Bulk Seizure Violates Confidentiality Rules and Impairs the Right to a

Defense

9

10

As the Complaint and briefing by the parties make clear, and as the Government has conceded,

11 the NSA’s indiscriminate collection of telephony records is almost literally comprehensive: for years, it

12 has collected and stored records of nearly every single telephone call made via every major service

13 provider in America. Those records are not limited to merely a list of phone numbers called, but a wealth

14 of data including the time and duration of each call, the IMSI and/or IMEI identifiers of the devices, the

15 trunk identifier, telephone calling card numbers, and locations of mobile devices. Those records have

16 been seized without any particularized showing that any of the participants are implicated in or suspected

17 of any wrongdoing whatsoever, on the basis that—somewhere within that haystack of billions of

18 innocent transactions—there may be a needle of data related to possible terrorist activity. As a result, the

19 Government contends, the phone records of every American citizen are subject to seizure as “relevant” to

20 terrorist activity. As discussed below, the Government’s “relevance” theory is unbounded, as it could

21 just as easily justify the seizure of any universe of information (such as, for example, mass quantities of

22 documents stored in Google or Yahoo’s “clouds”) on the theory that searching that universe might yield

23 data that could have been (but was not) legitimately sought. That theory was expressly rejected by

24 Congress in enacting the Foreign Intelligence Surveillance Act (“FISA”) provisions challenged herein,

25 which were enacted specifically to rein in prior wholesale surveillance.

26

The wholesale seizure and retention of telephony data by law enforcement agencies, without any

27 showing of particularized cause, is of particular concern to defense counsel. Consider, for example, a

28 few hypotheticals. The first is familiar to all law students from Crim 101: your client comes to you,
4
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1 admits to a shooting, hands you the weapon, and asks you what to do with it. Your obligations are well

2 established: the communication from your client is sacrosanct, but your obligation as an officer of the

3 court is to deliver the weapon to the police as evidence without disclosing attorney-client

4 communications in the process.

5

But now imagine that the authorities to whom you must deliver that weapon have access to a

6 database containing a record of every phone call to and from your office in the 24 hours before your

7 client’s visit: records that include the number and device identification of caller, the time and length of

8 the call, the location from which the call was placed, and the like. Assuming your client called in

9 advance of his visit, it should be short work for a competent detective, armed with that data, to deduce

10 his identity. The attorney-client privilege on which he relied in coming to you is now of no value.

11

Similarly, imagine a client who retains you to defend him shortly after his arrest for any crime, no

12 matter how far afield from terrorist activity: insider trading, for example. The bare details of your phone

13 calls after your initial meeting, even without knowing the content of those calls, will reveal a wealth of

14 data that is—or should be—covered by both the attorney-client privilege and the work product doctrine.

15 Who are the co-conspirators? The fact witnesses? The alibi witnesses? The nontestifying experts you

16 retained? The testifying experts you do not yet have to disclose? Without any cause, and in derogation

17 of centuries-old, basic principles of justice and due process, the government already has that list.

18

The Government’s position—that it somehow hasn’t actually seized a citizen’s information until

19 and unless it queries or reads it—would be absurd in any other context. Imagine an indiscriminate police

20 seizure of all of the paper files in an attorney’s office. No court in the land would deny a motion to

21 return those papers by accepting the prosecution’s argument that “it’s okay, we haven’t read them yet,

22 but we might need them in a later investigation.” There is no reason why the bounds of Constitutional

23 protections are different when the data is electronic.

24

Finally, consider the NSA’s wholesale collection from the potential client’s point of view. As set

25 forth in Plaintiffs’ motion, each Plaintiff’s First Amendment right to free association is chilled and

26 constrained by the NSA’s actions. But for citizens seeking legal advice, either in defense of past actions

27 (charged or uncharged) or as to the legality of contemplated actions, the United States Constitution

28 embodies and protects as sacrosanct a much more specific right of association: “to have the Assistance
5
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1 of Counsel for his defence.” U.S. CONST. amend. VI. Now consider the chilling effect on that

2 fundamental right in the case of a citizen who has allegedly committed a crime, or is simply considering

3 a course of action, the legality of which he is unsure. He should call a lawyer, and seek counsel. But if

4 the cost of doing so is to inform the Government that he is seeking the counsel of an attorney known to

5 specialize in his particular problem, how less likely is he to do so? And how much worse off are both he

6 and society as a result of that reluctance? In a world where every reasonable modern method of

7 communication is apparently subject to routine mass seizure by the Government, the right to consult with

8 counsel, under the protection of the attorney-client privilege, simply disappears.

9

Plaintiffs’ motion is replete with examples of the chilling effect the NSA’s telephony program has

10 on people who are thereby reluctant to seek suicide counseling, or telephone fellow Muslims, or join in

11 advocating political causes. Those effects are at least matched by the chilling effect on both First and

12 Sixth Amendment rights to associate with one’s counsel of choice, knowing that the very exercise of

13 those rights may inform the Government of one’s identity and one’s need for an attorney.

14

B. The Government’s Current Practices Eviscerate FISA’s Relevance and

Minimization Requirements

15

16

The Government claims authority for its unlimited seizure of billions of telephony records of

17 ordinary citizens, with no showing of cause, under Section 215 of the Patriot Act, notwithstanding that

18 Section’s express limitation to seizure of tangible items “relevant to an authorized investigation.” That

19 limitation, according to the Government, is wholly illusory: “the relevance standard provides the

20 Government with broad authority to collect data that is necessary to conduct authorized investigations.”

21 Administration White Paper at 15, ECF No. 25-11. This purported “broad authority,” the Government

22 claims, represents “the balanced scheme that Congress adopted when it joined the broad relevance

23 standard with the requirement for judicial approval set forth in Section 215.” Id.

24

There are four fundamental problems with this argument. First, it knows no bounds: it defines as

25 “relevant” any universe of data, even data that does not yet exist, so long as there is a possibility that

26 possession of that universe might someday make it easier for the Government to locate actually relevant

27 data within it. The exception swallows the rule. It would be much easier to catch criminals if the police

28 could simply record every phone call, and then search through them for the few that constitute evidence

6
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1 once they have a particular crime to solve. It would be much easier to deter crime if the authorities could

2 place video and audio recording devices in every home, and tracking devices on every citizen. Within

3 that universe of information, there would surely be evidence relevant to multiple crimes. But utility and

4 efficiency do not trump Constitutional rights. As Justice Scalia noted during oral argument in Maryland

5 v. King, 133 S. Ct. 1 (2012):

6

Well that’s really good. I’ll bet you if you conducted a lot of unreasonable

searches and seizures, you’d get more convictions, too. That proves

7

absolutely nothing.3

8

Any sufficiently large mass of data inevitably will include some evidence relevant to some crime,

9 and thus by the Government’s logic may be gathered wholesale.4 Indeed, recent reports confirm that this

10 logic has been applied far beyond just telephony metadata, including bulk warrantless collection of

11 hundreds of millions of entire documents from the online “cloud” storage systems of Google and Yahoo!.

12 See Barton Gellman, NSA infiltrates links to Yahoo, Google data centers worldwide, Snowden documents 13 say, WASHINGTON POST, (Oct. 30, 2013).5 That wholesale invasion cannot be justified on the basis that, 14 somewhere in the millions of seized documents, there may be evidence.6

15

Second, the Government’s claim of “balance” turns the process on its head: the point of the

16 system of FISA courts and warrants is to require a showing of relevance before the Government can

17 execute a seizure. That showing has been reduced to nothing more than a promise (often broken) not to

18 look too closely at the data once seized. The current system seizes first, and justifies (if at all) later.

19

20 3 Adam Liptak, Justices Wrestle Over Allowing DNA Sampling at Time of Arrest, N.Y. TIMES (Feb. 26, 2013), http://www.nytimes.com/2013/02/27/us/supreme-court-hears-arguments-on-dna-sampling.html
21 (last visited Nov. 13, 2013).

22

4 As the nation’s foremost association of criminal defense lawyers, Amicus NACDL has a particular interest in preventing the dilution of the relevance standard that the government seeks to work here. As

23

Plaintiffs’ brief explains, FISA’s relevance standard is tied to the scope of a permissible grand jury subpoena. Pls.’ Br. Summ. J. 9:18-26, Nov. 6, 2013, ECF No. 24. If the government can prevail in

24

stripping that standard of meaning here, then one can expect the government next will cite this decision the next time it must respond to a challenge to an overbroad grand jury subpoena.

25 5 http://www.washingtonpost.com/world/national-security/nsa-infiltrates-links-to-yahoo-google-datacenters-worldwide-snowden-documents-say/2013/10/30/e51d661e-4166-11e3-8b74-
26 d89d714ca4dd_story.html (last visited Nov. 11, 2013).

27

6 This revelation is particularly chilling to any of the millions of citizens who rely on these commercial document storage systems to store and edit many of their business and personal records. Those citizens

28

include NACDL attorneys, many of whom are solo practitioners or practice in firms too small to have their own servers and document systems.

7

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1

Third, although the Government purports to protect innocent citizens’ data through after the fact

2 “minimization” procedures, we have no way to assess that claim, as those procedures themselves remain 3 classified. While the minimization provisions under Section 702 have been declassified,7 the Section

4 215 provisions have not. But if the Section 215 procedures are anything like those used under Section

5 702, they are plainly inadequate to protect attorney-client privilege, work-product protection, or the right

6 to counsel. The Section 702 minimization protocols prohibit the acquisition and processing of attorney-

7 client communications only when “it becomes apparent that a communication is between a person who is

8 known to be under criminal indictment in the United States and an attorney who represents that

9 individual . . . . ” Id., Section 4 (emphasis added). Any other attorney-client communications are fair

10 game, and entirely unprotected. And even for the tiny subset of attorney-client communications to and

11 from clients who are actually under U.S. indictment, those communications may still be “reviewed by the

12 NSA Office of General Counsel prior to dissemination.” Id.

13

And fourth, the Government’s claim that the current regime represents a “scheme that Congress

14 adopted” when enacting FISA is made up out of whole cloth. FISA was enacted precisely to curb the

15 prior round of NSA excesses, when it was revealed that the NSA had been illegally collecting domestic

16 communications of tens of thousands of U.S. citizens in the Sixties and Seventies. As Senator Frank

17 Church explained in the hearings that resulted in the creation of FISA:

18

In the case of the NSA, which is of particular concern to us today, the rapid

development of technology in the area of electronic surveillance has

19

seriously aggravated present ambiguities in the law. The broad sweep of

communications interception by NSA takes us far beyond previous fourth

20

amendment controversies where particular individuals and specific

telephone lines were the target.

21

22 5 Intelligence Activities: Hearings on S. Res. 21 Before the Select Comm. to Study Governmental

23 Operations with Respect to Intelligence Activities of the United States, 94th Cong. 9 (1975) (“Church

24 Committee Report, Vol. 5”), at 65 (statement of Senator Frank Church, Chairman, Select Comm. to

25

26 7See Minimization Procedures Used By the NSA in Connection With Acquisitions of Foreign

27

Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended (July 1, 2008),

28

http://www.dni.gov/files/documents/Minimization%20Procedures%20used%20by%20NSA%20in%20C onnection%20with%20FISA%20SECT%20702.pdf (last visited Nov. 13, 2013).

8

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1 Study Governmental Operations with Respect to Intelligence Activities of the United States of the United

2 States Senate).

3

Then, as now, the NSA sought to justify its bulk collection on the basis that any collection of

4 irrelevant communications was subsequently filtered out: General Lew Allen testified that, although the

5 interception was “conducted in such a manner as to minimize the unwanted messages,” the agency

6 nonetheless obtained many unwanted and irrelevant messages. Id. at 9. He explained that “[t]he analysis

7 and reporting is accomplished only for those messages which meet specified conditions and requirements

8 for foreign intelligence,” and that “[t]he use of lists of words, including individual names, subjects,

9 locations, et cetera, has long been one of the methods used to sort out information of foreign intelligence

10 value from that which is not of interest.” Id. at 9-10.

11

The Church Committee and Congress rejected that “vacuum cleaner” approach to foreign

12 intelligence gathering. Instead, FISA was drafted with a series of specific requirements designed to stop

13 the wholesale invasion of privacy conducted in the name of foreign security. As Senator Edward

14 Kennedy (D-MA) explained at the time: “The abuses of recent history sanctioned in the name of national

15 security highlighted the need for this legislation.” 124 Cong. Rec. 34,845 (1978). Senator Birch Bayh,

16 Jr. (D-IN) echoed Kennedy’s sentiments: “This bill, for the first time in history, protects the rights of

17 individuals from government activities in the foreign intelligence area.” Id. Senator Charles Mathais (R-

18 MD) noted that enactment of the legislation would be a milestone, ensuring “that electronic surveillance

19 in foreign intelligence cases will be conducted in conformity with the principles set forth in the fourth

20 amendment.” Id. at 35,389.

21

To that end, FISA included a series of protections and requirements designed specifically to stop

22 wholesale fishing expeditions. First, it required a showing that the target of the surveillance was a

23 foreign power or agent of a foreign power prior to orders being issued to intercept communications. 50

24 U.S.C. § 1801(a). Second, FISA incorporated a probable cause standard that must be satisfied in order to

25 find that a target is an “agent of a foreign power” for FISA warrant purposes. That definition required

26 not merely that the target be acting on behalf of a foreign power, but that the act at issue be illegal (i.e.,

27 either espionage, terrorism, sabotage, or acts in furtherance of such crimes). 50 U.S.C. § 1801(b). As the

28 House of Representatives explained at the introduction of FISA:
9
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1

This standard requires the Government to establish probable cause that the

prospective target knows both that the person with whom he is conspiring

2

or whom he is aiding and abetting is engaged in the described activities as

an agent of a foreign power and that his own conduct is assisting or

3

furthering such activities. The innocent dupe who unwittingly aids a

foreign intelligence officer cannot be targeted under this provision.

4

5 H.R. REP. NO. 95-1283, pt. 1 at 44 (1978).

6

And third, FISA incorporated an express obligation to “minimize” not just the use but the

7 acquisition and retention of communications:

8

“Minimization procedures”, with respect to electronic surveillance,

means— (1) specific procedures, which shall be adopted by the Attorney

9

General, that are reasonably designed in light of the purpose and technique

of the particular surveillance, to minimize the acquisition and retention,

10

and prohibit the dissemination, of nonpublicly available information

concerning unconsenting United States persons . . . .

11

12 50 U.S.C. § 1801(h). This provision was enacted in response to, and specifically rejected, the NSA’s

13 position at the time that excessive and improper acquisition of data could be cured by subsequent sorting

14 of that data based on keywords or other technological means. Under FISA, minimization is a

15 prerequisite to the issuance of a warrant, not a palliative to be applied, after the fact and after FISA court

16 review and approval, as the NSA sees fit.

17

The enactment of the Patriot Act did not change these fundamental principles. Even if one

18 accepts the Government’s assertion that telephony records are “tangible things” subject to Section 215—

19 and, as briefed by the parties, they plainly are not—the Patriot Act’s expansion of FISA included

20 substantially the same principles: the “tangible things” sought must be “relevant to an authorized

21 investigation,” and the relevance standard of Section 215 is based on whether the identified target is “a

22 foreign power or agent of a foreign power,” the “activities of a suspected agent,” or “an individual in

23 contact with” such an agent. Moreover, just as in the original FISA, Section 215 requires minimization

24 procedures that limit not just the use but the “retention . . . of nonpublicly available information

25 concerning unconsenting United States persons . . . .” 50 U.S.C. § 1861. Minimization of retention, not

26 just use or dissemination, is thus a prerequisite to issuance of Section 215 warrants as well.

27

And yet we have now come full circle. Thirty-five years later, the Government defends the

28 current program in precisely the same terms that Congress rejected in fashioning FISA’s rules, arguing

10
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1 again that relevance and minimization limit only the permissible use of indiscriminately collected mass

2 data, not the collection and retention of that data in the first place. Nothing in the law supports that view,

3 and the history of FISA’s enactment makes clear that—to the contrary—Congress crafted both FISA and

4 the Patriot Act expressly to prohibit the “seize the haystack and then look for the needle” approach the

5 NSA again advocates.

6 III. CONCLUSION

7

Mass indiscriminate seizure of telephony records has no basis in the law, and impermissibly

8 impinges on the First Amendment right of free association, as well as the Fourth and Fifth Amendments.

9 Each of the named Plaintiff groups suffers these chilling effects. But for criminal defense counsel and

10 their clients in particular, the NSA’s program also impinges on the Sixth Amendment right to counsel.

11 That right means little if the very act of consulting with the counsel of one’s choice places the fact and

12 details of that consultation, and all subsequent communications by both attorney and client, in the hands

13 of the Government.

14 Dated: November 18, 2013

DURIE TANGRI LLP

15 16 Of Counsel:

17 David M. Porter, CA State Bar #127024 9th Circuit Vice-chair, NACDL Amicus Committee

18 801 I Street, 3rd Floor

Sacramento, CA 95814 19 Telephone: (916) 498-5700

20

Facsimile: (916) 498-5710 E-mail: david_porter@fd.org

21

By:

/s/ Michael H. Page

RAGESH K. TANGRI

MICHAEL H. PAGE

Attorneys for Amicus Curiae NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

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1

CERTIFICATE OF SERVICE

2

I certify that all counsel of record who has consented to electronic notification is being served on

3 November 18, 2013 with a copy of this document via the Court’s CM/ECF system. I further certify that I

4 mailed the foregoing document and the notice of electronic filing by first-class mail to all non-CM/ECF

5 participants.

6

/s/ Michael H. Page

MICHAEL H. PAGE 7

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 Case3:13-cv-03287-JSW Document63-2 Filed11/18/13 Page1 of 21

1 Alex Abdo aabdo@aclu.org
2 Brett Max Kaufman bkaufman@aclu.org
3 Patrick Toomey ptoomey@aclu.org
4 Jameel Jaffer jjaffer@aclu.org
5 AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor
6 New York, New York 10004 Telephone: (212) 549-2500
7 Facsimile: (212) 549-2654

8 Julia Harumi Mass (CA SBN 189649)

jmass@aclunc.org 9 Nicole A. Ozer (CA SBN 228643)

nozer@aclunc.org 10 Matthew T. Cagle (CA SBN 286101)

mcagle@aclunc.org 11 AMERICAN CIVIL LIBERTIES UNION FOUNDATION

OF NORTHERN CALIFORNIA 12 39 Drumm Street

San Francisco, California 94111 13 Telephone: (415) 621-2493

Facsimile: (415) 255-8437 14

Attorneys for Amici Curiae Senator Ron Wyden,

15

Senator Mark Udall, & Senator Martin Heinrich

16

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

17

SAN FRANCISCO DIVISION

18

FIRST UNITARIAN CHURCH OF

19

LOS ANGELES et al.,

Case No. 3:13-cv-03287 JSW

20

Plaintiffs,

21

v.

22 NATIONAL SECURITY AGENCY et al.,

BRIEF OF AMICI CURIAE SENATOR RON WYDEN, SENATOR MARK UDALL & SENATOR MARTIN HEINRICH IN SUPPORT OF PLAINTIFFS

23

Defendants.

24
First Unitarian Church of Los Angeles et al. v. National Security Agency et al., Case No. 3: 13-cv-03287 JSW MOTION OF AMICI WYDEN, UDALL & HEINRICH IN SUPP. OF PLS’ MOT. FOR PARTIAL S.J.

Case3:13-cv-03287-JSW Document63-2 Filed11/18/13 Page2 of 21

1

TABLE OF CONTENTS

2

TABLE OF AUTHORITIES .................................................................................................. i

3

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

4

ARGUMENT ..........................................................................................................................3

5

I. AMICI HAVE SEEN NO EVIDENCE THAT THE BULK COLLECTION OF

6

AMERICANS’ PHONE RECORDS HAS PROVIDED USEFUL INTELLIGENCE

UNOBTAINABLE THROUGH LESS INTRUSIVE MEANS .................................3

7

A. Amici have seen no evidence that the bulk collection of Americans’

8

phone records under Section 215 is uniquely necessary to the

9

national security of the United States ..........................................................3

10

B. The government possesses a number of legal authorities with

which it may obtain the call records of suspected terrorists and

11

those in contact with suspected terrorists.....................................................8

12

C. Amici have seen no evidence that bulk collection was necessary

13

to obtain information critical to specific counterterrorism

investigations .............................................................................................11

14 II. THE GOVERNMENT’S LEGAL INTERPRETATION OF SECTION 215

15

COULD BE EXTENDED TO AUTHORIZE BULK COLLECTIONS OF

AMERICANS’ DATA BEYOND THE CALL RECORDS AT ISSUE IN 16
THIS CASE ..............................................................................................................14

17 CONCLUSION .....................................................................................................................15

18

19

20

21

22

23

24
First Unitarian Church of Los Angeles et al. v. National Security Agency et al., Case No. 3: 13-cv-03287 JSW BRIEF OF AMICI WYDEN, UDALL & HEINRICH IN SUPP. OF PLS.’ MOT. FOR PARTIAL S.J. Page i

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1

TABLE OF AUTHORITIES

2 Cases

3 In re Application of the FBI for an Order Requiring the Production of Tangible

4

Things from [Redacted], No. BR 13-80 (FISC Apr. 25, 2013)...............................................10

In re Production of Tangible Things, No. BR 08-13 (FISC Mar. 2, 2009) ..................................4 5

In re Production of Tangible Things, No. BR 08-13, 2008 WL 9475145 (FISC 6 Dec. 12, 2008) ...........................................................................................................................9

7 In re Production of Tangible Things, No. BR 13-109, 2013 WL 5741573 (FISC Aug. 29, 2013) .....................................................................................................................5, 15
8 Statutes
9 18 U.S.C. § 2702...........................................................................................................................9
10 18 U.S.C. § 2703...........................................................................................................................9
11 18 U.S.C. § 2709.....................................................................................................................9, 10
12 18 U.S.C. § 3122...........................................................................................................................9
13 18 U.S.C. § 3125...........................................................................................................................9
14 50 U.S.C. § 1842...........................................................................................................................9

15 50 U.S.C. § 1843.........................................................................................................................10

16 50 U.S.C. § 1861...........................................................................................................................9

17 Other Authorities

18 155 Cong. Rec. S9563 (daily ed. Sept. 17, 2009).........................................................................2
19 157 Cong. Rec. S3258 (daily ed. May 24, 2011)..........................................................................2
20 157 Cong. Rec. S3360 (daily ed. May 25, 2011)..........................................................................1 21 157 Cong. Rec. S3386 (daily ed. May 26, 2011)....................................................................1, 15
157 Cong. Rec. S3389 (daily ed. May 26, 2011)........................................................................15 22
159 Cong. Rec. S6056 (daily ed. July 30, 2013) ........................................................................12 23

24

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1 Administration White Paper: Bulk Collection of Telephony Metadata Under Section 215 of the USA PATRIOT Act (Aug. 9, 2013) ........................................................5, 10
2 H. Permanent Select Comm. on Intelligence, 54 Attacks in 20 Countries Thwarted
3 by NSA Collection (July 23, 2013) ..........................................................................................12

4 Joint Statement for the Record by Michael Leiter, Director, National Counterterrorism Center, & [Redacted], Associate Deputy Director for
5 Counterterrorism, Signals Intelligence Directorate, NSA, Before the H. Permanent Select Comm. on Intelligence Closed Hearing on Patriot Act
6 Reauthorization (Oct. 21, 2009) ................................................................................................4

7 Letter from [Redacted], Attorney, Office of General Counsel, NSA, to SSCI (Apr. 1, 2011) ....................................................................................................................................15

8 Letter from Ronald Weich, Assistant Attorney General, to Silvestre Reyes,

9

Chairman, H. Permanent Select Comm. on Intelligence (Dec. 14, 2009)...........................4, 13

10

Letter from Sen. Ron Wyden & Sen. Mark Udall to Eric Holder, Attorney General (Mar. 15, 2012) ........................................................................................................................14

11 Media Leaks Facts & Context (Long Version) (Aug. 1, 2013)...............................................6, 14

12 Nat’l Comm’n on Terrorist Attacks Upon the U.S., 9/11Commission Report (2004) ......................................................................................................................................13
13
Oversight of the Administration’s Use of FISA Authorities: Hearing Before the H. 14 Comm. on the Judiciary, 113th Cong. (July 17, 2013)........................................................5, 12

15 Oversight of the Federal Bureau of Investigation: Hearing Before the H. Comm. on the Judiciary, 113th Cong. (June 13, 2013) .......................................................................13
16 Potential Changes to the Foreign Intelligence Surveillance Act: Hearing Before
17 the H. Permanent Select Comm. on Intelligence, 113th Cong. (Oct. 29, 2013)..................5, 11

18 Press Release, Sen. Mark Udall, Surveillance Reform Package Ends Bulk Collection of Phone Records, Creates Constitutional Advocate for Secret Court
19 (Sept. 25, 2013) .........................................................................................................................8

20

Press Release, Sen. Martin Heinrich, Heinrich Says FISA Improvements Act Doesn’t Go Far Enough To Protect American Privacy Rights (Oct. 31, 2013) ......................14

21 Press Release, Sen. Martin Heinrich, Heinrich Statement on National Security Agency Phone Records Program (June 6, 2013) .....................................................................11
22
Press Release, Sen. Martin Heinrich, Udall, Heinrich Back Effort To End Dragnet 23 Collection of Phone Data & Add Meaningful Oversight of Surveillance
Programs (Oct. 29, 2013) ..........................................................................................................8 24
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1 Press Release, Sen. Ron Wyden & Sen. Mark Udall, Wyden, Udall Issue Statement on Effectiveness of Declassified NSA Programs (June 19, 2013) .................6, 7, 11
2 Press Release, Sen. Ron Wyden & Sen. Mark Udall, Wyden, Udall Statement on
3 the Disclosure of Bulk Email Records Collection Program (July 2, 2013)...................7, 14, 15

4 Press Release, Sen. Ron Wyden, Wyden Statement on President Obama’s Proposed Reforms to the FISC and PATRIOT Act (Aug. 9, 2013) ..........................................8
5 Report on the National Security Agency’s Bulk Collection Programs Affected by
6 USA PATRIOT Act Reauthorization......................................................................................4, 9

7

Report on the National Security Agency’s Bulk Collection Programs for USA PATRIOT Act Reauthorization ..................................................................................................4

8 Sen. Richard Durbin, Remarks at the Senate Judiciary Committee Executive

9

Business Meeting (Oct. 1, 2009) ...............................................................................................2

Sen. Ron Wyden, Keynote Address at Cato Institute Conference: NSA 10 Surveillance: What We Know; What to Do About It (Oct. 9, 2013) ....................................6, 7

11 Sen. Ron Wyden, Remarks as Prepared for Delivery for the Center for American Progress Event on NSA Surveillance (July 23, 2013).........................................................8, 14
12
Siobhan Gorman, Evan Perez & Janet Hook, U.S. Collects Vast Data Trove, Wall 13 St. J., June 7, 2013 .....................................................................................................................5

14 Sisi Wei, Theodoric Meyer & Justin Elliott, How the NSA’s Claim on Thwarted Terrorist Plots Has Spread, ProPublica, Oct. 23, 2013 ............................................................6
15 Strengthening Privacy Rights and National Security: Oversight of FISA
16 Surveillance Programs: Hearing Before the S. Comm. on the Judiciary, 113th Cong. (July 31, 2013) ....................................................................................................6, 10, 13
17 Rules
18 Fed. R. Crim. P. 17(c) ...................................................................................................................9
19

20

21

22

23

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1

INTRODUCTION

2

Amici Curiae Ron Wyden, Mark Udall, and Martin Heinrich are United States Senators

3 and members of the Senate Select Committee on Intelligence. Senator Wyden has represented

4 the state of Oregon since 1996. Senator Udall has represented the state of Colorado since January

5 2009. Senator Heinrich has represented the state of New Mexico since January 2013. Together

6 with a number of other Senators, Senators Wyden, Udall, and Heinrich have introduced

7 bipartisan legislation to reform the nation’s surveillance laws, including the Foreign Intelligence

8 Surveillance Act. Amici submit this brief, in support of Plaintiffs’ Motion for Partial Summary

9 Judgment, to provide important context for the Court’s consideration of Plaintiffs’ claims and to

10 underscore the larger implications of this case.

11

As members of the Senate Select Committee on Intelligence, Amici Senators Wyden and

12 Udall have for years participated in the oversight of government surveillance conducted under

13 the Patriot Act that they knew would astonish most Americans. They sought to warn the public

14 about those activities as best they could without disclosing classified information. They also co-

15 sponsored an amendment to the Patriot Act’s reauthorization that sought to address the problem

16 of government officials “secretly reinterpret[ing] public laws and statutes” and “describ[ing] the

17 execution of these laws in a way that misinforms or misleads the public.” See 157 Cong. Rec.

18 S3360 (daily ed. May 25, 2011) (introducing SA 384 to S. 990, 112th Cong. § 3 (2011)); see also

19 157 Cong. Rec. S3386 (daily ed. May 26, 2011) (statement of Sen. Wyden) (“The fact is anyone

20 can read the plain text of the PATRIOT Act. Yet many Members of Congress have no idea how

21 the law is being secretly interpreted by the executive branch.”); 157 Cong. Rec. S3258 (daily ed.

22 May 24, 2011) (statement of Sen. Udall) (“Congress is granting powers to the executive branch

23

24

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1 that lead to abuse, and, frankly, shield the executive branch from accountability.”).1

2

Now that the government’s bulk call-records program has been exposed, the government

3 has defended it vigorously. Amici submit this brief to respond to the government’s claim, which

4 it is expected to repeat in this suit, that its collection of bulk call records is necessary to defend

5 the nation against terrorist attacks. Amici make one central point: As members of the committee

6 charged with overseeing the National Security Agency’s surveillance, Amici have reviewed this

7 surveillance extensively and have seen no evidence that the bulk collection of Americans’ phone

8 records has provided any intelligence of value that could not have been gathered through less

9 intrusive means. The government has at its disposal a number of authorities that allow it to

10 obtain the call records of suspected terrorists and those in contact with suspected terrorists. It

11 appears to Amici that these more targeted authorities could have been used to obtain the

12 information that the government has publicly claimed was crucial in a few important

13 counterterrorism cases.

14

In assessing the lawfulness of the government’s bulk call-records program, it is also

15 important to understand the implications of the government’s interpretation of Section 215. The

16 government’s legal interpretation of Section 215 could be extended to authorize bulk collections

17 of information far beyond the call records at issue in this case, such as financial or medical

18 records, or even records indicating the location of ordinary Americans. The Court should thus

19

20

21

1 Colleagues of Amici raised similar concerns. See, e.g., Sen. Richard Durbin, Remarks at the Senate Judiciary Committee Executive Business Meeting at 68:00, (Oct. 1, 2009),

22

http://1.usa.gov/1fPvpwb (“Section 215 is unfortunately cloaked in secrecy. Some day that cloak will be lifted, and future generations will ask whether our actions today meet the test of a

23

democratic society: transparency, accountability, and fidelity to the rule of law and our Constitution.”); 155 Cong. Rec. S9563 (daily ed. Sept. 17, 2009) (statement of Sen. Feingold).

24
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1 treat with skepticism the government’s claims that its use of the statute is cabined by the

2 supposedly unique characteristics of call records.

3

Because the government’s call-records program needlessly intrudes upon the privacy

4 rights of hundreds of millions of Americans, Amici believe the bulk collection of these phone

5 records should be ended.

6

ARGUMENT

7 I. 8

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

9

A. Amici have seen no evidence that the bulk collection of Americans’ phone records

under Section 215 is uniquely necessary to the national security of the United

10

States.

11

The executive branch has claimed in public and in newly declassified submissions to the

12 Senate Select Committee on Intelligence (“SSCI”) that the bulk collection of Americans’ phone

13 records is a vital national security program that is uniquely valuable in protecting the American

14 people, that its aims cannot be achieved through alternative means, and that it has been effective

15 in preventing terrorist activity against Americans. Amici have reviewed the bulk-collection

16 program extensively, and none of these claims appears to hold up to scrutiny.

17

Since the executive branch began using Section 215 to collect the phone records of

18 Americans in bulk, it has asserted to the members of Congress to whom it revealed that

19 collection that the program was necessary to protect national security because it uniquely enables

20 the government to track the associations of suspected terrorists. For example, as votes in both

21 chambers of Congress on the reauthorization of the Patriot Act approached in 2009, the

22 Department of Justice made available to members of the SSCI and the House Permanent Select

23 Committee on Intelligence (“HPSCI”) a report on the NSA’s bulk collection under Section 215.

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1 See Letter from Ronald Weich, Assistant Attorney General, to Silvestre Reyes, Chairman,

2 HPSCI at 1 (Dec. 14, 2009), http://1.usa.gov/1i31wui (“2009 Weich Letter”). The report

3 represented that the “NSA’s bulk collection programs provide important tools in the fight against

4 terrorism” that are “unique in that they can produce intelligence not otherwise available to

5 NSA.” See Report on the National Security Agency’s Bulk Collection Programs Affected by USA 6 PATRIOT Act Reauthorization at 1 (“2009 NSA Report”) (attached to 2009 Weich Letter).2

7

The executive branch has made the same assurances to the Foreign Intelligence

8 Surveillance Court (“FISC”) in its applications for orders renewing the bulk phone-records

9 program. In December 2008, the executive branch asserted to the FISC that “having access to the

10 call detail records ‘is vital to NSA’s counterterrorism intelligence mission’ because ‘[t]he only

11 effective means by which NSA analysts are able continuously to keep track of [redacted] and all

12 affiliates of one of the aforementioned entities [who are taking steps to disguise and obscure their

13 communications and identities], is to obtain and maintain an archive of metadata that will permit

14 these tactics to be uncovered.’” Order at 2, In re Production of Tangible Things, No. BR 08-13

15 (FISC Mar. 2, 2009) (alterations in original) (quoting NSA declaration submitted to FISC on

16 December 11, 2008), http://1.usa.gov/14DDhzd; see also In re Production of Tangible Things,

17

18

19

2 The executive branch has made similar representations to Congress in other settings. See, e.g., Report on the National Security Agency’s Bulk Collection Programs for USA PATRIOT Act

20

Reauthorization (attached to Letter from Ronald Weich, Assistant Attorney General, to Dianne Feinstein, Chairman, & Saxby Chambliss, Vice Chairman, SSCI (Feb. 2, 2011),

21

http://1.usa.gov/1i38XSh); Joint Statement for the Record by Michael Leiter, Director, National Counterterrorism Center, & [Redacted], Associate Deputy Director for Counterterrorism, Signals

22

Intelligence Directorate, NSA, Before the HPSCI Closed Hearing on Patriot Act Reauthorization 2 (Oct. 21, 2009), http://1.usa.gov/1i3bP1u. Many of these documents also made representations

23

about the value and importance of the NSA’s bulk email-records collection program that later proved to be inaccurate. See infra note 7–8.

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1 No. BR 13-109, 2013 WL 5741573, at *7 (FISC Aug. 29, 2013) (discussing government

2 assertions of necessity).

3

In the months following the government’s official declassification of the bulk phone-

4 records program, government officials have told the American public much the same thing.

5 Immediately after the bulk phone-records collection program was disclosed, a White House

6 spokesman defended it as a “critical tool in protecting the nation from terror threats.” Siobhan

7 Gorman, Evan Perez & Janet Hook, U.S. Collects Vast Data Trove, Wall St. J., June 7, 2013,

8 http://on.wsj.com/16RgOAf; see Administration White Paper: Bulk Collection of Telephony

9 Metadata Under Section 215 of the USA PATRIOT Act 12 (Aug. 9, 2013),

10 http://big.assets.huffingtonpost.com/Section215.pdf (“215 White Paper”) (“[F]or Section 215 to

11 be effective in advancing its core objective, the FBI must have the authority” to engage in bulk 12 collection.). And executive-branch officials continue to publicly make similar claims.3

13

More recently and under public scrutiny, the government has retreated from its most

14 aggressive claims about the need for the bulk call-records program. See, e.g., Decl. of FBI

15 Acting Ass’t Dir. Robert J. Holley in Opp’n to Pls.’ Mot. for Prelim. Inj. (“Holley Decl.”) ¶ 23,

16 Am. Civil Liberties Union v. Clapper, No. 13-cv-3994 (S.D.N.Y. Oct. 1, 2013) (“Bulk metadata

17 analysis sometimes provides information earlier than the FBI’s other investigative methods and

18

19

20

3 See, e.g., Potential Changes to the Foreign Intelligence Surveillance Act: Hearing Before

21

the H. Permanent Select Comm. on Intelligence, 113th Cong. at 55:40 (Oct. 29, 2013), http://www.c-spanvideo.org/program/AgencyPro (“Oct. 29 HPSCI Hearing”) (statement of John

22

C. Inglis, Deputy Director, NSA) (“It needs to be the whole haystack.”); Oversight of the Administration’s Use of FISA Authorities: Hearing Before the H. Comm. on the Judiciary, 113th

23

Cong. at 59:00 (July 17, 2013), http://c-spanvideo.org/program/ISAO (“July 17 HJC Hearing”) (statement of James M. Cole, Deputy Attorney General) (similar).

24
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1 techniques.”).4 That retreat is justified, but the government continues to claim—without

2 demonstrated evidence—that the bulk phone-records program is uniquely important for U.S.

3 national security. As Amici and others have made clear, the evidence shows that the executive

4 branch’s claims about the effectiveness of the bulk phone-records program have been vastly

5 overstated and, in some cases, utterly misleading. See Sen. Ron Wyden, Keynote Address at

6 Cato Institute Conference: NSA Surveillance: What We Know; What to Do About It at 31:24–

7 32:07 (Oct. 9, 2013), http://www.cato.org/multimedia/events/nsa-surveillance-what-we-know-

8 what-do-about-it-morning-keynote (“Wyden Cato Keynote”).

9

For example, the executive branch has defended the program by claiming that it helped

10 “thwart” or “disrupt” fifty-four specific terrorist plots. See Sisi Wei, Theodoric Meyer & Justin

11 Elliott, How the NSA’s Claim on Thwarted Terrorist Plots Has Spread, ProPublica, Oct. 23,

12 2013, http://projects.propublica.org/graphics/nsa-54-cases; see generally Media Leaks Facts &

13 Context (Long Version) (Aug. 1, 2013), http://1.usa.gov/17wwh38 (“Facts & Context”). But that 14 claim conflates the bulk-collection program with other foreign-intelligence authorities.5 In fact,

15

16

4 See also, e.g., Brief for the United States in Opp’n, In re Elec. Privacy Info. Ctr., No. 13-58,

17

2013 WL 5702390, at *31 (U.S. Oct. 11, 2013) (Without bulk collection of phone records under Section 215, “it may not be feasible for the NSA to identify chains of communications that cross

18

different telecommunications networks . . . .” (emphasis added)); Holley Decl. ¶ 9 (“[E]xperience has shown that NSA metadata analysis, in complement with other FBI investigatory and

19

analytical capabilities, produces information pertinent to FBI counter-terrorism investigations, and can contribute to the prevention of terrorist attacks.” (emphases added)).

20

5 See Press Release, Sen. Ron Wyden & Sen. Mark Udall, Wyden, Udall Issue Statement on Effectiveness of Declassified NSA Programs (June 19, 2013), http://1.usa.gov/1brNWxz

21

(“Wyden–Udall Effectiveness Release”); accord Strengthening Privacy Rights and National Security: Oversight of FISA Surveillance Programs: Hearing Before the S. Comm. on the

22

Judiciary, 113th Cong. (July 31, 2013), http://1.usa.gov/1brQ0Wb (“July 31 SJC Hearing”) (statement of Sen. Patrick Leahy, Chairman, Senate Judiciary Committee) (“Leahy Statement”)

23

(“Some supporters of this program have repeatedly conflated the efficacy of the Section 215 bulk metadata collection program with that of Section 702 of FISA. I do not think this is a

24
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1 as Amici know from their regular oversight of the intelligence community as members of the

2 SSCI, “it appears that the bulk phone records collection program under section 215 of the USA

3 Patriot Act played little or no role in most of these disruptions.” Wyden–Udall Effectiveness

4 Release; see Wyden Cato Keynote at 31:39 (“The fact is that number has not held up . . . . The

5 number seems to just keep going down, and down, and down.”).6 Indeed, of the original fifty-

6 four that the government pointed to, officials have only been able to describe two that involved

7 materially useful information obtained through the bulk call-records program. See Continued

8 Oversight of FISA Surveillance Programs: Hearing Before the S. Comm. on the Judiciary, 113th

9 Cong. at 43:00 (Oct. 2, 2013), http://cs.pn/18jdL2b (statement of Keith B. Alexander, Director,

10 NSA). Even the two supposed success stories involved information that Amici believe—after

11 repeated requests to the government for evidence to the contrary—could readily have been

12 obtained without a database of all Americans’ call records. See infra Part I.C.

13

In both public statements and in newly declassified submissions to the SSCI, intelligence

14 officials have significantly exaggerated the phone-records program’s effectiveness. Based on the

15 experience of Amici, the public—and this Court—should view the government’s claims

16 regarding the effectiveness of its surveillance programs with searching skepticism and demand

17 evidence rather than assurances before accepting them. See Press Release, Sen. Ron Wyden &

18 Sen. Mark Udall, Wyden, Udall Statement on the Disclosure of Bulk Email Records Collection 19 Program (July 2, 2013), http://1.usa.gov/1bs6wWa (“Wyden–Udall Bulk Email Release”).7 With

20

21

coincidence, and it needs to stop. The patience and trust of the American people is starting to wear thin.”).

22

6 Accord Leahy Statement (“The list simply does not reflect dozens or even several terrorist plots that Section 215 helped thwart or prevent—let alone 54, as some have suggested.”).

23

7 As the Wyden–Udall Bulk Email Release notes, the phone-records program is not the only example of inflated executive claims to the effectiveness of surveillance programs that grossly

24
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1 respect to the bulk phone-records collection program specifically, Amici have not been shown 2 evidence that it provides the value that intelligence officials have claimed.8

3

B. The government possesses a number of legal authorities with which it may obtain

the call records of suspected terrorists and those in contact with suspected

4

terrorists.

5

Amici have consistently argued that the bulk phone-records program needlessly tramples

6 on Americans’ privacy rights, particularly in light of the authorities available to the government

7 that can also be used to acquire call records of suspected terrorists and those in contact with

8 suspected terrorists in a targeted manner. See Press Release, Sen. Martin Heinrich, Udall,

9 Heinrich Back Effort To End Dragnet Collection of Phone Data & Add Meaningful Oversight of

10 Surveillance Programs (Oct. 29, 2013), http://1.usa.gov/182XcHE; Press Release, Sen. Mark

11 Udall, Surveillance Reform Package Ends Bulk Collection of Phone Records, Creates

12 Constitutional Advocate for Secret Court (Sept. 25, 2013), http://1.usa.gov/1bBGLku (“Udall

13 Reform Release”). Even the valid claims by intelligence officials about certain useful

14 information obtained through the bulk phone-records program fail to explain why the

15 government could not have simply obtained this information directly from phone companies

16 using more calibrated legal instruments. A number of legal authorities would have allowed the

17 government to do so.

18

19

violate Americans’ privacy rights. See Sen. Ron Wyden, Remarks as Prepared for Delivery for the Center for American Progress Event on NSA Surveillance (July 23, 2013),

20

http://www.americanprogress.org/wp-content/uploads/2013/07/7232013WydenCAPspeech.pdf (“Wyden CAP Speech”) (In defending bulk email-records program, intelligence officials

21

“significantly exaggerated the program’s effectiveness to both Congress and the [FISC]”). 8 See, e.g., Press Release, Sen. Ron Wyden, Wyden Statement on President Obama’s

22

Proposed Reforms to the FISC and PATRIOT Act (Aug. 9, 2013), http://1.usa.gov/1bBEyWb (“I have seen absolutely zero evidence that the bulk collection of Americans’ phone records under

23

Section 215 of the PATRIOT Act has provided any unique value to intelligence gathering or actually made Americans any safer . . ..”).

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1

For example, the Stored Communications Act permits the government to obtain precisely

2 the same call records that are now acquired through bulk collection under Section 215 when they

3 are “relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d).

4 Individualized orders for phone records, as opposed to orders authorizing bulk collection, can

5 also be obtained under Section 215. 50 U.S.C. § 1861.9 National security letters, which do not

6 require a court order, can also be used by the government to obtain call records for intelligence

7 purposes. See 18 U.S.C. § 2709. The government can also acquire telephony metadata on a real-

8 time basis by obtaining orders from either regular federal courts or the FISC for the installation

9 of pen registers or trap-and-trace devices. See 18 U.S.C. §§ 3122, 3125; 50 U.S.C. § 1842. And

10 the government may also seek call records using standard criminal warrants based on probable

11 cause. See 18 U.S.C. § 2703(c)(A); Fed. R. Crim. P. 17(c). The government can use many of

12 these authorities without any more evidence than what is currently required to use the bulk

13 phone-records database, with less impact on the privacy interests of innocent Americans.

14

The executive branch has sometimes argued that the bulk collection of phone records is

15 unique because it allows the NSA to “quickly identify the network of contacts that a targeted

16 number or address is connected to.” 2009 NSA Report 5; see id. (“Importantly, there are no

17 intelligence collection tools that, independently or in combination, provide an equivalent

18 capability.”). As an initial matter, in exigent circumstances, the government already enjoys the

19 authority to issue emergency authorizations or national security letters to obtain these records

20

21

9 Amici understand that there is an ongoing legal debate regarding whether 18 U.S.C. § 2702(a)(3), which prohibits the disclosure of call records to the government subject to several

22

limited exceptions, permits the use of Section 215 to obtain call records at all. Amici take no position on that legal question for the purposes of this brief, but note that the FISC currently

23

permits such use. See In re Production of Tangible Things, No. BR 08-13, 2008 WL 9475145, at *3 (FISC Dec. 12, 2008).

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1 quickly. See 50 U.S.C. § 1843; 18 U.S.C. § 2709. More fundamentally, the FISC orders

2 governing the bulk phone-records program permit the NSA’s querying of the bulk phone-records

3 database only when “there are facts giving rise to a reasonable, articulable suspicion (RAS) that

4 the selection term to be queried is associated with” a “foreign terrorist organization,” Primary

5 Order at 7, In re Application of the FBI for an Order Requiring the Production of Tangible

6 Things from [Redacted], No. BR 13-80 (FISC Apr. 25, 2013). Intelligence officials have

7 indicated that the NSA queried the phone-records database with fewer than 300 such “selection

8 terms” last year. Section 215 White Paper 4. The RAS standard and the relatively few “selection

9 terms” used by the NSA demonstrate that the government could obtain targeted court orders or

10 issue national security letters on a case-by-case basis in lieu of querying bulk-collected data.

11

The government has also suggested that a comprehensive database of Americans’ phone

12 records is necessary to allow for the “three-hop analysis” of a suspected terrorist. Amici have yet

13 to see any evidence of such analysis contributing any value to a terrorism investigation. The

14 government does not “always exercise” even “a second hop,” let alone a third. See July 31 SJC

15 Hearing at 1:34:20 (statement of John C. Inglis). For cases in which intelligence agencies wish to

16 conduct “two-hop analysis” of the network of a particular suspect, Amici believe that the relevant

17 phone records could be obtained from the phone companies using the legal authorities discussed

18 above. An individual order for the phone records of a suspected terrorist and anyone in contact

19 with that suspect could be served on multiple phone companies simultaneously and be expected

20 to produce the same results as a query of a bulk phone-records database.

21

In addition, even though the NSA’s five-year retention period for phone records exceeds

22 the retention period mandated by federal regulation, the NSA has been unable to identify

23 instances in which the government gained valuable information from phone records that the

24
First Unitarian Church of Los Angeles et al. v. National Security Agency et al., Case No. 3: 13-cv-03287 JSW BRIEF OF AMICI WYDEN, UDALL & HEINRICH IN SUPP. OF PLS.’ MOT. FOR PARTIAL S.J. Page 10

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1 companies themselves did not continue to possess. See Wyden–Udall Effectiveness Release. The

2 government has also recognized that “numerous technical architectures” other than bulk

3 collection by the government are “viable” means to accomplish the same ends as the bulk phone-

4 records program. Oct. 29 HPSCI Hearing at 55:05 (statement of John C. Inglis). All of these

5 acknowledgments support Amici’s consistent warnings that the bulk phone-records program goes 6 far beyond what is required to protect national security.10

7

Respect for Americans’ privacy is not a matter of convenience—it is an imperative of the

8 Constitution. Despite years of receiving classified briefings and asking repeated questions of

9 intelligence officials in both private and public settings, Amici have seen no evidence that bulk

10 collection accomplishes anything that other less intrusive surveillance authorities could not. Bulk

11 collection therefore is not only a significant threat to the constitutional liberties of Americans, 12 but a needless one.11

13

C. Amici have seen no evidence that bulk collection was necessary to obtain

information critical to specific counterterrorism investigations. 14

Even in the two cases that intelligence officials have been able to identify in which the 15

bulk phone-records program provided any useful information about an individual involved in 16

terrorist activity, it has not been demonstrated that bulk collection was necessary to the 17

outcomes. In both of the cases, Amici believe the government could have used its more targeted 18

19

20

21

10 See Press Release, Sen. Martin Heinrich, Heinrich Statement on National Security Agency

22

Phone Records Program (June 6, 2013), http://1.usa.gov/175aD94. 11 See Press Release, Sen. Martin Heinrich & Sen. Tom Udall, Udall, Heinrich Back Effort to

23

End Dragnet Collection of Phone Data & Add Meaningful Oversight of Surveillance Programs (Oct. 29, 2013), http://1.usa.gov/182XcHE; Wyden–Udall Effectiveness Release.

24
First Unitarian Church of Los Angeles et al. v. National Security Agency et al., Case No. 3: 13-cv-03287 JSW BRIEF OF AMICI WYDEN, UDALL & HEINRICH IN SUPP. OF PLS.’ MOT. FOR PARTIAL S.J. Page 11

Case3:13-cv-03287-JSW Document63-2 Filed11/18/13 Page17 of 21

1 authorities to obtain the phone records it claims were valuable.12

2

For example, the executive branch has publicly claimed that the bulk phone-records

3 program was critical to the government’s disruption of a plot to bomb the New York City

4 subway system. See, e.g., July 17 HJC Hearing at 36:50 (statement of Stephanie Douglas,

5 Executive Assistant Director, National Security Division, FBI); see also, e.g., HPSCI, 54 Attacks

6 in 20 Countries Thwarted by NSA Collection 1 (July 23, 2013), http://1.usa.gov/182Zk1W (“54

7 Attacks”). In particular, intelligence officials have claimed that a query of the bulk phone-records

8 database for numbers linked to known terrorism suspect Najibullah Zazi returned a previously

9 unknown number belonging to another known terrorism suspect, Adis Medunjanin. See July 17

10 HJC Hearing at 36:50 (statement of Stephanie Douglas). However, since the government had

11 already identified Mr. Zazi as a terrorism suspect prior to querying the bulk phone-records

12 database, it had all the evidence that it needed to obtain the phone records of Mr. Zazi and his

13 associates using an individualized section 215 order or other legal authorities. See supra Part I.B.

14 The executive branch has provided neither Amici nor the public with any evidence that bulk

15 collection produced any information of unique value in preventing the subway plot.

16

The executive branch has also pointed to the case of Basaaly Moalin, a San Diego man

17 convicted of sending $8,500 to support al-Shabaab in Somalia. The intelligence community has

18 indicated that information from the bulk phone-records database “established a connection

19 between a phone number known to be used by an extremist overseas . . . and an unknown San

20 Diego–based number” that belonged to Mr. Moalin. 54 Attacks 2. Yet there is no shortage of

21 authorities under which the United States can conduct surveillance on a “phone number known

22

12 See 159 Cong. Rec. S6056 (daily ed. July 30, 2013) (statement of Sen. Wyden) (“What I

23

don’t see . . . is any evidence that the U.S. Government needed to operate a giant domestic phone records surveillance program in order to catch these individuals.”); accord Leahy SJC Statement.

24
First Unitarian Church of Los Angeles et al. v. National Security Agency et al., Case No. 3: 13-cv-03287 JSW BRIEF OF AMICI WYDEN, UDALL & HEINRICH IN SUPP. OF PLS.’ MOT. FOR PARTIAL S.J. Page 12

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1 to be used by an extremist overseas” and other phone numbers in contact with that phone

2 number. See supra Part I.B. To claim that Mr. Moalin’s case is a “but-for” example of the value

3 of the bulk phone-records collection program, July 31 SJC Hearing at 1:37:50 (statement of John

4 C. Inglis), is simply at odds with the available evidence. Worse, it appears to be a misleading

5 exaggeration that has distorted the public record.

6

Finally, the executive branch and others have also repeated the claim that “[i]f we had

7 had [the bulk phone-records] program in place at the time [of the September 11, 2001 attacks,]

8 we would have been able to identify” the phone number of one of the hijackers, Khalid al-

9 Mihdhar. Oversight of the Federal Bureau of Investigation: Hearing Before the H. Comm. on the

10 Judiciary at 26, 113th Cong. (June 13, 2013), http://1.usa.gov/1aRWHm6 (statement of Robert

11 S. Mueller, III, Director, FBI); see 2009 Weich Letter 2. Just as in the cases of Mr. Medunjanin

12 and Mr. Moalin, however, it appears that Mr. al-Mihdhar’s phone number could also have been

13 obtained by the government using a variety of alternate means. Before September 11, the

14 government was surveilling a safe house in Yemen but failed to realize that Mr. al-Mihdhar, who

15 was in contact with the safe house, was actually inside the United States. See, e.g., Nat’l

16 Comm’n on Terrorist Attacks Upon the U.S., 9/11Commission Report 266, 270, 272 (2004). The

17 government could have used any number of authorities to determine whether anyone in the

18 United States was in contact with the safe house that it was already targeting. It did not need a

19 record of every American’s phone calls to establish that simple connection.

20

The three cases discussed above—the three cases most heavily cited by government

21 officials to justify the existence of the bulk phone-records program—make clear that there

22 appears to be nothing uniquely valuable about the program, and that existing alternative legal

23 authorities are sufficient to accomplish the United States’ legitimate intelligence objectives

24
First Unitarian Church of Los Angeles et al. v. National Security Agency et al., Case No. 3: 13-cv-03287 JSW BRIEF OF AMICI WYDEN, UDALL & HEINRICH IN SUPP. OF PLS.’ MOT. FOR PARTIAL S.J. Page 13

Case3:13-cv-03287-JSW Document63-2 Filed11/18/13 Page19 of 21

1 without systematically infringing on the privacy rights of hundreds of millions of Americans.

2

Of note, intelligence officials have repeatedly asserted that additional examples, which

3 remain secret, show that the bulk phone-records collection program has “contributed to” or

4 “provided value in” the investigation of a total of twelve different “homeland-related terrorist

5 events.” Facts & Context 3. Amici have reviewed all twelve of these examples, and have yet to

6 see any evidence that the bulk phone-records program provided any information that was

7 materially useful to any terrorism cases other than those involving Mr. Moalin and Mr.

8 Medjunanin. In the opinion of Amici, the claim that the bulk phone-records collection program

9 has “contributed to” twelve different counterterrorism investigations would not withstand public

10 scrutiny, unless it were accompanied by new evidence that has not been provided to Amici.

11 II. 12

THE GOVERNMENT’S LEGAL INTERPRETATION OF SECTION 215 COULD BE EXTENDED TO AUTHORIZE BULK COLLECTIONS OF AMERICANS’ DATA BEYOND THE CALL RECORDS AT ISSUE IN THIS CASE.

13

Amici also are concerned that the government’s theory interpreting Section 215 to permit

14 the bulk collection of Americans’ records is not limited to phone records. For example, Amici

15 have warned that the government’s authority to collect information on law-abiding Americans is

16 essentially limitless:

17

the Patriot Act’s surveillance authorities are not limited to phone records. . . . and

could be used to collect other types of records in bulk as well, including

18

information on credit card purchases, medical records, library records, firearm

sales records, financial information and a range of other sensitive subjects.

19 Wyden–Udall Bulk Email Release; see Wyden CAP Speech.13

20 Amici have not issued these warnings lightly. As disclosed several months ago, two of

21

22

13 Accord Press Release, Sen. Martin Heinrich, Heinrich Says FISA Improvements Act Doesn’t Go Far Enough To Protect American Privacy Rights (Oct. 31, 2013),

23

http://1.usa.gov/175by9z; Letter from Sen. Ron Wyden & Sen. Mark Udall to Eric Holder, Attorney General, at 2 (Mar. 15, 2012).

24
First Unitarian Church of Los Angeles et al. v. National Security Agency et al., Case No. 3: 13-cv-03287 JSW BRIEF OF AMICI WYDEN, UDALL & HEINRICH IN SUPP. OF PLS.’ MOT. FOR PARTIAL S.J. Page 14

Case3:13-cv-03287-JSW Document63-2 Filed11/18/13 Page20 of 21

1 Amici were involved in bringing an NSA bulk-collection program focused on internet metadata

2 to an end. See Wyden–Udall Bulk Email Release (“[W]e spent a significant portion of 2011

3 pressing intelligence officials to provide evidence of [the program’s] effectiveness. They were

4 unable to do so, and the program was shut down that year.”). Recent disclosures have produced

5 even more reasons to heed Amici’s words of caution. For example, one document released

6 through a Freedom of Information Act lawsuit publicly revealed that the executive branch has

7 interpreted its authority under Section 215 to allow the collection of information about

8 Americans’ locations. See Letter from [Redacted], Attorney, Office of General Counsel, NSA, to

9 SSCI at 1 (Apr. 1, 2011), http://1.usa.gov/1gWqiy0. And FISC opinions continue to refer to still-

10 undisclosed “secret law” interpreting crucial statutory terms in FISA related to bulk collection as

11 well as addressing the compatibility of bulk collection with the Fourth Amendment. See In re

12 Production of Tangible Things, 2013 WL 5741573, at *6 (FISC “has previously examined the

13 issue of relevance for bulk collections. See [Redacted].”).

14

Amici have long warned that Americans would be “stunned,” “angry,” and “alarmed” if

15 they were to see the government’s secret interpretation of Section 215. 157 Cong. Rec. S3386,

16 3389 (daily ed. May 26, 2011) (statements of Sen. Wyden & Sen. Udall). The disclosures to date

17 about the NSA’s activities have been significant, and they will surely be transformative.14 But

18 the government’s claimed authorities are vast, and the Court should treat with skepticism the

19 argument that the unique characteristics of call records cabin the government’s use of the statute.

20

CONCLUSION

21

Accordingly, the Court should grant Plaintiffs’ motion for partial summary judgment.

22

14 See Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping,

23

Dragnet-collection, and On-line Monitoring Act, S. 1599 / H.R. 3361, 113th Cong. (2013); Intelligence Oversight and Surveillance Reform Act, S. 1551, 113th Cong. (2013).

24
First Unitarian Church of Los Angeles et al. v. National Security Agency et al., Case No. 3: 13-cv-03287 JSW BRIEF OF AMICI WYDEN, UDALL & HEINRICH IN SUPP. OF PLS.’ MOT. FOR PARTIAL S.J. Page 15

Case3:13-cv-03287-JSW Document63-2 Filed11/18/13 Page21 of 21

1 Dated: November 18, 2013

Respectfully Submitted,

2

By: /s/ Julia Harumi Mass 3

Julia Harumi Mass (CA SBN 189649)

4

Nicole A. Ozer (CA SBN 228643)

Matthew T. Cagle (CA SBN 286101)

5

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN

6

CALIFORNIA

39 Drumm Street

7

San Francisco, California 94111

Telephone: (415) 621-2493

8

Facsimile: (415) 255-8437

9

Alex Abdo

Brett Max Kaufman

10

Patrick Toomey

Jameel Jaffer

11

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

12

125 Broad Street, 18th Floor

New York, New York 10004

13

Telephone: (212) 549-2500

Facsimile: (212) 549-2654

14

15

Attorneys for Amici Curiae

Senator Ron Wyden,

16

Senator Mark Udall, &

Senator Martin Heinrich

17

18

19

20

21

22

23

24
First Unitarian Church of Los Angeles et al. v. National Security Agency et al., Case No. 3: 13-cv-03287 JSW BRIEF OF AMICI WYDEN, UDALL & HEINRICH IN SUPP. OF PLS.’ MOT. FOR PARTIAL S.J. Page 16

 
 Case3:13-cv-03287-JSW Document24 Filed11/06/13 Page1 of 32

1 CINDY COHN (SBN 145997)

cindy@eff.org 2 LEE TIEN (SBN 148216)

3

KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423)

4 MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107)
5 JAMES S. TYRE (SBN 083117)
ELECTRONIC FRONTIER FOUNDATION 6 815 Eddy Street
7 San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993

8 THOMAS E. MOORE III (SBN 115107)
9 tmoore@rroyselaw.com

ROYSE LAW FIRM, PC 10 1717 Embarcadero Road

11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777

12 Attorneys for Plaintiffs
13

RACHAEL E. MENY (SBN 178514) rmeny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Tel.: (510) 289-1626

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, et al.,

19

Plaintiffs,

20

v.

21 NATIONAL SECURITY AGENCY, et al.,
22 Defendants.
23

24

25

Cas)e No: 3:13-cv-03287 JSW
) PL)AINTIFFS’ MOTION FOR PA)RTIAL SUMMARY JUDGMENT TH)AT THE TELEPHONE RECORDS PR)OGRAM IS UNLAWFUL UNDER SE)CTION 215 OF THE PATRIOT AC)T AND THE FIRST AM) ENDMENT
) Da)te: February 7, 2014 Tim) e: 9:00 a.m. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor

26

27

28

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Case3:13-cv-03287-JSW Document24 Filed11/06/13 Page2 of 32

1 2 I.	   3 II.	   4 5 6
III.	   7 8 IV.	   9 10 11 12 13 14 15 16 17 18 19 20
V.	   21 22 23 24 25 26 27 28

TABLE OF CONTENTS
INTRODUCTION ............................................................................................................... 1
STATEMENT OF FACTS AND STATUTORY BACKGROUND .................................. 3
A.	   The Mass Collection of Call Detail Records. ..........................................................3
B.	   History and Evolution of the Mass Collection of Call Records Program. ..............5
ISSUES FOR DECISION ................................................................................................... 5
THE MASS COLLECTION OF ELECTRONIC TELEPHONE CALL DETAIL RECORDS IS NOT LAWFULLY AUTHORIZED BY SECTION 215............................6
A.	   The Mass Collection of Telephone Call Detail Records Is Well Beyond the Limits of Relevance. .......................................................................................... 6
1.	   The Mass Collection Is Not Limited to Things “Relevant to an Authorized Investigation.”...........................................................................7
2.	   The Mass Collection Exceeds the Bounds of What Can Be Obtained with a Grand Jury Subpoena Duces Tecum. ................................ 9
B.	   Because the SCA Describes an Exhaustive Set of Circumstances Under Which a Telephone Service Provider May Produce its Customers’ Telephone Records, Section 215 Does Not Authorize the Production of Such Records. ........................................................................................................ 12
C.	   The Present and Future Electronic Telephonic Data that the Government Collects is Not a “Tangible Thing” Within the Meaning of Section 215..............13
D.	   Congress Did Not Ratify the Government’s Interpretation of Section 215 When Congress Extended the PATRIOT Act. ...................................................... 15
THE MASS COLLECTION OF AMERICAN'S PUBLIC TELEPHONE RECORDS IS UNCONSTITUTIONAL BECAUSE THE GOVERNMENT MUST USE THE LEAST RESTRICTIVE MEANS AVAILABLE SO AS NOT TO INFRINGE PLAINTIFFS’ FIRST AMENDMENT ASSOCIATIONAL RIGHTS ............................................................................................................................. 17
A.	   Governmental Surveillance that Reveals Individuals’ Affiliations in Political and Social Organizations Is Subject to Exacting Constitutional Scrutiny.................................................................................................................. 18
B.	   The Mass Collection of Telephone Call Records Infringes Plaintiffs’ Associational Rights Under the First Amendment. ............................................... 20
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Case3:13-cv-03287-JSW Document24 Filed11/06/13 Page3 of 32

1 2
VI.	   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

C. The Mass Collection Program Is Not Carefully Tailored to Avoid Unnecessary Interference with Plaintiffs’ Associational Rights. .......................... 24
CONCLUSION ................................................................................................................. 25
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1

TABLE OF AUTHORITIES

2

FEDERAL CASES

3 Albemarle Paper Co. v. Moody,

4

422 U.S. 405 (1975) ..........................................................................................................16

5 Am. Commc’ns Ass’n v. Douds, 339 U.S. 382 (1950) ..........................................................................................................18
6

Barnhardt v. Peabody Coal Co.,

7

537 U.S. 149 (2003) ..........................................................................................................15

8 Brock v. Local 375, Plumbers Int’l Union of America,

9

860 F.2d 346 (9th Cir. 1988) .......................................................................................18, 20

10 Buckley v. Valeo,

11

424 U.S. 1 (1976) ..............................................................................................................20

12 Butterbaugh v. Dep’t of Justice, 336 F.3d 1332 (Fed. Cir. 2003) .........................................................................................15

13

Cal. Pro-Life Council, Inc. v. Getman,

14

328 F.3d 1088 (9th Cir. 2003) .....................................................................................18, 20

15 Carrillo Huettel, LLP v.SEC,

16

2011 WL 601369 (S.D. Cal. Feb. 11, 2011)......................................................................11

17 Dolan v. Postal Service, 546 U.S. 481 (2006) ..........................................................................................................13
18

19

Dole v. Local Union 375, Plumbers Int’l Union of Am., 921 F.2d 969 (9th Cir. 1990) .......................................................................................20, 24

20

FEC v. Hall-Tyner Election Campaign Committee,

21

678 F. 2d 416 (2d Cir. 1982) .............................................................................................23

22 FTC v. Am. Tobacco Co.,

23

264 U.S. 298 (1924) ............................................................................................................7

24 FTC v. Invention Submission Corp., 965 F.2d 1086 (D.C. Cir. 1992).........................................................................................11
25

Forest Grove Sch. Dist. v. T.A.,

26

557 U.S. 230 (2009) ..........................................................................................................16

27 Gibson v. Fla. Legislative Investigation Comm.,

28

372 U.S. 539 (1963) ..........................................................................................................19

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1 Goshawk Dedicated Ltd. v. Am. Viatical Services, LLC,
2007 WL 3492762 (N.D. Ga. Nov. 5, 2007) .....................................................................12 2

3

Hale v. Henkel, 201 U.S. 43 (1906) ..................................................................................................9, 10, 11

4 In re Corrado Bros. Inc.,

5

367 F. Supp. 1126 (D. Del. 1973) .....................................................................................10

6 In re Grand Jury Investigation,

7

174 F. Supp. 393 (S.D.N.Y. 1959) ....................................................................................10

8 In re Grand Jury Proceedings, 827 F.2d 301 (8th Cir. 1987) .............................................................................................11

9

In re Grand Jury Subpoena,

10

846 F. Supp. 11 (S.D.N.Y. 1994) ................................................................................10, 11

11 In re Horowitz,

12

482 F.2d 72 (2d Cir. 1973) ..........................................................................................10, 11

13 In re Subpoena Duces Tecum, 228 F.3d 341 (4th Cir. 2000) .............................................................................................11
14

15 Jama v. Immigration and Customs Enforcement, 543 U.S. 335 (2005) ....................................................................................................15, 16

16

Kasten v. Saint-Gobain Performance Plastics Corp.,

17

131 S. Ct. 1325 (2011).......................................................................................................13

18 Kusper v. Pontikes,

19

414 U.S. 51 (1973) ............................................................................................................18

20 Long Island Care at Home, Ltd. v. Coke,
551 U.S. 158 (2007) ..........................................................................................................13 21

22

Lorillard v. Pons, 434 U.S. 575 (1978) ..........................................................................................................16

23 McMann v. SEC,

24

87 F.2d 377 (2d Cir. 1937) ..................................................................................................8

25 Medtronic Sofamar Danek, Inc. v. Michelson,

26

229 F.R.D. 550 (W.D. Tenn. 2003)...................................................................................12

27 NAACP v. Alabama, 357 U.S. 449 (1958) ....................................................................................................18, 19
28
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1 Nat’l Labor Rel. Bd. v. Gullett Gin Co.,
340 U.S. 361 (1951) ..........................................................................................................15 2

3

Perry v. Schwarzenegger, 591 F.3d 1126 (9th Cir. 2009) .........................................................................18, 19, 20, 24

4 Roberts v. United States Jaycees,

5

468 U.S. 609 (1984) ..........................................................................................................18

6 SEC v. Sloan,

7

436 U.S. 103 (1978) ..........................................................................................................17

8 Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) .............................................................................................13

9

Schwimmer v. United States,

10

232 F.2d 855 (8th Cir. 1956) .......................................................................................10, 11

11 Shelton v. Tucker,

12

364 U.S. 479 (1960) ....................................................................................................24, 25

13 Socialist Workers Party v. Attorney General, 510 F.2d 253 (2d Cir. 1974) ..............................................................................................19
14

15 United States v. Calandra, 414 U.S. 338 (1974) ............................................................................................................9

16

United States v. Hill,

17

459 F.3d 966 (9th Cir. 2006) .............................................................................................11

18 United States v. Jones,

19

132 S. Ct. 945 (2012).........................................................................................................24

20 United States v. Powell,
379 U.S. 48 (1964) ............................................................................................................15 21

22

United States v. R. Enterprises, Inc., 498 U.S. 292 (1991) ............................................................................................................9

23 United States v. Upham,

24

168 F.3d 532 (1st Cir. 1999)..............................................................................................12

25 Wall v. Kholi,

26

131 S. Ct. 1278 (2011).......................................................................................................13

27 Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975).....................................................................................19, 23
28
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1

FEDERAL STATUTES

2 18 U.S.C. § 2701 .............................................................................................................................2
3 18 U.S.C. § 2702 .................................................................................................................2, 12, 13 4
18 U.S.C. § 2703 .................................................................................................................2, 12, 13 5
18 U.S.C. § 2709 .................................................................................................................2, 12, 13 6 7 18 U.S.C. § 3127 .....................................................................................................................14, 15
8 50 U.S.C. § 1861 ....................................................................................................................passim

9

CONSTITUTIONAL PROVISIONS

10 U.S. Const. amend. I...............................................................................................................passim

11 U.S. Const. amend. IV...........................................................................................................3, 7, 23

12 U.S. Const. amend. V ......................................................................................................................3
13
U.S. Const. amend. XIV ................................................................................................................18 14

15

OTHER AUTHORITIES

16 Black’s Law Dictionary (5th ed. 1979) ..........................................................................................14

17 The Random House Dictionary of the English Language (unabridged ed. 1966).........................14

18 Verizon Communications, Fact Sheet .............................................................................................7 19

20

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 February 7, 2014 at 9:00 a.m. in Courtroom 11, 19th Floor,

3 United States District Court, 450 Golden Gate Ave., San Francisco, CA, plaintiffs will move for

4 partial summary judgment holding that the National Security Agency’s (“NSA’s”) and Federal

5 Bureau of Investigation’s (“FBI’s”) program involving the mass collection of the telephone records

6 of plaintiffs as well as of millions of other American telephone users was not lawfully authorized

7 under section 215 of the USA PATRIOT Act (“PATRIOT Act”), 50 U.S.C. § 1861, and violates

8 plaintiffs’ First Amendment right of association. Plaintiffs’ motion is based on the accompanying

9 memorandum, the declaration of Thomas E. Moore III, the declarations of the plaintiffs, the filings

10 and pleadings of record in this action and the argument and evidence presented at the hearing on this

11 motion.

12

By this motion, plaintiffs seek a determination that defendants are liable to them on Counts I

13 and IV of the First Amended Complaint (Dkt. No. 9), and a declaration that the government’s

14 program is illegal.

15

MEMORANDUM OF POINTS AND AUTHORITIES

16 I. INTRODUCTION

17

The United States government collects the call detail records of every telephone call made

18 within the United States, thereby accumulating a massive database of information about the

19 communications of every single person and organization in the country. This practice is not only

20 historically unprecedented in scope, it is illegal. The program is not authorized by the statute that the

21 government relies upon, and it violates the freedom of association guaranteed by the First

22 Amendment.

23

The government operated its mass collection program in secret and without seeking judicial

24 approval for the first four years of its existence. The government initiated the program in late 2001.

25 In May 2006, the government apparently persuaded the Foreign Intelligence Surveillance Court

26 (“FISC”) in an ex parte proceeding to accede to a theory that the program was authorized by

27 section 215 of the PATRIOT Act (50 U.S.C. § 1861). The program has continued over the last

28 seven years under a series of FISC orders.
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1

Section 215 of the PATRIOT Act, the business records provision of the Act, was not

2 intended to permit the mass collection of the American public’s telephone records and does not

3 authorize the government’s mass surveillance program. The government’s PATRIOT Act argument

4 (and the FISC’s acceptance of it) is wrong for three reasons:

5

First, section 215 requires the things collected to be “relevant to an authorized investigation,”

6 but the mass collection of all telephone calling records and retention of those records for a period of

7 five years is outside the scope of any notion of relevance. The government admits that the vast

8 majority of the phone records it collects have nothing whatsoever to do with terrorism.

9

Second, section 215 is a general statute and is, therefore, superseded in relevant part by the

10 more specific Stored Communications Act, 18 U.S.C. § 2701, et seq. (“SCA”). Section 2702 and

11 2703 of the SCA specifically apply to telephone records and list the exclusive means for the

12 government to obtain such records from telephone service providers. Sections 2702 and 2703 of the

13 SCA do not authorize the government to obtain records through section 215 of the PATRIOT Act.

14 Section 2709 of the SCA, however, expressly authorizes the FBI to obtain call records using national

15 security letters, but does not allow mass collection.

16

Third, section 215 applies only to the production of “tangible things.” The words “tangible

17 things” has a plain meaning: corporeal things, that is, things that can be felt or touched. The

18 electronic telephone data that the government collects on an ongoing basis is an intangible thing.

19

Independently, the mass call detail records collection program violates the First Amendment.

20 First Amendment rights of freedom of association are burdened when the government seeks to

21 collect the identities of the participants in an expressive association and the fact of communications

22 among them. In such situations, the government must use the least restrictive means available to

23 collect the information it needs so as to minimize the impact on the associational liberty. The

24 government’s mass suspicionless collection of information cannot satisfy this test.

25

Plaintiffs are religious, social, and political associations who, from time to time, take

26 dissenting positions on social and political issues. These groups rely on their ability to communicate

27 with their members outside of the government’s gaze, and deeply value their ability to assure those

28 who seek to communicate with them that the fact of their communication will not be shared with the
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1 government. However, because their communications with their own members and with other

2 groups are reflected within the electronic telephone records that the government has collected from

3 various telephone service providers on an ongoing basis over more than a decade, plaintiffs can no

4 longer guarantee the confidentiality of their associations.

5

The fact of the government’s mass collection program has now been openly acknowledged.

6 It is undisputed that that the program collects and stores the data of hundreds of millions of non-

7 suspect persons and organizations without any attempt to narrow the collection on the basis of actual

8 suspicious behavior. The illegality of the program under both section 215 and the First Amendment 9 may thus be resolved on summary judgment.1 And it must be resolved in plaintiffs’ favor.

10 II. STATEMENT OF FACTS AND STATUTORY BACKGROUND

11

A. The Mass Collection of Call Detail Records.

12

Since approximately October 2001 the NSA has secretly been collecting the telephone

13 records of millions of innocent Americans. (Declaration of Thomas E. Moore III (“Moore Decl.”)

14 Ex. D, pp. 7, 11, 13). As described further below, the government appears to have shifted its internal

15 legal theories in support of the mass collection over time, starting with a theory rooted primarily in

16 inherent Executive power.

17

The current theory, based on section 215 of the PATRIOT Act, was first approved by the

18 FISC in secret in May 2006. In relevant part, section 215 allows the FBI to apply to the FISC for an

19 Order:

20

requiring the production of any tangible things (including books, records, papers,

documents, and other items) for an investigation to obtain foreign intelligence

21

information

22 50 U.S.C. § 1861(a)(1), upon presenting:

23

a statement of facts showing that there are reasonable grounds to believe that the

24

tangible things sought are relevant to an authorized investigation . . . to obtain

foreign intelligence information not concerning a United States person or to protect

25

against international terrorism or clandestine intelligence activities, . . .

26 1 The plaintiffs’ complaint also contains counts based on the Fourth and Fifth Amendments as well
27 as for the return of property. Plaintiffs do not at this time seek summary judgment on those causes of action and reserve the right to seek adjudication of those claims at a later time.
28
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1 50 U.S.C. § 1861(b)(2)(A). The statute also contains the following proviso, that the Order:

2

may only require the production of a tangible thing if such thing can be obtained with

a subpoena duces tecum issued by a court of the United States in aid of a grand jury

3

investigation or with any other order issued by a court of the United States directing

the production of records or tangible things . . . 4

5 50 U.S.C. § 1861(c)(2)(D).

6

The government’s interpretation of section 215 as allowing the mass collection of telephone

7 records has never been subjected to the test of any adversarial litigation. No telephone service

8 provider has ever challenged a FISC order for the production of such records. (Moore Decl. Ex. L,

9 pp. 15-16).

10

The program sweeps in all call detail records for telephone calls wholly within the United

11 States and between the United States and other countries. The program’s wide swath was described

12 in a recently revealed order of the FISC that compelled Verizon to:

13

produce to the [NSA] . . . and continue production on an ongoing daily basis

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

14

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

metadata’ created by Verizon for communications (i) between the United States

15

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

calls . . . .Telephony metadata includes comprehensive communications routing

16

information, including but not limited to session identifying information (e.g.,

17

originating and terminating telephone number, International Mobile Subscriber

Identity (IMSI) number, International Mobile station Equipment Identity (IMEI)

18

number, etc.), trunk identifier, telephone calling card numbers, and time and duration

of call.

19

(Moore Decl. Ex. H, pp. 1-2) (emphasis added). 20

The government subsequently released a redacted version of a “primary order,” which 21

apparently was the legal authority for the Verizon order, which is a “secondary order.” (Moore Decl. 22

Ex. G). The primary order found that the government’s application had complied with section 215 23

of the PATRIOT Act and set out some of the characteristics of the program. Among other things, 24

the primary order authorized the NSA to conduct searches of its call detail database based on 25

selection terms (i.e., telephone numbers linked to terrorism) that certain officials might approve from 26

time to time during effective dates of the order. (Moore Decl. Ex. G, pp. 6-9). The primary order 27

28
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1 authorized the NSA to retain all call-detail data for five years. (Moore Decl. Ex. G, p. 14). The

2 FISC renewed the primary order most recently on October 11, 2013. (Moore Decl. Ex. N).

3

B. History and Evolution of the Mass Collection of Call Records Program.

4

The mass collection of telephone records originated in October 2001 as part of the

5 “President’s Surveillance Program” (“PSP”), which was the name given to a number of intelligence

6 activities begun by the NSA at the Executive’s request premised on secret Executive branch internal

7 legal opinions that asserted that President had the power to override the limitations of FISA. (Moore

8 Decl. Ex. E, pp. 5-7, 10-15, 29-30). Neither the President, the Justice Department, the NSA, nor any

9 other agency applied to the FISC for the authority to engage in the PSP. (Moore Decl. Ex. E, pp. 30-

10 31).

11

The government continued this secret mass surveillance, including the bulk collection of

12 telephone records, without court approval until details of the PSP started to become public. In

13 December 2005, The New York Times revealed that the NSA was engaging in electronic surveillance

14 of the American public without judicial approval. (Moore Decl. Ex. A). In May 2006, USA Today

15 confirmed that the NSA had been collecting the telephone records of ordinary Americans directly

16 from telecommunications companies, and several Members of Congress further confirmed the

17 program. (Moore Decl. Ex. B).

18

That same month, May 2006, the government first applied to the FISC for the formal

19 authority to collect the telephone records of both international-to-domestic telephone calls and

20 domestic-to-domestic telephone calls of Americans. (Moore Decl. Ex. M, p. 16 n. 14). The FISC

21 then issued a series of orders granting the government’s request, which remained largely hidden

22 from the American public until June 2013, when the Verizon secondary order came to light. (Moore

23 Decl. Ex. I).

24 III. ISSUES FOR DECISION

25

1. Whether the mass collection of presently existing and future telephone records of

26 hundreds of millions of non-suspect Americans is authorized by section 215 of the PATRIOT Act.

27

2. Whether the mass collection of presently existing and future telephone records of

28 hundreds of millions of non-suspect Americans violates the First Amendment right to freedom of
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1 association.

2 IV. 3 4

THE MASS COLLECTION OF ELECTRONIC TELEPHONE CALL DETAIL RECORDS IS NOT LAWFULLY AUTHORIZED BY SECTION 215
A. The Mass Collection of Telephone Call Detail Records Is Well Beyond the Limits of Relevance.

5

Section 215 does not expressly state that it authorizes mass collection of telephone records.

6 It does not use the terms “bulk” or “mass” collection or otherwise suggest that the government may

7 obtain “all” of a telephone service provider’s calling records. Such words would have made the

8 Congressional intent clear and the statutory language plain. Any such words also would have

9 sparked an actual public discussion of the advisability of mass collection of innocent Americans’

10 telephone records at the time the law was enacted and likely again when it was reauthorized. The

11 fact that no such discussion occurred, and indeed is loudly and prominently occurring now,

12 demonstrates that the language of the statute does not even hint at the possibility of imposing a mass

13 collection program on the American public.

14

Lacking an express Congressional authorization, the government has attempted to squeeze its

15 massive program of telephone records collection into an interpretation of the text of section 215. To

16 do so, it must first demonstrate that the program is within the statutory limits of “relevance.” Yet the

17 mass collection of all telephone call detail records is well beyond any conception of “relevance” and

18 the text of section 215 cannot be so contorted.

19

The text of section 215 sets out two express standards for the relevance of the tangible things

20 collected, neither of which authorizes the government to seize the telephone records of hundreds of

21 millions of Americans and American organizations when only a miniscule number of those records

22 will actually have any connection with international terrorism. First, any application for an order

23 must contain “a statement of facts showing that there are reasonable grounds to believe that the

24 tangible things sought are relevant to an authorized investigation (other than a threat assessment).”

25 50 U.S.C. § 1861(b)(2)(A). Second, any order compelling such production “may only require the

26 production of a tangible thing if such thing can be obtained with a subpoena duces tecum issued by a

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

28

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1 court of the United States directing the production of records or tangible things.” 50 U.S.C.

2 § 1861(c)(2)(D). This second standard creates an outer boundary tied to another form of

3 investigatory process with established limits. The first standard further narrows the universe of

4 permissible requests, describing how the “tangible thing” must relate to an existing investigation.

5

The limiting language of section 215 is consistent with our legal system’s well-established

6 abhorrence of “fishing expeditions” in which the government has unbounded and ad hoc

7 investigative powers. As Justice Oliver Wendell Holmes, Jr. remarked in 1924:

8

Anyone who respects the spirit as well as the letter of the Fourth Amendment would

be loath to believe that Congress intended to authorize one of its subordinate

9

agencies to sweep all our traditions into the fire . . ., and to direct fishing expeditions

10

into private papers on the possibility that they may disclose evidence of crime. We do not discuss the question whether it could do so if it tried, as nothing short of the

11

most explicit language would induce us to attribute to Congress that intent. . . . .

It is contrary to the first principles of justice to allow a search through all the

12

respondents' records, relevant or irrelevant, in the hope that something will

turn up. 13

FTC v. Am. Tobacco Co., 264 U.S. 298, 305-06 (1924) (emphasis added). 14

1. The Mass Collection Is Not Limited to Things “Relevant to an

15

Authorized Investigation.”

16

Only an infinitesimal fraction of the telephone records collected has any bearing on an

17 investigation into international terrorism. The government admits as much: “The vast majority of

18 the telephony metadata is never seen by any person because it is not responsive to the limited queries

19 that are authorized.” (Moore Decl. Ex. K, pp. 4, 15). The FISC similarly found that “nearly all of the

20 call detail records collected pertain to communications of non-U.S. persons who are not the subject

21 of an FBI investigation to obtain foreign intelligence information, are communications of U.S.

22 persons who are not the subject of an FBI investigation to protect against international terrorism or

23 clandestine intelligence activities, and are data that otherwise could not be legally captured in bulk

24 by the government.” (Moore Decl. Ex. C, p.12) (emphasis in original)). The amount of call data

25 collected is staggering: Verizon professes to carry an average of one billion residential and small

26

27

28
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1 business calls day.2 With 1,826 days in a typical five-year period, the government collects and stores

2 call data on well over a trillion calls from Verizon alone. The amount of call data that is actually

3 queried is microscopic in comparison: In 2012, fewer than 300 unique telephone numbers related to

4 terrorism were used to query the data. (Moore Decl. Ex. J).

5

Section 215 provides what things can be “sought” by or “produced” to the government and

6 requires the finding of relevance at that juncture. But by design, the government’s general

7 collection of all records makes no distinction between relevant and irrelevant records at the time of

8 production. Instead, it seeks all information without regard to its relationship to an authorized

9 investigation. Since the statute’s “relevance” limitations apply at the time of production of tangible 10 things, they are not met here. 3

11

Compulsory process is unreasonable whenever “it is out of proportion to the end sought, as

12 when the person served is required to fetch all his books at once to an exploratory investigation

13 whose purposes and limits can be determined only as it proceeds.” McMann v. SEC, 87 F.2d 377,

14 379 (2d Cir. 1937) (Hand, J.). The government’s mass collection of a vast amount of call data is the

15 very paradigm of such an unlimited “exploratory investigation.”

16

The government contends that the mass collection of call data permits the effective use of

17 analytical tools to detect contacts between foreign terrorists and potentially unknown associates

18 within the United States. Absent a historical aggregation of telephone records in bulk – so the

19

20 2 Verizon Communications, Fact Sheet (http://newscenter2.verizon.com/kit/vcorp/factsheet.html). 21 3 The FISC reauthorization Order of August 2013 indirectly addresses the “relevance” problem by
treating the NSA as a kind of relevance screen prior to handing the information over to the FBI. The 22 Order actually requires production in the first instance not to the FBI, as the statute provides, but to
the NSA. It then forbids production to the FBI absent minimization, which is intended to exclude 23 irrelevant information (Moore Decl. Ex. L, p. 13). The court even stated that “no Orders for
production would issue from this Court” without such minimization. (Moore Decl. Ex. L, p. 23). 24 Thus the FISC appears to acknowledge that the initial production of all records includes vast 25 amounts of irrelevant information, which is why it cannot go to the FBI first, but then relies on the
minimization procedures by the NSA to remove the irrelevant information from what gets 26 “produced” to the FBI, the named authority under the statute. But nothing in the statute authorizes
this “relevance” screening by the NSA, much less authorizes the NSA to collect irrelevant data. 27 Congress authorized only the FBI to use section 215, and if the FBI cannot use it here, the NSA
certainly cannot. 28
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1 argument goes – it might not be feasible to identify all of the connections between terrorists across

2 different providers’ networks. (Moore Decl. Ex. K, p. 3). The government’s argument is a

3 rationalization for ignoring the relevance requirements of section 215, not an argument for being in

4 compliance with them. In addition to improperly shifting the question of relevance to post-collection

5 queries, the argument also seeks to tie the breadth of “relevance” to the government’s use of

6 sophisticated analytical tools. The plaintiffs are unaware of any precedent that supports such an

7 idea, and nothing in the text of section 215 can be used to attribute to Congress that intent. More

8 importantly, if technological developments in analytical tools could expand the definition of the

9 concept of “relevance” to embrace increasingly massive amounts of data, then the limits of

10 “relevance” would become illusory, or at least would be shifting ever-outward based upon the

11 (largely secret) expanding universe of the government’s capabilities of collection and analysis.

12

The government’s argument also fails because section 215 requires a showing that the

13 tangible things sought “are relevant to an authorized investigation” not to non-specific, potential

14 future investigations, or to broad investigative goals. Both “are” and “an authorized investigation”

15 are in the present tense. Thus, the required showing is of relevance to an existing investigation at the

16 time of application. Congress could have used other words to include future investigations, but it did

17 not.

18

2. The Mass Collection Exceeds the Bounds of What Can Be Obtained

with a Grand Jury Subpoena Duces Tecum. 19

Section 215 also limits “relevance” by keying the term to grand jury subpoenas duces tecum; 20

the government may seek only those records that could be obtained through this form of compulsory 21

process. The breadth of a subpoena duces tecum cannot be unlimited: “A grand jury’s subpoena 22

duces tecum will be disallowed if it is ‘far too sweeping in its terms to be regarded as reasonable’ 23

under the Fourth Amendment.” United States v. Calandra, 414 U.S. 338, 346 (1974) (quoting Hale 24

v. Henkel, 201 U.S. 43, 76 (1906)); See United States v. R. Enterprises, Inc., 498 U.S. 292, 299 25

(1991) (“The investigatory powers of the grand jury are nevertheless not unlimited.”). 26

Grand jury subpoenas duces tecum seeking the entirety of a person’s documents are 27

improper. Rather, they must be limited to specific, relevant categories of documents. In Hale v. 28

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1 Henkel, the Supreme Court quashed a grand jury subpoena precisely because the documents to be

2 produced constituted virtually all of the writings in the subpoenaed party’s possession: “If the writ

3 had required the production of all the books, papers, and documents found in the office of

4 MacAndrews & Forbes Company, it would scarcely be more universal in its operation or more

5 completely put a stop to the business of that company.” Hale, 201 U.S. at 76.

6

In Schwimmer v. United States, 232 F.2d 855 (8th Cir. 1956), the Eighth Circuit quashed a

7 subpoena seeking the entirety of a lawyer’s files. In so doing, the court noted the following:

8

Ordinarily, as a matter of both extrinsic and intrinsic aspect, the compelled

production before a grand jury of all of one’s books and papers en masse, where they

9

constitute a substantial body, a variety of accumulation, or an extensive-period

10

product, and the subpoena is without indication or limitation of any nature as to class of persons, or type of transaction, or extent of period, to which the production is

11

intended to be related, will judicially impress as not constituting a reasonable search

and seizure.

12

Id. at 861.

13

In In re Horowitz, 482 F.2d 72 (2d Cir. 1973) (Friendly, J.), the Second Circuit modified a

14

grand jury subpoena duces tecum on the grounds that it was overbroad. The subpoena required the

15

production of three file cabinets belonging to the accountant of the target of a grand jury

16

investigation. The file cabinets contained hundreds of files. The Second Circuit held that such an

17

approach was flawed: “What is more troubling is the matter of relevance. The subpoena requires

18

production of all documents contained in the files, without any attempt to define classes of

19

potentially relevant documents or any limitations as to subject matter or time period.” Id. at 79.

20

This theme that “subpoenas properly are interpreted as seeking categories of paper

21

documents, not categories of filing cabinets” was resumed twenty years later in In re Grand Jury

22

Subpoena, 846 F. Supp. 11,13 (S.D.N.Y. 1994), in which the court rejected a subpoena duces tecum

23

directing the production of the central processing units (including hard disk drives) within multiple

24 computers owned by a corporation.4

25

26 4 District courts that have addressed other grand jury subpoenas duces tecum that have sought all of
27 a person’s documents are in accord. See In re Grand Jury Investigation, 174 F. Supp. 393, 395 (S.D.N.Y. 1959) (“I hold that this subpoena which required production of practically every paper
28
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1

The possibility that some small amount of relevant records might be found in the mass of

2 records subpoenaed did not cure the foregoing grand jury subpoenas of being overbroad. A small

3 proportion of relevant documents were also likely to be found within the business documents in Hale

4 v. Henkel, the lawyer’s files in Schwimmer, the accountant’s files in Horowitz and the hard disk

5 drives in In re Grand Jury Subpoena. The problem with those cases was not that relevant records

6 would not be found; the problem was that the subpoenas sought too much information that would not

7 be relevant. Those cases confirm that the eventuality that relevant information might be contained in

8 a much larger collection of information does not justify the production of the entire collection of

9 information.

10

The farthest limits of a subpoena duces tecum were perhaps reached in In re Grand Jury

11 Proceedings, 827 F.2d 301 (8th Cir. 1987). In that case, the government had learned that drug

12 traffickers were using wire transfers from a certain Western Union office in Kansas City, Missouri,

13 to pay for drugs, so the government served a subpoena on Western Union requiring it to produce

14 wire money transfer information of transfers of over $1,000. But the scope of that subpoena was

15 affirmed on appeal only because the records were sought from a single Western Union office for a

16 relatively short period of time as part of a grand jury investigation into drug dealing in the Kansas

17 City area. Id. at 304. The case certainly does not stand for the proposition that the records of a

18 trillion individual telephone calls made by all Americans can be collected and stored for up to five 19 years.5

20

21 outside of routine correspondence relating to every phase of the corporation’s affairs, in an unlimited

22 exploratory investigation as is here frankly proposed, ‘whose purposes and limits can be determined

only as it proceeds,’ is unreasonable.”); In re Corrado Bros. Inc., 367 F. Supp. 1126, 1131 (D. Del.

23 1973) (“[The government’s] reasoning carried to its logical extreme, places no limits on the scope of

materials subject to grand jury investigation. No document no matter how remote from the nature of 24 an investigation would be spared seizure on the basis that it might possibly contain important

25

information.”) 5 Some cases have affirmed broad subpoenas, but only where, unlike here, the party producing the

26 large volume of records was itself the target of an investigation or a party to an action. See In re

Subpoena Duces Tecum, 228 F.3d 341, 350-51 (4th Cir. 2000) (physician compelled to comply with

27 subpoena to produce patient files as part of investigation into allegations against the physician for

health care fraud); FTC v. Invention Submission Corp., 965 F.2d 1086, 1089-90 (D.C. Cir. 1992) 28

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1

B. Because the SCA Describes an Exhaustive Set of Circumstances Under

Which a Telephone Service Provider May Produce its Customers’ Telephone

2

Records, Section 215 Does Not Authorize the Production of Such Records.

3

Independent of the relevance limitations, Congress did not contemplate that section 215

4 could be used to authorize the mass collection of telephone records because it specified in the Stored

5 Communications Act (SCA) the methods for obtaining telephone records from telephone service

6 providers. Those methods are exhaustive and exclusive. They do not include section 215.

7

Section 2703(c)(1)(A) through (E) of the SCA comprises the exhaustive set of methods by

8 which the government may compel a telephone service provider to produce the telephone records of

9 its customers. See 18 U.S.C. § 2703(c)(1) (“A governmental entity may require a provider of

10 electronic communication service or remote computing service to disclose a record or other

11 information pertaining to a subscriber to or customer of such service (not including the contents of

12 communications) only when the governmental entity” complies with subsections (A) through (E)).

13 An order under section 215 for the production of telephone records to the government is not listed

14 among those methods. The SCA otherwise prohibits a telephone service provider from “knowingly

15 divulge[ing] a record or other information pertaining to a subscriber or customer . . . to any

16 governmental entity.” See 18 U.S.C. § 2702(a)(3). Moreover, the SCA expressly grants the FBI

17

18 (company being investigated for false advertising of its business of promoting other people’s
19 inventions compelled to produce financial data and names of clients, advertisers and data bank participants); United States v. Hill, 459 F.3d 966, 975-6 (9th Cir. 2006) (upholding a search warrant
20 for the seizure of a suspect’s computer and storage media so as to search for child pornography at 21 police laboratory, but requiring an affidavit giving a reasonable explanation about why a wholesale
seizure was necessary); Carrillo Huettel, LLP v. SEC, 2011 WL 601369 (S.D. Cal. Feb. 11, 2011) 22 (law firm suspected of securities laws violations was compelled to produce trust account information
for all clients as they might reveal concealed connections among clients); Goshawk Dedicated Ltd. v. 23 Am. Viatical Services, LLC, 2007 WL 3492762 (N.D. Ga. Nov. 5, 2007) (defendant compelled to
produce database with actuarial data where defendant’s representations about actuarial data were at 24 the center of the litigation); United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999) (upholding a 25 search warrant for suspect’s girlfriend’s computer where child pornography images were traced to
that computer and the mechanics of the search for images could not readily have been done on the 26 spot); Medtronic Sofamar Danek, Inc. v. Michelson, 229 F.R.D. 550, 552 (W.D. Tenn. 2003)
(defendant’s backup tapes of emails produced where plaintiff showed that a number of printed 27 emails were directly relevant to the case and that the defendant only printed a small percentage of its
emails). 28
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1 “national security letter” authority to obtain call records for international terrorism or intelligence

2 purposes. 18 U.S.C. § 2709.

3

It is a fundamental rule of statutory construction that statutes that address specific situations

4 govern over those that address general situations. See Long Island Care at Home, Ltd. v. Coke, 551

5 U.S. 158, 170 (2007). Because SCA sections 2702, 2703, and 2709 are specific, referencing specific

6 methods for telephone records, and because PATRIOT Act section 215 is general, referencing

7 tangible business records, the government must use the methods listed in the SCA and not section

8 215 to compel the production of telephone records.

9

C. The Present and Future Electronic Telephonic Data that the Government

Collects Is Not a “Tangible Thing” Within the Meaning of Section 215. 10

Section 215 is ill-suited for the purposes to which the government seeks to put it in yet 11

another way as well: the law allows the government to obtain only an order “requiring the 12

production of tangible things (including books, records, papers, documents, and other items).” 13

(emphasis added). But the telephone call records sought by the NSA are not tangible in two ways: 14

The records exist only as electronic records and, at the time the order is issued, the records do not yet 15

exist at all. 16

Congress deliberately chose the phrase “tangible things.” Congress repeated the phrase no 17

less than thirteen times in section 215. 50 U.S.C. § 1861 (b)(1)(B), (b)(2)(A), (b)(2)(B), (c)(1), 18

(c)(2)(A), (c)(2)(B), (c)(2)(D), (d)(1), (d)(2)(B), (e), (f)(1)(A), (g)(2)(A), (h). Congress clearly 19

intended the phrase to impose a limitation that excludes “intangible things.” 20

When construing a phrase in a statute such as “tangible things,” a court is to give the words 21

used “their ordinary, contemporary, common meaning, absent an indication Congress intended them 22

to bear some other different import.” Wall v. Kholi, 131 S. Ct. 1278, 1283 (2011); Satterfield v. 23

Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009) (A court must “first look to the language 24

of the statue to determine whether it has a plain meaning.”). Any doubts about a plain meaning then 25

turn “upon reading the whole statutory text, considering the purpose and context of the statute, and 26

consulting any precedents and authorities that inform the analysis.” Kasten v. Saint-Gobain 27

28
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1 Performance Plastics Corp., 131 S. Ct. 1325, 1330 (2011) (quoting Dolan v. Postal Service, 546

2 U.S. 481, 486 (2006)).

3

“Tangible things” has a plain meaning. Black’s Law Dictionary defines an equivalent

4 phrase, “tangible property” as “[t]hat which may be felt or touched, and is necessarily corporeal . . .” 5 Black’s Law Dictionary, p. 1306 (5th ed. 1979).6 This plain meaning leaves no doubt that a “tangible

6 thing” must be a presently existing thing. A “tangible thing” cannot encompass electronic data that

7 is generated in the future. Yet, the FISC orders (Moore Decl. Exs. G, H) expressly require telephone

8 service providers to “continue production on an ongoing daily basis thereafter for the duration of this

9 Order” as new electronic telephonic data is created by their customers. Electronic data that does not

10 yet exist is, by its nature, intangible.

11

Even if the order were limited to existing electronic data, the statutory text supports a

12 meaning of “tangible things” as “necessarily corporeal.” Subsection (a)(1) states in a parenthetical

13 that “tangible things” includes “books, records, papers, documents,” each of which have a corporeal

14 form, namely, a writing on paper. Notably, words such as “data,” “computer data” or “electronic

15 data” are absent from the parenthetical. Because electronic data cannot be felt or touched, nor is in

16 any way corporeal, it is not a tangible thing within the meaning of section 215.

17

The limitation of “tangible things” to the corporeal might seem unduly constraining in a

18 computer-centric world, but such a constraint is consistent with the broader context under which

19 Congress enacted the PATRIOT Act. Congress was demonstrably aware of the advent of electronic

20 data reflecting telephonic and electronic communications at the time that it enacted the PATRIOT

21 Act in 2001. Not only does the SCA already cover stored communications records, but Congress

22 also expressly addressed such electronic data in section 216 of the PATRIOT Act, which governs

23 pen registers and trap and trace devices. Section 216 of the PATRIOT Act expanded the definition

24 of “pen register” to mean “a device or process which records or decodes dialing, routing, addressing,

25

26 6 The definition of just the word, “tangible,” in common-usage dictionaries also lists “corporeal” as
27 the dominant meaning of the word “tangible.” See, e.g., The Random House Dictionary of the English Language, p. 1452 (unabridged ed. 1966).
28
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1 or signaling information transmitted by an instrument or facility from which a wire or electronic

2 communication is transmitted . . . .” 18 U.S.C. § 3127(3). A “trap and trace device,” in turn, was

3 defined as “a device or process which captures the incoming electronic or other impulses which

4 identify the originating number or other dialing, routing, addressing, and signaling information

5 reasonably likely to identify the source of a wire or electronic communication.” 18 U.S.C.

6 § 3127(4). Because Congress expressly referenced “electronic . . . impulses” and specific types of

7 telephonic data in section 216, the absence of similar words in section 215 reflects a Congressional

8 intent to exclude such things from the meaning of “tangible things” in section 215. See Barnhardt v.

9 Peabody Coal Co., 537 U.S. 149, 168 (2003) (the inclusion of one thing suggests the exclusion of

10 another).

11

D. Congress Did Not Ratify the Government’s Interpretation of Section 215

When Congress Extended the PATRIOT Act. 12

The government has asserted in its white paper that Congress “legislatively ratified” the 13

government’s sweeping interpretation of section 215, and the FISC has recently adopted that 14

position. (Moore Decl. Exs. K, L, M). Congress purportedly did so by reauthorizing section 215 15

after the mass collection program had been in place for some time but while it was still a secret from 16

much of Congress and virtually all of Congress’ constituents. The government contends that 17

Congress knew about – and ratified – the program because a classified briefing paper was provided 18

to the House and Senate Intelligence Committees and was made available for review by all members 19

of Congress. That classified briefing paper noted that the Government and the FISC had interpreted 20

section 215 to authorize the mass collection of telephone records of the American public. (Moore 21

Decl. Ex. K, p. 17). 22

The government vastly understates the amount of consensus required for a court to find 23

implied Congressional ratification of a statutory interpretation. Implied Congressional ratification is 24

not established merely upon a showing that Congress, or some subset of its members, was on notice 25

about an interpretation of the statute. Rather, ratification will be found only where Congress 26

reenacted a statute without change and where the specific interpretation of the statute was broad and 27

unquestioned. Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 349 (2005); United 28

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1 States v. Powell, 379 U.S. 48, 55 n.13 (1964). The required broad and unquestioned interpretation

2 may be established by evidence that “Congress considered [the interpretation] in great detail,” Nat’l

3 Labor Rel. Bd. v. Gullett Gin Co., 340 U.S. 361, 366 (1951), and specifically evidence of

4 “[e]xtensive hearings, repeated efforts at legislative correction, and public controversy.” Butterbaugh

5 v. Dep’t of Justice, 336 F.3d 1332, 1342 (Fed. Cir. 2003).

6

Alternatively, ratification may be established by a broad unanimity of judicial decisions.

7 This is a demanding standard. In Jama, the Supreme Court declined to find ratification even though

8 Congress reenacted the legislation after two Court of Appeals decisions had adopted the proposed

9 interpretation. Jama, 543 U.S. at 349. In contrast, in Forest Grove Sch. Dist. v. T.A., 557 U.S. 230,

10 239-40 (2009), the Supreme Court found implied ratification only because Congress did not change

11 a statutory provision following the Supreme Court’s own definitive interpretation of that provision.

12 See also Lorillard v. Pons, 434 U.S. 575, 580 (1978) (finding ratification where “every court to

13 consider the issue” had interpreted the statute in the same way); Albemarle Paper Co. v. Moody, 422

14 U.S. 405, 414 n.8 (1975) (finding ratification because “[t]he Court of Appeals that have confronted

15 the issue are unanimous”).

16

In this case, no evidence supports implied ratification. The issue was not debated in

17 Congress, nor, because of the overwhelming secrecy that the government applied to the legal

18 interpretations of FISA, were there public hearings or a public debate. There is no evidence of

19 extensive deliberations or any rejected efforts at legislative correction specific to the mass collection

20 program. And, there was no broad unanimity of judicial decisions precisely because of the secrecy

21 surrounding the FISC’s decisions.

22

In fact, the classified briefing paper on which the government relies was inconsequential in

23 its scope. That five-page brief was made available for members of Congress to read in a secure

24 location for a limited period of time in both 2009 and 2011, when Congress was considering whether

25 to reauthorize section 215 as a whole. (Moore Decl. Ex. K, pp. 17-18). The five-page report was

26 only a brief summary, sorely lacking in detail, and contained only one sentence that hinted at the

27 breadth of the program, as follows: “The orders generally require production of the business records

28 (as described above) relating to substantially all of the telephone calls handled by the companies,
16
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1 including both calls made between the United States and a foreign country and calls made entirely

2 within the United States.” (Moore Decl. Ex. E, p. 3).

3

Even if mere notice to Congress were enough, it would have to be actual notice. The

4 doctrine of implied ratification is subordinate to the fundamental principle that statutory

5 interpretation turns on Congress’ actual intent: as such, ratification requires actual notice, not

6 constructive notice. The doctrine never has been—and never should be—applied in circumstances

7 like these, where the government has kept its interpretation of the law secret and there is no evidence

8 that anything more than a handful of Members of Congress had actual knowledge of the

9 government’s interpretation. See SEC v. Sloan, 436 U.S. 103, 121 (1978) (“We are extremely

10 hesitant to presume general congressional awareness of the Commission's construction [of a statute]

11 based only upon a few isolated statements in the thousands of pages of legislative documents. That

12 language in a Committee Report, without additional indication of more widespread congressional

13 awareness, is simply not sufficient to invoke the presumption in a case such as this.”)

14 V. 15 16

THE MASS COLLECTION OF AMERICAN’S PUBLIC TELEPHONE RECORDS IS UNCONSTITUTIONAL BECAUSE THE GOVERNMENT MUST USE THE LEAST RESTRICTIVE MEANS AVAILABLE SO AS NOT TO INFRINGE PLAINTIFFS’ FIRST AMENDMENT ASSOCIATIONAL RIGHTS

17

Plaintiffs are organizations that gather people together to advance political beliefs. Plaintiff

18 Calguns works to assist California gun owners in exercising their rights. (Declaration of Gene

19 Hoffman, Jr. (“Hoffman Decl.”) ¶ 2.) Plaintiff National Lawyers Guild primarily helps organize

20 lawyers to political ends, as well as providing legal assistance in politically-charged cases.

21 (Declaration of Heidi Boghosian (“Boghosian Decl.”) ¶ 2.) Plaintiffs Greenpeace, Patient Privacy

22 Rights, and the National Organization for the Reform of Marijuana Laws (“NORML”), each work to

23 change law and policy on widely different subject matters. (Declarations of Deepa Padmanabha

24 (“Padmanabha Decl.”) ¶ 2; Deborah C. Peel, M.D. (“Peel Decl.”) ¶ 2; Dale Gieringer (“Gieringer

25 Decl.”) ¶ 2.) For all plaintiffs, the ability to communicate with others confidentially is vital to their

26 organizational missions. (See, e.g., Declaration of Dinah PoKempner (“PoKempner Decl.”) ¶¶ 4-5.)

27 By collecting the telephone records of the organizations and their members, the government has

28 established its own database of the associations of plaintiffs and their members. Under well-

17
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1 established First Amendment law, the mass collection burdens plaintiffs’ associational freedoms and

2 thus requires the government to limit its efforts to the least restrictive means of meeting the

3 government’s ends.

4

A. Governmental Surveillance that Reveals Individuals’ Affiliations in Political

and Social Organizations Is Subject to Exacting Constitutional Scrutiny. 5

The “freedom to associate with others for the common advancement of political beliefs and 6

ideas is a form of ‘orderly group activity’ protected by the First and Fourteenth Amendments.” 7

Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973). Indeed, the freedom of association supports and 8

enhances other First Amendment rights. “An individual’s freedom to speak, to worship, and to 9

petition the government for the redress of grievances could not be vigorously protected from 10

interference by the State unless a correlative freedom to engage in group effort toward those ends 11

were not also guaranteed.” Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984). 12

In order to protect this fundamental First Amendment freedom, “a significant encroachment 13

upon associational freedom cannot be justified upon a mere showing of a legitimate state interest.” 14

Kusper, 414 U.S. at 58. Infringements on freedom of association may survive constitutional scrutiny 15

only when they “serve compelling state interests, unrelated to the suppression of ideas, that cannot 16

be achieved through means significantly less restrictive of associational freedoms.” Roberts, 468 17

U.S. at 623. 18

This exacting scrutiny applies not only to direct restraints on associations, but also to more 19

subtle and indirect governmental actions that “would have the practical effect ‘of discouraging’ the 20

exercise of constitutionally protected political rights.” NAACP v. Alabama, 357 U.S. 449, 461 21

(1958) (quoting Am. Commc’ns Ass’n v. Douds, 339 U.S. 382, 393 (1950)). See also Perry v. 22

Schwarzenegger, 591 F.3d 1126, 1139 (9th Cir. 2009) (quoting NAACP v. Alabama, 357 U.S. at 23

461) (“The government may abridge the freedom to associate directly, or ‘abridgement of such 24

rights, even though unintended, may inevitably follow from varied forms of governmental action.’”). 25

The compelled disclosure of the identities of those who associate with each other is among 26

the most egregious of such indirect restraints. NAACP v. Alabama, 357 U.S. at 462 (holding First 27

Amendment violated by requiring disclosure of membership lists); Perry, 591 F.3d at 1139-40; Cal. 28

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1 Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1101 (9th Cir. 2003) (holding that compelled

2 disclosure of affiliation with a group “unquestionably infringes upon the exercise of First

3 Amendment rights”); Brock v. Local 375, Plumbers Int’l Union of America, 860 F.2d 346, 349 (9th

4 Cir. 1988) (finding that “disclosure of the identities of the Fund’s members or contributors may

5 adversely affect” the ability of these persons to exercise their associational rights). See also Zweibon

6 v. Mitchell, 516 F.2d 594, 634 (D.C. Cir. 1975) (emphasizing that unchecked mass surveillance

7 empowers entities to violate First Amendment associational rights by revealing the names and

8 addresses of individuals that called or donated to an organization, a revelation in plain violation of

9 NAACP v. Alabama); Socialist Workers Party v. Attorney General, 510 F.2d 253, 257 (2d Cir. 1974)

10 (holding that values of preserving freedom of association justified enjoining transmission of names

11 of persons attending controversial convention obtained through surveillance techniques).

12

The scrutiny that is triggered by the compelled disclosure of identities reflects “the vital

13 relationship between the freedom to associate and privacy in one’s associations.” NAACP v.

14 Alabama, 357 U.S. at 462. Indeed, anonymity is often necessary to the effective exercise of

15 associational rights. Perry, 591 F.3d at 1142 (“Implicit in the right to associate with others to

16 advance one’s shared political beliefs is the right to exchange ideas and formulate strategy and

17 messages, and to do so in private.”). “It is hardly a novel perception that compelled disclosure of

18 affiliation with groups engaged in advocacy may constitute [an] . . . effective . . . restraint on

19 freedom of association. . . . Inviolability of privacy in group association may in many circumstances

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

21 dissident beliefs.” Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539, 544 (1963)

22 (quoting NAACP v. Alabama, 357 U.S. at 462).

23

To establish a violation of First Amendment associational rights, the plaintiff must first

24 demonstrate a prima facie showing of arguable First Amendment infringement. Perry, 591 F.3d at

25 1140. The burden then shifts to the government to demonstrate that the information sought is the

26 least restrictive means of obtaining the information. Id.

27

28
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1

B. The Mass Collection of Telephone Call Records Infringes Plaintiffs’

Associational Rights Under the First Amendment. 2

A plaintiff can demonstrate prima facie infringement by showing: (1) that the disclosure of 3

the information has resulted in harassment, membership withdrawal, or discouragement of new 4
members;7 or (2) the existence of other consequences which objectively suggest an impact on, or 5

chilling, of the members’ associational rights. Perry, 591 F.3d at 1140; Brock, 860 F.2d at 350, n.1. 6

This second showing may be satisfied by demonstrating that the plaintiff is self-censoring by not 7

engaging in particular communications. California Pro-Life Council, Inc., 328 F.3d at 1093. A 8

plaintiff asserting a chilling effect of this type need show only a causal nexus between the 9

government’s acquisition of the information and the self-censorship. Dole v. Local Union 375, 10

Plumbers Int’l Union of Am., 921 F.2d 969, 972 (9th Cir. 1990). 11

In this case, each plaintiff has suffered a concrete and actual associational injury: each 12

plaintiff has lost the ability to assure its members, supporters and constituents that the fact of the 13

telephonic communications between them will be kept confidential. (See, e.g., Declaration of 14

Sherwin Siy (“Siy Decl.”) ¶ 4). Plaintiffs need to communicate with their constituents without the 15

government’s knowledge that the communications have taken place, and their constituents likewise 16

value and often require that the government not know that they are communicating with plaintiffs. 17

This ability to assure confidentiality is central to the plaintiffs’ organizational missions. For 18

example, many of the constituents who seek services from CAIR-CA, CAIR-Ohio and CAIR 19

Foundation, have been subject to government surveillance in the past. Discretion and confidentiality 20

in communications are of paramount importance to them. (Declaration of Jennifer Nimer (“Nimer 21

Decl.”) ¶ 10; Declaration of Zahra Billoo (“Billoo Decl.’) ¶ 8); Declaration of Gadeir Abbas (“Abbas 22

23 7 Although it is not sufficient to allege broadly only a subjective fear of future governmental
24 reprisals, the Supreme Court has cautioned against imposing “unduly strict requirements of proof” as 25 to these factors; thus the evidence need only show “’a reasonable probability’” that the disclosure of
the information will subject association members to governmental or private reprisals. Brock, 860 26 F.2d at 350 n.1 (quoting Buckley v. Valeo, 424 U.S. 1, 71-72 (1976)). See also Perry, 591 F.3d at
1143 (finding a prima facie case based on declarations that “created a reasonable inference that 27 disclosure would have the practical effects of discouraging political association and inhibiting
internal . . . communications that are essential to effective association and expression”). 28
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1 Decl.”) ¶ 4). Gun owners traditionally used telephones to communicate with plaintiff Calguns

2 specifically because they did not want to create an electronic trail that could later be used against

3 them by the government. (Hoffman Decl. ¶ 4).

4

The inability to assure confidentiality in communications, aside from being an injury in and

5 of itself, also has measurable impacts on plaintiffs’ activities. For example, CAIR-OHIO often

6 works on international causes that go against U.S. foreign policy and involve “countries of interest”

7 to the U.S. government. CAIR-OHIO frequently uses the telephone to coordinate these efforts and

8 also uses phone banking to rally support among Ohio’s Muslim community. (Nimer Decl. ¶ 15).

9 Because the government examines not only who persons of interest call, but also who those who

10 receive those calls in turn call, CAIR-OHIO has realized that when it calls people, it subjects them to

11 increased government scrutiny. That the very act of communicating by telephone with CAIR-OHIO

12 creates a risk of governmental scrutiny also discourages constituents from calling it. (Nimer Decl.

13 ¶¶ 13-14). The mass collection of call records has thus deterred persons from calling CAIR-OHIO,

14 discouraged CAIR-OHIO from calling its constituents, thus hindering CAIR-OHIO’s ability to

15 provide legal services to its clients and interfered with the organization’s ability to assess whether or

16 not to retain particular clients. (Nimer Decl. ¶ 8). CAIR-OHIO has thus been forced to counsel

17 clients in person rather than by telephone. (Nimer Decl. ¶ 9). CAIR-CA, for similar reasons, has

18 also seen both a decrease in communications from its constituency of Muslim Americans. (Billoo

19 Decl. ¶¶ 3, 5-18).

20

Other plaintiffs have also experienced a decrease in telephone calls from their constituents.

21 Calguns has seen a general decrease in calls from its members, and at least one of its members, who

22 is known only by an alias and would contact them only via a blocked-number telephone, has not

23 phoned since the existence of the program became public. (Hoffman Decl. ¶ 6). The Franklin

24 Armory likewise reports a 70 percent decrease in phone calls to its facility, a decrease it cannot

25 attribute to market conditions or seasonal fluctuations. (Declaration of Jay Jacobson (“Jacobson

26 Decl.”) ¶ 4). Human Rights Watch knows that those who associate with and pass information to it

27 are commonly subject to retaliation; it also believes that individuals have refrained from reporting

28 human rights abuses to it because of concerns about the security of such communications.
21
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1 (PoKempner Decl. ¶ 8). (See also Declaration of Rick Hoyt (“Hoyt Decl.”) ¶ 5; Declaration of

2 Constance Kane (“Kane Decl.”) ¶ 3; Declaration of Brandon Combs (“Combs Decl.”) ¶ 5;

3 Declaration of Matthew F. Wood (“M. Wood Decl.”) ¶ 5).

4

Several other plaintiffs that operate telephone hotlines have similarly reported an abrupt drop

5 in the number of calls that they receive since the revelation in June that the NSA was collecting all

6 call detail records. For example, California NORML reports receiving approximately ten fewer calls

7 each day. (Gieringer Decl. ¶ 9). This decrease was not surprising considering that NORML’s

8 members are frequently harassed by federal law enforcement officials. (Gieringer Decl. ¶¶ 5-8).

9 Students for a Sensitive Drug Policy, for similar reasons, saw a comparable drop. (Declaration of

10 Anastacia Cosner (“Cosner Decl.”) ¶¶ 4-6). Patient Privacy Rights Foundation (“PPRF”) saw its

11 hotline calls halved, from 40 to 20 per month, after the program became public. (Peel Decl. ¶ 6).

12 PPRF believes that many of these lost callers were whistleblowers who rely on the fact of their calls

13 to PPRF remaining confidential. (Peel Decl. ¶¶ 3-6, 12). The National Lawyers Guild has also

14 experienced a decrease in communications from members and constituents working on litigation and

15 advocacy. (Boghosian Decl. ¶ 4).

16

Many of the plaintiffs have heard from their constituents that they are highly concerned that

17 the government now knows they have communicated with them. (Hoyt Decl. ¶ 6; Gieringer Decl.

18 ¶ 5; Jacobson Decl. ¶ 5; Combs Decl. ¶ 6; Declaration of Deborah Liu (“Liu Decl.”) ¶ 5; Declaration

19 of Tracy Rosenberg (“Rosenberg Decl.”) ¶ 9; Declaration of Rabbi Arthur Waskow (“Waskow

20 Decl.”) ¶ 7; Declaration of Kay Guinane (“Guinane Decl.”) ¶ 5; M. Wood Decl. ¶ 4; Cosner Decl.

21 ¶ 7). This concern has led these constituents to decrease their total engagement with plaintiffs, not

22 just their telephone communications. (Declaration of Shahid Buttar (“Buttar Decl.”) ¶ 4; Meinrath

23 Decl. ¶¶ 7-10; Liu Decl. ¶ 5; Kane Decl. ¶ 4). Media Alliance has had several of its members ask to

24 terminate their memberships and have their data expunged from the Media Alliance database

25 because of the government’s collection of call detail records. (Rosenberg Decl. ¶ 9). The Free

26 Software Foundation, as an entity that actively promotes privacy and freedom, necessarily attracts

27 members who insist on privacy in their communications. The organization’s integrity has been

28 damaged because it is not able to offer potent assurances of privacy itself. (Declaration of John
22
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1 Wood (“J. Wood Decl.”) ¶ 5).

2

Several of the plaintiffs, prior to the revelation of the call details records collection program,

3 had strict confidentiality policies governing their telephone communications. All have had to revise

4 their policies and are struggling to seek out other ways of communicating confidentially. (Gieringer

5 Decl. ¶ 6; Peel Decl. ¶¶ 9, 12; PoKempner Decl. ¶¶ 7-9; Rosenberg Decl. ¶ 8). For example, the

6 National Lawyers Guild, which often opposes the federal government in litigation, tries to avoid

7 using its Verizon landlines, moving as much of its communications as possible to in-person

8 meetings, a move that substantially burdens its operations and its ability to provide as vigorous a

9 legal representation as possible. (Boghosian Decl. ¶ 4). Charity & Security Network has similarly

10 had to delay activities until in-person meetings could be arranged, a move that has hampered its

11 ability both to communicate about sensitive factual and strategic issues and to work effectively.

12 (Guinane Decl. ¶ 9). Acorn Active Media, whose members work daily with human rights workers

13 and democracy advocates around the world, is struggling to implement alternate forms of

14 confidential communication, a task made especially difficult because many of its associates lack the

15 technological acumen to use such tools. (Declaration of Sascha Meinrath (“Meinrath Decl.”) ¶ 11).

16 Human Rights Watch’s security team is likewise expending resources studying new protocols to

17 keep its confidential communications secure. (PoKempner Decl. ¶ 9). CAIR Foundation has been

18 forced to counsel clients in person rather than over the phone and has had to utilize specialized

19 encryption software to communicate with clients overseas. These electronic conversation do not,

20 however, qualitatively replace telephone communications. (Abbas Decl. ¶¶ 4).

21

Even in the absence of such evidence, the fact that individuals have been chilled in their

22 associations with controversial, unpopular or dissident organizations when the government is

23 collecting records of communications is objectively obvious: courts have long recognized that the

24 fear of “unsupervised and unlimited” surveillance can chill “free and robust exercise of the First

25 Amendment right[] of . . . association.” Zweibon, 516 F.2d at 633. See also FEC v. Hall-

26 Tyner Election Campaign Committee, 678 F. 2d 416, 420, 423 (2d Cir. 1982) (“Privacy is an

27 essential element of the right of association and the ability to express dissent effectively. . . . Such

28 forced revelations [of names] would likely lead to ‘vexatious inquiries’ which consequently could
23
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1 instill in the public an unremitting fear of becoming linked with the unpopular or the unorthodox.”).

2 As Justice Sotomayor recently wrote in the Fourth Amendment context: “[a]wareness that the

3 government may be watching chills associational and expressive freedoms. And the government's

4 unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.”

5 United States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring).

6

C. The Mass Collection Program Is Not Carefully Tailored to Avoid

Unnecessary Interference with Plaintiffs’ Associational Rights. 7

In order to overcome the harm to plaintiffs’ First Amendment rights, the government must 8

use the least association-restrictive means possible to obtain the information it seeks. Perry, 591 9

F.3d at 1141. That is, the government must acquire the least amount of information necessary to 10

achieve the stated governmental interest. Dole, 950 F.2d at 1461. 11

The telephone call records program, by collecting the records of every single telephone call 12

made to, from, or within the United States, and retaining that information for five years, is not the 13

least restrictive means to meet the government’s interest in combating international terrorism. In 14

Shelton v. Tucker, 364 U.S. 479 (1960), the Supreme Court considered a similarly indiscriminate 15

collection of associational information, which required teachers to provide all of their associational 16

ties for a five-year period, even though many of those ties – like nearly all of the telephone calls in 17

collected by the government here – had no reasonable relationship to the government’s compelling 18

interest in making sure that its teachers were fit. The Supreme Court explained the difference 19

between a properly tailored request and the broad one before it: 20

The question to be decided here is not whether the State of Arkansas can ask certain

21

of its teachers about all their organizational relationships. It is not whether the State

22

can ask all of its teachers about certain of their associational ties. It is not whether

teachers can be asked how many organizations they belong to, or how much time

23

they spend in organizational activity. The question is whether the State can ask every

one of its teachers to disclose every single organization with which he has been

24

associated over a five-year period. The scope of the inquiry required by Act 10 is

completely unlimited. The statute requires a teacher to reveal the church to which he

25

belongs, or to which he has given financial support. It requires him to disclose his

26

political party, and every political organization to which he may have contributed

over a five-year period. It requires him to list, without number, every conceivable

27

kind of associational tie—social, professional, political, avocational, or religious.

Many such relationships could have no possible bearing upon the teacher's

28

occupational competence or fitness.

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1 Id. at 487-88.

2

As in Shelton, this mass collection is not even remotely “carefully tailored.” It is not tailored

3 at all. The government may certainly conduct targeted surveillance of individuals suspected of

4 having ties to international terrorism, and it has many means by which to do so. But the mass

5 collection of telephone records reveals all the information that the Supreme Court objected to in

6 Shelton – social, professional, political, avocational, or religious – and not just from a comparatively

7 narrow group like teachers, but from all Americans who have a telephone.

8 VI. CONCLUSION

9

Plaintiffs’ motion for partial summary judgment should be granted.

10 DATED: November 6, 2013

Respectfully submitted,

11

/s/ Thomas E. Moore III

12

Thomas E. Moore III

13

CINDY COHN LEE TIEN

14

KURT OPSAHL MATTHEW ZIMMERMAN

15

MARK RUMOLD DAVID GREENE

16

JAMES S. TYRE ELECTRONIC FRONTIER FOUNDATION

17 RICHARD R. WIEBE

18

LAW OFFICE OF RICHARD R. WIEBE

19

THOMAS E. MOORE III

ROYSE LAW FIRM, PC

20 RACHAEL E. MENY

21

MICHAEL S. KWUN

BENJAMIN W. BERKOWITZ

22

KEKER & VAN NEST, LLP

23

ARAM ANTARAMIAN

LAW OFFICE OF ARAM ANTARAMIAN

24 Attorneys for Plaintiffs

25

26

27

28
25
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT CASE NO. 13-cv-3287 JSW

 
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1 Joshua Koltun (CA SBN 173040)
2 joshua@koltunattorney.com 3 One Sansome Street
Suite 3500, No. 500 4 San Francisco, CA 94104
Telephone: 415.680.3410 5 Facsimile: 866.462.5959
6 Bruce D. Brown (pro hac vice pending) 7 bbrown@rcfp.org
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS 8 1101 Wilson Blvd., Suite 1100
Arlington, VA 22209 9 Telephone: 703.807.2100 10 Facsimile: 703.807.2109

11 Attorneys for Amici Curiae REPORTERS COMMITTEE FOR
12 FREEDOM OF THE PRESS AND 13 13 OTHER NEWS ORGANIZATIONS

14 Additional counsel for amici in Appendix A

15

16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18

SAN FRANCISCO DIVISION

19 FIRST UNITARIAN CHURCH OF 20 LOS ANGELES, ET AL.,

21
22 v.
23

Plaintiffs,

24 NATIONAL SECURITY AGENCY ET AL.,
25 Defendants.
26

27

) CASE NO. 3:13-cv-03287 JSW ) ) MOTION OF REPORTERS COMMITTEE ) FOR FREEDOM OF THE PRESS AND 13 ) OTHER NEWS ORGANIZATIONS FOR ) LEAVE TO FILE BRIEF AMICI CURIAE IN ) SUPPORT OF PLAINTIFFS’ MOTION FOR ) PARTIAL SUMMARY JUDGMENT ) ) ) Courtroom: 11 – 19th Floor ) Hon. Jeffrey S. White )

28

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE CASE NO. 3:13-cv-03287 JSW

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1

CORPORATE DISCLOSURE STATEMENTS

2

The Reporters Committee for Freedom of the Press is an unincorporated association of

3 reporters and editors with no parent corporation and no stock.

4

Advance Publications, Inc. has no parent corporation, and no publicly held corporation owns

10% or more of its stock. 5

6

American Society of News Editors is a private, non-stock corporation that has no parent.

7

Belo Corp. has no parent corporation, and no publicly held corporation owns 10% or more of

its stock.

8

9

The E.W. Scripps Company is a publicly traded company with no parent company. No individual stockholder owns more than 10% of its stock.

10 First Amendment Coalition is a nonprofit organization with no parent company. It issues no
11 stock and does not own any of the party’s or amicus’ stock.

12

Los Angeles Times Communications LLC, is a wholly owned subsidiary of Tribune Publishing

13 Company, LLC, which is a wholly owned subsidiary of Tribune Company.

14

The McClatchy Company is publicly traded on the New York Stock Exchange under the ticker

symbol MNI. Contrarius Investment Management Limited owns 10% or more of the common stock of 15 The McClatchy Company.

16 National Press Photographers Association is a 501(c)(6) nonprofit organization with no parent
17 company. It issues no stock and does not own any of the party’s or amicus’ stock.

18

The Newspaper Guild – CWA is an unincorporated association. It has no parent and issues no

19 stock.

20

North Jersey Media Group Inc. is a privately held company owned solely by Macromedia

Incorporated, also a privately held company.

21

22

Online News Association is a not-for-profit organization. It has no parent corporation, and no publicly traded corporation owns 10% or more of its stock.

23 Society of Professional Journalists is a non-stock corporation with no parent company.
24

25

WP Company LLC (d/b/a The Washington Post) is a wholly-owned subsidiary of The Washington Post Company, a publicly held corporation. Berkshire Hathaway, Inc., a publicly held

26 company, has a 10 percent or greater ownership interest in The Washington Post Company.

27

28

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1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that the undersigned proposed Amici Curiae will and hereby do
3 move the Court for leave to appear and file the accompanying proposed brief supporting Plaintiffs in
4 this litigation. Plaintiffs consent to, and Defendant does not oppose, the filing of this brief.
5 I. Statement of Interest of Amici Curiae
6 Amici file this brief in order to assist the Court in its consideration of newsgathering interests in
7 this matter. Amici emphasize that the integrity of a confidential reporter-source relationship is critical
8 to producing good journalism, but mass call tracking compromises that relationship to the detriment of
9 the public interest. There is a long history in this country of significant works of journalism that have
10 relied on confidential sources. Recent developments, however, highlight the link between mass call
11 tracking and a chill on reporter-source communications. Amici also explain that mass call tracking
12 risks negating the safeguards the government has pledged in response to threats to journalism.
13 The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association
14
of reporters and editors that works to defend the First Amendment rights and freedom of information 15
interests of the news media. The Reporters Committee has provided representation, guidance and 16
research in First Amendment and Freedom of Information Act litigation since 1970. 17
Advance Publications, Inc., directly and through its subsidiaries, publishes 18 magazines with 18
nationwide circulation, newspapers in over 20 cities and weekly business journals in over 40 cities 19

throughout the United States. It also owns many Internet sites and has interests in cable systems serving 20

21 over 2.3 million subscribers.

22

With some 500 members, American Society of News Editors (“ASNE”) is an organization that

23 includes directing editors of daily newspapers throughout the Americas. ASNE changed its name in

24 April 2009 to American Society of News Editors and approved broadening its membership to editors of

25 online news providers and academic leaders. Founded in 1922 as American Society of Newspaper

26 Editors, ASNE is active in a number of areas of interest to top editors with priorities on improving

27 freedom of information, diversity, readership and the credibility of newspapers.

28

Belo Corp. owns 20 television stations that reach more than 14% of U.S. television households.

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1 The E.W. Scripps Company is a diverse, 131-year-old media enterprise with interests in
2 television stations, newspapers, local news and information websites and licensing and syndication.
3 The company’s portfolio of locally focused media properties includes: 19 TV stations (ten ABC
4 affiliates, three NBC affiliates, one independent and five Spanish-language stations); daily and
5 community newspapers in 13 markets; and the Washington-based Scripps Media Center, home of the
6 Scripps Howard News Service.
7 First Amendment Coalition is a nonprofit public interest organization dedicated to defending
8 free speech, free press and open government rights in order to make government, at all levels, more
9 accountable to the people. The Coalition’s mission assumes that government transparency and an
10 informed electorate are essential to a self-governing democracy. To that end, we resist excessive
11
government secrecy (while recognizing the need to protect legitimate state secrets) and censorship of 12
all kinds. 13
Los Angeles Times Communications LLC publishes the Los Angeles Times, the largest 14

15 metropolitan daily newspaper in the country. The Los Angeles Times operates the website

16 www.latimes.com, a leading source of national and international news.

17

The McClatchy Company, through its affiliates, is the third-largest newspaper publisher in the

18 United States with 30 daily newspapers and related websites as well as numerous community

19 newspapers and niche publications.

20

The National Press Photographers Association (“NPPA”) is a 501(c)(6) non-profit organization

21 dedicated to the advancement of visual journalism in its creation, editing and distribution. NPPA’s

22 approximately 7,000 members include television and still photographers, editors, students and

23 representatives of businesses that serve the visual journalism industry. Since its founding in 1946, the

24 NPPA has vigorously promoted the constitutional rights of journalists as well as freedom of the press in

25 all its forms, especially as it relates to visual journalism. The submission of this brief was duly

26 authorized by Mickey H. Osterreicher, its General Counsel.

27

The Newspaper Guild – CWA is a labor organization representing more than 30,000 employees

28 of newspapers, newsmagazines, news services and related media enterprises. Guild representation

2 MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
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1 comprises, in the main, the advertising, business, circulation, editorial, maintenance and related
2 departments of these media outlets. The Newspaper Guild is a sector of the Communications Workers
3 of America. CWA is America’s largest communications and media union, representing over 700,000
4 men and women in both private and public sectors.
5 North Jersey Media Group Inc. (“NJMG”) is an independent, family-owned printing and
6 publishing company, parent of two daily newspapers serving the residents of northern New Jersey: The
7 Record (Bergen County), the state’s second-largest newspaper, and the Herald News (Passaic County).
8 NJMG also publishes more than 40 community newspapers serving towns across five counties and a
9 family of glossy magazines, including (201) Magazine, Bergen County’s premiere magazine. All of
10 the newspapers contribute breaking news, features, columns and local information to NorthJersey.com.
11
The company also owns and publishes Bergen.com showcasing the people, places and events of Bergen 12
County. 13
Online News Association (“ONA”) is the world’s largest association of online journalists. 14
15 ONA’s mission is to inspire innovation and excellence among journalists to better serve the public.
16 ONA’s more than 2,000 members include news writers, producers, designers, editors, bloggers,

17 technologists, photographers, academics, students and others who produce news for the Internet or

18 other digital delivery systems. ONA hosts the annual Online News Association conference and

19 administers the Online Journalism Awards. ONA is dedicated to advancing the interests of digital

20 journalists and the public generally by encouraging editorial integrity and independence, journalistic

21 excellence and freedom of expression and access.

22

Society of Professional Journalists (“SPJ”) is dedicated to improving and protecting journalism.

23 It is the nation’s largest and most broad-based journalism organization, dedicated to encouraging the

24 free practice of journalism and stimulating high standards of ethical behavior. Founded in 1909 as

25 Sigma Delta Chi, SPJ promotes the free flow of information vital to a well-informed citizenry, works to

26 inspire and educate the next generation of journalists and protects First Amendment guarantees of

27 freedom of speech and press.

28

3 MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
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1 WP Company LLC (d/b/a The Washington Post) publishes one of the nation’s most prominent
2 daily newspapers, as well as a website, www.washingtonpost.com, that is read by an average of more
3 than 20 million unique visitors per month.
4 II. Issues Addressed by Movants in the Brief
5 As organizations that regularly engage in newsgathering or represent members who do, amici
6 feel strongly that their constitutionally protected activities are threatened when the government
7 collects and catalogues vast amounts of data about their private communications. Amici seek to appear
8 in this case to stress the importance of safeguarding those communications and to explain how their
9 activities are affected by governmental monitoring. Journalists often rely on confidential sources
10 when researching and writing of stories of public significance. When the government’s power is
11 brought to bear in a way that directly threatens the ability of journalists to gather news and to promise
12 confidentiality to their sources, it is ultimately the public that suffers.
13 For the foregoing reasons, amici request that this Court grant this motion to file the attached
14 brief.
15
CONCLUSION 16
For the above reasons, Reporters Committee for Freedom of the Press and 13 other media 17
organizations respectfully request this Court’s leave to submit the accompanying brief. 18

19 20 Dated: November 18, 2013 21 22 23 24 25

By: /s/ Joshua Koltun Joshua Koltun, Esq.
Bruce D. Brown, Esq. REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
Attorneys for Amici Curiae REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND 13 OTHER NEWS ORGANIZATIONS

26

27

28

4 MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
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1

APPENDIX A

2 Of counsel for amici:
3 Richard A. Bernstein
4 Sabin, Bermant & Gould LLP 4 Times Square, 23rd Floor
5 New York, NY 10036 6 Counsel for Advance Publications, Inc.

7 Kevin M. Goldberg

Fletcher, Heald & Hildreth, PLC

8 1300 N. 17th St., 11th Floor

9

Arlington, VA 22209 Counsel for American Society of News Editors

10 Russell F. Coleman
11 Belo Corp. 400 S. Record Street
12 Dallas, TX 75202

13 David M. Giles
14 Vice President/ Deputy General Counsel
15 The E.W. Scripps Company 16 312 Walnut St., Suite 2800
Cincinnati, OH 45202

17

Peter Scheer 18 First Amendment Coalition

19

534 Fourth St., Suite B San Rafael, CA 94901

20 Jeffrey Glasser
21 Senior Counsel
Tribune Company 22 202 West First Street
23 Los Angeles, CA 90012

24 Karole Morgan-Prager Juan Cornejo
25 The McClatchy Company 26 2100 Q Street
Sacramento, CA 95816 27

28

5 MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
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1 Mickey H. Osterreicher 1100 M&T Center, 3 Fountain Plaza,
2 Buffalo, NY 14203 3 Counsel for National Press Photographers Association

4 Barbara L. Camens

Barr & Camens 5 1025 Connecticut Ave., NW

6

Suite 712 Washington, DC 20036

7 Counsel for The Newspaper Guild – CWA

8 Jennifer A. Borg

9

General Counsel North Jersey Media Group Inc.

10 1 Garret Mountain Plaza Woodland Park, NJ 07424

11

Jonathan D. Hart 12 Dow Lohnes PLLC

13 1200 New Hampshire Ave., NW Washington, DC 20036

14 Counsel for Online News Association

15 Bruce W. Sanford 16 Laurie A. Babinski
Baker & Hostetler LLP 17 1050 Connecticut Ave., NW
Suite 1100 18 Washington, DC 20036 19 Counsel for Society of Professional Journalists
20 John B. Kennedy James A. McLaughlin
21 Kalea S. Clark The Washington Post
22 1150 15th Street, N.W. 23 Washington, D.C. 20071

24

25

26

27

28

6 MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
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1 Joshua Koltun (Bar No. 173040)

2

joshua@koltunattorney.com Attorney

3 One Sansome Street Suite 3500, No. 500

4 San Francisco, California 94104

Telephone: 415.680.3410 5 Facsimile: 866.462.5959

6 Bruce D. Brown (pro hac vice pending)
7 bbrown@rcfp.org Reporters Committee for Freedom of the Press
8 1101 Wilson Blvd., Suite 1100
Arlington, Virginia 22209 9 Telephone: 703.807.2100
10 Facsimile: 703.807.2109

11 Attorneys for Amicus Curiae REPORTERS COMMITTEE FOR
12 FREEDOM OF THE PRESS AND 13 OTHER
NEWS ORGANIZATIONS 13

14 Additional counsel for amici in Appendix B 15

16

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19

SAN FRANCISCO DIVISION

20 FIRST UNITARIAN CHURCH OF LOS ANGELES, et al.,
21 Plaintiffs,
22

23

v.

24 NATIONAL SECURITY AGENCY, et al.,

25

Defendants.

26

27

Cas)e No: 3:13-cv-03287 JSW )
BR)IEF AMICI CURIAE OF RFORET))EPHEOEDRROTNEMERWOSFSCTOOHRMEGMAPIRNTEITZSEASETAFINOODNRS13 IN)SUPPORT OF PLAINTIFFS’ MO) TION FOR PARTIAL SUMMARY JU)DGMENT
) Da)te: February 7, 2014 Tim) e: 9:00 a.m. Ho)n. Jeffrey S. White Co)urtroom 11 - 19th Floor
)

28 BRIEF AMICUS CURIAE IN SUPP OF PS’ MOT. FOR PARTIAL SJ

Case3:13-cv-03287-JSW Document58-1 Filed11/18/13 Page2 of 22
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
DECLARATION OF SHAHID BUTTAR CASE NO. 13-cv-3287 JSW

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CORPORATE DISCLOSURE STATEMENTS 1

2 The Reporters Committee for Freedom of the Press is an unincorporated association of
3 reporters and editors with no parent corporation and no stock.

4

Advance Publications, Inc. has no parent corporation, and no publicly held corporation

5 owns 10% or more of its stock.

6

American Society of News Editors is a private, non-stock corporation that has no parent.

7

Belo Corp. has no parent corporation, and no publicly held corporation owns 10% or

more of its stock. 8

9

The E.W. Scripps Company is a publicly traded company with no parent company. No individual stockholder owns more than 10% of its stock.

10 First Amendment Coalition is a nonprofit organization with no parent company. It issues
11 no stock and does not own any of the party’s or amicus’ stock.

12

Los Angeles Times Communications LLC, is a wholly owned subsidiary of Tribune

13 Publishing Company, LLC, which is a wholly owned subsidiary of Tribune Company.

14

The McClatchy Company is publicly traded on the New York Stock Exchange under the

ticker symbol MNI. Contrarius Investment Management Limited owns 10% or more of the

15 common stock of The McClatchy Company.

16

National Press Photographers Association is a 501(c)(6) nonprofit organization with no

17 parent company. It issues no stock and does not own any of the party’s or amicus’ stock.

18

The Newspaper Guild – CWA is an unincorporated association. It has no parent and

issues no stock.

19

20

North Jersey Media Group Inc. is a privately held company owned solely by Macromedia Incorporated, also a privately held company.

21 Online News Association is a not-for-profit organization. It has no parent corporation,
22 and no publicly traded corporation owns 10% or more of its stock.

23

Society of Professional Journalists is a non-stock corporation with no parent company.

24 WP Company LLC (d/b/a The Washington Post) is a wholly-owned subsidiary of The
25 Washington Post Company, a publicly held corporation. Berkshire Hathaway, Inc., a publicly held company, has a 10 percent or greater ownership interest in The Washington Post Company.
26

27

28

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1

TABLE OF CONTENTS

2 CORPORATE DISCLOSURE STATEMENTS ............................................................................. i
3 TABLE OF AUTHORITIES ......................................................................................................... iii
4
5 DESCRIPTION OF AMICI CURIAE.............................................................................................1

6 INTRODUCTION ...........................................................................................................................1

7

I. THE INTEGRITY OF A CONFIDENTIAL REPORTER-SOURCE

RELATIONSHIP IS CRITICAL TO PRODUCING GOOD

8

JOURNALISM, AND MASS TELEPHONE CALL TRACKING

9

COMPROMISES THAT RELATIONSHIP TO THE DETRIMENT OF THE PUBLIC INTEREST.......................................................................................2

10 A. There is a long history of journalists breaking significant stories by

11

relying on information from confidential sources. ......................................3

12

B. Recent developments highlight the link between mass call tracking

13

and a chill on reporter-source communications. ..........................................4

14

C. Mass call tracking negates safeguards the government has pledged

in response to threats to journalism. ............................................................8

15

II. THE MASS TELEPHONE CALL TRACKING PROGRAM IS AN

16

INHERENTLY OVERBROAD SYSTEM OF MONITORING AND

17

INVESTIGATION. ..................................................................................................9

18 APPENDIX A ................................................................................................................................12

19 APPENDIX B ................................................................................................................................14

20

21

22

23

24

25

26

27

28

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TABLE OF AUTHORITIES 1

2 CASES

3

Application for Search Warrant for E-mail Account [redacted]@gmail.com, No. 1:10-mj-00291-AK (D.D.C., Affidavit in support of application for search

4

warrant, unsealed Nov. 7, 2011) ......................................................................................... 6

5 Branzburg v. Hayes, 408 U.S. 665 (1972) ...................................................................................... 2

6 United States v. Sterling, 818 F. Supp. 2d 945 (E.D. Va. 2011)..................................................... 4

7 STATUTES

8 USA PATRIOT Act, Public Law 107-56, 115 Stat. 272 (2001) .................................................... 9

9 OTHER AUTHORITIES

10 Administration White Paper: Bulk Collection of Telephony Metadata Under Section

215 of the USA PATRIOT Act (Aug. 9, 2013) .................................................................... 1

11

Byers, Dylan, Reporters Say There’s a Chill in the Air, POLITICO, June 8, 2013 ....................... 7

12

Department of Justice, Report on Review of News Media Policies, July 12, 2013 ........................ 9

13

Downie Jr., Leonard, The Obama Administration and the Press: Leak investigations

14

and surveillance in post-9/11 America, Comm. To Protect Journalists, Oct. 10,

2013............................................................................................................................... 8, 13

15

Editorial, A Journalist ‘Co-Conspirator’, Wall St. J., May 20, 2013............................................. 6

16

Editorial, Another Chilling Leak Investigation, N.Y. Times, May 21, 2013.................................. 6

17

Face the Nation Transcripts, June 2, 2013, CBS News ................................................................. 7

18

Gellman, Barton, NSA Broke Privacy Rules Thousands of Times Per Year, Audit

19

Finds, Wash. Post, Aug. 15, 2013............................................................................... 11, 12

20 Gerstein, Josh, NSA broke rules on call-tracking program, court filings show,

Politico, Sept. 10, 2013 ..................................................................................................... 11

21

Komperda, Jack, White House, lawmakers push for federal reporter shield law in

22

wake of AP phone records seizure, The Reporters Comm. for Freedom of the

Press, May 15, 2013. ......................................................................................................... 10

23

Kravets, David, Reporters Challenge Bonds’ Leak Subpoena, Associated Press, May

24

31, 2006............................................................................................................................... 3

25 Leonnig, Carol D., Court: Ability to police U.S. spying program limited, Wash. Post,

Aug. 15, 2013.................................................................................................................... 12

26

Nicholas, Peter, Obama’s Other Mission: Soothing Allies on Espionage, Wall St.

27

Journal, Sept. 6 2013......................................................................................................... 13

28

iii

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Priest, Dana, CIA Holds Terror Suspects in Secret Prisons, Wash. Post, Nov. 2, 2005 ................ 4 1

Redden, Molly, Is the ‘Chilling Effect’ Real?, The New Republic, May 15, 2013........................ 9 2

Reilly, Ryan J., NYT Reporter Seeks to Quash Subpoena; Says Gov’t Tried to

3

Intimidate Him, Talking Points Memo TPMMuckraker Blog, June 22, 2011 ................... 4

4 Risen, James & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 16, 2005 .................................................................................................... 3, 13
5

Risen, James, Lawmakers Question White House Account of an Internet Surveillance

6

Program, N.Y. Times, July 3, 2013.................................................................................. 12

7 Robinson, Eugene, Obama Administration Mistakes Journalism for Espionage, Wash. Post, May 20, 2013 ............................................................................................................. 6
8

Royce-Bartlett, Lindy, Leak Probe Has Chilled Sources, AP Exec Says, CNN, June

9

19, 2013............................................................................................................................... 5

10 Savage, Charlie, et al., U.S. Confirms That It Gathers Online Data Overseas, N.Y. Times, June 6, 2013 .......................................................................................................... 11
11

Schuman, Jamie, The Shadows of the Spooks, The News Media and the Law, Fall

12

2013........................................................................................................................... 8, 9, 13

13 Sensenbrenner, James, This Abuse of the Patriot Act Must End, The Guardian, June 9, 2013................................................................................................................................... 11
14

Shane, Scott, David Johnston, James Risen, Secret U.S. Endorsement of Severe

15

Interrogations, N.Y. Times, Oct. 4, 2007 ........................................................................... 4

16 Sherman, Mark, Gov’t Obtains Wide AP Phone Records in Probe, Associated Press, May 13, 2013 .................................................................................................................. 5, 9
17

Transcript of President Obama’s Press Conference (Aug. 9, 2013) ............................................. 10 18

von Drehle, David, FBI’s No. 2 Was ‘Deep Throat’: Mark Felt Ends 30-Year Mystery

19

of The Post’s Watergate Source, Wash. Post, June 1, 2005 ............................................... 3

20 Walt, Vivienne, European Officials Infuriated by Alleged NSA Spying on Friendly Diplomats, Time, June 30 2013 ........................................................................................ 13
21

Zalesin, Jeff, AP Chief Points to Chilling Effect After Justice Investigation, The

22

Reporters Comm. for Freedom of the Press, June 19, 2013 ............................................... 5

23

24

25

26

27

28

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DESCRIPTION OF AMICI CURIAE 1

2

The Reporters Committee for Freedom of the Press is a voluntary, unincorporated

3 association of reporters and editors that works to defend the First Amendment rights and freedom

4 of information interests of the news media. The Reporters Committee has provided

5 representation, guidance and research in First Amendment and Freedom of Information Act

6 litigation since 1970.

7

Additional amici are Advance Publications, Inc., American Society of News Editors,

8 Belo Corp., The E.W. Scripps Company, First Amendment Coalition, Los Angeles Times, The

9 McClatchy Company, National Press Photographers Association, The Newspaper Guild - CWA,

10 North Jersey Media Group Inc., Online News Association, Society of Professional Journalists,

11 and The Washington Post. They are more fully described in Appendix A.

12

13

INTRODUCTION

14

As the Obama administration explained in an August 9, 2013 “white paper,” the NSA

15 collects logs of the time and duration of most telephone calls made or received in the United

16 States with approval of the Foreign Intelligence Surveillance Court, a policy that has been in

17 place for seven years. See Administration White Paper: Bulk Collection of Telephony Metadata
18 Under Section 215 of the USA PATRIOT Act (Aug. 9, 2013), available at http://bit.ly/15ebL9k.
19

20

Plaintiffs move for partial summary judgment on the grounds that this program violates

21 the First Amendment as well as Section 215 of the USA Patriot Act, 50 U.S.C. § 1861. Amici

22 write separately to emphasize the corrosive effect that mass call tracking has on the ability of the

23 media to report on matters of public interest.

24

Many significant pieces of American journalism have relied heavily on confidential

25 sources. When the risk of prosecution reaches such sources, quality reporting is diminished.
26 Since the public has become aware of the call tracking, many reporters at major news outlets
27

28 1
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have said that this program and other NSA surveillance efforts have made sources less willing to 1 2 talk with them, even about matters not related to national security.

3

The mass call tracking’s indiscriminate deployment of government power demands

4 exacting scrutiny from this Court. The government has shown a willingness to negotiate with the
5 media in individual cases regarding the investigation of leaks and the use of subpoena power
6 against journalists. This cooperation is rendered pointless when cast against the backdrop of
7 total surveillance of domestic telephone calls. The government’s efforts to police its surveillance
8 9 have proven insufficient, and accordingly, amici turn to this Court to vindicate the well-
10 established rights of the press and public.

11 I. 12 13 14

THE INTEGRITY OF A CONFIDENTIAL REPORTER-SOURCE RELATIONSHIP IS CRITICAL TO PRODUCING GOOD JOURNALISM, AND MASS TELEPHONE CALL TRACKING COMPROMISES THAT RELATIONSHIP TO THE DETRIMENT OF THE PUBLIC INTEREST.
Wholesale government monitoring of telephone users leaves them uncertain of the

15 privacy of their communications and thus unwilling to exchange potentially sensitive

16 information. Amici are concerned that mass call tracking is infringing on the newsgathering
17 rights of reporters and harming journalism of all types. 18
Government intrusion into private relationships frightens sources into silence. “When 19
neither the reporter nor his source can rely on the shield of confidentiality against unrestrained 20 21 use of [government] power, valuable information will not be published and the public dialogue
22 will inevitably be impoverished.” Branzburg v. Hayes, 408 U.S. 665, 732 (1972) (Stewart, J.,

23 dissenting). Although Justice Stewart was referring to the chilling effect of government

24 subpoenas on the media-source relationship, mass call tracking causes the same problem. And
25 unlike grand jury subpoenas, which provide notice to the media, decisions about what call logs to 26
review are made in secret, leaving both reporter and source vulnerable to government 27

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surveillance at every turn, notwithstanding any promise of confidentiality. The result will be 1 2 self-censorship from sources and harm to the public discourse.

3

Confidential relationships between source and journalist are critical for effective

4 reporting and an informed public, and communications between the two regularly require the use

5 of telephones. Government monitoring via mass call tracking limits journalists’ ability to gather

6 information in the public interest.

7

A. There is a long history of journalists breaking significant stories by relying

8

on information from confidential sources.

9

Confidentiality has been essential to the news media’s constitutionally protected duty of

10 providing information to the public about such matters as political corruption, national security
11 and foreign affairs. Many history-altering news stories would not have been reported without
12
confidential communications between journalists and sources. 13

14

Anonymous sources were the foundation of the more than 150 articles Washington Post

15 reporters Bob Woodward and Carl Bernstein wrote following the Watergate break-in. See David

16 von Drehle, FBI’s No. 2 Was ‘Deep Throat’: Mark Felt Ends 30-Year Mystery of The Post’s
17 Watergate Source, Wash. Post, June 1, 2005, http://wapo.st/JLlYvZ. Bernstein has said, 18
“Almost all of the articles I co-authored with Mr. Woodward on Watergate could not have been 19
reported or published without the assistance of our confidential sources and without the ability to 20 21 grant them anonymity, including the individual known as Deep Throat.” David Kravets,
22 Reporters Challenge Bonds’ Leak Subpoena, Associated Press, May 31, 2006,

23 http://wapo.st/1ff0UNS.

24

Other major stories have similarly relied on confidential sources. The New York Times

25 used these contacts to break the story that, long before the scope of the current surveillance came
26 to light, the NSA had an illegal wiretapping program that monitored phone calls and e-mail
27 messages involving suspected terrorist operatives without the approval of federal courts. See
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James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 1 2 16, 2005, at A1, http://nyti.ms/neIMIB.1 The Times also used confidential sources to report on

3 the harsh interrogations that terrorism suspects in U.S. custody have faced. See, e.g., Scott

4 Shane, David Johnston, James Risen, Secret U.S. Endorsement of Severe Interrogations, N.Y.
5 Times, Oct. 4, 2007, at A1, available at http://nyti.ms/1dkyMgF. The Washington Post relied on 6
confidential government sources, among others, to break the story of the Central Intelligence 7
Agency’s use of “black sites,” a network of secret prisons for terrorism suspects. See Dana 8 9 Priest, CIA Holds Terror Suspects in Secret Prisons, Wash. Post, Nov. 2, 2005,
10 http://wapo.st/Ud8UD.

11

These are just a few examples of the important contributions to public knowledge that

12 come from anonymous sources speaking to journalists. The mass call tracking at issue here

13 compromises the ability of the news media to cultivate these sources.

14

B. Recent developments highlight the link between mass call tracking and a

15

chill on reporter-source communications.

16

The response to the Justice Department’s recent seizure of records from 20 Associated

17 Press telephone lines demonstrates the climate of fear that develops when government
18 investigation tactics are brought to bear directly on the news media. See Mark Sherman, Gov’t
19

20 1 Risen has testified to the efficacy and necessity of anonymous sources:

21 In my ongoing reporting and news gathering, numerous sources of confidential

22

information have told me that they are comfortable speaking to me in confidence

specifically because I have shown that I will honor my word and maintain their

23

confidence even in the face of Government efforts to force me to reveal their

identities or information. The fact that I have not previously revealed my sources

24

has allowed me to gain access to newsworthy information that I could not

otherwise get.

25

See First Motion to Quash Subpoena, Attachment #2, Affidavit of James Risen at ¶ 64, United

26 States v. Sterling, 818 F. Supp. 2d 945 (E.D. Va. 2011) (No. 10-485); see also Ryan J. Reilly,

NYT Reporter Seeks to Quash Subpoena; Says Gov’t Tried to Intimidate Him, Talking Points
27 Memo TPMMuckraker Blog, June 22, 2011, http://bit.ly/l4N87v.

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Obtains Wide AP Phone Records in Probe, Associated Press, May 13, 2013, 1 2 http://bit.ly/11zhUOg. These records, from phone lines used by more than 100 AP reporters and

3 editors, contained metadata – i.e. the numbers, timing and duration of calls. See Id. This is the

4 same type of information that the mass call-tracking program collects.

5

After learning about the secret subpoenas, AP President and CEO Gary Pruitt said in a

6 speech at the National Press Club that the seizure has made sources less willing to talk to
7 reporters at his news outlet: “Some of our longtime trusted sources have become nervous and
8

9 anxious about talking to us, even on stories that aren’t about national security.” Jeff Zalesin, AP

10 Chief Points to Chilling Effect After Justice Investigation, The Reporters Comm. for Freedom of

11 the Press, June 19, 2013, http://rcfp.org/x?CSPl. The chilling effect, Pruitt said, is not limited to

12 the AP: “Journalists at other news organizations have personally told me it has intimidated
13 sources from speaking to them.” Id. He continued, “In some cases, government employees that 14
we once checked in with regularly will no longer speak to us by phone and some are reluctant to 15
meet in person.” See Lindy Royce-Bartlett, Leak Probe Has Chilled Sources, AP Exec Says, 16
17 CNN, June 19, 2013, http://bit.ly/11NGbOH.

18

Earlier this year, the public also learned that the FBI identified Fox News journalist

19 James Rosen a “co-conspirator” in a search warrant application so that it could obtain his e-mails

20 relating to the criminal investigation of a source. See Application for Search Warrant for E-mail
21 Account [redacted]@gmail.com, No. 1:10-mj-00291-AK (D.D.C., Affidavit in support of
22 application for search warrant, unsealed Nov. 7, 2011).
23 Many commentators have explored the connection between the Rosen case and an overall
24
25 chill on the willingness of sources to come forward. See Editorial, Another Chilling Leak

26 Investigation, N.Y. Times, May 21, 2013, http://nyti.ms/14vjDl5. (“With the decision to label a

27 Fox News television reporter a possible ‘co-conspirator’ in a criminal investigation of a news

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leak, the Obama administration has moved beyond protecting government secrets to threatening 1 2 fundamental freedoms of the press to gather news.”) See also Eugene Robinson, Obama
3 Administration Mistakes Journalism for Espionage, Wash. Post, May 20, 2013,
4 http://bit.ly/13RvZrc. (“The Obama administration has no business rummaging through 5 journalists’ phone records, perusing their emails and tracking their movements in an attempt to 6
keep them from gathering news. This heavy-handed business isn’t chilling, it’s just plain cold.”) 7
Together, the Rosen and AP cases show the danger to the flow of information to the 8 9 public when the news media is subject to invasive investigations. See Editorial, A Journalist 10 ‘Co-Conspirator’, Wall St. J., May 20, 2013, http://on.wsj.com/10K5nV7. (“With the Fox News
11 search following the AP subpoenas, we now have evidence of a pattern of anti-media behavior.
12 The suspicion has to be that maybe these ‘leak’ investigations are less about deterring leakers 13 and more about intimidating the press.”) 14
Controversial and exceptional cases like the AP subpoena and the Fox News search 15
warrant cause serious harms to newsgathering, but mass call tracking has an equal or perhaps 16 17 even greater chilling effect as sources now have very good reason to believe that logs of their 18 phone contacts will always be on file with the government. When such widespread surveillance
19 is a standard practice, source intimidation is inevitable, leading to a less robust media. New York
20 Times executive editor Jill Abramson told CBS’s Face the Nation, “The reporters who work for 21
the Times in Washington have told me that many of their sources are petrified to even return 22
calls at this point.” Face the Nation Transcripts, June 2, 2013, CBS News, 23
http://cbsn.ws/1aGmeyd. See also Dylan Byers, Reporters Say There’s a Chill in the Air, 24 25 Politico, June 8, 2013, http://politi.co/11znRrJ. (“Reporters on the national security beat say it’s
26 not the fear of being prosecuted by the DOJ that worries them — it’s the frightened silence of
27 past trusted sources that could undermine . . . investigative journalism[.] Some formerly 28
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forthcoming sources have grown reluctant to return phone calls, even on unclassified matters, 1 2 and, when they do talk, prefer in-person conversations that leave no phone logs, no emails, and

3 no records of entering and leaving buildings[.]”)

4

In a report that former Washington Post executive editor Leonard Downie Jr. wrote for

5 the Committee to Protect Journalists, numerous journalists said surveillance programs and leaks
6 prosecutions deter sources from speaking to them. The Obama Administration and the Press:
7 Leak investigations and surveillance in post-9/11 America, Comm. To Protect Journalists, Oct.
8
9 10, 2013, http://bit.ly/1c3Cnfg. Associated Press senior managing editor Michael Oreskes said:

10 “There’s no question that sources are looking over their shoulders. Sources are more jittery and

11 more standoffish, not just in national security reporting. A lot of skittishness is at the more

12 routine level.” Id. Washington Post national security reporter Rajiv Chandrasekaran said: “One

13 of the most pernicious effects is the chilling effect created across government on matters that are

14 less sensitive but certainly in the public interest as a check on government and elected officials.”
15 Id.
16

17

Discussing the NSA surveillance programs, New York Times investigative reporter and

18 three time Pulitzer Prize winner David Barstow said, “I have absolutely no doubt whatsoever that

19 stories have not gotten done because of this.” Jamie Schuman, The Shadows of the Spooks, The

20 News Media and the Law, Fall 2013, at 9.
21 Even sources whose work is removed from the national security realm – including many
22 federal employees, corporate directors and leaders of non-governmental organizations involved
23 in publicly controversial topics – have become less willing to talk. Id. at 11. See also Molly
24
25 Redden, Is the ‘Chilling Effect’ Real?, The New Republic, May 15, 2013,

26 http://on.tnr.com/18Lgq3D. (“Officials are reluctant to get anywhere close to the line…[I]t

27

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actually has been much harder to get people to talk about anything, even in a sensitive-but1 2 unclassified area.”).

3

C. Mass call tracking negates safeguards the government has pledged in

response to threats to journalism. 4

One consequence of the outcry over the AP and Fox News seizures was the Department 5

6 of Justice’s decision to revisit its rules for issuing subpoenas to the media. See generally

7 Department of Justice, Report on Review of News Media Policies, July 12, 2013,

8 http://1.usa.gov/12mkn9B. The Justice Department will now require prosecutors to give the

9 news media advance notice of a subpoena, except in rare cases where notice poses a clear and
10 substantial threat to the investigation, risks grave harm to national security, or presents an
11 imminent risk of death or bodily harm. Id. at 2. This proposal of notice and negotiation is made
12 so that “members of the news media [have] the opportunity to engage with the Department
13
14 regarding the proposed use of investigative tools to obtain communications or business

15 records[.]” Id. at 2. The report says the Justice Department also will create a News Media

16 Review Committee to provide oversight of media-related investigations, see id. at 4, and that

17 journalists would not be considered suspects for “ordinary newsgathering activities,” see id. at

18 3.
19
20

Additionally, the Obama administration has asked Congress to adopt a federal shield law,

21 which would give journalists a qualified privilege not to testify about information from

22 confidential sources. See Jack Komperda, White House, lawmakers push for federal reporter

23 shield law in wake of AP phone records seizure, The Reporters Comm. for Freedom of the Press,

24 May 15, 2013, http://rcfp.org/x?0lyA. President Obama also has pledged to reform the Foreign
25 Intelligence Surveillance Court, which decides the constitutionality of many NSA programs.
26 Transcript of President Obama’s Press Conference (Aug. 9, 2013), http://1.usa.gov/13pyCLa. In
27 addition to ordering the declassification of some of its opinions, Obama has said he would take
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steps to allow an adversary to argue before the court, which now only hears from a government 1 2 official. Id.

3

With these steps, the government has professed an interest in handling investigations

4 affecting journalistic rights on a case-by-case basis, with meaningful analysis based on the

5 particular set of circumstances. This commitment is meaningless if rampant mass call tracking

6 continues unabated.

7

II. THE MASS TELEPHONE CALL TRACKING PROGRAM IS AN INHERENTLY

8

OVERBROAD SYSTEM OF MONITORING AND INVESTIGATION.

9

Criminal investigations depend on monitoring the communications of suspects without

10 running afoul of those suspects’ constitutional rights. This strategy is vastly different from the
11 mass call tracking at issue here. There is a significant distinction between monitoring specific
12
communications, based on a particularized suspicion of wrongdoing, and the implementation of a 13

14 widespread system of mass call tracking that stores information about every call made by the

15 subscribers of a particular telephone service provider over a defined yet renewed time period.

16 See Charlie Savage, et al., U.S. Confirms That It Gathers Online Data Overseas, N.Y. Times,
17 June 6, 2013, http://nyti.ms/10SZXaO. 18
The protections built into these enormous databases cannot prevent overstepping in all 19
cases.2 Government documents released in September show that the NSA regularly searched call 20 21 logs of about 15,000 numbers that did not have a reasonable, articulable suspicion of terrorism
22 for three years until March 2009. Josh Gerstein, NSA broke rules on call-tracking program,

23
24 2 The government’s actions have been questioned under the USA PATRIOT Act, Public Law 107-56, 115 Stat. 272 (2001), as well. The act’s author, Rep. James Sensenbrenner (R-Wis.),
25 spoke out against using Section 215 of the Patriot Act to justify such a broad program: “The administration claims authority to sift through details of our private lives because the Patriot Act
26 says that it can. I disagree. I authored the Patriot Act, and this is an abuse of that law.” James Sensenbrenner, This Abuse of the Patriot Act Must End, The Guardian, June 9, 2013, available at
27 http://bit.ly/1duGJjt.
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court filings show, Politico, Sept. 10, 2013, http://politi.co/17UxEJR. Additionally, an internal 1 2 NSA audit from 2012 revealed that the agency conducted unauthorized searches of data,

3 including phone records and email, of thousands of Americans since 2008. See Barton Gellman,

4 NSA Broke Privacy Rules Thousands of Times Per Year, Audit Finds, Wash. Post, Aug. 15, 2013,
5 http://wapo.st/16SWco2. These violations “include unauthorized access to intercepted 6
communications, the distribution of protected content[,] and the use of automated systems 7
without built-in safeguards to prevent unlawful surveillance.” Id. These breaches cast doubt on 8 9 the government’s ability to police itself when implementing such a far-reaching mass call-
10 tracking program. In fact, FISA Court chief judge Reggie B. Walton said his court “does not

11 have the capacity to investigate issues of noncompliance.” Carol D. Leonnig, Court: Ability to

12 police U.S. spying program limited, Wash. Post, Aug. 15, 2013, http://wapo.st/1cR581f.

13

Furthermore, public equivocations by national security leaders illuminate the need for

14 judicial involvement to protect the important rights at stake. In response to a direct question at a
15 Senate Committee hearing in March from U.S. Senator Ron Wyden asking, “Does the NSA
16

17 collect any type of data at all on millions or hundreds of millions of Americans?,” Defendant

18 Clapper said, “No, sir.” Glenn Kessler, James Clapper’s ‘Least Untruthful’ Statement to the

19 Senate, Wash. Post, June 12, 2013, available at http://wapo.st/170VVSu. After the disclosure of

20 the “vast Internet surveillance program run by the National Security Agency,” Defendant

21 Clapper released a “letter of apology” to Congress that the statements to the Senate were “clearly
22 erroneous.” James Risen, Lawmakers Question White House Account of an Internet Surveillance
23
Program, N.Y. Times, July 3, 2013, http://nyti.ms/16PNs0q. 24

25

Equivocations and noncompliance make it impossible for individuals, including

26 journalists and their sources, to understand the limits of the surveillance program. While the

27 government maintains that it only searches phone records in cases involving national security,

28 10
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this label does not give reporters and sources enough guidance about the government’s activities. 1 2 Concerns over “national security” can range from the very real threat of loss of life if certain

3 information is published to international embarrassment and damage to trade relations when our

4 allies realize the U.S. government has been spying on them. See e.g. James Risen and Eric
5 Lichtblau, Bush Lets U.S. Spy on Callers without Courts, N.Y. Times, Dec. 16 2005, 6
http://nyti.ms/16C62Xp; Vivienne Walt, European Officials Infuriated by Alleged NSA Spying 7
on Friendly Diplomats, Time, June 30 2013, http://ti.me/19LYkl5; Peter Nicholas, Obama’s 8 9 Other Mission: Soothing Allies on Espionage, Wall St. Journal, Sept. 6 2013,
10 http://on.wsj.com/15BeQ0f. Uncertainty about whether their communications are at risk of

11 exposure causes sources on a wide range of topics to fall silent. See Leonard Downie Jr., The

12 Obama Administration and the Press: Leak investigations and surveillance in post-9/11
13 America, Comm. To Protect Journalists, Oct. 10, 2013, http://bit.ly/1c3Cnfg; Jamie Schuman, 14
The Shadows of the Spooks, The News Media and the Law, Fall 2013. 15
Without judicial oversight, these problems could threaten to grow only worse. This 16 17 Court has the opportunity to step in and vindicate well-established rights of the media and public

18 under the First Amendment.

19

20 DATED: November 18, 13

Respectfully submitted,

21

By: /s/ Joshua Koltun

22 Joshua Koltun, Attorney (Bar No. 173040)

23

Bruce D. Brown

24

The Reporters Committee for

Freedom of the Press 25

26

Attorneys for Amici Curiae

REPORTERS COMMITTEE FOR

27

FREEDOM OF THE PRESS AND 13 OTHER

NEWS ORGANIZATIONS 28
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APPENDIX A 1

2

Advance Publications, Inc., directly and through its subsidiaries, publishes 18 magazines

3 with nationwide circulation, newspapers in over 20 cities and weekly business journals in over

4 40 cities throughout the United States. It also owns many Internet sites and has interests in cable

5 systems serving over 2.3 million subscribers.

6

With some 500 members, American Society of News Editors (“ASNE”) is an

7 organization that includes directing editors of daily newspapers throughout the Americas. ASNE

8 changed its name in April 2009 to American Society of News Editors and approved broadening

9 its membership to editors of online news providers and academic leaders. Founded in 1922 as 10 American Society of Newspaper Editors, ASNE is active in a number of areas of interest to top 11 editors with priorities on improving freedom of information, diversity, readership and the 12 credibility of newspapers.

13

Belo Corp. owns 20 television stations that reach more than 14% of U.S. television

14 households.

15

The E.W. Scripps Company is a diverse, 131-year-old media enterprise with interests in

16 television stations, newspapers, local news and information websites and licensing and

17 syndication. The company’s portfolio of locally focused media properties includes: 19 TV

18 stations (ten ABC affiliates, three NBC affiliates, one independent and five Spanish-language

19 stations); daily and community newspapers in 13 markets; and the Washington-based Scripps

20 Media Center, home of the Scripps Howard News Service.

21

First Amendment Coalition is a nonprofit public interest organization dedicated to

22 defending free speech, free press and open government rights in order to make government, at all

23 levels, more accountable to the people. The Coalition’s mission assumes that government

24 transparency and an informed electorate are essential to a self-governing democracy. To that end, 25 we resist excessive government secrecy (while recognizing the need to protect legitimate state 26 secrets) and censorship of all kinds. 27

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1

Los Angeles Times Communications LLC publishes the Los Angeles Times, the largest

2 metropolitan daily newspaper in the country. The Los Angeles Times operates the website

3 www.latimes.com, a leading source of national and international news.

4

The McClatchy Company, through its affiliates, is the third-largest newspaper publisher

5 in the United States with 30 daily newspapers and related websites as well as numerous

6 community newspapers and niche publications.

7

The National Press Photographers Association (“NPPA”) is a 501(c)(6) non-profit

8 organization dedicated to the advancement of visual journalism in its creation, editing and

9 distribution. NPPA’s approximately 7,000 members include television and still photographers,

10 editors, students and representatives of businesses that serve the visual journalism industry. Since

11 its founding in 1946, the NPPA has vigorously promoted the constitutional rights of journalists

12 as well as freedom of the press in all its forms, especially as it relates to visual journalism. The

13 submission of this brief was duly authorized by Mickey H. Osterreicher, its General Counsel.

14

The Newspaper Guild – CWA is a labor organization representing more than 30,000

15 employees of newspapers, newsmagazines, news services and related media enterprises. Guild

16 representation comprises, in the main, the advertising, business, circulation, editorial,

17 maintenance and related departments of these media outlets. The Newspaper Guild is a sector of

18 the Communications Workers of America. CWA is America’s largest communications and

19 media union, representing over 700,000 men and women in both private and public sectors.

20

North Jersey Media Group Inc. (“NJMG”) is an independent, family-owned printing and

21 publishing company, parent of two daily newspapers serving the residents of northern New

22 Jersey: The Record (Bergen County), the state’s second-largest newspaper, and the Herald News

23 (Passaic County). NJMG also publishes more than 40 community newspapers serving towns

24 across five counties and a family of glossy magazines, including (201) Magazine, Bergen

25 County’s premiere magazine. All of the newspapers contribute breaking news, features, columns

26 and local information to NorthJersey.com. The company also owns and publishes Bergen.com

27 showcasing the people, places and events of Bergen County.

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1

Online News Association (“ONA”) is the world’s largest association of online journalists.

2 ONA’s mission is to inspire innovation and excellence among journalists to better serve the

3 public. ONA’s more than 2,000 members include news writers, producers, designers, editors,

4 bloggers, technologists, photographers, academics, students and others who produce news for the

5 Internet or other digital delivery systems. ONA hosts the annual Online News Association

6 conference and administers the Online Journalism Awards. ONA is dedicated to advancing the

7 interests of digital journalists and the public generally by encouraging editorial integrity and

8 independence, journalistic excellence and freedom of expression and access.

9

Society of Professional Journalists (“SPJ”) is dedicated to improving and protecting

10 journalism. It is the nation’s largest and most broad-based journalism organization, dedicated to

11 encouraging the free practice of journalism and stimulating high standards of ethical behavior.

12 Founded in 1909 as Sigma Delta Chi, SPJ promotes the free flow of information vital to a well-

13 informed citizenry, works to inspire and educate the next generation of journalists and protects

14 First Amendment guarantees of freedom of speech and press.

15

WP Company LLC (d/b/a The Washington Post) publishes one of the nation’s most

16 prominent daily newspapers, as well as a website, www.washingtonpost.com, that is read by an

17 average of more than 20 million unique visitors per month.

18

19

20

21

22

23

24

25

26

27

28 14
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1

APPENDIX B

2 Of counsel for amici:

3
Richard A. Bernstein 4 Sabin, Bermant & Gould LLP

5

4 Times Square, 23rd Floor New York, NY 10036

6 Counsel for Advance Publications, Inc.

7 Kevin M. Goldberg

Fletcher, Heald & Hildreth, PLC 8 1300 N. 17th St., 11th Floor

9

Arlington, VA 22209 Counsel for American Society of News Editors

10 Russell F. Coleman
11 Belo Corp. 400 S. Record Street
12 Dallas, TX 75202

13 David M. Giles
14 Vice President/ Deputy General Counsel
15 The E.W. Scripps Company
312 Walnut St., Suite 2800 16 Cincinnati, OH 45202

17 Peter Scheer
18 First Amendment Coalition 534 Fourth St., Suite B
19 San Rafael, CA 94901

20 Jeffrey Glasser 21 Senior Counsel
Tribune Company 22 202 West First Street
Los Angeles, CA 90012 23

24

Karole Morgan-Prager Juan Cornejo

25 The McClatchy Company 2100 Q Street

26 Sacramento, CA 95816

27 Mickey H. Osterreicher 28 1100 M&T Center, 3 Fountain Plaza,
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Buffalo, NY 14203 1 Counsel for National Press Photographers Association

2 Barbara L. Camens

3 Barr & Camens

1025 Connecticut Ave., NW 4 Suite 712

5

Washington, DC 20036 Counsel for The Newspaper Guild – CWA

6 Jennifer A. Borg
7 General Counsel North Jersey Media Group Inc.
8 1 Garret Mountain Plaza 9 Woodland Park, NJ 07424

10 Jonathan D. Hart Dow Lohnes PLLC
11 1200 New Hampshire Ave., NW Washington, DC 20036
12 Counsel for Online News Association

13 Bruce W. Sanford
14 Laurie A. Babinski Baker & Hostetler LLP
15 1050 Connecticut Ave., NW
Suite 1100 16 Washington, DC 20036
17 Counsel for Society of Professional Journalists

18 John B. Kennedy James A. McLaughlin
19 Kalea S. Clark
The Washington Post 20 1150 15th Street, N.W.
21 Washington, D.C. 20071

22

23

24

25

26

27

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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 BENJAMIN W. BERKOWITZ (SBN 244441)

3

KURT OPSAHL (SBN 191303) DAVID GREENE (SBN 160107)

PHILIP J. TASSIN (SBN 287787) KEKER, VAN NEST & PETERS, LLP

4 JAMES S. TYRE (SBN 083117) ANDREW CROCKER (SBN 291596)
5 JAMIE L. WILLIAMS (SBN 279046 )

633 Battery Street San Francisco, CA 94111 Telephone: 415/391-5400; Fax: 415/397-7188

AARON MACKEY (SBN 286647) 6 ELECTRONIC FRONTIER FOUNDATION 7 815 Eddy Street
San Francisco, CA 94109

RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE

8 Telephone: 415/436-9333; Fax: 415/436-9993 One California Street, Suite 900

San Francisco, CA 94111

9 THOMAS E. MOORE III (SBN 115107)

Telephone: 415/433-3200; Fax: 415/433-6382

tmoore@rroyselaw.com 10 ROYSE LAW FIRM, PC

ARAM ANTARAMIAN (SBN 239070)

11 149 Commonwealth Drive, Suite 1001 Menlo Park, CA 94025

antaramian@sonic.net LAW OFFICE OF ARAM ANTARAMIAN

12

Telephone: 650/813-9700; Fax: 650/813-9777 1714 Blake Street Berkeley, CA 94703

13 Counsel for Plaintiffs

Telephone: 510/289-1626

14 UNITED STATES DISTRICT COURT

15 NORTHERN DISTRICT OF CALIFORNIA

16 OAKLAND DIVISION

17 FIRST UNITARIAN CHURCH OF LOS

) Case No: 4:13-cv-03287 JSW

18 ANGELES, et al.,

)

19

v.

Plaintiffs,

) STIPULATION AND [PROPOSED] ) ORDER TO STAY CASE PENDING

20 NATIONAL SECURITY AGENCY, et al.,

) THE APPEAL OF JEWEL v. ) NATIONAL SECURITY AGENCY

21

)

Defendants.

)

22

)

)

23

)

24

) )

25

26

27

28

STIPULATION & (PROPOSED) ORDER

Case 4:13-cv-03287-JSW Document 150 Filed 09/25/19 Page 2 of 5
1 THE PARTIES, BY AND THROUGH THEIR RESPECTIVE COUNSEL,
2 HEREBY STIPULATE, that this action shall be stayed in its entirety as to all parties
3 pending the final disposition of the appeal of Jewel, et al. v. National Security Agency, et
4 al., N.D. Cal. Case No. 08-CV-4373-JSW (“Jewel”), now pending before the Ninth
5 Circuit Court of Appeals as Case No. 19-16066. The stay is necessary because the
6 resolution of several of the issues pending in the Jewel appeal will potentially inform the
7 disposition of similar issues pending in this case. Judicial economy will be better served
8 for those issues to be resolved through the appellate process in Jewel than for any aspect
9 of this case to proceed at this time.
10 In entering into this stipulation, plaintiffs do not concede that an adverse ruling in
11 the Jewel appeal would deprive them of standing in the instant action. To the contrary,
12 and by way of example only, it is plaintiffs’ position that the government cannot
13 reasonably dispute the standing of those plaintiffs who were Verizon Business Network
14 Services subscribers whose communications and data were collected as described in the
15 government-acknowledged April 25, 2013 FISC order. Plaintiffs reserve the right to
16 bring a motion to end the stay if there is a material change of circumstances, including an
17 undue delay in the Jewel appeal.
18 The government, in turn, notes that by entering this stipulation it does not concede
19 that an adverse ruling in the Jewel appeal would establish plaintiffs’ standing in this case.
20 Nor does the government concede that any of the plaintiffs in this case, including those
21 who were Verizon Business Network Services subscribers, as described above, have
22 standing to maintain their claims. Nevertheless, the parties’ disagreement on standing is
23 immaterial for present purposes because both parties agree that the case should be stayed
24 pending the final disposition of the appeal in Jewel.
25
26
27
28 1
STIPULATION AND [PROPOSED] ORDER Case No. 13-cv-3287-JSW

Case 4:13-cv-03287-JSW Document 150 Filed 09/25/19 Page 3 of 5

1 Dated: September 20, 2019

By:

2 COUNSEL FOR PLAINTIFFS:
3

4

s/ Thomas E. Moore III

5

ELECTRONIC FRONTIER FOUNDATION

6

CINDY COHN (SBN 145997)

LEE TIEN (SBN 148216)

7

KURT OPSAHL (SBN 191303))

DAVID GREENE (SBN 160107)

8

JAMES S. TYRE (SBN 083117)

ANDREW CROCKER (SBN 291596)

9

JAMIE L. WILLIAMS (SBN 279046 )

AARON MACKEY (SBN 286647) 10

11

KEKER, VAN NEST & PETERS, LLP

12

RACHAEL E. MENY (SBN 178514) MICHAEL S. KWUN (SBN 198945

13

BENJAMIN BERKOWITZ (SBN 244441)

14

LAW OFFICE OF RICHARD R. WIEBE

15

RICHARD R. WIEBE (SBN 121156)

16

ROYSE LAW FIRM, PC

17

THOMAS E. MOORE III (SBN 115107)

18

LAW OFFICE OF ARAM ANTARAMIAN

19

ARAM ANTARAMIAN (SBN 239070)

20

21

22

23

24

25

26

27

28

1

STIPULATION AND [PROPOSED] ORDER Case No. 13-cv-3287-JSW

Case 4:13-cv-03287-JSW Document 150 Filed 09/25/19 Page 4 of 5

1

COUNSEL FOR THE GOVERNMENT

ENTITY AND OFFICIAL CAPACITY

2

DEFENDANTS:

3

STUART F. DELERY

Assistant Attorney General

4

JOSEPH H. HUNT

Director, Federal Programs Branch

5

ANTHONY J. COPPOLINO

Deputy Branch Director

6

tony.coppolino@usdoj.gov

JAMES J. GILLIGAN

7

Special Litigation Counsel

james.gilligan@usdoj.gov

8

s/ Marcia Berman

9

MARCIA BERMAN

Senior Trial Counsel

10

marcia.berman@usdoj.gov

U.S. Department of Justice, Civil Division

11

20 Massachusetts Avenue, NW, Rm. 7132

Washington, D.C. 20001

12

Phone: (202) 514-2205; Fax: (202) 616-8470

13

14

COUNSEL FOR THE INDIVIDUAL

CAPACITY DEFENDANTS: 15

BRIAN HAUCK

16

Deputy Assistant Attorney General

17 RUPA BHATTACHARYYA

18

Director, Torts Branch

19

/s/ James R Whitman

20

JAMES R. WHITMAN (D.C. Bar No. 987694) Senior Trial Attorney

21

United States Department of Justice

Civil Division, Torts Branch

22

P.O. Box 7146, Ben Franklin Station

Washington, DC 20044-7146

23

Tel: (202) 616-4169

24

Fax: (202) 616-4314 james.whitman@usdoj.gov

25

26

27

28

2

STIPULATION AND [PROPOSED] ORDER Case No. 13-cv-3287-JSW

Case 4:13-cv-03287-JSW Document 150 Filed 09/25/19 Page 5 of 5

1

2

ORDER

3

4

5 IT IS SO ORDERED.

6 7 Dated: September 25, 2019 8

HON. JEFFREY S. WHITE

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

STIPULATION AND [PROPOSED] ORDER Case No. 13-cv-3287-JSW

 
 Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 1 of 52
ADRMOP,RELATE,STAYED
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:13−cv−03287−JSW

First Unitarian Church of Los Angeles et al v. National Security Agency et al Assigned to: Hon. Jeffrey S. White Relate Case Case: 4:08−cv−04373−JSW Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 07/16/2013 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

First Unitarian Church of Los Angeles

represented by Cindy Ann Cohn Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: cindy@eff.org LEAD ATTORNEY 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

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

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

James Samuel Tyre Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 2 of 52
Email: jstyre@jstyre.com ATTORNEY TO BE NOTICED
Justina Kahn Sessions Keker, Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111 415−391−5400 Fax: 415−397−7188 Email: jsessions@keker.com 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
Matthew Zimmerman Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: mattz@eff.org TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun Kwun Bhansali Lazarus LLP Four Embarcadero Center Suite 1400 San Francisco, CA 94111 415−630−2350 Email: mkwun@kblfirm.com TERMINATED: 05/03/2018
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

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 3 of 52

Plaintiff Bill of Rights Defense Committee

Rachael Elizabeth Meny Keker, Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111−1809 415−391−5400 Fax: 415−397−7188 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 Royse Law Firm 149 Commonwealth Drive Suite 1001 Menlo Park, CA 94025 650−813−9700 Fax: 650−813−9777 Email: tmoore@rroyselaw.com ATTORNEY TO BE NOTICED
represented by Cindy Ann Cohn (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
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (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

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 4 of 52

Plaintiff Calguns Foundation, Inc.

Lee Tien (See above for address) ATTORNEY TO BE NOTICED
Mark Thomas Rumold (See above for address) TERMINATED: 08/13/2018
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
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 Cindy Ann Cohn (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
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (See above for address) ATTORNEY TO BE NOTICED
Justina Kahn Sessions (See above for address) ATTORNEY TO BE NOTICED
Kurt Bradford Opsahl

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 5 of 52

Plaintiff
California Association of Federal Firearms Licensees Inc

(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
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
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 Cindy Ann Cohn (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
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (See above for address) ATTORNEY TO BE NOTICED
Justina Kahn Sessions (See above for address)

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 6 of 52

Plaintiff
Council on American Islamic Relations−California

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
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
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 Cindy Ann Cohn (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
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (See above for address) ATTORNEY TO BE NOTICED

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 7 of 52

Plaintiff
Council on American Islamic Relations−Ohio

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
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
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 Cindy Ann Cohn (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
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 8 of 52

Plaintiff
Council on American Islamic Relations−Foundation Inc

James Samuel Tyre (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
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
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 Cindy Ann Cohn (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
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
David A Greene

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 9 of 52

Plaintiff Franklin Armory

(See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (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
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
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 Cindy Ann Cohn (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
Benjamin Berkowitz (See above for address)

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 10 of 52

Plaintiff Free Press

ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (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
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
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 Cindy Ann Cohn (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

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 11 of 52

Plaintiff Free Software Foundation

Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (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
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
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 Cindy Ann Cohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Crocker (See above for address) ATTORNEY TO BE NOTICED

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 12 of 52

Plaintiff Greenpeace, Inc.

Aram Vazken Antaramian (See above for address) ATTORNEY TO BE NOTICED
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (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
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
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 Cindy Ann Cohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Crocker

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 13 of 52

Plaintiff Human Rights Watch

(See above for address) ATTORNEY TO BE NOTICED
Aram Vazken Antaramian (See above for address) ATTORNEY TO BE NOTICED
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (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
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
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 Cindy Ann Cohn (See above for address) LEAD ATTORNEY

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 14 of 52

Plaintiff

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
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (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
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
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

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 15 of 52

Media Alliance

represented by Cindy Ann Cohn (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
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (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
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
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

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 16 of 52

Plaintiff
National Organization for the Reform of Marijuana Laws, California Chapter

represented by Cindy Ann Cohn (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
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (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
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
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

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 17 of 52

Plaintiff People for the American Way

(See above for address) ATTORNEY TO BE NOTICED
represented by Cindy Ann Cohn (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
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (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
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
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)

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 18 of 52

Plaintiff Public Knowledge

ATTORNEY TO BE NOTICED
Thomas Edward Moore , III (See above for address) ATTORNEY TO BE NOTICED
represented by Cindy Ann Cohn (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
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (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
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
Philip James Tassin (See above for address) TERMINATED: 05/01/2020
Rachael Elizabeth Meny (See above for address) ATTORNEY TO BE NOTICED

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 19 of 52

Plaintiff Students for Sensible Drug Policy

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 Cindy Ann Cohn (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
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (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
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
Philip James Tassin (See above for address) TERMINATED: 05/01/2020

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 20 of 52

Plaintiff Techfreedom

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 Cindy Ann Cohn (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
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (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
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address) TERMINATED: 05/03/2018
Philip James Tassin

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 21 of 52

Plaintiff
Unitarian Universalist Service Committee

(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 Cindy Ann Cohn (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
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
David A Greene (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (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
Matthew Zimmerman (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Michael S Kwun (See above for address)

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 22 of 52

Plaintiff Acorn Active Media
Plaintiff Charity and Security Network

TERMINATED: 05/03/2018
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 Cindy Ann Cohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Crocker (See above for address) ATTORNEY TO BE NOTICED
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
Justina Kahn Sessions (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
Philip James Tassin (See above for address) TERMINATED: 05/01/2020
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 Cindy Ann Cohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Crocker (See above for address)

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 23 of 52

Plaintiff National Lawyers Guild

ATTORNEY TO BE NOTICED
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
Justina Kahn Sessions (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
Philip James Tassin (See above for address) TERMINATED: 05/01/2020
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 Cindy Ann Cohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Crocker (See above for address) ATTORNEY TO BE NOTICED
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
Justina Kahn Sessions (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
Philip James Tassin (See above for address) TERMINATED: 05/01/2020
Richard R. Wiebe (See above for address) ATTORNEY TO BE NOTICED

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 24 of 52

Plaintiff Patient Privacy Rights
Plaintiff Shalom Center

Thomas Edward Moore , III (See above for address) ATTORNEY TO BE NOTICED
represented by Cindy Ann Cohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Crocker (See above for address) ATTORNEY TO BE NOTICED
Benjamin Berkowitz (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
Philip James Tassin (See above for address) TERMINATED: 05/01/2020
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 Cindy Ann Cohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Crocker (See above for address) ATTORNEY TO BE NOTICED
Benjamin Berkowitz (See above for address) ATTORNEY TO BE NOTICED
Justina Kahn Sessions (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

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 25 of 52
Philip James Tassin (See above for address) TERMINATED: 05/01/2020
Richard R. Wiebe (See above for address) ATTORNEY TO BE NOTICED
Thomas Edward Moore , III (See above for address) ATTORNEY TO BE NOTICED

V. Defendant National Security Agency
Defendant

represented by 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
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
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
represented by

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 26 of 52

Keith B. Alexander Director, in his official and individual capacities TERMINATED: 08/01/2014
Defendant United States of America
Defendant United States Department of Justice
Defendant Eric H. Holder Attorney General, in his official and individual capacities

James J. Gilligan (See above for address) LEAD ATTORNEY 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 James J. Gilligan (See above for address) LEAD ATTORNEY 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
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
represented by James J. Gilligan (See above for address) LEAD ATTORNEY 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
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
represented by James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James R. Whitman U.S. Department of Justice Civil Division, Torts Branch 1425 New York Ave., N.W. Washington, DC 20005 202−616−4169 Fax: 202−416−4314 Email: james.whitman@usdoj.gov

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 27 of 52

Defendant John P. Carlin Acting Assistant Attorney General for National Security, in his official and individual capacities TERMINATED: 04/06/2017
Defendant Federal Bureau of Investigation
Defendant Robert S. Mueller Director, in his official and individual capacities TERMINATED: 03/06/2014 Defendant James R. Clapper Director of National Intelligence, in his official and individual capacities

LEAD ATTORNEY 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
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
represented by James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Berman (See above for address) ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
represented by James J. Gilligan (See above for address) LEAD ATTORNEY 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
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
represented by James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James J. Gilligan (See above for address) LEAD ATTORNEY

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 28 of 52

Defendant James B. Comey its Director, in his official capacities
Defendant Michael S. Rogers in his official and individual capacity

ATTORNEY TO BE NOTICED
James R. Whitman (See above for address) LEAD ATTORNEY 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
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
represented by James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Berman (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 James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Berman (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

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 29 of 52

Amicus Reporters Committee for Freedom of the Press Reporters Committee for Freedom of the Press
Amicus Experts in the History of Executive Surveillance
Amicus Online News Association Amicus North Jersey Media Group Inc. Amicus American Society of News Editors Amicus Advance Publications, Inc. Amicus Belo Corp.

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 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer Marie Urban UC−Berkeley/Law School Faculty 585 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 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

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 30 of 52

Amicus E.W. Scripps Company
Amicus National Press Photographers Association
Amicus The Newspaper Guild −− CWA
Amicus Society for Professional Journalists
Amicus First Amendment Coalition
Amicus Los Angeles Times Communications LLC
Amicus WP Company LLC dba The Washington Post
Amicus McClatchy Company
Amicus PEN American Center
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 Thomas R. Burke Davis Wright Tremaine LLP 505 Montgomery Street, Suite 800 San Francisco, CA 94111−6533 415/276−6500 Fax: 415/276−6599 Email: thomasburke@dwt.com ATTORNEY TO BE NOTICED
represented by Michael Henry Page Durie Tangri LLP 217 Leidesdorff Street San Francisco, CA 94111 415−376−6403 Fax: 415−236−6300 Email: mpage@durietangri.com LEAD ATTORNEY

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 31 of 52

Amicus Ron Wyden
Amicus Mark Udall
Amicus Martin Heinrich
Amicus California Attorneys for Criminal Justice

ATTORNEY TO BE NOTICED
represented by Julia Harumi Mass American Civil Liberties Union of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: jmass@aclunc.org ATTORNEY TO BE NOTICED
represented by Julia Harumi Mass (See above for address) ATTORNEY TO BE NOTICED
represented by Julia Harumi Mass (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen Kerr Dunkle Sanger Swysen and Dunkle 222 E Carrillo St Ste 300 Santa Barbara, CA 93101−7149 United Sta 805−962−4887 Fax: 806−963−7311 Email: sdunkle@sangerswysen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/16/2013
07/16/2013

# Docket Text
1 COMPLAINT; summons issued against Keith B. Alexander, John P. Carlin, James R. Clapper, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, Robert S. Mueller, National Security Agency, United States of America (Filing fee $ 400, receipt number 34611087973). Filed by Greenpeace, Inc., Council on American Islamic Relations−Foundation Inc, Public Knowledge, Bill of Rights Defense Committee, First Unitarian Church of Los Angeles, Students for Sensible Drug Policy, People for the American Way, Media Alliance, Council on American Islamic Relations−Ohio, Calguns Foundation, Inc., Free Press, Human Rights Watch, Unitarian Universalist Service Committee, National Organization for the Reform of Marijuana Laws, California Chapter, Open Technology Institute, Franklin Armory, California Association of Federal Firearms Licensees Inc, Techfreedom, Free Software Foundation, Council on American Islamic Relations−California. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(slhS, COURT STAFF) (Filed on 7/16/2013) (Entered: 07/17/2013)
2 Certificate of Interested Entities by Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Organization for the Reform of Marijuana Laws, California Chapter, Open Technology Institute, People for the American Way, Public Knowledge, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 32 of 52

07/16/2013 07/18/2013 07/19/2013 07/24/2013
07/24/2013 07/24/2013 09/10/2013
09/11/2013 09/23/2013
10/07/2013

identifying Other Affiliate New America Foundation for Open Technology Institute; Corporate Parent CBE Inc for Franklin Armory. (slhS, COURT STAFF) (Filed on 7/16/2013) (Entered: 07/17/2013)
3 ADR SCHEDULING ORDER: Case Management Statement due by 10/11/2013. Case Management Conference set for 10/18/2013 01:30 PM in Courtroom G, 15th Floor, San Francisco. (Attachments: # 1 Standing Order)(slhS, COURT STAFF) (Filed on 7/16/2013) (Additional attachment(s) added on 7/15/2015: # 2 Standing Order − JCS (Addendum)) (jlmS, COURT STAFF). (Entered: 07/17/2013)
4 NOTICE of Appearance by David A Greene (Greene, David) (Filed on 7/18/2013) (Entered: 07/18/2013)
5 NOTICE of Appearance by Aram Vazken Antaramian (Antaramian, Aram) (Filed on 7/19/2013) (Entered: 07/19/2013)
6 ORDER RELATING CASE. Counsel are instructed that all future filings in any reassigned case are to bear the initials of the newly assigned judge (JSW) immediately after the case number. Any case management conference in any reassigned case will be rescheduled by the Court. The parties shall adjust the dates for the conference, disclosures and report required by FRCivP 16 and 26 accordingly. Unless otherwise ordered, any dates for hearing noticed motions are vacated and must be re−noticed by the moving party before the newly assigned judge.. Signed by Judge Jeffrey S. White on 7/24/13. (jjoS, COURT STAFF) (Filed on 7/24/2013) (Entered: 07/24/2013)
7 ORDER REASSIGNING CASE 6 . Case reassigned to Judge Hon. Jeffrey S. White for all further proceedings. Judge Magistrate Judge Joseph C. Spero no longer assigned to the case. Signed by Hon. Judge JEFFREY S. WHITE on 7/24/13. (sv, COURT STAFF) (Filed on 7/24/2013) (Entered: 07/24/2013)
8 INITIAL SCHEDULING CONFERENCE ORDER: Case Management Conference set for 11/8/2013 01:30 PM in Courtroom 11, 19th Floor, San Francisco. Case Management Statement due by 11/1/2013.. Signed by Judge Jeffrey S. White on 7/24/13. (jjoS, COURT STAFF) (Filed on 7/24/2013) (Entered: 07/24/2013)
9 AMENDED COMPLAINT against All Defendants. Filed byGreenpeace, Inc., Council on American Islamic Relations−Foundation Inc, Public Knowledge, Bill of Rights Defense Committee, First Unitarian Church of Los Angeles, Students for Sensible Drug Policy, People for the American Way, Media Alliance, Council on American Islamic Relations−Ohio, Calguns Foundation, Inc., Free Press, Human Rights Watch, Unitarian Universalist Service Committee, National Organization for the Reform of Marijuana Laws, California Chapter, Franklin Armory, California Association of Federal Firearms Licensees Inc, Techfreedom, Free Software Foundation, Council on American Islamic Relations−California. (Attachments: # 1 Summons Amended)(Cohn, Cindy) (Filed on 9/10/2013) (Entered: 09/10/2013)
10 Summons Issued as to Keith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, Robert S. Mueller, National Security Agency, United States of America, U.S. Attorney and U.S. Attorney General (hdjS, COURT STAFF) (Filed on 9/11/2013) (Entered: 09/11/2013)
11 SUMMONS Returned Executed by Greenpeace, Inc., Council on American Islamic Relations−Foundation Inc, Public Knowledge, Bill of Rights Defense Committee, First Unitarian Church of Los Angeles, Students for Sensible Drug Policy, People for the American Way, Media Alliance, Council on American Islamic Relations−Ohio, Calguns Foundation, Inc., Free Press, Human Rights Watch, Unitarian Universalist Service Committee, National Organization for the Reform of Marijuana Laws, California Chapter, Franklin Armory, California Association of Federal Firearms Licensees Inc, Techfreedom, Free Software Foundation, Council on American Islamic Relations−California. All Defendants. (Attachments: # 1 Certificate/Proof of Service by Certified Mail)(Cohn, Cindy) (Filed on 9/23/2013) (Entered: 09/23/2013)
12 MOTION to Stay , by Govt. Defs. in their official capacities, of Case Mgmt. Conf. and Response to Complaint Deadline, in Light of Lapse of Appropriations filed by Keith B.

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 33 of 52

10/08/2013
10/09/2013 10/17/2013 10/17/2013
10/18/2013 10/21/2013 10/29/2013 10/31/2013 11/01/2013

Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, United States of America. Responses due by 10/21/2013. Replies due by 10/28/2013. (Attachments: # 1 Proposed Order)(Berman, Marcia) (Filed on 10/7/2013) (Entered: 10/07/2013)
13 RESPONSE (re 12 MOTION to Stay , by Govt. Defs. in their official capacities, of Case Mgmt. Conf. and Response to Complaint Deadline, in Light of Lapse of Appropriations ) Plaintiffs' Opposition to Defendants' Motion to Stay filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Wiebe, Richard) (Filed on 10/8/2013) (Entered: 10/08/2013)
14 ORDER by Judge JEFFREY S. WHITE denying 12 Motion to Stay (jjoS, COURT STAFF) (Filed on 10/9/2013) (Entered: 10/09/2013)
15 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Rumold, Mark) (Filed on 10/17/2013) (Entered: 10/17/2013)
16 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options FUUCLA (Attachments: # 1 Acorn Active Media, # 2 BORDC, # 3 CAIR, CA, # 4 CAIR, Inc., # 5 CAIR, OH, # 6 CAL−FFL, # 7 CA NORML, # 8 CalGuns, # 9 CSN, # 10 Franklin Armory, # 11 Free Press, # 12 FSF, # 13 Greenpeace, # 14 HRW, # 15 Media Alliance, # 16 NLG, # 17 PPR, # 18 PFAW, # 19 PK, # 20 Shalom Center, # 21 SSDP, # 22 TechFreedom, # 23 UUSC)(Rumold, Mark) (Filed on 10/17/2013) (Entered: 10/17/2013)
17 ADR Clerks Notice Setting ADR Phone Conference on Wednesday, November 6, 2013 at 10:30 AM Pacific time. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (af, COURT STAFF) (Filed on 10/18/2013) (Entered: 10/18/2013)
18 UPDATED ADR Clerks Notice Setting ADR Phone Conference on Wednesday, November 6, 2013 at 10:30 AM Pacific time. Please see attached document for new call−in information. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (af, COURT STAFF) (Filed on 10/21/2013) (Entered: 10/21/2013)
19 MOTION to Continue or Vacate Initial Case Management Conference filed by Keith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, United States of America. (Attachments: # 1 Proposed Order)(Berman, Marcia) (Filed on 10/29/2013) (Entered: 10/29/2013)
20 JOINT CASE MANAGEMENT STATEMENT and Proposed Order filed by Keith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, United States of America. (Berman, Marcia) (Filed on 10/31/2013) (Entered: 10/31/2013)
21 RESPONSE (re 19 MOTION to Continue or Vacate Initial Case Management Conference ) filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom,

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11/06/2013
11/06/2013

Unitarian Universalist Service Committee. (Attachments: # 1 Proposed Order)(Cohn, Cindy) (Filed on 11/1/2013) (Entered: 11/01/2013)
22 NOTICE of Change of Address by Thomas Edward Moore, III (Moore, Thomas) (Filed on 11/1/2013) (Entered: 11/01/2013)
23 ORDER by Judge JEFFREY S. WHITE denying 19 Motion to Continue or Vacate Initial Case Management Conference (jjoS, COURT STAFF) (Filed on 11/5/2013) (Entered: 11/05/2013)
ADR Remark: ADR Phone Conference held by Daniel Bowling, ADR Program Staff Attorney, on November 6, 2013. (af, COURT STAFF) (Filed on 11/6/2013) (Entered: 11/06/2013)
24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. Motion Hearing set for 2/7/2014 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. Responses due by 12/6/2013. Replies due by 1/10/2014. (Attachments: # 1 Proposed Order)(Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
25 Declaration of Thomas E. Moore III in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N)(Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
26 Declaration of Sascha Meinrath for Acorn Active Media in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
27 Declaration of Shahid Buttar for The Bill of Rights Defense Committee in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc.,

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California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
28 Declaration of Zahra Billoo for The Council on American−Islamic Relations, California in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
29 Declaration of Gadeir Abbas for The Council on American−Islamic Relations in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
30 Declaration of Jennifer Nimer for The Council on American−Islamic Relations, Ohio in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
31 Declaration of Brandon Combs for California Association of Federal Firearms Licensees in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance,

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National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
32 Declaration of Gene Hoffman, Jr. for CalGuns Foundation, Inc. in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
33 Declaration of Kay Guinane for Charity & Security Network in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
34 Declaration of Jay Jacobson for The Franklin Armory in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
35 Declaration of Matthew F. Wood for Free Press in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)

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36 Declaration of John Sullivan for Free Software Foundation in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
37 Declaration of The Reverend Rick Hoyt for the First Unitarian Church of Los Angeles in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
38 Declaration of Deepa Padmanabha for Greenpeace, Inc. in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
39 Declaration of Dinah PoKempner for Human Rights Watch in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
40 Declaration of Tracy Rosenberg for Media Alliance in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic

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Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
41 Declaration of Heidi Boghosian for National Lawyers Guild in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
42 Declaration of Dale Gieringer for California Chapter of NORML in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
43 Declaration of Deborah Liu for People for the American Way in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
44 Declaration of Sherwin Siy for Public Knowledge in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge,

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Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
45 Declaration of Dr. Deborah C. Peel for Patient Privacy Rights in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
46 Declaration of Rabbi Arthur Waskow for The Shalom Center in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
47 Declaration of Anastacia Cosner for Students for Sensible Drug Policy in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
48 Declaration of Berin Szoka for TechFreedom in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
49 Declaration of Constance Kane for Unitarian Universalist Service Committee in Support of 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First

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11/18/2013

Amendment filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 24 ) (Moore, Thomas) (Filed on 11/6/2013) (Entered: 11/06/2013)
50 Minute Entry: Initial Case Management Conference held on 11/8/2013 before Judge Jeffrey S. White (Date Filed: 11/12/2013). Cross Motion Hearing set for 4/25/2014 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. (Court Reporter Julie Ralston.) (jjoS, COURT STAFF) (Date Filed: 11/12/2013) (Entered: 11/12/2013)
Set/Reset Deadlines as to 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment. Motion Hearing set for 4/25/2014 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. (jjoS, COURT STAFF) (Filed on 11/12/2013) (Entered: 11/12/2013)
51 ***erroneous docket entry***First MOTION for leave to appear in Pro Hac Vice Bruce D. Brown ( Filing fee $ 305, receipt number 0971−8154727.) filed by Reporters Committee for Freedom of the Press. (Attachments: # 1 Certificate of Good Standing)(Brown, Bruce) (Filed on 11/13/2013) Modified on 11/14/2013 (hdjS, COURT STAFF). (Entered: 11/13/2013)
52 MOTION for leave to appear in Pro Hac Vice Bruce Brown (Filing fee $ 305.) Filing fee previously paid on 11/13/13 filed by Reporters Committee for Freedom of the Press. (Attachments: # 1 Bruce Brown Certificate of Good Standing)(Brown, Bruce) (Filed on 11/14/2013) (Entered: 11/14/2013)
53 MOTION for Leave to File Brief Amicus Curiae in Support of Plaintiffs' Motion for Partial Summary Judgment filed by Experts in the History of Executive Surveillance. (Attachments: # 1 Exhibit Exhibit A: Brief Amicus Curiae of Experts in the History of Executive Surveillance: James Bamford, Loch Johnson, and Peter Fenn)(Urban, Jennifer) (Filed on 11/15/2013) (Entered: 11/15/2013)
54 Proposed Order re 53 MOTION for Leave to File Brief Amicus Curiae in Support of Plaintiffs' Motion for Partial Summary Judgment 3:13−CV−03287 JSW by Experts in the History of Executive Surveillance. (Urban, Jennifer) (Filed on 11/15/2013) (Entered: 11/15/2013)
55 ORDER by Judge JEFFREY S. WHITE granting 52 Motion for Pro Hac Vice for Bruce D. Brown (jjoS, COURT STAFF) (Filed on 11/15/2013) (Entered: 11/15/2013)
56 MOTION for Leave to File Amici Brief filed by Reporters Committee for Freedom of the Press, Online News Association, North Jersey Media Group Inc., American Society of News Editors, Advance Publications, Inc., Belo Corp., E.W. Scripps Company, National Press Photographers Association, The Newspaper Guild −− CWA, Society for Professional Journalists, First Amendment Coalition, Los Angeles Times Communications LLC, WP Company LLC dba The Washington Post, McClatchy Company. (Attachments: # 1 Exhibit Proposed Amici Brief)(Koltun, Joshua) (Filed on 11/18/2013) (Entered: 11/18/2013)
57 Proposed Order re 56 MOTION for Leave to File Amici Brief by Advance Publications, Inc., American Society of News Editors, Belo Corp., E.W. Scripps Company, First Amendment Coalition, Los Angeles Times Communications LLC, McClatchy Company, National Press Photographers Association, North Jersey Media Group Inc., Online News Association, Reporters Committee for Freedom of the Press, Society for Professional Journalists, The Newspaper Guild −− CWA, WP Company LLC dba The Washington Post. (Koltun, Joshua) (Filed on 11/18/2013) (Entered: 11/18/2013)

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 41 of 52

11/18/2013
11/18/2013
11/18/2013 11/18/2013 11/18/2013 11/18/2013 12/04/2013 12/05/2013 12/06/2013
12/06/2013
12/10/2013

58 MOTION for Leave to File CORRECTED AMICUS BRIEF filed by Advance Publications, Inc., American Society of News Editors, Belo Corp., E.W. Scripps Company, First Amendment Coalition, Los Angeles Times Communications LLC, McClatchy Company, National Press Photographers Association, North Jersey Media Group Inc., Online News Association, Reporters Committee for Freedom of the Press, Society for Professional Journalists, The Newspaper Guild −− CWA, WP Company LLC dba The Washington Post. (Attachments: # 1 Exhibit CORRECTED Amicus Brief)(Koltun, Joshua) (Filed on 11/18/2013) (Entered: 11/18/2013)
59 Proposed Order re 58 MOTION for Leave to File CORRECTED AMICUS BRIEF by Advance Publications, Inc., American Society of News Editors, Belo Corp., E.W. Scripps Company, First Amendment Coalition, Los Angeles Times Communications LLC, McClatchy Company, National Press Photographers Association, North Jersey Media Group Inc., Online News Association, Reporters Committee for Freedom of the Press, Society for Professional Journalists, The Newspaper Guild −− CWA, WP Company LLC dba The Washington Post. (Koltun, Joshua) (Filed on 11/18/2013) (Entered: 11/18/2013)
60 First MOTION to File Amicus Curiae Brief filed by PEN American Center. Responses due by 12/2/2013. Replies due by 12/9/2013. (Attachments: # 1 Proposed Order)(Burke, Thomas) (Filed on 11/18/2013) (Entered: 11/18/2013)
61 Brief re 60 First MOTION to File Amicus Curiae Brief in support of Plaintiffs' Motion for Partial Summary Judgment filed byPEN American Center. (Related document(s) 60 ) (Burke, Thomas) (Filed on 11/18/2013) (Entered: 11/18/2013)
62 MOTION to File Amicus Curiae Brief filed by National Association of Criminal Defense Lawyers. Motion Hearing set for 2/7/2014 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. Responses due by 12/2/2013. Replies due by 12/9/2013. (Attachments: # 1 Exhibit Brief Amicus Curiae, # 2 Proposed Order)(Page, Michael) (Filed on 11/18/2013) (Entered: 11/18/2013)
63 MOTION to File Amicus Curiae Brief in support of Plaintiffs' Motion for Partial Summary Judgment filed by Ron Wyden, Mark Udall, Martin Heinrich. Responses due by 12/2/2013. Replies due by 12/9/2013. (Attachments: # 1 Proposed Order, # 2 Amicus Brief in Support of Plaintiffs' Motion for Partial Summary Judgment)(Mass, Julia) (Filed on 11/18/2013) (Entered: 11/18/2013)
64 Consent MOTION for Leave to File Excess Pages filed by Keith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, United States of America. (Attachments: # 1 Proposed Order)(Berman, Marcia) (Filed on 12/4/2013) (Entered: 12/04/2013)
65 ORDER by Judge Jeffrey S. White granting 64 Motion for Leave to File Excess Pages (jjoS, COURT STAFF) (Filed on 12/5/2013) (Entered: 12/05/2013)
66 MOTION to Dismiss and Opposition to Plaintiffs' Motion for Partial Summary Judgment filed by Keith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, United States of America. Motion Hearing set for 4/25/2014 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. Responses due by 1/10/2014. Replies due by 1/24/2014. (Attachments: # 1 Proposed Order)(Berman, Marcia) (Filed on 12/6/2013) (Entered: 12/06/2013)
67 Declaration of James Gilligan in Support of 66 MOTION to Dismiss and Opposition to Plaintiffs' Motion for Partial Summary Judgment filed byKeith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, United States of America. (Attachments: # 1 Ex. A, # 2 Ex. B, # 3 Ex. C, # 4 Ex. D, # 5 Ex. E, # 6 Ex. F, # 7 Ex. G, # 8 Ex. H, # 9 Ex. I, # 10 Ex. J, # 11 Ex. K, # 12 Ex. L, # 13 Ex. M, # 14 Ex. N, # 15 Ex. O, # 16 Ex. P, # 17 Ex. Q, # 18 Ex. R)(Related document(s) 66 ) (Berman, Marcia) (Filed on 12/6/2013) (Entered: 12/06/2013)
68 NOTICE of Appearance by Andrew Gellis Crocker (Crocker, Andrew) (Filed on 12/10/2013) (Entered: 12/10/2013)

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 42 of 52

12/19/2013
12/20/2013 12/30/2013 01/25/2014
01/25/2014
01/25/2014

69 STIPULATION WITH PROPOSED ORDER To Extend Briefing Schedule For Parties' Cross Motions for Partial Summary Judgment and to Dismiss filed by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Cohn, Cindy) (Filed on 12/19/2013) (Entered: 12/19/2013)
70 Amicus Curiae APPEARANCE entered by Stephen Kerr Dunkle on behalf of California Attorneys for Criminal Justice. (Attachments: # 1 Exhibit)(Dunkle, Stephen) (Filed on 12/20/2013) (Entered: 12/20/2013)
71 ORDER by Judge JEFFREY S. WHITE granting 69 Stipulation To Extend Briefing Schedule For Parties' Cross Motions for Partial Summary Judgment and to Dismiss (jjoS, COURT STAFF) (Filed on 12/30/2013) (Entered: 12/30/2013)
72 REPLY (re 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment ) and Opposition to Defendants' Motion to Dismiss filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Attachments: # 1 Proposed Order)(Cohn, Cindy) (Filed on 1/25/2014) (Entered: 01/25/2014)
73 Declaration of Cindy Cohn in Support of 72 Reply to Opposition/Response,,,, filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 72 ) (Cohn, Cindy) (Filed on 1/25/2014) (Entered: 01/25/2014)
74 Declaration of Cindy Cohn Pursuant to Civ. L.R. 5−1(e)(5) filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Cohn, Cindy) (Filed on 1/25/2014) (Entered: 01/25/2014)

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 43 of 52

01/28/2014 02/05/2014 02/05/2014 02/05/2014 02/05/2014 02/10/2014 02/21/2014
02/21/2014
02/25/2014 03/06/2014
03/07/2014 03/10/2014

75 ORDER by Judge Jeffrey S. White granting 62 Motion to File Amicus Curiae Brief (jjoS, COURT STAFF) (Filed on 1/28/2014) (Entered: 01/28/2014)
76 ORDER by Judge JEFFREY S. WHITE granting 53 Motion for Leave to File Amicus Curiae Brief (jjoS, COURT STAFF) (Filed on 2/5/2014) (Entered: 02/05/2014)
77 ORDER by Judge Jeffrey S. White granting 60 Motion to File Amicus Curiae Brief (jjoS, COURT STAFF) (Filed on 2/5/2014) (Entered: 02/05/2014)
78 ORDER by Judge JEFFREY S. WHITE granting 58 Motion for Leave to File Amicus Curiae Brief (jjoS, COURT STAFF) (Filed on 2/5/2014) (Entered: 02/05/2014)
79 ORDER by Judge JEFFREY S. WHITE granting 63 Motion to File Amicus Curiae Brief (jjoS, COURT STAFF) (Filed on 2/5/2014) (Entered: 02/05/2014)
80 Brief Brief Amicus Curiae in Support of Plaintiffs' Motion for Partial Summary Judgment filed byExperts in the History of Executive Surveillance. (Urban, Jennifer) (Filed on 2/10/2014) (Entered: 02/10/2014)
81 REPLY (re 66 MOTION to Dismiss and Opposition to Plaintiffs' Motion for Partial Summary Judgment ) (Government Defendants' Reply in Support of Their Motion To Dismiss) filed byKeith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, Robert S. Mueller, National Security Agency, United States of America. (Attachments: # 1 Declaration (Supplemental Declaration of Theresa H. Shea))(Gilligan, James) (Filed on 2/21/2014) (Entered: 02/21/2014)
82 RESPONSE (re 66 MOTION to Dismiss and Opposition to Plaintiffs' Motion for Partial Summary Judgment ) (Government Defendants' Opposition To Plaintiffs' Motion To Strike) filed byKeith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, Robert S. Mueller, National Security Agency, United States of America. (Gilligan, James) (Filed on 2/21/2014) (Entered: 02/21/2014)
83 CLERKS NOTICE VACATING HEARING ON 24 MOTION FOR PARTIAL SUMMARY JUDGMENT; AND 66 MOTION TO DISMISS (jjoS, COURT STAFF) (Filed on 2/25/2014) (Entered: 02/25/2014)
84 NOTICE of Voluntary Dismissal per Rule 41(a)(1) of Defendant Robert S. Mueller by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee (Wiebe, Richard) (Filed on 3/6/2014) (Entered: 03/06/2014)
85 NOTICE by Keith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, United States of America Gvt. Defs.' Notice Regarding Order of the Foreign Intelligence Surveillance Court (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Berman, Marcia) (Filed on 3/7/2014) (Entered: 03/07/2014)
86 MOTION for Temporary Restraining Order filed by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy,

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 44 of 52

03/10/2014 03/10/2014 03/10/2014 03/10/2014
03/13/2014
03/14/2014 03/17/2014 03/17/2014 03/18/2014 03/18/2014

Techfreedom, Unitarian Universalist Service Committee. (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)
87 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)
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)
88 RESPONSE to Court's Order re: Plaintiffs' Motion for TRO by Keith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, 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)
89 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)
90 Brief Plaintiffs' Opening Brief Re Evidence Preservation filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Attachments: # 1 Proposed Order)(Cohn, Cindy) (Filed on 3/13/2014) (Entered: 03/13/2014)
91 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)
92 RESPONSE to re 90 Brief,,, (Government Defendants' Response to Plaintiffs' Opening Brief re Preservation of Evidence) by Keith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, 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)
93 NOTICE by Keith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, 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)
94 Clerk's Notice Regarding Proposed Video Recording (zml, COURT STAFF) (Filed on 3/18/2014) (Entered: 03/18/2014)
95 Brief re 90 Brief,,, Plaintiffs' Reply Brief Re Evidence Preservation filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 45 of 52

03/18/2014 03/19/2014
03/19/2014
03/19/2014 03/19/2014 03/20/2014
03/20/2014

Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Related document(s) 90 ) (Cohn, Cindy) (Filed on 3/18/2014) (Entered: 03/18/2014)
96 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)
97 TRANSCRIPT ORDER by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee for Court Reporter Lydia Zinn. (Cohn, Cindy) (Filed on 3/19/2014) (Entered: 03/19/2014)
98 *** SEE CORRECTED TRANSCRIPT AT 101 . *** 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)
99 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−03287−JSW) MOTION for Temporary Restraining Order. (Court Reporter Lydia Zinn.) (jjoS, COURT STAFF) (Date Filed: 3/19/2014) Modified on 4/26/2019 (cjlS, COURT STAFF). (Entered: 03/20/2014)
106 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−cv−04373−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)
100 Proposed Order re Preservation of Evidence by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Cohn, Cindy) (Filed on 3/20/2014) (Entered: 03/20/2014)
101 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

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 46 of 52

03/20/2014 03/21/2014 03/21/2014
03/27/2014 04/21/2014
04/21/2014 04/21/2014

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)
102 NOTICE by Keith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, United States of America (Government Defendants' Notice of Filing of Proposed Preservation Order) (Gilligan, James) (Filed on 3/20/2014) (Entered: 03/20/2014)
103 ORDER. Signed by Judge Jeffrey S. White on March 21, 2014. (jswlc2, COURT STAFF) (Filed on 3/21/2014) (Entered: 03/21/2014)
104 NOTICE by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee Notice of Opinion and Order by Foreign Intelligence Surveillance Court (Cohn, Cindy) (Filed on 3/21/2014) (Entered: 03/21/2014)
105 NOTICE of Change In Counsel by Cindy Ann Cohn (Cohn, Cindy) (Filed on 3/27/2014) (Entered: 03/27/2014)
107 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, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, United States of America, by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee (Gilligan, James) (Filed on 4/21/2014) Modified on 4/22/2014 (jlmS, COURT STAFF). (Entered: 04/21/2014)
108 ORDER Granting Motion to File Under Seal. Signed by Judge JEFFREY S. WHITE on 3/21/14. (jjoS, COURT STAFF) (Filed on 4/21/2014) (Entered: 04/21/2014)
109 DOCUMENT E−FILED UNDER SEAL re 108 Order Granting Motion to File Under Seal Declaration of Andrew Crocker Describing Compliance with Preservation Order by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Crocker, Andrew) (Filed on 4/21/2014) (Entered: 04/21/2014)

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 47 of 52

04/21/2014 04/22/2014 05/05/2014 05/05/2014 07/16/2014
07/16/2014
08/01/2014

110 NOTICE of Identification of Classified Declarations Filed on the Public Record in Redacted Form and Those Undergoing Classification Review, filed by Keith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, United States of America (Gilligan, James) (Filed on 4/21/2014) Modified on 4/22/2014 (jlmS, COURT STAFF). (Entered: 04/21/2014)
111 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)
112 Administrative Motion to File Under Seal Government Defendants' Response to the Court's Order of March 21, 2014, Regarding Preservation of Evidence, filed by Keith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, Robert S. Mueller, National Security Agency, United States of America. (Attachments: # 1 Affidavit (Declaration of James J. Gilligan), # 2 Proposed Order, # 3 Exhibit (Government Defendants' Response to the Court's Order of March 21, 2014, Regarding Preservation of Evidence))(Gilligan, James) (Filed on 5/5/2014) Modified on 5/6/2014 (jlmS, COURT STAFF). (Entered: 05/05/2014)
113 NOTICE of Lodging of Classified Declaration for Ex Parte In Camera Review, filed by Keith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, Robert S. Mueller, National Security Agency, United States of America (Gilligan, James) (Filed on 5/5/2014) Modified on 5/6/2014 (jlmS, COURT STAFF). (Entered: 05/05/2014)
114 NOTICE of Appearance of Justina Kahn Sessions as Counsel, filed by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc., Charity and Security Network, Council on American Islamic Relations−California, Counsel on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee, (Sessions, Justina) (Filed on 7/16/2014) Modified on 7/17/2014 (jlmS, COURT STAFF). (Entered: 07/16/2014)
115 NOTICE of Appearance of Philip James Tassin as Counsel, filed by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc., Charity and Security Network, Council on American Islamic Relations−California, Counsel on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee, (Tassin, Philip) (Filed on 7/16/2014) Modified on 7/17/2014 (jlmS, COURT STAFF). (Entered: 07/16/2014)
116 NOTICE of Voluntary Dismissal without Prejudice of Defendant Keith B. Alexander by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 48 of 52

08/18/2014
08/19/2014 08/20/2014
08/22/2014 08/27/2014 10/31/2014
11/04/2014

Universalist Service Committee (Wiebe, Richard) (Filed on 8/1/2014) (Entered: 08/01/2014)
117 STIPULATION WITH PROPOSED ORDER for Leave to File Second Amended Complaint, filed by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, National Security Agency. (Cohn, Cindy) (Filed on 8/18/2014) Modified on 8/19/2014 (jlmS, COURT STAFF). (Entered: 08/18/2014)
118 ORDER by Judge JEFFREY S. WHITE granting 117 Stipulation for Leave to File Second Amended Complaint (jjoS, COURT STAFF) (Filed on 8/19/2014) (Entered: 08/19/2014)
119 SECOND AMENDED COMPLAINT with Jury Demand against John P. Carlin, James R. Clapper, James Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, Michael S. Rogers, United States of America. Filed by Council on American Islamic Relations−Foundation Inc, Public Knowledge, Bill of Rights Defense Committee, Shalom Center, Charity and Security Network, First Unitarian Church of Los Angeles, Students for Sensible Drug Policy, People for the American Way, Acorn Active Media, Unitarian Universalist Service Committee, National Organization for the Reform of Marijuana Laws, California Chapter, Free Software Foundation, Greenpeace, Inc., Media Alliance, National Lawyers Guild, Council on American Islamic Relations−Ohio, Calguns Foundation, Inc., Patient Privacy Rights, Free Press, Human Rights Watch, Franklin Armory, California Association of Federal Firearms Licensees Inc, Techfreedom, Council on American Islamic Relations−California. (Attachments: # 1 Summons as to Michael S. Rogers, Director, NSA)(Cohn, Cindy) (Filed on 8/20/2014) Modified on 8/21/2014 (jlmS, COURT STAFF). Modified on 8/22/2014 (jlmS, COURT STAFF). (Entered: 08/20/2014)
120 Summons Issued as to Michael S Rogers. (jlmS, COURT STAFF) (Filed on 8/22/2014) (Entered: 08/22/2014)
121 Statement of Recent Decision, filed by Keith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, United States of America. (Attachments: # 1 Smith v. Obama, 2014 WL 2506421 (June 3, 2014))(Berman, Marcia) (Filed on 8/27/2014) Modified on 8/28/2014 (jlmS, COURT STAFF). (Entered: 08/27/2014)
122 MOTION for Hearing re 24 MOTION for Partial Summary Judgment that the Telephone Records Program is Unlawful Under Section 215 of the PATRIOT Act and the First Amendment, 66 MOTION to Dismiss and Opposition to Plaintiffs' Motion for Partial Summary Judgment filed by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Attachments: # 1 Proposed Order)(Moore, Thomas) (Filed on 10/31/2014) (Entered: 10/31/2014)
123 RESPONSE re 122 Motion for Hearing for Pending Motions, filed by John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, Michael S. Rogers, United States of America. (Berman, Marcia) (Filed on 11/4/2014) Modified on 11/5/2014

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 49 of 52

12/09/2014 01/28/2015 01/29/2015 01/30/2015
02/02/2015 02/02/2015 02/03/2015
02/19/2015 05/22/2015
05/22/2015

(jlmS, COURT STAFF). (Entered: 11/04/2014)
124 ORDER by Judge JEFFREY S. WHITE denying 122 Administrative Motion for Hearing (jjoS, COURT STAFF) (Filed on 12/9/2014) (Entered: 12/10/2014)
125 Proposed Summons. (Cohn, Cindy) (Filed on 1/28/2015) (Entered: 01/28/2015)
126 Summons Issued as to John P. Carlin, James R. Clapper, James B. Comey, Eric H. Holder, Michael S. Rogers. (jlmS, COURT STAFF) (Filed on 1/29/2015) (Entered: 01/29/2015)
127 STIPULATION WITH PROPOSED ORDER to Extend Time to Answer to Complaint, filed by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee, John P. Carlin, James R. Clapper, James B. Comey, Eric H. Holder, Michael S. Rogers. (Wiebe, Richard) (Filed on 1/30/2015) Modified on 2/2/2015 (jlmS, COURT STAFF). (Entered: 01/30/2015)
128 ORDER by Judge JEFFREY S. WHITE granting 127 Stipulation (jjoS, COURT STAFF) (Filed on 2/2/2015) (Entered: 02/02/2015)
129 NOTICE of Appearance of James R. Whitman as Counsel, filed by John P. Carlin, James R. Clapper, James B. Comey, Eric H. Holder, Michael S. Rogers (Whitman, James) (Filed on 2/2/2015) Modified on 2/3/2015 (jlmS, COURT STAFF). (Entered: 02/02/2015)
130 SUMMONS Returned Executed by Council on American Islamic Relations−Foundation Inc, Public Knowledge, Bill of Rights Defense Committee, Shalom Center, Charity and Security Network, First Unitarian Church of Los Angeles, Students for Sensible Drug Policy, People for the American Way, Acorn Active Media, Unitarian Universalist Service Committee, National Organization for the Reform of Marijuana Laws, California Chapter, Free Software Foundation, Greenpeace, Inc., Media Alliance, National Lawyers Guild, Council on American Islamic Relations−Ohio, Calguns Foundation, Inc., Patient Privacy Rights, Free Press, Human Rights Watch, Franklin Armory, California Association of Federal Firearms Licensees Inc, Techfreedom, Council on American Islamic Relations−California. as to Defendants in their Individual Capacities (Wiebe, Richard) (Filed on 2/3/2015) (Entered: 02/03/2015)
131 ORDER by Judge JEFFREY S. WHITE granting 112 Administrative Motion to File Under Seal (jjoS, COURT STAFF) (Filed on 2/19/2015) (Entered: 02/19/2015)
132 Statement of Recent Decision by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Moore, Thomas) (Filed on 5/22/2015) (Entered: 05/22/2015)
133 MOTION for Hearing filed by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles,

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 50 of 52

05/29/2015 06/01/2015 09/11/2015
09/25/2015 02/20/2017
02/24/2017 03/14/2017
04/06/2017

Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Moore, Thomas) (Filed on 5/22/2015) (Entered: 05/22/2015)
134 Memorandum in Opposition re 133 Motion for Hearing, filed by Keith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, Michael S. Rogers, United States of America. (Attachments: # 1 Proposed Order)(Patton, Rodney) (Filed on 5/29/2015) Modified on 6/1/2015 (jlmS, COURT STAFF). (Entered: 05/29/2015)
135 ORDER by Judge JEFFREY S. WHITE denying 133 Motion for Hearing (jjoS, COURT STAFF) (Filed on 6/1/2015) (Entered: 06/01/2015)
136 Request for Judicial Notice filed byAcorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Moore, Thomas) (Filed on 9/11/2015) (Entered: 09/11/2015)
137 RESPONSE to 136 Request for Judicial Notice by Keith B. Alexander, John P. Carlin, James R. Clapper, James B. Comey, Department of Justice, Federal Bureau of Investigation, Eric H. Holder, Robert S. Mueller, National Security Agency, Michael S. Rogers, United States of America. (Attachments: # 1 Proposed Order)(Gilligan, James) (Filed on 9/25/2015) Modified on 9/28/2015 (kcS, COURT STAFF). (Entered: 09/25/2015)
138 NOTICE of Change of Address of Counsel for Plaintiffs, filed by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc., Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc., Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee (Wiebe, Richard) (Filed on 2/20/2017) Modified on 2/21/2017 (jlmS, COURT STAFF). (Entered: 02/20/2017)
139 NOTICE of Change of Address by Thomas Edward Moore, III (Moore, Thomas) (Filed on 2/24/2017) (Entered: 02/24/2017)
140 Notice of Firm Name and Email Address Change by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Software Foundation, Greenpeace, Inc., Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Berkowitz, Benjamin) (Filed on 3/14/2017) Modified on 3/15/2017 (cjlS, COURT STAFF). (Entered: 03/14/2017)
141 NOTICE of Voluntary Dismissal per Rule 41(a)(1) of Defendant John P. Carlin by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 51 of 52

07/19/2017 05/03/2018
08/10/2018
04/25/2019 06/03/2019 06/21/2019 06/21/2019 09/20/2019

Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee (Cohn, Cindy) (Filed on 4/6/2017) (Entered: 04/06/2017)
142 ORDER RE PRESERVATION ISSUES. Signed by Judge Jeffrey S. White on July 19, 2017. THIS IS FOR INFORMATIONAL PURPOSES ONLY. (jswlc2S, COURT STAFF) (Filed on 7/19/2017) Modified on 7/19/2017 (cjlS, COURT STAFF). (Entered: 07/19/2017)
143 NOTICE of Withdrawal of Michael Kwun as Counsel for Plaintiffs by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Kwun, Michael) (Filed on 5/3/2018) Modified on 5/4/2018 (cjlS, COURT STAFF). (Entered: 05/03/2018)
144 NOTICE by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee of Withdrawal of Mark Rumold as Counsel for Plaintiffs (Rumold, Mark) (Filed on 8/10/2018) (Entered: 08/10/2018)
145 Government Defendants' Notice of Change of Address by James J. Gilligan. (Gilligan, James) (Filed on 4/25/2019) Modified on 4/26/2019 (cjlS, COURT STAFF). (Entered: 04/25/2019)
146 ORDER REQUIRING STATUS UPDATE. Signed by Judge Jeffrey S. White on 6/3/19. Joint Status Report due by 6/21/2019. (jjoS, COURT STAFF) (Filed on 6/3/2019) (Entered: 06/03/2019)
147 NOTICE of Appearance by Olivia Hussey Scott (Scott, Olivia) (Filed on 6/21/2019) (Entered: 06/21/2019)
148 JOINT STATUS REPORT by James R. Clapper, James B. Comey, Federal Bureau of Investigation, Eric H. Holder, National Security Agency, Michael S. Rogers, United States Department of Justice, United States of America. (Scott, Olivia) (Filed on 6/21/2019) Modified on 6/21/2019 (cjlS, COURT STAFF). (Entered: 06/21/2019)
149 STIPULATION WITH PROPOSED ORDER STAY CASE PENDING THE APPEAL OF JEWEL v. NATIONAL SECURITY AGENCY filed by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Moore, Thomas) (Filed on 9/20/2019) Modified on 9/23/2019 (cjlS, COURT STAFF). (Entered: 09/20/2019)

Case: 4:13-cv-03287-JSW As of: 06/22/2020 03:57 PM PDT 52 of 52

09/25/2019 05/01/2020

150 ORDER by Judge Jeffrey S. White granting 149 Stipulation STAY CASE PENDING THE APPEAL OF JEWEL v. NATIONAL SECURITY AGENCY. (jjoS, COURT STAFF) (Filed on 9/25/2019) (Entered: 09/25/2019)
151 NOTICE OF WITHDRAWAL OF PHILIP TASSIN by Acorn Active Media, Bill of Rights Defense Committee, Calguns Foundation, Inc., California Association of Federal Firearms Licensees Inc, Charity and Security Network, Council on American Islamic Relations−California, Council on American Islamic Relations−Foundation Inc, Council on American Islamic Relations−Ohio, First Unitarian Church of Los Angeles, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Inc., Human Rights Watch, Media Alliance, National Lawyers Guild, National Organization for the Reform of Marijuana Laws, California Chapter, Patient Privacy Rights, People for the American Way, Public Knowledge, Shalom Center, Students for Sensible Drug Policy, Techfreedom, Unitarian Universalist Service Committee. (Tassin, Philip) (Filed on 5/1/2020) Modified on 5/4/2020 (cjlS, COURT STAFF). (Entered: 05/01/2020)