MEMORANDUM OPINION [Dkt. # 13 (No. 13-0851), # 10 (No. 13-0881)]
RICHARD J. LEON, District Judge.
On June 6, 2013, plaintiffs brought the first of two related lawsuits challenging the constitutionality and statutory authorization of certain intelligence-gathering practices by the United States government relating to the wholesale collection of the phone record metadata of all U.S. citizens. These related cases are two of several lawsuits arising from public revelations over the past six months that the federal government, through the National Security Agency ("NSA"), and with the participation of certain telecommunications and internet companies, has conducted surveillance and intelligence-gathering programs that collect certain data about the telephone and internet activity of American citizens within the United States. Plaintiffs - five individuals in total between No. 13-851 ( "Klayman I" ) and No. 13-881 ( "Klayman II" ) - bring these suits as U.S. citizens who are subscribers or users of certain telecommunications and internet firms. See Second Am. Compl. ( Klayman I ) [Dkt. # 37] ¶ 1; Am. Compl. ( Klayman II ) [Dkt. # 30] ¶ 1. They bring suit against both federal government defendants (several federal agencies and individual executive officials) and private defendants (telecommunications and internet firms and their executive officers), alleging statutory and constitutional violations. See generally Second Am. Compl. ( Klayman I ); Am. Compl. ( Klayman II ).
Before the Court are plaintiffs' two Motions for Preliminary Injunction [Dkt. # 13 ( Klayman I ), # 10 ( Klayman II ], one in each case. As relief, plaintiffs seek an injunction "that, during the pendency of this suit, (i) bars [d]efendants from collecting [p]laintiffs' call records under the mass call surveillance program; (ii) requires [d]efendants to destroy all of [p]laintiffs' call records already collected under the program; and (iii) prohibits [defendants from querying metadata obtained through the program using any phone number or other identifier associated with [p]laintiffs... and such other relief as may be found just and proper." Pls.' Mot. for Prelim. Inj. ( Klayman I ) [Dkt. # 13]; Pls.' Mot. for Prelim. Inj. ( Klayman II ) [Dkt. #10]; see also Pls.' Mem. P. & A. in Supp. of Mot. for Prelim. Inj. ( Klayman I ) ("Pls.' Mem.") [Dkt. # 13-1], at 30-31. In light of how plaintiffs have crafted their requested relief, the Court construes the motions as requesting a preliminary injunction (1) only as against the federal government defendants, and (2) only with regard to the government's bulk collection and querying of phone record metadata. Further, between the two cases, plaintiffs have alleged with sufficient particularity that only two of the five named plaintiffs, Larry Klayman and Charles Strange, are telephone service subscribers. Accordingly, for purposes of resolving these two motions, the Court's discussion of relevant facts, statutory background, and legal issues will be circumscribed to those defendants (hereinafter "the Government"), those two plaintiffs (hereinafter "plaintiffs"), and those claims.
For the reasons discussed below, the Court first finds that it lacks jurisdiction to hear plaintiffs' Administrative Procedure Act ("APA") claim that the Government has exceeded its statutory authority under the Foreign Intelligence Surveillance Act ("FISA"). Next, the Court finds that it does, however, have the authority to evaluate plaintiffs' constitutional challenges to the NSA's conduct, notwithstanding the fact that it was done pursuant to orders issued by the Foreign Intelligence Surveillance Court ("FISC"). And after careful consideration of the parties' pleadings and supplemental pleadings, the representations made on the record at the November 18, 2013 hearing regarding these two motions, and the applicable law, the Court concludes that plaintiffs have standing to challenge the constitutionality of the Government's bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief. Accordingly, the Court will GRANT, in part, the Motion for Preliminary Injunction in Klayman I (with respect to Larry Klayman and Charles Strange only), and DENY the Motion for Preliminary Injunction in Klayman II. However, in view of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will STAY my order pending appeal.
On June 5, 2013, the British newspaper The Guardian reported the first of several "leaks" of classified material from Edward Snowden, a former NSA contract employee, which have revealed - and continue to reveal - multiple U.S. government intelligence collection and surveillance programs. See Glenn Greenwald, NSA collecting phone records of millions of Verizon customers daily, GUARDIAN (London), June 5, 2013. That initial media report disclosed a FISC order dated April 25, 2013, compelling Verizon Business Network Services to produce to the NSA on "an ongoing daily basis... all call detail records or telephony metadata' created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls." Secondary Order, In re Application of the [FBI] for an Order Requiring the Production of Tangible Things from Verizon Business Network Services, Inc. on Behalf of MCI Communication Services, Inc. d/b/a Verizon Business Services, No. BR 13-80 at 2 (FISC Apr. 25, 2013) (attached as Ex. F to Gilligan Decl.) [Dkt. # 25-7] ("Apr. 25, 2013 Secondary Order"). According to the news article, this order "show[ed]... that under the Obama administration the communication records of millions of U.S. citizens are being collected indiscriminately and in bulk - regardless of whether they are suspected of any wrongdoing." Greenwald, supra. In response to this disclosure, the Government confirmed the authenticity of the April 25, 2013 FISC Order, and, in this litigation and in certain public statements, acknowledged the existence of a "program" under which "the FBI obtains orders from the FISC pursuant to Section 215 [of the USA PATRIOT Act] directing certain telecommunications service providers to produce to the NSA on a daily basis electronic copies of call detail records.'" Govt.'s Opp'n at 8. Follow-on media reports revealed other Government surveillance programs, including the Government's collection of internet data pursuant to a program called "PRISM." See Glenn Greenwald & Ewen MacAskill, NSA Prism program taps in to user data of Apple, Google and others, GUARDIAN (London), June 6, 2013.
Soon after the first public revelations in the news media, plaintiffs filed their complaints in these two cases on June 6, 2013 ( Klayman I ) and June 12, 2013 ( Klayman II ), alleging that the Government, with the participation of private companies, is conducting "a secret and illegal government scheme to intercept and analyze vast quantities of domestic telephonic communications, " Second Am. Compl. ¶ 2 ( Klayman I ), and "of communications from the Internet and electronic service providers, " Am. Compl. ¶ 2 ( Klayman II ). Plaintiffs in Klayman I - attorney Larry Klayman, founder of Freedom Watch, a public interest organization, and Charles Strange, the father of Michael Strange, a cryptologist technician for the NSA and support personnel for Navy SEAL Team VI who was killed in Afghanistan when his helicopter was shot down in 2011 - assert that they are subscribers of Verizon Wireless and bring suit against the NSA, the Department of Justice ("DOJ"), and several executive officials (President Barack H. Obama, Attorney General Eric H. Holder, Jr., General Keith B. Alexander, Director of the NSA, and U.S. District Judge Roger Vinson), as well as Verizon Communications and its chief executive officer. Second Am. Compl. ¶¶ 9-19; Klayman Aff. ¶ 3; Strange Aff. ¶ 2. And plaintiffs in Klayman II - Mr. Klayman and Mr. Strange again, along with two private investigators, Michael Ferrari and Matthew Garrison - bring suit against the same Government defendants, as well as Facebook, Yahoo!, Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT&T, and Apple, asserting that plaintiffs are "subscribers, users, customers, and otherwise avail themselves to" these named internet and/or telephone service provider companies. Am. Compl. ¶¶ 1, 11-14; Klayman Aff. ¶ 13; Klayman Suppl. Aff. ¶ 3; Strange Aff. ¶ 3. Specifically, plaintiffs allege that the Government has violated their individual rights under the First, Fourth, and Fifth Amendments of the Constitution and has violated the Administrative Procedure Act ("APA") by exceeding its statutory authority under FISA. Second Am. Compl. ¶¶ 1-8, 49-99.
I. Statutory Background
A. FISA and Section 215 of the USA PATRIOT Act (50 U.S.C. § 1861)
In 1978, Congress enacted the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801 et seq. ("FISA"), "to authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes." Clapper v. Amnesty Int'l USA, 133 S.Ct. 1138, 1143 (2013). Against the backdrop of findings by the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities (the "Church Committee") that the executive branch had, for decades, engaged in warrantless domestic intelligence-gathering activities that had illegally infringed the Fourth Amendment rights of American citizens, Congress passed FISA "in large measure [as] a response to the revelations that warrantless electronic surveillance in the name of national security has been seriously abused." S. Rep. No. 95-604, at 7. In the view of the Senate Judiciary Committee, the act went "a long way in striking a fair and just balance between protection of national security and protection of personal liberties." Id. at 7.
FISA created a procedure for the Government to obtain ex parte judicial orders authorizing domestic electronic surveillance upon a showing that, inter alia, the target of the surveillance was a foreign power or an agent of a foreign power. 50 U.S.C. §§ 1804(a)(3), 1805(a)(2). In enacting FISA, Congress also created two new Article III courts - the Foreign Intelligence Surveillance Court ("FISC"), composed of eleven U.S. district judges, "which shall have jurisdiction to hear applications for and grant orders approving" such surveillance, § 1803(a)(1), and the FISC Court of Review, composed of three U.S. district or court of appeals judges, "which shall have jurisdiction to review the denial of any application made under [FISA], " § 1803(b).
In addition to authorizing wiretaps, §§ 1801-1812, FISA was subsequently amended to add provisions enabling the Government to obtain ex parte orders authorizing physical searches, §§ 1821-1829, as well as pen registers and trap-and-trace devices, §§ 1841-1846. See Intelligence Authorization Act for Fiscal Year 1995, Pub. L. No. 103-359, § 807(a)(3), 108 Stat. 3423; Intelligence Authorization Act for Fiscal Year 1999, Pub. L. No. 105-272, § 601(2), 112 Stat. 2396 ("1999 Act"). In 1998, Congress added a "business records" provision to FISA. See 1999 Act § 602. Under that provision, the FBI was permitted to apply for an ex parte order authorizing specified entities, such as common carriers, to release to the FBI copies of business records upon a showing in the FBI's application that "there are specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power." 50 U.S.C. § 1862(b)(2)(B) (2000).
Following the September 11, 2001 terrorist attacks, Congress passed the USA PATRIOT Act, which made changes to FISA and several other laws. Pub. L. No. 107-56, 115 Stat. 272 (2001). Section 215 of the PATRIOT Act replaced FISA's business-records provision with a more expansive "tangible things" provision. Codified at 50 U.S.C. § 1861, it authorizes the FBI to apply "for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." § 1861(a)(1). While this provision originally required that the FBI's application "shall specify that the records concerned are sought for" such an investigation, § 1861(b)(2) (Supp. I 2001), Congress amended the statute in 2006 to provide that the FBI's application must include "a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation... to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." § 1861(b)(2)(A); see USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, § 106(b), 120 Stat. 192 ("USA PATRIOT Improvement and Reauthorization Act").
Section 1861 also imposes other requirements on the FBI when seeking to use this authority. For example, the investigation pursuant to which the request is made must be authorized and conducted under guidelines approved by the Attorney General under Executive Order No. 12, 333 (or a successor thereto). 50 U.S.C. § 1861(a)(2)(A), (b)(2)(A). And the FBI's application must "enumerat[e]... minimization procedures adopted by the Attorney General... that are applicable to the retention and dissemination by the [FBI] of any tangible things to be made available to the [FBI] based on the order requested." § 1861(b)(2)(B). The statute defines "minimization procedures" as, in relevant part, "specific procedures that are reasonably designed in light of the purpose and technique of an order for the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting [U.S.] persons consistent with the need of the [U.S.] to obtain, produce, and disseminate foreign intelligence information." § 1861(g)(2). If the FISC judge finds that the FBI's application meets these requirements, he "shall enter an ex parte order as requested, or as modified, approving the release of tangible things" (hereinafter, "production order"). § 1861(c)(1); see also § 1861(f)(1)(A) ("the term production order' means an order to produce any tangible thing under this section").
Under Section 1861's "use" provision, information that the FBI acquires through such a production order "concerning any [U.S.] person may be used and disclosed by Federal officers and employees without the consent of the [U.S.] person only in accordance with the minimization procedures adopted" by the Attorney General and approved by the FISC. § 1861(h). Meanwhile, recipients of Section 1861 production orders are obligated not to disclose the existence of the orders, with limited exceptions. § 1861(d)(1).
B. Judicial Review by the FISC
While the recipient of a production order must keep it secret, Section 1861 does provide the recipient - but only the recipient - a right of judicial review of the order before the FISC pursuant to specific procedures. Prior to 2006, recipients of Section 1861 production orders had no express right to judicial review of those orders, but Congress added such a provision when it reauthorized the PATRIOT Act that year. See USA PATRIOT Improvement and Reauthorization Act § 106(f); 1 D. KRIS & J. WILSON, NATIONAL SECURITY INVESTIGATIONS & PROSECUTIONS § 19:7 (2d ed. 2012) ("Kris & Wilson") ("Prior to the Reauthorization Act in 2006, FISA did not allow for two-party litigation before the FISC").
Under Section 1861, "[a] person receiving a production order may challenge the legality of that order by filing a petition with the [petition review pool of FISC judges]." 50 U.S.C. § 1861(f)(2)(A)(i); see § 1803(e)(1). The FISC review pool judge considering the petition may grant the petition "only if the judge finds that [the] order does not meet the requirements of [Section 1861] or is otherwise unlawful." § 1861(f)(2)(B). Once the FISC review pool judge rules on the petition, either the Government or the recipient of the production order may seek an en banc hearing before the full FISC, § 1803(a)(2)(A), or may appeal the decision by filing a petition for review with the FISC Court of Review, § 1861(f)(3). Finally, after the FISC Court of Review renders a written decision, either the Government or the recipient of the production order may then appeal this decision to the Supreme Court on petition for writ of certiorari. §§ 1861(f)(3), 1803(b). A production order "not explicitly modified or set aside consistent with [Section 1861(f)] shall remain in full effect." § 1861(f)(2)(D).
Consistent with other confidentiality provisions of FISA, Section 1861 provides that "[a]ll petitions under this subsection shall be filed under seal, " § 1861(f)(5), and the "record of proceedings... shall be maintained under security measures established by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence, " § 1861(f)(4). See also § 1803(c).
II. Collection of Bulk Telephony Metadata Pursuant to Section 1861
To say the least, plaintiffs and the Government have portrayed the scope of the Government's surveillance activities very differently. For purposes of resolving these preliminary injunction motions, however, as will be made clear in the discussion below, it will suffice to accept the Government's description of the phone metadata collection and querying program. Cf. Cobell v. Norton, 391 F.3d 251, 261 (D.C. Cir. 2004) (evidentiary hearing on preliminary injunction is necessary only if the court must make credibility determinations to resolve key factual disputes in favor of the moving party ).
In broad overview, the Government has developed a "counterterrorism program" under Section 1861 in which it collect, compiles, retains, and analyzes certain telephone records, which it characterizes as "business records" created by certain telecommunications companies (the "Bulk Telephony Metadata Program"). The records collected under this program consist of "metadata, " such as information about what phone numbers were used to make and receive calls, when the calls took place, and how long the calls lasted. Decl. of Acting Assistant Director Robert J. Holley, Federal Bureau of Investigation ("Holley Decl.") [Dkt. # 25-5], at ¶ 5; Decl. of Teresa H. Shea, Signals Intelligence Director, National Security Agency ("Shea Decl.") [Dkt. # 25-4], at ¶ 7; Primary Order, In re Application of the [FBI] for an Order Requiring the Production of Tangible Things From [Redacted], No. BR 13-158 at 3 n.1 (FISC Oct. 11, 2013) (attached as Ex. B to Gilligan Decl.) [Dkt. # 25-3] ("Oct. 11, 2013 Primary Order"). According to the representations made by the Government, the metadata records collected under the program do not include any information about the content of those calls, or the names, addresses, or financial information of any party to the calls. Holley Decl. ¶¶ 5, 7; Shea Decl. ¶ 15; Oct. 11, 2013 Primary Order at 3 n.1. Through targeted computerized searches of those metadata records, the NSA tries to discern connections between terrorist organizations and previously unknown terrorist operatives located in the United States. Holley Decl. ¶ 5; Shea Decl. ¶¶ 8-10, 44.
The Government has conducted the Bulk Telephony Metadata Program for more than seven years. Beginning in May 2006 and continuing through the present,  the FBI has obtained production orders from the FISC under Section 1861 directing certain telecommunications companies to produce, on an ongoing daily basis, these telephony metadata records, Holley Decl. ¶ 6; Shea Decl. ¶ 13, which the companies create and maintain as part of their business of providing telecommunications services to customers, Holley Decl. ¶ 10; Shea Decl. ¶ 18. The NSA then consolidates the metadata records provided by different telecommunications companies into one database, Shea Decl. ¶ 23, and under the FISC's orders, the NSA may retain the records for up to five years, id. ¶ 30; see Oct. 11, 2013 Primary Order at 14. According to Government officials, this aggregation of records into a single database creates "an historical repository that permits retrospective analysis, " Govt.'s Opp'n at 12, enabling NSA analysts to draw connections, across telecommunications service providers, between numbers reasonably suspected to be associated with terrorist activity and with other, unknown numbers. Holley Decl. ¶¶ 5, 8; Shea Decl. ¶¶ 46, 60.
The FISC orders governing the Bulk Telephony Metadata Program specifically provide that the metadata records may be accessed only for counterterrorism purposes (and technical database maintenance). Holley Decl. ¶ 8; Shea Decl. ¶ 30. Specifically, NSA intelligence analysts, without seeking the approval of a judicial officer, may access the records to obtain foreign intelligence information only through "queries" of the records performed using "identifiers, " such as telephone numbers, associated with terrorist activity. An "identifier" (i.e., selection term, or search term) used to start a query of the database is called a "seed, " and "seeds" must be approved by one of twenty-two designated officials in the NSA's Homeland Security Analysis Center or other parts of the NSA's Signals Intelligence Directorate. Shea Decl. ¶¶ 19, 31. Such approval may be given only upon a determination by one of those designated officials that there exist facts giving rise to a "reasonable, articulable suspicion" ("RAS") that the selection term to be queried is associated with one or more of the specified foreign terrorist organizations approved for targeting by the FISC. Holley Decl. ¶¶ 15-16. In 2012, for example, fewer than 300 unique identifiers met this RAS standard and were used as "seeds" to query the metadata, but "the number of unique identifiers has varied over the years." Shea Decl. ¶ 24.
When an NSA intelligence analyst runs a query using a "seed, " the minimization procedures provide that query results are limited to records of communications within three "hops" from the seed. Id. ¶ 22. The query results thus will include only identifiers and their associated metadata having a direct contact with the seed (the first "hop"), identifiers and associated metadata having a direct contact with first "hop" identifiers (the second "hop"), and identifiers and associated metadata having a direct contact with second "hop" identifiers (the third "hop"). Id. ¶ 22; Govt.'s Opp'n at 11. In plain English, this means that if a search starts with telephone number (123) 456-7890 as the "seed, " the first hop will include all the phone numbers that (123) 456-7890 has called or received calls from in the last five years (say, 100 numbers), the second hop will include all the phone numbers that each of those 100 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 100 "first hop" numbers, or 10, 000 total), and the third hop will include all the phone numbers that each of those 10, 000 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 10, 000 "second hop" numbers, or 1, 000, 000 total). See Shea ...