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Klayman v. Obama

United States District Court, D. Columbia

November 9, 2015

KLAYMAN et al., Plaintiffs,
v.
OBAMA et al., Defendants

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          LARRY E. KLAYMAN, Plaintiff, Pro se.

         For LARRY E. KLAYMAN, CHARLES STRANGE, MARY ANN STRANGE, on behalf of themselves and all others similarly situated, Plaintiffs: Larry E. Klayman, LEAD ATTORNEY, LAW OFFICE OF LARRY KLAYMAN, Washington, DC.

         For BARACK HUSSEIN OBAMA, II, ERIC H. HOLDER, JR., KEITH B. ALEXANDER, Defendants: James J. Gilligan, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, FEDERAL PROGRAMS BRANCH, Washington, DC; Rodney Patton, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Federal Programs Branch, Civil Division, Washington, DC; Marcia Berman, UNITED STATES DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.

         For LOWELL C. MCADAMS, VERIZON COMMUNICATIONS, Defendants: Brian M. Boynton, Randolph D. Moss, LEAD ATTORNEYS, WILMER CUTLER PICKERING HALE & DORR LLP, Washington, DC.

         For NATIONAL SECURITY AGENCY, U.S. DEPARTMENT OF JUSTICE, Defendants: James J. Gilligan, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, FEDERAL PROGRAMS BRANCH, Washington, DC; James R. Whitman, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Rodney Patton, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Federal Programs Branch, Civil Division, Washington, DC; Marcia Berman, UNITED STATES DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.

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         MEMORANDUM OPINION

         [Dkt. #149]

         RICHARD J. LEON, United States District Judge.

         Our Circuit Court has remanded this case for me to determine whether limited discovery is appropriate to satisfy the standing requirements set forth by the Supreme Court in an earlier national security surveillance case: Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). Although familiarity with the record and my prior opinion on December 16, 2013[1] is likely, I will briefly recount the history of this matter.

         On November 18, 2013, I held a hearing on a motion filed by plaintiffs Larry Klayman, Charles Strange, and Mary Ann Strange to preliminarily enjoin the National Security Agency (" NSA" ) from collecting and querying their telephony metadata pursuant to the NSA's classified bulk telephony metadata collection program (the " Bulk Telephony Metadata Program" or the " Program" ), under which the NSA indiscriminately collects the telephone call records of millions of Americans. Four weeks later, on December 16, 2013, I issued a lengthy opinion (" my December 2013 Opinion" ) granting the motion as to plaintiffs Larry Klayman and Charles Strange after finding that they had demonstrated a substantial likelihood of success on their Fourth Amendment claim that the

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collection and querying of their records constituted an unconstitutional search. However, because of the novelty of the legal issues presented and the monumental national security interests at stake, I stayed the injunction pending the appellate review that would undoubtedly follow. Indeed, I assumed that the appeal would proceed expeditiously, especially considering that the USA PATRIOT Act, the statute pursuant to which the NSA was acting, was due to expire on June 1, 2015--a mere eighteen months later. For reasons unknown to me, it did not. Instead, our Circuit Court heard argument on November 4, 2014 and did not issue its decision until August 28, 2015--nearly three months after the USA PATRIOT Act had lapsed and had been replaced by the USA FREEDOM Act, which was enacted on June 2, 2015.

         As it pertains to this Opinion, the USA FREEDOM Act specifically prohibits the bulk collection of telephony metadata, but not until November 29, 2015. During the intervening 180-day period, the NSA is continuing to operate the Bulk Telephony Metadata Program while it transitions to a new, more targeted program whereby the NSA, pursuant to authorization by the Foreign Intelligence Surveillance Court (" FISC" ), can require telecommunications service providers to run targeted queries against their customers' telephony metadata records and then produce the results of those queries to the NSA. Thus, when our Circuit Court issued its decision on August 28, 2015 vacating my preliminary injunction for a lack of standing and remanding the case to this Court for further proceedings consistent therewith, nearly half of the 180-day transition period had already lapsed.

         As a consequence, I immediately scheduled a status conference for the following week to discuss with the parties how to proceed, if at all, prior to the mandate issuing from the Court of Appeals.[2] On August 31, 2015, the Government moved to continue the status conference. I denied that motion. At the status conference on September 2, 2015, Mr. Klayman indicated, among other things, that he intended to seek expedited issuance of the mandate from the Court of Appeals and to amend his complaint by joining new parties who are customers of Verizon Business Network Services (" VBNS" ) and who therefore, consistent with the Court of Appeals decision, likely had standing to challenge the Program. As expected, on September 8, 2015, plaintiffs sought leave to file a Fourth Amended Complaint that adds plaintiffs J.J. Little and his law firm, J.J. Little & Associates, P.C. (" Little plaintiffs" ), both of which are, and at " all material times" were, VBNS subscribers. Fourth Am. Compl. ¶ 18

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[Dkt. #145-1]. At a September 16, 2015 hearing on this motion, I granted plaintiffs' motion to amend the complaint--which was uncontested--and set a briefing schedule for a renewed motion for preliminary injunction. On September 21, 2015, plaintiffs filed a Renewed Motion for Preliminary Injunction [Dkt. #149], seeking to enjoin as unconstitutional the Bulk Telephony Metadata Program, which is still in operation until November 29, 2015. On October 6, 2015, the Court of Appeals issued its mandate. I heard oral argument on plaintiffs' renewed motion for preliminary injunction two days later.

         After careful consideration of the parties' pleadings, the representations made at the October 8, 2015 motion hearing, and the applicable law, I have concluded that limited discovery is not necessary since several of the plaintiffs now are likely to have standing to challenge the constitutionality of the Bulk Metadata Collection Program, and those that do have standing are entitled to preliminary injunctive relief. Accordingly, the Court will GRANT, in part, plaintiffs' Renewed Motion for Preliminary Injunction as it pertains to plaintiffs J.J. Little and J.J. Little & Associates and ENJOIN the future collection and querying of their telephone record metadata.

         BACKGROUND

         A brief overview of the statutory framework and procedural posture, focusing on developments since my last Opinion in this case, may be a helpful place to start.

         A. Statutory Framework

         1. The Section 215 Bulk Telephony Metadata Program

         Beginning in 1998, the Foreign Intelligence Surveillance Act (" FISA" ) permitted the FBI to merely 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 of " specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power." Intelligence Authorization Act for Fiscal Year 1999, Pub. L. 105-272, § 602, 112 Stat. 2396, 2410 (1998). Following the September 11, 2001 terrorist attacks, however, Congress expanded this " business records" provision under Section 215 of the USA PATRIOT Act, to authorize 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." USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 501, 115 Stat. 272, 287 (2001) (codified as amended at 50 U.S.C. § 1861(a)(1)). Thereafter, in March 2006, Congress strengthened the protections in Section 215, amending the statute 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." USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, § 106(b), 120 Stat. 192, 196 (2006) (codified as amended at 50 U.S.C. § 1861(b)(2)(A)).

         Although the daily bulk collection, storage, and analysis of telephony metadata is not expressly authorized by the terms of Section 215, beginning in May 2006, the Government, advocating a very aggressive reading of Section 215, sought and received FISC authorization to operate the Bulk Telephony Metadata Program, which, of course, consists of these very practices.

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See Decl. of Acting Assistant Dir. Robert J. Holley, FBI ¶ 6 [Dkt. #25-5] (" Holley Decl." ); Decl. of Teresa H. Shea, Signals Intelligence Dir., NSA ¶ 13 [Dkt. # 25-4] (" Shea Decl." ); see also Decl. of Major General Gregg C. Potter, Signals Intelligence Deputy Dir., NSA ¶ 2 [Dkt. #150-4] (" Potter Decl." ). The FISC has repeatedly endorsed this view ever since. Shea Decl. ¶ ¶ 13-14.[3] As such, for more than seven years, the Government has obtained ex parte orders from the FISC directing telecommunications service providers to produce, on a daily basis, the telephony metadata for each of their subscriber's calls--this includes the dialing and receiving numbers and the date, time, and duration of the calls. It does not, however, include the substantive content of the call. Shea Decl. ¶ ¶ 7, 13-15, 18; see Primary Order, In re Application of the [FBI] for an Order Requiring the Prod. of Tangible Things From [Redacted], No. B.R. 13-158 n.1, at *8-9 (FISC Oct. 11, 2013) (attached as Ex. B to Gilligan Decl.) [Dkt. #25-3] (" Oct. 11, 2013 Primary Order" ). Once this data is collected from various telecommunications companies, it is consolidated and retained in a single Government database for five years. See Shea Decl. ¶ ¶ 23, 30; see Oct. 11, 2013 Primary Order at 14 ¶ E. In this database, the NSA conducts computerized searches that are designed to discern whether certain terrorist organizations are communicating with persons located in the United States. Holley Decl. ¶ 5; Shea Decl. ¶ ¶ 8-10, 44-63; see Am. Mem. Op., In re Application of the [FBI] for an Order Requiring the Prod. of Tangible Things from [REDACTED], No. B.R. 13-109, at *29-32 (FISC Aug. 29, 2013) (attached as Ex. A to Gilligan Decl.) [Dkt. #25-2]. Despite the Program's broad reach, since a series of leaks exposed the existence of this Program in 2013, the Government has maintained that it has never captured information on all (or virtually all) calls made and/or received in the U.S." Gov't's Opp'n 5.

         Shortly after my December 2013 Opinion, however, President Obama issued an order requiring several important changes to the manner in which these searches are authorized and conducted. See President Barack Obama, Remarks by the President on Review of Signals Intelligence (Jan. 17, 2014), https://www.whitehouse.gov/the-press-office/2014/01/17/remarks-president-review-signals-intelligence; Potter Decl. ¶ ¶ 5-7. As initially authorized by the FISC, NSA intelligence analysists could conduct searches in the database without prior judicial authorization.[4] See Shea

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Decl. ¶ 19. This is no longer the case. Rather, except in emergency circumstances, NSA analysts are now required to seek approval from the FISC prior to conducting database queries. Potter Decl. ¶ 7. The FISC may only authorize a search if there is a " reasonable, articulable suspicion" (" RAS" ) that the selection term to be queried (i.e., the " identifier" or " seed" ) is associated with one or more of the specified foreign terrorist organizations approved for targeting by the FISC. Id. Moreover, at the time of my previous Opinion, query results included communication records within " three hops" of the seed identifier. See Shea Decl. ¶ 22. Since President Obama's order in January 2014, however, query results have been limited to records of communications within two " hops" from the seed, not three. Pottter Decl. ¶ 7. Stated differently, the query results include identifiers and the associated metadata having direct contact with the seed (the first " hop" ) and identifiers and associated metadata having a direct contact with first " hop" identifiers (the second " hop" ). It remains the case that once a query is conducted and it returns a universe of responsive records, NSA analysts may then perform new searches and otherwise perform intelligence analysis within that universe of data without using RAS-approved search terms. See Shea Decl. ¶ 26.

         2. The USA FREEDOM Act

         Reacting to significant public outcry regarding the existence of the Bulk Telephony Metadata Program, President Obama called upon Congress to replace the Program with one that would " give the public greater confidence that their privacy is appropriately protected," while maintaining the intelligence tools needed to keep us safe." President Barack Obama, Statement by the President on the Section 215 Bulk Metadata Program (Mar. 27, 2014), http://www.whitehouse.gov/the-press-office/2014/03/27/statement-president-section-215-bulk-metadata-program . In response to this directive, Congress ultimately enacted the USA FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (2015) (" USA FREEDOM Act" ), on June 2, 2015. Relevant to this Opinion, the USA FREEDOM Act expressly prohibits the Government from obtaining telephony metadata in bulk, but not until November 29, 2015. USA FREEDOM Act § § 103, 109; see Potter Decl. ¶ 11. It seems that the NSA requested this 180-day delay to allow time to transition from the Bulk Telephony Metadata Program to a new replacement program Congress conceived--a model whereby targeted queries will be carried out against metadata held by telecommunications service providers and the resulting data subsequently produced to the Government. See id. § 101. As the Government has explained, this 180-day transition period will avoid a so-called " intelligence gap" that would follow if the current Program terminated before the new targeted metadata querying program is fully operational. Gov't's Opp'n 34; see 161 Cong. Rec. 53275 (daily ed. May 22, 2015) (statement of Sen. Leahy) (having printed in the record a letter from the NSA which stated: " NSA assesses that the transition of the program to a query at the provider model is achievable within 180 days, with provider cooperation. . . . [W]e will work with the companies that are expected to be subject to Orders under the law by providing them the technical details, guidance, and compensation to create a fully operational query at the provider model." ). To date, however, the Government has failed to identify any concrete consequences that would likely result from this so-called " intelligence gap." And while Congress refrained for obvious political reasons from expressly authorizing a six-month extension of the Bulk Telephony Metadata Program,[5]

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the Government conveniently went immediately thereafter to the FISC to seek judicial authorization to continue the Program during the transition period, consistent with its prior authorization under the USA PATRIOT Act. See Mem. of Law 5, In re Application of the FBI for an Order Requiring the Prod. of Tangible Things, No. B.R. 15-75, (FISC June 29, 2015). Not surprisingly, the FISC agreed. See In re Application of the FBI for an Order Requiring the Prod. of Tangible Things, No. B.R. 15-75, (FISC June 29, 2015). As such, during the current 180-day transition period, the Bulk Telephony Metadata Program has continued by judicial, not legislative, fiat.[6]

         B. Procedural Posture

         I first had occasion to address plaintiffs' constitutional challenges to the Program in December 2013, when I enjoined the Government from further collecting plaintiffs' call records under the Program. Klayman v. Obama, 957 F.Supp.2d 1, 44 (D.D.C. 2013) (Leon, J.). I concluded, in so ruling, that plaintiffs Klayman and Charles Strange likely had standing to challenge both the bulk collection of metadata under the Program and the ensuing analysis of that data through the NSA's electronic querying process.[7] Id. at 26-29. As to the merits of plaintiffs' claims, I found it significantly likely that plaintiffs would be able to prove that the Program violated their reasonable expectation of privacy and therefore was a Fourth Amendment search. Id. at 30-37. I held, moreover, that the Program likely failed to meet the Fourth Amendment's reasonableness requirement because the substantial intrusion occasioned by the Program far outweighed any contribution to national security. Id. at 37-42. Because the loss of constitutional freedoms is an " irreparable injury" of the highest order, and relief to two of the named plaintiffs would not undermine national security interests, I found that a preliminary injunction was not merely warranted--it was required. Id. at 42-43. Cognizant, however, of the " significant national security interests at stake," and optimistic that our Circuit Court would expeditiously address plaintiffs' claims, I voluntarily stayed my order pending appeal. See id. at 43-44.

         As stated previously, our Circuit Court did not do so. Moreover, when it finally issued its decision on August 28, 2015, it did so with considerable brevity. In three separate opinions, the Circuit Court vacated my preliminary injunction on the ground that plaintiffs, as subscribers of

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Verizon Wireless rather than as subscribers of VBNS--the sole provider the Government has acknowledged has participated in the Program--had not shown a substantial likelihood of standing to pursue their claims. Obama v. Klayman, 800 F.3d 559 (D.C. Cir. 2015) (per curiam).[8] Left undecided--indeed wholly untouched--was the question of whether a program that indiscriminately collects citizens' telephone metadata constitutes an unconstitutional search under the Fourth Amendment.

         Not surprisingly, plaintiffs moved for, and quickly obtained, leave to file a Fourth Amended Complaint. See Sept. 16, 2015 Min. Entry. This latest iteration of the Complaint alters plaintiffs' contentions in two material respects. First, it adds plaintiffs J.J. Little and his law firm, J.J. Little & Associates, P.C, both of which are, and at " all material times" were, VBNS subscribers. Fourth Am. Compl. ¶ 18.[9] Second, it sets forth additional facts intended to bolster plaintiffs' allegation that Verizon Wireless participated in the Program. Id. ¶ ¶ 47-48.

         On September 21, 2015, plaintiffs filed a renewed motion for a preliminary injunction, seeking relief, once again, from the " warrantless surveillance" of their telephone calls. See Plaintiffs' Renewed Mot. for Prelim. Inj. & Req. for Oral Arg. Thereon [Dkt. #149]. Government defendants, of course, opposed, see Government Defendants' Opposition to Plaintiffs' Renewed Motion for a Preliminary Injunction [Dkt. #150] (" Gov't's Opp'n" ), and plaintiffs quickly lodged their reply, see Plaintiffs' Reply in Support of their Renewed Motion for Preliminary Injunction [Dkt. #152]. On October 6, 2015, our Circuit Court granted plaintiffs' unopposed request for expedited issuance of the mandate, Order, Obama v. Klayman, No. 14-5004 (D.C. Cir. Oct. 6, 2015), thereby reinstating this Court's jurisdiction to decide plaintiffs' renewed motion, see Mandate [Dkt. #154]. I took plaintiffs' motion under advisement at the conclusion of oral argument on October 8, 2015.

         ANALYSIS

         I will confine my analysis to the merits of plaintiffs' ...


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