United States District Court, D. Columbia
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
E. KLAYMAN, Plaintiff, Pro se.
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.
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.
LOWELL C. MCADAMS, VERIZON COMMUNICATIONS, Defendants: Brian
M. Boynton, Randolph D. Moss, LEAD ATTORNEYS, WILMER CUTLER
PICKERING HALE & DORR LLP, Washington, DC.
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.
J. LEON, United States District Judge.
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 is likely, I will briefly
recount the history of this matter.
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
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.
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
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. 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
[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
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.
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.
The Section 215 Bulk Telephony Metadata Program
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)).
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.
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. 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.
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),
Potter Decl. ¶ ¶ 5-7. As initially authorized by
the FISC, NSA intelligence analysists could conduct searches
in the database without prior judicial
authorization. See Shea
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.
The USA FREEDOM Act
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),
. 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
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.
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. 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
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
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). 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.
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. Second, it sets forth additional facts
intended to bolster plaintiffs' allegation that Verizon
Wireless participated in the Program. Id. ¶
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.
confine my analysis to the merits of plaintiffs' ...