United States District Court, District of Columbia
MEMORANDUM OPINION [DKTS. ##178, 123]
RICHARD J. LEON, UNITED STATES DISTRICT JUDGE.
two actions are yet another chapter in a multi-year saga,
during which our three co-equal branches of government have
struggled to strike the appropriate balance between
protecting the citizens of our Nation and the individual
liberties of those very citizens. Although the Judiciary will
surely be called upon in the future to ensure that the
balance struck is constitutionally sound, this Court's
role in assessing the Government's conduct in these two
cases ends today.
filed these two related actions, Klayman v. Obama,
No. 13-cv-851 (D.D.C. filed June 6, 2013)
("Klayman 7"), and Klayman v.
Obama, No. 13-cv-881 (D.D.C. filed June 12, 2013)
("Klayman IF), in June of 2013,  challenging the
constitutionality and statutory authorization of certain
intelligence-gathering practices of the United States
Government. Plaintiffs are six individuals and one law firm,
who bring these suits as U.S. citizens or entities, and who
are all subscribers, customers, or users of certain
telecommunications and Internet service providers that
allegedly participated in these Government surveillance
programs. See Klayman I, 4th Am. Compl. ¶¶
7-18 [Dkt #145-1]; Klayman II, 3d Am. Compl.
¶¶ 4-23 [Dkt. #112]. In the operative complaints,
plaintiffs challenge the Government's wholesale
collection and analysis of the phone and Internet metadata of
U.S. citizens. Plaintiffs allege that these surveillance
programs violated-and continue to violate-their First,
Fourth, and Fifth Amendment rights. See Klayman I,
4th Am. Compl. ¶¶ 49-69; Klayman II, 3d
Am. Compl. ¶¶ 55-75.
actions as filed, defendants are several federal agencies and
departments, executive and judicial officials, and
telecommunications and Internet service providers and their
executive officers. See Klayman I, 4th Am. Compl.
¶¶ 19-25; Klayman II, 3d Am. Compl.
¶¶ 24-35. To remedy defendants' alleged
constitutional infractions, plaintiffs seek three distinct
forms of declaratory and injunctive relief: (1) an injunction
against future bulk collection of metadata about their calls;
(2) an injunction against NSA queries of plaintiffs'
metadata that may have been collected under the program; and
(3) an accounting, expungement from federal Government
records, and return of any collected data pertaining to
plaintiffs' communications. See Klayman I, 4th
Am. Compl. ¶ 71; Klayman II, 3d Am. Compl.
¶ 77. They also seek a multi-billion dollar award for
compensatory, actual, and punitive damages and for
attorneys' fees and costs. Klayman I, 4th Am.
Compl. ¶ 70; Klayman II, 3d Am. Compl. ¶
cases are before the Court on defendants' consolidated
Motion to Dismiss. See Klayman I [Dkt. #178];
Klayman II [Dkt. #123]. Upon consideration of the
parties' submissions, and the entire record herein,
defendants' motion is GRANTED and plaintiffs'
complaints are DISMISSED with prejudice.
the controversy surrounding the Government's challenged
conduct in these cases has featured prominently in the news
media over the last four years, familiarity with this case is
likely. I nonetheless will provide a brief
background of these two related suits.
The Section 215 Bulk Telephony Metadata Program
215 of the USA PATRIOT Act, which governs access to certain
"business records, " authorizes the Government to
apply to the Foreign Intelligence Surveillance Court
("FISC") for an order requiring the
"production of any tangible things ... for an
investigation to protect against, " among other things,
"international terrorism." Pub. L. No. 107-56, 115
Stat. 272, 287 (2001) (codified at 50 U.S.C. §
1861(a)(1)). In May 2006-after the Government sought and
received authorization from judges of the FISC-the NSA began
the bulk telephony metadata program that plaintiffs challenge
today. See Klayman I, Decl. of Acting Assistant Dir.
Robert J. Holley, FBI, ¶ 6 [Dkt. #25-5]; Klayman
I, Decl. of Teresa H. Shea, Signals Intelligence Dir.,
NSA, ¶ 13 [Dkt. #25-4]. As part of this program, the NSA
conducted daily bulk collection, storage, and analysis of
telephony metadata. See Id. From May 2006 until the
termination of the program in November 2015, the Government
obtained FISC orders directing certain telecommunications
service providers to produce, in bulk, call-detail records,
which contained metadata about telephone calls, including the
time and duration of a call and the dialing and receiving
numbers. Klayman I, Decl. of Wayne Murphy, Dir. of
Operations, NSA, ¶¶ 6-7 ("Murphy Decl.")
[Dkt. #178-2]; Murphy Decl. Ex. A ("Aug. 27, 2015 FISC
Order"). The FISC orders expressly excluded the content
of the call as well as "the name, address, or financial
information of a [telephone] subscriber or customer."
See Aug. 27, 2015 FISC Order at 3 n.l. In total, the
FISC authorized the program forty-three times, under orders
issued by at least nineteen different FISC judges.
See Murphy Decl. ¶ 7.
the program, once the data was collected, the Government
created a repository where data could be accessed and queried
by NSA analysts for the purpose of detecting and preventing
terrorist attacks. Id. ¶¶ 6, 8-9. Among
other minimization procedures designed to protect privacy
interests of U.S. citizens, FISC orders authorizing the
program required that metadata obtained through the program
be destroyed within five years of collection. Id.
¶ 11. Beginning in March 2014, however, the FISC
authorized the NSA to delay the destruction of metadata that
had passed the five-year mark. Id. This retention
was authorized as a means of allowing the Government to
comply with its obligation to preserve potentially relevant
evidence under orders issued in two civil cases involving
challenges to the legality of the Section 215 program.
See Jewel v. Nat'l Sec. Agency, No.
4:08-cv-4373-JSW (N.D. Cal. filed Sept. 18, 2008); First
Unitarian Church of LA. v. Nat'l Sec. Agency, No.
4:13-cv-3287-JSW (N.D. Cal. filed July 16, 2013); Murphy
Decl. ¶ 11
The Bulk Internet-Metadata Program Under FISA's Pen-Trap
the surveillance scheme conducted pursuant to FISA's
pen-trap provision features less prominently in this
litigation than the Section 215 program, a brief history of
that program would likely be helpful at this point.
July 2004 until December 2011, the NSA also engaged in the
bulk collection of Internet metadata, authorized by FISC
orders issued pursuant to Section 402 of FISA, otherwise
known as FISA's pen-register and trap-and-trace
provision. See 50 U.S.C. § 1842; Murphy Decl.
¶¶ 19-20. Under section 402, the Government
collected data from the "to" and "from"
lines of e-mails, and the date and time the e-mails were
sent, but not the e-mails' content or the
"subject" line. See Murphy Decl.
¶¶ 19-20. Like the Section 215 program, the Section
402 program allowed the Government to query and analyze the
bulk data, with the goal of obtaining foreign intelligence
information. Id. ¶ 20. Critically, however, the
FISC orders required compliance with minimization procedures
that limited the retention of the metadata and required
"reasonable, articulable suspicion" that the
selection terms used in queries were, in fact, associated
with foreign terrorist organizations. Id. The
Section 402 program was ultimately discontinued because it
did not meet the Government's operational expectations,
and on December 7, 2011, the NSA destroyed all bulk Internet
metadata collected as part of the program. Id.
¶¶ 20-21. Importantly, the Government has never
"disclosed the scope on which the [Section 402] program
operated or any of the identities of the providers that
received orders from the FISC." Id. ¶ 20.
Targeted PRISM Collection of Communications Content Under
the surveillance program pursuant to FISA Section 402, a
brief overview of the PRISM program is in order.
2008, Congress added a new Section 702 to FISA to
"supplement pre-existing FISA authority by creating a
new framework under which the Government may seek the
FISC's authorization of certain foreign intelligence
surveillance targeting the communications of non-U.S. persons
located abroad." Clapper v. Amnesty Int'l
USA, 568 U.S. 398, 404 (2013). Under Section 702, upon
the FISC's approval of a "certification" by the
Government, the Attorney General and Director of National
Intelligence may jointly authorize the "targeting of
persons reasonably believed to be located outside the United
States to acquire foreign intelligence information" for
a period of up to one year. 50 U.S.C. § 1881a(a), (g);
Murphy Decl. ¶ 23. The text of Section 702, however,
expressly prohibits the Government from intentionally
targeting a U.S. person overseas or any person known to be in
the United States. See 50 U.S.C. § 1881a(b);
Murphy Decl. ¶¶ 22-23. Section 702 also requires
the Government to conduct the data acquisition with the
assistance of an electronic communication service provider,
and the Government must do so "in a manner consistent
with the [F]ourth [A]mendment." 50 U.S.C. §
1881a(b)(5), (g)(2)(A)(vi), (b); Murphy Decl. ¶¶
the surveillance programs under Section 215 of the USA
PATRIOT Act or Section 402 of FISA, Section 702 of FISA is a
targeted content-collection program, not a bulk
collection program. See Murphy Decl. ¶¶
23, 26. As such, PRISM collection can only target
non-U.S. persons located abroad who possess or are likely to
receive or communicate foreign intelligence information
authorized for acquisition. Id. ¶¶ 22-23.
The identities of persons targeted under this program are
classified, as are the identities of the electronic
communications service providers that assist in the
acquisition. Id. ¶ 27.
The Initial Litigation
after Edward Snowden's disclosure of classified
material-which revealed some of the NSA's surveillance
programs for the first time-plaintiffs filed suit in both of
these cases. See Klayman I, Compl., June 6, 2013
[Dkt. #1]; Klayman II, Compl., June 12, 2013 [Dkt.
#1]. As relevant here, Snowden's "leaks"
revealed, among other things, that a FISC order dated April
25, 2013 compelled Verizon Business Network Services
("VBNS") 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."
Klayman I, Defs.' Opp'n Pls.' Mots.
Prelim. Inj. Ex. F ("Apr. 25, 2013 FISC Order")
[Dkt. #25-7]; see also Klayman I, Defs.'
Opp'n Pls.' Mots. Prelim. Inj. 21 n.9 [Dkt. #25]
("The Government has acknowledged the authenticity of an
unlawfully disclosed Secondary Order of the FISC dated April
25, 2013, which listed Verizon Business Network Services,
Inc. (VBNS) as a recipient of that order at that
time."). As subscribers of Verizon, plaintiffs alleged
that their communications were likely among those collected
through the Government's program.
general, plaintiffs' original complaints alleged that the
Government uses the information collected through the
surveillance programs I outlined above to create
comprehensive profiles on U.S. citizens, including intimate
details about their lives and personal associations. See,
e.g., Klayman II, 3d Am. Compl. ¶¶ 1-3.
According to plaintiffs, the NSA's use of their personal
information restricts their "abilities to communicate
via telephone, e-mail, social media and otherwise on the
Internet, out of fear that their confidential, private, and
often privileged communications are being and will be
overheard by the NSA's surveillance program."
Id. ¶ 49.
most recent versions of the complaints in these two
consolidated cases, plaintiffs challenge the NSA's bulk
collection of telephony metadata under Section 215, the
Section 402 program, the PRISM program, and another program
plaintiffs refer to as MUSCULAR. See Klayman I, 4th
Am. Compl. ¶¶ 44, 46, 51, 54, 59-60, 67;
Klayman II, 3d Am. Compl. ¶¶ 10, 58,
63-64, 70, 73. In both cases, plaintiffs claim that the
challenged surveillance programs violated-and continue to
violate-their First, Fourth, and Fifth Amendment rights.
Klayman I, 4th Am. Compl. ¶¶ 51-53, 58-60,
66-67; Klayman II, 3d Am. Compl. ¶¶ 57-58,
62-64, 70-72. With respect to their First Amendment rights,
plaintiffs insist that defendants' actions "chill,
if not 'kill, ' speech by instilling in Plaintiffs
and over a hundred million of [sic] Americans the fear that
their personal and business conversations with other U.S.
citizens and foreigners are in effect tapped and illegally
surveyed." Klayman I, 4th Am. Compl. ¶ 59;
see also Klayman II, 3d Am. Compl. ¶ 63.
Plaintiffs further allege that their freedoms of expression
and association were chilled because they refrained from
contacting other people via cell phone out of fear of
retaliation by the Government defendants. Klayman I,
4th Am. Compl. ¶ 60; Klayman II, 3d Am. Compl.
¶ 64. To support their claim of a Fourth Amendment
violation, plaintiffs allege that the challenged surveillance
programs constituted unreasonable searches and seizures of
their phone records without reasonable suspicion,
particularity, or probable cause. Klayman I, 4th Am.
Compl. ¶¶ 51-53; Klayman II, 3d Am. Compl.
¶¶ 70-72. The allegations supporting
plaintiffs' Fifth Amendment claim are relatively sparse,
but plaintiffs appear to suggest that they have a liberty
interest-guaranteed by the Fifth Amendment-in being free from
intrusion into their phone records. Klayman I, 4th
Am. Compl. ¶¶ 65-67; Klayman II, 3d Am.
result of these alleged violations, plaintiffs assert that
they have suffered "severe emotional distress and
physical harm, pecuniary and economic damage, loss of
services, and loss of society." Klayman I, 4th
Am. Compl. ¶¶ 55> 61, 68; Klayman II,
3d Am. Compl. ¶¶ 59, 65, 74. To remedy these harms,
plaintiffs seek compensatory and punitive damages, and
attorneys' fees and costs, in excess of $12 billion in
Klayman I, and in excess of $20 billion in
Klayman II. Klayman I, 4th Am. Compl. ¶ 70;
Klayman II, 3d Am. Compl. ¶ 76. Both complaints
also request injunctive relief that (1) enjoins the
challenged surveillance activities; and (2) requires the
Government to prepare an accounting of, expunge from
Government records, and return to the service providers any
data collected that pertains to plaintiffs'
communications. Klayman I, 4th Am. Compl. ¶ 71;
Klayman II, 3d Am. Compl. ¶ 77.
October 2013, four months after filing their complaints,
plaintiffs moved for preliminary injunctions in both cases.
See Klayman I, Pls.' Mot. Prelim. Inj. [Dkt.
#13]; Klayman II, Pls.' Mot. Prelim. Inj. [Dkt.
#10]. And in December of that year, I enjoined the Government
from further collecting plaintiffs' call records.
Klayman v. Obama, 957 F.Supp.2d 1, 43-44 (D.D.C.
2013), vacated and remanded, 800 F.3d 559 (D.C. Cir.
2015) (per curiam). In so ruling, I held that plaintiffs
Klayman and Charles Strange had standing to challenge both
the bulk collection of metadata under these programs and the
analysis of that data through the NSA's electronic
querying process. Id. at 8, 26-29. On the merits, I
found it significantly likely that plaintiffs would be able
to show that these programs violated their reasonable
expectation of privacy and therefore constituted a Fourth
Amendment search, and that the searches were unreasonable.
Id. at 30-42. But in light of the "significant
national security interests at stake, " I voluntarily
stayed my order pending the Government's appeal.
Id. at 43. To say the least, that opinion unleashed
a firestorm of press and public discussion.
The USA FREEDOM Act
my December 2013 injunction in Klayman Iwas stayed
pending appeal, the other branches began to grapple with the
significant constitutional questions raised by the NSA's
surveillance programs, and they accordingly took steps to
weigh in on the issue. In early 2014, President Barack Obama
voiced many of the same concerns articulated in my December
2013 opinion. See Remarks on United States Signals
Intelligence and Electronic Surveillance Programs, 2014 DAILY
COMP. PRES. DOC. 30, 2 (Jan. 17, 2014) ("[I]n our rush
to respond to a very real and novel set of threats, the risk
of Government overreach-the possibility that we lose some of
our core liberties in pursuit of security- also became more
pronounced."). And in March of that year, he announced
that he would seek legislation to replace the Section 215
program with "a mechanism to preserve the capabilities
we need without the Government holding this bulk metadata,
" in order to "give the public ...