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Klayman v. National Security Agency

United States District Court, District of Columbia

November 21, 2017

LARRY KLAYMAN, et al, Plaintiffs,

          MEMORANDUM OPINION [DKTS. ##178, 123]


         These 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.

         Plaintiffs 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, [1] 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.

         In the actions as filed, defendants are several federal agencies and departments, executive and judicial officials, and telecommunications and Internet service providers and their executive officers.[2] 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. ¶ 76.

         These 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.


         Because 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.[3] I nonetheless will provide a brief background of these two related suits.

         A. The Section 215 Bulk Telephony Metadata Program

         Section 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.

         Under 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[4] 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

         B. The Bulk Internet-Metadata Program Under FISA's Pen-Trap Provision

         Although 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.

         From 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.

         C. Targeted PRISM Collection of Communications Content Under FISA Section

         As with the surveillance program pursuant to FISA Section 402, a brief overview of the PRISM program is in order.

         In 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[5] 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. ¶¶ 22-23.

         Unlike 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.

         D. The Initial Litigation

         Shortly after Edward Snowden's disclosure of classified material-which revealed some of the NSA's surveillance programs for the first time[6]-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.[7]

         In 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.

         In the 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.[8] 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. Compl. ¶¶56-58.

         As a 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.

         In 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.[9]

         E. The USA FREEDOM Act

         While 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 ...

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