U.S. District Judge Pauley's ruling in ACLU vs. Clapper

A federal judge dismissed a lawsuit brought by the ACLU, ruling that a massive federal phone-tracking program is legal. Read about the judge's ruling


UNITED STATES DISTRICT COURT DOC
SOUTHERN DISTRICT or NEW YORK DATE FILEDAMERICAN CIVIL LIB ERTIES

UNION, er al., l3 Civ. 3994 (WHP)

Plaintiffs, MEMORANDUM ORDER
-against-
JAMES R. CLAPPER, er al.
- Defendants. .
.

WILLIAM H. PAULEY District Jiidgez

The September terrorist attacks revealed, in the starkest terms, just how
dangerous and interconnected the world is. While Americans depended on technology for the
conveniences of modernity, al--Qaeda plotted in a seventh--century milieu to use that technology
against us. It was a And it succeeded because conventional intelligence gathering
could not detect diffuse filaments connecting a1--Qaeda.

Prior to the September attacks, the National Security Agency

intercepted seven calls made by hijacker Khalid al--Mihdhar, who was living in San Diego,

. California, to an al-Qaeda safe house in Yemen. The NSA intercepted those calls using overseas

signals intelligence capabilities that could not capture al-Mihdhar's telephone number identifier.
Without that identifier, NSA concluded mistakenly that al--Mihdhar was overseas and
not in the United States. Telephony metadata would have furnished the missing information and

might have permitted tl1e.NSA to notify the Federal Bureau of Investigation of the fact

that al--Mihdhar was calling the Yemeni safe house from inside the United States. I

The Government learned from its mistake and adapted to confront a new enemy:
a terror network capable of orchestrating attacks across the world. It launched a number of
counter--measures, including a bulk telephony metadata collection pro gram--a wide net that
could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly
disconnected data.

This blunt tool only works because it collects everything. Such a program, if
unchecked, imperils the civil liberties of every citizen. Each time someone in the United States
makes or receives a telephone call, the telecommunications provider makes a record of when,
and to what telephone number the call was placed, and how long it lasted. The NSA collects that
telephony metadata. If plumbed, such data can reveal a rich profile of every individual as well as
a comprehensive record of people's associations with one another.

The natural tension between protecting the nation and preserving civil liberty is
squarely presented by the Government's bulk telephony metadata collection program. Edward
Snowden's unauthorized disclosure of Foreign Intelligence Surveillance Court orders
has provoked a public debate and this litigation. While robust discussions are underway across
the nation, in Congress, and at the White House, the question for this Court is whether the
Government's bulk telephony metadata program is lawful. This Court finds it is. But the
question of whether that program should be conducted is for the other two coordinate branches

of Government to decide.

1 See generally, The 9/ 11 Commission Report: Final Report of the National Commission on
Terrorist Attacks Upon the United States [hereinafter the "9/ll Report"] (2004).

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The American Civil Liberties Union, the American Civil Liberties Union
Foundation, the New York Civil Liberties Union, and the New York Civil Liberties Foundation
(collectively, "the or Plaintiffs) bring this action challenging the legality of the SA's
telephony metadata collection program. James R. Clapper, the Director of National Intelligence;
Keith B. Alexander, the Director of NSA and Chief of the Central Security Service; Charles T.
Hagel, the Secretary of Defense; Eric H. Holder, the Attorney General of the United States; and
James B. Comey, the Director of the FBI (collectively, "Defendants_" or the ''Government'') are
Executive Branch Department and Agency heads involved with the bulk telephony metadata
collection program. The ACLU moves for a preliminary injunction and the Government moves
to dismiss the complaint. For the reasons that follow, this Court grants the Government's motion
to and denies the ACLU's motion for a preliminary
BACKGROUND
I. Fereign Intelligence Surveillance Act
In 1972, the Supreme Court recognized that "criminal surveillances and those

involving domestic security" are distinct, and that "Congress may wish to consider protective
standards for the latter which differ from those already prescribed for [criminal surveillances]."
United States v. U.S. Dist. Court for East. Dist. of Mich. (Keith), 407 US. 297, 322; 1972).
"Although. the Kefih opinion expressly disclaimed any ruling 'on the scope of the President's
surveillance power with respect to the activities of foreign powers,' it implicitly suggested that a
special framework for foreign intelligence surveillance might be constitutionally permissible."

Clapper v. Amnesty lnt"l USA, 133 s. Ct. 1138, 1143 (2013) (quoting Keith, 407 US. at

23) (internal citations omitted).

In 1975, Congress organized the Senate Select Committee to Study Governmental
Operations With Respect to Intelligence Activities, known as the "Church Committee," to
investigate and report on the Government's intelli gence-- gathering operations. The Church

Committee concluded that the Executive Branch had engaged in widespread surveillance of U.S.

citizens and that Congress needed to provide clear boundaries for foreign intelligence gathering.

In 1978, Congress did just that. Legislating against the backdrop of I_{_e_itl_1 and the
Church Committee findings, Congress enacted the Foreign Intelligence Surveillance Act of 1978
(FISA). Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended at 50 1801 to 18850).
PISA requires the Government to obtainwarrants or court orders for certain foreign intelligence
surveillance activities and created the FISC to review those applications and grant them if
appropriate.

While the FISC is composed of Article judges, it operates unlike any other I
Article court. Proceedings in Article courts are public. And the public enjoys a "general
right to inspect and copy public records and documents, including judicial records and
documents." Nixon v. Warner Con1m'cns, Inc., 435 U.S. 589, (1978) (footnotes
omitted). "The presumption of access is based on the need for federal courts, although
independent--indeed, particularly because they are have a measure of
accountability and for the public to have confidence in the administration of justice." Lugosch v.
Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006) (quoting United States v. Amodeo,
71 F.3d 1044, 1048 (2d Cir. 1995)); see also Standard Chartered Bank Int'l (Americas) Ltd. V.

Calvo, 757 F. Supp. 2d 258, 259-80 (S.D.N.Y. 2010)?

2 The Judicial Conference of the United States reaffirmed the public interest in the efficient and

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But FISC proceedings are secret. Congress created a secret court that operates in
a secret environment to provide judicial oversight of secret Government activities. _S_ee 50
U.S.C. 1803(c) ("The record of proceedings [in the shall be maintained under security
measures established by the Chief Justice in consultation with the Attorney General and the
Director of Central While the notion of secret proceedings may seem antithetical
to democracy, the Founding Fathers recognized the need for the Government to keep secrets.
U.S. Const. Art. I 5, cl. 3. ("Each House shall keep a Journal of its Proceedings, and from
time to time publish the same, excepting such Parts as may in their Judgment require

Congress has long appreciated the EXecutive's paramount need to keep matters', of
national security secret. See, e.g ., 5 U.S.C. 552(b)(1)(A) (first enacted July 4, 1966, Pub.
89-487) (The Executive is not required to disclose "rnatters that are specificaiiy authorized . .
by an Executive order to be kept secret in the interest of national defense" under the Freedom _of
Information Act). Indeed, "[s]ecrecy and dispatch" are essential ingredients to the President's
effective discharge of national security. gee The Federalist No. 70, at 472 (Alexander Hamilton)
(J Cooke ed., 1961). FISC is an exception to the presumption of openness and transparency--+--in
matters of national security, the Government must be able to keep its means and methods secret
from its enemies.

In 1998, Congress amended ISA to allow for orders directing common carriers,

public accommodation facilities, storage facilities, and vehicle rental facilities to provide

transparent administration of justice by acknowledging that "sealing an entire case file is a last
resort." Judicial Conference of the United States, Judicial Conference Policy on Sealed Cases
(Sept. 13, 2011), available at

l.pdf.

business records to the Government. See Intelligence Authorization Act for Fiscal Year 1999,
Pub. L. 105-272, 602, 112 Stat. 2396, 2410 (1998). These amendments required the
Government to make 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."
602.

After the September 11th attacks, Congress expanded the Government's authority
to obtain additional records. USA PATRIOT Act of 2001, Pub. L. 107-56, 215, 115 Stat.
272, 287 (2001) (codified as amended at 50 U.S.C. 1861) ("section 215"): Section 215 allows
the Government to obtain an order "requiring the production of any tangible things (including
books, records, papers, documents, and other items)," eliminating the restrictions on the types of
businesses that can be served with such orders and the requirement that the target be a foreign
power or their agent. The Government invoked this authority to collect virtually all call detail
records or "telephony metadata." infra, Part II. See generally David S. Kris, On the Bulk
Collection of Tangible Things, 1 Lawfare Res. Pap. Ser. 4 (2013).

Bulk telephony metadata collection under FISA is subject to extensive oversight
by all three branches of government. It is monitored by the Department of Justice, the
intelligence Community, the FISC, and Congress. See Administration White Paper, Brig
Collection of the Telephony Metadata Under Section 215 of the USA Patriot Act 3 (Aug. 9,
2013) [hereinafter "White To collect bulk telephony metadata, the Executive must first
seek judicial approval from the FISC. 50 U.S.C. 1861. Then, on a serni--annual basis, it must
provide reports to the Permanent Select Committee on Intelligence of the House of

Representatives, the Select Committee on Intelligence of the Senate, and the Committees on the

Judiciary of the House of Representatives and the Senate. 50 U.S.C. l87l(a). Those reports
must include: (1) a summary of significant legal interpretations of section 215 involving matters
before the and (2) copies of all decisions, orders, or opinions of the FISC that include
significant construction or interpretation of section 215. 50 U.S.C.
Since the initiation of the program, a number of compliance and implementation.

issues were discovered and self--reported by the Government to the ISC and Congress.

In accordance with the Court's rules, upon discovery, these
inconsistencies were reported as compliance incidents to the ISA
Court, which ordered appropriate remedial action. The incidents,
and the Court's responses, were also reported to the Intelligence
Committees in great detail. The Committees, the Court, and the
Executive Branch have responded actively to the incidents. The
Court has imposed additional safeguards. In response to
compliance problems, the Director of NSA also ordered 'end~to-
tend' reviews of the section 215 . . . programs, and created a new
the. Director of. Compliance, to help ensure the integrity of
future collection.

Report on the NSA's Bulk Collection Programs for USA PATRIOT Act Reauthorization (ECF
No. 33-5) [hereinafter Report"]. The NSA addressed these problems. For example, in
2011, FISC Judge Bates engaged in a protracted iterative process with the
included numerous written submissions, meetings between court staff and the Justice
Department, and a hearingm-over the Government's application for reauthorization of another
ISA collection program. That led to a complete review of that program's collection and

querying methods. See generally Mem. Op. No. (F.I.S.C. Oct. 3,

2011) (Bates, J.) available at

3 The iterative process Judge Bates describes is routine in the FISC and demonstrates the FISC
does not "rubberstamp" applications for section 215 orders.

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In August 2013, FISC Judge Eagan noted, "[t]he Court is aware that in prior years
there have been incidents of noncompliance with respect to the NSA's handling of produced
information. Through oversight by this Court over a period of months, those issues were
resolved." In re Application of the Fed. Bureau of Investigation for an Order Requiring the Prod.

of Tangible Things from IREDACTEDI, Case No. BR 13-109, amended slip op. at 5 n.8

(F .I.S.C., Aug. 29, 2013) (released in redacted form Sept. 17, 2013). And Congress repeatedly
reauthorized the statute.

In recognition of the broad intelligence gathering capability Congress granted to

is the Executive Branch, section 21 5 included a sunset provision terminating that authority at the

When [the Government] prepares an application for [a section 215
order, it] first submit[s] to the what's called a "read copy,"
which the court staff will review and comment on. [A]nd they will
almost invariably come back with questions, concerns, problems
that they see. And there is an iterative process back and forth
between the Government and the to take care of 'those
concerns so that at the end of the day, we're confident that We're
presenting something that the will approve. That is hardly
a rubber stamp. It's' rather extensive and serious judicial oversight
of this process.
Testimony before the House Permanent Select Committee on Intelligence, dated
Jun. 18, 2013, Robert Litt, General Counsel, Office of the Director of National
Intelligence at 17-18 (ECF No. 33-13).

end of 2005. But the war on terror did not end. Congress has renewed section 215 seven times.4

In 2006, Congress amended section 215 to require the Government to provide "a statement of
facts showing that there are reasonable grounds to believe that the tangible things sought are
relevant to an authorized investigation." USA PATRIOT Improvement and Reauthorization Act
of 2005, Pub. L. No. 109-177, 106, 120 Stat. 192, 196 (2006) (codified as amended at 50
U.S.C. 1861).

II. NSA Bulk Telephony Metadata Collection

On June 5, 2013, The Guardian published a t11en--classif1ed FISC "Secondary

Order" directing Verizon Business Network Services to provide the NSA "on an ongoing daily
basis . . . all call detail records or 'telephony metadata'" for all telephone calls on its network
from April 25, 201.3 to July 19, 2013. See in re Application of the FBI for an Order Requiring
the Prod. of Tangible Things From Verizon Bus. Networl-: Servs., Inc. ex. rel. MCI Comrnc'n

Servs., Inc. d/b/a Verizon Bus. Servs., No. BR 13-80, slip op. at 2-4 (F.I.S.C. Apr. 25, 2013)

("Secondary Order"). "Telephony metadata" includes, as to each call, the telephone numbers
that placed and received the call, the date, time, and duration of the call, other session-identifying

information (for example, International Mobile Subscriber Identity number, International Mobile

4 See An Act to Amend the USA PATRIOT Act to Extend the Sunset of Certain Provisions of
that Act and the Lone Wolf Provision of the Intelligence Reform and Terrorism Provision Act of
2004 to July 1, 2006, Pub. No. 109-160, 119 Stat. 2957 (2005); An Act to Amend the USA
PATRIOT Act to Extend the Sunset of Certain Provisions of Such Act, Pub. L. No. 109-170, 120
Stat. 3 (2006); USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-
177, 120 Stat. 192 (2006); Department of Defense Appropriations Act, 2010, Pub. L. No. 111-
118, 123 Stat. 3409 (2009); An Act to Extend Expiring Provisions of the USA PATRIOT
Improvement and Reauthorization Act of 2005 and Intelligence Reform and Terrorism
Prevention Act of 2004 until February 28, 2011, Pub. L. No. 111-141, 124 Stat. 37 (2010); FISA
Sunsets Extension Act of2011, Pub. L. No. 112-3, 125 Stat. 5 (2011); PATRIOT Sunsets
Extension Act of2011, Pub. L. No. 112-14, 125 Stat. 216 (2011).

station Equipment Identity number, et cetera), trunk identifier, and any telephone calling card
number. Decl. of Teresa H. Shea, Director of the Signals Intelligence Directorate, NSA,
dated Oct. 1, 2013, 1] l5 (ECF No. 63); Secondary Order at 2. It does not include the content of
any call, the name, address, or financial information of parties to the call, or any cell site location
information. Shea Decl. ii 15; Secondary Order at 2. In response to the unauthorized
disclosure of the Secondary Order, the Government acknowledged that since May 2006, it has
collected this information for substantially every telephone call in the United States, including
calls between the United States and a foreign country and calls entirely within the United States.
Shea Decl. 13; White Paper at 3.

The Secondary Order was issued pursuant to a "Primary Order" setting out certain

"minimization" requirements for the use of telephony metadata. In re Application of the FBI

(F.I.S.C. Apr. 25, 2013) ("Primary Order"). The NSA stores the metadata in secure networks
and access is limited to authorized personnel. at 4-5. Though metadata for all
telephone calls is collected, there are restrictions on how and when it may be accessed and
reviewed. The NSA may access the metadata to further a terrorism investigation only by
"querying" the database with a telephone number, or "identifier," that is associated with a
foreign terrorist organization. Shea Decl. 1] 19; Primary Order at Before the database may
be queried, a high--ranking NSA official or one of twenty specially-authorized officials must
determine there is "reasonable articulable suspicion" that the identifier is associated with an
international terrorist organization that is the subject of an FBI investigation. Shea Decl. 20,

31; Primary Order at 7. The "reasonable articulable suspicion" requirement ensures an "ordered

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and controlled" query and prevents general data browsing. Shea Decl. '1l 20. An identifier
reasonably believed to be used by a person may not be regarded as associated with a

Decl. 31; Primary Order at 9. An identifier used to query telephony rnetadata is referred
to as a "seed." Shea Decl. fl 20'.

The results of a query include telephone numbers that have been in contact with
the seed, as well as the dates, times, and 'durations of those calls, but not the identities of the
individuals or organizations associated with responsive telephone numbers. Shea Decl.- 1] 21.
The query results also include second and third-tier contacts of the seed, referred to as Shops."
Shea Decl. 'll 22. The first "hop" captures telephony metadata for the set of telephone numbers in

telephone numbers in direct contact with any first '?l1op" telephone number. The third
corrals telephony metadata for the set of telephone numbers in direct contact vvith any second
"hop" telephone number. Shea Decl. 1] 22. The NSA takes this information and determines
"which of the results are likely to contain foreign intelligence inforrnation, related to
counterterrorism, that would be of investigative Value to FBI (or other intelligence agencies)?'
Shea Decl. it 26. They provide only this digest to the FBI. Moreover, metadata containing

determines "that the information was related to counterterrorism information and necessary to

?e_e_alsg Shea Decl. 'ml 28, 32. I

Through this sifting, "only a very small percentage of the total data collected is

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ever reviewed by intelligence Shea Decl. 'll 5. ln 2012, fewer than 300 identifiers
were queried. Shea Decl. 24. Because each query obtains inforrnation for contact nuinbers up
to three hops out from the seed, the total number of responsive records was "substantially larger
than 300, but . . . still a very small percentage of the total volume of metadata records." Shea
Decl. 'll 24. Between May 2006 and May 2009, the NSA provided the FBI and other agencies
with 277 reports containing approximately 2,900 telephone numbers. Shea Decl. 'll 26.

Plaintiffs' Claims

Plaintiffs filed this lawsuit on June 1 1, 20l3, less than a week after the

unauthorized disclosure of the Secondary Order. The ACLU, ACLU. Foundation, NYCLU, and
NYCLU Foundation are "non-profit organizations that engage in public education, lobbying, and
pro bone litigation upholding the civil rights and liberties guaranteed: by the Constitution"
Compl. 1] 24 (ECF o. 1). The ACLU and ACLU Foundation are Verizon. subscribers and their
telephony rnetadata is therefore subject to the Secondary Order. Compl.. 'ml 28, 35. The NYCLU
was a Verizon subscriber until early April 2013. Compl. 'll 29. The YCLU and NYCLU
Foundation. alleges that their metadata was collected under a previous order before the expiration
of its Verizon contract. Compl. 1] 3, 35. The ACLU and ACLU Foundation are also customers
of Verizon Wireless and allege that similar orders were provided to Verizon Wireless, allowing
the Government to obtain information concerning calls placed or received on the mobile
telephones of ACLU employees. Compl. 28, 35. While the Secondary Order does not cover
calls placed on Verizon Wireless's network, the Government acknowledged that it has collected
metadata for substantially every telephone call in the United States since May 2006. Shea

Decl. 1] 13; White Paper at 3.

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The Plaintiffs' employees routinely communicate by telephone with each other as
Well as with journalists, clients, legislators, and members of the public. The Plaintiffs' assert that
"their" telephone records "could readily be used to identify those who contact Plaintiffs . and
is likely to have a chilling effect." Compl. 1] 35. The Plaintiffs' seek a declaratory judgment that
the NSA's metadata collection exceeds the authority granted by section 215 and violates the First
and Fourth Amendments, and it also seeks a permanent injunction enjoining the Government
from continuing the collection. Compli 36--38.

The Government moves to dismiss the complaint under Federal Rules of Civil
and l2(b)(6) for lack of standing and failure to state a claim. The ACLU
moves under Rule 65 for a preliminary injunction barring the Government from "collecting
[Plaintiffsi] call records" during the pendency of this action, requiring it to quarantine_i"all of
[Plaintiffsi] Call records {it] already collected," and enjoining the aovernment querying
metadata using any identifier associated with the Plaintiffs. Pls. Mot. For Prelim. Inj., dated
Aug. 26, 2013 at 2 (ECF No. 26) [hereinafter "Pls,

DISCUSSION
I. Standing

'principle is more fundamental to the judiciary's proper role in our system

of government than the constitutional limitation of federal~--court jurisdiction to actual cases or

controversies." Corp. v. Cuno, 547 U.S. 332, 341 (2006) (internal quotation

marks and alterations omitted); see also Rothstein V. UBS AG, 708 F.3d 82, 89-~90 (2d Cir.
2013). The case~--or--controversy requirement of Article of the Constitution requires plaintiffs

to establish their standing to sue. Amnesty lnt'l, 133 S. Ct. at ll46 (citing Raines v. Byrd, 521

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US, 811, 818 (1997)). "The law of Article standing, which is built on separation-of--powers
principles, serves to prevent the judicial process from being used to usurp the powers of the
political branches." Amnesty lnt'l, 133 S. Ct. at 1146. Therefore a court's standing inquiry is
"especially rigorous" when the merits of the case would require the court "to decide whether an
action taken by one of the other two branches of the Federal Government was unconstitutional."
Amnesty Int'l, 133 S. Ct. at 1147 (quoting fiairgs, 521 US. at 819-20).

Article standing requires an injury thatis "concrete, particularized, and actual
or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling."
Monsanto Co. V. Geertson Seed Farms, 130 S. Ct. 2743, 2752 (2010) (citing Horne v. Flores, 557
US. 433, 445(2009)). The ACLU alleges three sources of injury: (1) the Government's mere
collection of the metadata related to the ACLU's telephone calls; (2) the "search" of metadata
related to the ACLU's telephone calls that resul when any seed is "ueried becaus the SA
must check all of the metadata it has collected to identify all telephone numbers within three
hops of the seed; and (3) the chilling effect on potential ACLU clients, whistleblowers,
legislators, and others who will hesitate to contact the ACLU by telephone because they know
the NSA will have a record that the call occurred. 1

Relying on the Supreme Court's decision in Clapper v. Amnesty International,
133 S. Ct. 1138, the Government contends that none of these alleged injuries are "concrete,
particularized, and actual or imminent." Monsanto, 130 S. Ct. at 2752. Amnesty International
was a facial challenge to the FISA Amendments Act of 2008, which expanded the Government's
authority to intercept the contents of communications for foreign intelligence purposes. The

Amnesty International plaintiffs included attorneys and human rights organizations whose work

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required them to communicate with individuals overseas who might be targets of Government
surveillance under the ISA Amendments Act, such as Guantanamo detainees. They alleged
violations under the First and Fourth Amendments. While they offered no evidence their
communications had in fact been intercepted, they asserted that there was an "objectively
reasonable likelihood" their communications with foreign contacts would be intercepted in the

futures They also argued that they suffered a present injury stemming from expensive

I precautions they took to avoid interception, such as traveling overseas to meet their clients in

person instead of communicating electronically.

The Supreme Court found thejAmnesty Intemational plaintiffs had suffered no

646

injury in fact. The Court declined to assess standing based on an objectively reasonable
likelihood' standard," finding it "inconsistent with [the] requirement that 'threatened injury must

he certainly impending to constitute injury Amnesty lnt'l, 133 S. Ct. at 1147 (quoting

Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). The Amnesty International plaintiffs'

"highly speculative fear" that their communications would be intercepted was insufficient to

confer standing. Amnesty Int'l, 133 S. Ct. at 1148. in so holding, the Supreme Court

deconstructed the Amnesty International plaintiffs "highly attenuated chain of possibilities":

(1) the Government will decide to target the communications of

5 A panel in the Second Circuit adopted this novel view of standing. Sge Amnesty Int'l USA V.
Clapper, 638 F.3d118, 133-34, 139 (2d Cir. 2011), overruled by 133 S. Ct. 1138 (2013). This
conclusion was criticized by other Second Circuit judges. Amnesty lnt'l USA v. Clapper,
667 F.3d'163, 194 (2d Cir. 2011) (denial of rehearing en banc) (Raggi, . dissenting) (ln finding
that an "objectively reasonable likelihood" standard applied, "the panel did not explain its
disregard of the Supreme Court's requirement that injury must be actual or imminently
threatened"). The Supreme Court expressly rejected the Second Circuit's formulation.
Amnesty lnt'l, 133 S. Ct. at 1146, 1151.

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non-U.S. persons with Whom [the plaintiffs] communicateg?
(2) in doing so, the Govemment will choose to invoke its authority

under [the FISA Amendments Act] rather utilizing another
method of surveillance,

(3) the Article judges who serve on the Foreign Intelligence
Surveillance Court will conclude that the GoVernment's proposed
surveillance procedures satisfy [the FISA Amendments Act's]
many safeguards and are consistent with the Fourth Amendment;

th Gcvernment will succeed in intercepting the
communications of respondents' contacts; and

(5) respondents will be parties to the particular communications
that the Government intercepts. .

Amnesty Int'l, 133 S. Ct. at 1148. "Although imminence is concededly a somewhat elastic

not too speculative for Article purpo-ses--th-at the injury is certainly impending." Amnesty

Lnt_:l_, 133 S. Ct. at 1147 (quoting Luian v. Defenders of Wildlife, 504 U.S. 555, 564 n.2 (1992))

(emphasis in original).

The Amnesty International plaintiffs fared no better with their second alleged

injurymcostly precautions taken to avoid the risk of surveillance. In the Supreme Court's view,
that the plaintiffs "incurred certain costs as a reasonable reaction to a risk of harm" was
insufficient "because the harm [plaintiffs sought] to avoid [was] not certainly impending."
Amnesty Int'l, 133 S. Ct. at 1151. "Because respondents do not face a threat of certainly

impending interception under [the FISA Amendments Act], the costs that they have incurred to

6 The Amnesty International plaintiffs were all US. persons. The FISA Amendments Act
permits the NSA to intercept communications of U.S. persons only if they communicate with a
non--U.S. person reasonably believed to be outside the United States who is the target of the
surveillance. Amnesty Int'l, 133 S. Ct. at 1144, 1148.

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avoid surveillance are simply the product of their fear of surveillance . . . such a fear is
insufficient to create standing." Amnesty lnt'l, 133 S. Ct. at 1152 (citing Laird V. Tatum, 408
U.S. 1, 10-15 (1972)).

Amidax Trading Group v. SCRL, 671 F.3d 140 (2d Cir. 2011) is

instructive. Amidax's bank used SWIFT7 to transfer funds among financial institutions. After
the September 11th attacks, the Office of Foreign Assets Control subpoenaed records
to monitor the financial transactions of suspected terrorists. Amidax sued SWIFT and the
Government, alleging, inter alia, violations of the First and Fourth Amendments; The Second
Circuit held that establish an injury in thus, a personal stake in this 1itigation--~#
[Amidax] need only establish that its was obtained by the governmei'1t."
671 F.3d at 147 (alteration in original) (emphasis added) (quoting Amidax radiing Grp. V.

T. SCRL, 6.,7 F. ipp. 2d 500, 2009)). But because Amidax could no.

plausibly show the Government had collected its records, it lacked standing. Amidax, 671 .3d
at
Here, there is no dispute the Government collected telephony etadata related to

the ACLU's telephone calls. Thus, the standing requirement is satisfied. S_e_e_ Amnesty Int'l, 133

i S. Ct. at 1153 (noting that the case would bedifferent if "it were undisputed thatthe Government

was using [the FISA Amendments Act]--authorized surveillance to acquire respondents'
communications and . . . the sole dispute concerned the reasonableness of respondents'

preventive measures"); see also Klavman v. Obama, F. Supp. 2d 2013 WL 6571596, at

7 SWIFT stands for Society for Worldwide Interbank Financial Telecommunication. It provides
electronic instructions on how to transfer money among thousands of financial institutions
Worldwide. Amidax, 671 F.3d at 143.

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(D.D.C. Dec. 16, 2013) (finding standing for subscriber to challenge the NSA telephony
metadata collection program).

The Government argues that merely acquiring an item does not implicate a
privacy interest, but that is not an argument about Article standing. Rather, it speaks to the
merits of a Fourth Amendment claim. Rakas V. Illinois, 439 U.S. 128, 139 (1978)
("Rigorous application of the principle that the rights secured by the [Fourth] Amendment are
personal, in place of a notion of "standing" will produce no additional situations in which

evidence must be excluded. . . . [T]he better analysis . . . focuses on the extent of particular

[individual's Fourth Amendment] rights, rather than on any theoretically separate, but invariably

intertwined concept of standing") The ACLU is not obligated at the standing stage to prove the .

merits of its case, only that it has "a personal stake in this litigation." Amidax, 671 F.3d at 147.
Because the ACLT has alleged actual rijury grounded in the Governrnenfs collection of
metadata related to its telephone calls, it has standing.

II. . Statutory Claim

A. Sovereign Immunity

The United States, as sovereign, is immune from suit unless it unequivocally
consents to being sued. United States v. Mitchell, 445 U.S. 535, 538 (1980); segalsg
United States, 174 U.S. 373, 375-76 (1899) ("It is an axiom of our jurisprudence. The
government is not liable to suit unless it consents thereto, and its liability in suit cannot be
extended beyond the plain language of the statute authorizing Section 702 of the
Administrative Procedure Act waives sovereign immunity for suits against the United

States that, like this one, seek "relief other than money damages." 5 U.S.C. 702. The APA

-13-

creates a "strong presumption that Congress intends judicial review of administrative action."
Bowen V. Mich. Acad. of Family Physicians, 476 US. 667, 670 (1986).
Exceptions to the APA's broad waiver are "construed narrowly and apply only if

there is 'clear and convincing evidence of legislative intention to preclude review." Nat. Res.

Def. Council V. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (quoting Japan Whaling Ass'n V. Am.

Cetacean Soc'y, 478 U.S. 221, 230 n.4 (1986)). But the presumption favoring judicial review,
"like all presumptions used in interpreting statutes, may be overcome by specific language or
specific legislative history that is a reliable indicator of congressional inten Block V. Cmty.
Nutrition Inst., 467 U.S. 340, 349 (1984). In particular, "the presumption favoring judicial
review of administrative action may be overcome by inferences of intent drawn from the
statutory scheme as a whole." 467 US. at 349.

1. Section 702 Exception

Section 702 does not "c0nfer[] authority to grant relief if any other statute that
grants consent to suit expressly or impliedly forbids the relief which is sought." 5 U.S.C. 702.
This carve out ensures that a plaintiff cannot ''exploit[] the APA's waiver to evade limitations on
suit contained in other statutes" because "[t]he waiver does not apply 'if any other statute that
grants consent to suit expressly or impliedly forbids the relief which is sought' by the plaintiff."
Band of Pottawatomi Indians V. Patchak, 132 S. Ct. 2199, 2204405
(2012). Thus, Congress has dealt in particularity with a claim and [has] intended a

specified remedy' . . . to be exclusive, that is the end of the matter; the APA does not undo the

judgment." Pottawatoini Indians, 132 S. Ct. at 2205 (alterations in original) (quoting Block V.

North Dakota ex rel. Bd. ofUniv. Sch. Lands, 461 U.S. 273, 286 n.22 (1983)).

-19-

The PATRIOT Act reengineered various provisions of the Wiretap Act, the
Stored Communications Act, and ISA. Section 223 of the PATRIOT Act amended the Wiretap
Act and the Stored Communications Act to remove the United States as a party that could be
sued by an aggrieved person under those statutes. Pub. L. No. 107-56 223, 115 Stat. 272
(2001) (amended 18 U.S.C. 2520(a) and 18 .S.C. 2707(a) to insert "other than the United

States"); Jewel V. Nat'l Sec. Agency, F. Supp. 2d 2013 WL 3829405, at *12 (N.D. Cal.

July 23, 2013) (section 223 "explicitly deleted the.United States from the provisions that permit
an aggrieved person to sue for recovery and obtain relief, including 'preliminary and other
equitable or declaratory relief [with respect to the Wiretap Act and the Stored Communications
At the same time, section 223 created a iimited right to sue the United States for money.-_
damages for claims arising out of the Wiretap Act, the Stored Communications Act, and ISA.
Specifically, part of section 223 was codified as Title 18, United States Code, Section 2712,
titled "Civil actions against the United States" and is the "exclusive remedy against the United
States for any claims within the purview of this section." 18 U.S.C. 2712(d). Section 2712
allows a plaintiff to recover money damages for any "willful violation" of the Wiretap Act, the
Stored Communications Act, and three provisions of PISA: (1) electronic wiretap surveillance;
(2) physical searches; and (3) pen registers or trap and trace devices. 18 U.S.C. 2712(a).

The operation of section 223~--~eXcising non-damage suits from the Wiretap Act
and the Stored Communications Act and designating section 2712 as the only avenue for a civil
action under the Wiretap Act, the Stored Communications Act and certain FISA sections"-
shows Congress's intent to permit only money damages suits under the limited circumstances

delineated in section 2712. Jewel, 2013 WL 3829405, at *l2. It is unsurprising that section

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2712 does not authorize monetary damage suits for section 215 violations. Congress's concern
was to provide redress for privacy violations where the Government took action to generate
evidenceesuch as electronic eavesdropping, physical searches, or the installation of pen I
registers or trap and trace provided no statutory cause of action when evidence
was created solely in the ordinary course of business of a third party.

This interpretation of section 215 is buttressed by lSA's overall statutory
scheme: in contrast to other FISA surveillance statutes, section 215 does not authorize any
action for misuse of the information obtained. Compare 50 U.S.C. 1861 (use of information
obtained from "tangible things" order not subject to redress under section 2712) \_v_i_th 50 U.S.C.

1806(a) (use of information obtained from electronic surveillance actionable under section

2712); 5" U.S.C. 1825(a) (same for physical searches); 50 1

as-5(a) (same for pen

.S.C
registers and trap and trace devices). Ihus, Congress withdrew the APA's waiver of sovereign

immunity for section 215. Pottawatorni Indians, 132 S. Ct. at 2204-~05; see also Klayrn an,

2013 WL 6571596, at *12 n.30; Jewel, 2013 WL 3829405, at *12.

2. Section 701 Exception

Section 701 of the APA withdraws the immunity waiver "to the extent the
relevant statute 'preclude[s] judicial review?" 467 U.S. at 345 (alterations in original)
(citing 5 U.S.C. "Whether and to what extent a particular statute precludes judicial
review is determined not only from its express language, but also from the structure of the 1

statutory scheme, its objectives, its legislative history, and the nature of the administrative action

8 Pen register and trap and trace devices are electronic devices that, respectively, record all call
detail information for telephone numbers called from or to a particular telephone line. However,
they do not capture the content of the call. _S_e_e 18 U.S.C.

-21-

involved." Block, 467 U.S. at 345.
In Block, the Supreme Court held that a milk consumer's challenge to milk
market orders issued under the Agricultural Marketing Agreement Act was precluded under APA

section 7 467 U.S. at 347. As the Supreme Court explained, the Agricultural Marketing

Agreement Act "contemplates a cooperative Venture" between the Secretary of Agriculture, milk .

handlers, and milk producers. 467 US. at 346. For example, the Agricultural Marketing
Agreement Act provides for "agreements among the Secretary, producers, and handlers, for
hearings among them, and for votes by producers and handlers." Elggk, 467 U.S. at 346-47
(internal citations omitted). The Agricultural Marketing Agreement Act requires a handler to
exhaust administrative remedies before it permitted anyijudicial review. filggk, 467 U.S. at 346.
But the Agricultural Marketing Agreement Act was silent regarding milk consumers' remedies.
C0111 fou id uiat silence, coupled with ti

demonstrated that milk consumers' claims were precluded. Although the Agricultural Marketing
Agreeinent Act impacted consumer interests, the Court concluded that "the preclusion issue does
not only turn on whether the interests of a particular class . . . are implicated," rather, it turns on
whether "Congress intended for that class to be relied upon to challenge agency disregard of the
law." B_1gg, 467 at 347. The Court Went on to find that a complex scheme of this

type, the omission of such a provision is sufficient reason to believe that Congress intended to

foreclose consumer participation in the regulatory process." Block, 467 U.S. at 347. "[W]hen a

statute provides a detailed mechanism for judicial consideration of particular issues at the behest

of particular persons, judicial review of those issues at the behest of other persons may be found

to be iinpliedly precluded." Block, 467 U.S. at 349.

-22-

The interplay between section 215 and FISA's statutory scheme compel the same
conclusion here.' Section 215 expressly provides that person receiving a production order
may challenge the legality of that order by filing a petition with the pool judges]

established by section l803(e)(l) of this title." 50 U.S.C. It also prohibits

any modification of section 215 orders: "[a]ny production or nondisclosure order not

explicitly modified or set aside consistent with this subsection shall remain in full effect." 50
U.S.C. l86l(f)(2)(D). Like the statutory scheme in egg, section 215 does not provide for
any person other than a recipient of an order to challenge the orders' legality or otherwise
participate in the process. Ark. Dairy Coop. Ass'n, Inc. V. U.S. Dep'_t of Agra, 573 F.3d 815,
822 (DC. Cir. 2009) (In "the Supreme Court did not concentrate simply on th presence
or absence of an expiicit right [to appeal a milk market order] but insteadnoted that in the
'complex scheme' of the Agrict1ltI.1ral. Marketing Agreement Act, tnere no provision ..or
consumer participation of any kind").

The "cooperative venture" envisioned by FISA's statutory scheme does not
involve a mundane subject like milk pricing--it involves national security, a matter of vital
importance. Congress-'s intent to keep the means a.nd methods of the Government's intelligence
gathering efforts secret from its enemies lies at the heart Section 215 limits disclosure

of orders to the narrowest group of individuals: (1) those to whom disclosure is necessary to

comply with such an order; (2) an attorney to obtain legal advice on how to respond to the order;

_23_

and (3) other persons as permitted by the Director of the FBI. ?_ee 50 U.S.C. 1861 Section
215 does 11ot just exclude a target from challenging an order, it precludes their participation in
any way. Ark. Dairy Coop. Ass'n, 573 F.3d at 822; _Blo_c_lg, 467 U.S. at 346).

Allowing any challenge to a section 215' order by anyone other than a recipient
would undermine the Government's vital interest in keeping the details of its telephone metadata

collection program secret. It would also--because of the scope of the program--allow virtually

any telephone subscriber to challenge a section 215 order. In Koretoff V. Vilsack, 614 F.3d 532,
537, (DC. Cir. 2011) the DC. Circuit discussed such an absurdity that also cropped up in 319$.
The D.C. Circuit noted that "[a]llowing suit by consumers would mean virtually every American
could challenge every agricultural rnarketing order. . . [T]hat hard--to-fathorn result was great
concern to the Supreme Court [in l_3_l9_glg] and informedhits assessment of Congress's intenton
wlietlier such were precluded by the {Agricultural-Mcrketing Agreement Act]." Keretcff,
614 F.3d at 537. Allowing anyone but the recipient of section 215 orders to challenge them, or
to do so anywhere outside the FISC, "would severely disrupt this complex and delicate
administrative scheme." i, 467 U.S. at 348. It is clear from the statutory scheme that

Congress intended to preclude statutory causes of action such as this.

Of course, this says nothing about the ACLU's constitutional claims and it is hard

9 During the 2005 reauthorization of section. 215, Congressman Nadler offered an amendment in
the Judiciary Committee that would have permitted the recipient of an order to challenge
compliance in a district court. In his remarks, Congressman Nadler stated, "[This amendment]
allows the recipient of a section 215 order to challenge the order in [a district] court. This is a
common--sense protection that is sorely lacking in the current law. Now the recipient, not the
target--this isn't good enough, but we can't do the target. . . . It doesn't give the target of the
order the ability to go to court. He doesn't know about it. But the recipient, if they wish, can
challenge it in court." H.R. Rep. pt 1, at 128. That amendment failed. H.R. Rep. 109-
174, pt 1, at 47.

-24-

to image a regime where they would be barred. A constitutional claim is precluded only on a
"heightened showing" demonstrating a clear intent to do so. Webster V. Doc, 486 U.S. 592, 603
(l988). And there is no language in FISA expressly barring a constitutional claim.
Klaygnan, 2013 WL 6571596, at *l3.

Regarding the statutory arguments, there is another level of absurdity in this case.
The ACLU would never have learned about the section 215 order authorizing collection of
telephony metadata related to _its telephone numbers but for the unauthorized disclosures by
Edward Snowden. Congress 'did not intend that targets of section 215 orders would ever learn of
them. And the statutory scheme also makes clear that Congress intended to preclude suits by
targets even if they discovered section 215 orders implicating them. it cannot possibly be that
lawbreaking conduct by a government contractor that reveals state the means
and methods of intelligence gatheringwcould flustrate Cc-ngress's intent. To hold ct ierwise
would spawn mischief: recipients of orders would be subject to section 2l5's secrecy protocol
confining challenges to the FISC, while targets could sue in any federal district court. A target's
awareness of section.2l5 orders does not alter the Congressional calculus. The ACLU's

statutory claim must therefore be dismissed.

B. Merits of the Statutory Claims

Even if the statutory claim were not precluded, it would fail. plaintiff seeking
a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in
his favor, and that an injunction is in the public interest." Winter v. NRCC, 555 U.S. 7, 20

(2008) (citing Munaf v. Geren, 553 U.S. 674, 689-90 (2008)); see also N.Y. Progress Prot.

-25-

PAC V. Walsh, 733 F.3d 483, 486 (2d Cir. 2013). Here, the ACLU fails to demonstrate a
likelihood of success on the merits of their statutory claim.

1. Does the Stored Communications Act Prohibit the Collection of
Telephony Metadata Under Section 215?

Section 215 was enacted at the same time as an amendment to the Stored

Communications Act. As amended, the Stored Communications Act prohibits communications

providers from "knowingly divulgfingj a subscriber's records to a government entity unless one

of several exceptions are met. 18 U.S.C. 2702(a)(3). These include when the Government

obtains a warrant, an administrative subpoena, a grand jury or trial subpoena, or an orderissued

under 2703 18 U.S.C. ?A2703(c). The Government may also obtain telephony metadata

31with a 11' tionai security letter issued under 18 . 2709. An NSL does not

.8.
re'qu'ir'e' judicial approval. The only hurdle' is a certification from the Director of the FBI or his
designee that the records sought "are relevant to an authorized investigation to protect against
international terrorism or clandestine intelligence activities." 18 U.S.C. 2709(b)(1).

By contrast, section 215 allows the government an order "requiring the production
of any tangible thing." Prior to its amendment, the Government's ISA authority to collect
business records applied only to records from "common carrier[s], public accommodation,
facilit[ies], physical storage facilit[ies], or vehicle 50 U.S.C. 1862 (2001).

Section 215 broadened. the Government's autliority to seek records from additi.onal businesses.
50 U.S.C 1861 (as amended, 2008). The only here--on the types of 1

records that may be obtained with a section 215 order are that they be obtainable with a grand

10 An NSL is an administrative subpoena, which is one of the SCA's listed exceptions. _S_ee 18
U.S.C. ?2703(c)(2).

-25-

jury subpoena. 50 U.S.C. 1861(c)(2)(D). Section 215 contains nothing suggesting that it
is limited by the Stored Communications Act. Nevertheless, Plaintiffs argue that section 215
should be interpreted narrowly to avoid any conflict with the Stored Communications Act.

. But this court must attempt to interpret a statute "as a symmetrical and coherent
regulatory scheme, and fit, if possible, all parts into an harmonious whole" and is "guided to a
degree by common sense." Food Drug Admin. v. Brown Williamson Tobacco Corp., 529
U.S. 120, 133 (2000). Read in harmony, the Stored Communications Act does not limit the
Government's ability to obtain information from communications providers under section 215
because section 215 orders are functionally equivalent to grand jury subpoenas. Section 215
authorizes the Government to seek records that may be obtained with a grand jury subpoena,
such as telephony metadata under the Stored Communications Act.

That conclusionis bolstered by common sense: to allow the Government to A
obtain telephony metadata with an NSL but not a section 215 order would lead to an absurd
result. Unlike an NSL, a section 215 order requires a ISC judge to find the Government has
provided a "statement of facts showing that there are reasonable grounds to believe that the
tangible things sought are relevant" to a foreign intelligence investigation. 50 U.S.C.
1861(b)(2)(A). As FISC Judge'Walton found,

[i]t would have been anomalous for Congress, in enacting the USA

PATRIOT Act, to have deemed the FBI's application of a

'relevance' standard, without prior judicial review, sufficient to

obtain records subject to [the Stored Communications Act], but to

have deemed the FISC's application of a closely similar

'relevance' standard insufficient for the same purpose. This

anomaly is avoided by interpreting sections 2702-2703 as

implicitly permitting the production of records pursuant to a FISC
order issued under [section 215].

-27-

In re Prod. ofTangible Things from No. BR 08-13, Supp. Op. at 5 (F.I.S.C. Dec.
12, 2008) (emphasis in the original). Any dissonance between the two provisions melts away
when the Stored Communications Act is read as permitting section 215 orders to obtain
telephony metadata.

2. Did Congress Ratifv The Government's Interpretation of Section 215?

"Congress is presumed to be aware of an administrative or judicial interpretation
of a statute and to adopt that interpretation when it re-enacts a statute without change." Boles;
Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-40 (2009) (quoting Lorillard V. Pons, 434 U.S. 575,
580 (1978)). "When 'all (or nearly all) of the' relevant judicial decisions have given a term or
concept a consistent judicial gloss, We presume Congress intended the term or concept to have

that meaning when it incorporated it into a later-enacted statute." Bruesewitz v. Wveth LLC,

131 S. Ct. 1068, 1082 (2011) {citing Merck Co. v. Revnolds, 130 S. Ct. 1784, 1802 (2010);.
"The consistent gloss represents the pgbfig understanding of the term." Bruesewitz, 131 S. Ct. at
1082. I
The Government argues Congress was aware of the bulk metadata collection

program and ratified it by reenacting section 215. Before Congress reauthorized PISA, no
judicial opinion interpreting relevance was public, which was in line with Congress's design.
Congress passed FISA to engraft judicial and congressional oversight onto Executive Branch
activities that are most effective when kept secret. To conduct surveillance under section 215,
the Executive must first seek judicial approval from the FISC. 50 U.S.C. 1861. Then, on a
semi-annual hasis, it must provide reports to the I'ern1anent Select Committee on Intelligence of

the House of Representatives, the Select Committee on Intelligence of the Senate, and the

-28-

Committees on the Judiciary of the House of Representatives and the Senate. 50 U.S.C. 1871.
Those Congressional reports must include: (1) a summary of significant legal interpretations of
section 215 involving matters before the and (2) copies of all decisions, orders, or
opinions of the FISC that include significant construction or interpretation of section 215. - 50
U.S.C. 1871.
The Congressional reports are not public and are submitted "in a manner

consistent with the protection of the national security," namely, i.n classified, secret proceedings.
50 U.S.C. 1871. Such Congressional proceedings are akin to application process for a section

215 order and the FISC opinions on those applications--they are all classified, secret

proceedings. There is no doubt that the Congressional Committees responsible for oversight of

this program knew about the FISC opinions and the Executive Branchis interpretation of section

In 2010 and 2011, Congress reauthorized section 215 Without making any
changes." Prior to the 2010 reauthorization, the Executive Branch. made available to all

members of Congress a classified, five--page document discussing the bulk telephony rnetadata

program. On February 23, 2010, Senators Feinstein and Bond wrote to their colleagues:

Members of the Select Committee on Intelligence have previously
requested that the Executive Branch permit each Member of
Congress access to information on the nature and significance of
intelligence authority on which they are asked to vote. In response
to these requests, the Attorney General and the Director of
National Intelligence have provided a classified paper to the House

11 An Act to Extend Expiring Provisions of the USA PATRIOT Improvement and
Reauthorization Act of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004
until February 28, 2011, Pub. L. No. 111-141, 124 Stat. 37 (2010); PISA Sunsets Extension Act
of 201 1, Pub. L. No. 112--3, 125 Stat. 5 (2011); PATRIOT Sunsets Extension Act of2011, Pub.
L. No. 112-14, 125'Stat. 216 (2011).

-29..

and Senate Intelligence Committees on important intelligence
collection made possible by authority thatis subject to the
approaching sunset, and asked for our assistance in making it
available, in a secure setting, directly and persenally to any

interested Member.

Letter from Sens. Feinstein Bond to Colleagues (Feb. 23, 2010) (ECF No. 33-6).
Representative Reyes addressed a similar letter to his House colleagues. Letter from Rep.
Reyes to Colleagues (Feb. 24, 2010) (ECF No. 33-7).

That classified document, which was made available prior to the vote for
reauthorization and has now been declassified in part, informed the reader that "[section 215]

orders generally require production of the business records . . . relating to. substantially all of the

telephone calls handled by the [telecorninunications] companies. including both calls made
between the United States and a foreign country and calls made entirely Within the llnited
States." NSA Report.

The following year, when section 215 Was again scheduled to sunset, senators
were informed of an updated classified document available for their review. See Letter from

Sens. Feinstein Chambliss to Colleagues (Feb. 8, 2011) (ECF No. 33-11). Apparently some

-30-

Senators did review it," while other Members of Congress did not." The House Intelligence

Committee did not make the document available to members of the House. Dozens of House

members elected in 2010 therefore never had an opportunity to review the classified document.
While this is problematic, the Executive Branch did what it was required to do under the
statutory scheme that Congress put in place to keep Congress informed about foreign intelligence
surveillance.

And viewing all the circumstances presented here in the national security context,
this Court finds that Congress ratified section 215 as interpreted by the Executive Branch and the
FISC, when it reauthorized FISA. In cases finding ratification, it is fair to presume that Congress
had knowledge of the statute's interpretation. Forest Grove Sch. Dist, 557 US. at 23914510

(Congress is presumed to be aware of Supreme Court decision); Lorillard, 434 US. at 580-81

12 or example, Senator Wyden stated, I\/Iembers of Congress have no idea how the law
is being secretly interpreted by the Executive Branch." and Senator Udall echoed that sentiment:
"[W]hat most people~--~including many Members of Congress--believe the PATRIOT Act
allows the government to do . . . and what government officials privately believe the PATRIOT
Act allows them to do are two different things." _S_ee_ 157 Cong. Rec. S3386 (daily ed. May 26,
2011). At the time, Senators Wyden and dall's remarks precipitated a Freedom of Information
Act lawsuit by The New York Times seeking disclosure of the classified report to Congress.
That case was assigned to this Court. After briefing, argument, and an in camera review, this
Court concluded that disclosure of the report would "enable America's adversaries to develop
means to degrade and evade the nation's foreign intelligence collection capabilities" and that it
would "reveal and potentially compromise intelligence sources and methods." NY. Times Co.
v. U.S. Dep't of Justice, 872 F. Supp. 2d 309, 316-17 (S.D.N.Y. 2012).

13 Congressman Sensenbrenner asserts in an amicus brief that "he was not aware of the full scope
of the [telephony metadata collection] pro gram when he voted to reauthorize section 215 and
that "had he been fully informed he would not have voted to reauthorize section 215 without
change." Br. of Amicus Curiae, F. James Sensenbrenner ("Amicus 9-10 (ECF No. 56).
This is a curious statement: Congressman Sensenbrenner not only had access to the five-page
report made available to all Congressmen, but he also, as "a long--serving member of the House
Judiciary Committee", "Amicus Br. at 1, was briefed semi--annua11y by the Executive Branch that
included "a summary of significant legal interpretations of section 215 involving matters before
the and "copies of all decisions, orders, or opinions of the FISC that include significant
construction or interpretation of section 215." 50 U.S.C. 1871.

(Congress is presumed to be aware that "every court to consider the issue" has held there is a

right to a jury trial in FLSA actions); Butterbaugh v. Dep't of Justice, 336 .3d 1332, 1342 (Fed.

Cir. 2003) (congressional awareness shown by "[e]xtensive hearings, repeated efforts at

legislative correction, and public controversy"); cf. Comm'r oflnternal Revenue v. Glenshaw

Glass Co, 348 U.S. 426, 431 (1955) (declining to find ratification where there is not "the

slightest affirmative indication that Congress ever had the [relevant] decision before
3. Is Bulk Telephony Metadata Collection Permitted By Section 215?
To obtain a section 215 order, the Government must show (1) "reasonable

grounds to believe that the tangible things sought are relevant to an authorized investigation"

and (2)ithat the item sought must be able to be "obtained with a subpoena duces tecurn . . . in aid

of a grand jury investigation or with any other [court] order . . . directing the production of
recordsor tangible things." 50 1861 The Government can obtain -telephony
metadata with grand jury subpoenas and other court orders. 18 U.S.C.
A grand jury subpoena permits the Government to obtain tangible things unless

"there is no reasonable possibility that the category of materials the Government seeks will
produce information relevant to the general subject ofthe grand jury's investigation." l_Jni_1;e_d_

States v. R. Enters, Inc, 498 U.S. 292, 301 (1991). The ACLU argues that the category at

telephony too broad and contains too much irrelevant information. That
argument has no traction here. Because without all the data points, the Government cannot be
certain it connected the pertinent ones. As FISC Judge Eagan noted, the collection of virtually
all telephony metadata is "necessary" to permit the NSA, not the FBI, to do the algorithmic data

analysis that allow the NSA to determine "connections between known and unknown

-32-

international terrorist operatives." In re Application of the Fed. Bureau of Investigation for an
Order Requiring the Prod. of Tangible Things from IREDACTEDI, amended slip op. at
And it was the FISC that limited the NSA's production of telephony metadata to the FBI. While
section 215 contemplates' that tangible items will be produced to the FBI, FISC orders require
that bulk telephony rnetadata be produced directly--and the NSA. And the FISC .
forbids the NSA from disseminating any of that data until after the NSA has identified particular
telephony metadata of suspected terrorists. Without those minimization procedures, FISC would
not issue any section 215 orders for bulk telephony rnetadata collection. In re Application of the
Fed. Bureau of Investigation for an Order Requiring the Prod. of Tangible Things from
amended slip op. at 23.
"Relevance" has a broad legal meaning. The Federal Rules of Civil Procedure

allow parties to obtain discovery "regarding any nonprivileged matter that to any
party's claim or defense." Fed. R. Civ. P. 26(b)(l) (emphasis added). This Rule "has been

construed broad.ly to encompass any matter that bears on, or that reasonably could lead to other

matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. V.

437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)).
Tangible items are "relevan under section 215 if they bear on or could reasonably lead to other
matter that could bear on the investigation.

Under section 215, the Government's burden is not substantial. The Government
need only provide "a statement of facts showing that there are reasonable grounds to believe that
the tangible things sought are relevant." 50 U.S.C. 1861(b)(2)(A) (emphasis added). Because

section 215 orders flow from the Government's grand jury and administrative subpoena powers,

-33-

50 U.S.C. l86l_, the Government's applications are subject to deferential review. ?e_e

Enters. lnc., 498 US. at 301 (upholding grand jury subpoena challenged on relevancy grounds

unless "there is no reasonable possibility that the category of materials the Government seeks
will produce information relevant to the general subject of the grand jury's investigation"); Nat'l

Labor Relations Bd. v. Am. Med. Response, lnc_., 438 F.3d 188, l93 (2d Cir. 2006) (finding that

for an administrative subpoena, "the agency's appraisal of relevancy" to its investigation" must
be acceptedso long as it is not obviously wrongf'). PISA applications for section 215 orders "are

subject to 'rninimal scrutiny by the courts," both upon initial presentation and subsequent

challenge." United 'States Abu-Jihaad, .630 F.3d 102, 130 (2d Cir. 2010) (quoting
States V. Duggan, 743 F.3d 59, 77 {2d Cir. 1984)).

i The concept of relevance the context of an investigation does not require the
Government to parse irrelevant documents at the start of its inv stigation. Rather, it allows
that Government to get a category of materials if the category is relevant. The question of the

permissible scope is generally "variable in relation to the nature, purposes and scope of the

inquiry." Okla. Press Pub. Co. V. Walling, 327 U.S. 186, 209 (1946). Defining the

reasonableness of a subpoena based on the volume of information to be produced would require
the Government to determine Wrongdoinghbefore issuing a that determination is
the primary purpose for a subpoena. Okla. Press Pub. Co., 327 U.S. at 201 (noting that
administrative subpoenas are authorized "to discover and procure evidence, not to prove a
pending charge or complaint, but upon which to make one"). And in the context of a

counterterrorism investigation, that after-the--attack determination would be too late.

-34;

Here, there is no way for the Government to know which particle of telephony
inetadata will lead to useful counterterrorism information.l4 When that is the case, courts
routinely authorize large-scale collections of information, even if most of it will not directly bear
on the investigation. In re Subpoena Duces Tecum, 228 F.3d 341, 350-51 (4th Cir. 2000)
(authorizing collection of l5,000 patient files); In re Grand Jury Proceedings: Subpoena Duces
827 F.2d 301 (8th Cir. 1987) (authorizing collection of all wire transactions over $1,000
for a 14-month period at a particular Western Union office). I

Any individual call record alone is unlikely to lead to matter that may pertain to a
terrorism investigation Approximately 300 seeds were queried in 2012 and only a "very small
percentage of the total volume of metadrta records" were responsive to those queries." Shea
Decl. 1[ 24. But aggregated telephony metadata is relevant because it allows the querying
technique to he cornprehensive. And SA's warehousing e_f that data allows a query tc be
instantaneous. This new ability to query aggregated telephony metadata significantly increases
the NSA's capability to detect the faintest patterns left behind by individuals affiliated with
foreign terrorist organizations. Shea Decl. 46, 48. Armed with all the metadata, NSA can

draw connections it might otherwise never be able to find."

"There is no question that "individuals associated with international terrorist organizations use
telephonic systems to communicate with one another around the world, including the United
States. In re lication, amended slip op. at 21. And the Government know that
the terrorists' communications are located somewhere' in the metadata [database], but cannot
know where until the data is aggregated and then [queried.]" In re Application, amended slip op.
at 21.

is Prior to September llth, NSA did not havethat capability. General Alexander summed it up
aptly, "We couldn't connect the d.ots because we didn't have the dots." Testimony before the
House Permanent Select Committee on Intelligence, dated Jun. 18, 2013, General Keith
Alexander, Director of the NSA, at 61 (ECF No. 33-13) [hereinafter "Alexander Testimony"].

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The collection is broad, but the scope of counterterrorism investigations is
unprecedented. National security investigations are fundamentally different from criminal
investigations. They are on preventing opposed to the
retrospective investigation of crimes. National security investigations span "long periods of time
and multiple geographic regions." Decl. of Robert J. Holley, FBI Acting Assistant Director of
the CounterterrorismDivision, dated Oct. 1, 2013, 'il 18 (ECF No. 62). Congress was clearly
aware of the need for breadth and provided the Government with the tools to interdict terrorist
threats.

A Relying on In re Horowitz, the ACLU's argues that the bulk telephony metadata
collection program is overbroad because section 215 orders cover large volumes of irrelevant
documents. Horowitz involved an investigation into financial crimes spanning borders and
so the scope of the grand jury subpoena was necessary broad. re Horowitz, 482
F.2d 72, 79-80 (2d Cir. 1973). After noting that "the failure to limit the subpoena by subject
matter is not necessarily fatal," Judge Friendly narrowed the subpoena at issue to exclude
categories documents that "have no conceivable relevance to any legitimate object of
investigation by the federal grand jury." 482 F.2d at 79-80. He was troubled, in
particular, with a subpoena that "require[d] production of all documents contained in the files,
Without any attempt to define classes of potentially relevant documents or any limitations as to
subject matter or time period." Horowitz, 482 F.2d at 79. The Second Circuit's exclusion of

irrelevant categories of documents in Horowitz has no application here because telephony

metadata is a category of relevant data. Any subpoena that seeks to obtain categories of

-35-

documents will likely return irrelevant documents--but only that portion of a subpoena seeking
an irrelevant category of documents should be quashed.
Similarly, the ACLU reliance on In re Grand Jury Subpoena Duces Tecurn Dated

November l5, 1993, 846 F. Supp. ll (S.D.N.Y. 1994) is misplaced. There, Judge Mukasey was

asked to decide whether to quash a subpoena directing a party to produce computer storage
devices, not categories of documents within them. Judge Mukasey recognized that a "wider
grand jury investigation into obstruction and related charges indeed justifies a commensurately
broader subpoena" but cannot "j ustify a subpoena which encompasses documents completely -
irrelevant to its scope, particularly because the Government has acknowledged that relevant

documents can be isolated through key-word searching." in re Grand Jury Subpoena Duces

Tecum Dated November '15, 1993, 846 F. Supp. at i3. Because the Government was unwilling
to modify the subpoena, Judge Mukasey quashed it, concluding that "the subpoena at issue

unnecessarily demands documents that are irrelevant to the grand jury inquiry." re Grand Jury

Subpoena Duces Tecum Dated November l5, 1993, 846 F. Supp. at 4. Like In re Horowitz,

this reasoning is no bar here because all telephony metadata is a relevant category of
information.
Constitutional Claims

That Congress precluded the ACLU's statutory claims does not bar its
constitutional ones. complaint must contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its face?" Ashcroft v. lgbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twoinblv, 550 U.S. 544, 570 To determine plausibility, .

courts follow a "two-pronged approach." Igbal, 55 6 .S. at 679. "First, although a court must

-37..

accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal
conclusions, and threadbare recitals of the elements of a cause of action, support_ed by mere
conclusory statements, d.o not suffice." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (internal
punctuation omitted). Second, a court determines "whether the 'well-pleaded factual
allegations,' assumed to be true, fplausibly give rise to an entitlement to relief." Hayden V.
Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting 556 U.S. at 679). On a motion to
dismiss, courts may consider ."facts stated on the face of the complaint, in the documents
appended to the complaint or incorporated in the complaint by reference, and . . . matters of
which judicial notice may be taken." Allen v. WestPoint--Pepperel1, Inc., 945 F.2d 40, 44 (2d
Cir. 1991).

i For the purposes of deciding the Governments motion to disrniss, this Court does
not consider the affidavits subrnitted in conjunction with the CLU's motion for a preliminai
injunction. Chandler V. Coughlin, 763 F.2d 110, M3 (2d Cir. 1985) (error to consider affidavits
in support of preliminary injunction in ruling on motion to d.ismiss); see also MacDonald v.
_S_af_:1r, 206 F.3d 183, 191 11.3 (200 Cir. 2000).

A. Fourth Amendment

The Fourth. Amendment guarantees that all_ people shall be "secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const.
amend. IV. "[T]he Fourth Amendment protects people, not places." Katz V. United States, 389
U.S. 347, 351 (1967). A "search" occurs for purposes of the Fourth Amendment when the
Government violates a person's "reasonable expectation. of privacy." _1gn_z_, 389 U.S. at 360-61

(Harlan, J., concurring); see also United States V. Jones, l32 S. Ct. 945, 950 (2012); Bond v.

_3g_

United States, 529 U.S. 334, 337 (2000).

In Smith V. Maryland, 442 U.S. 735 (1979), the Supreme Court held individuals

have no "legitimate expectation of privacy" regarding the telephone numbers they dial because
they knowingly give that information to telephone companies when they dial a number. 442
U.S. at 742. S_m_ith's bedrock holding is that an individual has no legitimate expectation of
privacy in information provided to third parties. 16

Smfih arose from a robbery investigation by the Baltimore police. 442
U.S. at 737. Without a warrant, the police requested that the telephone company install a device
known as a pen register, which recorded the numbers dialed from Srnith's home. 442.,
at 737. After Sniith's arrest, he moved to suppress evidence derived from the pen register.
442 U.S. at 737. Noting it had consistently "held that a person has no legiti_mate 1

expectation of privacy in i formation he voluntarily turns over to third parties," Smith, 442 U..S.

at 743-44, the Court found that telephone customers have no subjective expectation of privacy in
the numbers they dial because they convey that information to the telephone company knowing

that the company has facilities to make permanent records of the numbers they dial. Smith, 442

16 Here are just a few matters in which an individual has no constitutionally protected
expectation of privacy. See, United States v. l\/tiller, 425 U.S. 435, (1976) (bank.
records); Couch v. United. States, 409 US. 322, 335-36 (1973) (records given to accountant);
Hoffa v. United States, 385 U.S. 293, 302-03 (1966) (information revealed to a confidant); Qn
Lee v. United States, 343 U.S. 747, 971 (1952) (information revealed to a false friend); seealsg 5
United States v.Todisco, 667 F.2d 255, 258 (2d Cir. 1981) (telephone numbers collected by a pen
register). And some more recent iterations. See, e. United States V. Perrine, 518 F.3d 1196,
l204--05 (10th Cir. 2008) (subscriber information provided to an internet service provider)
United States V. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (information from a home computer
that is transmitted' over the Internet or by email); see also United States v. Meregildo, 883 F.
Supp. 2d 523, 526 (S.D.N.Y. 2012) (information provided to Facebook "friend"). For an
excellent discussion on the third party doctrine, see generally, Orin S. Kerr, The Case for the
Third Party Doctrine, 107 Mich. L. Rev. 561 (2009).

-39-

U.S. at 742-43.

Tl1e privacy co11cerns at stake in were far more individualized than tl1ose
raised by the ACLU. Em involved the investigation of a single crime and the collection of
telephone call detail records collected by the telephone company at its central office, examined
by the police, and related to the target of their investigation, a person identified previously by
law' enforcement. Sge Smith, 442 U.S. at 737. Nevertheless, the Supreme Court found there was

no legitimate privacy expectation because "[t]elephone users . . .i typically know that they must

convey numerical information to the telephone company; that the telephone companyhas

facilities for recording this information; and that the telephone company does in fact record this

. information for a variety of legitimate business purposes." Smith, 442 US. at 743; see also,

United States V. Reed, 575 F.3d 900, 914 (9th Cir. 2009) (finding that because "data about the

.. 'call origination, iength, time of call' . . . is nothing more than pen register and trap and trace

data, there is no Fourth Amendment 'expectation of (citation omitted).
The ACLU argues that analysis ofbulk telephony metadata allows the creation of
a rich mosaic: it can "reveal a person's religion, political associations, use of a telephone--sex

hotline, contemplation of suicide, addiction to gambling or drugs, experience with rape,

grappling with sexuality, or support for particular political causes." Decl. of Edward Felten,

Professor of Computer Science and Public Affairs, Princeton University, 1] 42 (ECF No. 27). But
that is at least three inflections from the Government's bulk telephony metadata collection. First,
without additional legal to rigorous minimization procedures--the NSA
cannot even query the telephony metadata database. Second, when it makes a query, it only

learns the telephony metadata of the telephone numbers within three "hops" of the "seed."

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Third, without resort to additional techniques, the Government does not know who _a_rg of the
telephone numbers belong to. In other words, all the Government secs is that telephone number
A called telephone number B. It does not know who subscribes to telephone numbers A or B.
Further, the Government repudiates any notion that it conducts the type of data mining the
ACLU warns about in its parade of horribles."
The ACLU also argues that "[t]here are a number of ways in which the

Government could perform three-hop analysis without first building its own database of every
Americarfs call records." Supp. Decl. of Edward elten, 1] 6 (ECF No. 68-1). That has no
traction. At bottom, it is little more than an assertion that less intrusive means to collect and
analyze telephony metadata could be employed. But, the Supreme Court has "repeatedly refused
to declare that only the 'least intrusive' Search practicable can be reasonable under the Fourth

Amendment." City of Ontario. Cal. v. Quon, 130 2619, 2632. (2010) (citing Vernonia

School Dist. 47] V. Acton, ll5 S. Ct. 2386, 2396 (1995)). That judicial-Monday-morning

quarterbacking "could raise insuperable barriers to the exercise of virtually all search--and~seizure
powers" because judges engaging in after-the--fact evaluations of government conduct "can

almost always imagine some alternative means by which the objectives might have been

17 General Alexander's testimony on this point is clear:
[l]n the open press there's this discussion about pattern
[that the Government is] out there doing pattern analysis on this.
That is absolutely incorrect. We are not authorized to go into the
data, nor are we data mining, or doing anything with the data other
than those queries that we discuss, period. We're not authorized to
do it. We aren't doing it. There are no automated processes
running in the background pulling together data trying to figure out
networks. . . . The only time you can do pattern analysis is, once
you start the query on that query and where you go forward.
Alexander Testimony at 66.

-41-

accomplished." Quon, 130 S. Ct. at 2632 (internal quotation marks and citations omitted).

The ACLU's pleading reveals a fundamental misapprehension about ownership of
telephony metadata. In its motion for a preliminary injunction, the ACLU seeks to: 1) bar the
Government from collecting "Plaintiffs' call records" under the bulk telephony metadata
collection program; (2) quarantine "all of Plaintiffs' call records" already collected under the
bulk telephony metadata collection program; and (3) prohibit the Government from. querying
metadata obtained through the bulk telephony metadata collection program using any phone
number or other identifier associated with Plaintiffs. Pls. Mot. at 2.

First, the business records created by Verizon are not_"P1aintiffs' call records."

hose records are created and rnaintained by the telecornrriunications provider not the ACLU.
Under the Constitution, that distinction is critical because when. a person Voluntarily conveys
inferinaticn to a thir party, he forieits his right to privacy in the information. 422
US. at 742. Second, the Government's subsequent querying of the telephony metadata does not
implicate the Fourth than a law enforcement off1cer's query of the FBI's
fingerprint or DNA databases to identify someone. nd v. King, 133 S. Ct. 1958, 9
1963-64 (2013). In the context of DNA querying, any match is of the DNA like
telephony rnetadata additional investigative step are required to link that DNA profile to an
individual.

The collection of breathtaking amounts of information unprotected by the Fourth
Amendment does not transform that sweep into a Fourth Amendment search. Qfi United States
v. Dionisio, 410 US. 1, 13 (1973) '(Where single grand jury subpoenaidid not constitute

unreasonable seizure, it could not be "rendered unreasonable by the fact that may others were

-42-

subjected to the same compulsion"); In re Grand Jury Proceedings: Subpoena Duces Tecum, 827
F.2d at 305 fourth amendment does not necessarily prohibit the grand jury from
engaging in a 'dragnet' operation") (citation omitted).

The ACLU's reliance on the concurring opinions in Log is misplaced. In Jones,
the police attached a GPS tracking device to the undercarriage of a vehicle Without a warrant and
tracked the vehicle's location for the next four Weeks. 132 S. Ct. at 948. The majority held that
a "search" occurred because by placing the GPS device on the vehicle, "[t]he Government
physically occupied private property for the purpose of obtaining information. . . . [S]ueh a
physical intrusion would have been considered a 'search' 'within the meaning of the Fourth
Amendment when it was adopted." 132 S. at 949 (citation omitted). In two separate
concurring opinions, five justices appeared to be grappling with how the Fourth Amendment
applies to technological advances. Lo_n;es_? 132 S. Ct. at 957 (Sotomayor, L. concurring); _J_o_1_1gs_3,
l32 S. Ct. at 964 (Alito, ., concurring).

4 But the Supreme Court did not overrule And the Supreme Court has
instructed lower courts not to predict whetheriit would overrule a precedent even if its reasoning
has been supplanted by later cases. "[T]l1e Court of Appeals should . . . leav[e] to th[e Supreme]
Court the prerogative of overruling its own decisions." Agostini v. Felton, 521 U.S. 203, 237
(1997) (quoting Rodriguez de v. Shearson/Am. Express, Inc, 490 U.S. 477, 484 (1989)).
Clear precedent applies because held that a subscriber has no legitimate expectation of
privacy in telephony metadata created by third parties. 442 US. at 744-45. inferior

courts are bound by that precedent.

-43-

Some ponder the ubiquity of cellular telephones and how subscribers'
relationships with their telephones have evolved since _S_1_r1_ith. While people may "have an
entirely different relationship with telephones than they did thirty-four years ago," Klaym an,
2013 WL 6571596, at *2l, this Court observes that their relationship with their
telecommunications providers has not changed and is just as frustrating. Telephones have far
more versatility now than when _Smi_t_l; was decided, but this case only concerns their use as
telephones. The fact that there are more calls placed does not undermine the'Supreme Court's
finding that a person has no subj ective expectation of privacy in telephony metadata.
442 U.S. at 745. ("The fortuity of whether or not the [tele]phone company in fact elects to make
a quasi-perrnanent record of a particular number dialed does not . . . make any constitutional
difference. Regardless of the [tele]phone company's election, petitioner voluntarily conveyed to
it information that it had facilities for recording and that it was free to record") Iinportantly,
"What metadata is has not changed over time," and in the ggpes of information at

issue in this case are relatively limited: [tele]phone numbers dialed, date, time, and the like."

Klaym an, 2013 WL6571596, at *2l (emphasis in original). Because Smith controls, the NSA's

bulk telephony metadata collection program does not violate the Fourth Amendment.
B. First Amendment
"[I]mplicit in the right to engage in activities protected by the First Amendment

[is] a corresponding right to associate with others in pursuit of a Wide variety of political, social,

economic, educational, religious, and cultural ends." Roberts v. U.S. aycees, 468 U.S. 609, 622
(1984). Pervasive Government surveillance implicates not only the Fourth Amendment but also

the First Amendment:

-44"

National security cases . . . often reflect a convergence of First and
Fourth Amendment values not present in cases of "ordinary"
crime. Though tl1e investigative duty of the executive may be
stronger in such cases, so also is there greater jeopardy to
constitutionally protected speech. Historically the struggle for
freedom of speech and press in England was bound up with the
issue of the scope of the search and seizure power. History
abundantly documents the tendency of Governmentwhowever
benevolent and benign its view with suspicion those
who most fervently dispute its policies.

ieeith, 407 US. at 3l3~l/4 {internal quctatien rnariis a 1d citation omitted).

. -Fr=rs4.- NA.-. L: 1" 1:0

J.D 1.1)
information is likely to have a chilling effect on people who would o't'r1erwise contact Plaintiffs."
Compl. 'ii 35. Significant impairments of first amendment rights "must Withstand exacting

scrutiny." United States v. Alvarez, 1.32 S. Ct. .253 7, 2548 (2012); see also Nat'l Coniinodity

Barter As-sin V. Archer, 31 F.3d 1521, 1531 n.4. (10th Cir. ln re Grand Jury Proceedings,

776 F.2d 1899, 1102-03 (2d Cir. 1985). The Government contends, however, that "surveillance
consistent with Fourth Amendment protections . . . does not violate First Amendment rights,

even though it may be directed at communicative or associative activities." Gordon V. Warrfl

Consol. Bd. of Educ, 706 F.2d 778, 781 n.3 (6th Cir. 1983).

The Government's argument is well-supported. See, United States v. Mayer,
503 F.3d 740, 747-48 (9th Cir. 2007) (noting that "Fourth Amendment provides the relevant
for a challenge to a criminal investigation on First Amendment grounds); Anderson
v. Davila, 125 F.3d 148, 160 (3d Cir. 1997) ("Governrnent's surveillance of individuals in public
places does not, by itself, implicate the Constitution" absent evidence of retaliatory conduct for
protected activities); Phila. Yearly Meeting of Religious Soc. of Friends v. Tate, 519 F.2d 1335,

l337--38 (3d Cir. 1975) (upholding police surveillance activities limited to data gathering at

-45-

public meetings); United States v. Oaks, 527 F.2d 937, 941 (9th Cir. 1975) (upholding
surveillance by undercover agent of public meeting of tax rebellion group); Lustiger v. United
gates, 386 F.2d 132, 139 (9th Cir. 1967) (holding that "the Fourth Amendment does not
preclude postal inspectors from copying information contained on the outside of sealed

envelopes in the mail"); Cohen V. United States, 378 F.2d 751, 760 (9th Cir. 1967) (rejecting

First Amendment challenge to the "mail cover" practice). And this consideration is built in to
any section 215 application. 50 U.S.C. 1861 (requiring that the investigation not be
conducted "solely upon the basis of activities protected by the ]irst [A]mendmen

0 Here, it is unnecessary to decide whether there could be a First Amendment
violation in the absence of a..Fourth Arnendinent violation because Amnesty International
compels the conclusion that the bulk metadatai collection doesinot burden First Amendment
rights substantially. Qf 133.8. Ct. at 1152. "{D]istinguishing between incidental and substantial
burdens under the First Amendment requires a different analysis, applying different legal
standards, than d.i.stinguishing what is and is not routine in the Fourth Amendment . . . context."
Tabbaa v. Chertoff, 509 F.3d 89, 102 n.4 (2d Cir. 2007). There must be "a direct and
substantial" or "significant" burden on associational rights in order for it to qualify as
"substantial." 509 F.3d at 101. "Mere incidental burdens on the right to associate do
notviolate the First Amendmen 509 F.3d at 101.

Any alleged chilling effect here arises from the ACLU's speculative fear that the
Government will review telephony metadata related to the ACLU's telephone calls. For
telephony metadata to be "used to identify those who contact Plaintiffs for legal assistance or to

report human--rights or civi1~liberties violations," Compl. $1 35, it must actually be reviewed and

-46-

the identities of the telephone subscribers determined. Fear that telephony rnetadata relating to
the ACLU will be queried or reviewed or further investigated "relies on a highly attenuated chain

of possibilities," Arigines 133 S. Ct. at 1148. "[S]uch a fear is insufficient to create

standing," Amnesty Int'l, 133 S. Ct. at 1152. Neither can it establish a violation of an
individual's First Amendment rights.

IV. Remaining Preliminary Iniunction Considerations

For the reasons above, the ACLU has failed to state a claim and its case must be
dismissed'. But even if it could show a likelihood of success on the merits, a preliminary
injunction would be inappropriate. preliminary injunction is an 'extraordinary and drastic
remedy.' 'it should never be awardedas of right." @135', 553 US. at 676 (quoting Yakus V.
United States, 321 US. 414, 440 (1944)). Asdiscussed above, plaintiff seeking a
preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest." 555 U.S. at 20.
Here, the balance of the equities and the public interest tilt firmly in favor of the

Government's position. "Everyone agrees that the Government's interest in combating terrorism

is an urgent objective of the highest order." Holder v. Humanitarian Law Project, 130 S. Ct.

2705, 2724 (2010); see also Haig v. Agee, 453 U.S. 280, 307 (1981) ("It is obvious and

unarguable that no governmental interest is more compelling than the security of the Nation")
(internal quotation marks omitted); In re Directives Pursuant to Section 105B of

the Foreign Intelligence Surveillance Act, 551' F.3d 1004, 1012 (FISA Ct. Rev. 2008)

relevant government interest in national security--is of the highest order of

-47-

magnitude").
The Constitution vests the President with Executive Power. U.S. Const. Art. ll.

That power reaches its zenith when wielded to protect national security. C_f: Youngstown Sheet

Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring) ("When the President
acts pursuant to an express or implied authorization from Congress," his actions are "supported
by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden
of persuasion . . rest[s] heavily upon any who might attack it." (internal quotations omittedj).
And courts must pay proper deference to the Executive in assessing the threats that face the
nation. Bournediene v. Bush, 553 U.S. 723, 797 (2008) federal judges [do not] begin
the day with briefings that rnay describe new and serious threats to our Nation and its people").
Any injunction dismantling the section 2l 5 telephony metadata collection program "would cause
an increased risk to national security and the saiety of the American public." Shea Decl. ll 63.
The "unique capabilities" of the telephony rnetadata collection program "could not be completely
replicated by other means." Shea Decl. 1] 63.
The effectiveness of bulk telephony metadata collection cannot be seriously
disputed. Offering examples is a dangerous stratagem for the Government because it discloses
means and methods of intelligence gathering. Such disclosuresican only educate America's
enemies. Nevertheless, the Government has acknowledged several successes in Congressional
testimony and in declarations that are part of the record in this case. In this Court's view, they
offer ample justification:
0 In September 2009, NSA discovered that an al--Qaeda--associated terrorist
in Pakistan was in contact with an unknown person in the United States

about efforts to perfect a recipe for explosives. NSA immediately notified
the FBI, which investigated and identified the al--Qaeda contact as

-43-

Colorado--based Najibullah Zazi. The NSA and FBI worked together to
identify other terrorist links. The FBI executed search warrants and found
bo1nb--making components in backpacks. Zazi confessed to conspiring to
bomb the New York subway system. Through a section 215 order, NSA
was able to provide a previously unknown number of one of the co--
Medunjanin.

0 In January 2009, while monitoring an extremist in Yemen with ties to al-
Qaeda, the NSA discovered a connection with Khalid Oazzani in Kansas
City. NSA immediately notified the FBI, which discovered a nascent plot
to attack the New York Stock Exchange. Using a section 215 order, NSA
queried telephony metadata to identify potential connections. Three
defendants were convicted of terrorism offenses.

0 In October 2009, while monitoring an al-Qaeda affiliated terrorist, the
discovered that David Irleadley was working on a plot to bomb a
Danish newspaper office that had published cartoons depicting the Prophet
Mohammed. He later confessed to personally conducting surveillance of
the Danish newspaper office. He was also charged with supporting
terrorism based on his involvement in the planning and reconnaissance for
the 2008 hotel attack in Mumbai. Information obtained through section
215 orders was utilized in tandem with. the FBI to establish
foreign ties pat the; in context with US. based planning efforts.

Holley Decl. 1I 24-26; Testimony before the House Permanent Select Committee on Intelligence,

dated June 18, 2013, FBI Deputy Director Sean Joyce, at 12>>~~l3 (ECF No. 33-13) [hereinafter

"Joyce Testimony"].

Bulk telephony metadata collection is one tool used to thwart potential terrorist
attacks. Deputy Director Joyce explained:

Our mission is to stop terrorism, to prevent it. Not after the fact, to

prevent it before it happens in the United States. And I can tell

you every tool is essential and vital. And the tools as I outlined to

you and their uses today have been valuable to stopping some of

those plots. You ask, 'How can you put the value on an American

life?' And I can tell you, its priceless.

Joyce Testimony at 52.

Of course, the considerations weighing in favor of the ACLU's position are far

-49..

from trivial. The need for the telephony rnetadata collection program "does not make the
employment by Government of electronic surveillance a welcome developmentweeven when
employed with restraint and under judicial supervision. There is, understandably, a deep-seated
uneasiness and apprehension that this capability will be used to intrude upon cherished privacy
of law-abiding citizens." 407 U.S. at 312. Just as the Constitution gives the Executive the
duty to protect the nation, citizens' right to privacy is enshrined in the Bill of Rights.
Fifteen different.FISC judges have found the metadata collection program lawful

a total of thirty-five times since May 2006. Holley Decl. 111] 6, 1; In re Application of the
FBI for an Order Requiring the Prod. of Tangible Things lirom No. BR 13-15 8
Oct. ll, 2013). The Governrnent argues that_ "Plaintiffs are asking this Court to
conclude that the FISC exceeded its authority when it authorized the bulk collection of
telephony metadata, and that this Court (without the benefit cftlie classified applications and

information available to the ISC) should substitute its judgment for the decisions that the ISC

I reached [35] times." GoV't Prelim. Inj. Opp. Br. at (ECF No. 61) (internal citation

omitted).

This Court is bound only by the decisions of the Second Circuit and the Supreme

Court. The decisions of other district courts are often persuasive authority. The two declassified

FISC decisions authorizing bulk metadata collection. do not discuss several of the ACLU's
arguments. They were issued on the basis of ex 1% applications by the Government without
the benefit of the excellent briefing submitted to this Court by the Government, the ACLU, and
?t_1L1_iC_i .

There is no question that judges operate best in an adversarial system. "The value

-50-

of a judicial proceeding . . . is substantially diluted where the process is eg pagtg, because the
Court does not have available the fundamental instrument for judicial judgment: an adversary
proceeding in which both parties may participate." Carroll V. Fresident Comm'rs of Princess
Any, 393 US. 175, 183 (1968). At its inception, FISC judges were called on to review warrant
applications, a familiar role and one well-suited for a judge to protect the rights of an individual
in his absence. The lSC's role has expanded greatly since its creation in 1978.

As FISA has evolved and Congress has loosened its individual suspicion
requirements, the FISC has been tasked with delineating the limits of the Government's
surveillance power, issuing secret decision without the benefit of the adversarial process. Its

parte procedures are necessary to retain secrecy but are not ideal for interpreting'- statutes. This

_"f1
case Sf10'v'v'S lint,>> GCI 6'vc1_y 110. pta, Lllell iirici Ubtb b11ULl1Ll

have a voice in the FISC.
CONCLUSION
The right to be free from searches and seizures is fundamental, but not absolute.

As Justice Jackson famously observed: "the Bill of Rights is not a suicide--pact." erminiello v.
City of Chicago, 337 1 (1949). Whether the Fourth Amendment protects bulk telephony
rnetadata is ultimately a question of reasonableness. Missouri v. McNeely, 133 S. Ct. 1552,
1569-70 (2013) ultimate touchstone of the Fourth Amendment is
Every day, people voluntarily surrender personal and seen1ingly--private information to trans-
national corporations, which exploit that data for profit. Few think twice about it, even though it
is far more intrusive than bulk telephony metadata collection.

There is no evidence that the Government has used any of the bulk telephony

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metadata it collected for any purpose other than investigating and disrupting terrorist attacks.
While there have been unintentional violations of guidelines, those appear to stem from human
error and the incredibly complex computer programs that support this vital tool. And once
detected, those violations were self-reported and stopped. The bulk telephony metadata
collection program is subject to executive and congressional oversight, as well as continual
monitoring by a dedicated group of judges who serve on the orei gn Intelligence Surveillance
Court.

No doubt, the bulk telephony metadata collection program vacuums up

information about virtually every telephone call to, from, or within the United States. That is by

design, as it allows the SA to detect relationships so attenuated and ephemeral they would

otherwise escape notice. As the September 11th attacks demonstrate, the cost of missing such a

thread can be horrific. Technology allowed al-Qaeda to operate decentralized and plot
international terrorist attacks remotely. The bulk telephony rnetadata collection program
represents the Government's counter-punch: connecting fragmented and fleeting
communications to re--construct and eliminate al--Qaeda's terror network.
"Liberty and security can be reconciled; and in our system they are reconciled

within the frameworkof the law." Boumediene, 553 U.S. at 798. The success of one helps

protect the other. Like the 9/ ll Commission observed: The choice between liberty and security

is a false one, as nothing is more apt to imperil civil liberties than the success of a terrorist attack

on American soil. The 9/ 11 Commission Report, at 395. A court's solemn duty is "to reject as
false, claims in the name of civil liberty Which, if granted, would paralyze or impair authority to

defend [the] existence of our society, and to reject as false, claims in the name of security which

-52-

would undermine our freedoms and open the way to oppression. American Cornrn'cns Ass'n,

v. Douds, 339 U.S. 382, 445 (1950) (Jackson, ., concurring in part and dissenting in part).

For all of these reasons, the NSA's bulk telephony metadata collection program is
lawful. Accordingly, the Government's motion to dismiss the complaint is granted and the
ACLU's motion for a preliminary injunction is denied. The Clerk of Court is directed to
terminate the motions pending at ECF Nos. 25 and 32 and to mark this case closed.

Dated: December 27, 2013
ew York, New York

WILLIAM H. PAULEY in 0 00
U.s.n.J.

Counsel 0f.Rcc0rd.'

Jameel Jaffer, Esq.

Alex A. Abdo, Esq.

Brett M. Kaufman, Esq.
Patrick C. Toomey, Esq.
Catherine N. Crurnp, Esq.
American Civil Liberties Union
125 Broad Street

New York, NY 10004

Arthur N. Eisenberg, Esq.
Christopher T. Dunn, Esq.

New York Civil Liberties Union
125 Broad Street, 17th Floor
New York, NY 10004

Laura Donohue, Esq.
Georgetown Law
5417 Duvall Drive
Bethesda, MD 20816
Plaintzfifs

-53-

David S. Jones, Esq.

Tara M. La. Morte, Esq.
Christopher B. Harwood, Esq.
John D. Clopper, Esq.

U.S. Attorney's Office, S.D.N.Y.

86 Chambers Street
New York, NY 10007
Counsel for Defendants

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