Klayman v. Obama
| Citation | 142 F.Supp.3d 172 |
| Decision Date | 09 November 2015 |
| Docket Number | Civil Action No. 13-851 (RJL) |
| Parties | Klayman et al., Plaintiffs v. Obama et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Larry E. Klayman, Washington, DC, pro se.
Bryan Scott Dearinger, James J. Gilligan, James R. Whitman, Marcia Berman, Rodney Patton, Julia A. Berman, U.S. Department of Justice, Washington, DC, for Defendants.
RICHARD J. LEON
Our Circuit Court has remanded this case for me to determine whether limited discovery is appropriate to satisfy the standing requirements set forth by the Supreme Court in an earlier national security surveillance case: Clapper v. Amnesty International USA, ––– U.S. ––––, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013)
. Although familiarity with the record and my prior opinion on December 16, 20131 is likely, I will briefly recount the history of this matter.
On November 18, 2013, I held a hearing on a motion filed by plaintiffs Larry Klayman, Charles Strange, and Mary Ann Strange to preliminarily enjoin the National Security Agency ("NSA") from collecting and querying their telephony metadata pursuant to the NSA's classified bulk telephony metadata collection program (the "Bulk Telephony Metadata Program" or the "Program"), under which the NSA indiscriminately collects the telephone call records of millions of Americans. Four weeks later, on December 16, 2013, I issued a lengthy opinion ("my December 2013 Opinion") granting the motion as to plaintiffs Larry Klayman and Charles Strange after finding that they had demonstrated a substantial likelihood of success on their Fourth Amendment claim that the collection and querying of their records constituted an unconstitutional search. However, because of the novelty of the legal issues presented and the monumental national security interests at stake, I stayed the injunction pending the appellate review that would undoubtedly follow. Indeed, I assumed that the appeal would proceed expeditiously, especially considering that the USA PATRIOT Act, the statute pursuant to which the NSA was acting, was due to expire on June 1, 2015—a mere eighteen months later. For reasons unknown to me, it did not. Instead, our Circuit Court heard argument on November 4, 2014 and did not issue its decision until August 28, 2015—nearly three months after the USA PATRIOT Act had lapsed and had been replaced by the USA FREEDOM Act, which was enacted on June 2, 2015.
As it pertains to this Opinion, the USA FREEDOM Act specifically prohibits the bulk collection of telephony metadata, but not until November 29, 2015. During the intervening 180–day period, the NSA is continuing to operate the Bulk Telephony Metadata Program while it transitions to a new, more targeted program whereby the NSA, pursuant to authorization by the Foreign Intelligence Surveillance Court ("FISC"), can require telecommunications service providers to run targeted queries against their customers' telephony metadata records and then produce the results of those queries to the NSA. Thus, when our Circuit Court issued its decision on August 28, 2015 vacating my preliminary injunction for a lack of standing and remanding the case to this Court for further proceedings consistent therewith, nearly half of the 180–day transition period had already lapsed.
As a consequence, I immediately scheduled a status conference for the following week to discuss with the parties how to proceed, if at all, prior to the mandate issuing from the Court of Appeals.2 On August 31, 2015, the Government moved to continue the status conference. I denied that motion. At the status conference on September 2, 2015, Mr. Klayman indicated, among other things, that he intended to seek expedited issuance of the mandate from the Court of Appeals and to amend his complaint by joining new parties who are customers of Verizon Business Network Services ("VBNS") and who therefore, consistent with the Court of Appeals decision, likely had standing to challenge the Program. As expected, on September 8, 2015, plaintiffs sought leave to file a Fourth Amended Complaint that adds plaintiffs J.J. Little and his law firm, J.J. Little & Associates, P.C. ("Little plaintiffs"), both of which are, and at "all material times" were, VBNS subscribers. Fourth Am. Compl. ¶ 18 [Dkt. # 145–1]. At a September 16, 2015 hearing on this motion, I granted plaintiffs' motion to amend the complaint—which was uncontested—and set a briefing schedule for a renewed motion for preliminary injunction. On September 21, 2015, plaintiffs filed a Renewed Motion for Preliminary Injunction [Dkt. # 149], seeking to enjoin as unconstitutional the Bulk Telephony Metadata Program, which is still in operation until November 29, 2015. On October 6, 2015, the Court of Appeals issued its mandate. I heard oral argument on plaintiffs' renewed motion for preliminary injunction two days later.
After careful consideration of the parties' pleadings, the representations made at the October 8, 2015 motion hearing, and the applicable law, I have concluded that limited discovery is not necessary since several of the plaintiffs now are likely to have standing to challenge the constitutionality of the Bulk Metadata Collection Program, and those that do have standing are entitled to preliminary injunctive relief. Accordingly, the Court will GRANT, in part, plaintiffs' Renewed Motion for Preliminary Injunction as it pertains to plaintiffs J.J. Little and J.J. Little & Associates and ENJOIN the future collection and querying of their telephone record metadata.
A brief overview of the statutory framework and procedural posture, focusing on developments since my last Opinion in this case, may be a helpful place to start.
Beginning in 1998, the Foreign Intelligence Surveillance Act ("FISA") permitted the FBI to merely apply for an ex parte order authorizing specified entities, such as common carriers, to release to the FBI copies of "business records" upon a showing of "specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power." Intelligence Authorization Act for Fiscal Year 1999, Pub. L. 105–272, § 602, 112 Stat. 2396, 2410 (1998)
. Following the September 11, 2001 terrorist attacks, however, Congress expanded this "business records" provision under Section 215 of the USA PATRIOT Act, to authorize the FBI to apply "for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." USA PATRIOT Act of 2001, Pub. L. No. 107–56, § 501, 115 Stat. 272, 287 (2001) (). Thereafter, in March 2006, Congress strengthened the protections in Section 215, amending the statute to provide that the FBI's application must include "a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation ... to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109–177, § 106(b), 120 Stat. 192, 196 (2006) ().
Although the daily bulk collection, storage, and analysis of telephony metadata is not expressly authorized by the terms of Section 215, beginning in May 2006, the Government, advocating a very aggressive reading of Section 215, sought and received FISC authorization to operate the Bulk Telephony Metadata Program, which, of course, consists of these very practices.
See Decl. of Acting Assistant Dir. Robert J. Holley, FBI ¶ 6 [Dkt. # 25–5] ("Holley Decl."); Decl. of Teresa H. Shea, Signals Intelligence Dir., NSA ¶ 13 [Dkt. # 25–4] ("Shea Decl."); see also Decl. of Major General Gregg C. Potter, Signals Intelligence Deputy Dir., NSA 2 [Dkt. # 150–4] ("Potter Decl."). The FISC has repeatedly endorsed this view ever since. Shea Decl. ¶¶ 13–14.3 As such, for more than seven years, the Government has obtained ex parte orders from the FISC directing telecommunications service providers to produce, on a daily basis, the telephony metadata for each of their subscriber's calls—this includes the dialing and receiving numbers and the date, time, and duration of the calls. It does not, however, include the substantive content of the call. Shea Decl. ¶¶ 7, 13–15, 18; see Primary Order, In re Application of the [ FBI] for an Order Requiring the Prod. of Tangible Things From [Redacted], No. BR 13–158 at 3 n. 1 (FISC Oct. 11, 2013) (attached as Ex. B to Gilligan Decl.) [Dkt. # 25–3] ("Oct. 11, 2013 Primary Order"). Once this data is collected from various telecommunications companies, it is consolidated and retained in a single Government database for five years. See Shea ¶¶ Decl. 23, 30; see Oct. 11, 2013 Primary Order at 14 ¶ E. In this database, the NSA conducts computerized searches that are designed to discern whether certain terrorist organizations are communicating with persons located in the United States. Holley Decl. 5; Shea Decl. ¶¶ 8–10, 44–63; see Am. Mem. Op., In re Application of the [FBI] for an Order Requiring the Prod. of Tangible Things from [REDACTED], No. BR 13–109 at 18–22, 2013 WL 5741573 (FISC Aug. 29, 2013)
[Dkt. # 25–2]. Despite the Program's broad reach, since a series of leaks exposed the existence of this Program in 2013, the Government has maintained that it "has never captured information on all (or virtually all) calls made and/or received in the U.S." Gov't's Opp'n 5.
Shortly after my December 2013 O...
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