KLAYMAN v. OBAMA et al

Filing 117

Memorandum in opposition to re 108 MOTION for Partial Summary Judgment (Government Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment) filed by KEITH B. ALEXANDER, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit (Shea Declaration), # 2 Exhibit (March 20, 2014, FISC Order), # 3 Exhibit (Response to Plaintiffs' Statement of Material Facts), # 4 Text of Proposed Order)(Gilligan, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
)
LARRY KLAYMAN, et al.,
)
)
Plaintiffs,
)
)
v.
)
Civil Action No.
)
1:13-cv-0851-RJL
BARACK OBAMA, President of the
)
United States, et al.,
)
)
Defendants.
)
_______________________________________)
THE GOVERNMENT DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Dated: May 9, 2014

STUART F. DELERY
Assistant Attorney General
JOSEPH H. HUNT
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Branch Director
JAMES J. GILLIGAN
Special Litigation Counsel
MARCIA BERMAN
Senior Trial Counsel
BRYAN DEARINGER
Trial Attorney
RODNEY PATTON
Trial Attorney
JULIA BERMAN
Trial Attorney
U.S Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W., Room 6102
Washington, D.C. 20001
Phone: [phone]
Fax: [phone]
Counsel for the Government Defendants

TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 5
Statement of Facts ............................................................................................................... 5
Proceedings to Date ............................................................................................................ 7
ARGUMENT ................................................................................................................................ 10
I.

PLAINTIFFS’ REQUEST TO CONSOLIDATE THE
DETERMINATION OF THEIR FOURTH AMENDMENT CLAIM
WITH THE COURT’S DECISION ON THEIR MOTION FOR A
PRELIMINARY INJUNCTION SHOULD BE DENIED AS
PREJUDICIAL TO DEFENDANTS AND CONTRARY TO THE
INTERESTS OF JUDICIAL ECONOMY THAT RULE 65(a)(2) IS
MEANT TO PROMOTE. ..................................................................................... 10

II.

IF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IS
CONSIDERED AT THIS TIME, IT SHOULD BE DENIED. ............................ 14
A.

Plaintiffs Have Not Established Their Standing To Sue. .......................... 14
1. The requirements of Article III standing ............................................ 14
2. Plaintiffs have not presented evidence of specific facts from
which it can be concluded that records of their calls have been
collected or reviewed. ........................................................................ 15
3. The Court’s earlier ruling on standing should not be followed
here. ........................................................................................................... 18

B.

THE SECTION 215 TELEPHONY METADATA PROGRAM
DOES NOT VIOLATE PLAINTIFFS’ FOURTH AMENDMENT
RIGHTS. ................................................................................................... 23
1. Plaintiffs have no protected privacy interest in telephony
metadata. ................................................................................................... 24
2.

Smith is not distinguishable from this case. ...................................... 27

3. The telephony metadata program is reasonable. ................................ 33
CONCLUSION ............................................................................................................................. 36

TABLE OF AUTHORTIES
CASES
ACLU v. Clapper,
959 F. Supp. 2d 724 (S.D.N.Y. 2013)................................................................................ passim
Agostini v. Felton,
521 U.S. 203 (1997) .................................................................................................................. 32
Air Line Pilots Ass'n Int'l v. Alaska Airlines, Inc.,
898 F.2d 1393 (9th Cir. 1990) .................................................................................................. 11
Anderson v. Davila,
125 F.3d 148 (3d Cir. 1997)...................................................................................................... 11
AttorneyFirst, LLC v. Ascension Entertainment, Inc.,
144 Fed. Appx. 283 (4th Cir. June 8, 2005) ............................................................................. 11
Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls,
536 U.S. 822 (2002) .................................................................................................................. 34
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971) .................................................................................................................... 8
Bond v. United States,
529 U.S. 334 (2000) .................................................................................................................. 27
CFTC v. Bd. of Trade of Chicago,
657 F.2d 124 (7th Cir. 1981) .................................................................................................... 11
Clapper v. Amnesty Int'l USA,
133 S. Ct. 1138 (2013) ....................................................................................................... passim
DaimlerChrysler Corp. v. Cuno,
547 U.S. 332 (2006) ............................................................................................................ 14, 16
Devlin v. Scardelletti,
536 U.S. 1 (2002) ...................................................................................................................... 15
Haig v. Agee,
453 U.S. 280 (1981) .................................................................................................................. 35
Horton v. California,
496 U.S. 128 (1990) .................................................................................................................. 22

ii

In re Directives,
551 F.3d 1004 (FISC-R 2008) .................................................................................................. 35
In re Grand Jury Proceedings,
827 F.2d 301 (8th Cir. 1987) .................................................................................................... 30
In re Sealed Case,
310 F.3d 717 (FISC-R 2002) .................................................................................................... 34
Johnson v. Quander,
440 F.3d 489 (D.C. Cir. 2006) .................................................................................................. 21
Katz v. United States,
389 U.S. 347 (1967) .................................................................................................................. 25
Klayman v. Obama,
957 F. Supp. 2d 1 (D.D.C. 2013) ....................................................................................... passim
Laird v. Tatum,
408 U.S. 1 (1972) ...................................................................................................................... 18
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ....................................................................................................... 14 15, 22
Mann v. Castiel,
681 F.3d 368 (D.C. Cir. 2012) .................................................................................................. 12
Maryland v. King,
133 S. Ct. 1958 (2013) .............................................................................................................. 34
Morris v. Dist. of Columbia,
2014 WL 1648293 (D.D.C. Apr. 25, 2014) .............................................................................. 11
Mova Pharm. Corp. v. Shalala,
955 F. Supp. 128 (D.D.C. 1997) ............................................................................................... 11
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,
526 U.S. 344 (1999) .................................................................................................................. 12
NTEU v. Von Raab,
489 U.S. 656 (1989) ............................................................................................................ 34, 35
Quon v. Arch Wireless Operating Co., Inc.,
529 F.3d 892 (9th Cir. 2008), ................................................................................................... 26

iii

Raines v. Byrd,
521 U.S. 811 (1997) .................................................................................................................. 14
Rakas v. Illinois,
439 U.S. 128 (1978) .................................................................................................................. 30
Reporters Comm. for Freedom of the Press v. AT&T,
593 F.2d 1030 (D.C. Cir. 1978) ................................................................................................ 26
SEC v. Jerry T. O'Brien, Inc.,
467 U.S. 735 (1984) .................................................................................................................. 27
Smith v. Maryland,
442 U.S. 735 (1979) ........................................................................................................... passim
Steagald v. United States,
451 U.S. 204 (1981) .................................................................................................................. 30
Steel Co. v. Citizens for a Better Env't,
523 U.S. 83 (1998) .................................................................................................................... 15
Tea Party Leadership Fund v. Fed. Election Comm'n,
No. 12-1707, 2012 WL 5382844 (D.D.C. Nov. 2, 2012) ......................................................... 10
Teva Pharm. USA, Inc. v. FDA,
398 F. Supp. 2d 176 (D.D.C. 2005) .......................................................................................... 10
Texas v. Brown,
460 U.S. 730 (1983) .................................................................................................................. 23
U.S. Telecom Ass'n v. FCC,
227 F.3d 450 (D.C. Cir 2000) ................................................................................................... 26
United Presbyterian Church in the USA v. Reagan,
738 F.2d 1375 (D.C. Cir. 1984) ................................................................................................ 18
United States ex rel. Shea v. Verizon Bus. Network Servs., Inc.,
904 F. Supp. 2d 28 (D.D.C. 2012) ............................................................................................ 16
United States v. Banks,
3 F.3d 399 (11th Cir. 1993) ...................................................................................................... 23
United States v. Baxter,
492 F.2d 150 (9th Cir. 1973) .................................................................................................... 26

iv

United States v. Clutter,
674 F.3d 980 (8th Cir. 2012) .................................................................................................... 23
United States v. Dionisio,
410 U.S. 1 (1973) ...................................................................................................................... 30
United States v. Doe,
537 F. Supp. 838 (E.D.N.Y. 1982) ........................................................................................... 26
United States v. Fithian,
452 F.2d 505 (9th Cir. 1971) .................................................................................................... 26
United States v. Forrester,
512 F.3d 500 (9th Cir. 2008) .................................................................................................... 26
United States v. Jacobsen,
466 U.S. 109 (1984) ............................................................................................................ 22, 33
United States v. Jones,
132 S. Ct. 945 (2012) ......................................................................................................... passim
United States v. Licata,
761 F.2d 537 (9th Cir. 1985) .................................................................................................... 23
United States v. Miller,
425 U.S. 435 (1976) ........................................................................................................... passim
United States v. Moalin,
2013 WL 6079518 (S.D. Cal. Nov. 18, 2013) .......................................................................... 24
United States v. Place,
462 U.S. 696 (1983) ............................................................................................................ 22, 33
United States v. Reed,
575 F.3d 900 (9th Cir. 2009) .................................................................................................... 26
United States v. Rigmaiden,
2013 WL 1932800 (D. Ariz. May 8, 2013) .............................................................................. 30
United States v. U.S. Dist. Court,
407 U.S. 297 (1972) .................................................................................................................. 34
United States v. VanLeeuwen,
397 U.S. 249 (1970) .................................................................................................................. 22

v

University of Texas v. Camenisch,
451 U.S. 390 (1981) .................................................................................................................. 11
Valley Forge Christian Coll. v. Americans United for Separation of Church & State,
454 U.S. 464 (1982) .................................................................................................................. 14
Vernonia Sch. Dist. 47J v. Acton,
515 U.S. 646 (1995) .................................................................................................................. 34
W. Va. Cmty. Health Ctrs. v. Heckler,
734 F.2d 1570 (D.C. Cir. 1984) ................................................................................................ 10
Whitmore v. Arkansas,
495 U.S. 149 (1990) .................................................................................................................. 16
STATUTES
50 U.S.C. § 1861 ............................................................................................................................. 1
FEDERAL RULES OF CIVIL PROCEDURE
Fed. R. Civ. P. 56(a) ..................................................................................................................... 14
Fed. R. Civ. P. 25(d) ....................................................................................................................... 1
Fed. R. Civ. P. 65(a)(2) ....................................................................................................... 2, 10, 13
Fed. R. Civ. P. 26 ............................................................................................................................ 8

vi

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
LARRY KLAYMAN, et al.,
)
)
Plaintiffs,
)
Civil Action No.
)
1:13-cv-00851-RJL
v.
)
)
BARACK OBAMA, President of the
)
United States, et al.,
)
)
Defendants. )
____________________________________)
THE GOVERNMENT DEFENDANTS’ 1 OPPOSITION TO
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
INTRODUCTION
This Court is already thoroughly familiar with this case and its current procedural
posture, and appreciates both the importance of the constitutional questions presented and the
national security interests at stake. See Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013).
Plaintiffs challenge the constitutionality of the Government’s acquisition and analysis of bulk
telephony metadata pursuant to Section 215 of the USA-PATRIOT Act, an intelligence program
carried out under authority of the Foreign Intelligence Surveillance Court (“FISC”) for the
purpose of discovering communications with and among unknown terrorist operatives, and
preventing terrorist attacks. In granting Plaintiffs’ motion for a preliminary injunction, the Court
concluded that Plaintiffs have a substantial likelihood of prevailing on their claim that the
program violates the Fourth Amendment. Yet at the same time, the Court stayed its injunction
1

The Government Defendants are defendants Barack Obama, President of the United
States, Eric Holder, Attorney General of the United States, and Admiral Michael S. Rogers,
Director of the National Security Agency (NSA), insofar as they are sued in their official
capacities, together with defendants NSA, and the United States Department of Justice (DOJ).
Pursuant to Federal Rule of Civil Procedure 25(d), Admiral Rogers is automatically substituted
as an official-capacity defendant to this action, but not in his individual capacity, in place of
former NSA Director General Keith Alexander.

pending the D.C. Circuit’s ruling on the Government’s appeal, remarking on the “novelty” of the
constitutional questions involved and the national security interests at stake. It is difficult to
conceive of a case in which making a rush to judgment would be more ill-advised. Yet that is
precisely what Plaintiffs now ask of this Court, by moving to advance the Court’s ruling on the
merits of their Fourth Amendment claim, and consolidate it with the Court’s decision on their
motion for preliminary injunctive relief. That request should be denied.
In order to promote the interests of judicial economy, Federal Rule of Civil Procedure
65(a)(2) permits a court in appropriate cases to advance the determination of a case on the merits
and consolidate it with the hearing on a plaintiff’s motion for a preliminary injunction. The
Supreme Court has instructed, however, that it is generally inappropriate for a court at the
preliminary injunction stage to render a final judgment on the merits, unless the parties are given
adequate notice and each party has the opportunity to fully present its case. Consolidation in this
case, however—where the Government had less than two weeks to prepare its opposition to
Plaintiffs’ motion, where Plaintiffs provided no notice of their intention to seek summary
judgment while the Fourth Amendment issue remains on appeal, and where the scope of the
issues to be decided in this Court will not be known with certainty until the D.C. Circuit rules on
the Government’s appeal—would deprive the Government Defendants of an opportunity to fully
present their case in support of the legality of the telephony metadata program.
It also cannot be overlooked that Plaintiffs have asserted Bivens claims against three
current and former Government officials seeking damages from them in their personal capacities
for alleged violations of Plaintiffs’ constitutional rights. Because Plaintiffs have yet to serve
these defendants in their personal capacities, summary judgment cannot be entered against them.
Nevertheless, even if judgment were entered only against the Government Defendants, the

2

individual-capacity defendants would be prejudiced if the Court arrived at a judgment on the
merits of Plaintiffs’ Fourth Amendment claim before the individual defendants can be heard.
Moreover, it would not promote, but disserve the interests of judicial economy to reach the
merits of Plaintiffs’ claim while the Fourth Amendment issue remains on appeal, as explained in
the Government Defendants’ motion for a stay. Indeed, entering judgment on that claim now,
only to be followed (as Plaintiffs propose) by discovery on Plaintiffs’ remaining First and Fifth
Amendment claims, and a trial on damages, presumably against the still unserved individual
defendants, would be a blueprint for procedural chaos, not efficiency.
Even if the Court were to entertain Plaintiffs’ motion for summary judgment at this time,
it still should be denied. For the reasons discussed herein, the Court lacks jurisdiction to
consider Plaintiffs’ Fourth Amendment claim, and the claim fails to state grounds on which relief
can be granted. First, Plaintiffs have not carried their burden of proving specific facts
demonstrating their standing. The fact that they are subscribers of telecommunications services
provided by Verizon Wireless is not sufficient. Although the Government has acknowledged
that the Section 215 telephony metadata program is broad in scope and involves the aggregation
of metadata collected from multiple telecommunications companies, the program has never
collected information on all (or virtually all) telephone calls made and/or received in the United
States, as the Court previously surmised. The Government has only confirmed the participation,
for the duration of one, now-expired FISC order, of Verizon Business Network Services, Inc., a
separate business entity from Verizon Wireless. Otherwise, the identities of any carriers
participating in the program at any time remains properly classified.
Beyond the issue of collection, Plaintiffs have not proven that they have suffered any
injury from the querying of metadata collected under the telephony metadata program. They

3

express concerns that metadata collected under the program could be “used against” them in
some undefined manner, but they have presented no evidence that NSA personnel have
reviewed, much less misused, metadata pertaining to their calls. Indeed, because of the strict
legal constraints on the NSA’s access to and use of the metadata, only a tiny fraction of the
metadata is ever seen by any person. Thus it is sheer speculation to suggest that records of calls
to or from Plaintiffs have been or ever will be retrieved or reviewed, much less that the
Government could use such information against them.
Second, Plaintiffs’ claim fails on the merits. Plaintiffs’ Fourth Amendment claim is
foreclosed by Smith v. Maryland, 442 U.S. 735 (1979), which held that there is no reasonable
expectation of privacy for purposes of the Fourth Amendment in the numbers dialed to connect a
telephone call. Thus, the Government does not conduct a Fourth Amendment “search” when it
collects telephony metadata, nor does it “seize” Plaintiffs’ property when telecommunications
companies provide their own business records to the Government under orders of the FISC. The
reasoning of Smith—that telephone subscribers voluntarily convey dialing information to the
telephone company and therefore assume the risk that the telephone company will reveal that
information to the Government—is fully applicable here, as all courts to consider the question,
save this one, have concluded. As the FISC recently held, neither the greater volume of
metadata at issue here nor changes in technology since 1979 provide a basis on which to
disregard the controlling authority of Smith.
Even if Plaintiffs had a reasonable expectation of privacy in business records held by a
third party, Plaintiffs have not alleged an invasion of that privacy interest, and in any event the
telephony metadata program is reasonable, and therefore lawful, under Fourth Amendment
“special needs” analysis. That analysis requires a balancing between the minimal privacy

4

interests involved in the collection of non-content telephony metadata, and the Government’s
important interest in identifying and tracking terrorist operatives. That balance tilts in favor of
the constitutionality of the telephony metadata program.
For these reasons, discussed more fully below, Plaintiffs’ request for entry of summary
judgment on their Fourth Amendment claim should be denied, and a decision on the merits of
Plaintiffs’ Fourth Amendment claim should await both the Court of Appeals’ ruling on the
Government’s appeal from this Court’s preliminary injunction, and an opportunity for all parties
to prepare and present their cases on the extraordinary issues of constitutional law, and national
security, presented by this case.
BACKGROUND
Statement of Facts
The Government Defendants incorporate herein by reference the Statement of Facts
contained in the Government Defendants’ Opposition to Plaintiffs’ Motions for Preliminary
Injunctions (“Gov’t Defs.’ PI Opp.”) (ECF No. 25) so far as it pertains to the NSA’s acquisition
of bulk telephony metadata under Section 215. See id. at 5-7, 8-13. The Government
Defendants supplement that discussion, however, as follows.
The substantial protections and prohibitions built into the Section 215 telephony metadata
program “to safeguard U.S. person information,” In re Application of the FBI for an Order
Requiring the Production of Tangible Things from [Redacted], Dkt. No. BR 13-109, Am. Mem.
Op. at 9 (F.I.S.C. Aug. 29, 2013) (publicly released, unclassified version) (“Aug. 29, 2013 FISC
Op.”) (Gov’t Defs.’ PI Opp., Exh. A); Gov’t Defs.’ PI Opp. at 10–13, have been further
enhanced by two recent modifications to the program announced by the President in January
2014 and adopted in subsequent FISC orders. Prior to these modifications, FISC orders

5

authorizing the program provided that one of 22 designated NSA officials had to make a
determination of reasonable, articulable suspicion that a proposed selector was associated with
an identified foreign terrorist organization before it could be used to conduct queries of the
database. The FISC orders also permitted query results to include identifiers and associated
metadata up to three steps (or hops) away from the suspected-terrorist selector. See Gov’t Defs.’
PI Opp. at 11–12; id. Exh. E (In re Application of the FBI for an Order Requiring the Production
of Tangible Things [etc.], Dkt. No. BR 13-80, Primary Order (F.I.S.C. Apr. 25, 2013)) (“Primary
Order”) at 7; id. Exh. C (Declaration of Teresa H. Shea) (“Shea Decl.”) ¶ 22.
In January the President announced that he was directing the Government to take
immediate steps to implement two changes to the program. Remarks by the President on Review
of Signals Intelligence, http://www.whitehouse.gov/the-press-office/2014/01/17/ remarkspresident-review-signals-intelligence. The first requires advance findings by the FISC of
reasonable, articulable suspicion that selectors used to query the metadata are associated with
foreign terrorist organizations (except in emergency situations, in which case the Government
must seek retrospective FISC approval of the selector). The second limits query results to
metadata within two “hops” (rather than three) of suspected terrorist selectors. In February, the
FISC granted the Government’s motion to implement these two changes. See Decl. of Teresa H.
Shea, Signals Intelligence Director, NSA (“Klayman Shea Decl.”) (Exhibit A, hereto) ¶¶ 3–5 &
Exh. A (In re Application of the FBI for an Order Requiring the Prod. of Tangible Things [etc.],
Dkt. No. BR 14-01, Order Granting the Gov’t’s Mot. To Amend the Court’s Primary Order dated
January 3, 2014 (F.I.S.C. Feb. 15, 2014)) at 3–9. 2

2

On March 27, 2014, the President further announced, after considering options
presented to him by the Intelligence Community and the Attorney General, that he will seek
legislation to replace the Section 215 bulk telephony-metadata program. Statement by the
6

Although the Government has acknowledged that the Section 215 program is broad in
scope and involves the collection and aggregation of a large volume of data from multiple
telecommunications service providers, see Gov’t Defs.’ PI Opp. at 11–12, the program has never
captured information on all (or virtually all) calls made and/or received in the United States.
Public speculation to that effect is untrue. Klayman Shea Decl. ¶ 8. The FISC has also
explained that the Government does not acquire call detail records relating to all telephone calls
to, from, or within the United States. Aug. 29, 2013 FISC Op. at 4 n.5 (“production of all call
detail records of all persons in the United States has never occurred under this program”).
Proceedings to Date
Plaintiffs brought this action on June 6, 2013, immediately following the unauthorized
public disclosure of then classified information regarding the NSA’s Section 215 telephony
metadata program by The Guardian. Compl. (ECF No. 1); see Class Action Am. Compl. (ECF
No. 4), and claim that the program violates their rights under the First, Fourth, and Fifth
Amendments. Third Am. Compl. (ECF No. 77), ¶¶38–58. Plaintiffs name as defendants the
NSA and DOJ, id. ¶¶ 15, 17, together with Government officials sued in their official and/or

President on the Section 215 Bulk Metadata Program, http://www.whitehouse.gov/the-pressoffice/2014/03/27/statement-president-section-215-bulk-metadata-program. The President stated
that his goal was to “establish a mechanism to preserve the capabilities we need without the
government holding this bulk metadata” to “give the public greater confidence that their privacy
is appropriately protected,” while maintaining the intelligence tools needed “to keep us safe.”
Instead of the Government obtaining business records of telephony metadata in bulk, the
President proposed that telephony metadata should remain in the hands of telecommunications
companies. The President stated that “[l]egislation will be needed to permit the government to
obtain this information with the speed and in the manner that will be required to make this
approach workable.” Under such legislation, the Government would be authorized to obtain
telephony metadata from the companies pursuant to individualized orders from the FISC. The
President explained that, in the meantime, the Government would seek from the FISC a 90-day
reauthorization of the existing Section 215 program, with the two modifications already
approved by the FISC in February, and the court has since entered an order reauthorizing the
program as modified. See generally id; Klayman Shea Decl. ¶¶6–7.
7

individual capacities (defendants Obama, Holder, Alexander, and the Hon. Roger Vinson, United
States District Judge, formerly of the FISC), id. ¶¶ 13–14, 16, 18. Plaintiffs seek various forms
of injunctive and other equitable relief, in addition to $3 billion in damages against the
individually named defendants under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). Id. ¶¶ 43, 49–50, 58–60. To the best of the Government
Defendants’ knowledge, and so far as the record reflects, the individual defendants have not yet
been served with process in their personal capacities. See Mem. of Individual Fed. Defs. in
Opp’n to Pls.’ “Mot. for Entry of Default” (ECF No. 88) (Mem. of Individual Defs. in Opp’n to
Mot. for Default”) at 3, 7, 10.
Plaintiffs moved for preliminary injunctive relief in this case (and in Klayman v. Obama,
No. 13-cv-881 (RJL)) on October 29, 2013. See Pls.’ Mot. for Prelim. Inj. (ECF No. 13). The
following day, the Government Defendants sought an extension of the deadline to submit their
opposition to Plaintiffs’ motion until December 2, 2013, to coincide with the deadline to file
their then-anticipated motion to dismiss Plaintiffs’ Class Action Amended Complaint. Gov’t
Defs.’ Mot. To Extend the Time To Respond to Pls.’ Mots. for Prelim. Injs. (ECF No. 16). At
the status conference held on October 31, 2013, the Court denied the Government’s request and
directed the Government Defendants to file their opposition on November 11, 2013. Minute
Entry dated October 31, 2013. The Court heard argument on November 18, 2013, see Minute
Entry dated November 18, 2013, following which the parties, on November 26, 2013, submitted
supplemental briefs on the issues of standing and the Court’s jurisdiction to consider Plaintiffs’
(now withdrawn) statutory claims. See ECF Nos. 43, 44.
On December 16, 2013, the Court granted Plaintiffs’ motion for a preliminary injunction
prohibiting NSA’s collection or retention of metadata associated with their communications as

8

part of the Section 215 bulk telephony metadata program. Mem. Op. and Order (ECF Nos. 48,
49); Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013). The Court determined that plaintiffs
Larry Klayman and Charles Strange have standing to challenge the legality of the program, and
concluded that they had shown a likelihood of success on the merits of their Fourth Amendment
claim. Klayman, 957 F. Supp. 2d at 25-42. The Court did not reach the merits of Plaintiffs’
other constitutional claims. See id. at 9 n.7. Citing “the significant national security interests at
stake,” and what it described as “the novelty of the constitutional issues,” the Court sua sponte
stayed its injunction pending appeal. Id. at 43-44.
On January 3, 2014, the Government filed a notice of appeal from the Court’s
preliminary injunction. ECF No. 64. The deadline for dispositive motions (extended once on the
Government’s motion) expired on April 11, 2014. See Klayman v. Obama, No. 14-5005 (D.C.
Cir.), Per Curiam Order (Mar. 5, 2014) (Dkt. No. 1482432). Thereupon the Government filed a
motion seeking entry of a briefing schedule. Id. (Dkt. No. 1488123).
Since the Court issued its preliminary injunction ruling, Plaintiffs have repeatedly
expressed a desire to conduct discovery in support of their claims while the Court’s ruling
remains on appeal, and thereafter to proceed to trial, before seeking a decision of the case on the
merits. See Pls.’ Mot. for Status Conference (ECF No. 63); Pls.’ Opp. to Mot. for Stay of
Proceedings Against the Gov’t Defs. Pending Appeal of Prelim. Inj. [etc.] (ECF No. 70) at 3, 4,
6; Pls.’ Opp. to Gov’t Defs.’ Partial Mot. To Dismiss (ECF No. 74) at 3, 11; Pls.’ Am. Mot To
Compel Defs.’ Compliance with FRCP Rule 26 (ECF No. 104). At no point (until now) have
Plaintiffs indicated an intention to seek summary judgment on their Fourth Amendment claim
while the Court’s preliminary injunction ruling remains on appeal. Nonetheless, on April 15,
2014, Plaintiffs filed their motion for partial summary judgment on their Fourth Amendment

9

claim (ECF No. 108), seeking entry of a permanent injunction under Federal Rule of Civil
Procedure 65(a)(2), to be followed by “discovery and trial on the damage claims,” including
Plaintiffs’ “other constitutional claims under the First and Fifth Amendments.” Mem. in Supp.
of Pls.’ Mot. for Partial Summ. Judg. (ECF No. 108) (“Pls.’ SJ Mem.”) at 1, 12.
ARGUMENT
Plaintiffs’ request to advance the Court’s ruling on the merits of their Fourth Amendment
claim and to consolidate it with the Court’s ruling on their motion for a preliminary injunction
should be denied as premature, prejudicial to the Government Defendants, prejudicial to the
individual defendants, and contrary to the orderly and efficient administration of justice.
Alternatively, Plaintiffs’ motion should be denied (1) for lack of subject matter
jurisdiction, as Plaintiffs have not established their standing to sue, or (2) on its merits, for even
if Plaintiffs had established their standing, they have not demonstrated a violation of their Fourth
Amendment rights entitling them to judgment as a matter of law.
I.

PLAINTIFFS’ REQUEST TO CONSOLIDATE THE DETERMINATION OF
THEIR FOURTH AMENDMENT CLAIM WITH THE COURT’S DECISION ON
THEIR MOTION FOR A PRELIMINARY INJUNCTION SHOULD BE DENIED
AS PREJUDICIAL TO DEFENDANTS AND CONTRARY TO THE INTERESTS
OF JUDICIAL ECONOMY THAT RULE 65(A)(2) IS MEANT TO PROMOTE.
Rule 65(a)(2) provides, in pertinent part, that “[b]efore or after beginning the hearing on a

motion for a preliminary injunction, the court may advance the trial on the merits and consolidate
it with the hearing.” “This procedural device is designed to conserve judicial resources and
avoid duplicative proceedings.” Tea Party Leadership Fund v. FEC, 2012 WL 5382844, *1
(D.D.C. Nov. 2, 2012) (citation omitted); Teva Pharm. USA, Inc. v. FDA, 398 F. Supp. 2d 176,
181 n.1 (D.D.C. 2005) (same), vacated on other grounds, 441 F.3d 1 (D.C. Cir. 2006).

10

The Supreme Court has instructed, however, that because “a preliminary injunction is
customarily granted on the basis of procedures that are less formal and evidence that is less
complete than in a trial on the merits,” and “[a] party thus is not required to prove [its] case in
full at a preliminary-injunction hearing,” “it is generally inappropriate for a federal court at the
preliminary-injunction stage to give a final judgment on the merits.” Univ. of Texas v.
Camenisch, 451 U.S. 390, 395 (1981); see W. Va. Ass’n of Cmty Health Ctrs. v. Heckler, 734
F.2d 1570, 1578 (D.C. Cir. 1984). See also AttorneyFirst, LLC v. Ascension Entm’t, Inc., 144
Fed. Appx. 283, 287-88 (4th Cir. June 8, 2005). Thus, before a ruling on the merits of a party’s
claim may be consolidated with the hearing on a plaintiff’s application for a preliminary
injunction, “the parties should normally receive clear and unambiguous notice [of the court’s
intent] either before the hearing commences or at a time which will still afford the parties a full
opportunity to present their respective cases.” Camenisch, 451 U.S. at 395; AttorneyFirst, 144
Fed. Appx. at 287; Anderson v. Davila, 125 F.3d 148, 157-58 (3d Cir. 1997); Morris v. Dist. of
Columbia, 2014 WL 1648293, *2 n.1 (D.D.C. Apr. 25, 2014). A final judgment entered at the
preliminary injunction stage must be vacated if a party was deprived of that chance. Mova
Pharm. Corp. v. Shalala, 955 F. Supp. 128, 129 n.1 (D.D.C. 1997). See CFTC v. Bd. of Trade of
Chi., 657 F.2d 124, 127 (7th Cir. 1981) (citing cases); see also Anderson, 125 F.2d at 158-59; Air
Line Pilots Ass’n Int’l v. Alaska Airlines, Inc., 898 F.2d 1393, 1397 (9th Cir. 1990).
Plaintiffs’ request for consolidation should be denied because consolidation in the current
posture of this case would deprive the Government Defendants of the opportunity to fully present
their case on a question of substantial constitutional importance with potential ramifications for
national security. Under the schedule ordered by the Court, the Government had less than two
weeks to prepare its opposition to Plaintiffs’ preliminary injunction motion, see supra at 8, and

11

was given no notice at the time that the record on which Plaintiffs’ motion was to be decided
would also become the basis for rendering a final judgment. Moreover, since the Court ruled on
Plaintiffs’ motion in December 2013, Plaintiffs have given no indication that they would be
seeking summary judgment while the Court’s preliminary injunction remains on appeal. See
supra, at 9. Thus, the Government Defendants have been given no reason to expect that at this
time they would have to present their full case on the merits (or defend the constitutionality of
the Section 215 program on the basis of an abbreviated record), and do so without critical
guidance from the Court of Appeals regarding the issues, if any, that remain to be addressed.
The Government Defendants are not the only parties that could be prejudiced by a final
judgment rendered on Plaintiffs’ Fourth Amendment claim at this time. Plaintiffs have brought
identical Bivens claims against three current and former Government officials, and a sitting
federal judge, seeking $3 billion in damages against them for allegedly violating Plaintiffs’
constitutional rights. See supra at 7; Third Am. Compl. ¶¶ 38–58. Although this case is nearly a
year old, these individually named defendants still have not been properly served with process in
their individual capacities, see Mem. of Individual Defs. in Opp’n to Mot. for Default at 5-9, and
are under no present obligation to participate or even appear in these proceedings, Murphy Bros.,
Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 353 (1999) (“service of process [is] the
official trigger for responsive action by an individual or entity named defendant”); Mann v.
Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012) (“Service of process … is fundamental to any
procedural imposition on a named defendant.”) (citation and quotation marks omitted), much less
to present their case on the merits. 3 Entering final judgment on Plaintiffs’ Fourth Amendment

3

Indeed, the Court should dismiss the individual-capacity claims under Federal Rule of
Civil Procedure 4(m) due to Plaintiffs’ failure to prosecute those claims. See Mem. of Individual
Defs. in Opp’n to Mot. for Default at 10-11.
12

claim would prejudice these defendants (even if the judgment were limited to the Government
Defendants) because the Court would have arrived at a final determination of the very claim that
is raised against them without providing them an opportunity to be heard.
Not only would consolidation prejudice all the defendants in this case, it would also
disserve the interests of judicial economy that Rule 65(a)(2) is intended to promote. The Court
itself has remarked on what it viewed as the “novel[ ]” constitutional issues presented here.
Klayman, 957 F. Supp. 2d at 43. Rendering judgment on Plaintiffs’ Fourth Amendment claims
without awaiting the Court of Appeals’ guidance on those issues would require expenditures of
time, effort and resources by the Court and the parties that could be avoided depending on the
Court of Appeals’ ruling. See Gov’t Defs.’ Stay Mot. at 6. Moreover, Plaintiffs themselves
envision that, following the Court’s ruling on their Fourth Amendment claim, the case would still
proceed to discovery on their First and Fifth Amendment claims—thus dissipating any
efficiencies that might be gained from an accelerated decision on the Fourth Amendment claim.
Pls’ Mot. at 1, 12. They also anticipate a trial on damages, id., presumably against the as yet
unserved individual-capacity defendants, who would still be entitled to present their case on the
underlying Fourth Amendment claim. Executing Plaintiffs’ plan for “consolidation” would
hopelessly splinter, not streamline, these proceedings.
For these reasons, Plaintiffs’ request for entry of summary judgment on their Fourth
Amendment claim, whether under Rule 65(a)(2) or otherwise, should be denied as premature
until the D.C. Circuit has ruled on the Government Defendants’ appeal from this Court’s
preliminary injunction, and all parties have been given a full opportunity thereafter to prepare
and present their cases.

13

II.

IF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IS CONSIDERED
AT THIS TIME, IT SHOULD BE DENIED.
Even if Plaintiffs’ motion for summary judgment were procedurally proper, it should be

denied nevertheless because Plaintiffs have not established their standing to challenge the
legality of the Section 215 telephony metadata program, nor demonstrated a violation of their
Fourth Amendment rights entitling them to judgment as a matter of law. Fed. R. Civ. P. 56(a).
A.

Plaintiffs Have Not Established Their Standing To Sue.
1.

The requirements of Article III standing

“The judicial power of the United States … is not an unconditioned authority to
determine the [validity] of legislative or executive acts,” but is limited by Article III of the
Constitution “to the resolution of ‘cases’ and ‘controversies.’” Valley Forge Christian Coll. v.
Americans United for Separation of Church & State, 454 U.S. 464, 471 (1982). “No principle is
more fundamental to the judiciary’s proper role in our system of government.” DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 341 (2006). A demonstration by Plaintiffs of their standing to sue
“is an essential and unchanging part of the case-or-controversy requirement.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). While the Supreme Court “ha[s] always
insisted on strict compliance with this jurisdictional standing requirement,” Raines v. Byrd, 521
U.S. 811, 819 (1997), the “standing inquiry has been especially rigorous when reaching the
merits of the dispute would force [a court] to decide whether an action taken by one of the other
two branches of the Federal Government was unconstitutional.” Clapper v. Amnesty Int’l USA,
133 S. Ct. 1138, 1147 (2013) (internal quotation marks and citations omitted). As the Supreme
Court observed in Amnesty International, it has “often found a lack of standing in cases in which
the Judiciary has been requested to review actions of the political branches in the fields of
intelligence gathering and foreign affairs.” Id.

14

To establish Article III standing, Plaintiffs must seek relief from an injury that is
“concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and
redressable by a favorable ruling.” Id. Because standing is “an indispensable part of [a]
plaintiff’s case,” Defenders of Wildlife, 504 U.S. at 561, Plaintiffs, as the parties invoking federal
jurisdiction, bear the burden of establishing these three elements. Devlin v. Scardelletti, 536 U.S.
1, 6–7 (2002). To shoulder that burden at the summary judgment stage, Plaintiffs “can no
longer rest on … mere allegations, but must set forth by affidavit or other evidence specific
facts” demonstrating that metadata pertaining to their communications have been acquired under
the Section 215 program. See Amnesty Int’l, 133 S. Ct. at 1149 (quoting Defenders of Wildlife,
504 U.S. at 561). If Plaintiffs cannot carry their threshold jurisdictional burden of establishing
their standing, “the [C]ourt cannot proceed” and must dismiss the case. Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 104 (1998).
2.

Plaintiffs have not presented evidence of specific facts
from which it can be concluded that records of their
calls have been collected or reviewed.

Plaintiffs’ motion for summary judgment should be denied because they have presented
no evidence of specific facts demonstrating that they have been injured because of the telephony
metadata program. Plaintiffs Klayman and Charles Strange attest (in affidavits submitted in
support of their preliminary injunction motion) that they have for many years been subscribers of
cellular telephone service provided by Verizon Wireless. Aff. of Larry Klayman (“Klayman
Aff.”) (ECF No. 13-2) ¶ 3; Aff. of Charles Strange (“Strange Aff.”) (ECF No. 13-3) ¶¶ 2-3.
They state that the alleged collection of information about (and contained in) their
communications “impact[s]” their ability to communicate by telephone due to their “concern”

15

that these communications will be “overheard” or “obtained” by the NSA and “used against”
them in some manner. Klayman Aff. ¶ 10; Strange Aff. ¶ 11.
It cannot be assumed, solely on the basis that Plaintiffs are Verizon Wireless subscribers,
that metadata about their calls have been produced to the NSA as part of the Section 215
program. Except for a single, now-expired Secondary Order issued in April 2013 to Verizon
Business Network Services, Inc.—a separate business entity from Verizon Wireless, see, e.g.,
United States ex rel. Shea v. Verizon Bus. Network Servs., Inc., 904 F. Supp. 2d 28, 30 (D.D.C.
2012)—the Government has not declassified or otherwise acknowledged the identities of the
carriers participating in the program, either now, or at any time in the past. Klayman Shea Decl.
¶ 8. The consequences of that gap in the record must befall Plaintiffs, as it is their “burden to
prove their standing by pointing to specific facts, not the Government’s burden to disprove
standing by revealing details” of its intelligence programs. Amnesty Int’l, 133 S. Ct. at 1149 n.4.
Even presuming that records of Plaintiffs’ calls have been collected under this program,
Plaintiffs’ allegations of injury are speculative and conjectural, not actual or imminent, as
Article III requires. Amnesty Int’l, 133 S. Ct. at 1147; see also DaimlerChrysler, 547 U.S. at
345; Whitmore v. Arkansas, 495 U.S. 149, 158 (1990). They express concern that information
about their telephone calls allegedly collected by the NSA may be “used against” them in some
unspecified manner, Klayman Aff. ¶ 10; Strange Aff. ¶ 11, but these unsubstantiated fears cannot
support their standing in face of the established facts. Under current FISC orders, NSA
personnel may only review records responsive to queries initiated using selectors that the FISC
has approved based on reasonable, articulable suspicion that they are associated with specific
foreign terrorist organizations. See supra at 6; Primary Order at 6–7; Klayman Shea Decl.
¶¶ 3-5. As a result, only a “tiny fraction” of the records is ever seen by any person. Shea Decl.

16

¶ 23. Plaintiffs have presented no evidence that the NSA has accessed or reviewed records of
Plaintiffs’ calls as a result of queries made under the “reasonable, articulable suspicion” standard
(or otherwise). Thus, it is sheer speculation to suggest that records of calls to or from Plaintiffs
either have been or ever will be retrieved or reviewed through queries of the database, much less
“used against” them by the Government in some unexplained fashion.
The Supreme Court’s decision in Amnesty International addressed a similar standing
question and establishes that Plaintiffs’ speculation concerning the scope and operation of the
Section 215 program is insufficient to demonstrate their standing. In Amnesty International,
various humans rights, labor, and media organizations challenged the constitutionality of the
FISA Amendments Act of 2008, which expanded the Government’s authority to intercept the
communications of non-U.S. persons located abroad. 133 S. Ct. at 1144. The organizations
alleged that they interacted and engaged in sensitive communications with persons who were
likely to be considered by the Government as potential terrorists, or persons of interest in
terrorism investigations. See id. at 1145–46. They further alleged that they would suffer harms
as a result of the Government surveillance program, including a compromised ability to “locate
witnesses, cultivate sources, obtain information, and communicate confidential information,” and
a need to undertake various costly measures to avoid possible surveillance. Id.
The Supreme Court, however, held that none of these alleged harms was sufficient to
confer standing, because it was “speculative whether the Government will imminently target
communications to which respondents are parties.” Id. at 1148. Rather, the Court held that the
plaintiffs’ claimed injury rested on a “speculative chain of possibilities,” including “that the
Government [would] target the communications of non-U.S. persons with whom they
communicate,” that it would succeed in intercepting them, and that the plaintiffs would be parties

17

to the particular communications the Government intercepts. Id. at 1148–50. So, too, here. The
idea that the course of unspecified Government counter-terrorism investigations would lead to
particular telephone numbers; that the FISC would approve use of these numbers to conduct
queries of the database, based on reasonable, articulable suspicion that they are associated with
foreign terrorist organizations; and that these queries would return records of Plaintiffs’ calls that
NSA analysts would in turn review (or misuse), is just as speculative as the allegations of harm
that were rejected as insufficient in Amnesty International. 4
3.

The Court’s earlier ruling on standing should
not be followed here.

Defendants recognize that in granting Plaintiffs’ motion for a preliminary injunction this
Court concluded that plaintiffs Klayman and Charles Strange have standing to challenge the
alleged collection and “analysis” of metadata about their telephone calls under the Section 215
program. Klayman, 957 F. Supp. 2d at 26–29. For the reasons that follow, Defendants
respectfully submit that this conclusion is not supportable and should not be followed here.
Turning first to the question of collection, as noted above Plaintiffs have presented no
evidence of specific facts demonstrating that records pertaining to their calls have been or will be
collected under the Section 215 telephony metadata program, other than the fact that they are
4

Plaintiffs’ related assertions that the Section 215 program has “directly and significantly
impacted” their “ability to communicate via telephone,” and to engage in public advocacy,
Klayman Aff. ¶¶ 9-10; Strange Aff. ¶¶ 11, 19-20, are simply reflections of their unsubstantiated
fears that the NSA will misuse metadata about their calls, fears that are insufficient to establish a
cognizable injury for purposes of standing. Amnesty Int’l USA, 133 S. Ct. at 1152 (holding that
the costs allegedly incurred in efforts to avoid possible surveillance was the “product of” the
plaintiffs’ “fear of surveillance” and that “such fear is insufficient to create standing”); Laird v.
Tatum, 408 U.S. 1, 10, 14 (1972) (holding that “[a]llegations of a subjective ‘chill’” arising from
plaintiffs’ knowledge of the existence of “a governmental investigative and data-gathering
activity,” without “any specific action of the [Government] against them,” were “not an adequate
substitute for a claim of specific present objective harm or a threat of specific future harm”);
United Presbyterian Church in the USA v. Reagan, 738 F.2d 1375, 1378 (D.C. Cir. 1984)
(chilling effect produced by fear of surveillance is an insufficient basis for standing under Laird).
18

Verizon Wireless subscribers. The Court inferred, however, from the Government’s explanation
of the contact-chaining process, crossing multiple communications networks and time periods,
that the NSA “must have collected metadata from Verizon Wireless . . . as well as AT&T and
Sprint,” if the program were to serve its intended function. Klayman, 957 F. Supp. 2d at 26-27
(emphasis in original). The Court should no longer rely on that reasoning, for two reasons.
First, the record now contains specific evidence refuting the inference the Court made
when ruling on Plaintiffs’ preliminary injunction motion. As explained in the Klayman Shea
Declaration, although the Government has acknowledged that the Section 215 program is broad
in scope and involves the aggregation of an historical repository of data collected from more than
one provider, the program has never captured information on all (or virtually all) telephone calls
made and/or received in the United States. Klayman Shea Decl. ¶ 8. As the FISC itself observed
in a decision last year, “[t]he production of all call detail records of all persons in the United
States has never occurred under [the Section 215 telephony metadata] program.” Aug. 29, 2013
FISC Op. at 4 n.5. It does not follow, therefore, that the NSA “must” collect metadata from all
of the three “largest carriers” in order to perform its function, as the Court surmised, Klayman,
957 F. Supp. 2d at 27, and collection of metadata about Plaintiffs’ calls cannot be presumed on
the basis of such an assumption.
Second, the Court should not continue to rely on its prior standing analysis because,
Defendants respectfully submit, it is inconsistent with the Supreme Court’s decision in Amnesty
International. There the Court insisted that plaintiffs seeking judicial review of actions taken by
the Government in the field of intelligence-gathering “set forth . . . specific facts demonstrating”
that communications to which they were parties would be targeted for interception, and because
the plaintiffs failed to do so, the Court dismissed their claims for lack of standing. 133 S. Ct. at

19

1149. Notably, the majority declined to follow the approach advocated by the dissenting
Justices, who, relying on “commonsense inferences,” found a “very high likelihood” that the
Government would intercept at least some of the plaintiffs’ communications under the
challenged statute. Id. at 1157 (Breyer, J., dissenting). The dissent based its conclusion on a
combination of various facts, including that the plaintiffs regularly engaged in the type of
electronic communications—with and about suspected foreign terrorists, their families and
associates, and their activities—that the Government was authorized and highly motivated, for
counter-terrorism purposes, to intercept, and that the record showed the Government had in fact
intercepted on thousands of occasions in the past. Id. at 1156–59. 5
Akin to the dissent’s approach in Amnesty International, this Court previously attempted
to draw an inference, based on unclassified information about the general operation of the
Section 215 program, that the NSA must have collected metadata about the Plaintiffs’ calls (or,
at the very least, metadata from Plaintiffs’ provider), without the benefit of facts specific to
Plaintiffs demonstrating that to be the case. The decision in Amnesty International teaches,
however, that relying solely on inferences drawn from limited information about the scope and
operation of the Government’s intelligence-gathering activities, is not a sufficiently “rigorous”
basis on which to make a determination of standing, at least in cases such as this where litigants
seek to call the constitutionality of those activities into question. See 133 S. Ct. at 1147. Rather,
to establish Plaintiffs’ standing to challenge the acquisition of telephony metadata under the
Section 215 program, the record must contain evidence of specific facts demonstrating that

5

The dissent also observed that the “Government [did] not deny that it ha[d] both the
motive and the capacity to listen to communications of the kind described by [the] plaintiffs.”
133 S. Ct. at 1159–60.
20

information about their communications has been or imminently will be collected under the
program. See id. at 1149. As discussed above, Plaintiffs have presented no such evidence.
Defendants respectfully submit that the Court’s standing analysis regarding the query
process is also inconsistent with the available facts, and precedent, and should not be followed
here. In ruling on Plaintiffs’ request for preliminary relief, the Court concluded that Plaintiffs
also have standing to challenge alleged analysis of metadata pertaining to their calls, on the basis
that when the NSA queries the database, “its system must necessarily analyze metadata for every
phone number in the database by comparing the foreign target number against all of the stored
call records to determine which U.S. phones, if any, have interacted with the target number.”
957 F. Supp. 2d at 28. The Court concluded that this use of the NSA’s Section 215 database
“‘implicates the Fourth Amendment each time a government official monitors it,’” in the same
manner as Government monitoring of the hypothetical home video camera discussed in Johnson
v. Quander, 440 F.3d 489 (D.C. Cir. 2006). Id. at 28-29 (quoting Johnson, 440 F.3d at 499).
The analogy, however, is not apt.
The Court of Appeals explained in Johnson that an in-home video camera raises Fourth
Amendment concerns each time it is monitored by a government official because, each time it is
so monitored, the camera reveals new and otherwise private information about the homeowner to
that official. 440 F.3d at 498–99. The same cannot be said regarding queries of the bulk
telephony metadata obtained by the NSA under Section 215. As discussed above, when the NSA
runs queries of the database, the analysts see no metadata associated with anyone’s calls, and
thus, the analysts learn no information about the communications of any individuals, unless their
telephone numbers (or other identifiers) fall within two (previously three) “hops” of a suspected
terrorist selector. See Shea Decl. ¶¶ 22-24; Klayman Shea Decl. ¶¶ 4-5. NSA’s queries are more

21

akin to the sniff of a narcotics-detection dog, which “discloses only the presence or absence of
narcotics” in a person’s luggage, and “does not expose noncontraband items that otherwise
would remain hidden from public view, as does . . . an officer’s rummaging through the
[luggage’s] contents.” See United States v. Place, 462 U.S. 696, 707 (1983) (holding that a
canine sniff of luggage is not a search). See also United States v. Jacobsen, 466 U.S. 109, 123
(1984) (“A chemical test that merely discloses whether or not a particular substance is cocaine
does not compromise any legitimate interest in privacy.”). 6 Therefore, absent some indication
that NSA analysts conducting queries of the database, using selectors authorized by the FISC
under the “reasonable, articulable suspicion” standard, have retrieved and reviewed records
containing metadata associated with Plaintiffs’ calls—of which there is no evidence in the
record—Plaintiffs cannot demonstrate that the query process itself constitutes an “invasion of a
legally protected interest,” Defenders of Wildlife, 504 U.S. at 560 (emphasis added), even
assuming, contra Smith v. Maryland, 442 U.S. 735 (1979), that Plaintiffs have a protected
privacy interest in telephony metadata. See Horton v. California, 496 U.S. 128, 142 n.11 (1990)
(government’s acquisition of an item without examining its contents “does not compromise the
interest in preserving the privacy of its contents”); United States v. VanLeeuwen, 397 U.S. 249,

6

The Court’s analogy of a library patron searching for every book that cites Battle Cry of
Freedom, Klayman, 957 F. Supp. 2d at 28 n.38, is also distinguishable from the NSA’s query
process in the same critical respect. As described in the Court’s hypothetical, to find every book
in the library citing Battle Cry of Freedom, the patron herself reviews the contents of each book
in the library’s collection. In contrast, NSA analysts who query the database see no information
contained in any of the call detail records stored in the database, except for the tiny fraction
containing metadata within two hops of the suspected terrorist selector—as if the patron saw
only those few books in the library that actually contain references to Battle Cry of Freedom.
22

253 (1970) (defendant’s interest in the privacy of his detained first-class mail “was not disturbed
or invaded” until the Government opened the packages). 7
Plaintiffs have presented no evidence of specific facts demonstrating with the rigor
required in this context, Amnesty International, 133 S. Ct. at 1147, 1149, that they have standing
to contest the NSA’s collection or querying of bulk telephony metadata under Section 215.
Plaintiffs’ motion for summary judgment must therefore be denied.
B.

THE SECTION 215 TELEPHONY METADATA PROGRAM DOES
NOT VIOLATE PLAINTIFFS’ FOURTH AMENDMENT RIGHTS.

Even if Plaintiffs had established their standing, the legal foundation of their Fourth
Amendment claim—that they have a reasonable expectation of privacy in the numbers dialed to
connect a telephone call (and other metadata) that is protected by the Fourth Amendment—is
foreclosed by the controlling and squarely applicable authority of Smith v. Maryland, 442 U.S.
735 (1979). That authority, and the third-party doctrine on which it is based, remain the law
today. The factual differences between Smith and the telephony metadata program are
immaterial to the reasoning of Smith, as the FISC recently explained in an opinion rejecting the
Court’s reasons in its preliminary injunction ruling, 957 F. Supp. 2d at 32-37, for declining to
follow Smith. In re Application of the FBI for an Order Requiring the Prod. of Tangible Things,

7

The Court described the above-quoted language from Horton and VanLeeuwen as dicta,
see Klayman, 957 F. Supp. 2d at 29 n.40, but they are in fact statements of the law. See,
e.g.,United States v. Clutter, 674 F.3d 980, 984 (8th Cir. 2012) (seizure of computers,
subsequently found to contain child pornography, did not implicate Fourth Amendment privacy
interests at time seizure occurred); United States v. Banks, 3 F.3d 399, 401-02 (11th Cir. 1993)
(“no Fourth Amendment privacy interest in first-class mail is invaded by detaining such mail . . .
until a search warrant can be obtained,” because “the privacy interest in the packages” was not
disturbed); United States v. Licata, 761 F.2d 537, 541 (9th Cir. 1985) (seizure of a closed
container “affects only the owner’s possessory interests and not the privacy interests vested in
the contents”). See also Texas v. Brown, 460 U.S. 730, 748-49 (1983) (Stevens, J., concurring in
the judgment) (noting that seizure of a locked suitcase does not alone “compromise the secrecy
of its contents” or “implicate any privacy interests”).
23

Dkt. No. BR14-01, Op. and Order, 21-22 (FISC Mar. 20, 2014) (“Mar. 20, 2014 FISC Order)”
(Exhibit B, hereto); see also ACLU v. Clapper, 959 F. Supp. 2d 724, 752 (S.D.N.Y. 2013);
United States v. Moalin, 2013 WL 6079518, at *5–8 (S.D. Cal. Nov. 18, 2013). Even if there
were a reasonable expectation of privacy in telephony metadata, contrary to Smith, Plaintiffs
have not alleged an invasion of that interest, and the Section 215 telephony metadata program
would still pass constitutional muster as it is reasonable under the standard applicable to searches
that serve special needs of the Government. For these reasons, Plaintiffs’ motion for entry of
summary judgment on their Fourth Amendment claim must be denied.
1.

Plaintiffs have no protected privacy interest in telephony metadata.

The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated.” The Government’s acquisition of bulk telephony metadata pursuant to orders of the
FISC does not constitute a “seizure” of Plaintiffs’ records, because the orders are directed to
telecommunications service providers, not to subscribers, and direct the production of what are
indisputably the providers’ own business records. See Shea Decl. ¶ 18; Smith, 442 U.S. at 741
(because the government ascertained the telephone numbers dialed from a telephone by installing
equipment on telephone company property, the petitioner could not claim that his property was
invaded); United States v. Miller, 425 U.S. 435, 440-41 (1976) (rejecting a bank depositor’s
Fourth Amendment challenge to a subpoena of bank records because, inasmuch as the bank was
a party to the transactions, the records belonged to the bank); ACLU, 959 F. Supp. 2d at 751 (call
detail records obtained under the Section 215 telephony metadata program are created and
maintained by the telecommunications providers, not the plaintiff subscribers, and are not,
therefore, the plaintiff’s call records).

24

The Fourth Amendment’s proscription against unreasonable “searches” was understood
“for most of our history … to embody a particular concern for government trespass upon the
areas (‘persons, houses, papers, and effects’) it enumerates.” United States v. Jones, 132 S. Ct.
945, 949-50 (2012). Since the decision in Katz v. United States, 389 U.S. 347 (1967), however,
it has been understood that a Fourth Amendment “search” also takes place when governmental
investigative activities “violate a person’s ‘reasonable expectation of privacy.’” Jones, 132 S.
Ct. at 949-50 (quoting Katz, 389 U.S. at 360). In Katz, the Court held that the Government’s
interception of the contents of a telephone conversation occurring in a public telephone booth
constituted a search under the Fourth Amendment. The Supreme Court squarely held in Smith,
however, that individuals have no reasonable expectation of privacy in the mere telephone
numbers they dial because they knowingly give that information to telephone companies when
they dial the numbers; the government’s acquisition of such numbers did not therefore constitute
a search under the Fourth Amendment. Smith, 442 U.S. at 741-46.
In Smith, the police requested (without a warrant or court order) that the telephone
company install a pen register device at its central offices to record the numbers dialed from a
robbery suspect’s (Smith’s) home phone. Smith, 442 U.S. at 737. After Smith was arrested, he
sought to suppress evidence derived from the pen register as a violation of his Fourth
Amendment rights. Contrasting the collection of the numbers dialed with the acquisition of the
contents of communications at issue in Katz, id. at 741, the Court held that even if Smith
harbored a subjective expectation that the phone numbers he dialed would remain private, that
expectation was not reasonable. The Court explained that it “consistently has held that a person
has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”
Id. at 743-44 (citing, inter alia, Miller, 425 U.S. at 441-43 (no reasonable expectation of privacy

25

in financial records a depositor voluntarily provided to his bank)). Telephone users “typically
know that they must convey numerical information to the phone company; that the phone
company has facilities for recording this information; and that the phone company does in fact
record this information for a variety of legitimate business purposes.” Id. at 743. By using his
phone, Smith “voluntarily conveyed numerical information to the telephone company and
‘exposed’ that information to its equipment in the ordinary course of business,” and therefore
“assumed the risk that the company would reveal to police the numbers he dialed.” Id. at 744;
see also id. at 745; Miller, 425 U.S. at 443 (“depositor takes the risk, in revealing his affairs to
another, that the information will be conveyed by that person to the Government.”). 8
Smith controls the instant case because the pen-register metadata at issue in Smith are
“indistinguishable” from the non-content telephony metadata at issue in the Section 215
program, 9 and its rationale is fully applicable. Mar. 20, 2014 FISC Order at 11.

8

The third-party doctrine has consistently been applied to call detail records like the
business records at issue here. See, e.g., Reporters Comm. for Freedom of the Press v. AT&T,
593 F.2d 1030, 1043-46 (D.C. Cir. 1978); United States v. Baxter, 492 F.2d 150, 167 (9th Cir.
1973); United States v. Fithian, 452 F.2d 505, 506 (9th Cir. 1971); United States v. Doe, 537 F.
Supp. 838, 839-40 (E.D.N.Y. 1982). See also U.S. Telecom Ass’n v. FCC, 227 F.3d 450, 454
(D.C. Cir 2000) (“telephone numbers are not protected by the Fourth Amendment”) (citing
Smith). Courts have also applied Smith in the Internet age to find no reasonable expectation of
privacy in email “to/from” and Internet protocol (“IP”) addressing information, United States v.
Forrester, 512 F.3d 500, 510-11 (9th Cir. 2008), and in text message addressing information.
Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 905 (9th Cir. 2008), rev’d on other
grounds, 130 S. Ct. 2619 (2010).
9

Just as Plaintiffs voluntarily turn over the phone numbers they dial to their phone
companies, they voluntarily turn over the dates, times, and durations of their calls; the telephone
numbers from which incoming calls originate are also not protected by the Fourth Amendment.
See United States v. Reed, 575 F.3d 900, 914 (9th Cir. 2009); United States Telecom Ass’n, 227
F.3d at 454, 459. Other communications routing information collected under the program, such
as trunk identifiers, is information collected or generated by the phone companies themselves.
See Primary Order at 3 n.1.
26

2.

Smith is not distinguishable from this case.

The Government Defendants recognize that this Court concluded otherwise when it ruled
on Plaintiffs’ motion for a preliminary injunction, but respectfully submit for the reasons
explained herein that Smith cannot be distinguished on the grounds the Court cited.
First, the Section 215 telephony metadata program cannot be distinguished from Smith
based on the Government’s more extensive collection and longer retention of metadata
pertaining to each individual’s calls. See Klayman, 957 F. Supp. 2d at 32. As the FISC
observed, Smith reaffirmed that the third-party disclosure doctrine applies regardless of the
disclosing person’s assumptions or expectations as to what will be done with the information
afterward, “‘even if the information is revealed on the assumption that it will be used only for a
limited purpose.’” Mar. 20, 2014 FISC Order at 14-15, quoting Smith, 442 U.S. at 744; see also
Miller, 425 U.S. at 443; SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 743 (1984) (“It is
established that, when a person communicates information to a third party even on the
understanding that the communication is confidential, he cannot object if the third party conveys
that information or records thereof to law enforcement authorities.”). Significantly Miller, on
whose central holding Smith relied, upheld in the face of a Fourth Amendment challenge the
compelled production of almost four months of a person’s bank records—copies of checks,
deposit slips, financial statements, monthly statements—records that are more substantive and
personal in nature than phone numbers, and more likely to reveal details about an individual’s
life than years’ worth of telephony metadata. Mar. 20, 2014 FISC Order at 21-22. 10

10

As the FISC also pointed out, “a telephone user who is making a call fully divulges to
the phone company the numbers he dials,” unlike the bus passenger in Bond v. United States,
529 U.S. 334, 338 (2000), cited in Klayman, 957 F. Supp. 2d at 33 n.47, who sought to preserve
the privacy of the contents of his carry-on bag by using an opaque bag and placing that bag
directly above his seat. Mar. 20, 2014 FISC Order at 16 n.8.
27

Thus, under the third-party doctrine that the Supreme Court has consistently applied in
Smith and other cases, see Mar. 20, 2014 FISC Order at 15-16, “[i]f a person who voluntarily
discloses information can have no reasonable expectation concerning limits on how the recipient
will use or handle the information, it necessarily follows that he or she also can harbor no such
expectation with respect to how the Government will use or handle the information after it has
been divulged by the recipient … regardless of how it might be later used by the recipient or the
Government.” Id. at 17. The fact that the Government here acquires metadata pertaining to a
greater number of each individual’s calls, and retains the data for a much longer period, does not
meaningfully differentiate the Section 215 program from Smith.
Indeed, while the volume of data collected and retained about each individual’s phone
calls is greater here than in Smith, the privacy concerns were actually greater in Smith than here.
In Smith, the police targeted the phone calls of a single, known individual (Smith), in fact
examined the data gathered to ascertain whether he had contacted another known individual (his
victim), and used that information to arrest and prosecute him. 442 U.S. at 737. The Court
nonetheless ruled that Smith had no reasonable expectation of privacy in telephone numbers he
dialed. Id. at 741–42. Here, by contrast, Plaintiffs can point to no equivalent intrusion on their
privacy. The FISC orders here direct specific telecommunications companies to provide the
Government with the companies’ own business records, in which Plaintiffs have no reasonable
expectation of privacy. Nor have Plaintiffs shown that any metadata of their phone calls have
ever been examined by NSA analysts. As discussed above, the NSA can only query the database
of call detail records with a now judicially-approved suspected-terrorist selector and can only
review metadata within two steps of that suspected-terrorist selector. Even if any allegedly
collected records of Plaintiffs’ calls have been among the tiny fraction of the records ever

28

reviewed by NSA analysts, the call detail records collected by the NSA reveal only such
information as phone numbers, dates and times, and routing information, but not the names,
addresses, or other identifying information of parties to the calls. See Mar. 20, 2014 FISC Order
at 22 (“it must be emphasized that the non-content telephony metadata at issue here is
particularly limited in nature and subject to strict protections that do not apply to run-of-the-mill
productions of similar information in criminal investigations.”). Plaintiffs can complain of no
putative invasion of privacy of the kind experienced by the petitioner in Smith.
Second, and for the same reasons, perceived distinctions between the relationship of the
government with the telephone company in Smith, and the relationship of the Government here
with the telecommunications companies that participate in the program, Klayman, 957 F. Supp.
2d at 32-33, are simply irrelevant to whether a search occurred. Mar. 20, 2014 FISC Order at
17–18. Nor is there support in the record for the conclusion that the telecommunications
companies that receive Section 215 orders are collecting telephony metadata for law enforcement
purposes, “operat[ing] what is effectively a joint intelligence-gathering operation with the
Government.” Klayman, 957 F. Supp. 2d at 33. Rather, “pursuant to the FISC’s orders,
telecommunications service providers turn over to the NSA business records that the companies
already generate and maintain for their own pre-existing business purposes (such as billing and
fraud prevention).” Shea Decl. ¶ 18. See also Mar. 20, 2014 FISC Order at 18 n.9 (pointing out
that this Court acknowledged that “the information produced to NSA consists of ‘telephony
metadata records . . . which the companies create as part of their business of providing
telecommunications services to customers.’”) (quoting 957 F. Supp. 2d at 15).
Third, the Court also emphasized that the telephony metadata program allegedly involves
the collection of data “on hundreds of millions of people.” See Klayman, 957 F. Supp. 2d at 33

29

& n.48, 34, 36. That observation “is misplaced under settled Supreme Court precedent.” Mar.
20, 2014 FISC Order at 19–20. Fourth Amendment rights “are personal in nature, and cannot
bestow vicarious protection on those who do not have a reasonable expectation of privacy in the
place to be searched.” Steagald v. United States, 451 U.S. 204, 219 (1981); accord Rakas v.
Illinois, 439 U.S. 128, 133–34 (1978). No Fourth Amendment interest of Plaintiffs is implicated,
therefore, by the fact that the metadata of many other individuals’ calls are collected as well as
(allegedly) their own. See United States v. Dionisio, 410 U.S. 1, 13 (1973) (where single grand
jury subpoena did not constitute an unreasonable seizure, it was not “rendered unreasonable by
the fact that many others were subjected to the same compulsion”); In re Grand Jury
Proceedings, 827 F.2d 301, 305 (8th Cir. 1987) (“[T]he fourth amendment does not necessarily
prohibit the grand jury from engaging in a ‘dragnet’ operation.”); ACLU, 959 F. Supp. 2d at 752
(“The collection of breathtaking amounts of information unprotected by the Fourth Amendment
does not transform that sweep into a Fourth Amendment search.”); United States v. Rigmaiden,
2013 WL 1932800, at *13 (D. Ariz. May 8, 2013) (Government did not violate defendant’s
Fourth Amendment rights by collecting a high volume (1.8 million) of IP addresses); Aug. 29,
2013 FISC Op. at 8–9.
Finally, the Court also suggested that individuals’ decisions to voluntarily convey and
expose their telephone numbers to their phone companies are a necessity of modern life that did
not exist in 1979 when Smith was decided. See Klayman, 957 F. Supp. 2d at 36. The year 1979
was, of course, not that long ago, and the use of banks, credit cards, telephones, and the like, to
conduct the affairs of life was clearly prevalent at that time, as both Smith and Miller
demonstrate, and as the dissent in Smith expressly argued. See 442 U.S. at 749–50 (Marshall, J.,
dissenting). See also ACLU, 959 F. Supp. 2d at 749 n.16 (citing cases prior to 1979 holding no

30

Fourth Amendment privacy interest in various information provided to third parties). It is true
that cell phones did not exist in 1979, and that cell phones are used for purposes other than
making telephone calls (such as accessing the Internet, taking pictures, and text messaging). See
Klayman, 957 F. Supp. 2d at 34-36. “But none of these additional functions generates any
information that is being collected by NSA as part of the telephony metadata program, which . . .
involves only non-content records concerning the placing and routing of telephone calls.
Accordingly, such changes are irrelevant . . . .” Mar. 20, 2014 FISC Order at 19. See also
ACLU, 959 F. Supp. 2d at 752 (“Telephones have far more versatility now than when Smith was
decided, but this case only concerns their use as telephones.”); Klayman, 957 F. Supp. 2d at 35
(acknowledging that the types of information acquired under the telephony metadata program are
“limited” to “phone numbers dialed, date, time, and the like.”).
Nor does Jones provide any basis for departing from the controlling authority of Smith.
See Klayman, 957 F. Supp. 2d at 36. As the FISC explained, the majority opinion in Jones, in
holding that an individual has a protected Fourth Amendment interest against the police
attaching a GPS tracker to his car, relied on the “physical intrusion” the tracker effected and
“declined to address the question whether use of the GPS device, without the physical intrusion,
impinged upon a reasonable expectation of privacy . . . .” Mar. 20, 2014 FISC Order at 24-25.
This Court placed reliance on Justice Sotomayor’s concurring opinion in Jones for the
proposition that “the metadata from each person’s phone ‘reflects a wealth of detail about her
familial, political, professional, religious, and sexual associations.’” Klayman, 957 F. Supp. 2d
at 36 (citing Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring)). 11 But Smith itself recognized

11

The Jones majority opinion is, of course, controlling, and did not, as explained above,
undermine the vitality of Smith in any way. “And the Supreme Court has instructed lower courts
not to predict whether it would overrule a precedent even if its reasoning has been supplanted by
31

that a list of telephone numbers dialed “could reveal the identities of the persons and the places
called, and thus reveal the most intimate details of a person’s life,” Smith, 442 U.S. at 748
(Stewart, J., dissenting), and yet the Court ruled that there is no reasonable expectation of
privacy in telephone numbers dialed. Moreover, this potential is in fact less of a concern here,
where the NSA does not know to whom the phone numbers collected under the telephony
metadata program belong; where analysts can only find out that information for phone numbers
or other metadata that result from authorized queries made with selectors approved by the FISC
under the reasonable, articulable suspicion standard; and where Plaintiffs offer no proof that any
metadata of their calls have been reviewed. In contrast, the police in Smith knew Smith’s
identity when the pen register identified the phone numbers he dialed. Similarly, in Jones, law
enforcement officers attached a GPS device to a single, known person’s vehicle, recorded the
vehicle’s locations over a period of time, and used that information to prosecute him. 12
* * *
Thus, Smith compels the conclusion that the alleged acquisition of metadata records
about Plaintiffs’ telephone calls does not constitute a search for purposes of the Fourth
Amendment, thereby ending the Fourth Amendment inquiry. But even if the Court concluded,
contrary to Smith, that Plaintiffs have a reasonable expectation of privacy in metadata allegedly
collected about their phone calls, they point to no invasion of that interest that would rise to the
level of a Fourth Amendment search.

later cases” (which has not occurred here). ACLU, 959 F. Supp. 2d at 752 (citing Agostini v.
Felton, 521 U.S. 203, 237 (1997)).
12

Although Justice Sotomayor also stated in her concurring opinion that it may be
necessary to reconsider the third-party doctrine, which she posited is ill-suited to the digital age,
she expressly concluded that “[r]esolution of these difficult questions in this case is unnecessary,
however, because the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis
for decision.” Jones, 132 S. Ct. at 957. See also Mar. 20, 2014 FISC Order at 28.
32

Call detail records are not “searched” in a constitutional sense, see Klayman, 957 F.
Supp. 2d at 29–30, every time an electronic query of the database is performed. When such
queries are conducted, the only information made available for review by human beings are the
records within two hops of the suspected terrorist selectors used to initiate the queries. NSA
analysts receive no information about the calls of any other individuals. See Shea Decl. ¶¶ 20–
26. Thus, as discussed above, the query process is analogous, in Fourth Amendment terms, to a
canine sniff to ascertain “the presence or absence of narcotics” in a person’s luggage, which the
Supreme Court has held does not constitute a search because it “does not expose noncontraband
items that otherwise would remain hidden from public view.” Place, 462 U.S. at 707. See also
Jacobsen, 466 U.S. at 123 (chemical test that only reveals to law enforcement officials whether a
particular substance is cocaine does not compromise any legitimate interest in privacy).
Because Plaintiffs have not presented evidence that information associated with any of
their phone calls has been reviewed by analysts in response to queries of the bulk telephony
metadata collected by the NSA, they cannot maintain that NSA queries of the database intrude
upon any putative expectation of privacy they claim to have in that information. For this reason
as well, Plaintiffs have not been subjected to a search for purposes of the Fourth Amendment,
once again bringing the Fourth Amendment inquiry to a close.
3.

The telephony metadata program is reasonable.

Even if the operation of the Section 215 telephony metadata program results in a “search”
as to Plaintiffs, the Fourth Amendment bars only “unreasonable” searches and seizures. The
Section 215 telephony metadata program is reasonable under the standard applied to assess
suspicionless searches that serve special government needs. As the Supreme Court has
explained, “where a Fourth Amendment intrusion serves special governmental needs, beyond the

33

normal need for law enforcement, it is necessary to balance the individual’s privacy expectations
against the Government’s interests to determine whether it is impractical to require a warrant or
some level of individualized suspicion in the particular context.” NTEU v. Von Raab, 489 U.S.
656, 665–66 (1989). More specifically, the scope of the privacy interest and the character of the
intrusion are balanced against the nature of the government interests to be furthered, the
immediacy of the government’s concerns regarding those interests, and the efficacy of the
program in addressing those concerns. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 658,
660, 662-63 (1995).
The telephony metadata program clearly serves special governmental needs above and
beyond normal law enforcement. The undisputed purpose of the telephony metadata program is
identifying unknown terrorist operatives and preventing terrorist attacks—forward-looking goals
that fundamentally differ from most ordinary criminal law enforcement, which typically focuses
on solving crimes that have already occurred, not preventing unlawful activity and protecting
public safety and national security. See, e.g., United States v. U.S. Dist. Court (Keith), 407 U.S.
297, 322-23 (1972); In re Sealed Case, 310 F.3d 717, 746 (FISC-R 2002).
If, contrary to Smith, Plaintiffs could be said to have any Fourth Amendment privacy
interest that is implicated by the mere acquisition of non-content telephony metadata, that
interest would be minimal. Moreover, the intrusion on that interest would be mitigated still
further by the statutorily mandated restrictions on review and dissemination of the metadata that
are written into the FISC’s orders. Primary Order at 4-14. See also Maryland v. King, 133 S. Ct.
1958, 1979 (2013); Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536
U.S. 822, 833 (2002); Vernonia, 515 U.S. at 658. As noted above, the Government Defendants
respectfully disagree with the Court’s conclusion that Plaintiffs have “a very significant

34

expectation of privacy” in telephony metadata, Klayman, 957 F. Supp. 2d at 39, or, absent
evidence that data pertaining to their calls have ever been reviewed by NSA analysts, that the
program has infringed on any such expectation.
On the other side of the balance, the acquisition and review of telephony metadata
promote overriding public interests. The interest in identifying and tracking terrorist operatives
for the purpose of preventing terrorist attacks is a national security concern of overwhelming
importance. See Haig v. Agee, 453 U.S. 280, 307 (1981) (“[N]o governmental interest is more
compelling than the security of the Nation.”) (internal quotation marks omitted); In re Directives,
551 F.3d 1004, 1012 (FISC-R 2008) (Government interest in national security “is of the highest
order of magnitude.”); ACLU, 959 F. Supp. 2d at 754. That interest cannot be as effectively
achieved by conditioning access to telephony metadata on individualized suspicion, because such
a requirement would not permit the type of historical analysis, contact-chaining, and timely
identification of terrorist contacts that the program makes possible. See Shea Decl. ¶¶ 44–63;
Aug. 29, 2013 FISC Op. at 20-22; ACLU, 959 F. Supp. 2d at 747–48. Imposing an
individualized suspicion requirement on this program, is not only “impracticable” but may also
be entirely infeasible. Von Raab, 489 U.S. at 665–66.
The Government also respectfully disagrees with the Court’s conclusions regarding the
efficacy of the program. Klayman, 957 F. Supp. 2d at 40-41. As an initial matter, the ability to
quickly analyze past connections and chains of communication to determine terrorist connections
can be critical in the midst of an active terrorism investigation. See id. at 39-40 (“A closer
examination of the record . . . reveals that the Government’s interest is a bit more nuanced—it is
not merely to investigate potential terrorists, but rather, to do so faster than other investigative
methods might allow.”). Moreover, as the United States District Court for the Southern District

35

of New York found, “[t]he 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 disclosures can 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.” ACLU, 959
F. Sup. 2d at 755.
CONCLUSION
For the reasons stated above, Plaintiffs’ motion for summary judgment should be denied.
Dated: May 9, 2014
Respectfully Submitted,
STUART F. DELERY
Assistant Attorney General
JOSEPH H. HUNT
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Branch Director
/s/ James J. Gilligan
JAMES J. GILLIGAN
Special Litigation Counsel
[e-mail]
MARCIA BERMAN
Senior Trial Counsel
BRYAN DEARINGER
RODNEY PATTON
JULIA BERMAN
Trial Attorneys
U.S Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W., Room 6102
Washington, D.C. 20001
Phone: [phone]
Fax: [phone]
Counsel for the Government Defendants

36