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)

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LARRY KLAYMAN, et al.,
Plaintiffs,

v.
BARACK OBAMA, President of the
United States, et al.,
Defendants.

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Civil Action No.
1:13-cv-0851-RJL

DECLARATION OF TERESA H. SHEA, SIGNALS INTELLIGENCE
DIRECTOR, NATIONAL SECURITY AGENCY

I, Teresa H. Shea, for my declaration in the above-captioned case, do hereby state and
declare as follows:
I.

I am the Director of the Signals Intelligence Directorate (SID) at the National

Security Agency (NSA), an intelligence agency within the Department of Defense. I am
responsible for, among other things, protecting NSA Signals Intelligence (SI GINT) activities,
sources, and methods against unauthorized disclosures.
2.

I submit this declaration to discuss the transition ordered by the President to the

NSA's bulk telephony metadata program (carried out under Section 215 of the USA-PATRIOT
Act, Pub. L. No. 107-56, 115 Stat. 272 (2001)) to preserve the program's needed capabilities
while enhancing the program's protections against the potential for abuse. I also address certain
speculation about the program's scope. My statements herein are based upon my personal
knowledge ofSIGINT collection and NSA operations, and the information available to me in my
capacity as SIGINT Director.

TRANSITION TO THE SECTION 215 TELEPHONY METADATA
PROGRAM ORDERED BY THE PRESIDENT
3.

On January 17, 2014, following a review of the Nation's Signals Intelligence

programs, the President announced a series of reforms designed to preserve the Intelligence
Community's capabilities to detect and prevent threats by foreign terrorist organizations through
the penetration of their communications, while enhancing protections for individual privacy as
intelligence capabilities developed to meet the threat of international terrorism continue to
advance. A transcript of the President's remarks is available at http://www.whitehouse.gov/
thepress-office/2014/01I17/remarks-president -review-signals-intelligence.
4.

Regarding the Section 215 telephony metadata program, the President ordered a

transition during which the Intelligence Community and the Attorney General were to develop
options for a new approach that can match the program's capabilities without the Government
continuing to hold the bulk telephony metadata. The President also directed: (1) that the
Government work with the Foreign Intelligence Surveillance Court (FISC) to require, during the
transition period, advance findings by FISC judges of "reasonable, articulable suspicion" that
selectors (such as telephone numbers) used to query the database are associated with foreign
terrorist organizations (except in emergency situations, in which case FISC approval is to be
sought retrospectively); and (2) that query results available to NSA analysts be limited to
metadata within two "hops" (degrees of contact) of suspected terrorist selectors, not three as
previously allowed.
5.

The Government (including NSA) took immediate steps to put these two changes

into effect. Among these steps, the Govenunent filed a motion with the FISC to amend its
January 3, 2014, Primary Order approving the Section 215 telephony metadata program. The
Government's motion proposed two changes to the previously approved minimization
procedures: First, the Government proposed a change that (except in cases of emergency) would
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require it to obtain permission from the FISC to use a proposed selector as a "seed" to query the
telephony metadata, based on a finding by the FISC that the selector to be used satisfies the
"reasonable, articulable suspicion" standard. Second, the Government proposed limiting the
results of each query to metadata that are within two, rather than three, "hops" of the approved
selector used to conduct the query. On February 5, 2014, the FISC granted the Government's
motion to implement these two changes to the Section 215 program. In re Application of the FBI
for an Order Requiring the Production a/Tangible Things from [Redacted], Dkt. No. BR14-01

(F.I.S.C. Feb. 5, 2014) (publicly released, unclassified version) (Enclosure A).
6.

On March 27, 2014, the President announced that, after having considered options

presented to him by the Intelligence Community and the Attorney General, he will seek
legislation to replace the Section 215 telephony metadata program. Statement by the President
on the Section 215 Bulk Metadata Program, http://www.whitehouse.gov/the-press-office/2014/
03/27/statement-president-section-215-bulk-metadata-program. The President stated that his
goal is 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 "legislation will be needed to permit the Government to
obtain 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

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reauthorization of the existing Section 215 program, with the two modifications already
approved by the FISC in February.
7.

On March 28, 2014, the FISC issued a new Primary Order approving the

Government's application to reauthorize the program, with the modifications described above,
for approximately another 90 days (through June 20, 2014). The FISC's action brought to 37 the
number of times the FISC (by 16 different judges) has authorized the NSA's bulk collection of
telephony metadata under Section 215 of the USA-PATRIOT Act.

SCOPE OF THE SECTION 215 TELEPHONY METADATA PROGRAM
8.

Although there has been speculation that the NSA, under this program, acquires

metadata relating to all telephone calls to, from, or within the United States, that is not the case.
The Government has acknowledged that the program is broad in scope and involves the
collection and aggregation of a large volume of data from multiple telecommunications service
providers, but as the FISC observed in a decision last year, the program has never captured
information on all (or virtually all) calls made and/or received in the U.S. See In re Application

ofthe FBI/or an Order Requiring the Production of Tangible Things from [Redacted], Dkt. No.
BRB-109, Amended Mem. Op. at 4 n.5 (F.I.S.C. Aug. 29, 2013) (public unclassified version)
("The production of all call detail records of all persons in the United States has never occurred
under this program."). And while the Government has also acknowledged that one provider was
the recipient of a now-expired April 25, 2013, Secondary Order from the FISC, the identities of
the carriers participating in the program (either now, or at any other time) otherwise remain
classified.
I declare under penalty of perjury that the foregoing is true and correct.

t(.~

Executed on: May I, 2014

Teresa H. Shea
Signals Intelligence Director
National Security Agency
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