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.
)
_______________________________________)
GOVERNMENT DEFENDANTS’ RESPONSE TO STATEMENT
OF MATERIAL FACTS IN SUPPORT OF PLAINTIFFS’
MOTION FOR PARTIAL SUMMARY JUDGMENT
Pursuant to Federal Rule of Civil Procedure 56 and Local Civil Rule 7(h), the
Government Defendants 1 hereby respond to Plaintiffs’ Statement of Material Facts in Support of
Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 108-1) as follows:

1.
On June 5, 2013, The Guardian, a British newspaper, reported the first materials
leaked by former NSA contract employee Edward Snowden that revealed the existence of U.S.
government intelligence collection and surveillance programs on American citizens, regardless
of any probable cause they were in communication with terrorists. See Greenwald, NSA
collecting phone records of millions of Verizon customers daily, GUARDIAN (London), June 5,
2013; Leon Memorandum Opinion, dated Dec. 16, 2013 (“Mem. Op.”) at 6.
RESPONSE: Undisputed, but not material, that The Guardian published the referenced
article, to which the Court is respectfully referred for a complete and accurate statement of its
contents. Otherwise the facts asserted in this paragraph, and those stated in the cited article, are

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The Government Defendants are defendants Barack Obama, President of the United
States, Eric Holder, Attorney General of the United States, 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.

disputed on the ground that they are based on, or constitute, hearsay inadmissible for the truth of
the matters stated therein.
2.
The Guardian’s report disclosed a secret Foreign Intelligence Surveillance Court
(“FISC”) order, dated April 25, 2013, that required Verizon Business Network Services to
produce to the NSA on “an ongoing daily basis . . . all call detail records or ‘telephony metadata’
create by Verizon for communications (i) between the United States and abroad; or (ii) wholly
within the United States, including local telephone calls.” Secondary Order, In re Application of
the [FBI] for an Order Requiring the Production of Tangible Things from Verizon Business
Network Services, Inc. on Behalf of MCI Communication Services, Inc. d/b/a/ Verizon Business
Services, No. BR 13-80 at 2 (FISC Apr. 25, 2013) (“Secondary Order”); Mem. Op. at 6.
RESPONSE: Undisputed, but not material, that The Guardian published the referenced
article, to which the Court is respectfully referred for a complete and accurate statement of its
contents. Facts asserted in the article are disputed on the ground that they constitute hearsay
inadmissible for the truth of the matters stated therein.
Undisputed that the Foreign Intelligence Surveillance Court (“FISC”) issued the
referenced April 25, 2013, Secondary Order to Verizon Business Network Services, Inc. The
Court is respectfully referred to the Secondary Order for a complete and accurate statement of its
contents.
3.
The Secondary Order “show[ed] . . . that under the Obama administration the
communication records of millions of US citizens are being collected indiscriminately and in
bulk—regardless of whether they are suspected of any wrongdoing.” Greenwald, supra; Mem.
Op. at 6-7.
RESPONSE: This paragraph is disputed on the basis that it quotes a statement from the
article published by The Guardian, which is hearsay inadmissible for the truth of the matters
stated therein. The Court is respectfully referred to the Secondary Order for a complete and
accurate statement of its contents.

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4.
The Government Defendants had confirmed and admitted to the authenticity
of the Secondary Order as well as the existence of the Bulk Telephony Metadata Program
(“Program”) under which “the FBI obtains orders from the FISC pursuant to Section 215 [of the
USA PATRIOT Act] directing certain telecommunications service providers to produce to the
NSA on a daily basis electronic copies of ‘call detail records.’” Govt.’s Opp’n at 8; Mem. Op. at
7 (emphasis added).
RESPONSE: Not disputed that the Government has confirmed the authenticity of the
Secondary Order and the existence of the bulk telephony metadata program carried out under
authority of Section 215 of the USA-PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001),
codified at 50 U.S.C. § 1861. Not disputed that the quoted language appears in the description of
the program set forth in the Government Defendants’ Opposition to Plaintiffs’ Motions for
Preliminary Injunctions (ECF No. 25) (Gov’t Defs.’ PI Opp.”) at 8–13, to which the Court is
respectfully referred for a complete and accurate statement of its contents.
5.
The Program is “a ‘counterterrorism program’ under [50 U.S.C. §]
1861[, conducted for more than seven years, that] collect[s], compiles, retains, and analyzes
certain telephony records, which it characterizes as “business records” created by certain
telecommunications companies.” Mem. Op. at 15-16 (emphasis added).
RESPONSE: Undisputed that the Section 215 bulk telephony metadata program is
conducted for counter-terrorism purposes; that it has been conducted since May 2006; and that it
involves the acquisition, storage, and analysis by the NSA of information contained in business
records, created by certain telecommunications companies, known as “call detail records.”
Declaration of Teresa H. Shea, Signals Intelligence Director, NSA (Gov’t Defs.’ PI Opp.,
Exh. C) (ECF No. 25-4) (“Shea Decl.”), ¶¶ 10–16.
To the extent this paragraph is meant to convey any different or conflicting
understanding, it is disputed as unsupported by reference to admissible evidence; statements of
fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.

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6.
In principle, but not in practice, the Program is “meant to detect: (1) domestic
U.S. phone numbers calling outside of the United States to foreign phone numbers associated
with terrorist groups; (2) foreign phone numbers associated with terrorist groups calling into the
U.S. to U.S. phone numbers; and (3) ‘possible terrorist –related communications’ between
numbers inside the U.S.” Mem. Op. at 20-21.
RESPONSE: Undisputed that the Section 215 bulk telephony metadata program was
specifically developed to assist the U.S. Government in detecting communications between
known or suspected terrorists who are operating outside of the U.S. and who are communicating
with others inside the U.S., as well as communications between operatives who are located
within the U.S. Shea Decl. ¶ 10.
To the extent this paragraph is meant to convey any different or conflicting
understanding, including but not limited to the assertion that the program is meant to detect
terrorist communications “[i]n principle, but not in practice,” it is disputed on the basis that it is
unsupported by reference to admissible evidence. The Government Defendants note that the
qualifying phrase “[i]n principle, but not in practice” does not appear on the cited pages of the
Court’s December 16, 2013, Memorandum Opinion (ECF No. 48) (“Mem. Op.”). In addition,
statements of fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated
therein.
7.
The records collected under the Program consist of “metadata,” which includes
information about what phone numbers were used to make and receive calls, when the calls took
place, and how long the calls lasted. Mem. Op. at 15.
RESPONSE: Undisputed that the call detail records acquired by the NSA under the
Section 215 bulk telephony metadata program contain “metadata,” defined under the FISC
orders authorizing the program as “comprehensive communications routing information”
including but not limited to “originating and terminating telephone number[s], International
Mobile Subscriber Identity (IMSI) number[s], International Mobile Station Equipment Identity
(IMEI) number[s], trunk identifier[s], telephone calling card numbers, and time and duration of
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call.” 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) (Gov’t Defs.’ PI Opp.,
Exh. E) (ECF No. 25-6) (“Primary Order”) at 3 n.1.
To the extent this paragraph is meant to convey any different or conflicting
understanding, it is disputed as unsupported by reference to admissible evidence; statements of
fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
8.
Through targeted searches of metadata records, the NSA “tries to discern
connections between terrorist organizations and previously unknown terrorist operatives located
in the United States.” Mem. Op. at 16.
RESPONSE: Undisputed that through queries of the data using identifiers (e.g.,
telephone numbers) that are reasonably suspected of being associated with identified
international terrorist organizations that are subjects of FBI counterterrorism investigations, NSA
analysts attempt to determine whether known or suspected terrorists have been in contact with
individuals in the U. S. Shea Decl. ¶¶ 8, 10, 19–20; Declaration of Robert J. Holley (Gov’t
Defs.’ PI Opp., Exh. D) (ECF No. 25-5) (Holley Decl.) ¶ 5.
To the extent this paragraph is meant to convey any different or conflicting
understanding, it is disputed as unsupported by reference to admissible evidence; statements of
fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
9.
The telephone metadata records, which “[telecommunications] companies create
and maintain as part of their business of providing telecommunications services to customers[,]”
have been continually produced since May 2006 under the FBI’s production orders from the
FISC. See Mem. Op. at 16.
RESPONSE: Undisputed that the call detail records acquired by the NSA under the
Section 215 bulk telephony metadata program are records that the telecommunications
companies already generate and maintain in the ordinary course of business for their own preexisting business purposes (such as billing and fraud prevention). Shea Decl. ¶ 18; Holley Decl.
¶ 10. Undisputed that the program has been conducted since May 2006, and that the FISC orders
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issued under the program require the telecommunications service providers to which they are
directed to produce call detail records to the NSA on an ongoing daily basis for the duration of
each order. Shea Decl. ¶ 13; Holley Decl. ¶¶ 6, 11.
To the extent this paragraph is meant to convey any different or conflicting
understanding, it is disputed as unsupported by reference to admissible evidence; statements of
fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
10.
The NSA consolidates the metadata records provided by different
telecommunications companies into one database and under the FISC’s orders, the NSA may
retain the records for up to five entire years. Mem. Op. at 16.
RESPONSE: Undisputed that under the FISC orders authorizing the Section 215 bulk
telephony metadata program, the NSA consolidates and stores the metadata it acquires in secure
networks, and must destroy metadata no later than five years after their initial collection. Shea
Decl. ¶¶ 23, 30; Primary Order at 4, 14.
To the extent this paragraph is meant to convey any different or conflicting
understanding, it is disputed as unsupported by reference to admissible evidence; statements of
fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
11.
When an NSA intelligence analyst runs a query, the quantity of phone numbers
captured is very large, potentially and sometimes up to 1,000,000 numbers total. Mem. Op. at
18-19.
RESPONSE: This paragraph is disputed as unsupported by reference to admissible
evidence; statements of fact in judicial opinions are hearsay, inadmissible for the truth of the
matters stated therein. The Government Defendants also note that the cited portion of the
Court’s December 16, 2013, Memorandum Opinion discusses a solely hypothetical scenario,
Mem. Op. at 18–19, and note further that under current FISC orders, the results of authorized
queries of the NSA’s database are limited to metadata within two “hops,” no longer three, of the

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suspected-terrorist selector used to conduct the query. Declaration of Teresa H. Shea (filed
herewith) (“Klayman Shea Decl.”) ¶¶ 3–5.
12.
Since the Program began in May 2006, the FISC has repeatedly issued orders
directing telecommunication service providers to produce records in connection with the
Program. Mem. Op. at 21.
RESPONSE: Undisputed that beginning in May 2006 and continuing to this day, the
FBI has obtained orders from the FISC pursuant to Section 215 directing certain
telecommunications service providers to produce all call detail records created by them
containing information about communications between telephone numbers, generally relating to
telephone calls made between the United States and a foreign country and calls made entirely
within the U.S. Shea Decl. ¶¶ 13–14.
To the extent this paragraph is meant to convey any different or conflicting
understanding, it is disputed as unsupported by reference to admissible evidence; statements of
fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
13.
Fifteen different FISC judges have issued thirty-five orders authorizing the
Program and under those orders, the Government defendants must continuously seek renewal of
the authority to collect telephony records, which occurs as often as every ninety days. Mem. Op.
at 21.
RESPONSE: Undisputed that to date sixteen (16) different FISC judges have on thirtyseven (37) occasions issued orders for the bulk production of telephony metadata to the NSA
under the Section 215 program. Klayman Shea Decl. ¶ 7; see also Shea Decl. ¶ 14; Holley Decl.
¶ 11. Also undisputed that by the terms of the orders they must be renewed approximately every
ninety (90) days.
To the extent this paragraph is meant to convey any different or conflicting
understanding, it is disputed as unsupported by reference to admissible evidence; statements of
fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.

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14.
The Government Defendants admit that they have failed to comply with the
minimization procedures set forth in the orders. Mem. Op. at 21.
RESPONSE: Undisputed, but not material, that since the Section 215 bulk telephony
metadata program was initiated, there have been a number of significant compliance and
implementation issues that were discovered as a result of internal NSA oversight and interagency reviews. Upon discovery, these violations were reported to the FISC and Congress, the
NSA remedied the problems, and the FISC reauthorized the program. Even the most serious of
these incidents—in which an “alert list” of selectors that had not gone through the process of
becoming “RAS” approved was used to query the metadata—involved identifiers that were
suspected of being associated with foreign terrorist organizations. Shea Decl. ¶¶ 36–43.
To the extent this paragraph is meant to convey any different or conflicting
understanding, it is disputed as unsupported by reference to admissible evidence; statements of
fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
15.
The Honorable Reggie Walton of the FISC concluded he had no confidence that
the Government was doing its utmost to comply with the court’s orders. Mem. Op. at 21-22.
RESPONSE: Undisputed, but immaterial for purposes of this case, that in March 2009,
upon being notified by the Government that the NSA had employed the “alert list” of non-RAS
approved identifiers to query the database, Judge Walton, for the FISC, issued an order that
prohibited the Government from accessing the metadata for foreign-intelligence purposes except
as authorized by the FISC on a case-by-case basis (except in life-threatening situations), stating
that the Court no longer had “every confidence that the government [was] doing its utmost to
ensure that those responsible for implementation fully comply with the Court’s orders.” In re
Production of Tangible Things [Redacted], 2009 WL 9150913, *6, 9 (F.I.S.C. Mar. 2, 2009).
Following the completion of an end-to-end review of the NSA’s handling of the metadata and
the submission of a report thereon to the FISC, the FISC entered an order in September 2009
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once again permitting the NSA to make “RAS” determinations and to query the metadata using
RAS-approved identifiers without seeking pre-approval from the FISC. Shea Decl. ¶¶ 37–40.
The Court is respectfully referred to the FISC’s March 2, 2009 order for a complete and
accurate statement of its contents.
To the extent this paragraph is meant to convey any different or conflicting
understanding, it is disputed as unsupported by reference to admissible evidence; statements of
fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
16.
The Honorable John Bates, Presiding Judge of the FISC, found that the
Government had misrepresented the scope of its targeting of certain internet communications
pursuant to 50 U.S.C. § 1881a. Mem. Op. at 22.
RESPONSE: Undisputed, but immaterial for purposes of this case, that on October 3,
2011, the FISC, by Judge Bates, issued a Memorandum Opinion granting in part and denying in
part the Government’s request for authorization to acquire certain telephone and Internet
communications pursuant to Section 702 of the Foreign Intelligence Surveillance Act, 50 U.S.C.
§ 188la. Undisputed, but immaterial for purposes of this case, that in light of the Government’s
disclosure that the NSA’s acquisition of Internet communications through its “upstream”
collection under Section 702 was accomplished by acquiring Internet “transactions” containing
single or multiple discrete communications, Judge Bates wrote that “[t]he Court is troubled that
the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third
instance in less than three years in which the government has disclosed a substantial
misrepresentation regarding the scope of a major collection program.” Id. at 15–16 & n.14. The
Court is respectfully referred to Judge Bates’ opinion for a complete and accurate statement of its
contents. Available at http://www.dni.gov/index.php/newsroom/press–releases/191–press–
releases–2013/915–dni–declassifies–intelligence–community–documents–regarding–collection–
under–section–702–of–the–foreign–intelligence–surveillance–act–fisa.
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To the extent this paragraph is meant to convey any different or conflicting
understanding, it is disputed as unsupported by reference to admissible evidence; statements of
fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
17.
The Government’s revelations regarding NSA’s acquisition of Internet
transactions mark the third instance in less than three years in which the Government disclosed a
substantial misrepresentation regarding the scope of a major collection program. Mem. Op. at
23.
RESPONSE: See response to paragraph 16, above.
18.

Plaintiffs filed a complaint on June 6, 2013 (Klayman I). See Mem. Op. at 8.

RESPONSE: Undisputed.
19.
Klayman I Plaintiffs Larry Klayman, Charles Strange, and Mary Ann Strange
brought suit against the NSA, the Department of Justice (“DOJ”), multiple executive officials,
whom include President Barack H. Obama, Attorney General Eric H. Holder, Jr., General Keith
B. Alexander, Director of the NSA, and U.S. District Judge Roger Vinson, and Verizon
Communications as well as its chief executive officer. Second Am. Compl. ¶¶ 9-19; Mem. Op.
at 8.
RESPONSE: Undisputed, but the Court is respectfully referred to the Second Amended
Complaint (ECF No. 37), and to the Third Amended Complaint (ECF No. 77) for complete and
accurate statements of their contents.
20.
Plaintiffs Larry Klayman and Charles Strange are subscribers of Verizon wireless
for cellular phone service. Mem. Op. at 3 n.5.
RESPONSE: Undisputed, but immaterial, that as of October 28, 2013, Plaintiffs
Klayman and Charles Strange had been subscribers of Verizon Wireless cellular phone service
“for many years.” Affidavit of Larry Klayman (ECF No. 13-2) ¶ 3; Affidavit of Charles Strange
(ECF No. 13-3) ¶ 2.
To the extent this paragraph is meant to convey any different or conflicting
understanding, it is disputed as unsupported by reference to admissible evidence; statements of
fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.

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21.
The United States District Court for the District of Columbia (“the Court”) has the
authority to evaluate Plaintiffs’ constitutional challenges to the NSA’s conduct. Mem. Op. at 5.
RESPONSE: This paragraph states a conclusion of law to which no response is
required.
22.
Plaintiffs have standing to challenge the constitutionality of the Government
Defendants’ bulk collection and querying of phone record metadata. Mem. Op. at 5.
RESPONSE: This paragraph states a conclusion of law to which no response is
required.
23.
Plaintiffs have standing to challenge both of the NSA’s Bulk Telephony Metadata
Program’s searches: (1) the bulk collection of metadata and (2) the analysis of that data through
the NSA’s querying process. Mem. Op. at 36.
RESPONSE: This paragraph states a conclusion of law to which no response is
required.
24.
The NSA’s bulk telephony metadata collection and analysis violates a reasonable
expectation of privacy. Mem. Op. at 47.
RESPONSE: This paragraph states a conclusion of law to which no response is
required.
25.

A Fourth Amendment search occurred in this case. Mem. Op. at 56.

RESPONSE: This paragraph states a conclusion of law to which no response is
required.
26.
Plaintiffs have demonstrated a substantial likelihood of success on the merits of
their Fourth Amendment claim. Mem. Op. at 5.
RESPONSE: This paragraph states a conclusion of law to which no response is
required.
27.

Plaintiffs will suffer irreparable harm absent injunctive relief. Mem. Op. at 5.

RESPONSE: This paragraph states a conclusion of law to which no response is
required.
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28.

The public interest weighs heavily in favor of granting an injunction. Mem. Op.

at 65.
RESPONSE: This paragraph states a conclusion of law to which no response is
required.
29.
The NSA’s bulk collection program is indeed an unreasonable search under the
Fourth Amendment. Mem. Op. at 62.
RESPONSE: This paragraph states a conclusion of law to which no response is
required.

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
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
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