KLAYMAN v. OBAMA et al

Filing 25

Memorandum in opposition to re 13 MOTION for Preliminary Injunction filed by KEITH B. ALEXANDER, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration (Declaration of James J. Gilligan), # 2 Exhibit (Exhibit A), # 3 Exhibit (Exhibit B), # 4 Exhibit (Exhibit C), # 5 Exhibit (Exhibit D), # 6 Exhibit (Exhibit E), # 7 Exhibit (Exhibit F), # 8 Exhibit (Exhibit G), # 9 Exhibit (Exhibit H), # 10 Exhibit (Exhibit I), # 11 Exhibit (Exhibit J), # 12 Exhibit (Exhibit K), # 13 Exhibit (Exhibit L), # 14 Exhibit (Exhibit M), # 15 Exhibit (Exhibit N), # 16 Exhibit (Exhibit O), # 17 Exhibit (Exhibit P), # 18 Exhibit (Exhibit Q), # 19 Exhibit (Exhibit R), # 20 Exhibit (Exhibit S), # 21 Exhibit (Exhibit T), # 22 Text of Proposed Order)(Gilligan, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
)
)
LARRY KLAYMAN, et al.,
)
)
Civil Action No.
Plaintiffs,
)
1:13-cv-00851-RJL
v.
)
)
)
BARACK OBAMA, President of the
)
United States, et al.,
)
Defendants.
)
_______________________________________)
)
LARRY KLAYMAN, et al.,
)
)
)
Civil Action No.
Plaintiffs,
)
1:13-cv-00881-RJL
)
v.
)
)
BARACK OBAMA, President of the
)
United States, et al.,
)
)
Defendants.
_______________________________________)
GOVERNMENT DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTIONS

TABLE OF CONTENTS
PAGE
INTRODUCTION ...........................................................................................................................1
STATEMENT OF FACTS ..............................................................................................................5
I.

STATUTORY BACKGROUND.........................................................................................5

II.

THE COLLECTION OF INFORMATION AUTHORIZED BY FISA..............................8
A.

Collection of Bulk Telephony Metadata Under Section 215 ................................8

B.

Targeted Collection of Communications Content Pursuant to Section 702 .......13

C.

Bulk Collection of Internet Metadata .................................................................15

III. PLAINTIFFS’ ASSERTIONS IN THEIR PRELIMINARY
INJUNCTION MOTIONS.................................................................................................16
ARGUMENT .................................................................................................................................17
I.

PLAINTIFFS HAVE NOT DEMONSTRATED INJURY SUFFICIENT TO
ESTABLISH THEIR STANDING, NOR SHOWN ANY IRREPARABLE HARM .......19
A.

B.

II.

Plaintiffs Lack Standing and Therefore Cannot Show a Substantial
Likelihood of Success on the Merits ..................................................................19
Plaintiffs’ Speculative Injuries Also Do Not Establish
Irreparable Harm .................................................................................................24

PLAINTIFFS’ CLAIM THAT THE ALLEGED NSA ACTIVITIES EXCEED
STATUTORY AUTHORITY IS PRECLUDED BY STATUTE .....................................25

III. PLAINTIFFS’ CLAIM THAT THE ALLEGED NSA INTELLIGENCEGATHERING PROGRAMS EXCEEDS THE GOVERNMENT’S STATUTORY
AUTHORITY IS ALSO UNLIKELY TO SUCCEED ON THE MERITS ......................31
A. The Telephony Metadata Program Is Authorized Under Section 215 .................32
1.

Bulk telephony metadata are “relevant” within the meaning
of Section 215 ............................................................................................32

2.

Congress has legislatively ratified the construction of Section 215 as
allowing for the bulk collection of telephony metadata records
....................................................................................................................37
i

3.

Plaintiffs present no persuasive reasons for concluding that bulk
telephony metadata are not “relevant” to authorized counter-terrorism
investigations within the meaning of Section 215 .....................................38

4.

Nothing in Section 215 prohibits the FISC from prospectively directing
the production of business records as they are created .............................42

B.

Plaintiffs Have No Likelihood of Success on Their Statutory Challenge
to the Government’s Targeted Collection Directed Against Non-U.S.
Persons Located Outside the United States ........................................................44

C.

Plaintiffs Have No Likelihood of Success on Their Statutory Challenge
to the Government’s Prior Collection of Bulk Internet Metadata.......................44

IV. PLAINTIFFS CANNOT SUCCEED ON THE MERITS OF THEIR FOURTH
AMENDMENT CLAIM BECAUSE THE CHALLENGED SURVEILLANCE
DOES NOT VIOLATE PLAINTIFFS’ FOURTH AMENDMENT RIGHTS..................45
A.

B.

The Government’s Acquisition of Telephony Metadata Is Reasonable .............50

C.

V.

Plaintiffs Have No Fourth Amendment Privacy Interest in
Telecommunications Metadata ...........................................................................45

The NSA’s PRISM Collection Does Not Violate Plaintiffs’
Fourth Amendment Rights ..................................................................................53

PLAINTIFFS CANNOT DEMONSTRATE THAT THEY ARE LIKELY TO
SUCCEED ON THEIR FIRST AMENDMENT CLAIM .................................................55
A.

Good-Faith Investigatory Conduct Not Intended to Deter or Punish
Protected Speech or Association Does Not Violate the First Amendment .........55

B.

The Programs Plaintiffs Challenge Impose No Direct or Significant
Burden on Plaintiffs’ Speech or Associational Rights ........................................57

VI. PLAINTIFFS CANNOT DEMONSTRATE THAT THEY ARE LIKELY TO
SUCCEED ON THEIR FIFTH AMENDMENT CLAIM .................................................60
A.

Plaintiffs’ Substantive Due Process Claim Should Be Dismissed
as Duplicative of Their Fourth Amendment Claim ............................................60

B.

Plaintiffs’ Procedural Due Process Claim Is Also Meritless ..............................61

VII. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST
REQUIRE THAT AN INJUNCTION BE DENIED .........................................................63
CONCLUSION ..............................................................................................................................65
ii

TABLE OF AUTHORITIES
CASES
ACLU Found. v. Barr,
952 F.2d 457 (D.C. Cir. 1991) .................................................................................................. 56
Afshar v. Dep't of State,
702 F.2d 1125 (D.C. Cir. 1983) ................................................................................................ 17
Albright v. Oliver,
510 U.S. 266 (1994) .................................................................................................................. 61
Ark. Dairy Co-op Assn., Inc. v. USDA,
573 F.3d 815 (D.C. Cir. 2009) .................................................................................................. 30
Bates v. City of Little Rock,
361 U.S. 516 (1960) .................................................................................................................. 59
Bayer HealthCare, LLC v. FDA,
--- F. Supp. 2d ---, 2013 WL 1777481 (D.D.C. 2013) .............................................................. 18
Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls,
536 U.S. 822 (2002) ............................................................................................................ 51, 52
Block v. Cmty. Nutrition Inst.,
467 U.S. 340 (1984) ............................................................................................................ 28, 30
Block v. North Dakota ex rel. Bd. of Univ. and Sch. Lands,
461 U.S. 273 (1983) .................................................................................................................. 28
Bradshaw v. Veneman,
338 F. Supp. 2d 139 (D.D.C. 2004) .......................................................................................... 65
Brown v. District of Columbia,
888 F. Supp. 2d 28 (D.D.C. 2012) ............................................................................................ 25
Brown v. McHugh,
--- F. Supp. 2d ---, 2013 WL 5310185 (D.D.C. Sept. 23, 2013) ............................................... 62
Brown v. Socialist Workers '74 Campaign Comm.,
459 U.S. 87 (1982) .................................................................................................................... 59
Calero-Toledo v. Pearson Yacht Leasing Co.,
416 U.S. 663 (1974) .................................................................................................................. 63

iii

Carrillo Huettel, LLP v. SEC,
2011 WL 601369 (S.D. Cal. Feb. 11, 2011) ............................................................................. 33
Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290 (D.C. Cir. 2006) .................................................................................................. 24
CIA v. Sims,
471 U.S. 159 (1985) .................................................................................................................. 35
CityFed Fin. Corp. v. Office of Thrift Supervision,
58 F.3d 738 (D.C. Cir. 1995) .................................................................................................... 18
Clapper v. Amnesty Int'l USA,
133 S. Ct. 1138 (2013) ....................................................................................................... passim
Clark v. Library of Congress,
750 F.2d at 94 ........................................................................................................................... 60
Conservation Force v. Salazar,
715 F. Supp. 2d 99 (D.D.C. 2010) ...................................................................................... 22, 24
Dominquez v. Dist. of Columbia,
536 F. Supp. 2d 18 (D.D.C. 2008) ............................................................................................ 19
Doe v. Rumsfeld,
297 F. Supp. 2d 119 (D.D.C. 2003) .......................................................................................... 20
Dorfmann v. Boozer,
414 F.2d 1168 (D.C. Cir. 1969) ................................................................................................ 65
EEOC v. Shell Oil Co.,
466 U.S. 54 (1984) .............................................................................................................. 33, 38
Elkins v. Dist. of Columbia,
690 F.3d 554 (D.C. Cir. 2012) .................................................................................................. 61
Elrod v. Burns,
427 U.S. 347 (1976) .................................................................................................................. 60
Forest Grove Sch. Dist. v. T.A.,
557 U.S. 230 (2009) .................................................................................................................. 38
FTC v. Invention Submission Corp.,
965 F.2d 1086 (D.C. Cir. 1992) .......................................................................................... 33, 39

iv

Fund for Animals v. Frizzel,
530 F.2d 982 (D.C. Cir. 1975) .................................................................................................. 25
Gen. Elec. Co. v. Jackson,
610 F.3d 110 (D.C. Cir. 2010) ............................................................................................ 61, 62
Gilbert v. Homar,
520 U.S. 924 (1997) .................................................................................................................. 62
Global Relief Found., Inc. v. O'Neill,
207 F. Supp. 2d 779 (N.D. Ill. 2002) ........................................................................................ 63
Gonzalez v. Freeman,
334 F.2d 570 (D.C. Cir. 1964) .................................................................................................. 62
Gordon v. Holder,
632 F.3d 722 (D.C. Cir. 2011) .................................................................................................. 25
Gordon v. Warren Consol. Bd. of Educ.,
706 F.2d 778 (6th Cir. 1983)) ................................................................................................... 53
Goshawk Dedicated Ltd. v. Am. Viatical Servs., LLC,
2007 WL 3492762 (N.D. Ga. Nov. 5, 2007) ........................................................................... 33
Graham v. Connor,
490 U.S. 386 (1989) .................................................................................................................. 61
Guest v. Leis,
255 F.3d 325 (6th Cir. 2001) .................................................................................................... 49
Haig v. Agee,
453 U.S. 280 (1981) ...................................................................................................... 38, 52, 62
Harris v. Holder,
885 F. Supp. 2d 390 (D.D.C. 2012) .......................................................................................... 58
Holder v. Humanitarian Law Project,
130 S. Ct. 2705 (2010) ........................................................................................................ 63, 64
Horton v. California,
496 U.S. 128 (1990) .................................................................................................................. 49
In re Adelphia Commc'ns Corp.,
338 B.R. 546 (Bankr. S.D.N.Y. 2005) ...................................................................................... 33
In re Akers,
487 B.R. 326 (D.D.C. 2012) ..................................................................................................... 16
v

In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d),
830 F. Supp. 2d 114 (E.D. Va. 2011) ................................................................................. 30, 49
In re Application of the United States,
405 F. Supp. 2d 435 (S.D.N.Y. 2005)....................................................................................... 43
In re Application of the United States,
411 F. Supp. 2d 678 (W.D. La. 2006)....................................................................................... 43
In re Application of the United States,
433 F. Supp. 2d 804 (S.D. Tex. 2006) ...................................................................................... 43
In re Application of the United States,
460 F. Supp. 2d 448 (S.D.N.Y. 2006)....................................................................................... 43
In re Application of the United States,
622 F. Supp. 2d 411 (S.D. Tex. 2007) ...................................................................................... 43
In re Application of the United States,
632 F. Supp. 2d 202 (E.D.N.Y. 2008) ...................................................................................... 42
In re Directives,
551 F.3d 1004 (FISC-R 2008) .................................................................................................. 52
In re Grand Jury Proceedings,
827 F.2d 301 (8th Cir. 1987) .............................................................................................. 33, 49
In re Motion for Release of Court Records,
526 F. Supp. 2d 484 (F.I.S.C. 2007) ........................................................................................... 5
In re Navy Chaplaincy,
697 F.3d 1171 (D.C. Cir. 2012) ................................................................................................ 18
In re Sealed Case,
310 F.3d 717 (F.I.S.C.-R. 2002) ............................................................................. 51, 54, 55, 63
In re Subpoena Duces Tecum,
228 F.3d 341 (4th Cir. 2000) .................................................................................................... 33
Jack's Canoes & Kayaks, LLC v. NPS,
933 F. Supp. 2d 58 (D.D.C. 2013) ...................................................................................... 18, 19
Katz v. United States,
389 U.S. 347 (1967) .................................................................................................................. 45

vi

Jewel v. NSA,
2013 WL 3829405 (N.D. Cal. July 23, 2013) ..................................................................... 27, 31
Krieger v. DOJ,
529 F. Supp. 2d 29 (D.D.C. 2008) ............................................................................................ 58
Laird v. Tatum,
408 U.S. 1 (1972) ................................................................................................................ 24, 56
Lorillard v. Pons,
434 U.S. 575 (1978) .................................................................................................................. 38
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ............................................................................................................ 19, 20
Lyles v. Micenko,
469 F. Supp. 2d 68 (D.D.C. 2006) ............................................................................................ 61
Maryland v. King,
133 S. Ct. 1958 (2013) .............................................................................................................. 51
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,
132 S. Ct. 2199 (2012). ................................................................................................. 27, 28, 31
Mathews v. Eldridge,
424 U.S. 319 (1976) .................................................................................................................. 62
Mazurek v. Armstrong,
520 U.S. 968 (1997) .................................................................................................................. 18
Medtronic v. Sofamor Danek, Inc. v. Michaelson,
229 F.R.D. 550 (W.D. Tenn. 2003) .......................................................................................... 33
Minnesota v. Carter,
525 U.S. 83 (1998) .................................................................................................................... 49
Miniter v. Moon,
684 F. Supp. 2d 13 (D.D.C. 2010) ............................................................................................ 16
Monsanto Co. v. Geertson Seed Farms,
130 S. Ct. 2743 (2010) .............................................................................................................. 20
Munaf v. Geren,
553 U.S. 674 (2008) .................................................................................................................. 17
NAACP v. Alabama ex rel. Patterson,
357 U.S. 449 (1958) ............................................................................................................ 58, 59
vii

Nat'l Treasury Emps. Union v. Von Raab,
489 U.S. 656 (1989) ............................................................................................................ 50, 52
NRDC v. Pena,
147 F.3d 1012 (D.C. Cir. 1998) ................................................................................................ 25
NLRB v Amax Coal Co.,
453 U.S. 322 (1981) .................................................................................................................. 34
Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340 (1978) .................................................................................................................. 32
Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. de C.V.,
901 F. Supp. 2d 54 (D.D.C. 2012) ............................................................................................ 18
Okla. Press Publ'g Co. v. Walling,
327 U.S. 186 (1946) .................................................................................................................. 34
Rakas v. Illinois,
439 U.S. 128 (1978) .................................................................................................................. 49
Reporters Comm. for Freedom of the Press v. AT&T,
593 F.2d 1030 (D.C. Cir. 1978) .......................................................................................... 46, 56
Scott v. United States,
436 U.S. 128 (1978) .................................................................................................................. 54
SEC v. Jerry T. O'Brien, Inc.,
467 U.S. 735 (1984) .................................................................................................................. 47
Sherley v. Sebelius,
644 F.3d 388 (D.C. Cir. 2011) .................................................................................................. 18
Sierra Club v. Johnson,
374 F. Supp. 2d 30 (D.D.C. 2005) ............................................................................................ 18
Simms v. Dist. of Columbia,
872 F. Supp. 2d 90 (D.D.C. 2012) ............................................................................................ 61
Smith v. Maryland,
442 U.S. 735 (1979) ........................................................................................................ 4, 46, 47
Stand Up for California! v. U.S. Dep't of Interior,
919 F. Supp. 2d 51 (D.D.C. 2013) ...................................................................................... 24, 25
Steagald v. United States,
451 U.S. 204 (1981) .................................................................................................................. 49
viii

Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622 (1994) .................................................................................................................. 60
United Presbyterian Church in the USA v. Reagan,
738 F.2d 1375 (D.C. Cir. 1984) ................................................................................................ 24
United States v. Abu-Jihaad,
630 F.3d 102 (2d Cir. 2010)...................................................................................................... 40
United States v. Baxter,
492 F.2d 150 (9th Cir. 1973) .................................................................................................... 46
United States v. Bin Laden,
126 F. Supp. 2d 264 (S.D.N.Y. 2000)....................................................................................... 54
United States v. Booker,
2013 WL 2903562 (N.D. Ga. June 13, 2013) ........................................................................... 43
United States v. Campa,
529 F.3d 980 (11th Cir. 2008) .................................................................................................. 40
United States v. Covello,
410 F.2d 536 (2d Cir. 1969)...................................................................................................... 46
United States v. Doe,
537 F. Supp. 838 (E.D.N.Y. 1982) ........................................................................................... 46
United States ex rel. Shea v. Verizon Bus. Network Servs., Inc.,
904 F. Supp. 2d 28 (D.D.C. 2012) ............................................................................................ 21
United States v. Figueroa,
757 F.2d 466 (2d Cir. 1985)...................................................................................................... 54
United States v. Fithian,
452 F.2d 505 (9th Cir. 1971) .................................................................................................... 46
United States v. Forrester,
512 F.3d 500 (9th Cir. 2008) .................................................................................................... 49
United States v. Gallo,
123 F.2d 229 (2d Cir. 1941)...................................................................................................... 46
United States v. Hill,
459 F.3d 966 (9th Cir. 2006) .................................................................................................... 33

ix

United States v. Jones,
132 S. Ct. 945 (2012) .......................................................................................................... 45, 48
United States v. Kahn,
415 U.S. 143 (1974) .................................................................................................................. 54
United States v. Miller,
425 U.S. 435 (1976) .................................................................................................................. 47
United States v. Qing Li,
2008 WL 789899 (S.D. Cal. Mar. 20, 2008) ............................................................................ 49
United States v. R. Enters., Inc.,
498 U.S. 292 (1991) ............................................................................................................ 33, 39
United States v. Rigmaiden,
2013 WL 1932800 (D. Ariz. May 8, 2013) .............................................................................. 49
United States v. U.S. Dist. Court (Keith),
407 U.S. 297 (1972) ............................................................................................................ 35, 51
United States v. Upham,
168 F.3d 532 (1st Cir. 1999) ..................................................................................................... 33
United States v. Van Leeuwen,
397 U.S. 249 (1970) .................................................................................................................. 49
United States v. Verdugo-Urquidez,
494 U.S. 259 (1990) .................................................................................................................. 53
U.S. Telecom Ass'n v. FCC,
227 F.3d 450 (D.C. Cir. 2000) .................................................................................................. 48
Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc.,
454 U.S. 464 (1982) .................................................................................................................. 19
Vernonia Sch. Dist. 47J v. Acton,
515 U.S. 646 (1995) ............................................................................................................ 50, 52
Winter v. NRDC,
555 U.S. 7 (2008) ............................................................................................................... passim
Zurcher v. Stanford Daily,
436 U.S. 547 (1978) .................................................................................................................. 56

x

STATUTES
5 U.S.C. § 701(a)(1) ................................................................................................................ 27, 28
5 U.S.C. § 706 ............................................................................................................................... 26
5 U.S.C. § 702 ........................................................................................................................ passim
18 U.S.C. § 2701 ........................................................................................................................... 27
18 U.S.C. § 2702 ........................................................................................................................... 26
18 U.S.C. § 2703 ........................................................................................................................... 43
18 U.S.C. § 2707 ........................................................................................................................... 26
18 U.S.C. § 2712 ......................................................................................................... 26, 27, 30, 31
18 U.S.C. § 3127 ............................................................................................................................. 8
50 U.S.C. § 1801(h) ...................................................................................................................... 54
50 U.S.C. § 1803 ..................................................................................................................... 5, 6, 7
50 U.S.C. § 1805 ........................................................................................................................... 43
50 U.S.C. § 1806 ........................................................................................................................... 30
50 U.S.C. § 1825 ........................................................................................................................... 30
50 U.S.C. § 1841 ............................................................................................................................. 8
50 U.S.C. § 1842 ................................................................................................................. 8, 44, 45
50 U.S.C. § 1845 ........................................................................................................................... 30
50 U.S.C. § 1861 .................................................................................................................... passim
50 U.S.C. § 1862 ..................................................................................................................... 13, 40
50 U.S.C. § 1871 ........................................................................................................................... 13
50 U.S.C. § 1881a .................................................................................................................. passim
RULES
Fed. R. Civ. P. 26(b)(1)................................................................................................................. 36
xi

Fed. R. Crim. P. 41(e)(2)(B) ......................................................................................................... 33
REGULATIONS
47 C.F.R. § 42.6 ............................................................................................................................ 42

xii

INTRODUCTION
One of the greatest challenges the United States faces in combating international
terrorism and preventing potentially catastrophic terrorist attacks on our country is identifying
terrorist operatives and networks, particularly those operating within the United States. The
Government’s exploitation of terrorist communications is a critical tool in this effort. Plaintiffs
in these cases ask this Court to preliminarily enjoin important means by which the National
Security Agency (NSA) has gathered information about communications among known and
unknown terrorist actors in order to thwart future terrorist attacks. That request should be
denied.
In Plaintiffs’ telling, these activities constitute a single “mass surveillance program,”
called PRISM, in which the Government collects both “metadata” about and the contents of
Americans’ telecommunications, and exploits this information “to build comprehensive profiles
of ordinary Americans” revealing intimate details about their lives and personal associations.
Plaintiffs challenge these alleged intelligence-gathering activities—as they describe them—as
exceeding the Government’s authority under the Foreign Intelligence Surveillance Act (FISA),
and as contrary to constitutional rights. But the defining characteristic of Plaintiffs’ challenge is
a complete lack of supporting evidence. Relying entirely on unsubstantiated allegations in their
complaints, unverified media reports, and speculation, they allege that Government conduct for
which they offer no proof has inflicted injury upon them for which they present no evidence.
In the wake of unauthorized disclosures about intelligence-gathering activities conducted
by the NSA, the Government has acknowledged the existence and certain details of NSA
counter-terrorism programs that appear to be implicated by Plaintiffs’ allegations—although they
bear no resemblance to the program of “mass surveillance” that Plaintiffs allege. First, under a
provision of FISA known as Section 215, the NSA obtains, pursuant to orders of the Foreign

Intelligence Surveillance Court (FISC), bulk telephony metadata—business records created by
telecommunications service providers that include such information as the telephone numbers
placing and receiving calls, and the time and duration of those calls. The Government does not
collect, listen to, or record the content of any call under this program, nor does it collect the
name, address, or financial information of any subscriber, customer, or party to a call. The
program operates under FISC-imposed restrictions, together with stringent supervision and
oversight by all three branches of Government, to prevent access to, use, or dissemination of the
data for any purpose other than foreign intelligence. Specifically, the NSA may only query the
collected metadata for counter-terrorism purposes, and even then, only if there is a reasonable,
articulable suspicion that the selection term (e.g., the telephone number) to be queried is
associated with a specified foreign terrorist organization approved for targeting by the FISC.
This requirement bars the type of indiscriminate querying of the metadata, using identifiers not
connected with terrorist activity, to create “comprehensive profiles” of ordinary Americans’ lives
as Plaintiffs speculate. As a result, only a tiny fraction of the collected metadata is ever
reviewed, much less disseminated, by NSA analysts.
The NSA uses targeted electronic searches of these data, based on telephone numbers or
other identifiers associated with foreign terrorist organizations, to reveal communications
between known or suspected terrorists and previously unknown terrorist operatives, located in
this country, who may be planning attacks on U.S. soil. Information gleaned from analysis of
bulk telephony metadata obtained under this program has made important contributions to the
FBI’s counter-terrorism mission. The bulk collection of telephony metadata for these purposes
has been authorized and periodically reauthorized over the past seven years under thirty-five
separate orders issued by fifteen separate judges of the FISC. In two recent opinions (Exhibits A

2

and B, hereto),1 the FISC concluded that the telephony metadata program is authorized by
statute, and lawful under the Constitution.
Second, the Government has also publicly revealed certain information about its use of
authority conferred by section 702 of the FISA, to collect, for foreign intelligence purposes,
certain communications of non-U.S. persons located outside the United States, pursuant to
approval of the FISC. This includes the collection now publicly referred to as “PRISM.” Before
authorizing collection under Section 702, the FISC must find that the Government has
procedures in place (i) to ensure that only non-U.S persons abroad will be targeted, and (ii) to
prevent the unwarranted retention or dissemination of information about U.S. persons (or their
communications) that may be incidentally collected. NSA’s retention and dissemination of
communications thus acquired is governed by minimization procedures that the FISC has
approved as consistent with FISA’s requirements and the Fourth Amendment.
Finally, the Government has also declassified and officially acknowledged the existence
of a FISC-authorized program involving collection and analysis, for foreign intelligence
purposes, of non-content bulk Internet metadata (such as the “to” and “from” lines of an e-mail,
and the date and time an e-mail was sent) carried out under the “pen register, trap and trace”
provision of FISA. This program—which was discontinued in 2011—was conducted under FISC
orders requiring the Government to comply with minimization procedures that prohibited access
to the data except for purposes of queries using selection terms reasonably suspected of being
associated with foreign terrorist organizations (as in the case of bulk telephony metadata).

1

In re Application of the FBI for an Order Requiring the Production of Tangible Things
from [Redacted], BR 13-109, Amended Memorandum Opinion August 29, 2013 (Aug. 29 FISC
Op.) (Exh. A, hereto); In re Application of the FBI for an Order Requiring the Production of
Tangible Things from [Redacted], BR 13-158, Memorandum, October 11, 2013 (Oct. 11 FISC
Op.) (Exh. B, hereto).
3

Plaintiffs’ motions for preliminary relief are based entirely on misconceptions and
conjecture about the scope of these activities, and potential misuse of the information acquired.
As a threshold matter, Plaintiffs offer no proof that any metadata about their communications, or
the contents of their communications, have ever been collected by the NSA, much less exploited
to expose intimate details about their personal lives and associations. That being the case, they
can neither establish their standing to maintain these actions in the first place, nor make the
showing of irreparable harm required to obtain preliminary injunctive relief.
Plaintiffs also fail to show any likelihood of success on the merits of their claims. Their
contention that the Government’s alleged conduct exceeds its statutory authority under FISA is
precluded, inter alia, by FISA’s detailed scheme for judicial review of specified intelligence
activities. In any event, as the FISC has repeatedly (and twice recently) found, the Government’s
bulk collection of telephony metadata is lawful under FISA because there are reasonable grounds
for believing that such data as a whole are relevant to authorized FBI counter-terrorism
investigations. The FISC has similarly authorized the NSA’s PRISM collection of non-U.S.
person communications, and prior collection of bulk Internet metadata, as consistent with FISA.
Plaintiffs’ Fourth Amendment challenge to the NSA’s collection of communications
metadata is foreclosed by the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735
(1979), which held that there is no reasonable expectation of privacy in such non-content
information. And as the FISC has held, the Government’s procedures for collecting
communications of non-U.S. persons located abroad under Section 702 also comport with Fourth
Amendment requirements. Plaintiffs’ First Amendment claim rests entirely on their hypothetical
premise—inconsistent with FISC-imposed safeguards—that the Government uses the
communications information it acquires to track their activities and interpersonal relationships.
But no parallel can be drawn between the alleged intelligence-gathering activities Plaintiffs seek
4

to put at issue here and cases in which individuals or organizations were compelled to disclose
personally identifying information, or membership lists, based on their protected associational
activities. Plaintiffs cite no authority for their meritless due-process claim.
In sum, the NSA’s collection of communications metadata, and of communications
acquired by targeting foreign persons located abroad, are important tools in the Government’s
counter-terrorism arsenal, and are lawful. Unsubstantiated conjecture about how these programs
might be abused, without regard to the safeguards against such abuse, and without evidence that
Plaintiffs have suffered irreparable injury, does not justify the extraordinary remedy of
preliminary injunctive relief. Plaintiffs’ motions for preliminary injunctions should be denied.
STATEMENT OF FACTS
I.

STATUTORY BACKGROUND
Congress enacted FISA to authorize and regulate certain governmental surveillance of

communications and other activities for purposes of gathering foreign intelligence. In enacting
FISA, Congress also created the FISC, an Article III court of 11 appointed U.S. district judges
with authority to consider applications for and grant orders authorizing electronic surveillance
and other forms of intelligence-gathering by the Government. 50 U.S.C. § 1803(a); see In re
Motion for Release of Court Records, 526 F. Supp. 2d 484, 486 (F.I.S.C. 2007).
Plaintiffs’ various allegations implicate different provisions of FISA. First, FISA’s
“business records” provision, 50 U.S.C. § 1861, enacted by section 215 of the USA PATRIOT
Act, Pub. L. No. 107-56, 115 Stat. 272 (2001) (Section 215), authorizes the FISC to issue an
order for the “production of any tangible things (including books, records, papers, documents,
and other items) for an investigation [1] to obtain foreign intelligence information not concerning
a United States person or [2] to protect against international terrorism” (provided, in the case of a
counter-terrorism investigation of a “United States person,” that “such investigation . . . is not
5

conducted solely upon the basis of activities protected by the first amendment to the
Constitution”). 50 U.S.C. § 1861(a)(1). The records must be of a type obtainable by either a
grand jury subpoena, or an order issued by a U.S. court directing the production of records or
tangible things. Id. § 1861(c)(2)(D).
The Government’s application for an order under Section 215 must include, among other
things, a statement of facts showing that there are “reasonable grounds to believe that the
tangible things sought are relevant to an authorized investigation . . . to obtain foreign
intelligence information not concerning a United States person or to protect against international
terrorism.” Id. § 1861(b)(2)(A). The investigation must be authorized and conducted under
guidelines approved by the Attorney General under Executive Order 12333 (or a successor
thereto). Id. § 1861(a)(2)(A), (b)(2)(A). Information acquired from the records or other tangible
items received in response to a Section 215 order “concerning any United States person may be
used and disclosed by [the Government] without the consent of [that] person only in accordance
with . . . minimization procedures,” adopted by the Attorney General and enumerated in the
Government’s application, that “minimize the retention, and prohibit the dissemination, of
nonpublicly available information concerning unconsenting United States persons consistent
with the [Government’s] need . . . to obtain, produce, and disseminate foreign intelligence
information.” Id. § 1861(b)(2)(B), (g)(2), (h). The FISC must find that these requirements have
been met before it issues the requested order, which in turn must direct that the minimization
procedures described in the application be followed. Id. § 1861(c)(1).
Section 215 includes a scheme providing for judicial review of a business records order
once it is granted, but only in limited circumstances. Specifically, it allows “[a] person receiving
a production order [to] challenge the legality of that order” by filing a petition with the “review
pool” of FISC judges designated under 50 U.S.C. § 1803(e)(1) to review production orders under
6

Section 215. Id. § 1861(f)(1), (2)(A)(i). A “pool” judge considering a petition to modify or set
aside a production order may grant the petition if the judge finds that the order does not meet the
requirements of Section 215 or “is otherwise unlawful.” Id. § 1861(f)(2)(B). Thus, a production
order can be set aside if it exceeds the authority conferred by Section 215 or is unconstitutional.
1 D. Kris & J. Wilson, National Security Investigations & Prosecutions § 19:10 at 714 (2d ed.
2012) (Kris & Wilson). Either the Government or a recipient of a production order may appeal
the decision of the pool judge to the FISC Court of Review, with review available thereafter on
writ of certiorari in the Supreme Court. 50 U.S.C. § 1861(f)(3); see id. § 1803(b). Section 215’s
carefully circumscribed provisions for judicial review were added when Congress reauthorized
the USA PATRIOT Act in 2006, and these provisions authorized contested litigation before the
FISC for the first time. 1 Kris & Wilson § 5:5, 19:7 (2d ed. 2012). The FISA does not provide
for review of Section 215 orders at the behest of third parties.
Plaintiffs’ claims also appear to put at issue section 702 of the FISA, enacted by the FISA
Amendments Act of 2008, Pub. L. 110-261, § 101(a)(2), 122 Stat. 2436, codified at 50 U.S.C.
§ 1881a (Section 702). Section 702 provides that the Attorney General and the Director of
National Intelligence (DNI) may authorize jointly, for up to one year, the “targeting of persons
reasonably believed to be located outside the United States to acquire foreign intelligence
information.” Id. § 1881a(a). The statute expressly stipulates that the Government “may not
intentionally target any person known at the time of acquisition to be located in the United
States,” “may not intentionally target a person reasonably believed to be located outside the
United States if the purpose of such acquisition is to target a particular, known person reasonably
believed to be in the United States,” and “may not intentionally target a United States person
reasonably believed to be located outside the United States.” Id. § 1881a(b). Like Section 215,

7

Section 702 provides a right of judicial review of a Section 702 directive to a recipient of a
directive. Id. § 1881a(h)(4), (6).
Before the Attorney General and the DNI may authorize the targeting of foreign persons
abroad under the statute, they must first obtain (absent exigent circumstances) a FISC order
approving the authorization. See id. § 1881a(a) & (i)(3). Section 702 requires the FISC to find
that the Government’s targeting procedures are reasonably designed to ensure that only non-U.S.
persons who are outside the United States will be targeted in any Section 702 acquisition. See id.
§ 1881a(e). To the extent that a Section 702 acquisition results in the incidental collection of
information concerning U.S. persons (such as those, e.g., communicating with the target of the
surveillance), Section 702 addresses that circumstance in the same fashion as the original FISA:
it requires the application of FISC-approved minimization procedures designed to prevent the
unwarranted retention or dissemination of such information. See id.
Finally, FISA’s so-called “pen/trap” provision may also be implicated by Plaintiffs’
claims regarding bulk collection of Internet metadata. Similar in structure to Section 215, the
pen/trap statute authorizes the FISC, upon application by the Government, to issue an order
“approving the installation and use of a pen register or trap and trace device,” see 50 U.S.C.
§ 1841(2); 18 U.S.C. § 3127(3), (4), to obtain information relevant to authorized FBI counterterrorism investigations. 50 U.S.C. § 1842(a)(1), (c)(2).
I.

THE COLLECTION OF INFORMATION AUTHORIZED BY FISA
A. Collection of Bulk Telephony Metadata Under Section 215
Plaintiffs first challenge the NSA’s collection and analysis of bulk telephony metadata to

discover communications with and among unknown terrorist operatives. Under this program, the
FBI obtains orders from the FISC pursuant to Section 215 directing certain telecommunications
service providers to produce to the NSA on a daily basis electronic copies of “call detail records,
8

or ‘telephony metadata,’” Oct. 11, FISC Mem., Primary Order at 3-4, created by the recipient
providers for calls to, from, or wholly within the United States. The NSA then stores, (and in
limited circumstances) queries, and analyzes the metadata for counter-terrorism purposes. Under
the terms of the FISC’s orders, the NSA’s authority to continue the program expires after 90
days and must be renewed. The FISC first authorized the program in May 2006, and since then
has renewed the program thirty-five times under orders issued by fifteen different FISC judges.
Declaration of Teresa H. Shea (Shea Decl.) ¶¶ 13-14, 16-17, 20 (Exh. C, hereto); Declaration of
Robert J. Holley (Holley Decl.) ¶¶ 3, 6 (Exh. D, hereto); Aug. 29 FISC Op. at 29; Oct. 11 FISC
Mem. at 2-6; see also 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) (Exhibit E,
hereto) at 3-4, 17; id., Secondary Order (Exhibit F, hereto) at 1-2, 4.
Under the FISC’s orders, telephony metadata is defined 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 call.” Primary Order at 3 n.1. By the express terms of the
FISC’s orders, “[t]elephony metadata does not include the name, address, or financial
information of a subscriber or customer.” Id.; Secondary Order at 2. The data are numerical
only. The FISC’s orders do not allow the NSA to obtain the name, address, or financial
information of a subscriber, customer, or any party to a call. Nor do they permit the
Government, under this program, to listen to or record the contents of any telephone
conversations. Shea Decl. ¶¶ 13, 15, 18; Holley Decl. ¶¶ 7, 11.
The Government obtains these FISC orders by submitting detailed applications from the
FBI explaining that the records are sought for investigations to protect against international
9

terrorism that concern specified foreign terrorist organizations identified in the application.
Holley Decl. ¶ 10; see 50 U.S.C. § 1861(a)(1), (b)(2)(A). As required by Section 215, the
application contains a statement of facts showing that there are reasonable grounds to believe
that the metadata as a whole are relevant to the investigations of these organizations. The
application is supported by a declaration from a senior official of NSA’s Signals Intelligence
Directorate. Holley Decl. ¶ 10. FISC orders authorizing the NSA’s collection of the metadata
are in turn predicated on findings by the Court that there are “reasonable grounds to believe that
the [records] sought are relevant to authorized investigations . . . being conducted by the FBI . . .
to protect against terrorism.” See Primary Order at 1-2; Aug. 29 FISC Op. at 28.
As also required by Section 215, the FISC’s orders direct the Government to comply with
“minimization procedures” that strictly limit access to and review of the metadata, and limit
dissemination of information derived from the data, to valid counter-terrorism purposes. See
50 U.S.C. § 1861(b)(2)(B), (g), (h); Primary Order at 4-17; Holley Decl. ¶ 8; Shea Decl.
¶¶ 29-35. Under these restrictions, NSA analysts may access the metadata only for purposes of
obtaining foreign intelligence information, and may do so only through “contact-chaining”
queries (electronic term searches) of the metadata using identifiers (typically telephone numbers)
approved as “seeds” by one of twenty-two designated officials in NSA’s Signals Intelligence
Directorate. Such approval may only be given upon a determination that, based on the factual
and practical considerations of everyday life on which reasonable and prudent persons act, there
are facts giving rise to a reasonable, articulable suspicion that a selection term used to query the
database is associated with one or more foreign terrorist organizations previously identified to
and approved for targeting by the FISC. Where the selection term is reasonably believed to be
used by a U.S. person, NSA’s Office of General Counsel must also determine that the term is not
regarded as associated with a foreign terrorist group solely on the basis of activities protected by
10

the First Amendment. These determinations are effective for finite periods of time. Shea Decl.
¶¶ 19-23, 31; Primary Order at 6-9. This “reasonable, articulable suspicion” requirement bars
the indiscriminate querying of the telephony metadata based on identifiers not connected with
terrorist activity. Indeed, because of this requirement, the vast majority of the data obtained
under this program are never seen by any person; only the tiny fraction of the records responsive
to queries authorized under the “reasonable, articulable suspicion” standard are reviewed or
disseminated by NSA analysts. Shea Decl. ¶¶ 20, 23.
Also under the FISC’s orders, the accessible results of an approved query are limited to
records of communications within three “hops” from the seed. That is, the query results may
only include identifiers and associated metadata having a direct contact with the seed (the first
“hop”), identifiers and associated metadata having a direct contact with first “hop” identifiers
(the second “hop”), and identifiers and associated metadata having a direct contact with second
“hop” identifiers (the third “hop”). Id. ¶¶ 22, 31. Query results do not include the names or
addresses of individuals associated with the responsive telephone numbers, because that
information is not included in the database in the first place. Id. ¶ 21.
The NSA’s ability under this program to accumulate metadata in bulk, and to quickly
conduct contact-chaining analyses beyond the first hop, is crucial to the utility of the database.
These capabilities allow the NSA to use the database to conduct a level of historical analysis, and
to discover contact links, that cannot practically be accomplished through targeted intelligencegathering authorities. For example, the metadata may reveal that a seed telephone number has
been in contact with a previously unknown U.S. telephone number. Examining the chain of
communications out to the second and in some cases a third hop may reveal a contact with other
telephone numbers already known to be associated with a foreign terrorist organization, thus
establishing that the previously unknown telephone number is itself likely associated with
11

terrorism. This type of contact-chaining is possible because the bulk collection of telephony
metadata under the program creates an historical repository that permits retrospective analysis of
terrorist-related communications across multiple telecommunications networks, and that can be
immediately accessed as new terrorist-associated telephone identifiers come to light. Id. ¶¶ 4649, 57-63; Holley Decl. ¶¶ 27-29.
Plaintiffs speculate that metadata collected under the program is being used to compile
“rich comprehensive profile[s]” of every citizen, including “intimate details” about their lives
and personal associations, see Pls.’ Mem. in Supp. of their Mot. for Prelim. Inj., No. 13-cv-0851,
ECF No. 13-1 (Klayman I Br.), at 11, but these anxieties are unfounded. Under the FISC’s
orders, the data may be queried, and the results may be shared, only to allow Government
investigators to discover persons, including persons (and their associates) located in the United
States, who have been in contact with known or suspected terrorist organizations, see Primary
Order at 4, and may themselves be engaged in terrorist activity. The NSA does not use the data
to provide the FBI with profiles on suspected terrorists (or anyone else), or comprehensive
records of their associations. Nor does it provide the FBI with a list of all identifiers directly or
indirectly connected (at one, two, and three hops) with a suspected terrorist identifier. Rather, it
applies the tools of signals intelligence tradecraft to focus only on those identifiers which, based
on the NSA’s analytic judgment and experience, and other intelligence available to it, may be of
use to the FBI in detecting persons in the United States who may be associated with the specified
foreign terrorist organizations, and acting in furtherance of their goals. Shea Decl. ¶¶ 26, 28.
In addition to these, the NSA’s activities under the FISC’s orders are subject to an
extensive regime of internal reporting, audits, and oversight; regular consultation with the NSA
Office of the Inspector General, and the Department of Justice, to assess compliance with FISC
orders; and monthly reports to the FISC including, inter alia, a discussion of NSA’s application
12

of the “reasonable, articulable suspicion” standard and the number of times that query results
containing U.S. person information have been shared with anyone outside NSA. Id. at 4-16.2
The Government has recently made public (and Plaintiffs have pointed to) FISC orders
and opinions concerning various failures to fully implement and comply with these minimization
procedures, owing to human error and technological issues, that were discovered in 2009. The
Government reported these problems to the FISC (and Congress) and remedied them, and the
FISC (after temporarily suspending the Government’s authority to query the database without the
court’s approval) reauthorized the program in its current form.3 Shea Decl. ¶¶ 36-43.
B. Targeted Collection of Communications Content Pursuant to Section 702
Plaintiffs’ allegations also appear to put at issue the targeted collection of electronic
communications under Section 702 of the FISAunder the PRISM collection. Although Plaintiffs
offer no evidence to support their allegations about this program, the Government has
acknowledged the following facts concerning this activity: Section 702 facilitates the targeted
acquisition of foreign intelligence information concerning foreign targets located outside the
United States under court oversight. Electronic communication service providers supply
information to the Government pursuant to authorized directives issued by the Attorney General
and the DNI. ODNI Fact Sheet at 1 (June 8, 2013) (Exh. G, hereto); see 50 U.S.C. §
2

FISA also requires the Government to report to Congress regarding the use of its
Section 215 authority, including copies of significant FISC orders and the Government’s
supporting pleadings. 50 U.S.C. §§ 1862, 1871.
3

Among the most serious compliance problems was an “alert list” process by which
telephone identifiers that had been associated with foreign terrorist organizations, but which in
many cases had not been approved under the “reasonable, articulable suspicion” standard, were
used, not as terms to query the metadata archive, but to alert analysts if identifiers associated
with foreign terrorist groups were in contact with someone in the United States. Analysts could
not query the database using these “alert list” identifiers to learn what numbers they had been in
contact with unless and until they were approved under the “reasonable, articulable suspicion”
standard. Shea Decl. ¶ 37. (Other compliance incidents have occurred since 2009, due to human
error and technology issues, although not on the same scale as the incidents discovered in 2009.
All have likewise been reported to the FISC and appropriately remedied).
13

1881a(h)(1). Once targeted surveillance under Section 702 has been authorized, the NSA takes
the lead in tasking relevant telephone and electronic communications selectors to target specific
non-US persons reasonably believed to be located outside the United States. IC’s Collection
Programs Under Title VII of the FISA, at 3 (Exh. H, hereto). Consistent with the statute, the
NSA’s targeting procedures require that there be an appropriate, documented foreign intelligence
purpose for the acquisition (such as for the prevention of terrorism, hostile cyber activities, or
nuclear proliferation) and that the selector be used by a non-U.S. person reasonably believed to
be located outside the United States. Id.; ODNI Fact Sheet at 1.
Once a target has been approved, the NSA uses two means to acquire the target’s
electronic communications. First, it acquires such communications directly from U.S.-based
providers. This has been publicly referred to as the NSA’s PRISM collection. Second, in
addition to collection directly from providers, the NSA collects electronic communications as
they transit internet “backbone” facilities within the United States. This is known as “upstream”
collection. See IC’s Collection Programs Under Title VII of the FISA, at 3-4; Oct. 3, 2011 FISC
Op., 2011 WL 10945618, at *9 & n.24.
Acquired communications are routed to the NSA, and the NSA can designate
communications from specified selectors acquired through PRISM collection to be dual-routed
to other intelligence agencies. Each agency that receives the collection has its own FISCapproved minimization procedures and may retain and disseminate communications acquired
under Section 702 only in accordance with those procedures. In general, before an agency may
disseminate information identifying a U.S. person, the information must reasonably appear to be
foreign intelligence or evidence of a crime, or necessary to understand or assess foreign
intelligence information. IC’s Collection Programs Under Title VII of the FISA at 4. The FISC
has approved the NSA’s minimization procedures for collections under Section 702. See Aug.
14

24, 2012 FISC Op., 2012 WL 9189263, at *2-3; Nov. 30, 2011 FISC Op., 2011 WL 10947772;
Oct. 3, 2011 FISC Op., 2011 WL 10945618.4 Finally, the NSA’s Section 702 collection
activities are subject to extensive oversight by all three branches of the Government. ODNI Fact
Sheet at 1-3; IC’s Collection Programs Under Title VII of the FISA at 4-5.
C. Bulk Collection of Internet Metadata
Plaintiffs have also alleged unlawful collection by the Government of bulk Internet
metadata. In addition to recent official declassification of the existence of the FISC-authorized
collection of bulk telephony metadata under Section 215, the Government has also recently
declassified the existence of FISC-authorized bulk collection of Internet metadata—that is,
certain routing, addressing, and signaling information about Internet-based electronic
communications such as e-mail. As explained in a recently released report to Congress, the
Government at one time acquired bulk Internet metadata under orders issued by the FISC
pursuant to FISA’s pen/trap provision. See Report on the [NSA’s] Bulk Collection Programs for
USA PATRIOT Act Reauthorization (Exh. I, hereto) at 3.5 The data collected included certain
routing, addressing, and signaling information such as “‘to’ and ‘from’ lines in an e-mail . . . and
the date and time an e-mail [was] sent,” but not “the content of [an] e-mail [or] the ‘subject’
line.” Id. at 3. NSA collected large amounts of this transactional information from certain
telecommunications service providers and analyzed it to obtain foreign intelligence information.

4

In an opinion issued on October 3, 2011, the FISC found the NSA’s minimization
procedures as applied to one aspect of the proposed collection—NSA’s upstream collection of
internet transactions containing multiple communications, or “MCTs”—deficient. Oct. 3, 2011
FISC Op., 2011 WL 10945618. The FISC subsequently determined that the NSA adequately
remedied the deficiencies such that the procedures met the applicable statutory and constitutional
requirements, and allowed the collection to continue. Aug. 24, 2012 FISC Op., 2012 WL
9189263, at *2-3; Nov. 30, 2011 FISC Op., 2011 WL 10947772. See also IC’s Collection
Programs Under Title VII of the FISA at 5.
5

This 2011 report, and a similar briefing paper in 2009, were provided by the Department
of Justice to the Senate and House Intelligence Committees. See infra at 38 & n.23.
15

Id. at 2. The FISC’s orders authorizing this collection required the Government to comply with
“minimization procedures” limiting the retention and dissemination of the metadata, including a
requirement of “reasonable articulable suspicion” that selection terms used to query the bulk data
were associated with foreign terrorist organizations. Id. at 3. This program of bulk Internet
metadata collection was terminated in 2011, for operational and resource reasons. Letter from
James R. Clapper to the Hon. Ron Wyden (July 25, 2013) (Exh. J, hereto), at 3.
III.

PLAINTIFFS’ ASSERTIONS IN THEIR PRELIMINARY INJUNCTION
MOTIONS
According to Plaintiffs’ submissions, Plaintiff Larry Klayman is an attorney and the

founder, chairman, and general counsel of Freedom Watch, a public interest organization
engaged in political activism. See Klayman I Br. at 12. He and his co-Plaintiffs, Charles and
Mary Ann Strange, who are the parents of a U.S. Navy Seal Team Six member killed in
Afghanistan in 2011, id. at 14, allege that a “secret and illicit government scheme” of “mass
surveillance” “systematically gather[s], intercept[s] and analyze[s] vast quantities of telephonic
and online ‘metadata’ of U.S. citizens,” Pls.’ Mem. in Supp. of their Mot. for Prelim. Inj., No.
13-cv-0881, ECF No. 10-1 (Klayman II Br.), at 1, and that electronic communications service
providers have given the NSA “blanket access to [their] vast databases,” id. at 3, so “the
government collects and stores every internet communication made through the major online
services . . . .” Id. at 27.6 Plaintiffs alleged that the NSA is using this information “to build

6

Almost all of Plaintiffs’ assertions about the nature and extent of the challenged
programs are based on unsubstantiated allegations in their complaints or unverified online media
reports. Such evidence is insufficient to support the issuance of a preliminary injunction. See In
re Akers, 487 B.R. 326, 331 (D.D.C. 2012) (denying preliminary injunction motion that “only
set[ ] forth insufficient conclusory assertions of wrong”); Miniter v. Moon, 684 F. Supp. 2d 13,
16 (D.D.C. 2010) (“As the plaintiff has offered no evidence from which the court could assess
the merits of his arguments, he has failed to demonstrate a likelihood of success on the merits of
his claim.”). This is especially true to the extent that Plaintiffs seek to rely on these sources to
support allegations about the scope and conduct of classified intelligence-gathering activities.
16

comprehensive profiles of ordinary Americans,” including their “personal associations” and
“extremely sensitive details” about them. Id. at 2. Plaintiffs also claim that “it is logical to
conclude that Plaintiff Klayman is subjected to excessive and intrusive surveillance and
monitoring by the NSA,” in order to “coerce” and “intimidate” him “into silence,” because “it is
indisputable that [he] has become the prime target of the NSA.” Klayman I Br. at 13.
Plaintiffs contend that the NSA’s alleged’ “illegal surveillance directly impacts [their]
ability to communicate via telephone, email, and otherwise, out of fear” that their confidential
and private “communications will be overheard or obtained by the NSA’s surveillance program.”
Id. at 14, 15. They argue that bulk collection of telephony metadata—which has been found to
be lawful thirty-five times by fifteen different Article III judges on the FISC—exceeds the
authority conferred by Section 215, see id. at 17-19, and violates the First, Fourth, and Fifth
Amendments. See id. at 19-27. Plaintiffs also argue that the “PRISM program,” and bulk
collection of Internet metadata, violates the same provisions of the Constitution, Klayman II Br.
at 30, and exceeds statutory authority under Section 215, see id. at 5, 19-20, even though the
authority for those programs lies under Section 702 and the pen/trap provision, respectively.
Plaintiffs seek preliminary injunctions (1) enjoining these FISC-authorized activities
(2) requiring the NSA to “purge” all of Plaintiffs’ collected metadata, if any, and (3) prohibiting
the NSA from querying the metadata using identifiers associated with Plaintiffs. See Klayman I
Br. at 4, 30-31; Klayman II Br. at 4-5, 32-33.
ARGUMENT
“A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as
of right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (quotation marks and citations omitted).
Media speculation about the Government’s sources and methods of acquiring intelligence cannot
be equated with official release or acknowledgment of such information. See Afshar v.
Department of State, 702 F.2d 1125, 1130-31 (D.C. Cir. 1983)
17

The movant bears the burden of demonstrating “by a clear showing” that the remedy is necessary
and that the prerequisites for issuance of the relief are satisfied. Mazurek v. Armstrong, 520 U.S.
968, 972 (1997). “[P]laintiff[s] seeking a preliminary injunction must establish that [they are]
likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the
public interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008); In re Navy Chaplaincy, 697 F.3d 1171,
1178 (D.C. Cir. 2012). “A positive showing on all four factors is required.” Bayer HealthCare,
LLC v. FDA, __ F. Supp. 2d __, 2013 WL 1777481, *5 (D.D.C. Apr. 17, 2013).7 Where, as here,
the moving parties seek a mandatory injunction that alters the status quo, and that will affect
government action taken in the public interest pursuant to a statutory scheme, the movants must
make a “somewhat higher” demonstration of entitlement to preliminary relief than is normally
required. See Paleteria La Michoacana, Inc. v. Prods.Lacteos Tocumbo S.A. de C.V., 901 F.
Supp. 2d 54, 56 (D.D.C. 2012); Sierra Club v. Johnson, 374 F. Supp. 2d 30, 33 (D.D.C. 2005).
Further, a preliminary injunction cannot issue on the mere basis of speculation. Winter,
555 U.S. at 21-22. Rather than allowing relief based on a “‘possibility’ of irreparable harm,” id.
at 21, the Supreme Court has emphasized that a preliminary injunction should issue only upon a
showing that irreparable harm is “likely in the absence of an injunction.” Id. at 22; see also
Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011). Finally, a court deciding a
preliminary injunction motion “must balance the competing claims of injury and must consider
the effect on each party of the granting or withholding of the requested relief,” Winter, 555 U.S.
7

While Plaintiffs assume that a “continuum” or “sliding scale” approach applies here
with respect to these four factors, Klayman I Br. at 17; Klayman II Br. at 19 (citing CityFed Fin.
Corp. v. OTS, 58 F.3d 738, 747 (D.C. Cir. 1995)), they overlook that the decision they cite in
support of this proposition preceded the Supreme Court’s decision in Winter, and that the
“continued viability” of the sliding scale approach in all cases post-Winter has been called into
question by the D.C. Circuit and this court. Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir.
2011); Jack’s Canoes & Kayaks, LLC v. Nat’l Park Serv., 933 F. Supp. 2d 58, 76 (D.D.C. 2013).
18

at 24 (internal quotations omitted), and “should pay particular regard for the public consequences
in employing the extraordinary remedy of injunction.” Id. (internal quotations omitted).
I.

PLAINTIFFS HAVE NOT DEMONSTRATED INJURY SUFFICIENT TO
ESTABLISH THEIR STANDING, NOR SHOWN ANY IRREPARABLE HARM
Plaintiffs’ request for preliminary injunctive relief must be denied because they have not

alleged injuries sufficient to sustain Article III standing, a jurisdictional defect in their case that
precludes any likelihood of success on their claims. Likewise, Plaintiffs have not shown that
they will suffer any irreparable harm absent an injunction, an equally insuperable bar to relief.
A.

Plaintiffs Lack Standing and Therefore Cannot Show a Substantial
Likelihood of Success on the Merits.

“The judicial power of the United States” 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, Inc., 454 U.S. 464, 471 (1982), and a demonstration of a
plaintiff’s 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). Standing is also usually
the “first component of the likelihood of success on the merits prong,” Jack’s Canoes & Kayaks,
933 F. Supp. 2d at 76 (quotations omitted), because Plaintiffs “must have standing” for “this
Court to have subject matter jurisdiction over” their “motion[s] for a preliminary injunction.”
Dominquez v. Dist. of Columbia, 536 F. Supp. 2d 18, 23-24 (D.D.C. 2008) (Leon, J.). 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 quotations omitted). The Supreme Court has also “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.
19

To establish Article III standing, Plaintiffs must show that they have suffered injury in
fact, “an invasion of a legally protected interest,” Lujan, 504 U.S. at 560, that is “concrete,
particularized, and actual or imminent.” Amnesty Int’l USA, 133 S. Ct. at 1147. A “threatened
injury must be certainly impending to constitute injury in fact,” whereas “allegations of possible
future injury are not sufficient.” Id. The alleged injury must also be “fairly traceable to the
challenged action” and be “redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed
Farms, 130 S. Ct. 2743, 2752 (2010). Because Plaintiffs must show that they have standing
“with the manner and degree of evidence required at the successive stages of the litigation,”
Lujan, 504 U.S. at 561, Plaintiffs cannot now rely on mere allegations but must come forth with
evidence to support their standing in order to obtain preliminary injunctive relief. See Doe v.
Rumsfeld, 297 F. Supp. 2d 119, 130 (D.D.C. 2003).
Plaintiffs have failed to adduce specific facts demonstrating that they have standing to
challenge any of the intelligence-gathering activities they allege. Plaintiffs Larry Klayman and
Charles Strange attest that they have for many years been subscribers of cellular telephone
service provided by Verizon Wireless, and users of Internet services offered by a variety of
electronic communications service providers “at all material times.” Affidavit of Larry Klayman
(Klayman Aff.) ¶ 3, ECF No. 13-2; Affidavit of Charles Strange (Strange Aff.) ¶¶ 2-3, ECF No.
13-3. They state that the alleged collection of information about (and contained in) their
telephonic and electronic communications “impact[s]” their ability to communicate by
telephone, e-mail, and other means due to their “concern” that these communications will be
“overheard” or “obtained” by the NSA and “used against” them in some manner. Klayman Aff.
¶ 10; Strange Aff. ¶ 11. On the strength of these assertions, Plaintiffs claim to have standing to
challenge the legality of the Government’s (1) bulk collection of telephony metadata, (2) alleged
“mass” collection of the contents of U.S.-person communications, and (3) alleged bulk collection
20

of Internet metadata. See Klayman I Br. at 9-12; Klayman II Br. at 13, 15. In fact, Plaintiffs
have not demonstrated that they have suffered injury traceable to any of these activities.
Plaintiffs have not asserted sufficient facts to show that any information about or
contained in their telephonic or Internet-based communications has been or imminently will be
collected under any of these alleged programs. With regard to bulk telephony metadata,
although Plaintiffs Klayman and Strange assert that they are or have been subscribers and users
of cellular telephone service provided by “Verizon Wireless,” Klayman Aff. ¶ 3; Strange Aff.
¶ 2, they offer no proof that the Government has ever collected bulk telephony metadata from
that company. And although the Government has acknowledged that the telephony metadata
program remains ongoing, and that multiple telecommunications service providers have been
participants in the program since its inception in 2006, see supra at 9, 11-12, the Government has
not officially disclosed the identities of the group of providers from which bulk telephony
metadata are collected. Plaintiffs’ assertion that they are Verizon Wireless customers does not
establish that the NSA has collected telephony metadata regarding their communications.9
With respect to NSA’s alleged “PRISM” collection of communications under Section
702, the Government has acknowledged that, for foreign intelligence purposes, the NSA targets
non-U.S. persons, located outside the United States, by acquiring communications directly from
9

The Government has acknowledged the authenticity of an unlawfully disclosed
Secondary Order of the FISC dated April 25, 2013, which listed Verizon Business Network
Services, Inc. (VBNS) as a recipient of that order at that time. VBNS, however, is a separate
business entity from Verizon Wireless. See United States ex rel Shea v. Verizon Bus. Network
Servs., Inc., 904 F. Supp. 2d 28, 30 (D.D.C. 2012). Except for this single order of April 2013,
the Government has not declassified any further information regarding VBNS’s participation in
this program or that of any other provider. In any event, at this stage of proceedings, Plaintiffs’
allegations do not indicate that they were subscribers of VBNS or that Verizon Wireless is
subject to Section 215 collection. Plaintiffs protest that “the facts, information, documents, and
evidence” pertinent to their claims “are uniquely in the hands of Defendants,” Klayman I Br. at
31, but as the Supreme Court pointedly observed in Amnesty International, it is Plaintiffs’
“burden to prove their standing by pointing to specific facts, not the Government’s burden to
disprove standing by revealing details of its surveillance” programs. 133 S. Ct. at 1149 n.4
21

certain U.S.-based electronic communications service providers. This activity is conducted
pursuant to authority conferred by and (approval obtained from) the FISC under Section 702.
See supra at 13-15; Oct. 3, 2011 WL 10945618, at *9 & n.24. Although Plaintiffs have asserted
that they are users of Internet-based communications services offered by a number of U.S.-based
providers, see Klayman Aff. ¶ 3; Strange Aff. ¶ 3, their affidavits contain no evidence that the
NSA actually has targeted communications of theirs (or of any non-U.S. persons with whom they
communicate) for foreign intelligence purposes authorized under Section 702. Nor do they
allege that communications of theirs have been or will be acquired incidental to the targeting of
non-U.S. persons under Section 702. See Oct. 3, 2011 WL 10945618, at 5. Rather, they simply
speculate that their communications have been intercepted based on their level of political
activism, see, e.g., Klayman Aff. ¶¶ 4-8, 12, or assume that is so based on their allegations of
“mass surveillance” of the contents of Americans’ electronic communications, allegations for
which they offer no proof whatsoever. See Klayman II Br. at 3, 12, 27.10
With regard to bulk Internet metadata, the Government has declassified the existence of a
program under which the NSA obtained such data pursuant to court orders issued by the FISC,
but that the program ceased in 2011, see supra at 16, and the Government has not disclosed the
scope on which it operated. Plaintiffs offer no proof that the NSA has actually acquired Internet
metadata about their communications, or continues to do so. See Klayman Aff. ¶¶3, 10; Strange
Aff. ¶¶ 3, 4, 11, 18-19.

10

Plaintiffs assert in their briefs that “it is logical to conclude that Plaintiff Klayman is
subjected to excessive and intrusive surveillance and monitoring by the NSA. In fact, it is
indisputable that [he] has become the prime target of the NSA . . . .” Klayman I Br. at 13;
Klayman II Br. at 14. These conclusory and unsubstantiated arguments of counsel, and others
like them in Plaintiffs’ legal memoranda, are not evidence of injury on which they can base their
standing. Conservation Force v. Salazar, 715 F. Supp. 2d 99, 106 n.9 (D.D.C. 2010).
22

Given that Plaintiffs fail to establish that any information about their communications
(whether metadata or content) has been or will be collected, their stated “concern” that
communications of theirs “will be overheard or obtained by” NSA, Klayman Aff. ¶ 10; Strange
Aff. ¶ 11, is speculative and does not constitute injury-in-fact. See Amnesty Int’l USA, 133 S. Ct.
at 1148-50. In Amnesty International, various individuals and organizations challenged the
constitutionality of Section 702, which expanded the Government’s authority to intercept the
communications of non-U.S. persons located abroad. See id. at 1144. They alleged, similar to
Plaintiffs here, that there was an “objectively reasonable likelihood that their communications
[would] be acquired . . . at some point in the future,” based on claims that they maintained
regular contact with persons whose communications they believed would be targeted for
acquisition by the Government. Id. at 1145-46. The Supreme Court found that this “threatened
injury” was not “certainly impending” and so did not constitute an injury in fact, because it “was
speculative whether the Government [would] imminently target communications to which [they
would be] parties.” Id. at 1148. The same is true, indeed, all the more so here. As the foregoing
discussion reveals, Plaintiffs fail to show that NSA collection of information about or contained
in their communications has ever occurred, or is “certainly impending.”11
In addition, given that Plaintiffs have not established that their communications, or
metadata about their communications, either have been or imminently will be subject to
collection under any of the challenged NSA programs, their assertions that these programs have
11

Nor do any of the incidents that Plaintiff Strange labels “technological abnormal intrusions,”
Strange Aff. ¶¶ 12-17; Klayman Aff. ¶ 11, support a finding that Plaintiffs’ telephony or
Internet-based communications were collected by the NSA. The incidents that Plaintiffs
describe—unexplained text messages, a “hoax” e-mail, and a widely publicized computer virus
scam, see FBI: New Internet Scam (Aug. 2012), www.fbi.gov/news/stories/2012/august/newinternet-scam; Citadel Malware Continues to Deliver Ransomware in Attempts to Extort Money
(Aug. 9, 2012), www.ic3.gov/media/2012/120809.aspx-- bear no resemblance to the alleged
NSA data-collection activities, and Plaintiffs point to no evidence linking these incidents to the
NSA, or any other Government agency.
23

“directly and significantly impacted” their “ability to communicate via telephone, e-mail, or
otherwise,” and to engage in public advocacy, Klayman Aff. ¶¶ 9-10; Strange Aff. ¶¶ 11, 19-20,
reflect only subjective fears on their part, 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 sufficient basis for standing under Laird).12
For these reasons, Plaintiffs have not shown a clear or substantial likelihood of success
on their claims because they have not established their standing.
B. Plaintiffs’ Speculative Injuries Also Do Not Establish Irreparable Harm
To satisfy the “high standard” for showing irreparable harm, Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006), which is “perhaps the single most
important prerequisite for the issuance of a preliminary injunction,” Stand Up for California! v.
U.S. Dep’t of the Interior, 919 F. Supp. 2d 51, 81 (D.D.C. 2013) (internal quotations omitted),
12

In their brief, Plaintiffs also assert that the challenged programs “undoubtedly will
dissuade, and has dissuaded, potential clients, whistleblowers, and others from contacting
Plaintiff Klayman . . . .” Klayman II Br. at 16. Even setting aside that the arguments of counsel
in legal memoranda are not evidence, Conservation Force, 715 F. Supp. 2d at 106 n.9, this
assertion would not otherwise “establish injury that is fairly traceable to” the challenged NSA
programs because it rests on speculation about unidentified third parties’ own speculative
“fear[s] of surveillance.” Amnesty Int’l USA, 133 S. Ct. at 1152 n.7; see also Lujan, 504 U.S. at
562 (plaintiffs have the burden of “showing that [the] choices [of third-parties] have been or will
be made in such manner as to produce causation and permit redressability of injury.”).
24

Plaintiffs must show that their asserted injuries are “certain” and “great,” rather than
“theoretical,” and “of such imminence that there is a ‘clear and present’ need for equitable relief”
to prevent this harm that would otherwise be “beyond remediation.” Id. (internal quotations
omitted). For the same reasons that Plaintiffs failed to demonstrate that they suffered a
sufficiently concrete injury to establish standing, they have failed to produce competent evidence
showing that they are “likely to suffer irreparable harm before a decision on the merits can be
rendered.” Id. (internal quotations omitted).
Further exposing Plaintiffs’ lack of irreparable harm is their four-month delay in filing
their preliminary injunction motions. See Gordon v. Holder, 632 F.3d 722, 725 (D.C. Cir. 2011);
see also Fund for Animals v. Frizzel, 530 F.2d 982, 987 (D.C. Cir. 1975) (denying preliminary
injunctive relief and noting that a delay of forty-four days after final regulations were issued was
“inexcusable”); Brown v. Dist. of Columbia, 888 F. Supp. 2d 28, 33 (D.D.C. 2012) (Leon, J.)
(finding that the plaintiff’s six-month delay in seeking injunctive relief “directly undercuts any
argument that her injury is of such imminence that there is a clear and present need for equitable
relief to prevent irreparable harm”) (internal quotations omitted). Here, Plaintiffs filed their
Complaints against the Government Defendants in these cases on June 6 (Klayman I, Dkt. No. 1)
and June 12, 2013 (Klayman II, Dkt. No. 1), but then inexplicably waited over four months, until
October 29, to seek preliminary injunctive relief. See Klayman I, Dkt. No. 13; Klayman II, Dkt.
No. 10. This is yet another reason why this Court “should be reluctant to award relief.” NRDC
v. Pena, 147 F.3d 1012, 1026 (D.C. Cir. 1998).
II.

PLAINTIFFS’ CLAIM THAT THE ALLEGED NSA ACTIVITIES EXCEED
STATUTORY AUTHORITY IS PRECLUDED BY STATUTE
Plaintiffs’ requests for preliminary injunctions must also be denied because they have not

shown a likelihood of success on the merits of any of their claims.
25

As an initial matter, neither of Plaintiffs’ complaints even purports to state a claim
against the Government Defendants that the alleged NSA collection of information about their
communications exceeds statutory authority. The only statutory claims in Klayman I are directed
against Verizon and its Chief Executive Officer Lowell McAdam (Sixth and Seventh Claims for
Relief). The complaint in Klayman II contains two claims for “Divulgence of Communications
Records in Violation of 18 U.S.C. §§ 2702(a)(1) and/or (a)(2)” that purport to be against “Each
and Every Defendant” (Sixth and Seventh Claims for Relief).13 Plaintiffs allege that those
claims are brought pursuant to 18 U.S.C. § 2707, which they claim “provides a civil action for
any person aggrieved by knowing or intentional violation of 18 U.S.C. § 2702,” (Klayman II
Compl. ¶¶ 108, 115). 18 U.S.C. § 2707, however, expressly excludes the United States from the
cause of action. 18 U.S.C. § 2707(a) (“Except as provided in section 2703(e), any provider of
electronic communication service, subscriber, or other person aggrieved by any violation of this
chapter in which the conduct constituting the violation is engaged in with a knowing or
intentional state of mind may, in a civil action, recover from the person or entity, other than the
United States, which engaged in that violation such relief as may be appropriate.”) (emphasis
added). 18 U.S.C. § 2712 provides for a cause of action against the United States for certain
violations, but (1) Plaintiffs have not alleged a claim under this statute, (2) this statute only
provides for money damages, not injunctive relief, and (3) this statute contains an exhaustion
requirement that Plaintiffs have not satisfied. 18 U.S.C. § 2712(b).
To the extent Plaintiffs might seek to rely on the Administrative Procedure Act (APA),
5 U.S.C. § 706, for a cause of action for injunctive relief against the United States for alleged
violations of 18 U.S.C. § 2702(a)(1), (2) (although it is not pled), such a claim would be

13

18 U.S.C. § 2702(a)(1) and (a)(2) relate to the divulgence of the contents of
communications, as opposed to communication records.
26

impliedly precluded by Congress through its establishment of a cause of action for money
damages only in 18 U.S.C. § 2712. In Jewel v. NSA, 2013 WL 3829405, at *12 (N.D. Cal. July
23, 2013), the court held that by excluding the United States from 18 U.S.C. § 2707, which
provides for injunctive relief, and only authorizing a cause of action for money damages against
the United States in § 2712, Congress intended to forbid injunctive and declaratory relief against
the United States under the Stored Communications Act (18 U.S.C. § 2701, et seq.).
As a general matter, APA section 702 waives sovereign immunity for actions against the
Government “seeking relief other than money damages.” It is subject to a number of significant
exceptions, however, two of which apply here. First, section 702 itself provides that “[n]othing
herein . . . confers authority to grant relief if any other statute that grants consent to suit expressly
or impliedly forbids the relief which is sought.” 5 U.S.C. § 702. Second, mirroring the first
exception, the APA provides that its chapter on judicial review, including section 702, does not
apply “to the extent that . . . statutes preclude judicial review.” Id. § 701(a)(1).
The first exception “prevents plaintiffs from exploiting the APA’s waiver to evade
limitations on suit contained in other statutes.” Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2204-05 (2012). As Congress explained when
it enacted the APA’s waiver of immunity, this “important carve-out,” id. at 2204, makes clear
that Section 702 was “not intended to permit suit in circumstances where statutes forbid or limit
the relief sought,” that is, where “Congress has consented to suit and the remedy provided is
intended to be the exclusive remedy.” H.R. Rep. No. 94-1656, at 12-13 (1976), 1976 WL 14066,
*12-13. “For example, . . . a statute granting the United States’ consent to suit, i.e., the Tucker
Act, ‘impliedly forbids’ relief other than the [damages] remedy provided by the Act.” Id. Thus,
“‘when Congress has dealt in particularity with a claim and [has] intended a specified remedy’—
including its exceptions—to be exclusive, that is the end of the matter; the APA does not undo
27

the judgment.” Pottawatomi Indians, 132 S. Ct. at 2205 (quoting Block v. North Dakota ex rel.
Bd. of Univ. and Sch. Lands, 461 U.S. 273, 286 n. 22 (1983)).
To much the same effect, section 701(a)(1) of the APA withdraws section 702’s waiver
of immunity where “statutes preclude judicial review.” 5 U.S.C. § 701(a)(1) (“This chapter
applies, according to the provisions thereof, except to the extent that (1) statutes preclude judicial
review”). “Whether and to what extent a particular statute precludes judicial review is
determined not only from its express language, but also from the structure of the statutory
scheme, its objectives, its legislative history, and the nature of the administrative action
involved.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984). “[W]hen a statute provides
a detailed mechanism for judicial consideration of particular issues at the behest of particular
persons, judicial review of those issues at the behest of other persons may be found to be
impliedly precluded.” Id.; see Pottawatomi Indians, 132 S. Ct. at 2208.
Congress evidenced its intent that persons such as Plaintiffs, who claim to be subscribers
and users of electronic communications services, not be permitted to challenge the statutory basis
of orders to produce electronic communications or communications records, by explicitly
providing a right of judicial review only to the recipients of such orders. Congress specifically
authorized challenges to Section 215 production orders only by recipients of those orders—the
entities that create and own the records—and permitted those entities to challenge production
orders only by filing a challenge in the FISC. 50 U.S.C. § 1861(f)(2)(A)(i), (B). The purpose of
this provision was to “place Section 215 proceedings on a par with grand jury proceedings,
where the subpoena recipient obviously knows of its existence and can challenge it in court.”
Implementation of the USA PATRIOT Act: Hearing Before the H. Subcomm. on Crime,
Terrorism, and Homeland Security, Comm. on the Judiciary, 109th Cong. at 65 (2005)

28

(statement of Robert Khuzami). Congress recognized, however, that allowing a similar right of
action by third parties would be incompatible with the secrecy required for Section 215 orders.14
To promote its effective functioning as a tool for counter-terrorism, Section 215, like
other provisions of FISA, establishes a secret and expeditious process that involves only the
Government and the recipient of the order. See 50 U.S.C. § 1861(d)(1) (recipient may not
“disclose to any other person that the [FBI] has sought or obtained” an order under Section 215).
Under the statutory framework, third parties such as Plaintiffs, who are not recipients of Section
215 orders, are not even supposed to know of their existence, nor play a role in the process of
testing their compliance with the statute. See, e.g., H.R. Rep. No. 109-174 at 128 (2005). The
fact that Plaintiffs learned about the telephony metadata program order as the result of an
unauthorized and unlawful disclosure does not change this essential facet of FISA’s structure.
Allowing third parties to contest an order’s compliance with Section 215’s relevance and other
requirements would potentially compromise the secrecy and efficiency of the process that
Congress envisioned.
Were there any doubt, Congress provided expressly that a Section 215 order “shall
remain in effect” unless it has been “explicitly modified or set aside consistent with this
subsection.” 50 U.S.C. § 1861(f)(2)(D). Thus, Congress clearly limited the right to contest the
legality of Section 215 production orders to recipients of such orders who file petitions for
review with the FISC. This “detailed mechanism for judicial consideration of particular issues”
under Section 215 “at the behest of particular persons” means that “judicial review of those

14

See id. (“Beyond this amendment, however, the confidentiality provisions of Section
215 should not be disturbed. You do not want potential terrorists to know you are investigating
them or are aware of their plans.”). See also H.R. Rep. No. 109-174 at 128 (right to challenge
Section 215 order can only be given to the recipient, not the target, because the target does not
know about it); id. at 268 (statutory prohibition on disclosing Section 215 order to subject
prevents the subject from challenging it).
29

issues at the behest of other persons” is “impliedly precluded.” Cmty. Nutrition Inst., 467 U.S.
at 349 (holding that statutory scheme allowing dairy handlers to seek review of milk market
orders precluded actions by consumers); see also Ark. Dairy Co-op Assn., Inc. v. USDA, 573
F.3d 815, 822-23 (D.C. Cir. 2009) (dairy producers, who like handlers are given a role in the
regulatory process, could also challenge milk market order); In re Application of the U.S. for an
Order Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp. 2d 114, 128-29 (E.D. Va. 2011) (provision
of Stored Communications Act allowing Twitter subscribers to challenge orders requiring
production to Government of “backup information” impliedly prohibited statutory challenge by
subscribers to order requiring production of electronic records pertaining to them).15
18 U.S.C. § 2712 also expresses Congress’ intent to preclude a statutory claim under
Section 215 by Plaintiffs. 18 U.S.C. § 2712 creates a damages action against the Government for
violations of three specified provisions of FISA but omits Section 215 from that list, and
provides no action for prospective relief. 18 U.S.C. § 2712(a). The three specified provisions of
FISA are sections 106(a), 305(a), and 405(a), which respectively impose restrictions on the use
and disclosure of information obtained from electronic surveillance, physical searches, and pen
registers or trap and trace devices authorized under FISA. See 50 U.S.C. §§ 1806(a), 1825(a),
1845(a).16 Significantly, violations of the parallel “use” provision of Section 215, 50 U.S.C.
§ 1861(h), which restricts the Government’s use and disclosure of tangible things received in
15

Like Section 215, Section 702 of FISA, under which PRISM collection occurs,
provides that an electronic communications service provider who receives a directive under
Section 702 may challenge its lawfulness before the FISC. 50 U.S.C. § 1881a(h)(4), (6). See
also Amnesty Int’l, 133 S. Ct. at 1154. Thus, any claim by Plaintiffs that the NSA exceeded its
statutory authority in collecting their communications under PRISM—should it survive the
significant standing problems discussed above—would be impliedly precluded as well.
16

As explained above, even if the complaints did plead a violation of 50 U.S.C.
§ 1845(a), 18 U.S.C. § 2712 only provides a damages remedy for such a violation, impliedly
precluding a remedy for injunctive relief. In addition, as also already explained, the FISCauthorized collection under § 1845(a) lapsed in 2011.
30

response to a production order, are not made actionable under section 2712.17 Congress further
stipulated that an action under § 2712 shall be the exclusive remedy against the United States for
claims falling within its purview. Id. § 2712(d). Section 2712 thus deals with claims for misuses
of information obtained under FISA in great detail, including the intended remedy, and Plaintiffs
cannot rely on section 702 to bring a claim for violation of FISA’s terms that Congress did not
provide for under 18 U.S.C. § 2712. Pottawatomi Indians, 132 S. Ct. at 2205. The same
conclusion was reached by the district court in Jewel, supra, which held that § 2712, “by
allowing suits against the United States only for damages based on three provisions of [FISA],
impliedly bans suits against the United States that seek injunctive relief under any provision of
FISA.” 2013 WL 3829405, at *12.
III.

PLAINTIFFS’ CLAIM THAT THE ALLEGED NSA INTELLIGENCEGATHERING PROGRAMS EXCEED THE GOVERNMENT’S STATUTORY
AUTHORITY IS ALSO UNLIKELY TO SUCCEED ON THE MERITS
Even if judicial review of Plaintiffs’ statutory claim were not precluded, the claim lacks

merit. Plaintiffs assert that “Defendants’ surveillance program” is unauthorized under Section
215 because (i) the records obtained by the NSA are not “relevant” to authorized national
security investigations, and (ii) the FISC may not prospectively direct the production of business
records that do not yet exist. Klayman I Br. at 17-19; Klayman II Br. at 19-21. The Government
Defendants address Plaintiffs’ arguments first as they apply to the telephony metadata program,
and then as they apply (or, rather, do not apply) to the NSA’s collection of bulk Internet
metadata and of communications targeted under Section 702.

17

The enactment of section 223 of the USA PATRIOT Act in 2001 preceded enactment
of 50 U.S.C. § 1861(h) in 2006. 1 Kris & Wilson § 19:11 at 718. Congress has not since
amended § 2712 to include violations of § 1861(h) as a basis for suit. In fact, when Congress
amended Section 215 to add subsection (h), it also added the review provision at subsection (f),
but made review available only to persons to whom Section 215 orders are directed.
31

A.

The Telephony Metadata Program Is Authorized Under Section 215

Section 215 authorizes the FISC to order “production of any tangible things” upon
application by the FBI “showing that there are reasonable grounds to believe that the tangible
things sought are relevant to an authorized [counter-terrorism] investigation.” 50 U.S.C.
§ 1861(a)(1), (b)(2)(A). Since May 2006, fifteen separate judges of the FISC have concluded on
thirty-five occasions that the Government satisfied this requirement, finding “reasonable grounds
to believe” that the telephony metadata sought by the Government “are relevant to authorized
investigations . . . being conducted by the FBI . . . to protect against international terrorism.”
Holley Decl. ¶¶ 6, 11; Aug. 29 FISC Op. at 28; Oct. 11 FISC Mem., Primary Order, at 2.
Plaintiffs now ask this Court to second-guess the FISC’s repeated conclusions and declare
instead that the call-detail records the FISC order produced to the NSA are not, in fact, relevant
to authorized counter-terrorism investigations. The Court should reject this invitation.
1.

Bulk telephony metadata are “relevant” within the meaning
of Section 215.

The concept of “relevance” has developed an accepted legal meaning in the context of
official investigations and civil proceedings, for which purposes documents are considered
“relevant” not only where they directly bear on a matter, but also where they reasonably could
lead to other information that may bear on the matter. In civil discovery, for example, the phrase
“relevant to the subject matter involved in the pending action” broadly encompasses “any matter
that bears on, or that reasonably could lead to other matters that could bear on, any issue that is
or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (emphasis
added). An even broader relevance standard applies to grand jury subpoenas, which will be
enforced unless “there is no reasonable possibility that the category of materials the Government
seeks will produce information relevant to the general subject of the grand jury’s investigation.”
32

United States v. R. Enters., Inc., 498 U.S. 292, 301 (1991) (emphasis added). Likewise, the
statutory authority conferred on administrative agencies to subpoena evidence that is “relevant to
[a] charge under investigation” affords them “access to virtually any material that might cast
light on the allegations” at issue in an investigation, EEOC v. Shell Oil Co., 466 U.S. 54, 68-69
(1984) (internal quotations omitted).
In light of that basic understanding of relevance, courts in each of these contexts have
categorically authorized the production of entire repositories of records, even when any
particular record is unlikely to bear directly on the matter being investigated, where searching a
large volume of information is the only feasible means of locating much smaller amounts of
critical information within the data that directly bears on the matter under investigation.18
Analogously, courts also issue search warrants permitting Government agents to copy entire
computer hard drives and then later review their contents for the specific evidence described in
the warrant. See Fed. R. Crim. P. 41(e)(2)(B).19 These practices demonstrate the broad
understanding of relevance developed in the context of investigatory information-gathering.

18

See, e.g., In re Subpoena Duces Tecum, 228 F.3d 341, 350-51 (4th Cir. 2000)
(subpoena for 15,000 patient files); In re Grand Jury Proceedings, 827 F.2d 301, 305 (8th Cir.
1987) (upholding grand jury subpoenas for records of wire money transfers “involving hundreds
of innocent people”); FTC. v. Invention Submission Corp., 965 F.2d 1086 (D.C. Cir. 1992);
Carrillo Huettel, LLP v. SEC, 2011 WL 601369, at *2 (S.D. Cal. Feb. 11, 2011) (trust account
information for all of law firm’s clients held relevant to SEC investigation); Goshawk Dedicated
Ltd. v. American Viatical Servs., LLC, 2007 WL 3492762, at *1 (N.D. Ga. Nov. 5, 2007)
(compelling production of business’s entire underwriting database); In re Adelphia Commc’ns
Corp., 338 B.R. 546, 549 and 553 (Bankr. S.D.N.Y. 2005) (permitting inspection of
“approximately 20,000 large bankers boxes of business records”); Medtronic Sofamor Danek,
Inc. v. Michelson, 229 F.R.D. 550, 552 (W.D. Tenn. 2003) (compelling discovery of
“approximately 996 network backup tapes . . . plus an estimated 300 gigabytes of other
electronic data”).
19

See, e.g., United States v. Hill, 459 F.3d 966, 975 (9th Cir. 2006) (recognizing that
“blanket seizure” of the defendant’s entire computer system, followed by subsequent review,
may be permissible); United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999).
33

Both the text and legislative history confirm that Congress was acutely aware of and
incorporated this accepted legal meaning of relevance when it enacted Section 215’s relevance
requirement, see USA PATRIOT Act Improvement Act of 2005, Pub. L. No. 109-177, § 106(b),
120 Stat. 192 (2006). It was well understood at the time that relevance was the equivalent of the
“well established standard” applied to grand jury subpoenas, administrative subpoenas, and civil
discovery requests. See 152 Cong. Rec. S1598, 1606 (Mar. 2, 2006) (statement of Sen. Kyl).20
And Congress in fact described the items subject to production under Section 215 as things
obtainable by “a subpoena duces tecum issued by a court . . . in aid of a grand jury investigation”
or “any other order issued by a court . . . directing the production of records or tangible things.”
50 U.S.C. § 1861(c)(2)(D).21
Of course, the case law in the contexts of civil discovery, grand jury subpoenas, and
administrative investigations does not involve data acquisition on the scale of the telephony
metadata collection authorized by the FISC, because the information gathered in those contexts
is sought in aid of focused judicial and administrative proceedings involving identifiable
individuals and events. But in this context relevance must be evaluated in light of the special
nature, purpose, and scope of national security investigations. See Okla. Press Publ’g Co. v.
Walling, 327 U.S. 186, 209 (1946). Counter-terrorism investigations serve uniquely important
purposes beyond the ambit of routine criminal or administrative inquiries, which ordinarily focus
20

See also 152 Cong. Rec. S1379, 1395 (Feb. 16, 2006) (statement of Sen. Kyl) (“We all
know the term ‘relevance.’ It is a term that every court uses . . . The relevance standard is
exactly the standard employed for the issuance of discovery orders in civil litigation, grand jury
subpoenas in a criminal investigation, and for each and every one of the 335 different
administrative subpoenas currently authorized by the United States Code.”); 151 Cong. Rec.
S13636, 13642 (Dec. 15, 2005) (statement of Sen. Hatch); H.R. Rep. No. 109-174, pt. 1 at 131
(statement of Rep. Lungren).
21

See also NLRB v Amax Coal Co., 453 U.S. 322, 329 (1981) (“Where Congress uses
terms that have accumulated settled meaning under either equity or the common law, a court
must infer, unless the statute otherwise dictates, that Congress means to incorporate the
established meaning of these terms.”).
34

retrospectively on specific crimes or violations that have already occurred and the persons
known or suspected to have committed them. The key purpose of terrorism investigations is to
prevent terrorist attacks before they occur. Hence, national security investigations often have
remarkable breadth, spanning long periods of time and multiple geographic regions to identify
terrorist groups, their members, intended targets, and means of attack, many of which are often
unknown to the intelligence community at the outset. See CIA v. Sims, 471 U.S. 159, 171 (1985)
(“foreign intelligence [gathering] consists of securing all possible data pertaining to . . . the
national defense and security of the United States”); United States v. U.S. Dist. Court (Keith),
407 U.S. 297, 322-23 (1972). Relevance in this context, therefore, must take into account the
far-reaching information-gathering required to shed light on suspected terrorist organizations,
their size and composition, recruitment, geographic reach, relation to foreign powers, financial
resources, past acts, goals, and capacity for carrying out their plans.
When Congress codified the relevance standard under Section 215, the critical
differences between the breadth and attributes of counter-terrorism investigations and routine
criminal investigations were well understood. See H.R. Rep. No. 109-174(1) at 129 (statement
of Rep. Lungren) (“[t]his is in the nature of trying to stop terrorists before they act, not in the
nature of a regular criminal investigation . . . and it strikes . . . precisely at when a 215 order is
most useful”); see also 152 Cong. Rec. S1325, 1330 (Feb. 15, 2006) (statement of Sen.
Feingold). The purpose underlying the USA PATRIOT Act, and Section 215 in particular, was
to provide the intelligence community the enhanced investigatory tools needed to bring terrorist
activities to light before they culminate in a loss of life and property. See H.R. Rep. No. 109174, pt. 2 at 4 (“[M]any of the core enhanced authorities of the [Patriot Act] are fundamentally
intelligence authorities intended to gather information to counter threats to national security from
terrorists.”); S. Rep. No. 109-85 at 40 (noting “critical” nature and “broad reach” of authority
35

conferred by Section 215). Consistent with this core legislative objective, Section 215 should be
understood to authorize the collection of records that can help to identify previously unknown
operatives and activities, and thus detect and prevent terrorist attacks before they are launched.
Bulk telephony metadata are therefore relevant (at the least) to FBI counter-terrorism
investigations because, as experience has shown, the collection and aggregation of these data
permit the effective use of NSA analytical tools to detect contacts between foreign terrorists and
their unknown associates located in the United States who may be planning attacks on the U.S.
soil. Holley Decl. ¶¶ 8-9, 18-26; Shea Decl. ¶¶ 44, 46-48; see Aug. 29 FISC Op. at 20.
Targeted tools of investigation that do not involve bulk collection of the data cannot always
achieve this objective as effectively, if at all, because the Government cannot know, in advance
of linking a phone number (or other identifier) to a terrorist organization, where in the data the
terrorists’ communications can be found. Holley Decl. ¶¶ 9, 27-29; Shea Decl. ¶¶ 57-63. Absent
the creation of an historical repository of information that bulk collection and aggregation of the
data allow, it may not be feasible for NSA to identify chains of communications among known
and unknown terrorist operatives that cross different time periods and providers’ networks.
Holley Decl. ¶¶ 9, 27-29; Shea Decl. ¶ 60; see Aug. 29 FISC Op. at 21-22. Thus, there are
reasonable grounds, at the least, for concluding that “the whole of the metadata produced” is
“relevant” to authorized national security investigations. Aug. 29 FISC Op. at 22.22
22

Notably in this regard, Section 215 permits the collection of information relevant “to
an authorized investigation,” 50 U.S.C. § 1861(b)(2)(A), not simply information relevant to the
“subject matter” involved a matter, as in civil discovery, Fed. R. Civ. P. 26(b)(1). Business
records can therefore be “relevant” to an investigation not merely if they relate to its subject
matter, but also if there is reason to believe they are necessary or useful to the application of
investigative techniques that will advance its purposes. As discussed above, NSA analysis
enables discovery of otherwise hidden connections between individuals suspected of engaging in
terrorist activity and unknown co-conspirators with whom they maintain contact in the United
States. The metadata records are therefore relevant to FBI investigations whose object is to
thwart the plots in which these individuals are engaged before they come to bitter fruition.
36

2.

Congress has legislatively ratified the construction of Section 215
as allowing for the bulk collection of telephony metadata records

That conclusion is reinforced, as the FISC recently recognized, by Congress’s extension
of Section 215’s authorization without substantive change, in 2010 and 2011, after receiving
notice that the FISC and the Executive Branch had interpreted Section 215 to authorize the bulk
collection of telephony metadata. Aug. 29 FISC Op. at 23-28. On both occasions the Executive
Branch worked to ensure that all Members of Congress had access to information about this
program and the legal authority for it. In December 2009, a classified briefing paper, explaining
that the Government and the FISC had interpreted Section 215 to authorize the bulk collection of
telephony metadata, was provided to the House and Senate Intelligence Committees and made
available for review, as well, by all Members of Congress, “to inform the legislative debate about
reauthorization of Section 215.”23 Additionally, the classified use of this authority has been
briefed numerous times over the years to the Senate and House Intelligence and Judiciary
Committees, as several Members of Congress have acknowledged.24

23

See Letter from Ronald Weich to Rep. Silvestre Reyes (Dec. 14, 2009) (Exh. K,
hereto); Report on the [NSA’s] Bulk collection Programs for USA PATRIOT Act
Reauthorization (Exh. L, hereto). Both Intelligence Committees made this document available to
all Members of Congress prior to the February 2010 reauthorization of Section 215. See Letter
from Sens. Feinstein and Bond to Colleagues (Feb. 23, 2010) (Exh. M, hereto); Letter from Rep.
Reyes to Colleagues (Feb. 24, 2010) (Exh. N, hereto); see also 156 Cong. Rec. H838 (daily ed.
Feb. 25, 2010) (statement of Rep. Hastings); 156 Cong. Rec. S2109 (daily ed. Mar. 25, 2010)
(statement of Sen. Wyden).
An updated version of the briefing paper was provided to the Senate and House
Intelligence Committees again in February 2011 in connection with the reauthorization that
occurred later that year. See Letter from Ronald Weich to Sens. Diane Feinstein and Saxby
Chambliss (Feb. 2, 2011) (Exh. O, hereto); Letter from Ronald Weich to Reps. Mike Rogers and
C.A. Dutch Ruppersberger (Feb. 2, 2011) (Exh. P, hereto). The Senate Intelligence Committee
made this updated paper available to all Senators later that month. See Letter from Sens.
Feinstein and Chambliss to Colleagues (Feb. 8, 2011) (Exh. Q, hereto).
24

See Press Release of Sen. Select Comm. on Intelligence (June 6, 2013) (Exh. Q,
hereto)); How Disclosed NSA Programs Protect Americans, and Why Disclosure Aids Our
37

After receiving these “extensive and detailed” briefing papers “regarding the nature and
scope” of the program, Congress twice extended Section 215’s authorization, in 2010 and 2011.
Aug. 29 FISC Op. at 25 & n.23.25 “‘Congress is presumed to be aware of an administrative or
judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute
without change.’” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-40 (2009) (quoting
Lorillard v. Pons, 434 U.S. 575, 580 (1978)). That presumption is ironclad in this instance,
where Congress had actual and repeated notice of the Executive Branch’s administrative
construction of Section 215 over a period of years.26 Imposing a limiting construction now on
Section 215 that would prohibit bulk collection of telephony metadata would be contrary to the
express understanding of the statute that Congress ratified on two separate occasions.
3.

Plaintiffs present no persuasive reasons for concluding that bulk
telephony metadata are not “relevant” to authorized counterterrorism investigations within the meaning of Section 215

Plaintiffs nevertheless maintain that the NSA’s bulk collection of telephony metadata
exceeds the Government’s authority under Section 215 because it disregards the relevance
requirement. But since May 2006, fifteen separate judges of the FISC have concluded otherwise,
Adversaries: Hearing Before the House Perm. Select Comm. on Intelligence 2, 35, 58, 113th
Cong., 1st Sess. (2013) (statements of Reps. Rogers, Langevin, and Pompeo) (Exh. R, hereto).
25

USA PATRIOT Act – Extension of Sunsets, Pub. L. No. 111-141, § 1(a), 124 Stat. 37;
PATRIOT Sunsets Extension Act of 2011, Pub. L. No. 112-14, § 2(a), 125 Stat. 216.
26

See EEOC v. Shell Oil Co., 466 U.S. 54, 69 & n.21 (1984), and Haig v. Agee, 453 U.S.
280, 297-98 & n.37 (1981) (both finding “clear[ ]” and “undoubted” Congressional awareness of
the pertinent judicial and executive interpretations, based on references in committee reports).
Moreover, in both 2009 and 2011, when the Senate Judiciary Committee was considering
possible amendments to Section 215, it made clear that it had no intention of affecting the
telephony metadata collection program. The Committee reports accompanying the USA
PATRIOT Act Sunset Extension Acts of 2009 and 2011 explained that proposed changes to
Section 215 were “not intended to affect or restrict any activities approved by the FISA court
under existing statutory authorities.” S. Rep. No. 111-92, at 7 (2009); S. Rep. No. 112-13, at 10
(2011). Ultimately, Section 215 was extended to June 1, 2015 without change. See Patriot
Sunsets Extension Act of 2011, Pub. L. No. 112-14, 125 Stat. 216 (2011).
38

finding “reasonable grounds to believe” that the telephony metadata sought by the Government
“are relevant to authorized investigations . . . being conducted by the FBI . . . to protect against
international terrorism.” Holley Decl. ¶¶ 6, 11; see Primary Order at 1; Aug. 29 FISC Op. at 11;
Oct. 11 FISC Mem. at 3. As the FISC concluded recently:
[b]ecause known and unknown international terrorist operatives are using
telephone communications, and because it is necessary to obtain the bulk
collection of a telephone company’s metadata to determine those connections
between known and unknown international terrorist operatives as part of
authorized investigations, the production of the information sought meets the
standard for relevance under Section 215.
Aug. 29 FISC Op. at 18; see also Oct. 11 FISC Mem. at 3.
Considering that the Government has consistently demonstrated the relevance of the
requested records to the FISC’s satisfaction, as Section 215 requires, it is difficult to understand
how the Government can be said to have acted in excess of statutory authority. At bottom,
Plaintiffs are asking this Court to conclude that the FISC exceeded its authority when it
authorized the NSA’s bulk collection of telephony metadata, and that this Court should substitute
its judgment for the decisions that the FISC reached thirty-five times.
That approach cannot be reconciled with the legislative plan. When courts are called on
to enforce grand jury or administrative subpoenas—instruments that informed Congress’s
understanding of Section 215, see supra at 34-35, — the Government’s determination that
records are “relevant” to its investigation is subject only to the most deferential review.27 In the
analogous context of electronic surveillance, FISC orders receive only “minimal scrutiny by

27

See R. Enters., 498 U.S. at 301 (grand jury subpoena challenged on relevancy grounds
must be upheld unless “there is no reasonable possibility that the category of materials the
Government seeks will produce information relevant to the general subject of the grand jury’s
investigation”); FTC v. Invention Submission Group, 965 F.2d 1086, 1089 (D.C. Cir. 1992) (in a
proceeding to enforce an administrative subpoena, the agency’s appraisal of relevancy to its
investigation “must be accepted so long as it is not obviously wrong,” and the district court’s
finding of relevancy will be affirmed unless it is “clearly erroneous”) .
39

[reviewing] courts.” See, e.g., United States v. Abu-Jihaad, 630 F.3d 102, 130 (2d Cir. 2010);
United States v. Campa, 529 F.3d 980, 993 (11th Cir. 2008).
An equally deferential standard of review is called for in this context, where ensuring the
Government’s access to the information needed to carry out its national security mission is
imperative, and where deferential review is commanded by the terms of Section 215 itself.
Section 215 conditions the Government’s access to business records, not on a showing of
relevance, but on a showing of “reasonable grounds to believe that the [records] are relevant” to
authorized counter-terrorism investigations. 50 U.S.C. § 1861(b)(2)(A) (emphasis added), (c)(1).
Under this standard, in order to find that the FISC’s production orders exceeded its authority, this
Court would have to conclude that the fifteen FISC judges who repeatedly issued those orders
lacked any reasonable basis for doing so. That proposition is self-defeating. The fact that fifteen
judges of the FISC have granted the FBI’s applications for bulk production of telephony
metadata should itself demonstrate that the grounds advanced by the Government for believing
these records to be relevant to authorized counter-terrorism investigations are, at the very least,
reasonable. Plaintiffs offer no convincing arguments to the contrary.
At bottom, Plaintiffs argue that bulk telephony metadata cannot be considered relevant
under Section 215 because the vast majority of the data collected do not pertain to persons who
“are subjects of an authorized investigation,” or who are reasonably suspected, based on
“specific and articulable facts,” of terrorist activity. Klayman I Br. at 17-18. This argument
fails, however, because when Congress passed the USA PATRIOT Act in 2001, it expanded the
Government’s authority to obtain business records under FISA by eliminating the requirement in
prior law of “specific and articulable facts giving reason to believe that the person to whom the
records pertain is a foreign power or an agent of a foreign power.” 50 U.S.C. § 1862(b)(2)(B)
(2000 ed.); Pub. L. 107-56, § 215, 115 Stat. 288; see Aug. 29 FISC Op. at 13. Again in 2006,
40

when Congress codified Section 215’s relevance requirement, it rejected a proposal to restrict the
statute’s scope to records pertaining to individuals suspected of terrorist activity.28 Limiting the
reach of Section 215 to specific records bearing directly on known terrorist threats and operatives
would inhibit the use of this authority for its intended purposes—detecting unknown terrorist
threats—and frustrate, not vindicate, the will of Congress.
Moreover, Plaintiffs’ underlying complaint, that the “vast majority” of call-detail records
collected by the NSA are not related to specific counter-terrorism investigations, Klayman I Br.
at 18, comes as no revelation. The Government has always acknowledged, and the FISC has
understood, that the vast majority of the call-detail records the Government expects to collect do
not document communications between terrorist operatives. See supra at 34-37; Aug. 29 FISC
Op. at 20-23; Shea Decl., ¶ 5, 23-24. At the same time, the FISC has recognized that bulk
collection of the data is necessary to the program—and therefore that the records are relevant as
a whole—because the NSA cannot know in advance of making authorized queries (under the
“reasonable articulable suspicion” standard) which communications occurring at what times, on
which providers’ networks, will reflect connections between terrorist groups and operatives
located in the United States. See id. at 22. Thus, the collateral acquisition of records that do not
pertain to such communications is not evidence that the Government (or the FISC) has exceeded
its authority, but an outgrowth of the leeway that Congress extended to the Government to obtain
foreign intelligence information under Section 215 “to meet its national security
responsibilities.” Id. at 23. As the FISC has recognized, Congress anticipated this prospect, and

28

See S. 2369, 109th Cong. § 3, reprinted at 152 Cong. Rec. S1791 (Mar. 6, 2006); 151
Cong. Rec. S14275-01 (Dec. 21, 2005) (statement of Sen. Dodd) (“Unfortunately, the conference
report . . . maintains the minimal standard of relevance without a requirement of fact connecting
the records sought, or the individual, [to] suspected . . . terrorist activity”). See also 152 Cong.
Rec. S1598-03 (2006) (statement of Sen. Levin); 152 Cong. Rec. H581-02 (Mar. 7, 2006)
(statement of Rep. Nadler).
41

so provided for the imposition of minimization procedures to safeguard against the improper use
or dissemination of U.S.-person information produced under Section 215 orders. Id. at 11, 2223; Shea Decl. ¶¶ 29-35.
In the final analysis, Plaintiffs succeed only in demonstrating their own disagreement
with the FISC’s repeated determinations that bulk telephony metadata are relevant to FBI
counter-terrorism investigations. They cite nothing in the text or legislative history of the statute
demonstrating that the FISC, in reaching those conclusions, exceeded the authority that Congress
granted to it. Congress assigned the FISC the responsibility of making relevance determinations
under Section 215, and Plaintiffs have not explained how the FISC has exercised that authority in
a way, not simply that they object to, but that Congress did not intend.
4.

Nothing in Section 215 prohibits the FISC from prospectively
directing the production of business records as they are created

Plaintiffs’ next contention, that Section 215 does not authorize the collection of business
records “not yet in existence,” Klayman I Br. at 17, is erroneous as a matter of law. Section 215
authorizes the FISC to direct the production of “any tangible things,” “documents,” or “records.”
50 U.S.C. § 1861(a)(1)(emphasis added). Nothing in the text of the statute suggests that FISC
orders may apply only to records created before the FISC renders its order. Nor do the FISC’s
orders require the creation or preservation of documents that would otherwise not exist, or
compel telecommunications service providers to retain information they would otherwise
discard. For example, telephony metadata such as the records at issue here are routinely created
and maintained by providers for at least 18 months, pursuant to Federal Communications
Commission regulations. See 47 C.F.R. § 42.6.
Prospective production of business records has been deemed appropriate in analogous
contexts. For example, under the SCA, the Government may obtain a court order requiring a
42

provider of cell-phone service to produce non-content “record[s] or other information pertaining
to a subscriber . . . or customer” on a specific showing of “reasonable grounds to believe that . . .
the records or other information sought, are relevant and material to an ongoing criminal
investigation.” 18 U.S.C. § 2703(c)(1), (d). Courts have held that the Government may seek
prospective disclosure of records under the SCA because “the prospective . . . information sought
by the Government . . . becomes a ‘historical record’ as soon as it is recorded by the provider,”
and the statute “in no way limits the ongoing disclosure of records to the Government as soon as
they are created.” In re Application of the United States, 632 F. Supp. 2d 202, 207 n.8 (E.D.N.Y.
2008).29 Like the SCA, there is nothing in the text or legislative history of Section 215
indicating that Congress meant to prohibit contemporaneous production to the Government of
business records that are generated on a daily basis. This approach does not provide the
Government with indefinite access to bulk telephony metadata, as Plaintiffs suggest, see
Klayman I Br. at 19, as the Government must obtain a new order for production of these
metadata every 90 days. See supra at 9.30
Plaintiffs have demonstrated no likelihood of success on their claim that the NSA’s
collection of bulk telephony metadata exceeds the Government’s authority under Section 215.

29

See also United States v. Booker, 2013 WL 2903562, at *6-7 (N.D. Ga. June 13,
2013); In re Application of the United States, 622 F. Supp. 2d 411, 418-19 (S.D. Tex. 2007); In
re Application of the United States, 460 F. Supp. 2d 448, 459 (S.D.N.Y. 2006); In re Application
of the United States, 433 F. Supp. 2d 804, 806 (S.D. Tex. 2006); In re Application of the United
States, 411 F. Supp. 2d 678, 680 (W.D. La. 2006); In re Application of the United States, 405 F.
Supp. 2d 435, 446-47 (S.D.N.Y. 2005).
30

Furthermore, Section 215 expires on June 1, 2015, pursuant to section 102(b)(1) of the
USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. 109-177, 120 Stat. 195
(50 U.S.C. § 1805 note), as amended by section 2(a) of the PATRIOT Sunsets Extension Act of
2011, Pub. L. 112-4, 125 Stat. 216. Congress will have to decide before then whether to re-enact
Section 215 without change, or amend it, in light of what is now publicly known about the
Government’s exercise of authority under the statute.
43

B.

Plaintiffs Have No Likelihood of Success on Their Statutory Challenge
to the Government’s Targeted Collection Directed Against
non-U.S. Persons Located Outside the United States

To the extent Plaintiffs mean to argue that the Government has also engaged in “bulk
acquisition” of the content of Americans’ electronic communications, in excess of the authority
conferred by Section 215, see Klayman II Br. at 13-15, 19-21, their argument is misguided as a
matter of fact and law.
As discussed above, Section 702 of FISA authorizes the Government to conduct
surveillance that targets non-U.S. persons located outside the United States to acquire foreign
intelligence information, 50 U.S.C. § 1881a(a), (b), subject to FISC approval of the
Government’s procedures to ensure lawful targeting of its surveillance and minimization of the
acquisition, retention, and dissemination of non-public information about non-consenting U.S.
persons, id. § 1881a(i)(2)-(3). The Government has acknowledged its use of this authority to
target non-U.S. persons located abroad. See supra at 13-15. Plaintiffs have adduced no
evidence, however, that the Government has ever collected the contents of electronic
communications in bulk—whether of American citizens or otherwise—or that it has ever
collected the contents of such communications, in bulk or otherwise, under authority of Section
215.
C.

Plaintiffs Have No Likelihood of Success on Their Statutory Challenge
to the Government’s Prior Collection of Bulk Internet Metadata

Plaintiffs similarly maintain that the collection of bulk Internet metadata exceeds the
Government’s authority under Section 215, on the ground that bulk collection of Internet
metadata does not comport with Section 215’s relevance requirement. Klayman II Br. at 19-21.
To the extent Plaintiffs are referring to the FISC-authorized bulk collection of Internet metadata
recently declassified by the DNI, the DNI has explained that the program was discontinued in
44

2011, and thus there is no current collection to enjoin that warrants consideration of whether that
activity exceeded statutory authority. Second, as also explained above, that program of bulk
Internet metadata collection was authorized by the FISC under authority of the pen/trap statute,
50 U.S.C. § 1842 (not Section 215).31 Accordingly, Plaintiffs’ allegations concerning the bulk
collection of Internet metadata cannot support an award of preliminary injunctive relief.
In sum, Plaintiffs have demonstrated no likelihood of success on the merits of their
claims against the Government Defendants.
IV.

PLAINTIFFS CANNOT SUCCEED ON THE MERITS OF THEIR FOURTH
AMENDMENT CLAIM BECAUSE THE CHALLENGED SURVEILLANCE
DOES NOT VIOLATE PLAINTIFFS’ FOURTH AMENDMENT RIGHTS
A.

Plaintiffs Have No Fourth Amendment Privacy Interest in
Telecommunications Metadata

The Fourth Amendment provides in relevant part 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.” As the Supreme Court remarked just last year, “for most of our history the
Fourth Amendment was understood 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). In addition to the core concern over searches and seizures within
these enumerated areas, it is now understood that a Fourth Amendment “search” takes place
when the government’s investigative activities “violate a person’s ‘reasonable expectation of
privacy.’” Id. (quoting Katz v. United States, 389 U.S. 347, 360 (1967)).
The Government’s collection of telephony metadata pursuant to orders of the FISC does
not involve a “search” of individual subscribers or their property. The orders are directed to
telecommunications service providers, not to subscribers, and direct the production of what are
31

Moreover, the FISC has previously found that bulk collection of information
comports with the relevance requirement of the pen/trap statute. See Aug. 29 FISC Op. at 19-20.
45

indisputably the providers’ own business records. Nor do telephone subscribers have a
reasonable expectation of privacy in telephony metadata. In Smith v. Maryland, 442 U.S. 735,
741-46 (1979), the Supreme Court held that the government’s recordation of numbers dialed
from an individual’s home telephone, through a pen register installed at the telephone company’s
central offices, did not constitute a search of that individual under the Fourth Amendment,
because persons making telephone calls, even from their own homes, lack a reasonable
expectation of privacy in the numbers they call. In contrast to the contents of telephone calls, the
Court held that there is no reasonable expectation of privacy in the telephone numbers dialed,
because 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,” such as billing and fraud detection. Id. at 743.
Furthermore, the Court reasoned, even if a subscriber harbored a subjective expectation
that the phone numbers he dialed would remain private, such an expectation of privacy would
not be reasonable, because “a person has no legitimate expectation of privacy in information he
voluntarily turns over to third parties.” Id. at 743-44. The Court explained that someone who
uses a phone has “voluntarily conveyed numerical information to the telephone company and
‘exposed’ that information to its equipment in the ordinary course of business,” and therefore has
“assumed the risk that the company would reveal to police the numbers he dialed.” Id. at 744.
The third-party doctrine has consistently been applied, both pre- and post-Smith, to telephone
call detail records like the business records at issue here, which are also third-party records.32

32

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
46

Smith is fatal to Plaintiffs’ claim that the collection of their telephony metadata violates
the Fourth Amendment. See Aug. 29 FISC Op. at 6 (“The production of telephone service
provider metadata is squarely controlled by Smith . . . . [Smith] and its progeny have governed
Fourth Amendment jurisprudence with regard to telephony and communications metadata for
more than 30 years.”). So far as metadata include such information as the times and duration of
calls and the numbers of the parties with whom they spoke, that is information that telephone
subscribers voluntarily turned over to their providers. The remaining data, such as trunk
identifiers, is information generated by the phone companies themselves. See Primary Order at 3
n.1. Call-detail records memorializing this information belong to the phone companies, as the
parties providing the equipment and services required to make those calls possible. See 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). Thus, under Smith, there can be no reasonable
expectation of privacy in this information, even if—as has not been alleged here—there were an
understanding that the third party (i.e., the telephone company) would treat the information as
confidential. SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 743 (1984); Miller, 425 U.S. at 443.
Importantly, the call-detail records reveal only phone numbers and other numeric data,
not any information identifying the caller or the person called. See Shea Decl. ¶¶ 15, 21; Holley
Decl. ¶¶ 7, 11. Thus, these data do not in fact reveal any information about the subscriber’s
professions, political activities, or other activities in which they may have a privacy interest. See
Klayman I Br. at 20; Klayman II Br. at 21-22. The mere fact that the numbers dialed from a
phone could, in some hypothetical sense, reveal the identities of the persons and the places

(E.D.N.Y. 1982). Cf. United States v. Covello, 410 F.2d 536, 540-42 (2d Cir. 1969); United
States v. Gallo, 123 F.2d 229, 231 (2d Cir. 1941).
47

called, was raised by the dissenters in Smith, 442 U.S. at 748 (Stewart, J., dissenting), but the
Court nonetheless ruled that there is no reasonable expectation of privacy in telephone numbers
dialed. Id. at 741-42; 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).
Remarkably, Plaintiffs fail to even cite, let alone attempt to distinguish, Smith. Instead,
they rely on Justice Sotomayor’s concurring opinion in United States v. Jones, 132 S. Ct. 945
(2012), for the proposition that “Plaintiffs’ expectation that their communication records will not
be subject to long-term recording, aggregation, and surveillance by the government[] is
objectively reasonable, particularly as the intrusive surveillance at issue allows the government
to gather intricate details of each individual and their associations with one another, including
their clients, supporters, and membership.” Klayman I Br. at 20, Klayman II Br. at 22. Justice
Sotomayor expressed concern that the GPS monitoring at issue in Jones, which the Court held
constituted a search under a trespass theory completely inapplicable here, “‘generates a precise,
comprehensive record of a person’s public movements that reflects a wealth of detail about her
familial, political, professional, religious, and sexual associations.’” Jones, 132 S. Ct. at 955-56
(Sotomayor, J., concurring). That was so because the GPS device used in Jones was attached by
law enforcement officers to a single, known person’s vehicle and recorded the vehicle’s locations
over a period of time. Law enforcement learned from the GPS data where that particular person
had been over 28 days and used that information to prosecute him. In contrast here, however, the
bulk telephony metadata program provides the NSA with information about calls between
unidentified phone numbers, when the calls occurred, and how long they lasted. Thus, unlike in
Jones, the NSA does not know the identity of anyone making or receiving the calls (apart,

48

perhaps, from the suspected terrorist actors associated with the “seed” identifiers), and under the
terms of the FISC’s orders, cannot use the metadata to detail individuals’ associations.33
Nor does the scope of the telephony metadata collection under the FISC’s orders alter the
Fourth Amendment analysis. 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, e.g.,
Minnesota v. Carter, 525 U.S. 83, 88 (1998); Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). No
Fourth Amendment-protected interest of Plaintiffs is implicated, therefore, by virtue of the fact
that the metadata of many other individuals’ calls are collected as well as their own. See In re
Grand Jury Proceedings, 827 F.2d 301, 305 (8th Cir. 1987) (rejecting argument that a subpoena
was unreasonable under the Fourth Amendment because it “may make available to the grand jury
[money transfer] records involving hundreds of innocent people”); United States v. Rigmaiden,
2013 WL 1932800, at *13 (D. Ariz. May 8, 2013) (Government did not violate defendant’s
Fourth Amendment rights by acquiring a high volume (1.8 million) of IP addresses).
Courts have also specifically applied the reasoning of Smith to find no reasonable
expectation of privacy in Internet metadata, finding the use of a pen register to obtain data such
as the to/from addresses of email messages to be “constitutionally indistinguishable from the use
of a pen register that the Court approved in Smith.” United States v. Forrester, 512 F.3d 500,

33

For this reason, even in the absence of Smith, the mere collection of Plaintiffs’
telephony metadata under the Section 215 program, without review of the data pursuant to a
query made under “reasonable articulable suspicion” standard, would not rise to the level of a
search under the Fourth Amendment, because the Government’s acquisition of an item without
examining its contents “does not compromise the interest in preserving the privacy of its
contents.” Horton v. California, 496 U.S. 128, 142 n.11 (1990). See also United States v. Van
Leeuwen, 397 U.S. 249, 252-53 (1970) (defendant’s interest in the privacy of his detained firstclass mail “was not disturbed or invaded” until the Government searched the packages).
49

510 (9th Cir. 2008).34 Thus, Plaintiffs have no Fourth Amendment privacy interest in the
collection of internet metadata either, and the acknowledged internet metadata collection
program has ceased. It is therefore not necessary to address its reasonableness (which in any
event tracks the reasonableness of the telephony metadata collection), even if its collection
amounted to a search (which it did not under Smith and its progeny).
B. The Government’s Acquisition of Telephony Metadata Is Reasonable
Even if collecting telephony metadata involved a Fourth Amendment “search” (it does
not), the Fourth Amendment bars only “unreasonable” searches and seizures, whereas the
collection of metadata at issue here is reasonable under the standard the Supreme Court applies
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
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.” Nat’l Treasury Emps. Union v.
Von Raab, 489 U.S. 656, 665-66 (1989). More specifically, the scope of the legitimate
expectation of privacy and the character of the intrusion are balanced against the nature of the
government interests to be furthered, as well as the immediacy of the government’s concerns
regarding those interests and the efficacy of the policy at issue in addressing those concerns. See
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 658, 660, 662-63 (1995).

34

See also Guest v. Leis, 255 F.3d 325, 335-36 (6th Cir. 2001); In re Application of the
U.S. for an Order Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp. 2d 114, 131-38 (E.D. Va. 2011)
(Internet protocol (“IP”) address information); United States v. Qing Li, No. 07 CR 2915 JM,
2008 WL 789899, at *4-5 (S.D. Cal. Mar. 20, 2008) (IP log-in histories and addressing
information). As the Court explained in Forrester, email and internet users also rely on thirdparty companies and equipment to engage in their communications; and email to/from addresses
and IP addresses are addressing information and do not necessarily reveal any more about the
contents of communications than do phone numbers. 512 F.3d at 510-11.
50

The NSA’s collection of telephony metadata clearly serves special governmental needs
above and beyond normal law enforcement. The undisputed programmatic purpose of the
collection of this metadata 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
protecting public safety and national security. The Supreme Court has distinguished between
domestic-security surveillance and surveillance in connection with ordinary crime:
The gathering of security intelligence is often long range and involves the
interrelation of various sources and types of information. The exact targets of
such surveillance may be more difficult to identify than in surveillance operations
against many types of crime . . . . Often, too, the emphasis of domestic
intelligence gathering is on the prevention of unlawful activity or the
enhancement of the Government’s preparedness for some possible future crisis or
emergency. Thus, the focus of domestic surveillance may be less precise than
that directed against more conventional types of crime.
United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 322-23 (1972). See also Bd. of Educ. of
Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 828 (2002) (the probable
cause standard “is peculiarly related to criminal investigations and may be unsuited to
determining the reasonableness of administrative searches where the Government seeks to
prevent the development of hazardous conditions.”) (internal quotations omitted); Abu-Jihaad,
630 F.3d at 122 (extending the distinction noted in Keith to foreign intelligence surveillance); In
re Sealed Case, 310 F.3d 717, 746 (FISC-R 2002) (“FISA’s general programmatic purpose, to
protect the nation against terrorists and espionage threats directed by foreign powers, has from its
outset been distinguishable from ‘ordinary crime control.’”).
If, contrary to Smith, Plaintiffs could be said to have any Fourth Amendment privacy
interest that is implicated by collection of non-content telephony metadata, that interest would be
minimal. Moreover, the intrusion on that interest would be mitigated still further by the
51

statutorily mandated restrictions on access to and dissemination of the metadata that are written
into the FISC’s orders. See Primary Order, at 4-14. See also Maryland v. King, 133 S. Ct. 1958,
1979 (2013) (safeguards limiting DNA analysis to identification information alone reduced any
intrusion into privacy); Board of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v.
Earls, 536 U.S. 822, 833 (2002) (restrictions on access to drug-testing results lessened intrusion
on privacy); Vernonia Sch. Dist., 515 U.S. at 658 (intrusion of urine-testing on privacy was
reduced by fact that student athletes were tested only for illegal drugs and not for medical
condition).
On the other side of the balance, the collection and analysis of telephony metadata
promote overriding public interests. The Government’s 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) (“no 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) (“the relevant governmental interest—the
interest in national security—is of the highest order of magnitude.”). Requiring individualized
suspicion here would indeed be impracticable. The Government’s interests in identifying
unknown terrorist operatives and preventing terrorist attacks cannot be as effectively achieved by
requiring individualized suspicion to collect metadata, because such a requirement would not
permit the type of historical analysis and contact chaining that the broader collection enables and
to quickly identify contacts. See Aug. 29 FISC Op. at 20-22; Report on the National Security
Agency’s Bulk Collection Programs for USA PATRIOT Act Reauthorization, at 5. Thus, given
that the program might be rendered entirely infeasible, it would certainly be “impracticable” to
require individualized suspicion in this context. See Von Raab, 489 U.S. at 665-66.

52

Thus, even if Plaintiffs had a reasonable expectation of privacy in telephony metadata,
which they do not, the NSA’s acquisition of these data is reasonable and does not violate
Plaintiffs’ Fourth Amendment rights.
C.

The NSA’s PRISM Collection Does Not Violate Plaintiffs’ Fourth
Amendment Rights

To the extent the Klayman II motion for preliminary injunction claims that the NSA’s
PRISM collection violates Plaintiffs’ Fourth Amendment rights, Plaintiffs are unlikely to
succeed on the merits of this claim as well. The Government has acknowledged that the NSA
targets non-U.S. persons located overseas under its PRISM collection, pursuant to Section 702 of
the FISA. See Oct. 3, 2011 FISC Op., 2011 WL 10945618, at *9 n.24; IC’s Collection Programs
Under Title VII of the FISA, at 3. As discussed above, Plaintiffs have not alleged any facts that
would suggest that their communications have been either targeted or incidentally collected
under the PRISM collection, which in and of itself prevents them from succeeding on such a
claim. But even if they could get past this hurdle, their Fourth Amendment claim would still fail
because (i) the PRISM collection may target only non-U.S. persons located outside the United
States, who lack Fourth Amendment rights altogether; (ii) any privacy interests in
communications incidentally intercepted in a Section 702 acquisition are protected through
minimization procedures required by Section 702 and approved by the FISC; (iii) foreign
intelligence-gathering comes within the special governmental needs exception to the warrant
requirement; and (iv) the PRISM collection is reasonable.
Section 702 acquisitions may target only non-U.S. persons located outside the United
States—who lack Fourth Amendment rights to begin with. See United States v. VerdugoUrquidez, 494 U.S. 259, 271 (1990) (holding that only persons who “have come within the
territory of the United States and developed substantial connections” to the country have Fourth
53

Amendment rights). Because the Fourth Amendment does not protect such persons in the first
instance, it cannot prevent the Government from subjecting them to surveillance without a
warrant. To the extent Plaintiffs’ claim is that their communications were collected incidentally
under the PRISM collection, the “incidental interception of a person’s conversations during an
otherwise lawful surveillance is not violative of the Fourth Amendment.” United States v. Bin
Laden, 126 F. Supp. 2d 264, 280 (S.D.N.Y. 2000) (citing, inter alia, United States v. Kahn, 415
U.S. 143, 157 (1974) (holding that interception of wife’s communications incident to lawful
wiretap targeting husband’s communications did not violate the Fourth Amendment)). If it were
otherwise, virtually all surveillance of foreign targets abroad would require a warrant, because
there is almost always the possibility that a foreign target may communicate with a U.S. person.
Had any of Plaintiffs’ communications been incidentally intercepted under PRISM, their
privacy interests in those communications would be protected by the minimization procedures
approved by the FISC under Section 702. By definition, minimization procedures under FISA
must be reasonably designed to minimize the acquisition and retention, and to prohibit the
dissemination, of private information concerning U.S. persons, to the extent consistent with the
Government’s need to obtain, produce, and disseminate foreign intelligence information. 50
U.S.C. § 1801(h). In other words, such procedures by design aim to ensure that any intrusion on
the privacy of U.S. persons is reasonably balanced against governmental intelligence needs.
Such minimization procedures have been held constitutionally sufficient to protect third-parties
in the domestic law enforcement context. See, e.g., United States v. Figueroa, 757 F.2d 466, 471
(2d Cir. 1985) (“Innocent parties are protected from unreasonable surveillance by the
requirement contained in [Title III] that surveillance ‘shall be conducted in such a way as to
minimize the interception of communications not otherwise subject to interception.’”) (citing
Scott v. United States, 436 U.S. 128, 130-31 (1978)). This conclusion applies fully—if not more
54

forcefully—in the foreign intelligence context. See, e.g., In re Sealed Case, 310 F.3d at 740-41
(FISA’s requirement of minimization procedures supports statute’s reasonableness).
Moreover, foreign intelligence-gathering serves a purpose beyond the normal need for
law enforcement and therefore comes within the special governmental needs exception to the
warrant requirement. As the FISC Court of Review has held, the Government’s “programmatic
purpose” in obtaining foreign intelligence information is “to protect the nation against terrorist
and espionage threats directed by foreign powers—‘a special need’ that fundamentally differs
from ‘ordinary crime control.’” In re Sealed Case, 310 F.3d at 717. And, more specifically, the
FISC “has previously concluded that the acquisition of foreign intelligence information pursuant
to Section 702 falls within the ‘foreign intelligence exception’ to the warrant requirement of the
Fourth Amendment.” Oct. 3, 2011 FISC Op., 2011 WL 10945618, at *24.
Monitoring foreign targets located overseas under Section 702 is critical to protecting
against foreign threats to national security and thus serves governmental interests of the highest
order. Balanced against these important interests are the privacy interests of U.S. persons whose
communications may be collected incidentally, but, as discussed above, any such interests are
adequately protected by Section 702’s minimization procedures. The safeguards built into the
statute provide reasonable assurance that the surveillance it authorizes will target only foreign
persons outside the United States and will be conducted in a way that minimally affects the
privacy of U.S. persons. The Fourth Amendment requires no more.
V.

PLAINTIFFS CANNOT DEMONSTRATE THAT THEY ARE LIKELY TO
SUCCEED ON THEIR FIRST AMENDMENT CLAIM
A.

Good-Faith Investigatory Conduct Not Intended to Deter or Punish
Protected Speech or Association Does Not Violate the First Amendment

Plaintiffs’ First Amendment claim, that the metadata and content collections violate their
freedom of speech and association, Klayman I Br. at 22-26; Klayman II Br. at 24-28, perishes in
55

the wake of their failed Fourth Amendment claim. Recognizing the need to accommodate the
Government’s interests where prevention of crime, or, even more imperatively, potential threats
to national security are concerned, see ACLU Found. v. Barr, 952 F.2d 457, 471 (D.C. Cir.
1991), courts distinguish for purposes of First Amendment analysis between government
investigations that may have the incidental effect of deterring First Amendment activity, and
concrete government action of a regulatory, proscriptive, or compulsory nature that is directed
against individuals based on their expressive or associational activities. See Zurcher v. Stanford
Daily, 436 U.S. 547, 564 (1978); Laird, 408 U.S. at 11; Reporters Comm. for Freedom of the
Press v. AT&T, 593 F.2d 1030, 1051-53 (D.C. Cir. 1978). Accordingly, the law is clear that
good faith governmental investigations conducted in observance of Fourth Amendment
requirements, without purpose to deter or penalize protected expression or association, do not
violate the First Amendment. See Reporters Comm., 593 F.2d at 1051-53; see also id. at 1051
(concluding that First Amendment protects activities “subject to the general and incidental
burdens that arise from good faith enforcement of otherwise valid criminal and civil laws that are
not themselves solely directed” at First Amendment conduct); see also Gordon v. Warren
Consol. Bd. of Educ., 706 F.2d 778, 781 n.3 (6th Cir. 1983) (collecting cases).
Here, Plaintiffs have not set forth competent evidence proving that the Government’s
bulk metadata or targeted content collections are (or were) aimed at curtailing any of their First
Amendment expressive or associational activities, or have had any purpose other than to identify
terrorist operatives and prevent terrorist attacks. See Klayman I Br. at 22, 25-26, and Am.
Compl. ¶¶ 3-4, 30-33, 38-39, 57. With respect to the only targeted program at issue here—
PRISM under Section 702—Plaintiffs offer no evidence that their communications have been
targeted or acquired under Section 702, which is directed at non-U.S. persons located outside the
United States. Accordingly, Plaintiffs’ First Amendment claim has no prospect of success.
56

B.

The Programs Plaintiffs Challenge Impose No Direct or Significant Burden
on Plaintiffs’ Speech or Associational Rights

Plaintiffs’ contention that the metadata and content collection programs should be
subjected to “exacting scrutiny” because they impose a “significant” burden on Plaintiffs’ speech
and associational rights, Klayman I Br. at 23-26; Klayman II Br. at 25-28, also fails as a matter of
law and fact. First, as discussed above, the underlying premise of Plaintiffs’ argument—that the
programs expose to government scrutiny all of Plaintiffs’ sensitive contacts with clients,
associates, friends and relatives, as well as whistleblowers, and others with whom they might
collaborate in their work—is without foundation. Plaintiffs neither allege nor offer any evidence
that the metadata related to any of their communications (which do not include the names or
addresses of anyone with whom Plaintiffs speak by phone) have ever been accessed or reviewed
by NSA analysts for any purpose, whether as the results of queries based on the “reasonable,
articulable suspicion” standard, or otherwise. Nor have Plaintiffs offered any evidence that they
communicate with non-U.S. persons located overseas who could even be the targets of Section
702 collection, let alone set forth a single, concrete example that the contents of any of their
communications have been targeted or incidentally collected pursuant to Section 702.
Nor have Plaintiffs set forth any competent evidence of a “chilling effect” attributable to
the challenged programs that interferes with their First Amendment rights of speech or
association. The evidence proffered by Plaintiffs does not show that they themselves are actually
or even subjectively “chilled” by Government’s activities under the challenged programs.
Rather, apart from vague and conclusory assertions about the supposed “impact” of their
subjective fears of surveillance on their “ability to communicate via telephone, email, and
otherwise,” Klayman Aff. ¶ 11; Strange Aff.¶¶ 12-20, Plaintiffs offer no evidence of actually
having been chilled from communicating or associating with anyone. Further, while Plaintiffs
57

speculate in their brief that third-parties who regard their associations with Mr. Klayman as
confidential may be “chilled” from contacting him because of the challenged programs, see
Klayman I Br. at 26; Klayman II Br. at 27-28, they provide no concrete evidence to substantiate
this assertion, either. Moreover, any such chill, even if shown, would be attributable to these
third parties’ own speculative fears of surveillance, not to conduct of the Government. Amnesty
Int’l, 133 S. Ct. at 1152 n.7. These allegations fail to demonstrate an actual chill on speech or
associational activity as required to support a First Amendment claim. See Harris v. Holder, 885
F. Supp. 2d 390, 400 (D.D.C. 2012) (“Where a party can show no change in [his] behavior, [he]
has quite plainly shown no chilling of [his] First Amendment right to free speech.”) (internal
quotations omitted; alterations added); Krieger v. DOJ, 529 F. Supp. 2d 29, 58 (D.D.C. 2008).35
Nor can Plaintiffs draw any meaningful parallel between the instant matter and compelled
disclosure cases where courts have applied “exacting” First Amendment scrutiny to government
conduct. In NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), on which Plaintiffs
principally rely, Klayman I Br. at 23-25; Klayman II Br. at 25-27, the Alabama courts had
ordered the NAACP to produce local membership lists in connection with litigation to oust it
from the State as an unregistered corporation. See 357 U.S. at 451-53. The Supreme Court held
that Alabama could not compel the NAACP to disclose its membership lists because it “made an
uncontroverted showing that on past occasions revelation of the identity of its rank-and-file
members has exposed these members to economic reprisal, loss of employment, threat of
physical coercion, and other manifestations of public hostility.” Id. at 462. “Under these
circumstances,” the Court found it “apparent that compelled disclosure of [NAACP]’s Alabama
35

Indeed, while Plaintiff Klayman baldy alleges that the “NSA Program at issue in this
case poses a substantial threat” to his ability to perform his political work as the Founder of
Freedom Watch, Klayman Aff. ¶ 9, his affidavit details the ongoing activities of his “Reclaim
America Now” movement, which includes an upcoming demonstration in Washington D.C. on
November 19, 2013, id. ¶ 8.
58

membership” entailed a “substantial restraint” on the organization’s freedom of association. Id.;
see also Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87, 98-99 (1982) (similarly
holding unconstitutional the targeted, compelled disclosure of contributions to and expenditures
by Socialist Workers Party, based on “substantial evidence” of harassment, threats, assaults, and
reprisals against its members); Bates v. City of Little Rock, 361 U.S. 516, 523-24 (1960).
In contrast, Plaintiffs present no evidence that NSA’s collection of communications under
Section 702 targets Plaintiffs rather than non-U.S. persons located abroad. Nor do Plaintiffs
allege, much less point to any evidence, that they communicate with such persons so as to make
even incidental collection of their communications possible. Furthermore, the FISC orders
authorizing the telephony metadata program are not based on the content of anyone’s
communications, and do not compel Plaintiffs to disclose, or direct anyone else, including
providers, to disclose names or addresses of Plaintiffs, their members, their clients, or anyone
else with whom they associate (or expose them to the public hostility suffered by the parties in
such cases as NAACP). See Primary Order at 3-9. Rather, the NSA obtains only numeric
telephony metadata, to which analysts and investigators are permitted no access unless they are
responsive to queries based on identifiers associated with foreign terrorist organizations. Id.
Plaintiffs have neither alleged nor shown that any metadata of their calls have been retrieved or
examined by NSA analysts as a result of such queries, or otherwise.
Thus, even if this were a compelled-disclosure case, which it is not, Plaintiffs could not
establish the “substantial evidence” of a direct and targeted encroachment on First Amendment
rights required to trigger “exacting scrutiny,” as was the situation in many of the cases Plaintiffs
cite.36 As the Supreme Court has explained, “exacting scrutiny” applies “to regulations that

36

For example, in Clark v. Library of Congress, the D.C. Circuit applied “exacting
scrutiny” to a “targeted investigation of an individual based solely on the exercise of his
59

suppress, disadvantage, or impose differential burdens upon speech because of its content.”
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994) (emphasis added); see also Clark, 750
F.2d at 94 (holding that exacting scrutiny applies to government surveillance “motivated solely
by an individual’s lawful beliefs or associations”) (emphasis added). Plaintiffs fall well short of
this threshold. They have not alleged or submitted any evidence that the telephony metadata
program is (or that the Internet metadata program was) content-based, much less directed at
curtailing or punishing free expression or association. See Klayman I Br. at 22-26; Klayman II
Br. at 24-28. Nor have they alleged any facts suggesting that their communications have been
either targeted or incidentally collected under Section 702. Plaintiffs’ failure to establish “direct
and substantial” interference with their speech or associational rights brings the First
Amendment inquiry—under exacting scrutiny, or any other standard—to an end. Accordingly,
Plaintiffs’ First Amendment claim cannot support an award of preliminary relief.
VI.

PLAINTIFFS CANNOT DEMONSTRATE THAT THEY ARE LIKELY TO
SUCCEED ON THEIR FIFTH AMENDMENT CLAIM
Plaintiffs assert substantive and procedural due process claims that are plainly

insubstantial and should be rejected.
A.

Plaintiffs’ Substantive Due Process Claim Should Be Dismissed as
Duplicative of Their Fourth Amendment Claim

Plaintiffs’ substantive due process argument is premised on an alleged liberty interest in
the privacy of their communications. See Klayman I Br. at 26-27; Klayman II Br. at 28-29.
However, “[w]here a particular Amendment ‘provides an explicit textual source of constitutional
protection’ against a particular sort of government behavior, ‘that Amendment, not the more

associational rights,” which resulted in “an extraordinary” full field investigation by the FBI.
750 F.2d 89, 93-95 (D.C. Cir. 1984). See also Elrod v. Burns, 427 U.S. 347, 350 (1976)
(applying “exacting scrutiny” to claimed termination of public employees “solely for the reason
that they were not affiliated with or sponsored by the Democratic Party”).
60

generalized notion of “substantive due process,” must be the guide for analyzing’these claims.”
Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395
(1989)). Because Plaintiffs ground their substantive due process claim on privacy interests
allegedly protected by the Fourth Amendment, that claim cannot serve as an independent basis
for issuing a preliminary injunction. See, e.g., Elkins v. Dist. of Columbia, 690 F.3d 554, 562
(D.C. Cir. 2012) (rejecting plaintiff’s attempt to use the Fifth Amendment to challenge allegedly
unlawful search and seizure); Lyles v. Micenko, 468 F. Supp. 2d 68, 73 n.5 (D.D.C. 2006) (Leon,
J.) (refusing to analyze Fourth Amendment claim under the rubric of substantive due process).
B.

Plaintiffs’ Procedural Due Process Claim Is Also Meritless.

Plaintiffs also fail to state a viable procedural due process claim. They argue that the
Government deprived them of the aforementioned privacy interests “the moment” the NSA
“secretly collected, acquired, retained, searched, and used” information related to and contained
in their communications without providing any pre-deprivation notice to Plaintiffs that would
allow them to ascertain “what conduct may subject them to electronic surveillance.” Klayman I
Br. at 27; Klayman II Br. at 28-29. Plaintiffs cite not a single authority for the proposition that
the Government must give prior notice to persons before it may gather information about their
communications as part of a classified, FISC-authorized, intelligence-gathering program
conducted for purposes of protecting national security. That alone should be reason enough to
reject this claim as a basis for awarding extraordinary injunctive relief. But even if the Court
were to entertain this claim, it would not withstand analysis.
To establish a violation of procedural due process, Plaintiffs must show that the
Government deprived them of a “constitutionally protected [liberty or] property interest,” and
that its “procedures in doing so do not satisfy procedural due process.” Simms v. Dist. of
Columbia, 872 F. Supp. 2d 90, 95 (D.D.C. 2012); see also Gen. Elec. Co. v. Jackson, 610 F.3d
61

110, 117 (D.C. Cir. 2010). Even assuming that Plaintiffs retain a residual liberty interest in the
privacy of their communications that is entitled to due-process protection above and beyond the
protections already afforded by the Fourth Amendment, see Brown v. McHugh, No. 12-01071, -- F. Supp. 2d ---, 2013 WL 5310185, at *7 (D.D.C. Sept. 23, 2013) (Leon, J.) (“[O]nly after
finding the deprivation of a protected interest do[es] [the Court] look to see if the [government’s]
procedures comport with due process.”) (internal quotation omitted)), they are not “due” the predeprivation notice they demand.
Where protected liberty interests are implicated, the determination of what process is due
requires consideration of three factors: “(1) the significance of the private party’s protected
interest, (2) the government’s interest, and (3) the risk of erroneous deprivation and ‘the probable
value, if any, of the additional or substitute procedural safeguards.’” Gen. Elec. Co., 610 F.3d at
117 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). Due process “is not a technical
conception with a fixed content unrelated to time, place and circumstances,” but rather, it “is
flexible and calls for such procedural protections as the particular situation demands,” Gilbert v.
Homar, 520 U.S. 924, 930 (1997) (internal quotation marks and citation omitted)), and, as
relevant here, takes into account “essential national security considerations.” Gonzalez v.
Freeman, 334 F.2d 570, 580 n.21 (D.C. Cir. 1964).
Here, the Government’s interest in identifying terrorist operatives and intercepting their
communications for the purpose of preventing terrorist attacks is a national security concern that
far outweighs any residual privacy interest that Plaintiffs may have in their communications not
already protected by the Fourth Amendment, and by the same token outweighs any risk of
erroneous deprivation of that interest. “[N]o governmental interest is more compelling than the
security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981). The NSA’s collection of

62

information about and the contents of telephonic and electronic communications thus promotes a
governmental interest of the highest order. See, e.g., id.; In re Sealed Case, 310 F.3d at 746.
Requiring the Government, however, to provide advance notice to every individual
before acquiring information about his or her communications would be incompatible with the
secrecy required for such intelligence-gathering programs, see supra at 29 & n.14, and fatal to
their objectives. For example, if the Government disclosed to an individual associated with a
foreign terrorist organization that his communications (and/or metadata related to them) were to
be collected and subject to scrutiny by the Government, that individual, and his or her associates,
could take steps to avoid detection and alter their plans, thus placing national security at greater
risk.37 Due process does not require the Government to put national security at risk in such
fashion by providing communications services subscribers the process that Plaintiffs demand.
See Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2727 (2010); Jifry v. FAA, 370 F.3d
1174, 1184 (D.C. Cir. 2004). Plaintiffs’ Fifth Amendment claim is without merit and cannot
serve as a predicate for issuing a preliminary injunction.
VII.

THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST REQUIRE
THAT AN INJUNCTION BE DENIED
Finally, neither the public interest, nor a balancing of the equities, supports the issuance

of a preliminary injunction here. Plaintiffs seek to enjoin the Government from continuing the
37

See Implementation, supra, 109th Cong. at 65 (2005) (statement of Robert Khuzami)
(explaining that advance notice “could cause conspirators to accelerate the plot to a point where
authorities are less prepared to prevent it or protect American lives. Or terrorists might abandon
the plot, destroying evidence and taking flight, which would hinder prevention, capture and
prosecution. The plot might later resurface, at a point when we are less prepared and more
vulnerable.”); Shea Decl. ¶ 49. See also, e.g., Calero-Toledo v. Pearson Yacht Leasing Co., 416
U.S. 663, 679 (1974) (dispensing with pre-deprivation notice or hearing when exigent
circumstances exist and the government demonstrates a “pressing need for prompt action”);
Global Relief Found., Inc. v. O'Neill, 207 F. Supp. 2d 779, 803 (N.D. Ill. 2002) (“Due to the
exigencies of national security and foreign policy considerations, the Executive Branch
historically has not provided pre-deprivation notice in sanctions programs under [the
International Emergency Economic Powers Act].”).
63

programs implicated by their allegations,38 to bar them from collecting information about
Plaintiffs’ communications, to require them to segregate and destroy all such records, and to
prohibit the Government Defendants from querying metadata collected under these programs
using Plaintiffs’ identifiers. See Klayman I Br. at 30-31; Klayman II Br. at 32-33.
The Court must balance Plaintiffs’ asserted irreparable harm if injunctive relief is denied
against the harm to the public interest if it is granted. See Winter v. NRDC, 555 U.S. 7, 25
(2008). Whereas Plaintiffs failed to demonstrate irreparable harm, see supra at 25-26, the public
has a strong interest in continuing the programs involving the bulk collection of telephony
metadata and the targeted collection of communications under Section 702. The former program
“is a valuable source of intelligence for the FBI that is relevant to FBI-authorized international
terrorism investigations,” Holley Decl. ¶ 22, and the latter program “has produced and continues
to produce significant intelligence that is vital to protect the nation against international terrorism
and other threats.” Letter from DNI James R. Clapper and Attorney General Eric Holder to the
Honorable John Boehner, Harry Reid, Nancy Pelosi, and Mitch McConnell (Feb. 2, 2012) (Exh.
T, hereto). Courts accord great deference to the professional judgment of intelligence officials
regarding counter-terrorism matters, and they are properly reluctant to interfere with those
judgments. Humanitarian Law Project, 130 S. Ct. at 2727 (according deference to Executive
judgments on national security). Given that “[e]veryone agrees that the Government’s interest in
combating terrorism is an urgent objective of the highest order,” id. at 2724, and that the Court
must be particularly mindful of an injunction’s “consequent adverse impact on the public interest

38

The pen/trap program involving the bulk collection of Internet metadata need not be
analyzed here because the Government has, for operational and resource reasons, terminated this
collection in 2011. See Clapper Letter dated July 25, 2013, Exh. J, supra, at 3.
64

in national defense,” Winter, 555 U.S. at 24, the public interest and the balance of the equities
weigh strongly against enjoining the challenged programs.39
The balance of the equities also strongly favors denying Plaintiffs’ demand that the
Government Defendants segregate and destroy and records of their communications (if any have
been collected). Even if the Government Defendants possessed information concerning
Plaintiffs’ communications, segregation of that information would be “extraordinarily
burdensome,” could take six months to implement, and could ultimately have a degrading effect
on the utility of the program if an injunction in this case precipitated successful requests for such
relief by other litigants. See Shea Decl. ¶ 65. Plaintiffs’ demand that the Government
Defendants destroy any such information now would essentially and improperly give them full
relief on the merits at this preliminary stage. See Dorfmann v. Boozer, 414 F.2d 1168, 1173 n.13
(D.C. Cir. 1969) (“[A] preliminary injunction should not work to give a party essentially the full
relief he seeks on the merits.”); Bradshaw v. Veneman, 338 F. Supp. 2d 139, 144–45 (D.D.C.
2004) (Friedman, J.) (“[A] hurried resolution in favor of plaintiffs is not the purpose of
temporary or preliminary injunctive relief.”).
CONCLUSION
For the reasons stated above, Plaintiffs’ motions for preliminary injunctions should be
denied.
39

While the Government Defendants acknowledge the public interest in ensuring that the
government agencies comply with the law, as argued by Plaintiffs, see Klayman I Br. at 29-30;
Klayman II Br. at 32, this interest has been and is being vindicated through the statutory
framework for Sections 215 and 702 that involves stringent supervision and oversight by all
three branches. See 50 U.S.C. § 1861(a), (b) (Executive must apply to the FISC for an order
requiring the production of tangible things under Section 215), id. § 1861(g) (Executive
minimization procedures); Letter from Ronald Weich to Rep. Silvestre Reyes (Dec. 14, 2009)
(sharing information about the bulk collection of telephony metadata with Congress); see also 50
U.S.C. § 1881a(d), (e), (i) (judicial review of Section 702 Executive certifications, as well as
targeting and minimization procedures); id. § 1881a(l) (semi-annual compliance reports by
Executive to the FISC and to Congress).
65

Dated: November 12, 2013
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
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