KLAYMAN v. OBAMA et al

Filing 26

Unopposed MOTION For Leave To File Reply Brief With Extended Pages And A Supplemental Declaration by LARRY E. KLAYMAN, CHARLES STRANGE, MARY ANN STRANGE (Attachments: # 1 Exhibit 1 -- Supplemental Declaration of Professor Edward Felton, # 2 Text of Proposed Order)(Klayman, Larry)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

AMERICAN CIVIL LIBERTIES UNION;
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION; NEW YORK CIVIL
LIBERTIES UNION; and NEW YORK CIVIL
LIBERTIES UNION FOUNDATION,
Plaintiffs,

SUPPLEMENTAL
DECLARATION OF
PROFESSOR
EDWARD W. FELTEN

v.
JAMES R. CLAPPER, in his official capacity as
Director of National Intelligence; KEITH B.
ALEXANDER, in his official capacity as Director
of the National Security Agency and Chief of the
Central Security Service; CHARLES T. HAGEL,
in his official capacity as Secretary of Defense;
ERIC H. HOLDER, in his official capacity as
Attorney General of the United States; and
ROBERT S. MUELLER III, in his official
capacity as Director of the Federal Bureau of
Investigation,

Case No. 13-cv-03994 (WHP)
ECF CASE

Defendants.

SUPPLEMENTAL DECLARATION OF PROFESSOR EDWARD W. FELTEN
I, Edward W. Felten, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that
the following is true and correct:
1.

Counsel for Plaintiffs in this lawsuit have asked me to submit a supplemental

declaration explaining my views regarding four technological claims made by the government in
its opposition to Plaintiffs’ motion for a preliminary injunction:
a. that the government does not obtain subscriber names under the mass calltracking program, see, e.g., Gov’t PI Opp. 12;
b. that so-called “three-hop analysis” of a suspect’s phone number “cannot be as
effectively performed” without first building a database of everyone’s call
records, see, e.g., Gov’t PI Opp. 4;
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c. that telephony metadata is unique in its “standardized and inter-connected”
nature, see, e.g., Gov’t PI Opp. 21; and
d. that it would take the government “approximately six months” to develop a
method of quarantining Plaintiffs’ call records if a preliminary injunction were
granted, see Gov’t PI Opp. 40.
2.

Below, I address those four claims.
It is easy to correlate telephone numbers with subscriber names.

3.

The government repeatedly emphasizes in its motion that, under the mass call-

tracking program, it does not obtain the subscriber names associated with Americans’ telephone
numbers. This may be true, but it is of little significance. As I explained in my first declaration,
Felten Decl. ¶ 19 & n.14, it would be trivial for the government to obtain a subscriber’s name
once it has that subscriber’s phone number. This is so because phone numbers are unique
identifiers. Like social security numbers or individual taxpayer identification numbers, phone
numbers are unique to their owners.
4.

It is extraordinarily easy to correlate a phone number with its unique owner. Many

phone numbers are publicly correlated with their owners and can therefore be associated with
specific persons by consulting entirely public sources. For example, many free or low-cost
Internet services allow users to perform “reverse-lookup searches” to determine the owner of a
particular

phone

number.

See,

e.g.,

http://www.whitepages.com;

http://www.peoplefinders.com/reverse-phone-directory. Of course, physical phone directories
remain in wide circulation and have been digitized to facilitate reverse-lookup searches.
5.

The government also has an array of legal authorities at its disposal to discover

the subscriber names of particular phone numbers, even if those correlations are not otherwise
publicly available. For example, the government may issue demands to communication service

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providers for subscriber information—including subscriber names and addresses—relevant to
terrorism investigations. See Felten Decl. ¶ 19 n.14.
Three-hop analysis can be performed without a database of all call records.
6.

The government states that it could not perform three-hop analysis on a suspect’s

phone number without first building a database of everyone’s call records. See Gov’t PI Opp. 4.
This is technologically incorrect. There are a number of ways in which the government could
perform three-hop analysis without first building its own database of every American’s call
records.
7.

For example, the government could obtain a single court order directing all (or

perhaps even just the major) telephone companies to provide to the government the call records
of everyone within three hops of a suspect’s phone number. Using a straightforward algorithm
(which I could describe at greater length if necessary), this order could be implemented using at
most two queries to each telephone provider. Moreover, this process could easily be automated
to make it virtually instantaneous. Each of the major telephone companies now subject to an
order similar to the one revealed in June could create a simple electronic interface—known in the
computer-programming profession as an Application Programming Interface, or API—that
would be invoked by a government computer system to automate the collection of the data
needed for a three-hop analysis of a specific target’s phone number. The interfaces, working
together to implement the algorithm referred to above, could perform the government’s threehop analysis essentially instantaneously—in a matter of seconds or less. At least one of the major
telecommunications companies has already built part of such a system, providing the
government with a “community of interest” search capability, which is a form of the social-graph
analysis used in the mass call-tracking program. See Dep’t of Justice, Office of the Inspector

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Gen., A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other
Informal

Requests

for

Telephone

Records

56–64

(2010),

http://www.justice.gov/oig/special/s1001r.pdf; Eric Lichtblau, F.B.I. Data Mining Reached
Beyond Initial Targets, N.Y. Times, Sept. 9, 2007, http://nyti.ms/g34M.
8.

I have reviewed the declarations submitted by Teresa Shea and Robert Holley in

support of the government’s claim that the collection of all Americans’ call records is necessary.
Nothing in their explanation of the supposed necessity of the program alters my conclusion that
three-hop analysis could be performed quickly and efficiently without first creating a database of
the scope maintained by the government. For example, Ms. Shea suggests that the mass calltracking program would have allowed the government to learn that a 9/11 hijacker (Khalid alMihdhar) was in the United States when he communicated with an al Qaeda safe house in
Yemen. Shea Decl. ¶ 11. There is absolutely no need for a database of every American’s call
records to perform this sort of one-hop analysis. In al-Mihdar’s case, the government could
easily have obtained from the telephone companies (using any number of legal authorities) the
call records of any American in communication with the al Qaeda safehouse. The same is true of
the example provided by Mr. Holley of Najibullah Zazi. See Holley Decl. ¶ 26. Mr. Holley states
that the NSA received Zazi’s telephone number from the FBI and discovered that he was in
contact with Adis Medunjanin. Again, this simple connection could have been discovered
directly from the telephone companies without the need for a government database of all call
records. As I explained above, though, even if these cases involved more complex connections
with two or three degrees of separation, there still would be no need for the mass call-tracking
program to allow the government to discover the connections.

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Telephony metadata is not unique.
9.

The government argues that telephony metadata is unique in that it is

“standardized and inter-connected,” and that these characteristics are “not common to most other
types of records.” Gov’t PI Opp. 21. This suggestion is misleading.
10.

As I explained in my first declaration, Felten Decl. ¶ 20, telephony metadata is

easy to analyze because it is “structured,” or highly ordered. This fact is not unique, however, to
telephony metadata. Many other types of data are also structured and are therefore also easy to
analyze in the aggregate.
11.

Virtually every type of digital communications metadata is structured. This

includes, but is by no means limited to, email metadata, Internet-usage history, and Internet chat
records. Many other types of records are also structured, including financial records, credit-card
records, and even portions of medical records. This is no coincidence: industry experts often
develop and agree upon a standardized form for the structure of metadata or transactional data.
12.

Most of these sorts of structured records are interconnected. Communications

metadata are interconnected in a fairly obvious manner. But the same is true of financial and
medical records. For example, prescription records memorialize the identity of the doctor, the
identity of the patient, and the medicine prescribed. In a Medicare-fraud investigation, it would
be possible to use prescription records to conduct a social-graph analysis, see Felten Decl. ¶ 48
(explaining social graphs), of a particular doctor’s prescriptions. The analysis might reveal
connections between several doctors’ prescription habits, their overlapping patients, their
connections to other doctors known to engage in fraudulent practices, or divergences between
their prescription habits and the prescription habits of other doctors. See, e.g., The Rise of
Organized Crime in Health Care: Social Network Analytics Uncover Hidden and Complex Fraud

5

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Schemes,

Filed 10/25/13 Page 6 of 7

available

at

http://www.writersstudio.com/samples/whitepapers/Lexis%20Nexis%20social%20network%20a
nalytics.pdf.
13.

The same sort of social-graph analysis could be applied to financial or credit-card

records to uncover organized crime or fraud, because those records are also interconnected. A
money-laundering investigation, for instance, could benefit from the ability to trace funds
transferred from their source through a series of sham transactions and ultimately back to the
original account or owner, in order to make those funds appear “clean.”
It would be feasible to quarantine the ACLU’s call records.
14.

The government states that it would take “approximately six months,” Gov’t PI

Opp. 40, to devise a way in which to quarantine the ACLU’s call records if the ACLU’s request
for a preliminary injunction were granted. This is an implausible estimate for the time necessary
to develop the software to quarantine the ACLU’s call records.
15.

There are a number of ways that the government could efficiently and effectively

quarantine the ACLU’s call records. For example, the NSA could deploy an automated script
that would search its database for the ACLU’s call records and move those records to another
database that would not be accessed except at the direction of the Court. It could also apply a
filter to its three-hop analysis such that any call to or from an ACLU number would be ignored
(as would any other call down the chain from any such call). Indeed, it appears that the NSA
already has the ability to filter its three-hop analysis to exclude certain phone numbers. See, e.g.,
David S. Kris, On the Bulk Collection of Tangible Things, 1:4 Lawfare Res. Pap. Ser. 1, 13–14
(Sept. 29, 2013) (“NSA technicians may access the metadata to make the data more useable—
e.g., to create a ‘defeat list’ to block contact chaining through ‘high volume identifiers’

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presumably associated with telemarketing or similar activity." (quoting orders of the Foreign
Intelligence Surveillance Court)).
16.

Both of these solutions are relatively simple from a technological perspective, and

it is difficult to understand how either could take significant resources to implement, much less
the six months estimated by the government.

Dated: October 25, 2013

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