KLAYMAN v. OBAMA et al

Filing 31

REPLY to opposition to motion re 13 MOTION for Preliminary Injunction filed by LARRY E. KLAYMAN, CHARLES STRANGE, MARY ANN STRANGE. (Attachments: # 1 Exhibit 1 - Letter to Senator Grassley, # 2 Exhibit 2 -- Supplemental Affidavit of Larry Klayman, # 3 Exhibit 3 -- NSA Touhy Request, # 4 Text of Proposed Order)(Klayman, Larry)

IN UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LARRY KLAYMAN, et. al
Plaintiffs,
v.
BARACK HUSSEIN OBAMA II, et. al

Defendants.

Civil Action No. 13-CV-851

LARRY KLAYMAN, et. al
Plaintiffs,
v.
BARACK HUSSEIN OBAMA II, et. al

Defendants.

Civil Action No. 13-CV-881

PLAINTIFFS' REPLY IN SUPPORT OF THEIR MOTIONS FOR PRELIMINARY
INJUNCTION

I. INTRODUCTION

"Freedom is never more than one generation away from extinction. We didn't pass it to our
children in the bloodstream. It must be fought for, protected, and handed on for them to do the
same." - President Ronald Reagan
The National Security Agency ("NSA") has been collecting mass amounts of telephony
and metadata in violation of the Patriot Act and the First, Fourth, and Fifth Amendments to the
U.S. Constitution. Despite the NSA's false arguments to the contrary, none of the Defendants'
actions are condoned under U.S. law, and the NSA has been acting in violation of the law for as
long as the NSA and PRISM data collection programs have been ongoing.

1

The NSA has shown a pattern of lying to the American people, including by James
Clapper, the Director of National Intelligence. In addition, the Obama administration has been
caught lying in one scandal after another, including but not limited to Obamacare, Benghazi, the
IRS, and Fast and Furious, just to name a few.
It was not until the actions of key NSA whistleblower Edward Snowden that the
American people became aware of the illegal actions their own government was taking against
them. Plaintiffs filed two lawsuits, the first challenging the constitutionality of the NSA's actions
in collecting telephony metadata from Verizon as a result of secret Foreign Intelligence
Surveillance Act court ("FISC") orders.
Subsequently, Plaintiffs' second lawsuit challenged the warrantless searches of the NSA's
PRISM program1, which would monitor and intercept communications from internet companies
such as Skype, Google, Youtube, AOL, Yahoo!, Facebook, Paltalk, AT&T, Sprint, and
Microsoft. In collaboration with these internet companies, PRISM allows the NSA to directly
access and retrieve private electronic data belonging to all users and customers of Defendants’
online services. As Snowden revealed, he, sitting at his desk, could "wiretap anyone, from you or
your accountant, to a federal judge or even the president, if I had a personal email." Glen
Greenwald, "XKeyscore: NSA tool collects 'nearly everything a user does on the internet'," The
Guardian (July 31, 2013), http://www.theguardian.com/world/2013/jul/31/nsa-top-secretprogram-online-data. Even more outrageous, programs such as these were used to illegally
wiretap Chancellor Angela Merkel of Germany. See Alison Smale and David E. Sanger, "Spying
Scandal Alters U.S. Ties With Allies and Raises Talk of Policy Shift," The New York Times
(November 11, 2013), http://www.nytimes.com/2013/11/12/world/spying-scandal-alters-us-ties-

1

The PRISM program did not receive a court order from the FISC.
2

with-allies-and-raises-talk-of-policy-shift.html. The NSA has previously stated that programs
such as these are required to ensure that terrorist organizations and located and stopped. Yet it is
inconceivable that the wiretapping of Chancellor Merkel is related to the tracing of terrorist
activities.
PRISM far exceeds statutory and constitutional authority, requiring no level of reasonable
suspicion or probable cause while incredibly given the NSA direct and unfettered access to some
of the largest databases in the world maintained by the NSA. The NSA has direct access to
records detailing the daily activities, interactions, social, political, and personal associations, as
well as private and intimate facts of millions of ordinary Americans.
Plaintiffs believed that as the truth was exposed that the government would cease
performing these illegal actions. Yet as time went on, it became evident that the NSA was
continuing with these secret programs, and in fact even more secret actions were exposed. New
evidence had come to light every week demonstrating more and more violations by the NSA of
the Plaintiffs rights. For this reason, Plaintiffs realized that a preliminary injunction would be
necessary to ensure that no further illegal actions would be taken by the NSA.
In their opposition to Plaintiffs' Motion for Preliminary Injunction, the NSA
characterized their massive data collection scheme as a lawful, effective counter-terrorism
mechanism, closely monitored and safeguarded to ensure that the American people's rights are
fully protected. Nothing could be further from the truth. From the actions of one key
whistleblower, Edward Snowden, the American people have realized that the NSA is engaging in
Orwellian surveillance that is simultaneously collecting data on hundreds of millions of phone
and internet users.

3

Plaintiffs, and this Court, cannot rely on the statements made by the NSA in their
pleadings. All the evidence shows that the NSA has been acting in clear violation of the Patriot
Act and the U.S. Constitution. Even if the Court were to accept the Defendants' affidavits, then
the parties must go to discovery. The Plaintiffs have more than demonstrated the need for a
preliminary injunction to be granted against the NSA's unlawful and unconstitutional actions.
Plaintiffs are more than likely to succeed on the merits of this lawsuit, and the irreparable injury
occurring toward the Plaintiffs in this lawsuit will continue for as long as this data collection
program is allowed to act outside of the law.
Plaintiffs simply seek to have the NSA enjoined into following the law. Nothing more. A
preliminary injunction, and a subsequent permanent injunction, are needed to ensure that the
NSA discontinues acting in violation of the Patriot Act and the U.S. Constitution and nothing
that the NSA has presented has in any way demonstrated that it has been acting in the scope of
the law. The Court must respectfully similarly construct an oversight mechanism to ensure that
the NSA is following the law. Without this injunctive relief, the NSA will continue to collect
massive amounts of private information from hundreds of millions of the American people, in
the largest violation of Patriot Act and the U.S. Constitution in history.

II. THE LAW
A. THIS COURT HAS JURISDICTION TO HEAR THIS CASE
The U.S. Constitution directly vests the District Court with original jurisdiction to hear
this case. Article III, Section 2, states that "[t]he judicial Power shall extend to all Cases, in Law
and Equity, arising under this Constitution..." U.S. Const. Art. III, Sec. 2.

4

Jurisdiction is also proper under 28 USC § 1331, which states that, "[t]he district courts
shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties
of the United States." 28 USC § 1331. See also Sanders v. Murdter, 516 Fed. Appx. 4, 5 (D.C.
Cir. 2013) ("Appellant is correct that the district court had federal-question jurisdiction over his
claims arising under the Constitution") citing 28 USC § 1331; Bell v. Hood, 327 U.S. 678, 66 S.
Ct. 773, 90 L. Ed. 939 (1946).
Here, Plaintiffs' claims are arising directly out of the Patriot Act and the First, Fourth, and
Fifth Amendments to U.S. Constitution, and this Court has original jurisdiction pursuant to the
U.S. Constitution and 28 USC § 1331.

B. A PRELIMINARY INJUNCTION IS PROPER
To obtain injunctive relief, Plaintiffs must only demonstrate (1) a substantial likelihood
of success on the merits; (2) that they are likely to suffer “irreparable injury” if preliminary relief
is not granted; (3) that an order would not substantially injure other interested parties; and (4)
that the public interest would be furthered by granting the order. Washington Metro. Area Transit
Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); Citigroup Global Mkts.,
Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010). These four
factors must be viewed as a continuum where greater strength in one factor compensates for less
in the other: “If the arguments for one factor are particularly strong, in injunction may issue even
if the arguments in other areas are rather weak.” CityFed Financial Corp. v. Office of Thrift
Supervision, 58 F.3d 739, 747 (D.C. Cir. 1995).
a. Plaintiff's Have Demonstrated A Likelihood Of Success On The Merits
1. The NSA's Collection of Metadata is Not Authorized Under 215 of the Patriot Act

5

In its current form, Section 215 allows the NSA to obtain an order compelling production
of “any tangible things” upon a “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 United States person or to protect against international terrorism or
clandestine intelligence activities." 50 U.S.C. §1861(b)(2)(A).
Section 215 of the Patriot Act does not provide the NSA with limitless investigative
power. Rather, the language added by the Patriot Act prohibits the government from using the
statute to obtain things that could not be obtained through analogous mechanisms, such as a
subpoena duces tecum. Id. §1861(c)(2)(D).
Defendants’ unlawful surveillance further exceeds the authority provided under Section
215 because it involves surveillance that is prospective rather than retrospective. Section 215
permits the government to collect already-existing records, not to engage in ongoing
surveillance. See 50 U.S.C. 1861(c)(1)-(2) (contemplating the “release” of tangible things” that
can be “fairly identified” after a “reasonable period of time within which the tangible things can
be assembled and made available.”). The Verizon Order requiring Verizon to provide the NSA
access to extensive and voluminous communication records on an “ongoing daily basis” is an
ongoing production obligation—an obligation that is effectively indefinite. This is clearly
contrary to the language of the statute and cannot be reconciled with the plain language of
Section 215 of the Patriot Act. Defendants have undeniably exceeded the bounds of their
statutory and constitutional authority, and the Verizon Order, which ordered the ongoing
production of prospective communication records, and thus is contrary to the plaintiff language
of Section 215, clearly went far beyond the limitations set out in the Patriot Act.

6

Defendants “secret interpretation” of Section 215 (or, more appropriately, absolute
disregard of the limitations set forth in Section 215) has been evidenced through numerous
instances of unlawful conduct, including repeatedly misleading the FISC, presenting inaccurate
statements in court filings, making false misrepresentations, and exceeding the bounds of the
surveillance as set forth in court orders. See Nicole Perlott, Jeff Larson, and Scott Shane, “N.S.A.
Able to Foil Basic Safeguards of Privacy on Web,” The New York Times (Sept. 5, 2013)
http://www.nytimes.com/2013/09/06/us/nsa-foils-much-internet-encryption.html. Even more
outrageous is the number of misleading statements senior officials have made about domestic
surveillance and the extent of the NSA’s false misrepresentations and blatant lies. These officials
have engaged in obstruction of justice, with impunity. The National Intelligence Director, James
Clapper, testified before Congress earlier this year that the NSA does not collect data on millions
of Americans, which he now admits is a “clearly erroneous” lie. Clapper was asked during a
hearing in March by Sen. Ron Wyden if the NSA gathered “any type at all on millions or
hundreds of millions of Americans.”2 Clapper initially answered definitely: “No.” When pressed
by Widen, Clapper changed his answer. “Not wittingly,” he said. “There are cases where they
could inadvertently perhaps collect, but not wittingly.” Nothing could be further from the truth,
as evidenced by the public disclosures of a highly classified “Verizon Order” in addition to
Clapper subsequently apologizing for, and thus admitted, his clearly erroneous and untruthful
answer.
The NSA's use of the PRISM program is an entirely different matter. Rather than limit
its surveillance to a certain group of people that are subjects of an authorized investigation, the

2

See, “Clapper apologizes for ‘erroneous’ answer on NSA.” http://news.yahoo.com/clapperapologizes-erroneous-answer-nsa-221238030.html (summarizing Clapper’s misleading
statements to Congress on the extent of U.S. surveillance on U.S. citizens).
7

government has instead, without a warrant, collected and stored “metadata” of hundreds of
millions of U.S. citizen internet users, regardless of whether or not they are persons of interest. It
is simply inconceivable to conclude that all communication records and internet activities
records for all customers of the major internet companies involved bear some relevance to an
investigation, nor is there any reasonable grounds to believe that they may be relevant to an
authorized investigation, in any conventional sense of that phrase. To the contrary, the vast
majority of the communication records obtained through the broad sweeping surveillance are, in
fact, not relevant to any authorized investigation. The government has not, and cannot,
demonstrate, through specific and articulable facts, that the indiscriminate, unfettered, bulk
collection of hundreds of millions of Americans’ internet records was a warranted and justified
intrusion on privacy rights.
Despite the NSA's repeated false allegations about the safeguards put in place to protect
the privacy of Americans, NSA personnel have been blatantly misusing the NSA’s surveillance
power to spy on their paramours. NSA Inspector General George Ellard admitted that since
2003, there have been “12 substantiated instances of intentional misuse” of “surveillance
authorities.” See Exhibit 1 -- Letter of NSA Inspector General George Ellard to Senator Chuck
Grassley. About all of these cases involved an NSA employee spying on a girlfriend, boyfriend,
or some kind of love interests. Jake Gibson, “Too tempting? NSA watchdog details how officials
spied on love interests,” FOX News, (Sept. 27, 2013).
http://www.foxnews.com/politics/2013/09/27/too-tempting-nsa-details-how-officials-spied-onlove-interests/.
Courts consider a threat to attorney-client communications an exceptional circumstance
and have issued writs of mandamus to vacate production orders implicating privileged

8

information. See, e.g., In re BankAmerica Corp. Sec. Litig., 270 F.3d 639 (8th Cir. 2001)
(attorney-client); Admiral Ins. Co. v. U.S. Dist. Court for the Dist. of Ariz., 881 F.2d 1486 (9th
Cir. 1989) (attorney-client); In re Fink, 876 F.2d 84 (11th Cir. 1989) (doctor-patient). In this
case, the FISC issued a blanket order for all domestic telephone records. Such a boundless order
sweeps up not just communications protected by attorney-client privilege, but also those falling
under marital communications privilege, psychiatrist-patient, privilege, accountant-client
privilege, and clergy-pertinent privilege.
The FISC does nothing more than rubber stamp the applications of the FBI. These
proceedings offer nothing more than one sided arguments from those seeking the warrants. There
are no adversaries to present alternative arguments, and innocent Americans have no advocate to
argue against these widespread, illegal searches. The secrecy of the FISC court, and the limited
number of personnel working within it, has created an incestuous atmosphere and not an
adversarial proceeding in which the rights of the innocent are protected.
Furthermore, the FISC court has made findings of repeated violations of court orders. In
2011, the Honorable John D. Bates, then serving as chief judge on the FISC, admonished the
NSA for repeatedly violating the requirements and limitations set forth by Court Orders, privacy
laws, and the U.S. Constitution. As Judge Bates emphasized, “[c]ontrary to the government’s
repeated assurances, N.S.A. has been routinely running queries of the metadata using querying
terms that did not meet the standard for querying,” and that this requirement had been “so
frequently and systematically violated that it can fairly be said that this critical element of the
overall…regime has never functioned effectively.” Charlie Savage and Scott Shane, “Secret
Court Rebuked N.S.A. on Surveillance,” The New York Times, (Aug. 21, 2013).

9

http://www.nytimes.com/2013/08/22/us/2011-ruling-found-an-nsa-programunconstitutional.html?r=0.
Judge Bates further emphasized the NSA's unlawful conduct and egregious and illicit
surveillance tactics, by stating:
"The Court is troubled that the government's revelations regarding NSA's acquisition of
Internet transactions mark the third instance in less than three years in which the
government has disclosed a substantial misrepresentation regarding the scope of a major
collection program. In March, 2009, the Court concluded that it s authorization of NSA's
bulk acquisition of telephone call detail records from [redacted] in the so-called "big
business records" matter "ha[d] been premised on a flawed depiction of how the NSA
uses [the acquired] metadata," and that "[t]his misperception by the FISC existed from
the inception of its authorized collection in May 2006, buttressed by repeated inaccurate
statements made in the government's submissions…"
Memorandum Opinion, In re Government's Ex Parte Submission of Reauthorization
Certification and Related Procedures, Ex Parte Submission of Amended Certifications, and
Request for an Order Approving Such Certification and Amended Certification (FISC Ct. Oct. 3.
2013) at fn. 14.
The NSA has continuously engaged in a pattern of non-compliance with respect to the
NSA’s handling of produced information, as demonstrated through publicly released FISC orders
addressing the NSA’s surveillance and requests for production of information. In her Amended
Memorandum Opinion, dated August 29, 2013, the Honorable Claire V. Eagan recognized and
acknowledged Defendants’ repeated lack of adherence to minimization procedures implicit in the
authorization to compel production of the documents, stating, “[t]he Court is aware that in prior
years there have been incidents of non-compliance with respect to NSA’s handling of produced
information.” Amended Memorandum Opinion, In Re Application of the Federal Bureau of
Investigation For An Order Requiring the Production Of Tangible Things From [Redacted],
(FISC Ct. Aug. 29, 2013) at n.9.

10

Similarly, in an order issued by the FISC on March 2, 2013, questioning the credibility,
trustworthiness, and ability for the NSA to fully comply with court orders, the Honorable Reggie
B. Walton held, “[i]n light of the scale of this bulk [telephone records] collection program, the
Court must rely heavily on the government to monitor this program to ensure that it continues to
be justified…and that it is being implemented in a manner that protects the privacy interests of
U.S. persons as required by applicable minimization procedures. To approve such a program, the
Court must have every confidence that the government is doing its utmost to ensure that those
responsible for implementation fully comply with the Court’s orders. The Court no longer has
such confidence.” [emphasis added] In Re Production of Tangible Things [Redacted], Dkt. No:
BR. 08-13 (FISA Ct. March 2, 2009).
The actions of the NSA went beyond scope of the Patriot Act, and as such these actions
are unconstitutional as violations of the First, Fourth, and Fifth Amendments to the U.S.
Constitution.
2. Plaintiffs Have Demonstrated a Fourth Amendment Violation
The NSA's PRISM surveillance program consists of warrantless searches, which “are per
se unreasonable under the Fourth Amendment – subject only to a few specifically established
and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967); see United
States v. Karo, 468 U.S. 705, 717 (1984). In fact, it authorizes the particular form of search that
the authors of the Fourth Amendment found most offensive, leaving “too much to the discretion
of the officer executing the order.” Berger v. New York, 388 U.S. 41, 59 (1967). Even if the
warrant requirement does not apply, the government’s over broad, dragnet collection of
Plaintiffs’ phone records and internet activities is unreasonable and, therefore, unconstitutional.

11

“[T]he ultimate touchstone of the Fourth Amendment” is “reasonableness.” Brigham City
v. Stuart, 547 U.S. 398, 403 (2006). Reasonableness is determined by examining the “totality of
circumstances” to “assess, on the one hand, the degree to which [government conduct] intrudes
upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion
of legitimate governmental interests.” Samson v. California, 547 U.S. 843, 848 (2006); see also
Virginia v. Moore, 553 U.S. 164, 169 (2008). In the context of electronic surveillance,
reasonableness demands that statues have “precise and discriminate” requirements and that the
government’s surveillance authority be “carefully circumscribed so as to prevent unauthorized
invasions of privacy.” Berger, 388 U.S. at 58.
The data obtained by the NSA through PRISM, done so without any court order, not only
includes the contents of emails, chats, VoIP calls, and cloud-stored files, and more but also
provides the Agency with online metadata, such as email logs, geolocation data (IP addresses),
and web search activities, which can be just as revealing as the content. The NSA is using the
troves of metadata gathered by PRISM to build comprehensive profiles of ordinary Americans,
including their social connections, familial, political, professional, religious, and personal
associations, speech, location, and public movements, while revealing personal, intimate, and,
often times, extremely sensitive details about an individual.
Indeed, the NSA's collection of metadata and surveillance of telephonic communications
lacks any indicia of reasonableness, as it significantly invades Plaintiffs’ privacy rights without
any probable cause or individualized suspicion, is essentially indefinite, lacks any measure of
particularity, instead gathering vast quantities of information about essentially every individual’s
communication and activities. In fact, NSA’s warrantless surveillance is so extreme in its
intrusive nature that it can hardly be construed as anything but unreasonable.

12

In addition, the Verizon Order requires the production of every communication record,
with no attempt to narrow the records obtained to those records that pertain to an ongoing
investigation or that have some indication of suspicious activity. The Verizon Order does not
differentiate between individuals that the NSA has a legitimate interest in monitoring and those
that it does not, nor does it draw a distinction between those records relevant to an investigation
and those that are not.
The NSA's opposition to Plaintiffs’ Fourth Amendment claim relies heavily on Smith v.
Maryland, 442 U.S. 735 (1979). The NSA, however, fail to recognize that Smith does not stand
for the proposition that the Constitution permits the indefinite collection of sensitive information
about every single phone call made or received by U.S. residents In Smith, the Supreme Court
upheld the installation of a “pen register” in a criminal investigation. The pen register in Smith,
however, was very primitive—it tracked the numbers being dialed, but it did not indicate which
calls were completed, let alone the duration of those calls. 442 U.S. at 741. It was in place for
less than two days, and it was directed at a single criminal suspect. Id. at 737.
PRISM provides the NSA with direct access to all private electronic data belonging to all
users of the internet services, with no attempt to narrow the records obtained to those records that
pertain to an ongoing investigation or that have some indication of suspicious activity. The
PRISM program does not differentiate between individuals that the NSA has a legitimate interest
in monitoring and those that it does not, nor does it draw a distinction between those records
relevant to an investigation and those that are not.
The PRISM program is essentially indefinite, particularly considering the lack of any
temporal limitation and the fact that it has been ongoing, secretively, for the past seven years.
PRISM provides the NSA with access to and potential production of online communication

13

records on an ongoing daily basis, with absolutely no temporal deadline or any indication of
when the program will terminate. To the contrary, the NSA apparently intends to continue the
surveillance program indefinitely, and pursue the ongoing production of communication records
of hundreds of millions of Americans for the foreseeable future.
With the Verizon order, the NSA seeks to track the records of millions of Americans, the
vast majority of whom are not involved with any terrorist activities. Unlike in Smith, where the
information from the pen register was not aggregated with information from other pen registers,
telephony metadata encompasses far more than just the simple call records. As alleged by
Plaintiffs, “Telephony metadata includes comprehensive communications routing information,
including, but not limited to, session identifying information (e.g. originating and terminating
telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile
station Equipment Identity (IMEI) number, etc.), trunk identifiers, telephone calling card
numbers, and time and duration of call.” Compl. ¶¶27, 28. All this information goes beyond just
a pen register. And can be easily used to track a person's name and identity. Further, the “call
detail records” referred to in the Verizon Order likely include “[a]ny information that pertains to
the transmission of specific telephone calls, including, for outbound calls, the number called, and
the time, location, or duration of any call and, for inbound calls, the number from which the call
was placed and the time, location, or duration of any call.” 47 C.F.R. §64.2003 (2012) (defining
“call detail information”). Even more absurd, the NSA seeks to collect this information on an
ongoing basis. The NSA cannot hide behind Smith and claim every one of its actions are legal
under this one precedent, because their actions go far beyond what the U.S. Supreme Court
allowed in Smith.

14

The NSA also contends, again citing Smith, that individuals lack a constitutionally
protected privacy interest in telephony metadata because that information has been shared with
telephone companies. But the NSA’s reading of Smith fails to account for Jones and a host of
Supreme Court cases recognizing that in sharing information with the public or a third party,
individuals do not necessarily surrender their expectation of privacy. See United States v. Jones,
132 S. Ct. 945, 957 (2012) (Sotomayor, J., concurring); Id. at 964 (Alito, J., concurring); see
also, e.g., Florida v. Jardines, 133 S. Ct. 1409 (2013) (odors detectable by a police dog that
emanate outside of a home); Kyllo, 533 U.S. 27 (thermal signatures emanating from a home);
Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001) (diagnostic-test results held by hospital
staff). These cases confirm that an individual’s expectation of privacy in information does not
hinge simply on whether she has shared it with another person. Were it otherwise, even the
contents of one’s phone calls or email would be constitutionally unprotected, as both are shared
with third parties. To contend that Smith controls here is to misunderstand the narrowness of the
pen register surveillance upheld in that case, the breadth of the surveillance at issue here, or both.

3. Plaintiffs Have Demonstrated a First Amendment Violation.
The Supreme Court has recognized the profound chilling effect of government
surveillance on First Amendment rights, given their potential to stifle free association and
expression. As stated most recently in United States v. Jones, “awareness that the Government
may be watching chills associational and expressive freedoms. And the Government’s
unrestrained power to assemble data that reveal private aspects of identity is susceptible to
abuse.” United States v. Jones, 132 S. Ct. 945, 956 (2012). Thus, the courts have subjected such
investigative methods to “exacting scrutiny” where they substantially burden First Amendment

15

Rights. In re Grand Jury Proceedings, 776 F.2d 1099, 1102-03 (2d Cir. 1984); Clark v. Library
of Cong., 750 F. 2d 89, 94 (D.C. Cir. 1984). Under this demanding standard, the NSA is
required to show that its investigative methods are the least restrictive means of pursuing a
compelling state interest. Clark, 750 F.2d at 95. “This type of scrutiny is necessary even if any
deterrent effect on the exercise of First Amendment right arises, not through direct government
action, but indirectly as an unintended but inevitable result of the government’s conduct,” Elrod
v. Burns, 427 U.S. 346, 362 (1976) (quoting Buckley v. Valeo, 424 U.S. 1, 65 (1976); see also
Bates v. City of Little Rock, 361 U.S. 516, 523 (1960) (“Freedoms such as these are protected not
only against heavy-handed frontal attack, but also from being stifled by more subtle
governmental interference.”)
The Supreme Court has frequently emphasized the importance of preserving the First
Amendment rights of advocacy groups, recognizing that the NSA’s surveillance and
investigatory activities infringe on associational rights protected by the amendment. In Gibson v.
Florida Legislative Investigation Committee, the court ruled, “[t]he First and Fourteenth
Amendment rights of free speech and free association are fundamental and highly prized and
‘need breathing space to survive.” 372 U.S. 539, 892 (1963), citing N.A.A.C.P. v. Button, 371
U.S. 415, 433 (1963). In NAACP v. Alabama ex rel. Patterson, the Supreme Court invalidated an
Alabama order that would have required the NAACP to disclose its membership list. The
Supreme Court wrote, in explaining why the protection of privacy is of particular Constitutional
concern for advocacy organizations:
“[I]t is hardly a novel perception that compelled disclosure of affiliation with
groups engaged in advocacy may constitute an effective restraint on freedom of
association as the forms of governmental actions….were thought likely to
produce upon the particular constitutional rights there involved. This Court has
recognized the vital relationship between freedom to associate and privacy in
one’s association…Inviolability of privacy in group association may in many

16

circumstances be indispensable to preservation of freedom of association,
particularly where a group espouses dissident beliefs.” 357 U.S. 449, 462 (1958).

As discussed above, the NSA’s broad sweeping surveillance program, in both the
telephony metadata collection and the PRISM program's data collection, raises precisely the
same associational harm, since Plaintiffs are particularly vulnerable to this type of surveillance
and the information collected, given their professions, political activism, public personas, and
their activities, which often involve highly confidential matters and privileged information.
Under PRISM, the NSA has direct access to records detailing the daily activities, interactions,
social, political, and personal associations, as well as private and intimate facts of millions of
ordinary Americans.
Further, the mass surveillance program and the broad-sweeping Verizon Order exposes
private and sensitive information regarding Plaintiffs’ communications and contacts, which
consequently directly impacts their ability to continue their advocacy activities.
In light of his public advocacy in matters of public interests and concern, Plaintiff
Klayman regularly communicates with individuals who wish to come forward with evidence of
government wrongdoing, such as depriving them of their civil rights. Likewise, Plaintiff
Klayman communicates with these individuals, who may ultimately become clients, regarding
potential legal representation and bringing a legal action to redress their harm. Plaintiff Klayman
also regularly engages in telephone calls with clients he is already representing, where he
discusses legal matters and advises the client, whistleblowers, and others regarding legal
strategies and techniques. Similarly, Plaintiffs Charles and Mary Ann Strange, who are activists
in advocating change in U.S. military policies and practices, routinely communicate, via phone
to clients, potential clients, supporters, and others, regarding the advocacy plans, tactics,

17

strategies and goals. Given the nature of their advocacy, and their inherent affects on government
policy and acts, Plaintiffs’ communication records contain confidential and even legallyprivileged discussions that were never intended to be collected, monitored, or heard and recorded
by the NSA, particularly as Plaintiffs’ advocacy often espouse dissident beliefs than that of the
Obama administration.
All of these individuals, particularly those who seek legal advice from Plaintiff Klayman,
have an interest in maintaining the confidentially of their communications, and all of these
individuals contribute significantly to Plaintiffs’ First Amendment activities. It is indisputable
that any person would be hesitant to approach Plaintiffs in regard to their advocacy or legal
representation, particularly with the knowledge that the NSA receives and records every
telephone call through this surveillance program. Thus, the NSA's mass call-tracking
surveillance program has inevitable had a chilling effect, as it allows the government to uncover
anonymous tips or attempts by individuals to privately share sensitive information with
Plaintiffs. Consequently, the governments’ surveillance program is directly inhibiting and
deterring crucial sources of information for Plaintiffs’ work.

4. Plaintiffs Have Demonstrated a Fifth Amendment Claim.
Plaintiffs have an individual privacy interests in their internet communications online
activities, which reveals sensitive, confidential information about their personal, political, and
religious activities and which Plaintiffs do not ordinarily disclose to the public or to the
government. This privacy interest, particularly in their communications, is protected by
numerous state and federal laws well as the substantive and procedural right to due process under
the Fifth Amendment.

18

Plaintiffs’ Fifth Amendment constitutional rights were clearly violated the moment
Defendants provided and the NSA obtained direct and unlimited access and authority to obtain
vast quantities of communication records contained in Defendants’ vast databases, which
inherently includes communication records belong to Plaintiffs. Under PRISM, Defendants have
illicitly provided the NSA with blanket access to their vast databases, allowing the NSA to
secretively collect, acquire, retain, search, and use the bulk private internet data and online
communication information of Plaintiffs, without providing any notice to Plaintiffs, or any
process by which Plaintiffs could seek redress. Moreover, the NSA’s surveillance was conducted
without any individualized suspicion, probable cause, or other governmental interest sufficient or
narrowly tailored to justify the invasion of Plaintiffs’ due process rights. Prior to The Guardian’s
and The Washington Times publication of the disclosures of NSA whistleblower, Edward
Snowden, this secret surveillance was undisclosed to the public, and Plaintiffs had no notice and
no reasonable opportunity to discover the existence of the surveillance program, let alone
ascertain where a reasonable expectation of privacy from government intrusion begins and ends
and specifically, what conduct may subject them to electronic surveillance.

b. Issuance Of A Preliminary Injunction Will Not Substantially Injure Defendants .
In contrast to the substantial irreparable harm facing Plaintiffs, there can be no credible
claim of harm to Defendants. Defendants cannot be said to be “burdened” by a requirement to
comply with the law.
c. The Balance Of Harm And The Public Interest Supports The Implementation Of A
Preliminary Injunction.
The public interest prong is more than met because “there is an overriding public
interest…in the general importance of an agency’s faithful adherence to its statutory mandate.”

19

Jacksonville Port Auth. V. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977). The public has a substantial
interest in Defendants following the law. See, e.g., In re Medicare Reimbursement Litigation,
414 F.3d 7, 12 (D.C. Cir. 2005 (Additional administrative burden “[would] not outweigh the
public’s substantial interest in the Secretary’s following the law.”)
Given Defendants’ defects in complying with the law, and with basic notions of the right
to privacy, in addition to their substantial contribution to significant constitutional violations, the
public interest will be served if this court preliminarily enjoins Defendants from continuing their
warrantless, unlawful participation in PRISM. In light of the fact that PRISM poses legitimate
and unaddressed constitutional questions, a preliminary injunction to allow for the adjudication
of these issues clearly serves the public interest. See Tyndale House Publishers, Inc. v. Sebelius,
904 F. Supp. 2d 106, 130 (D.D.C. 2012), (holding that "there is undoubtedly . . . a public interest
in ensuring that the rights secured under the First Amendment . . . are protected"); O'Donnell
Const. Co. v. District of Columbia, 963 F.2d 420, 429 (D.C. Cir. 1992) (holding that "issuance of
a preliminary injunction would serve the public's interest in maintaining a system of laws" free of
constitutional violations). See also Seretse-Khama v. Ashcroft, 215 F. Supp. 2d 37, 54 (D.D.C.
2002), (holding that the public interest is served by a court order that avoids "serious
constitutional risks"); N. Mariana Islands v. United States, 686 F. Supp. 2d 7, 21 (D.D.C. 2009)
(noting "the general public interest served by agencies' compliance with the law"); Cortez III
Serv. Corp. v. Nat'l Aeronautics & Space Admin., 950 F. Supp. 357, 363 (D.D.C. 1996) (public
interest served by enforcing constitutional requirements).

C. PLAINTIFFS HAVE STANDING

20

Plaintiffs have standing under Article III. They have suffered an injury because they have
been, at all material times, been consumers, users, and U.S. citizens who are subscribers, users,
customers, and otherwise avail themselves to Facebook, Yahoo, Google, Microsoft, YouTube,
AOL, PalTalk, Skype, Sprint, AT&T, and/or Apple. Plaintiffs' communications have already
been monitored by the NSA under the Verizon Order and/or the PRISM program and their
communications continue to be monitored. The injury is plainly traceable to the conduct they
challenge—that is, to the NSA’s collection of their call records as well as their internet
communications and activities. And the injury would be redressed by the relief they seek—
principally, an injunction against their mass warrantless surveillance tactics. The practice is akin
to snatching every American’s address book—with annotations detailing whom they spoke to,
when they talked, for how long, and from where. The collection of Plaintiffs’ communication
records, specifically telephonic and online metadata belonging to Plaintiffs, is itself an injury
sufficient for Article III; indeed, the collection of Plaintiffs’ records constitutes a gross invasion
of their privacy.
The Defendants have acknowledged that they have engaged in such metadata collection.
Specifically, in regard to the PRISM surveillance program, the U.S. government has essentially
confirmed the existence of the wide-ranging program known as PRISM, which allows the NSA
to directly tap into consumer data from telephone and internet communication service providers,
including Apple, Google, Yahoo!, Microsoft, Facebook, Skype, and others. See, i.e. HJC
Hearing at 29:33–36:00 (testimony of John C. Inglis, NSA Deputy Director).
In addition, the Primary Order/Verizon Order indicates that every time the NSA queries
the call-records database, it reviews everyone’s records—Plaintiffs’ among them—to determine

21

whether they, their contacts, or their contacts’ contacts are connected to a phone number that the
NSA deems suspicious. See Primary Order at 6–7, 11.
In any event, there can be no dispute that the bulk collection of Plaintiffs’ call records
gives them the stake in this litigation that Article III requires. Courts frequently analyze thirdparty challenges to records requests at the merits stage, rather than as a question of standing. See,
e.g., Local 1814, Int’l Longshoremen’s Ass’n v. Waterfront Comm’n of N.Y. Harbor, 667 F.2d
267, 270 (2d Cir. 1981).
Plaintiffs’ First Amendment claim asserts a direct intrusion into their associational
privacy, not just a chilling effect. Compl. ¶¶ 3, 35; This intrusion and the resulting injury is
complete when the NSA collects Plaintiffs’ communication records—regardless whether the
surveillance ultimately dissuades any third party from communicating with them. Plaintiffs
suffer a further, discrete injury because of the program’s chilling effect on their key contacts and
sources. The NSA's monitoring has and will continue to dissuade crucial contacts from
associating with Plaintiffs.
The government seems to believe that there is something implausible about the notion
that the NSA’s surveillance might chill lawful expression and association, but “[i]t is hardly a
novel perception that compelled disclosure of affiliation with groups engaged in advocacy may
constitute [an] effective . . . restraint on freedom of association.” NAACP v. Alabama, 357 U.S.
449, 462 (1958); see also International Longshoremen's Asso. v. Waterfront Com. of New York
Harbor, 667 F.2d 267 (2d Cir. 1981); Talley v. California, 362 U.S. 60, 64 (1960).
Further, as the Supreme Court has observed, the definition of Fourth Amendment rights
“is more properly placed within the purview of substantive Fourth Amendment law than within
that of standing.” Minnesota v. Carter, 525 U.S. 83, 88 (1998); accord Rakas v. Illinois, 439 U.S.

22

128, 139 (1978). In any event, there can be no dispute that the bulk collection of Plaintiffs’ call
records gives them the stake in this litigation that Article III requires. Courts frequently analyze
third-party challenges to records requests at the merits stage, rather than as a question of
standing. See, e.g., Local 1814, Int’l Longshoremen’s Ass’n v. Waterfront Comm’n of N.Y.
Harbor, 667 F.2d 267, 270 (2d Cir. 1981); Koch v. Greenberg, No. 07 Civ. 9600, 2009 WL
2143634, at *3 n.1 (S.D.N.Y. July 14, 2009).

1. Plaintiffs Have Demonstrated Irreparable Harm.
The Defendants conveniently ignore well-established case law holding that a colorable
constitutional violation gives rise to a showing of irreparable harm. See Mills v. District of
Columbia, 571 F.3d1304, 1312 (D.C. Cir. 2009) (a constitutional violation and loss of
constitutional protections "'for even minimal periods of time, unquestionably constitutes
irreparable injury'") (quoting Elrod v.Burns, 427 U.S. 347, 373 (1976)); see also Seretse-Khama
v. Ashcroft, 215 F. Supp. 2d 37, 53 (D.D.C. 2002) (deprivation of constitutional protection "is an
undeniably substantial and irreparable harm").
Plaintiffs have demonstrated the chilling effects of the Defendants' actions on the
Plaintiffs. Plaintiff Charles Strange's son, Michael Strange, was a cryptologist technician for the
National SecurityAgency ("NSA") and support personnel for Navy SEAL Team VI. Strange Aff.
at ¶5. Plaintiffs have been vocal about their criticism of President Obama as commander-inchief, his administration, and the U.S. military, particularly in regard to the circumstances
surrounding the shoot down of the helicopter Michael Strange was in, which resulted in the death
of Michael and other Navy SEAL Team VI and other special operations members. Strange Aff.
at ¶¶9, 10. Plaintiffs hold press conferences and lobby in Washington, D.C. as advocates for their

23

son and to obtain justice for him, as well as to change the policies and orders of President Obama
and the U.S. military’s acts and practices, which contributed to their son’s death. Strange Aff. at
¶10. Plaintiffs believe and advocate that the government is responsible, whether negligently or
intentionally, for the death of their son. Strange Aff. at ¶9.
Defendants’ mass data collection and call-tracking surveillance programs have directly
and significantly impacted Plaintiffs, Charles Strange and his wife, Mary Ann Strange, and their
abilities to communicate via telephone, email, or through any other means, given their valid
concern that their confidential and private communications will be overheard or obtained by the
NSA’s surveillance program. Strange Aff. at ¶11. In fact, there have, on several occasions, been
times when Plaintiff Charles Strange received text messages from friends, relatives, and others
who later informed Plaintiffs that they had never sent him those messages. Strange Aff. at ¶14.
Additionally, various other contacts have received text messages that seemingly appear to have
been sent from Plaintiff Charles Stranges’ phone number, even though he had never sent said
messages. Strange Aff. at ¶15. More shocking, Plaintiff Charles Strange received an email that
appeared to be from Michael. Strange Aff. at ¶13. After having the email reviewed and analyzed,
it was determined that the email from his son was a hoax orchestrated by the NSA and the other
Defendants. Id. In July of 2013, Mary Ann Strange was on the computer when it abruptly
photographed her (through some form of abusive surveillance since her computer does not have
a built-in camera), and falsely accused Plaintiff Mary Ann Strange of violating “Copyright and
Related Rights Law.” Strange Aff. at ¶17. Without a built-in camera, a computer user cannot
take a picture of him or herself. Strange Aff. at ¶17. The intrusive and highly secretive
surveillance that the government is performing on Plaintiffs has, justifiably, made them unable to
communicate freely with friends, family, and other contacts, whether on the phone, through texts

24

messages, or via email and put them in great for themselves and their family. Strange Aff. at ¶18,
19. The government’s surveillance activities have, consequently, chilled Plaintiffs’ speech, and
prohibited their ability to associate, to lobby Congress, and to be politically active. Strange Aff.
at ¶¶18, 19, 20.
Plaintiff Klayman was similarly affected by the illegal actions of the Defendants.
Plaintiff Klayman has gained national exposure and recognition through his strong public interest
advocacy in furtherance of ethics in government and is publicly known as a civil and individual
rights activists. Klayman Aff. at ¶4. As an attorney, Plaintiff Klayman routinely communicates
by phone and by email with existing and potential clients about their legal representation,
discusses confidential issues, and engages in legally privileged attorney-client and other
privileged or private communications regarding ongoing legal proceedings. Klayman Aff. at ¶¶5,
10. Defendants’ illegal surveillance directly and significantly impacts Plaintiff Klayman’s ability
to communicate via telephone, email, and otherwise, out of fear that his confidential, private, and
often legally privileged communications will be overheard or obtained by the NSA’s surveillance
program. Klayman Aff. at ¶¶9, 10. Defendants’ overly broad, highly intrusive illicit surveillance
program, as well as their limitless indiscriminate invasion of Americans’ privacy rights,
undoubtedly will dissuade, and has dissuaded, potential clients and others from contacting
Plaintiff Klayman, fearing reprisal, and, in addition, compromises Plaintiff Klayman’s ability to
serve their clients’ interest and Freedom Watch’s organizational goals. Klayman Aff. at ¶10.
Because he now fears that his telephone conversations and emails are being monitored -because they are -- Plaintiff Klayman no longer engages in sensitive attorney-client
conversations over the phone or by email. Exhibit 2 -- Supplemental Klayman Aff. at ¶13.
Plaintiff Klayman has been forced to travel to meet with clients in order to ensure that his

25

conversations are indeed private. Supplemental Klayman Aff. at ¶14. This constant travel has
come as a great expense to Plaintiff Klayman. Id.
Similarly, the Defendants have illegally violated the expectations of privacy of Plaintiffs
Ferrari and Garrison who illegally and without a warrant had their internet records searched.
Both Plaintiffs are prominent private investigators, who, as part of their work, communicate
electronically, with associates and other members of the public regarding various matters,
including work related discussions. Compl. ¶¶13, 14. Additionally, both Plaintiffs' emails contain
private details, discussions and communications, and often include confidential documents and
information. Id. Plaintiff Michael Ferrari is a subscriber, consumer, and user of Google/Gmail,
Yahoo!, and Apple. Compl. ¶13. Plaintiff Matthew Garrison is a consumer and user of Facebook,
Google, YouTube, and Microsoft. Compl. ¶14. Thus, both Plaintiffs have indisputably been
subject to the NSA's warrantless searches of their online communications and internet activities.
The Defendants' actions have similarly caused injury to these Plaintiffs as they can no longer
communicate freely through email and telephone.
Plaintiffs have more than established the substantial harm that is being caused to them by
the actions of the NSA through the PRISM program and the telephony metadata collection.

D. Standard of Evidence For a Preliminary Injunction.
Preliminary Injunctions are customarily granted on the basis of procedures that are less
formal and evidence that is less complete than in a trial on the merits, and therefore the party
moving for the preliminary injunction is not required to prove his case in full at a hearing. See
Attorney General of Oklahoma v. Tyson Foods, Inc., 565 F3d769 (10th Cir. 2009). The
Plaintiffs have not had the opportunity to conduct discovery and once the lawsuit moves to the

26

discovery phase the Plaintiffs will be able to determine to what extent Defendants have in fact
been conducting illegal surveillance of Plaintiffs.
Plaintiffs have presented the statements of key whistleblower Edward Snowden. Pursuant
to Federal Rules of Evidence Rule 804, the Statements of Edward Snowden are not excluded by
the hearsay rule if the declarant is unavailable as a witness: “Declaration Against Interest: A
statement which was at the time of its making so far contrary to the declarant's pecuniary or
proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to
render invalid a claim by the declarant against another, that a reasonable person in the declarant's
position would not have made the statement unless believing it to be true. A statement tending to
expose the declarant to criminal liability and offered to exculpate the accused is not admissible
unless corroborating circumstances clearly indicate the trustworthiness of the statement.”
Plaintiffs have additionally requested the authentication of several formerly classified
documents in the form of a Touhy request that has been submitted to the NSA. See Touhy v.
Ragen, 340 U.S. 462 (1951); Exhibit 3 -- NSA Touhy request.

E. Plaintiffs' Claims Are Not Precluded By Statute.
Plaintiffs are capable of enforcing the violations of 18 USC § 2702 through the
Administrative Procedures Act ("APA"), 5 USC § 706. Defendants argue that the provision
allowing recipients to challenge Section 215 orders, added in 2006, manifests a congressional
intent to bar all other claims and relief under this section. 50 U.S.C. § 1861(f). Yet this argument
simply turns Congress’s attempt to clarify the availability of one remedy into an attempt to
subtract the rest of the remedies. Defendants can cite to no evidence of such an intent. As the
Supreme Court observed last year, “if the express provision of judicial review in one section of a

27

long and complicated statute were alone enough to overcome the APA's presumption of
reviewability for all final agency action, it would not be much of a presumption at all.” Sackett v.
EPA, 132 S. Ct. 1367, 1373 (2012). The government argues that the addition of 50 U.S.C. §
1861(f) in 2006 was a deliberate effort to imit the right to contest the legality of Section 215
production orders to recipients, but the legislative history shows that Congress added 50 U.S.C. §
1861(f) merely to “clarify” an already-existing remedy. In doing so, Congress gave no indication
that it intended to displace other existing remedies, including those provided by the APA. See
H.R. Rep. 109-174, pt. 1, at 6, 77, 106 (repeatedly describing the addition of this subsection as
an effort to “clarify” the statute). Indeed, at the time, the government concurred in the view that
this addition did not represent a significant change in the law. See, e.g., Implementation of the
USA PATRIOT Act: Hearing Before the H. Subcomm. on Crime, Terrorism, and Homeland
Security, Comm. on the Judiciary, 109th Cong. at 106 (2005) (“Patriot Act HJC Hearing”)
(testimony of Kenneth Wainstein, U.S. Attorney for the District of Columbia).
This change was made for a simple reason: Congress made explicit recipients’ ability to
go before a judge to challenge a production order, as is customary with ordinary subpoenas. See,
e.g., Fed. R. Crim. P. 17(c); Patriot Act HJC Hearing at 65 (statement of Robert Khuzami)
(amendment designed to “place Section 215 proceedings on a par with grand jury proceedings”).
This was done because the legal process available to recipients of records demands under a
similar statute, 18 U.S.C. § 2709 (national security letters), had been the subject of litigation.
See, e.g., Doe v. Ashcroft, 334 F. Supp. 2d 471, 507 (S.D.N.Y. 2004); Patriot Act HJC Hearing at
105-06, 140-42 (discussing Doe). But in the course of clarifying the procedures for raising such
an objection under Section 215, Congress nowhere altered—or even considered—the APA’s
background presumption, especially as it applies to the subjects of record requests. As a matter

28

of statutory structure, nothing in the recipient-review procedure bars the traditional APA review
that Plaintiffs seek here—rather, they are complimentary remedies. Recipients may challenge a
Section 215 production order but, as with subpoenas, this does not inevitably imply an intent to
bar the subject of a records request from bringing her own challenge.
Courts routinely allow third parties to contest subpoenas on grounds other than
privilege—including their asserted privacy interests. Arias-Zeballos v. Tan, No. 06 Civ. 1268,
2007 WL 210112, *1 (S.D.N.Y. Jan. 25, 2007) (listing cases). Relying on Block v. Community
Nutrition Institute, 467 U.S. 340, 349 (U.S. 1984), the Defendants argue that because Section
215 provides for recipient challenges, it impliedly precludes judicial review “at the behest of
other persons,” like Plaintiffs.
But as courts have recognized, this assumption is too simplistic. In particular, the D.C.
Circuit has cautioned against reading Block “too broadly,” especially where the interests of the
various parties may diverge or the statute bears directly on the class to which the plaintiff
belongs. Ark. Dairy Co-op Ass’n, Inc. v. U.S. Dep’t of Agr., 573 F.3d 815, 822–23 (D.C. Cir.
2009). The court did so in a case involving the very same statute that the Supreme Court
interpreted in Block, finding that the APA afforded a right of review to milk producers despite
the fact that the statutory scheme at issue granted such a right only to milk handlers. Id. at 823;
see Koretoff v. Vilsack, 614 F.3d 532, 536–40 (D.C. Cir. 2010); Council for Urological Interests
v. Sebelius, 668 F.3d 704, 710 (D.C. Cir. 2011) (distinguishing Block where agency action had
“direct” and “substantial” impact on plaintiffs); see also Pottawatomi, 132 S. Ct. at 2209
(rejecting comparison to Block). Even in Block itself, the Supreme Court evaluated the
availability of judicial review under the APA by taking into account a proxy’s willingness to
pursue a plaintiff’s interests. 467 U.S. at 352.

29

These concerns apply to Section 215. Indeed, “no recipient of any Section 215 Order has
challenged the legality of such an Order.” See 2013 FISC Opinion at 15– 16. That is perhaps
because recipients are shielded from liability for complying with such orders, see 50 U.S.C. §
1861(e), and thus their interests diverge from those of the orders’ subjects. See Strengthening
Privacy Rights and National Security: Hearing Before the S. Comm. on the Judiciary, 113th
Cong. at 4 (2013), http://bit.ly/19CVPgl (statement of Marc Zwillinger, Yahoo! counsel)
(describing “institutional pressures and procedural disincentives against levying a [provider]
challenge” to a FISC order).
The cases discussed above demonstrate that a statute’s silence with respect to one class of
plaintiffs or claims does not invariably imply that those plaintiffs have no road to court. The
government’s “effort to transform silence into implicit prohibition would seriously undermine
Congress’s effort in the APA to authorize specific relief against the United States.” U.S. Army
Corps of Eng’rs, 667 F.3d at 775. It takes more to show “clear and convincing evidence” of
Congress’s intent to strip the APA’s remedies and preclude review. For instance, in Dew v.
United States, 192 F.3d 366, 371–74 (2d Cir. 1999), the Second Circuit carefully analyzed the
comprehensiveness of the statutory scheme at issue, the express signs of intent in the legislative
history, and the parallel structure of a similar statute—ultimately concluding that each of these
factors favored preclusion. In this case, one can hardly say the same.
There are clear examples of when Congress has explicitly intended to create a
comprehensive and exclusive remedial scheme, such as in the Stored Communications Act, 18
USC §§ 2701–2712. In 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), the court considered the carefully drawn remedies
that the SCA makes available to internet-service subscribers and it found that the statute barred a

30

Twitter subscriber’s pre-execution challenge to certain disclosure orders, pointing to the SCA’s
plain statement that “[t]he remedies and sanctions described in this chapter are the only judicial
remedies and sanctions for non-constitutional violations of this chapter.” Id. at 129 (quoting 18
U.S.C. § 2708). Contrary to this holding, Congress never intended to preclude claims under
Section 215, and nothing in the language of the statute or the legislative history proves
otherwise.
III. CONCLUSION
As set forth in the accompanying proposed memorandum opinion and order, the Plaintiffs
ask for the following: (1) that the Court preliminary restrains and enjoins Defendant NSA, its
agents, servants, employees, attorneys, and all others in active concert or participation with the
NSA, from implementing surveillance procedures, tactics, and programs that exceed statutory
authority and constitutional provisions; (2) that the NSA is respectfully ordered to comply with
any and all laws regarding the government's authority, power, and limits in conducting such
mass warrantless domestic surveillance, including, but not limited to, Section 215 of the Patriot
Act, Section 702 of the FISA Amendment Act, and the provisions of the U.S. Constitution; and
(3) that within twenty (20) days of this date, the NSA submit declarations and any pertinent
records, reports, and/or other documents to the Court regarding compliance with any and all
minimization procedures implemented to prevent further warrantless collection of records
belonging to U.S. citizens without reasonable suspicion or probably cause, any and all incidences
of non-compliance, identification of any and all "targets" subject to the NSA's surveillance, and
all other relevant reports, risk assessments, memoranda, and other documents. In the event that
the records, reports, and/or other documents contain classified information, Defendants shall
present such information in camera to the Court.

31

Dated: November 14, 2013
Respectfully submitted,
/s/ Larry Klayman
Larry Klayman, Esq.
Attorney at Law
D.C. Bar No. 334581
2020 Pennsylvania Ave. NW, Suite 800
Washington, DC 20006
Tel: [phone]
Email: [e-mail]

32

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 14th day of November, 2013, a true and correct copy of the
foregoing Reply in Support of Motion for Preliminary Injunction (Civil Action Nos. 13-cv- 851
& 13-cv-881) was submitted electronically to the District Court for the District of Columbia and
served via CM/ECF upon the following:
James J. Gilligan
Special Litigation Counsel
Civil Division, Federal Programs Branch
U.S. Department of Justice
P.O. Box 883
Washington, D.C. 20044
[phone]
Email: [e-mail]
James R. Whitman
U.S. DEPARTMENT OF JUSTICE
P.O. Box 7146
Washington, DC 20044
[phone]
Fax: [phone]
Email: [e-mail]
Randolph D. Moss
WILMER CUTLER PICKERING HALE & DORR LLP
1875 Pennsylvania Avenue, NW
Washington, DC 20006
[phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Defendants.
Respectfully submitted,
/s/ Larry Klayman
Larry Klayman, Esq.
D.C. Bar No. 334581
Klayman Law Firm
2020 Pennsylvania Ave. NW, Suite 345
Washington, DC 20006
Tel: [phone]

33