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.
Civil Action No. 13-CV-881
and
Civil Action No. 13-CV-851

BARACK HUSSEIN OBAMA II, et. al

Defendants.

[PROPOSED] MEMORANDUM OF OPINION AND ORDER GRANTING
PLAINTIFFS' MOTIONS FOR PRELIMINARY INJUNCTION
Plaintiff, Larry Klayman, (“Klayman”), a former U.S. Department of Justice prosecutor,
Plaintiff Michael Ferrari, (“Ferrari”), Plaintiff Charles Strange, (“Strange”), and Plaintiff Matt
Garrison, (“Garrison”), (collectively “Plaintiffs”), have moved for a preliminary injunction,
pursuant to Federal Rule of Civil Procedure (“FRCP”) 65, to enjoin the National Security
Agency ("NSA" or "Defendants") from continuing their illegal mass warrantless surveillance of
ordinary Americans without reasonable suspicion or probable cause and to order Defendants to
comply with statutory and constitutional laws.
Having considered the motion, the opposition thereto, the record of the case, and the
argument of counsel at the hearing, the Court finds that Plaintiffs have demonstrated a
substantial likelihood of succeeding on the merits, that they are likely to suffer irreparable harm
without a preliminary injunction, that a preliminary injunction would not substantially injure the
other parties, and that the public interest would be furthered by granting the order. Accordingly,
the Court GRANTS Plaintiffs' Motion for a preliminary injunction enjoining Defendants from
exceeding statutory and constitutional authority and further ORDERS Defendants to comply
with any and all applicable laws.
1

I.
PROCEDURAL HISTORY
The National Security Agency ("NSA") has been collecting mass amounts of telephonic
and online metadata in violation of the Patriot Act and the First, Fourth, and Fifth Amendments
to the U.S. Constitution. Until recently, the public knew little about Defendants' mass
surveillance tactics. It was not until the actions of key NSA whistleblower, Edward Snowden,
that the American people became aware of Defendants' mass, secretive surveillance, such as
obtaining unlawful orders through the Foreign Intelligence Surveillance Court ("FISC") directing
Verizon to turn over ALL communication records on an ongoing daily basis in addition to
implementing mass surveillance programs, including the PRISM program, designed to collect
communication records of U.S. Citizens. Verizon Compl. ¶¶3, 8; PRISM Compl. ¶2. Plaintiffs
subsequently filed two separate class action lawsuits challenging the legality of Defendants’
secret and illicit schemes to systematically gather, intercept and analyze vast quantities of
telephonic and online “metadata” of U.S. citizens.
On June 12, 2013, Plaintiffs filed a class action Complaint seeking monetary, declaratory,
equitable, and injunctive relief as a result of Defendants' illicit and warrantless surveillance
program, PRISM, which not only violated Plaintiffs' constitutional rights under the First, Fourth,
and Fifth Amendments but also infringed on Plaintiffs' privacy rights and due process rights.
PRISM Compl. ¶2. The PRISM lawsuit also challenges Defendants' expansive acquisition of
Plaintiffs’ telephonic and online communication records under Section 215 of the Patriot Act, 50
U.S.C. §1860 through the PRISM surveillance program1, which monitors and intercepts
communication data from telephone and internet companies such as Skype, Google, Youtube,
AOL, Yahoo!, Facebook, Paltalk, AT&T, Sprint, and Microsoft. Id.
1

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

In addition to the PRISM action, on June 9, 2013, Plaintiffs filed a Complaint challenging
the legality of the "Verizon Order," a top-secret order issued by the Honorable Roger Vinson, a
judge of the FISC, which compelled the disclosure of all call detail records in possession of
Verizon Telecommunication for analysis by the NSA on an ongoing daily basis.2
Pursuant to its secret surveillance tactics, the NSA intercepted telephone and email/internet communications that originated or terminated inside the United States. Said
communications were, and/or being, collected by the NSA without reasonable suspicion or
probable cause, and without obtaining a warrant or any other proper type of judicial
authorization.
On October 29, 2013, Plaintiffs filed, in both cases, a Motion for Preliminary Injunction
seeking to enjoin Defendants from continuing their illegal mass warrantless surveillance of
ordinary Americans without reasonable suspicion or probable cause and to order Defendants to
comply with statutory and constitutional laws. Defendants filed an Opposition to Plaintiffs'
Motions for Preliminary Injunctions on November 12, 2013 (despite this Court's Order that the
deadline for Defendants to file their Opposition was November 11, 2013). The matter regarding
the issuance of a preliminary injunction was set for hearing on November 18, 2013.
II.
JURISDICTION
This Court has jurisdiction over the subject matter of this case and it has jurisdiction over
all the parties hereto pursuant to 28 U.S.C. §1331. 28 U.S.C. §1331 states, in pertinent part,
"[t]he district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States." Venue is proper under 28 U.S.C. §1391.
2

Compl. ¶26; See, In re Application of the FBI for an Order Requiring the Production of
Tangible Things from Verizon Bus. Network Servs., Inc. on Behalf of MCI Commc’n Servs., Inc.
d/b/a Verizon Bus. Servs., No. BR 13-80 (FISA Ct. Apr. 25, 2013) (“Verizon Order”).
3

This Court has supplemental jurisdiction pursuant to 28 U.S.C. §1367, which states in
pertinent part, "…in any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of the same case or
controversy under Article III of the U.S. Constitution. Additionally, this Court has authority to
grant a preliminary injunction and other appropriate relief pursuant to FRCP Rule 65.
III.
STANDING
Plaintiffs have standing under Article III. They have suffered an injury because they are
U.S. citizens who have, at all material times, been subscribers, users, customers, and otherwise
have availed themselves to Verizon, Facebook, Yahoo, Google, Microsoft, YouTube, AOL,
PalTalk, Skype, Sprint, AT&T, and/or Apple. PRISM Compl. ¶ 1; Verizon Compl. ¶ 1. Plaintiffs'
communications have been, and continue to be, monitored by Defendants under the Verizon
Order and/or Defendants’ PRISM surveillance program PRISM Mot. for Preliminary Injunction
at 4 (hereafter "Mot. for PI").
The injury is plainly traceable to the conduct they challenge—that is, to Defendants’
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. Verizon Compl. ¶ 28. 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. PRISM
Compl. ¶10.
4

Defendants have acknowledged that it has engaged in such metadata collection.
Specifically, in regard to the PRISM surveillance program, Defendants have 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. Mot. for PI at 10-11.
In addition, the Primary Order/Verizon Order indicates that every time the NSA queries the callrecords database, it reviews everyone’s records—Plaintiffs’ among them—to determine 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’ communication
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).Plaintiffs’ First Amendment claim asserts a direct
intrusion into their associational privacy, not just a chilling effect. PRISM Compl. ¶ 76-78.
This intrusion and the resulting injury is complete when Defendants collect Plaintiffs’
communication records—regardless whether the surveillance ultimately dissuades any third
party from communicating with them. Additionally, Plaintiffs suffer a further, discrete injury
because of the program’s chilling effect on their key contacts and sources. As way of example,
Plaintiff Larry Klayman is an attorney and, more significantly, is the founder, chairman, and
general counsel of Freedom Watch, an organization devoted to promoting and preserving civil
liberties and individual rights. Mot. for PI at 13-19. As an attorney, Plaintiff Klayman routinely
communicates by phone and by email with existing and potential clients about their legal

5

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 has and will continue to dissuade, potential clients and
others from contacting Plaintiff Klayman, fearing reprisal, and, additionally, compromises
Plaintiff Klayman’s ability to serve their clients’ interest and Freedom Watch’s organizational
goals. Klayman Aff. at ¶10. With public knowledge and wide disclosure of the NSA's
surveillance, the NSA's monitoring has and will continue to dissuade crucial contacts from
associating with Plaintiff. Id. 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. Supplemental Klayman Aff. at ¶13.
Plaintiff Klayman has been forced to travel to meet with clients in order to ensure that his
conversations are indeed private. Supplemental Klayman Aff. at ¶14. This constant travel has
come as a great expense to Plaintiff Klayman. Id.
The NSA 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); Talley v. California, 362 U.S. 60, 64 (1960).
IV.
STATUTORY AND REGULATORY
6

BACKGROUND AND FRAMEWORK
Defendants’ surveillance program is ostensibly based on Section 215 of the Patriot Act,
which allows Defendants to obtain an order requiring the 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 (other than a threat assessment)…to obtain foreign
intelligence information not concerning a United States person or to protect against international
terrorism or clandestine intelligence activities.” (emphasis added) 50 U.S.C. §1860.
In 1978, Congress enacted the Foreign Intelligence Surveillance Act (“FISA”) to regulate
government surveillance conducted for foreign-intelligence purposes. Congress adopted FISA
after the Supreme Court held, in United States v. U.S. District Court (Keith), 407 U.S. 297
(1972), that the Fourth Amendment does not permit warrantless surveillance in intelligence
investigations of domestic security threats. In enacting FISA, Congress created the Foreign
Intelligence Surveillance Court (“FISC”) and empowered it to grant or deny government
applications for surveillance orders in foreign intelligence investigations. 50 U.S.C. § 1803(a).
The provision at issue in this case was originally added to FISA in 1998. See 50 U.S.C.§§
1861–1862 (2000 ed.). The Patriot Act and several successor bills modified that provision in
several respects. In its current form, the statute—commonly referred to as Section 215—allows
the government to obtain an order requiring the 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 (other than a threat assessment) . . . to obtain foreign intelligence
information not concerning a United States person or to protect against international terrorism or
clandestine intelligence activities.” Id. § 1861(b)(2)(A). While the amendments to this provision
expanded the government’s investigative power, this expansion was not without limits. For

7

example, language added by the Patriot Act prohibits the government from using the provision to
obtain tangible things that could not be obtained through analogous mechanisms.
V.
FACTUAL BACKGROUND
The National Security Agency ("NSA") has been collecting mass amounts of telephonic
and online metadata in violation of the Patriot Act and the First, Fourth, and Fifth Amendments
to the U.S. Constitution. Until recently, the public knew little about Defendants’ use of Section
215. It was not until the actions of key NSA whistleblower Edward Snowden that the American
people became aware of Defendants’ illegal actions. 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-secret-program-online-data. Plaintiffs
filed two lawsuits, first challenging the constitutionality of the NSA's actions in collecting
telephony metadata from Verizon as a result of secret FISA court orders. Specifically, on June
12, 2013, Plaintiffs filed suit challenging the legality of Defendants’ secret and illicit scheme to
systematically gather, intercept and analyze vast quantities of telephonic and online “metadata”
of U.S. citizens through the NSA's PRISM program3, which would monitor and intercept
communications from internet companies such as Skype, Google, Youtube, AOL, Yahoo!,
Facebook, Paltalk, AT&T, Sprint, and Microsoft. On June 9, 2013, Plaintiffs filed suit
challenging the legality of Verizon Order. Pursuant to its secret surveillance program, the NSA
intercepted telephone and e-mail/internet communications that originated or terminated inside
the United States. Said communications were, and/or being, collected by the NSA without
probable cause, and without obtaining a warrant or any other proper type of judicial
authorization.
3

The PRISM program did not receive a court order from the FISA court.
8

(i)

Defendants’ PRISM Program
Since 2007, the NSA implemented a highly classified, unlawful mass surveillance

program, referred to as PRISM, which is an internal computer system that operates through
compelled “partnerships” with major internet companies such as Defendants, who provide
Internet, email, social networking, and the like to millions of Americans that use these services
as a primary means of communication. Compl. ¶¶3, 8; See also, James Ball "NSA stores
metadata of millions of web users for up to a year, secret files show," The Guardian, (Sept. 30,
2013), www.theguardian.com/world/2013/sep/30/nsa-americans-metadata-year-documents.
PRISM allows the NSA to directly access and retrieve private electronic data belonging to all
users and customers of Defendants’ online services. PRISM Compl. ¶7; See, i.e. HJC Hearing at
29:33–36:00 (testimony of John C. Inglis, NSA Deputy Director).
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. According to Snowden, 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".4 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-secret-program-onlinedata. In fact, programs such as PRISM were used to illegally wiretap Chancellor Angela
Merkel of Germany. See Alison Smale and David E. Sanger, "Spying Scandal Alters U.S. Ties
4

Pursuant to Federal Rules of Evidence Rule 804, the following is 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.”
9

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-with-allies-and-raisestalk-of-policy-shift.html. The data obtained by the NSA through PRISM 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. Compl. ¶7.
The metadata gathered through PRISM allows the NSA 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. 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.
(ii)

Verizon Order
On April 25, 2013, Defendant Judge Roger Vinson issued a highly classified order

directing the Custodian of Records of Verizon Business Network Services, Inc. ("Verizon") to
produce, and to continue production on an ongoing daily basis thereafter, the following tangible
things to the NSA: all call detail records or “telephony metadata” created by Verizon for
communication (i) between the United States and abroad; or (ii) wholly within the United States,
including local calls. In re Application of the FBI for an Order Requiring the Production of
Tangible Things from Verizon Bus. Network Serv., Inc. on Behalf of MCI Commc’n Serv., Inc.
D/B/A Verizon Bus. Serv., Dkt. No. BR 13-80 at 1-2 (FISA Ct. Apr. 25, 2013) (hereinafter
“Verizon Order”).

10

“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. 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”).
Defendants have disclosed that the Verizon Order was issued as part of a broader
program that has been in place for seven years and that involves the collection of information
about virtually every phone call, domestic and international, made or received in the United
States. Administration White Paper: Bulk Collection of Telephony Metadata Under Section 215
of the USA PATRIOT Act 1 (Aug. 9, 2013), http://bit.ly/15ebL9k (“White Paper”); Dep’t of
Justice, Report on the National Security Agency’s Bulk Collection Programs for USA PATRIOT
Act Reauthorization 3 (Feb. 2, 2011), http://1.usa.gov/1cdFJ1G.
The Primary Order and the administration’s White Paper explain how Defendants
analyze and disseminate information housed in the massive database assembled by the call
tracking program. Specifically, the documents indicate that the NSA is permitted to query this
database when a “designated approving official” at the NSA determines that “there are facts
giving rise to a reasonable, articulable suspicion (RAS) that the selection term to be queried is

11

associated with” a “foreign terrorist organization.” Primary Order at 7. Defendants have
acknowledged that the NSA has violated the Primary Order’s restrictions on multiple occasions.
White Paper at 5. (“Since the telephony metadata collection program under Section 215 was
initiated, there have been a number of significant compliance and implementation issues that
were discovered as a result of DOJ and ODNI reviews and internal NSA oversight.”). White
Paper at 5.
(iii)

NSA'S Repeated Pattern of Lying Regarding Mass Surveillance, NonCompliance with Court Orders, and Engaging in Illegal Surveillance Tactics.

As an initial matter, this Court, cannot rely on the statements made by the NSA in their
pleadings, particularly as the NSA has shown a pattern of lying to the American people, raising a
strong inference of their continuing deceptive allegations. Defendants’ deceptive conduct has
been evidenced through numerous instances of unlawful actions, 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-internetencryption.html. More than deeply troubling are the number of misleading statements senior
officials have made about domestic surveillance and the extent of Defendants’ false
misrepresentations and blatant lies. In fact, James Clapper, the Director of National Intelligence,
lied under oath during a congressional hearing by denying that the NSA was collecting mass
quantities of domestic communication records. Specifically, 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

12

millions of Americans.”5 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.” Clapper now admits that his testimony is a
“clearly erroneous” lie. 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.
The FISC 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).
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
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).
5

13

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.
Defendants have 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.
Similarly, in an order issued by the FISC on March 2, 2013, questioning the credibility,
trustworthiness, and ability for Defendants 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

14

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).
Moreover, NSA Inspector General George Ellard admitted that since 2003, there have
been “12 substantiated instances of intentional misuse” of “surveillance authorities.” See
Attached Touhy Letter with Attached Documents Requesting Authentication From the NSA,
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).
The actions of the NSA went beyond scope of the Patriot Act, and, as such, these actions
are unconstitutional, in violation of the First, Fourth, and Fifth Amendments to the U.S.
Constitution.
VI.
CONCLUSIONS OF LAW
A.

Standard for Preliminary Injunctive Relief
This Court may issue a preliminary injunction only when the movant demonstrates: (1) a

substantial likelihood of success on the merits; (2) that it would suffer irreparable injury if the
injunction is not granted; (3) that an injunction would not substantially injure other interested
parties; and (4) that the public interest would be furthered by the injunction. Mova Pharm. Corp.
v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998) (quoting CityFed Fin. Corp. v. Office of Thrift
Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995). "These factors interrelate on a sliding scale and

15

must be balanced against each other." Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C.
Cir. 1998).
(1)

Plaintiffs have Demonstrated a Substantial Likelihood of Success on the Merits

Plaintiffs will suffer irreparable injury if preliminary relief is not granted, and they are
substantially likely to succeed on the merits of their claims. The mass call-tracking program is
ostensibly based on Section 215 of the Patriot Act but the program disregards that provision’s
core requirements, including its “relevance” requirement. The program violates the Fourth
Amendment because the surveillance carried out is warrantless and unreasonable, and it violates
the First Amendment because it substantially and unjustifiably burdens Plaintiffs’ associational
rights when more narrow methods could be used to achieve Defendants’ ends.
(2)

Plaintiffs Will Suffer Irreparable Harm

Plaintiffs will suffer irreparable harm absent a preliminary injunction, restraining Defendants
from continuing their unlawful surveillance of Plaintiffs especially during this proceeding.
Plaintiffs assert injuries resulting from the mass call-tracking surveillance program engaged in by
Defendants, which violate Plaintiffs’ First, Fourth, and Fifth Amendment rights as well as the
program’s violation of Section 215 of the Patriot Act. Without a preliminary injunction,
Defendants would inherently have a significantly greater and substantially unfair advantage in
this lawsuit, especially during the pendency of this action, thus depriving Plaintiffs of their right
to a fair trial.
Additionally, courts have consistently held 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,

16

427 U.S. 347, 373 (1976)); see also Serets-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 are subjected to ongoing, intrusive, and unlawful surveillance as a result of the
mass call tracking surveillance program implemented by Defendants, who do not have the proper
statutory or constitutional authority to engage in such warrantless, mass surveillance tactics,
through obtaining such orders as the Verizon Order and implementing programs such as the
PRISM program.
(3)

Defendants Will Not be Substantially Harmed by an Issuance of a Preliminary
Injunction

Defendants cannot be said to be “burdened” by a requirement to comply with the law.
Defendants are already defending against constitutional challenges to its mass call tracking
surveillance program, both in court and in Congress. Unless and until such challenges are
resolved, Defendants should not be permitted to continue its highly intrusive surveillance tactic
and collection of vast quantities of communication records, particularly where, as here, there are
legitimate questions of agency overreach.
(4)

Public Interest

The public interest prong is met because “there is an overriding public interest…in the
general importance of an agency’s faithful adherence to its statutory mandate.” 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.”) 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
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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).
Given Defendants’ fundamental defects in complying with court orders and their
substantially likely constitutional violations, the public interest will be served if this Court
preliminarily enjoins Defendants from continuing their warrantless, unlawful surveillance.
III.
CONCLUSION
In accordance with the memorandum opinion issued this date, and upon consideration of
the Plaintiffs' Motion for a Preliminary Injunction, the opposition thereto, the reply brief, the
applicable law, and the arguments made by counsel during the hearing conducted by the Court
on this matter, it is hereby ORDERED that the Plaintiffs' Motion for the Preliminary Injunction
is GRANTED; and it is further ORDERED that the Court hereby enters the following
preliminary injunction.
1.

The Court hereby preliminary RESTRAINS AND ENJOINS Defendants, its

agents, servants, employees, attorneys, and all others in active concert or participation with
Defendants, from implementing surveillance procedures, tactics, and programs that exceed
statutory authority and constitutional provisions.
2.

Defendants are further ORDERED to comply with any and all laws regarding the

Defendants’ authority, power, and limits in conducting such mass warrantless domestic

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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.
3.

It is further ORDERED that within twenty (20) days of this date, Defendants must

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 Defendants' 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.
4.

The plaintiffs, in accordance with their discovery rights reaffirmed in Section 3,

may take discovery regarding Defendants' declarations. The Plaintiffs must file any responses to
Defendants submissions under this section within thirty (30) days of the completion of the
Plaintiffs' discovery. The Court will consider the parties' submissions, conduct any necessary
evidentiary hearing, and order further relief as appropriate.
5.

It is further ORDERED that proper procedures shall be taken by Plaintiffs'

counsel to obtain a security clearance in order to conduct said discovery.6
6.

It is further ORDERED, in accordance with the Federal Rules of Civil Procedure,

that the Plaintiffs' discovery rights are reconfirmed.
a.

The Plaintiffs may take discovery, by deposition or otherwise, regarding

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

6

Plaintiffs' counsel, Larry Klayman, was a former Department of Justice attorney with the anti-trust division and has
previously obtained a security clearance.

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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 Defendants'
surveillance, and all other relevant reports, risk assessments, memoranda, and other documents.
b.

The scope of Plaintiffs' discovery requests may include "all relevant

reports, risk assessments, memoranda, and other documents, whether prepared by the National
Security Agency officials or employees, officials or employees of other government agencies, or
third parties, any pertinent records, reports, and/or other documents to the Court relating to
Defendants' 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 Defendants' surveillance, and all other relevant reports, risk assessments,
memoranda, and other documents.
c.

The parties shall endeavor to agree upon and submit to the Court, within

ten (10) days of this date, a proposed protective order to govern disclosure of information and
materials related to Defendants' surveillance. In the event that the parties are unable to agree on a
proposed protective order, each party must submit a proposed protective order to the Court
within ten (10) days of this date.
7.

No bond is required. The balance of hardships favors Plaintiffs, who are

experiencing harm to fundamental rights guaranteed them by the Constitution, while Defendants
do not face a likelihood of financial or other harm from complying with this injunction.

IT IS SO ORDERED
_________________________
Hon. Richard J. Leon
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United States District Judge

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