KLAYMAN v. OBAMA et al

Filing 39

NOTICE of Filing of Transcript by LARRY E. KLAYMAN, CHARLES STRANGE, MARY ANN STRANGE (Attachments: # 1 Exhibit 1 -- Transcript of ACLU v. Clapper Proceeding)(Klayman, Larry)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x
AMERICAN CIVIL LIBERTIES UNION,
et al.,
Plaintiffs,
v.

13 Cv. 3994 (WHP)

JAMES R. CLAPPER, et al.,
Defendants.
------------------------------x
November 22, 2013
10:30 a.m.
Before:
HON. WILLIAM H. PAULEY III
District Judge
APPEARANCES
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
BY: JAMEEL JAFFER
ALEXANDER A. ABDO
PATRICK C. TOOMEY
BRETT M. KAUFMAN
ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
BY: STUART F. DELERY
Assistant Attorney General
U.S. DEPARTMENT OF JUSTICE
BY: MARCIA BERMAN
JAMES J. GILLIGAN
BRYAN DEARINGER

SOUTHERN DISTRICT REPORTERS, P.C.
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APPEARANCES (CONT'D)
PREET BHARARA
United States Attorney for the
Southern District of New York
DAVID S. JONES
JOHN D. CLOPPER
Assistant United States Attorneys
CHAD BAYSE
SCOTT CHUTKA
Agency Counsel, NSA

SOUTHERN DISTRICT REPORTERS, P.C.
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(Case called)
THE DEPUTY CLERK: Appearances for the plaintiff.
MR. JAFFER: Jameel Jaffer, Alex Abdo, Patrick Toomey,
and Brett Kaufman for the plaintiffs.
THE COURT: Good morning.
THE DEPUTY CLERK: Appearance for the defendants.
MR. JONES: David Jones from the U.S. Attorney's
Office for the Southern District of New York. This is John
Clopper, my colleague here in the Southern District, three
attorneys from the Justice Department in Washington, who will
not be arguing, Bryan Dearinger, Marcia Berman and Jim
Gilligan, and arguing for the government is Stuart Delery, who
is also from the Justice Department in Washington.
THE COURT: Good morning.
This is oral argument, both on the ACLU's motion for a
preliminary injunction and the government's motion to dismiss.
I propose to conduct the argument in the following manner. I
will hear first from the ACLU and then from the Department of
Justice on your principal arguments for approximately 30
minutes each, and then I will give each of you an opportunity
to respond to what you have heard from your adversary. And, of
course, I will allow some flexibility in that, but that's my
general intention.
So with that in mind, do you want to be heard, Mr.
Jaffer?
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MR. JAFFER: Yes, please, your Honor.
Your Honor, I am going to address our statutory claims
and my colleague Alex Abdo is going to address our
constitutional claims. There are some issues that relate to
both sets of claims, and we are both prepared to address those.
As you know, this case involves a challenge to the
NSA's collection of data about virtually every telephone call
made or received on U.S. networks. This vast dragnet is said
to be authorized by Section 215 of the USA Patriot Act, but
nothing in the text or legislative history of that provision
remotely suggests that Congress intended to empower the
government to collect information on a daily basis,
indefinitely, about every American's phone calls.
The language of Section 215 is broad, but it's similar
or identical to the language used in other authorities, and
none of those authorities has been interpreted as the
government interprets Section 215 here.
Moreover, Section 215 is part of a larger statutory
scheme that reflects a sensitivity to the intrusive power of
technology and a respect for individual privacy. If there were
any doubt about the reach of the provisions of the doctrine of
constitutional avoidance counsels against interpreting it as
the government interpreted here, that is in a way that would
raise substantial constitutional questions.
So I would like to address three questions. The first
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is the Court's jurisdiction to hear the case, the second is
whether the program exceeds statutory authority, and the third
is whether plaintiffs' claim is precluded either by 18 U.S.C.,
Section 2712 or by Section 215 itself. But, of course, if you
have questions on any other issue, I am happy to address those
too.
On the jurisdictional question, your Honor, we think
that this issue is pretty straightforward. The Court has
subject matter jurisdiction under the federal question statute
and the Administrative Procedure Act. To the extent the
question that the Court asked at the original status conference
in this case was a question about prudential considerations,
our view is that all prudential considerations weigh in favor
here of the exercise of the Court's jurisdiction. I am
thinking of three things in particular.
The first is that plaintiffs can't bring these claims
in any other court. The FISA court, as you know, is a court of
limited jurisdiction, a specialized court that deals only with
the government's applications for surveillance. There is a
statutory provision, 50 U.S.C. 1803, that sets out that
jurisdiction. This is not the kind of case that we can bring
in the FISA court and the government agrees with that.
The second is that the government has conceded that
this Court is the proper venue for these claims. In fact, in
In re EPIC, the government asked the Supreme Court to dismiss a
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mandamus petition that had been filed directly in that court on
the grounds that petitioner in that case should have done
precisely what the ACLU has done here, file an action in an
ordinary district court. And I will just read you one sentence
from the government's brief in that case. The government
wrote, "The proper way for petitioner to challenge the
telephony records program is to file an action in federal
district court, as other parties have done."
Then, finally, your Honor, there is nothing unusual or
inappropriate about a district court evaluating the lawfulness
of a FISA court order. It happens routinely in criminal cases.
When defendants move to suppress evidence obtained under FISA,
the question that courts ask is, was the surveillance lawful?
And in effect the court is assessing the original FISA court
order.
So for all those reasons, we think that there is no
question that the Court has jurisdiction here, and to the
extent the prudential consideration should be factored in, all
of them weigh in favor of the exercise of the Court's
jurisdiction.
I will go on to the scope of the statute.
On the question of whether the program is authorized
by Section 215, I think I think would like to focus on three
things, unless your Honor feels that the focusing on one of
them is unnecessary.
SOUTHERN DISTRICT REPORTERS, P.C.
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The first is whether Section 215 can lawfully be used
to collect call records at all. The second is whether, even if
Section 215 can be used to collect call records, it can be used
to engage in collection on this scale. Then, finally, the
question whether Congress ratified the call tracking program
when it reauthorized Section 215 in 2010 and 2011.
As we explained in our briefs, your Honor, and I will
try not to repeat what we have said in our briefs, but just
highlight a few points, Section 215 can't lawfully be used to
obtain call records at all. That's because at the same time
that Congress enacted Section 215 in 2001, in fact, in the very
same bill, it added a separate provision to the Stored
Communications Act that specifically prohibits the disclosure
of call records. Now, there are exceptions to that rule, but
those exceptions don't include Section 215.
The government's argument, as I understand it, is that
Section 215 constitutes an implicit exception to that privacy
rule set out in 18-2702. That argument is unpersuasive for
several reasons.
First, it's a well accepted canon of statutory
interpretation that the inclusion of some things implies the
exclusion of others. In its list of exceptions to 2702,
Congress included some authorities, but it excluded others, and
the Court should give significance to that decision.
THE COURT: What about the language in Section 215
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stating that, "Any production or nondisclosure order not
explicitly modified or set aside consistent with this
subsection shall remain in full effect"?
MR. JAFFER: Two things about that. First, we are not
asking this court to set aside the Section 215 order. This is
a challenge to executive conduct, not a request that the Court
review the 215 order. And that's a distinction I think that
the government makes quite well in its response in the In re
EPIC decision.
The second thing is the legislative history makes
clear that the purpose of that particular provision was to
ensure that if a provider brought a challenge to a Section 215
order, while the issues were going up through the FISA court of
review and then eventually possibly to the Supreme Court, the
Section 215 order would remain valid. That was the point of
that provision. It was not meant to be this grand preclusive
provision in the way that the government suggests it is. There
is no suggestion of that in the legislative history.
THE COURT: If this Court were to enjoin the metadata
collection, wouldn't that be an order not modified or set aside
consistent with Section 215?
MR. JAFFER: I don't think so. I think the order we
are asking you to issue is an order that goes only to executive
officials. It restricts what they can do. It would create a
an obvious tension with the Section 215 order, but the Section
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215 order would not be set aside. It would remain valid and
that provision would not be implicated at all in our view, your
Honor. And again, I think that's consistent with the
legislative history.
But I think your question goes to preclusion, and I
would like to, if your Honor doesn't mind, just first set out
our view of the scope of the statute and why, assuming our
statutory claims aren't precluded, why we think that this
program violates Section 215.
As I already said, the privacy rule sets out
exceptions. 215 is on one of them. In our view, the Court
should give significance to the distinction that Congress drew.
But the other thing is that the government has itself
recognized that reading in implied exceptions to the privacy
rule set out in 2702 is inappropriate. And we go through some
examples on page 5 of our reply brief, which I won't recite
here, three different examples in which the government itself
concluded that reading in the kind of implied exception that
it's asking the Court to read in here would be inappropriate.
Then, finally, your Honor, a third prong of the
government's argument that Section 215 constitutes an implicit
exception to 2702 is that Section 215 lacks the
"notwithstanding any other provision" language that appears in
every other provision of FISA.
Now, the only authority that the government relies on
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here for the proposition that Section 215 constitutes an
implicit exception is Judge Walton's opinion from December of
2008. I am not sure that this is entirely clear from the
briefs, but the program was launched several years before this,
and my understanding is at some point it came to the
government's attention that they had overlooked a statute when
they first briefed this to the court, and to their credit they
went to the court and said, it turns out that there is this
statute that on its face forecloses us from collecting call
records under Section 215. We believe there is a way to read
Section 215 to allow us to do what we are doing. And three
years after the program was first launched, Judge Walton was
asked to address this question.
Obviously, it was not an adversarial process. The
arguments we are making to this Court were not made to that
court, and certainly they weren't made by anyone who had an
incentive to make them forcefully and persuasively. And we
think Judge Walton's opinion is wrongly decided. We think that
he got this particular issue wrong. The sort of pivotal point
in Judge Walton's opinion is the theory that Congress would not
have wanted to foreclose the government from obtaining call
records through a Section 215 order, which requires court
review at the outset, when it authorized the government to
obtain call records under Section 2709, the national security
letter provision, which doesn't require court review at the
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outset.
But there are actually many good reasons why Congress
might have wanted the government to use 2709 rather than
Section 215 to collect call records. I will just identify two
of them. We identify others in the brief. One of them is that
Section 2709 places limits on the kind of call records that the
government can obtain. And if you allow the government to use
Section 215 to obtain call records, then the government
essentially has an end run around the limits in 2709.
This is something that we don't say in our brief, but
2709 also restricts the kinds of investigations in which the
government can obtain call records. It says that the
government can obtain call records in counterterrorism
investigations and in clandestine intelligence investigations,
but not in foreign intelligence investigations. Foreign
intelligence investigations are a sufficient basis for Section
215 orders, but not for national security letters. So there
are all sorts of reasons why Congress would have wanted the
government to proceed under the NSL statute rather than under
215, and Judge Walton, respectfully, overlooked those reasons.
Now, ultimately, your Honor, I don't think it's
necessary to get into this inquiry about what Congress
intended. The statute is clear on its face, and I think that
that should end the analysis.
So that's our first argument on the scope of the
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statute. The one other argument which I thought I should
highlight is just that even if the government can obtain call
records under this statute, nothing permits it to obtain call
records on the scale that it's obtaining them.
Your Honor, the statute, as you know, imposes two
limits on the scope of the government's authority here. One is
set out in 1861(b)(2)(A), which includes the language relating
to relevance, reasonable grounds to believe that the tangible
things are relevant. And the other is set out in (c)(2)(D),
which states that the government can't obtain anything that
can't be obtained by a grand jury subpoena or administrative
subpoena or another court order.
So those are two distinct limits. But before I sort
of dive into the weeds of those limits, I just want to note
that the big problem with the government's theory is that it is
absolutely without limit. And when I say that, I am thinking
of three things. First, if the government can engage in
collection on this scale under Section 215, there is no reason
why it couldn't do so under many other authorities. As I said
earlier, the same language that's used in Section 215, or
language very similar to it, is used in many other authorities.
So if the government can collect all call records under Section
215, why couldn't it collect all call records with a grand jury
subpoena or an administrative subpoena or a national security
letter?
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THE COURT: What is the proper unit to be considered
in determining relevance? Is it a single customer's records?
MR. JAFFER: I am not sure it would make a difference
to the outcome in this case given how much information they are
obtaining about every single person. But ultimately here, the
court order that the government is relying on, or the argument
that the government made to the FISA court, is that all
American's call records are relevant. So I think that's the
relevant unit. That is what the government is seeking. The
question is, are all of those records relevant?
Now, I don't know if this is what you're getting at,
your Honor, but the language in (b)(2)(A) uses the phrase "are
relevant." I am not saying that every single record that the
government obtains under Section 215 either has to relate to a
suspected terrorist or it's not relevant. I am not making that
argument. But I do think that it's worth noting that the
language in (b)(2)(A) is, if anything, narrower than the
language that the courts have used in a grand jury or
administrative subpoena.
THE COURT: When the Congress added the word relevant
in 2006, did it intend to raise the necessary showing?
MR. JAFFER: I think it did, your Honor. The language
before 2006 obviously didn't include a relevance requirement.
To be frank, the legislative history is mixed on this point.
THE COURT: That's nothing new, right?
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MR. JAFFER: No, it's nothing new.
So I am not sure how much we can take from the
legislative history on that particular point. But on the face
of it, I think that the language of the 2006 statute is more
restrictive than the language that existed before, and nobody
made the argument that the 2006 amendments were meant to widen
the aperture of the government's investigative authority under
this provision. I think it's worth asking, if the government
can get everything now under the 2006 language, what more could
it have got before that additional restriction was put in the
statute?
THE COURT: How does it affect the relevant standard
that the government only has to show "reasonable grounds" to
believe the items sought are relevant?
MR. JAFFER: That phrase is used in a lot of the grand
jury cases and the administrative subpoena cases. In fact,
it's used with respect to the whole category of information.
So what courts will say is: Are there reasonable grounds to
believe that this category of information will lead to relevant
information? So it's actually a much more sort of attenuated
standard. Certainly, a less stringent standard in the grand
jury context. So it may be that the phrase "reasonable
grounds" makes the standard less stringent than it would
otherwise be. But it's still at least as stringent as the
standard applied by courts in the grand jury and administrative
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subpoena context, and arguably less permissive than that
standard.
Your Honor, there are two other points I would like to
just make very briefly about accepting the government's theory
here. One I already made, which is that if they can collect
these kinds of records under this authority, they can collect
them under other authorities as well. The second is if they
can collect call records under this authority, there is no
reason why they can't collect all kinds of other records as
well.
The government argues the call records are distinctive
because they are interrelated, but many other kinds of records
are interrelated. That's true of location information. It's
true of financial records. It's true of some kind of medical
records. We have submitted a declaration from Edward Felten, a
professor of computer science, who explains how and why those
kinds of records are also interrelated. So if you accept that
the government can get these kinds of records, you are
accepting that the government can get many others as well.
Then, finally, your Honor, if the government can
obtain these kinds of records in terrorism investigations,
there is no reason why it couldn't obtain these kinds of
records in other kinds of investigations as well. The
government says that terrorism and national security
investigations are different, they are far-reaching, they are
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broad, but that's true of many other kinds of investigations as
well. It's true of some insider trading investigations. It's
true of some securities fraud investigations. It's certainly
true of some drug trafficking investigations. I think that if
you accept the government's theory here, you are creating a
dramatic expansion in the government's investigative power.
THE COURT: In your view, is it factually incorrect
that the government needs to collect all metadata in order to
sufficiently identify connections between terrorists, or is it
your position that even if that is true, that it's not enough
to make the bulk collection relevant?
MR. JAFFER: I am glad you have asked this question
because this is a point that to our argument I think is
crucial.
We are making both of those arguments. Even if all of
this was necessary, it wouldn't be relevant in the sense that
the statute requires it to be relevant. But I think maybe more
important, it's not necessary. And we have submitted, again,
the Felten declaration which explains why it's not necessary.
You don't need all call records in order to do what the
government says it wants to do. The government says it wants
to track the associations of suspected terrorists, and we can
certainly understand why the government would want to do that.
But you don't need to collect everything in order to do that,
and Professor Felten explains why that is true.
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The other thing that is worth noting here, your Honor,
is that even the government doesn't seem to argue anymore that
it is necessary to have all call records in order to do what it
wants to do here. If you look at Judge Walton's opinion from
2009, which we cite on page 13 of our reply brief, that opinion
begins by saying, We authorize this program because the
government asserted in sworn affidavits that collecting all
call records was the only effective means to do what we want to
do here, which is, again, track the associations of suspected
terrorists. And if you look at Judge Egan's opinion that was
issued in August over the summer and released over the summer,
it says the same thing on page 19 of that opinion. It says
that we authorize this program because the government asserted
that this was the only way to track the associations of
suspected terrorists.
But if you look at the government's declarations in
this case, those phrases appear nowhere in the declarations.
It's actually quite a very conspicuous absence. Where you
would expect to find those phrases, instead you find phrases
like, this is one tool that we could use, or, it may not be
feasible. I am not saying that means that the government has
no interest anymore in collecting any of this stuff, but I am
saying that the interest that the FISA court relied on and said
was crucial to its ultimate decision to authorize the program,
the statements that the government made to the FISA court to
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result in the authorization of the program it no longer makes.
There may be good reasons for that. Perhaps the
government has just changed its mind or it has recognized that
there are technological tools available to it that it didn't
recognize were available five or six years ago. But for
whatever the reason, the point is that the government is no
longer saying what the FISA court thought was necessary for the
government to say in order to justify the program.
Your Honor, unless you have further questions about
the scope of the statute, I will just return to preclusion
briefly. I want to make sure that I leave sufficient time for
my colleague to address the constitutional claims.
So the government has two different preclusion
arguments. The first is that 18 U.S.C. 2712, which provides a
damages remedy for certain claims, implicitly precludes
plaintiffs' claim here.
I think it's useful and important, your Honor, to
start by remembering what the background rule is here because
the government forgets it in its briefs. The background rule
here is the Administrative Procedure Act. The Administrative
Procedure Act creates a strong presumption that Congress
intends judicial review of administrative action. And that
presumption can be overcome only with clear and convincing
evidence.
The presumption is different for damages claims. If
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we were making a damages claim, if we were asserting a damages
claim, it would be our burden to show that Congress intended to
create the right of action, but that's not true with injunctive
relief. It's the government's burden to show clear and
convincing evidence.
I point that out in part because one of the cases that
the government relies on in Jewel, a California case involving
the warrantless wiretapping program, the whole premise of the
court's reasoning in the section on injunctive relief is that
it's the plaintiff's burden to show that Congress intended
there to be a right of judicial review, which is wrong. It's
not the plaintiff's burden, it's the government's.
THE COURT: For this Court to find that 2712 does not
preclude the statutory claim, do I have to find that Jewel was
wrongly decided?
MR. JAFFER: You don't, your Honor, because Jewel
actually involved one of the subchapters listed in 2712. So
three of FISA's four subchapters are listed and Jewel involved
one of those subchapters. This case doesn't involve that.
That said, I do think Jewel was wrongly decided, and I
think if you look at the section of the injunctive relief part
of that opinion, you will see what I just said, that the court
cites the wrong burden. So certainly the premise of the
court's analysis was incorrect.
On Section 215 itself, your Honor, the government
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argues that Congress precluded judicial review to people like
us by providing judicial review to the telecoms, to the
providers. A few things here, your Honor.
First, the legislative history shows that Congress
added the judicial review provisions for providers not in order
to preempt or preclude any other claim, but, rather, because
the question of what process should be afforded to providers
had been a subject of litigation under the National Security
Letter statute. So there is a separate set of cases in this
district before Judge Marrero involving a National Security
Letter provision. Those cases involved a challenge by a
provider, and the question that was presented in those cases
was, what rights did the provider have to challenge the
national security letter that's been served on it? And in
response to those decisions, Congress made these additions to
not just the national security statute, but to 215 as well,
explaining precisely what process the providers should have.
So that was congressional intent here. And if you
read the government's briefs, the most that the government can
say on the other side is just that Congress never contemplated
that the targets of these orders would ever come into court,
because Congress never contemplated that they would learn of
this kind of surveillance. I don't know whether that's true or
not, but even taking it as true, that doesn't meet the
government's burden. It's not enough for the government to say
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Congress never considered. The government has to establish
that Congress not just considered, but considered the claim of
particularity. That's the language from the Pottawatomi case,
Justice Kagan's opinion. It's the language from Block in the
D.C. Circuit.
The last thing I want to say relates to Block itself,
to the D.C. Circuit case that the government relies on heavily
in this part of its argument. In that case, the D.C. Circuit
rejected a milk consumer's argument that the Agricultural
Marketing Agreement Act gave them an implied right of action to
challenge orders setting milk prices.
There are three things that were crucial to the
court's decision in that case. The first was that extending a
cause of action to consumers would have undermined the
statutory scheme by allowing an end run around administrative
review requirements; the second is that the statutory scheme
was enacted to protect the producers, not the consumers who are
asking the court to recognize an action; and the third is that
Congress had extended a cause of action to another group,
handlers, milk handlers, whose interests were aligned with
those of the consumers. No analogous thing can be said about
this particular context.
First, extending a cause of action to the plaintiffs
wouldn't allow us to do an end run around administrative
requirements, administrative remedies. There is nothing to do
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an end run around.
Second, the statutory scheme here, FISA, was intended,
at least in part, to protect the privacy of people like our
clients, people like the ACLU, organizations like the NYCLU,
and all other Americans. That was the point of FISA, to put
limits on the government's surveillance authority.
Finally, the interest of plaintiffs in the telecom
companies, the other group that Congress has allowed to sue
here, are not aligned. That's true because most telecoms have
little interest in protecting the privacy of their subscribers.
Challenging Section 215 is time-consuming and costly. Section
215 orders come from the same government that regulates them.
They are shielded from liability under 1861(e). And even if a
provider had an incentive to challenge orders, there are
practical reasons why they wouldn't do so. Marc Zwillinger,
the Yahoo attorney, sets out those reasons in testimony that we
cite on page 25 to our opposition to the government's motion to
dismiss.
Finally, as your Honor knows, no provider has yet
challenged a Section 215 order. So the idea that providers are
standing in the shoes of the ACLU and NYCLU is far-fetched.
Unless you have further questions about the statute, I
will turn it over to my colleague.
THE COURT: I don't at this point in time. You can
turn it over, and I want to let the government know that they
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will get equal time. You have already used 30 minutes, but
it's fine.
MR. JAFFER: I apologize.
MR. ABDO: Good morning, your Honor. Thank you for
the Court's indulgence.
The argument so far has focused on the extraordinary
breadth of the government's interpretation of the term
relevant. But beyond the statutory problems with the
government's theory are extraordinary constitutional ones.
Never before has the government attempted a program of dragnet
surveillance on Americans on this scale and the constitutional
questions that the program raises are therefore novel and
profound. They go to the very nature of the relationship
between the citizens of this country and their government, and
they provide an independent basis to invalidate the
government's collection of plaintiffs' call records.
Moreover, to the extent there is any doubt about
whether Section 215 authorizes the form of dragnet surveillance
in which the government is now engaging, the substantial and
serious constitutional questions that that dragnet surveillance
raises counsel in favor of plaintiffs' narrower interpretation.
I will begin with the Fourth Amendment, your Honor.
There are two questions I think that are relevant to our Fourth
Amendment claim. The first is whether the government's
collection or long-term collection of call records constitutes
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a search for Fourth Amendment purposes and the second is
whether that search is reasonable.
Long-term collection of call records constitutes a
search because it places in the government's hands an
extraordinary amount of information about Americans, including
the vast majority of whom are innocent Americans. It reveals
who you call and when, whether you call your doctor, the
domestic violence hotline, an abortion provider, an
ex-girlfriend, a suicide hotline, or a pastor. And it reveals
not just one of those details about every American, but every
one of those details. As Professor Felten summarizes in his
declaration, telephony metadata, particularly when collected in
the aggregate, can be a proxy for content.
THE COURT: Accepting the assertions of Professor
Felten that aggregated call data can reveal much more intimate
details of a person's life in just a person's call records
alone, would the search for Fourth Amendment purposes happen
when the government merely obtains the call records or when it
queries them?
MR. ABDO: I think it would happen at the moment of
the collection, your Honor. I think it's worth noting that the
premise of essentially all Fourth Amendment case law has been
that an individual's expectation of privacy is upset by
government action when the government obtains information in
which that individual has an expectation of privacy. This is
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in part because the Fourth Amendment creates a private sphere
that the government cannot penetrate without sufficient cause.
And it's in part because the Fourth Amendment reflects an
historic uneasiness with entrusting to the government vast
quantities of information about Americans without
individualized determinations of cause.
The implications of the government's argument to the
contrary I think are really without limits. It would allow the
government to wiretap and record every phone call in the
country, store those calls in a database for future searching
if and when a need arose. It would allow the government to
photocopy every piece of mail sent in this country and store
those photocopies in a database subject to future searching.
It would allow the government to demand the membership lists of
every organization, including the ACLU, including the New York
Civil Liberties Union, and including every American to store
for future searching.
So I think it's important to understand the
implications of the government's argument that collection
itself doesn't implicate the Fourth Amendment. I don't think
there are any cases that stand for that proposition. Moreover,
if there were, in fact, such a gaping exception to the Fourth
Amendment, you would have expected the government to have run
through that exception many years ago and not just in recent
time.
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One way, I suppose, of thinking about the question as
well is to ask whether ordinary Americans expect that strangers
would acquire this information and be assured by the promises
of those strangers that they wouldn't look at them. That's a
motive analysis the Supreme Court has often used. And I think
most Americans would be shocked if they learned that strangers
were acquiring this information, and they would not be at all
consoled by the assurances of those strangers that they weren't
looking at them. That's the expectation I think of most
Americans. And that's an expectation that the Congress
recognized when it enacted, for example, the Wiretap Act which
criminalizes unlawful surveillance. That act doesn't just
criminalize the government's unlawful use of information that
it has acquired through a wiretap, it criminalizes the
government's unlawful acquisition in the first instance.
Now, of course, future use of information can
aggregate an initial search, but the search for constitutional
purposes happens at the outset.
I would like to address one of the government's other
arguments when it comes to the question of whether collection
is a search. Because the government doesn't dispute Professor
Felten's claims regarding how revelatory aggregated call
records can be in the government' possession. They really
quibble with the legal underpinnings of our claim. And, of
course, their other primary claim is that the Supreme Court's
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decision in Smith v. Maryland decides this case or controls
this case, and that simply is not true.
Smith was a dramatically different case. It involved
a targeted use of a pen register against an individual
suspected criminal over the course of a matter of days, and it
did not involve a dragnet collection or bulk collection of call
records. It would have been, I think, a vastly different case
and people would have understood its significance differently
had the government, in targeting Michael Smith in that case,
assembled a database of all American's call records and merely
queried that database in pursuing Mr. Smith. I think everyone
would have understood the constitutional questions presented in
that case to have been different, and we certainly would have
hoped that the outcome would come out differently had the
Supreme Court understood the case to stand for that
proposition.
THE COURT: If Smith doesn't control, what rule is
this Court to apply?
MR. ABDO: I think the question the Court should
attempt to answer is the one that the Supreme Court set out in
Katz, which is whether plaintiffs have an expectation or a
reasonable expectation of privacy in the sum of their call
records in all of their associations? That's a question that
the Supreme Court itself recognized in United States v. Jones,
all nine justices recognized, presents a different question
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when it comes to bulk collection. Four of the justices writing
for the court would not have resolved that question because
they thought they could resolve the case on a narrower ground
of trespass theory. But five of the justices in Jones would
have resolved that question against the government, recognizing
that bulk collection implicates an expectation of privacy in a
significantly different way.
THE COURT: Can this Court rely on concurring opinions
in Jones to conclude that Smith doesn't control here?
MR. ABDO: I don't think the Court needs to or has to.
We are not contending that Jones controls this case. We are
simply contending that its analysis is relevant to the
expectation of a privacy analysis. I think the antecedent
question is whether Smith controls this case? And we don't
think that's true for the reasons I have said.
THE COURT: How do the factual differences from Smith
add up to a constitutional difference here?
MR. ABDO: I think that's right. The Supreme Court
recognized that basic proposition in United States v. Knotts,
which was a case in which the government used a beeper to track
the public movements of a car that was suspected of being
involved in drug trafficking. And the petitioner in that case
didn't so much quibble with the general proposition that
individuals generally have little expectation of privacy as
they travel in public, but the focus of his argument in the
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case was that accepting that rule in an individual case might
allow pervasive surveillance of Americans all the time. And
the Supreme Court was very careful to carve out that question
and it said, bulk collection for pervasive surveillance raises
a different question, and we will have time enough to address
that question if and when it arises.
It first arose, I think, in a way that could serve as
a model for this Court in the D.C. Circuit's decision in United
States v. Maynard, which is the appellate decision that came
before U.S. v. Jones. And the government argued very
forcifully in that case that Knotts controlled the outcome,
that using a GPS device to track an individual over the
long-term is no different than the beeper in Knotts, and that
therefore Knotts controlled the case. And the D.C. Circuit
rejected that argument. It said Knotts does not control this
case, in the same way we argue Smith does not control this
case, and they explained at length why they thought the
question was a different one and why the expectation of privacy
question comes out differently.
So I don't think the Court needs to rely on Jones as
binding, but of course I think it's persuasive precedent when
it comes to the question of what Americans' expectation of
privacy is in bulk collection of information.
THE COURT: You want to turn to your First Amendment?
MR. ABDO: I will be brief on the First Amendment. I
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just want to emphasize three points.
THE COURT: Actually before we leave Smith, at what
point is phone data collection no longer controlled by Smith?
MR. ABDO: I think that's a very difficult question
and one that this Court doesn't have to address. I will try to
address it in a moment, but I don't think the Court has to
address it, in part for the same reason that the D.C. Circuit
didn't feel the need to address it in Maynard and for the same
reason that the five concurring justices in Jones didn't think
it necessary to address. That no matter where the line is,
surely it is unreasonable the government's indefinite and
pervasive collection of Americans' call records.
In terms of taking your question on the merits and not
trying to dodge it, it's a difficult question. It would
require the Court to answer at what point Americans'
expectation of privacy is upset. I think for guidance, the
Court can look, for example, to some of the pen register
authorities that the government has relied upon, some of which
allow collection for 60 or 90 days, but those authorities are
also only available to the government when it makes an
individualized application to a court and obtains court
approval. So it might mean that there would be a gradient of
rules that would apply. For one or two days you wouldn't need
to go to a court, for 60 or 90 you would need to go to a court,
and for pervasive surveillance you would need to satisfy the
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strict requirements of the Fourth Amendment, warrants and
probable cause requirements. But again, I don't think this
Court needs to answer those questions. Surely, unreasonable is
pervasive surveillance.
To turn back to the First Amendment question, just to
highlight a few points. The protection of the First Amendment
is distinct from the protection of the Fourth Amendment, even
when it comes to government's investigatory tools. And I think
that's perhaps nowhere clearer than in the Second Circuit's
decision in Tabaa, where it separately analyzed the Fourth
Amendment question and the First Amendment question and made
clear that the First Amendment imposed a different burden.
We are not suggesting that every Fourth Amendment
search predicated on a warrant based upon probable cause needs
to survive the strictest of court review, because as a general
matter, most tailored Fourth Amendment searches will survive
First Amendment scrutiny as well. But it is particularly
important to apply the First Amendment when the government's
surveillance reaches as broad as it does in this case, and
indeed, when the government says that the Fourth Amendment
provides no independent protection whatsoever.
Because the First Amendment applies and is independent
of the Fourth Amendment, the Court really has two questions to
answer. First is whether the government's collection of call
records imposes a substantial burden on First Amendment rights.
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And it clearly does. The government has collected essentially
all of Americans' associational records. The case outstrips
even the Supreme Court's decisions in NAACP v. Alabama or
Shelton v. Tucker in which states have sought to acquire
invasive -THE COURT: Isn't this case different from the Alabama
case, in that you can't know if the government will ever
actually look at and analyze the ACLU's call records?
MR. ABDO: I don't think that distinction is a
meaningful one. Those cases stand for the proposition that
when the government collects associational information of that
scale and of that intrusiveness, the First Amendment is
violative because associational information has been handed
over to the government. But they also recognize that there is
a common sense way, in which allowing the government to acquire
that sort of associational information infringes individuals'
ability to associate with others; it chills context.
If you look, for example, at the Second Circuit's
decision in Local 1814, in which an interstate commission
sought to acquire payroll records for longshoremen in New York
and New Jersey, the court was aware that there were differences
between that case and NAACP v. Alabama. The commission wasn't
going after the longshoremen. It was in fact going after the
union itself. But the court recognized that the longshoremen
would have been chilled in a very obvious and common sense way.
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It didn't demand the kind of history that Alabama had to it.
THE COURT: Is there a substantial burden with no
evidence of actual chill?
MR. ABDO: Yes. I think Local 1814 stands for that
proposition. Chill is an inherently difficult fact to prove.
It generally requires proving a negative that someone didn't
contact us who may have contacted us. Of course, at the moment
they choose not to contact us, the evidentiary trail runs dry.
So for that reason, the Second Circuit has taken this common
sense approach.
It described Shelton v. Tucker, which is another
associational case, as standing for the general proposition
that when there is a common sense chill that would be worked
upon the organization complaining, courts shouldn't turn a
blind eye to that common sense.
I guess another way of thinking about it is this. If
the NSA had knocked on the doors of every American in this
country and demanded that they turn over a list of every call
they had made that day and for the previous five years, there
would be no question but that the First Amendment would be
implicated, no matter what the government's intended use for
that information, and no matter what limitations the government
had put in place for itself on the use of that information.
That case is, for all practical purposes, no different than
this one.
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If there are no other questions, I will sit down.
Thank you.
THE COURT: Thank you, Mr. Abdo.
Mr. Delery.
MR. DELERY: May it please the Court. Over the past
several months there has been significant public discussion
about a number of alleged surveillance activities. This case
concerns one specific program that the government has
officially acknowledged, the NSA's collection of bulk telephony
metadata pursuant to orders of the Foreign Intelligence
Surveillance Court, and under a provision of FISA that Congress
has twice extended, without change, after having been briefed
on this program.
The details of the program are important and haven't
much been discussed this morning, and I would like to start by
just highlighting a couple of those elements.
The records collected are business records of
telecommunications carriers that are prepared for other
business purposes, and may include information such as the
numbers placing and receiving calls, routing information, and
the time and duration of calls. But under this program, the
government does not collect the content of any conversation,
listen to any calls, or even collect the identifying
information about customers or parties to the calls.
In addition, the data may only be searched for
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counterterrorism purposes, and only then, and then only, if
there is reasonable articulable suspicion to believe that the
selection term or the number to be queried is associated with
specified foreign terrorist organizations. And as the briefs
lay out, the FISC has established other controls on the program
as well.
The public debate has focused on the wisdom of this
program, given its scope, and Congress is currently considering
various proposals to alter it. That's a discussion the
Executive Branch has said it is important to have. But the
merits question in this case is whether the program is lawful,
and the answer is yes. It's authorized by statute and it's
constitutional.
The Court, however, need not reach those questions
because the complaint doesn't properly establish plaintiffs'
standing and the Court lacks jurisdiction over the statutory
claim. And so for all of those reasons, the threshold
questions and the merits, the government urges the Court to
grant the motion to dismiss, and obviously to deny the
preliminary injunction which seeks to limit a national security
program that has been repeatedly approved by all three branches
of government.
So I would like to start, if I might, with the
question of standing. Plaintiffs' claims of harm in the
complaint are speculative, not the kinds of concrete,
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particularized, or certainly impending injury that the Supreme
Court has required. There are really two types of injury that
the complaint alleges, and obviously on preliminary injunction
these have to be proved and not just alleged.
The first is that the government has reviewed or might
review plaintiffs' telephony metadata, call detail records, to
identify people who associate with the plaintiffs. But under
the FISC's orders, the NSA may only review records responsive
to queries using identifiers that are believed, numbers
believed, based on reasonable articulable suspicion, to be
associated with a foreign terrorist organization. There is no
allegation, much less proof, that the government has reviewed
plaintiffs' metadata under this so-called RAS standard or
otherwise, much less created the kind of comprehensive profile
that plaintiffs reference.
The government has argued this expressly in their
briefs and there has been no response on either motion. And
the Supreme Court's decision in Amnesty International v.
Clapper teaches that the kind of speculative harm then that the
plaintiffs are claiming here would not be sufficient to allow
the Court to pass on that claim.
THE COURT: Isn't there a difference between this case
and the Amnesty case, in that there is no dispute here that the
ACLU's call records have been collected by the government?
MR. DELERY: That is true, your Honor, at least as to
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the 90 day period covered by the secondary order that has been
publicly acknowledged and reclassified. That order, coupled
with the plaintiffs' declarations, leads the government not to
challenge the question of collection as to that time period.
But while we are not saying that collection alone
could never lead to a concrete, actionable injury that might
provide standing, the plaintiffs' complaint and supporting
papers have not established such an injury here. The injuries
that they identify, the creation of a comprehensive profile, or
the second one, that persons who might be interested in talking
to the plaintiffs might be chilled from doing so, are
speculative. There is nothing to support that either of those
things has happened. Indeed, the declarations don't identify
anyone who has refrained from contacting the plaintiffs because
of the kinds of concerns that are identified here.
So cases like Clapper and the Laird case from the
Supreme Court suggest that therefore, at least on this record,
the plaintiffs have failed to establish standing.
THE COURT: In the context of the Fourth Amendment, if
the plaintiff can plausibly allege that its own Fourth
Amendment rights have been violated, isn't that an injury in
fact?
MR. DELERY: Your Honor, if you read the complaint to
have alleged that much, I think we would agree that the
plaintiffs have standing at least to argue that they have a
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Fourth Amendment interest that has been put in issue here.
However, there the inquiry quickly collapses into the merits,
and we will come back to that later. The government's
position, obviously, is that there is no Fourth Amendment
privacy interest that is implicated by collection of the
third-party business records that are at issue here as you were
just discussing. But, in any event, the Fourth Amendment is
not infringed unless and until the government or some person
actually looks at the data, and that's the teaching of the
Horton case and the VanLeeuwen case and others that we have
cited in the brief.
I would submit, your Honor, this also quickly then
collapses into the question of irreparable harm for the
purposes of the preliminary injunction. So even if you are
satisfied that there is a modicum of injury to clear the
Article III standing hurdle, we think that the level of injury
is clearly insufficient to support a preliminary injunction.
THE COURT: Is it possible that the ACLU has standing
to bring some of its claims but not others?
MR. DELERY: Yes, your Honor. I think that goes to
the second of the jurisdictional arguments that we have raised.
The statutory claim here is impliedly precluded by FISA's
detailed scheme for judicial review, which sets out who may
challenge 215 orders and where those challenges have to be
brought. And the answer is the organizations that are the
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recipients of the production orders and in the FISC, the FISA
court established by Congress to hear these and other foreign
intelligence matters.
The APA's waiver of sovereign immunity does not apply
when Congress specifies a particular forum for limited parties
for judicial review. And that's what the Supreme Court said in
the Block v. Community Nutrition Institute case. The APA
itself in Section 702 recognizes this issue of implied
preclusion. And here there are several elements of the statute
that establish that the FISA court process is the exclusive
mechanism for hearing challenges to applications under the
statute.
The first is 215 itself, which together with Section
1803, which establishes the FISA court, the statute provides
that recipients may challenge the production order with the
FISC's so-called review pool. That's in subsection (f). Then
either the recipient or the government can appeal to a court of
review and then ultimately seek certiorari in the Supreme Court
if necessary. But 215 does not allow challenges by third
parties who, as plaintiffs have acknowledged, should not know
about the existence of the orders. And this was a deliberate
choice by Congress reflected in the legislative history to
create a secret given the national security interests at stake
and expeditious process. And the legislative history
references are cited at page 6 of our motion to dismiss brief.
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There are several other relevant parts of the statute
as well. The first is that unlike some other provisions of
FISA, the statute does not provide for a suppression remedy or
an opportunity to challenge adequacy under the statute. And
the other FISA examples are in footnote 7 of our motion to
dismiss brief. 215 is not one of them. As your Honor pointed
out earlier, 1861(f)(2)(D) provides that an order issued
pursuant to this provision shall remain in full effect unless
it has been explicitly modified or set aside under the
procedure that's specified in the statute, which is quite a
strong statement by Congress, that a validly issued
procedurally regular order of the FISA court shall remain
valid, unless the appeal process, which could go up to the
Supreme Court, that is specified is followed.
The other statute was also discussed earlier, your
Honor, and that's 18 U.S.C. 2712, which provides for damages
actions for violations of three specific provisions of FISA,
again, not including Section 215, and does not provide for
injunctive relief.
THE COURT: 2712 has another phrase in it that the
government didn't focus on. It says "for any claims within the
purview of this section" before it lists the three FISA
provisions. Wouldn't violations of other sections of FISA be
outside the purview of Section 2712 given that qualifying
language.
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MR. DELERY: I think what 2712 establishes, your
Honor, again, together with the other provisions of FISA that
create suppression remedies for particular types of orders, is
that where Congress intended to allow third parties outside of
the recipients of a particular order to challenge the order in
one way or the another, it knew how to do it, and it did do it
in certain specific instances, but not with respect to Section
215.
THE COURT: What about the government's argument in
EPIC that a district court challenge is not a challenge to a
FISA order, but rather it's a challenge to executive action?
MR. DELERY: I think, your Honor, if you look at the
EPIC brief in totality, in addition to pointing out that as
opposed to bringing a case as an initial matter in the Supreme
Court it should be brought in district court in the first
instance, the brief made clear that we would be making the
preclusion argument that we are making here in district court
as well. It laid out that that was a reason to follow the
regular order because the same preclusion argument would apply
to an original action in the Supreme Court, and the brief
detailed why original or appellate jurisdiction in that context
didn't lie in the Supreme Court.
The last thing thing I would highlight on this
question, your Honor, is Congress actually considered and
rejected a proposal for district court challenges to 215 orders
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in 2006. That's the references on page 18 of our motion to
dismiss brief. Which is further confirmation that this was not
a question that Congress didn't think about at the time.
Section 215 and the related provisions of FISA reflect a
deliberate choice about where and by whom challenges to orders
under this provision could be brought. And under the Supreme
Court's decision in Block and others, that means that claims
like the ones that the plaintiffs have brought here is
precluded.
THE COURT: Did it mean to preclude suits altogether
or just presume that there wouldn't be any because everything
was confidential?
MR. DELERY: I think that if you look at the
legislative history, there was consideration to providing for
other types of challenges. Certainly, one of the reasons why
third parties should not be invited into this process was the
fact that given the national security interests at stake, it
was contemplated that the procedures would be in secret, and,
in fact, the statute requires that the filings and proceedings
be conducted pursuant to appropriate security arrangements.
But I think that the statutory language and the absence of a
215 remedy, as was provided with respect to other types of FISA
orders, suggests a stronger intent than just an assumption that
they would remain secret.
In fact, under the plaintiffs' theory, there wouldn't
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be any reason why other requirements other than relevance
couldn't be challenged in district court, including the
adequacy of particular minimization procedures or compliance
with Executive Order 12333, also elements of the overall
scheme. The government would submit that that kind of
intrusion into the workings of this type of national security
program is inconsistent with the framework and the statute that
Congress established.
I think if I could then turn to the statute itself,
your Honor, and the scope of Section 215.
The collection of bulk telephony metadata is relevant
within the meaning of Section 1861(b)(2)(A) because the key
investigative purpose of terrorism investigations is to find
connections between known and unknown terrorists, and unless
the NSA aggregates records created by different companies and
over time, the analytical tools that are available to NSA to
identify chains of communications and those connections would
not operate as effectively. And I would like to highlight
three main reasons why that conclusion is correct. The text
and structure of the statute, the nature of counterterrorism
investigations, and third, the ratification by Congress.
So, first, on the text and structure instructor of the
statute. Congress clearly intended a broad scope for 215. It
used the term "relevant," that under its ordinary definitions,
even plaintiffs recognize, has a broad meaning, appropriate to
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or bearing on the matter at hand. And not only has Congress
presumed to adopt ordinary background assumptions about
statutory terms that the legislative history suggests that it
did so here, and was intending to invoke broad investigatory
authority, the addition of the relevant requirement in 2006,
and I think it's clear from the legislative history, was not
meant to narrow or create a narrowing of the authority under
Section 215, contrary to plaintiffs' suggestions.
If you look at the legislative history that we cited
in the reply brief at page 12, footnote 15, I think that
statement is clear. In fact, the House report made clear that
the 2006 addition of relevance was intended to basically codify
the then existing understanding and practice, again, not to
narrow it further.
THE COURT: Does the insertion of the word "relevant"
then have any meaning?
MR. DELERY: It certainly does have meaning, your
Honor, and obviously it's the obligation of the courts, as the
FISC has done, to give it effect. But the legislative history
explains how it came to be, which was to clarify an existing
practice.
THE COURT: Are grand jury subpoenas an appropriate
place to look for the definition of relevance?
MR. DELERY: Certainly, the grand jury analogy has a
bearing on this question and legislative history refers to that
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to some extent. I don't think it's the end of the inquiry,
however, because of some of the other elements of the structure
of the statute and Congress's attempt that I will come to in a
moment. But even looking at grand jury practice itself, it's
long established that grand juries have broad and wide-ranging
investigative powers. They don't need to be focused at the
outset on an individual potential target.
THE COURT: But 17(c) is not really a relevance
requirement, is it? It's really a question of whether it's, in
the words of 17(c), unreasonable or oppressive?
MR. DELERY: And the Supreme Court has made that clear
in resisting attempts to impose on the government or the grand
jury at the outset a tight focus on a particular target of an
investigation. As the Supreme Court said in R. Enterprises, a
grand jury can be investigating to find out whether a crime has
even been committed at the earlier stage, even than focusing on
who might have done it, or even to satisfy itself that a crime
has not been committed. So it has quite a wide-ranging
authority.
I think if you take the term "relevant" and then focus
on where it comes in the sentence though, it's clear that
Congress has established a deferential standard, reasonable
grounds to believe that they are relevant to an authorized
investigation, which seems to contemplate an element of
judgment on the part of the government and national security
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professionals.
Again, Congress considered and rejected a proposal in
2006 to limit the scope of this provision to individuals who
are actually suspected of terrorist activity, and that was done
at the same time that the relevant standard was added to the
statute, which again suggests that the type of analysis that at
least in the briefs at times the plaintiffs seem to urge a much
narrower focus was something that Congress considered and
rejected.
The last thing I will say on the structure of the
statute is that it also built in protections recognizing the
broad scope of the material that could be collected under 215,
designed to ensure that the government gets all the information
it needs for national security investigations, but protects
U.S. person information. So in Section 1861(g)(2), which
requires minimization procedures, it reflects an understanding
that the government will get records from unconsenting U.S.
persons, and that the court would need to ensure that there
were protections built in for the handling of that information.
And that's, of course, what the FISC has done repeatedly here.
These terms in the statute and these phrases, we would
submit, need to be understood in light of the nature, purpose
and scope of counterterrorism investigations. The Supreme
Court in Oklahoma Press made clear that that's the question for
any kind of relevance inquiry, and it's certainly true here.
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These investigations are different from ordinary or what we
might think of as ordinary criminal investigations, which are
focused on a particular event in the past that you may be
trying to explore. These investigations are designed to
detect, disrupt, and prevent ongoing or even future terrorist
attacks, terrorist plots, so that they can prevent attacks
before they occur. The investigations are necessarily
predictive. They are prospective. They are looking for
patterns. They are far-reaching in terms of across time and
geographic scope. And the declaration submitted from an FBI
official, the Holley declaration, at paragraph 17 and 18,
describes these attributes.
A key focus here is that information or connections
that are important to the investigation may not be known at the
outset. That's why a historical retrospective analysis of a
data set that is compiled across time and across
telecommunications carriers is critical. The same type of
analysis could not practically be done with the kind of
targeted intelligence gathering focused on just the call
records of somebody who you already know or suspect to be
associated with terrorism. And the Supreme Court in the Keith
case highlighted this distinction between ordinary criminal
investigations and the broader requirements of intelligence
investigations.
Significantly, your Honor, the plaintiffs have not
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offered any theory of Section 215 or any relevant standard that
would make sense for the statutory purpose and the nature of
investigations that it was clearly designed to address. As I
indicated earlier, in fact, at least the position in their
briefs, which I think they may have walked away from some this
morning, that it should be enough to get the records of
somebody that you actually suspect of having a connection to
terrorism, was considered and rejected by Congress. So that is
not a reading that would comport with congressional intent.
And they haven't offered any other definition of relevance that
would be an appropriate fit for the scope of this statute.
THE COURT: The government appears to focus on
relevance to the authorized investigation by limiting it only
with respect to the application of investigative techniques.
Couldn't it just as easily mean relevant to the
subject matter of the investigation as opposed to investigative
techniques?
MR. DELERY: I do think it says relevant to an
authorized investigation, so that might have several
components. I think it's true that we have focused on the
relevance to this particular analytical tool that NSA uses.
THE COURT: The technique here is limitless, right?
MR. DELERY: I do think you're correct, your Honor,
that relevance often has a subject matter component and
analogies to other types of investigations, grand jury or even
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civil discovery, and in many ways it's closely related to the
idea of the technique. The point of the NSA's analysis is to,
as the declarations made clear, identify connections between
known and unknown terrorists, particularly those who might be
in the United States, ongoing plots. So I think whichever way
you look at it, the information is relevant and tied to the
purpose for which it is being collected.
I think, your Honor, it's significant then that the
restrictions that the FISC has imposed and the minimization
procedures are carefully calibrated to this purpose so that the
information can be used only for counterterrorism purposes. It
can only be queried where there is articulable suspicion that
the number you want to inquire about has a connection to
terrorism. And the government is expressly precluded from
using the data for other purposes, including many of the things
that the plaintiffs are concerned about.
THE COURT: If all of the call records are relevant,
why aren't they all turned over to the FBI?
MR. DELERY: There are a couple of answers to that,
and these are reflected in the declarations.
One is the sharing of information with the FBI has a
practical element and the NSA has the analytical capability to
identify the connections that would be useful investigative
needs for the FBI. As I think the Shea declaration makes
clear, NSA exercises its own analytical judgment, intelligence
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judgment, to identify which of the hits that might be returned
from a query are worth following up on which don't seem to be.
So there is a practical element to providing the FBI with
investigative leads that would be useful for the purpose for
which they would be provided.
Second, I think -- again, this is a reflection of the
minimization procedures. I think the government in its
application, you can see it in the recently released
application from 2006, the FISC in its orders has recognized
that the scope of this program raises certain concerns. And so
the FISC has been very careful to provide, as required by
statute, for restrictions on the use and dissemination of
information, particularly related to U.S. persons.
So that's why I say the program is carefully
calibrated to the purpose for which it is being used and isn't
the kind of indiscriminate use of the data that plaintiffs
suggest.
THE COURT: There seems to be a tension here. If it's
simply a practical consideration, namely, that it's the NSA
that has the analytical capacity to go through the metadata,
why the legal prohibition on providing all of it to the FBI?
MR. DELERY: I think it is, again, your Honor, a
combination of the practical aspect and -THE COURT: Why should the practical impinge on the
legal? Shouldn't be the FBI have access to all relevant
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material?
MR. DELERY: The FBI certainly is getting the benefit
of all of the relevant material. The analysis is being
conducted by the NSA. And this structure, which again reflects
the application that the government made in 2006 and the order
of the FISC, reflects a balance which should be relevant for,
to use a word, the statutory analysis and also for any
reasonableness inquiry under the Fourth Amendment.
I think significantly, your Honor, that brings me to
the third main point about the text of this statute, which is
that Congress has ratified this construction of Section 215 to
allow the collection of bulk telephony metadata by extending
the authority of Section 215 twice, in 2010 and 2011, without
change, after having been notified and provided information
about the bulk telephony metadata program. There were, as we
have detailed, many briefings of the intelligence committees
and the judiciary committees. In December of 2009, a
classified paper setting out the scope of the program under the
215 authority was provided to the intelligence committees of
both the House and Senate, and was made available to all
members, and that was before the 2010 extension of the sunset
date. And in 2011, similarly, an updated paper was provided to
the intelligence committee and made available at least on the
Senate side.
THE COURT: How can you argue that Congress ratified
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this understanding of Section 215 when, for example, in the
papers submitted I learned that the classified document
describing the program was not even made available to the House
of Representatives in 2011?
MR. DELERY: It was made available to the House of
Representatives to all members in 2010. In 2011, it was made
available only to certain committees, the intelligence
committee, not to all members. The intelligence committees of
both the House and Senate, I think it is long established,
serve a critical function in overseeing national security
affairs, and in particular the activities of the intelligence
community, and the purpose for structuring them the way they
are is so that they can stand in the shoes of the broader
membership and the public when dealing with individual programs
that deal with classified information. I think the test that
the Supreme Court has identified is that Congress ordinarily is
presumed aware of administrative and judicial interpretations
of a statute.
THE COURT: A veteran congressman, Congressman
Sensenbrenner, submitted an amicus brief in this case, didn't
he, in which he said he had no idea of what was happening?
MR. DELERY: It is certainly true that some members of
Congress have expressed sentiments like that, and he is one of
them. I think the record establishes that the intelligence and
judiciary committees of both houses were briefed, and again,
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there were materials made available on both sides, and
certainly at the time of the first reauthorization in 2010 made
available to all members of Congress that again made clear the
scope of the program.
THE COURT: Were the FISC opinions made available to
Congress?
MR. DELERY: I believe certainly some of the FISC
opinions, at least over time, has now been revealed in some of
the materials released.
THE COURT: That's since June 15, right?
MR. DELERY: They have been released publicly since
June 15. Some of the materials that have now been released
reflect the -- I want to say in 2009, although I am not
positive, we can get back to that -- provision of some of the
opinions, for example, on the compliance incidence, that those
were provided to the oversight committees at the time, not just
this year after the disclosures.
THE COURT: Even when you say in your brief, and as
you have said here, they were "made available," that's in one
location for a very limited period of time in 2010 and to only
one house of Congress in 2011, right?
MR. DELERY: Not quite, your Honor. I think in 2011,
it was made available to all senators. As I indicated before,
in 2010, the actual classified paper was kept in the secure
space on Capitol Hill, as classified documents would be kept in
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a particular location.
THE COURT: In a SCIF for a limited period of time.
MR. DELERY: But as I understand it, a letter went out
to all members on both sides, both the House and the Senate,
telling them that significant information about a program
relevant to the reauthorization was available here, and not
only making that available, but making members of the
intelligence committee staffs available to answer questions
that members might have about the program.
So I think in ratification cases, often there is no
real expectation that any member of Congress has focused on a
particular provision.
THE COURT: It's a presumption, right? And a
presumption can be overcome, right?
MR. DELERY: Certainly, ordinarily here.
THE COURT: If a presumption that Congress is aware of
the Court's interpretation of a statute can ever be overcome,
isn't this the case?
MR. DELERY: I would submit not, your Honor, because
here, regardless of the limits, given the need to handle the
document in a classified way, there was much more of a direct
effort to get information to the members.
THE COURT: The Executive Branch worked to do it, but
they didn't succeed, did they?
MR. DELERY: Your Honor, I am not saying that every
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member read these materials. I think what we can say is that
the members of the relevant committees on both sides were
briefed, and that the chairs of those committees drew the
attention of all members to this issue and the need to focus on
it.
The plaintiffs have identified a statement in one of
the briefs from Senator Wyden where he expresses many of the
concerns that are expressed here. And he did that in
connection with the debate on the reauthorization of 2011,
again, trying to emphasize what was at stake in the vote to
extend the authority. So, again, unlike often in ratification
cases with invariably obscure provisions, I think the record
establishes that this was focused on more than you would have
in the ordinary case.
If I could turn now to the Stored Communications Act
issue-THE COURT: Fine.
MR. DELERY: -- that the plaintiffs have raised.
I think the significant point is that 1861 (c)(2)(D),
part of Section 215, added in 2006, is a later enacted
provision than 18 U.S.C., Section 2703. And it authorizes
production under Section 215 of tangible things that could be
obtained by a grand jury subpoena or "with any other order
issued by a court of the United States directing the production
of records of tangible things." Section 2703(d), a subsection
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of the statute that plaintiffs have identified, allows the
production of call detail records by order in a criminal case.
So by structure of the statute, which was intended to provide
Section 215 authority for categories of documents that could be
obtained through other forms of legal process, Congress has
expressly authorized the collection of call detail records
under this provision.
So that is an express authorization that you don't
even need to reach the question of implied exceptions to the
list. As your Honor pointed out earlier, Section 215 also
allows the government to obtain any tangible things without
restriction. There is certainly nothing that I am aware of in
the legislative history that suggests that 2703 was a limit on
that broad authority. And as was discussed, the FISC
considered and rejected this argument in 2008, that having 2703
carve out a category of records that would otherwise be
available under 215 would be inconsistent with the statutory
structure. The point that I have just made about Section
(c)(2)(D) is referenced in Judge Walton's opinion in footnote 1
where he notes the connection between these two.
The plaintiffs have identified in their reply brief a
couple of other sources unrelated to 215 that they suggest are
inconsistent with this argument. I submit that neither of them
are. The first two examples again relate to implied exemptions
which is, given (c)(2)(D), not what the Court has to do here.
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And the third, which was an inspector general report, reflects
a debate within the Department of Justice about Stored
Communications Act before 2006 so before Section (c)(2)(D) was
added.
THE COURT: Do you agree that the plain language of
Section 2702(a)(3) would prohibit the government from
collecting the telephone data?
MR. DELERY: I think again, your Honor, you need to
read Section 2702 and 2703 -- 2702 is for voluntary production,
2703 has a provision for various forms of compelled
production -- in light of Section 215, and I think they are
different authorities. They are providing different
authorities to the government. 215 is the one that's relied on
here.
Just two other points about the scope of the statutory
argument that I would like to address. One goes to the
discussion about the usefulness of the program as a tool that
was raised here and also in the briefs. I think, first of all,
Section 215 doesn't require the program to be crucial or the
least restrictive means of obtaining information. The test is
relevant to an authorized investigation, which is clearly met
here. Second, I think that some of the discussion has confused
or melded two different types of usefulness that I think it's
useful to separate. One is the role of bulk collection for the
analytical tools that the NSA applies.
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So, therefore, both we and the FISC have said that the
NSA analysis would not be effective, at least on the scale that
it is, without the bulk history and the collection of cross
carriers. So the 2006 application, for example, that has been
released in the FOIA production says that NSA can effectively
conduct metadata analysis only if it has the data in bulk.
Judge Egan's opinion from August of this year includes a
similar term.
So the point is that the same level of historical
analysis, discovery of contacts, links between known and
unknown terrorists, can't practically be accomplished through
sequenced NSL's or some of the other ideas that have been
identified, although certainly, as I indicated at the
beginning, some other options are being debated in Congress
that seems like the place for those.
The second sense of usefulness is the contribution
that this telephony metadata program has made to
counterterrorism investigations. There, I think the discussion
of this subject is inconsistent. The program, as the
declarations identify here, has made important contributions
that assists the FBI, including as a complement to other
investigative tools. I don't think that there has been an
assertion that this should be examined in isolation. Again,
the key to thwarting future attacks is to identify before they
occur what plans are occurring and to identify connections
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between people that are identified in counterterrorism
investigations, and others with whom they might be working,
including here in the United States.
So it's in that respect that this tool has been
important, one of significant value as the Holley declaration
reads and Judge Egan's opinion expresses in similar terms.
So with that, unless there are more questions about
the statute, I will turn to -- one other point if I might,
which is that the suggestion has been made that this authority
is limitless. Respectfully, I think that is not the
government's position. This program is tailored and focused on
the distinctive features of telephony metadata, in that they
are highly standardized, they are structured, and that analysis
of large data sets allows for the drawing of the connections
that I have been talking about. Upholding the program here
doesn't sanction all bulk data collection. There wouldn't be,
obviously, any other type of collection unless the FISA court
is willing to grant it. But again, you need to look in any
other context to these same types of considerations -- the
nature of the records, the connection to an investigation, the
scope of the production sought -- and as we have said, other
types of bulk data, including medical records or library
records, would not have the same connections.
THE COURT: Should the Court credit statements of
Senators Udall, Wyden and Heinrich, who are members of the
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Senate Intelligence Committee in the Northern District of
California case, where they assert that they have seen no
evidence that this monitoring program has provided any uniquely
valuable intelligence?
MR. DELERY: I think, your Honor, respectfully, I
would start with the declarations that have been submitted in
this case, which do detail the role that the program plays and
some examples that could be discussed publicly about its
connection to particular investigations.
As to the uniqueness question, again, I think there is
a blending there of the two. Certainly, as the declarations
establish, we are not aware of another currently available
mechanism that would accomplish the contact chaining inquiry
and the analysis of connections in as timely or effective
manner as the one that's at issue in this program. Obviously,
to the extent that those senators have different views on that,
again, they are currently debating proposals that include
potential changes to the program, it seems like that's the
venue. But ordinarily, I think, in national security matters,
the Supreme Court has said courts should defer to the
professional judgment of the national security professionals,
here that would be reflected in the declarations that have been
submitted in this record.
With that then, your Honor, I will turn to the Fourth
Amendment. The government's position is that the Fourth
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Amendment challenge is foreclosed by Smith v. Maryland, which
held that there is no reasonable expectation of privacy in the
non-content information that's held by third parties. So the
metadata at issue here or the same type of information was at
issue in Smith, telephone numbers.
THE COURT: Doesn't the information collected here
reveal far more about a person than the information collected
on one suspect for a few days in Smith?
MR. DELERY: Potentially, the aggregation of the data
can be a powerful tool. That's the reason for the collection.
In fact, going back to the usefulness point that we were just
making, the Felten declaration confirms the value of the tool.
The reasons why Professor Felten identifies, you can use the
data to draw connections, learn information, for a different
purpose, but the same type of analysis that the NSA applies.
The key question is, who are you using it for? And here the
program is tailored to people who are suspected of having a
connection to terrorism and not for other purposes.
I think the other key distinction between Smith, and
Jones for that matter, is that there you're gathering
information about a known person, about an individual person,
and the metadata is associated with that person. In the
telephony metadata program, the business records that are
collected from the telecommunications carriers are not tied to
identifying information. Therefore, it's only later, after an
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appropriate query triggered by a suspicion of an association
with terrorism, that you could identify the information with an
individual. It's a key distinction. So in some ways the
relevant analogy is not the collection, but the querying here
to the framework that was at issue in Smith.
Smith's holding, though, it's true it was about an
individual and a couple of days, as opposed to the program that
has a broader scope as we have here, but its holding was about
the expectation of privacy that everyone has in a particular
type of data. And the court's clear conclusion was that there
is no reasonable expectation of privacy in this type of
metadata that is conveyed to third parties, the phone
companies. People assume that when they use the phone, the
phone company is recording the number dialed and how long the
call lasts and the like, and we know that because all of us get
the bills that detail the calls. That was the key insight of
the Supreme Court's decision in Smith. In fact, the dissent in
that case made many of the same arguments that are being made
here. Noted that from a pattern of calls, if the calls are
associated with an individual, you could learn information
about that person, and, nevertheless, the court held that there
is no reasonable expectation of privacy in that information.
Couple that holding with the Supreme Court's clear
statement in Rakas and other cases that the Fourth Amendment
right is personal, can't be asserted vicariously, then those
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holdings control the outcome of the Fourth Amendment question
in this case. Certainly, in United States v. Jones, as has
been identified, Justice Sotomayor in her conferring opinion,
and in Justice Alito's, but particularly Justice Sotomayor's,
suggested that this question, this so-called third party
doctrine, may at some point warrant reconsideration.
THE COURT: Is the expectation of privacy affected by
the Stored Communications Act's prohibitions on turning that
information over?
MR. DELERY: I don't think so. I think given Smith
and given the ways in which the information is used, and people
understand that this information is in the hands of a third
party, in the hands of a business, uses it for its own
purposes, billing and fraud detection, and, also, under the
Stored Communications Act, may be required to provide it to the
government for various purposes. And certainly Section 215,
like the Stored Communications Act, would be one of the
background authorities under which, when a provider says we are
going to handle the records consistent with applicable law and
authority, that would be one of them.
THE COURT: Haven't Justice Sotomayor and Justice
Alito and several others in Jones indicated that the third
party doctrine relied on in Smith may no longer be appropriate
in light of modern technology?
MR. DELERY: Certainly, your Honor, Justice Sotomayor
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and Justice Alito, but again, particularly Justice Sotomayor,
suggested that it may warrant reexamination, but she did not
identify what the answer would be to that question. So hasn't
provided any standard that could be applied in a case like this
in place of the very clear Smith standard.
In fact, that's a conclusion that the FISC has already
reached. Judge McLaughlin's most recent opinion addressed that
question. Last week, the Southern District of California in
the Roland case came to that conclusion, and the District of
Maryland last year in a case called Graham noted that the
Supreme Court had not yet resolved this question about the
effective aggregation and new technology on the third party
doctrine, and until then the established law needed to apply.
Given the Supreme Court's repeated admonitions that predictions
of an overruling of clear prior rulings should be avoided and
that all of us, the government and the court, should wait for
the Supreme Court's own resolution of those questions, leads to
the conclusion that Smith still controlled here on the question
of whether there is a search.
I should indicate that even before Jones, lower
courts, a number of cases cited in our briefs, had made clear
that call detail records, like the ones at issue here, don't
come with a reasonable expectation of privacy so collecting
them is not a search.
Obviously, as we have argued, to the extent that the
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Court turned to a reasonableness inquiry, we think that we
would still prevail. Any search, if one existed, would be
reasonable in light of the government's compelling interest in
the purpose of the statute, counterterrorism investigations.
The tailored intrusion, if there is any one, on the data of the
plaintiffs, again, given the restrictions on the querying and
the lack of any evidence that the plaintiffs' data has actually
been reviewed by any person is likely in any way, that's not in
the record.
Indeed, I will point out as to that, the plaintiffs
don't seem to challenge the RAS standard. In fact, again in
their briefs, to the extent that they suggest anything as an
alternative, it would be to seek the phone records only of
people who have an articulable suspicion of being associated
with terrorism. So to the extent that there is a querying of
data that would happen to turn up records of any individual
person, I don't read the plaintiffs to be challenging that as a
Fourth Amendment problem, even under the existing framework.
And as I indicated earlier, the framework was imposed
for a reason. It is designed to be carefully tailored. And
the safeguards, by limiting both the use and the retention and
the dissemination of the information outside of the NSA, and
then an oversight structure on top of that, are protective of
Fourth Amendment interests. Under a standard reasonableness
inquiry, this program would pass muster.
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THE COURT: Do you want to turn to the First
Amendment?
MR. DELERY: The First Amendment claim fails as a
matter of law because the plaintiffs haven't alleged or proved,
for purposes of the preliminary injunction, that the telephony
metadata program is directed at their expressive or
associational activities in any way. Good faith government
investigations, conducted consistent with the Fourth Amendment,
do not violate the First Amendment, as long as they are not
pursued with the purpose to deter or penalize protected
expression. And that distinguishes this situation directly
from the Tabaa case to which Mr. Jaffer referred.
In that case, the investigation was being pursued
because individuals had attended a particular conference in
Canada. It was based on expressive activities. Here, there is
no sense of that. The First Amendment claim is based on a
hypothesis that, as we have established, is wrong that
associational activities are actually being pursued, and there
is also no evidence of an actual chilling effect and any actual
person has declined to speak to the plaintiffs or otherwise has
changed their course of conduct.
THE COURT: How can it be though that the Fourth
Amendment is the only protection of interest started by the
First Amendment?
MR. DELERY: That is not the position of the
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government, your Honor. Although that was attributed to us,
that is not the case. The point is that where an investigation
is being conducted in good faith, consistent with the Fourth
Amendment, in order for there to be a First Amendment
violation, there needs to be some actual targeting of
expressive activity or a desire to deter or punish First
Amendment activity, and that's the element that is missing
here. So it's not that the First Amendment doesn't add
anything to the analysis. It's not applicable to this program
and certainly hasn't been proved on the record in this case.
THE COURT: Could a good faith investigation
substantially impair the freedom of association?
MR. DELERY: As a theoretical matter?
THE COURT: Yes.
MR. DELERY: That, as I understand it, there has been
some debate in the cases about whether it is possible at any
level. Certainly here I don't think that that is the case, and
we are not at a situation where that would be put into play.
And for that reason, I think this is very different from the
cases like NAACP v. Alabama or the Shelton case that the
plaintiffs have cited, all of which involve, again, the
obtaining of membership information, or in the case of the
Shelton case, a listing of one's associations, but attributed
to a particular organization or individual. Again, the tying
of information to an individual or a particular organization.
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Here, the metadata, as collected by the telephony
metadata program, is not tied to the identification of any
individual. And so there is no mechanism just from the
collection to identify which of all of the numbers in there, if
any, show connections between the plaintiffs and any of the
other people that they are concerned about. And so that's a
fundamental distinction from the types of cases that the
Supreme Court has recognized require exacting scrutiny.
We further submit that if that test did apply, given
the fact that this serves compelling governmental interests
that are unrelated to the expression of ideas and the careful
tailoring, the protections that are imposed on the identifying
ability to connect metadata to identifying information, this
program would satisfy that kind of First Amendment inquiry if
you got there. But given the threshold issues, we don't think
that would be appropriate.
Thank you.
THE COURT: Thank you very much, Mr. Delery.
A brief rebuttal, Mr. Jaffer.
MR. JAFFER: First, on the provision you raised
earlier, 1861(f)(2)(D), I just wanted to give you a fuller
response to your question, a few things that you should keep in
mind when you read that provision.
First, it appears in the section that it is entirely
about challenges by providers, and I think that it has to be
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read in that limited context.
Second, the point I made earlier, which is that we are
not seeking modification of the 215 order. We are challenging
the conduct of executive officials.
Third, the legislative history, as I mentioned
earlier, makes clear that that provision was meant to protect
the 215 order on appeal. That was the narrow purpose that that
provision was meant to serve.
Fourth, to the extent there is ambiguity in the
meaning of that provision, there is of course the background
rule from the APA that requires a court interpret the provision
in a way to preserve the right of judicial review rather than
to preclude it.
Fifth, if you want to see what a real preclusion
provision looks like, you can look at the Stored Communications
Act. Section 2708 says, "The remedies and sanctions described
in this chapter are the only judicial remedies and sanctions
for nonconstitutional violations of this chapter." I think
that is clear language. The language in (f)(2)(D) does not
read anything like that.
Then, finally, your Honor, if you do find that that
particular provision precludes our statutory claims, I just
want to remind you of what is probably obvious. It doesn't
preclude our constitutional claims. And if it were read to
preclude the constitutional claims, that in itself would raise
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difficult constitutional questions.
Finally, your Honor, the government says, I think
correctly, that we have not spelled out the precise contours of
Section 215. We can't do that. I think that's in part because
the application of the statute in any particular case will
depend on the context, it will depend on the factual context.
The point that I was trying to make earlier is just
that to accept the government's theory of the statute is to
accept that Congress used familiar language, the same language
that it has used in many other authorities, or similar language
to the language it has used in many other authorities, to
authorize collection on a truly massive scale, collection far
beyond what any court has previously sanctioned, and indeed,
far beyond what the government has ever previously proposed.
The Supreme Court has admonished many times that Congress
doesn't hide elephants in mouse holes. I think that is what
the government is proposing here. At the very least, your
Honor, this Court should require Congress to say that it wants
the government to collect all of this data, if it does indeed
want it.
Thank you.
THE COURT: Thank you, Mr. Jaffer.
Mr. Abdo.
MR. ABDO: Just quickly to address the government's
discussion of standing. I think it's quite clear that we have
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at least three separate injuries, and we have standing for each
one, but I don't really want to spend much more time discussing
our principal claim, which is that collection of plaintiffs'
call records is sufficient for purposes of both our statutory
claim and our constitutional claims. That much is clear at
least from the Second Circuit's decision in Amidax, which
upheld that if the plaintiff in that case could demonstrate
that their financial records had been transferred to the
government, that would have been sufficient to raise their
claims on the merits.
We separately are injured by the government's later
querying of the database. Every time they query it, they test
to see whether a call is within three hops of those of
suspected terrorists. I think there is no question but that
that would separately give us standing. But again, our
principal claim is that the government's collection alone is
sufficient.
I also want to briefly discuss the government's
discussion of necessity, which I think cuts across all three of
our claims. Our position is, I think, best articulated in the
declaration of Professor Felten, the supplemental declaration,
which makes clear that the government could accomplish the very
same type of analysis it is trying to accomplish through the
construction of this database without in fact constructing a
database. It could use orders directed at the telecoms to
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acquire the phone records of anyone within three hops of their
suspect. That's at paragraphs 6 to 8 of the supplemental
declaration.
With respect to your Honor's question about what
deference is owed either to the amicus brief filed in
California on behalf of the intelligence committee senators
versus the government's declarations in this case, it's of
course appropriate to consider the government's declarations,
but to also apply a sense of common sense. None of the
examples that the government has provided as supposed success
stories of this program even involve the sort of multi-hop
analysis that they claim the program is necessary for. Both of
the examples they relied upon employed only a simple one-hop
analysis, one that would be very easy for the government to
accomplish through targeted means. And even if they involved
more complicated investigations, Professor Felten lays out how
they could analyze multi-hop investigations using those same
target authorities.
A word on the government's First Amendment arguments
before just one final word on the Fourth Amendment.
I think it's misleading to say that our case doesn't
involve one directed at First Amendment activities. The very
purpose of the government's program is to collect plaintiffs'
associational information for the purpose of determining
whether we are in association with those that the government
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suspects of wrongdoing. It could not be more directly
addressed to information protected by the First Amendment.
But even if it weren't, all of the cases that we cite,
particularly in our reply brief, make clear that even indirect
burdens on the First Amendment require exacting scrutiny
analysis by the court. I am thinking particularly about the
Supreme Court's decision in Arizona Free Enterprise, but also
decisions of the Second Circuit in Local 1814 and the decision
of the D.C. Circuit in Clark v. Library of Congress.
Finally, just a general comment on the government's
Fourth Amendment position. I think it's worth stepping back
and appreciating the consequences of the government's position.
Under the government's interpretation of the Fourth Amendment,
it would be free to construct databases housing all manner of
extraordinarily sensitive information about even innocent
Americans, information in which they have not only an
expectation of privacy, but that would reveal extraordinarily
sensitive details about their personal lives.
The government's position is not just that that
information is not protected by the Fourth Amendment, but that
the government's collection doesn't even raise a controversy
within the meaning of Article III of the Constitution. I think
it's worth pausing before accepting that principle because the
end result of it will be extraordinarily sensitive databases
that ordinary Americans will have no recourse for unless they
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can prove in a rare case that the government has specifically
targeted them.
THE COURT: Mr. Delery, do you wish to be heard?
MR. DELERY: Yes, just briefly to respond to a couple
of points.
I think on the question of (f)(2)(D) and the provision
that says the order shall remain in full effect, I think there
is no question that the order that the plaintiffs are
requesting would affect the scope of the currently existing
orders of the FISC. Obviously, those orders allow for certain
collection pursuant to the terms of the primary order, the most
recent one of which was attached to Judge McLaughlin's opinion,
and the relief that the plaintiffs seek would carve out
exceptions to that, and so I do think necessarily would reflect
a modification of the authority, and certainly the insight of
this provision (f)(2)(D) was to avoid exactly that kind of
result.
Certainly, I think when we are talking about
preliminary injunctive relief, where obviously there is no
right to an injunction in this context, the fact that they are
asking for an injunction that would at the very least modify,
if not otherwise interfere with an ongoing order of an Article
III court that has been issued pursuant to the framework that
Congress allowed, all of those factors counsel strongly, and I
would argue dispositively, against the issuance of a
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preliminary injunction here.
On the question of ratification, which obviously
relates to the repeated argument about the scope of Section 215
as interpreted by the FISC and the government, Judge Egan's
opinion in August from the FISC actually addressed this
question and noted that given that information was provided to
Congress on a number of occasions, that was sufficient to meet
the Supreme Court's test for ratification.
And similarly, in our opposition to the preliminary
injunction motion on page 22, we address some of the individual
statements by legislators that your Honor highlighted, and
noted the cases there that counsel I guess is relying on those
as opposed to the actual congressional votes, in terms of the
scope of congressional action, and that's certainly relevant
not only for the ratification point, but also for how you
interpret the statute as a whole when you put it together in
the context of the type of investigations that are here.
In terms of the scope of the Fourth Amendment
argument, I think it's important to note that the holding of
Smith was about non-content information. It was not about
collecting the types of information that the plaintiffs
sometimes reference, including information about content or
associations of individuals. Certainly, that's a different
type of information of a different order. It wasn't at issue
in Smith and it is not at issue here. And the type of records,
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the phone numbers and related information, that are at issue in
this program are exactly the types of records that the Supreme
Court in Smith said individuals have no reasonable expectation
over.
As to standing, there was a reference to the Amidax
decision from the Second Circuit. The sentence that was
referenced comes in a discussion of whether the plaintiffs had
to prove the collection of an entire database or just
collection of their information in order to establish standing,
and it was not directed at the point that we are now debating
in this case. And I think for the reasons that I have said
earlier, the plaintiffs have not identified any concrete harm
that flows from your collection. Even if you think that the
mere collection provides enough injury to qualify for Article
III standing, when evaluated for purposes, for example, of the
preliminary injunction against the important interest in
national security and the harm that would come from disrupting
a valuable program for national security efforts, that type of
injury doesn't provide enough of a basis to justify the
injunctive relief that they ask.
So for purposes of the bottom line here, the motion to
dismiss I think can be disposed of. Statutory claims under
preclusion grounds, I think when you take together all of the
statutory references, it's clear that statutory claims are
appropriately presented in the FISC structure and not
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elsewhere. And on both of the constitutional claims, binding
Supreme Court precedent at the topline legal level resolves the
threshold legal questions on the expectation of privacy and on
the need to show some actual effect on associational interest.
Those cases are enough to dispose of the claims in the case,
and we therefore submit that the motion to dismiss should be
granted.
On the preliminary injunction, obviously the same
legal issues apply. And, certainly, where we are talking about
an ongoing program that has been approved by the Article III
court established to hear that repeatedly, 35 occasions by 15
different judges, and where we submit has been briefed to
Congress, and where Congress has extended the authority with
information about how it is being used, the ordinary analysis
that the Court would ordinarily apply in evaluating a
preliminary injunction counsel is strongly against doing so
here. To the extent that the program should be modified, the
appropriate forum for that is the current debate ongoing in
Congress. This Court should, respectfully, leave this
important national security program on its firm footing as
approved by the FISC.
THE COURT: Thank you, Mr. Delery.
Counsel, I want to thank all of you for your
arguments. This has been a wide-ranging discussion. I have an
a lot to think about. Decision reserved.
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Have a good weekend.
(Adjourned)

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