Klayman v. Obama

957 F.Supp.2d 1

Klayman et al., Plaintiffs,

v.Obama et al., Defendants.

Klayman et al., Plaintiff,

v.Obama et al., Defendants.

Civil Action No. 13–0851 (RJL)

United States District Court, District of Columbia.

Filed December 16, 2013

Validity Called into Doubt

50 U.S.C.A. § 1861

Larry E. Klayman, Law Office of Larry Klayman, Washington, DC, for Plaintiffs/pro se.

James J. Gilligan, Rodney Patton, U.S. Department of Justice, Brian M. Boynton, Randolph D. Moss, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

[Dkt. # 13 (No. 13–0851), # 10 (No. 13–0881) ]

RICHARD J. LEON, United States District Judge

On June 6, 2013, plaintiffs brought the first of two related lawsuits challenging the constitutionality and statutory authorization of certain intelligence-gathering practices by the United States government relating to the wholesale collection of the phone record metadata of all U.S. citizens. ¹ These related cases are two of several lawsuits ² arising from public revelations over the past six months that the federal government, through the National Security Agency (“NSA”), and with the participation of certain telecommunications and internet companies, has conducted surveillance and intelligence-gathering programs that collect certain data about the telephone and internet activity of American citizens within the United States. Plaintiffs—five individuals in total between No. 13–851 (“ Klayman I ”) and No. 13–881 (“ Klayman II ”)— bring these suits as U.S. citizens who are subscribers or users of certain telecommunications and internet firms. See Second Am. Compl. ( Klayman I ) [Dkt. # 37] ¶ 1; Am. Compl. ( Klayman II ) [Dkt. # 30] ¶ l.³ They bring suit against both federal government defendants (several federal agencies and individual executive officials) and private defendants (telecommunications and internet firms and their executive officers), alleging statutory and constitutional violations. See generally Second Am. Compl. ( Klayman I ); Am. Compl. ( Klayman II ).

Before the Court are plaintiffs' two Motions for Preliminary Injunction [Dkt. # 13 ( Klayman I ), # 10 ( Klayman II ) ], one in each case. As relief, plaintiffs seek an injunction “that, during the pendency of this suit, (i) bars [d]efendants from collecting [p]laintiffs' call records under the mass call surveillance program; (ii) requires [d]efendants to destroy all of [p]laintiffs' call records already collected under the program; and (iii) prohibits [d]efendants from querying metadata obtained through the program using any phone number or other identifier associated with [p]laintiffs ... and such other relief as may be found just and proper.” Pls.' Mot. for Prelim. Inj. ( Klayman I ) [Dkt. # 13]; Pls.' Mot. for Prelim. Inj. ( Klayman II ) [Dkt. # 10]; see also Pls.' Mem. P. & A. in Supp. of Mot. for Prelim. Inj. ( Klayman I ) (“Pls.' Mem.”) [Dkt. # 13–1], at 30–31.⁴ In light of how plaintiffs have crafted their requested relief, the Court construes the motions as requesting a preliminary injunction (1) only as against the federal government defendants, and (2) only with regard to the government's bulk collection and querying of phone record metadata. Further, between the two cases, plaintiffs have alleged with sufficient particularity that only two of the five named plaintiffs, Larry Klayman and Charles Strange, are telephone service subscribers.⁵ Accordingly, for purposes of resolving these two motions, the Court's discussion of relevant facts, statutory background, and legal issues will be circumscribed to those defendants (hereinafter “the Government”), those two plaintiffs (hereinafter “plaintiffs”), and those claims.⁶

For the reasons discussed below, the Court first finds that it lacks jurisdiction to hear plaintiffs' Administrative Procedure Act (“APA”) claim that the Government has exceeded its statutory authority under the Foreign Intelligence Surveillance Act (“FISA”). Next, the Court finds that it does, however, have the authority to evaluate plaintiffs' constitutional challenges to the NSA's conduct, notwithstanding the fact that it was done pursuant to orders issued by the Foreign Intelligence Surveillance Court (“FISC”). And after careful consideration of the parties' pleadings and supplemental pleadings, the representations made on the record at the November 18, 2013 hearing regarding these two motions, and the applicable law, the Court concludes that plaintiffs have standing to challenge the constitutionality of the Government's bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief.⁷ Accordingly, the Court will GRANT, in part, the Motion for Preliminary Injunction in Klayman I (with respect to Larry Klayman and Charles Strange only), and DENY the Motion for Preliminary Injunction in Klayman II. However, in view of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will STAY my order pending appeal.

BACKGROUND

On June 5, 2013, the British newspaper The Guardian reported the first of several “leaks” of classified material from Edward Snowden, a former NSA contract employee, which have revealed—and continue to reveal—multiple U.S. government intelligence collection and surveillance programs. See Glenn Greenwald, NSA collecting phone records of millions of Verizon customers daily, Guardian (London), June 5, 2013.⁸ That initial media report disclosed a FISC order dated April 25, 2013, compelling Verizon Business Network Services to produce to the NSA on “an ongoing daily basis ... all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” Secondary Order, In re Application of the [FBI] for an Order Requiring the Production of Tangible Things from Verizon Business Network Services, Inc. on Behalf of MCI Communication Services, Inc. d/b/a Verizon Business Services, No. BR 13–80 at 2 (FISC Apr. 25, 2013) (attached as Ex. F to Gilligan Decl.) [Dkt. # 25–7] (“Apr. 25, 2013 Secondary Order”). According to the news article, this order “show[ed] ... that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk—regardless of whether they are suspected of any wrongdoing.” Greenwald, supra. In response to this disclosure, the Government confirmed the authenticity of the April 25, 2013 FISC Order, and, in this litigation and in certain public statements, acknowledged the existence of a “program” under which “the FBI obtains orders from the FISC pursuant to Section 215 [of the USA PATRIOT Act] directing certain telecommunications service providers to produce to the NSA on a daily basis electronic copies of ‘call detail records.’ ” Govt.'s Opp'n at 8. ⁹Follow-on media reports revealed other Government surveillance programs, including the Government's collection of internet data pursuant to a program called “PRISM.” See Glenn Greenwald & Ewen MacAskill, NSA Prism program taps in to user data of Apple, Google and others, GUARDIAN (London), June 6, 2013.¹⁰

Soon after the first public revelations in the news media, plaintiffs filed their complaints in these two cases on June 6, 2013 ( Klayman I ) and June 12, 2013 ( Klayman II ), alleging that the Government, with the participation of private companies, is conducting “a secret and illegal government scheme to intercept and analyze vast quantities of domestic telephonic communications,” Second Am. Compl. ¶ 2 ( Klayman I ), and “of communications from the Internet and electronic service providers,” Am. Compl. ¶ 2 ( Klayman II ). Plaintiffs in Klayman I—attorney Larry Klayman, founder of Freedom Watch, a public interest organization, and Charles Strange, the father of Michael Strange, a cryptologist technician for the NSA and support personnel for Navy SEAL Team VI who was killed in Afghanistan when his helicopter was shot down in 2011—assert that they are subscribers of Verizon Wireless and bring suit against the NSA, the Department of Justice (“DOJ”), and several executive officials (President Barack H. Obama, Attorney General Eric H. Holder, Jr., General Keith B. Alexander, Director of the NSA, and U.S. District Judge Roger Vinson), as well as Verizon Communications and its chief executive officer. Second Am. Compl. ¶¶ 9–19; Klayman Aff. ¶ 3; Strange Aff. ¶ 2. And plaintiffs in Klayman II—Mr. Klayman and Mr. Strange again, along with two private investigators, Michael Ferrari and Matthew Garrison—bring suit against the same Government defendants, as well as Facebook, Yahoo!, Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT & T, and Apple, asserting that plaintiffs are “subscribers, users, customers, and otherwise avail themselves to” these named internet and/or telephone service provider companies. Am. Compl. ¶¶ 1, 11–14; Klayman Aff. ¶ 3; Klayman Suppl. Aff. ¶ 3; Strange Aff. ¶ 3.¹¹ Specifically, plaintiffs allege that the Government has violated their individual rights under the First, Fourth, and Fifth Amendments of the Constitution and has violated the Administrative Procedure Act (“APA”) by exceeding its statutory authority under FISA.¹² Second Am. Compl. ¶¶ 1–8, 49–99.

I. Statutory BackgroundA. FISA and Section 215 of the USA PATRIOT Act (50 U.S.C. § 1861)

In 1978, Congress enacted the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801 et seq. (“FISA”), “to authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes.” Clapper v. Amnesty Int'l USA, ––– U.S. ––––, 133 S.Ct. 1138, 1143, 185 L.Ed.2d 264 (2013). Against the backdrop of findings by the Senate Select Committee to Study Government Operations...