After the FISC reauthorized the NSA’s bulk telephony metadata program until the November 29, 2015 deadline that the USA Freedom Act set for its end, Judge Richard Leon of the federal District Court for the District of Columbia held, on November 9, that the program very likely violated the Fourth Amendment. Further finding that the plaintiffs would suffer irreparable harm from the continued operation of the Program and that the public interest and potential injury to other interested parties weighed in the plaintiffs’ favors, the judge enjoined the collection of any telephony metadata associated with plaintiffs J.J. Little’s and J.J. Little & Associates’ Verizon Business Network Services accounts. The government was also ordered to segregate any such metadata that it had already collected. On the ground that “it has been almost two years since I first found that the NSA’s Bulk Telephony Metadata Program likely violates the Constitution and … the loss of constitutional freedoms for even one day is a significant harm,” Judge Leon refused to stay his injunction pending appeal. At 43.
On December 16, 2013, Judge Leon had found that the NSA’s bulk telephony metadata program (the “Program”) very likely violated the Fourth Amendment and granted plaintiffs Larry Klayman and Charles Strange a preliminary injunction. Klayman v. Obama, 957 F.Supp.2d 1. Although he stayed his order pending appeal, the Court of Appeals for the District of Columbia did not issue an opinion until August 28, 2015. Congress had enacted the USA Freedom Act, however, on June 2, 2015, and the FISC had reauthorized the Program on June 29 until August 28 (Primary Order, BR 15-75) and on August 27 until November 29, the end of the 180 day period that the Act had set for its prohibition of the Program to go into effect (Primary Order, BR 15-99). The FISC’s reauthorizations meant that despite the enactment of the USA Freedom Act, the substantive issue before the Court of Appeals remained whether Judge Leon had correctly enjoined the Program on the ground that it likely violated the Fourth Amendment. Instead of reaching this issue, however, the D.C. Circuit held that the plaintiffs lacked standing because they were Verizon Wireless customers, when Verizon Business Network Services (“VBNS”) was the only provider whom the government had acknowledged as a participant in the Program. Obama v. Klayman, 800 F.3d 559.
The Court of Appeals remanded the case for Judge Leon to determine whether it would be appropriate to grant the plaintiffs limited discovery in order to attempt to satisfy the standing requirements of Clapper v. Amnesty International USA, 133 S.Ct. 1138 (2013). On September 16, 2015, however, the plaintiffs filed a Fourth Amended Complaint that added VBNS subscribers J.J. Little and his law firm, J.J. Little & Associates, P.C., as plaintiffs. Due to his finding that the Little plaintiffs were substantially likely to have standing, Judge Leon granted an injunction without ordering additional discovery.
Judge Leon’s Reasoning
In addition to adding the Little plaintiffs, the Fourth Amended Complaint appended a declassified letter from the Department of Justice to FISC Judge John D. Bates regarding a “Compliance Incident Involving In re Application of the [FBI] for an Order Requiring the Production of Tangible Things from … Cellco Partnership d/b/a Verizon Wireless.” (For discussion of the letter, see the August 12 entry in Adina Schwartz and Aidan Booth, “International chronicle of surveillance events – 2015”). Despite agreeing with the plaintiffs that the letter made it “plausible, if not logical” to suspect that Verizon Wireless had participated in the NSA’s bulk telephony metadata program, Judge Leon held that the letter did not establish the requisite certainty that the NSA had collected Verizon Wireless customers’ metadata. At 19. Accordingly, Verizon Wireless customers Larry Klayman and Charles Strange lacked standing to seek a preliminary injunction.
By contrast, Judge Leon ruled that the Little plaintiffs had standing because they had been VBNS customers during the three month period in 2013 when an order leaked by Snowden showed that the NSA had indiscriminately collected customers’ telephony metadata from VBNS. Relying on the reasoning in his December 2013 opinion, Judge Leon rejected the government’s contention that the Little plaintiffs lacked standing because there was no proof that the NSA had ever accessed their records through queries. “[E]very single time the NSA runs a query to, for example, ‘detect foreign identifiers associated with a foreign terrorist organization calling into the U.S.,’ it must ‘…compar[e] the foreign target number against all of the stored call records to determine which U.S. phones, if any, have interacted with the target number.’” At 21 (citing Klayman v. Obama, 957 F. Supp. 2d 1, 28). The government had also argued that because there was no proof of VBNS participation in the Program after the period covered in the document leaked by Snowden, the Little plaintiffs lacked standing to challenge the future collection of their metadata. Judge Leon’s response was that he would not “abandon all common sense.” “[N]othing in our Circuit Court’s opinion precludes me from inferring, based on the NSA’s past collection of VBNS subscriber data, that it continues to collect bulk telephony metadata from that same provider, pursuant to the same statutory authorization, to combat the same potential threats to our national security.” At 23.
The Likely Violation of the Fourth Amendment
After Judge Leon’s December 2013 opinion issued, President Obama amended the Program by restricting queries to two hops and requiring FISC findings of reasonable articulable suspicion that selection terms were associated with foreign terrorist organizations approved for targeting. Despite these changes and the imminent end that the USA Freedom Act imposed on bulk collection, Judge Leon adhered to the reasoning in his December 2013 opinion. Holding that the developments did nothing to alter his analysis of why the Program constituted a Fourth Amendment search, the judge stated that, “The fact remains that the indiscriminate daily bulk collection, long-term retention, and analysis of telephony metadata almost certainly violates a person’s reasonable expectation of privacy.” At 26.
Further, Judge Leon tracked his December 2013 opinion’s analysis of why the NSA’s warrantless suspicionless searches of metadata did not satisfy the Fourth Amendment requirement that searches be reasonable. Here, he adverted to the plaintiffs’ substantial privacy interests as a factor weighing against the government’s contention that the Program fell under the Fourth Amendment’s “special needs” exception and was therefore reasonable. Notwithstanding the USA Freedom Act’s limitation of the Program’s duration, Judge Leon also found that the intrusiveness of the government’s conduct weighed against satisfying the special needs exception. “[T]hough the weeks remaining in the Program may seem relatively short given that the previous timeframe was indefinite, this reduced period still significantly dwarfs the duration of the intrusion in all ‘special needs’ cases of which this Court is aware.” At 33. With regard to the intrusiveness factor, Judge Leon proclaimed, more generally, that “despite changes to the Program, the Government is still … asking this Court to sanction a dragnet of unparalleled proportions.” At 34.
By contrast to his findings in regard to the plaintiffs’ privacy interests and the government’s intrusiveness, Judge Leon granted that the government had identified the special need of “quickly identifying and investigating potential terror threats.” At 37. As in his December 2013 opinion, however, he found no evidence that the Program met this need. To the government’s contention that he was required to defer to Congress’ determination, in enacting the USA Freedom Act, that the Program was efficacious, Judge Leon responded, “Please!” At 36. Although the responsibility for choosing among reasonable law enforcement alternatives belongs to politically accountable officials, “I still must determine whether the Program is reasonably effective in accomplishing its goals, even if not optimally so. … This is a conclusion I simply cannot reach given the continuing lack of evidence that the Program has ever actually been successful as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.” At 36-37.
The other requirements for a preliminary injunction
On the basis of his Fourth Amendment analysis, Judge Leon found that the other requirements for a preliminary injunction were met. Since “the loss of constitutional freedoms, ‘for even minimal periods of time, unquestionably constitutes irreparable injury,’” the plaintiffs would be irreparably injured if he allowed the Program to continue until the November 29 deadline that the USA Freedom Act set for its end. At 37 (citations omitted).
In addition, Judge Leon relied on the likely unconstitutionality of the Program to find that the public interest and potential injury to other plaintiffs favored an injunction. Here, he claimed to be emphasizing “the obvious: ‘enforcement of an unconstitutional law is always contrary to the public interest.’” At 38. To the contrary, the government had contended that he was obligated “to defer to Congress’ ‘determination’ that continuing the Program during the 180-day transition period [ending on November 29, 2015] is the best way to protect the public interest.” At 39. Disdainfully, Judge Leon countered that instead of explicitly authorizing the Program’s continuation, Congress had drafted the USA Freedom Act so as to allow “the Government to confidentially seek FISC authorization to continue the Program for the 180-day transition period.” Id. Further, the judge insisted that even if Congress had determined that continuing the Program was in the public interest, his own determination that the Program was unconstitutional would overrule the Congressional determination. “Congress, of course, is not permitted to prioritize any policy goal over the Constitution. Nor am I!” At 40 (citations omitted).
The significance of the Program’s imminent end
Judge Leon concluded by reiterating that his decision was needed despite the Program’s imminent end. “[T]his case is perhaps the last chapter in the Judiciary’s evaluation of this particular Program’s compatibility with the Constitution. It will not, however, be the last chapter in the ongoing struggle to balance privacy rights and national security interests under our Constitution in an age of evolving technological wizardry.” At 42. But see Steve Vladeck, “Judge Leon’s Poignant, Yet Pointless, Injunction in Klayman,” Just Security, Nov. 10. 2015.