Judge Leon’s decision of December 16, 2013 granting the plaintiffs’ request for a preliminary injunction
Klayman v. Obama, Civil Action No. 13-0851 (RJL), 957 F.Supp.2d 1 (D.D.C. 2013) (granting preliminary injunction)The Klayman I lawsuit, No. 13-851, was filed in the federal district court for the District of Columbia on June 6, 2013 by conservative legal activist Larry Klayman on behalf of himself and plaintiffs Charles and Mary Ann Strange. In addition to the Klayman I challenge to the telephony metadata program, District Judge Richard Leon’s opinion considered the Klayman II, No. 13-881, challenge that Klayman filed on June 12, 2013 against both the telephony metadata program and Internet surveillance on behalf of himself, the Stranges, and two other individuals.
By contrast to his negative rulings in regard to the Klayman II claims about Internet surveillance, Judge Leon held that the telephony metadata program very likely violated the Fourth Amendment. He granted a preliminary injunction, but limited the relief to specific plaintiffs because Klayman had failed to file for class certification, despite having sought four extensions of time. The relief extended to Klayman and plaintiff Charles Strange, but not to plaintiff Mary Ann Strange or any of the other plaintiffs in Klayman II, because only Klayman and Charles Strange had alleged that they were subscribers of a telephone service. The government was enjoined “from collecting, as part of the NSA’s Bulk Telephony Metadata Program, any telephony metadata associated with [Klayman and Charles Strange’s] personal Verizon accounts,” and also required “to destroy any such metadata in its possession that was collected through the bulk collection program.” “[I]n light of the significant national security interests at stake … and the novelty of the constitutional issues,” however, Judge Leon stayed his order pending appeal. 957 F.Supp.2d at 43 (footnotes omitted). (Judge Leon’s Klayman II rulings on Internet surveillance are discussed in our post, “Clapper v. Amnesty Internat’l USA, and the possibility of civil challenges to warrantless surveillance under FISA Sec. 702.”)
Before reaching the merits of the plaintiffs’ Fourth Amendment claim, Judge Leon ruled that the Administrative Procedure Act (APA)’s waiver of statutory immunity did not extent to the plaintiffs’ statutory claim that the telephony metadata program was not authorized by Section 215 of the Patriot Act. By contrast, he held that he had jurisdiction to consider their Constitutional claims. “Where, as here, core individual constitutional rights are implicated by Government action, Congress should not be able to cut off a citizen’s right to judicial review … simply because it intended for the conduct to remain secret by operation of the design of its statutory scheme.” 957 F.Supp.2d at 25. Justice Leon also held that the plaintiffs individually had standing to challenge both the NSA’s collection and querying of telephony metadata. Here, he reasoned that the government could not consistently demand proof that the NSA had collected metadata from plaintiffs’ carrier, Verizon Wireless, and yet insist that the effectiveness of the metadata program depended on its comprehensive assemblage of records of calls made or received in the United States. (Subsequent to Judge Leon’s decision, The Washington Post reported that although the NSA had collected metadata on virtually all calls made or received in the United States in 2006, it was currently collecting metadata on less than 30% of the calls. The New York Times subsequently suggested, however, that this estimate was unduly low. See N.S.A. Used Phone Records Program to Seek Iran Operatives,” NY Times, Aug. 12, 2015
Further, the judge reasoned that the program’s alleged aim of uncovering foreign terrorists’ contacts could be achieved only if “everyone’s metadata” was analyzed in the course of database queries. “[W]henever the Government runs a query using as the ‘seed’ a phone number or identifier associated with a phone for which the NSA has not collected metadata (e.g., phones operating through foreign phone companies) … [it] must necessarily … 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.” 957 F.Supp.2d at 28 (footnote omitted).
By contrast to every other court thus far, Judge Leon went on to deny that the Supreme Court’s 1979 decision in Smith v. Maryland was controlling on the issue of whether the NSA’s bulk collection and querying of telephony metadata constituted a Fourth Amendment search. Here, he reasoned that the five concurring justices in United States v. Jones had not called for the Supreme Court’s 1983 decision in United v. Knotts to be overruled. Instead, they had “emphasized the many significant ways in which the short-range, short-term tracking device used in Knotts differed from the constant month-long surveillance achieved with the GPS device attached to Jones’s car.” Id. at 31. By analogy, Judge Leon distinguished Smith v. Maryland away on the ground that “[i]n Smith, the Court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the NSA now receives as part of its Bulk Telephony Metadata Program.” Id. at 33. “[T]he almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979.” Id.
Although he stated that his Fourth Amendment ruling did not turn on the issue, the judge also recognized that special Fourth Amendment concerns would arise if location information were collected as part of the metadata program, and questioned the government’s denial that such information was collected. In particular, Judge Leon recognized that the most recent FISC order had defined “telephony metadata” to include “trunk identifier.” He cited an article explaining that trunk identifiers “can reveal where [each] call enter[s] the trunk system” and can be used to “locate a phone within approximately a square kilometer,” Id. at 36 (citing Patrick Di Justo, “What the NSA Wants to Know About Your Phone Calls,” The New Yorker, June 7, 2013).
Even if location information was not collected, Judge Leon went on to conclude that the plaintiffs’ Fourth Amendment rights were very likely violated because the NSA’s search of telephony metadata did not comport with the Fourth Amendment’s reasonableness requirement. Notwithstanding three recent episodes cited by the government, the judge was not convinced that there had been “a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.” Id. at 41. By contrast, Judge Leon could not “imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.” Id. at 42. Invoking James Madison, he concluded that, “Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment.” id.
The narrowing of the issues in the wake of Judge Leon’s decision
In response to the partial motion to dismiss that the government filed on January 10, 2014, on January 30, the plaintiffs withdraw their statutory claim, under the Administrative Procedures Act, that the telephony metadata program was not authorized by Section 215 of the Patriot Act.
The U.S. Supreme Court’s denial of Klayman’s petition for certiorari before judgment
Klayman v. Obama, No.13-931, cert. before judgment denied, 82 USLW 3477, 2014 WL 469628 (Apr. 7, 2014)
On February 3, 2014, Klayman petitioned the Supreme Court for a writ of certiorari to review Judge Leon’s decision, although the government’s appeal before the federal Court of Appeals for the D.C. Circuit was still pending. Klayman urged that “this case is of such imperative public importance that it justifies deviation from normal appellate practice and requires immediate consideration and determination in the Supreme Court.” Pet. at 2. On April 7, however, the Supreme Court denied his petition.