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.
Before the Court are plaintiffs' two Motions for Preliminary Injunction [Dkt.
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.
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.
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 with Respect to Intelligence Activities (the "Church Committee") that the executive branch had, for decades, engaged in warrantless domestic intelligence-gathering activities that had illegally infringed the Fourth Amendment rights of American citizens, Congress passed FISA
FISA created a procedure for the Government to obtain ex parte judicial orders authorizing domestic electronic surveillance upon a showing that, inter alia, the target of the surveillance was a foreign power or an agent of a foreign power. 50 U.S.C. §§ 1804(a)(3), 1805(a)(2). In enacting FISA, Congress also created two new Article III courts — the Foreign Intelligence Surveillance Court ("FISC"), composed of eleven U.S. district judges, "which shall have jurisdiction to hear applications for and grant orders approving" such surveillance, § 1803(a)(1), and the FISC Court of Review, composed of three U.S. district or court of appeals judges, "which shall have jurisdiction to review the denial of any application made under [FISA]," § 1803(b).
In addition to authorizing wiretaps, §§ 1801-1812, FISA was subsequently amended to add provisions enabling the Government to obtain ex parte orders authorizing physical searches, §§ 1821-1829, as well as pen registers and trap-and-trace devices, §§ 1841-1846. See Intelligence Authorization Act for Fiscal Year 1995, Pub. L. No. 103-359, § 807(a)(3), 108 Stat. 3423; Intelligence Authorization Act for Fiscal Year 1999, Pub. L. No. 105-272, § 601(2), 112 Stat. 2396 ("1999 Act"). In 1998, Congress added a "business records" provision to FISA. See 1999 Act § 602. Under that provision, the FBI was permitted to apply for an ex parte order authorizing specified entities, such as common carriers, to release to the FBI copies of business records upon a showing in the FBI's application that "there are specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power." 50 U.S.C. § 1862(b)(2)(B) (2000).
Following the September 11, 2001 terrorist attacks, Congress passed the USA PATRIOT Act, which made changes to FISA and several other laws. Pub. L. No. 107-56, 115 Stat. 272 (2001). Section 215 of the PATRIOT Act replaced FISA's business-records provision with a more expansive "tangible things" provision. Codified at 50 U.S.C. § 1861, it authorizes the FBI to apply "for an order requiring the production of any tangible things (including
Section 1861 also imposes other requirements on the FBI when seeking to use this authority. For example, the investigation pursuant to which the request is made must be authorized and conducted under guidelines approved by the Attorney General under Executive Order No. 12,333 (or a successor thereto). 50 U.S.C. § 1861(a)(2)(A), (b)(2)(A). And the FBI's application must "enumerat[e] ... minimization procedures adopted by the Attorney General ... that are applicable to the retention and dissemination by the [FBI] of any tangible things to be made available to the [FBI] based on the order requested." § 1861(b)(2)(B). The statute defines "minimization procedures" as, in relevant part, "specific procedures that are reasonably designed in light of the purpose and technique of an order for the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting [U.S.] persons consistent with the need of the [U.S.] to obtain, produce, and disseminate foreign intelligence information." § 1861(g)(2). If the FISC judge finds that the FBI's application meets these requirements, he "shall enter an ex parte order as requested, or as modified, approving the release of tangible things" (hereinafter, "production order"). § 1861(c)(1); see also § 1861(f)(1)(A) ("the term `production order' means an order to produce any tangible thing under this section").
Under Section 1861's "use" provision, information that the FBI acquires through such a production order "concerning any [U.S.] person may be used and disclosed by Federal officers and employees without the consent of the [U.S.] person only in accordance with the minimization procedures adopted" by the Attorney General and approved by the FISC. § 1861(h). Meanwhile, recipients of Section 1861 production orders are obligated not to disclose the existence of the orders, with limited exceptions. § 1861(d)(1).
While the recipient of a production order must keep it secret, Section 1861 does provide the recipient — but only the recipient — a right of judicial review of the order before the FISC pursuant to specific procedures. Prior to 2006, recipients of Section 1861 production orders had no express right to judicial review of those orders, but Congress added such a provision when it reauthorized the PATRIOT Act that year. See USA PATRIOT Improvement and Reauthorization Act § 106(f); 1 D. KRIS & J. WILSON, NATIONAL SECURITY INVESTIGATIONS & PROSECUTIONS § 19:7 (2d ed. 2012) ("Kris & Wilson") ("Prior to the Reauthorization Act in 2006, FISA did not allow for two-party litigation before the FISC").
Consistent with other confidentiality provisions of FISA, Section 1861 provides that "[a]ll petitions under this subsection shall be filed under seal," § 1861(f)(5), and the "record of proceedings ... shall be maintained under security measures established by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence," § 1861(f)(4). See also § 1803(c).
To say the least, plaintiffs and the Government have portrayed the scope of the Government's surveillance activities very differently.
In broad overview, the Government has developed a "counterterrorism program" under Section 1861 in which it collect, compiles, retains, and analyzes certain telephone records, which it characterizes as "business records" created by certain telecommunications companies (the "Bulk Telephony Metadata Program"). The records collected under this program consist of "metadata," such as information about what phone numbers were used to make and receive calls, when the calls took place, and how long the calls lasted. Decl. of Acting Assistant Director Robert J. Holley, Federal Bureau of Investigation ("Holley Decl.") [Dkt. # 25-5], at ¶ 5; Decl. of Teresa H. Shea, Signals Intelligence Director, National Security Agency ("Shea Decl.") [Dkt. # 25-4], at ¶ 7; Primary Order,
The Government has conducted the Bulk Telephony Metadata Program for more than seven years. Beginning in May 2006 and continuing through the present,
The FISC orders governing the Bulk Telephony Metadata Program specifically provide that the metadata records may be
When an NSA intelligence analyst runs a query using a "seed," the minimization procedures provide that query results are limited to records of communications within three "hops" from the seed. Id. ¶ 22. The query results thus will include only identifiers and their associated metadata having a direct contact with the seed (the first "hop"), identifiers and associated metadata having a direct contact with first "hop" identifiers (the second "hop"), and identifiers and associated metadata having a direct contact with second "hop" identifiers (the third "hop"). Id. ¶ 22; Govt.'s Opp'n at 11. In plain English, this means that if a search starts with telephone number (123) 456-7890 as the "seed," the first hop will include all the phone numbers that (123) 456-7890 has called or received calls from in the last five years (say, 100 numbers), the second hop will include all the phone numbers that each of those 100 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 100 "first hop" numbers, or 10,000 total), and the third hop will include all the phone numbers that each of those 10,000 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 10,000 "second hop" numbers, or 1,000,000 total). See Shea Decl. ¶ 25 n.1. The actual number of telephone numbers and their associated metadata captured in any given query varies, of course, but in the absence of any specific representations from the Government about typical query results, it is likely that the quantity of phone numbers captured in any given query would be very large.
Since the program began in May 2006, the FISC has repeatedly approved applications under Section 1861 and issued orders directing telecommunications service providers to produce records in connection with the Bulk Telephony Metadata Program. Shea Decl. ¶¶ 13-14. Through October 2013, fifteen different FISC judges have issued thirty-five orders authorizing the program. Govt.'s Opp'n at 9; see also Shea Decl. ¶¶ 13-14; Holley Decl. ¶ 6. Under those orders, the Government must periodically seek renewal of the authority to collect telephony records (typically every ninety days). Shea Decl. ¶ 14. The Government has nonetheless acknowledged, as it must, that failures to comply with the minimization procedures set forth in the orders have occurred. For instance, in January 2009, the Government reported to the FISC that the NSA had improperly used an "alert list" of identifiers to search the bulk telephony metadata, which was composed of identifiers that had not been approved under the RAS standard. Id. ¶ 37; Order, In re Production of Tangible Things from [Redacted], No. BR 08-13, 2009 WL 9150913, at *2 (FISC Mar. 2, 2009) ("Mar. 2, 2009 Order"). After reviewing the Government's reports on its noncompliance, Judge Reggie Walton of the FISC concluded that the NSA had engaged in "systematic noncompliance" with FISC-ordered minimization procedures over the preceding three years, since the inception of the Bulk Telephony Metadata Program, and had also repeatedly made misrepresentations and inaccurate statements about the program to the FISC judges. Mar. 2, 2009 Order, 2009 WL 9150913, at *2-5.
Notwithstanding this six-month "sanction" imposed by Judge Walton, the Government apparently has had further compliance problems relating to its collection programs in subsequent years. In October 2011, the Presiding Judge of the FISC, Judge John Bates, found that the Government had misrepresented the scope of its targeting of certain internet communications pursuant to 50 U.S.C. § 1881a (i.e., a different collection program than the Bulk Telephony Metadata Program at issue here). Referencing the 2009 compliance issue regarding the NSA's use of unauthorized identifiers to query the metadata in the Bulk Telephony Metadata Program, Judge Bates wrote: "the Court is troubled that the government's revelations regarding NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program." Mem. Op., [Redacted], No. [redacted], at 16 n.14 (FISC Oct. 3, 2011).
I will address plaintiffs' statutory claim under the APA before I turn to their constitutional claim under the Fourth Amendment.
Invoking this Court's federal question jurisdiction under 28 U.S.C. § 1331, plaintiffs allege that the Government's phone metadata collection and querying program exceeds the statutory authority granted by FISA's "tangible things" provision, 50 U.S.C. § 1861, and thereby violates the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. See Second Am. Compl. ¶¶ 96-99; Pls.' Mem. at 2, 17-19; Pls.' Reply in Supp. of Mots. for Prelim. Inj. ("Pls.' Reply") [Dkt. #31], at 5-11. In particular, plaintiffs argue that the bulk records obtained under the Bulk Telephony Metadata Program are not "relevant" to authorized national security investigations, see 50 U.S.C. § 1861(b)(2)(A), and that the FISC may not prospectively order telecommunications service providers to produce records that do not yet exist. See Pls.' Mem. at 17-19; Pls.' Reply at 5-11. In response, the Government argues that this Court lacks subject matter jurisdiction over this statutory claim because Congress impliedly precluded APA review of such claims. Government Defs.' Supplemental Br. in Opposition to Pls.' Mots. Prelim. Inj.
The APA "establishes a cause of action for those `suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action.'" Koretoff v. Vilsack, 614 F.3d 532, 536 (D.C.Cir. 2010) (quoting 5 U.S.C. § 702). In particular, the APA permits such aggrieved persons to bring suit against the United States and its officers for "relief other than money damages," 5 U.S.C. § 702, such as the injunctive relief plaintiffs seek here. This general waiver of sovereign immunity does not apply, however, "if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought." Id. Similarly the APA's "basic presumption of judicial review [of agency action]," Abbott Labs v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), does not apply "to the extent that ... statutes preclude judicial review," 5 U.S.C. § 701(a)(1). Accordingly, "[t]he presumption favoring judicial review of administrative action is just that — a presumption," Block v. Community Nutrition Inst., 467 U.S. 340, 349, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984), and it may be overcome "whenever the congressional intent to preclude judicial review is `fairly discernible in the statutory scheme.'" Id. at 351, 104 S.Ct. 2450. Assessing "[w]hether a statute precludes judicial review of agency action ... is a question of congressional intent, which is determined from the statute's `express language,' as well as `from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.'" Koretoff, 614 F.3d at 536 (quoting Block, 467 U.S. at 345, 104 S.Ct. 2450); see also Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994).
The Government insists that two statutes — 50 U.S.C. § 1861, the "tangible things" provision of FISA itself, and 18 U.S.C. § 2712, a provision of the USA PATRIOT Act, codified in the Stored Communications Act — impliedly preclude this Court's review of plaintiffs' statutory APA claim. Govt.'s Opp'n at 26-31; Govt.'s Suppl. Br. at 1-4. The text of Section 1861, and the structure and purpose of the FISA statutory scheme, as a whole, do indeed reflect Congress's preclusive intent. Stated simply, Congress created a closed system of judicial review of the government's domestic foreign intelligence-gathering, generally, 50 U.S.C. § 1803, and of Section 1861 production orders, specifically, § 1861(f). This closed system includes no role for third parties, such as plaintiffs here, nor courts besides the FISC, such as this District Court. Congress's preclusive intent is therefore sufficiently clear. How so?
First, and most directly, the text of the applicable provision of FISA itself, Section 1861, evinces Congress's intent to preclude APA claims like those brought by plaintiffs before this Court. Section 1861 expressly provides a right of judicial review of orders to produce records, but it only extends that right to the recipients of such orders, such as telecommunications service providers. See 50 U.S.C. § 1861(f). Congress thus did not preclude all judicial review of Section 1861 production orders, but I, of course, must determine "whether Congress nevertheless foreclosed review to the class to which the [plaintiffs] belon[g]." Block, 467 U.S. at 345-46, 104 S.Ct. 2450. And "when a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded." Id. at 349, 104 S.Ct. 2450 (emphases added); see also id. at 345-48, 104 S.Ct. 2450 (holding
Second, the purpose and legislative history of Section 1861 also support the conclusion that Congress intended to preclude APA claims by third parties. Simply put, Congress did not envision that third parties, such as plaintiffs, would even know about the existence of Section 1861 orders, much less challenge their legality under the statute. See, e.g., H.R.Rep. No. 109-174 at 128, 268 (2005). As the Government points out, "Section [1861], like other provisions of FISA, establishes a secret and expeditious process that involves only the Government and the recipient of the order" in order to "promote its effective functioning as a tool for counter-terrorism." Govt.'s Opp'n at 29; see also 50 U.S.C. § 1861(d)(1) (recipient of production order may not "disclose to any other person that the [FBI] has sought or obtained" an order under Section 1861); § 1861(f)(5) ("All petitions under this subsection shall be filed under seal."); § 1861(f)(4) ("The record of proceedings, including petitions filed, orders granted, and statements of reasons for decision, shall be maintained under security measures established by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence."). Congress did think about third parties, such as persons whose records would be targeted, when it created a right to judicial review of Section 1861 production orders for recipients, but it recognized that extending a similar right to third parties would make little sense in light of the secrecy of such orders. See H.R.Rep. No. 109-174 at 128, 268; Govt.'s Opp'n at 29 n.14; Govt.'s Suppl. Br. at 3.
But even setting aside the specific fact that FISA does not contain a judicial review provision for third parties regarding Section 1861 orders, Congress's preclusive intent is all the more evident when one considers, viewing FISA as a whole, that Congress did not contemplate the participation of third parties in the statutory scheme at all. See Ark. Dairy Coop. Ass'n v. Dep't of Agric., 573 F.3d 815, 822 (D.C.Cir.2009) (noting that in reaching its decision in Block, "the Supreme Court did not concentrate simply on the presence or absence of an explicit right of appeal [for consumers] in the AMAA, but instead noted that in the `complex scheme' of the AMAA, there was no provision for consumer participation of any kind.").
To be sure, FISA and Section 1861do implicate the interests of cell phone subscribers when their service providers are producing metadata about their phone communications to the Government, as I will discuss below in the context of plaintiffs' constitutional claims. But the statutory preclusion inquiry "does not only turn on whether the interests of a particular class ... are implicated." Block, 467 U.S. at 347, 104 S.Ct. 2450. "Rather, the preclusion issue turns ultimately on whether Congress intended for that class to be relied upon to challenge agency disregard of the law." Id. Here, the detailed procedures set out in the statute for judicial review of Section 1861 production orders, at the behest of recipients of those orders, indicate that, for better or worse, Congress did not intend for third parties, such as plaintiff phone subscribers here, to challenge the Government's compliance with the statute.
Finding that I lack jurisdiction to review plaintiffs' APA claim does not, however, end the Court's jurisdictional inquiry. Plaintiffs have raised several constitutional challenges to the Government's conduct at issue here. And while the Government has conceded this Court's authority to review these constitutional claims, Govt.'s Suppl. Br. at 4, I must nonetheless independently evaluate my jurisdictional authority, see Henderson ex rel. Henderson v. Shinseki, ___ U.S. ___, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011) ("[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.").
Because Article III courts were created, in part, to deal with allegations of constitutional violations, U.S. CONST. art. III, § 2, the jurisdictional inquiry here turns, in the final analysis, on whether Congress intended to preclude judicial review of constitutional claims related to FISC orders by any non-FISC courts. Not surprisingly, the Supreme Court has addressed Congressional efforts to limit constitutional review by Article III courts. In Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), the Court stated emphatically that "where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear." Id. at 603, 108 S.Ct. 2047. Such a "heightened showing" is required "in part to avoid the `serious constitutional question' that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim." Id. (holding that although a former CIA employee who alleged that he was fired because he was a homosexual, in violation of the APA and the Constitution, could not obtain judicial review under the APA because such decisions were committed to the agency's discretion by law, 5 U.S.C. § 701(a)(2), under a provision of the National Security Act of 1947, a court could nonetheless review the plaintiff's constitutional claims based on the same allegation).
As discussed in Part I above, FISA does not include an express right of judicial review for third party legal challenges to Section 1861 orders — whether constitutional or otherwise, whether in the FISC or elsewhere. But neither does FISA contain any language expressly barring all judicial review of third party claims regarding Section 1861 orders — a necessary condition to even raise the question of whether FISA's statutory scheme of judicial review provides the exclusive means of review for constitutional claims relating to Section 1861 production orders. See Elgin v. Dep't of the Treasury, ___ U.S. ___, 132 S.Ct. 2126, 2132, 183 L.Ed.2d 1 (2012) ("[A] necessary predicate to the application of Webster's heightened standard [is] a statute that purports to `deny any judicial forum for a colorable constitutional claim.'"); see also McBryde v. Comm. to Review Circuit Council Conduct
This, of course, makes good sense. The presumption that judicial review of constitutional claims is available in federal district courts is a strong one, Webster, 486 U.S. at 603, 108 S.Ct. 2047, and if the Webster heightened standard is to mean anything, it is that Congress's intent to preclude review of constitutional claims must be much clearer than that sufficient to show implied preclusion of statutory 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 of that Government action simply because it intended for the conduct to remain secret by operation of the design of its statutory scheme. While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution.
When ruling on a motion for preliminary injunction, a court must consider "whether (1) the plaintiff has a substantial likelihood of success on the merits; (2) the plaintiff would suffer irreparable injury were an injunction not granted; (3) an injunction would substantially injure other interested parties; and (4) the grant of an injunction would further the public interest." Sottera, Inc. v. Food & Drug Admin., 627 F.3d 891, 893 (D.C.Cir.2010) (internal quotation marks omitted).
In addressing plaintiffs' likelihood of success on the merits of their constitutional
"To establish Article III standing, an injury must be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling." Clapper v. Amnesty Int'l USA, ___ U.S. ___, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) (internal quotation marks omitted). In Clapper, the Supreme Court held that plaintiffs lacked standing to challenge NSA surveillance under FISA because their "highly speculative fear" that they would be targeted by surveillance relied on a "speculative chain of possibilities" insufficient to demonstrate a "certainly impending" injury. Id. at 1147-50. Moreover, the Clapper plaintiffs' "self-inflicted injuries" (i.e., the costs and burdens of avoiding the feared surveillance) could not be traced to any provable government activity. Id. at 1150-53.
The NSA's Bulk Telephony Metadata Program involves two potential searches: (1) the bulk collection of metadata and (2) the analysis of that data through the NSA's querying process. For the following reasons, I have concluded that the plaintiffs have standing to challenge both. First, as to the collection, the Supreme Court decided Clapper just months before the June 2013 news reports revealed the existence and scope of certain NSA surveillance activities. Thus, whereas the plaintiffs in Clapper could only speculate as to whether they would be surveilled at all, plaintiffs in this case can point to strong evidence that, as Verizon customers, their telephony metadata has been collected for the last seven years (and stored for the last five) and will continue to be collected barring judicial or legislative intervention. Compare id. at 1148 ("[R]espondents have no actual knowledge of the Government's § 1881a targeting practices."), with Pls.' Mem. at 1, 2 n.2, 7-8 (citing FISC orders and statements from Director of National Intelligence); Suppl. Klayman Aff. ¶ 3 (attesting to status as Verizon customer); Strange Aff. ¶ 2 (same). In addition, the Government has declassified and authenticated an April 25, 2013 FISC Order signed by Judge Vinson, which confirms that the NSA has indeed collected telephony metadata from Verizon. See Apr. 25, 2013 Secondary Order.
Put simply, the Government wants it both ways. Virtually all of the Government's briefs and arguments to this Court explain how the Government has acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool in combating terrorism — in which case, the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT & T and Sprint, the second and third-largest carriers. See Grading the top U.S. carriers in the third quarter of 2013, FIERCEWIRELESS.COM (Nov. 18, 2013);
Likewise, I find that plaintiffs also have standing to challenge the NSA's querying procedures, though not for the reasons they pressed at the preliminary injunction hearing. At oral argument, I specifically asked Mr. Klayman whether plaintiffs had any "basis to believe that the NSA has done any queries" involving their phone numbers. Transcript of Nov. 18, 2013 Preliminary Injunction Hearing at 22, Klayman I & Klayman II ("P.I. Hr'g Tr.") [Dkt. # 41]. Mr. Klayman responded: "I think they are messing with me." Id. He then went on to explain that he and his clients had received inexplicable text messages and emails, not to mention a disk
The Government, however, describes the advantages of bulk collection in such a way as to convince me that plaintiffs' metadata — indeed everyone's metadata — is analyzed, manually or automatically,
Accordingly, plaintiffs meet the standing requirements set forth in Clapper, as they can demonstrate that the NSA has collected and analyzed their telephony metadata and will continue to operate the program consistent with FISC opinions and orders. Whether doing so violates plaintiffs' Fourth Amendment rights is, of course, a separate question and the subject of the next section, which addresses the merits of their claims. See United States v. Lawson, 410 F.3d 735, 740 n.4 (D.C.Cir.2005) ("[A]lthough courts sometimes refer to the reasonable expectation of privacy issue as `standing' to contest a search, the question `is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.'" (quoting Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998)).
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend IV. That right "shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Id. A Fourth Amendment "search" occurs either when "the Government
The threshold issue that I must address, then, is whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets. If they do — and a Fourth Amendment search has thus occurred — then the next step of the analysis will be to determine whether such a search is "reasonable." See id. at 31, 121 S.Ct. 2038 (whether a search has occurred is an "antecedent question" to whether a search was reasonable).
The analysis of this threshold issue of the expectation of privacy must start with the Supreme Court's landmark opinion in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), which the FISC has said "squarely control[s]" when it comes to "[t]he production of telephone service provider metadata." Am. Mem. Op., In re Application of the [FBI] for an Order Requiring the Production of Tangible Things from [REDACTED], No. BR 13-109 at 6-9 (FISC Aug. 29, 2013) (attached as Ex. A to Gilligan Decl.) [Dkt. # 25-2]. In Smith, police were investigating a robbery victim's reports that she had received threatening and obscene phone calls from someone claiming to be the robber. Id. at 737, 99 S.Ct. 2577. Without obtaining a warrant or court order, police installed a pen register, which revealed that a telephone in Smith's home had been used to call the victim on one occasion.
The question before me is not the same question that the Supreme Court confronted in Smith. To say the least, "whether the installation and use of a pen register constitutes a `search' within the meaning of the Fourth Amendment," id. at 736, 99 S.Ct. 2577 — under the circumstances addressed and contemplated in that case — is a far cry from the issue in this case.
Indeed, the question in this case can more properly be styled as follows: When do present-day circumstances — the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies — become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.
In United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), five justices found that law enforcement's use of a GPS device to track a vehicle's movements for nearly a month violated Jones's reasonable expectation of privacy. See id. at 955-56 (Sotomayor, J., concurring); id. at 964 (Alito, J., concurring). Significantly, the justices did so without questioning the validity of the Court's earlier decision in United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), that use of a tracking beeper does not constitute a search because "[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."
First, the pen register in Smith was operational for only a matter of days between March 6, 1976 and March 19, 1976, and there is no indication from the Court's opinion that it expected the Government to retain those limited phone records once the case was over. See 442 U.S. at 737, 99 S.Ct. 2577. In his affidavit, Acting Assistant Director of the FBI Robert J. Holley himself noted that "[p]en-register and trap-and-trace (PR/TT) devices provide no historical contact information, only a record of contacts with the target occurring after the devices have been installed." Holley Decl. ¶ 9. This short-term, forward-looking (as opposed to historical), and highly-limited data collection is what the Supreme Court was assessing in Smith. The NSA telephony metadata program, on the other hand, involves the creation and maintenance of a historical database containing five years' worth of data. And I might add, there is the very real prospect that the program will go on for as long as America is combatting terrorism, which realistically could be forever!
Second, the relationship between the police and the phone company in Smith is nothing compared to the relationship that has apparently evolved over the last seven years between the Government and telecom companies. Compare Smith, 442 U.S. at 737, 99 S.Ct. 2577 ("[T]he telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner's home."), with Govt.'s Opp'n at 8-9 ("Under this program,... certain telecommunications service providers [] produce to the NSA on a daily basis electronic copies of call detail records, or telephony metadata.... The FISC first authorized the program in May 2006, and since then has renewed the
Third, the 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. In Smith, the Supreme Court was actually considering whether local police could collect one person's phone records for calls made after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. See Smith, 442 U.S. at 737, 99 S.Ct. 2577. The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction. By comparison, the Government has at its disposal today the most advanced twenty-first century tools, allowing it to "store such records and efficiently mine them for information years into the future." Jones, 132 S.Ct. at 956 (Sotomayor, J., concurring). And these technologies are "cheap in comparison to conventional surveillance techniques and, by design, proceed[] surreptitiously," thereby "evad[ing] the ordinary checks that constrain abusive law enforcement practices: limited police ... resources and community hostility." Id.
Finally, and most importantly, not only is the Government's ability to collect,
Admittedly, what metadata is has not changed over time. As in Smith, the types of information at issue in this case are relatively limited: phone numbers dialed, date, time, and the like.
Having found that a search occurred in this case, I next must "examin[e] the totality of the circumstances to determine whether [the] search is reasonable within the meaning of the Fourth Amendment." Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (internal quotation marks omitted). "`[A]s a general matter, warrantless searches are per se unreasonable under the Fourth Amendment.'" Nat'l Fed'n of
The Supreme Court has recognized only a "`few specifically established and well-delineated exceptions to that general rule,'" Nat'l Fed'n of Fed. Emps.-IAM, 681 F.3d at 489 (quoting Quon, 130 S.Ct. at 2630), including one that applies when "`special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable,'" id. (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995)). "Even where the government claims `special needs,'" as it does in this case, "a warrantless search is generally unreasonable unless based on `some quantum of individualized suspicion.'" Id. (quoting Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 624, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)). Still, a suspicionless search may be reasonable "`where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion.'" Id. (quoting Skinner, 489 U.S. at 624, 109 S.Ct. 1402). As such, my task is to "`balance the [plaintiffs'] privacy expectations against the government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.'" Id. (quoting Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665-66, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989)). This is a "`context-specific inquiry'" that involves "`examining closely the competing private and public interests advanced by the parties.'" Id. (quoting Chandler, 520 U.S. at 314, 117 S.Ct. 1295, 137 L.Ed.2d 513)). The factors I must consider include: (1) "the nature of the privacy interest allegedly compromised" by the search, (2) "the character of the intrusion imposed" by the government, and (3) "the nature and immediacy of the government's concerns and the efficacy of the [search] in meeting them." Bd. of Educ. v. Earls, 536 U.S. 822, 830-34, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002).
"Special needs" cases, not surprisingly, form something of a patchwork quilt. For example, schools and government employers are permitted under certain circumstances to test students and employees for drugs and alcohol, see Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735; Vernonia Sch. Dist., 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564; Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685; Skinner, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639, and officers may search probationers and parolees to ensure compliance with the rules of supervision, see Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987).
For reasons I have already discussed at length, I find that plaintiffs have a very significant expectation of privacy in an aggregated collection of their telephony metadata covering the last five years, and the NSA's Bulk Telephony Metadata Program significantly intrudes on that expectation.
The Government asserts that the Bulk Telephony Metadata Program serves the "programmatic purpose" of "identifying unknown terrorist operatives and preventing terrorist attacks." Govt.'s Opp'n at 51 — an interest that everyone, including this Court, agrees is "of the highest order of magnitude," In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1012 (FISA Ct. Rev.2008); see also Haig v. Agee, 453 U.S. 280, 307, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) ("It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation." (internal quotation marks omitted)).
Yet, turning to the efficacy prong, the Government does not cite 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. In fact, none of the three "recent episodes" cited by the Government that supposedly "illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack" involved any apparent urgency. See Holley Decl. ¶¶ 24-26. In the first example, the FBI learned of a terrorist plot still "in its early stages" and investigated that plot before turning to the metadata "to ensure that all potential connections were identified." Id. ¶ 24. Assistant Director Holley does not say that the metadata revealed any new information — much less time-sensitive information — that had not already come to light in the investigation up to that point. Id. In the second example, it appears that the metadata analysis was used only after the terrorist was arrested "to establish [his] foreign ties and put them in context with his U.S. based planning efforts." Id. ¶ 25. And in the third, the metadata analysis "revealed a previously unknown number for [a] co-conspirator ... and corroborated his connection to [the target of the investigation] as well as to other U.S.-based extremists." Id. ¶ 26. Again, there is no indication that these revelations were immediately useful or that they prevented an impending attack. Assistant Director Holley even concedes that bulk metadata analysis only "sometimes provides information earlier than the FBI's other investigative methods and techniques." Id. ¶ 23 (emphasis added).
I realize, of course, that such a holding might appear to conflict with other trial courts, see, e.g., United States v. Moalin, Crim. No. 10-4246, 2013 WL 6079518, at *5-8 (S.D.Cal. Nov. 18, 2013) (holding that bulk telephony metadata collection does not violate Fourth Amendment); United States v. Graham, 846 F.Supp.2d 384, 390-405 (D.Md.2012) (holding that defendants had no reasonable expectation of privacy in historical cell-site location information); United States v. Gordon, Crim. No. 09-153-02, 2012 WL 8499876, at *1-2 (D.D.C. Feb. 6, 2012) (same), and with longstanding doctrine that courts have applied in other contexts, see, e.g., Smith, 442 U.S. at 741-46, 99 S.Ct. 2577, Miller, 425 U.S. at 443, 96 S.Ct. 1619. Nevertheless, in reaching this decision, I find comfort in the statement in the Supreme Court's recent majority opinion in Jones that "[a]t bottom, we must `assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.'" 132 S.Ct. at 950 (2012) (quoting Kyllo, 533 U.S. at 34, 121 S.Ct. 2038). Indeed, as the Supreme Court noted more than a decade before Smith, "[t]he basic purpose of th[e Fourth] Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Camara v. Mun. Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (emphasis added); see also Quon, 130 S.Ct. at 2627 ("The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government,
"It has long been established that the loss of constitutional freedoms, `for even minimal periods of time, unquestionably constitutes irreparable injury.'" Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C.Cir.2009) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion)). As in this case, the court in Mills was confronted with an alleged Fourth Amendment violation: a "Neighborhood Safety Zones" traffic checkpoint for vehicles entering a high-crime neighborhood in Washington, DC. Id. at 1306. After finding a strong likelihood of success on the merits, our Circuit Court had little to say on the irreparable injury prong, instead relying on the statement at the beginning of this paragraph that a constitutional violation, even of minimal duration, constitutes irreparable injury. Plaintiffs in this case have also shown a strong likelihood of success on the merits of a Fourth Amendment claim. As such, they too have adequately demonstrated irreparable injury.
"`[I]t is always in the public interest to prevent the violation of a party's constitutional rights.'" Am. Freedom Def. Initiative v. Wash. Metro. Area Transit Auth., 898 F.Supp.2d 73, 84 (D.D.C. 2012) (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm'n, 23 F.3d 1071, 1079 (6th Cir.1994)); see also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir.2013) (same), cert. granted, ___ U.S. ___, 134 S.Ct. 678, ___ L.Ed.2d ___, 2013 WL 5297798 (2013); Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.2012) (same); Nat'l Fed'n of Fed. Emps. v. Carlucci, 680 F.Supp. 416 (D.D.C.1988) ("[T]he public interest lies in enjoining unconstitutional searches."). That interest looms large in this case, given the significant privacy interests at stake and the unprecedented scope of the NSA's collection and querying efforts, which likely violate the Fourth Amendment. Thus,
The Government responds that the public's interest in combating terrorism is of paramount importance, see Govt.'s Opp'n at 64-65 — a proposition that I accept without question. But the Government offers no real explanation as to how granting relief to these plaintiffs would be detrimental to that interest. Instead, the Government says that it will be burdensome to comply with any order that requires the NSA to remove plaintiffs from its database. See id. at 65; Shea Decl. ¶ 65. Of course, the public has no interest in saving the Government from the burdens of complying with the Constitution! Then, the Government frets that such an order "could ultimately have a degrading effect on the utility of the program if an injunction in this case precipitated successful requests for such relief' by other litigants." Govt.'s Opp'n at 65 (citing Shea Decl ¶ 65). For reasons already explained, I am not convinced at this point in the litigation that the NSA's database has ever truly served the purpose of rapidly identifying terrorists in time-sensitive investigations, and so I am certainly not convinced that the removal of two individuals from the database will "degrade" the program in any meaningful sense.
This case is yet the latest chapter in the Judiciary's continuing challenge to balance the national security interests of the United States with the individual liberties of our citizens. The Government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance based in large part on a thirty-four year old Supreme Court precedent, the relevance of which has been eclipsed by technological advances and a cell phone-centric lifestyle heretofore inconceivable. In the months ahead, other Article III courts, no doubt, will wrestle to find the proper balance consistent with our constitutional system. But in the meantime, for all the above reasons, I will grant Larry Klayman's and Charles Strange's requests for an injunction
However, in light 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.
To the extent plaintiffs are, in fact, requesting preliminary injunctive relief regarding any alleged internet data surveillance activity, the Court need not address those claims for two reasons. First, the Government has represented that any bulk collection of internet metadata pursuant to Section 215 (50 U.S.C. § 1861) was discontinued in 2011, see Govt. Defs.' Opp'n to Pls.' Mot. for Prelim. Inj. ("Govt.'s Opp'n") [Dkt. #25], at 15-16, 44-45; Ex. J to Decl. of James J. Gilligan ("Gilligan Decl.") [Dkt. # 25-11] (Letter from James R. Clapper to the Sen. Ron Wyden (July 25, 2013)), and therefore there is no possible ongoing harm that could be remedied by injunctive relief. Second, to the extent plaintiffs challenge the Government's targeted collection of internet data content pursuant to Section 702 (50 U.S.C. § 1881a) under the so-called "PRISM" program, which targets non-U.S. persons located outside the U.S., plaintiffs have not alleged sufficient facts to show that the NSA has targeted any of their communications. See Govt.'s Opp'n at 21-22, 44. Accordingly, plaintiffs lack standing, as squarely dictated by the Supreme Court's recent decision in Clapper v. Amnesty International USA, ___ U.S. ___, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013), which concerns the same statutory provision. In Clapper, the Court held that respondents, whose work purportedly involved engaging in phone and internet contact with persons located abroad, lacked standing to challenge Section 702 because it was speculative whether the government would seek to target, target, and actually acquire their communications. See Clapper, 133 S.Ct. at 1148-50 ("[R]espondents' speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to § 1881a."). So too for plaintiffs here. (In fact, plaintiffs here have not even alleged that they communicate with anyone outside the United States at all, so their claims under Section 702 are even less colorable than those of the plaintiffs in Clapper.)
But it's also easy to imagine the spiderweb-like reach of the three-hop search growing exponentially and capturing even higher numbers of phone numbers. Suppose, for instance, that there is a person living in New York City who has a phone number that meets the RAS standard and is approved as a "seed." And suppose this person, who may or may not actually be associated with any terrorist organization, calls or receives calls from 100 unique numbers, as in my example. But now suppose that one of the numbers he calls is his neighborhood Domino's Pizza shop. The Court won't hazard a guess as to how many different phone numbers might dial a given Domino's Pizza outlet in New York City in a five-year period, but to take a page from the Government's book of understatement, it's "substantially larger" than the 100 in the second hop of my example, and would therefore most likely result in exponential growth in the scope of the query and lead to millions of records being captured by the third hop. (I recognize that some minimization procedures described in recent FISC orders permitting technical personnel to access the metadata database to "defeat [] high volume and other unwanted [] metadata," Oct. 11, 2013 Primary Order at 6, may, in practice, reduce the likelihood of my Domino's hypothetical example occurring. But, of course, that does not change the baseline fact that, by the terms of the FISC's orders, the NSA is permitted to run queries capturing up to three hops that can conceivably capture millions of Americans' phone records. Further, these queries using non-RAS-approved selection terms, which are permitted to make the database "usable for intelligence analysis," id. at 5, may very well themselves involve searching across millions of records.)
Querying a foreign phone number is like entering a library and trying to find every book that cites Battle Cry of Freedom as a source. It might be referenced in a thousand books. It might be in just ten. It could be in zero. The only way to know is to check every book. At the end of a very long month, you are left with the "hop one" results (those books that cite Battle Cry of Freedom), but to get there, you had to open every book in the library.
In the case of the bulk telephony metadata collection, there is no analogous "container" that remains sealed; rather, all of the metadata is handled by the Government, at least to the degree needed to integrate the metadata into the NSA's database. See Shea Decl. ¶¶ 17, 60 (government may access metadata for purpose of "rendering [it] useable to query" because "each [telecom] provider may not maintain records in a format that is subject to a standardized query"). Thus, unlike the contents of the container described in Horton, telephony metadata is not kept in an unmolested, opaque package that obscures it from the Government's view.
A much more significant difference is that telephony metadata can reveal the user's location, see generally New Jersey v. Earls, 214 N.J. 564, 70 A.3d 630, 637-38 (2013), which in 1979 would have been entirely unnecessary given that landline phones are tethered to buildings. The most recent FISC order explicitly "does not authorize the production of cell site location information," Oct. 11, 2013 Primary order at 3 n.1, and the Government has publicly disavowed such collection, see Transcript of June 25, 2013 Newseum Special Program: NSA Surveillance Leaks: Facts and Fiction, Remarks of Robert Litt, Gen. Counsel, Office of Dir. of Nat'l Intelligence, available at http://www.dni.gov/index.php/newsroom/speeches-and-interviews/195-speeches-interviews-2013/887-transcript-newseum-special-program-nsa-surveillance-leaks-facts-and-fiction ("I want to make perfectly clear we do not collect cellphone location information under this program, either GPS information or cell site tower information.").
That said, not all FISC orders have been made public, and I have no idea how location data has been handled in the past. Plaintiffs do allege that location data has been collected, see Second Am. Compl. ¶ 28; Pls.' Mem. at 10-11, and the Government's brief does not refute that allegation (though one of its declarations does, see Shea Decl. ¶ 15). See also supra note 17. Moreover, the most recent FISC order states, and defendants concede, that "`telephony metadata' includes ... trunk identifier[s]," Oct. 11, 2013 Primary order at 3 n.1; Govt.'s Opp'n at 9, which apparently "can reveal where [each] call enter[s] the trunk system" and can be used to "locate a phone within approximately a square kilometer," Patrick Di Justo, What the N.S.A. Wants to Know About Your Calls, NEW YORKER (June 7, 2013), http://www.newyorker.com/online/blogs/elements/2013/06/what-the-nsa-wants-to-know-about-your-phone-calls.html. And "if [the metadata] includes a request for every trunk identifier used throughout the interaction," that "could allow a phone's movements to be tracked." Id. Recent news reports, though not confirmed by the Government, cause me to wonder whether the Government's briefs are entirely forthcoming about the full scope of the Bulk Telephony Metadata Program. See, e.g., Barton Gellman & Ashkan Soltani, NSA maps targets by their phones, WASH. POST, Dec. 5, 2013, at A01.
The collection of location data would, of course, raise its own Fourth Amendment concerns, see, e.g., In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to Gov't, 620 F.3d 304, 317 (3d Cir.2010) ("A cell phone customer has not `voluntarily' shared his location information with a cellular provider in any meaningful way.... [I]t is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information."), but my decision on this preliminary injunction does not turn on whether the NSA has in fact collected that data as part of the bulk telephony metadata program.
