Klayman v. Obama

Facts

On June 5, 2013, 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. 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. D 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.'' The NSA Prism program taps into user data of Apple, Google and others. Ps filed their complaints alleging that D, with the participation of private companies, is conducting 'a secret and illegal government scheme to intercept and analyze vast quantities of domestic telephonic communications.' Ps 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. D has conducted the Bulk Telephony Metadata Program for more than seven years. Beginning in May 2006 and continuing through the present,1the FBI has obtained production orders from the FISC under Section 1861 directing certain telecommunications companies to produce, on an ongoing daily basis, these telephony metadata records, which the companies create and maintain as part of their business of providing telecommunications services to customers. D claims that the aggregation of records into a single database creates 'a historical repository that permits retrospective analysis,' enabling NSA analysts to draw connections, across telecommunications service providers, between numbers reasonably suspected to be associated with terrorist activity and with other, unknown numbers. NSA intelligence analysts, without seeking the approval of a judicial officer, may access the records to obtain foreign intelligence information only through 'queries' of the records performed using 'identifiers,' such as telephone numbers, associated with terrorist activity. Such approval may be given only upon a determination by one of those designated officials that there exist facts giving rise to a 'reasonable, articulable suspicion' (RAS) that the selection term to be queried is associated with one or more of the specified foreign terrorist organizations approved for targeting by the FISC. 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. 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. D has a record of blatant noncompliance with any safety or oversight measures established by Congress and the Courts. 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.' 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. Both Judge Walton's and Judge Bates's opinions were only recently declassified by the Government in response to the Congressional and public reaction to the Snowden leaks. Ps allege that D'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). Ps have also raised several constitutional challenges to D's conduct at issue.

Issues

Rule of Law

Holding and Decision

Legal Analysis

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