Mike Meier,
Attorney at Law, summary of legal development: In order to establish standing
to sue in a “bulk data collection” case, District of Columbia Circuit held that
a plaintiff has to show “substantial likelihood” that the government is
collecting his/her data or that he/she is suffering any cognizable injury
Section
215 of the USA PATRIOT Act, Pub. L. No. 10756, 115 Stat. 272 (2001), empowered
the FBI to request, and the Foreign Intelligence Surveillance Court (“FISC”) to
enter, orders “requiring the production of any tangible things (including
books, records, papers, documents, and other items) for an investigation . . .
to protect against international terrorism.” Id. at § 215, 115 Stat. at 291,
codified as amended at 50 U.S.C. § 1861(a)(1). Through a program called “bulk
data collection” the government collected in bulk call records produced by
telephone companies containing telephone numbers dialed (incoming and
outgoing), times, and durations of calls. The collected metadata will then be
consolidated into a government database, where the NSA may access it only after
demonstrating to the FISC a “reasonable articulated suspicion” that a
particular phone number is associated with a foreign terrorist organization.
Gov’t’s Br. at 11-12. The government could only use the data “in conjunction
with a range of analytical tools to ascertain contact information that may be
of use in identifying individuals who may be associated with certain foreign terrorist
organizations because they have been in communication with certain
suspected-terrorist telephone numbers or other selectors. Id. at 9, 15.”
On
June 2, 2015, Congress enacted the USA Freedom Act, See Pub. L. No. 11423, Tit.
I, 129 Stat. 268, 26977 (2015), codified at 50 U.S.C. § 1861. The Act’s changes
took effect 180 days after the date of enactment. The legislation provided that
the pre-existing authority will continue until the effective date of the new
legislation.
In
their Third Amended Complaint ¶ 53, Klayman v. Obama, 13cv851 (D.D.C. Feb. 10,
2014), ECF No. 77, plaintiffs contended that this bulk collection constitutes
an unlawful search under the Fourth Amendment. They sought injunctive and
declaratory relief and damages. The district court issued a preliminary
injunction barring the government from collecting plaintiffs’ call records, and
stayed its order pending appeal.
The
United States Court of Appeals for the District of Columbia Circuit reverses
the judgment of the district court and orders the case remanded to the district
court for the reasons stated in the opinions of Judge Brown and Judge Williams.
Judge
Brown joins the court in vacating the preliminary injunction entered by the
district court and expresses his opinion on the fact that the plaintiffs have
not met the bare requirements of standing.
“In
order to establish his standing to sue, a plaintiff must show he has suffered a
‘concrete and particularized’ injury. Lujan v. Defenders of Wildlife, 504
U.S.555, 560-61 (1992). In other words, plaintiffs here must show their own
metadata was collected by the government. See, e.g., Clapper v. Amnesty
International, 133 S. Ct. 1138, 1148 (2013) (‘[R]espondents fail to offer any
evidence that their communications have been monitored under § 1881a, a failure
that substantially undermines their standing theory.’); ACLU v. NSA, 493 F.3d
644, 655 (6th Cir. 2007) (‘If, for instance, a plaintiff could demonstrate that
her privacy had actually been breached (i.e., that her communications had actually
been wiretapped), then she would have standing to assert a Fourth Amendment
cause of action for breach of privacy.’); Halkin v. Helms, 690 F.2d 977,
999-1000 (D.C. Cir. 1982) (‘[T]he absence of proof of actual acquisition of
appellants’ communications is fatal to their watchlisting claims.’).”
As
the plaintiffs supported their claim with the specific facts that NSA operates
a bulk telephony-metadata collection program and that on April 25, 2013, the
FISC issued an order requiring Verizon Business Network Services to produce its
subscribers’ call detail records to the NSA on a daily basis from April 25,
2013 to July 19, 2013, Judge Brown noted that this left some doubt about
whether plaintiffs’ own metadata was ever collected. The judge highlights the
fact that plaintiffs are Verizon Wireless subscribers and not Verizon Business
Network Services subscribers.
“[T]he
burden on plaintiffs seeking a preliminary injunction is high. Plaintiffs must
establish a ‘substantial likelihood of success on the merits.’ Sottera, Inc.,
627 F.3d at 893. Although one could reasonably infer from the evidence
presented the government collected plaintiffs’ own metadata, one could also
conclude the opposite. Having barely fulfilled the requirements for standing at
this threshold stage, Plaintiffs fall short of meeting the higher burden of
proof required for a preliminary injunction.”
“On
remand it is for the district court to determine whether limited discovery to
explore jurisdictional facts is appropriate. See, e.g., Natural Resources
Defense Council v. Pena, 147 F.3d 1012, 1024 (D.C. Cir. 1998). Of course, I
recognize that, in order for additional discovery to be meaningful, one of the
obstacles plaintiffs must surmount is the government’s unwillingness to make
public a secret program. See United Presbyterian Church in the U.S.A., 738 F.2d
at 1382; cf. ACLU, 493 F.3d at 655. […]It is entirely possible that, even if
plaintiffs are granted discovery, the government may refuse to provide
information (if any exists) that would further plaintiffs’ case. Plaintiffs’
claims may well founder in that event. But such is the nature of the
government’s privileged control over certain classes of information.”
Senior
Circuit Judge Williams writes separately.
“’[A]
party seeking a preliminary injunction must demonstrate, among other things, a
likelihood of success on the merits.’ Munaf v. Geren, 553 U.S. 674, 690 (2008)
(internal quotations and citations omitted) […] In this context, the ‘merits’
on which plaintiff must show a likelihood of success encompass not only
substantive theories but also establishment of jurisdiction. The ‘affirmative
burden of showing a likelihood of success on the merits . . . necessarily
includes a likelihood of the court’s reaching the merits, which in turn depends
on a likelihood that plaintiff has standing.’ Nat’l Wildlife Fed’n v. Burford,
835 F.2d 305, 328 (D.C. Cir. 1987) (Williams, J., concurring and dissenting).
And to show standing, a plaintiff must demonstrate an ‘injury in fact’ that is
‘actual or imminent, not conjectural or hypothetical.’ Friends of the Earth,
Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 180 (2000).”
Like
Judge Brown, Judge Williams also highlights the fact that the government has
acknowledged targeting for bulk collection Verizon Business Networks, while
plaintiffs are subscribers of Verizon Wireless.
“[…]Thus,
unlike some others who have brought legal challenges to the bulk collection
program, plaintiffs lack direct evidence that records involving their calls
have actually been collected. Cf. ACLU v. Clapper, 785 F.3d 787, 801 (2d Cir.
2015) (finding that Verizon Business subscribers had standing to challenge the
bulk collection program because ‘the government’s own orders demonstrate that
appellants’ call records are indeed among those collected as part of the telephone
metadata program’).”
The
government consistently maintained that its collection never encompassed all,
or even virtually all, call records. The district court found standing in
plaintiffs’ contention that the government collected the data from Verizon
Wireless, which was inferred from the existence of the bulk collection program
itself. Judge Williams concluded:
“[…]
Yet, in the face of the government’s representations that it has never
collected ‘all, or even virtually all’ call records, I find plaintiffs’ claimed
inference inadequate to demonstrate a ‘substantial likelihood’ of injury.”
Judge
Williams then analyzes this case in light of the Supreme Court’s most recent
evaluation of comparable inference, Clapper v. Amnesty International, 133 S. Ct.
1138 (2013) which “[c]uts strongly against plaintiffs’ claim that they have a
substantial likelihood of prevailing as to standing. […]”
“But
as the Court observed, the Clapper plaintiffs had ‘no actual knowledge of the
Government’s § 1881a targeting practices’ and accordingly ‘merely speculate[d]
and ma[d]e assumptions about whether their communications with their foreign
contacts will be acquired under § 1881a.’ Id. at 1148. The premises for their
speculation were hardly trivial. They claimed (and it was not disputed) (1)
that they engaged in communications eligible for surveillance under the
disputed section, (2) that the government had a strong motive to intercept
these particular communications because of the subject matter and identities
involved, (3) that the government had (under separate legal authority) already
intercepted 10,000 phone calls and 20,000 emails involving one individual who
is now in regular communication with one of the plaintiffs, and (4) that the
government had the capacity to intercept these communications. Id. at 1157-59.
The Court held that these allegations left it merely ‘speculative whether the
Government w[ould] imminently target communications to which respondents [we]re
parties,’ and so provided an inadequate basis for standing. Id. at 1148-49
(citations and some quotations omitted).”
“Here,
the plaintiffs’ case for standing is similar to that rejected in Clapper. They
offer nothing parallel to the Clapper plaintiffs’ evidence that the government
had previously targeted them or someone they were communicating with (No. 3
above). And their assertion that NSA’s collection must be comprehensive in
order for the program to be most effective is no stronger than the Clapper
plaintiffs’ assertions regarding the government’s motive and capacity to target
their communications (Nos. 2 & 4 above).”
“Accordingly,
I find that plaintiffs have failed to demonstrate a ‘substantial likelihood’
that the government is collecting from Verizon Wireless or that they are
otherwise suffering any cognizable injury. They thus cannot meet their burden
to show a ‘likelihood of success on the merits’ and are not entitled to a
preliminary injunction.”
The
Court vacates the preliminary injunction entered by the district court and
remands the case for further proceedings.
Citation: Obama v. Klayman,
800 F.3d 559 (D.C. Cir. 2015).
