University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name ACLU v. Clapper NS-NY-0003
Docket / Court 1:13-cv-03994-WHP ( S.D.N.Y. )
State/Territory New York
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Telephony Metadata
Attorney Organization ACLU Chapters (any)
ACLU National (all projects)
Loevy & Loevy
Case Summary
On June 11, 2013, the ACLU and the N.Y. Civil Liberties Union filed this lawsuit in the U.S. District Court for the Southern District of New York against the National Security Agency ("NSA"). The organizations served as both plaintiff and counsel, and sought an injunction permanently enjoining the ... read more >
On June 11, 2013, the ACLU and the N.Y. Civil Liberties Union filed this lawsuit in the U.S. District Court for the Southern District of New York against the National Security Agency ("NSA"). The organizations served as both plaintiff and counsel, and sought an injunction permanently enjoining the government's mass call-tracking program and requiring the government to purge from its possession all of the plaintiffs' call records already collected, claiming that the NSA's ongoing tracking of their phone calls exceeded statutory authority under the Foreign Intelligence Surveillance Act ("FISA") and violated the First and Fourth Amendments. Specifically, the plaintiffs claimed that the NSA's surveillance invaded their privacy, threatened to dissuade potential clients and others from contacting them, and compromised their ability to serve their institutional missions and their clients' interests. The plaintiffs contended that the government's program violated the Fourth Amendment because the surveillance carried out was warrantless and unreasonable, and violated the First Amendment by substantially and unjustifiably burdening the plaintiffs' rights to associate when more narrow methods could have been used to achieve the government's ends.

On August 26, 2013, the plaintiffs moved for a preliminary injunction to (1) bar the government from collecting their call records under the government's mass call-tracking program, (2) require the government to quarantine all of their call records already collected under the program, and (3) prohibit the government from querying metadata obtained through the program using any phone number or other identifier associated with them.

On the same day, the NSA moved to dismiss the plaintiffs' complaint. The NSA contended that the District Court lacked jurisdiction to entertain the plaintiffs' claims, and the plaintiffs failed in any event to state claims on which relief may be granted. Specifically, the NSA claimed that the plaintiffs lacked standing, that Congress impliedly precluded judicial review of the mass call-tracking program, that the program was authorized under the FISA, and that the program did not violate the First and Fourth Amendments.

On December 27, 2013, the District Court denied the ACLU's motion for a preliminary injunction and dismissed the case. 959 F. Supp. 2d 724 (S.D.N.Y. 2013). Judge Pauley found that the ACLU had standing to bring its constitutional challenge even though no statutory cause of action allowed the ACLU to challenge the telephony metadata program as beyond statutory authorization. According to the court, the government's argument that the ACLU had no privacy interest unless someone at NSA actually looked at its telephony metadata went to the merits, not to standing. On the merits, however, Judge Pauley held that the telephony metadata program was lawful, disagreeing with the decision of Judge Leon, in a D.C. District case just 11 days earlier. Judge Pauley found that the U.S. Supreme Court precedent Smith v. Maryland, 442 U.S. 735 (1979), was controlling. If the Supreme Court believed that Smith has been overtaken by changes in technology, it was for the Court itself to overrule. Judge Pauley also emphasized the reasonableness and limited nature of the access to and use of the massive telephony metadata collection, as well as its importance in terrorism prevention.

The plaintiffs appealed, and on May 7, 2015, the U.S. Court of Appeals for the Second Circuit reversed the district court's decision. In an opinion by Judge Gerard Lynch, the court found that Section 215 and FISA more generally do not preclude judicial review, and that the bulk telephony metadata program is not authorized by Section 215. 785 F.3d 787 (2d Cir. 2015). Because Section 215 was scheduled to sunset on June 1, however, this Court declined to enjoin the surveillance; writing that it would be "prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape."

On June 1, the authority that had been granted by Section 215 of the Patriot Act expired after the Senate declined to pass a bill that would have temporarily extended the authority without modification. However, on June 2, President Obama signed into law the USA FREEDOM Act of 2015, Pub. L. 114-23, (2015). The legislation provided that, after a period of 180 days, the government would be permitted to collect particular call detail records (not in bulk) under 50 U.S.C. § 1861, if it met certain "additional requirements," with particularized suspicion, through targeted demands. For an initial 180-day period, however, the legislation left in place--unaltered--the prior Section 215. That same day, the government asked the FISA Court to allow it to continue (or resurrect, since it had expired the day before) the bulk call-records program for that 180 day period. See FISA BR 15-75, NS-DC-0086 in this Clearinghouse. The government argued that Congress's decision to delay by 180 days the imposition of the new requirements relating to the collection of call records constituted an implicit endorsement of bulk collection during that period and reflected a legislative intent to "allow for the orderly termination" of that collection. The government argued, before the FISC, against the Second Circuit's conclusion that the bulk records program was unlawful. On June 29, 2014, a FISC judge agreed and granted the June 2 application.

On July 14, 2014, the plaintiffs returned to the Second Circuit and renewed their request for injunctive relief. They sought a preliminary injunction to (1) bar the government, during the pendency of this suit, from collecting plaintiffs' call records under the NSA's call-records program; (2) require the government, during the pendency of this suit, to quarantine all of plaintiffs' call records already collected under the program; and (3) prohibit the government, during the pendency of this suit, from querying metadata obtained through the program using any phone number or other identifier associated with them. The plaintiffs also asked that the Second Circuit, after the entry of preliminary relief, remand the case to the district court to adjudicate the plaintiffs' request for a permanent injunction requiring the government to end the program and purge records collected under it.

On October 29, 2015, the Second Circuit denied the plaintiffs' motion for preliminary injunction. The Second Circuit held that Congress intended to authorize the continuation of the bulk telephone metadata collection program for the 180 days before the requirements under 50 U.S.C. § 1861 took effect. As such, the Second Circuit declined to grant the plaintiffs' preliminary injunction, and also declined to rule on any constitutional issues. The case was remanded to the District Court for further proceedings.

This case is currently ongoing in the U.S. District Court.

Michael Mirdamadi - 10/11/2013
John He - 11/04/2015


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
Unreasonable search and seizure
Content of Injunction
Preliminary relief denied
Defendant-type
Jurisdiction-wide
General
Confidentiality
Records Disclosure
Terrorism/Post 9-11 issues
Plaintiff Type
Non-profit NON-religious organization
Type of Facility
Government-run
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Defendant(s) National Security Agency
Plaintiff Description Non-profit organizations that engage in public education, lobbying, and pro bono litigation upholding the civil rights and liberties guaranteed by the Constitution.
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU National (all projects)
Loevy & Loevy
Class action status sought No
Class action status granted No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Form of Settlement None on record
Order Duration not on record
Case Closing Year n/a
Case Ongoing Yes
Case Listing NS-NY-0008 : ACLU v. FBI (S.D.N.Y.)
NS-TX-0003 : Perez v. Clapper (W.D. Tex.)
Additional Resources
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Links Guest Post: New Resource — Civil Rights Litigation Clearinghouse FISA Archives
Just Security
Posted: Jun. 26, 2014
By: Margo Schlanger
[ Detail ] [ External Link ]

Docket(s)
1:13−cv−03994 (S.D.N.Y.) 10/29/2015
NS-NY-0003-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Complaint 06/11/2013
NS-NY-0003-0001.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Declaration of Professor Edward W. Felten 08/23/2013
NS-NY-0003-0008.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Motion For Preliminary Injunction 08/26/2013
NS-NY-0003-0002.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Motion to Dismiss 08/26/2013
NS-NY-0003-0003.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Declaration of Michael German 08/26/2013
NS-NY-0003-0009.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Defendant's Memorandum of Law in Support of Motion to Dismiss the Complaint 08/26/2013
NS-NY-0003-0010.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum of Law in Support of Plaintiffs' Motion for a Preliminary Injunction 08/26/2013
NS-NY-0003-0011.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Brief of Former Members of the Church Committee and Law Professors as Amicus Curiae Supporting Plaintiff 08/30/2013
NS-NY-0003-0006.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Brief Amicus Curiae of Congressman F. James Sensenbrenner, Jr. in Support of Plaintiffs 09/04/2013
NS-NY-0003-0005.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum & Order 12/27/2013 (959 F.Supp.2d 724) (S.D.N.Y.)
NS-NY-0003-0004.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
[Opinion for the Second Circuit] 05/07/2015 (785 F.3d 787)
NS-NY-0003-0007.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Opinion 10/29/2015 (2015 WL 6516757 / 2015 U.S.App.LEXIS 18862)
NS-NY-0003-0013.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges Lynch, Gerard E. (Second Circuit, S.D.N.Y.)
NS-NY-0003-0007 | NS-NY-0003-0013
Pauley, William H. III (S.D.N.Y.)
NS-NY-0003-0004 | NS-NY-0003-9000
Sack, Robert David (Second Circuit)
NS-NY-0003-0007
Monitors/Masters None on record
Plaintiff's Lawyers Abdo, Alex (New York)
NS-NY-0003-0001 | NS-NY-0003-0002 | NS-NY-0003-9000
Crump, Catherine (New York)
NS-NY-0003-0001 | NS-NY-0003-0002 | NS-NY-0003-9000
Donohue, Laura (Maryland)
NS-NY-0003-0006 | NS-NY-0003-9000
Dunn, Christopher (New York)
NS-NY-0003-0001 | NS-NY-0003-0002 | NS-NY-0003-9000
Eisenberg, Arthur (New York)
NS-NY-0003-0001 | NS-NY-0003-0002 | NS-NY-0003-9000
Jaffer, Jameel (New York)
NS-NY-0003-0001 | NS-NY-0003-0002 | NS-NY-0003-0011 | NS-NY-0003-9000
Kaufman, Brett Max (New York)
NS-NY-0003-0001 | NS-NY-0003-0002 | NS-NY-0003-9000
Toomey, Patrick Christopher (New York)
NS-NY-0003-0001 | NS-NY-0003-0002 | NS-NY-0003-9000
Defendant's Lawyers Berman, Marcia (District of Columbia)
NS-NY-0003-0003
Bharara, Preetinder S. (New York)
NS-NY-0003-0003
Clopper, John Dalton (New York)
NS-NY-0003-0003 | NS-NY-0003-9000
Coppolino, Anthony J. (District of Columbia)
NS-NY-0003-0003
Dearinger, Bryan (District of Columbia)
NS-NY-0003-0003
Delery, Stuart F. (District of Columbia)
NS-NY-0003-0003
Gilligan, James J (District of Columbia)
NS-NY-0003-0003 | NS-NY-0003-0010
Harwood, Christopher Blake (New York)
NS-NY-0003-0003 | NS-NY-0003-9000
Hunt, Joseph H. (District of Columbia)
NS-NY-0003-0003
Jones, David S (New York)
NS-NY-0003-0003 | NS-NY-0003-0010 | NS-NY-0003-9000
La Morte, Tara Marie (New York)
NS-NY-0003-0003 | NS-NY-0003-9000
Other Lawyers Chemerinsky, Erwin (California)
NS-NY-0003-0006
Davis, Edward J. (New York)
NS-NY-0003-9000
Feder, Eric Joel (New York)
NS-NY-0003-9000
Frazer, John (Virginia)
NS-NY-0003-9000
Greene, David Allen (California)
NS-NY-0003-0005 | NS-NY-0003-9000
Owens, David Benjamin (New York)
NS-NY-0003-9000
Steger, Michael Douglas (New York)
NS-NY-0003-9000
Steinman, Linda Jane (New York)
NS-NY-0003-9000

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