This is the first U.S. District Court to rule on the National Security Agency's ("NSA") so-called "Bulk Telephony Metadata Program" under Section 501 of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), commonly referred to as Section 215 of the USA PATRIOT Act. Under the program, the NSA has apparently collected records from large telecommunication companies about virtually all domestic telephone calls. These records, termed "telephony metadata," include the phone numbers placed and received; the date, time and duration of calls; some location identifiers; and calling card numbers. The records, however, allegedly do not include the parties' names, addresses or financial information or the call's content.
On June 5, 2013, London's Guardian newspaper reported about the NSA's surveillance efforts based on a classified document leaked by former NSA contractor Edward Snowden. Following the leak, the U.S. government admitted that it has for a number of years collected, compiled, and analyzed telephony metadata, as business records, from certain telecommunication companies.
The following day, on June 6, 2013, individual subscribers of Verizon Wireless, filed a lawsuit in the U.S. District Court for the District of Columbia against the NSA, claiming that the NSA's program exceeded statutory authority under FISA and violated the First and Fourth Amendments. The plaintiffs, among other things, sought an injunction to stop the collection of their individual phone records and also an order requiring the disposal of any records previously collected about them.
On December 16, 2013, U.S. District Judge Richard Leon granted in part the plaintiffs' motion for a preliminary injunction. 957 F. Supp. 2d 43. While Judge Leon found that the plaintiffs lacked standing to proceed with their allegations that the NSA exceeded its authority under FISA, he said that this finding did not preclude consideration of the plaintiffs' constitutional claims. Therefore, he analyzed whether the NSA violated the plaintiffs' "reasonable expectation of privacy," protected by the Fourth Amendment, when it collected and queried their telephone metadata records, without probable cause or reasonable suspicion of wrongdoing.
Judge Leon held that the NSA's Bulk Telephony Metadata Program likely violates the Fourth Amendment to the Constitution, as an "indiscriminate and arbitrary" invasion of citizens' reasonable expectation of privacy. Judge Leon was troubled by a number of issues in the case, including the close and apparently unsupervised relationship between the NSA and telephone companies, as well as the apparent ineffectiveness of the program.
The court ruled that the Supreme Court precedent Smith v. Maryland, 442 U.S. 735 (1979), which established that phone metadata is not subject to the Fourth Amendment, was distinguishable. For Judge Leon, the 34-year-old precedent was distinguishable, given modern surveillance capabilities, the evolving role of phones and technologies in the digital age, namely cell phones, and the telecommunication companies' daily dump of bulk metadata records to government.
Although Judge Leon ruled in the plaintiffs' favor, he stayed his order to allow the government time to appeal, in light of the significant national security interests at stake and the novelty of the constitutional issues. The federal government appealed the district court's decision to the District of Columbia U.S. Court of Appeals on January 9, 2014.
Under a "sunset" clause, the relevant section of the U.S. Code amended by Section 215 was scheduled to revert to its pre-2001 form on June 1, 2015 unless Congress acted. See Pub.L. No. 109-177, § 102(b)(1), 120 Stat. 192, 194-95 (2006); Pub. L. No. 112-14, § 2(a), 125 Stat. 216, 216 (2011). That date came and went without any legislative action. One day after the deadline, however, Congress enacted the USA Freedom Act, which revived the language added by Section 215 with some substantial changes, eliminating the government's holding of the bulk telephony metadata and presumably mooting (or substantially altering) this case. See Pub. L. No. 114-23, Tit. I, 129 Stat. 268, 269-77 (2015), codified at 50 U.S.C. § 1861. The Act's changes do not take effect until 180 days after the date of enactment--November 29, 2015. Id. § 109(a), 129 Stat. at 276.
On August 28, 2015, the Court of Appeals reversed and remanded for further proceedings. There was no opinion for the court. The judgment was announced in a per curiam order, which explained why the case was not moot notwithstanding the significant statutory alterations ordered in June 2015--which had not yet taken effect. Judge Janice Rogers Brown wrote an opinion setting out her view that the plaintiffs had "barely" fulfilled the requirements for standing--and might be able to bolster that showing on remand. She did not agree with the district court, however, that a preliminary injunction was appropriate because the plaintiffs had not established a sufficient likelihood of prevailing in the case as a whole. Judge Stephen Williams emphasized that the government had acknowledged bulk collection from Verizon Business Network Services, whereas the plaintiffs were subscribers to Verizon Wireless. Accordingly, they lack direct evidence that information about their calls was ever collected--and therefore lacked standing. Judge David Sentelle dissented; he explained that would have dismissed the case outright.
The case accordingly continues in district court. Judge Leon explained that he interpreted the remand as asking him to determine whether limited discovery is appropriate to satisfy the standing requirements set forth in Clapper v. Amnesty Int'l, 133 S.Ct. 1138 (2013). On remand, on Sept. 8, 2015, plaintiffs sought leave to file a Fourth Amended Complaint, adding additional plaintiffs who were subscribers to Verizon Business Network Services, not just Verizon Wireless. At a Sept. 16, 2015 hearing, Judge Leon granted the motion (which was uncontested). A few days later, plaintiffs filed a renewed motion for preliminary injunction, seeking to enjoin the bulk telephony metadata program, which had not yet expired. A hearing was held on October 8, 2015. On November 9, 2015, Judge Leon decided that the new plaintiffs in the case had made a sufficient showing of standing, and were entitled to a preliminary injunction. The court granted an injunction against continued collection and querying of the telephone record metadata for the new plaintiffs, only. Even though the telephony metadata program was scheduled to expire and be replaced by a significantly different program later that month, the court declined to stay its order.
The government immediately sought a stay from the Court of Appeals, which in a per curiam order (Tatel, Griffith, Millett) granted a limited stay on 11/10/2015 "to consider the merits of the motion for a stay." The court required briefing on the stay motion to be completed by 11/16/2015. That day, the panel granted a stay; the D.C. Circuit denied rehearing on banc on November 20, with a concurrence by Judge Brett Kavanaugh staying his view that the metadata program was consistent with the Fourth Amendment.
On February 11, 2016, the plaintiffs filed their third amended complaint in which they reasserted their constitutional claims under the First, Fourth, and Fifth Amendments. The defendants responded on February 19, with a motion to quash service on the Director of the NSA and a motion to dismiss the individual federal defendants who were being sued while serving in their official capacities.
On May 30, Judge Leon filed an order to stay the case pending final disposition of the defendants’ appeal of the District Court’s preliminary injunction. Less than a week later, the plaintiffs filed a motion to lift the stay.
The stay was lifted on September 20, 2016. On that day, Judge Leon granted the defendants’ motion to quash and motion to dismiss the individual federal defendants; the complaint is now dismissed as to those parties.Michael Mirdamadi - 04/01/2014
Megan Brown - 10/02/2016