MEMORANDUM OPINION
RICHARD J. LEON, United States District Judge.
Our Circuit Court has remanded this case for me to determine whether limited discovery is appropriate to satisfy the standing requirements set forth by the Supreme Court in an earlier national security surveillance case: Clapper v. Amnesty International USA, ___ U.S. ___, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). Although familiarity with the record and my prior opinion on December 16, 2013
On November 18, 2013, I held a hearing on a motion filed by plaintiffs Larry Klayman, Charles Strange, and Mary Ann Strange to preliminarily enjoin the National Security Agency ("NSA") from collecting and querying their telephony metadata pursuant to the NSA's classified bulk telephony metadata collection program (the "Bulk Telephony Metadata Program" or the "Program"), under which the NSA indiscriminately collects the telephone call records of millions of Americans. Four weeks later, on December 16, 2013, I issued a lengthy opinion ("my December 2013 Opinion") granting the motion as to plaintiffs Larry Klayman and Charles Strange after finding that they had demonstrated a substantial likelihood of success on their Fourth Amendment claim that the
As it pertains to this Opinion, the USA FREEDOM Act specifically prohibits the bulk collection of telephony metadata, but not until November 29, 2015. During the intervening 180-day period, the NSA is continuing to operate the Bulk Telephony Metadata Program while it transitions to a new, more targeted program whereby the NSA, pursuant to authorization by the Foreign Intelligence Surveillance Court ("FISC"), can require telecommunications service providers to run targeted queries against their customers' telephony metadata records and then produce the results of those queries to the NSA. Thus, when our Circuit Court issued its decision on August 28, 2015 vacating my preliminary injunction for a lack of standing and remanding the case to this Court for further proceedings consistent therewith, nearly half of the 180-day transition period had already lapsed.
As a consequence, I immediately scheduled a status conference for the following week to discuss with the parties how to proceed, if at all, prior to the mandate issuing from the Court of Appeals.
After careful consideration of the parties' pleadings, the representations made at the October 8, 2015 motion hearing, and the applicable law, I have concluded that limited discovery is not necessary since several of the plaintiffs now are likely to have standing to challenge the constitutionality of the Bulk Metadata Collection Program, and those that do have standing are entitled to preliminary injunctive relief. Accordingly, the Court will GRANT, in part, plaintiffs' Renewed Motion for Preliminary Injunction as it pertains to plaintiffs J.J. Little and J.J. Little & Associates and ENJOIN the future collection and querying of their telephone record metadata.
BACKGROUND
A brief overview of the statutory framework and procedural posture, focusing on developments since my last Opinion in this case, may be a helpful place to start.
A. Statutory Framework
1. The Section 215 Bulk Telephony Metadata Program
Beginning in 1998, the Foreign Intelligence Surveillance Act ("FISA") permitted the FBI to merely 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 of "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." Intelligence Authorization Act for Fiscal Year 1999, Pub. L. 105-272, § 602, 112 Stat. 2396, 2410 (1998). Following the September 11, 2001 terrorist attacks, however, Congress expanded this "business records" provision under Section 215 of the USA PATRIOT Act, to authorize the FBI to apply "for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 501, 115 Stat. 272, 287 (2001) (codified as amended at 50 U.S.C. § 1861(a)(1)). Thereafter, in March 2006, Congress strengthened the protections in Section 215, amending the statute to provide that the FBI's application must include "a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation... to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, § 106(b), 120 Stat. 192, 196 (2006) (codified as amended at 50 U.S.C. § 1861(b)(2)(A)).
Although the daily bulk collection, storage, and analysis of telephony metadata is not expressly authorized by the terms of Section 215, beginning in May 2006, the Government, advocating a very aggressive reading of Section 215, sought and received FISC authorization to operate the Bulk Telephony Metadata Program, which, of course, consists of these very practices.
Shortly after my December 2013 Opinion, however, President Obama issued an order requiring several important changes to the manner in which these searches are authorized and conducted. See President Barack Obama, Remarks by the President on Review of Signals Intelligence (Jan. 17, 2014), https://www.whitehouse.gov/the-pressoffice/2014/01/17/remarks-president-review-signals-intelligence; Potter Decl. ¶¶ 5-7. As initially authorized by the FISC, NSA intelligence analysists could conduct searches in the database without prior judicial authorization.
2. The USA FREEDOM Act
Reacting to significant public outcry regarding the existence of the Bulk Telephony Metadata Program, President Obama called upon Congress to replace the Program with one that would "give the public greater confidence that their privacy is appropriately protected," while maintaining the intelligence tools needed "to keep us safe." President Barack Obama, Statement by the President on the Section 215 Bulk Metadata Program (Mar. 27, 2014), http://www.whitehouse.gov/the-pressoffice/2014/03/27/statement-president-section-215-bulk-metadata-program. In response to this directive, Congress ultimately enacted the USA FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (2015) ("USA FREEDOM Act"), on June 2, 2015. Relevant to this Opinion, the USA FREEDOM Act expressly prohibits the Government from obtaining telephony metadata in bulk, but not until November 29, 2015. USA FREEDOM Act §§ 103, 109; see Potter Decl. ¶ 11. It seems that the NSA requested this 180-day delay to allow time to transition from the Bulk Telephony Metadata Program to a new replacement program Congress conceived — a model whereby targeted queries will be carried out against metadata held by telecommunications service providers and the resulting data subsequently produced to the Government. See id. § 101. As the Government has explained, this 180-day transition period will avoid a so-called "intelligence gap" that would follow if the current Program terminated before the new targeted metadata querying program is fully operational. Gov't's Opp'n 34; see 161 Cong. Rec. S3275 (daily ed. May 22, 2015) (statement of Sen. Leahy) (having printed in the record a letter from the NSA which stated: "NSA assesses that the transition of the program to a query at the provider model is achievable within 180 days, with provider cooperation.... [W]e will work with the companies that are expected to be subject to Orders under the law by providing them the technical details, guidance, and compensation to create a fully operational query at the provider model"). To date, however, the Government has failed to identify any concrete consequences that would likely result from this so-called "intelligence gap." And while Congress refrained for obvious political reasons from expressly authorizing a six-month extension of the Bulk Telephony Metadata Program,
B. Procedural Posture
I first had occasion to address plaintiffs' constitutional challenges to the Program in December 2013, when I enjoined the Government from further collecting plaintiffs' call records under the Program. Klayman v. Obama, 957 F.Supp.2d 1, 44-45 (D.D.C.2013) (Leon, J.). I concluded, in so ruling, that plaintiffs Klayman and Charles Strange likely had standing to challenge both the bulk collection of metadata under the Program and the ensuing analysis of that data through the NSA's electronic querying process.
As stated previously, our Circuit Court did not do so. Moreover, when it finally issued its decision on August 28, 2015, it did so with considerable brevity. In three separate opinions, the Circuit Court vacated my preliminary injunction on the ground that plaintiffs, as subscribers of
Not surprisingly, plaintiffs moved for, and quickly obtained, leave to file a Fourth Amended Complaint. See Sept. 16, 2015 Min. Entry. This latest iteration of the Complaint alters plaintiffs' contentions in two material respects. First, it adds plaintiffs J.J. Little and his law firm, J.J. Little & Associates, P.C., both of which are, and at "all material times" were, VBNS subscribers. Fourth Am. Compl. ¶ 18.
On September 21, 2015, plaintiffs filed a renewed motion for a preliminary injunction, seeking relief, once again, from the "warrantless surveillance" of their telephone calls. See Plaintiffs' Renewed Mot. for Prelim. Inj. & Req. for Oral Arg. Thereon [Dkt. #149]. Government defendants, of course, opposed, see Government Defendants' Opposition to Plaintiffs' Renewed Motion for a Preliminary Injunction [Dkt. #150] ("Gov't's Opp'n"), and plaintiffs quickly lodged their reply, see Plaintiffs' Reply in Support of their Renewed Motion for Preliminary Injunction [Dkt. #152]. On October 6, 2015, our Circuit Court granted plaintiffs' unopposed request for expedited issuance of the mandate, Order, Obama v. Klayman, No. 14-5004 (D.C.Cir. Oct. 6, 2015), thereby reinstating this Court's jurisdiction to decide plaintiffs' renewed motion, see Mandate [Dkt. #154]. I took plaintiffs' motion under advisement at the conclusion of oral argument on October 8, 2015.
ANALYSIS
I will confine my analysis to the merits of plaintiffs' request for a preliminary
A. Plaintiffs Have Shown a Substantial Likelihood of Success on the Merits.
My analysis of plaintiffs' likelihood of success on the merits of their constitutional claims focuses exclusively on their Fourth Amendment challenges, which I find most likely to succeed.
1. Plaintiffs are Substantially Likely to Have Standing to Challenge the Bulk Telephony Metadata Program.
Plaintiffs Larry Klayman, Charles Strange, Mary Ann Strange, J.J. Little, and J.J. Little & Associates, P.C. challenge the past and future collection of their telephone metadata, as well as the analysis of that data through the NSA's electronic querying process. After careful consideration of these challenges, I conclude that while plaintiffs J.J. Little and J.J. Little & Associates, P.C. have standing to proceed, plaintiffs Larry Klayman, Charles Strange, and Mary Ann Strange do not.
No principle is more fundamental to the balance of federal power than the "constitutional limitation of federal-court jurisdiction to actual cases or controversies." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (internal quotation marks omitted). Inherent in this principle is the requirement that each plaintiff demonstrate adequate standing to press their claims in federal court. Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). "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 ("Clapper"), ___ U.S. ___, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) (quoting Monsanto Co. v. Geerston Seed Farms, 561 U.S. 139, 149, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010)); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 & n. 1, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("By particularized, we mean that the injury must affect the plaintiff in a personal and individual way."). When the challenged harm is prospective, courts face the additional hurdle of assuring themselves that its likelihood is not too far flung, lest imminence, "a somewhat elastic concept... be stretched beyond its purpose" to create a controversy where none exists. Lujan, 504 U.S. at 564 n. 2, 112 S.Ct. 2130. Consequently, the "threatened injury must be certainly impending" to prevent litigation of illusory claims. See Clapper, 133 S.Ct. at 1147 (internal quotation marks omitted).
Any discussion of standing to challenge a classified Government surveillance program must begin with the seminal case on this issue: Clapper v. Amnesty International. Clapper concerned a challenge by Amnesty International to Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1881a, which authorizes the Government to surveil non-United States persons reasonably believed to be located outside the United States. 133 S.Ct. at 1142. There, plaintiffs, "United States persons whose work... requires them to engage in sensitive international communications with individuals who they believe are likely targets of surveillance under § 1881a," sought declaratory and injunctive relief from surveillance under the statute. Id. The issue before the Supreme Court was whether plaintiffs had standing to seek prospective relief. They did not. According to the Supreme Court, plaintiffs' claims failed because their allegations rested on a series of contingencies that may — or may not — come to pass. Specifically, success required: that plaintiffs' foreign contacts would be targeted for surveillance under the challenged statute; that the FISC would approve the surveillance; that the government would actually intercept communications from plaintiffs' foreign contacts;
On appeal here, our Circuit Court found that plaintiffs Klayman and Charles Strange's alleged injuries were too attenuated to constitute "concrete and particularized injury" as required by Clapper. See Klayman, 800 F.3d at 562 (Brown, J.) (internal quotation marks omitted). According to all three of our Circuit Judges, because plaintiffs had adduced no proof that "their own metadata was collected by the government" under the Program, they had not demonstrated a substantial likelihood of standing to pursue their claims. Id. at 562-63 (Brown, J.); see also id. at 565 (Williams, J.) ("[P]laintiffs lack direct evidence that records involving their calls have actually been collected."); id. at 569 (Sentelle, J., dissenting in part) ("[P]laintiffs never in any fashion demonstrate that the government is or has been collecting such records from their telecommunications provider."). Fortunately for plaintiffs, our Circuit's holding did not sound the death knell for their cause.
On September 16, 2015, plaintiffs Larry Klayman, Charles Strange, and Mary Ann Strange filed an uncontested Fourth Amended Complaint, joining as plaintiffs to the action VBNS subscribers J.J. Little and J.J. Little & Associates. See Fourth Am. Compl. Separately, and in an attempt to bolster their standing as Verizon Wireless subscribers, plaintiffs appended to their Complaint a document they claim shows that Verizon Wireless was "at all material times" participating in the Program. See Fourth Am. Compl. ¶ 47. I will begin by addressing plaintiffs' renewed arguments that Verizon Wireless was, and continues to be, a participant in the Program before turning to the merits of plaintiffs' alternative argument that the Little plaintiffs have standing to proceed.
Unfortunately for plaintiffs Klayman and Strange, I must conclude, in light of our Circuit's ruling in this case, that they have not adequately substantiated their injuries on remand. Plaintiffs appended
Quite the opposite, however, is true for the Little plaintiffs. The "irreducible constitutional minimum of standing" requires that plaintiffs "must have suffered an `injury in fact' — an invasion of a legally protected interest which is ... concrete and particularized." Lujan, 504 U.S. at 560, 112 S.Ct. 2130. According to our Circuit Court, this demands evidence that "the [P]rogram targets plaintiffs." See Klayman, 800 F.3d at 567 (Williams, J.); see also id. at 563 (Brown, J.) (declining to find standing because "the facts marshaled by plaintiffs do not fully establish that their own metadata was ever collected"). The Little plaintiffs emphatically meet this hurdle. They aver in their Fourth Amended Complaint that "Little, for himself and by and through his law firm, J.J. Little & Associates, has been and continues to be a subscriber of Verizon Business Network Services for his firm J.J. Little & Associates, P.C." Fourth Am. Compl. ¶ 18. Their subscription has, moreover, been "continuous[]" since October 2011. Suppl. Decl. of J.J. Little ¶ 2 [Dkt. #152-1].
Given the strong presumption that the NSA collected, and warehoused, the Little plaintiffs' data within the past five years, these plaintiffs unquestionably have standing to enjoin any future queries of that metadata. The Government protests that there is "no evidence that the NSA has accessed records of [plaintiffs'] calls as a result of queries made under the `reasonable, articulable suspicion' standard or otherwise." Gov't's Opp'n 20. To them, it is pure "conjecture" that "records of Plaintiffs' calls have been" or "will be" reviewed "during the remaining two months of the Section 215 program." Gov't's Opp'n 20. I wholeheartedly disagree. As I explained in my December 2013 Opinion, every single time the NSA runs a query to, for example, "detect foreign identifiers associated with a foreign terrorist organization calling into the U.S.," it must "analyze metadata for every phone number in the database by comparing the foreign target number against all of the stored call records to determine which U.S. phones, if any, have interacted with the target number." Klayman, 957 F.Supp.2d at 28 (internal quotation marks omitted). The Second Circuit, not surprisingly, completely agrees. There, a court tasked with a substantially similar inquiry opined that the NSA "necessarily searches [plaintiffs'] records electronically, even if such a search does not return [their] records for close review by a human agent." See ACLU, 785 F.3d at 802. As the Second Circuit also points out, computerized searches "might lessen the intrusion," but they do not obviate it altogether. Id. A search remains a search regardless of how it is effectuated. If the Program is unlawful — and for the reasons discussed herein I believe it is substantially likely that it is — plaintiffs have suffered a concrete harm traceable to the challenged Program and redressable by a favorable ruling. For that reason, I find that the Little plaintiffs have "standing to object to the collection and review of their data."
Whether the Little plaintiffs have standing to challenge the future collection of their telephone metadata requires a separate analysis. The Government contends that the Little plaintiffs lack such standing because "there is no evidence before the Court that VBNS is currently a participating provider in the [Program]." Gov't's Opp'n 19. To them, "[a]n assumption that the NSA `must be' collecting bulk telephony metadata from VBNS today because it did so for a three-month period in 2013 is precisely the sort of inference that the D.C. Circuit held in Klayman falls short of the certainty required under [Clapper] to establish a plaintiff's standing in a case of this nature." Gov't's Opp'n 19. The Government's argument misconstrues what is required to establish standing in a case such as this. As I indicated supra, Clapper does not render Article III the enemy
Indeed, common sense leads to that precise conclusion here. To start, I need not speculate that the Government continues to operate this Program. It has acknowledged as much. Potter Decl. ¶ 14. Proof that the Government has collected VBNS subscribers' metadata is, moreover, persuasive evidence that the threat of ongoing collection is not "chimerical." See Susan B. Anthony List v. Driehaus, ___ U.S. ___, 134 S.Ct. 2334, 2345, 189 L.Ed.2d 246 (2014) (quoting Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1973)). While the Government has not admitted that it continues to collect VBNS subscriber call records, its avowed need to combat terrorism makes it overwhelmingly likely that it does. According to Bryan Paarmann, Deputy Assistant Director of the Counterterrorism Division in the National Security Branch of the FBI, "[t]he threat environment confronting the United States has evolved" since this Court last opined. Paarmann Decl. ¶ 5 [Dkt. #150-6]. "Over the past two years the United States has confronted, and is still confronting, an increasing threat of attacks by individuals who act in relative isolation or in small groups." Id. This "increasingly diffuse threat environment" demands, under the FBI's logic, increased vigilance. See Paarmann Decl. 9; see also id. ¶ 11 ("[T]he current terrorist threat environment underscores the significance of this key ["contact chaining"] capability under the bulk telephony metadata program.").
The Government's position that VBNS may no longer be a participant in the Program is fundamentally at odds with its ever-escalating concerns of terrorist threats. By the Government's own admission, it is marshaling all available investigative tools to combat a threat it believes to be least as menacing as it was in 2013. See Paarmann Decl. ¶ 9. It defies common sense for defendants to argue, as they apparently do, that the Government has chosen to omit from this breathtakingly broad metadata collection Program a provider that the Government surveilled in the past and that, presumably, has the infrastructure to continue assisting in that surveillance. In fact, it would make no sense whatsoever for the Government to use all available tools except VBNS
2. Plaintiffs are Likely to Succeed on the Merits of Their Fourth Amendment Claim.
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 when "the government violates a subjective expectation of privacy that society recognizes as reasonable." Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). In my December 2013 Opinion, I explained at length why both the indiscriminate bulk collection of telephony metadata and the analysis of that data each separately constitute a search within the meaning of the Fourth Amendment. Klayman, 957 F.Supp.2d at 30-37. Neither the recent changes in the operation of the Program, nor the passage of the USA FREEDOM Act, has done anything to alter this analysis. The fact remains that the indiscriminate, daily bulk collection, long-term retention, and analysis of telephony metadata almost certainly violates a person's reasonable expectation of privacy.
Therefore, whether plaintiffs are entitled to preliminary injunctive relief at this stage turns on whether those searches are likely to be unreasonable, in light of intervening changes in the law. See Kyllo, 533 U.S. at 31, 121 S.Ct. 2038 (whether a search has occurred is an "antecedent question" to whether a search was reasonable). Notwithstanding the Government's strong protestations, I conclude that plaintiffs will likely succeed in showing that the searches during this 180-day transition period still fail to pass constitutional muster.
a. Plaintiffs Will Likely Prove that the Searches Are Unreasonable.
The Fourth Amendment prohibits unreasonable searches. See Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). Whether a search is reasonable depends on the totality of the circumstances. Id. Typically, searches not conducted pursuant to a warrant based on the requisite showing of probable cause are "per se unreasonable." Nat'l Fed'n of Fed. Emps.-IAM v. Vilsack, 681 F.3d 483, 488-89 (D.C.Cir.2012) (quoting City of Ontario v. Quon, 560 U.S. 746, 760, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010)). The Supreme Court, however,
In my December 2013 Opinion, I held that the NSA's Bulk Telephony Metadata Program likely violated the Fourth Amendment because "plaintiffs [had] a substantial likelihood of showing that their privacy interests outweigh[ed] the Government's interest in collecting and analyzing bulk telephony metadata." Klayman, 957 F.Supp.2d at 41. In opposition to plaintiffs' renewed motion for preliminary injunction, the Government argues that several developments since December 2013 have altered the special needs analysis such that plaintiffs are no longer likely to prevail. Gov't's Opp'n 33. For the following reasons, I do not agree.
i. Nature of the Privacy Interest
My analysis of the reasonableness of the searches at issue in this case begins with the nature of the privacy interest at stake. As I explained at length in my December 2013 Opinion, plaintiffs have a very significant expectation of privacy in an aggregated collection of their telephony metadata. See Klayman, 957 F.Supp.2d at 32-37. When a person's metadata is aggregated over time, in this case five years, it can be analyzed to reveal "embedded patterns and relationships, including personal details, habits, and behaviors." Decl. of Prof. Edward W. Felten ¶¶ 24, 38-58 [Dkt. #22-1]. Recognizing that certain factors may diminish a person's otherwise robust privacy expectations, see Willner v. Thornburgh, 928 F.2d 1185, 1188 (D.C.Cir. 1991) ("[E]ven a current employee's `expectation of `privacy,' while `reasonable' enough to make urine testing a Fourth Amendment `search,' can be so `diminished' that the search is not `unreasonable.'"), I consider this intrusion in the context of Americans' evolving interactions with mobile technology. Indeed, as of this year, 92 percent of American adults own a cellphone, 67 percent of whom own a so-called "smartphone" that enables them to, among other things, connect to the Internet. Lee Rainie & Kathryn Zickuhr, Americans' Views on Mobile Etiquette, Chapter 1: Always on Connectivity, Pew Research Center (Aug. 26, 2015), http://www.pewintemet.org/2015/08/26/chapter-1-always-on-connectivity/#fn-14328-1. Those who own such phones "often treat them like body appendages," as nine-in-ten cellphone owners carry their phones with them "frequently." Id. Smartphones, moreover, are not used merely for their basic communications functions, but rather "to help [owners] navigate numerous important life events," including for the sensitive purposes of online banking and researching health conditions. Aaron Smith, U.S. Smartphone Use in 2015, Pew Research Center (Apr. 1, 2015), http://www.pewintemet.org/2015/04/01/us-smartphone-use-in-2015/. The Government
Furthermore, the attitude with which cellphone users approach their devices presents a dramatically different context than the contexts in which courts have upheld "special needs" searches. Specifically, cellular phone technology does not present the same diminished expectation of privacy that typically characterizes "special needs" incursions. Take, for example, airports. In the context of air travel, courts have recognized that "society has long accepted a heightened level of security and privacy intrusion with regard to air travel." Cassidy v. Chertoff, 471 F.3d 67, 76 (2d Cir.2006). Notably, Americans know that airports are discrete areas in which certain rights otherwise enjoyed are forfeited. See id. It is their choice to enter that space and, in so doing, to check certain rights at the door. Not so with cellphones. As already described, cellphones have become a constant presence in people's lives. While plaintiffs' privacy interests in their aggregated metadata may be somewhat diminished by the fact that it is held by third-party service providers, this is a necessary reality if one is to use a cellphone at all, and it is, therefore, simply not analogous to the context of voluntarily entering an airport. In this case, plaintiffs have asserted that the NSA's searches were a substantial intrusion on their privacy, and I have no reason to doubt that, nor to find that their privacy expectations should have been diminished given the context. Rather, I conclude that plaintiffs' privacy interests are robust.
ii. Character and Degree of Governmental Intrusion
Turning next to the character and degree of the Government's intrusion on plaintiffs' privacy interest, the Government avers that "[a]t this stage, the [P]rogram's potential for intrusion on Plaintiffs' privacy interests is minimal, and finite." Gov't's Opp'n 37. The Government first notes that the Program will no longer continue indefinitely but will end on November 29, 2015; therefore, any infringement is necessarily limited in duration. Id. The Government next emphasizes that the new restrictions on queries — including that FISC authorization is now required before a query is conducted and that query results are now limited to "two hops" — significantly diminish the likelihood that plaintiffs' data will actually be reviewed. Id. Although I agree with the Second Circuit that there is now "a lesser intrusion on [plaintiffs'] privacy than they faced at the time this litigation began," ACLU, 785 F.3d at 826, I simply cannot agree with the Government's characterization of it as "minimal, and finite."
When considering whether a search is minimally or substantially intrusive, courts evaluate a variety of factors, including, inter alia, "the duration of the search or stop, the manner in which government agents determine which individual to search, the notice given to individuals that they are subject to search and the opportunity to avoid the search ... as well as the methods employed in the search." Cassidy, 471 F.3d at 78-79 (citations omitted); see also Willner, 928 F.2d at 1189-90 (discussing as mitigating factors whether the person had "notice of an impending intrusion" and had a "large measure of control over whether he or she will be subject to" the search).
To say the least, the searches in this case lack most of these hallmarks of minimal
Furthermore, although the intrusion plaintiffs now face may be "finite" in duration, it is certainly not "short." It is telling indeed that the searches and seizures upheld under the "special needs" doctrine have generally involved searches of significantly limited duration. See, e.g., Martinez-Fuerte, 428 U.S. at 546-47, 96 S.Ct. 3074 (upholding warrantless stops at a vehicle checkpoint where the average length of the stop was three to five minutes). In contrast, under this Program, the NSA collects data on a daily basis and maintains the metadata gathered from those daily searches for five years. Moreover, though the weeks remaining in the Program may seem relatively short given that the previous timeframe was indefinite, this reduced period still significantly dwarfs the duration of the intrusion in all "special needs" cases of which this Court is aware. With respect to the institution of new procedures for authorizing database queries and the new limitations on the extent of the records returned for review, while these new methods of searching may further mitigate the privacy intrusion that occurs when the NSA queries and analyzes metadata, there continues to be no minimization procedures applicable at the collection stage. See Oct. 11, 2013 Primary Order at 3-4 (requiring the Order's recipients
Finally, far from Americans being put on notice of the Bulk Telephony Metadata Program such that they could choose to avoid it, the Program was, and continues to be, shrouded in secrecy. This may, of course, be practically necessary for the Program to be effective, but it nevertheless increases the level of the privacy intrusion. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 657, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (analogizing students who choose to participate in athletics to "adults who choose to participate in closely regulated industry"); Von Raab, 489 U.S. at 675 n. 3, 109 S.Ct. 1384 ("When the risk is the jeopardy to hundreds of human lives ... that danger alone meets the test of reasonableness, so long as the search is conducted ... with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air.") (internal quotation marks omitted); see also Willner, 928 F.2d at 1190 ("[T]he applicant's knowledge of what will be required, and when, affects the strength of his or her interest."). In sum, despite changes to the Program, the Government is still, in effect, asking this Court to sanction a dragnet of unparalleled proportions.
iii. Nature of Government's Interest and Efficacy
Having found that the first two factors militate in plaintiffs' favor, I must finally consider whether the nature of the Government's interest and the efficacy of the Program in meeting its goals are, nevertheless, substantial enough to tip the balance in the Government's favor. As I stated in my December 2013 Opinion, I agree with the Government that the purpose of "identifying unknown terrorist operatives and preventing terrorist attacks" is an interest of the highest order that goes beyond regular law enforcement needs. Klayman, 957 F.Supp.2d at 39 (internal quotation marks omitted). More specifically, though, I found that the Government's true interest was in identifying and investigating imminent threats faster than would be otherwise possible.
But even if it had, proffering a significant special need is not the end of this Court's inquiry. See City of Indianapolis v. Edmond, 531 U.S. 32, 42, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) ("[T]he gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose."). Rather, I must also evaluate the efficacy of the searches at issue in meeting this need. See Cassidy, 471 F.3d at 85-86. To date, the Government has still not cited a single instance in which telephone metadata analysis actually stopped an imminent attack, or otherwise aided the, Government in achieving any time-sensitive objective.
Nevertheless, instead of providing this Court with specific examples of the Program's success, the Government makes the bootstrap argument that the enactment of the USA FREEDOM Act confirms the importance of this Program to meeting the Government's special needs, Gov't's Opp'n 34, and suggests that this Court should defer to that judgment, see id. at 35 n. 24. Please! I recognize that my duty to evaluate the efficacy of this Program is "not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger." See Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 453, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). Nonetheless, while "the choice among such reasonable alternatives remains with the governmental officials," id. at 453-54, 110 S.Ct. 2481, I must still determine whether the Program is reasonably effective in accomplishing its goals, even if not optimally so, see Cassidy, 471 F.3d at 85-86 (noting that a court's task is not to determine whether a particular program is "optimally effective, but whether it [is] reasonably so"). This is a conclusion I simply cannot reach given the continuing lack of evidence that the Program has ever actually been successful as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism. Accordingly, having determined that the Government has proffered
In conclusion, I find that plaintiffs are substantially likely to demonstrate that they have a robust privacy interest in their aggregated metadata and that the intrusion thereon by the Bulk Telephony Metadata Program is substantial. Against these factors, which weigh heavily in plaintiffs' favor, I further find that, although the Government has proffered a compelling "special need" of quickly identifying and investigating potential terror threats, plaintiffs will likely be able to show that the Program is not reasonably effective at meeting this need. Therefore, plaintiffs will likely succeed in showing that the Program is indeed an unreasonable search under the Fourth Amendment.
B. Plaintiffs Will Suffer Irreparable Harm Absent Injunctive Relief.
As I have discussed at length, plaintiffs have demonstrated that they are substantially likely to succeed on their claim that the Government is actively violating the rights guaranteed to them by the Fourth Amendment. Because "[i]t 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)), the Little plaintiffs have adequately demonstrated irreparable injury. As such, it makes no difference that this violation now has a foreseeable end.
C. The Public Interest and Potential Injury to Other Interested Parties Both Weigh in Plaintiffs' Favor.
The final factors I must consider in weighing plaintiffs' entitlement to preliminary injunctive relief are the balance of the equities and the public interest. See Sottera, 627 F.3d at 893. As an initial matter, I emphasize the obvious: "enforcement of an unconstitutional law is always contrary to the public interest." Gordon v. Holder, 721 F.3d 638, 653 (D.C.Cir. 2013); see also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) ("[I]t is always in the public interest to prevent the violation of a party's constitutional rights." (internal quotation marks omitted)), aff'd sub nom. Burwell v. Hobby Lobby Stores, Inc., ___ U.S. ___, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014); Melendres
Undaunted, the Government argues that the public interest actually counsels against granting a preliminary injunction in this case because of the public's strong interest in maintaining an ability to quickly identify and investigate terrorist threats. See Gov't's Opp'n 45. Indeed, the Government goes one step further by arguing that United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001), requires this Court to defer to Congress's "determination" that continuing the Program during the 180-day transition period is the best way to protect the public's interest.
This Court's vigilance in upholding the Constitution against encroachment is, of course, especially strong in the context of the Fourth Amendment. Indeed, the Judiciary has long recognized that:
New Jersey v. T.L.O., 469 U.S. 325, 361-62, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (quoting Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting)). To be sure, the very purpose of the Fourth Amendment would be undermined were this Court to defer to Congress's determination that individual liberty should be sacrificed to better combat today's evil.
The Government concludes by discussing at length the negative impact an injunction in this case would have on the Program as a whole, including that the immediate cessation of collection of or analytic access to metadata associated with plaintiffs' telephone numbers, if ordered, would require the NSA to terminate the Program altogether. Gov't's Opp'n 41-45. This would be the case, the Government argues, for several reasons. First, the NSA would need to obtain information regarding plaintiffs' telephone numbers and would need to be granted FISC authorization to access the database for the purpose of complying with this Court's order. Gov't's Opp'n 41-42. Beyond these preliminary steps, it would take an undetermined amount of time to develop the technical means to comply with the Court's order, including figuring out how to ensure no new metadata relating to plaintiffs' records is added to the database and how to discontinue analytic access to any metadata relating to plaintiffs' records that is currently in the database. Gov't's Opp'n 43-44. Unfortunately for the Government, this Court does not have much sympathy for these last minute arguments. The Government was given unequivocal notice that it may be required to undertake steps of this nature in my December 2013 Opinion granting plaintiffs' request for a preliminary injunction. Indeed, I expressly warned against any future request for delay stating, "I fully expect that during the appellate process, which will consume at least the next six months, the Government will take whatever steps necessary to prepare itself to comply with this order when, and if, it is upheld." Klayman, 957 F.Supp.2d at 44. Given that I significantly under-estimated the duration of the appellate process, the Government has now had over twenty-two months to develop the technology necessary to comply with this Court's order. To say the least, it is difficult to give meaningful weight to a risk of harm created, in significant part, by the Government's own recalcitrance.
CONCLUSION
With the Government's authority to operate the Bulk Telephony Metadata Program quickly coming to an end, this case is perhaps the last chapter in the Judiciary's evaluation of this particular Program's compatibility with the Constitution. It will not, however, be the last chapter in the ongoing struggle to balance privacy rights and national security interests under our Constitution in an age of evolving technological wizardry. Although this Court appreciates the zealousness with which the
Thus, for all the reasons stated herein, I will grant plaintiffs J.J. Little and J.J. Little & Associates' requests for an injunction
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