Documents
Government Response to ACLU Motion
July 28, 2015
Case 14-42, Document 200, 07/27/2015, 1563150, Page1 of 27
14-42
United States Court of Appeals
FOR THE SECOND CIRCUIT
Docket No. 14-42
AMERICAN CIVIL LIBERTIES UNION; NEW YORK
CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES
UNION FOUNDATION; and NEW YORK CIVIL
LIBERTIES UNION FOUNDATION,
Plaintiffs-Appellants,
(caption continued on inside cover)
ON APPEAL
FROM THE U NITED S TATES D ISTRICT C OURT
FOR THE S OUTHERN D ISTRICT OF N EW Y ORK
COMBINED SUPPLEMENTAL BRIEF FOR APPELLEES
AND OPPOSITION TO MOTION FOR
PRELIMINARY INJUNCTION
BENJAMIN C. MIZER
Principal Deputy
Assistant Attorney General
DOUGLAS N. LETTER
H. THOMAS BYRON III
HENRY C. WHITAKER
Attorneys
Civil Division, Appellate Staff
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530
(202) 514-3180
PREET BHARARA,
United States Attorney for the
Southern District of New York
DAVID S. JONES
JOHN D. CLOPPER
BENJAMIN H. TORRANCE
Assistant United States
Attorneys
86 Chambers Street, 3rd Floor
New York, New York 10007
(212) 637-2739
Attorneys for Defendants-Appellees
Case 14-42, Document 200, 07/27/2015, 1563150, Page1 of 27
14-42
United States Court of Appeals
FOR THE SECOND CIRCUIT
Docket No. 14-42
AMERICAN CIVIL LIBERTIES UNION; NEW YORK
CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES
UNION FOUNDATION; and NEW YORK CIVIL
LIBERTIES UNION FOUNDATION,
Plaintiffs-Appellants,
(caption continued on inside cover)
ON APPEAL
FROM THE U NITED S TATES D ISTRICT C OURT
FOR THE S OUTHERN D ISTRICT OF N EW Y ORK
COMBINED SUPPLEMENTAL BRIEF FOR APPELLEES
AND OPPOSITION TO MOTION FOR
PRELIMINARY INJUNCTION
BENJAMIN C. MIZER
Principal Deputy
Assistant Attorney General
DOUGLAS N. LETTER
H. THOMAS BYRON III
HENRY C. WHITAKER
Attorneys
Civil Division, Appellate Staff
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530
(202) 514-3180
PREET BHARARA,
United States Attorney for the
Southern District of New York
DAVID S. JONES
JOHN D. CLOPPER
BENJAMIN H. TORRANCE
Assistant United States
Attorneys
86 Chambers Street, 3rd Floor
New York, New York 10007
(212) 637-2739
Attorneys for Defendants-Appellees
Case 14-42, Document 200, 07/27/2015, 1563150, Page2 of 27
—v.—
JAMES R. CLAPPER, in his official capacity as Director of
National Intelligence; MICHAEL S. ROGERS, in his official
capacity as Director of the National Security Agency and Chief
of the Central Security Service; LORETTA E. LYNCH, in her
official capacity as Attorney General of the United States;
ASHTON B. CARTER, in his official capacity as Secretary of
Defense; and JAMES B. COMEY, in his official capacity as
Director of the Federal Bureau of Investigation,
Defendants-Appellees.
Case 14-42, Document 200, 07/27/2015, 1563150, Page2 of 27
—v.—
JAMES R. CLAPPER, in his official capacity as Director of
National Intelligence; MICHAEL S. ROGERS, in his official
capacity as Director of the National Security Agency and Chief
of the Central Security Service; LORETTA E. LYNCH, in her
official capacity as Attorney General of the United States;
ASHTON B. CARTER, in his official capacity as Secretary of
Defense; and JAMES B. COMEY, in his official capacity as
Director of the Federal Bureau of Investigation,
Defendants-Appellees.
Case 14-42, Document 200, 07/27/2015, 1563150, Page3 of 27
TABLE OF CONTENTS
PAGE
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
POINT I— Congress Permitted the Section 215 Bulk
Telephony-Metadata Program to Continue
During a Six-Month Transition Period . . . . . . . 3
POINT II— Although Plaintiffs’ Claims Are Not
Currently Moot, the Court Should Respect
Congress’s Decision in the USA FREEDOM Act
to Permit the Section 215 Program to Continue
During the Transition Period . . . . . . . . . . . . . . 12
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Case 14-42, Document 200, 07/27/2015, 1563150, Page3 of 27
TABLE OF CONTENTS
PAGE
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
POINT I— Congress Permitted the Section 215 Bulk
Telephony-Metadata Program to Continue
During a Six-Month Transition Period . . . . . . . 3
POINT II— Although Plaintiffs’ Claims Are Not
Currently Moot, the Court Should Respect
Congress’s Decision in the USA FREEDOM Act
to Permit the Section 215 Program to Continue
During the Transition Period . . . . . . . . . . . . . . 12
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Case 14-42, Document 200, 07/27/2015, 1563150, Page4 of 27
ii
PAGE
TABLE OF AUTHORITIES
Cases:
Barnhart v. Sigmon Coal Co.,
534 U.S. 438 (2002) . . . . . . . . . . . . . . . . . . . . . . . . 10
Brown v. Plata,
131 S. Ct. 1910 (2011) . . . . . . . . . . . . . . . . . . . . . . 14
Burke v. Barnes,
479 U.S. 361 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 13
Clarke v. United States,
915 F.2d 699(D.C. Cir. 1990) . . . . . . . . . . . . . . . . 13
Clinton v. Goldsmith,
526 U.S. 529 (1999) . . . . . . . . . . . . . . . . . . . . . . . . 18
Corley v. United States,
556 U.S. 303 (2009) . . . . . . . . . . . . . . . . . . . . . . . . 10
Fendler v. U.S. Parole Comm’n,
774 F.2d 975 (9th Cir. 1985) . . . . . . . . . . . . . . . . 17
Grimes v. Commissioner of IRS,
82 F.3d 286 (9th Cir. 1996) . . . . . . . . . . . . . . . . . 16
Herring v. United States,
555 U.S. 135 (2009) . . . . . . . . . . . . . . . . . . . . . . . . 16
Holland v. Goord,
758 F.3d 215 (2d Cir. 2014) . . . . . . . . . . . . . . . . . 13
Case 14-42, Document 200, 07/27/2015, 1563150, Page4 of 27
ii
PAGE
TABLE OF AUTHORITIES
Cases:
Barnhart v. Sigmon Coal Co.,
534 U.S. 438 (2002) . . . . . . . . . . . . . . . . . . . . . . . . 10
Brown v. Plata,
131 S. Ct. 1910 (2011) . . . . . . . . . . . . . . . . . . . . . . 14
Burke v. Barnes,
479 U.S. 361 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 13
Clarke v. United States,
915 F.2d 699(D.C. Cir. 1990) . . . . . . . . . . . . . . . . 13
Clinton v. Goldsmith,
526 U.S. 529 (1999) . . . . . . . . . . . . . . . . . . . . . . . . 18
Corley v. United States,
556 U.S. 303 (2009) . . . . . . . . . . . . . . . . . . . . . . . . 10
Fendler v. U.S. Parole Comm’n,
774 F.2d 975 (9th Cir. 1985) . . . . . . . . . . . . . . . . 17
Grimes v. Commissioner of IRS,
82 F.3d 286 (9th Cir. 1996) . . . . . . . . . . . . . . . . . 16
Herring v. United States,
555 U.S. 135 (2009) . . . . . . . . . . . . . . . . . . . . . . . . 16
Holland v. Goord,
758 F.3d 215 (2d Cir. 2014) . . . . . . . . . . . . . . . . . 13
Case 14-42, Document 200, 07/27/2015, 1563150, Page5 of 27
iii
PAGE
In re Application of the FBI for an Order
Requiring the Production of Tangible Things,
Dkt. Nos. BR 15-77, 15-78
(F.I.S.C. June 17, 2015) . . . . . . . . . . . . . . . . . . . . . 4
In re Application of the FBI for an Order
Requiring the Production of Tangible Things,
Dkt. Nos. BR 15-75, Misc. 15-01
(F.I.S.C. June 29, 2015) . . . . . . . . . . . . . . . . . . . . . 5
INS v. Lopez-Mendoza,
468 U.S. 1032 (1984) . . . . . . . . . . . . . . . . . . . . . . . 16
Log Cabin Republicans v. United States,
658 F.3d 1162(9th Cir. 2011) . . . . . . . . . . . . . . . . 13
Miller v. French,
530 U.S. 327 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 14
Northern Pipeline Constr. Co. v. Marathon
Pipe Line Co.,
458 U.S. 50 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . 14
Pennsylvania Bd. of Prob. & Parole v. Scott,
524 U.S. 357 (1998) . . . . . . . . . . . . . . . . . . . . . . . . 16
Ramsden v. United States,
2 F.3d 322 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . 17
Salazar v. Buono,
559 U.S. 700 (2010) . . . . . . . . . . . . . . . . . . . . . . . . 14
U.S. Dep’t of the Treasury v. Galioto,
477 U.S. 556 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 13
United States v. Crowell,
374 F.3d 790 (9th Cir. 2004) . . . . . . . . . . . . . . . . 15
Case 14-42, Document 200, 07/27/2015, 1563150, Page5 of 27
iii
PAGE
In re Application of the FBI for an Order
Requiring the Production of Tangible Things,
Dkt. Nos. BR 15-77, 15-78
(F.I.S.C. June 17, 2015) . . . . . . . . . . . . . . . . . . . . . 4
In re Application of the FBI for an Order
Requiring the Production of Tangible Things,
Dkt. Nos. BR 15-75, Misc. 15-01
(F.I.S.C. June 29, 2015) . . . . . . . . . . . . . . . . . . . . . 5
INS v. Lopez-Mendoza,
468 U.S. 1032 (1984) . . . . . . . . . . . . . . . . . . . . . . . 16
Log Cabin Republicans v. United States,
658 F.3d 1162(9th Cir. 2011) . . . . . . . . . . . . . . . . 13
Miller v. French,
530 U.S. 327 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 14
Northern Pipeline Constr. Co. v. Marathon
Pipe Line Co.,
458 U.S. 50 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . 14
Pennsylvania Bd. of Prob. & Parole v. Scott,
524 U.S. 357 (1998) . . . . . . . . . . . . . . . . . . . . . . . . 16
Ramsden v. United States,
2 F.3d 322 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . 17
Salazar v. Buono,
559 U.S. 700 (2010) . . . . . . . . . . . . . . . . . . . . . . . . 14
U.S. Dep’t of the Treasury v. Galioto,
477 U.S. 556 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 13
United States v. Crowell,
374 F.3d 790 (9th Cir. 2004) . . . . . . . . . . . . . . . . 15
Case 14-42, Document 200, 07/27/2015, 1563150, Page6 of 27
iv
PAGE
United States v. Schnitzer,
567 F.2d 536 (2d Cir. 1977) . . . . . . . . . . . . . . . . . 17
United States v. Sumner,
226 F.3d 1005 (9th Cir. 2000) . . . . . . . . . . . . . . . 15
Wilkie v. Robbins,
551 U.S. 537 (2007) . . . . . . . . . . . . . . . . . . . . . . . . 16
Statutes:
18 U.S.C. § 2712 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
28 U.S.C. § 1651(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
50 U.S.C. § 1806(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
50 U.S.C. § 1810 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
50 U.S.C. § 1825(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
50 U.S.C. § 1828 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
50 U.S.C. § 1845(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
50 U.S.C. § 1861 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
USA FREEDOM Act, Pub. L. No. 114-32,
129 Stat. 268 . . . . . . . . . . . . . . . . . . . . . . . . . passim
Legislative History:
H.R. Rep. No. 114-109 (2015) . . . . . . . . . . . . . . . . . . 11
161 Cong. Rec. S3275
(daily ed. May 22, 2015) . . . . . . . . . . . . . .
7 , 8, 9
Case 14-42, Document 200, 07/27/2015, 1563150, Page6 of 27
iv
PAGE
United States v. Schnitzer,
567 F.2d 536 (2d Cir. 1977) . . . . . . . . . . . . . . . . . 17
United States v. Sumner,
226 F.3d 1005 (9th Cir. 2000) . . . . . . . . . . . . . . . 15
Wilkie v. Robbins,
551 U.S. 537 (2007) . . . . . . . . . . . . . . . . . . . . . . . . 16
Statutes:
18 U.S.C. § 2712 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
28 U.S.C. § 1651(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
50 U.S.C. § 1806(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
50 U.S.C. § 1810 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
50 U.S.C. § 1825(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
50 U.S.C. § 1828 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
50 U.S.C. § 1845(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
50 U.S.C. § 1861 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
USA FREEDOM Act, Pub. L. No. 114-32,
129 Stat. 268 . . . . . . . . . . . . . . . . . . . . . . . . . passim
Legislative History:
H.R. Rep. No. 114-109 (2015) . . . . . . . . . . . . . . . . . . 11
161 Cong. Rec. S3275
(daily ed. May 22, 2015) . . . . . . . . . . . . . .
7 , 8, 9
Case 14-42, Document 200, 07/27/2015, 1563150, Page7 of 27
v
PAGE
161 Cong. Rec. S3389
(daily ed. June 1, 2015). . . . . . . . . . . . . . . . . . . . 8, 9
161 Cong. Rec. S3390
(daily ed. June 1, 2015). . . . . . . . . . . . . . . . . . . . . 8
161 Cong. Rec. S3429
(daily ed. June 2, 2015). . . . . . . . . . . . . . . . . . . . . . 9
161 Cong. Rec. S3439
(daily ed. June 2, 2015). . . . . . . . . . . . . . . . . . . . 4, 8
Rules:
Fed. R. App. P. 8(a)(1)(C) . . . . . . . . . . . . . . . . . . . . . . 19
Case 14-42, Document 200, 07/27/2015, 1563150, Page7 of 27
v
PAGE
161 Cong. Rec. S3389
(daily ed. June 1, 2015). . . . . . . . . . . . . . . . . . . . 8, 9
161 Cong. Rec. S3390
(daily ed. June 1, 2015). . . . . . . . . . . . . . . . . . . . . 8
161 Cong. Rec. S3429
(daily ed. June 2, 2015). . . . . . . . . . . . . . . . . . . . . . 9
161 Cong. Rec. S3439
(daily ed. June 2, 2015). . . . . . . . . . . . . . . . . . . . 4, 8
Rules:
Fed. R. App. P. 8(a)(1)(C) . . . . . . . . . . . . . . . . . . . . . . 19
Case 14-42, Document 200, 07/27/2015, 1563150, Page8 of 27
United States Court of Appeals
FOR THE SECOND CIRCUIT
Docket No. 14-42
AMERICAN CIVIL LIBERTIES UNION, et al.,
Plaintiffs-Appellants,
—v.—
JAMES R. CLAPPER, IN HIS OFFICIAL CAPACITY AS
DIRECTOR OF NATIONAL INTELLIGENCE, et al.,
Defendants-Appellees.
COMBINED SUPPLEMENTAL BRIEF FOR APPELLEES
AND OPPOSITION TO MOTION FOR
PRELIMINARY INJUNCTION
Introduction
This brief addresses the Court’s request for additional briefing on the effect of the USA FREEDOM
Act on this case and also responds to plaintiffs’ recent
request for the Court to enter a preliminary injunction against the operation of the Section 215 bulk telephony-metadata program, which was recently reauthorized by the Foreign Intelligence Surveillance
Court (FISC) during the limited 180-day transition
period authorized by Congress.
Case 14-42, Document 200, 07/27/2015, 1563150, Page8 of 27
United States Court of Appeals
FOR THE SECOND CIRCUIT
Docket No. 14-42
AMERICAN CIVIL LIBERTIES UNION, et al.,
Plaintiffs-Appellants,
—v.—
JAMES R. CLAPPER, IN HIS OFFICIAL CAPACITY AS
DIRECTOR OF NATIONAL INTELLIGENCE, et al.,
Defendants-Appellees.
COMBINED SUPPLEMENTAL BRIEF FOR APPELLEES
AND OPPOSITION TO MOTION FOR
PRELIMINARY INJUNCTION
Introduction
This brief addresses the Court’s request for additional briefing on the effect of the USA FREEDOM
Act on this case and also responds to plaintiffs’ recent
request for the Court to enter a preliminary injunction against the operation of the Section 215 bulk telephony-metadata program, which was recently reauthorized by the Foreign Intelligence Surveillance
Court (FISC) during the limited 180-day transition
period authorized by Congress.
Case 14-42, Document 200, 07/27/2015, 1563150, Page9 of 27
2
1. In the USA FREEDOM Act, Congress prohibited the bulk collection of telephony metadata, but
delayed that prohibition for 180 days, after which a
new statutory framework involving the targeted production of call detail records (telephony metadata)
takes effect. Contrary to plaintiffs’ insistence, Congress in that legislation did not contemplate an abrupt and immediate end to the Section 215 bulk telephony-metadata program. Quite the opposite, Congress filled the 180-day gap between the legislation’s
enactment and the effective date of a new targeted
production program by temporarily permitting the
government to continue the Section 215 bulk telephony-metadata program. That transition period reflects Congress’s and the President’s combined judgment that there should be an orderly transition from
the existing program to the new one, during which
the government should retain needed tools to protect
against the continuing terrorist threat.
2. In their complaint, plaintiffs seek equitable relief with both prospective and retrospective components: prospective relief in the form of both an injunction and declaratory relief against ongoing collection
and querying of bulk telephony metadata under the
Section 215 program; and a retrospective purge from
the Section 215 database of any records containing
information about plaintiffs’ telephone calls that may
have been collected under that program. JA 27.
Plaintiffs’ claims will be moot when the bulk collection of telephony metadata under Section 215 ends
on November 29, 2015, though they are not moot
right now. On that date, the statutory authority for
Case 14-42, Document 200, 07/27/2015, 1563150, Page9 of 27
2
1. In the USA FREEDOM Act, Congress prohibited the bulk collection of telephony metadata, but
delayed that prohibition for 180 days, after which a
new statutory framework involving the targeted production of call detail records (telephony metadata)
takes effect. Contrary to plaintiffs’ insistence, Congress in that legislation did not contemplate an abrupt and immediate end to the Section 215 bulk telephony-metadata program. Quite the opposite, Congress filled the 180-day gap between the legislation’s
enactment and the effective date of a new targeted
production program by temporarily permitting the
government to continue the Section 215 bulk telephony-metadata program. That transition period reflects Congress’s and the President’s combined judgment that there should be an orderly transition from
the existing program to the new one, during which
the government should retain needed tools to protect
against the continuing terrorist threat.
2. In their complaint, plaintiffs seek equitable relief with both prospective and retrospective components: prospective relief in the form of both an injunction and declaratory relief against ongoing collection
and querying of bulk telephony metadata under the
Section 215 program; and a retrospective purge from
the Section 215 database of any records containing
information about plaintiffs’ telephone calls that may
have been collected under that program. JA 27.
Plaintiffs’ claims will be moot when the bulk collection of telephony metadata under Section 215 ends
on November 29, 2015, though they are not moot
right now. On that date, the statutory authority for
Case 14-42, Document 200, 07/27/2015, 1563150, Page10 of 27
3
the Section 215 bulk telephony-metadata program
will expire, and the data previously collected and held
under that program will not be used in the future for
intelligence-gathering or law-enforcement purposes.
In the meantime, however, the Court should respect
Congress’s decision to create an orderly transition
away from the Section 215 bulk telephony-metadata
program. Especially in light of Congress’s considered
judgment that this program should continue for this
limited period, plaintiffs are not entitled to any of the
relief they request.
ARGUMENT
POINT I
Congress Permitted the Section 215 Bulk
Telephony-Metadata Program to Continue
During a Six-Month Transition Period
A. Section 215 of the USA PATRIOT Act, enacted
in 2001, amended 50 U.S.C. § 1861 and was the
source of the government’s statutory authority to
conduct the Section 215 bulk telephony-metadata
program. Section 215 expired, pursuant to the statutory sunset period, on June 1, 2015. See PATRIOT
Sunsets Extension Act of 2011, Pub. L. No. 112-14,
§ 2(a), 125 Stat. 216.
On June 2, 2015, Congress passed, and the President signed, the USA FREEDOM Act, Pub. L. No.
114-32, 129 Stat. 268. First, Congress reauthorized
Section 215 and set a new sunset date of December
15, 2019, for that provision, as amended, to expire.
Case 14-42, Document 200, 07/27/2015, 1563150, Page10 of 27
3
the Section 215 bulk telephony-metadata program
will expire, and the data previously collected and held
under that program will not be used in the future for
intelligence-gathering or law-enforcement purposes.
In the meantime, however, the Court should respect
Congress’s decision to create an orderly transition
away from the Section 215 bulk telephony-metadata
program. Especially in light of Congress’s considered
judgment that this program should continue for this
limited period, plaintiffs are not entitled to any of the
relief they request.
ARGUMENT
POINT I
Congress Permitted the Section 215 Bulk
Telephony-Metadata Program to Continue
During a Six-Month Transition Period
A. Section 215 of the USA PATRIOT Act, enacted
in 2001, amended 50 U.S.C. § 1861 and was the
source of the government’s statutory authority to
conduct the Section 215 bulk telephony-metadata
program. Section 215 expired, pursuant to the statutory sunset period, on June 1, 2015. See PATRIOT
Sunsets Extension Act of 2011, Pub. L. No. 112-14,
§ 2(a), 125 Stat. 216.
On June 2, 2015, Congress passed, and the President signed, the USA FREEDOM Act, Pub. L. No.
114-32, 129 Stat. 268. First, Congress reauthorized
Section 215 and set a new sunset date of December
15, 2019, for that provision, as amended, to expire.
Case 14-42, Document 200, 07/27/2015, 1563150, Page11 of 27
4
See id. § 705(a), 129 Stat. at 300; 161 Cong. Rec.
S3439 (daily ed. June 2, 2015) (statement of Sen. Lee)
(Congress’s “intent in passing the USA FREEDOM
Act is that the expired provisions be restored in their
entirety just as they were on May 31, 2015, except to
the extent they have been amended by the USA
FREEDOM Act.”); In re Application of the FBI for an
Order Requiring the Production of Tangible Things,
Dkt. Nos. BR 15-77, 15-78, at 8-13 (F.I.S.C. June 17,
2015) (holding that the USA FREEDOM Act reinstated Section 215 as amended by the statute), available at http://www.fisc.uscourts.gov/sites/default/files/
BR%2015-77%2015-78%20Memorandum%20
Opinion.pdf.
Second, the new statute will, beginning November
29, 2015, prohibit the government from obtaining telephony metadata in bulk under Section 215. See
USA FREEDOM Act § 103, 129 Stat. at 272 (entitled
“Prohibition on Bulk Collection of Tangible Things”).
Congress replaced bulk telephony-metadata collection
under Section 215 with a new mechanism providing
for targeted production by service providers of call
detail records. See id. § 101, 129 Stat. 269-70.
Finally, Congress provided for a 6-month transition period by delaying for 180 days the effective date
of the new prohibition on bulk collection under Section 215, and also the corresponding implementation
date of the new regime of targeted production under
the statute. USA FREEDOM Act § 109(a), 129 Stat.
at 276.
Pursuant to that authority, the government applied to the FISC for authorization to resume the Sec-
Case 14-42, Document 200, 07/27/2015, 1563150, Page11 of 27
4
See id. § 705(a), 129 Stat. at 300; 161 Cong. Rec.
S3439 (daily ed. June 2, 2015) (statement of Sen. Lee)
(Congress’s “intent in passing the USA FREEDOM
Act is that the expired provisions be restored in their
entirety just as they were on May 31, 2015, except to
the extent they have been amended by the USA
FREEDOM Act.”); In re Application of the FBI for an
Order Requiring the Production of Tangible Things,
Dkt. Nos. BR 15-77, 15-78, at 8-13 (F.I.S.C. June 17,
2015) (holding that the USA FREEDOM Act reinstated Section 215 as amended by the statute), available at http://www.fisc.uscourts.gov/sites/default/files/
BR%2015-77%2015-78%20Memorandum%20
Opinion.pdf.
Second, the new statute will, beginning November
29, 2015, prohibit the government from obtaining telephony metadata in bulk under Section 215. See
USA FREEDOM Act § 103, 129 Stat. at 272 (entitled
“Prohibition on Bulk Collection of Tangible Things”).
Congress replaced bulk telephony-metadata collection
under Section 215 with a new mechanism providing
for targeted production by service providers of call
detail records. See id. § 101, 129 Stat. 269-70.
Finally, Congress provided for a 6-month transition period by delaying for 180 days the effective date
of the new prohibition on bulk collection under Section 215, and also the corresponding implementation
date of the new regime of targeted production under
the statute. USA FREEDOM Act § 109(a), 129 Stat.
at 276.
Pursuant to that authority, the government applied to the FISC for authorization to resume the Sec-
Case 14-42, Document 200, 07/27/2015, 1563150, Page12 of 27
5
tion 215 bulk telephony-metadata program during
the transition period. The FISC granted that application. See In re Application of the FBI for an Order Requiring the Production of Tangible Things, Dkt. Nos.
BR 15-75, Misc. 15-01 (F.I.S.C. June 29, 2015) (“June
29
FISC
Op.”),
available
at
http://
www.fisc.uscourts.gov/sites/default/files/BR%201575%20Misc%2015-01%20Opinion%20and%20
Order_0.pdf. The FISC held, after considering an
amicus curiae filing opposing the government’s request, that Congress in the USA FREEDOM Act authorized the government to continue the Section 215
bulk telephony-metadata program for 180 days as
part of an orderly transition away from bulk collection of telephony metadata under that program. See
id. at 10-12.
On July 27, 2015, the Office of the Director of National Intelligence (ODNI) issued a public statement
that the NSA has determined that “analytic access to
that historical metadata collected under Section 215
. . . will cease on November 29, 2015,” at the end of
the transition period. See Statement by ODNI on Retention of Data Collected Under Section 215 of the
USA
PATRIOT
Act,
available
at
http://
icontherecord.tumblr.com/post/125179645313/
statement-by-the-odni-on-retention-of-data
(ODNI
July 27 Statement). Thus, after that date, no further
bulk collection of telephony metadata will take place
under the Section 215 program, and the historical telephony metadata will not be used for intelligence or
law-enforcement purposes and will not be disseminated. For three months following the end of the
transition period, NSA technical personnel will have
Case 14-42, Document 200, 07/27/2015, 1563150, Page12 of 27
5
tion 215 bulk telephony-metadata program during
the transition period. The FISC granted that application. See In re Application of the FBI for an Order Requiring the Production of Tangible Things, Dkt. Nos.
BR 15-75, Misc. 15-01 (F.I.S.C. June 29, 2015) (“June
29
FISC
Op.”),
available
at
http://
www.fisc.uscourts.gov/sites/default/files/BR%201575%20Misc%2015-01%20Opinion%20and%20
Order_0.pdf. The FISC held, after considering an
amicus curiae filing opposing the government’s request, that Congress in the USA FREEDOM Act authorized the government to continue the Section 215
bulk telephony-metadata program for 180 days as
part of an orderly transition away from bulk collection of telephony metadata under that program. See
id. at 10-12.
On July 27, 2015, the Office of the Director of National Intelligence (ODNI) issued a public statement
that the NSA has determined that “analytic access to
that historical metadata collected under Section 215
. . . will cease on November 29, 2015,” at the end of
the transition period. See Statement by ODNI on Retention of Data Collected Under Section 215 of the
USA
PATRIOT
Act,
available
at
http://
icontherecord.tumblr.com/post/125179645313/
statement-by-the-odni-on-retention-of-data
(ODNI
July 27 Statement). Thus, after that date, no further
bulk collection of telephony metadata will take place
under the Section 215 program, and the historical telephony metadata will not be used for intelligence or
law-enforcement purposes and will not be disseminated. For three months following the end of the
transition period, NSA technical personnel will have
Case 14-42, Document 200, 07/27/2015, 1563150, Page13 of 27
6
access to that historical telephony metadata “solely
for data integrity purposes to verify the records produced under the new targeted production authorized
by the USA FREEDOM Act.” Id. The only purpose of
that technical access is to verify that the call detail
records obtained under the USA FREEDOM Act’s
new framework of targeted production are similar to
the results that would have been produced pursuant
to a query under the former Section 215 bulk telephony-metadata program. After that three-month period (approximately February 29, 2016), the historical
telephony metadata will be “preserved solely because
of preservation obligations in pending civil litigation,”
and it “will not be used or accessed for any other purpose.” Id. NSA will destroy the historical telephony
metadata “as soon as possible . . . upon expiration of
its litigation preservation obligations.” Id.
B. The FISC was right that Congress authorized
the Section 215 bulk telephony-metadata program to
continue during the six-month transition period.
The USA FREEDOM Act was the product of more
than two years of dialogue and debate between the
political branches of government on the proper scope
of the government’s intelligence-gathering capabilities. Part of the compromise on which Congress settled, which the President supported, was to add an
unequivocal ban on bulk collection under Section 215
specifying that “[n]o order issued under” Section
215(b)(2) “may authorize collection of tangible things
without the use of a specific selection term that meets
the requirements” of that subsection. USA FREEDOM Act § 103, 129 Stat. at 272 (entitled “Prohibi-
Case 14-42, Document 200, 07/27/2015, 1563150, Page13 of 27
6
access to that historical telephony metadata “solely
for data integrity purposes to verify the records produced under the new targeted production authorized
by the USA FREEDOM Act.” Id. The only purpose of
that technical access is to verify that the call detail
records obtained under the USA FREEDOM Act’s
new framework of targeted production are similar to
the results that would have been produced pursuant
to a query under the former Section 215 bulk telephony-metadata program. After that three-month period (approximately February 29, 2016), the historical
telephony metadata will be “preserved solely because
of preservation obligations in pending civil litigation,”
and it “will not be used or accessed for any other purpose.” Id. NSA will destroy the historical telephony
metadata “as soon as possible . . . upon expiration of
its litigation preservation obligations.” Id.
B. The FISC was right that Congress authorized
the Section 215 bulk telephony-metadata program to
continue during the six-month transition period.
The USA FREEDOM Act was the product of more
than two years of dialogue and debate between the
political branches of government on the proper scope
of the government’s intelligence-gathering capabilities. Part of the compromise on which Congress settled, which the President supported, was to add an
unequivocal ban on bulk collection under Section 215
specifying that “[n]o order issued under” Section
215(b)(2) “may authorize collection of tangible things
without the use of a specific selection term that meets
the requirements” of that subsection. USA FREEDOM Act § 103, 129 Stat. at 272 (entitled “Prohibi-
Case 14-42, Document 200, 07/27/2015, 1563150, Page14 of 27
7
tion on Bulk Collection of Tangible Things”). Equally
part of that compromise, however, was Congress’s
recognition that this ban on bulk collection would not
take effect immediately, but rather would be delayed
for 180 days. Id. § 109, 129 Stat. at 276.
The USA FREEDOM Act reflected Congress’s and
the President’s judgment that the government should
transition away from the current Section 215 bulk
telephony-metadata program, under which the government itself collected, held, and queried telephony
metadata, to a regime where telecommunications
companies themselves hold that telephony metadata
and provide to the government, on a continuous basis,
telephony metadata that are responsive to targeted
government requests approved by the FISC. See USA
FREEDOM Act § 101, 129 Stat. at 270 (permitting a
production order based on a specific selection term to
require the ongoing production of telephony metadata
from telecommunications providers in a “useful format”). At the same time, Congress proposed and enacted a 180-day transition period in recognition of the
reality that the new regime could not be created
overnight. As the government explained to Congress,
that new production regime required the government
to provide to telecommunications companies “the
technical details, guidance, and compensation to create a fully operational” new querying model. 161
Cong. Rec. S3275 (daily ed. May 22, 2015) (statement
of Sen. Leahy) (quoting letter from National Security
Agency Director).
The design and effect of the six-month delay on
the prohibition on bulk collection was to preserve the
Case 14-42, Document 200, 07/27/2015, 1563150, Page14 of 27
7
tion on Bulk Collection of Tangible Things”). Equally
part of that compromise, however, was Congress’s
recognition that this ban on bulk collection would not
take effect immediately, but rather would be delayed
for 180 days. Id. § 109, 129 Stat. at 276.
The USA FREEDOM Act reflected Congress’s and
the President’s judgment that the government should
transition away from the current Section 215 bulk
telephony-metadata program, under which the government itself collected, held, and queried telephony
metadata, to a regime where telecommunications
companies themselves hold that telephony metadata
and provide to the government, on a continuous basis,
telephony metadata that are responsive to targeted
government requests approved by the FISC. See USA
FREEDOM Act § 101, 129 Stat. at 270 (permitting a
production order based on a specific selection term to
require the ongoing production of telephony metadata
from telecommunications providers in a “useful format”). At the same time, Congress proposed and enacted a 180-day transition period in recognition of the
reality that the new regime could not be created
overnight. As the government explained to Congress,
that new production regime required the government
to provide to telecommunications companies “the
technical details, guidance, and compensation to create a fully operational” new querying model. 161
Cong. Rec. S3275 (daily ed. May 22, 2015) (statement
of Sen. Leahy) (quoting letter from National Security
Agency Director).
The design and effect of the six-month delay on
the prohibition on bulk collection was to preserve the
Case 14-42, Document 200, 07/27/2015, 1563150, Page15 of 27
8
government’s intelligence capabilities by permitting
the Section 215 bulk telephony-metadata program to
continue for six months while NSA created the technical ability to transition to the new model of targeted production. See 161 Cong. Rec. S3439-40 (daily ed.
June 2, 2015) (statement of Sen. Leahy) (noting that
Congress “included a provision to allow the government to collect call detail records, CDRs, for a 180day transition period, as it was doing pursuant to
Foreign Intelligence Surveillance Court orders prior
to June 1, 2015”); 161 Cong. Rec. S3275 (daily ed.
May 22, 2015) (statement of Sen. Leahy) (noting the
government’s understanding that the “ ‘USA FREEDOM Act would establish a 180-day transition period
for transitioning from the current bulk-collection program for telephone metadata to a model where queries would be carried out against business records
held by telephone providers’ ” (quoting letter from
National Security Agency Director)).
Congress’s intent to permit the Section 215 bulk
telephony-metadata program to continue during the
transition period is particularly evident in the debate
among legislators over the appropriate length of that
period. Some in Congress desired a longer transition
period, and therefore proposed extending the effective
date in § 109 of the USA FREEDOM Act “to continue
the program in seamless fashion.” 161 Cong. Rec.
S3389 (daily ed. June 1, 2015) (statement of Sen.
Cornyn); see id. at S3390 (statement of Sen. Burr)
(“what we are asking is that we go from 6 months to
12 months so we can make sure the technology is in
place for this program to continue”). Opponents of
that proposed amendment, however, desired not “to
Case 14-42, Document 200, 07/27/2015, 1563150, Page15 of 27
8
government’s intelligence capabilities by permitting
the Section 215 bulk telephony-metadata program to
continue for six months while NSA created the technical ability to transition to the new model of targeted production. See 161 Cong. Rec. S3439-40 (daily ed.
June 2, 2015) (statement of Sen. Leahy) (noting that
Congress “included a provision to allow the government to collect call detail records, CDRs, for a 180day transition period, as it was doing pursuant to
Foreign Intelligence Surveillance Court orders prior
to June 1, 2015”); 161 Cong. Rec. S3275 (daily ed.
May 22, 2015) (statement of Sen. Leahy) (noting the
government’s understanding that the “ ‘USA FREEDOM Act would establish a 180-day transition period
for transitioning from the current bulk-collection program for telephone metadata to a model where queries would be carried out against business records
held by telephone providers’ ” (quoting letter from
National Security Agency Director)).
Congress’s intent to permit the Section 215 bulk
telephony-metadata program to continue during the
transition period is particularly evident in the debate
among legislators over the appropriate length of that
period. Some in Congress desired a longer transition
period, and therefore proposed extending the effective
date in § 109 of the USA FREEDOM Act “to continue
the program in seamless fashion.” 161 Cong. Rec.
S3389 (daily ed. June 1, 2015) (statement of Sen.
Cornyn); see id. at S3390 (statement of Sen. Burr)
(“what we are asking is that we go from 6 months to
12 months so we can make sure the technology is in
place for this program to continue”). Opponents of
that proposed amendment, however, desired not “to
Case 14-42, Document 200, 07/27/2015, 1563150, Page16 of 27
9
extend the current bulk collection program in place
for a full year,” instead preferring “a 180-day transition period,” 161 Cong. Rec. S3429 (daily ed. June 2,
2015) (statement of Sen. Leahy); see also 161 Cong.
Rec. S3442 (daily ed. June 2, 2015) (statement of Sen.
Leahy) (describing the amendment as a proposal to
“leave the current bulk collection program in place for
a full year”); 161 Cong. Rec. S3275 (daily ed. May 22,
2015) (statement of Sen. Leahy) (rejecting proposal to
“include a provision to keep the bulk collection program in place for more than two years” because the
“NSA Director stated . . . that the NSA needs 180
days to transition to the new targeted program established by the USA FREEDOM Act”). The debate
about the proper length of time before the effective
date of the new prohibition on bulk collection reflects
a shared premise of supporters and opponents of the
amendment: that Congress permitted bulk collection
during the transition period.
C. Plaintiffs declare that the “plain language” of
the USA FREEDOM Act does not permit bulk collection during the transition period. Pls’ Mot. 8. The only mention of bulk collection in that “language,” however, delays the newly enacted ban on that practice
for 180 days. See USA FREEDOM Act § 103, 129
Stat. at 272. As the FISC correctly noted, Congress’s
decision to delay that ban for six months is a powerful indication that it intended to permit bulk collection in the interim period. June 29 FISC Op. at 10.
The expressly delayed ban on bulk collection under
Section 215, as the FISC observed, stands in sharp
contrast to two other bans on bulk collection in the
statute, both of which took effect immediately. See
Case 14-42, Document 200, 07/27/2015, 1563150, Page16 of 27
9
extend the current bulk collection program in place
for a full year,” instead preferring “a 180-day transition period,” 161 Cong. Rec. S3429 (daily ed. June 2,
2015) (statement of Sen. Leahy); see also 161 Cong.
Rec. S3442 (daily ed. June 2, 2015) (statement of Sen.
Leahy) (describing the amendment as a proposal to
“leave the current bulk collection program in place for
a full year”); 161 Cong. Rec. S3275 (daily ed. May 22,
2015) (statement of Sen. Leahy) (rejecting proposal to
“include a provision to keep the bulk collection program in place for more than two years” because the
“NSA Director stated . . . that the NSA needs 180
days to transition to the new targeted program established by the USA FREEDOM Act”). The debate
about the proper length of time before the effective
date of the new prohibition on bulk collection reflects
a shared premise of supporters and opponents of the
amendment: that Congress permitted bulk collection
during the transition period.
C. Plaintiffs declare that the “plain language” of
the USA FREEDOM Act does not permit bulk collection during the transition period. Pls’ Mot. 8. The only mention of bulk collection in that “language,” however, delays the newly enacted ban on that practice
for 180 days. See USA FREEDOM Act § 103, 129
Stat. at 272. As the FISC correctly noted, Congress’s
decision to delay that ban for six months is a powerful indication that it intended to permit bulk collection in the interim period. June 29 FISC Op. at 10.
The expressly delayed ban on bulk collection under
Section 215, as the FISC observed, stands in sharp
contrast to two other bans on bulk collection in the
statute, both of which took effect immediately. See
Case 14-42, Document 200, 07/27/2015, 1563150, Page17 of 27
10
USA FREEDOM Act §§ 201, 501. Congress’s failure
to use similar language in Section 215 should be presumed to be deliberate. See, e.g., Barnhart v. Sigmon
Coal Co., 534 U.S. 438, 452 (2002). Plaintiffs’ interpretation also renders largely superfluous or symbolic
the keystone reform of the legislation—the provision
expressly banning bulk collection under Section 215,
but only after a 180-day period. Plaintiffs’ interpretation makes nonsense of the compromise enacted by
Congress with the support of the President, and is
contrary to “one of the most basic interpretive canons,
that a statute should be construed so that effect is
given to all its provisions, so that no part will be inoperative or superfluous, void, or insignificant.” Corley v. United States, 556 U.S. 303, 314 (2009) (alterations, citation, and internal quotation marks omitted).
Plaintiffs assert that, by not changing the language of Section 215 authorizing the collection of
business records during the transition period, Congress implicitly incorporated into the USA FREEDOM Act this Court’s opinion holding that Section
215 did not authorize bulk collection. See Pls.’ Mot. 78. Plaintiffs rely on language providing that the legislation does not “alter or eliminate the authority of the
Government to obtain an order under” Section 215
“as in effect prior to the effective date” of the statute.
USA FREEDOM Act § 109, 129 Stat. at 276. That
language does not advance plaintiffs’ argument, however, because the statute says nothing expressly
about what preexisting authority the government had
under Section 215 to obtain telephony metadata in
bulk. It is implausible that Congress employed the
Case 14-42, Document 200, 07/27/2015, 1563150, Page17 of 27
10
USA FREEDOM Act §§ 201, 501. Congress’s failure
to use similar language in Section 215 should be presumed to be deliberate. See, e.g., Barnhart v. Sigmon
Coal Co., 534 U.S. 438, 452 (2002). Plaintiffs’ interpretation also renders largely superfluous or symbolic
the keystone reform of the legislation—the provision
expressly banning bulk collection under Section 215,
but only after a 180-day period. Plaintiffs’ interpretation makes nonsense of the compromise enacted by
Congress with the support of the President, and is
contrary to “one of the most basic interpretive canons,
that a statute should be construed so that effect is
given to all its provisions, so that no part will be inoperative or superfluous, void, or insignificant.” Corley v. United States, 556 U.S. 303, 314 (2009) (alterations, citation, and internal quotation marks omitted).
Plaintiffs assert that, by not changing the language of Section 215 authorizing the collection of
business records during the transition period, Congress implicitly incorporated into the USA FREEDOM Act this Court’s opinion holding that Section
215 did not authorize bulk collection. See Pls.’ Mot. 78. Plaintiffs rely on language providing that the legislation does not “alter or eliminate the authority of the
Government to obtain an order under” Section 215
“as in effect prior to the effective date” of the statute.
USA FREEDOM Act § 109, 129 Stat. at 276. That
language does not advance plaintiffs’ argument, however, because the statute says nothing expressly
about what preexisting authority the government had
under Section 215 to obtain telephony metadata in
bulk. It is implausible that Congress employed the
Case 14-42, Document 200, 07/27/2015, 1563150, Page18 of 27
11
word “authority” to signify that the government
lacked authority to conduct the Section 215 bulk telephony-metadata program during the 180-day transition period, contrary to the FISC’s repeated orders
and the Executive Branch’s longstanding and continuing interpretation and application of the law, and
notwithstanding the active litigation of that question
in this Court. That is especially so because language
in the USA FREEDOM Act providing for the 180-day
transition period has long been a proposed feature of
the legislation. It is thus much more plausible that
the “authority” Congress was referring to was not the
understanding of Section 215 reflected in this Court’s
recent interpretation of Section 215, but rather the
consistent interpretation of Section 215 by 19 different FISC judges: to permit bulk collection of telephony metadata.
The FISC was thus correct when it observed that
“after lengthy public debate, and with crystal clear
knowledge of the fact of ongoing bulk collection of call
detail records” Congress “chose to allow a 180-day
transitional period . . . .” June 29 FISC Op. at 11.
This Court need not and should not determine
whether Congress “ ‘ratif[ied] the FISA Court’s interpretation of ’ ” Section 215. Pls’ Mot. 9 (quoting H.R.
Rep. No. 114-109, at 18-19 (2015)). What we do know
is that, in establishing a transition period, Congress,
at a minimum, did not intend to bring to an abrupt
halt the government’s longstanding Section 215 bulk
telephony-metadata program and instead intended to
avoid diminishing the government’s antiterrorism capabilities during the transition to the new regime of
targeted production.
Case 14-42, Document 200, 07/27/2015, 1563150, Page18 of 27
11
word “authority” to signify that the government
lacked authority to conduct the Section 215 bulk telephony-metadata program during the 180-day transition period, contrary to the FISC’s repeated orders
and the Executive Branch’s longstanding and continuing interpretation and application of the law, and
notwithstanding the active litigation of that question
in this Court. That is especially so because language
in the USA FREEDOM Act providing for the 180-day
transition period has long been a proposed feature of
the legislation. It is thus much more plausible that
the “authority” Congress was referring to was not the
understanding of Section 215 reflected in this Court’s
recent interpretation of Section 215, but rather the
consistent interpretation of Section 215 by 19 different FISC judges: to permit bulk collection of telephony metadata.
The FISC was thus correct when it observed that
“after lengthy public debate, and with crystal clear
knowledge of the fact of ongoing bulk collection of call
detail records” Congress “chose to allow a 180-day
transitional period . . . .” June 29 FISC Op. at 11.
This Court need not and should not determine
whether Congress “ ‘ratif[ied] the FISA Court’s interpretation of ’ ” Section 215. Pls’ Mot. 9 (quoting H.R.
Rep. No. 114-109, at 18-19 (2015)). What we do know
is that, in establishing a transition period, Congress,
at a minimum, did not intend to bring to an abrupt
halt the government’s longstanding Section 215 bulk
telephony-metadata program and instead intended to
avoid diminishing the government’s antiterrorism capabilities during the transition to the new regime of
targeted production.
Case 14-42, Document 200, 07/27/2015, 1563150, Page19 of 27
12
Plaintiffs suggest that the legislative history supports their view that Congress immediately banned
bulk collection, citing the House Report suggesting
that Congress thought it was “ ‘restor[ing] meaningful
limits to the “relevance” requirement’ ” under Section
215. Pls’ Mot. 11-12 (quoting H.R. Rep. No. 114-109,
at 19). But the report clearly specified that those
“meaningful limits” stemmed from the new requirement that each Section 215 application contain “a
specific selection term,” H. Rep. No. 114-109, at 18, a
requirement that did not take effect until after the
180-day transition period, see USA FREEDOM Act
§ 109, 129 Stat. at 276. There is no evidence that
Congress intended to take the further extreme step of
banning the Section 215 program immediately.
POINT II
Although Plaintiffs’ Claims Are Not Currently
Moot, the Court Should Respect Congress’s
Decision in the USA FREEDOM Act to Permit the
Section 215 Program to Continue During the
Transition Period
Congress’s decision to permit the government to
conduct the Section 215 bulk telephony-metadata
program during this transition period makes clear
that plaintiffs are not entitled to any of the (solely
equitable) relief they seek.
A. Once the 180-day transition period ends, and
with it the government’s authority to conduct ongoing
bulk telephony-metadata collection under Section
215, plaintiff ’s claims for prospective declaratory and
injunctive relief against that program will be moot.
Case 14-42, Document 200, 07/27/2015, 1563150, Page19 of 27
12
Plaintiffs suggest that the legislative history supports their view that Congress immediately banned
bulk collection, citing the House Report suggesting
that Congress thought it was “ ‘restor[ing] meaningful
limits to the “relevance” requirement’ ” under Section
215. Pls’ Mot. 11-12 (quoting H.R. Rep. No. 114-109,
at 19). But the report clearly specified that those
“meaningful limits” stemmed from the new requirement that each Section 215 application contain “a
specific selection term,” H. Rep. No. 114-109, at 18, a
requirement that did not take effect until after the
180-day transition period, see USA FREEDOM Act
§ 109, 129 Stat. at 276. There is no evidence that
Congress intended to take the further extreme step of
banning the Section 215 program immediately.
POINT II
Although Plaintiffs’ Claims Are Not Currently
Moot, the Court Should Respect Congress’s
Decision in the USA FREEDOM Act to Permit the
Section 215 Program to Continue During the
Transition Period
Congress’s decision to permit the government to
conduct the Section 215 bulk telephony-metadata
program during this transition period makes clear
that plaintiffs are not entitled to any of the (solely
equitable) relief they seek.
A. Once the 180-day transition period ends, and
with it the government’s authority to conduct ongoing
bulk telephony-metadata collection under Section
215, plaintiff ’s claims for prospective declaratory and
injunctive relief against that program will be moot.
Case 14-42, Document 200, 07/27/2015, 1563150, Page20 of 27
13
See, e.g., Log Cabin Republicans v. United States, 658
F.3d 1162, 1166-67 (9th Cir. 2011) (per curiam); see
also, e.g., Burke v. Barnes, 479 U.S. 361, 363-64
(1987); U.S. Dep’t of the Treasury v. Galioto, 477 U.S.
556, 559-60 (1986).
Plaintiffs’ claim for a retrospective purge of any
data collected about their telephone calls under that
program will also be moot at that point. The Office of
the Director of National Intelligence has announced
that the government will not use the Section 215 database for purposes of intelligence or law-enforcement
analysis after the transition period provided for by
Congress. See ODNI July 27 Statement. Instead,
NSA will retain the data for three months “solely for
data integrity purposes to verify the records produced
under the new targeted production authorized by the
USA FREEDOM Act,” and NSA will destroy the historical metadata as soon thereafter as possible upon
expiration of the government’s litigation-preservation
obligations. Id. Following extensive debate, Congress
has adopted a careful compromise substitute for the
bulk collection of telephony metadata under the Section 215 program (to take effect in 180 days). This is
therefore not a case where the government “voluntarily ceased” a challenged practice in order to avoid litigation. See Clarke v. United States, 915 F.2d 699,
705-06 (D.C. Cir. 1990) (en banc). The data previously
collected under the Section 215 bulk telephonymetadata program will no longer be used for intelligence-gathering or law-enforcement purposes after
the statutory authorization for the program has expired. See Holland v. Goord, 758 F.3d 215, 224 (2d
Cir. 2014) (holding moot a discontinued challenged
Case 14-42, Document 200, 07/27/2015, 1563150, Page20 of 27
13
See, e.g., Log Cabin Republicans v. United States, 658
F.3d 1162, 1166-67 (9th Cir. 2011) (per curiam); see
also, e.g., Burke v. Barnes, 479 U.S. 361, 363-64
(1987); U.S. Dep’t of the Treasury v. Galioto, 477 U.S.
556, 559-60 (1986).
Plaintiffs’ claim for a retrospective purge of any
data collected about their telephone calls under that
program will also be moot at that point. The Office of
the Director of National Intelligence has announced
that the government will not use the Section 215 database for purposes of intelligence or law-enforcement
analysis after the transition period provided for by
Congress. See ODNI July 27 Statement. Instead,
NSA will retain the data for three months “solely for
data integrity purposes to verify the records produced
under the new targeted production authorized by the
USA FREEDOM Act,” and NSA will destroy the historical metadata as soon thereafter as possible upon
expiration of the government’s litigation-preservation
obligations. Id. Following extensive debate, Congress
has adopted a careful compromise substitute for the
bulk collection of telephony metadata under the Section 215 program (to take effect in 180 days). This is
therefore not a case where the government “voluntarily ceased” a challenged practice in order to avoid litigation. See Clarke v. United States, 915 F.2d 699,
705-06 (D.C. Cir. 1990) (en banc). The data previously
collected under the Section 215 bulk telephonymetadata program will no longer be used for intelligence-gathering or law-enforcement purposes after
the statutory authorization for the program has expired. See Holland v. Goord, 758 F.3d 215, 224 (2d
Cir. 2014) (holding moot a discontinued challenged
Case 14-42, Document 200, 07/27/2015, 1563150, Page21 of 27
14
policy where it was “clear that the allegedly wrongful
policy is not likely to be reinstated”). There will accordingly be nothing further to litigate after the transition period ends and there is plainly no basis for
equitable relief, either injunctive or declaratory.
B. Although plaintiffs’ claims are not moot until
the 180-day transition period ends, this Court should
respect the legislative compromise struck in the USA
FREEDOM Act, and refrain from any decision that
would interfere with the orderly transition to the new
statutory framework of targeted production.
1. Now that Congress has provided for an orderly
transition period during which the Section 215 program continues to be permitted but is strictly timelimited, there is no basis for equitable relief. A plaintiff ’s entitlement to such relief should be informed by
legislation enacted during the pendency of litigation.
See, e.g., Miller v. French, 530 U.S. 327, 347 (2000);
Salazar v. Buono, 559 U.S. 700, 718 (2010). Equally,
federal legislation should guide a federal court’s exercise of its equitable discretion to fashion the permissible constitutional remedies. See Brown v. Plata, 131
S. Ct. 1910, 1944, 1946 (2011) (applying the requirements of the Prison Litigation Reform Act to remedies for unconstitutional prison conditions and giving
the state two years to comply with determination
that prison-overcrowding conditions violated the
Constitution); cf. Northern Pipeline Constr. Co. v.
Marathon Pipe Line Co., 458 U.S. 50, 88-89 (1982).
The USA FREEDOM Act reflects Congress’s determination to authorize the Section 215 bulk telephony-metadata program to continue during a brief
Case 14-42, Document 200, 07/27/2015, 1563150, Page21 of 27
14
policy where it was “clear that the allegedly wrongful
policy is not likely to be reinstated”). There will accordingly be nothing further to litigate after the transition period ends and there is plainly no basis for
equitable relief, either injunctive or declaratory.
B. Although plaintiffs’ claims are not moot until
the 180-day transition period ends, this Court should
respect the legislative compromise struck in the USA
FREEDOM Act, and refrain from any decision that
would interfere with the orderly transition to the new
statutory framework of targeted production.
1. Now that Congress has provided for an orderly
transition period during which the Section 215 program continues to be permitted but is strictly timelimited, there is no basis for equitable relief. A plaintiff ’s entitlement to such relief should be informed by
legislation enacted during the pendency of litigation.
See, e.g., Miller v. French, 530 U.S. 327, 347 (2000);
Salazar v. Buono, 559 U.S. 700, 718 (2010). Equally,
federal legislation should guide a federal court’s exercise of its equitable discretion to fashion the permissible constitutional remedies. See Brown v. Plata, 131
S. Ct. 1910, 1944, 1946 (2011) (applying the requirements of the Prison Litigation Reform Act to remedies for unconstitutional prison conditions and giving
the state two years to comply with determination
that prison-overcrowding conditions violated the
Constitution); cf. Northern Pipeline Constr. Co. v.
Marathon Pipe Line Co., 458 U.S. 50, 88-89 (1982).
The USA FREEDOM Act reflects Congress’s determination to authorize the Section 215 bulk telephony-metadata program to continue during a brief
Case 14-42, Document 200, 07/27/2015, 1563150, Page22 of 27
15
transitional winding-down period before the new
framework of targeted telephony-metadata production takes effect. Congress thus judged that the sort
of abrupt, immediate interference with the program
that plaintiffs seek would be contrary to the public
interest, confirming that equitable relief is inappropriate quite apart from the government’s standing
and merits arguments. The USA FREEDOM Act reflects the considered judgment of the political
branches that the government’s paramount interest
in having this temporary transition program to combat the continuing terrorist threat strongly outweighs
plaintiffs’ privacy interests.
2. The only other remedy plaintiffs seek is for the
government to “purge from [its] possession all of the
call records of Plaintiffs’ communications . . . collected,” if any, under the Section 215 program at issue
here. JA 27. They are not entitled to such an order.
As an initial matter, it is questionable whether
courts have inherent authority, untethered to any
statutory authorization, to order expungement of records held by the government. See United States v.
Crowell, 374 F.3d 790, 796 (9th Cir. 2004); United
States v. Sumner, 226 F.3d 1005, 1014-15 (9th Cir.
2000). There is no statutory basis for ordering records
obtained under Section 215—even if collection was
unlawful in retrospect—to be expunged. Congress in
the Foreign Intelligence Surveillance Act and related
provisions established a number of other remedies—
including in some instances suppression in particular
proceedings—for records unlawfully obtained, none of
which apply here. See e.g., USA FREEDOM Act
Case 14-42, Document 200, 07/27/2015, 1563150, Page22 of 27
15
transitional winding-down period before the new
framework of targeted telephony-metadata production takes effect. Congress thus judged that the sort
of abrupt, immediate interference with the program
that plaintiffs seek would be contrary to the public
interest, confirming that equitable relief is inappropriate quite apart from the government’s standing
and merits arguments. The USA FREEDOM Act reflects the considered judgment of the political
branches that the government’s paramount interest
in having this temporary transition program to combat the continuing terrorist threat strongly outweighs
plaintiffs’ privacy interests.
2. The only other remedy plaintiffs seek is for the
government to “purge from [its] possession all of the
call records of Plaintiffs’ communications . . . collected,” if any, under the Section 215 program at issue
here. JA 27. They are not entitled to such an order.
As an initial matter, it is questionable whether
courts have inherent authority, untethered to any
statutory authorization, to order expungement of records held by the government. See United States v.
Crowell, 374 F.3d 790, 796 (9th Cir. 2004); United
States v. Sumner, 226 F.3d 1005, 1014-15 (9th Cir.
2000). There is no statutory basis for ordering records
obtained under Section 215—even if collection was
unlawful in retrospect—to be expunged. Congress in
the Foreign Intelligence Surveillance Act and related
provisions established a number of other remedies—
including in some instances suppression in particular
proceedings—for records unlawfully obtained, none of
which apply here. See e.g., USA FREEDOM Act
Case 14-42, Document 200, 07/27/2015, 1563150, Page23 of 27
16
§ 102(a)(i)(5); 50 U.S.C. §§ 1806(e), 1825(f), 1845(e)
(suppression
remedies
under
FISA);
50
U.S.C. §§ 1810, 1828 (damages remedies under
FISA); 18 U.S.C. § 2712 (no injunctive remedy
against the government under the Stored Communications Act). The Court should respect Congress’s
remedial choice. See, e.g., Wilkie v. Robbins, 551 U.S.
537, 549-51 (2007) (noting that Congress may displace the Bivens damages remedy for constitutional
violations).
To be sure, the Supreme Court has adopted in certain circumstances the exclusionary rule as a remedy
in criminal cases. But the Court has also held that,
outside the context of criminal trials, that rule does
not foreclose the government from using the fruits of
unlawful searches or seizures. See, e.g., Pennsylvania
Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 362
(1998); INS v. Lopez-Mendoza, 468 U.S. 1032, 104250 (1984). A decision to exclude evidence can be justified only when the social costs of the rule are substantially outweighed by its deterrent value. See, e.g.,
Herring v. United States, 555 U.S. 135, 141 (2009).
Here, no deterrence is needed, or even possible, in
light of the imminent end of Section 215 bulk collection of telephony metadata mandated by statute to
take effect later this year. It is even less plausible
that plaintiffs would have a right to have expunged
any business records the government may have acquired under Section 215 that contain telephony
metadata about their calls in particular. See Grimes
v. Commissioner of IRS, 82 F.3d 286, 291 (9th Cir.
1996) (holding that the Internal Revenue Service was
entitled to retain copies of unlawfully seized tax rec-
Case 14-42, Document 200, 07/27/2015, 1563150, Page23 of 27
16
§ 102(a)(i)(5); 50 U.S.C. §§ 1806(e), 1825(f), 1845(e)
(suppression
remedies
under
FISA);
50
U.S.C. §§ 1810, 1828 (damages remedies under
FISA); 18 U.S.C. § 2712 (no injunctive remedy
against the government under the Stored Communications Act). The Court should respect Congress’s
remedial choice. See, e.g., Wilkie v. Robbins, 551 U.S.
537, 549-51 (2007) (noting that Congress may displace the Bivens damages remedy for constitutional
violations).
To be sure, the Supreme Court has adopted in certain circumstances the exclusionary rule as a remedy
in criminal cases. But the Court has also held that,
outside the context of criminal trials, that rule does
not foreclose the government from using the fruits of
unlawful searches or seizures. See, e.g., Pennsylvania
Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 362
(1998); INS v. Lopez-Mendoza, 468 U.S. 1032, 104250 (1984). A decision to exclude evidence can be justified only when the social costs of the rule are substantially outweighed by its deterrent value. See, e.g.,
Herring v. United States, 555 U.S. 135, 141 (2009).
Here, no deterrence is needed, or even possible, in
light of the imminent end of Section 215 bulk collection of telephony metadata mandated by statute to
take effect later this year. It is even less plausible
that plaintiffs would have a right to have expunged
any business records the government may have acquired under Section 215 that contain telephony
metadata about their calls in particular. See Grimes
v. Commissioner of IRS, 82 F.3d 286, 291 (9th Cir.
1996) (holding that the Internal Revenue Service was
entitled to retain copies of unlawfully seized tax rec-
Case 14-42, Document 200, 07/27/2015, 1563150, Page24 of 27
17
ords); Ramsden v. United States, 2 F.3d 322, 327 (9th
Cir. 1993) (similar).
This Court appears to have recognized that expungement may be an available remedy in certain
“ ‘unusual or extreme case[s].’ ” United States v.
Schnitzer, 567 F.2d 536, 539-40 (2d Cir. 1977). But
even to the extent expungement is available in theory
in some circumstances, it is a “narrow power,” to be
exercised only after balancing the equities. Id. The
party seeking expungement must show a “real and
immediate threat of irreparable harm.” Fendler v.
U.S. Parole Comm’n, 774 F.2d 975, 979 (9th Cir.
1985). Plaintiffs cannot make such a showing in light
of Congress’s decision to permit bulk collection temporarily in the USA FREEDOM Act. And, to the extent those claims remain live, expungement would
not be appropriate after the completion of the orderly
transition period, since the government will no longer
use the data obtained under the Section 215 bulk telephony-metadata program for intelligence-gathering
or law-enforcement purposes. The NSA, moreover,
will destroy that data after the transition period as
soon the government is no longer under any obligation to preserve that data for litigation-preservation
purposes.
3. For the foregoing reasons, none of the requested relief is available to plaintiffs in light of the USA
FREEDOM Act.
The Court may wish to vacate its opinion and remand the case for the district court to decide in the
first instance the effect of the USA FREEDOM Act on
the jurisdictional and remedial issues in this case.
Case 14-42, Document 200, 07/27/2015, 1563150, Page24 of 27
17
ords); Ramsden v. United States, 2 F.3d 322, 327 (9th
Cir. 1993) (similar).
This Court appears to have recognized that expungement may be an available remedy in certain
“ ‘unusual or extreme case[s].’ ” United States v.
Schnitzer, 567 F.2d 536, 539-40 (2d Cir. 1977). But
even to the extent expungement is available in theory
in some circumstances, it is a “narrow power,” to be
exercised only after balancing the equities. Id. The
party seeking expungement must show a “real and
immediate threat of irreparable harm.” Fendler v.
U.S. Parole Comm’n, 774 F.2d 975, 979 (9th Cir.
1985). Plaintiffs cannot make such a showing in light
of Congress’s decision to permit bulk collection temporarily in the USA FREEDOM Act. And, to the extent those claims remain live, expungement would
not be appropriate after the completion of the orderly
transition period, since the government will no longer
use the data obtained under the Section 215 bulk telephony-metadata program for intelligence-gathering
or law-enforcement purposes. The NSA, moreover,
will destroy that data after the transition period as
soon the government is no longer under any obligation to preserve that data for litigation-preservation
purposes.
3. For the foregoing reasons, none of the requested relief is available to plaintiffs in light of the USA
FREEDOM Act.
The Court may wish to vacate its opinion and remand the case for the district court to decide in the
first instance the effect of the USA FREEDOM Act on
the jurisdictional and remedial issues in this case.
Case 14-42, Document 200, 07/27/2015, 1563150, Page25 of 27
18
The district court could then determine as a threshold matter whether some or all of the case is or will
be moot in light of the USA FREEDOM Act, and
whether the requested relief, including expungement,
is legally foreclosed or would be unavailable as a matter of equity.
At a minimum, the Court should reject plaintiffs’
extraordinary request to bypass the district court and
itself impose a preliminary injunction without any
opportunity for the kind of proceedings a district
court normally undertakes before exercising its equitable powers. The normal way to obtain compulsory
relief in the court of appeals is to ask for a writ of
mandamus under the All Writs Act, 28 U.S.C.
§ 1651(a). Plaintiffs make no attempt to satisfy the
demanding standards for obtaining such a writ,
which would require plaintiffs to show, among other
things, that a writ would be in aid of this Court’s appellate jurisdiction, and that adequate relief cannot
be obtained in any other court. See, e.g., Clinton v.
Goldsmith, 526 U.S. 529, 534-38 (1999). Here, the
district court is not only an available forum to provide
plaintiffs with the relief they seek, but also is in the
best position to weigh the equities.
This Court may protect its jurisdiction in extraordinary circumstances by entering an injunction pending appeal. But plaintiffs are asking for a preliminary
injunction—i.e., an injunction pending final adjudication of the merits of the case—not an injunction pending appeal. And even if plaintiffs’ request could fairly
be characterized as an injunction pending appeal or
otherwise in aid of this Court’s jurisdiction (which it
Case 14-42, Document 200, 07/27/2015, 1563150, Page25 of 27
18
The district court could then determine as a threshold matter whether some or all of the case is or will
be moot in light of the USA FREEDOM Act, and
whether the requested relief, including expungement,
is legally foreclosed or would be unavailable as a matter of equity.
At a minimum, the Court should reject plaintiffs’
extraordinary request to bypass the district court and
itself impose a preliminary injunction without any
opportunity for the kind of proceedings a district
court normally undertakes before exercising its equitable powers. The normal way to obtain compulsory
relief in the court of appeals is to ask for a writ of
mandamus under the All Writs Act, 28 U.S.C.
§ 1651(a). Plaintiffs make no attempt to satisfy the
demanding standards for obtaining such a writ,
which would require plaintiffs to show, among other
things, that a writ would be in aid of this Court’s appellate jurisdiction, and that adequate relief cannot
be obtained in any other court. See, e.g., Clinton v.
Goldsmith, 526 U.S. 529, 534-38 (1999). Here, the
district court is not only an available forum to provide
plaintiffs with the relief they seek, but also is in the
best position to weigh the equities.
This Court may protect its jurisdiction in extraordinary circumstances by entering an injunction pending appeal. But plaintiffs are asking for a preliminary
injunction—i.e., an injunction pending final adjudication of the merits of the case—not an injunction pending appeal. And even if plaintiffs’ request could fairly
be characterized as an injunction pending appeal or
otherwise in aid of this Court’s jurisdiction (which it
Case 14-42, Document 200, 07/27/2015, 1563150, Page26 of 27
19
is not), they would have to first request such an injunction from the district court in the first instance.
See Fed. R. App. P. 8(a)(1)(C).
Case 14-42, Document 200, 07/27/2015, 1563150, Page26 of 27
19
is not), they would have to first request such an injunction from the district court in the first instance.
See Fed. R. App. P. 8(a)(1)(C).
Case 14-42, Document 200, 07/27/2015, 1563150, Page27 of 27
20
CONCLUSION
For the foregoing reasons, the Court should hold
that plaintiffs are not entitled to any equitable relief
in light of the USA FREEDOM Act. In the alternative, the Court may wish to vacate its opinion and
remand the case to the district court for it to consider
the effect of that enactment, and plaintiffs’ request
for an injunction, in the first instance.
Dated:
New York, New York
July 27, 2015
Respectfully submitted,
PREET BHARARA,
United States Attorney for the
Southern District of New York,
Attorney for Defendant-Appellee.
DAVID S. JONES,
JOHN D. CLOPPER,
BENJAMIN H. TORRANCE,
Assistant United States Attorneys,
Of Counsel.
BENJAMIN C. MIZER,
Principal Deputy Assistant Attorney General
DOUGLAS N. LETTER,
H. THOMAS BYRON III,
HENRY C. WHITAKER,
Attorneys, Appellate Staff
Civil Division, Department of Justice
Case 14-42, Document 200, 07/27/2015, 1563150, Page27 of 27
20
CONCLUSION
For the foregoing reasons, the Court should hold
that plaintiffs are not entitled to any equitable relief
in light of the USA FREEDOM Act. In the alternative, the Court may wish to vacate its opinion and
remand the case to the district court for it to consider
the effect of that enactment, and plaintiffs’ request
for an injunction, in the first instance.
Dated:
New York, New York
July 27, 2015
Respectfully submitted,
PREET BHARARA,
United States Attorney for the
Southern District of New York,
Attorney for Defendant-Appellee.
DAVID S. JONES,
JOHN D. CLOPPER,
BENJAMIN H. TORRANCE,
Assistant United States Attorneys,
Of Counsel.
BENJAMIN C. MIZER,
Principal Deputy Assistant Attorney General
DOUGLAS N. LETTER,
H. THOMAS BYRON III,
HENRY C. WHITAKER,
Attorneys, Appellate Staff
Civil Division, Department of Justice