D.C.Cir. dissolves injunction against telephony metadata collection sanctioned by FISA

D.C.Cir. dissolves injunction against telephony metadata collection sanctioned by FISA. Klayman v. Obama, 15-5001 (D.C.Cir. August 28, 2015):

PER CURIAM: In the wake of the terrorist attacks of September 11, 2001, Congress enacted the USA PATRIOT Act. Pub. L. No. 107-56, 115 Stat. 272 (2001). Section 215 of that Act empowered the FBI to request, and the Foreign Intelligence Surveillance Court (“FISC”) to enter, orders “requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation … to protect against international terrorism.” Id. at § 215, 115 Stat. at 291, codified as amended at 50 U.S.C. § 1861(a)(1). Since May 2006, the government has relied on this provision to operate a program that has come to be called “bulk data collection,” namely, the collection, in bulk, of call records produced by telephone companies containing “telephony metadata”—the telephone numbers dialed (incoming and outgoing), times, and durations of calls. The FBI has periodically applied for, and the FISC has entered, orders instructing one or more telecommunications service providers to produce, on a daily basis over a period of ninety days, electronic copies of such data. Decl. of Robert J. Holley, Acting Assistant FBI Director, at ¶¶ 10-13, Joint Appendix 224-25.

Under the program, the collected metadata are consolidated into a government database, where (except in exigent circumstances) the NSA may access it only after demonstrating to the FISC a “reasonable articulable suspicion” that a particular phone number is associated with a foreign terrorist organization. Gov’t’s Br. at 11-12. Even then, the NSA may retrieve call detail records only for phone numbers in contact with the original number—within two steps, or “hops” of it. Id. at 11. If telephone number A was used to call telephone number B, which in turn was used to call telephone number C, and if the FISC affirms the government’s “reasonable articulable suspicion” that A is associated with a foreign terrorist organization, the FISC may authorize the government to retrieve from the database the metadata associated with A, B, and C. (Before 2014, the FISC orders allowed the government to conduct queries for any number within three steps of the approved identifier, and the FISC did not play any role in assessing the government’s “reasonable articulable suspicion” for each query. Id. at 12 n.3). Once the government has retrieved the metadata, which does not include the content of the calls or the identities of the callers, it uses the data “in conjunction with a range of analytical tools to ascertain contact information that may be of use in identifying individuals who may be associated with certain foreign terrorist organizations because they have been in communication with certain suspected-terrorist telephone numbers or other selectors.” Id. at 9, 15.

Plaintiffs contend that this bulk collection constitutes an unlawful search under the Fourth Amendment; they seek injunctive and declaratory relief as well as damages. Third Amended Complaint ¶ 53, Klayman v. Obama, 13-cv-851 (D.D.C. Feb. 10, 2014), ECF No. 77. The district court issued a preliminary injunction barring the government from collecting plaintiffs’ call records, but stayed its order pending appeal. Klayman v. Obama, 957 F. Supp. 2d 1, 44-45 (2013).

The court reverses the judgment of the district court, and for the reasons stated in the opinions of Judge Brown and Judge Williams orders the case remanded to the district court. (Judge Sentelle dissents from the order of remand and would order the case dismissed.) The opinions of the judges appear below after a brief explanation of why the case is not moot.

See NYTimes: Setback for Suit Against N.S.A. on Phone Data by James Risen.