Another FISC case disagreeing with Klayman released (without adversarial briefing, of course). In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [Redacted], 2014 U.S. Dist. LEXIS 157864 (For. Intel. Surv. Ct. June 19, 2014) (link doesn’t work):
Prior to deciding whether to re-authorize the bulk telephony metadata collection through the appended Primary Order, I considered with care the stated changes to the minimization procedures. As described, the first set of changes approved in the February 5 Order provide enhanced protections for the bulk telephony metadata. While the March 12 Opinion and Order allows the government to retain bulk telephony metadata beyond five years, it allows the government to do so for the sole purpose of meeting preservation obligations in civil litigation pending against it.
U.S. District Court Cases
In recent months, the legality of the bulk telephony metadata collection has been challenged on both statutory and constitutional grounds in proceedings throughout the country, and four U.S. District Court judges have issued opinions on these challenges. Smith v. Obama, No. 2:13-CV-257-BLW, 2014 WL 2506421 (D. Idaho June 3, 2014); A.C.L.U. v. Clapper, 959 F. Supp. 2d 724 (S.D.N.Y. 2013); Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013); and U.S. v. Moalin, No. 10cr4246 JM, 2013 WL 6079518 (S.D. Cal. November 18, 2013). In three of the four cases in which judges have issued opinions (i.e., all but the Klayman case), they have rejected plaintiffs’ challenges to this collection. In particular, with respect to Fourth Amendment challenges raised by plaintiffs, the judges in Smith, Clapper and Moalin recognized that the Supreme Court’s decision in Smith v. Maryland is controlling and does not support a finding that the bulk telephony metadata collection is a violation of the Fourth Amendment.
In Klayman, Judge Richard J. Leon of the U.S. District Court for the District of Columbia alone held that the plaintiffs were likely to succeed on their claim that the bulk telephony metadata collection was an unreasonable search under the Fourth Amendment. Klayman, 957 F. Supp. 2d at 41. Judge Leon ordered the government to cease collection of any telephony metadata associated with [the plaintiffs’] personal Verizon accounts” and destroy any such metadata in its possession, but he stayed the order pending appeal. Id. at 43.
On January 22, 2014, a recipient of a production order in Docket Number BR 14-01 filed a Petition (“January 22 Petition”) pursuant to 50 U.S.C. § 1861(f)(2)(A) and Rule 33 of the Foreign Intelligence Surveillance Court (“FISC”) Rules of Procedure, asking this Court “to vacate, modify, or reaffirm” the production order issued to it.3 According to the Petitioner, the Petition arose “entirely from the effect on [the recipient] of Judge Leon’s Memorandum [Opinion],” and specifically, that Judge’s conclusion that the Supreme Court’s decision in Smith v. Maryland is “inapplicable to the specific activities mandated by the [Section] 1861 order at issue in the Klayman litigation.” January 22 Petition at 3-4. Pursuant to the requirements of 50 U.S.C. § 1861(f), Judge Rosemary M. Collyer of this Court issued an Opinion and Order on March 20, 2014 (“March 20 Opinion and Order”), finding that the Petition provided no basis for vacating or modifying the relevant production order issued in Docket Number BR 14-01.4 In her March 20 Opinion and Order, Judge Collyer engaged in an extensive analysis of Judge Leon’s opinion in Klayman, ultimately disagreeing with his conclusion that Smith v. Maryland is inapplicable to the collection of bulk telephony metadata.
In issuing the Primary Order appended hereto which re-authorizes the bulk telephony metadata collection, I have carefully examined the noted U.S. District Court opinions, and I agree with Judge Collyer’s analysis and opinion of the Klayman holding.
Amicus Curiae Brief
On April 3, 2014, the Center for National Security Studies filed an amicus curiae brief explaining why it believes that 50 U.S.C. §1861 does not authorize the collection of bulk telephony metadata. The amicus brief made a number of thoughtful points, the merits of which I have analyzed. Notwithstanding the Center’s arguments, I find the authority requested by the FBI through the instant Application meets the requirements of the statute, and that the collection of bulk telephony metadata may be authorized under the terms of the statute.
Conclusion
The unauthorized disclosure of the bulk telephony metadata collection more than a year ago led to many written and oral expressions of opinions about the legality of collecting telephony metadata. Congress is well aware that this Court has interpreted the provisions of 50 U.S.C. § 1861 to permit this particular collection, and diverse views about the collection have been expressed by individual members of Congress. In recent months, Congress has contemplated a number of changes to the Foreign Intelligence Surveillance Act, a few of which would specifically prohibit this collection. Congress could enact statutory changes that would prohibit this collection going forward, but under the existing statutory framework, I find that the requested authority for the collection of bulk telephony metadata should be granted. Courts must follow the law as it stands until the Congress or the Supreme Court changes it.
In light of the public interest in this particular collection and the government’s declassification of related materials, including substantial portions of Judge Eagan’s August 29 Opinion, Judge McLaughlin’s October 11 Memorandum, and Judge Collyer’s March 20 Opinion and Order, I request pursuant to FISC Rule 62 that this Memorandum Opinion and Accompanying Primary Order also be published, and I direct such request to the Presiding Judge as required by the Rule.
