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ACLU V. Clapper Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 1 of 52 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION; NEW YORK CIVIL LIBERTIES UNION; and NEW YORK CIVIL LIBERTIES UNION FOUNDATION, 13 Civ. 3994 (WHP) Plaintiffs, ECF Case v. JAMES R. CLAPPER, in his official capacity as Director of National Intelligence; KEITH B. ALEXANDER, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service; CHARLES T. HAGEL, in his official capacity as Secretary of Defense; ERIC H. HOLDER, in his official capacity as Attorney General of the United States; and ROBERT S. MUELLER III, in his official capacity as Director of the Federal Bureau of Investigation, Defendants. DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS THE COMPLAINT STUART F. DELERY PREET BHARARA Assistant Attorney General United States Attorney for the Southern District of New York JOSEPH H. HUNT Director DAVID S. JONES TARA M. La MORTE ANTHONY J. COPPOLINO JOHN D. CLOPPER Deputy Director CHRISTOPHER HARWOOD Assistant United States Attorney s JAMES J. GILLIGAN 86 Chambers Street, 3rd Floor Special Litigation Counsel Tel. No. (212) 637-2739 (Jones) Fax No. (212) 637-2730 MARCIA BERMAN [email protected] Senior Trial Counsel [email protected] [email protected] BRYAN DEARINGER [email protected] Trial Attorney U.S. Department of Justice Washington, D.C. Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 2 of 52 TABLE OF CONTENTS Page PRELIMINARY STATEMENT……………………………………………………………….. 1 STATEMENT OF FACTS……………………………………………………………………… 2 A. Statutory Background.......................................................................................... 2 B. The Collection of Telephony Metadata Records Authorized by the FISC…….. 4 C. Plaintiffs’ Allegations…………………………………………………………… 7 ARGUMENT………………………………………………………………………………..….. 9 POINT I: THE COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFFS HAVE NOT ESTABLISHED THEIR STANDING .…………………………… 9 A. The Requirements of Article III Standing ..…………………………………..…. 9 B. Plaintiffs Allege Injuries That Are Speculative and Conjectural, Not Certainly Impending……………………………………………………………. 11 POINT II: CONGRESS IMPLIEDLY PRECLUDED JUDICIAL REVIEW OF PLAINTIFFS’ STATUTORY CLAIM .………………………………………. 14 POINT III: THE GOVERNMENT’S BULK COLLECTION OF TELEPHONY METADATA IS AUTHORIZED UNDER SECTION 215…………………… 19 A. The Telephony Metadata Collected Under the FISC’s Orders Are “Relevant” to Authorized National Security Investigations ..…………………. 20 1. Congress Intended Section 215 To Incorporate a Broad Concept of Relevance, Drawn from the Legal Meaning Applied in Grand Jury, Civil, and Administrative Proceedings, That Also Takes Into Account the Special Characteristics of the Terrorism Investigations to Which It Applies……………………… 21 2. Congress Has Legislatively Ratified the Construction of Section 215 as Allowing for the Bulk Collection of Telephony Metadata Records………………………………………….. 26 i Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 3 of 52 3. Telephony Metadata Are “Relevant” Within the Meaning of Section 215 Because Bulk Collection of the Data Enhances the Government’s Ability To Detect Terrorist Operatives and Prevent Terrorist Attacks………………….… 28 B. Nothing in the Text of Section 215 Prohibits the Collection of Records “as They Are Generated”………………………………………….. 29 POINT IV: THE GOVERNMENT’S COLLECTION OF TELEPHONY METADATA DOES NOT VIOLATE PLAINTIFFS’ FOURTH AMENDMENT RIGHTS .…………………………………………………….. 31 A. Plaintiffs Have No Fourth Amendment Privacy Interest in Telephony Metadata……………………………………………………………………….. 31 B. The Government’s Acquisition of Metadata Is Reasonable…………………… 35 POINT V: PLAINTIFFS HAVE NOT PLAUSIBLY ALLEGED THAT THE GOVERNMENT’S COLLECTION OF TELEPHONY METADATA VIOLATES THE FIRST AMENDMENT ……………………………………. 37 A. Plaintiffs’ Failure To Allege An Actionable Fourth Amendment Claim Is Also Fatal To Their First Amendment Claim ................................................ 37 B. Plaintiffs Make No Allegations That the Government’s Collection of Telephony Metadata Is Intended to Curtail Protected Expressive or Associational Activity……………………………………………………….… 39 CONCLUSION……………………………………………………………………………….. 40 ii Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 4 of 52 TABLE OF AUTHORITIES Cases Page(s) ACLU Found. of S. California v. Barr, 952 F.2d 457 (D.C. Cir. 1991) ................................................................................................ 38 Am. Civil Liberties Union v. Nat'l Sec. Agency, 493 F.3d 644 (6th Cir. 2007) .................................................................................................. 38 Ashcroft v. Iqbal,, 556U.S. 662 (2009) .......................................................................................................... passim Atkins v. Parker, 472 U.S. 115 (1985) ................................................................................................................ 28 Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822 (2002) ................................................................................................................ 36 Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984) …………………….........……………. 16, 19 Block v. N. Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273 (1983) ................................................................................................................ 16 C.I.A. v. Sims, 471 U.S. 159 (1985) ................................................................................................................ 25 Carrillo Huettel, LLP v. U.S. S.E.C., 2011 WL 601369 (S.D. Cal. Feb. 11, 2011) .......................................................................... 22 Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002).................................................................................................. 5, 6 Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013) ................................................................................................... passim Conopco, Inc. v. Roll Int'l, 231 F.3d 82 (2d Cir. 2000) ..................................................................................................... 5 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .......................................................................................................... 9, 10 Dew v. United States, 192 F.3d 366 (2d Cir. 1999) .................................................................................................. 19 E.E.O.C. v. Shell Oil Co., 466 U.S. 54 (1984) .......................................................................................................... 21, 28 iii Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 5 of 52 F.A.A. v. Cooper, 132 S. Ct. 1441 (2012) .......................................................................................................... 15 F.T.C. v. Invention Submission Corp., 965 F.2d 1086 (D.C. Cir. 1992) ............................................................................................ 22 FDIC v. Meyer, 510 U.S. 471 (1994) .............................................................................................................. 15 Forest Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009) ...............................................................................................................28 Gordon v. Warren Consol. Bd. of Educ., 706 F.2d 778 (6th Cir. 1983) ................................................................................................. 38 Goshawk Dedicated Ltd. v. Am. Viatical Servs., LLC, 2007 WL 3492762 (N.D. Ga. Nov. 5, 2007) .......................................................................... 22 Guest v. Leis, 255 F.3d 325 (6th Cir. 2001) ...................................................................................................33 Haig v. Agee, 453 U.S. 280 (1981) .......................................................................................................... 28, 36 In re Adelphia Commc'ns Corp., 338 B.R. 546 (Bankr. S.D.N.Y. 2005) .................................................................................... 22 In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d) 830 F. Supp. 2d 114 (E.D. Va. 2011) ............................................................................... 19, 33 In re Application of the United States, 632 F. Supp. 2d 202 (E.D.N.Y. 2008) .................................................................................... 30 In re Application of U.S. for an Order for Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F. Supp. 2d 448 (S.D.N.Y. 2006) ........................................ 30 In re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 551 F.3d 1004 (Foreign Int. Surv. Ct. Rev. 2008) .................................................................. 36 In re Grand Jury Proceedings, 616 F.3d 1186 (10th Cir. 2010) .............................................................................................. 21 In re Grand Jury Proceedings: Subpoenas Duces Tecum, 827 F.2d 301 (8th Cir. 1987) .............................................................................................22, 35 In re Motion for Release of Court Records, 526 F. Supp. 2d 484 (Foreign Intel. Surv. Ct. 2007) ................................................................ 3 iv Case 1:13-cv-03994-WHP
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