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Download Legal Document Appeal: 15-2560 Doc: 31-1 Filed: 02/24/2016 Pg: 1 of 35 No. 15-2560 444444444444444444444444 In the United States Court of Appeals for the Fourth Circuit ________________ WIKIMEDIA FOUNDATION, ET AL., Plaintiffs-Appellants, v. NATIONAL SECURITY AGENCY, ET AL., Defendants-Appellees. ________________ On Appeal from the United States District Court for the District of Maryland, Baltimore Division _______________ Brief Amicus Curiae of United States Justice Foundation, Free Speech Defense and Education Fund, Free Speech Coalition, Western Journalism Center, Gun Owners of America, Gun Owners Foundation, Downsize DC Foundation, DownsizeDC.org, Conservative Legal Defense and Education Fund, Institute on the Constitution, and Policy Analysis Center in Support of Plaintiffs-Appellants and Reversal ________________ MICHAEL CONNELLY ROBERT J. OLSON* 932 D Street, Ste. 2 HERBERT W. TITUS Ramona, CA 92065 WILLIAM J. OLSON Attorney for Amicus Curiae JEREMIAH L. MORGAN U.S. Justice Foundation WILLIAM J. OLSON, P.C. 370 Maple Avenue W., Suite 4 Vienna, Virginia 22180-5615 *Attorney of Record (703) 356-5070 February 24, 2016 Attorneys for Amici Curiae 444444444444444444444444 Appeal: 15-2560 Doc: 31-1 Filed: 02/24/2016 Pg: 2 of 35 !"# $ %&# '($$()(" "(*+(, &-+#(&.)"-!(&%(! ( + / )""'("(% "(" ! &"not 0 %$!"' &" % "(" +$!(&&%, &" )("-+$!("(" (,* &! &"&() ( 1&!(&%(!( (&,$!( *#(&.)"-("&+()(" ""' ("&&"' %"""( &% %)(" " "' !(&%(!( 1 )(" % $ &%(&" & ( !&( )" &*"& ( (&% )(" (! ( ( 0 %"$ % "(" ! &"1 $ & &" ( ," % $ (&% % &" &" &% " $ %! &" "' "'(& "' 0 % % "(" ! &"+ & !(- $ "' % "(" ! &" & )() ("' "'(& "&$!1 & '((&"&&,%"-")%(" "'&$!("&1 1222222222215-2560 ()"&322222222222222222222222222222222222222222222222222Wikimedia Foundation, et al. v. National Security Agency, et al. (&""41(&%( 41+ 222222222222222222222222222222222222222222222222222222222222222222222222222222US Justice Fndn, FSDEF, Free Speech Coal., Western Journalism Ctr., Gun Owners of America, Gun 5&(! $)("-(!6 222222222222222222222222222222222222222222222222222222222222222222222222222222Owners Fndn., Downsize DC Fndn, DownsizeDC.org, CLDEF, Inst. on the Constitution, and PAC 7'22222222222222222222222+!(.amici "' $7&,% 3 5()) (&"()) ) ""& )&% &"(!&" * &6 1 )("-(!()#-' %)("&"' )#-' % &""-8 9 ✔ 1 )("-(!'(* (&-)( &")("&8 9 ✔ $- +% &"$-()( &")("&+&%&,(, & ("&$)( &")("&3 :1 ;! $"' ".$()("-(!7& %#-()#-' %)("& "' )#-' % &""-8 9 ✔ $- +% &"$-('7& 3 Appeal: 15-2560 Doc: 31-1 Filed: 02/24/2016 Pg: 3 of 35 <1 "' (&-"' )#-' %)("&"' )#-' % &""-"'("'((% " $&(&(&" "&"' "! $"' ",("&5( 415#668 9 ✔ $- +% &"$- &""-(&%&(" $&" "3 1 )("-("(% (("&85(!( %&"!) " "'0 "&6 9 $- +% &"$-(&-)#-' %! !# 7' ". 0"-*( %# ($$ " % #"(&"(-#-"' "! $"' ) %&,7' (!"' "(% (("& )&,&( ) &"("* ()("-+"(" "'(""' &'! !# 3 41 "'( ( "$(#(&.)"-) %&,8 9 ✔ $- +% &"$-(&-"" (&%"' ! !# $(&- %"R!!"" 3 ,&(" 3222222222222222222222222222222222222/s/ Robert J. Olson (" 32222222222222222222February 24, 2016 & $32222222222222222222222222222222222U.S. Justice Foundation, et al. CERTIFICATE OF SERVICE ************************** "$-"'("&22222222222222222"'February 24, 2016 $ ,&,%! &"7( * %&()(" "' & $ %"','"' > -" !$"' -( ," % +$"' -( &"+#- *&,(" (&% ")-(""' (%% " %# 73 2222222222222222222222222222222/s/ Robert J. Olson 222222222222222222222222February 24, 2016 5,&(" 6 5%(" 6 Appeal: 15-2560 Doc: 31-1 Filed: 02/24/2016 Pg: 4 of 35 TABLE OF CONTENTS Page TABLE OF AUTHORITIES. iii INTEREST OF AMICI CURIAE. 1 STATEMENT OF THE CASE. 2 ARGUMENT. 4 I. THE DISTRICT COURT REJECTED PLAINTIFFS’ CLAIM OF STANDING ON THE THEORY THAT IT IS IMPOSSIBLE TO KNOW FOR CERTAIN THAT THE GOVERNMENT IS DOING SOMETHING THE GOVERNMENT HAS PUBLICLY ANNOUNCED IT IS DOING. 6 A. The PCLOB Report Supports Standing. 7 B. The Actions of the Government and Its Agents Support Standing. 10 II. THE DISTRICT COURT’S FOURTH AMENDMENT STANDING DECISION APPEARS TO BE BASED UPON AN UNSPOKEN — AND UNCONSTITUTIONAL — ASSUMPTION. 13 A. The District Court Appears to Assume the NSA’s Search Is an Insignificant Intrusion on Privacy Rights. 13 B. Plaintiffs Have Alleged Not Only a Privacy Violation, but also a Violation of Property Rights. 14 C. The NSA Upstream Surveillance Program Violates the Property Principle. 17 i Appeal: 15-2560 Doc: 31-1 Filed: 02/24/2016 Pg: 5 of 35 III. THIS COURT HAS A DUTY TO PROTECT FOURTH AMENDMENT RIGHTS IN A CASE PROPERLY BROUGHT BEFORE IT. 19 A. The District Court Failed to Exercise Its Judicial Power.. 19 B. The District Court’s Failure to Reach the Merits Puts Our Liberties at Great Risk. 23 CONCLUSION. 26 ii Appeal: 15-2560 Doc: 31-1 Filed: 02/24/2016 Pg: 6 of 35 TABLE OF AUTHORITIES Page HOLY BIBLE Esther 4:14. 26 CONSTITUTION Amendment IV.. 3, passim CASES Brinegar v. United States, 338 U.S. 160 (1949).. 23, 24, 26 Clapper v. Amnesty International USA, 568 U.S. ___, 133 S.Ct. 1138 (2013).. 4, 8, 22 Coolidge v. New Hampshire, 403 U.S. 443 (1971). 11 Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409 (2013). 16 Jewel v. NSA, 2015 U.S. Dist. LEXIS 16200 (N.Dist. Cal. 2015). 4 Kyllo v. United States, 533 U.S. 27 (2001). 18 Marbury v. Madison, 5 U.S. 137 (1803). 23 Martin v. Reynolds Metals Co., 342 P.2d 790 (Ore. 1959). 18 United States v. Jones, 565 U.S. ___, 132 S.Ct. 945 (2012). 16, 17, 18 Younger v. Harris, 401 U.S. 37 (1971). 20 MISCELLANEOUS J. Fitzpatrick, ed., The Writings of George Washington from the Original Manuscript Sources, 1745-1799 (Washington, D.C., 1931-44).. 5 T. Fleming, 1776: Year of Illusions (W.W. Norton & Co. 1975). 6 P. Hamburger, Is Administrative Law Unlawful? at 55-57 (Univ. Chi. Press 2014). 22 W. Harris, Tyranny on Trial: The Trial of the Major German War Criminals at the End of World War II At Nuremberg, Germany, 1945-1946, Southern Methodist University Press (1954). 25 M. Hayden, Playing to the Edge (Penguin Press 2016). 5 NSA Inspector General, “Implementation of §215 of the USA PATRIOT Act and §702 of the FISA Amendments Act of 2008,” (Feb. 20, 2015).. 9 G. Orwell, 1984. 2 PCLOB, Recommendations Assessment Report (Feb. 5, 2016). 3 PCLOB, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (July 2, 2014). 7, passim iii Appeal: 15-2560 Doc: 31-1 Filed: 02/24/2016 Pg: 7 of 35 Sources of our Liberties (R. Perry & J. Cooper, eds. ABA Foundation). 3 C.H. Whitebread, Criminal Procedure: An Analysis of Constitutional Cases and Concepts, (The Foundation Press: 1980).. 11 iv Appeal: 15-2560 Doc: 31-1 Filed: 02/24/2016 Pg: 8 of 35 INTEREST OF AMICI CURIAE United States Justice Foundation, Free Speech Defense and Education Fund, Free Speech Coalition, Western Journalism Center, Gun Owners of America, Gun Owners Foundation, Downsize DC Foundation, DownsizeDC.org, Conservative Legal Defense and Education Fund, and Policy Analysis Center are nonprofit organizations, exempt from federal taxation under sections 501(c)(3) or 501(c)(4) of the Internal Revenue Code. Institute on the Constitution is an educational organization. Each is dedicated, inter alia, to the correct construction, interpretation, and application of the law.1 Some of these amici filed amicus curiae briefs in other challenges to NSA surveillance programs: • Amicus Curiae Brief of Gun Owners Foundation, et al., Clapper v. Amnesty International USA, U.S. Supreme Court, No. 11-1025 (Sept. 24, 2012). • Amicus Curiae Brief of U.S. Justice Foundation, et al., Jewel v. NSA, 9th Circuit, No. 15-16133 (Aug. 17, 2015). 1 Amici requested and received the consent of the parties to the filing of this brief amicus curiae, pursuant to Rule 29(a), Federal Rules of Appellate Procedure. No party’s counsel authored the brief in whole or in part. No party or party’s counsel contributed money that was intended to fund preparing or submitting the brief. No person other than these amici curiae, their members or their counsel contributed money that was intended to fund preparing or submitting this brief. 1 Appeal: 15-2560 Doc: 31-1 Filed: 02/24/2016 Pg: 9 of 35 STATEMENT OF THE CASE This case presents a constitutional challenge to what must be the largest, most egregious, and ongoing series of unconstitutional searches and seizures of private communications since the Fourth Amendment was ratified. In the name of national security, justified by an undeclared yet perpetual war,2 not against a nation state, but against a vague and amorphous enemy named “terrorism,” various federal agencies are and have been engaged in a truly Orwellian surveillance3 and monitoring of “text-based” Upstream communications that transit the Internet. Even if the National Security Agency’s (“NSA”) surveillance program works exactly the way the government describes minimizing surveillance of ordinary, innocent persons, it is still the case that the electronic communications 2 See George Orwell, 1984, p. 43 (“Oceania had always been at war with Eurasia.”). 3 “Any sound that Winston made, above the level of a very low whisper, would be picked up by [the telescreen], moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard. There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live — did live, from
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