Opinion and Order

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UNJTED STATES
FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, D.C.
IN l{E APPLICATION OF THE FEDERAL
BUHEAU OF JNVESTJGATION FOR AN
ORDER REQUIRING THE PRODUCTION OF
TANGIBLE THINGS
OPINION AND ORDER
On January 22, 2014,
Undef fu!fil
Docket No. BR 14-01
filed n
Petition pursuant to 50 U.S.C. § 1861(f)(2)(A) and Rule 33 of the Foreign JntcJJigcnce
Survernance Court (uFJSC" or "the Court") Rules of Procedure "to vacate, modify, or
reaffirm" a production order issued 	anuary 3, 2014 (''Petition"). Aflcr
conducting t11e initial rcvie'"' required by Section 1861(f)(2)(A)(ii) and FISC RuJe 39, the
Court detel'mined that the Petition is not frivolous and issued a Scheduling Order
pursuant to FISC Rule 39(c) on January 23, 2014. Pursuant to lhe Scheduling Order, the
United States filed its Response to the Petition on February 12.1 2014 (''Response0 ). The
Petition is now ripe !ot review. For the reasons set forth below, the Court concludes
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lhat the Petition provides no basis for vacating or modifying the production ol'der.
Accordingly, that order is affinraed and remains in full force and effect until it expires
by its own terms on March 28, 2014.
J. 	BACKGROUND
On January 3" 2014, this Court issued a Primary Order approving the
Government's application pursuant to Section 501 of the Foreign Intelligence
Surveillance Act of 1978, codified al 50 U.S.C. § 1861, as amended ("F.ISA"), for orders
requiring the production to the National Security Agency ("NSA"), in bulk and on an
ongoing basis, of non-content call detail records or "telephony metadata" created by
certain telecommunications carrier~ 	"January 3 Primary OrderJ').
Jan. 3 Primary Order at 3. 1 served with one of the resulting production
01·ders on the snme date and has complied with the order, as it 11as with previous orders
requiring the bulk production of telephony metadata. ~Pet. at 2; id. Exh. 1 (copy of
Jan. 3, 2014 "Secondary Order'' issued 	The Primary 0l'dcr
and Secondary Order expire on March 28, 2014, at 5:00 p.m. Eastern Time. See Jan. 3
P1imary Order at18; Pct. Exh. 1 (Secondary Order) at 4.
FISA permits the recipient of a production order issued undcl' Section 1861 to
1 The January 3 Primary Order is available in redacted form at
http://www/uscourts.gov/uscourts/courts/fisc/br14-0l-primary-order.pdf.
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"challenge the legality of that order by filing a pctition11
with this Court. 50 U.S.C. §
186l(f)(2)(A)(i); see also FISC Rule 33(a).2 It further provides that "[a] judge considering
a petition lo modHy or set aside a production order may grant such petition only if the
judge finds that such order does not meet the requirements of this section or is
otherwise unlawful." 50 U .S.C. § 1861 (f)(2)(B). If the judge docs not modify 01· set aside
the production order, the judge must "immediatcJy affirm such order, and order the
recipient to comply therewith." k:L; see also FISC Rule 41(b). The judge must also
pl'Ovide a "written statement ... of the reasons" for modifying, setting aside, or
affhming the produclion order. 50U.S.C.§1861{£)(2)(a)(iii); FISC Rule 41(a).
Jn its Petition 	Klayman v.
Obama. Civil Action No. 13-0851 (RJL) (D.D.C. June 6, 2013), a suit in which the
plaintiffs assert, among other things, that a production order issued lo Verizon by this
Court in Docket No. BR 13-80, 	is
2 Such a petition must be filed 11
under seal." 50 U.S.C. § 1861(£)(5). After it is
filed, the petition must "immediately" be assigned to one of the three FISC judges who
reside within 20 miles of the District of Columbin. 50 U.S.C. § 1861 (f)(2)(A)(ii); see aJso
ftlSC Ruic 38(a). \1
Vilhin 72 hours, the assigned judge must conduct an initial review of
lhe petition. 50 U.S.C. § 186l(f)(2)(A)(iii); sec also FISC Rule 39(a). If the assigned judge
concludes that the petition is frivolous, he or she must ''immediately deny the petition
and affirm the production order." 50 U.S.C. § 1R61 (f)(2)(A)(ii); see also FJSC Rule 39(b).
If the assigned judge determines that the petition is not frivolous, the judge must
"promptly consider the petition." 50 U.S.C. § 1861 (f)(2)(A)(ii); see also FISC Rule 39(c).
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unconstitutional. See Pet. at 2. On December 16, 2013, Judge Richard J. Leon issued a
Memorandum Opinion in Klayman, a copy of which is attached as Exhibit 2 to the
Petition, holding that the plaintiffs are likely to succeed on their claim that the bulk
collection of call detail records authorized by the production order issued to Verizon in
FJSC Docket No. BR 13-80 is "an unreasonable search under the Fourth Amendment."
~kb (citing Klayman v. Ohama. 957 F. Supp. 2d 1, 41 (D.D.C. 2013)). Judge Leon
ordered that the Government cease collection of /1
any telephony mctadata associated
with {the plaintiffs'] personal Verizon accounts" and destroy any such metadata in its
possession, but he stayed the order pending appeal. ~.UL (citing Klayman. 957 F.
Supp. 2d at 43).
the Petition ''arises entirely from
Judge Leon's Memorandum fOpinionj/' and, specifically, his conclusion Hrnt Supreme·
Court's decision in Sffdth v. Mar}rland, 442 U.S. 735 (1979), is "jnapplicable to the
specific activities mandated by the [Section] 1861 order at issue in the Klayman
litigation.'' llL at 3-4. 	'nits Petition th(lt this Court may have
"considered and rejected" Judge Leon's analysis in issuing the January 3, 2014
production order, but that the Secondary Onie 	docs not refer to
Judge Leon's decision and tha 	not been provided with the Court's
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underlying legal anaJysis." kL at 4. 	asks this Court to "vacate,
modify, or reaffirm the current production order in light of the Memorandum Opinion
issued in Klayman." ld.3 it is complying with the production
order and "will continue to comply fully \·vi th that order unless otherwise directed by
the Court." ~
The Government asserts in its Response that
[t]hc Primary Order in the above-captioned docket number makes dear
that the Court, in entertaining and ultimately ruling upon the
Government's application, carefully considered not only the opinions
entered by Judges Eagan and McLaughlin of this Court in docket numbers
BH 13-109 and BR 13~158, respectively,[''I and the decision issued by the
United States District Court for the Southern District of New York in
American Civil Liberties Union v. Clapper, [959] F. Supp. 2d [724j . , .
(Dec. 27, 2013), but (llso [Judge Leon's Memorandum Opinion in
Klayman].
3 Prior to t'he filing of 	'no holder of records who ha[dJ
received an Order to produce bu Ik telephony metadata'' or any other tangible things
pursuant to Section 1861 "ha( d] challenged the legality of such an Order." In J~e
Application of the FBI for an Order Requiring the Production of Tangible Thing§,
Docket No. BR 13-109, 2013 WL 5741573, at *S (F.ISA Ct. Aug. 29, 2013) (herein~fter
11 Aug. 29, 2013 Amended Op.").
" ~Aug. 29, 2013 Amended Op., 2013 WL 5741573 (Eagan, J.); In He
Application of the FBI for nn Order Requiring the Production of Tangible Things.
Docket No. BR 13-158, ·Memorandum (FISA Ct. Oct. 11, 2013) (McLaughlin, J.), available
at http://www.uscourts.gov/uscou rts/courts/fisc/br13-l 58~mcmo-131018.pdf (hcrcinaf tcr
"Oct. 11, 201.3 Mem.'').
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J{esponse at 3 (citing Jan. 3 Primary Order at 2 n.1).5 In light of that statement, the
Government asserts that "it is appropriate for the Court to affirm its January 3, 2014
Secondary Order 	and to order 	coirtpliancc with
that production order." Td.
JI. 	ANALYSIS
10t contest that the production order at issue here is consistent
with the l'equirements of Section 1861. See Petition at 2-4. The only question raised in
the Petition is whether the production order is unlawful under the Fourth Amendment
in light of Judge Leon's December 16 opinion in Klayman. ~ id. at ,1. 1l is true, as the
Government observes in Hs Response, that the Comt stated in the January 3 Primary
Order that it had carcfuJly considered Judge Leon's opinion in KJayman before issuing
the requested production orders. See Jan. 3 Primary Order at 2 n.1. Nevertheless,
las fiJed a Petition under Section 1861 (f), the undersigned Judge must
consider U1e issue anew.
A. 	Standjng.
Before turning to the Fourth Amendment issue raised 	the
Court must first address the question of standing. In chalJenging the production order,
5 The Government apparen J 	did not share the Primary Order with-
until 	had filed its Petition. ~Pet. at 4.
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10t its own Fourth Amendment rights, but those of its customers. See
Pct. at 3-4. Litigants ordinarily cannot assert the rights of third parties in an Article III
court. ~Jn Re Directives Pursuant to Section 1058 of l~ISA. 551 F.3d 1004, 1.008 (PISA
Ct. Rev. 2008) (citing Hinck v. United Sates. 550 U.S. 501, 510 n.3 (2007), and Warth v.
Seldin. 422 U.S. 490, 499 (1975)). But, as the Foreign Intelligence SurveilJancc Court of
Review cxplain~d in addressing D simiJar challenge brought under a similar but nm·v
expired provision of FISA, "that prudential limitation may in particular cases be relaxed
by congressional action." kL (citing Warth, 422 U.S. at 50:1 ).6 "Thus, if Congress, either
exprc$sfy or by fair implication, cedes to a party the right to bring suit based on the
legal rights or interests of others, that party has standing to stte; provided, however,
that constitutionnl standing requirements arc satisfied." g,h (citing Warth. 422 U.S. at
500-01).
To have standing under Article III of the Constitution, "the suitor must plausibly
6 In In Re Directives. the Court of Review concluded that a service provider that
had received a "directive" pursuant to the Protect America Act ("PAA")- a now-
expircd provision of FISA that was codified at 50 U.S.C. § 1805a-c- had standing to
assert the Fourth Amendment rights of its cuslomel's in a petition filed '\Nith the FISC.
551 F.3d at 1008-09. The PAA authorized the Executive Branch to direct
communications service providers to assist it in acquisitions targeting persons located
outside the United States. Jd. at 1006. It also provided that the recipient of a directive
"'may challenge the legality of that directive 111
in a petition to the FJSC. kL (quoting
now-expired 50 U.S.C. § J805b(h)(l)(A)).
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allege that it has suffered an .injury, which was caused by the defendant, and the effects
of which can be addressed by the suit." Id. (citing Warth, 422 U.S. at 498-99). The Court
is satisfied 	has Article Ill standing here. 1.ikc
'faces an injury in the nature of t·hc burden that it must shoulder" to
provide the Government with call detail records. Id. That injury is "obviously (lnd
indisputably caused by the JG]ovemmcnt" through the challenged Secondary Order,
and this Court is capable of redressing the injury hy vttcating or modifying the order.
~id.
The Court is also satisfied that Congress ha 	s the recipient of
a Section 1861 production order, the right to bring Cl chaJlcnge in this Court to enfotce
the rights of its customers. As noted above, FISA 8tatcs that the recipient of a Section
1861 production order "may challenge the legality of that order by filing a petition"
with the FJSC. 50 U.S.C. § 1861(f}(2)(A)(i). As with the similar provision at issue .in In
Re Dfrectiycs. Sedion 1861(f) "does nothing to circumscribe the types of claims oi
illegality that can be brought:'' ln Re Directives, 551 F.3d at 1009 (discussing now-
expired 50 U.S.C. § 1805b(h)(1)(A)), the PAA provision. described nbove in note 6).
Indeed, it provides that this Court may modify or set aside a production ol'der "if the
judge finds that such order docs not meet the requirements of this section or is
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otherwise unlawful." thus suggesting that Congress intended to permit the recipients of
production orders to bring a range of challenges. 50 U.S.C. § 186l(f)(2)(B) (emphnsis
added). The Court therefore concludes that Section 1861.(f) "grants an aggrieved service
provider a 1·ighl of action and extends that right to encompass claims brought by it on
the basis of [its] customers' rights." Jn Re Directives. 551 F.3d at 1009 (reaching the
same conclusion regarding the similar language of the PAA).
B. 	The Fourth Amendment.
Turning now to the merits of the Fourth Amendment issue, this Court finds
Judge Leon's analysis in Klayman to be unpersuasive and concludes that it provides no
basis for vacating or modifying the Secondary Order issue~anuary 3,
2014. The Fourth Amendment provides that:
111e right of the people to be secure in thefr persons, houses., papers, and
effects against unreasonable searches and seizures, shall not be violated,
and no \!\,Tarrants shalJ issue, but upon probable cause, supported by Oath
or affirmation, nnd particularly describing the place to be searched, and
the person or thing to be seized.
U.S. Const., Amend. IV. For purposes of the Fourth Amendment, a "'search" occurs
when the Government violates a person's reasonable expectation of privacy, see Srnith,
442 U.S. at 740 (citing cases), or when the Govemmt'nt physicaJJy intrudes on a
protected area for the purpose of acquiring information, United States v. Jones, 132 S.
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Ct. 945, 951 (2012).
1. 	Smitlr v ..Mm·i1tand and its Progeny.
In Smith, investigators acting without a warrant caused the telephone company
to install a pen register at its offices to record the numbers dialed on the home phone of
Smith, who was suspected of robbing and then harassing a woman through anonymous
phone calls. Smith. 442 U.S. at 737. The pen register confirmed that the calls had
originated from Smith's phone. ~ The dialing information was used to obtain a
'-\'arrant to search Smith's home, and he was later convicted. Id. at 737-38. The
Supreme Court rejected Smith's claim that the use of the pen register violated the
Fourth Amendment, holding that it was not a search. kt at 745 .. 46. The Court
explained that:
[w]hen he used his phone, {Smith] voluntarily conveyed numerical
information to the telephone company and "exposed" that information to
its equipment in the ordinary course of business. In so doing, [Smith]
assumed the risk that the company would reveal to police the numbers he
dialed.
Id. at 744. The Court observed that it "consistently has held that a person has no
legitimate expectation of privacy in information he voluntarily turns over to third
parties. 11
!di at 743-44 (citing other cases applying the same third-party disclosure
principle). Other courts have relied on Smith in concluding that the Fourth
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Amendment does not apply to "trap and trace" devices, which £unction like pen
registers but record the originating numbers of incoming cal1s, or to information such as
the date, time, and duration of calls. See, e.g., United States v. Reed. 575 F.3d. 900, 914
(9th Cir. 2009); United Sates Telecom Ass'n v. FCC, 227 F.3d 450, 454, 459 (D.C. Cir.
2000); United States v. Hallmark, 911. f.2d 399, 402 (10th Cir. 1990).
The information 	produces to NSA as part of the telephony mctadata
program is indistinguishable in nature from the information at issue in Smith and its
progeny. It includes dialed and incoming telephone numbers and other numbers
pertaining to the placing or routing of calls, as well as the date, time, and duration of
calls. Sec Pct. Exh. l (Secondary Order) <it 2. 7 It do~s llQJ include the "contents" of any
commwiications ns defined in 18 U.S.C. § 2510; the nan'le, address,, or financial
jnformation of anv subscriber or customer; or cell site location information. See id.~ 	--
Accordingly1 lwo judges of this Court (in addition to the judge who issued the January
3 Primary Order in this docket) and two federal district courts have recently concluded
7 The Secondary Order states that "[t]elephony metadata includes
comprehensive communications routing information1 jncluding but not limited to
session identifying information (e.g., originating and terminating telephone numbct·,
International Mobile Subscriber Identity (IMS!) number, International Mobile station
Equipment ldenti~y (IMEI) number, etc.), ttunk identifier, telephone calling cilrd
numbers, and time and duration of caJ1." Pet. Exh. 1 (Secondary Order) at 2 (HaHcs jn
original).
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that ,Smilh is controlling with respect to the bulk telephony meladata produced to NSA.
~Clapper. 959 F. Supp. 2d at 749-52 (Pauley, J.)i United States v. Moalin. Case No.
10cr4246 JM, 2013 WL 60795'18, at *7-*8 (S.D. Cal. Nov. 18, 2013) (.Miller, ].)i Oct. 11, 2013
Mem. at 4-5 (McLaughlin, J.); Aug. 29, 2013 Amended Op., 2013 WL5741573, at*2-*3
(Eagan, J.).
2. 	Judge Leo11 1
s Analysis in Klaw1111n..
Judge Leon acknowledged in Klayman that "what metadata is has not changed
over time. As in Smith, the types of information at issue [here] are relaHvely limited:
phone numbers dialed, date, time, and the like." 957 F. Supp. 2d at 35 (italics in
origina1). He nevertheless declined to follow Smith, providing four reaso11s why, in his
view., the NSA telephony metadata program "is so different from a simple pen register
that Smith is of little value in assessing whether [it] constitutes a Fourth Amendment
search/' Idt at 32. First, Judge Leon asserted that the pen register in Smith lasted only
thirteen days, with no indication from the Supreme Court "that it expected the
Government to 1·etain those limited phone records once the case was over." Id. The
NSA prog1·am1 on the other hand., 1
'involves the creation and maintenance of a historical
database containing/ive years' worth of data/' and might "go on for as Jong as America
is combating terrorism, which realistically could be forever!" Id. (italics and
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exclamation point in original).
Second, Judge Leon asserted, "the relatio11ship between the police and the phone
company in Smith is nolhing compared to the relationship that has apparently evolved
over the last seven years beh\1 een the Government and the telecon1 companies." Id.
(Ha lies in original). 'J'he pen register in Smith involved the phone company's response
to a "one time, targeted request for data regarding an individual," whereas the NSA
program involves the daily production of metadata, in bulk. Id. at 33. While people
might expect phone companies to JI occasionally provide information to law
enforcement," Judge Leon expressed doubt that "citi~ens expect a.11 phone companies to
conduct what is effectively a joint intelligence-gathering operation with the
Govemment."' Ms
Third, Judge Leon asserted, "the a1most..Orwe1Iian technology" that enables the
Government to store and analyze phone metadata following its acquisition is "unUke
anything that could have been conceived in 1979." Id. According to Judge Leon, the
Government uses the "most advanced nvenly-first century tools, allowing it to 'store
such records and efficiently mine them for information years into the future/" and to do
so cheaply and surreptitiously, thus evading the /11
ordinary checks that constrain.
abusive law enforcement practices: limited police ... resources and community
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hostility/" Id. (quoting !ones. 132 S. Ct. at 956 (Sotomayor, J., concurring)).
Fourth, and "most importantly,," according to Judge Leon/the nahtrc and quantity
of the information contained in people's telephony metadata [today] is much greater"
than it was at the time of Smllh. kL at 34 (italics in original). Because more people use
phones (and, in particular, cellular telephones) and use them more frequently now than
in 1979, Judge Leon asse1ted that the "the metadata fro1n each person's phone 'reflects a
wealth of detail about her familial, political, p1·ofessionaJ, religious, and sexual
associations,'" that "could not have been gleaned from a data collection in 1979." !di at
36 ((1uoting ~ 132 S. Ct. at 955 (Sotomayo1~ J., concmring)). "Records that once
would.have revealed a few scattered tiles of information about a person now reveal an
entire mosaic-a vibrant and constantly updating picture of the person's Jife." ld.
(citing United States v. Maynard, 615 F.3d 544, 562-63 (D.C. Cir. 2010), aff'd sub nom
United States v. Tones. 132 S. Ct. 945 (2012)).
3. 	Smith Remains Controlling Notwithslanding Klaw11an.
This Court respectfully disagrees with Judge Leon's reasons for deviating from
Smith. To begin with, Judge Leon. focused largely on what happens (and ,.vhat could
happen) to t'he telephony metadata after it has been acquired by NSA - e.g., how long
the metadata could be retained and how the Government could analyze it using
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sophisticated technology. Smith and the Supreme Court's other decisions applying the
third-party disclosure pdnciple make clear that this focus is misplaced in assessing
whether the production of telephony metadata constitutes a search under the Fourth
Amendment.
Smith reaffirmed that the third-party disclosure principle-i.e., the rule that "a
person has no legitimate expectation of privacy in information he voluntarily turns over
to third parties," Smith. 442 U.S. at 743-44 (citing cases)- applies regardless of the
disclosing person's assumptions or expectations wUh respect to what will be done with
the information following its disclosure. ·n1e Supreme Court emphasized:
"This Court has held repeatedly that the Fourth Amendment does not
prohibit the obtaining of information revealed to a third party and
conveyed by him to Government authorities, even if the information is
revealed on the assumption that it wilJ be used only for a limited purpose
and the confidence placed in the third party will not be betrayed."
Smith. 442 U.S. at 744 (quoting United States v. MHler, 425 U.S. 435, 443 (1976))
(emphasis added). 	Because the disclosing person assumes the risk of further disclosure
by the third party, the Court exp1ained it is "'unreasonable" for him uto expect his * ••
records to remain private."' Jd. 	The Supreme Court's other thfrd-party disclosure cases
are also dear and consistent on this point. ~Miller. 425 U.S. at 443 (citing United
States v. White. 401 U.S. 745, 752 (1971); Hoffa v. United States. 385 U.S. 293, 302 (1966);
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Lopez v. United States. 373 U.S. 427 (1963)); see also S.E.C. v. Jerry T. O'Brien. Inc,, 467
U.S. 735, 743 (1984) ("It is established that, when a person communicates information to
a third party even on the understanding that the communication is confidential, he
cannot object if the third party conveys that information or records thereof to law
enforcement authorities.") (emphasis added). 8
Applying this rationale, the Supreme Court rejected Smith's contention that he
had a legitimate expectation of privacy in the dialing information for the incliminating
phone calls because they were local calls for which the phone company would not have
recorded such .information in the ordinary course of business:
The fortuity of whether o.r not the phone company in fact elects to make a
quasi-permanent record of a particular number dialed does not in our
view, make any constitutional difference. Regardless of the phone
company's election, petitioner voluntarily conveyed to it information that
it had the facilities for recording and that it was free to record. In these
circumstances, petitioner assumed the l'isk that the information would he
8 Bond v. United States. 529 U.S. 334 (2000), cited by Judge Leon, see 957F. Supp.
2d at 33 n.47, did not involve the disclosure of information to a third party and does not
support a different approach here. In Bond. the Supreme Court held that a Jaw
enforcement agent conducted a search of a bus passenger's carry-on bag by squeezing it
in an effort to determine what was inside. kL at 338-39. The Court explained that while
a bus passenger might expect others to touch or move a carry-on bag he places in the
overhead compartment, he does not reasonably expect that others "will feel the bag in
an exploratory manner." Id. Unlike the passengel' in Bond, who ''sought to preserve
privacy by ·using an opaque bag and placing that bag directly above his seat," id. at 338,
a telephone usel' who is making a call fully divulges to the phone company the numbers
he dials.
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divulged to police.
Smith. 442 U.S. at 745.
If a person ·who voluntarily discloses information can have no reasonable
expectation concerning limits on how the recipient will use or handle the information, it
necessarily follows that he or she also con harbor no such expectation with respect to
how the Govermnent wilJ use or handle the information after it has been divulged by
the recipient. Smith itseJf makes clear that once a person has voluntarily conveyed
dialing information to the telephone company, he forfeits his right to privacy in the
information, regardless of how it might be later used by the recipient or the
Government. See liL AccordinglyJ Judge Leon's concerns regarding NSA' s retention
and analysis of the caH detail records are irreleva1:1t in determining whethet a Fourth
Amendment search has occuned.
For the smne reason, Judge Leon's assertions regarding citizens' expectations
with respect to the "relationship ... between the Government and the telecom
companies,"~ Klayman. 957 F. Supp. 2d at 32-33, also provide no basis for departing
from Smith. Under Smit11, MiJler. and the other third-party disclosure cases cited
above, any such expectations or assumptions on the part of telephone users who have
disclosed their dialing information to the phone company have no bearing on the
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question whether a search has occurred. See Smith, 442 U.S. at 744.9
Judge Leon's assertions regarding the nahtre and quantity of telephony metadata
acquired by NSA likewise foil to justify deviating from the dear holding of Smj th.
Judge Leon acknowledged that the types of information acquired by NSA in the
telephony metadata program are "'limited" to "phone numbers dialed, date, time, and
the like." 957 F. Supp. 2d at 35. He nevertheless stressed that phones today, and, in
particular, ceH phones, are not just telephones, but "multi-purpose devices'' that can be
used to access Internet content., and as maps, music players, camerns, text messaging
9 The hvo decision8 cited by Judge Leon on this point are not to the contrary. See
Klayman. 957 F. Supp. 2d at 33. U.S. Dep't of Iustice y. Reporters Comm. for Freedom
of the Press, 489 U.S. 749 (1989), is not a Fourth Amendment case at all. And Ferguson
y. City of Charleston. 532 U.S. 67 (2001.), is distinguishable. There.. the Court addressed
a program involving the nonconsensuaJ urine testing of pregnant women for illegal
drugs by a state hospital, which shared positive results with police. See id. at70-73.
The Court examined the relationship between the hospital and the police not in
determining whether the udne tests constituted searches within the meaning of the
Fourth Amendment (the Court stated that they "indisputably" did, .kL at 76), but .in
assessing whether the purpose of the progran1 was law enforcement or something
different. See id. at 82-85. At issue here is whether the NSA telephony metadata
program involves a search in the first place.
Furthermore, Judge Leon's suggestion that the NSA telephony metadata
program, like the drug testing program in Ferguson. entails "the service provider['s]
collect[ion of] information for law enforcement purposes," Klayman. 957 F. Supp. 2d. at
33, is incoi-rect. As he acknowledges earlier in his opinion, the information produced to
NSA consists of "telephony metadata records ... which the companies create as part of
their business of providing telecommunications services to customers." Id. at 15
{emphasis added).
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devices1 and even as "lighters for people to hold up at rock concerts."' M.t at 34. Judge
Leon asserted that people today therefore have an "entirely different relationship" ·with
their telephones than they did when Smith was decided. Id. at 36. But none of these
additional functions generates any information that is being collected by NSA as part of
the telephony metadata program, which as discussed above, involves only non-content
records concerning the placing and routing of telephone calls. Accordingly, such
changes are irrelevant here. 10
Judge Leon also repeatedly emphasized the total quantity of telephony metadata
obtained and retained by NSA. 11 That focus is likewise misplaced under settled
30 Judge Leon also noted thal "telephony metadata" for cell phones also "'can
reveal the user's location" but stated that "'[his] decision ... does not turn on whether
the NSA has in fact collected that data as part of the bulk telephony metadata program"
Id. at 36 n.57 (italics in original). The metadata produced in this matter does not include
cell site 1ocation information or Global Positioning System ("GPS") data. See Jan. 3
Primary Order at 4; Pet. Exh. 1 (Secondary Order) at 2.
11 See Klayman. 957 F. Supp 2d. at 30 (articulating question presented as
"whether plaintiffs have a reasonable expectation of privacy that is violated when the
Government indiscriminately collects their metadata along with the metadata of
hundreds of mi11ions of other citizens" without particularized suspicion) (emphasis
added)i id. at 33 ("'The notion that the Government could collect similar data on
hundreds of mi1Iions of people and retain that data for a five-year period, updating it
with new data every day in perpetuity, was al' best-, in 1979, the stuff of science fiction.")
(-emphasis added);~ at 33 n.48 ("The unpreceder1ted scope and technological
sophistication of the NSA' s program distinguish it not only from t·he Smith pe11 register,
but also from metadata collections performed as part of routine criminal
(continued ... )
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Supreme Court precedent. The Court has repeatedly reaffirmed that Fourth
Amendment rights are "personal rights" that "may not be vicariously asserted." See
Rakas v. Illinois, 439 U.S. 128, 133-34 (1978) (citing cases; citations and internal quotation
marks omitted); accord Minnesota v. Carter. 525 U.S. 83, 88 (1998). Accordingly, the
aggregate scope of the collection and the overall size of NSA' s database are immaterial
in assessing whether any person's reasonable expectation of privacy has been violated
such that a search under the Fourth Amendment has occurred. To the extent that the
quantity of the metadata collected by NSA is relevant, it is relevant only on a user-by-
user basis. The pertinent question is whether a particular user has a reasonable
expectation of privacy in the telephony metadata associated with his or her own calls.
For purposes of determining whether a search under the Fourth Amendment has
occurred, it is irrelevant that other users' information is also being collected and that the
aggregate amount acquired is very large. Cf. United States v. Dionisio, 410 U.S. l, 13
(1973) (grand jury subpoena not "rendered unreasonable by the fact that many others
were subjected to the same compulsion").
Properly viewed on a user-by-user basis, the NSA telephony metadata program
11 ( ••• continued)
investigations.") (emphasis added); id. at 34 (citing statistics regarding the number of
phones and cell phones in use today, as compared to 1979).
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is consistent with Supreme Court precedent, \·Vhich time and te.clmology have not
affected. United States v. Miller, the principal precedent relied upon by the Court in
Smith. was, notably, a case involving the compelled production of records of customer
activities. TI1e Court held that a ban]:< customer had no legitimate expectation of privacy
in three-and-a-half months worth of bank records acquired from two banks. Miller, 425
U.S. at 443. The records in question consisted of checks, deposit slips, monthly
statements, and finandal statements and were turned over to police investigators
pursuant to a grand Jury subpoena. Id. at 438. Invoking the same principle that would
later be retied upon in Smith, the Court explained that the documents in question
"contain[ed] only information voluntarily conveyed to the banks and exposed to their
employees in t·he ordinary course of business." Id. at 442. The Court further stated that
"[t]he depositor takes the risk, in 1·evealing his affairs to another, that the infonnation
will be conveyed by that person to the Govemment. 11 ht at 433.
It is far from clear to this Court that even years' worth of non-content call detail
records \-vould reveal more of the details about a telephone user's personal life than.
several months' worth of the same person's bank records. Indeed, bank records are
likely to provide the Government directly with detailed information about a customer's
personal life - e.g., the names of the persons withwhom t·he customer has ha.cl financial
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dealings, the sources of his income, the amounts of money he l1as spent and on what
forms of goods and services, the charities and political organizations that he supports -
that call detail records simply do not, by themselves, provide. Mil~ which was
decided in 1976, substantially undermines Judge Leon's conclusion that Smith does not
apply to the NSA telephony metadata program because the metadata from each
pe1·son's phone reveals so much about a person "that could not have been gleaned from
a data collection in 1979," when Smith ·was decided. See Klayman. 957 F. Supp. 2d at 36.
Many more personal details could immediately and directly be obtained from bank
records such as those in the production approved by the Court in Mi11er without raising
Fourth Amendment concerns.
Moreover, it must be emphasized that the non-content telephony metadata at
issue here is particularly limited in nature and subject to strict protections that do not
apply to run·of-the-rnill productions of similar information in criminal investigations.
The call detail records acquired by NSA do not include subscriber names or addresses
or other identifying information. See Pct. Exh. 1 (Secondary Order) at 2. Rather, such
jnformation can be determined by the Government for any particular piece of metadata
only by resorting to other investigative resources or tools, such as grand jury subpoenas
or national security Jette:rs. Furthermore, pursuant to thjs Court's Primary 01·der, the
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metadata can only be accessed for analytical purposes after NSA has established a
i-casonable articulable suspicion ("I~AS") that the number to be used to query the data -
the "seed" - is associated with one of the terrorist groups listed in the Order. See Jan. 3
Primary Order at 6-9 & nn. 8-9. Each query is limited to metadata within two (formerly
three) "hops" of the seed. See kL at 11-12; Feb. 5, 2014 Order Granting Government's
Motton to Amend the Court's Primary Order Dated January 3, 2014 ("Feb. 5 Order'')., at
3-4, 9. 12 These protections further undercut Judge Leon's reliance on the perceived
intrusiveness of the telephony metadata program as a basis for deviating from Smith.13
12 The February 5 Order is available at
http://www.uscourts.gov/uscourts/courts/fisc/br-14-01-order.pdf.
13 As originally issued by the Court, the January 3 Primary Order - like
pt·edecessor ordcl's- required certain designated NSA officials to make the requisite
HAS determinations. See Jan. 3 Primary Order at 7. Also like predecessor orders,. the
January 3 Primary Order permitted the query results to include the metadata for
numbers within three "hops" of the querying seed. See kL at 10-11. The Court recently
granted lhe Government's motion to amend the January 3 Primary Order to preclude
NSA, except in the case of an emergency, from que1'Ying the repository of telephony
metadata without first having obtained a determination by this Court that the RAS
standatd is satisfied for each querying seed. See Feb. 5 Order at 3-4, 9. The Court also
granted the Government's request to limit query results to metadata for numbers "\·\1ithin
two "'hops'' of the querying seed. ~id.
Whether the RAS determination requirement is applied with or without direct
judicial involvement, it sharply restricts the Government's access to and use of the
collected telephony metadal'a. The same is true of the restriction on the scope of query
results_, whether the limit is tvm or three 11 hops." Indeed, because these restrktions limit
(continued ... )
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4. 	United States v. lom~s Does Not Support a Differ·enl. Conclusion.
The Supreme Court's more recent decision in~ provid.es no basis for
departing from Smith with respect to the Government's acquisition of non-content
telephony metadata. In Ion.es, law enforcement officers acting without a valid warrant
surreptitiously attached a GPS device to the defendant's Jeep and used it to track his
locaUon for 28 days. Jones. 132 S. Ct. at 948. The district court denied Jones' motion to
suppress in large pal't, holding that the GPS evidence acquired while the vehicle was on
public roads was admissible under United States v. Knotts, 460 U.S. 276, 281 (1983) (use
of radio beeper lo track defendant's car on public roads did not violate any reasonab1e
expectation of privacy). See id.
Following Jones' conviction, the comt of appeals reversed on this point, holding
that the use of the GPS device over 28 days was a search under the Fourth Amendment.
Maynard. 615 F.3d at 558. ln doing so, the court of appeals concluded that Knotts was
not controlling and adopted a novel mode of analysis. See id. at 556-66. Hather than
assessing the likelihood that Jones' discrete movements over the 28 days had
13
( ••• continued)
NSA to looking fo1· information on specific terrorist groups and not other persons, the
vast majority of the metadata acquired by NSA is never reviewed by any person. See In
Re.Application of the FBI for an Order Requiring the Production of Tangible Things,
2013 WL 5741573, at *8 n.23.
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individually been exposed to the public, the court of appeals - 	applying a "mosaic"
analysis similar to the one later used by Judge Leon in Klayman- considered whether
his movemertts, viewed in the aggregate, were so exposed. See kb at 562. Because it
was extremely unlikely that any single member of the public would actually observe the
collective whole of Jones' movements over the course of the GPS tracking, the court of
appeals concluded that Jones had a reasonable expectation of privacy that had been
vio~ated by the tracking. See id. at 560 ("[T]he whole of a person's movements over the
course of a month is not actually exposed to the public because the Hkelihood a stranger
would observe all those movements is not just remote, it is essentially nil."). The court
of appeals denied the Government's petition for rehearing en~ with four judges
dissenting. See Uni.ted States v. Tones. 625 F.3d 766 (D.C. Cir. 2010).
111e Supreme Court affirmed the court of appeals, but on different grounds. The
Court held in Justice Scalia's majority opinion that the officers' conduct constituted a
search under the Fourth Amendment because the information at issue was obtained by
means of a physical intrusion on the defendant's vehicle, a constih1tionally-protected
area. Jones, 132 S. Ct. at 949, 953. The Court declined to address the question whether
u.se of the GPS device., without the physical intrusion, impinged upon a reasonable
expectation of privacy, and therefoxc did not pass on the court of appeals' novel
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"mosaic" analysis of that question. kL. at 953-54. The Court cited Smith, but only in
passing. See kh at 950. The Court's opinion does not support Judge Leon's conclusion
that a modern telephone user has a legitimate expectation of privacy in the metadata
relating to his calls, which is disclosed to the telephone company for the purpose of
completing calls, or that the larger number of calls made in today's world undermines
Smith's holding.
Judge Leon relied instead on the two concurring opinions in Jones. To be sure,
those opinions express the view that the p1~ecise, pervasive monitoring by the
Government of a person's location might trigger Fourth Amendment protection even
without any physical intrusion. See Tones, 132 S. Ct. at 955-56 (Sotomayor, J.,
concurring); id. at 962-64 (AJito, J., concurring in the judgment). They also signal that
five Justices of the Court may be ready to endorse a new mode of analysis similar to the
"mosaic" theory adopted by the court of appeals in Maynard. See id. But the
concurring opinions in~ nevertheless fail to support deviation from Smith in
connection with the NSA telephony metadata program.
Of course, the majority opinion in Jones is controlling, and, as discussed above,
that opinion does not even reach the reasonable-expectation-of-privacy issue.
Moreover, although the two concurring opinions address privacy, they suggest distinct
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analytical approaches and thus can hardly be read as having adopted a single, coherent
principle 01· methodology for lower courts to apply. Justice Sotomayor's approach - on
which Judge Leon appears to have modeled much of his analysis in I< layman. 957 F·.
Supp. 2d at 36 - looked to "whether police conduct collected so much information that
it enabled police to learn about a person's private affairs 'more or less at will."' Orin S.
Ken, "The Mosaic Theory of the Fourth Amendment," 111 Mich. L. Rev. 311, 328 (Dec.
2012) (quoting Jones. 132 S. Ct. at 955-56 (Sotomayor., J., concurring)). Justice Alito' s
opinion, in which .three other justices joined, focused instead on "whether the
investigation exceeded society's expectations for how the poHce would investigate a
patticular crime." .kL (citing 132 S. Ct. at 964 (Alito, J., concurl'ing in the judgment)). 14
These distinct approaches to the expectation-of~privacy question undercut Judge Leon's
suggestion that the five concurring Justices in Jones can be viewed as a~ facto majority
on the issue. ~Klayman. 957 F .. Supp. 2d at 31 (stating that "five justices found that
law enforcement's use of a GPS device to track a vehicle's movements for nearly a
month violated Jones's reasonable expectation of pl'ivacy").
Furthermore, Justice Ali to' s opinion, in which three other Justices joined, does
14 Notably, each of these approaches also differs from the court of appeals'
methodology, which, as discussed above, focused on whether Jones' movements over
nearly a month would have been observed by a single member of the public. See
Maynard. 615 F.3d at 560.
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not mention Smith at all. See~ 132 S. Ct. at 957-64 (Alito, J., concurring in the
judgment). And although Justice Sotomayor stated in her concurring opinion that "it
may be necessa1y to reconsider"' the third-party disclosure prindple applied in Smith
and Miller. which she described as 11
ill suited to the digital age," she expressly stated
that it was unnecessary for the Court to undertake such a reexamination in~. See
id. at 957 (Sotomayor, J., concurring) (""Resolution of these difficult questions in this case
is unnecessary ... because the Government's physical intrusion on Jones' Jeep supplies
a narrower basis for dedsion."). 15
15 Both the opinion of the Supreme Court in~ and Justice Sotomayor's
concurring opinion mention a brief passage in Knotts reserving the question whether
t·he tracking of a person's location might become so pervasive or abusive as to requfre a
different approach. See~ 132 S. Ct. at 952n.6i id. at 956 n.* (Sotomayor, J.,
concurring). The respondent in Knotts had argued that "the result of a ruling for the
Government will be that 'twenty-four hour surveillance of any citizen of this country
will be possible without judicial knowledge or supervision."' Knotts. 460 U.S. at 283
(quoting Brief for Respondent). In response, the Supreme Court asserted that "the
'reality hardly suggests abuse,"' and that "if such dragnet-type .law enforcement
practices as respondent envisions should eventually occm·., there will be time enough
then to determine whether different constitutional principles may be applicable." Id.
(quoting Zurcher v. Stanford Daily. 436 U.S. 547, 566 (1978)).
Contrary to Judge Leon's conclusio.n, see Klayman. 957 F. Supp. 2d at31-32 &
n.46, this passage from Knotts also fails to support his decision to depar'l' from Smith.
Unlike Knotts (and Jones), this matter does not involve the electronic tracking of
location at all, much less the sort of "twenty-four hour" tracking envisioned by the
respondent in Knotts. Instead, this case, like Smith. involves the production of call
detail records created by the phone company based .on data submitted to it by callers.
(continued ... )
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Smith directly applies to the call detail records produced as part of the NSA
telephony mctadata program and remains binding even after Ion~. Judge Leon1
s
efforts to distinguish Smith are unpersuasive, and his analysis in Klayman is also
difficult to reconcile with other Supreme Court decisions, such as Rakas and Carter.
which1 as discussed above, hold that Fourth Amendment rights are personal and cannot
be vicariously asserted. The broader adoption of Judge Leon's approach would raise
numerous difficult questions requiring the reexamination of a range of settled Fourth
Amendment precedents. See Kerr, "The Mosaic Theory of the Fourth Amendment,"
111 Mich. L. Rev. at 328-43; see also Jones. 132 S. Ct. at 954 (asserting that Justice Alito's
expectation~of-privacy analysis would lead to "thorny probl.ems'').16 Any such overhaul
15
( ••• continued) 	.
Smith. which is directly applicable to such information, docs not state or suggest that
application of the third-party disclosure principle depends upon the quantity of dialing
information disclosed by a caller or turned ovel' the Government. Indeed, any such
statement or suggestion would be contrary to the logic of the decision - that by
voluntarily disclosing dialing information to the phone company, a caller forfeits any
legitimate expectation of privacy therein. Smith, 442 U.S. at 744 (citing MiBer. 425 U.S.
at 442-44)).
16 A Hueshold question is which standard should govern.; as .discussed above, the
court of appeals' decision in Maynard and the h-vo concurrences in Tones suggest three
different standards. See Kerr, "The lvfosaic Theory of lhe Fourth Amendment/' 111
Mich. L. Rev. at 329. Another question is how to group Government actions in
assessing whether the aggregate conduct constitutes a search. See lli For example,
''[w]hich surveillance methods prompt a mosaic approach? Should courts group across
(continued ... )
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of Fourth Amendment Jaw is for the Supn~me Court, rather that\ this Court, to initiate.
While the concurring opinions in Ione8 ma}' signal that some or even most of the
Justices are ready to revisit certain settled Fourth Amendment principles, the decision in
~itself breaks no new ground cc.mcerning the third-party disclosure doctrine
generally or Smith specifically. 'fhe concurring opinions notwithstanding, Jones simply
cannot be read as invit·jng the lower courts to rewrite Fourth Amendment Jaw in this
area. This Court concludes that where the acquisition of non-content call detail records
such as dialing information is concerned, Smith rcmllins controlling. 17
IIJ. 	CONCLUSION
For the foregoing reasons, 	asks this Court to modify or set
aside the Secondary Order is~ucd to it on January 3, 2014, the Petition is denied.
16( ... continucd)
survcifJance methods? 1f so, how?" Id. Sti11 another question is hmv to analyw the
reasonableness of mosaic searches, which "do not fit an obvious doctrinal box for
determining reasonableness." .l!1 Courts adopting a mosaic theory would also have to
determine whether, and to what extent, the exclusionary rule applies: Does it /1
extend
over all of the mosaic or only the surveilJance that crossed the line to trigger a search?"
Idt al 329-30.
11 Because this Court concludes that Smith i~ controlling and that the telephony
metadata program involves no search under the Fourth Amendment, the Court need
not address the question of reasonableness. See Klayman, 957 F. Supp. 2d at 37-42
(holding that plaintiffs a1·e likely to succeed in showing searches that Judge Leon
concluded are effected by NSA telephony metadata program are unreasonable).
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Pursuant to 50 U.S.C. § 1861(f)(2)(B)., the Secondary Order is affirn1cd,
directed lo continue to comply with the Secondary Order unti] it expires by its own
terms.
Since last summer, tht~ Government has declassified and made public subst~ntial
details regarding the NSA telephony metadata program. Among other things,
substantial portions of this Court's January 3 Primary Order and aII predecessor orders
have been publicly released. In light of those disclosures and the ongoing public debate
regarding this program, both the Governmcn 	ubmit
memoranda (or a joint memorandum) stating their views with respect to whether this
Court can or should unseal the Petition, the Government's Response, and this Opinion
and Order, and whether appropriately redacted versions of these documents should be
published pursuant to FJSC Rule 62(a). Such memoranda are to be submitted, under
seal, no later than 5:00 p.m. Eastern Time on April 10, 2014.
SO ORDERED, this 20th day of March, 2014.
~f!f!td1/l/!r-]udge, United States Foreign
Intelligence Surveillance Court
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