Klayman v. Obama

Concerning the Legality of the NSA Metadata Program

Summary

On December 16, 2013, the U.S. District Court for the District of Columbia ruled in Klayman v. Obama that the NSA's bulk collection of domestic telephone call detail records likely violated the Fourth Amendment. The court granted the Plaintiff's motion for a preliminary injunction, but stayed the order pending review by the U.S. Court of Appeals for the D.C. Circuit. The court found that the Plaintiff, as a Verizon customer, had standing to challenge the constitutionality of the NSA's collection of call detail records.

Top News

  • EPIC Seeks Release of FISA Order for Trump Tower: EPIC has filed an urgent FOIA request with the Department of Justice for the release of the warrant for wiretapping the Trump Tower in New York city. The President has charged that President Obama "had [his] wires tapped in Trump Tower." EPIC has filed a formal Freedom of Information request of the public release of any applications filed under "FISA" for wiretapping in Trump Tower. Such an order would have been filed by the National Security Division of the Justice Department and approved by the Foreign Intelligence Surveillance Court. The complete text of the Foreign Intelligence Surveillance Act is available in the Privacy Law Sourcebook (EPIC 2016) at the EPIC Bookstore. (Mar. 6, 2017)
  • EPIC Urges House Committee To Ensure Transparency, Public Reporting in Surveillance Law: In advance of a hearing on Section 702 of the Foreign Intelligence Surveillance Act, EPIC has sent a letter to the House Judiciary Committee urging increased transparency and new public reporting of the Government's surveillance activities. EPIC also highlighted that Section 702 is the central focus of multiple current legal challenges to international data transfer agreements occurring abroad. Section 702, which authorizes the bulk surveillance on the communications of non-U.S. persons, sunsets on December 31, 2017. EPIC testified before the Committee during the 2012 FISA reauthorization hearings. (Mar. 1, 2017)
  • Intelligence Director Releases Report on Signals Intelligence Reform: The Director of National Intelligence released a final progress report from the Obama administration on signals intelligence reform. The DNI report detailed the agency's efforts under Presidential Policy Directive 28 to increase transparency and accountability. Clapper also highlighted the Privacy and Civil Liberties Oversight Board's oversight role and stated that transparency is "difficult, but also, in my view, essential." The DNI stated, "The IC routinely provides the Board with the information and access it requests to carry out its oversight duties." The report also notes implementation of the Freedom Act, which prohibits the bulk collection of domestic telephone records. EPIC has supported enhanced transparency for the Intelligence Community and filed a Supreme Court petition to end the bulk data collection program. (Jan. 24, 2017)
  • Senator Leahy Calls for FISA Reforms: The Senate Judiciary Committee held a hearing on the FISA Amendments Act, a law that grants the government broad surveillance powers over Internet communications. The Act, commonly referred to as "Section 702,: is the basis for the NSA’s “PRISM” program. EPIC testified before the House Judiciary Committee in 2012 on the need to limit the scope of Section 702 surveillance and to improve transparency of the Foreign Intelligence Surveillance Court. US and EU NGOs have since called for the end of the section 702. This week Senator Patrick Leahy (D-VT) stated that "additional reforms are needed to protect Americans’ privacy, and restore global trust in the U.S. technology industry." (May. 13, 2016)
  • Intelligence Court Skeptical of Some FISA Applications: The Department of Justice has published the 2015 FISA report, which summarizes the use of the Foreign Intelligence Surveillance Act. The report also details the number of applications rejected or modified by the FISA Court (FISC). Overall, the Government’s applications for FISA warrants has declined since 2003  but there was a slight uptick this year with 1,456 orders granted. A significant number of orders were modified by the FISC. The FISC modified 80 orders and the Government even withdrew one application. Prior to the USA FREEDOM Act, which limited bulk collection under section 215, the FISC modified many of those orders. (May. 3, 2016)
  • Intelligence Court Orders Government to Report on PRISM Collection: Three decisions by the Foreign Intelligence Surveillance Court (FISC) were made public this week. The Court identified serious “compliance and implementation issues” related to the Section 702 ("PRISM") surveillance program. The FISC found that the NSA did not purge personal data as required by minimization procedures, and also that the FBI failed to exclude attorney-client communications. In 2012, EPIC testified before Congress and recommended the publication of FISC opinions to facilitate public oversight. (Apr. 20, 2016)
  • Freedom Act Goes Into Effect, NSA Bulk Data Collection Ends: The Director of National Intelligence has announced that the NSA's bulk collection of domestic telephone records under "Section 215" ended yesterday when the USA Freedom Act took effect. The Freedom Act ended the NSA's 215 Program and established new transparency and accountability rules for the Foreign Intelligence Surveillance Court. In 2012, EPIC testified before the House Judiciary Committee on the need to reform the Surveillance Court. In 2013, EPIC filed a petition in the Supreme Court, In re EPIC, arguing that the NSA program was unlawful. In 2014, EPIC and a broad coalition urged the President to end the NSA surveillance program. (Nov. 30, 2015)
  • Court Suspends NSA Phone Record Collection Program : A federal court in Washington D.C. has ordered the National Security Administration to halt the bulk collection of domestic telephone records, ruling that the indiscriminate collection violates the Fourth Amendment. Following the USA Freedom Act, the telephone records program will expire at the end of the month. The government has moved to stay the judge's order. In 2013, EPIC brought the first challenge to the NSA surveillance program in the Supreme Court. EPIC has also testified before Congress on the need to reform the Foreign Intelligence Surveillance Court, and led a broad coalition urging the President to end the NSA surveillance program. (Nov. 10, 2015)
  • EPIC Joins Call for Transparency on Number of Americans Caught in NSA Surveillance: EPIC, joined by over 30 other organizations, urged the Director of National Intelligence, James Clapper, to disclose data on how many Americans are caught up in NSA surveillance of foreign targets. Americans’ communications are incidentally collected under Section 702 of the Foreign Intelligence Surveillance Act, and the FBI searches this data without a warrant or judicial oversight. EPIC, in testimony before Congress and comments to the Privacy and Civil Liberties Oversight Board, has repeatedly called for greater oversight and transparency of surveillance authorities. (Nov. 2, 2015)
  • Intelligence Director Says NSA Access to Bulk Phone Record Data Will End: The Director of National Intelligence announced today that the NSA analysis of "section 215" telephone records previously gathered will end when the USA FREEDOM Act goes into effect on November 29, 2015. Earlier this month, the U.S. Surveillance Court ruled that the NSA could continue collecting records during a 180 day transition period, despite an earlier decision finding the program was unlawful. In 2012, EPIC testified before the House Judiciary Committee on the need to reform the Surveillance Court. In 2013, EPIC filed a petition in the Supreme Court, In re EPIC, arguing that the NSA program was unlawful. In 2014, EPIC and a broad coalition urged the President to end the NSA surveillance program. (Jul. 27, 2015)
  • Surveillance Court Ignores Court Ruling, Reauthorizes NSA Bulk Collection Program: The Foreign Intelligence Surveillance Court has reauthorized the collection of domestic telephone records for 180 days. The Surveillance Court ignored the recent decision of the Federal Court of Appeals, which held that the NSA bulk collection program is unlawful. In 2012, EPIC testified before the House Judiciary Committee on the need to reform the Surveillance Court. In 2013, EPIC filed a petition in the Supreme Court, In re EPIC, arguing that the NSA program was unlawful. In 2014, EPIC and a broad coalition urged the President to end the NSA surveillance program. Congress then passed the Freedom Act to end program, but the FISC didn't get the memo. (Jul. 1, 2015)
  • Senate Passes FREEDOM Act, Ends NSA Bulk Collection: The Senate has passed the USA FREEDOM Act, sponsored by Senator Patrick Leahy (D-VT) and Senator Mike Lee (R-TX). The Act, which the President is expected to sign, ends the NSA bulk collection of domestic telephone records and establishes new transparency and accountability rules for the Foreign Intelligence Surveillance Court. In 2012, EPIC testified before the House Judiciary Committee on the need to reform the Surveillance Court. In 2013, EPIC filed a petition in the Supreme Court, In re EPIC, arguing that the NSA program was unlawful. In 2014, EPIC and a broad coalition urged the President to end the NSA surveillance program. (Jun. 2, 2015)
  • White House Begins Shutdown of Bulk Collection Program: According to media reports, the Administration has decided not to renew the legal authority for the NSA’s telephone record collection program. EPIC and a coalition of privacy organizations had urged the President to end the program, which he said he would do in 2014. In 2013, EPIC filed a petition in the US Supreme Court, supported by technical experts, legal scholars, and former members of the Church Committee, arguing that the program was unlawful. The Senate is expected to take up the USA Freedom Act on May 31, the day before key provisions of the Patriot Act expire. (May. 27, 2015)
  • House Passes Surveillance Reform Bill, Deadline Looms for Senate: The House of Representatives has passed the USA Freedom Act of 2015. The bill would end the NSA's controversial domestic telephone record collection program--a program the Second Circuit Court of Appeals recently ruled was unlawful. The Freedom Act would also establish new transparency requirements for the Foreign Intelligence Court, recommended by EPIC in testimony before the House Judiciary Committee in 2012. EPIC also opposed renewal of the NSA's Section 215 orders and petitioned the Supreme Court to suspend the program. The Senate is expected to take up the bill before the June 1 expiration of Section 215 of the Patriot Act. (May. 14, 2015)
  • Federal Appeals Court Strikes Down NSA Bulk Record Collection Program: The Second Circuit Court of Appeals ruled today that the NSA's telephone record collection program exceeds legal authority. The government claimed that it could collect all records under the Section 215 "relevance" standard. But the court rejected that argument and held that "such an expansive concept of 'relevance' is unprecedented and unwarranted." The conclusion mirrors the argument EPIC, and a coalition of technical expert, legal scholars, and former members of the Church Committee made in Petition to the Supreme Court in 2013. EPIC explained in its petition, "It is simply not possible that every phone record in the possession of a telecommunications firm could be relevant to an authorized investigation." The Second Circuit found that Section 215 does not "authorize anything approaching the breadth of the sweeping surveillance at issue here." (May. 7, 2015)
  • House Committee Approves Surveillance Reform Bill: The House Judiciary Committee voted to send the USA FREEDOM Act of 2015 to the House of Representatives for further consideration prior to the June 1 Patriot Act expiration deadline. The bill would end the NSA's controversial domestic telephone record collection program. The bill would also establish new transparency requirements for Intelligence Court Orders, recommended by EPIC in testimony before the House Judiciary Committee. EPIC also opposed renewal of the NSA's Section 215 orders and petitioned the Supreme Court to suspend the program. (May. 1, 2015)
  • Pew Survey: 57% of Americans Report That Government Surveillance of US Citizens Is "Unacceptable": The Pew Research Center has published a new report on "Americans' Privacy Strategies Post-Snowden". According to the Pew survey, 34% of Americans who know about the NSA's bulk collection of telephone records have taken "at least one step to hide or shield their information from the government." Further, 57% said that it is unacceptable for the US government to monitor the communications of US citizens. Yet 54% believe it would be "somewhat" or "very" difficult to find "tools and strategies that would help them be more private" online. EPIC maintains an Online Guide to Practical Privacy Tools and resources on Public Opinion and Privacy. EPIC also petitioned the US Supreme Court to halt NSA surveillance of domestic telephone calls. (Mar. 16, 2015)
  • UK Privacy Groups Prevail in GCHQ Spying Case: A British court that oversees intelligence gathering has ruled that GCHQ, the British spy agency, violated international human rights law with the mass collection of cellphone and Internet data. Last year, the same court ruled that data could lawfully be transferred between US and UK intelligence agencies. That earlier decision is on appeal to the European Court of Human Rights in Strasbourg. In 2013, following the disclosure of the "Verizon order," which authorized the NSA's routine collection of US telephone records, EPIC brought a petition to the US Supreme Court, arguing that the agency practice exceeded the "Section 215" authority. Dozens of legal scholars and former members of the Church Committee supported the EPIC petition. (Feb. 9, 2015)
  • Schneier: Over 700 Million People Taking Steps to Avoid NSA Surveillance: Famed technologist and EPIC Advisory Board member Bruce Schneier pushed back against media claims that Edward Snowden's revelations about the NSA have had little impact on Internet users. A recent global survey found that 39% of Internet users who have heard of Snowden have taken steps to protect their online privacy. Some news articles have characterized these users as "merely 39%" and "only 39%." But Schneier did the math and found that Snowden’s impact has been far from insignificant: "706 million people have changed their behavior on the Internet because of what the NSA and GCHQ are doing." A recent Pew survey also indicates that the NSA revelations have had a dramatic impact on Internet users. Last year, EPIC filed a petition to the U.S. Supreme Court to stop the NSA's collection of domestic telephone records, following the release of the "Verizon Order." For more information, see EPIC: In re EPIC, EPIC: Smith v. Obama, and EPIC: Foreign Intelligence Surveillance Act Reform. (Dec. 17, 2014)
  • British Court Upholds Mass Surveillance by UK Spy Agency: The Investigatory Powers Tribunal, which reviews complaints of unlawful surveillance by Britain's intelligence agencies, ruled that mass collection of online communications is legal. The complaint was brought by several privacy rights groups in the UK and focused on GCHQ's electronic surveillance program, TEMPORA, and information the UK spy agency obtained through NSA's PRISM and Upstream programs. The privacy rights groups plan to appeal the decision to the European Court of Human Rights. EPIC previously challenged the NSA's mass surveillance of U.S. phone records in a 2013 petition to the Supreme Court. EPIC's petition argued that the Foreign Intelligence Surveillance Court exceeded its authority when it ordered Verizon to turn over records on all of its customers to the NSA. The EPIC petition was supported by legal scholars and former members of the Church Committee. For more information, see In re EPIC and EPIC: Foreign Intelligence Surveillance Act Reform. (Dec. 8, 2014)
  • Senator Leahy Calls on the President to End Bulk Collection of Phone Records: Today Senator Patrick Leahy (D-VT) urged President Obama to end the dragnet collection of U.S. telephone records under Section 215 of the Patriot Act. The current authorization for the NSA's bulk collection program expires on Friday, December 5, 2014. Senator Leahy's comments follow the recent efforts to pass the USA FREEDOM Act of 2014, which would end the NSA's surveillance program. Senator Leahy said that ending the reauthorization of the program "would not be a substitute for comprehensive surveillance reform legislation - but it would be an important first step." In June EPIC, joined by many organizations, urged the President and Attorney General to end the bulk collection program. And in 2013 EPIC petitioned the Supreme Court, arguing that a special surveillance court exceeded its authority when it ordered Verizon to turn over records on all of its customers to the NSA. For more information, see In re EPIC and EPIC: Foreign Intelligence Surveillance Act Reform. (Dec. 4, 2014)
  • EPIC Seeks Reports on FISA Court Decisions: In a Freedom of Information Act lawsuit against the Department of Justice, EPIC filed a Motion for Summary Judgment on Friday arguing that the agency improperly withheld surveillance reports sought by EPIC. The semiannual reports, prepared for Congressional oversight committees, summarize significant FISA Court decisions and include the total number of FISA applications filed by the government and the number of U.S. persons targeted for surveillance. They are similar to reports that are routinely disclosed to the public. EPIC argued that the "FISA Pen Register" reports should also be disclosed because they describe topics of "utmost importance to the public and are necessary to inform the ongoing debate over current surveillance authorities." EPIC maintains a summary of all the annual FISA statistics published by the Attorney General. For more information, see EPIC v. DOJ: FISA Pen Register Reports and EPIC: FISA Court Orders. (Nov. 24, 2014)
  • Senate Republicans Block US Surveillance Reform: An effort led by Senator Patrick Leahy (D-VT) to pass the USA FREEDOM Act failed on a narrow procedural vote last night. The FREEDOM Act would have ended the NSA's bulk collection of US telephone records. The bill would also improve oversight and accountability of the Foreign Intelligence Surveillance Act. Last year, EPIC petitioned the Supreme Court to suspend the bulk collection of Americans' telephone records. EPIC's petition was supported by dozens of legal scholars and former members of the Church Committee. EPIC also testified in Congress in support of improved reporting for domestic surveillance activities. For more information, see EPIC: Foreign Intelligence Surveillance Act Reform and In re EPIC. (Nov. 19, 2014)
  • FCC Levies $10 Million Fine Against Carriers for Breach of Consumer Privacy: The Federal Communications Commission announced today its largest privacy fines to date. The agency's first data security case stems from an investigation of TerraCome and YourTel American who "stored Social Security numbers, names, addresses, driver's licenses, and other sensitive information belonging to their customers on unprotected Internet servers that anyone in the world could access." The carriers will be fined $10 million for their breach of consumer privacy. Last month, the FCC reached a $7.4 million settlement with Verizon over privacy violations. EPIC previously urged the FCC to determine whether Verizon violated the Communications Act when it released consumer call detail information to the National Security Agency. Also, in response to a 2005 EPIC petition, the FCC strengthened privacy protections for telephone records, which EPIC defended in a "friend of the court" brief for the DC Circuit, establishing support for opt-in privacy safeguards. For more information, see EPIC: NCTA v. FCC (Concerning privacy of CPNI) and In re EPIC (NSA Telephone Records Surveillance). (Oct. 24, 2014)
  • New Report Reviews Progress on Signals Intelligence Reform: The Office of the Director of National Intelligence has released the first report on the implementation of Presidential Policy Directive 28. In January, the President proposed a revised policy for foreign signals intelligence. Under the revised directive, PPD-28, intelligence agencies are required to "review and update" their policies and "establish new ones as necessary" to safeguard personal information collected through signals intelligence. Signals intelligence activities must also be "as tailored as feasible," and there must be limitations on the querying, use, dissemination, and retention of personal information. The report states that all intelligence agencies in place by January 17, 2015, one year after the President's speech. EPIC previously challenged the NSA's bulk collection of domestic and international call detail records. EPIC has also filed Freedom of Information Act requests with the NSA and other intelligence agencies elements seeking disclosure of current procedures regarding surveillance conducted under Executive Order 12333. For more information, see EPIC: EO 12333 and In re EPIC. (Oct. 23, 2014)
  • Appeals Court Limits Military Surveillance of Civilian Internet Use: The U.S. Court of Appeals for the Ninth Circuit ruled in United States v. Dreyer that an agent for the Naval Criminal Investigative Service violated Defense Department regulations and the Posse Comitatus Act when he conducted a surveillance operation in Washington state to identify civilians who might be sharing illegal files. The 1878 Act prevents the U.S. military from enforcing laws against civilians. The appeals court ruled that the NCIS intrusion into civilian networks showed “a profound lack of regard for the important limitations on the role of the military in our civilian society.” The court also ruled that the evidence obtained by NCIS should be suppressed to “deter future violations.” In a petition to the Supreme Court, EPIC challenged the NSA’s surveillance of domestic communications. The NSA is a component of the Department of Defense. For more information, see In re EPIC and EPIC v. DOJ: Warrantless Wiretapping Program. (Sep. 26, 2014)
  • Federal Communications Commission Fines Verizon $7.4 Million for Violating Consumer Privacy: Verizon will pay the Federal Communications Commission $7.4 million to settle claims that the company violated the privacy rights of nearly two million consumers. The FCC found that Verizon failed to inform consumers of their privacy rights, including how to prevent their personal information from being used for marketing purposes. The Verizon payment is the largest consumer privacy settlement in FCC history. In 2013, EPIC urged the FCC to investigate Verizon's disclosure of customer record information to the NSA. Also, in response to a 2005 EPIC petition, the FCC strengthened privacy protections for telephone records, which EPIC defended in a "friend of the court" brief for the DC Circuit, establishing support for opt-in privacy safeguards. For more information, see EPIC: Customer Proprietary Network Information, EPIC: NCTA v. FCC (Concerning privacy of CPNI), EPIC: US West v. FCC (Privacy of Telephone Records), and In re EPIC (NSA Telephone Records Surveillance). (Sep. 4, 2014)
  • Documents Obtained by EPIC Lawsuit Show NSA’s Internet Metadata Program Was Sharply Criticized By FISA Judges While Congressional Oversight Lagged for Years: In a FOIA lawsuit against the Department of Justice, EPIC has obtained many documents about the NSA's Internet Metadata program. These include the Government's original FISA application seeking authorization to collect data from millions of e-mails, as well as declarations from NSA officials describing the program. The documents show that FISA Court Judge John Bates chastised the agency for "long-standing and pervasive violations of the prior [court] orders in this matter.'' The FISA Court first authorized the program in 2004, but the documents obtained by EPIC show that the legal justification was not provided to Congress until 2009. The documents also reveal that the DOJ withheld information about the program in testimony for the Senate Intelligence hearing prior to the reauthorization of the legal authority. The program was shut down in 2011 after a detailed review. For more information, see EPIC v. DOJ (FISA Pen Register) and EPIC: Foreign Intelligence Surveillance Court. (Aug. 12, 2014)
  • Senator Leahy Introduces Bill to End NSA Bulk Record Collection: Today Senator Patrick Leahy (D-VT), joined by Democratic and Republican Senators, introduced legislation to end the NSA's practice of collecting telephone records of Americans. Leahy described the bill as "the most significant reform of government surveillance authorities since Congress passed the USA PATRIOT Act 13 years ago." The USA Freedom Act would require require the government to specify specific "search terms" to obtain telephone record information. The government would have to demonstrate that it has a "reasonable, articulable suspicion" that the search term is associated with a foreign terrorist organization. The bill also requires a comprehensive transparency report for the use of FISA surveillance authorities. However, the bill exempts the FBI from certain reporting requirements. Civil liberties organizations support the bill. EPIC previously filed a Petition for Mandamus with the U.S. Supreme Court, seeking to end the bulk collection of American's phone records. EPIC's petition was supported by legal scholars, technical experts, and former members of the Church Committee. For more information, see In re EPIC and EPIC: FISA Reform. (Jul. 29, 2014)
  • Federal and State Wiretaps Up 5% in 2013 According to Annual Report, But Stats Don't Support FBI Claims of "Going Dark": The Administrative Office of the U.S. Courts has issued the 2013 Wiretap Report, detailing the use of surveillance authorities by law enforcement agencies. This annual report, one of the most comprehensive issued by any agency, provides an insight into the debate over surveillance authorities and the use of privacy-enhancing technologies. In 2013, wiretap applications increased 5%, from 3,576 to 3,395. Authorities encountered encryption during 41 investigations, but encryption prevented the government from deciphering messages in only 9 cases. This statistic contradicts claims that law enforcement agencies are "going dark" as new technologies emerge. Of the 3,074 individuals arrested based on wiretaps in 2013, only 709 individuals were convicted based on wiretap evidence. EPIC has repeatedly called on greater transparency of FISA surveillance, citing the Wiretap Report as a model for other agencies. EPIC also maintains a comprehensive index of the annual wiretap reports and FISA reports. For more information, see EPIC: Title III Wiretap Orders, EPIC: Wiretapping, and EPIC: Foreign Intelligence Surveillance Act. (Jul. 29, 2014)
  • Privacy Panel Backs PRISM Program: In a surprising report, the US Privacy and Civil Liberties Oversight Board has endorsed the US government's routine collection of the Internet activities of non-US persons, broadly referred to as the "PRISM Program." The NSA obtains this information from Internet companies located in the United States. The Board cited the value of the program and compliance with the law, but said little about the impact on non-US persons. EPIC opposed a similar program concerning the collection of domestic telephone records in a petition to the US Supreme Court last year. EPIC has also said that the collection of communications by the US should be subject to international privacy law, such as the International Covenant on Civil and Political Rights. It is anticipated that foreign countries will continue to transfer cloud-based services away from US firms because of the lax privacy safeguards in the United States. For more information, see EPIC: In re EPIC and EPIC: International Privacy Standards. (Jul. 3, 2014)
  • Obama Renews Unlawful NSA Bulk Record Collection Program: Today the Attorney General and the Director of National Intelligence announced that the President will seek a renewal of the court order authorizing the NSA's bulk collection of American telephone records through September 12, 2014. The President has chosen to renew this order despite his promise in March 2014 to end the bulk collection program and the widespread opposition from members of Congress, and the recommendations of expert panels. The Attorney General's statement suggests that "legislation would be required" to end the program, but it was the President's decision to seek renewal of the Foreign Intelligence Surveillance Court order. EPIC, along with 25 other privacy organizations, wrote a letter to the President last week urging him not to renew the order. Last summer, EPIC petitioned the Supreme Court to end the NSA's telephone record collection program. EPIC's argued that the Foreign Intelligence Surveillance Court exceeded its authority when it ordered the production of all domestic telephone records. For more information, see In re EPIC. (Jun. 20, 2014)
  • House Adopts Weakened NSA Reform Bill, Senators Now Look to Improve Privacy and Transparency Protections: The U.S. House of Representatives has voted to adopt a modified USA "FREEDOM" Act. The bill no longer prohibits bulk collection of communications records. Other key provisions were also removed. Senator Leahy said that the bill is "an important step towards reforming" surveillance authorities, but expressed disappointment that the current version "does not include some of the meaningful reforms contained in the original" bill. In 2013 EPIC filed a Petition to the Supreme Court seeking to end bulk collection of telephone call records. EPIC also testified before the House in 2012 that the FISA should not be renewed without adoption of new reporting requirements. For more information, see EPIC: FISA and EPIC: FISA Reform. (May. 23, 2014)
  • House Judiciary Committee to Consider Bill to End Bulk Surveillance, Improve NSA Oversight: The House Judiciary Committee has scheduled a markup of the USA Freedom Act. The proposed "Manager's Amendment", sponsored by James Sensenbrenner (R-WI), would prevent bulk collection of phone records and other business records, and would limit the scope of phone record searches. The bill would also (1) limit the collection of US persons communications by the NSA's PRISM program, (2) require public reports on the use of FISA surveillance, (3) require declassification of significant FISA Court opinions, and (4) create a public advocate at the FISA Court. In 2012, EPIC testified before the House Judiciary Committee on the need for public reports and the declassification of significant FISC opinions. In 2013, EPIC filed a petition with the Supreme Court, alleging that the bulk collection of telephone record was unlawful. For more information, see EPIC: FISA Reform and In re EPIC. (May. 5, 2014)
  • Annual FISA Report Shows Decrease in Surveillance Orders, Questions About Scope Remain: The Department of Justice has published the 2013 FISA Report. The brief report provides summary information about the government's use of the Foreign Intelligence Surveillance Act. In 2012 the Foreign Intelligence Surveillance Court granted 1,789 FISA orders and 212 "Section 215" orders. In 2013, there were 1,588 requests to conduct FISA surveillance, with 34 modifications. The FISC also granted 178 business record orders under Section 215, with 141 modified by the court. The significant number of modified orders indicates that the government's initial applications are too broad. For example, the controversial NSA Metadata program, was authorized by the surveillance court under a modified order. It is possible that in 2013 the court authorized other bulk collection programs. For more information, see EPIC: FISC Orders 1979-2014 and EPIC: FISA Graphs. (May. 1, 2014)
  • European High Court Strikes Down Data Retention Law: In a far-reaching and dramatic opinion, the European Court of Justice has ruled that the mass storage of telecommunications data violates the fundamental right to privacy and is illegal. The Data Retention Directive required telephone and Internet companies to keep traffic and location data as well as user identifying information for use in subsequent investigations of serious crimes. According to the Court, the Directive imposed "a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data, without that interference being limited to what is strictly necessary." The Court found that the collection of metadata constitutes the processing of personal data and must therefore comply with Article 8 of the Charter of Rights. The Court also said to find a privacy violation, "it does not matter whether the information on the private lives concerned is sensitive or whether the persons concerned have been inconvenienced in any way." Last year EPIC, joined by dozens of legal scholars and former members of the Church Committee, urged the US Supreme Court to find the NSA's telephone record collection program unlawful. For more information, see EPIC - Data Retention, In re EPIC. (Apr. 8, 2014)
  • President Obama Renews Unlawful, Ineffective Surveillance Authority: According to the Attorney General and the Director of National Intelligence, President Obama has renewed the NSA's authority to collect all of the telephone records of all American telephone customers. The "Section 215" program exceeded Congressional authority and was found to be ineffective by two expert panels. At a speech on January 17, 2014, President Obama ordered a transition that will end the Section 215 bulk telephony metadata program as it currently exists. However, according to DNI Clapper, the United States filed an application with the FISC to reauthorize the existing program as previously modified for 90 days, and the FISC issued an order approving the government's application. The order issued expires on June 20, 2014. EPIC and others have strongly objected to the renewal of the 215 program. For more information, see EPIC In re EPIC. (Mar. 29, 2014)
  • Senator Leahy Urges President to End NSA Record Collection Program on Friday: In remarks published this week, Senator Patrick Leahy, Chairman of the Senate Judiciary Committee and co-sponsor of the USA FREEDOM Act, said "I welcome the President's statement that he plans to end the bulk collection of American’s phone records. That is a key element of what I and others have outlined in the USA FREEDOM Act, and that is what the American people have been demanding." Senator Leahy added, "the President could end bulk collection once and for all on Friday by not seeking reauthorization of this program. Rather than postponing action any longer, I hope he chooses this path." EPIC and others have urged the President not to renew the NSA telephone record collection authority when it expires this week. For more information, see In re EPIC. (Mar. 27, 2014)
  • Deadline Approaches for End of NSA's Telephone Record Collection Program: March 28 marks the deadline set by President Obama to end the NSA's bulk collection of American's telephone records. Last week, Attorney General Eric Holder confirmed that the Justice Department is ready to meet the deadline that the President has set. After extensive meetings with leaders of the Intelligence Community, both the President's Review Group and the Privacy and Civil Liberties Oversight Board found the program was ineffective and likely exceeded current legal authority. Senator Leahy, who held extensive public hearings, has stated "This program is not effective. It has to end." EPIC, supported by dozens of legal scholars and former members of the Church Committee, petitioned the US Supreme Court in July 2013 to end the "215" program. For more information, see In re EPIC and EPIC: NSA Verizon Phone Record Monitoring. (Mar. 24, 2014)
  • EPIC Obtains Secret Attorney General Reports on Electronic Surveillance: As a result of an FOIA lawsuit, EPIC has obtained copies of the Attorney General Reports on the government's electronic surveillance activities. These reports have been submitted to Congress every six months since 2001 but have never before been disclosed to the public. These reports include new details about government collection of telephone and Internet records. The reports include the number of US persons targeted for "Pen Register" surveillance under the Foreign Intelligence Surveillance Act. The reports also contain noncompliance incidents and significant foreign intelligence court opinions, but those details have been withheld by the Justice Department. The documents obtained by EPIC also show that the Justice Department told Congress that the collection of telephone subscriber information would decrease, even after the section 215 bulk collection program began. The case is EPIC v. Dept. of Justice, No. 13-961. For more information, see EPIC v. DOJ - FISA Pen Registers and EPIC: FISA Stats. (Mar. 19, 2014)
  • In FOIA Lawsuit, EPIC Obtains Secret Reports on Data Collection: In a Freedom of Information Act lawsuit, EPIC has obtained reports that detail the number of times the Surveillance Court authorized the use of techniques that gather the telephone numbers and metadata of phone customers and Internet users. The previously secret reports obtained by EPIC cover the period between 2000 and 2013. The reports reveal a dramatic increase in the use of these techniques in 2004 and then a significant reduction in 2008, likely the consequence of a shift to other investigative techniques. The documents show that nearly all applications to the Surveillance Court were approved without modifications. In 2013, EPIC petitioned the Supreme Court to end the bulk telephone record collection program. Former members of the Church Committee and dozens of legal scholars supported the EPIC petition. For more information see: EPIC v. Department of Justice - Pen Register Reports, EPIC: Foreign Intelligence Surveillance Court Orders 1979-2012, and In re EPIC. (Mar. 3, 2014)
  • New Limits on NSA Telephone Record Program Established, Authority Expires March 28: The Foreign Intelligence Surveillance Court has granted the government’s motion to limit access by the NSA to the bulk telephone records provided by US telephone companies. Under the new rules, the government cannot "query" the telephone metadata until after the court finds that there is a "reasonable, articulable suspicion that the selection term is associated with" a terrorist organization. The new rules also limit query results to telephone numbers within "two hops" of the selector. President Obama announced the new legal requirement during his recent speech on surveillance reform, when he committed to end the NSA’s bulk record collection program. The NSA's authority to force US telephone companies to turn over records on all their customers will expire on March 28th. The President has recommended that the Intelligence Community and the Attorney General propose an alternative to the bulk collection program prior to that deadline. For more information, see EPIC: FISC and EPIC: NSA Verizon Phone Record Monitoring. (Feb. 7, 2014)
  • Oversight Board Calls for End of NSA Telephone Records Program: Today the Privacy and Civil Liberties Oversight Board called for the end of the section 215 program that allows the NSA to collect the telephone records of all Americans. In a comprehensive report, the Oversight Board unanimously found that "the NSA's Section 215 program has not proven useful in identifying unknown terrorists or terrorist plots" and that "telephone calling records, when collected in bulk and subjected to powerful analytic tools, can reveal highly sensitive personal information." A majority of the board also concluded that Section 215 did not permit the routine collection of all telephone records on all Americans. The report set out 12 recommendations discussing additional privacy safeguards, greater transparency, and improvements to the Foreign Intelligence Surveillance Court. The members of the Oversight Board unanimously supported almost all of the recommendations. EPIC urged the Board last year at a public workshop to (1) find that section 215 does not permit the collection of all telephone records by the NSA; (2) improve reporting of FISA activities; (3) establish new safeguards for transparency and accountability; and (4) reconsider the Constitutional basis of metadata collection in light of the scope of the government's activities and recent Supreme Court opinions. EPIC had earlier petitioned the Supreme Court to find the 215 program unlawful. Former members of the Church Committee and dozens of legal scholars supported the EPIC petition. For more information, see EPIC: In re EPIC - NSA Telephone Record Surveillance. (Jan. 23, 2014)
  • Review Group to Senate: NSA Program Has Not Prevented Threats: Members of the President's Review Group presented their recommendations for NSA reform a Senate Judiciary Committee hearing. EPIC participated in the work of the Review Group. The export panel set out 46 recommendations on a range of issues from reforming intelligence surveillance directed at United States persons to promoting prosperity, security, and openness in the networked world. The Members stated the the NSA's bulk collection of metadata had not prevented threats against the United States and recommend that the it be ended. Acknowledging privacy concerns, former CIA Deputy Director Michael Morrell also stated that "there is quite a bit of content in metadata." Last year, EPIC filed a petition in the Supreme Court challenging the legality of the NSA's telephone record collection program. Legal scholars and former members of the Church Committee supported the EPIC petition. The Supreme Court dismissed the petition without ruling on the merits. For more information, see In re EPIC.
    "there is quite a bit of content in metadata" - Morrell, former CIA Deputy Director (Jan. 15, 2014)
  • Federal Communications Commission Seeks Public Comment to Protect Phone Record Privacy: The Federal Communications Commission has invited public comments on a petition requesting the FCC to rule that the sale of consumer phone records to the government is a violation of the federal Communications Act. EPIC joined the petition, which was organized by Public Knowledge. In 2013, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. In 2013 EPIC also wrote to the FCC to explain that Verizon had likely violated the Communications Act when it disclosed telephone records to the NSA. Public comments on the petition are due January 17, 2014 and reply comments are due February 3, 2014. For more information, see EPIC: CPNI (Customer Proprietary Network Information), and EPIC: Foreign Intelligence Surveillance Act. (Jan. 7, 2014)
  • NY Judge Rules NSA Program Legal, Split Emerges Among Courts: A federal judge in New York has ruled that the NSA's telephone metadata program is legal. The ruling comes less than two weeks after a federal judge in Washington, DC issued an injunction against the telephone record collection program—calling it an "unreasonable search under the Fourth Amendment." The opinions create a split amongst the district courts as to the legality of the NSA's program. Both opinions are expected to be appealed. The President's Review Group recently released its report recommending the end of the NSA's bulk collection of telephony metadata. EPIC filed a Petition in the U.S. Supreme Court challenging the legality of the program, shortly after the disclosure earlier this summer. For more information, see In re EPIC and EPIC: FISC Verizon Order. (Dec. 30, 2013)
  • Expert Panel Calls for End of NSA Bulk Data Collection: The President's Review Group on Intelligence and Communications Technologies has concluded that the NSA’s collection of bulk telephone records should end. In a sweeping report "Liberty and Security in a Changing World," the review panel set out 46 recommendations, which would limit NSA surveillance, expand judicial oversight, create new transparency requirements, update federal privacy laws, and create a new privacy agency. Other recommendations include the application of the Privacy Act of 1974 to both U.S. and non-U.S. persons, support for strong encryption techniques, and the cessation of U.S. practice of stockpiling software vulnerabilities known as "zero day" exploits. Earlier this year, EPIC met with the review group and submitted extensive comments to the panel, specifically urging the end of the bulk record collection program. EPIC had earlier petitioned the Supreme Court to find the program unlawful. For more information, see EPIC: In re EPIC - NSA Telephone Record Surveillance. (Dec. 19, 2013)
  • Federal Judge Enjoins Telephone Metadata Program, NSA Likely Violated Fourth Amendment: A federal judge today issued an injunction against the NSA telephone record collection program. Judge Leon ruled that the plaintiffs "have a substantial likelihood of showing that their privacy interest outweigh the Governments interest in collecting and analyzing bulk telephony metadata and therefore the NSA's Bulk Metadata program is indeed an unreasonable search under the Fourth Amendment." Judge Leon also stressed that "While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution." This is the first court opinion issued on the controversial surveillance program. EPIC filed a Petition in the U.S. Supreme Court challenging the legality of the the program, shortly after the disclosure earlier this summer. The decision of the district court will be stayed pending an appeal by the government to the DC Circuit Court of Appeals. For more information, see In re EPIC and EPIC: FISC Verizon Order. (Dec. 16, 2013)
  • Senate Confirms Judge Wald for Privacy Oversight Board: The Senate confirmed the reappointment of Judge Patricia M. Wald to the Privacy and Civil Liberties Oversight Board. Judge Wald's current term was set to expire next month, but President Obama re-nominated her on March 21, 2013. Last year, EPIC recommended that the Oversight Board, consistent with its mandate, pursue a broad agenda, including (1) suspension of the Fusion Center Program ; (2) limiting closed-circuit television surveillance; (3) eliminating the use of body scanners; (4) establishing privacy regulations for drones; (5) improving Information Sharing Environment (ISE) and Suspicious Activity Reporting (SARS) Standards; and (6) Privacy Act adherence. More recently, EPIC addressed the Board at a workshop on NSA Surveillance. And in response to a public rulemaking, EPIC also provided extensive comments on a proposed rule governing the Board's Freedom of Information Act practices. The Board adopted nearly all of EPIC's recommendations on transparency. For more information, See EPIC: Foreign Intelligence Surveillance Act and EPIC: Open Government. (Dec. 13, 2013)
  • Presidential Task Force to Recommend Changes at NSA : The Review Group on Intelligence and Communications Technologies, established to recommend surveillance reforms, will send a final report to the President this Sunday. According to one news article, the task force will recommend putting a civilian leader in charge of NSA, separating out the code-breaking "Information Assurance Directorate," and splitting the U.S. Cyber Command off into a separate military unit. The Review Group will also recommend new limits on the NSA’s ability to search telephone call records, proposing that telephone records be stored with a third party rather than the NSA. The group will also recommend safeguards for the data of European citizens, and restrictions on the use of National Security Letters. Earlier this year, EPIC filed a petition with the U.S. Supreme Court, supported by legal scholars and former members of the Church Committee, arguing that the NSA bulk collection program was unlawful. For more information, see EPIC: Foreign Intelligence Surveillance Act, EPIC: Foreign Intelligence Surveillance Act Reform, and EPIC: In re EPIC. (Dec. 13, 2013)

Background of Klayman v. Obama

On June 5, 2013, the Guardian first published an order from the Foreign Intelligence Surveillance Court (FISC), which required Verizon to produce all domestic telephone call detail records to the National Security Agency ("NSA") on an ongoing basis. This collection was not based on any particularized suspicion of wrongdoing, all call records were collected in bulk from Verizon every day. Specifically, the FISA order required that Verizon turn over “all call detail records or 'telephony metadata' created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” Once revealed, the government confirmed the existence of the Verizon order and of the telephone metadata program.

Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978 following the discovery by the Church Committee of decades of domestic surveillance by the Intelligence Community. The Act prohibited domestic surveillance except with the approval of a newly created court, the Foreign Intelligence Surveillance Court (FISC). Under the FISA, the FISC could only grant orders if the government established probable cause to believe that the target of surveillance was foreign powers or agents of a foreign power.

However, Congress modified the FISA in the 2001 USA PATRIOT and the 2006 Patriot Act Reauthorization. Specifically, Congress authorized the FBI in Section 215 to apply for a FISC order compelling businesses to produce "tangible things" relevant to an authorized investigation to protect against international terrorism. Section 215 provided that businesses who received these orders could challenge them in the FISC. We now know that the FISC has since 2006 issued orders that require major telephone companies, like Verizon, to provide all telephone call detail records to the NSA.

In this case, the Plaintiff, a Verizon Wireless customer, brought suit in the U.S. District Court for the District of D.C., alleging that the government is conducting a "secret and illegal scheme to intercept and analyze vast quantities of domestic telephone communications [and] of communications from the Internet and electronic service providers." The Plaintiff sought a preliminary injunction requiring the NSA to stop collecting his telephone call detail records. The court granted the Plaintiff's preliminary injunction, finding that the program likely violated the Fourth Amendment, but subsequently stayed the decision pending review by the D.C. Circuit.

District Court Opinion

In evaluating the Fourth Amendment question, the court found that the bulk collection of metadata violated a reasonable expectation of privacy and was thus a search under the Fourth Amendment. The court distinguished the 1979 Supreme Court case Smith v. Maryland, which involved the collection of call details from an individual suspect's home telephone using a pen register device, from the bulk collection of all telephone call records by the NSA. The court went on to find that the warrantless bulk collection of call detail records was unreasonable and likely violated the Fourth Amendment. In particular, the court found that the government had not shown a single instance in which the metadata collection actually stopped an imminent attack, and thus the program did not serve an important governmental interest.

EPIC's Interest in Klayman v. Obama

EPIC has an interest in promoting privacy in digital spaces by upholding robust Fourth Amendment protections. Halting NSA mass surveillance of domestic telephone calls serves this interest. In fact, the second sentence of the Klayman opinion cites EPIC’s petition for a Writ of Mandamus in In re EPIC. EPIC filed its Mandamus Petition with the U.S. Supreme Court in July 2013, seeking to overturn the decision of the FISA Court to authorize the NSA's bulk collection of call detail records.

On November 18, 2013, the Supreme Court chose not to grant EPIC’s Petition. For more information, see EPIC: In re EPIC.

EPIC also filed an amicus curiae brief in Smith v. Obama, a similar challenge to the NSA Metadata program currently pending before the U.S. Court of Appeals for the D.C. Circuit. In its brief, EPIC argued that communications data should be protected under the Fourth Amendment and that the 1979 decision Smith v. Maryland no longer governs metadata collection given the evolution of modern communications technology.

Ongoing Legal Issues

The decision in Klayman directly conflicts with the decision in a similar case, ACLU v. ClapperACLU v. Clapper, 959 F. Supp. 2d 724, 742 (S.D.N.Y. 2013).  Like Klayman, the ACLU brought both statutory and constitutional claims.  As in Klayman, the court only found standing for the constitutional claims.  Id. at 738.  However, unlike in Klayman, the Clapper court did not find that the metadata program had violated Fourth Amendment rights.  Instead, the Clapper court found that Verizon customers had voluntarily conveyed their telephone metadata to Verizon and thus did not have a reasonable expectation of privacy.  Id. at 752.  For more information, see EPIC: ACLU v. Clapper.

The judge in another similar case, Smith v. Obama, endorsed Klayman but felt obligated to follow Clapper as precedent.  Smith v. Obama, 2014 U.S. Dist. LEXIS 76344 (2014) (saying that “[Klayman] should serve as the template for a supreme court decision, and might yet . . . but [Clapper] has not been overruled and continues to bind the court”).

The Judicial branch is not alone in critiquing the metadata program. The Privacy and Civil Liberties Oversight Board, an independent agency within the Executive branch, released a report in January 2014 that called for the end of the telephone metadata program and other domestic bulk data programs. Privacy and Civil Liberties Oversight Board, Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court (Jan. 23, 2014). The Board unanimously agreed that the program was not effective, while only a majority of the Board did not believe that it was legal.  Id.  In particular, the board believed that less invasive alternatives exist that could yield the counterterrorism objectives that the metadata program seeks. Id

The Executive branch has also taken action by President Obama appointing a panel to review the surveillance programs, entitled the President’s Review Group On Intelligence & Communications Technologies.  In December 2013, the panel released a report suggesting drastic changes to the current program.  The President’s Review Group On Intelligence & Communications Technologies, Liberty And Security In A Changing World (Dec. 12, 2013).  First, the panel recommended that telephone metadata be held by phone companies or third parties rather than by the government itself.  Id at 25.  The government could request access to data with a court order.  Id.  Second, the panel called for legislation to require judicial oversight before the FBI could subpoena digital information using national security letters.  Id at 24.  Finally, the panel insisted that the NSA should not be able to conduct warrantless searches of US citizens’ data in the course of investigating foreigners overseas.  Id at 28.

The Legislative branch has begun revising the USA FREEDOM ACT following a speech by President Obama.  President Barack Obama, Speech on Reforms to USA FREEDOM ACT (Jan. 17 2014).  The President called on Congress to transition the possession of telephone metadata to phone companies, allowing the government to individually request the data when needed.  Id.  Additionally, Obama unilaterally ordered that the government must obtain a court order for each number it wants to query in its database of records.  Id.  Finally, Obama limited searches within the database to only access numbers that are two steps removed from a number associated with a terrorist organization, reduced from the previous three.  Id.  

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