Case4:08-cv-04373-JSW Document321 Filed02/10/15 Page1 of 10 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 CAROLYN JEWEL, ET AL., 8 9 v. NATIONAL SECURITY AGENCY, ET AL., 11 For the Northern District of California United States District Court 10 No. C 08-04373 JSW Plaintiffs, Defendants. 12 No. C 07-00693 JSW 13 VIRGINIA SHUBERT, ET AL., 14 15 16 17 Plaintiffs, ORDER DENYING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT v. BARACK OBAMA, ET AL., Defendants. / 18 19 Now before the Court is the motion filed by Plaintiffs Carolyn Jewel, Erik Knutzen, and 20 Joice Walton, on behalf of themselves and all other individuals similarly situated (“Plaintiffs”) 21 for partial summary judgment on their claim for relief which challenges the interception of their 22 Internet communications as a violation of the Fourth Amendment (“Fourth Amendment Claim” 23 or “Claim”). Also before the Court is the cross-motion for partial summary judgment on 24 Plaintiffs’ Fourth Amendment Claim filed by Defendants National Security Agency, United 25 States Department of Justice, Barack H. Obama, Michael S. Rogers, Eric H. Holder, Jr., and 26 James R. Clapper, Jr. (in their official capacities) (collectively, “Government Defendants”). 27 28 Having considered the parties’ papers, including the Government Defendants’ classified brief and classified declarations, and the parties’ arguments, the Court DENIES Plaintiffs’ Case4:08-cv-04373-JSW Document321 Filed02/10/15 Page2 of 10 1 motion for partial summary judgment and GRANTS the Government Defendants’ cross-motion 2 for partial summary judgment.1 The issues raised by the pending motions and additional briefing now before the Court 3 4 compel the Court to examine serious issues, namely national security and the preservation of the 5 rights and liberties guaranteed by the United States Constitution. The Court finds the 6 predicament delicate and the resolution must strike a balance of those significant competing 7 interests. Based on the public record, the Court finds that the Plaintiffs have failed to establish a 8 For the Northern District of California United States District Court 9 sufficient factual basis to find they have standing to sue under the Fourth Amendment regarding 10 the possible interception of their Internet communications. Further, having reviewed the 11 Government Defendants’ classified submissions, the Court finds that the Claim must be 12 dismissed because even if Plaintiffs could establish standing, a potential Fourth Amendment 13 Claim would have to be dismissed on the basis that any possible defenses would require 14 impermissible disclosure of state secret information. BACKGROUND 15 Plaintiffs allege that as part of a system of mass surveillance, the Government 16 17 Defendants receive copies of their Internet communications, then filter the universe of collected 18 communications in an attempt to remove wholly domestic communications, and then search the 19 remaining communications for search terms called “selectors” for potentially terrorist-related 20 foreign intelligence information. The Government has described the collection of communications pursuant to Section 21 22 702 of the Foreign Intelligence Surveillance Act (“Section 702”) in several public reports. 23 Upon approval by the Foreign Intelligence Surveillance Court of a certification under Section 24 702, NSA analysts identify non-U.S. persons located outside the United States who are 25 reasonably believed to possess or receive, or are likely to communicate, foreign intelligence 26 information designated in the certification. (See, e.g., NSA Civil Liberties and Privacy Office 27 Having not relied on Plaintiffs’ proposed order submitted after the hearing on the motions, the Court DENIES Defendants’ motion to strike it. 1 28 2 Case4:08-cv-04373-JSW Document321 Filed02/10/15 Page3 of 10 1 Report, NSA’s Implementation of FISA Section 702 at 4 (Apr. 16, 2014) (“Civil Liberties 2 Report”)). Once designated by the NSA as a target, the NSA tries to identify a specific means 3 by which the target communicates, such as an e-mail address or telephone number. That 4 identifier is referred to a “selector.” Selectors are only specific communications accounts, 5 addresses, or identifiers. (See id; see also Privacy and Civil Liberties Oversight Board Report 6 on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence 7 Surveillance Act (“PCLOB Report”) at 32-33, 36.) According to the Government’s admissions, 8 an electronic communications service provider may then be compelled to provide the 9 Government with all information necessary to acquire communications associated with the For the Northern District of California United States District Court 10 selector, a process called “tasking.” (Id. at 32-33; see also Civil Liberties Report at 4-5.) 11 One process by which the NSA obtains information related to the tasked selectors is 12 known as the Upstream collection program. Through a Section 702 directive, this program 13 compels the assistance of the providers that control the telecommunications backbone within 14 the United States. (See PCLOB Report at 35.) Under the Upstream collection program, tasked 15 selectors are sent to domestic electronic communications service providers to acquire 16 communications that transit the Internet backbone. (See id. at 36-37.) Internet communications 17 are filtered in an effort to remove all purely domestic communications, and are then scanned to 18 capture only those communications containing the designated tasked selectors. (Id. at 37.) 19 “Unless [communications] pass both these screens, they are not ingested into governmental 20 databases.” (Id.) 21 Plaintiffs contend that the copying and searching of their private Internet 22 communications is conducted without a warrant or any individualized suspicion and, 23 accordingly, violates the Fourth Amendment. The Fourth Amendment prohibits the 24 Government from intercepting, copying, or searching through communications without a 25 warrant issued by a neutral and detached magistrate, upon probable cause, particularly 26 describing the place to be searched and the things to be seized. Judicial warrants based on 27 particularity and probable cause are especially crucial in electronic surveillance, where searches 28 3 Case4:08-cv-04373-JSW Document321 Filed02/10/15 Page4 of 10 1 and seizures occur without leaving a trace and where the threat to privacy is especially great. 2 United States v. U.S. District Court (Keith), 407 U.S. 297, 313 (1972). 3 In their motion for partial summary judgment, Plaintiffs seek adjudication as to their 4 Fourth Amendment Claim with regard only to the NSA’s acknowledged Upstream collection of 5 communications pursuant to Section 702. The Government Defendants contend that Plaintiffs’ 6 evidence is insufficient to establish standing, and that even assuming standing, either there can 7 be no Fourth Amendment violation on the facts in the record as a matter of law, or alternatively, 8 that the state secrets privilege requires dismissal of Plaintiffs’ Fourth Amendment Internet 9 surveillance claim. 11 For the Northern District of California United States District Court 10 The Court shall address other additional specific facts as necessary in the remainder of this Order. 12 13 14 ANALYSIS A. Summary Judgment Standard. Summary judgment is appropriate when the record demonstrates “that there is no 15 genuine issue as to any material fact and that the moving party is entitled to judgment as a 16 matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” if there is sufficient evidence for a 17 reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 18 U.S. 242, 248-49 (1986). “[A]t the summary judgment stage the judge’s function is not . . . to 19 weigh the evidence and determine the truth of the matter but to determine whether there is a 20 genuine issue for trial.” Id. at 249. A fact is “material” if it may affect the outcome of the case. 21 Id. at 248. The party moving for summary judgment bears the initial responsibility of 22 identifying those portions of the record which demonstrate the absence of a genuine issue of a 23 material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 24 Once the moving party meets this initial burden, the non-moving party “may not rest 25 upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s 26 response, by affidavits or as otherwise provided in this rule, must set forth specific facts 27 showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). In the absence of such 28 4 Case4:08-cv-04373-JSW Document321 Filed02/10/15 Page5 of 10 1 facts, “the moving party is entitled to a judgment as a matter of law.” Celotex, 477 U.S. at 323; 2 see also Keenan, 91 F.3d at 1279. 3 B. 4 Defendants contend that Plaintiffs have not submitted evidence sufficient to establish 5 that they have standing to challenge the alleged ongoing collection of communications by the 6 NSA. As Defendants admit, the Government has acknowledged the existence of the Upstream 7 collection process which involves the collection of certain communications as they transit the 8 Internet backbone network of telecommunications service providers. However, the technical 9 details of the collections process remain classified. For the Northern District of California 10 United States District Court Standing. In order to prevail on their motion for summary judgment, Plaintiffs must support each 11 element of their claim, including standing, “with the manner and degree of evidence required at 12 the successive stages of the litigation.” Bras v. Cal. Pub. Utils. Comm’n, 59 F.3d 869, 872 (9th 13 Cir. 1995) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Plaintiffs must 14 proffer admissible evidence establishing both their standing as well as the merits of their claims. 15 See Fed. R. Civ. P. 56(c); see also In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385 (9th Cir. 16 2010) (holding that the court’s ruling on summary judgment must be based only on admissible 17 evidence). If Plaintiffs are unable to make a showing sufficient to establish an essential element 18 of their claim on which they bear the burden at trial, summary judgment must be granted against 19 them. See Celotex Corp., 477 U.S. at 322. 20 “To establish Article III Standing, an injury must be ‘concrete, particularized, and actual 21 or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’” 22 Clapper v. Amnesty International USA, --- U.S. --- , 133 S. Ct. 1138, 1147 (2013) (quoting 23 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010)). “Although imminence is 24 concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to 25 ensure that the alleged injury is not too speculative for Article III purposes – that the injury is 26 certainly impending.” Id. (citing Lujan, 504 U.S. at 565 n.2) (emphasis in original). Thus, the 27 Supreme Court has “repeatedly reiterated that ‘the threatened injury must be certainly 28 impending to constitute injury in fact,’ and that ‘[a]llegations of possible future injury’ are not 5 Case4:08-cv-04373-JSW Document321 Filed02/10/15 Page6 of 10 1 sufficient.” Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (emphasis in 2 original)). 3 4 intercepted were too speculative, attenuated, and indirect to establish injury in fact that was 5 fairly traceable to the governmental surveillance activities. Id. at 1147-50. The Clapper Court 6 held that plaintiffs lacked standing to challenge NSA surveillance under FISA because their 7 “highly speculative fear” that they would be targeted by surveillance relied on a “speculative 8 chain of possibilities” insufficient to establish a “certainly impending” injury. Id. For the Northern District of California 9 United States District Court In Clapper, the Court found that allegations that plaintiffs’ communications were Here, Plaintiffs have sufficiently demonstrated that they are AT&T customers. (See 10 Declaration of Carolyn Jewel at ¶¶ 2-5; Declaration of Erik Knutzen at ¶¶ 2-6; Declaration of 11 Joice Walton at ¶¶ 2-6.) In addition, Plaintiffs allege that, as AT&T customers, all of their 12 Internet communications have been collected and amassed in storage. See Hepting v. AT&T 13 Corp., 439 F. Supp. 2d 974, 991-92 (N.D. Cal. 2006) (“AT&T and the government have for all 14 practical purposes already disclosed that AT&T assists the government in monitoring 15 communication content.”). The record suggests that AT&T currently aids the Government in 16 the collection of information transported over the Internet. (See AT&T Transparency Report 17 dated 2014.) If the governmental program is sufficiently large and encompassing to include the 18 mass collection of all Internet communications, the question of whether any specific 19 communication was specifically targeted is not the relevant inquiry. See Klayman v. Clapper, 20 957 F. Supp. 2d 1, 26-28 (D.D.C. 2013) (granting standing to individual plaintiffs to challenge 21 NSA collection of their telephone records from Verizon after finding “strong evidence” that 22 NSA collected Verizon metadata for the last seven years and ran queries that necessarily 23 analyzed that data); see also Smith v. Obama, 24 F. Supp. 3d 1005, 1007 n.2 (D. Idaho 2014) 24 (finding that plaintiff, a Verizon customer, had standing to bring an action based on collection 25 of telephone metadata). “As FISC Judge Eagan noted, the collection of virtually all telephony 26 metadata is ‘necessary’ to permit the NSA, not the FBI, to do the algorithmic data analysis that 27 allow the NSA to determine ‘connections between known and unknown international terrorist 28 operatives.’” ACLU v. Clapper, 959 F. Supp. 2d 724, 746 (S.D.N.Y. 2013) (citing In re 6 Case4:08-cv-04373-JSW Document321 Filed02/10/15 Page7 of 10 1 Application of the Fed. Bureau of Investigation for an Order Requiring the Prod. of Tangible 2 Things from [REDACTED], amended clip op. at 22-23); see also id. at 748 (“[A]ggregated 3 telephony metadata is relevant because it allows the querying technique to be comprehensive. . . 4 . Armed with all the metadata, NSA can draw connections it might otherwise never be able to 5 find.”). For the Northern District of California United States District Court 6 The creation of a large surveillance program designed to “intercept all or substantially 7 all of its customers’ communications, . . . necessarily inflicts a concrete injury that affects each 8 customer in a distinct way, depending on the content of that customer’s communications and the 9 time that customer spends using AT&T services.” Hepting, 439 F. Supp. 2d at 1001. In this 10 matter, the Ninth Circuit has held that although the harm alleged by Plaintiffs is widely shared, 11 that does not necessarily render it a generalized grievance. See Jewel v. Nat’l Sec. Agency, 783 12 F.3d 902, 909-10 (9th Cir. 2011) (“[W]e conclude that Jewel alleged a sufficiently concrete and 13 particularized injury, Jewel’s allegations are highly specific and lay out concrete harms arising 14 from the warrantless searches.”). Accordingly, the Court finds that, as Plaintiffs have provided 15 evidence that they are AT&T customers who send Internet communications, they have crossed 16 the threshold requirement to establish that, should the program work as alleged, their 17 communications would be captured in a dragnet Internet collection program. 18 However, the question whether Plaintiffs can establish standing to pursue their Fourth 19 Amendment claim against the Government Defendants for constitutional violations goes beyond 20 whether they, as individuals and AT&T customers with Internet communications, can proffer 21 evidence of generalized surveillance of Internet communications. Although the public and 22 admissible evidence presented establishes that Plaintiffs are indeed AT&T customers with 23 Internet communications and would fall into the class of individuals surveilled, the evidence at 24 summary judgment is insufficient to establish that the Upstream collection process operates in 25 the manner in which Plaintiffs allege it does. 26 In their attempt to establish the factual foundation for their standing to sue on their 27 Fourth Amendment Claim, Plaintiffs rely in large part on the declarations of Mark Klein and 28 their proffered expert, J. Scott Marcus, as well as other former AT&T and NSA employees to 7 Case4:08-cv-04373-JSW Document321 Filed02/10/15 Page8 of 10 1 present the relevant operational details of the surveillance program. Plaintiffs assert that the 2 declarations support the contention that all AT&T customers’ Internet communications are 3 currently the subject of a dragnet seizure and search program, controlled by or at the direction 4 of the Government. However, having reviewed the record in its entirety, the Court finds the 5 Plaintiffs’ evidence does not support this claim. For the Northern District of California United States District Court 6 Plaintiffs principally rely on the declaration of Klein, a former AT&T technician who 7 executed a declaration in 2006 about his knowledge and perceptions about the creation of a 8 secure room at the AT&T facility at Folsom Street in San Francisco. However, the Court finds 9 that Klein cannot establish the content, function, or purpose of the secure room at the AT&T 10 site based on his own independent knowledge. See Fed. R. Civ. P. 56(c)(4). The limited 11 knowledge that Klein does possess firsthand does not support Plaintiffs’ contention about the 12 actual operation of the Upstream data collection process. Klein can only speculate about what 13 data were actually processed and by whom in the secure room and how and for what purpose, as 14 he was never involved in its operation. In addition, Plaintiffs’ expert, Marcus, relies exclusively 15 on the observations and assumptions by Klein to formulate his expert opinion. Accordingly, his 16 testimony about the purpose and function of the secure equipment at AT&T and assumed 17 operational details of the program is not probative as it not based on sufficient facts or data. See 18 Fed. R. Evid. 702(b). The Court finds that Plaintiffs have failed to proffer sufficient admissible 19 evidence to support standing on their claim for a Fourth Amendment violation of interference 20 with their Internet communications. In addition, without disclosing any of the classified content 21 of the Government Defendants’ submissions, the Court can confirm that the Plaintiffs’ version 22 of the significant operational details of the Upstream collection process is substantially 23 inaccurate. 24 In addition, having reviewed the classified portion of the record, the Court concludes 25 that even if the public evidence proffered by Plaintiffs were sufficiently probative on the 26 question of standing, adjudication of the standing issue could not proceed without risking 27 exceptionally grave damage to national security. The details of the Upstream collection process 28 that are subject the Government’s assertion of the state secrets privilege are necessary to 8 Case4:08-cv-04373-JSW Document321 Filed02/10/15 Page9 of 10 1 address the defenses against Plaintiffs’ theory of standing as well as to engage in a full and fair 2 adjudication of Government Defendants’ substantive defenses against the Claim. The Court has 3 reviewed the classified brief submitted by the Government and finds that its legal defenses are 4 persuasive, and must remain classified. For the Northern District of California United States District Court 5 Disclosure of this classified information would risk informing adversaries of the specific 6 nature and operational details of the Upstream collection process and the scope of the NSA’s 7 participation in the program. Notwithstanding the unauthorized public disclosures made in the 8 recent past and the Government’s subsequent releases of previously classified information about 9 certain NSA intelligence gathering activities since 2013, the Court notes that substantial details 10 about the challenged program remain classified. The question of whether Plaintiffs have 11 standing and the substantive issue of whether there are Fourth Amendment violations cannot be 12 litigated without impinging on that heightened security classification. Because a fair and full 13 adjudication of the Government Defendants’ defenses would require harmful disclosures of 14 national security information that is protected by the state secrets privilege, the Court must 15 exclude such evidence from the case. See Mohamed v. Jeppesen DataPlan, Inc., 614 F.3d 1070, 16 1083 (9th Cir. 2010) (holding that “application of the privilege may require dismissal” of a 17 claim if, for example, “the privilege deprives the plaintiff of information needed to set forth a 18 prima facie case, or the defendant of information that would otherwise give the defendant a 19 valid defense to the claim”). Addressing any defenses involves a significant risk of potentially 20 harmful effects any disclosures could have on national security. See Kasza v. Browner, 133 21 F.3d 1159, 1166 (9th Cir. 1998). 22 The Court is frustrated by the prospect of deciding the current motions without full 23 public disclosure of the Court’s analysis and reasoning. However, it is a necessary by-product 24 of the types of concerns raised by this case. Although partially not accessible to the Plaintiffs or 25 the public, the record contains the full materials reviewed by the Court. The Court is persuaded 26 that its decision is correct both legally and factually and furthermore is required by the interests 27 of national security. 28 9 Case4:08-cv-04373-JSW Document321 Filed02/10/15 Page10 of 10 1 2 CONCLUSION For the foregoing reasons, the Court DENIES Plaintiffs’ motion for partial summary 3 judgment and GRANTS the Government Defendants’ cross-motion for partial summary 4 judgment regarding the allegations of Fourth Amendment violations challenging the possible 5 interception of Plaintiffs’ Internet communications. 6 IT IS SO ORDERED. 7 Dated: February 10, 2015 8 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10