Klayman v. Obama

MEMORANDUM OPINION

[Dkt. # 13 (No. 13-0851), # 10 (No. 13-0881) ]

On June 6, 2013, plaintiffs brought the first of two related lawsuits challenging the constitutionality and statutory authorization of certain intelligence-gathering practices by the United States government relating to the wholesale collection of the phone record metadata of all U.S. citizens. 1 These related cases are two .of several lawsuits 2 *****arising from: public revelations over the past six months that the federal government, through the National Security Agency (“NSA”), and with the participation of certain telecommunications and internet companies, has conducted surveillance and intelligence-gathering programs that collect certain data about the telephone and internet activity of American citizens within the United States. Plaintiffs — five individuals in total between No. 13-851 (“Klayman I”) and No. 13-881 (“Klayman II”) — bring these suits as U.S. citizens who are subscribers or users of certain telecommunications and internet firms. See Second Am. Compl. (Klayman I) [Dkt. # 37] ¶ 1; Am. Compl. (Klayman II) [Dkt. #30] ¶1. 3 They bring suit against both federal government defendants (several federal agencies and individual executive officials) and private defendants (telecommunications and internet firms and their executive officers), alleging statutory and constitutional violations. See generally Second Am. Compl. (Klayman I); Am. Compl. (Klayman II).

Before the Court are plaintiffs’ two Motions for Preliminary Injunction [Dkt. *8 # 13 (Klayman I), # 10 (Klayman II) ], one in each case. As relief, plaintiffs seek an injunction “that, during the pendency of this suit, (i) bars [defendants from collecting [plaintiffs’ call records under the mass call surveillance program; (ii) requires [d]efendants to destroy all of [plaintiffs’ call records already collected under the program; and (iii) prohibits [defendants from querying metadata obtained through the program using any phone number or other identifier associated with [pjlaintiffs ... and such other relief as may be found just and proper.” Pis.’ Mot. for Prelim. Inj. (Klayman I) [Dkt. # 13]; Pis.’ Mot. for Prelim. Inj. (Klayman II) [Dkt. # 10]; see also Pis.’ Mem. P. & A. in Supp. of Mot. for Prelim. Inj. (Klayman ■/) (“Pis.’ Mem.”) [Dkt. # 13-1], at 30-31. 4 In light of how plaintiffs have crafted their requested relief, the Court construes the motions as requesting a preliminary injunction (1) only as against the federal government defendants, and (2) only with regard to the government’s bulk collection and querying of phone record metadata. Further, between the two cases, plaintiffs have alleged with sufficient particularity that only two of the five named plaintiffs, Larry Klayman and Charles Strange, are telephone service subscribers. 5 Accordingly, for purposes of resolving these two motions, the Court’s discussion of relevant facts, statutory background, and legal issues will be circumscribed to those defendants (hereinafter “the Government”), those two plaintiffs (hereinafter “plaintiffs”), and those claims. 6

*9 For the reasons discussed below, the Court first finds that it lacks jurisdiction to hear plaintiffs’ Administrative Procedure Act (“APA”) claim that the Government has exceeded its statutory authority under the Foreign Intelligence Surveillance Act (“FISA”). Next, the Court finds that it does, however, have the authority to evaluate plaintiffs’ constitutional challenges to the NSA’s conduct, notwithstanding the fact that it was done pursuant to orders issued by the Foreign Intelligence Surveillance Court (“FISC”). And after careful consideration of the parties’ pleadings and supplemental pleadings, the representations made on the record at the November 18, 2013 hearing regarding these two motions, and the applicable law, the Court concludes that plaintiffs have standing to challenge the constitutionality of the Government’s bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief. 7 Accordingly, the *10 Court will GRANT, in part, the Motion for Preliminary Injunction in Klayman I (with respect to Larry Klayman and Charles Strange only), and DENY the Motion for Preliminary Injunction in Klayman II. However, in view of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will STAY my order pending appeal.

BACKGROUND

On June 5, 2013, the British newspaper The Guardian reported the first of several “leaks” of classified material from Edward Snowden, a former NSA contract employee, which have revealed — and continue to reveal — multiple U.S. government intelligence collection and surveillance programs. See Glenn Greenwald, NSA collecting phone records of millions of Verizon customers daily, Guardian (London), June 5, 2013. 8 That initial media report disclosed a FISC order dated April 25, 2013, compelling Verizon Business Network Services to produce to the NSA on “an ongoing daily basis ... 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.” Secondary Order, In re Application of the [FBI] for an Order Requiring the Production of Tangible Things from Verizon Business Network Services, Inc. on Behalf of MCI Communication Services, Inc. djb/a Verizon Business Services, No. BR 13-80 at 2 (FISC Apr. 25, 2013) (attached as Ex. F to Gilligan Decl.) [Dkt. # 25-7] (“Apr. 25, 2013 Secondary Order”). According to the news article, this order “show[ed] ... that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk — regardless of whether they are suspected of any wrongdoing.” Greenwald, supra. In response to this disclosure, the Government confirmed the authenticity of the April 25, 2013 FISC Order, and, in this litigation and in certain public statements, acknowledged the existence of a “program” under which “the FBI obtains orders from the FISC pursuant to Section 215 [of the USA PATRIOT Act] directing certain telecommunications service providers to produce to the NSA on a daily basis electronic copies of ‘call detail records.’ ” Govt’s Opp’n at 8. 9 *11 Follow-on media reports revealed other Government surveillance programs, including the Government’s collection of internet data pursuant to a program called “PRISM.” See Glenn Greenwald & Ewen MacAskill, NSA Prism program taps in to user data of Apple, Google and others, GUARDIAN (London), June 6, 2013. 10

Soon after the first public revelations in the news media, plaintiffs filed their complaints in these two cases on June 6, 2013 (Klayman I) and June 12, 2013 (Klayman II), alleging that the Government, with the participation of private companies, is conducting “a secret and illegal government scheme to intercept and analyze vast quantities of domestic telephonic communications,” Second Am. Compl. ¶ 2 (Klayman I), and “of communications from the Internet and electronic service providers,” Am. Compl. ¶ 2 (Klayman II). Plaintiffs in Klayman I — attorney Larry Klayman, founder of Freedom Watch, a public interest organization, and Charles Strange, the father of Michael Strange, a cryptologist technician for the NSA and support personnel for Navy SEAL Team VI who was killed in Afghanistan when his helicopter was shot down in 2011 — assert that they are subscribers of Verizon Wireless and bring suit against the NSA, the Department of Justice (“DOJ”), and several executive officials (President Barack H. Obama, Attorney General Eric H. Holder, Jr., General Keith B. Alexander, Director of the NSA, and U.S. District Judge Roger Vinson), as well as Verizon Communications and its chief executive officer. Second Am. Compl. ¶¶ 9-19; Klayman Aff. ¶ 3; Strange Aff. ¶ 2. And plaintiffs in Klayman II — Mr. Klayman and Mr. Strange again, along with two private investigators, Michael Ferrari and Matthew Garrison — bring suit against the same Government defendants, as well as Face-book, Yahoo!, Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT & T, and Apple, asserting that plaintiffs are “subscribers, users, customers, and otherwise avail themselves to” these named internet and/or telephone service provider companies. Am. Compl. ¶¶ 1, 11-14; Klayman Aff. ¶ 3; Klayman Suppl. Aff. ¶ 3; Strange Aff. ¶ 3. 11 Specifically, plaintiffs allege that the Government has violated their individual rights under the First, Fourth, and Fifth Amendments of the Constitution and has violated the Administrative Procedure Act (“APA”) by exceeding its statutory authority under FISA. 12 Second Am. Compl. ¶¶ 1-8, 49-99.

I. Statutory Background

A. FISA and Section 215 of the USA PATRIOT Act (50 U.S.C. § 1861)

In 1978, Congress enacted the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801 et seq. (“FISA”), “to authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes.” Clapper v. Amnesty Int’l USA, — U.S. -, 133 S.Ct. 1138, 1143, 185 L.Ed.2d 264 (2013). Against the backdrop of findings by the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities (the “Church Committee”) that the executive branch had, for decades, engaged in warrantless domestic intelligence-gathering activities that had illegally infringed the Fourth Amendment rights of American citizens, Congress passed FISA *12 “in large measure [as] a response to the revelations that warrantless electronic surveillance in the name of national security has been seriously abused.” S.Rep. No. 95-604, at 7. In the view of the Senate Judiciary Committee, the act went “a long way in striking a fair and just balance between protection of national security and protection of personal liberties.” Id. at 7.

FISA created a procedure for the Government to obtain ex parte judicial orders authorizing domestic electronic surveillance upon a showing that, inter alia, the target of the surveillance was a foreign power or an agent of a foreign power. 50 U.S.C. §§ 1804(a)(3), 1805(a)(2). In enacting FISA, Congress also created two new Article III courts — the Foreign Intelligence Surveillance Court (“FISC”), composed of eleven U.S. district judges, “which shall have jurisdiction to hear applications for and grant orders approving” such surveillance, § 1803(a)(1), and the FISC Court of Review, composed of three U.S. district or court of appeals judges, “which shall have jurisdiction to review the denial of any application made under [FISA],” § 1803(b). 13

In addition to authorizing wiretaps, §§ 1801-1812, FISA was subsequently amended to add provisions enabling the Government to obtain ex parte orders authorizing physical searches, §§ 1821-1829, as well as pen registers and trap-and-trace devices, §§ 1841-1846. See Intelligence Authorization Act for Fiscal Year 1995, Pub. L. No. 103-359, § 807(a)(3), 108 Stat. 3423; Intelligence Authorization Act for Fiscal Year 1999, Pub. L. No. 105-272, § 601(2), 112 Stat. 2396 (“1999 Act”). In 1998, Congress added a “business records” provision to FISA. See 1999 Act § 602. Under that provision, the FBI was permitted to apply for an ex parte order authorizing specified entities, such as common carriers, to release to the FBI copies of business records upon a showing in the FBI’s application that “there are specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.” 50 U-S.C. § 1862(b)(2)(B) (2000).

Following the September 11, 2001 terrorist attacks, Congress passed the USA PATRIOT Act, which made changes to FISA and several other laws. Pub. L. No. 107-56, 115 Stat. 272 (2001). Section 215 of the PATRIOT Act replaced FISA’s business-records provision with a more expansive “tangible things” provision. Codified at 50 U.S.C. § 1861, it authorizes the FBI to apply “for an order requiring the production of any tangible things (includ *13 ing books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” § 1861(a)(1). While this provision originally required that the FBI’s application “shall specify that the records concerned are sought for” such an investigation, § 1861(b)(2) (Supp. I 2001), Congress amended the statute in 2006 to provide that the FBI’s application must include “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation ... to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” § 1861(b)(2)(A); see USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, § 106(b), 120 Stat. 192 (“USA PATRIOT Improvement and Reauthorization Act”).

Section 1861 also imposes other requirements on the FBI when seeking to use this authority. For example, the investigation pursuant to which the request is made must be authorized and conducted under guidelines approved by the Attorney General under Executive Order No. 12,333 (or a successor thereto). 50 U.S.C. § 1861(a)(2)(A), (b)(2)(A). And the FBI’s application must “enumerat[e] ... minimization procedures adopted by the Attorney General ... that are applicable to the retention and dissemination by the [FBI] of any tangible things to be made available to the [FBI] based on the order requested.” § 1861(b)(2)(B). The statute defines “minimization procedures” as, in relevant part, “specific procedures that are reasonably designed in light of the purpose and technique of an order for the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting [U.S.] persons consistent with the need of the [U.S.] to obtain, produce, and disseminate foreign intelligence information.” § 1861(g)(2). If the FISC judge finds that the FBI’s application meets these requirements, he “shall enter an ex parte order as requested, or as modified, approving the reléase of tangible things” (hereinafter, “production order”). § 1861(c)(1); see also § 1861(f)(1)(A) (“the term ‘production order’ means an order to produce any tangible thing under this section”).

Under Section 1861’s “use” provision, information that the FBI acquires through such a production order “concerning any [U.S.] person may be used and disclosed by Federal officers and employees without the consent of the [U.S.] person only in accordance with the minimization procedures adopted” by the Attorney General and approved by the FISC. § 1861(h). Meanwhile, recipients of Section 1861 production orders are obligated not to disclose the existence of the orders, with limited exceptions. § 1861(d)(1).

B. Judicial Review by the FISC

While the recipient of a production order must keep it secret, Section 1861 does provide the recipient — but only the recipient — a right of judicial review of the order before the FISC pursuant to specific procedures. Prior to 2006, recipients of Section 1861 production orders had no express right to judicial review of those orders, but Congress added such a provision when it reauthorized the PATRIOT Act that year. See USA PATRIOT Improvement and Reauthorization Act § 106(f); 1 D. Kris & J. Wilson, National Security Investigations & Prosecutions § 19:7 (2d ed. 2012) (“Kris & Wilson”) (“Prior to the Reauthorization Act in 2006, FISA did not allow for two-party litigation before the FISC”).

*14 Under Section 1861, “[a] person receiving a production order may challenge the legality of that order by filing a petition with the [petition review pool of FISC judges].” 50 U.S.C. § 1861(f)(2)(A)(i); see § 1803(e)(1). 14 The FISC review pool judge considering the petition may grant the petition “only if the judge finds that [the] order does not meet the requirements of [Section 1861] or is otherwise unlawful.” § 1861(f)(2)(B). Once the FISC review pool judge rules on the petition, either the Government or the recipient of the production order may seek an en banc hearing before the full FISC, § 1803(a)(2)(A), or may appeal the decision by filing a petition for review with the FISC Court of Review, § 1861(f)(3). Finally, after the FISC Court of Review renders a written decision, either the Government or the recipient of the production order may then appeal this decision to the Supreme Court on petition for writ of certiorari. §§ 1861(f)(3), 1803(b). A production order “not explicitly modified or set aside consistent with [Section 1861(f)] shall remain in full effect.” § 1861(f)(2)(D).

Consistent with other confidentiality provisions of FISA, Section 1861 provides that “[a]ll petitions under this subsection shall be filed under seal,” § 1861(f)(5), and the “record of proceedings ... shall be maintained under security measures established by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence,” § 1861(f)(4). See also § 1803(c).

II. Collection of Bulk Telephony Meta-data Pursuant to Section 1861

To say the least, plaintiffs and the Government have portrayed the scope of the Government’s surveillance activities very differently. 15 For purposes of resolving these preliminary injunction motions, however, as will be made clear in the discussion below, it will suffice to accept the Government’s description of the phone metadata collection and querying program. Cf. Cobell v. Norton, 391 F.3d 251, 261 (D.C.Cir.2004) (evidentiary hearing on preliminary injunction is necessary only if the court must make credibility determinations to resolve key factual disputes in favor of the moving party).

In broad overview, the Government has developed a “counterterrorism program” under Section 1861 in which it collect, compiles, retains, and analyzes certain telephone records, which it characterizes as “business records” created by certain telecommunications companies (the “Bulk Telephony Metadata Program”). The records collected under this program consist of “metadata,” such as information about what phone numbers were used to make and receive calls, when the calls took place, and how long the calls lasted. Deel. of Acting Assistant Director Robert J. Holley, Federal Bureau of Investigation (“Holley Deck”) [Dkt. # 25-5], at ¶ 5; Deck of Teresa H. Shea, Signals Intelligence Director, National Security Agency (“Shea Deck”) [Dkt. #25-4], at ¶7; Primary Or *15 der, In re Application of the [FBI] for an Order Requiring the Production of Tangible Things From [Redacted], No. BR 13-158 at 3 n.l (FISC Oct. 11, 2013) (attached as Ex. B to Gilligan Decl.) [Dkt. #25-3] (“Oct. 11,. 2013 Primary Order”). 16 According to the representations made by the Government, the metadata records collected under the program do not include any information about the content of those calls, or the names, addresses, or financial information of any party to the calls. Holley Decl. ¶¶ 5, 7; Shea Decl. ¶ 15; Oct. 11, 2013 Primary Order at 3 n.l. 17 Through targeted computerized searches of those metadata records, the NSA tries to discern connections between terrorist organizations and previously unknown terrorist operatives located in the United States. Holley Decl. ¶ 5; Shea Decl. ¶¶ 8-10, 44.

The Government has conducted the Bulk Telephony Metadata Program for more than seven years. Beginning in May 2006 and continuing through the present, 18 the FBI has obtained production orders from the FISC under Section 1861 directing certain telecommunications companies to produce, on an ongoing daily basis, these telephony metadata records, Holley Decl. 16; Shea Decl. ¶ 13, which the companies create and maintain as part of their business of providing telecommunications services to customers, Holley Decl. ¶ 10; Shea Decl. ¶ 18. The NSA then consolidates the metadata records provided by different telecommunications companies into one database, Shea Decl. ¶23, and under the FISC’s orders, the NSA may retain the records for up to five years, id. ¶ 30; see Oct. 11, 2013 Primary Order at 14. According to Government officials, this aggregation of records into a single database creates “an historical repository that permits retrospective analysis,” Govt.’s Opp’n at 12, enabling NSA analysts to draw connections, across telecommunications service providers, between numbers reasonably suspected to be associated with terrorist activity and with other, unknown numbers. Holley Decl. ¶¶ 5, 8; Shea Decl. ¶¶ 46, 60.

The FISC orders governing the Bulk Telephony Metadata Program specifically provide that the metadata records may be *16 accessed only for counterterrorism purposes (and technical database maintenance). Holley Decl. ¶ 8; Shea Decl. ¶ 30. Specifically, NSA intelligence analysts, without seeking the approval of a judicial officer, may access the records to obtain foreign intelligence information only through “queries” of the records performed using “identifiers,” such as telephone numbers, associated with terrorist activity. 19 An “identifier” (i.e., selection term, or search term) used to start a query of the database is called a “seed,” and “seeds” must be approved by one of twenty-two designated officials in the NSA’s Homeland Security Analysis Center or other parts of the NSA’s Signals Intelligence Directorate. Shea Decl. ¶¶ 19, 31. Such approval may be given only upon a determination by one of those designated officials that there exist facts giving rise to a “reasonable, articulable suspicion” (“RAS”) that the selection term to be queried is associated with one or more of the specified foreign terrorist organizations approved for targeting by the FISC. Holley Decl. ¶¶ 15-16. 20 In 2012, for example, fewer than 300 unique identifiers met this RAS standard and were used as “seeds” to query the metadata, but “the number of unique identifiers has varied over the years.” Shea Decl. ¶ 24.

When an NSA intelligence analyst runs a query using a “seed,” the minimization procedures provide that query results are limited to records of communications within three “hops” from the seed. Id. ¶22. The query results thus will include only identifiers and their associated metadata having a direct contact with the seed (the first “hop”), identifiers and associated metadata having a direct contact with first “hop” identifiers (the second “hop”), and identifiers and associated metadata having a direct contact with second “hop” identifiers (the third “hop”). Id. ¶ 22; Govt.’s Opp’n at 11. In plain English, this means that if a search starts with telephone number (123) 456-7890 as the “seed,” the first hop will include all the phone numbers that (123) 456-7890 has called or received calls from in the last five years (say, 100 numbers), the second hop will include all the phone numbers that each of those 100 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 100 “first hop” numbers, or 10.000 total), and the third hop will include all the phone numbers that each of those 10.000 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 10,000 “second hop” numbers, or 1,000,000 total). See Shea Decl. ¶ 25 n.l. The actual number of telephone numbers and their associated metadata captured in any given query varies, of course, but in the absence of any specific representations from the Government about typical query results, it is likely that the quantity of phone numbers captured in any given query would be very large. 21

*17 Once a query is conducted and it returns a universe of responsive records (i.e., a universe limited to records of communications within three hops from the . seed), trained NSA analysts may then perform new searches and otherwise, perform intelligence analysis within that universe of data without using RAS-approved search terms. See Shea Decl. ¶ 26 (NSA analysts may “chain contacts within the query results themselves”); Oct. 11, 2013 Primary Order. 22 According to the Government, following the “chains of communication”— which, for chains that cross different communications networks, is only possible if the metadata is aggregated — allows the analyst to discover information that may not be readily ascertainable through other, targeted intelligence-gathering techniques. Shea Decl. ¶ 46. For example, the query might reveal that a seed telephone number *18 has been in contact with a previously unknown U.S. telephone number — i.e., on the first hop. See id. ¶ 58. And from there, “contact-chaining” out to the second and third hops to examine the contacts made by that telephone number may reveal a contact with other telephone numbers already known to the Government to be associated with a foreign terrorist organization. Id. ¶¶ 47, 62. In short, the Bulk Telephony Metadata Program is meant to detect: (1) domestic U.S. phone numbers calling outside of the U.S. to foreign phone numbers associated with terrorist groups; (2) foreign phone numbers associated with terrorist groups calling into the U.S. to U.S. phone numbers; and (3) “possible terrorist-related communications” between U.S. phone numbers inside the U.S. See id. ¶ 44.

Since the program began in May 2006, the FISC has repeatedly approved applications under Section 1861 and issued orders directing telecommunications service providers to produce records in connection with the Bulk Telephony Metadata Program. Shea Decl. ¶¶ 13-14. Through October 2013, fifteen different FISC judges have issued thirty-five orders authorizing the program. Govt.’s Opp’n at 9; see also Shea Decl. ¶¶ 13-14; Holley Decl. ¶6. Under those orders, the Government must periodically seek renewal of the authority to collect telephony records (typically every ninety days). Shea Decl. ¶ 14. The Government has nonetheless acknowledged, as it must, that failures to comply with the minimization procedures set forth in the orders have occurred. For instance, in January 2009, the Government reported to the FISC that the NSA had improperly used an “alert list” of identifiers to search the bulk telephony metadata, which was composed of identifiers that had not been approved under the RAS standard. Id. ¶ 37; Order, In re Production of Tangible Things from [Redacted], No. BR 08-13, 2009 WL 9150913, at *2 (FISC Mar. 2, 2009) (“Mar. 2, 2009 Order”). After reviewing the Government’s reports on its noncompliance, Judge Reggie Walton of the FISC concluded that the NSA had engaged in “systematic noncompliance” with FISC-ordered minimization procedures over the preceding three years, since the inception of the Bulk Telephony Metadata Program, and had also repeatedly made misrepresentations and inaccurate statements about the program to the FISC judges. Mar. 2, 2009 Order, 2009 WL 9150913, at *2-5. 23 As a consequence, Judge Walton concluded that he had no confidence that the Government was doing its utmost to comply with the court’s orders, and ordered the NSA to seek FISC approval on a case-by-case basis before conducting any further queries of the bulk telephony metadata collected pursuant to *19 Section 1861 orders. Id. at *9; Shea Decl. ¶¶ 38-39. This approval procedure remained in place from March 2009 to September 2009. Shea Decl. ¶¶ 38-39.

Notwithstanding this six-month “sanction” imposed by Judge Walton, the Government apparently has had further compliance problems relating to its collection programs in subsequent years. In October 2011, the Presiding Judge of the FISC, Judge John Bates, found that the Government had misrepresented the scope of its targeting of certain internet communications pursuant to 50 U.S.C. § 1881a (i.e., a different collection program than the Bulk Telephony Metadata Program at issue here). Referencing the 2009 compliance issue regarding the NSA’s use of unauthorized identifiers to query the meta-data in the Bulk Telephony Metadata Program, Judge Bates wrote: “the Court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.” Mem. Op., [Redact ed7, No. [redacted], at 16 n.14 (FISC Oct. 3, 2011). 24 Both Judge Walton’s and Judge Bates’s opinions were only recently declassified by the Government in response to the Congressional and public reaction to the Snowden leaks. 25

ANALYSIS

I will address plaintiffs’ statutory claim under the APA before I turn to their constitutional claim under the Fourth Amendment.

I. Statutory Claim Under the APA

Invoking this Court’s federal question jurisdiction under 28 U.S.C. § 1331, plaintiffs allege that the Government’s phone metadata collection and querying program exceeds the statutory authority granted by FISA’s “tangible things” provision, 50 U.S.C. § 1861, and thereby violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. See Second Am. Compl. ¶¶ 96-99; Pis.’ Mem. at 2, 17-19; Pis.’ Reply in Supp. of Mots, for Prelim. Inj. (“Pis.’ Reply”) [Dkt. #31], at 5-11. In particular, plaintiffs argue that the bulk records obtained under the Bulk Telephony Metadata Program are not “relevant” to authorized national security investigations, see 50 U.S.C. § 1861(b)(2)(A), and that the FISC may not prospectively order telecommunications service providers to produce records that do not yet exist. See Pis.’ Mem. at 17-19; Pis.’ Reply at 5-11. In response, the Government argues that this Court lacks subject matter jurisdiction over this statutory claim because Congress impliedly precluded APA review of such claims. Government Defs.’ Supplemental Br. in Opposition to Pis.’ Mots. Prelim. Inj. *20 (“Govt.’s Suppl. Br.”) [Dkt. #43], at 2. For the following reasons, I agree with the Government that I am precluded from reviewing plaintiffs’ APA claim.

The APA “establishes a cause of action for those ‘suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action.’ ” Koretoff v. Vilsack, 614 F.3d 532, 536 (D.C.Cir.2010) (quoting 5 U.S.C. § 702). In particular, the APA permits such aggrieved persons to bring suit against the United States and its officers for “relief other than money damages,” 5 U.S.C. § 702, such as the injunctive relief plaintiffs seek here. This general waiver of sovereign immunity does not apply, however, “if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” Id. Similarly the APA’s “basic presumption of judicial review [of agency action],” Abbott Labs v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), does not apply “to the extent that ... statutes preclude judicial review,” 5 U.S.C. § 701(a)(1). Accordingly, “[t]he presumption favoring judicial review of administrative action is just that— a presumption,” Block v. Community Nutrition Inst., 467 U.S. 340, 349, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984), and it may be overcome “whenever the congressional intent to preclude judicial review is ‘fairly discernible in the statutory scheme.” ’ Id. at 351, 104 S.Ct. 2450. Assessing “[w]hether a statute precludes judicial review of agency action ... is a question of congressional intent, which is determined from the statute’s ‘express language,’ as well as ‘from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.’ ” Koretoff, 614 F.3d at 536 (quoting Block, 467 U.S. at 345, 104 S.Ct. 2450); see also Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994).

The Government insists that two statutes — 50 U.S.C. § 1861, the “tangible things” provision of FISA itself, and 18 U.S.C. § 2712, a provision of the USA PATRIOT Act, codified in the Stored Communications Act — impliedly preclude this Court’s review of plaintiffs’ statutory APA claim. Govt.’s Opp’n at 26-31; Govt’s Suppl. Br. at 1-4. The text of Section 1861, and the structure and purpose of the FISA statutory scheme, as a whole, do indeed reflect Congress’s preclusive intent. Stated simply, Congress created a closed system of judicial review of the government’s domestic foreign intelligence-gathering, generally, 50 U.S.C. § 1803, and of Section 1861 production orders, specifically, § 1861(f). This closed system includes no role for third parties, such as plaintiffs here, nor courts besides the FISC, such as this District Court. Congress’s preclusive intent is therefore sufficiently clear. How so?

First, and most directly, the text of the applicable provision of FISA itself, Section 1861, evinces Congress’s intent to preclude APA claims like those brought by plaintiffs before this Court. Section 1861 expressly provides a right of judicial review of orders to produce records, but it only extends that right to the recipients of such orders, such as telecommunications service providers. See 50 U.S.C. § 1861(f). Congress thus did not preclude all judicial review of Section 1861 production orders, but I, of course, must determine “whether Congress nevertheless foreclosed review to the class to which the [plaintiffs] belon[g].” Block, 467 U.S. at 345-46, 104 S.Ct. 2450. And “when a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded.” Id. at 349, 104 S.Ct. 2450 (emphases added); see also id. at 345^48, 104 S.Ct. 2450 (holding *21 that the statutory scheme of the Agricultural Marketing Agreement Act (“AMAA”), which expressly provided a mechanism for milk handlers to obtain judicial review of milk market orders issued by the Secretary of Agriculture, impliedly precluded review of those orders in suits brought by milk consumers). That is exactly the case here. Congress has established a detailed scheme of judicial review of the particular issue of the “legality” of Section 1861 production orders at the behest of only recipients of those orders. 50 U.S.C. §§ 1861(f)(2)(A)® (“A person receiving a production order may challenge the legality of that order by filing a petition with the [petition review pool of FISC judges].” (emphasis added)), 1861(f)(2)(B) (“A judge considering a petition to modify 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.” (emphasis added)). And that scheme of judicial review places such challenges before the FISC: Section 1861 permits such challenges to be heard only by the petition review pool of the FISC. See § 1861(f)(2)(A)®; § 1803(e)(1) (the FISC petition review pool “shall have jurisdiction to review petitions filed pursuant to section 1861(f)(1)... of this title”).

Second, the purpose and legislative history of Section 1861 also support the conclusion that Congress intended to preclude APA claims by third parties. Simply put, Congress did not envision that third parties, such as plaintiffs, would even know about the existence of Section 1861 orders, much less challenge their legality under the statute. See, e.g., H.R.Rep. No. 109-174 at 128, 268 (2005). As the Government points out, “Section [1861], like other provisions of FISA, establishes a secret and expeditious process that involves only the Government and the recipient of the order” in order to “promote its effective functioning as a tool for counter-terrorism.” Govt’s Opp’n at 29; see also 50 U.S.C. § 1861(d)(1) (recipient of production order may not “disclose to any other person that the [FBI] has sought or obtained” an order under Section 1861); § 1861(f)(5) (“All petitions under this subsection shall be filed under seal.”); § 1861(f)(4) (“The record of proceedings, including petitions filed, orders granted, and statements of reasons for decision, shall be maintained under security measures established by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence.”). Congress did think about third parties, such as persons whose records would be targeted, when it created a right to judicial review of Section 1861 production orders for recipients, but it recognized that extending a similar right to third parties would make little sense in light of the secrecy of such orders. See H.R.Rep. No. 109-174 at 128, 268; Govt.’s Opp’n at 29 n.14; Govt.’s Suppl. Br. at 3. 26 Congress therefore considered the precise issue of challenges to the legality of Section 1861 orders, and the statute reflects its ultimate conclusions as to who may seek review and in what court. § 1861(f); see also H.R.Rep. No. 109-174 at 128-29, 134, 137 (rejecting amendment that would have allowed recipients of Section 1861 *22 orders to bring challenges to such orders in federal district court).

But even setting aside the specific fact that FISA does not contain a judicial review provision for third parties regarding Section 1861 orders, Congress’s preclusive intent is all the more evident when one considers, viewing FISA as a whole, that Congress did not contemplate the participation of third parties in the statutory scheme at all. See Ark. Dairy Coop. Ass’n v. Dep’t of Agric., 573 F.3d 815, 822 (D.C.Cir.2009) (noting that in reaching its decision in Block, “the Supreme Court did not concentrate simply on the presence or absence of an explicit right of appeal [for consumers] in the AMAA, bu