United States District Court, N.D. California
ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
JEFFREY S. WHITE, District Judge.
Now before the Court is the motion filed by Plaintiffs Carolyn Jewel, Erik Knutzen, and Joice Walton, on behalf of themselves and all other individuals similarly situated ("Plaintiffs") for partial summary judgment on their claim for relief which challenges the interception of their Internet communications as a violation of the Fourth Amendment ("Fourth Amendment Claim" or "Claim"). Also before the Court is the cross-motion for partial summary judgment on Plaintiffs' Fourth Amendment Claim filed by Defendants National Security Agency, United States Department of Justice, Barack H. Obama, Michael S. Rogers, Eric H. Holder, Jr., and James R. Clapper, Jr. (in their official capacities) (collectively, "Government Defendants").
Having considered the parties' papers, including the Government Defendants' classified brief and classified declarations, and the parties' arguments, the Court DENIES Plaintiffs' motion for partial summary judgment and GRANTS the Government Defendants' cross-motion for partial summary judgment.
The issues raised by the pending motions and additional briefing now before the Court compel the Court to examine serious issues, namely national security and the preservation of the rights and liberties guaranteed by the United States Constitution. The Court finds the predicament delicate and the resolution must strike a balance of those significant competing interests.
Based on the public record, the Court finds that the Plaintiffs have failed to establish a sufficient factual basis to find they have standing to sue under the Fourth Amendment regarding the possible interception of their Internet communications. Further, having reviewed the Government Defendants' classified submissions, the Court finds that the Claim must be dismissed because even if Plaintiffs could establish standing, a potential Fourth Amendment Claim would have to be dismissed on the basis that any possible defenses would require impermissible disclosure of state secret information.
Plaintiffs allege that as part of a system of mass surveillance, the Government Defendants receive copies of their Internet communications, then filter the universe of collected communications in an attempt to remove wholly domestic communications, and then search the remaining communications for search terms called "selectors" for potentially terrorist-related foreign intelligence information.
The Government has described the collection of communications pursuant to Section 702 of the Foreign Intelligence Surveillance Act ("Section 702") in several public reports. Upon approval by the Foreign Intelligence Surveillance Court of a certification under Section 702, NSA analysts identify non-U.S. persons located outside the United States who are reasonably believed to possess or receive, or are likely to communicate, foreign intelligence information designated in the certification. ( See, e.g., NSA Civil Liberties and Privacy Office Report, NSA's Implementation of FISA Section 702 at 4 (Apr. 16, 2014) ("Civil Liberties Report")). Once designated by the NSA as a target, the NSA tries to identify a specific means by which the target communicates, such as an e-mail address or telephone number. That identifier is referred to a "selector." Selectors are only specific communications accounts, addresses, or identifiers. ( See id; see also Privacy and Civil Liberties Oversight Board Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act ("PCLOB Report") at 32-33, 36.) According to the Government's admissions, an electronic communications service provider may then be compelled to provide the Government with all information necessary to acquire communications associated with the selector, a process called "tasking." ( Id. at 32-33; see also Civil Liberties Report at 4-5.)
One process by which the NSA obtains information related to the tasked selectors is known as the Upstream collection program. Through a Section 702 directive, this program compels the assistance of the providers that control the telecommunications backbone within the United States. ( See PCLOB Report at 35.) Under the Upstream collection program, tasked selectors are sent to domestic electronic communications service providers to acquire communications that transit the Internet backbone. ( See id. at 36-37.) Internet communications are filtered in an effort to remove all purely domestic communications, and are then scanned to capture only those communications containing the designated tasked selectors. ( Id. at 37.) "Unless [communications] pass both these screens, they are not ingested into governmental databases." ( Id. )
Plaintiffs contend that the copying and searching of their private Internet communications is conducted without a warrant or any individualized suspicion and, accordingly, violates the Fourth Amendment. The Fourth Amendment prohibits the Government from intercepting, copying, or searching through communications without a warrant issued by a neutral and detached magistrate, upon probable cause, particularly describing the place to be searched and the things to be seized. Judicial warrants based on particularity and probable cause are especially crucial in electronic surveillance, where searches and seizures occur without leaving a trace and where the threat to privacy is especially great. United States v. U.S. District Court (Keith), 407 U.S. 297, 313 (1972).
In their motion for partial summary judgment, Plaintiffs seek adjudication as to their Fourth Amendment Claim with regard only to the NSA's acknowledged Upstream collection of communications pursuant to Section 702. The Government Defendants contend that Plaintiffs' evidence is insufficient to establish standing, and that even assuming standing, either there can be no Fourth Amendment violation on the facts in the record as a matter of law, or alternatively, that the state secrets privilege requires dismissal of Plaintiffs' Fourth Amendment Internet surveillance claim.
The Court shall address other additional specific facts as necessary in the remainder of this Order.
A. Summary Judgment ...