Featuring: Hon. Jeffrey White Electronic Frontier Foundation ACLU
The Court: Good afternoon, everybody. Please be seated, and call the case.
The Clerk: Calling case number C-08-4373, Carolyn Jewel, et al versus National Security Agency, et al and case number V-07-0693, Virginia Shubert, et al versus George W. Bush, et al.
Counsel, please state your appearances. Counsel in court, first.
Ms. Cohn: Good afternoon, your honor. Cindy Cohn, of the Electric Frontier Foundation on behalf of the Jewel plaintiffs.
The Court: Good afternoon.
The Clerk: And on the phone?
Mr. Coppolino (by phone): Good afternoon, your honor. This is Anthony Coppolino with the Department of Justice, Civil Division. And I'm joined in my office by a number of my colleagues: Marcia Berman, Bryan Dearinger, Rodney Patton, Julia Berman.
And we're on speakerphone, your honor, but we're the only people that are in the office here.
The Court: All right. And are you able to hear the court?
Mr. Coppolino (by phone): I am, your honor, very well. Thank you.
The Court: And were you able to hear Ms. Cohn?
Mr. Coppolino (by phone): Yes, I hear her very well, too.
The Court: Yes. And please --
Mr. Maazel (by phone): And, your honor, Ilann Maazel, Emery, Celli, Brinckerhoff & Abady, for the Shubert plaintiffs also on the phone.
The Court: All right. Welcome.
And it would be very helpful to the court reporter and court if when people on the phone speak, please identify yourself. And I just noted there were two Bermans. So if either of the Bermans speak, please mention your first name, as well, so we know which Berman is speaking.
All right. So I have reviewed both sides' briefing and the supporting declaration and exhibits. And I wanted to ask some questions to follow up on and what was posed. And as counsel on the phone and in court know well, this court does read the briefs and the cases, so I don't need counsel to merely reiterate what is in their briefs, unless it's to highlight a specific response to the court's question.
If I ask a question it means that I don't feel like the information has been provided to the court at this point.
So it's possible in the heat of battle I may have missed some of it, but that's why I want you to answer these questions.
So the first question -- and as I usually do, I'm going to begin the question with a preamble so you understand where the court is coming from, and then ask counsel questions.
You're always free once you answer the question to quarrel with the court's preamble. But please answer the question first, and then you can tell the court why its preamble was -- you disagree with it.
So question number: "with regard to the collection of communications pursuant to section 702, defendants have represented that the information is relevant, and plaintiffs have distinguished their section 215 challenges. In his declaration of December, 2013, asserting privilege, director of national intelligence, James r. Clapper, concedes that communications collected pursuant to FISC, F-I-S-C, orders under section 702, quote: 'may relate to or be necessary to adjudicate plaintiffs' allegations,'" unquote.
And that is the so-called "Clapper declaration," docket 22o at paragraph 61.
However, in their briefing on their status as aggrieved parties, plaintiffs distinguish their current broad untargeted telephony meta data claims from the Amnesty International versus Clapper plaintiffs' challenges to section 702, 702 specific and targeted surveillance program."And I'm citing here plaintiffs' response to the court's questions at 10 through 11.
So to the plaintiffs: On what basis do plaintiffs contend that the data collected pursuant to section 702 is, quote, "relevant," unquote, to their pending claims?
And, secondly: Where in the complaint do plaintiffs specifically seek redress for violations of their constitutional and statutory rights pursuant to the program effectuated under section 702?
Ms. Cohn: Thank you, your honor. I think that to answer your question the 702 program didn't exist as a 702 program when we filed the case.
What we had evidence of from the very beginning of this is that the NSA has access to communications as they flow over the fiber optic cables, and specifically the AT&T building on Folsom Street, but in AT&T facilities across the country.
So our complaint has always been based on what the government does. And as time has gone on, the government has now given a statutory label to what it is doing in terms of accessing information off the fiber optic cables.
And they say that it's now justified under section 702 of the FISA amendments act, which was passed in 2008.
The way that this program works is a two-step process. And a lot of confusion in these cases has to do with allying the differences between the two steps. The first step is that the government collect everything coming off of those cables. Collect it all is what it comes out in the most recent slides that have come out.
And then, the government takes a series of steps to reduce, to minimize what it has collected. And the minimization procedures that they include there are their efforts to try to limit the first step to a second step, which is I think what they are calling "targeted surveillance" because it's done pursuant to selectors.
Now, selectors aren't just people. There's some fights about what a selector is. But to keep the way that this works in mind, there's a two-step process. The first thing is they collect everything. And the second thing is they take a series of measures to limit what they retain to what I think they would deem targeted.
The fight in our case has been largely about step one: Whether there's a constitutional question at the time the government gains custody of everything in the first instance.
The government's argument is section 702 is about the second step, the targeting step. And that the first step just doesn't matter or doesn't count or shouldn't have any standing.
And so there's confusion in the way the conversation has happened, because we're talking about step one, and they are largely talking about step two.
And so when we talk about Clapper, the Clapper case, was a case in which the plaintiff said: "based on the government's statements about who is keeping information about it under step two, we think we're it."
The plaintiffs in the Clapper case was Amnesty International. It was people who are engaged in communications with people who they reasonably suspect the government might be surveilling.
So when we say that the Clapper case was about targeted surveillance it's because the plaintiffs were arguing that they were what was being kept in the second step of this surveillance. And we're arguing on behalf of the millions and millions of ordinary people whose information is captured and scanned as part of step one.
So the terminology has changed so much. So the government originally claimed that "collect" didn't mean step one. "collect" meant what they had after step two. Now they say it's a targeted program because what they keep is only the stuff that they keep, so that's targeted. So the whole program is a targeted program.
But that's not -- I don't think that's a fair characterization of how 702 is operating, frankly. They are collecting everybody's stuff first, and then sorting out second what they need. Both of those steps are constitutionally significant.
Did I explain that well?
The Court: Well, you explained it well, but I don't know if you are getting to the direct answer, which is where in the complaint do you allege violation of what you're calling step two, or the 702 program?
Ms. Cohn: Step one is what we are --
The Court: I thought you meant step one was the collection, the mass collection of meta data.
Ms. Cohn: No. The mass collection of everything, content and meta data.
The Court: All right.
Ms. Cohn: The fiber optic cables carry both content and meta data.
Okay. So that's step one.
Ms. Cohn: That's step one.
The Court: All right. Step two is the so called "targeted approach."
Ms. Cohn: Right.
The Court: Does your complaint or can you cite the court in your complaint to anywhere where step two is relevant to the plaintiffs' claims in this case?
Ms. Cohn: Well, plaintiffs have a difficult time understanding whether their information continues to be retained by the government after the government applies its minimization procedures because those procedures are secret.
So we've focused our case on step one, which is the initial collection.
The Court: Well, let me stop you right there. So let's assume that -- you know, I want to make sure that the government and the plaintiffs are talking about the same thing.
Or maybe there is -- I'll let you confer with your co-counsel there.
Ms. Cohn: I'm grabbing the complaint, your honor.
The Court: It's okay to do that. But if what you're saying is that the step one, you know, wholesale or large collection undifferentiated, if you will, is something -- is that something that you argue is done pursuant to section 215?
Ms. Cohn: No.
The Court: You're saying that that's done pursuant to 702.
Ms. Cohn: Correct.
The Court: Okay. So okay. Now, where in your complaint is it specifically alleged that 702 or actions under 702 by the government are violating the constitutional rights of the plaintiffs?
Ms. Cohn: Well, your honor, the complaint isn't based on section 702, because it wasn't until very recently that we learned that the government is doing this behavior under a claim of authority under section 702. What the complaint is about is about the behavior. The complaint is about the wholesale copying of the communications of at&t customers off of the fiber optic cables.
The Court: Which you contend is done both pursuant to 215 or 702 or just 702?
Ms. Cohn: No, your honor. Just 702. A dual complaint has two pieces. So if I -- it's a little confusing.
The Court: One is president bush -- so-called president bush authorized collections, and the second one is the so called "FISA authorized collection"?
Ms. Cohn: No, your honor. If I may.
The Court: Please.
Ms. Cohn: There are two factual pieces in our case.
One is the telephone records collection, and the second is the collection off of the fiber optic cables. So there are two distinct activities that it is government is doing.
Now, post-Snowden, the government has admitted that there are two different statutory bases upon which it's doing these two separate programs. It's collecting the phone records under section 215. It's collecting the internet content under 702.
But our complaint is based on these two behaviors.
The government's statutory or other arguments upon which it thinks it can do this behavior have shifted over time.
And so today it's under 702. For awhile they were using the pen register statute for pieces of this. So our complaint has never been tied to the government's defenses.
It's tied to the behaviors.
The Court: All right. Mr. Coppolino, are you going to respond initially on behalf of the government?
Mr. Coppolino (by phone): I am, your honor. Thank you, your honor. This is Anthony Coppolino.
And first, your honor, I appreciate you doing this by phone on short notice. And I wanted to thank you for that, your honor.
The Court: Unless there was any way that you guys could be beamed over here I assume that that would be necessary. And you don't need to thank the court, but go ahead.
Mr. Coppolino (by phone): Your honor, thank you.
So I hardly know where to begin. But I will start with this. First of all, the contention that 702 did not exist when the complaint was filed is a falsehood. 702 was enacted in 2008, in july of 2008, as part of the FISA act amendments of 2008.
Not only did it exist before this complaint was filed, the Jewel plaintiffs knew about it, because it's precisely why they filed suit. That legislation created immunity for the telecommunication companies. And the other lawsuit that EFF brought on behalf of these same plaintiffs called "Hepting" got dismissed because of that statute based on the immunity provisions, and Judge Walker dismissed the case.
That statute also had a title which created what we call the "FISA act amendments of 2008," which established section 702 of the FISA. So it's not true that it didn't exist before the lawsuit was filed.
And in Amnesty International the plaintiffs in that suit, the ACLU over in new york, knew quite well it existed.
They filed a complaint, I think, the day it was enacted into law. And that made a lot of headlines, and it was litigated.
And it was all, all public. No secret program. And it was out there.
So that statement is just not true.
The second thing that's not true is her program description. 702 is a public statutory program. If you look at the Amnesty International decision, it details how that program operates. And so that is the source of what should be the court's understanding for this program and how it operates.
Her description of step one and step two, I don't think i've ever heard this before. It's never been briefed as far as I can tell. And one of the problems that we're having here is we're here before the court on an emergency TRO, and we're talking for the first time about section 702.
It's not in the complaint. It's never been briefed.
This court has never been given an opportunity to understand the ins and outs of how it works and whether there's a step one or two or not.
In fact, the supreme court delineated precisely how the program operates. And it is a targeted program. It is a program that is targeted at specific selectors, that is phone numbers or email accounts. That's the first thing that distinguishes it from the allegations in this case.
The second thing that distinguishes it. I think most importantly, is that it is directed at non u.s. Persons located -- reasonably believed to be located outside the united states.
The plaintiffs couldn't possibly be targeted under this program. At least not legally. And they don't allege that they were targeted under this program. And so they couldn't be the target of a surveillance under this program as a matter of law.
So the only possible argument they could possibly make here is that their communications were somehow incidentally, unlawfully collected. That is pure rank speculation.
In fact, one of the reasons I think we should continue to brief this on the schedule that you have already set forth is I question whether they have even articulated standing for bringing a section 702 claim. Amnesty International disposes of that. Amnesty International says you cannot come to court and speculate that you might be subject to this surveillance authority and have standing. And they disposed of that argument, and that is exactly what the plaintiffs are doing based on their own speculation as to how it works, step one and step two.
So for purposes of today's hearing, to kind of bring this back, we disagree with their assessment of how this thing works. But you shouldn't be entering a TRO causing the preservation of data that is collected under this hugely significant program without fully understanding how the program operates and without its relevance to the suit.
Now, the fact that they didn't plead it to us should be dispositive. It was a known program. The plaintiff in Amnesty pled it. They could have pled it. And they could have made whatever arguments they want.
In fact, I'll point out there was a predecessor statute called the "Protect America Act," which was implemented in the transition between the so-called "Terrorist Surveillance Program" and the FISA act amendments.
And another lawyer in this multiple district litigation in the center for constitutional rights case, came into court and asked to amend his complaint to challenge that statute. Ms. Cohn was in the courtroom that day. I have the transcript. They didn't challenge the PAA, either. And that was a public statute as was FAA.
So it is -- this program is, in our view, not relevant to this lawsuit. But on the topic that is at issue here, even if you think it was, for the reasons we set forth the court should not issue the kind of preservation order that they sought. And, indeed, we identified the problems with the order that you issued yesterday. And we can talk about that further.
I do want to take issue before I give up the microphone here, your honor, with some of your preamble, and just point out that we have not conceded that section 702 is relevant to the claims. What we have said is that in order to litigate the claims and in order, indeed, to dispute the claims the government -- the sources and methods utilized under 702 would be at risk of disclosure and, hence, they were subject to the states secrets privilege, director Clapper's states secrets privilege.
It was not a concession that they challenged 702. It was not a concession that 702 is relevant to the claim. It simply points out that in order to litigate the case and disprove the claims and, indeed, to show that their claim that these activities were occurring without statutory and judicial authority we would have to get into the sources and methods that were, in fact, being utilized under statutory law.
The Court: All right, Ms. Cohn.
Ms. Cohn: Yes, your honor. I did get a chance to look through the complaint, your honor. From paragraphs 50 to paragraphs 80 of the Jewel complaint we describe the NSA's dragnet interception of communications transmitted through at&t facilities. That's the factual predicate for one half of the Jewel case. The other part being the telephone records.
And so the Jewel complaint didn't -- again, the government's legal rationales have shifted. Now he's told you he's not even conceding that 702 is what is at issue in this case.
The Court: What about the argument the government just made that all of this, this program, by its existing name and predecessor names was well-known to the plaintiffs in this case?
Ms. Cohn: No, your honor. I think that's just factually incorrect. The government has revealed aspects of its surveillance in a very limited and cabined way over time.
They started by, you know, president bush said: "if you are talking to members of al qaeda, we want to be listening."
And so the presumption there and defense there was that this was just about targeted surveillance to specific terrorists targets.
We then learned it was a much bigger program and that it actually collected the information of millions and millions of people on the way to that little bit that they -- this process of revelation has gone on over time.
At the time that the FISA amendments acts was passed the government claimed that 702 only represented a very targeted program and that it wouldn't involve the collection of millions of innocent Americans' communications content.
They basically said that's not what it was. That it was a targeted program, "targeted" meaning if you are talking to somebody who is on their selector list, one way or another, that's what they are collecting.
And we have always maintained that that's a incomplete description of what the government's doing, and it allies some very important constitutional questions. So we have always grounded our lawsuit not on the government's legal defenses. And is this under 702? Was it under 215? Is it under the pen register statute? Is it under the government's executive authority?
Those are all the government's defenses for its activities.
Our complaint talks about a particular behavior by the government. The access under paragraphs 50 through 80 are the initial description of a massive collection of communications, and the very specific technologies involved, which are described in the declaration of Mark Klein, the expert declaration of J. Scott Marcus.
And our case says this thing that they are doing is unconstitutional, and it isn't justified by any statute. And that's what we've been alleging all along. And for the government to try to limit the scope of our case based upon the fact that we weren't quite aware of what particular statutory bases they were claiming at any particular point in time for this behavior is, I think, frankly, quite unfair to us given the secrecy here.
The Court: A couple of related questions, which is -- and then I'll give Mr. Coppolino a chance to respond. I reviewed the transcript of our previous proceedings and also the order that the plaintiffs presented, which would have been much broader -- it was much broader than what the government --
What the court ultimately entered.
And there was a colloquy with the court in which it appeared to the court that the plaintiffs were foreswearing or eschewing an argument under -- if not 702, specifically, then behavior that is described.
Am I correct in that assumption?
Ms. Cohn: Yes, your honor. I'm afraid you are. If I gave you that impression, then I was -- that was incorrect.
The Court: Well, the first one is in there. The second one may be interpretative. The first one is u.s. Or broader order that might have included what you're talking about now. And I felt that that was too broad, and I did not issue the order to that effect.
So what do you say about that?
Ms. Cohn: Well, to the extent that you scaled back our proposed order, your honor, I don't think that you scaled it back in order to exclude one half of the factual allegations in our complaint from being required to be preserved.
I mean, it's true that we came to your honor with an immediate problem. And the immediate problem had to do with the fact that the government had been told by the FISC that they had to destroy telephone records.
And it wasn't until the monday before we talked to you on the wednesday that I realized that based upon the government's rationale it didn't seem that they were preserving evidence under the section 702 programs, either, because it was on that monday that they finally presented their secret declarations from 2007 where they took the position, unbeknownst to us, that the FISC orders, anything that happened after the FISC orders came into place wasn't included at all in their preservation obligation.
The Court: All right.
Ms. Cohn: And so I didn't read, and I don't read, what happened in terms of you not accepting my proposed order as saying the government can continue destroy evidence under part of -- now that we know that they don't think they have a preservation duty under section 702, it's okay for them to continue to destroy evidence while we sort out what happened for the last seven years.
The Court: All right. Mr. Coppolino.
Mr. Coppolino (by phone): Thank you, your honor. A couple of points here. First of all, the transition from the terrorist surveillance program to the protect America act in section 702 is detailed in our papers. And the notion that the lawsuit has to be -- and preservation obligations have to be driven by general allegations of conduct is not correct.
I think the court has to find specifically, and should find, particularly in a case of an injunction, that the requested preservation steps are relevant to particular claims.
And all that we have pointed out in these last two days to you is that the steps that they are asking us to take with respect to 702, are, a: Unmoored from any claim regarding 702, which is extraordinarily significant. It was an established program. And, b: With respect to the data deletion policies of the NSA that are governed by FISC requirements and minimization procedures, that that would cause extraordinary harm to national security if we were to go forward with that.
Now, with respect to the tro, we set forth in the papers that we filed a short time ago the evolution of the TRO in first unitarian and how it covered section 215. And you correctly note that you specifically rejected a proposed order they submitted that called for the preservation of all communication content. And that would have been their hook to try to get to 702. That's set forth in our papers. I'm not going to repeat it.
But except to just say this: The tro, the existing tro, does not cover 702. So this isn't a request to modify anything. This is a renewed TRO request based on a claim that hasn't been brought.
What I would urge the court to do is, first of all, to stay or set aside the order you issued yesterday. Take further briefing on this issue under the current briefing schedule which was in place. And, in particular, I think we need to have briefing on whether they have stated a claim under section 702, and whether they have established their standing on the pleadings under 702.
And the reason I say that is I litigated Amnesty International in district court, me and one of my colleagues in new york. And so I'm very familiar with that case. And I think it's very important that the court have a full understanding of 702, have full briefing on that question, including the question of whether they have stated a claim and have standing, before you issue a preservation order under that program.
Particularly what they have asked for in these past few days, which is all documents, all material related to 702, which clearly would include the data that is collected under that program, which is subject to FISC minimization requirements.
And as the deputy director of NSA explained attempting to carry that out in the immediate future and even long-term will cause very significant operational problems.
The Court: All right. I want to move on. I will give you an opportunity to additional points at the end, but I want to make sure I get through my questions in a complete way.
And so I'm not cutting either side off with respect to any issue, but I do want to get through my initial questions that I prepared based upon the filings.
So question number two -- and, again, I'll start with a preamble, and then I'm going to address the question in the first instance to plaintiffs.
"The cases reviewing the merits of the constitutional challenges to the dragnet surveillance program have all found standing as a matter of law."
And for that i'd like you to see Klayman, k-l-a-y-m-a-n, v. Clapper, 957 f. Supp. 2d 1, 26 through 28, decided by the District of Columbia court, federal court in 2013. Smith v. Obama, number 13-o257. The slip opinion at three note two. District of Idaho, decided june 3rd, 2014.
ACLU versus Clapper, 959 f. Supp. 2d 724 at 746, decided in the Southern District of New York in 2013, which states, quote: "aggregated telephony meta data is relevant because it allows the querying technique to be comprehensive. Armed with all the meta data NSA can draw connections it might otherwise never be able to find," unquote.
So the question is this: "if this court similarly finds standing as a matter of law to pursue the merits of their claims, would plaintiffs still seek the continued preservation of the evidence sought by the court's existing preservation and restraining orders?"
Ms. Cohn: So, your honor, those orders had to do just with the telephony meta data. They didn't have to do with the content collection.
But I think the answer to your question is: Yes, if the court were to find as a matter of law that the mass collection of contents, just like the mass collection of meta data, by definition had to include our clients, because that's what "mass" means, then, yes, your honor, I think that would get us out of this problem. That is, essentially the adverse inference that I asked you to provide.
My hesitation is that I think that standing is the only issue to which that fact will have to go. I'm a little hesitant given how litigation goes to say that standing is the only issue that those facts might go to. But it's the one that is obviously most foremost in our minds at the moment.
The Court: Well, the reason I ask the question is obviously, that to the extent that the answer were in the affirmative in the sense that the need for preservation order would go away if the court were to find -- at least for purposes of the next stages of litigation -- the court were to find the existence of standing, that would remove a big -- not a "big," but at least a piece of this litigation that's currently before the court. So that's number one.
And related to that is if the remedy that the plaintiffs are seeking is an adverse inference, the court would obviously ask the question: "well, if I give you that, if I give the plaintiffs that adverse inference, where does that leave us?"
And if the answer is: Then, you no longer need to be concerned with the destruction of documents, then a fortiori, if I conclusively found that there was standing based upon the factors that were relied on by these other district courts, I would assume the answer would be the same.
So why litigate a point that is really not in -- is not contested here is really the point.
Ms. Cohn: I agree, your honor. I mean, this is why we came up with this idea of an adverse inference. Again, I would like to tie it to the facts rather than the standing legal question just because I'm nervous about -- life is long.
I'm nervous that they may try to argue the fact that we can't demonstrate that our clients' communications were included in this goes to some other fact after we're done with standing, but --
The Court: That's going to be my next question.
Ms. Cohn: -- I think that if you were to provide the adverse inference that we're talking about, then we don't need them to keep the information.
We've said this from the beginning, your honor. It's a somewhat awkward position for us to be standing here trying to argue the government has to keep information we didn't think they should collect in the first place.
So if we can make this process move forward in a way that reduces the amount of information that the government has to keep without harming my clients' ability to make their case, then that's the best world. And that's the world we would like to get to.
The Court: All right. Let me -- Mr. Coppolino, I'm going to give you a full opportunity to respond to the same question. But I would like to add a question to you that might illuminate the information that I'm seeking.
And, of course, i'd like responses to both. And I'm sure you can keep track of all of it.
So the question I want to ask of the government in addition to responding to the response that Ms. Cohn just provided is as follows: "do the government defendants maintain that plaintiffs must show individualized standing that their specific communications have been collected, or have plaintiffs demonstrated standing by virtue of the government's position that the surveillance program is only effective if it is comprehensive?"
Mr. Coppolino.
Mr. Coppolino (by phone): Your honor, let me answer the last question first.
The Court: Okay.
Mr. Coppolino (by phone): We've not agreed with that proposition. And that was the proposition that was presented by Judge Leon in Klayman . That is that the mere -- a mere programmatic description as a broad program or as a bulk program is not sufficient to establish that a particular person has been subject to that program, in our view.
Let me make a couple of other points about that. One is that in the cases that you cited, first of all, they were all about the section 215 telephony meta data collection.
We're here talking about possible preservation on an entirely different program, section 702. But as to section -- and I don't think even if you felt -- and I'm not conceding this --
But even if you felt they had standing with respect to telephony meta data, for some reason, it would extend to section 702, and it should not.
They are trying to merge these programs as to one big thing. And it's not correct, factually. It's never been briefed. And that is what is not fair, particularly where in 702 we have a clearly established statutory framework of how that program is conducted. It is not 215. It is not bulk meta data collection.
It's a targeted communication surveillance program against non u.s. Persons located outside the united states. So whatever you may think about staying with respect to 215, it would not cover 702.
Another point I would make with respect to the 215 cases that you identified is -- and this is noteworthy -- in the Klayman case my recollection is that Judge Leon did not find standing for 702. In fact, he found that they had failed to allege sufficient facts to establish a claim that they had been collecting under 702.
And that's precisely the problem in this case. It's exactly the same thing. And so I would urge you to look at footnote six of Judge Leon's decision.
Even though we didn't do too well otherwise in that case, we won that one. And that case is on appeal, by the way, your honor, and the standing question is squarely at issue.
And the third point I would make -- and, again, I think this is a bit far afield from the 702 topic we wanted to talk about, but I would make this point. The plaintiffs in this case, their alleged -- their telecommunications company is at&t. And their allegations of surveillance all concern at&t.
None of these other cases, to my recollection, involved at&t plaintiffs. Now, the government has maintained a line in this case, as well as in those cases, that there has been no disclosure or confirmation of the specific carriers that have been involved in the section 215 program.
And, in fact, we've -- except for one -- except for a Verizon carrier for one FISC order issued it for one discrete period of time. And that's it.
And we set this forth, again, for this court in our most recent filing in which the DNI asserted the states secret privilege and explained to the court that notwithstanding all these terrible disclosures that occurred over the past year --
In fact, this is the one year anniversary -- disclosures that we are convinced that have seriously harmed the national security of this company, we have continued to protect the identity of particular telecommunication carriers that are alleged to have assisted the NSA, not only in the section 215 program, which was at issue in the cases you cited, but also in the president's surveillance program, activities which are at issue in Jewel and Shubert, as well.
So we have not conceded that standing could be found based on the mere existence of the bulk telephony meta data program, if that is your question.
So I think the preservation issue has to be examined separately. With respect to the PSP program we set forth in detail for you how we have preserved that program, those activities.
In the first unitarian case that they brought, which is a 215 case, we have gone through the preservation process in that matter with respect to section 215. And so this matter that has been raised this past week concerns section 702, different program, different issues and much, much more different complications involved in preservation.
Thank you, your honor.
The Court: All right, Ms. Cohn.
Mr. Maazel (by phone): Your honor, may Shubert plaintiffs be heard?
Of course. Of course. Anytime you want to speak, just please pipe up. I wasn't meaning to exclude you. Go head.
Mr. Maazel (by phone): Thank you, your honor.
The Court: Just restate your full name for me.
Mr. Maazel (by phone): Ilann Maazel, for the Shubert plaintiffs.
The Court: Okay. Go ahead.
Mr. Maazel (by phone): And just a couple of points, your honor. The first is that, you know, the Shubert case which was filed in 2006 was filed before there was a 702. And the Shubert case encompasses not just at&t but other phone companies, including Verizon. One of the plaintiffs, maybe two of the plaintiffs, were Verizon customers. Verizon was also the subject of that now confirmed FISC order concerning meta data.
So Mr. Coppolino's arguments that he just made, you know, do not apply -- certainly do not apply to the Shubert case.
From our perspective, the 702 issue is a bit of a feat of misdirection by the government because what your honor ordered is that the government may not destroy any potential evidence relevant to the claims.
And in Shubert and in Jewel some of the court claims include improper collection of content, mass collection of content. And they were not supposed to destroy any evidence relevant to that.
What we have learned in the last few days is that apparently they are keeping meta data, but they are destroying content. They are destroying content which is at the heart of much of the Jewel complaints and the Shubert complaint. So whether they call it 702 or some other number, the irrefutable fact is that there are claims challenged, among other things, the illegal collection of content. And they have now admitted that they are destroying the content.
And so they have violated the TRO. Whether they claim that it's 702 program or some other program. And that, I think, is the heart of what this hearing is about. That both individual preservation orders and the continuing obligation to preserve evidence, and now under your honor's TRO, they should have been maintaining all potential evidence relevant to our claim, which include the illegal collection of content.
Mr. Coppolino (by phone): Your honor, may I respond?
The Court: No, I want to give him a chance to finish and then I'm going to ask Ms. Cohn to respond to what you said.
And then, of course, Mr. Coppolino, I'll give you a chance to reply.
Mr. Coppolino (by phone): Okay.
The Court: Proceed, counsel.
Mr. Maazel (by phone): And so neither the Shubert or Jewel complaints, as far as I can tell, is a facial challenge to section 702. It's a challenge to this mass collection.
Among other things, it's a challenge to this mass collection of content, which among other things, the fourth amendment.
And so that's the evidence they should have preserved under the TRO. And that's the evidence they should have preserved before the TRO. And I believe that's why we are here.
The Court: All right. Ms. Cohn.
Ms. Cohn: Well --
The Court: How do you pronounce it? Is it Cohen (phonetic) or Cohn?
Ms. Cohn: I pronounce it like there's an e even though there's not. So it's Cohen (phonetic).
The Court: All right.
Ms. Cohn: But I'll answer to either.
The Court: Thank you.
Ms. Cohn: I mean, I think that Mr. Maazel has said correctly that, you know, these complaints are based upon the government's collection of content. The government doesn't want us to sue them over the mass collection of content. But that doesn't have anything to say to the scope of their preservation efforts.
And, you know, it's distressing to me that we're having this conversation in 2014. We should have had it in 2007, because we've been suing about the mass collection of content, frankly, since 2006 when we brought the first case in 2007, when we brought the first preservation order.
And the government has engaged in a series of unilateral reinterpretations of our case to limit its preservation efforts. And I think that that's -- that's just not right under the way the preservation is supposed to work?
And now here we are again.
We were here in march because it turned out that they decided that our complaints weren't about the mass collection of anything under the FISC orders, but only the mass collection of things under the president's authority. That's just not true.
And now we find that they've made another cut. And the cut is that, well, maybe we were suing them over the mass collection of telephone records, but we weren't suing them over the mass collection of content. And so, therefore, they don't have to preserve the content they are collecting up. It's just another attempt to try to reconstrue what we are suing over in order to limit their preservation duties.
We may have a fight with the government about the scope of our complaint. That's what I thought we were briefing. That's what we were briefing. You know, my brief was filed last friday. But what I thought was going to happen in the meantime is that the government would stop destroying evidence.
And so we're here because it turned out -- and I kind of discovered this by happenstance -- that the government didn't read your TRO as requiring a preservation of the status quo pending consideration of the content collection issues in Jewel once we'd settled the records issues.
And I just think it's only fair for them to have to stop preserving until we can sort out what's at issue in the case. And for them to -- for them to continue to destroy evidence in the meantime strikes me as tremendously unfair because, you know, maybe they will win, but, you know, maybe we will.
The Court: All right. Mr. Coppolino.
Mr. Coppolino (by phone): Thank you, your honor. I think we're going to have to respectfully disagree with who is engaged in a massive misdirection in this lawsuit, because in our view it is the plaintiffs that are trying to rewrite their complaint in order to bring in FISA-authorized activity that were never pled when all of their complaints -- and we've detailed this in the briefs that we've filed over the past months -- clearly challenge activity without statutory and judicial authorization.
I'm quite confident that that is the clear gravamen of the complaint. The Shubert complaint, in particular, is unambiguously a challenge to the president's surveillance program. And while Shubert may have filed before 702, they amended twice, and they never challenged 702, number one.
Number two, as far as this mass collection of content, they are setting that forth as if it's some established fact. And they are pinning it on 702. I think that the point that we have been making -- and you can see it now in our declassified declarations -- it that that's been a falsehood from the beginning.
The Court: Just one moment. I really don't want you to -- you can argue the arguments. I don't want you to characterize their arguments, and I certainly don't want you to accuse somebody of falsehood. We have excellent counsel in this case, and I just really don't want that. So please refrain from making those kinds of charges.
Mr. Coppolino (by phone): Let me just rephrase it.
The Court: Thank you.
Mr. Coppolino (by phone): That every DNI that has provided a states secrets declaration -- and a lot of those have now been declassified -- has been made clear -- in fact, they state on the public record state starting in 2006 and seven that the government has not engaged in a content dragnet.
And we have specifically identified and defined content. And we made clear that that allegation was not true.
And what we said in those privilege assertions is that to disapprove it you would need to know intelligent sources and methods as well as then-still classified activities.
Now, the one difference, though, with respect to content is that 702 is not a classified activity. The sources and methods are. But 702 was a publicly-acknowledged program.
Prior to that the terrorist surveillance program was a publicly-acknowledged program. President bush described it as linked to international communications involving Al Qaeda.
They never challenged 702, not tsp in Jewel or Shubert. They never challenged protect America act. They never challenged 702.
What they have claimed is that there is a mass communication dragnet, which the government has consistently denied from the beginning of these lawsuits.
Now, we're talking about 702 in this preservation dispute. It's a separate statutory program. Public has existed before Jewel and certainly while Shubert has been pending. That program has defined statutory terms. And if you would receive briefing on this and also briefing not only on how the program operates, but whether they have stated a claim and have standing under that program, you would not enter a preservation order that would require the NSA to effectively shut down its collection under that program.
This is not about the destruction of evidence that is relevant to this case. The information that NSA cycles off through its data deletion policy is done pursuant to orders of the FISC in a program that was never challenged and is not relevant in this lawsuit.
It is not about the destruction of evidence here.
What it is about is the potential destruction of NSA's ability to collect foreign intelligence on behalf of the united states.
If you were to keep this order in place -- and we set that forth for the court. And I have to urge the court that while all these arguments are interesting about the prior history of this lawsuit, the immediate question that we really need relief on is the sentence in your order which requires the NSA, the government, to save all -- any documents that may be relevant to the claims in this action, including section 702 materials.
That is a very serious operational problem for the NSA.
The Court: All right. Ms. Cohn, I want you to answer the following question, because I think Mr. Coppolino just put his -- mixed metaphors here -- put his finger on the elephant in the room. But which is in an unclassified sworn declaration, the government has asserted that if the court were, for whatever reason, even including if I accepted the plaintiffs' position here to issue -- maintain the order that I issued on an emergency basis, that it would do grave damage to our national security.
We're all citizens of this country. We all really want security. We also want our constitutional rights to be honored. But how can the court in the face of that -- and there's nothing in response, and I'm not criticizing the plaintiffs that, you know, it's hard for them to thwart it.
But it is in a nonclassified document.
How is the court to say: "well, yeah, they say that. But, you know, I'm just going to disregard that, and I'm going to, notwithstanding that, order them to preserve all these documents and shut down this program"?
Ms. Cohn: Yeah, your honor. We've been concerned.
I mean, honestly, it's a little frustrating that we're eight years later and they are finally surfacing a practicability problem that we should have been talking about a long time ago.
But to the extent that they have a practicability problem here -- and I'm not agreeing necessarily that they do.
And i'd certainly be willing to offer some technical assistance to the government to figure out how it is they could preserve relevant evidence, if they'd like to. I think there are people that would be willing to help them.
But let's assume for an instant that they are correct, that's why we keep talking about an adverse inference, your honor. There's a way. It's the government's position about what our burden is to demonstrate standing and maybe other things. But certainly standing that creates the need for us to have this information.
We've never thought that we needed to be able to point to Carolyn Jewel's communications inside their databases in order for her to be able to sue. There's all sorts of other evidence, including the FISC opinions and other things.
The step one, the massive content collection that happens first before step two, the minimization and targeting is not actually a very big secret. I don't think it's a secret at all at this point.
But if the court were to find, as we were talking earlier, that this evidence would demonstrate that our clients' communications -- and, you know, our clients are a class of at&t customers so there's a lot of people -- were included in the information that was collected initially and searched.
There are searches that happened initially, too, including about searching, searching about the target.
So if my client, Carolyn Jewel, who writes, you know, fantasy novels, if she writes a novel in which somebody mentions, you know, Osama Bin Laden, that would come up presumably in a search for a terrorist. So about comes up as well as other things in the searching.
If you were to make an adverse inference or a finding as a matter of law that our clients' information is included in these mass collections then we don't need them to preserve it anymore.
And we've offered this from the very beginning because we really don't want the needs of our case for our clients to be able to prove their case to get in the way of the government doing its job to protect us. But there ought to be a way to do both.
The Court: Well, I would suggest -- and I'll hear from Mr. Coppolino -- that we're talking about maybe two different things here. It's one thing to have an adverse inference with respect to the 215 program, and another thing to have an adverse inference with respect to the 702 program, because, number one, the court would have to first find that 702 was clearly implicated in the current lawsuits.
And, secondly, to find an adverse inference that the government either wrongly destroyed evidence or they have evidence within their possession which they could lawfully and properly come forth with, but they are not, and, therefore, just like with any evidence in any case would subject them to an adverse inference.
The answer may be slightly different with respect to 702 versus 215. Would you agree with that?
Ms. Cohn: Well, your honor, I think you can get there for both. I think with section 215, you know, we now know that there are some telephone records that they have destroyed. But so there is a question there about what to do in the context of this case and the first unitarian case with regard to the phone records.
But with regard to the content collection I think your honor can say to the extent that plaintiffs can establish that such a program exists, the narrower question about whether our clients' communications were included in this program is one that we get the benefit of the doubt in.
So we'd still have -- I mean, we still have the burden to demonstrate the mass collection. And it's true that the destruction of their records of the mass collection would be very -- you know, could be problematic for that -- in that regard.
But I think that the piece that's more important for us in the moment is that if we can demonstrate that that mass collection occurs, whether it's under 702 or any other program -- frankly, you know, we are talking about 702 because that's what the government has now just within the past year indicated that the upstream collection is something that they are doing under 702.
And we also didn't know it was called "upstream" when we started. We call it direct access to the fiber optic cables at at&t in accordance with the evidence that we have presented.
Now, we see documents that have come out, including FISC opinions, that appear to characterize that behavior and call it "upstream" and appear to indicate that the government's legal justification for upstream lies in section 702.
Those two things are, I think, true today. But I don't think that the fact that it's difficult to characterize what they are doing in a statutory basis should get in the way of us getting a ruling from this court about whether the mass collection of the communications content of millions of innocent Americans is constitutional or not.
The Court: All right. Mr. Coppolino.
Mr. Coppolino (by phone): Thank you, your honor.
I want to start my response to this recent discussion by saying that I really think it demonstrates that you should receive some further briefing before you issue a further TRO with respect to 702, the immediate issue before the court on a couple of points.
One is that I don't believe the court can grant adverse inferences with respect to standing or jurisdictional issues. I think there's law on that, and I think we ought to at least investigate it and brief just as a general matter.
Secondly, I think you identified the two issues directly with respect to adverse inference. And I don't think either of those would be satisfied. And I do think you have to view this by claim.
I don't concede that ab adverse inference would be appropriate under 215 or telephony meta data. For one thing, with respect to telephony meta data, under the president's surveillance program, we have preserved it, and we have detailed that to the court.
So there would be no basis for any adverse inferences with respect to the PSP whatsoever. And I don't believe there would be one with respect to 215, as well.
And as to 702, before you could get -- as you, I think, correctly pointed out, before you could get to the question of an adverse inference as to 702 on a content dragnet, you have to establish that you have standing and that you have stated a claim, and that any relevant evidence to that claim would have been destroyed.
And 702, as i've said before -- and I think you should perhaps receive some briefing on it. And we have a brief due on june 27th -- 702 is again directed at non u.s.
Persons reasonably believed to be located outside the united states. So these plaintiffs can't possibly be 702 targets.
What they are arguing is that they alleged -- they were incidentally collected, I think, as some part of a content dragnet. And they specifically talk about this upstream collection.
That really bears some investigation on your part, your honor, because upstream -- and we're happy to supply you with what you need -- upstream is a reference to a type of collection under 702 at which certain information was collected off of data links.
And Ms. Cohn's right. Judge john Bates issued several opinions in the FISC about that. And they are all declassified now. There was a compliance incident. And that incident concerned, in very simplistic terms, whether the NSA was overcollecting communications pursuant to its 702 authority.
In other words, it had specific targets and specific selectors that it was collecting on. But in the process for technical reasons it was collecting more communications of nontargets. And that was the compliance incident before Judge Bates. It was not a content dragnet. It was a problem with how 702 collected internet communications of foreign targets located outside the u.s.
What's interesting, too, about that is that Judge Bates never ultimately held that the acquisition violated the constitution. The problem in that case was the minimization procedures were not sufficient to protect the fourth amendment interests of the people of the united states.
And so he ordered that had they be changed, and they were changed. And he approved them. And in addition, in the process of not only approving the minimization procedures, NSA implemented new system architecture that did a better job at assuring that those communications were minimized and ultimately destroyed, which is the goal here. It's part of the statutory framework not to collect on u.s. Citizens. And when you've incidentally done it, destroy it.
Ironically, the preservation obligations that they are trying to impose would vacate Judge Bates' decision and require NSA to suspend that system architecture that we created at the cost of undoubtedly millions of dollars in order to preserve evidence with the likelihood that it would ever be relevant to this lawsuit would probably be zero, because they couldn't be targets. And they are only speculating as to whether they could have been incidentally collected. And they don't likely have standing anymore under Amnesty International, as we've argued to this court before.
The Court: Anything further you want to say?
Ms. Cohn: Well, your honor, I would just point out that the definition of "collected" the government has a pretty cramped definition of "collected."
Their definition of "collected" means "targeted," resulting from their targeted searches. And we know this. I mean, this was the subject of a lot of public discussion when this thing first came out because there was congressional testimony where the word "collection" was used.
And then, it turned out that the government collection meant much further along in the process, much more like our step two rather than step one.
And, again, I think that what is going on here, big picture, when they are characterizing section 702 is that they are saying it's a targeted program because they don't count anything that happens before they are targets.
And our conversation is kind of at cross purposes because our clients are ordinary people. They are millions of at&t customers. And the question is: Does the government get custody of their communications and search through them on the way to its targeted programs.
I think the answer is fairly clearly yes at this point. And you can read that into the way the FISC opinions are looking at things.
But I think Mr. Coppolino is trying to win his case here rather than talk about the scope of evidence preservation.
The scope of evidence preservation ought to be based upon our complaint and what we're suing over. We are clearly suing over the mass collection of content. That's what paragraphs 50 through 80 of the complaint talk about.
They are not tied to executive authority versus FISC.
It's not tied to 702 versus some other statute that the congress might pass in the future to let the government continue to do the same thing.
It's about the mass collection of content and whether that's constitutional or statutorily authorized by any statute.
I don't think 702 authorizes --
The Court: All right. Mr. Coppolino, any final words?
Mr. Coppolino (by phone): I think a few, your honor.
First, thank you for your patience and for this long hearing.
Secondly, I'm not trying to win my case on the merits. I'm trying to protect NSA's very significant national security interest in maintaining the integrity of the 702 program, which we don't believe is even at issue.
But even if you thought it was at issue -- and you don't have to decide that issue -- the steps that they have asked to take with respect to the preservation of data on 702 are not reasonable just as a preservation matter, because they are far too burdensome, far too impracticable. They risk compromising national security. And they should not be allowed to stand, even if you felt that in some way by some manner 702 was properly at issue in the lawsuit.
I don't know if I'm going to get another chance to speak, so I thought I would just say that in conclusion, your honor, that we have asked that you would stay or rescind yesterday's order for the reasons that we have -- you know, we identified in our papers today.
And what I would ask the court to do is if you are not ready to rule today on all of these issues in terms of extending the TRO to 702, that you at least stay yesterday's order.
If you are going to rule and rule against us and order the preservation of all data relevant to 702, as you did yesterday, we would ask that you administratively say that so we can consider our appellate options in the ninth circuit.
And if you decide later to issue such a ruling we would ask that you issue an administrative stay with that ruling so that we could seek our relief from the ninth circuit.
The Court: All right. Ms. Cohn, any parting words?
Ms. Cohn: No, your honor. Well, yes, of course, your honor, a couple of words. And I will try to keep it short.
The Court: My vacuum theory that nature and lawyers hate a vacuum when given a chance to --
Ms. Cohn: It's true. My cat hates the vacuum, too.
The Court: Okay.
Ms. Cohn: But I think that, you know, we felt we had an evidence preservation order in place in this case in 2007 that specifically required the government to preserve all evidence relevant to this case, relevant to our claims.
When we discovered in march that the government had massively and secretly reinterpreted that, we asked you for emergency relief, and you granted it.
I'm -- you know, it's kind of deja vu all over again for me to be standing up here again trying to argue that the government needs to preserve all evidence relevant to our claims.
They do. That's just a bedrock factor. I've tried to give your honor, and i've suggested the court a way around this problem for us. I think the adverse inference is the way to go. There may be some other way to go that will work on this. I don't want evidence preservation obligations to get in the way of the government's efforts to protect the national security.
But I also don't want the government's claims of its needs for national security to effectively let it checkmate our case by destroying the very evidence that they say --
The Court: All right.
Ms. Cohn: -- we need in order to --
The Court: All right. So the matter is submitted.
I would like to issue some -- a ruling one way or the other this evening -- today.
So I would like -- I am going take a break to consider counsel's arguments, review the briefs, and I'll be back. So stay around. All right? Thank you.
And, counsel, would it be possible for you to stay on the phone? It will be 15, 20 minutes.
Mr. Coppolino (by phone): Absolutely, your honor.
The Court: Thank you very much.
(thereupon, a recess was taken.) the Clerk: Remain seated. Come to order. Court is again in session.
The Court: All right. Mr. Coppolino and company, are you still on the phone?
Mr. Coppolino (by phone): We are, your honor.
The Court: All right. Very well.
So I'm going to issue -- given the late hour and the like, I'm going to issue my ruling from the bench.
Obviously, you can order a transcript of my ruling, and you'll have that memorialized.
So the ruling is as follows: With regard to the collection of communications pursuant to section 702, on this record the court simply does not have sufficient evidence and legal authority to rule conclusively at this time.
Accordingly, to the extent plaintiffs seek to enforce this court's earlier preservation orders to include data collected pursuant to section 702, that request is denied on this current record without prejudice.
In order to protect the government's important function to maintain our national security programs, as shown by the declaration of Richard A. Ledgett, l-e-d-g-e-t-t, director of national -- deputy director national security agency, the court cannot issue a ruling at this time requiring that the government defendants retain all data collected pursuant to section 702.
Accordingly, the government rescinds -- the court rescinds its order dated june 5th, 2014 as to the retention of the section 702 evidence, but maintains its ruling with regard to the preservation of all data relevant to plaintiffs' pending claims.
In order to provide the court with sufficient briefing on various open issues, both that were already open and ones that were raised by today's proceedings, the court hereby orders the parties to brief the following issues in their upcoming submissions due to the court.
Defendants have responsive briefs due june 27th and plaintiffs may file a response to that brief by no later than july 18, 2014.
And the issues are as follows. One: Whether plaintiffs' claims encompass section 702, and what is the scope of the collection activities under that provision?
The second issue: The appropriateness of an adverse inference or standing based upon the alleged destruction of documents collected pursuant to both sections 215 and 702.
So although I was speaking fast, but not as fast as counsel, I will urge you to order the transcript of these remarks.
So I'm not entertaining further argument, but is there anything further that the plaintiffs wish to state?
Ms. Cohn: Your honor, I would be remiss if I didn't remind you we had some other matters in the first unitarian case that we're waiting for a hearing date on.
The Court: You will get it.
Ms. Cohn: And the four questions in Jewel, as well.
The Court: Right.
Ms. Cohn: I think I understand. Should we set a hearing date --
The Court: No.
Ms. Cohn: -- on these matters?
The Court: I will set a hearing as appropriate.
Ms. Cohn: Okay.
The Court: All right. Mr. Coppolino, anything further from the government?
Mr. Coppolino (by phone): Nothing further, your honor. Thank you very much.
The Court: All right. Thank you very much. We're adjourned.
The Clerk: Calling case number C-08-4373, Carolyn Jewel, et al versus National Security Agency, et al and case number V-07-0693, Virginia Shubert, et al versus George W. Bush, et al.
Counsel, please state your appearances. Counsel in court, first.
Ms. Cohn: Good afternoon, your honor. Cindy Cohn, of the Electric Frontier Foundation on behalf of the Jewel plaintiffs.
The Court: Good afternoon.
The Clerk: And on the phone?
Mr. Coppolino (by phone): Good afternoon, your honor. This is Anthony Coppolino with the Department of Justice, Civil Division. And I'm joined in my office by a number of my colleagues: Marcia Berman, Bryan Dearinger, Rodney Patton, Julia Berman.
And we're on speakerphone, your honor, but we're the only people that are in the office here.
The Court: All right. And are you able to hear the court?
Mr. Coppolino (by phone): I am, your honor, very well. Thank you.
The Court: And were you able to hear Ms. Cohn?
Mr. Coppolino (by phone): Yes, I hear her very well, too.
The Court: Yes. And please --
Mr. Maazel (by phone): And, your honor, Ilann Maazel, Emery, Celli, Brinckerhoff & Abady, for the Shubert plaintiffs also on the phone.
The Court: All right. Welcome.
And it would be very helpful to the court reporter and court if when people on the phone speak, please identify yourself. And I just noted there were two Bermans. So if either of the Bermans speak, please mention your first name, as well, so we know which Berman is speaking.
All right. So I have reviewed both sides' briefing and the supporting declaration and exhibits. And I wanted to ask some questions to follow up on and what was posed. And as counsel on the phone and in court know well, this court does read the briefs and the cases, so I don't need counsel to merely reiterate what is in their briefs, unless it's to highlight a specific response to the court's question.
If I ask a question it means that I don't feel like the information has been provided to the court at this point.
So it's possible in the heat of battle I may have missed some of it, but that's why I want you to answer these questions.
So the first question -- and as I usually do, I'm going to begin the question with a preamble so you understand where the court is coming from, and then ask counsel questions.
You're always free once you answer the question to quarrel with the court's preamble. But please answer the question first, and then you can tell the court why its preamble was -- you disagree with it.
So question number: "with regard to the collection of communications pursuant to section 702, defendants have represented that the information is relevant, and plaintiffs have distinguished their section 215 challenges. In his declaration of December, 2013, asserting privilege, director of national intelligence, James r. Clapper, concedes that communications collected pursuant to FISC, F-I-S-C, orders under section 702, quote: 'may relate to or be necessary to adjudicate plaintiffs' allegations,'" unquote.
And that is the so-called "Clapper declaration," docket 22o at paragraph 61.
However, in their briefing on their status as aggrieved parties, plaintiffs distinguish their current broad untargeted telephony meta data claims from the Amnesty International versus Clapper plaintiffs' challenges to section 702, 702 specific and targeted surveillance program."And I'm citing here plaintiffs' response to the court's questions at 10 through 11.
So to the plaintiffs: On what basis do plaintiffs contend that the data collected pursuant to section 702 is, quote, "relevant," unquote, to their pending claims?
And, secondly: Where in the complaint do plaintiffs specifically seek redress for violations of their constitutional and statutory rights pursuant to the program effectuated under section 702?
Ms. Cohn: Thank you, your honor. I think that to answer your question the 702 program didn't exist as a 702 program when we filed the case.
What we had evidence of from the very beginning of this is that the NSA has access to communications as they flow over the fiber optic cables, and specifically the AT&T building on Folsom Street, but in AT&T facilities across the country.
So our complaint has always been based on what the government does. And as time has gone on, the government has now given a statutory label to what it is doing in terms of accessing information off the fiber optic cables.
And they say that it's now justified under section 702 of the FISA amendments act, which was passed in 2008.
The way that this program works is a two-step process. And a lot of confusion in these cases has to do with allying the differences between the two steps. The first step is that the government collect everything coming off of those cables. Collect it all is what it comes out in the most recent slides that have come out.
And then, the government takes a series of steps to reduce, to minimize what it has collected. And the minimization procedures that they include there are their efforts to try to limit the first step to a second step, which is I think what they are calling "targeted surveillance" because it's done pursuant to selectors.
Now, selectors aren't just people. There's some fights about what a selector is. But to keep the way that this works in mind, there's a two-step process. The first thing is they collect everything. And the second thing is they take a series of measures to limit what they retain to what I think they would deem targeted.
The fight in our case has been largely about step one: Whether there's a constitutional question at the time the government gains custody of everything in the first instance.
The government's argument is section 702 is about the second step, the targeting step. And that the first step just doesn't matter or doesn't count or shouldn't have any standing.
And so there's confusion in the way the conversation has happened, because we're talking about step one, and they are largely talking about step two.
And so when we talk about Clapper, the Clapper case, was a case in which the plaintiff said: "based on the government's statements about who is keeping information about it under step two, we think we're it."
The plaintiffs in the Clapper case was Amnesty International. It was people who are engaged in communications with people who they reasonably suspect the government might be surveilling.
So when we say that the Clapper case was about targeted surveillance it's because the plaintiffs were arguing that they were what was being kept in the second step of this surveillance. And we're arguing on behalf of the millions and millions of ordinary people whose information is captured and scanned as part of step one.
So the terminology has changed so much. So the government originally claimed that "collect" didn't mean step one. "collect" meant what they had after step two. Now they say it's a targeted program because what they keep is only the stuff that they keep, so that's targeted. So the whole program is a targeted program.
But that's not -- I don't think that's a fair characterization of how 702 is operating, frankly. They are collecting everybody's stuff first, and then sorting out second what they need. Both of those steps are constitutionally significant.
Did I explain that well?
The Court: Well, you explained it well, but I don't know if you are getting to the direct answer, which is where in the complaint do you allege violation of what you're calling step two, or the 702 program?
Ms. Cohn: Step one is what we are --
The Court: I thought you meant step one was the collection, the mass collection of meta data.
Ms. Cohn: No. The mass collection of everything, content and meta data.
The Court: All right.
Ms. Cohn: The fiber optic cables carry both content and meta data.
Okay. So that's step one.
Ms. Cohn: That's step one.
The Court: All right. Step two is the so called "targeted approach."
Ms. Cohn: Right.
The Court: Does your complaint or can you cite the court in your complaint to anywhere where step two is relevant to the plaintiffs' claims in this case?
Ms. Cohn: Well, plaintiffs have a difficult time understanding whether their information continues to be retained by the government after the government applies its minimization procedures because those procedures are secret.
So we've focused our case on step one, which is the initial collection.
The Court: Well, let me stop you right there. So let's assume that -- you know, I want to make sure that the government and the plaintiffs are talking about the same thing.
Or maybe there is -- I'll let you confer with your co-counsel there.
Ms. Cohn: I'm grabbing the complaint, your honor.
The Court: It's okay to do that. But if what you're saying is that the step one, you know, wholesale or large collection undifferentiated, if you will, is something -- is that something that you argue is done pursuant to section 215?
Ms. Cohn: No.
The Court: You're saying that that's done pursuant to 702.
Ms. Cohn: Correct.
The Court: Okay. So okay. Now, where in your complaint is it specifically alleged that 702 or actions under 702 by the government are violating the constitutional rights of the plaintiffs?
Ms. Cohn: Well, your honor, the complaint isn't based on section 702, because it wasn't until very recently that we learned that the government is doing this behavior under a claim of authority under section 702. What the complaint is about is about the behavior. The complaint is about the wholesale copying of the communications of at&t customers off of the fiber optic cables.
The Court: Which you contend is done both pursuant to 215 or 702 or just 702?
Ms. Cohn: No, your honor. Just 702. A dual complaint has two pieces. So if I -- it's a little confusing.
The Court: One is president bush -- so-called president bush authorized collections, and the second one is the so called "FISA authorized collection"?
Ms. Cohn: No, your honor. If I may.
The Court: Please.
Ms. Cohn: There are two factual pieces in our case.
One is the telephone records collection, and the second is the collection off of the fiber optic cables. So there are two distinct activities that it is government is doing.
Now, post-Snowden, the government has admitted that there are two different statutory bases upon which it's doing these two separate programs. It's collecting the phone records under section 215. It's collecting the internet content under 702.
But our complaint is based on these two behaviors.
The government's statutory or other arguments upon which it thinks it can do this behavior have shifted over time.
And so today it's under 702. For awhile they were using the pen register statute for pieces of this. So our complaint has never been tied to the government's defenses.
It's tied to the behaviors.
The Court: All right. Mr. Coppolino, are you going to respond initially on behalf of the government?
Mr. Coppolino (by phone): I am, your honor. Thank you, your honor. This is Anthony Coppolino.
And first, your honor, I appreciate you doing this by phone on short notice. And I wanted to thank you for that, your honor.
The Court: Unless there was any way that you guys could be beamed over here I assume that that would be necessary. And you don't need to thank the court, but go ahead.
Mr. Coppolino (by phone): Your honor, thank you.
So I hardly know where to begin. But I will start with this. First of all, the contention that 702 did not exist when the complaint was filed is a falsehood. 702 was enacted in 2008, in july of 2008, as part of the FISA act amendments of 2008.
Not only did it exist before this complaint was filed, the Jewel plaintiffs knew about it, because it's precisely why they filed suit. That legislation created immunity for the telecommunication companies. And the other lawsuit that EFF brought on behalf of these same plaintiffs called "Hepting" got dismissed because of that statute based on the immunity provisions, and Judge Walker dismissed the case.
That statute also had a title which created what we call the "FISA act amendments of 2008," which established section 702 of the FISA. So it's not true that it didn't exist before the lawsuit was filed.
And in Amnesty International the plaintiffs in that suit, the ACLU over in new york, knew quite well it existed.
They filed a complaint, I think, the day it was enacted into law. And that made a lot of headlines, and it was litigated.
And it was all, all public. No secret program. And it was out there.
So that statement is just not true.
The second thing that's not true is her program description. 702 is a public statutory program. If you look at the Amnesty International decision, it details how that program operates. And so that is the source of what should be the court's understanding for this program and how it operates.
Her description of step one and step two, I don't think i've ever heard this before. It's never been briefed as far as I can tell. And one of the problems that we're having here is we're here before the court on an emergency TRO, and we're talking for the first time about section 702.
It's not in the complaint. It's never been briefed.
This court has never been given an opportunity to understand the ins and outs of how it works and whether there's a step one or two or not.
In fact, the supreme court delineated precisely how the program operates. And it is a targeted program. It is a program that is targeted at specific selectors, that is phone numbers or email accounts. That's the first thing that distinguishes it from the allegations in this case.
The second thing that distinguishes it. I think most importantly, is that it is directed at non u.s. Persons located -- reasonably believed to be located outside the united states.
The plaintiffs couldn't possibly be targeted under this program. At least not legally. And they don't allege that they were targeted under this program. And so they couldn't be the target of a surveillance under this program as a matter of law.
So the only possible argument they could possibly make here is that their communications were somehow incidentally, unlawfully collected. That is pure rank speculation.
In fact, one of the reasons I think we should continue to brief this on the schedule that you have already set forth is I question whether they have even articulated standing for bringing a section 702 claim. Amnesty International disposes of that. Amnesty International says you cannot come to court and speculate that you might be subject to this surveillance authority and have standing. And they disposed of that argument, and that is exactly what the plaintiffs are doing based on their own speculation as to how it works, step one and step two.
So for purposes of today's hearing, to kind of bring this back, we disagree with their assessment of how this thing works. But you shouldn't be entering a TRO causing the preservation of data that is collected under this hugely significant program without fully understanding how the program operates and without its relevance to the suit.
Now, the fact that they didn't plead it to us should be dispositive. It was a known program. The plaintiff in Amnesty pled it. They could have pled it. And they could have made whatever arguments they want.
In fact, I'll point out there was a predecessor statute called the "Protect America Act," which was implemented in the transition between the so-called "Terrorist Surveillance Program" and the FISA act amendments.
And another lawyer in this multiple district litigation in the center for constitutional rights case, came into court and asked to amend his complaint to challenge that statute. Ms. Cohn was in the courtroom that day. I have the transcript. They didn't challenge the PAA, either. And that was a public statute as was FAA.
So it is -- this program is, in our view, not relevant to this lawsuit. But on the topic that is at issue here, even if you think it was, for the reasons we set forth the court should not issue the kind of preservation order that they sought. And, indeed, we identified the problems with the order that you issued yesterday. And we can talk about that further.
I do want to take issue before I give up the microphone here, your honor, with some of your preamble, and just point out that we have not conceded that section 702 is relevant to the claims. What we have said is that in order to litigate the claims and in order, indeed, to dispute the claims the government -- the sources and methods utilized under 702 would be at risk of disclosure and, hence, they were subject to the states secrets privilege, director Clapper's states secrets privilege.
It was not a concession that they challenged 702. It was not a concession that 702 is relevant to the claim. It simply points out that in order to litigate the case and disprove the claims and, indeed, to show that their claim that these activities were occurring without statutory and judicial authority we would have to get into the sources and methods that were, in fact, being utilized under statutory law.
The Court: All right, Ms. Cohn.
Ms. Cohn: Yes, your honor. I did get a chance to look through the complaint, your honor. From paragraphs 50 to paragraphs 80 of the Jewel complaint we describe the NSA's dragnet interception of communications transmitted through at&t facilities. That's the factual predicate for one half of the Jewel case. The other part being the telephone records.
And so the Jewel complaint didn't -- again, the government's legal rationales have shifted. Now he's told you he's not even conceding that 702 is what is at issue in this case.
The Court: What about the argument the government just made that all of this, this program, by its existing name and predecessor names was well-known to the plaintiffs in this case?
Ms. Cohn: No, your honor. I think that's just factually incorrect. The government has revealed aspects of its surveillance in a very limited and cabined way over time.
They started by, you know, president bush said: "if you are talking to members of al qaeda, we want to be listening."
And so the presumption there and defense there was that this was just about targeted surveillance to specific terrorists targets.
We then learned it was a much bigger program and that it actually collected the information of millions and millions of people on the way to that little bit that they -- this process of revelation has gone on over time.
At the time that the FISA amendments acts was passed the government claimed that 702 only represented a very targeted program and that it wouldn't involve the collection of millions of innocent Americans' communications content.
They basically said that's not what it was. That it was a targeted program, "targeted" meaning if you are talking to somebody who is on their selector list, one way or another, that's what they are collecting.
And we have always maintained that that's a incomplete description of what the government's doing, and it allies some very important constitutional questions. So we have always grounded our lawsuit not on the government's legal defenses. And is this under 702? Was it under 215? Is it under the pen register statute? Is it under the government's executive authority?
Those are all the government's defenses for its activities.
Our complaint talks about a particular behavior by the government. The access under paragraphs 50 through 80 are the initial description of a massive collection of communications, and the very specific technologies involved, which are described in the declaration of Mark Klein, the expert declaration of J. Scott Marcus.
And our case says this thing that they are doing is unconstitutional, and it isn't justified by any statute. And that's what we've been alleging all along. And for the government to try to limit the scope of our case based upon the fact that we weren't quite aware of what particular statutory bases they were claiming at any particular point in time for this behavior is, I think, frankly, quite unfair to us given the secrecy here.
The Court: A couple of related questions, which is -- and then I'll give Mr. Coppolino a chance to respond. I reviewed the transcript of our previous proceedings and also the order that the plaintiffs presented, which would have been much broader -- it was much broader than what the government --
What the court ultimately entered.
And there was a colloquy with the court in which it appeared to the court that the plaintiffs were foreswearing or eschewing an argument under -- if not 702, specifically, then behavior that is described.
Am I correct in that assumption?
Ms. Cohn: Yes, your honor. I'm afraid you are. If I gave you that impression, then I was -- that was incorrect.
The Court: Well, the first one is in there. The second one may be interpretative. The first one is u.s. Or broader order that might have included what you're talking about now. And I felt that that was too broad, and I did not issue the order to that effect.
So what do you say about that?
Ms. Cohn: Well, to the extent that you scaled back our proposed order, your honor, I don't think that you scaled it back in order to exclude one half of the factual allegations in our complaint from being required to be preserved.
I mean, it's true that we came to your honor with an immediate problem. And the immediate problem had to do with the fact that the government had been told by the FISC that they had to destroy telephone records.
And it wasn't until the monday before we talked to you on the wednesday that I realized that based upon the government's rationale it didn't seem that they were preserving evidence under the section 702 programs, either, because it was on that monday that they finally presented their secret declarations from 2007 where they took the position, unbeknownst to us, that the FISC orders, anything that happened after the FISC orders came into place wasn't included at all in their preservation obligation.
The Court: All right.
Ms. Cohn: And so I didn't read, and I don't read, what happened in terms of you not accepting my proposed order as saying the government can continue destroy evidence under part of -- now that we know that they don't think they have a preservation duty under section 702, it's okay for them to continue to destroy evidence while we sort out what happened for the last seven years.
The Court: All right. Mr. Coppolino.
Mr. Coppolino (by phone): Thank you, your honor. A couple of points here. First of all, the transition from the terrorist surveillance program to the protect America act in section 702 is detailed in our papers. And the notion that the lawsuit has to be -- and preservation obligations have to be driven by general allegations of conduct is not correct.
I think the court has to find specifically, and should find, particularly in a case of an injunction, that the requested preservation steps are relevant to particular claims.
And all that we have pointed out in these last two days to you is that the steps that they are asking us to take with respect to 702, are, a: Unmoored from any claim regarding 702, which is extraordinarily significant. It was an established program. And, b: With respect to the data deletion policies of the NSA that are governed by FISC requirements and minimization procedures, that that would cause extraordinary harm to national security if we were to go forward with that.
Now, with respect to the tro, we set forth in the papers that we filed a short time ago the evolution of the TRO in first unitarian and how it covered section 215. And you correctly note that you specifically rejected a proposed order they submitted that called for the preservation of all communication content. And that would have been their hook to try to get to 702. That's set forth in our papers. I'm not going to repeat it.
But except to just say this: The tro, the existing tro, does not cover 702. So this isn't a request to modify anything. This is a renewed TRO request based on a claim that hasn't been brought.
What I would urge the court to do is, first of all, to stay or set aside the order you issued yesterday. Take further briefing on this issue under the current briefing schedule which was in place. And, in particular, I think we need to have briefing on whether they have stated a claim under section 702, and whether they have established their standing on the pleadings under 702.
And the reason I say that is I litigated Amnesty International in district court, me and one of my colleagues in new york. And so I'm very familiar with that case. And I think it's very important that the court have a full understanding of 702, have full briefing on that question, including the question of whether they have stated a claim and have standing, before you issue a preservation order under that program.
Particularly what they have asked for in these past few days, which is all documents, all material related to 702, which clearly would include the data that is collected under that program, which is subject to FISC minimization requirements.
And as the deputy director of NSA explained attempting to carry that out in the immediate future and even long-term will cause very significant operational problems.
The Court: All right. I want to move on. I will give you an opportunity to additional points at the end, but I want to make sure I get through my questions in a complete way.
And so I'm not cutting either side off with respect to any issue, but I do want to get through my initial questions that I prepared based upon the filings.
So question number two -- and, again, I'll start with a preamble, and then I'm going to address the question in the first instance to plaintiffs.
"The cases reviewing the merits of the constitutional challenges to the dragnet surveillance program have all found standing as a matter of law."
And for that i'd like you to see Klayman, k-l-a-y-m-a-n, v. Clapper, 957 f. Supp. 2d 1, 26 through 28, decided by the District of Columbia court, federal court in 2013. Smith v. Obama, number 13-o257. The slip opinion at three note two. District of Idaho, decided june 3rd, 2014.
ACLU versus Clapper, 959 f. Supp. 2d 724 at 746, decided in the Southern District of New York in 2013, which states, quote: "aggregated telephony meta data is relevant because it allows the querying technique to be comprehensive. Armed with all the meta data NSA can draw connections it might otherwise never be able to find," unquote.
So the question is this: "if this court similarly finds standing as a matter of law to pursue the merits of their claims, would plaintiffs still seek the continued preservation of the evidence sought by the court's existing preservation and restraining orders?"
Ms. Cohn: So, your honor, those orders had to do just with the telephony meta data. They didn't have to do with the content collection.
But I think the answer to your question is: Yes, if the court were to find as a matter of law that the mass collection of contents, just like the mass collection of meta data, by definition had to include our clients, because that's what "mass" means, then, yes, your honor, I think that would get us out of this problem. That is, essentially the adverse inference that I asked you to provide.
My hesitation is that I think that standing is the only issue to which that fact will have to go. I'm a little hesitant given how litigation goes to say that standing is the only issue that those facts might go to. But it's the one that is obviously most foremost in our minds at the moment.
The Court: Well, the reason I ask the question is obviously, that to the extent that the answer were in the affirmative in the sense that the need for preservation order would go away if the court were to find -- at least for purposes of the next stages of litigation -- the court were to find the existence of standing, that would remove a big -- not a "big," but at least a piece of this litigation that's currently before the court. So that's number one.
And related to that is if the remedy that the plaintiffs are seeking is an adverse inference, the court would obviously ask the question: "well, if I give you that, if I give the plaintiffs that adverse inference, where does that leave us?"
And if the answer is: Then, you no longer need to be concerned with the destruction of documents, then a fortiori, if I conclusively found that there was standing based upon the factors that were relied on by these other district courts, I would assume the answer would be the same.
So why litigate a point that is really not in -- is not contested here is really the point.
Ms. Cohn: I agree, your honor. I mean, this is why we came up with this idea of an adverse inference. Again, I would like to tie it to the facts rather than the standing legal question just because I'm nervous about -- life is long.
I'm nervous that they may try to argue the fact that we can't demonstrate that our clients' communications were included in this goes to some other fact after we're done with standing, but --
The Court: That's going to be my next question.
Ms. Cohn: -- I think that if you were to provide the adverse inference that we're talking about, then we don't need them to keep the information.
We've said this from the beginning, your honor. It's a somewhat awkward position for us to be standing here trying to argue the government has to keep information we didn't think they should collect in the first place.
So if we can make this process move forward in a way that reduces the amount of information that the government has to keep without harming my clients' ability to make their case, then that's the best world. And that's the world we would like to get to.
The Court: All right. Let me -- Mr. Coppolino, I'm going to give you a full opportunity to respond to the same question. But I would like to add a question to you that might illuminate the information that I'm seeking.
And, of course, i'd like responses to both. And I'm sure you can keep track of all of it.
So the question I want to ask of the government in addition to responding to the response that Ms. Cohn just provided is as follows: "do the government defendants maintain that plaintiffs must show individualized standing that their specific communications have been collected, or have plaintiffs demonstrated standing by virtue of the government's position that the surveillance program is only effective if it is comprehensive?"
Mr. Coppolino.
Mr. Coppolino (by phone): Your honor, let me answer the last question first.
The Court: Okay.
Mr. Coppolino (by phone): We've not agreed with that proposition. And that was the proposition that was presented by Judge Leon in Klayman . That is that the mere -- a mere programmatic description as a broad program or as a bulk program is not sufficient to establish that a particular person has been subject to that program, in our view.
Let me make a couple of other points about that. One is that in the cases that you cited, first of all, they were all about the section 215 telephony meta data collection.
We're here talking about possible preservation on an entirely different program, section 702. But as to section -- and I don't think even if you felt -- and I'm not conceding this --
But even if you felt they had standing with respect to telephony meta data, for some reason, it would extend to section 702, and it should not.
They are trying to merge these programs as to one big thing. And it's not correct, factually. It's never been briefed. And that is what is not fair, particularly where in 702 we have a clearly established statutory framework of how that program is conducted. It is not 215. It is not bulk meta data collection.
It's a targeted communication surveillance program against non u.s. Persons located outside the united states. So whatever you may think about staying with respect to 215, it would not cover 702.
Another point I would make with respect to the 215 cases that you identified is -- and this is noteworthy -- in the Klayman case my recollection is that Judge Leon did not find standing for 702. In fact, he found that they had failed to allege sufficient facts to establish a claim that they had been collecting under 702.
And that's precisely the problem in this case. It's exactly the same thing. And so I would urge you to look at footnote six of Judge Leon's decision.
Even though we didn't do too well otherwise in that case, we won that one. And that case is on appeal, by the way, your honor, and the standing question is squarely at issue.
And the third point I would make -- and, again, I think this is a bit far afield from the 702 topic we wanted to talk about, but I would make this point. The plaintiffs in this case, their alleged -- their telecommunications company is at&t. And their allegations of surveillance all concern at&t.
None of these other cases, to my recollection, involved at&t plaintiffs. Now, the government has maintained a line in this case, as well as in those cases, that there has been no disclosure or confirmation of the specific carriers that have been involved in the section 215 program.
And, in fact, we've -- except for one -- except for a Verizon carrier for one FISC order issued it for one discrete period of time. And that's it.
And we set this forth, again, for this court in our most recent filing in which the DNI asserted the states secret privilege and explained to the court that notwithstanding all these terrible disclosures that occurred over the past year --
In fact, this is the one year anniversary -- disclosures that we are convinced that have seriously harmed the national security of this company, we have continued to protect the identity of particular telecommunication carriers that are alleged to have assisted the NSA, not only in the section 215 program, which was at issue in the cases you cited, but also in the president's surveillance program, activities which are at issue in Jewel and Shubert, as well.
So we have not conceded that standing could be found based on the mere existence of the bulk telephony meta data program, if that is your question.
So I think the preservation issue has to be examined separately. With respect to the PSP program we set forth in detail for you how we have preserved that program, those activities.
In the first unitarian case that they brought, which is a 215 case, we have gone through the preservation process in that matter with respect to section 215. And so this matter that has been raised this past week concerns section 702, different program, different issues and much, much more different complications involved in preservation.
Thank you, your honor.
The Court: All right, Ms. Cohn.
Mr. Maazel (by phone): Your honor, may Shubert plaintiffs be heard?
Of course. Of course. Anytime you want to speak, just please pipe up. I wasn't meaning to exclude you. Go head.
Mr. Maazel (by phone): Thank you, your honor.
The Court: Just restate your full name for me.
Mr. Maazel (by phone): Ilann Maazel, for the Shubert plaintiffs.
The Court: Okay. Go ahead.
Mr. Maazel (by phone): And just a couple of points, your honor. The first is that, you know, the Shubert case which was filed in 2006 was filed before there was a 702. And the Shubert case encompasses not just at&t but other phone companies, including Verizon. One of the plaintiffs, maybe two of the plaintiffs, were Verizon customers. Verizon was also the subject of that now confirmed FISC order concerning meta data.
So Mr. Coppolino's arguments that he just made, you know, do not apply -- certainly do not apply to the Shubert case.
From our perspective, the 702 issue is a bit of a feat of misdirection by the government because what your honor ordered is that the government may not destroy any potential evidence relevant to the claims.
And in Shubert and in Jewel some of the court claims include improper collection of content, mass collection of content. And they were not supposed to destroy any evidence relevant to that.
What we have learned in the last few days is that apparently they are keeping meta data, but they are destroying content. They are destroying content which is at the heart of much of the Jewel complaints and the Shubert complaint. So whether they call it 702 or some other number, the irrefutable fact is that there are claims challenged, among other things, the illegal collection of content. And they have now admitted that they are destroying the content.
And so they have violated the TRO. Whether they claim that it's 702 program or some other program. And that, I think, is the heart of what this hearing is about. That both individual preservation orders and the continuing obligation to preserve evidence, and now under your honor's TRO, they should have been maintaining all potential evidence relevant to our claim, which include the illegal collection of content.
Mr. Coppolino (by phone): Your honor, may I respond?
The Court: No, I want to give him a chance to finish and then I'm going to ask Ms. Cohn to respond to what you said.
And then, of course, Mr. Coppolino, I'll give you a chance to reply.
Mr. Coppolino (by phone): Okay.
The Court: Proceed, counsel.
Mr. Maazel (by phone): And so neither the Shubert or Jewel complaints, as far as I can tell, is a facial challenge to section 702. It's a challenge to this mass collection.
Among other things, it's a challenge to this mass collection of content, which among other things, the fourth amendment.
And so that's the evidence they should have preserved under the TRO. And that's the evidence they should have preserved before the TRO. And I believe that's why we are here.
The Court: All right. Ms. Cohn.
Ms. Cohn: Well --
The Court: How do you pronounce it? Is it Cohen (phonetic) or Cohn?
Ms. Cohn: I pronounce it like there's an e even though there's not. So it's Cohen (phonetic).
The Court: All right.
Ms. Cohn: But I'll answer to either.
The Court: Thank you.
Ms. Cohn: I mean, I think that Mr. Maazel has said correctly that, you know, these complaints are based upon the government's collection of content. The government doesn't want us to sue them over the mass collection of content. But that doesn't have anything to say to the scope of their preservation efforts.
And, you know, it's distressing to me that we're having this conversation in 2014. We should have had it in 2007, because we've been suing about the mass collection of content, frankly, since 2006 when we brought the first case in 2007, when we brought the first preservation order.
And the government has engaged in a series of unilateral reinterpretations of our case to limit its preservation efforts. And I think that that's -- that's just not right under the way the preservation is supposed to work?
And now here we are again.
We were here in march because it turned out that they decided that our complaints weren't about the mass collection of anything under the FISC orders, but only the mass collection of things under the president's authority. That's just not true.
And now we find that they've made another cut. And the cut is that, well, maybe we were suing them over the mass collection of telephone records, but we weren't suing them over the mass collection of content. And so, therefore, they don't have to preserve the content they are collecting up. It's just another attempt to try to reconstrue what we are suing over in order to limit their preservation duties.
We may have a fight with the government about the scope of our complaint. That's what I thought we were briefing. That's what we were briefing. You know, my brief was filed last friday. But what I thought was going to happen in the meantime is that the government would stop destroying evidence.
And so we're here because it turned out -- and I kind of discovered this by happenstance -- that the government didn't read your TRO as requiring a preservation of the status quo pending consideration of the content collection issues in Jewel once we'd settled the records issues.
And I just think it's only fair for them to have to stop preserving until we can sort out what's at issue in the case. And for them to -- for them to continue to destroy evidence in the meantime strikes me as tremendously unfair because, you know, maybe they will win, but, you know, maybe we will.
The Court: All right. Mr. Coppolino.
Mr. Coppolino (by phone): Thank you, your honor. I think we're going to have to respectfully disagree with who is engaged in a massive misdirection in this lawsuit, because in our view it is the plaintiffs that are trying to rewrite their complaint in order to bring in FISA-authorized activity that were never pled when all of their complaints -- and we've detailed this in the briefs that we've filed over the past months -- clearly challenge activity without statutory and judicial authorization.
I'm quite confident that that is the clear gravamen of the complaint. The Shubert complaint, in particular, is unambiguously a challenge to the president's surveillance program. And while Shubert may have filed before 702, they amended twice, and they never challenged 702, number one.
Number two, as far as this mass collection of content, they are setting that forth as if it's some established fact. And they are pinning it on 702. I think that the point that we have been making -- and you can see it now in our declassified declarations -- it that that's been a falsehood from the beginning.
The Court: Just one moment. I really don't want you to -- you can argue the arguments. I don't want you to characterize their arguments, and I certainly don't want you to accuse somebody of falsehood. We have excellent counsel in this case, and I just really don't want that. So please refrain from making those kinds of charges.
Mr. Coppolino (by phone): Let me just rephrase it.
The Court: Thank you.
Mr. Coppolino (by phone): That every DNI that has provided a states secrets declaration -- and a lot of those have now been declassified -- has been made clear -- in fact, they state on the public record state starting in 2006 and seven that the government has not engaged in a content dragnet.
And we have specifically identified and defined content. And we made clear that that allegation was not true.
And what we said in those privilege assertions is that to disapprove it you would need to know intelligent sources and methods as well as then-still classified activities.
Now, the one difference, though, with respect to content is that 702 is not a classified activity. The sources and methods are. But 702 was a publicly-acknowledged program.
Prior to that the terrorist surveillance program was a publicly-acknowledged program. President bush described it as linked to international communications involving Al Qaeda.
They never challenged 702, not tsp in Jewel or Shubert. They never challenged protect America act. They never challenged 702.
What they have claimed is that there is a mass communication dragnet, which the government has consistently denied from the beginning of these lawsuits.
Now, we're talking about 702 in this preservation dispute. It's a separate statutory program. Public has existed before Jewel and certainly while Shubert has been pending. That program has defined statutory terms. And if you would receive briefing on this and also briefing not only on how the program operates, but whether they have stated a claim and have standing under that program, you would not enter a preservation order that would require the NSA to effectively shut down its collection under that program.
This is not about the destruction of evidence that is relevant to this case. The information that NSA cycles off through its data deletion policy is done pursuant to orders of the FISC in a program that was never challenged and is not relevant in this lawsuit.
It is not about the destruction of evidence here.
What it is about is the potential destruction of NSA's ability to collect foreign intelligence on behalf of the united states.
If you were to keep this order in place -- and we set that forth for the court. And I have to urge the court that while all these arguments are interesting about the prior history of this lawsuit, the immediate question that we really need relief on is the sentence in your order which requires the NSA, the government, to save all -- any documents that may be relevant to the claims in this action, including section 702 materials.
That is a very serious operational problem for the NSA.
The Court: All right. Ms. Cohn, I want you to answer the following question, because I think Mr. Coppolino just put his -- mixed metaphors here -- put his finger on the elephant in the room. But which is in an unclassified sworn declaration, the government has asserted that if the court were, for whatever reason, even including if I accepted the plaintiffs' position here to issue -- maintain the order that I issued on an emergency basis, that it would do grave damage to our national security.
We're all citizens of this country. We all really want security. We also want our constitutional rights to be honored. But how can the court in the face of that -- and there's nothing in response, and I'm not criticizing the plaintiffs that, you know, it's hard for them to thwart it.
But it is in a nonclassified document.
How is the court to say: "well, yeah, they say that. But, you know, I'm just going to disregard that, and I'm going to, notwithstanding that, order them to preserve all these documents and shut down this program"?
Ms. Cohn: Yeah, your honor. We've been concerned.
I mean, honestly, it's a little frustrating that we're eight years later and they are finally surfacing a practicability problem that we should have been talking about a long time ago.
But to the extent that they have a practicability problem here -- and I'm not agreeing necessarily that they do.
And i'd certainly be willing to offer some technical assistance to the government to figure out how it is they could preserve relevant evidence, if they'd like to. I think there are people that would be willing to help them.
But let's assume for an instant that they are correct, that's why we keep talking about an adverse inference, your honor. There's a way. It's the government's position about what our burden is to demonstrate standing and maybe other things. But certainly standing that creates the need for us to have this information.
We've never thought that we needed to be able to point to Carolyn Jewel's communications inside their databases in order for her to be able to sue. There's all sorts of other evidence, including the FISC opinions and other things.
The step one, the massive content collection that happens first before step two, the minimization and targeting is not actually a very big secret. I don't think it's a secret at all at this point.
But if the court were to find, as we were talking earlier, that this evidence would demonstrate that our clients' communications -- and, you know, our clients are a class of at&t customers so there's a lot of people -- were included in the information that was collected initially and searched.
There are searches that happened initially, too, including about searching, searching about the target.
So if my client, Carolyn Jewel, who writes, you know, fantasy novels, if she writes a novel in which somebody mentions, you know, Osama Bin Laden, that would come up presumably in a search for a terrorist. So about comes up as well as other things in the searching.
If you were to make an adverse inference or a finding as a matter of law that our clients' information is included in these mass collections then we don't need them to preserve it anymore.
And we've offered this from the very beginning because we really don't want the needs of our case for our clients to be able to prove their case to get in the way of the government doing its job to protect us. But there ought to be a way to do both.
The Court: Well, I would suggest -- and I'll hear from Mr. Coppolino -- that we're talking about maybe two different things here. It's one thing to have an adverse inference with respect to the 215 program, and another thing to have an adverse inference with respect to the 702 program, because, number one, the court would have to first find that 702 was clearly implicated in the current lawsuits.
And, secondly, to find an adverse inference that the government either wrongly destroyed evidence or they have evidence within their possession which they could lawfully and properly come forth with, but they are not, and, therefore, just like with any evidence in any case would subject them to an adverse inference.
The answer may be slightly different with respect to 702 versus 215. Would you agree with that?
Ms. Cohn: Well, your honor, I think you can get there for both. I think with section 215, you know, we now know that there are some telephone records that they have destroyed. But so there is a question there about what to do in the context of this case and the first unitarian case with regard to the phone records.
But with regard to the content collection I think your honor can say to the extent that plaintiffs can establish that such a program exists, the narrower question about whether our clients' communications were included in this program is one that we get the benefit of the doubt in.
So we'd still have -- I mean, we still have the burden to demonstrate the mass collection. And it's true that the destruction of their records of the mass collection would be very -- you know, could be problematic for that -- in that regard.
But I think that the piece that's more important for us in the moment is that if we can demonstrate that that mass collection occurs, whether it's under 702 or any other program -- frankly, you know, we are talking about 702 because that's what the government has now just within the past year indicated that the upstream collection is something that they are doing under 702.
And we also didn't know it was called "upstream" when we started. We call it direct access to the fiber optic cables at at&t in accordance with the evidence that we have presented.
Now, we see documents that have come out, including FISC opinions, that appear to characterize that behavior and call it "upstream" and appear to indicate that the government's legal justification for upstream lies in section 702.
Those two things are, I think, true today. But I don't think that the fact that it's difficult to characterize what they are doing in a statutory basis should get in the way of us getting a ruling from this court about whether the mass collection of the communications content of millions of innocent Americans is constitutional or not.
The Court: All right. Mr. Coppolino.
Mr. Coppolino (by phone): Thank you, your honor.
I want to start my response to this recent discussion by saying that I really think it demonstrates that you should receive some further briefing before you issue a further TRO with respect to 702, the immediate issue before the court on a couple of points.
One is that I don't believe the court can grant adverse inferences with respect to standing or jurisdictional issues. I think there's law on that, and I think we ought to at least investigate it and brief just as a general matter.
Secondly, I think you identified the two issues directly with respect to adverse inference. And I don't think either of those would be satisfied. And I do think you have to view this by claim.
I don't concede that ab adverse inference would be appropriate under 215 or telephony meta data. For one thing, with respect to telephony meta data, under the president's surveillance program, we have preserved it, and we have detailed that to the court.
So there would be no basis for any adverse inferences with respect to the PSP whatsoever. And I don't believe there would be one with respect to 215, as well.
And as to 702, before you could get -- as you, I think, correctly pointed out, before you could get to the question of an adverse inference as to 702 on a content dragnet, you have to establish that you have standing and that you have stated a claim, and that any relevant evidence to that claim would have been destroyed.
And 702, as i've said before -- and I think you should perhaps receive some briefing on it. And we have a brief due on june 27th -- 702 is again directed at non u.s.
Persons reasonably believed to be located outside the united states. So these plaintiffs can't possibly be 702 targets.
What they are arguing is that they alleged -- they were incidentally collected, I think, as some part of a content dragnet. And they specifically talk about this upstream collection.
That really bears some investigation on your part, your honor, because upstream -- and we're happy to supply you with what you need -- upstream is a reference to a type of collection under 702 at which certain information was collected off of data links.
And Ms. Cohn's right. Judge john Bates issued several opinions in the FISC about that. And they are all declassified now. There was a compliance incident. And that incident concerned, in very simplistic terms, whether the NSA was overcollecting communications pursuant to its 702 authority.
In other words, it had specific targets and specific selectors that it was collecting on. But in the process for technical reasons it was collecting more communications of nontargets. And that was the compliance incident before Judge Bates. It was not a content dragnet. It was a problem with how 702 collected internet communications of foreign targets located outside the u.s.
What's interesting, too, about that is that Judge Bates never ultimately held that the acquisition violated the constitution. The problem in that case was the minimization procedures were not sufficient to protect the fourth amendment interests of the people of the united states.
And so he ordered that had they be changed, and they were changed. And he approved them. And in addition, in the process of not only approving the minimization procedures, NSA implemented new system architecture that did a better job at assuring that those communications were minimized and ultimately destroyed, which is the goal here. It's part of the statutory framework not to collect on u.s. Citizens. And when you've incidentally done it, destroy it.
Ironically, the preservation obligations that they are trying to impose would vacate Judge Bates' decision and require NSA to suspend that system architecture that we created at the cost of undoubtedly millions of dollars in order to preserve evidence with the likelihood that it would ever be relevant to this lawsuit would probably be zero, because they couldn't be targets. And they are only speculating as to whether they could have been incidentally collected. And they don't likely have standing anymore under Amnesty International, as we've argued to this court before.
The Court: Anything further you want to say?
Ms. Cohn: Well, your honor, I would just point out that the definition of "collected" the government has a pretty cramped definition of "collected."
Their definition of "collected" means "targeted," resulting from their targeted searches. And we know this. I mean, this was the subject of a lot of public discussion when this thing first came out because there was congressional testimony where the word "collection" was used.
And then, it turned out that the government collection meant much further along in the process, much more like our step two rather than step one.
And, again, I think that what is going on here, big picture, when they are characterizing section 702 is that they are saying it's a targeted program because they don't count anything that happens before they are targets.
And our conversation is kind of at cross purposes because our clients are ordinary people. They are millions of at&t customers. And the question is: Does the government get custody of their communications and search through them on the way to its targeted programs.
I think the answer is fairly clearly yes at this point. And you can read that into the way the FISC opinions are looking at things.
But I think Mr. Coppolino is trying to win his case here rather than talk about the scope of evidence preservation.
The scope of evidence preservation ought to be based upon our complaint and what we're suing over. We are clearly suing over the mass collection of content. That's what paragraphs 50 through 80 of the complaint talk about.
They are not tied to executive authority versus FISC.
It's not tied to 702 versus some other statute that the congress might pass in the future to let the government continue to do the same thing.
It's about the mass collection of content and whether that's constitutional or statutorily authorized by any statute.
I don't think 702 authorizes --
The Court: All right. Mr. Coppolino, any final words?
Mr. Coppolino (by phone): I think a few, your honor.
First, thank you for your patience and for this long hearing.
Secondly, I'm not trying to win my case on the merits. I'm trying to protect NSA's very significant national security interest in maintaining the integrity of the 702 program, which we don't believe is even at issue.
But even if you thought it was at issue -- and you don't have to decide that issue -- the steps that they have asked to take with respect to the preservation of data on 702 are not reasonable just as a preservation matter, because they are far too burdensome, far too impracticable. They risk compromising national security. And they should not be allowed to stand, even if you felt that in some way by some manner 702 was properly at issue in the lawsuit.
I don't know if I'm going to get another chance to speak, so I thought I would just say that in conclusion, your honor, that we have asked that you would stay or rescind yesterday's order for the reasons that we have -- you know, we identified in our papers today.
And what I would ask the court to do is if you are not ready to rule today on all of these issues in terms of extending the TRO to 702, that you at least stay yesterday's order.
If you are going to rule and rule against us and order the preservation of all data relevant to 702, as you did yesterday, we would ask that you administratively say that so we can consider our appellate options in the ninth circuit.
And if you decide later to issue such a ruling we would ask that you issue an administrative stay with that ruling so that we could seek our relief from the ninth circuit.
The Court: All right. Ms. Cohn, any parting words?
Ms. Cohn: No, your honor. Well, yes, of course, your honor, a couple of words. And I will try to keep it short.
The Court: My vacuum theory that nature and lawyers hate a vacuum when given a chance to --
Ms. Cohn: It's true. My cat hates the vacuum, too.
The Court: Okay.
Ms. Cohn: But I think that, you know, we felt we had an evidence preservation order in place in this case in 2007 that specifically required the government to preserve all evidence relevant to this case, relevant to our claims.
When we discovered in march that the government had massively and secretly reinterpreted that, we asked you for emergency relief, and you granted it.
I'm -- you know, it's kind of deja vu all over again for me to be standing up here again trying to argue that the government needs to preserve all evidence relevant to our claims.
They do. That's just a bedrock factor. I've tried to give your honor, and i've suggested the court a way around this problem for us. I think the adverse inference is the way to go. There may be some other way to go that will work on this. I don't want evidence preservation obligations to get in the way of the government's efforts to protect the national security.
But I also don't want the government's claims of its needs for national security to effectively let it checkmate our case by destroying the very evidence that they say --
The Court: All right.
Ms. Cohn: -- we need in order to --
The Court: All right. So the matter is submitted.
I would like to issue some -- a ruling one way or the other this evening -- today.
So I would like -- I am going take a break to consider counsel's arguments, review the briefs, and I'll be back. So stay around. All right? Thank you.
And, counsel, would it be possible for you to stay on the phone? It will be 15, 20 minutes.
Mr. Coppolino (by phone): Absolutely, your honor.
The Court: Thank you very much.
(thereupon, a recess was taken.) the Clerk: Remain seated. Come to order. Court is again in session.
The Court: All right. Mr. Coppolino and company, are you still on the phone?
Mr. Coppolino (by phone): We are, your honor.
The Court: All right. Very well.
So I'm going to issue -- given the late hour and the like, I'm going to issue my ruling from the bench.
Obviously, you can order a transcript of my ruling, and you'll have that memorialized.
So the ruling is as follows: With regard to the collection of communications pursuant to section 702, on this record the court simply does not have sufficient evidence and legal authority to rule conclusively at this time.
Accordingly, to the extent plaintiffs seek to enforce this court's earlier preservation orders to include data collected pursuant to section 702, that request is denied on this current record without prejudice.
In order to protect the government's important function to maintain our national security programs, as shown by the declaration of Richard A. Ledgett, l-e-d-g-e-t-t, director of national -- deputy director national security agency, the court cannot issue a ruling at this time requiring that the government defendants retain all data collected pursuant to section 702.
Accordingly, the government rescinds -- the court rescinds its order dated june 5th, 2014 as to the retention of the section 702 evidence, but maintains its ruling with regard to the preservation of all data relevant to plaintiffs' pending claims.
In order to provide the court with sufficient briefing on various open issues, both that were already open and ones that were raised by today's proceedings, the court hereby orders the parties to brief the following issues in their upcoming submissions due to the court.
Defendants have responsive briefs due june 27th and plaintiffs may file a response to that brief by no later than july 18, 2014.
And the issues are as follows. One: Whether plaintiffs' claims encompass section 702, and what is the scope of the collection activities under that provision?
The second issue: The appropriateness of an adverse inference or standing based upon the alleged destruction of documents collected pursuant to both sections 215 and 702.
So although I was speaking fast, but not as fast as counsel, I will urge you to order the transcript of these remarks.
So I'm not entertaining further argument, but is there anything further that the plaintiffs wish to state?
Ms. Cohn: Your honor, I would be remiss if I didn't remind you we had some other matters in the first unitarian case that we're waiting for a hearing date on.
The Court: You will get it.
Ms. Cohn: And the four questions in Jewel, as well.
The Court: Right.
Ms. Cohn: I think I understand. Should we set a hearing date --
The Court: No.
Ms. Cohn: -- on these matters?
The Court: I will set a hearing as appropriate.
Ms. Cohn: Okay.
The Court: All right. Mr. Coppolino, anything further from the government?
Mr. Coppolino (by phone): Nothing further, your honor. Thank you very much.
The Court: All right. Thank you very much. We're adjourned.
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