USCA Case #14-5004
Document #1570210
Filed: 08/28/2015
3
Under the program, the collected metadata are
consolidated into a government database, where (except in
exigent circumstances) the NSA may access it only after
demonstrating to the FISC a “reasonable articulable
suspicion” that a particular phone number is associated with a
foreign terrorist organization. Gov’t’s Br. at 11-12. Even
then, the NSA may retrieve call detail records only for phone
numbers in contact with the original number—within two
steps, or “hops” of it. Id. at 11. If telephone number A was
used to call telephone number B, which in turn was used to
call telephone number C, and if the FISC affirms the
government’s “reasonable articulable suspicion” that A is
associated with a foreign terrorist organization, the FISC may
authorize the government to retrieve from the database the
metadata associated with A, B, and C. (Before 2014, the
FISC orders allowed the government to conduct queries for
any number within three steps of the approved identifier, and
the FISC did not play any role in assessing the government’s
“reasonable articulable suspicion” for each query. Id. at 12
n.3). Once the government has retrieved the metadata, which
does not include the content of the calls or the identities of the
callers, it uses the data “in conjunction with a range of
analytical tools to ascertain contact information that may be
of use in identifying individuals who may be associated with
certain foreign terrorist organizations because they have been
in communication with certain suspected-terrorist telephone
numbers or other selectors.” Id. at 9, 15.
Plaintiffs contend that this bulk collection constitutes an
unlawful search under the Fourth Amendment; they seek
injunctive and declaratory relief as well as damages. Third
Amended Complaint ¶ 53, Klayman v. Obama, 13-cv-851
(D.D.C. Feb. 10, 2014), ECF No. 77. The district court issued
a preliminary injunction barring the government from
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