USCA Case #14-5004
Document #1570210
Filed: 08/28/2015
2
call records are indeed among those collected as part of the
telephone metadata program”).
Plaintiffs’ contention that the government is collecting
data from Verizon Wireless (a contention that the government
neither confirms nor denies, Gov’t’s Br. at 38-39), depends
entirely on an inference from the existence of the bulk
collection program itself.
Such a program would be
ineffective, they say, unless the government were collecting
metadata from every large carrier such as Verizon Wireless;
ergo it must be collecting such data. Appellee’s Br. 27-28.
This inference was also the district judge’s sole basis for
finding standing. Klayman v. Obama, 957 F. Supp. 2d 1, 27
& n.36 (2013).
Yet the government has consistently maintained that its
collection “never encompassed all, or even virtually all, call
records and does not do so today.” Gov’t’s Br. at 39; Decl. of
Teresa Shea, NSA Signals Intelligence Director at ¶ 8,
Addendum to Gov’t’s Br. at 101 (similar). While one district
judge has claimed that “the Government acknowledged that
since May 2006, it has collected this information for
substantially every telephone call in the United States,”
neither of his sources—an Administration “White Paper” and
a declaration by an NSA official—actually supports the claim.
ACLU v. Clapper, 959 F. Supp. 2d 724, 735 (S.D.N.Y. 2013),
vacated and remanded, 785 F.3d 787 (2d Cir. 2015); see
Administration White Paper, Bulk Collection of Telephony
Metadata Under Section 215 of the USA Patriot Act at 3
(Aug. 9, 2013) (“FBI obtains orders from the FISC directing
certain telecommunications service providers to produce
business records that contain information about
communications between telephone numbers . . .” (emphasis
added)); Decl. Teresa Shea ¶ 14, ACLU v. Clapper, 13-cv3994 (S.D.N.Y. Oct. 1, 2013), ECF No. 63 (“FBI obtains
orders from the FISC directing certain telecommunications
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