Misc. 13-03 Response of the United States to Motions for Declaratory Judgement (FISC 2013)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on June 18, 2013.
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U.S. FOREIGN INTELLIGENCE SURVEILL At~CE CO!JRT UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D.C. 2013 SEP 30 PM S: OG LEEANN FLYNN HALL CLERK OF COURT IN RE AMENDED MOTION FOR DECLATORY WDGMENT OF A FIRST AMENDMENT RIGHT TO PUBLISH AGGREGATE INFORMATION ABOUT FISAORDERS ) ) ) ) ) Docket No. Misc. 13-03 IN RE MOTION TO DISCLOSE AGGREGATE DATA REGARDING FISA ORDERS ) ) ) Docket No. Misc. 13-04 IN RE MOTION FOR DECLARATORY JUDGMENT TO DISCLOSE AGGREGATE DATA REGARDING FISA ORDERS AND DIRECTIVES ) ) ) ) ) Docket No. Misc. 13-05 IN RE MOTION FOR DECLARATORY JUDGMENT TO DISCLOSE AGGREGATE DATA REGARDING FISA ORDERS AND DIRECTIVES ) ) ) ) ) Docket No. Misc. 13-06 IN RE MOTION FOR DECLARATORY JUDGMENT TO REPORT AGGREGATED DATA REGARDING FISA ORDERS ) ) ) ) Docket No. Misc. 13-07 (U) RESPONSE OF THE UNITED STATES TO MOTIONS FOR DECLARATORY JUDGMENT BY GOOGLE INC., MICROSOFT CORPORATION, YAHOO! INC., FACEBOOK, INC., AND LINKEDIN CORPORATION JOHN P. CARLIN Acting Assistant Attorney General for National Security TASflINA GAUHAR ·· Depufy Assistant Attorney General for Intelligence TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION ........................................................................................................................... 1 ARGUMENT ................................................................................................................................... 5 I. (U) The Court-Ordered Nondisclosure Obligations Imposed Pursuant to FISA Prevent the Companies from Unilaterally Publishing Classified FISA Data ...................................................................................................................... 5 A. (U) The Information that the Companies Seek to Disclose is Classified .............................................................................................................. 5 B. (U) The Court-Ordered Nondisclosure Obligations Required Under FISA Prohibit the Companies from Publishing Classified Sources and Methods of FISA Surveillance ............................................................................... 12 II. (U) The Prohibitions on Disclosure Satisfy the First Amendment Because They Are Narrowly Tailored to Promote Compelling National Security Interests .......................................................................................................... 16 III. (U) As a Court of Limited Jurisdiction, This Court Cannot Provide Declaratory Relief Regarding Legal Prohibitions on Disclosure Outside of FISA ........................................................................................................... 21 CONCLUSION .............................................................................................................................. 26 TABLE OF AUTHORITIES CASES: Aldinger v. Howard, 427 U.S. 1 (1976) ......................................................................................... 23 C&E Servs., Inc. v. District of Columbia Water & Sewer Auth., 310 F .3d 197, 201 (D.C. Cir. 2002) ................................................................................... 24 Chambers v. NASCO, Inc., 501 U.S. 32 (1991) ............................................................................. 24 Chevron Corp. v. Naranjo, 667 F.3d 232 (2d Cir. 2012) .............................................................. 24 CIA v. Sims, 471U.S.159 (1985) .............................................................................................. 7, 19 Connecticut Nat 'l Bank v. Germain, 503 U.S. 249 (1992) ............................................................ 13 Davis v. Michigan Dep 't of Treas., 489 U.S. 803 (1989) .............................................................. 14 Department of the Navy v. Egan, 484 U.S. 518 (1988) ....................................................... 6, 16, 20 Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008) ......................................................................... 17, 18 Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357 (2d Cir. 2003) .................................................. 24 Eash v. Riggins Trucking Inc., 757 F.2d 557 (3d Cir. 1985) ........................................................ .24 Haigv. Agee, 453 U.S. 280 (1981) ................................................................................................ 14 Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) ............................................... 17, 18 International Custom Prods., Inc. v. United States, 467 F.3d 1324 (Fed. Cir. 2006) ................... 23 McQuiggen v. Perkins, 133 S. Ct. 1924 (2013) ............................................................................. 25 In re Mot. for Release of Ct. Records, 526 F. Supp. 2d 484 (Foreign Intel. Sur. Ct. 2007) .. passim Reno v. ACLU, 521 U.S. 844 (1997) .............................................................................................. 18 In re Sealed Case, 310 F.3d 717 (For. Intelligence Surv. Ct. of Rev. 2002) ................................. 23 Schilling v. Rogers, 363 U.S. 666 (1960) ...................................................................................... 24 Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950) ..................................................... 24 Snepp v. United States, 444 U.S. 507 (1980) ..................................................................... 16, 20, 22 ii Steel Co. v. Citizens for a Beller Env 't, 523 U.S. 83 ( l 998) .......................................................... 23 United Stales v. Boyce, 594 F.2d 1246 (9th Cir. 1979) ................................................................. 22 United Stales v. King, 395 U.S. l (1969) ....................................................................................... 25 United Stales v. Marchelli, 466 F.2d 1309 (4th Cir. 1972) ....................................................... 7, 19 United States v. Nixon, 418 U.S. 683 (1974) ................................................................................... 6 United States v. Pappas, 94 F.3d 795 (2d Cir. 1996) .................................................................... 22 United Stales v. Sterling, 724 F.3d 482 (4th Cir. 2013) ........................................................... 16, 17 United States v. Yunis, 867 F.2d 617 (D.C. Cir. 1989) .............................................................. 7, 19 Whitman v. American Trucking Ass 'ns, 531 U.S. 457 (200 I) ....................................................... 15 Wilson v. CIA, 586 F.3d l 71 (2d Cir. 2009) .................................................................................. 22 CONSTITUTION AND STATUTES: U.S. Const. Amend. I ............................................................................................................. passim All Writs Act, 28 U.S.C. § l 65 l ....................................................................................................25 Declaratory Judgment Act, 28 U.S.C. § 2201 ................................................................................ 24 Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801 et seq.: 50 U.S.C. § l 803(b) ........................................................................................................... 25 50 u.s.c. § 1804 ................................................................................................................ 23 50 U.S.C. § 1805(c)(2)(B) ................................................................................................. 13 50 U.S.C. § 1805(c)(2)(C) ................................................................................................. 13 50 u.s.c. § 1822(d) ........................................................................................................... 25 50 U.S.C. § 1823 ................................................................................................................ 23 50 U.S.C. § 1824(c)(2)(B)-(C) ........................................................................................... 13 50 u.s.c. § 1842 ................................................................................................................ 23 50 U.S.C. § 1842(d)(2)(B) ................................................................................................. 13 iii 50 U.S.C. § 1861 ................................................................................................................ 23 50 U.S.C. § 1861(d)(l) ...................................................................................................... 14 50 u.s.c. § 1861(f)(3) ....................................................................................................... 25 50 u.s.c. § 1881 ................................................................................................................ 23 50 U.S.C. § 1881a(h)(l)(A) ............................................................................................... 13 50 U.S.C. § 1881a(h)(l)(B) ............................................................................................... 13 50 U.S.C. § 1881a(h)(6)(A) ............................................................................................... 25 50 U.S.C. § 1881a(i)(4)(A) ................................................................................................ 25 50 U.S.C. § 1881b(f)(l) ..................................................................................................... 25 50 U.S.C. § 1881c(e)(l) ..................................................................................................... 25 12 u.s.c. § 3414 .......................................................................................................................... l, 2 15 U.S.C. § 1681u ............................................................................................................................ 2 15 U.S.C. § 1681v ............................................................................................................................ 2 18 U.S.C. § 798(a)(3) ..................................................................................................................... 22 18 u.s.c. § 798(b) ................................................................................................................... 22, 23 18 u.s.c. § 2709 ................................................................................................................................ 2 28 U.S.C. § 1291 ............................................................................................................................ 25 50 u.s.c. § 3162 ..............................................................................................................................2 iv (U) INTRODUCTION (U) The United States Government firmly supports a policy of appropriate transparency with respect to its intelligence activities. As the President has emphasized, such a policy furthers accountability and increases public trust in the Government's activities. Consistent with this approach, the Government is actively engaged in a careful review of classified information related to the foreign intelligence surveillance activities authorized by this Court. The purpose of this review is to make public as much information about these activities as is consistent with the national security interests of the United States. In conducting this review, the Government must balance the need to inform the public about these activities with the need to protect classified sources and methods of intelligence collection, including the Government's ability (or inability) to conduct surveillance on particular electronic communication service providers or platforms. Releasing information that could induce adversaries to shift communications platforms in order to avoid surveillance would cause serious harm to the national security interests of the United States. See Declaration of Andrew G. McCabe, Acting Executive Assistant Director, Federal Bureau of Investigation (FBI) (attached). (U) Balancing the competing interests at stake, the Government has taken a number of significant steps-above and beyond what the law requires-in order to promote transparency and to accommodate the legitimate interests of companies, including those that have filed motions before this Court and others that have not. For example, for the first time, in the winter of 2013, the Government agreed that companies may report the aggregate number of National Security Letters (NSLs) they receive, in numerical ranges and on a periodic basis. 1 More (U) NSLs are a type of administrative subpoena issued by U.S. Government agencies, particularly the Federal Bureau of Investigation (FBI), when investigating matters related to national security. See 12 1 recently, the Government, in consultation with the Court, agreed to permit companies to make a wider set of disclosures by opting instead to report, in certain bands, the aggregate num her of criminal and national security related orders they receive from federal, state, and local government entities combined, and the number of user accounts affected by such orders. A number of companies have agreed to exercise that option, which allows them to demonstrate to their customers that the sum total of all such process affects only a tiny fraction of the companies' user accounts. 2 (U) In addition, on August 29, 2013, the Government announced that it will report annually the total number of orders issued nationwide and the total number of targets the orders affect. The report will include (a) the number of Foreign Intelligence Surveillance Act (FISA) orders or warrants issued based on probable cause (i.e., pursuant to Title I, Title III, Section 703, or Section 704 ofFISA) and the number of targets affected by those orders or warrants; (b) the number of directives issued pursuant to Section 702 ofFISA and the number of targets affected by those directives; (c) the number of orders issued pursuant to FISA' s pen register provision (Title N ofFISA) and the number of targets affected by those orders; (d) the number of orders issued pursuant to FISA's business records provision (Title V ofFISA) and the number of targets affected by those orders; and (e) the number ofNSLs issued by the Government nationwide and the number of targets affected by the NSLs. U.S.C. § 3414; 15 U.S.C. §§ 168lu, 168lv; 18 U.S.C. § 2709; 50 U.S.C. § 3162 (NSL statutory authorities). 2 (U) The Government's annual report of the use of various FISA authorities will provide the public significant information about how often the Government uses its foreign intelligence investigative authorities. The companies' ability to disclose how often they have responded to Government process will allow them to inform their customers about the likelihood that their information will be disclosed. On the other hand, because the Government's reporting will not be broken down by company, and the companies' reporting will aggregate criminal and noncriminal, content and non-content, and federal, state and local process, these reports will not provide our adversaries with a roadmap to the existence or extent of Government surveillance of any particular provider or communications platform. (U) Dissatisfied with the Government's efforts to strike the appropriate balance between the public interest in transparency and the protection of national security, the petitioners seek declaratory relief that would effectively give every communications provider in the United States the right to reveal the nature and scope of any FISA surveillance of their communications platforms. Such information would be invaluable to our adversaries, who could thereby derive a clear picture of where the Government's surveillance efforts are directed and how its surveillance activities change over time, including when the Government initiates or expands surveillance efforts involving providers or services that adversaries previously considered "safe." (U) In their original motions, Google and Microsoft sought to publish one aggregate number for all the FISA process they receive. After failing to reach a settlement with the Government, however, they amended their motions to seek relief that would present an even greater risk to national security: the right to disclose the precise number of FISA process they may receive under each separate provision of FISA. See Amended Google Mot. at 7; Microsoft 3 Mot. at 5. Microsoft goes still further, seeking to disclose separate categories for "non-content" requests and "content and non-content" requests. Id (emphasis in original). After Google and Microsoft filed their amended motions, Yahoo! Inc., Facebook, Inc., and Linkedln filed motions seeking essentially the same scope ofrelief. (U) Because revealing FISA data on a company-by-company basis would cause serious harm to national security, such data has been classified by the FBI. That classification decision establishes that unilaterally disclosing the information would undermine the secrecy of the surveillance, in violation of this Court's orders, which require any company that has received a FISA order to protect the secrecy of the intelligence acquisitions. The companies assert that the secrecy requirements apply only to particular surveillance targets. But that implausible reading ignores the forest for the trees. It would permit damaging disclosures that would reveal sources and methods of surveillance potentially nationwide. The secrecy provisions in the orders flow from statutory requirements that, according to their plain language, protect such sources and methods, not just particular collection efforts. Indeed, limiting the secrecy protections only to information revealing a particular surveillance target would authorize a wide range of other damaging disclosures, from the nature of surveillance targets to their general locations, among others. (U) Contrary to the companies' argument that they have a First Amendment right to disclose this sensitive national security information, it is well-settled that prohibitions on the disclosure of classified information, such as the ones contained in this Court's orders, satisfy the First Amendment. The Government has a compelling interest in protecting such national 4 security infonnation from disclosure, and the prohibitions on disclosure are narrowly tailored to protect that interest. (U) Finally, insofar as the companies argue that no other laws or regulations prohibit the disclosures they seek, the Court lacks jurisdiction to issue declaratory relief unrelated to prohibitions imposed pursuant to FISA. Because the data the companies seek to disclose is classified, the disclosures are prohibited by other sources of law, such as nondisclosure agreements between the Government and company employees. The interpretation and application of such non-FISA prohibitions are outside the specialized jurisdiction of this Court. (U) Accordingly, the Court should deny the companies' motions for declaratory relief. (U) ARGUMENT I. (U) The Court-Ordered Nondisclosure Obligations Imposed Pursuant to FISA Prevent the Companies from Unilaterally Publishing Classified FISA Data. (U) The companies assert that the information they seek to disclose is not classified, disregarding the harms to national security the proposed disclosures would likely cause. But classification judgments belong to the Executive Branch, not the companies, and the Executive Branch has classified the infonnation. The companies' flawed premise undermines their entire argument: the only plausible reading of FISA, and the Court's orders, is that FISA orders and directives bar recipients from disclosing properly classified infonnation about the nature and scope of the authorized surveillance activities. A. (U) The Information that the Companies Seek to Disclose is Classified. (U) The con:ipanies fail to address the hann their disclosures would cause to national security, beyond pointing out that they do not seek to disclose individual surveillance targets. 5 The companies' narrow focus on individual targets ignores that the disclosures would risk revealing the Government's collection capabilities as they presently exist and as they develop in the future. McCabe Deel. if 30. Such disclosures could therefore cause significant harm to national security. As a result, the FBI has classified the data the companies seek to publish at the Secret level. Id. if 27; see also id. iii! 22-26. (U) The FBI's assessment of harm is entitled to deference. This Court has previously held that "there is no role for this Court independently to review, and potentially override, Executive Branch classification decisions." In re Mot. for Release of Ct. Records, 526 F. Supp. 2d 484, 491 (Foreign Intel. Sur. Ct. 2007). As the Court recognized, ifthe U.S. Foreign Intelligence Surveillance Court (FISC) "were to assume the role of independently making declassification and release decisions ... there would be a real risk of harm to national security interests and ultimately to the FISA process itself." Id. Moreover, "even if a typical FISC judge ha[ s] more expertise in national security matters than a typical district court judge, that expertise would still not equal that of the Executive Branch, which is constitutionally entrusted with protecting the national security." Id. at 495 n.31. This Court's holding is consistent with the fact that "courts have traditionally shown the utmost deference" to the Executive Branch's authority to classify and control access to national security information. Department of the Navy v. Egan, 484 U.S. 518, 530 (1988) (emphasis added) (quoting United States v. Nixon, 418 U.S. 683, 710 (1974)). (U) The FBI based its classification decision on a review of all pertinent information, including whether disclosure of the data in the manner proposed by the companies would risk filling out the mosaic of information available to our adversaries in their efforts to assess and 6 avoid our surveillance capabilities. McCabe Deel. ~ 23. Deference to the Executive Branch is especially appropriate in such circumstances, where assessing the likely harm requires knowledge of many other pieces of information and intelligence expertise regarding how additional disclosures would help adversaries form a more complete mosaic to guide their efforts. See CIA v. Sims, 471 U.S. 159, 178-79 (1985); United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir. 1972); accord United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989) ("Things that did not make sense to the District Judge would make all too much sense to a foreign counter-intelligence specialist who could learn much about this nation's intelligencegathering capabilities from what these documents revealed about sources and methods."). (U) The detailed disclosures the companies propose would reveal the nature and extent ofFISA-authorized process served on the major providers in this country. The potential harm from such disclosures is easy to illustrate. (U) First, the disclosure of FISA data in specific numbers and by specific FISA provisions, as the companies seek, would provide adversaries significant information about the Government's collection capabilities with respect to particular providers. Disclosures ofFISA information in a manner that would permit our adversaries to identify those collection capabilities would harm national security by allowing them to switch providers to avoid surveillance. 7 • I 8 Second, for similar reasons, the companies' proposed unilateral disclosures would allow our adversaries to infer when the Government has acquired a collection capability on new services. lllllilllil•ilillliilllllillil•iillllll•••••••••liliil•••• •••Third, the proposed disclosures would also enable our adversaries to gain significant information about which platforms and services are not subject to surveillance, or are subject to only limited surveillance. • • • • • • • • • • • • • • • • • • • • • 9 Disclosing precise numbers associated with each provision or title of FISA, as the companies propose, would provide our adversaries with even more specific information, which they could use to track the Government's sources and methods of FISAauthorized intelligence collection. (U) If these leading Internet companies are permitted to make these disclosures, the harms to national security would be compounded by the fact that other companies would surely seek to make similar disclosures. See id.~ 48. As a result, our adversaries could soon be able to obtain a comprehensive picture of FISA-related surveillance activities. In addition, the disclosure of precise numbers ofFISA orders reasonably could be expected to cause other serious harms to national security. 10 lliillilliliiiiiiiiill • • • •. There is little doubt that foreign adversaries can and will glean important national security information from publicly available data. Indeed, the Intelligence Community knows that our adversaries actively gather information to assess such capabilities and react to avoid surveillance. Id. ~ 30; l••••liliiilililiiililliiiiliiliiiiiiliiiilillliliiiiiilill 3- • • • • • • • • • • • • • • • • • • • • • • • • •. Ifouradversaries know which platforms the Government does not surveil, they can communicate over those platforms when, for example, planning a terrorist attack or the theft of state secrets. Id.~~ Such disclosures could significantly and irreparably harm counterterrorism and counterintelligence efforts. Id.~ 39. Other types of harm can also result from adversaries learning which platforms the Government does surveil. Most obviously, they can avoid them. But as this Court has recognized, they can also use that information to engage in deceptive tactics or disinformation campaigns that could undermine intelligence operations and that could even expose Government personnel to the risk of physical harm. See In re Mot. for Release of Ct. Records, 526 F. Supp.2d at 494; • • • • • • • • • • • • • • • • • (U) In contrast, reporting an aggregate number of both national security and criminal process-which the Government has told the companies they can release-would not tend to disclose the Government's classified surveillance capabilities. The aggregate number would combine both content and non-content requests, so that our adversaries would not know, for example, whether a particular provider was responding to requests for subscriber identity information via an NSL, or was providing the full content of communications pursuant to a FISA 11 or Title III wiretap order. Thus, the extent of the Government's actual capabilities would be masked from our adversaries. (U) It is quintessentially an Executive Branch responsibility to assess these risks to national security and to determine what information can be disclosed consistent with both transparency and national security interests. The Government cannot agree to the disclosures the companies seek because the disclosures will harm national security by risking the disclosure of the Government's capabilities to conduct surveillance with respect to particular providers and Internet platforms. In assessing whether the companies' proposed disclosures will undermine the secrecy of the Government's intelligence collection activities under FISA, the Court should defer to the judgment of the Executive Branch. B. (U) The Court-Ordered Nondisclosure Obligations Required Under FISA Prohibit the Companies from Publishing Classified Sources and Methods of FISA Surveillance. (U) As explained below, the nondisclosure provisions in FISA orders are prescribed by statute and require companies to protect the secrecy of authorized surveillance. Because the information the companies seek to disclose has been properly classified, it follows that protecting the secrecy of the acquisitions underlying that information requires keeping the information secret. The companies would interpret this Court's orders as protecting only information about specific targets, therefore permitting the broad disclosure of damaging information about the Government's sources and methods of surveillance overall. But such a result is contrary to the text and purpose of the secrecy provisions in FISA on which the orders are based. (U) As an initial matter, the provisions of FISA should be enforced as written, Connecticut Nat'/ Bank v. Germain, 503 U.S. 249, 253-54 (1992), and neither provision at issue 12 here contains the "particular target" limitation on secrecy that the companies advance. Titles I and VII of FISA provide that FISA orders "shall direct," and FISA directives "may direct," recipients to provide the Government with "all information, facilities, or assistance necessary to accomplish the acquisition in a manner that will protect the secrecy of the acquisition," without limitation. 50 U.S.C. § 188la(h)(l)(A) (Title VII); see also 50 U.S.C. § 1805(c)(2)(B) (similar language for Title I). 4 Additionally, the orders "shall direct" and the directives "may direct" that recipients "maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished" that such electronic communication service provider maintains. 50 U.S.C. § 188 la(h)(l )(B) (Title VII); see also 50 U.S.C. § 1805(c)(2)(C) (similar language for Title 1).5 Consistent with the Executive Branch's authority to control classified information, that provision explicitly I 5 (U) The other FISA titles that provide search or surveillance authorities also contain nondisclosure provisions. See 50 U.S.C. § 1824(cX2)(B)-(C) (requiring Title III orders to require the recipient to assist in the physical search "in such a manner as will protect its secrecy" and provide that "any records concerning the search or the aid furnished" that the recipient retains be maintained under appropriate security procedures); 50 U.S.C. § 1842(d)(2)(B) (requiring Title IV orders to direct that recipients "furnish any information, facilities, or technical assistance necessary to accomplish the installation and operation of the pen register or trap and trace device in such a manner as will protect its secrecy," and provide that "any records concerning the pen register or trap and trace device or the aid furnished" that the recipient retains shall be maintained under appropriate security procedures); 50 U.S.C. § 186l(dXI) (providing that "[n]o person shall disclose to any other person ihat the [FBI] has sought or obtained tangible things pursuant to an order under" Title V ofFISA). Because the potential national security harm at issue is the disclosure of information that could provide adversaries with information about the Government's electronic surveillance capacities, the nondisclosure provisions in Titles I and VII-the titles that concern electronic surveillance - are most relevant here. 13 provides for Executive Branch approval of the companies' procedures for maintaining all records associated with surveillance. The provision is not limited to protecting only specific targeting information that such records would reveal, and on its face does not give companies the right to disclose classified information so long as records are disclosed in large groups. (U) Moreover, "(i]t is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Davis v. Michigan Dep 't of Treas., 489 U.S. 803, 809 (1989) . Reading a "particular target" limitation into FISA's secrecy provisions would be inconsistent with FISA's strong protections for the secrecy of the intelligence collection activities subject to the Court's review. Although the Government is seeking to make public as much information about these activities as the national security interests of the United States will permit, "(i]n the FISA context, there is an unquestioned tradition of secrecy, based on the vitally important need to protect national security." In re Mot. for Release of Ct. Records, 526 F. Supp.2d at 490-91 (citing Haig v. Agee, 453 U.S. 280, 307 (1981 )). Such protections extend not just to targets but also to surveillance sources and methods generally, because "[t]he identification of targets and methods of surveillance would permit adversaries to evade surveillance, conceal their activities, and possibly mislead investigators through false information." Id. at 494. (U) The implausibility of interpreting the "secrecy of the acquisition" to reach only the identification of targets is illustrated not only by the FBl's declaration but by the wide range of other damaging disclosures that interpretation would permit. There are numerous types of damaging disclosures that could be made without revealing the identity of a particular target, including general information concerning the type of target and their locations. The same is true 14 of the companies' narrow interpretation that the "records" they must protect extend only to the "identity" of subscribers or the "substance of communications," see Linkedln Mot. at 8-9. (U) It would be illogical to conclude that Congress enacted a "comprehensive statutory scheme designed to protect FISC records from routine public disclosure," In re Mot. for Release of Ct. Records, 526 F. Supp. 2d at 491, while allowing every public company to reveal damaging information about the nature and scope of surveillance under each separate title or provision of FISA. Cf Whitman v. American Trucking Ass 'ns, 531 U.S. 457, 468 (2001) (Congress "does not, one might say, hide elephants in mouseholes.") . And although the companies invoke FISA's congressional reporting requirements to support their contemplated disclosures, those reporting requirements are another example of the careful protections provided for FISA information. Unlike the classified reports submitted to Congress, the information publicly reported pursuant to FISA provides aggregated data at a level of detail far less than even what the Government recently committed to provide voluntarily, and certainly not comparable to what the companies now seek. None of the Government's disclosures report company-by-company data. (U) Accordingly, most reasonably construed, FISA's secrecy provisions prohibit the disclosure of FISA-related data in a manner that would provide insights into the Government's intelligence activities and risk harm to national security. The companies' proposed disclosures reasonably could be expected to cause serious harm to national security by revealing the Government's electronic surveillance capabilities and targeting actions on a company-bycompany basis, potentially nationwide. See Part I.A supra. Relatedly, the disclosure of the classified data would reveal FISA-related sources and methods, and thus would be plainly 15 inconsistent with maintaining "records concerning the acquisition" in a manner that will protect its secrecy as determined by the Executive Branch. (U) For these reasons, the Court should reject the companies' contention that any orders and directives they have received only prevent disclosures that concern particular surveillance targets. Their motions should be denied because their proposed disclosures would risk harm to national security by revealing the nature and scope of intelligence collection activities conducted by the Government pursuant to FISA. II. (U) The Prohibitions on Disclosure Satisfy the First Amendment Because They Are Narrowly Tailored to Promote Compelling National Security Interests. (U) The companies' First Amendment challenge turns on the same flawed premise that undermines their statutory argument. They argue that prohibiting their proposed disclosures would violate the First Amendment because the disclosures would not reveal particular surveillance targets, and therefore would not cause harm to national security. But as detailed above, the disclosures risk causing serious harm to national security. The Court's orders barring such disclosure satisfy any level of First Amendment scrutiny because they are narrowly tailored to serve a compelling governmental interest. (U) As the companies acknowledge, "[t]he Government has a compelling interest in protecting . . . the secrecy of information important to our national security." Snepp v. United States, 444 U.S. 507, 509 n.3 (1980); Department of the Navy v. Egan, 484 U.S. at 527; United States v. Sterling, 724 F.3d 482, 509 (4th Cir. 2013). The companies' contemplated disclosures risk significant harm to national security by revealing the nature and scope of the Government's intelligence collection on a company-by-company basis throughout the country. See Part I.A, supra. This "evaluation of the facts by the Executive . .. is entitled to deference" even in 16 assessing First Amendment interests because, "when it comes to collecting evidence and drawing factual inferences in this area, the lack of competence on the part of the courts is marked, and respect for the Government's conclusions is appropriate." Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2727 (2010) (internal quotation marks and citation omitted). (U) The Government's interest in preventing harm to national security is more than sufficient to outweigh the companies' interests in speaking about the particular FISA process they may receive. The principal case on which the companies rely, Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008), supports the Government's position. In Doe, the court concluded that the nondisclosure requirement applicable to unclassified NSLs "is not a typical prior restraint or a typical content-based restriction warranting the most rigorous First Amendment scrutiny." Id. 877. The court reached that conclusion after rejecting analogies to government processes in which the limited public interest in disclosure justifies lower First Amendment scrutiny, such as grand juries, civil discovery, or pre-publication review. Id. at 876-77. The court distinguished grand jury secrecy as "inher[ent] in the nature of the proceeding," whereas NSLs "might or might not" justify secrecy. Id. But FISA proceedings and foreign intelligence collection are subject to even stronger secrecy protections than grand juries and necessarily involve classified information. See, e.g., In re Mot.for Release of Ct. Records, 526 F. Supp.2d at 490 ("It is this highly classified, and fundamentally secret, nature of FISC records that distinguishes them from the records of other courts."). Accordingly, the companies' First Amendment interests should be evaluated against the "comprehensive statutory scheme designed to protect FISC records from routine public disclosure" and the absence of any long-standing practice ofreleasing the kind of information they seek to disclose. Id. at 491. 17 (U) Even outside the unique FISA context, Doe concluded that, while a "conclusory assertion" of harm would be insufficient to justify a prohibition, courts should defer to the "Government's considered assessment of why disclosure in a particular case may result in an enumerated harm related to such great matters as international terrorism or clandestine intelligence activities." 549 F.3d at 881 (emphasis in original). Even as to unclassified NSLs, nondisclosure can be justified where the Government "indicate[s] the nature of the apprehended harm and provide[ s] a court with some basis to assure itself (based on in camera presentations where appropriate) that the link between disclosure and risk of harm is substantial." Id. at 8 8182 (a "demonstration of a reasonable likelihood of potential harm, related to international terrorism or clandestine intelligence activities, will virtually always outweigh the First Amendment interest in speaking about such a limited and particularized occurrence as the receipt of an NSL and will suffice to maintain the secrecy of the fact of such receipt"). Here, the Government has explained in detail the serious harm to national security that the companies' proposed disclosures reasonably could be expected to cause. (U) Recognizing that the Government has a compelling interest in protecting national security, the companies argue that the prohibitions on disclosure are not narrowly tailored. But the restrictions are narrowly tailored because there are no "less restrictive alternatives [that] would be at least as effective in achieving" the Government's compelling interest. Reno v. ACLU, 521 U.S. 844, 874 (1997); see also Humanitarian Law Project, 130 S. Ct. at 2723-30 (upholding a statute that restricted plaintiffs from "communicating a message" because the Government had "adequately substantiated" its determination that the statutory restriction served "the Government's interest in combating terrorism [which] is an urgent objective of the highest order"). The Government has demonstrated why vital national security considerations preclude 18 disclosure of information about FISA-authorized surveillance that will reveal the Government's surveillance activities by provider and platform. See Part I.A supra. (U) Relying on authority involving the disclosure of individual NSLs, the companies argue that the disclosure prohibitions are not narrowly tailored because aggregate disclosures of FISA data by large providers, such as themselves, will not reveal a particular surveillance target. But this is another example of their flawed premise. The harm to national security that Jed the FBI to classify the information concerns the disclosure of intelligence sources and methods of electronic surveillance, not the identification of a particular individual recipient of process. Irrespective of whether disclosures would tend to reveal a particular surveillance target, they would allow adversaries to derive a clear picture of the nature and extent of the Government' s FISA surveillance activities with respect to every major provider in the country. Such harm to national security would result from disclosure of the data by any type of provider, large or small, and from the totality of information that would be disclosed. The Government is entitled to significant deference in assessing the harms to national security, and its judgment- not that of the providers-is critical to determining the scope of the prohibitions on disclosure that are necessary to protect national security interests. See, e.g., Sims, 4 71 U.S. at 178-79; Marchetti, 466 F.2d at 1318; Yunis, 867 F.2d at 623. (U) The companies also argue that the Government's public disclosures of aggregated FISA data somehow demonstrate that the prohibitions on the companies' proposed disclosures are not narrowly tailored. On the contrary, the Government' s voluntary disclosures of FISA data demonstrate that the Government seeks to protect such information in a narrowly tailored manner and has carefully stopped short of permitting disclosures that would cause harm. None of the Government's public disclosures reveal any information that would allow our adversaries 19 to determine the Government's surveillance capabilities of specific companies or specific platforms, or the timing of when the Government acquires certain surveillance capabilities. See McCabe Deel. ~ 66. Rather, the Government has provided as much data as reasonably possible, consistent with national security, to inform the public about the nature of its intelligence activities. (U) Finally, the companies argue that the public debate about the Government's surveillance activities justifies disclosure. Although the Government has attempted to release as much information as possible about the intelligence collection activities overseen by this Court, the public debate about surveillance does not give the companies the First Amendment right to disclose information that the Government has determined must remain classified. The companies are "correct in asserting that certain benefits could be expected" from public disclosure, but the argument '"proves too much'." In re Mot. for Release of Ct. Records, 526 F. Supp. 2d at 494 (citation omitted). It fails to account for the "detrimental consequences of broad public access" to such information. Id. at 494-95; see also Snepp, 444 U.S. at 509 n.3; Egan, 484 U.S. at 527. 6 6 (U) Moreover, it is unclear whether the companies need to disclosure such data to serve their interests in responding to erroneous reporting about their role in Government surveillance. The companies contend that they need to disclose FISA data to respond to "inaccurate media reporting" that suggests that the companies "provide[] the United States Government with direct access to [their] servers and network infrastructure." Am. Microsoft Mot. at 3; accord Am. Google Mot. at 2; Yahoo! Mot. at 2; Facebook Mot. at 2. But the companies fail to explain why disclosing precise numbers of various types ofFISA orders that they may have received is necessary or even relevant to refuting mistaken reports that the Government has unlimited "direct access" to the companies' servers. Indeed, the companies make clear that, without the need to disclose any classified information, they have been able to clearly and forcefully respond to the inaccurate or misleading reporting. See Am. Google Mot. at 2-3 (referencing statement of Larry Page and David Drummond); Facebook Mot. at 2 (referencing· statement of Mark Zuckerberg). And the Government itself has responded forcefully to such erroneous reports. See, e.g., Office of the Director of National Intelligence, IC on the Record, available at http://icontherecord.tumblr.com/ topics/section- 702. There is reason to believe that these efforts have been successful. See Joseph Menn, Analysis: Despite fears, NSA revelations helping US. tech industry, Reuters, 9/15/13 RTRSUSTOP 20 (U) Accordingly, there is no constitutional impediment to protecting from disclosure properly classified information about the Government's sources and methods of intelligence collection. Such disclosures reasonably could be expected to cause serious harm to national security. The prohibitions on disclosure at issue here are narrowly tailored to prevent such harm. III. (U) As a Court of Limited Jurisdiction, This Court Cannot Provide Declaratory Relief Regarding Legal Prohibitions on Disclosure Outside of FISA. (U) The companies seek relief that goes well beyond restraints imposed pursuant to FISA. They also seek a declaration that "no applicable law or regulation" prohibits their proposed disclosures. See Am. Google Mot. at 7; see also Linkedln Mot. at 1; Am. Microsoft Mot. at 5. But the interpretation and application of these other potential prohibitions on disclosure is not within this Court's specialized jurisdiction. (U) Because the information that the companies seek permission to disclose is properly classified, it is subject to prohibitions on the disclosure of classified information. For example, employees of the companies have signed nondisclosure agreements that prohibit disclosure of classified information, whether publicly, to another employee or agent, or to any other person. 13:09:19 ("Google Inc. and Facebook Inc. [] say privately that they have felt little if any impact on their business [from the disclosures]. Insiders at . .. Microsoft Corp.[] also say they are seeing no fallout."). (U) Additionally, as described above, the Government has pennitted the companies to release the aggregate number of governmental requests for infonnation (combining criminal and national security requests), which would demonstrate that only an exceptionally small percentage of their customers' accounts are subject to any governmental process at all. See, e.g., Ted Ullyot, General Counsel, Facebook, Facebook Releases Data Including All National Security Requests (June 14, 2013), http://newsroom.fb.com/News/636/Facebook-Releases-Data-Including-All-National-Security-Requests ("With more than 1.1 billion monthly active users worldwide, this means that a tiny fraction of one percent of our user accounts were the subject of any kind of U.S. state, local, or federal U.S. government request (including criminal and national security-related requests) in the past six months."). 21 7 See McCabe Deel.~ 65. Where relevant employees have entered into nondisclosure agreements that prohibit them from disclosing classified information, "[t]he Government is entitled to enforce its agreements to maintain the confidentiality of classified information." United States v. Pappas, 94 F.3d 795, 801 (2d Cir. 1996); see also Wilson v. CIA, 586 F.3d 171, 183-84 (2d Cir. 2009). Nondisclosure agreements are "a reasonable means for protecting this vital interest" that are consistent with the First Amendment. Snepp, 444 U.S. at 509 n.3. Other laws and regulations might also prohibit the companies' proposed disclosures. See, e.g., 18 U.S.C. § 798(a)(3). (U) This Court would not have jurisdiction to assess the potential applicability of such prohibitions, even if it could otherwise do so. Like any other Article III court, this Court has an obligation to assure itself of its jurisdiction before proceeding to the merits of a dispute. Steel Co. v. Citizens for a Better Env 't, 523 U.S. 83, 94 (1998); see also In re Sealed Case, 310 F.3d 717, 731-32 (For. Intelligence Surv. Ct. of Rev. 2002) (FISC operates within "the constitutional bounds that restrict an Article III court"). As the Supreme Court has held, "[f]or a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires." Steel Co., 523 U.S. at 101-02. 7 (U) Both the current standard nondisclosure agreement, which went into effect in July 2013, and the previous version contained the following language: "I hereby agree that I will never divulge classified information to anyone unless: (a) I have officially verified that the recipient has been properly authorized by the United States Government to receive it; or (b) I have been given prior written notice of authorization from the United States Government Oepartment or Agency ... responsible for the classification of ... information or last granting me a security clearance that such disclosure is permitted.") See Standard Form 312: Classified Information Nondisclosure Agreement (effective July 2013), available at: http://www.gsa.gov/ portal/forms/ download/ 116218; Standard Form 312: Classified Information Nondisclosure Agreement (effective prior to July 2013), available at: http://armypubs.army.mil/eforms/pdf/s312.PDF. 22 (U) This Court, like all Article III courts, is a "court[] of limited jurisdiction marked out by Congress." International Custom Prods., Inc. v. United States, 467 F.3d 1324, 1326 (Fed. Cir. 2006) (quoting Aldinger v. Howard, 427 U.S. 1, 15 (1976)). This Court has been granted a narrow and specialized (but vital) jurisdiction limited to certain specified applications and certifications that may be filed by the Government and two types of petitions that a private party may file. See 50 U.S.C. §§ 1804, 1823, 1842, 1861, 1881. Thus, FISA does not provide this Court with jurisdiction to provide declaratory relief regarding the applicability or enforceability of non-FISA prohibitions on disclosure. (U) Nor could such relief fall within this Court's inherent jurisdiction. Beyond those powers necessary for the exercise of its statutory jurisdiction or useful to adjudicate such cases, such as the power to construe the Court's own orders and procedures, "inherent power, which might be termed irreducible inherent authority, encompasses an extremely narrow range of authority involving activity so fundamental to the essence of a court as a constitutional tribunal that to divest the court of absolute command within this sphere is really to render practically meaningless the terms 'court' and 'judicial power."' Eash v. Riggins Trucking Inc., 757 F.2d 557, 562 (3d Cir. 1985) (en bane). The review and construction of nondisclosure agreements and other prohibitions on disclosure unrelated to FISA or the Court's rules and orders fall far outside the powers that "necessarily result to [this Court] from the nature of [the] institution," and therefore fall outside the Court's inherent jurisdiction. Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (citation omitted). (U) The companies rely on the Declaratory Judgment Act (DJA), 28 U.S.C. § 2201, but the DJA cannot create jurisdiction where jurisdiction is lacking. The DJA provides that "[i]n a case of actual controversy within its jurisdiction, ... any court of the United States, upon the 23 filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration." However, the DJA is "procedural only." Chevron Corp. v. Naranjo, 667 F.3d 232, 244 (2d Cir. 2012) (quoting Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950)). It "does not create an independent cause of action," id., and it "is not an independent source of federal jurisdiction." C&E Servs., Inc. v. District of Columbia Water & Sewer Auth., 310 F.3d 197, 201 (D.C. Cir. 2002) (quoting Schilling v. Rogers, 363 U.S . 666, 677 (1960)). 8 (U) While the DJA refers to "any court of the United States," the Supreme Court has held that it does not necessarily confer the power to grant declaratory relief on a specialized tribunal of limited, statutorily specified jurisdiction. See United States v. King, 395 U.S. 1, 3-4 (1969). In King, the Supreme Court unanimously held that the DJA did not confer the power to grant declaratory relief on the United States Court of Claims, an Article III court of specialized jurisdiction. See id. at 4. The Court reasoned that the type of relief contemplated by the DJA "ha[d] never been 'within [the Court of Claims'] jurisdiction'" given that, unlike a court that exercises general federal question and diversity jurisdiction, the Court of Claims had, since its creation in 1855, a specialized and narrow jurisdiction. Id. (quoting the DJA). (U) Given the limited jurisdiction of the FISC, the level of specificity with which Congress described it, and its "esoteric nature," In re Mot.for Release of Ct. Records, 526 F. Supp. at 486, it is unlikely that Congress intended to provide "expanded jurisdiction," King, 395 U.S. at 4, to broadly grant declaratory relief, pursuant to the DJA, about companies' rights to 8 (U) Additionally, the DJA provides a court with "discretion to determine whether it will exert jurisdiction over a proposed declaratory action or not," and this has been "consistently interpreted ... as a broad grant of discretion to district courts to refuse to exercise jurisdiction over a declaratory action that they would otherwise be empowered to hear." Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359 (2d Cir. 2003). 24 make public disclosures. This is particularly so given that Congress created this Court and imbued it with specialized jurisdiction after King was decided. See, e.g., McQuiggen v. Perkins, 133 S. Ct. 1924, 1934 n.3 (2013) ("Congress legislates against the backdrop of existing law."). 9 (U) Because this Court lacks jurisdiction to review the applicability of the nondisclosure agreements or any other laws or regulations beyond FISA that restrict the disclosure of classified information, this Court should reject the companies' request for broad declaratory relief concerning such prohibitions. 9 (U) An additional feature of FISA that counsels against a finding that the Court can exercise general declaratory powers pursuant to the OJA is the limited statutory appellate jurisdiction of the Foreign Intelligence Surveillance Court of Review. Unlike federal circuit courts of appeals, which have a general statutory grant of jurisdiction over all final judgment~ by district courts within their respective circuits, see 28 U.S.C. § 1291, FISA contains specific appellate provisions that vest the Court of Review with appellate jurisdiction over particular types of rulings from this Court. See, e.g., 50 U.S.C. §§ I 803(b), 1822(d), 186l(f)(3), 188la(h)(6)(A), 188la(i)(4)(A), 188lb(f)(I), 188lc(e)(l). In an appropriate case, the Court of Review (like this Court) could issue an extraordinary writ pursuant to the All Writs Act, 28 u.s.c. § 1651. 25 (U) CONCLUSION (U) For the reasons stated above, the Motions should be denied. September 30, 2013 Respectfully submitted, JOHN P. CARLIN Acting Assistant Attorney General for National Security TASHINA GAUHAR Deputy Assistant Attorney General for Intelligence CHRISTOPHER HARDEE Chief Counsel for Policy National Security Division Isl Nicholas J. Patterson JEFFREY M. SMITH NICHOLAS J. PATTERSON U.S. Department of Justice National Security Division 950 Pennsylvania Ave., N.W. Washington, D.C. 20530 Phone:(202)514-5600 Fax: (202) 514-8053 Attorneys for the United States ofAmerica 26 (U) CERTIFICATE OF SERVICE (U) I hereby certify that a true copy of the Response of the United States to Motions for Declaratory Judgment by Google Inc., Microsoft Corporation, Yahoo! Inc., Facebook, Inc., and Linkedin Corporation was served by hand-delivery on this 30th day of September, 2013, to Christine Gunning, Chief of Operations, Litigation Security Group, or her delegate, for forwarding to the Court. Additionally, redacted copies of the brief and accompanying declaration were served by the Government via Federal Express overnight delivery on this 30th day of September, 2013, addressed to: Albert Gidari Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101 Attorney for Google Inc. James Garland David N. Fagan Alexander A. Berengaut Covington & Burling LLP 1201 Pennsylvania Avenue, NW Washington, DC 20004-2401 Attorneys for Microsoft Corporation Marc J. Zwillinger Jacob A. Sommer ZwillGen PLLC 1705 N Street, NW Washington, DC 20036 Attorneys for Yahoo! Inc. Carl J. Nichols Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 Attorney for Facebook, Inc. Jerome C. Roth Jonathan H. Blavin Justin P. Raphael Munger, Tolles & Olson LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 Attorneys for Linkedln Corporation Isl Nicholas J. Patterson Nicholas J. Patterson
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