Case 2:15-cv-02573 Document 1 Filed 04/07/15 Page 1 of 19 Page ID #:1

1 MARK RUMOLD (SBN 279060) mark@eff.org
2 DAVID GREENE (SBN 160107)
3 NATHAN D. CARDOZO (SBN 259097) LEE TIEN (SBN 148216)
4 KURT OPSAHL (SBN 191303)
5 HANNI FAKHOURY (SBN 252629) ELECTRONIC FRONTIER FOUNDATION
6 815 Eddy Street
7 San Francisco, CA 94109 Telephone: (415) 436-9333
8 Facsimile: (415) 436-9993

9 Counsel for Plaintiff Human Rights Watch
10

11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13 HUMAN RIGHTS WATCH,

)

)

14

Plaintiff,

)

15

v.

)

)

16 DRUG ENFORCEMENT

)

17 ADMINISTRATION and MICHELE

)

LEONHART, in her official capacity as its )

18 Administrator; FEDERAL BUREAU OF )

19 INVESTIGATION and JAMES COMEY, )

in his official capacity as its Director; the ) 20 DEPARTMENT OF JUSTICE and ERIC )

21 HOLDER in his official capacity as

)

Attorney General; DEPARTMENT OF )

22 HOMELAND SECURITY and JEH

)

23 JOHNSON, in his official capacity as

)

Secretary; the UNITED STATES OF

)

24 AMERICA; and DOES 1-100,

)

25

)

Defendants. 26

Case No: 2:15-cv-2573 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
DEMAND FOR JURY TRIAL

27

28 COMPLAINT

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1

1. Plaintiff Human Rights Watch brings this action on behalf of itself and

2 its affected staff. All allegations contained within the complaint are based on either
3 direct evidence or reasonable inferences from direct evidence. All allegations
4 5 based on inference are likely to have direct evidentiary support after a reasonable

6 opportunity for further discovery. Accordingly, Plaintiff alleges as follows:

7 PRELIMINARY STATEMENT
8

9

2. This lawsuit challenges a program of untargeted and suspicionless

10 surveillance of Americans.
11 3. Specifically, this lawsuit challenges the bulk collection, retention,
12
13 search, use, and dissemination of Americans’ telephone records by the Drug

14 Enforcement Administration (“DEA”) and the other defendants (collectively, 15
“Defendants”). The Defendants’ untargeted call record surveillance program (the 16 17 “Mass Surveillance Program” or the “Program”) indiscriminately sweeps in the

18 call records of millions of Americans communicating by telephone with certain

19 specified foreign countries (the “Designated Countries”).
20

21

4. Plaintiff Human Rights Watch (“HRW”) is a leading international

22 human rights organization, dedicated to defending and promoting human rights 23
around the world. In support of its mission, HRW and its staff regularly 24
25 communicate by telephone with individuals in the Designated Countries.

26

5. The Mass Surveillance Program sweeps in the communication records

27

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1

COMPLAINT

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1 of HRW and its staff as they advocate for human rights. HRW’s records are

2 collected, retained, searched, and disseminated without any suspicion of

3 wrongdoing and without any judicial authorization or oversight. These records
4
5 reveal to the government the network of HRW’s associations in the Designated

6 Countries, substantially burdening HRW’s ability to engage in its mission of

7 defending and promoting global human rights.
8

9

6. The Mass Surveillance Program violates the First and Fourth

10 Amendments to the Constitution.

11 JURISDICTION AND VENUE
12

13

7. This case arises under the Constitution and laws of the United States

14 and presents a federal question within this Court’s jurisdiction under Article III of 15
the Constitution and 28 U.S.C. § 1331. The Court also has jurisdiction under 5 16 17 U.S.C. § 702 and 28 U.S.C. §§ 2201-2202.

18

8. Defendants have sufficient contacts with this district generally and, in

19 particular, with regard to the events herein alleged. Defendants are subject to the
20

21 exercise of this court’s jurisdiction over them.

22

9. Venue is proper in this judicial district pursuant to 28 U.S.C.

23 § 1391(e)(1)(B).
24

25

/ / /

26

/ / /

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2

COMPLAINT

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1

PARTIES

2

10. Plaintiff HRW is a non-profit, non-partisan international human rights

3 organization, based in New York, New York, with offices in Los Angeles,
4
5 California. Through its domestic and international network of offices and staff,

6 HRW challenges governments and those in power to end abusive practices and to
7 respect international human rights law by enlisting the public and the international
8 9 community to support the cause of human rights for all.

10

11. Defendant DEA is a federal law enforcement agency under the

11 direction and control of the Department of Justice. It is charged with enforcement
12

13 of the Controlled Substances Act. It is the primary agency carrying out the Mass

14 Surveillance Program. 15
12. Defendant Michele Leonhart is the Administrator of DEA, in office 16 17 since November 2007. Administrator Leonhart has ultimate authority over DEA’s

18 activities.
19 13. Defendant Federal Bureau of Investigation (“FBI”) is a federal law
20
21 enforcement agency under the direction and control of the Department of Justice.

22 FBI searches, uses, disseminates, and retains information obtained through the

23 Mass Surveillance Program. That information remains in FBI data repositories.
24

25

14. Defendant James Comey is the Director of FBI, in office since

26 September 2013. Director Comey has ultimate authority over FBI’s activities. 27

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3

COMPLAINT

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1

15. Defendant Department of Justice (“DOJ”) is a Cabinet-level executive

2 department in the United States government charged with law enforcement,

3 defending the interests of the United States according to the law, and ensuring fair
4
5 and impartial administration of justice for all Americans. DEA and FBI are

6 components of DOJ.
7 16. Defendant Eric Holder is the Attorney General of the United States, in
8 9 office since February 2009. Attorney General Holder has ultimate authority over

10 DOJ’s activities and those of its components, DEA and FBI.
11 17. Defendant Department of Homeland Security (“DHS”) is a Cabinet-
12
13 level executive department in the United States government charged with ensuring

14 the security of the nation against terrorism and other hazards. DHS searches, uses, 15
disseminates, and retains information obtained through the Mass Surveillance 16 17 Program. That information remains in DHS data repositories.

18

18. Defendant Jeh Johnson is the Secretary of Homeland Security, in

19 office since December 2013. Secretary Johnson has ultimate authority over DHS’s
20

21 activities.

22

19. Defendant United States is the United States of America, its

23 departments, agencies, and entities.
24

25

20. Defendants Does 1-100 are persons, officers, officials, or entities who

26 have authorized or participated in the Mass Surveillance Program. Plaintiff will 27

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4

COMPLAINT

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1 allege their true names and capacities when ascertained.

2

21. Each Defendant is responsible in some manner for the alleged

3 occurrences, and the injuries to Plaintiff were proximately caused by the acts or
4
5 omissions of the named Defendants, as well as Does 1-100.

6

FACTUAL ALLEGATIONS RELATED TO ALL COUNTS

7 BACKGROUND
8

9

22. The Mass Surveillance Program is a program of untargeted and

10 suspicionless surveillance of Americans.
11 23. The Program consists of Defendants’ bulk collection, retention, search,
12
13 use, and dissemination of call records for all, or substantially all, telephone calls

14 originating in the United States and terminating in the Designated Countries. The 15
Mass Surveillance Program maintains information about millions of calls made by 16 17 Americans, including Plaintiff HRW.

18

24. The information collected as part of the Mass Surveillance Program

19 includes: the initiating telephone number; the receiving telephone number; the
20

21 date, time, and duration of call; and the method by which the call was billed.

22

25. Since at least 2011, DEA has issued subpoenas to American

23 telecommunications service providers, requiring the providers to turn over
24

25 information in bulk about Americans’ calls to the Designated Countries. Call

26 records were obtained without any particularized suspicion of wrongdoing, and the 27

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5

COMPLAINT

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1 Program was not subject to any judicial oversight or authorization.

2

26. The Mass Surveillance Program was carried out in secret for years.

3 News reports indicate the Program began as early as the 1990s. Nevertheless, from
4
5 its inception until January 2015, the Program was never disclosed to the public, nor

6 was it disclosed in any criminal proceedings.
7 27. In a January 2015 filing in United States v. Hassanshahi, No. 13-CR-
8 9 274 (RC), (D.D.C), Defendants acknowledged the existence of the Mass

10 Surveillance Program for the first time. It was described in the Declaration of
11 Robert Patterson, a public version of which is attached hereto as Exhibit A
12
13 (“Patterson Declaration”) and incorporated herein by reference.

14

28. According to the Patterson Declaration, Defendants obtained call

15 records for the Mass Surveillance Program under 21 U.S.C. § 876, which
16

17 authorizes the Attorney General to issue subpoenas for the production of “any

18 records (including books, records, papers, documents, and other tangible things
19 which constitute or contain evidence) which the Attorney General finds relevant or
20
21 material to [an] investigation [relating to the enforcement of the Controlled

22 Substances Act].” 23
29. The Mass Surveillance Program indiscriminately sweeps in call 24
25 records for calls between the United States and the Designated Countries—

26 countries that are determined to have a “demonstrated nexus to international drug 27

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6

COMPLAINT

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1 trafficking and related criminal activities.” Patterson Decl., ¶ 4.

2

30. DEA has acknowledged that Americans’ calls to one country—Iran—

3 are included in the Mass Surveillance Program. Patterson Decl., ¶ 4.
4

5

31. However, the Mass Surveillance Program includes calls made to other

6 countries as well. Pursuant to section 706(1) of the Foreign Relations
7 Authorization Act (P.L. 107-228), 22 U.S.C. § 2291j-1(1), the President is required
8 9 to annually certify countries that are major drug transit and/or major illicit drug

10 producing countries. Since at least 2010, the President has annually certified the
11 following countries as such: Afghanistan, The Bahamas, Bolivia, Burma,
12
13 Colombia, Costa Rica, Dominican Republic, Ecuador, Guatemala, Haiti, Honduras,

14 India, Jamaica, Laos, Mexico, Nicaragua, Pakistan, Panama, Peru, and Venezuela. 15
See Presidential Determination on Major Drug Transit or Major Illicit Drug 16 17 Producing Countries for Fiscal Year 2014, 78 FR 58855, 2013 WL 5325618

18 (Sep. 13, 2013).
19 32. Each of these countries is a focus of DEA activity. For example, DEA
20
21 has 11 offices in Mexico alone; two offices in Colombia; and two offices in

22 Ecuador. DEA has at least one office in each of the following countries: 23
Afghanistan, Burma, Costa Rica, Dominican Republic, Guatemala, Haiti, 24
25 Honduras, India, Jamaica, Laos, Nicaragua, Pakistan, Panama, Peru, and

26 Venezuela. 27

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7

COMPLAINT

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1

33. These countries, as well as others, are among the Designated Countries

2 included in the Mass Surveillance Program.
3 34. The telephone communications information Defendants collect through
4 5 the Mass Surveillance Program is retained and stored by Defendants in one or

6 more databases. These databases contain call information for millions of

7 Americans’ calls to the Designated Countries.
8

9

35. These databases are then searched not only by officers and employees

10 of DEA, but by the officers and employees of DHS, FBI, and Does 1-100. For
11 example, in the Hassanshahi case, the search of the Program database(s) was not
12
13 performed by DEA. Instead, Homeland Security Investigations, an investigative

14 arm of DHS, accessed and searched the Program database(s). 15
36. Use of the Program database(s) is not limited to investigations of 16 17 illegal drug trafficking or production. Instead, agencies search the database(s) for

18 any purpose (including, but not limited to, investigatory purposes), regardless of
19 the investigation’s connection to illegal drugs. For example, in the Hassanshahi
20
21 case, DHS employees searched the Program database—and used and disseminated

22 information obtained from that search—during an investigation of possible

23 violations of export and trade laws.
24

25

37. According to the Patterson Declaration, the Program was “suspended”

26 in 2013. Further, according to the Patterson Declaration, the Mass Surveillance 27

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8

COMPLAINT

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1 Program database is no longer being queried for “investigatory purposes” and

2 “information is no longer being collected in bulk pursuant to 21 U.S.C. § 876.”

3 Patterson Decl., ¶ 6. Defendants continue to use and disseminate information
4
5 obtained through the Mass Surveillance Program. Defendants have not stated that

6 all information obtained through the Mass Surveillance Program, including HRW’s

7 information, has been purged from Defendants’ systems.
8

9

38. Additionally, Defendants could resume bulk collection under 21

10 U.S.C. § 876 at any time. Defendants may still be collecting call record

11 information in bulk under other authorities.
12

13

PLAINTIFF’S ALLEGATIONS

14

39. Plaintiff HRW is a leading non-profit, non-partisan international

15 human rights organization. HRW’s global advocacy work involves investigating
16

17 human rights abuses, exposing the facts widely, and pressuring those in power to

18 respect rights and secure justice.
19 40. HRW’s expert staff includes country-specialists, lawyers, journalists,
20
21 advocates, and academics of diverse backgrounds and nationalities. Many of these

22 experts conduct fact-finding missions and investigate human rights abuses, 23
impartially reporting on human rights conditions in some 90 countries around the 24
25 world.

26

41. HRW and its staff work regularly on human rights issues in many of

27

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9

COMPLAINT

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1 the Designated Countries. Countries that feature illicit drug production or

2 trafficking also often present a range of human rights abuses.
3 42. For example, HRW has dedicated experts monitoring and working to
4 5 protect human rights in Iran. Those experts document human rights abuses and

6 violations occurring within the country, including complaints concerning arbitrary

7 arrest and detention, torture, and executions.
8

9

43. Further, HRW has experts researching and monitoring each of the

10 following countries identified as major drug transit and/or major illicit drug
11 producing countries: Afghanistan, Colombia, Ecuador, Haiti, Honduras, India,
12
13 Jamaica, Mexico, Pakistan, Peru, and Venezuela.

14

44. Using U.S. telecommunications services, HRW and its staff

15 communicate in the regular course of work with individuals within many of the
16

17 Designated Countries, including those listed above, to conduct the fact-finding

18 necessary to accurately report on human rights abuses within the countries.
19 Plaintiff’s communications with its contacts and associates in these countries,
20
21 including the mere fact that a communication occurred, are often extraordinarily

22 sensitive. 23
45. Using U.S. telecommunications services, HRW and its staff often 24
25 communicate with victims of, or witnesses to, human rights abuses in many of the

26 Designated Countries. These individuals often fear for their physical safety or their 27

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10

COMPLAINT

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1 life, and the mere fact of contacting an international human rights organization,

2 like HRW, can put them in harm’s way. Accordingly, the confidentiality of
3 communications for Plaintiff’s associates in these countries is often of the utmost
4 5 concern.

6

46. These communications to HRW’s network of associates in many of the

7 Designated Countries are made over HRW’s Verizon phone lines, from staff
8

9 members’ personal phone lines, and through Internet-based platforms like Google

10 Voice.
11 47. Defendants obtained records of HRW’s communications to the
12
13 Designated Countries as part of the Mass Surveillance Program. Those records are

14 searched each time Defendants query the Mass Surveillance Program database(s). 15
48. The collection of Plaintiff’s call records includes the numbers called 16 17 by HRW and its staff; the date, time, and duration of the calls; and the method by

18 which the calls were billed. This information, when collected in bulk, provides the
19 government with the network of HRW’s sources, colleagues, and associates within
20
21 the called Designated Countries.

22

49. Defendant’s aggregation of this information discloses the associational

23 connections among HRW, its staff, and its associates within the called Designated
24

25 Countries, which ordinarily would not be disclosed to the public or the

26 government. This is information HRW often considers sensitive and private. With 27

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11

COMPLAINT

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1 the information obtained by the Mass Surveillance Program, the government can

2 identify any and all of HRW’s telephone contacts within the Designated Countries.
3 50. Even if the government never attempted to identify HRW’s contacts
4 5 and associates within the Designated Countries, the fact that the government

6 collects this information in the first place—and the fact that this information
7 remains within the Defendants’ possession to this day—substantially burdens
8 9 HRW’s ability to effectively communicate with people inside the Designated

10 Countries. This burden, in turn, hinders HRW’s ability to effectively engage in its

11 advocacy for global human rights.
12

13

51. Because of the Mass Surveillance Program, Plaintiff cannot assure its

14 associates abroad that their communications records will not be shared with 15
American law enforcement or the government of another country. Plaintiff’s 16 17 associations and human rights advocacy efforts, as well as those of its members

18 and staff, are substantially burdened by the fact that the Mass Surveillance
19 Program creates a permanent government record of all Plaintiff’s telephone
20
21 communications with contacts in the Designated Countries.

22

52. Plaintiff’s associations and human rights advocacy efforts are burdened

23 by Defendants’ search and analysis of information obtained through the Mass
24

25 Surveillance Program. Plaintiff’s associations and political advocacy efforts are

26 further burdened by Defendants’ use and disclosure of the information obtained 27

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12

COMPLAINT

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1 from Defendants’ searches and analyses of the Mass Surveillance Program

2 database(s).
3 53. Plaintiff’s telephone communications information—collected, retained,
4 5 and searched pursuant to the Mass Surveillance Program—was at the time of

6 collection, and at all times thereafter, not relevant to an authorized investigation
7 with respect to controlled substances, listed chemicals, tableting machines, or
8 9 encapsulating machines.

10

54. Defendants’ bulk collection, retention, search, and use of the telephone

11 communications information of HRW and its staff are done without lawful
12

13 authorization, probable cause, and/or individualized suspicion—in violation of

14 constitutional limitations and in excess of constitutional authority. 15
55. Defendants, and each of them, have authorized, approved, supervised, 16 17 performed, caused, participated in, aided, abetted, counseled, commanded,

18 induced, procured, enabled, contributed to, facilitated, directed, controlled, assisted
19 in, and/or conspired in the Mass Surveillance Program. Defendants have
20
21 committed these acts willfully, knowingly, and intentionally. Defendants retain the

22 information gathered pursuant to the Mass Surveillance Program, will continue to 23
search and use such information, and absent an order of this Court enjoining and 24
25 restraining them from doing so, will begin to collect the information again, if

26 Defendants have not already. 27

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13

COMPLAINT

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1

COUNT I

2 Violation of First Amendment—Declaratory, Injunctive, and Other Equitable

3 Relief
4

5

(Against All Defendants)

6

56. Plaintiff repeats and incorporates by reference the allegations in the

7 preceding paragraphs of this Complaint, as if set forth fully herein.
8

9

57. Plaintiff and its staff use telephone calls to communicate and to

10 associate with their associates within the Designated Countries, including to

11 communicate and to associate privately.
12

13

58. By their acts alleged herein, Defendants have violated and are violating

14 the First Amendment free speech and free association rights of Plaintiff and its 15
staff, including the right to communicate anonymously, the right to associate 16 17 privately, and the right to engage in protected advocacy free from government

18 interference.
19 59. By their acts alleged herein, Defendants have imposed a direct and
20
21 significant burden on the legal associations and speech of Plaintiff and its staff by,

22 among other things, compelling the disclosure of its associations, and eliminating 23
Plaintiff’s ability to assure its associates in the Designated Countries abroad that 24
25 the fact of their communications with them will be kept confidential.

26

27

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14

COMPLAINT

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1

60. Defendants are irreparably harming Plaintiff and its staff by violating

2 its First Amendment rights. Plaintiff has no adequate remedy at law for

3 Defendants’ continuing unlawful conduct, and Defendants will continue to violate
4
5 Plaintiff’s legal rights unless enjoined and restrained by this Court.

6

61. Plaintiff seeks this Court to declare that Defendants have violated the

7 First Amendment rights of Plaintiff, its members, and its staff; enjoin Defendants,
8

9 their agents, successors, and assigns, and all those in active concert and

10 participation with them, from violating the First Amendment to the United States

11 Constitution; and award such other and further equitable relief as is proper.
12

13

COUNT II

14 Violation of Fourth Amendment—Declaratory, Injunctive, and Equitable

15 Relief
16

17

(Against All Defendants)

18

62. Plaintiff repeats and incorporates by reference the allegations in

19 paragraphs 1 through 55 of this Complaint, as if set forth fully herein.
20

21

63. Plaintiff and its affected staff have a reasonable expectation of privacy

22 in their telephone communications information, including in their international

23 telephone communications information.
24

25

64. By the acts alleged herein, Defendants have violated Plaintiff’s

26 reasonable expectation of privacy and denied Plaintiff its right to be free from 27

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15

COMPLAINT

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1 unreasonable searches and seizures as guaranteed by the Fourth Amendment to the

2 Constitution of the United States.

3 65. Defendants are now engaging in and will continue to engage in the
4
5 above-described violations of Plaintiff’s constitutional rights, and are thereby

6 irreparably harming Plaintiff. Plaintiff has no adequate remedy at law for
7 Defendants’ continuing unlawful conduct, and Defendants will continue to violate
8 9 Plaintiff’s legal rights unless enjoined and restrained by this Court.

10

66. Plaintiff seeks this Court to declare that Defendants have violated its

11 Fourth Amendment rights; enjoin Defendants, their agents, successors, and assigns,
12

13 and all those in active concert and participation with them from violating

14 Plaintiff’s rights under the Fourth Amendment to the United States Constitution;

15 and award such other and further equitable relief as is proper.
16

17

PRAYER FOR RELIEF

18

Plaintiff respectfully requests that the Court:

19 1. Excerise jurisdiction over Plaintiff’s Complaint;
20

21

2. Declare that the Mass Surveillance Program violates Plaintiff’s rights

22

under the First and Fourth Amendments to the Constitution;

23 3. Permanently enjoin Defendants from continuing the Mass
24

25

Surveillance Program under 21 U.S.C. § 876 or any other authority;

26

4. Permanently enjoin Defendants from future search, use, or

27

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COMPLAINT

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1

dissemination of any of Plaintiff’s call records obtained through the

2

Mass Surveillance Program;

3 5. Order Defendants to provide an inventory of all Plaintiff’s call records
4

5

obtained through the Mass Surveillance Program;

6

6. Order Defendants to purge all Plaintiff’s call records obtained through

7 the Mass Surveillance Program;
8

9

7. Award to Plaintiff reasonable attorneys’ fees and other costs of suit to

10

the extent permitted by law; and

11 8. Grant such other and further relief as the Court deems just and proper.
12

13 Dated: April 7, 2015

Respectfully submitted,

14

15

s/ Mark Rumold

MARK RUMOLD

16

DAVID GREENE

17

NATHAN D. CARDOZO

LEE TIEN

18

KURT OPSAHL

19

HANNI FAKHOURY

20

ELECTRONIC FRONTIER

21

FOUNDATION

22

Counsel for Plaintiff Human Rights Watch

23

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25

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COMPLAINT

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1

JURY DEMAND

2

Plaintiff hereby requests a jury trial for all issues triable by jury including,

3 but not limited to, those issues and claims set forth in any amended complaint or
4
5 consolidated action.

6

7 Dated: April 7, 2015

Respectfully submitted,

8 s/ Mark Rumold

9

MARK RUMOLD

10

DAVID GREENE

NATHAN D. CARDOZO

11

LEE TIEN

12

KURT OPSAHL

HANNI FAKHOURY

13

14

ELECTRONIC FRONTIER

FOUNDATION

15

16

Counsel for Plaintiff Human Rights Watch

17

18

19

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COMPLAINT

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Exhibit A
Exhibit A

CaseC2a:1s5e-1cv:1-032-c5r7-0302D74o-cRuCmenDto1c-u1meFnilte4d90-41/07F/i1le5d 0P1a/1g5e/125of P4agPea1geofID3 #:21
LAW ENFORCEMENT SENSITIVE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA
v.
SHANTIA HASSANSHAHI, Defendant.

Criminal No.: 13-274 (RC)
Ex Parte Pursuant to Court Order Filed Under Seal

DECLARATION OF ROBERT PATTERSON 1. I am an Assistant Special Agent in Charge at the United States Drug Enforcement Administration ("DEA"), which is a component of the Department of Justice. I have held this position for 8 years. Based on my current role within DEA, I am familiar with the database that is described below. This declaration is based on my personal knowledge and on information that has been provided to me in my official capacity.

2. I make this declaration in response to this Court's December 1, 2014 Order directing the government to "provide the Court with an ex parte declaration summarizing the contours of the law enforcement database used by Homeland Security Investigations to discover Hassanshahi's phone number, including any limitations on how and when the database may be used." I understand that the phone number referenced in the Court's Order as "Hassanshahi's phone number" is 818-97 1-95 12 (hereinafter, ''the 818 number").

3. As described in the previously filed, public affidavit of Joshua J. Akronowitz, Government investigators learned that there was reason to believe that Iranian telephone number 982144406457 (hereinafter, "the Iranian number") was relevant to an ongoing federal criminal investigation. The Iranian number was queried in a federal law enforcement database.
the database indicated that a call had been placed from the 818 number to the Iranian number.

CaseC2a:1s5e-1cv:1-032-c5r7-0302D74o-cRuCmenDto1c-u1meFnilte4d90-41/07F/i1le5d 0P1a/1g5e/135of P4agPea2geofID3 #:22 LAW ENFORCEMENT SENSITIVE
4. This database- consisted oftelecommunications metadata obtained from United States telecommunications service providers pilrsuant to administrative subpoenas served upon the service providers under the provisions of 21 U.S.C. § 876. This metadata related to international telephone calls originating in the United States and c a l l i n g - designated foreign countries, one of which was Iran, that were determined to have a demonstrated nexus to international drug trafficking and related criminal activities. This metadata consisted exclusively of the initiating telephone number; the receiving telephone number; the date, time, and duration of the call; and the method by which the call was billed. No subscriber information or other personal identifying information was included in this database. No coinmunication content was included in this database.

5. As noted, this database was a federal law enforcement database. It could be used to query a telephone number where federal law enforcement officials had a reasonable articulable suspicion that the telephone number at issue was related to an ongoing federal criminal investigation. The Iranian number was determined to meet this standard based on specific information indicating that the Iranian number was being used for the purpose of importing technological goods to Iran in violation of United States law.

6. Use of t h e - dat a b a s e - that returned the 818 number was

suspended in September 201 3.1 This database -

is no longer being queried for

2
LAW ENFORCEMENT SENSITIVE

CaseC2a:1s5e-1cv:1-032-c5r7-0302D74o-cRuCmenDto1c-u1meFnilte4d90-41/07F/i1le5d 0P1a/1g5e/145of P4agPea3geofID3 #:23 LAW ENFORCEMENT SENSITIVE
investigatory purposes, and information is no longer being collected in bulk pursuant to 21 U.S.C. § 876.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief.
Assistant Special Agent in Charge U.S. Drug Enforcement Administration
3 LAW ENFORCEMENT SENSITIVE

 </s> Case 2:15-cv-02573-PSG-JPR Document 38 Filed 08/14/15 Page 1 of 15 Page ID #:406

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 15-2573 PSG (JPRx)

Date August 14, 2015

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

Present: The Honorable Philip S. Gutierrez, United States District Judge

Wendy Hernandez Deputy Clerk

Not Reported Court Reporter

Attorneys Present for Plaintiff(s):

Attorneys Present for Defendant(s):

Not Present

Not Present

Proceedings (In Chambers): Order HOLDING IN ABEYANCE Ruling on the Motion to Dismiss and GRANTING IN PART Plaintiff’s Request for Discovery

Before the Court is Defendants Drug Enforcement Administration (“DEA”), Michele Leonhart (DEA Administrator), Federal Bureau of Investigation (“FBI”), James Comey (FBI Director), Department of Justice (“DOJ”), Eric Holder (Attorney General), Department of Homeland Security (“DHS”), Jeh Johnson (DHS Secretary), and United States of America’s (collectively, “Defendants” or the “Government”) motion to dismiss for lack of subject matter jurisdiction. Dkt. # 24; Compl. ¶¶ 11-19. Also before the Court is Plaintiff Human Rights Watch’s (“HRW”) request for discovery and an evidentiary hearing related to the Government’s motion. See Dkt. # 33. The Court finds this matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); L.R. 7-15. After considering the arguments in the supporting and opposing papers, the Court HOLDS IN ABEYANCE ruling on the motion to dismiss and GRANTS IN PART HRW’s request for discovery and an evidentiary hearing.

I. Background

A. Factual Background

Plaintiff Human Rights Watch (“HRW”) is an international non-profit organization dedicated to defending and promoting human rights around the world. Id. ¶¶ 4, 10. It challenges governments and those in power to end abusive practices and to respect international human rights laws by enlisting the public and international community to support the cause of human rights for all. Id. ¶ 10. In support of its mission, HRW and its staff regularly communicate by telephone with individuals in foreign countries. Id. ¶¶ 3-4. In this lawsuit, HRW, on behalf of itself and its staff, challenges a program of “untargeted and suspicionless surveillance of Americans” by the Government. Compl. ¶¶ 1-2, 4. The Complaint refers to this program as the “Mass Surveillance Program” or the “Program.” Id. ¶ 22.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 15-2573 PSG (JPRx)

Date August 14, 2015

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

i. The Patterson Declaration’s Description of the Mass Surveillance Program

In a January 2015 filing in a criminal case in the District Court for the District of Columbia (United States v. Hassanshahi, No. 13-CR-274 (RC) (D.D.C.)), the Government acknowledged the existence of the Mass Surveillance Program for the first time in the declaration of Assistant Special Agent in Charge at the DEA, Robert W. Patterson (“Patterson”). Id. ¶ 27. HRW attached the slightly redacted public version of the declaration to its complaint (the “Patterson Declaration”). See Compl., Ex. A [“Patterson Decl.”]. In the Patterson Declaration, the Government disclosed that it had collected and queried certain telephone data under the authority of 21 U.S.C. § 876. Patterson Decl. ¶ 4.

The Government attested that it had previously collected “telecommunications metadata” pursuant to administrative subpoenas served on United States telecommunications service providers that the Government stored in a federal law enforcement database. Id. ¶¶ 3-4. This metadata consisted exclusively of the initiating telephone number; the receiving telephone number; the date, time, and duration of the call; and the method by which the call was billed. Id. ¶ 4. No subscriber information, other personal identifying information, or communication content was included in the database. Id. The collected metadata related to international phone calls originating in the United Sates and calling “designated foreign countries” that were determined to have a “demonstrated nexus to international drug trafficking and related criminal activities.” Id. The Patterson Declaration specifically identified Iran as one of the “designated foreign countries.” Id. The collected information could then be used to query a telephone number where “federal law enforcement officials had a reasonable articulable suspicion that the telephone number at issue was related to an ongoing federal criminal investigation.” Id. ¶ 5.

The Patterson Declaration attached to the Complaint declares that use of this federal law enforcement database was suspended in September 2013 and that it is no longer being queried for investigatory purposes. Id. ¶ 6. Moreover, information is no longer being collected in bulk pursuant to 21 U.S.C. § 876. Id.

ii. Additional Allegations Regarding the Mass Surveillance Program

The Complaint alleges that the Mass Surveillance Program consists of the Government’s collection, retention, search, use, and dissemination of call records for “all, or substantially all” telephone calls originating in the United States and terminating in the “designated countries.” Id. ¶ 23. The Complaint generally defines “designated countries” as they were defined in the Patterson Declaration – “countries that are determined to have a ‘demonstrated nexus to international drug trafficking and related criminal activities’” – and further alleges that these countries are same as those that the President annually certifies as “major drug transit and/or

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 15-2573 PSG (JPRx)

Date August 14, 2015

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

major illicit drug producing countries” pursuant to the Foreign Relations Authorization Act, 22 U.S.C. §§ 2291j-l(1). Id. ¶¶ 29, 31. The Complaint lists 20 countries that the President has annually certified under this statute since 2010 and alleges that each of these countries is a focus of DEA activity. Id. ¶¶ 31-32. The Patterson Declaration does not mention the Foreign Relations Authorization Act and only specifically identifies Iran as a “designated foreign country” for the purposes of the Program. Patterson Decl. ¶ 4.

The Complaint asserts that the telephone data collected through the Mass Surveillance Program is retained and stored by the Government in “one or more” databases, see Compl. ¶ 34, but the Patterson Declaration only references one database, Patterson Decl. ¶¶ 1, 3-6. Contrary to the sworn representation in the Patterson Declaration, HRW alleges that the Government continues to search, use, and disseminate information obtained through the Program. Compl. ¶¶ 37, 55.

iii. HRW Telephone Records

HRW’s staff includes country-specialists, lawyers, journalists, advocates, and academics who conduct fact-finding missions and investigate human rights abuses, reporting on human rights conditions in some 90 countries around the world. Id. ¶ 40. HRW asserts that it and its staff work regularly on human rights issues in many of the designated foreign countries, including Iran and eleven other specifically identified countries, because the countries that feature illicit drug production or trafficking often present a range of human rights abuses. Id. ¶ 41-43.

The Complaint states that HRW and its staff use U.S. telecommunications services to communicate with individuals, such as victims of or witnesses to human rights abuses, in these specified countries. Id. ¶¶ 44-45. HRW asserts that just the fact that communication with these individuals has occurred is often “extraordinarily sensitive” because these contacts “often fear for their physical safety” and the act of “contacting an international human rights organization, like HRW, can put them in harm’s way.” Id. ¶¶ 44-45. HRW communicates to individuals in the designated countries using HRW’s Verizon phone lines, staff members’ personal phone lines, and Internet-based platforms like Google Voice. Id. ¶ 46. From these supporting facts, HRW alleges that “Defendants obtained records of HRW’s communications to the Designated Countries as part of the Mass Surveillance Program.” Id. ¶ 47.

The Complaint claims that the telecommunications metadata, collected in bulk, provides the Government with the network of HRW’s sources, colleagues, and associates within the designated countries, which is information that HRW often considers sensitive and private. Id. ¶¶ 48-49. HRW asserts that even if the Government never queried or attempted to identify its

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 15-2573 PSG (JPRx)

Date August 14, 2015

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

contacts within the designated countries, “the fact that the government collects this information in the first place . . . burdens HRW’s ability to effectively communicate with people inside the Designated Countries” because HRW “cannot assure its associates abroad that their communications records will not be shared with American law enforcement[.]” Id. ¶¶ 50-51.

iv. The Second Patterson Declaration

The Patterson Declaration states that use of the database was suspended in September 2013, that it is no longer being queried for investigatory purposes, and that information is no longer being collected in bulk pursuant to 21 U.S.C. § 876. Patterson Decl. ¶ 6. However, the declaration is silent as to whether the Government retained the information contained in the database. In the Complaint, HRW highlights that the Government has not stated “that all information obtained through the Mass Surveillance Program, including HRW’s information, has been purged from Defendants’ systems.” Compl. ¶ 37. HRW specifically alleges that the Government has in fact “retain[ed] the information gathered pursuant to the Mass Surveillance Program[.]” Id. ¶ 55.

Along with its motion to dismiss for lack of subject jurisdiction, the Government submits a second declaration of Robert W. Patterson (“Second Patterson Declaration”). See Mot., Patterson Decl. [“Second Patterson Decl.]. In the Second Patterson Declaration, Patterson attests that, “[p]rior to April 7, 2015, the date of the Complaint in the [] case, the database has been purged of the collected data, and the database no longer exists.” Id. ¶ 3.

B. Procedural Background

On April 7, 2015, HRW filed this lawsuit against the Government on behalf of itself and its staff asserting that the Mass Surveillance Program violates its First Amendment associational rights and its Fourth Amendment right to be free from unlawful searches and seizures. Dkt. # 1. HRW does not request damages for past violations of its constitutional rights; instead, HRW requests the following forms of relief:

(1) A declaration that the Mass Surveillance Program violates HRW’s rights under the First and Fourth Amendments;

(2) An order enjoining the Government from continuing the Mass Surveillance Program;

(3)
CV-90 (10/08)

An order enjoining the Government from future search, use, or dissemination of HRW’s call records obtained through the Mass Surveillance Program;

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 15-2573 PSG (JPRx)

Date August 14, 2015

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

(4) An order requiring the Government to provide an inventory of HRW’s call records obtained through the Mass Surveillance Program;

(5) An order requiring the Government to purge all HRW’s call records obtained through the Mass Surveillance Program; and

(6) Attorneys’ fees and costs.

Id.

One month after filing the case, HRW filed a motion for expedited discovery to obtain more information about the Mass Surveillance Program. Dkt. # 19. The Court denied the motion on July 10, 2015. Dkt. # 31. While the motion for expedited discovery was pending, the Government moved to dismiss the case for lack of subject matter jurisdiction. Dkt. # 24. Along with its opposition brief, HRW filed a request for jurisdictional discovery and an evidentiary hearing. Dkt. # 33. The Government’s motion and HRW’s request are presently before the Court.

II. Legal Standard

Federal courts are of limited jurisdiction and limits upon federal jurisdiction must not be disregarded or evaded. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Accordingly, whoever invokes the court’s jurisdiction has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). This burden, at the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the court to assert subject matter jurisdiction over the action. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936). If the Court lacks subject matter jurisdiction, dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(1). Fed. R. Civ. P. 12(b)(1).

A jurisdictional attack under Rule 12(b)(1) may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir. 2004); Moon v. Rush, No. 2:11-cv-03102GEB-CKD, 2013 WL 4012828, *2 (E.D. Cal. Aug. 6, 2013). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air, 373 F.3d at 1039. In this review, the standards set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) apply in full force. See City of L.A. v. Citigroup Inc., 24 F. Supp. 3d 940, 945 (C.D. Cal. 2014). Thus, the court must accept the facts pled in the complaint as true and construe them in the light

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 15-2573 PSG (JPRx)

Date August 14, 2015

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

most favorable to the plaintiff. Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013). Courts also consider documents attached to the complaint when reviewing the sufficiency of pleading allegations, Hal Roach Studios v. Richard Reiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990), and “need not . . . accept as true allegations that contradict matters properly subject to judicial notice or exhibit,” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Additionally, the pleading standard requires the plaintiff to allege “plausible” liability, meaning the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[S]heer possibility” of liability is not enough. Id.

In a factual attack, “the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke jurisdiction,” and courts may consider evidence outside the pleadings. Safe Air, 373 F.3d at 1038-39. In this review, the court “need not presume the truthfulness of the allegations in the complaint.” City of L.A., 24 F. Supp. 3d at 945 (C.D. Cal. 2014) (citation omitted). If a challenger presents evidence to “attack the substance of a complaint’s jurisdictional allegations,” “[i]t then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction.” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). Accordingly, “[d]iscovery is necessary . . . if it is possible that the plaintiff can demonstrate the requisite jurisdictional facts if afforded that opportunity.” Id. (citing Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977)).

III. Discussion

The Government moves to dismiss HRW’s Complaint for lack of subject matter jurisdiction, arguing that HRW has failed to establish that it has standing to pursue its claims. The Government’s motion first asserts a facial attack, contending that even accepting the plausible allegations of the Complaint as true, HRW has not alleged facts sufficient to establish standing. Alternatively, the Government brings a factual attack on jurisdiction, offering evidence that the Government has already destroyed any information collected pursuant to the Mass Surveillance Program. The Court will outline the constitutional standing requirements then discuss the Government’s facial and factual jurisdictional challenges in turn.

A. Standing
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 15-2573 PSG (JPRx)

Date August 14, 2015

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

“Article III of the Constitution limits federal courts’ jurisdiction to certain ‘Cases’ and Controversies.’” Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138, 1146 (2013). As the Supreme Court has explained, “[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” DaimlerChrystler Corp. v. Cumo, 547 U.S. 332, 341 (2006). “‘One element of the case-or-controversy requirement’ is that plaintiffs ‘must establish that they have standing to sue.’” Amnesty, 133 S.Ct. at 1146 (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). “The law of Article III standing, which is built on separation of powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Id. (citations omitted).

“The ‘irreducible constitutional minimum of standing’ contains three requirements: injury in fact, causation, and redressability. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102-04 (1998) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). First, the plaintiff must allege an injury in fact – “a harm suffered by the plaintiff that is ‘concrete’ and ‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical.’” Id. at 103 (internal quotations omitted). “Second, there must be causation – a fairly traceable connection between the Plaintiff’s injury and the complained-of conduct of the defendant.” Id. (citations omitted). “And third, there must be redressability – a likelihood that the requested relief will redress the alleged injury.” Id. (citations omitted). The party invoking federal jurisdiction bears the burden of establishing standing. Id. at 104 (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990)).

B. Facial Attack on Standing

i. Injury in Fact

Because HRW does not seek damages, “it is not the presence or absence of a past injury that determines Article III standing.” Ervine v. Desert View Regional Med. Ctr. Holdings, LLC, 753 F.3d 862, 868 (9th Cir. 2014) (emphasis added). Rather, when seeking injunctive relief, it is the “imminent prospect of future injury” or an “ongoing violation” that creates standing. Id.; Steel Co., 523 U.S. at 108.

1. Past Collection of HRW Records

First, the Government argues that HRW has not pled that it suffered an injury in fact as a result of the Mass Surveillance Program because HRW has not plausibly alleged that its call records were ever collected pursuant to this Program. Mot. 8:6-9:7. The Government contends that HRW’s allegation that “Defendants obtained records of HRW’s communications to the Designated Countries as part of the Mass Surveillance Program,” see Compl. ¶ 47, is insufficient

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 15-2573 PSG (JPRx)

Date August 14, 2015

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

because it lacks supporting factual allegations that render the claim plausible, rather than merely possible. See Iqbal, 556 U.S. at 678. For example, the Government highlights that the Complaint and the attached Patterson Declaration do not identify the specific U.S. telecommunications companies that received administrative subpoenas under the Program or a time period during which the Government requested and collected call information. Mot. 8:179:2. The Court acknowledges that the Complaint does not contain such particularized pleadings as: HRW staff called individuals in Iran using Verizon lines in 2012; the Government issued subpoenas to Verizon for all 2012 Iranian call data; Verizon produced all 2012 Iranian call data to the Government; the Government obtained HRW’s 2012 Iranian call data. However, HRW’s allegation that the Government collected records of its communications to designated foreign countries pursuant to the Mass Surveillance Program is supported by some specific factual allegations that render this allegation plausible, rather than merely possible.

The Patterson Declaration states that the Government compiled a database “consisting of telecommunications metadata obtained from United States telecommunications service providers pursuant to administrative subpoenas served upon the service providers under the provisions of 21 U.S.C. § 876.” Patterson Decl. ¶ 4. The metadata “related to international phone calls originating in the United Sates and calling [] designated foreign countries, one of which was Iran, that were determined to have a demonstrated nexus to international drug trafficking and related criminal activities.” Id. The database could then “be used to query a telephone number where federal law enforcement officials had a reasonable articulable suspicion that the telephone number at issue was related to an ongoing federal criminal investigation.” Id. ¶ 5. From these factual representations, HRW alleges that the program collected call records for “all, or substantially all” telephone calls originating in the United States and terminating in the “designated countries” since at least 2011. Compl. ¶¶ 23, 25.

This allegation that “all, or substantially all” of these calls were collected necessarily embraces the more specific factual allegation that the Government issued subpoenas to all, or substantially all U.S. telecommunications companies to collect these calls. See Defenders of Wildlife, 504 U.S. at 561. “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’” Id. (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)); see also Bennett v. Spears, 520 U.S. 154, 167 (1997) (finding that plaintiffs who used a lake for irrigation sufficiently pled injury in fact by alleging that “the amount of available water [in the lake] will be reduced and that they will be adversely affected thereby” because “it is easy to presume specific facts under which petitioners will be injured – for example, the Bureau’s distribution of the reduction pro rata among its customers”). Moreover, HRW’s allegation that the Government collected call data on “all, or substantially all” calls is plausible. First, the Patterson Declaration did not

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 15-2573 PSG (JPRx)

Date August 14, 2015

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

contain language indicating that the Government targeted only some U.S. telecommunications providers, instead it stated broadly that metadata was “obtained from United States telecommunications service providers.” Patterson Decl. ¶ 4. Further, because the only criteria for collection were the involvement of certain initiating and receiving countries and the Program’s aim was to create a broad database for criminal investigation queries, it is not implausible that subpoenas would be issued to all U.S. telecommunications companies requesting all qualifying data so that the Government could compile a complete database to better serve the investigative query purpose.

HRW alleges that it used U.S. telecommunications companies, such as Verizon, to communicate with individuals in foreign countries with drug connections, such as Iran. See Compl. ¶¶ 29-30, 41-46.1 In light of the plausible allegation that nearly all such calls were collected pursuant to the Program, the pled facts regarding HRW’s telephone practices support the ultimate allegation that the Government did collect HRW’s call data, as directly alleged in the Complaint. Id. ¶ 47.

2. Factual Bases for Ongoing or Future Injury
The Government further argues that even if it did collect HRW’s call data as a part of its Mass Surveillance Program in the past, HRW does not plausibly allege that collection or use of the data is ongoing or imminently impending, as required to establish injury when seeking injunctive or declaratory relief. Mot. 9:8-10:5; see Ervine, 753 F.3d at 868; Steel Co., 523 U.S. at 108. According to the Patterson Declaration, which as an evidentiary exhibit properly incorporated into the Complaint, HRW cannot rewrite by conclusory allegation, the Government no longer collects, uses, or queries data amassed via the Mass Surveillance Program. Patterson Decl. ¶ 6. The allegation that the Government “will begin to collect” data again in the future, see Compl. ¶ 55, is entirely speculative and based only on the factual allegation that collection

1 The Government argues that HRW fails to allege that any of its staff members made calls to Iran, see Mot. 9:4-7, but, reading the Complaint in the light most favorable to HRW, the Complaint does assert that allegation. See Faulkner, 706 F.3d at 1019. In ¶ 41, HRW states that “HRW has dedicated experts monitoring and working to protect human rights in Iran.” Compl. ¶ 41. In ¶ 42, HRW alleges that it also has “experts researching and monitoring” eleven additional drug transit or drug producing countries, and identifies those countries. Id. ¶ 42. In the following paragraph, HRW states that “[u]sing U.S. telecommunications services, HRW and its staff communicate in the regular course of work with individuals within many of the Designated Countries, including those listed above[.]” Id. ¶ 43. Reading the reference to the countries “listed above” in the light most favorable to HRW, the Court interprets the phrase to include Iran (identified in ¶ 41) as well as the eleven additional countries (identified in ¶ 42).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 15-2573 PSG (JPRx)

Date August 14, 2015

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

has occurred in the past. However, the “likelihood of a future injury cannot be based solely on the defendant’s conduct in the past.” See Gordon v. City of Moreno Valley, 687 F. Supp. 2d 930, 938 (C.D. Cal. 2009) (internal quotation omitted) (emphasis in original). Thus, the Court agrees the HRW fails to allege a plausible injury based on the collection, use, search, or dissemination of its call data because the conclusory allegations that such conduct is ongoing or might occur in the future are contradicted by the Patterson Declaration or unsupported by other plausible factual allegations. See Reply 1:21-4:2.

However, under a facial jurisdictional analysis that does not consider the Second Patterson Declaration, HRW does plausibly allege that the Government has retained HRW’s call data that it collected in the past. The Patterson Declaration is silent as to whether the Government retained the information contained in the database. See generally Patterson Decl. In the Complaint, HRW notes that the Government has not stated “that all information obtained through the Mass Surveillance Program, including HRW’s information, has been purged from Defendants’ systems,” Compl. ¶ 37, and specifically alleges that the Government has in fact “retain[ed] the information gathered pursuant to the Mass Surveillance Program[.]” Id. ¶ 55. Thus, the retention of HRW’s call records is the only Government conduct available to support HRW’s argument that the Government is injuring it such that HRW has standing to bring its Fourth and First Amendment claims.

3. Fourth Amendment Injury

The Ninth Circuit has held that retention of unlawfully seized information constitutes a Fourth Amendment injury in fact for standing purposes. See Mayfield v. U.S., 599 F.3d 964, 969-71 (9th Cir. 2010). In Mayfield, the government unlawfully seized files from plaintiff’s home and made derivative materials from those files, but later returned the files and paid damages to plaintiff pursuant to a partial settlement. Id. at 966-68. The plaintiff brought suit for declaratory relief (a ruling that the government was violating the Fourth Amendment) and alleged standing based on the government’s “continued retention of derivative materials.” Id. at 968-69. “The district court determined that [plaintiff] alleged an ongoing injury by the very fact of the government’s retention of derivative [] materials” and the Ninth Circuit “agree[d] that [plaintiff] suffers an actual, ongoing injury” on that basis. Id. at 970-71. Accordingly, HRW’s allegation that the Government currently possesses unlawfully collected HRW call data, an allegation that the Court deems plausible based on the Complaint and Patterson Declaration, sufficiently pleads a Fourth Amendment injury in fact.

4. First Amendment Injury

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 15-2573 PSG (JPRx)

Date August 14, 2015

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

HRW also asserts that the Government’s conduct pursuant to the Mass Surveillance Program violates HRW’s First Amendment rights under an associational “chilling” theory – HRW alleges that “the fact that th[e] information remains within the Defendants’ possession to this day . . . substantially burdens HRW’s ability to effectively communicate with people inside the Designated Countries” because HRW “cannot assure its associates abroad that their communications records will not be shared with American law enforcement or the government of another country.” See Compl. ¶¶ 50-51. HRW’s alleged injury is that due to the retention of its call data, HRW’s contacts in the foreign designated countries, individuals who are “put in harm’s way” based on the “mere fact of contacting an international human rights organization,” will refuse to communicate with HRW, thus constricting HRW’s associational rights. Id. ¶ 45, 50-51; Mot. 14:2-16. The Government argues that this purported “chill” in communication is speculative and “cannot qualify as a concrete, actual, or immediate injury even for the purposes of a First Amendment claim” and also challenges this injury on causation grounds. See Mot. 14:17-15:22.

The Court does not reach the legal sufficiency of this claimed injury because HRW has not alleged this First Amendment injury with factual sufficiency. Injury in fact requires a harm that is “‘concrete’ and ‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical.’” Steel Co., 523 U.S. at 103 (internal quotations omitted). HRW does not provide any factual allegations that indicate that HRW’s chilled communication concern is actual and imminent rather than conjectural. For example, HRW does not allege that any of its contacts know about the Mass Surveillance Program or that they have ever refused to communicate with HRW due to the Government’s retention of collected telephone metadata pursuant to a Program that has been occurring for years. Without alleging any specific supporting facts, HRW’s statement that its “ability to effectively communicate with people inside the Designated Countries” has been burdened is a conclusory allegation that the Court does not accept. Moreover, the allegation that HRW “cannot assure its associates abroad that their communications records will not be shared” is implausible in light of the Patterson Declaration’s attestation that the Government is not currently using or querying the collected information. See Compl. ¶ 51; Patterson Decl. ¶ 6.

“A plaintiff must demonstrate standing ‘for each claim he seeks to press’ and for ‘each form of relief sought.’” Oregon v. Legal Servs. Corp., 552 F.3d 965, 969 (9th Cir. 2009) (quoting DaimlerChrystler, 547 U.S. at 352). The Court concludes that Plaintiff has sufficiently alleged a Fourth Amendment injury in fact in the Government’s retention of HRW’s call records, but not a First Amendment injury in fact. Accordingly, HRW lacks standing to assert its First Amendment claim as alleged in the operative Complaint.

ii. Causation

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 15-2573 PSG (JPRx)

Date August 14, 2015

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

In the remainder of the facial standing analysis, the Court will only address HRW’s claimed Fourth Amendment injury. To satisfy standing’s causation requirement, there must be a “fairly traceable connection between the Plaintiff’s injury and the complained-of conduct of the defendant.” Steel Co., 523 U.S. at 103 (citations omitted). The Government does not dispute that HRW’s alleged Fourth Amendment injury – retention of unlawfully seized call data – is fairly traceable to its collection and retention of that material pursuant to the Mass Surveillance Program. See Mot. 14:1-15:22; Opp. 11:1-6. The Court agrees that the Fourth Amendment injury is fairly traceable to the Government’s retention of HRW data seized pursuant to the Program.

iii. Redressability

“Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement.” Steel Co., 523 U.S. at 107. In the Court’s facial jurisdictional analysis, redressability is easily satisfied. The Court has determined that the Government’s retention of HRW’s call records is a Fourth Amendment injury fairly traceable to the Government’s Mass Surveillance Program. As one of its requested items of relief, HRW asks the Court to order the Government to “purge all Plaintiff’s call records obtained through the Mass Surveillance Program.” See Compl. 17:6-8. This request for injunctive relief would remedy the alleged Fourth Amendment injury. See Mayfield, 599 F.3d at 972 (where the injury is retention of unlawfully seized materials, “the only relief that would redress this Fourth Amendment violation is an injunction requiring the government to return or destroy such materials”). Accordingly, HRW has satisfied the redressability requirement of constitutional standing for its Fourth Amendment claim.

C. Factual Attack on Standing

The Court’s assessment of standing is very different if the Court conducts a factual, rather than a facial, analysis of HRW’s injury and the redressability of the injury. With its motion to dismiss for lack of subject matter jurisdiction, the Government submitted the Second Patterson Declaration, a piece of evidence that discloses information about the Mass Surveillance Program beyond that contained in the original Patterson Declaration attached to HRW’s Complaint. See Second Patterson Decl. In the new declaration, Patterson attests that when the use of the database containing the telephone metadata was suspended in September 2013, the data was quarantined. Id. ¶ 3. Further, prior to April 7, 2015, the date HRW filed this lawsuit, “the database had been purged of the collected data, and the database no longer exists.” Id. Thus, the Government has submitted evidence that HRW’s collected data is no longer being retained and its requested injunctive relief as to this data has already been performed. If the Government is no longer collecting, searching, using, or disseminating HRW’s call data, and it is also no longer

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 15-2573 PSG (JPRx)

Date August 14, 2015

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

retaining HRW’s call data, HRW is not suffering a Fourth Amendment injury capable of supporting its claims for injunctive and declaratory relief.

HRW first attacks the impact of the Government’s new evidence, arguing that the Second Patterson Declaration does not establish that HRW’s records have been purged from the Government’s files because it only addresses the records contained in one database, and does not state that HRW’s records were contained in that database. See Opp.16:8-17:5. Moreover, even if that database were the only database or was the one that contained HRW’s records, HRW contends that copies of HRW’s records or derivative material generated from the database prior to its purging could exist elsewhere. Id. 17:6-19:7. The Court is not persuaded by these speculative arguments. The Second Patterson Declaration directly responds to the only plausible, specifically asserted injury in the Complaint – that the federal law enforcement database identified in the Patterson Declaration as a repository of telephone metadata on calls between the U.S. and drug-related foreign countries contains HRW call data, and that that database still exists.2 Thus, the Second Patterson Declaration is an evidentiary showing that, unrebutted, would destroy HRW’s standing and deprive the Court of jurisdiction to hear this case. If HRW intends to rebut or undermine the showing, it must respond by “present[ing] affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction.” St. Clair, 880 F.2d at 201.

HRW was unable to offer evidence that the Government still retains its call records in other forms or in other repositories in its opposition brief. HRW cites to various government filings in the Hassanshahi case, the criminal case in which the Patterson Declaration was originally filed, in an effort to expose “inconsistencies” in the way the Government discussed the Program. See Opp. 20:3-21:10. The “inconsistencies” are inconsequential. Documents suggesting that other agencies could access the DEA database or that the database was sometimes referred to as a “database component” do not demonstrate that the Government made copies of the subpoenaed call data or maintained the information in multiple databases, the jurisdictional rebuttal fact that HRW intends to prove. Rumold Decl., Ex. 1-3; see also Reply 8:10-28. HRW also cites to online news articles from USA Today and The Intercept discussing a governmental call data collection program, see Rumold Decl., Ex. 4-5, but these secondhand news reports are not admissible evidence of the Government’s practices under the Mass Surveillance Program and cannot “not raise a genuine dispute of material fact regarding retention of metadata relating to Plaintiff.” See Reply 9:3-4.

2 Although the Complaint states that the information was retained and stored by the Government in “one or more” databases, see Compl. ¶ 34, the Patterson Declaration consistently references a single database, Patterson Decl. ¶¶ 1, 3-6, and the allegation that additional databases might exist is conclusory and unsupported by any specific factual allegations.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 15-2573 PSG (JPRx)

Date August 14, 2015

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

Instead, HRW’s primary response to the Government’s factual attack on standing is that HRW should be afforded the opportunity to conduct discovery regarding the challenged issue of retention of HRW’s call records, so that it can respond to the Government’s showing in the Second Patterson Declaration with credible, admissible evidence. See Opp. 23:7-24:20; Pl. Request ¶¶ 1-3. “[I]f it is possible that the plaintiff can demonstrate the requisite jurisdictional facts if afforded th[e] opportunity” for jurisdictional discovery, “[d]iscovery is necessary.” St. Clair, 880 F.2d at 201 (citation omitted); see also Gordon, 687 F. Supp. 2d at 940-41 (refraining from ruling on whether plaintiffs faced the imminent threat of future injury in the form of additional “raid-style” inspections at their barbershops “while the parties engage in jurisdictional discovery related solely to whether it can be established that these raid-style inspections of local barberships in Moreno Valley are part of some policy or program of the City, County, and/or the Board”).

In HRW’s request for discovery and an evidentiary hearing, HRW seeks three forms of discovery: (1) copies of subpoenas issued to telecommunications carriers; (2) names of government agencies that have accessed records through the Program; and (3) a deposition of Patterson. See Pl. Request ¶ 3. Only the third discovery request directly targets information that could undermine the Government’s evidentiary showing that HRW’s collected records have been purged. The Court agrees that some limited discovery directed toward the Government is warranted because such discovery could possibly provide HRW with jurisdictional evidence suggesting that the Government still possesses HRW’s call records in some form. Accordingly, the Court will allow HRW the opportunity to conduct limited discovery on this issue.

However, a deposition of Patterson is not the most narrowly tailored mechanism to uncover the whether the Government continues to retain HRW’s call records. Instead, the Court will allow HRW to serve a limited number of interrogatories on the Government. Moreover, the scope of issues that HRW identifies in its request for jurisdictional discovery is overly broad. The Court limits the interrogatory topics to the following issues: (1) whether the Government retains call records in repositories other than the purged database; and (2) whether the Government retains Program call records in derivative forms. Accordingly, the Court orders that HRW is permitted to serve no more than five interrogatories on the Government regarding these two issues.

IV. Conclusion

For the foregoing reasons, the Court HOLDS IN ABEYANCE ruling on the Government’s motion to dismiss for lack of subject matter jurisdiction and GRANTS IN PART HRW’s request for discovery. The Court orders that HWR may serve no more than five

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 15-2573 PSG (JPRx)

Date August 14, 2015

Title

Human Rights Watch v. Drug Enforcement Agency, et al.

interrogatories on the Government. The timing of this limited discovery shall proceed as follows:

Deadline for HRW to serve interrogatories:

September 11, 2015

Deadline for the Government’s responses:

October 13, 2015

Deadline for HRW’s supplemental briefing: Deadline for the Government’s response briefing:3

November 9, 2015 November 23, 2015

HRW’s request for discovery is otherwise denied. The Court will not rule on HRW’s request for an evidentiary hearing at this point. After reviewing the evidence and arguments submitted to the Court in the supplemental and response briefing, the Court will determine whether an evidentiary hearing is necessary.

IT IS SO ORDERED.

3 Each additional brief cannot exceed ten (10) pages in length and must be formatted in accordance with the Local Rules.

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 </s> Case: 2:15-cv-2573 As of: 10/21/2018 07:17 PM PDT 1 of 7
ACCO,(JPRx),CLOSED,DISCOVERY,MANADR
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division − Los Angeles)
CIVIL DOCKET FOR CASE #: 2:15−cv−02573−PSG−JPR

Human Rights Watch v. Drug Enforcement Administration et al Assigned to: Judge Philip S. Gutierrez Referred to: Magistrate Judge Jean P. Rosenbluth Cause: 46:1156 Administrative Procedure Act
Plaintiff

Date Filed: 04/07/2015 Date Terminated: 12/16/2015 Jury Demand: Plaintiff Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Human Rights Watch

represented by Andrew Crocker Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: andrew@eff.org ATTORNEY TO BE NOTICED

David Allen Greene Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: davidg@eff.org ATTORNEY TO BE NOTICED

Hanni Meena Fakhoury Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: hanni@eff.org TERMINATED: 10/28/2015 ATTORNEY TO BE NOTICED

Jamie L Williams Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: jamie@eff.org ATTORNEY TO BE NOTICED

Kurt B Opsahl Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: kurt@eff.org ATTORNEY TO BE NOTICED

Nathan Daniel Cardozo Electronic Frontier Foundation 815 Eddy Street

Case: 2:15-cv-2573 As of: 10/21/2018 07:17 PM PDT 2 of 7
San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: nate@eff.org ATTORNEY TO BE NOTICED
Tze Lee Tien Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: tien@eff.org ATTORNEY TO BE NOTICED
Mark Rumold Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: mark@eff.org ATTORNEY TO BE NOTICED

V. Defendant Drug Enforcement Administration
Defendant Michele Leonhart in her official capacity as Administrator of DEA
Defendant Federal Bureau of Investigation
Defendant James Comey in his official capacity as Director of the FBI
Defendant Department of Justice

represented by Kathryn L Wyer United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW, Room 7124 Washington, DC 20530 202−616−8475 Email: kathryn.wyer@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kathryn L Wyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kathryn L Wyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kathryn L Wyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kathryn L Wyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:15-cv-2573 As of: 10/21/2018 07:17 PM PDT 3 of 7

Defendant Eric Holder in his official capacity as Attorney General
Defendant Department of Homeland Security
Defendant Jeh Johnson in his official capacity as Secretary of the Dept. of Homeland Security
Defendant United States of America
Defendant Does 1−100

represented by Kathryn L Wyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kathryn L Wyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kathryn L Wyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kathryn L Wyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kathryn L Wyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/07/2015
04/07/2015 04/07/2015 04/07/2015 04/07/2015 04/07/2015 04/07/2015 04/07/2015
04/10/2015

# Docket Text
1 COMPLAINT Receipt No: 0973−15506341 − Fee: $400, filed by Plaintiff Human Rights Watch. (Attachments: # 1 Exhibit A) (Attorney Mark Rumold added to party Human Rights Watch(pty:pla))(Rumold, Mark) (Entered: 04/07/2015)
2 CIVIL COVER SHEET filed by Plaintiff Human Rights Watch. (Rumold, Mark) (Entered: 04/07/2015)
3 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening) 1 filed by Plaintiff Human Rights Watch. (Rumold, Mark) (Entered: 04/07/2015)
4 CERTIFICATE of Interested Parties filed by Plaintiff Human Rights Watch, (Rumold, Mark) (Entered: 04/07/2015)
5 CORPORATE DISCLOSURE STATEMENT filed by Plaintiff Human Rights Watch identifying none as Corporate Parent. (Rumold, Mark) (Entered: 04/07/2015)
6 NOTICE OF ASSIGNMENT to District Judge Philip S. Gutierrez and Magistrate Judge Jean P. Rosenbluth. (et) (Entered: 04/07/2015)
7 NOTICE TO PARTIES OF COURT−DIRECTED ADR PROGRAM filed. (et) (Entered: 04/07/2015)
8 60 DAY Summons Issued re Complaint (Attorney Civil Case Opening) 1 as to Defendants James Comey, Department of Homeland Security, Department of Justice, Drug Enforcement Administration, Federal Bureau of Investigation, Eric Holder, Jeh Johnson, Michele Leonhart, United States of America. (et) (Entered: 04/07/2015)
9 STANDING ORDER REGARDING NEWLY ASSIGNED CASES by Judge Philip S. Gutierrez. (ji) (Entered: 04/10/2015)

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04/15/2015
05/04/2015 05/04/2015 05/04/2015 05/05/2015
05/06/2015 05/06/2015 05/06/2015 05/07/2015 05/07/2015 05/11/2015 05/11/2015

10 PROOF OF SERVICE Executed by Plaintiff Human Rights Watch, upon Defendant James Comey served on 4/15/2015, answer due 6/14/2015; Department of Homeland Security served on 4/15/2015, answer due 6/14/2015; Department of Justice served on 4/15/2015, answer due 6/14/2015; Drug Enforcement Administration served on 4/15/2015, answer due 6/14/2015; Federal Bureau of Investigation served on 4/15/2015, answer due 6/14/2015; Eric Holder served on 4/15/2015, answer due 6/14/2015; Jeh Johnson served on 4/15/2015, answer due 6/14/2015; Michele Leonhart served on 4/15/2015, answer due 6/14/2015; United States of America served on 4/15/2015, answer due 6/14/2015. Service of the Summons and Complaint were Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons returned. (Rumold, Mark) (Entered: 04/15/2015)
11 ***STRICKEN ON 05/06/2015*** NOTICE OF MOTION AND MOTION to Expedite Discovery filed by Plaintiff Human Rights Watch. Motion set for hearing on 6/22/2015 at 01:30 PM before Judge Philip S. Gutierrez. (Attachments: # 1 Memorandum, # 2 Proposed Order)(Rumold, Mark) Modified on 5/6/2015 (dgon). (Entered: 05/04/2015)
12 NOTICE of Appearance filed by attorney Jamie L Williams on behalf of Plaintiff Human Rights Watch (Attorney Jamie L Williams added to party Human Rights Watch(pty:pla))(Williams, Jamie) (Entered: 05/04/2015)
13 NOTICE of Appearance filed by attorney Andrew Crocker on behalf of Plaintiff Human Rights Watch (Attorney Andrew Crocker added to party Human Rights Watch(pty:pla))(Crocker, Andrew) (Entered: 05/04/2015)
14 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: MOTION to Expedite Discovery 11 . The following error(s) was found: Hearing information is missing, incorrect, or not timely. Other error(s) with document(s) are specified below: Hearing is noticed for a date that is closed on the court's calendar. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (bm) (Entered: 05/05/2015)
15 PROOF OF SERVICE filed by Plaintiff Human Rights Watch, re Notice of Deficiency in Electronically Filed Documents (G−112A),, 14 served on May 6, 2015. (Rumold, Mark) (Entered: 05/06/2015)
16 REQUEST to Expedite Hearing Date filed by Plaintiff Human Rights Watch. (Attachments: # 1 Proposed Order)(Rumold, Mark) (Entered: 05/06/2015)
17 ORDER by Judge Philip S. Gutierrez: the following document be STRICKEN for failure to comply with the Local Rules, General Order and/or the Courts Case Management Order: MOTION to Expedite Discovery 11 , for the following reasons: Hearing information is missing, incorrect, or not timely. The hearing date selected was closed on 5/1/15 as to any new motions. (dgon) (Entered: 05/06/2015)
18 PROOF OF SERVICE filed by Plaintiff Human Rights Watch, re Striking Electronically Filed Documents (G−106), 17 served on May 7, 2015. (Rumold, Mark) (Entered: 05/07/2015)
19 NOTICE OF MOTION AND MOTION to Expedite Discovery filed by Plaintiff Human Rights Watch. Motion set for hearing on 7/13/2015 at 01:30 PM before Judge Philip S. Gutierrez. (Attachments: # 1 Memorandum, # 2 Proposed Order)(Rumold, Mark) (Entered: 05/07/2015)
20 ORDER SETTING HEARING DATE 16 by Judge Philip S. Gutierrez: On May 6, 2015, Plaintiff Human Rights Watch filed a Request for Expedited Hearing on its pending Motion for Expedited Discovery (ECF No. 11). After full consideration and with good cause appearing:(Please see attached document fur further details and dates.) (dgon) (Entered: 05/11/2015)
21 Joint REQUEST to Vacate Order on Request to Expedite, 20 Setting July 6 Hearing Date, Joint REQUEST to Reschedule Hearing to July 13, 2015 filed by Defendants James Comey, Department of Homeland Security, Department of Justice, Does, Drug Enforcement Administration, Federal Bureau of Investigation, Eric Holder, Jeh

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05/12/2015 05/13/2015
06/15/2015 06/22/2015 06/29/2015 07/07/2015 07/08/2015 07/08/2015

Johnson, Michele Leonhart, United States of America. (Attachments: # 1 Proposed Order)(Attorney Kathryn L Wyer added to party James Comey(pty:dft), Attorney Kathryn L Wyer added to party Department of Homeland Security(pty:dft), Attorney Kathryn L Wyer added to party Department of Justice(pty:dft), Attorney Kathryn L Wyer added to party Does(pty:dft), Attorney Kathryn L Wyer added to party Drug Enforcement Administration(pty:dft), Attorney Kathryn L Wyer added to party Federal Bureau of Investigation(pty:dft), Attorney Kathryn L Wyer added to party Eric Holder(pty:dft), Attorney Kathryn L Wyer added to party Jeh Johnson(pty:dft), Attorney Kathryn L Wyer added to party Michele Leonhart(pty:dft), Attorney Kathryn L Wyer added to party United States of America(pty:dft))(Wyer, Kathryn) (Entered: 05/11/2015)
22 OPPOSITION to REQUEST to Expedite Hearing Date 16 (Pursuant to Deadline Identified in Joint Proposed Stipulation) filed by Defendants James Comey, Department of Homeland Security, Department of Justice, Does, Drug Enforcement Administration, Federal Bureau of Investigation, Eric Holder, Jeh Johnson, Michele Leonhart, United States of America. (Attachments: # 1 Proposed Order)(Wyer, Kathryn) (Entered: 05/12/2015)
23 ORDER ON JOINT PROPOSED STIPULATION VACATING JULY 6 HEARING DATE AND RESETTING HEARING FOR JULY 13, 2015 19 by Judge Philip S. Gutierrez: The parties Joint Proposed Stipulation and Order Vacating July 6 HearingDate and Resetting Hearing for July 13 is hereby APPROVED. The currently scheduled hearing date of July 6, 2015, on Plaintiffs Motion for ExpeditedDiscovery is hereby VACATED, and the hearing is RESET for July 13, 2015,pending further consideration of Plaintiffs Request for Expedited Considerationand Defendants opposition thereto. Defendants shall file a response to Plaintiffs Request for Expedited Consideration on or before May 12, 2015. IT IS SO ORDERED. (ab) (Entered: 05/13/2015)
24 NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction filed by defendants James Comey, Department of Homeland Security, Department of Justice, Does, Drug Enforcement Administration, Federal Bureau of Investigation, Eric Holder, Jeh Johnson, Michele Leonhart, United States of America. Motion set for hearing on 8/17/2015 at 01:30 PM before Judge Philip S. Gutierrez. (Attachments: # 1 Memorandum, # 2 Declaration of Robert W. Patterson, # 3 Proposed Order)(Wyer, Kathryn) (Entered: 06/15/2015)
25 MEMORANDUM in Opposition to MOTION to Expedite Discovery 19 filed by Defendants James Comey, Department of Homeland Security, Department of Justice, Does, Drug Enforcement Administration, Federal Bureau of Investigation, Eric Holder, Jeh Johnson, Michele Leonhart, United States of America. (Attachments: # 1 Proposed Order)(Wyer, Kathryn) (Entered: 06/22/2015)
26 REPLY in Support of MOTION to Expedite Discovery 19 filed by Plaintiff Human Rights Watch. (Rumold, Mark) (Entered: 06/29/2015)
27 REQUEST to Continue Hearing on Plaintiff's Motion for Expedited Discovery from July 13, 2015 to August 17, 2015 Re: MOTION to Expedite Discovery 19 filed by defendants James Comey, Department of Homeland Security, Department of Justice, Does, Drug Enforcement Administration, Federal Bureau of Investigation, Eric Holder, Jeh Johnson, Michele Leonhart, United States of America. Request set for hearing on 8/17/2015 at 01:30 PM before Judge Philip S. Gutierrez. (Attachments: # 1 Proposed Order) (Wyer, Kathryn) (Entered: 07/07/2015)
28 OPPOSITION to REQUEST to Continue Hearing on Plaintiff's Motion for Expedited Discovery from July 13, 2015 to August 17, 2015 Re: MOTION to Expedite Discovery 19 27 filed by Plaintiff Human Rights Watch. (Attachments: # 1 Proposed Order)(Rumold, Mark) (Entered: 07/08/2015)
29 REPLY in support of REQUEST to Continue Hearing on Plaintiff's Motion for Expedited Discovery from July 13, 2015 to August 17, 2015 Re: MOTION to Expedite Discovery 19 27 filed by Defendants James Comey, Department of Homeland Security, Department of Justice, Does, Drug Enforcement Administration, Federal Bureau of Investigation, Eric Holder, Jeh Johnson, Michele Leonhart, United States of America. (Wyer, Kathryn) (Entered: 07/08/2015)

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07/09/2015 07/10/2015 07/27/2015 07/27/2015 08/03/2015 08/03/2015 08/05/2015 08/13/2015 08/14/2015
10/13/2015 10/14/2015

30 DENIED BY ORDER OF THE COURT re DEFENDANTS' REQUEST TO CONTINUE HEARING ON PLAINTIFF'S MOTION FOR EXPEDITED DISCOVERY AND COMBINE IT WITH HEARING ON DEFENDANTS' MOTION TO DISMISS 27 by Judge Philip S. Gutierrez. (lom) (Entered: 07/09/2015)
31 MINUTE ORDER (In Chambers): Order DENYING Plaintiff's Motion for Expedited Discovery 19 by Judge Philip S. Gutierrez. For the foregoing reasons, the Court DENIES Plaintiff's motion for leave to conduct expedited discovery. IT IS SO ORDERED. (lom) (Entered: 07/10/2015)
32 MEMORANDUM in Opposition to MOTION to Dismiss for Lack of Jurisdiction 24 filed by Plaintiff Human Rights Watch. (Attachments: # 1 Declaration of Mark Rumold)(Rumold, Mark) (Entered: 07/27/2015)
33 REQUEST for Hearing Evidentiary and Discovery filed by Plaintiff Human Rights Watch. (Attachments: # 1 Proposed Order) (Rumold, Mark) (Entered: 07/27/2015)
34 REPLY in support of MOTION to Dismiss for Lack of Jurisdiction 24 filed by Defendants James Comey, Department of Homeland Security, Department of Justice, Does, Drug Enforcement Administration, Federal Bureau of Investigation, Eric Holder, Jeh Johnson, Michele Leonhart, United States of America. (Wyer, Kathryn) (Entered: 08/03/2015)
35 OPPOSITION in opposition to re: REQUEST for Hearing Evidentiary and Discovery 33 filed by Defendants James Comey, Department of Homeland Security, Department of Justice, Does, Drug Enforcement Administration, Federal Bureau of Investigation, Eric Holder, Jeh Johnson, Michele Leonhart, United States of America. (Attachments: # 1 Proposed Order)(Wyer, Kathryn) (Entered: 08/03/2015)
36 REPLY in Support of REQUEST for Hearing Evidentiary and Discovery 33 filed by Plaintiff Human Rights Watch. (Rumold, Mark) (Entered: 08/05/2015)
37 TEXT ONLY ENTRY IN CHAMBERS by Judge Philip S. Gutierrez: DEFENDANTS' MOTION TO DISMISS 24 set for hearing on 08/17/15 is taken under submission and off calendar. Accordingly, no appearance by counsel is necessary. The Court will issue a ruling after full consideration of the submitted pleadings.THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (wm) TEXT ONLY ENTRY (Entered: 08/13/2015)
38 MINUTES (IN CHAMBERS) Order HOLDING IN ABEYANCE Ruling on the Motion to Dismiss and GRANTING IN PART Plaintiff's Request for Discovery by Judge Philip S. Gutierrez granting in part 33 REQUEST: For the foregoing reasons, the Court HOLDS IN ABEYANCE ruling on the Government's motion to dismiss for lack of subject matter jurisdiction and GRANTS IN PART HRWs request for discovery. The Court orders that HWR may serve no more than five interrogatories on the Government. The timing of this limited discovery shall proceed as follows: Deadline for HRW to serve interrogatories: September 11, 2015; Deadline for the Government's responses: October 13, 2015; Deadline for HRW's supplemental briefing: November 9, 2015; Deadline for the Government's response briefing:3 November 23, 2015; HRW's request for discovery is otherwise denied. The Court will not rule on HRW's request for an evidentiary hearing at this point. After reviewing the evidence and arguments submitted to the Court in the supplemental and response briefing, the Court will determine whether an evidentiary hearing is necessary. (see document for further details) (bm) (Entered: 08/14/2015)
39 Joint STIPULATION for Extension of Time to File Supplemental Briefing and serve Interrogatory Responses filed by defendants James Comey, Department of Homeland Security, Department of Justice, Does, Drug Enforcement Administration, Federal Bureau of Investigation, Eric Holder, Jeh Johnson, Michele Leonhart, United States of America. (Attachments: # 1 Proposed Order)(Wyer, Kathryn) (Entered: 10/13/2015)
40 ORDER ON PROPOSED STIPULATION TO EXTEND REMAINING DEADLINES SET FORTH IN COURTS AUGUST 14, 2015 ORDER by Judge Philip S. Gutierrez, re Stipulation for Extension of Time to File, 39 : The parties' Joint Proposed Stipulation and Order to Extend the Remaining Deadlines set forth in the Courts August 14, 2015 Order is hereby APPROVED. The remaining deadlines are hereby extended as follows: Deadline for the Government's interrogatory responses: October 20, 2015; Deadline for HRW's supplemental briefing: November 16, 2015; Deadline

Case: 2:15-cv-2573 As of: 10/21/2018 07:17 PM PDT 7 of 7

10/28/2015
11/13/2015 11/18/2015
11/30/2015 12/02/2015
12/14/2015 12/16/2015

for the Governments response briefing: December 2, 2015; IT IS SO ORDERED (bm) (Entered: 10/14/2015)
41 Notice of Appearance or Withdrawal of Counsel: for attorney Hanni Meena Fakhoury counsel for Plaintiff Human Rights Watch. Hanni M. Fakhoury is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by Plaintiff Human Rights Watch. (Fakhoury, Hanni) (Entered: 10/28/2015)
42 Joint STIPULATION for Extension of Time to File Supplemental Briefing filed by plaintiff Human Rights Watch. (Attachments: # 1 Proposed Order)(Rumold, Mark) (Entered: 11/13/2015)
43 ORDER ON STIPULATION TO EXTEND REMAINING DEADLINES by Judge Philip S. Gutierrez, re Stipulation for Extension of Time to File 42 : The deadlines for supplemental briefing are continued and reset as follows: Deadline for HRW's supplemental briefing: November 30, 2015; Deadline for the Government's response briefing: January 6, 2015 (bm) (Entered: 11/19/2015)
44 Joint STIPULATION for Extension of Time to File SUPPLEMENTAL BRIEF filed by PLAINTIFF Human Rights Watch. (Attachments: # 1 Proposed Order)(Rumold, Mark) (Entered: 11/30/2015)
45 ORDER ON JOINT STIPULATION TO EXTEND PLAINTIFF'S DEADLINE 44 by Judge Philip S. Gutierrez. The parties' Joint Stipulation to Extend Plaintiff's Deadline is hereby APPROVED.The deadlines for supplemental briefing are continued and reset as follows: Deadline for HRW's supplemental briefing: December 14, 2015; Deadline for the Government's response briefing: January 15, 2016. (lom) (Entered: 12/02/2015)
46 NOTICE of Voluntary Dismissal filed by PLAINTIFF Human Rights Watch. Dismissal is without prejudice. (Rumold, Mark) (Entered: 12/14/2015)
47 NOTICE OF VOLUNTARY DISMISSAL; ORDER by Judge Philip S. Gutierrez, re Notice of Voluntary Dismissal of an Action (Pursuant to FRCP 41a(1)) 46 : NOTE CHANGES MADE BY THE COURT. (Made JS−6. Case Terminated.) (bm) (Entered: 12/16/2015)


[CONTENT] April 7, 2015 | Human Rights Watch | HRW | the U.S. District Court | the Central District | California ||| the Administrative Procedures Act | the Drug Enforcement Administration | DEA | the Federal Bureau of Investigation | FBI ||| the Electronic Frontier Foundation | DEA | HRW | First Amendment | Fourth Amendment ||| HRW | DEA | early as the 1990s ||| HRW | DEA | January 2015 | HRW ||| HRW | the United States | Designated Countries ||| HRW | DEA | DHS | FBI ||| HRW | Designated Countries | HRW | HRW ||| HRW | First Amendment and Fourth Amendment ||| June 15, 2015 | the Department of Justice | HRW ||| August 14, 2015 | Philip S. Gutierrez ||| Gutierrez | HRW | HRW ||| December 14, 2015 | HRW ||| Two days later | Gutierrez [SUMMARY] On April 7, 2015, Human Rights Watch (HRW), a non-partisan, non-profit human rights organization, filed this lawsuit in the U.S. District Court for the Central District of California. The plaintiff sued under the Administrative Procedures Act against the Drug Enforcement Administration (DEA) and the Federal Bureau of Investigation (FBI). The plaintiff, represented by the Electronic Frontier Foundation, asked the court for declaratory and injunctive relief claiming that a mass surveillance program conducted by the DEA violated the HRW and its staff's First Amendment free speech and free association rights as well as their Fourth Amendment right to be free of unreasonable searches and seizures.

Specifically, HRW alleged that the DEA had been engaged in a secret mass surveillance program as early as the 1990s. HRW noted that the DEA acknowledged the existence of this program in a declaration filed in January 2015 for a separate case (included as an exhibit in HRW's complaint). According to HRW, the surveillance program indiscriminately swept in call records for calls between the United States and "Designated Countries" that are "determined to have a 'demonstrated nexus to international drug trafficking and related criminal activities.' " HRW alleged that these call records were recorded in databases, which were then made accessible to the officers and employees of the DEA, DHS, and FBI. HRW claimed that during the course of its work, it communicated with individuals in Designated Countries, and that the surveillance program put HRW's contacts at risk and burdened HRW's human rights advocacy efforts. HRW alleged that the defendants violated its First Amendment and Fourth Amendment rights, and requested declaratory and injunctive relief and reasonable attorneys' fees.

On June 15, 2015, the defendants, represented by an attorney from the Department of Justice, moved to dismiss the case for lack of subject matter jurisdiction, arguing that HRW failed to establish that it has standing to pursue its claims. On August 14, 2015, Judge Philip S. Gutierrez issued an order holding in abeyance ruling on the defendants' motion. Judge Gutierrez determined that HRW should be allowed an opportunity to conduct discovery to respond to the defendants' attack on standing, and authorized HRW to serve a limited number of interrogatories on the defendants.

On December 14, 2015, HRW filed for voluntary dismissal without prejudice, as the defendants had provided additional information through discovery concerning the destruction of call records collected in bulk. Two days later, Judge Gutierrez submitted an order dismissing the case without prejudice.   