Surveillance

• Pages: 93-95

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by resort to immune property.” Finally, the court

noted that “California enforcement law authorizes a

court to `order the judgment debtor to assign to the

judgment creditor all or part ofa right to payment

due or to become due,whether or not the right is

conditioned on future developments.’”Id.at 1130-

31 (quoting Cal. Civ. Proc. Code § 708.510(a)).

Because the FSIA fails to provide a method

for enforcement, California law applies to this

proceeding and, under California law, money

owed to Bank Melli may be assigned to judgment

creditors. e fact that Bank Melli is not yet in

physical possession of the funds is immaterial.

“Bank Melli has set forth numerous arguments

why it should not be liable for Iran’s debt. But this

is an arena in which Congress has spoken with

unmistakable clarity. Section 201 of the TRIA and

28 U.S.C. § 1610(g) permit victims of terrorism to

collect money they’re owed from instrumentalities

of the state that sponsored the attacks. Nothing in

the text of the FSIA, Rule 19 or the Supreme Court’s

retroactivity cases compels a dierent result.”

In conclusion, the district court correctly

denied Bank Melli’s motion to dismiss.

citation: Bennett v. Islamic Republic of Iran,

799 F.3d 1281 (9th Cir. 2015).

SURVEILLANCE

Second Circuit considers the effect of

the intervening USA Freedom Act on the

Government’s bulk telephone metadata

collection program; in prior case on

the merits, the Court had held that

the USA Patriot Act does not authorize

such data collection

In ACLU v. Clapper 785 F.3d 787 (2nd Cir.

2015), the Court held that the bulk telephone

metadata collection program under which the

National Security Agency (“NSA”) collects

metadata about telephone calls made by and to

Americans, and aggregates those metadata into

a repository that can later be queried, was not

authorized by provisions of the USA Patriot Act

(“Patriot Act”). Subsequent to this decision the

Congress passed the USA Freedom Act (“Freedom

Act”). Even though the Freedom Act eectively put

an end to the telephone metadata program and

created an alternative program, it also provided for

a 180-day transition period.

is case dates back to June 11, 2013, when

the appellants in this matter, the American Civil

Liberties Union and American Civil Liberties

Union Foundation (collectively, “ACLU”) and the

New York Civil Liberties Union and New York

Civil Liberties Union Foundation (collectively,

“NYCLU”) sued the government ocials

responsible for administering the telephone

metadata program, challenged the program on

both statutory and constitutional grounds and

sought declaratory and injunctive relief. In their

complaint the appellants asked the court to declare

that the telephone metadata program exceeded the

authority granted by § 215 of the Patriot Act, and

violated the First and Fourth Amendments to the

U.S. Constitution.

Reasoning that if the Congress had intended to

authorize bulk collection of virtually all metadata

associated with telephone calls made by and

to Americans, it would have done so explicitly,

the Court held that § 215 of the Patriot Act

did not authorize the bulk telephone metadata

program. Furthermore, the Court reasoned that

“[t]he collection of these call detail records was

not ‘relevant’ to authorized counterterrorism

investigation by the government under 50 U.S.C.

§ 1861(b)(2)(A), and thus, the telephone metadata

program exceeded the authority granted by FISA.

Clapper, 785 F.3d at 81819, 826.”

During the pendency of the litigation the

Appellants moved for a preliminary injunction to

bar the government from collecting Appellants’ call

records under the telephone metadata program,

to require the government to quarantine all of

Appellants’ call records already collected under the

program, and to prohibit the government from

querying metadata obtained through the program

using any phone number or other identier

associated with them.