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..•

OR\G\NAL
'

ELECTRONIC FRONTIER FOUNDATION 2 CINDY COHN (145997)

cindy@eff.org 3 LEE TIEN (148216)

4

tien@eff.org KURT OPSAHL (191303)

5 kurt@eff.org
KEVIN S. BANKSTON (217026) 6 b~ston@eff.org

CORYNNE MCSHERRY (221504) 7 corynne@eff.org

8 JAMES S. TYRE (083117) jstyre@eff.org

9 454 Shotwell Street

\

San Francisco, CA 94110

10 Telephone: 415/436-9333

11 415/436-9993 (fax)

12

TRABER & VOORHEES BERT VOORHEES (137623)

13

bv@tvlegal.com THERESA M. TRABER (116305)

14

tmt@tv1egal.com 128 North Fair Oaks Avenue, Suite 204

15

Pasadena, CA 91103 Telephone: 626/585-9611

16 626/577·7079 (fax)

JCS

:C 17 Attorneys for Plaintiffs

.

18 [Additional counsel appear on signature page.

06

0672~

19

UNITED STATES DISTRICT COURT

20

NORTHERN DISTRICT OF CALIFORNIA

21

TASH HEPTING, GREGORY HICKS and ERIK KNUTZEN on Behalf of Themselves

)
)

22 and All Others Similarly Situated,

~

23

Plaintiffs,

)

)

24

vs.

~

~ 25

AT&T CORP., AT&T INC. and DOES 1·20, inclusive,

26 _________________D_e_fl_en_d_an_ts_.___ )~
2711

No. CLASS ACTION COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF
DEMAND FOR JURY TRIAL

28

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I. Plaintiffs, by and through their attorneys, bring this action on behalf of themselves

2 and all others similarly situated, and allege upon personal knowledge and belief as to their own acts,

3 and upon information and belief(based on the investigation ofcounsel) as to all other matters, as to

4 which allegations Plaintiffs believe substantial evidentiary support exists or will exist after a

5 reasonable opportunity for further investigation and discovery, as follows:

6

PRELIMINARY STATEMENT

7

2. This case challenges the legality of Defendants' participation in a secret and illegal

8 government program to intercept and analyze vast quantities of Americans' telephone and Internet

9 communications, surveillance done without the authorization of a court and in violation of federal

I 0 electronic surveillance and telecommunications statutes, as well as the First and Fourth Amendments

I I to the United States Constitution.

12

3. In December of 2005, the press revealed that the government had instituted a

13 comprehensive and warrantless electronic surveillance program that violates the Constitution and

14 ignores the careful safeguards set forth by Congress. This surveillance program, purportedly

I5 authorized by the President at least as early as 200I and primarily undertaken by the National

16 Security Agency ("NSA") without judicial review or approval, intercepts and analyzes the

17 communications ofmillions ofAmericans. Prior to this revelation, Plaintiffs and class members had

I8 no reasonable opportunity to discover the existence ofthe surveillance program or the violations of

19 law alleged herein.

20

4. But the government did not act-and is not acting-alone. The government requires

21 the collaboration ofmajor telecommunications companies to implement its unprecedented and illegal

22 domestic spying program.

23

5. Defendants AT&T Corp. and AT&T Inc. maintain domestic telecommunications

24 facilities over which millions of Americans' telephone and Internet communications pass every day.

25 They also manage some of the largest databases in the world containing records of most or all

26 communications made through their myriad telecommunications services.

27

6. On information and belief, AT&T Corp. has opened its key telecommunications

28 facilities and databases to direct access by the NSA and/or other government agencies, intercepting

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and disclosing to the government the contents ofits customers' communications as well as detailed

2 communications records about millions of its customers, including Plaintiffs and class members.

3

7. This collaboration began before AT&T Corp. was acquired by AT&T Inc. (fonnerly

4 known as SBC Communications, Inc.). On infonnation and belief, Defendants continue to assist the

5 government in its secret surveillance of millions ofordinary Americans.

6

8. Plaintiffs are suing to stop this illegal conduct and hold Defendants responsible for

7 their illegal collaboration in the surveillance program, which has violated the law and damaged the

8 fundamental freedoms of the American public.

9

JURISDICTION AND VENUE

10

9. This court has subject matter jurisdiction over the federal claims pursuant to Article

11 III of the United States Constitution and 28 U.S.C. §1331, 28 U.S.C. §2201, 50 U.S.C. §1810,

12 18 U.S.C. §§2520 and 2707, and 47 U.S.C. §605, and over the state claims pursuant to 28 U.S.C.

13 §§1332 and 1367.

14

10. Plaintiffs are infonned, believe and thereon allege that Defendants have sufficient

15 contacts with this district generally and, in particular, with the events herein alleged, that Defendants

16 are subject to the exercise ofjurisdiction of this court over the person of such Defendants and that

17 venue is proper in this judicial district pursuant to 28 U.S.C. §1391.

18

11. Plaintiffs are infonned, believe and thereon allege that, based on the places of

19 business ofthe Defendants identified above and/or on the national reach ofDefendants, a substantial

20 part ofthe events giving rise to the claims herein alleged occurred in this district and that Defendants

21 and/or agents of Defendants may be found in this district.

22

12. Intradistrict Assignment: Assignment to the San Francisco/Oakland division is

23 proper pursuant to Local Rule 3-2(c) and (d) because a substantial portion of the events and

24 omissions giving rise to this lawsuit occurred in this district and division.

25

PARTIES

26

13. PlaintiffTash Hepting, a customer service manager, is an individual residing in San

27 Jose, California. Hepting has been a subscriber and user of AT&T Corp.'s residential long distance

28

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telephone service since at least June 2004, and has used it to call internationally as well as

2 domestically.

3

14. Plaintiff Gregory Hicks is an individual residing in San Jose, California. Hicks, a

4 retired Naval Officer and systems engineer, has been a subscriber and user of AT&T Corp.'s

5 residential long distance telephone service since February 1995. He has regularly used this service

6 for calls to foreign countries including Korea, Japan and Spain.

7

15. Plaintiff Erik Knutzen is an individual residing in Los Angeles, California. Knutzen, a

8 photographer and land use researcher, was a subscriber and user ofAT&T Corp.'s Worldnet dial-up

9 Internet service from at least October 2003 until May 2005. He used this service to send and receive

I 0 personal and professional emails, with both domestic and international correspondents, and for web

11 browsing, including visits to web sites hosted outside of the United States.

12

16. Defendant AT&T Corp. is a New York corporation with its principal place of

13 business in the State of New Jersey.

14

17. Defendant AT&T Inc. is a Delaware corporation with its principal place ofbusiness

IS in San Antonio, Texas.'

16

18. Both AT&T Corp. and AT&T Inc. are telecommunications carriers, and both offer

17 electronic communications service(s) to the public and remote computing service(s).

18

19. On 0r around November 18, 2005, SBC Communications Inc. (SBC) acquired AT&T

19 Corp. At closing, a wholly-owned subsidiary ofSBC merged with and into AT&T Corp., and thus

20 AT&T Corp. became a wholly-owned subsidiary ofSBC. SBC adopted AT&T, Inc. as its name

21 following completion of its acquisition of AT&T Corp.

22

20. Prior to the acquisition and merger, AT&T Corp. and SBC both had a significant

23 business presence in California for many years. The new AT&T Inc. and its subsidiary, AT&T

24 Corp., continue to have a significant business presence in California.

25

21. AT&T Corp. operates through two principal divisions, its business services division

26 and its consumer services division. AT&T Business Services provides a variety ofcommunications

27 .services to domestic and multi-national businesses and govermnent agencies. AT&T Consumer

28 Services provides a variety ofcommunications services to mass-market customers. These services

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include traditional long distance voice services such as domestic and international dial and to11-free

2 services, as well as operator-assisted services. In addition, AT&T Consumer Services provides

3 residential dial-up and DSL Internet services through its "Worldnet" service, as well as offering all-

4 distance services, which bundle AT&T's facilities-based long distance services with local services.

5

22. AT&T Corp.'s communications facilities constitute one ofthe world's most advanced

6 communications networks, spanning more than 50 countries.

7

23. By the end of2004, on an average business day, AT&T Corp.'s network handled over

8 300 million voice calls as well as over 4,000 terabytes (million megabytes) ofdata, including traffic

9 from AT&T Business Services and AT&T Consumer Services, approximately 200 times the amount

I 0 of data contained in all the books in the Library of Congress.

II

24. By the end of 2004, AT&T Corp. provided long distance service (including both

12 stand-alone and bundled) to approximately 24.6 million residential customers. Before the

13 acquisition, AT&T Corp.'s bundled local and long distance service was available in 46 states,

14 covering more than 73 million households.

15

25. By the end of2004, AT&T Corp. provided its residential Worldnet Internet services

16 to approximately 1.2 million customers. Even prior to its being acquired by SBC, AT&T Corp. was

17 the second largest Internet provider in the country, primarily serving businesses in addition to its

18 Worldnet customers.

'19

26. The new AT&T Inc. constitutes the largest telecommunications provider in the

20 United States and one of the largest in the world. AT&T Inc. is the largest U.S. provider of both

21 local and long distance services, serving millions of customers nationwide. AT&T Inc.'s

22 international voice service carries more than 18 billion minutes per year, reaching approxinlately 240

23 countries, linking approximately 400 carriers and offering remote access in approximately 149

24 countries around the globe.

25

27. AT&T Inc. is the country's largest provider ofbroadband DSL Internet service, and

26 its backbone Internet network carries approximately 4,600 terabytes ofdata on an average business

27 day to nearly every continent and country.

28

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28. According to the Description of the Transaction, Public Interest Showing, and

2 Related Demonstrations filed by AT&T Corp. and SBC with the Federal Communications

3 Commission in anticipation of the merger:

4

AT&T is a significant provider oftelecommunications and information technology

services to the federal government. AT&T provides network services, systems

5

integration and engineering, and software development services to a broad range of

government agencies, including those involved in national defense, intelligence, and

6

homeland security. AT&T's federal customers include the White House, the State

Department, the Department ofHomeland Security, the Department ofDefense, the

7

Department of Just1ce, and most branches of the armed forces. AT&T's support of

the intelligence and defense communities includes the performance of various

8

classified contracts. To undertake this work, AT&T employs thousands of

individuals who hold government security clearances, and it maintains special secure

9

facilities for the performance of classified work and the safeguarding of classified

information. In addition to providing services to critical government agencies

10

responsible for national security, both AT&T and SBC support the national security

infrastructure through their participation in all of the key fora for supporting U.S.

II

government national security objectives.

12

29. On information and belief, this characterization was substantially correct when filed,

13 and is substantially correct as to the current AT&T Corp. and AT&T Inc.

14

30. Plaintiffs are currently unaware ofthe troe names and capacities of Defendants sued

15 herein as Does 1-20, and therefore sue these Defendants by using fictitious names. Plaintiffs will

16 amend this complaint to allege their true names and capacities when ascertained. Upon information

17 and belief each fictitiously named Defendant is responsible in some manner for the occurrences

18 herein alleged and the injuries to Plaintiffs and class members herein alleged were proximately

19 caused in relation to the conduct of Does 1-20 as well as the named Defendants. Hereafter,

20 Defendants AT&T Corp. and Does 1-8 are referred to collectively as "AT&T Corp.," and

21 Defendants AT&T Inc. and Does 9-15 are referred to collectively as "AT&T Inc."

22

FACTUAL ALLEGATIONS RELATED TO ALL COUNTS

23

THE NSA SURVEILLANCE PROGRAM

24

31. The NSA began a classified surveillance program ("the Program") shortly after

25 September II, 200 I to intercept the telephone and Internet communications of people inside the

26 United States without judicial authorization, a program that continues to this day.

27

28

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32. The President has stated that he authorized the Program in 2001, that he has

2 reauthorized the Program more than 30 times since its inception, and that he intends to continue

3 doing so.

4

33. The Attorney General has admitted that, absent additional authority from Congress,

5 the electronic surveillance conducted by the Program requires a court order under the Foreign

6 Intelligence Surveillance Act of 1978 (50 U.S.C. § 1801 et seq.).

7

34. The President and other government officials have admitted that the NSA does not

8 seek judicial review of the Program's interceptions before or after the surveillance, whether by the

9 Foreign Intelligence Surveillance Court or any other court.

10

35. Neither the President nor the Attorney General personally approves the individual

11 targets of the Program's electronic surveillance before communications are intercepted.

12

36. Instead, NSA operational personnel identity particular persons, telephone numbers or

13 Internet addresses as potential surveillance targets, and NSA shift supervisors approve those targets.

14

37. On information and belief, besides actually eavesdropping on specific conversations,

15 NSA personnel have intercepted large volumes ofdomestic and international telephone and Internet

16 traffic in search of patterns of interest, in what has been described in press reports as a large "data-

17 mining" program.

18

38. On information and belief, as part of this data-mining program, the NSA intercepts

19 millions ofcommunications made or received by people inside the United States, and uses powerful

20 computers to scan their contents for particular names, numbers, words or phrases.

21

39. Additionally, on information and belief, the NSA collects and analyzes a vast amount

22 ofcommunications traffic data to identity persons whose communications patterns the government

23 believes may link them, even if indirectly, to investigatory targets.

24

40. On information and belief, the NSA has accomplished its massive surveillance

25 operation by arranging with some ofthe nation's largest telecommunications companies, including

26 Defendants, to gain direct access to the telephone and Internet communications transmitted via those

27 companies' domestic telecommunications facilities, and to those companies' records pertaining to

28 the communications they transmit.

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AT&T PROVIDES THE GOVERNMENT WITH DIRECT ACCESS TO ITS DOMESTIC TELECOMMUNICATIONS NETWORK
2

3

41. On infonnation and belief, AT&T Corp. has provided and continues to provide the

4 government with direct access to all or a substantial number of the communications transmitted

5 through its key domestic telecommunications facilities, including direct access to streams of

6 domestic, international and foreign telephone and Internet communications.

7

42. On infonnation and belief, AT&T Corp. has installed and used, or assisted

8 government agents in installing or using, interception devices and pen registers and/or trap and trace

9 devices on or in a number of its key telecommunications facilities for use in the Program.

10

43. On infonnation and belief, the interception devices acquire the content of all or a

II substantial number ofthe wire or electronic communications transferred through the AT&T Corp.

12 facilities where they have been installed.

13

44. On infonnation and belief, the pen registers and/or trap and trace devices capture,

14 record or decode the dialing, routing, addressing and/or signaling information ("DRAS infonnation")

15 for all or a substantial number of the wire or electronic communications transferred through the

16 AT&T Corp. facilities where they have been installed.

17

45. On infonnation and belief, using these devices, govenun,ent agents have acquired and

18 are acquiring wire or electronic communications content and DRAS infonnation directly via remote

19 or local control of the device, and/or AT&T Corp. has disclosed and is disclosing those

20 communications and infonnation to the government after interception, capture, recording or

21 decoding.

22

46. On infonnation and belief, AT&T Corp. used or assisted in the use ofthese devices to

23 acquire wire or electronic communications to which Plaintiffs and class members were a party, and

24 to acquire DRAS infonnation pertaining to those communications. On irrfonnation and belief,

25 Defendants continue to do so.
26

27
28

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AT&T HAS PROVIDED AND CONTINUES TO PROVIDE THE

GOVERNMENT WITH DIRECT ACCESS TO DATABASES

2

CONTAINING ITS STORED TELEPHONE AND INTERNET RECORDS

3

47. Defendants AT&T Corp. and AT&T Inc. have provided at all relevant times and

4 continue to provide electronic communication services to the public, i.e., services that provide to

5 users thereof the ability to send or receive wire or electronic communications.

6

48. Defendants AT&T Corp. and AT&T Inc. have provided at all relevant times and

7 continue to provide computer or storage processing services to the public, by means of wire, radio,

8 electromagnetic, photooptical or photoelectronic facilities for the transmission ofwire or electronic

9 communications, and/or by means of computer facilities or related electronic equipment for the

I0 electronic storage of such communications.

II

49. Plaintiffs and class members are, or at pertinent times were, subscribers to or

12 customers of one or more of those services.

13

50. On information and belief, AT&T Corp. has provided and continues to provide the

14 government with direct access to its databases of stored telephone and Internet records, which are

IS updated with new information in real time or near-real time.

16

51. On information and belief, AT&T Corp. has disclosed and is currently disclosing to

17 the government records concerning communications to which Plaintiffs and class members were a

18 party, and there is a strong likelihood that Defendants will disclose more of the same in the future.

19

52. As reported by the Los Angeles Times, "AT&T has a database code-named Daytona

20 that keeps track of telephone numbers on both ends of calls as well as the duration of all land-line

21 calls.... After Sept. II, intelligence agencies began to view it as a potential investigative tool, and

22 the NSA has had a direct hookup into the database...." Joseph Menn and Josh Meyer, US. Spying is

23 Much Wider, Some Suspect, L.A. TIMES, Dec. 25, 2005, at AI. On information and belief, this

24 report is substantially correct.

25

53. Daytona is a database management technology originally developed and maintained

26 by the AT&T Laboratories division ofAT&T Corp., and is used by AT&T Corp. to manage multiple

27 databases.

28

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54. Daytona was designed to handle very large databases and is used to manage

2 "Hawkeye," AT&T Corp.'s call detail record ("CDR") database, which contains records of nearly

3 every telephone communication carried over its domestic network since approximately 2001, records

4 that include the originating and terminating telephone numbers and the time and length for each call.

5

55. On information and belief, this CDR database contains records pertaining to

6 Plaintiffs' and class members' use ofAT&T Corp.long distance service and dial-up Internet service,

7 including but not limited to DRAS information and personally identifiable customer proprietary

8 network information (CPNI) that AT&T Corp. obtained by virtue of its provision of

9 telecommunications service.

10

56. As of September 2005, all of the CDR data managed by Daytona, when

II uncompressed, totaled more than 312 terabytes.

12

57. The Daytona system's speed and powerful query language allow users to quickly and

13 easily search the entire contents ofa database to find records that match simple or complex search

14 parameters. For example, a Daytona user can query the Hawkeye database for all calls made to a

15 particular country from a specific area code during a specific month and receive information about

16 all such calls in about one minute.

17

58. Daytona is also used to manage AT&T Corp.'s huge network-security database,

18 known as Aurora, which has been used to store Internet traffic data since approximately 2003. The

19 Aurora database contains huge amounts ofdata acquired by firewalls, routers, honeypots and other

20 devices on AT&T Corp.'s global IP (Internet Protocol) network and other networks connected to

21 AT&T Corp.'s network, including but not limited to DRAS information and personally identifiable

22 CPNI that AT&T Corp. obtained by virtue of its provision of telecommunications service.

23

59. On information and belief, the Aurora database managed and/or accessed via Daytona

24 contains records or other information, including but not limited to DRAS information and CPNI,

25 pertaining to Plaintiffs' and class members' use of AT&T Corp.'s Internet services.

26

60. On information and belief, AT&T Corp. has provided the government with direct

27 access to the contents ofthe Hawkeye, Aurora and/or other databases that it manages using Daytona,

28 including all information, records, DRAS information and CPNI pertaining to Plaintiffs and class

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members, by providing the government with copies of the infonnation in the databases and/or by

2 giving the government access to Daytona's querying capabilities and/or some other technology

3 enabling the government agents to search the databases' contents.

4

61. AT&T Inc. has begun a transition process designed to integrate the fonner SBC's

5 telecommunications network with AT&T Corp.'s network, ultimately leading into unified IP-based

6 networks. AT&T Inc. intends to use AT&T Corp.'s IP network in place of the fee-based transiting

7 and backbone access arrangements it currently has with third parties. In addition, others aspects of

8 both companies will be integrated. For example, SBC Laboratories and AT&T Laboratories will be

9 combined into AT&T Labs to provide technology research and development exclusively to the

I0 subsidiaries of AT&T Inc.

II

62. On infonnation and belief, the facilities and technologies ofAT&T Corp, including

12 without limitation the Daytona system and those transmission facilities to which the government has

13 been given direct access as alleged above, are being or will imminently be used by AT&T Inc. to

14 transmit the communications of its customers and to store DRAS infonnation and other records

15 pertaining to those communications. Similarly, the facilities and technologies of the former SBC are

16 being or will imminently be used to transmit the communications of AT&T Corp. customers

17 including Plaintiffs and class members.

18

63. On infonnation and belief, there is a strong likelihood that Defendants will continue

19 to intentionally intercept, disclose, divulge and use Plaintiffs' and class members' communications

20 and records in cooperation with the Program.

21

CLASS ACTION ALLEGATIONS

22

64. Pursuant to Federal Rules ofCivil Procedure 23 (a) and (b), Plaintiffs Hepting, Hicks,

23 and Knutzen bring this action on behalfofthemselves and a Nationwide Class ofsimilarly situated

24 persons defined as:

25

All individuals in the United States that are current residential subscribers or

customers of Defendants' telephone services or Internet services, or that were

26

residential telephone or Internet subscribers or customers at any time after September

2001.

27

28

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65. The Nationwide Class seeks certification of claims for declaratory relief, injunctive

2 relief and damages pursuant to 50 U.S.C. § 1810, 18 U.S.C. § 2520,47 U.S.C. § 605, and 18 U.S.C.

3 § 2707, in addition to declaratory and injunctive relief for violations of the First and Fourth

4 Amendments.

5

66. Plaintiffs Hepting, Hicks, and Knutzen also bring certain ofthe claims, identified, on

6 behalfof the following California Subclass:

7

All individuals that are residents of the State of California and that are current

residential subscribers or customers of Defendants' telephone services or Internet

8

services, or that were residential telephone or Internet subscribers or customers at

any time after September 2001.

9

67. The California Subclass seeks certification of claims for declaratory and injunctive

10

relief, and for restitution pursuant to the Unfair Competition Law (Cal. Bus. and Prof. Code §I 7200

II

et seq.).

12

68. Excluded from the Nationwide Class and California Subclass are the officers,

13

directors, and employees ofDefendants, and the legal representatives, heirs, successors, and assigns

14

of Defendants.

15

69. Also excluded from the Nationwide Class and California Subclass are any foreign

16

powers, as defined by 50 U.S.C.§ ISOI(a), or any agents offoreign powers, as defined by 50 U.S.C.

17

§ 1801(b(I)(A), including without limitation anyone who knowingly engages in sabotage or

18

international terrorism, or activities that are in preparation therefore.

19

70. This action is brought as a class action and may properly be so maintained pursuant to

20

the provisions of the Federal Rules of Civil Procedure 23. Plaintiffs reserve the right to modify the

21

Nationwide Class and the California Subclass definitions and the class period based on the results of

22

discovery.

23

71. Numerosity of the Nationwide Class and California Subclass: Members of the

24

Nationwide Class and California Subclass are so numerous that their individual joinder is

25

impracticable. The precise numbers and addresses of members of the Nationwide Class and

26

California Subclass are unknown to the Plaintiffs. Plaintiffs estimate that the Nationwide Class

27

consists of millions of members and tbe California Subclass consists ofhundreds of thousands of

28

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members. The precise number ofpersons in both the Nationwide Class and California Subclass and

2 their identities and addresses may be ascertained from Defendants' records.

3

72. Existence of Common Questions of Fact and Law: There is a well-defmed

4 community of interest in the questions of law and fact involved affecting the members of the

5 Nationwide Class and California Subclass. These common legal and factual questions include:

6

(a) Whether Defendants, acting as agents or instrunlents ofthe government, have

7 violated the First and Fourth Amendment rights of Nationwide Class members, or are currently

8 doing so;

9

(b) Whether Defendants have subjected Nationwide Class members to electronic

I 0 surveillance, or have disclosed or used information obtained by electronic surveillance of the

II Nationwide Class members, in violation of 50 U.S.C. § 1809, or are currently doing so;

12

(c) Whether Defendants have intercepted, used or disclosed Nationwide Class

13 members' communications in violation of 18 U.S.C. § 2511, or are currently doing so;

14

(d) Whether Defendants have divulged or published the existence, contents,

15 substance, purport, effect, or meaning of Nationwide Class members' communications in violation

16 of 47 U.S.C. §60S(a), or are currently doing so;

17

(e) Whether Defendants have divulged the contents of Nationwide Class

18 members' communications in violation of 18 U.S.C. §2702(a)(l) or (a)(2), or are currently doing so;

19

(f) Whether Defendants have divulged subscriber information or other records

20 pertaining to Nationwide Class members in violation of 18 U.S.C. § 2702(a)(3), or are currently

21 doing so;

22

(g) Whether Defendants' interception, use or disclosure of California Subclass

23 members' communications, or the disclosure ofsubscriber information or other records pertaining to

24 California Subclass members, constitutes unfair, unlawful and/or fraudulent business practices in

25 violation of California's Unfair Competition Law;

26

(h) Whether Plaintiffs and California Subclass members are entitled to restitution,

27 disgorgement of profits, or other equitable relief to remedy Defendants' unfair, unlawful and/or

28 fraudulent business practices;

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1

(i) Whether Plaintiffs and class members are entitled to recover compensatory,

2 statutory and punitive danlages, whether as a result ofDefendants' fraudulent, illegal and deceitful

3 conduct, and/or otherwise; and

4

G) Whether Plaintiffs and class members are entitled to an award of reasonable

5 attorneys' fees, pre-judgment interest, and costs of this suit.

6

73. Typi~ality: Plaintiffs' claims are typical of the claims of the members of the

7 Nationwide Class and California Subclass because Plaintiffs are or were subscribers to the Internet

8 and telephone services of Defendants. Plaintiffs and all members of the Nationwide Class and

9 California Subclass have similarly suffered harm arising from Defendants' violations of law, as

I 0 alleged herein.

II

74. Adeguai!Y: Plaintiffs are adequate representatives of the Nationwide Class and

12 California Subclass because their interests do not conflict with the interests of the members of the

13 classes they seek to represent. Plaintiffs have retained counsel competent and experienced in

14 complex class action litigation and Plaintiffs intends to prosecute this action vigorously. Plaintiffs

!5 and their counsel will fairly and adequately protect the interests ofthe members ofthe Nationwide

16 Class and California Subclass.

17

75. This suit may also be maintained as a class action pursuant to Federal Rules ofCivil

!8 Procedure 23(b)(2) because Plaintiffs and both the Nationwide Class and California Subclass seek

19 declaratory and injunctive relief, and all of the above factors of numerosity, common questions of

20 fact and law, typicality and adequacy are present. Moreover, Defendants have acted on grounds

21 generally applicable to Plaintiffs and both the Nationwide Class and California Subclass as a whole,

22 thereby making declaratory and/or injunctive relief proper.

23

76. Predominance and Superiority: This suit may also be maintained as a class action

24 under Federal Rules of Civil Procedure 23(b)(3) because questions oflaw and fact common to the

25 Nationwide Class and California Subclass predominate over the questions affecting only individual

26 members of the classes and a class action is superior to other available means for the fair and

27 efficient adjudication ofthis dispute. The damages suffered by each individual class member may

28 be relatively small, especially given the burden and expense of individual prosecution of the

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complex and extensive litigation necessitated by Defendants' conduct. Furthermore, it would be

2 virtually impossible for the class members, on an individual basis, to obtain effective redress for the

3 wrongs done to them. Moreover, even if class members themselves could afford such individual

4 litigation, the court system could not. Individual litigation presents a potential for inconsistent or

5 contradictory judgments. Individualized litigation increases the delay and expense to all parties and

6 the court system presented by the complex legal issue of the case. By contrast, the class action

7 device presents far fewer management difficulties, and provides the benefits ofa single adjudication,

8 economy of scale and comprehensive supervision by a single court.

9

COUNT I

10

Violation of Plaintiffs' and Class Members' Rights Under the

First and Fourth Amendments to the United States Constitution

II

(Plaintiffs Hepting, Hi~ks, and Knutzen and the Nationwide Class

[lneluding the California Subclass) vs. Defendants)

12

77. Plaintiffs and class members repeat and incorporate herein by reference the

13

allegations in the preceding paragraphs of this complaint, as if set forth fully herein.

14

78. On information and belief, Plaintiffs and class members have a reasonable

15

expectation of privacy in their communications, contents of communications, and/or records

16

pertaining to their communications transmitted, collected, and/or stored by AT&T Corp.

17

79. On information and belief, Plaintiffs and class members use AT&T Corp.'s services

18

to speak or receive speech anonymously and to associate privately.

19

80. On information and belief, the above-described acts of interception, disclosure,

20

divulgence and/or use of Plaintiffs' and class members' communications, contents of

21

communications, and records pertaining to their communications occurred without judicial or other

22

lawful authorization, probable cause, and/or individualized suspicion.

23

81. On information and belief, at all relevant times, the government instigated, directed

24

and/or tacitly approved all of the above-described acts of AT&T Corp.

25

82. On information and belief, at all relevant times, the government knew of and/or

26

acquiesced in all of the above-described acts of AT&T Corp., and failed to protect the First and

27
Fourth Amendment rights of the Plaintiffs and class members by obtaining judicial authorization.

28

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83. In performing the acts alleged herein, AT&T Corp. had at all relevant times a primary

2 or significant intent to assist or purpose of assisting the government in carrying out the Program

3 and/or other government investigations, rather than to protect its own property or rights.

4

84. By the acts alleged herein, AT&T Corp. acted as an instrument or agent of the

5 government, and thereby violated Plaintiffs' and class members' reasonable expectations ofprivacy

6 and denied Plaintiffs and class members their right to be free from unreasonable searches and

7 seizures as guaranteed by the Fourth Amendment to the Constitution of the United States, and

8 additionally violated Plaintiffs' and class members' rights to speak and receive speech anonymously

9 and associate privately under the First Amendment.

10

85. By the acts alleged herein, AT&T Corp.'s conduct proximately caused harm to

II Plaintiffs and class members.

12

86. On information and belief, AT&T Corp.'s conduct was. done intentionally, with

13 deliberate indifference, or with reckless disregard of, Plaintiffs' and class members' constitutional

14 rights.

15

87. On information and belief, there is a strong likelihood that Defendants are now

16 engaging in and will continue to engage in the above-described violations of Plaintiffs and class

17 members' constitutional rights, as agents ofthe government, and that likelihood represents a credible

18 threat of immediate future harm.

19

88. Wherefore, Plaintiffs and class members pray for this court to declare that AT&T

20 Corp. has violated their rights under the First and Fourth Amendments to the United States

21 Constitution, and enjoin Defendants and their agents, successors and assigns from violating the

22 Plaintiffs' and class members' rights under the First and Fourth Amendments to the United States

23 Constitution.

24

COUNTII

25

Electronic Surveillance Under Color of Law in Violation of SO U.S.C. §1809

(Plaintiffs Hepting, Hieks, and Knutzen and the Nationwide Class

26

[Including the California Subclass] vs. Defendants)

27

89. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

28 paragraphs of this complaint, as if set forth fully herein.

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90. In relevant part, 50 U.S.C. § 1809 provides that:

2

(a) Prohibited activities--A person is guilty of an offense if he intentionally--(!)

enga!iles in electronic surveillance under color oflaw except as authorized by statute;

3

or (2) discloses or uses information obtained under color of law by electronic

surveillance, knowing or having reason to know that the information was obtained

4

through electronic surveillance not authorized by statute.

5

91. In relevant part 50 U.S.C. §1801 provides that:

6

(f) "Electronic surveillance" means--(1) the acquisition by an electronic, mechanical,

or other surveillance device ofthe contents ofany wire or radio communication sent

7

by or intended to be received by a particular, known United States person who is in

the United States, if the contents are acquired by intentionally targeting that United

8

States person, under circuntstances in which a person has a reasonable expectation of

privacy and a warrant would be required for law enforcement purposes; (2) the

9

acquisition by an electronic, mechanical, or other surveillance device ofthe contents

of any wire communication to or from a person in the United States, without the

10

consent ofany party thereto, ifsuch acquisition occurs in the United States, but does

not include the acquisition of those communications of computer trespassers that

II

would be permissible under section 2511(2)(i) of Title 18; (3) the intentional

acquisition by an electronic, mechanical, or other surveillance device ofthe contents

12

ofany radio communication, under circuntstances in which a person has a reasonable

expectation of privacy and a warrant would be required for law enforcement

13

purposes, and if both the sender and all intended recipients are located within the

United States; or (4) the installation or use of an electronic, mechanical, or other

14

surveillance device in the United States for monitoring to acquire information, other

than from a wire or radio communication, under circuntstances in which a person has

15

a reasonable expectation of privacy and a warrant would be required for law

enforcement purposes.

16

92. On information and belief, AT&T Corp. has intentionally acquired, by means of a

17

surveillance device, the contents ofone or more wire communications to or from Plaintiffs and class

18

members or other information in which Plaintiffs or class members have a reasonable expectation of

19

privacy, without the consent ofany party thereto, and such acquisition occurred in the United States.

20

93. By the acts alleged herein, AT&T Corp. has intentionally engaged in electronic

21

surveillance (as defmed by 50 U.S.C. § !801(t)) under color of law, but which is not authorized by

22

any statute, and AT&T Corp. has intentionally subjected Plaintiffs and class members to such

23

electronic surveillance, in violation of 50 U.S.C. § 1809.

24

94. Additionally or in the alternative, by the acts alleged herein, AT&T Corp. has

25

intentionally disclosed or used information obtained under color of law by electronic surveillance,

26

knowing or having reason to know that the information was obtained through electronic surveillance

27

not authorized by statute.

28

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95. AT&T Corp. did not notity Plaintiffs or class members of the above-described

2 electronic surveillance, disclosure, and/or use, nor did Plaintiffs or class members consent to such.

3

96. On information and belief, there is a strong likelihood that Defendants are now

4 engaging in and will continue to engage in the above-described electronic surveillance, disclosure,

5 and/or use of Plaintiffs' and class members' wire communications described herein, and that

6 likelihood represents a credible threat ofimmediate future harm.

7

97. Plaintiffs and class members have been and are aggrieved by Defendants' electronic

8 surveillance, disclosure, and/or use of their wire communications.

9

98. Pursuant to 50 U.S.C. § 1810, which provides a civil action for any person who has

I0 been subjected to an electronic surveillance or about whom information obtained by electronic

II surveillance of such person has been disclosed or used in violation of 50 U.S.C. § 1809, Plaintiffs

12 and class members seek equitable and declaratory relief; statutory damages for each Plaintiff and

13 class member of whichever is the greater of$1 00 a day for each day ofviolation or $1 ,000; punitive

14 damages as appropriate; and reasonable attorneys' fees and other litigation costs reasonably incurred.

15

COUNT III

16 Interception, Disl:losure and/or Use of Communications in Violation of 18 U.S.C. §2511

(Plaintiffs Hepting, Hicks, and Knutzen and the Nationwide Class

17

[Including the California Subclass) vs. Defendants)

18

99. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

19 paragraphs of this complaint, as if set forth fully herein.

20

100. In relevant part, 18 U.S.C. § 2511 provides that:

21

(!)Except as otherwise specifically provided in this chapter any person who--(a)

intentionally intercepts, endeavors to intercept, or procures any other person to

22

intercept or endeavor to intercept, any wire, oral, or electronic communication ... (c)

intentionally discloses, or endeavors to disclose, to any other person the contents of

23

any wire, oral, or electronic communication, knowing or having reason to know that

the information was obtained through the interception of a wire, oral, or electronic

24

communication in violation of this subsection... [or](d) intentionally uses, or

endeavors to use, the contents of any wire, oral, or electronic communication,

25

knowing or having reason to know that the information was obtained through the

interception of a wire, oral, or electronic communication in violation of this

26

subsection... shall be punished as provided in subsection (4) or shall be subject to

suit as provided in subsection (5).

27

28

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18 U.S.C. § 2511 further provides that:

2

(3)(a) Except as provided in paragraph (b) of this subsection, a person or entity

providing an electronic communication service to the public shall not intentionally

3

divulge the contents ofany communication (other than one to such person or entity,

or an agent thereof) while in transmission on that service to any person or entity

4

other than an addressee or intended recipient of such communication or an agent of

such addressee or intended recipient.

5

l 0 I. By the acts alleged herein, AT&T Corp. has intentionally intercepted, endeavored to

6

intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs' and class

7

members' wire or electronic communications in violation of 18 U.S.C. § 2511(I )(a); and/or

8

102. By the acts alleged herein, AT&T Corp. has intentionally disclosed, or endeavored to

9

disclose, to another person the contents of Plaintiffs' and class members' wire or electronic

10

communications, knowing or having reason to know that the information was obtained through the

II

interception of wire or electronic communications in violation of 18 U.S.C. § 25ll(l)(c); and/or

12

I 03. By the acts alleged herein, AT&T Corp. has intentionally used, or endeavored to use,

13

the contents of Plaintiffs' and class members' wire or electronic communications, while knowing or

14

having reason to know that the information was obtained through the interception of wire· or

15

electronic communications in violation of 18 U.S.C. § 2511(1)(d); and/or

16

I04. On information and belief, AT&T Corp. has intentionally divulged the contents of

17

Plaintiffs' and class members' wire or electronic communications to persons or entities other than

18

the addressee or intended recipient, or the agents of same, or other providers of wire or electronic

19

communication service, while those communications were in transmission on AT&T Corp.'s

20

electronic communications services, in violation of 18 U.S.C. § 2511(3)(a).

21

105. AT&T Corp. did not notify Plaintiffs or class members of the above-described

22

intentional interception, disclosure, divulgence and/or use of their wire or electronic

23

commtmications, nor did Plaintiffs or class members consent to such.

24

I 06. On information and belief, there is a strong ljkelihood that Defendants are now

25 engaging in and will continue to engage in the above-described intentional interception, disclosure,

26

divulgence and/or use ofPlaintiffs' and class members' wire or electronic communications, and that

27 likelihood represents a credible threat of immediate future harm.

28

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I 07. Plaintiffs and class members have been and are aggrieved by Defendants' intentional

2 interception, disclosure, divulgence and/or use of their wire or electronic communications.

3

I 08. Pursuant to 18 U.S.C. § 2520, which provides a civil action for any person whose

4 wire or electronic communications have been intercepted, disclosed or intentionally used in violation

5 of 18 U.S.C. § 2511, Plaintiffs and class members seek equitable and declaratory relief; statutory

6 damages for each Plaintiffand class member ofwhichever is the greater of$! 00 a day for each day

7 of violation or$! 0,000; punitive damages as appropriate; and reasonable attorneys' fees and other

8 litigation costs reasonably incurred.

9

COUNT IV

10 Unauthorized Publication and/or Use of Communications in Violation of 47 U.S.C. § 605

(Plaintiffs Hepting, Hicks, and Knutzen and The NationwideClass

II

[Including the California Subclass] vs. Defendants)

12

I09. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

13 paragraphs of this complaint, as if set forth fully herein.

14

110. In relevant part, 47 U.S.C. § 605 provides that:

15

(a) Practices prohibited--Except as authorized by chapter 119, Title 18, no person

receiving, assisting in receiving, transmitting, or assisting in transmitting, any

16

interstate or foreign communication by wire or radio shall divulge or publish the

existence, contents, substance, purport, effect, or meaning thereof, except through

17

authorized channels of transmission or reception, (I) to any person other than the

addressee, his agent, or attorney, (2) to a person employed or authorized to forward

18

such communication to its destination, (3) to proper accounting or distributing

officers ofthe various communicating centers over which the communication may be

19

passed, (4) to the master of a ship under whom he is serving, (5) in response to a

subpena issued by a court ofcompetentjurisdiction, or (6) on demand ofother lawful

20

authority.

21

Ill. AT&T Corp. received, assisted in receiving, transmitted, or assisted in transmitting,

22 Plaintiffs' and class members' interstate or foreign communications by wire or radio.

23

112. By the acts alleged herein, AT&T Corp. divulged or published the existence,

24 contents, substance, purport, effect, or meaning of such communications, by means other than

25 through authorized channels of transmission or reception, in violation of 47 U.S.C. § 605.

26

113. On information and belief, such divulgence or publication was willful and for

27 purposes of direct or indirect commercial advantage or private financial gain.

28

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114. AT&T Corp. did not notify Plaintiffs or class members of the divulgence or

2 publication of their communications, nor did Plaintiffs or class members consent to such.

3

115. On information and belief, there is a strong likelihood that Defendants are now

4 engaging in and will continue to engage in the above-described divulgence or publication of

5 Plaintiffs' and class members' wire or radio communications, and that likelihood represents a

6 credible threat of immediate future harm.

7

116. Plaintiffs and class members have been and are aggrieved by Defendants' divulgence

8 or publication of their wire or radio communications.

9

I 17. Pursuant to 47 U.S.C. § 605(e)(3)(A), which provides a civil action for any person

I0 whose wire or electronic communications have been divulged or published in violation of47 U.S.C.

II § 60S(a), Plaintiffs and class members seek temporary and final injunctions on such terms as the

12 Court deems reasonable to prevent or restrain such violations; statutory damages of not less than

13 $1,000 or more than $10,000 for each violation aggrieving each Plaintiff and class member, as the

14 Court considers just; in the Court's discretion, an increase in the reward ofdamages to each Plaintiff

15 and class member by an amount of not more than $1 00,000 for each violation; and the recovery of

16 full costs, including reasonable attorneys' fees.

17

COUNTIV

18

Divulgence of Communications Contents in Violation of18 U.S.C. § 2702(a)(l)

and/or (a)(2) (Plaintiffs Hepting, Hicks, and Knutzen and the Natiowide Class

19

[Including the California Subclass) vs. Defendants)

20

118. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

21 paragraphs of this complaint, as if set forth fully herein.

22

119. In relevant part, 18 U.S.C. § 2702 provides that:

23

(a) Prohibitions.·-Except as provided in subsection (b)--(1) a person or entity

providing an electronic communication service to the public shall not knowingly

24

divulge to any person or entity the contents ofa communication while in electronic

storage by that service; and (2) a person or entity providing remote computing

25

service to the public shall not knowingly divulge to any person or entity the contents

ofany communication which is carried or maintained on that service--(A) on behalf

26

of, and received by means of electronic transmission from (or created by means of

computer processing of communications received by means of electronic

27

transmission from), a subscriber or customer of such service; (B) solely for the

purpose of providing storage or computer processing services to such subscriber or

28

customer, if the provider is not authorized to access the contents of any such

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communications for purposes of providing any services other than storage or

computer processing....

2

120. On information and belief, AT&T Corp. knowingly divulged to one or more persons

3

or entities the contents ofPlaintiffs' and class members' communications while in electronic storage

4

by an AT&T Corp. electronic communication service, and/or while carried or maintained by an

5 AT&T Corp. remote computing service, in violation of 18 U.S.C. § 2702(a)(l) and/or (a)(2).

6 121. AT&T Corp. did not notify Plaintiffs or class members of the divulgence of their

7

communications, nor did Plaintiffs or class members consent to such.

8

122. On information and belief, there is a strong likelihood that Defendants are now

9

engaging in and will continue to engage in the above-described divulgence of Plaintiffs' and class

10

members' communications while in electronic storage by Defendants' electronic communication

II

service(s), and/or while carried or maintained by Defendants' remote computing service(s), and that

12

likelihood represents a credible threat of immediate future harm.

13 123. Plaintiffs and class members have been and are aggrieved by Defendants' above-

14

described divulgence of the contents of their communications.

15
124. Pursuantto 18 U.S. C. § 2707, which provides a civil action for any person aggrieved

16

by knowing or intentional violation of 18 U.S.C. § 2702, Plaintiffs and class members seek such

17

preliminary and other equitable or declaratory reliefas may be appropriate; statutory damages ofno

18 less than $1000 for each aggrieved Plaintiff or class member; punitive damages as the Court

19

considers just; and reasonable attorneys' fees and other litigation costs reasonably incurred.

20

COUNTV

21

Divulgence Of Communications Records In Violation Of 18 U.S.C. § 2702(A)(3)

22

(Plaintiffs Hepting, Hida, and Knutzen and the Nationwide Class

(Including the California Subclass] vs. Defendants)

23

125. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

24

paragraphs of this complaint, as if set forth fully herein.

25 126. In relevant part, 18 U.S.C. § 2702 provides that:

26

(a) Prohibitions.--Except as provided in subsection (b)-· (3) a provider of remote

27

computing service or electronic communication service to the public shall not

knowingly divulge a record or other information pertaining to a subscriber to or

28

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customer ofsuch service (not including the contents ofcommunications covered by paragraph (1) or (2)) to any governmental entity.
2 127. On information and belief, AT&T Corp., a provider ofremote computing service and
3 electronic communication service to the public, knowingly divulged records or other information
4 pertaining to Plaintiffs and class members to a governmental entity in violation of 18 U.S. C. §
5 2702(a)(3).
6 128. AT&T Corp. did not notify Plaintiffs or class members of the divulgence of these
7 records and other information pertaining to them and their use of AT&T Corp. services, nor did
8 Plaintiffs or class members consent to such.
9 129. On information and belief, there is a strong likelihood that Defendants are now
10 engaging in and will continue to engage in the above-described divulgence of records or other
11 information pertaining to Plaintiffs and class members, and that likelihood represents a credible
12 threat of immediate future harm.
13 130. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieved
14 by knowing or intentional violation of 18 U.S.C. § 2702, Plaintiffs and class members seek such
15 preliminary and other equitable or declaratory relief as may be appropriate; statutory damages ofno
16 less than $1000 for each aggrieved Plaintiff or class member; punitive damages as the Court
17 considers just; and reasonable attorneys' fee and other litigation costs reasonably incurred.
18 COUNT VI
19 Unfalr, Unlawful And Deceptive Business Practices
20 (Plaintiffs Hepting, Hicks, and Knutzen and the California Subclass vs. Defendants)

21

131. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

22 paragraphs of this complaint, as if set forth fully herein.

23

132. Defendants have engaged in unfair, unlawful and/or fraudulent business practices as

24 set forth above.

25

13 3. By engaging in the acts and practices described herein, Defendants have committed

26 one or more unfair business practices within the meaning of Bus. & Prof. Code §17200, et seq.

27 Specifically, Defendants' business practices offend the public policies set forth in California

28 Constitution Art. 1, section I.

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134. Defendants' above-described deceptive and misleading acts and practices have

2 deceived and/or are likely to deceive Plaintiffs and other California Subclass members. Plaintiffs

3 were, in fact, deceived as to the terms and conditions ofservices provided by defendants. Plaintiffs

4 and California Subclass members have suffered harm as a result of Defendants' misrepresentations

5 and/or omissions.

6

135. Defendants' acts and practices are also unlawful because, as described above, they

7 violate the First and Fourth Amendments to the United States Constitution, 50 U.S.C. § 1809, 18

8 U.S.C. § 2511,47 U.S.C. § 605, 18 U.S.C. § 2702(a)(1) and/or(a)(2), and 18 U.S.C. § 2702(a)(3).

9

136. AT&T Corp.'s acts and practices are also unlawful because they violate 18 U.S.C. §

10 3121.

II

137. Inrelevantpart,l8U.S.C.§3121providesthat:

12

(a) In general.··Except as provided in this section, no person may install or use a pen

register or a trap and trace device without first obtaining a court order under section

13

3123 of this title or under the Foreign Intelligence Surveillance Act of 1978 (50

U.S.C. 1801 et seq.).

14

As defined by 18 U.S.C. § 3127:

15

(3) the term "pen register" means a device or process which records or decodes

16

dialing, routing, addressing, or signaling information transmitted by an instrument or

facility from which a wire or electronic communication is transmitted, provided,

17

however, that such information shall not include the contents ofany communication,

but such term does not include any device or process used by a provider or customer

18

ofa wire or electronic communication service for billing, or recording as an incident

to billing, for communications services provided by such provider or any device or

19

process used by a provider or customer of a wire communication service for cost

accounting or other like purposes in the ordinary course of its business;

20

(4) the term "trap and trace device" rneans a device or process which captures the

21

incoming electronic or other impulses which identity the originating number or other

dialing, routing, addressing, and signaling information reasonably likely to identify

22

the source of a wire or electronic communication, provided, however, that such

information shall not include the contents of any communication;

23

138. On information and belief, AT&T Corp. installed or used pen registers and/or trap

24

and trace devices without first obtaining a court order under 18 U.S.C. § 3123 or under the Foreign

25

Intelligence Surveillance Act of 1978 (50 U.S.C. § 1801 et seq.), and continue to do so.

26

139. On information and belief, the pen registers and/or trap and trace devices installed

27 and used by AT&T Corp.have captured, recorded, or decoded, and continue to capture, record or

28

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decode, dialing, routing, addressing or signaling information pertaining to Plaintiffand/or California

2 Subclass members' wire or electronic communications.

3

!40. AT&T Corp. did not notifY Plaintiffs or California Subclass members of the

4 installation or use of pen registers and/or trap and trace devices, nor did Plaintiffs or California

5 Subclass members consent to such.

6

141. . AT&T Corp.'s acts and practices are also unlawful because they violate 47 U.S.C. §

7 222, which in relevant part provides that:

8

(c) Confidentiality of customer proprietary network information--(!) Privacy

requirements for telecommunications carriers-·Except as required by law or with the

9

approval of the customer, a telecommunications carrier that receives or obtains

customer proprietary network information by virtue of its provision of a

10

telecommunications service shall only use, disclose, or permit access to individually

identifiable customer proprietary network information in its provision of (A) the

II

telecommunications service from which such information is derived, or (B) services

necessary to, or used in, the provision ofsuch telecommunications service, including

12

the publishing of directories.

13

142. AT&T Corp. is a telecommunications carrier that obtains and has obtained customer

14 proprietary network information by virtue ofits provision of telecommunications service.

15

143. On information and belief, AT&T Corp. used, disclosed and/or provided to

16 government entities individually identifiable customer proprietary network information pertaining to

17 Plaintiffs and California Subclass members, and continue to do so.

18

144. AT&T Corp. did not notify Plaintiffs or California Subclass members of the

19 disclosure and/or provision oftheir personally identifiable customer proprietary network information

20 to government entities, nor did Plaintiffs or California Subclass members consent to such.

21

145. Plaintiffs and the California Subclass have suffered injury in fact and have lost money

22 or property as a result of such unfair and unlawful business practices. Such injuries and losses

23 include, but are not limited to, the service fees and other fees and charges paid to AT&T Corp.

24 Neither the Plaintiffs nor any reasonable California Subclass member would have paid such fees and

25 charges for AT&T Corp. services had they first known of AT&T Corp.'s unlawful acts and

26 practices.

27

146. On information and belief, there is a strong likelihood that Defendants are now

28 engaging in and will continue to engage in the above-described electronic surveillance, disclosure,

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and/or use of Plaintiffs' and class members' wire communications, and that likelihood represents a

2 credible threat of immediate future harm.

3

147. Plaintiffs and the California Subclass seek restitution, disgorgement, injunctive relief

4 and all other relief from Defendants allowed under §17200, et seq. Plaintiffs and the California

5 Subclass also seek attorneys' fees pursuant to Cal. Code Civ. Proc. §1021.5, as well as such other

6 and further relief as the Court deems just and proper.

7

PRAYER FOR RELIEF

8

WHEREFORE, the Plaintiffs for themselves and all others similarly situated respectfully

9 request that the Court:

10

A. Declare that Defendants' participation in the Program as alleged herein violates

II applicable law including without limitation:

12

(i) The First and Fourth Amendments to the United States Constitution, 50

13 U.S.C. § 1809, 18 U.S.C. § 2511,47 U.S.C. § 605, and 18 U.S.C. § 2702, as to Plaintiffs and the

14 Nationwide Class; and

15

(ii) Cal. Bus. & Prof. Code §17200 as to Plaintiffs and the California Subclass.

16

B. Award equitable relief, including without limitation, a permanent injunction

17 prohibiting Defendants' continued or future participation in the Program:

18

(i) Pursuant to the First and Fourth Amendments to the United States

19 Constitution, 50 U.S. C.§ 1810, 18 U.S.C. § 2520(b)(l), 47 U.S.C. § 605(e)(3)(b)(i), and 18 U.S.C. §

20 2707(b)(l), as to the Plaintiffs and the Nationwide Class; and

21

(ii) Pursuant to Cal. Bus. & Prof. Code §I 7200, as to Plaintiffs and California

22 Subclass;

23

c.

Award statutory damages to the extent permitted by law to each Plaintiff and class

24 member in the sum of:

25

(i) $100 per day for each day of violation of 50 U.S.C. § 1809 aggrieving that

26 Plaintiff or class member or $1,000, whicheveris greater, pursuant to 50 U.S.C. § 1810(a);

27

(ii) $100 a day for each violation of18 U.S.C. § 2511 aggrieving that Plaintiffor

28 class member or $10,000, whichever is greater, pursuant to 18 U.S.C. § 2520(c)(2)(A);

COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF

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(iii) Not Jess than $1,000 or more than $10,000 for each violation aggrieving that

2 Plaintiff or class member, as the court considers just, pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(ll); and

3

(iv) $1000 pursuant to 18 U.S.C. § 2707(c);

4

D. Award punitive damages to the extent permitted by law to each Plaintiff and class

5 member, including without limitation:

6

(i) An appropriate sum pursuant to 50 U.S.C. § 1810(b);

7

(ii) An appropriate sum pursuant to 18 U.S.C. § 2520(b)(2); and

8

(iii) Not more than $100,000 per violation of 47 U.S.C. § 605(a) aggrieving that

9 Plaintiff or class member, in the court's discretion, pursuant to 47 U.S.C. § 605(e)(3)(C)(ii);

10

E. Award to Plaintiffs attorneys' fees and other costs of suit to the extent permitted by

11 law, including without limitation pursuantto 50 U.S.C. § 1810(c), 18 U.S.C. § 2520(b)(3),47 U.S.C.

12 § 605(e)(3)(B)(iii), 18 U.S.C. § 2707(b)(3), and Cal. Code Civ. Proc. §1021.5;

13

F. Award restitution, disgorgemeot, injunctive relief and all other relief allowed under

14 §17200, et seq. to Plaintiffs and the California Subclass;

15

G. Grant such other and further relief as the Court deems just and proper.

16

JURYDEMAND

17

Plaintiffs hereby request a jury trial for all issues triable by jury including, but not limited to,

18 those issues and claims set forth in any amended complaint or consolidated action.

19 DATED: January 31,2006 20 21 22

ELECTRONIC FRONTIER FOUNDATION
CINDY COHN LEE TIEN KURT OPSAHL KEVIN S. BANKSTON CORYNNE MCSHERRY
JAMES S. TYRE

23

24

25

454 Shotwell Street

26

San Francisco, CA 9411 0

Telephone: 415/436-9333

27

415/436-9993 (fax)

28

COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF

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TRABER & VOORHEES

2

BERT VOORHEES

THERESA M. TRABER

3

128 North Fair Oaks Avenue, Suite 204

Pasadena, CA 91103

4

Telephone: 626/585-9611

626/577-7079 (fax)

5

LERACH COUGHLIN STOIA GELLER

6

RUDMAN & ROBBINS LLP

REED R. KATHREIN

7

SHAN A E. SCARLETT

I 00 Pine Street, Suite 2600

8

San Francisco, CA 94111

Telephone: 415/288-4545

9

415/288-4534 (fax)

10

Attorneys for Plaintiffs

11 C:\Documents and Settings\Chonge\Desktop\AT&T Complaint.doc

12 13 14 15 16 17 18 19 20 21
22
23 24
25
26 27 28

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 Case3:06-cv-00672-VRW Document8 Filed02/22/06 Page1 of 33

1 ELECTRONIC FRONTIER FOUNDATION CINDY COHN (145997)
2 cindy@eff.org LEE TIEN (148216)
3 tien@eff.org KURT OPSAHL (191303)
4 kurt@eff.org KEVIN S. BANKSTON (217026)
5 bankston@eff.org CORYNNE MCSHERRY (221504)
6 corynne@eff.org JAMES S. TYRE (083117)
7 jstyre@eff.org 454 Shotwell Street
8 San Francisco, CA 94110 Telephone: 415/436-9333
9 415/436-9993 (fax)

TRABER & VOORHEES BERT VOORHEES (137623) bv@tvlegal.com THERESA M. TRABER (116305) tmt@tvlegal.com 128 North Fair Oaks Avenue, Suite 204 Pasadena, CA 91103 Telephone: 626/585-9611 626/ 577-7079 (fax)

10 Attorneys for Plaintiffs

11 [Additional counsel appear on signature page.]

12 UNITED STATES DISTRICT COURT
13 NORTHERN DISTRICT OF CALIFORNIA
14

15 TASH HEPTING, GREGORY HICKS,

)

CAROLYN JEWEL and ERIK KNUTZEN on )

16 Behalf of Themselves and All Others Similarly )

Situated,

)

17

)

Plaintiffs,

)

18

)

vs.

)

19

)

AT&T CORP., AT&T INC. and DOES 1-20, )

20 inclusive,

)

)

21

Defendants. )

)

22

No. C-06-0672-JCS CLASS ACTION AMENDED COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF
DEMAND FOR JURY TRIAL

23

24

25

26

27

28

Case3:06-cv-00672-VRW Document8 Filed02/22/06 Page2 of 33

1

1. Plaintiffs, by and through their attorneys, bring this action on behalf of themselves

2 and all others similarly situated, and allege upon personal knowledge and beliefas to their own acts,

3 and upon information and belief (based on the investigation of counsel) as to all other matters, as to

4 which allegations Plaintiffs believe substantial evidentiary support exists or will exist after a
5 reasonable opportunity for further investigation and discovery, as follows:
6

7

PRELIMINARY STATEMENT

8

2. This case challenges the legality of Defendants’ participation in a secret and illegal

9 government program to intercept and analyze vast quantities of Americans’ telephone and Internet

10 communications, surveillance done without the authorization of a court and in violation of federal

11 electronic surveillance and telecommunications statutes, as well as the First and Fourth Amendments
12 to the United States Constitution. 13
3. In December of 2005, the press revealed that the govern ment had institu ted a 14
comprehensive and warrantless electronic surveillance program that violates the Constitution and 15
16 ignores the careful safeguards set f orth by Cong ress. This surveillance program , purportedly
17 authorized by the President at least as early as 2001 and prim arily undertaken by the National

18 Security Agency (“NS A”) without judicial revi ew or approval, inter cepts and analyzes th e

19 communications of millions of Americans. Prior to this revelation, Plaintiffs and class members had

20 no reasonable opportunity to discover the existence of the surveillance program or the violations of
21 law alleged herein.
22

23

4. But the government did not act – and is notacting – alone. The government requires

24 the collaboration of major telecommunications companies to implement its unprecedented and illegal

25 domestic spying program.

26

5. Defendants AT&T Corp. and AT&T Inc. maintain domestic telecommunications

27 facilities over which millions of Americans’ telephone and Internet communications pass every day. 28

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1 They also manage some of the largest databases in the world containing records of m ost or all

2 communications made through their myriad telecommunications services.

3

6. On information and belief, AT&T Cor p. has opened its key telecommunications

4 facilities and databases to directaccess by the NSA and/or other government agencies, intercepting
5 and disclosing to the government the contents of its customers’ communications as well as detailed
6

7 communications records about millions of its customers, including Plaintiffs and class members.

8

7. This collaboration began before AT&T Corp. was acquired by AT&T Inc. (formerly

9 known as SBC Communications, Inc.). On information and belief, Defendants continue to assist the

10 government in its secret surveillance of millions of ordinary Americans.

11

8. Plaintiffs are suing to stop this illegal conduct and hold Defendants responsible for

12 their illegal collaboration in the surveillance program, which has violated the law and damaged the
13

fundamental freedoms of the American public. 14

15

JURISDICTION AND VENUE

16

9. This court has subject matter jurisdiction over the federal claims pursuant to Article

17 III of the United States Constitution and 28 U.S.C. §1331, 28 U.S.C. §2201, 50 U.S.C. §1810, 18

18 U.S.C. §§2520 and 2707, and 47 U .S.C. §605, and ove r the state claim s pursuant to 28 U.S.C.
19 §§1332 and 1367. 20
10. Plaintiffs are informed, believe and thereon allege that Defendants have sufficient 21
contacts with this district generally and, in particular, with the events herein alleged, that Defendants 22 23 are subject to the exercise of jurisdiction of this court over the person of such Defendants and that
24 venue is proper in this judicial district pursuant to 28 U.S.C. §1391.

25

11. Plaintiffs are inform ed, believe an d thereon allege that, ba sed on the places of

26 business of the Defendants identified above and/or on the national reach of Defendants, a substantial 27

28

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1 part of the events giving rise tothe claims herein alleged occurred inthis district and that Defendants

2 and/or agents of Defendants may be found in this district.

3

12. Intradistrict Assignment: Assignment to th e San Francisco/Oakland division is

4 proper pursuant to Local Rule 3-2(c) and (d) b ecause a su bstantial portion of the events and
5 omissions giving rise to this lawsuit occurred in this district and division.
6

7

PARTIES

8

13. Plaintiff Tash Hepting, a customer service manager, is an individual residing in San

9 Jose, California. Hepting has been a subscriber and user of AT&T Corp.’sresidential long distance

10 telephone service since at least June 2004, and ha s used it to call intern ationally as well as

11 domestically.

12

14. Plaintiff Gregory Hicks is an individual residing in San Jose, California. Hicks, a

13 retired Naval Officer and system s engineer, has been a subscriber and user of AT&T Corp.’s
14

residential long distance telephone service since February 1995. He has regularly used this service 15

16 for calls to foreign countries including Korea, Japan and Spain.

17

15. Plaintiff Carolyn Jewel is an individual re siding in Petaluma, California. Jewel, a

18 database administrator and author, has been a subscriber and user of AT&T Corp.’s Worldnet dial-

19 up Internet service since approximately June 2000. She uses this service for web browsing and to

20 send and receive em ail, including with correspondents in foreign countries such as England,
21 Germany, and Indonesia.
22

23

16. Plaintiff Erik Knutzen is an individual residing in Los Angeles, California. Knutzen, a

24 photographer and land use researcher, was a subscriber and user of AT&T Corp.’s Worldnet dial-up

25 Internet service from at least October 2003 until May 2005. He used this service to send and receive

26 personal and professional emails, with both domestic and international correspondents, and for web 27 browsing, including visits to web sites hosted outside of the United States. 28

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1

17. Defendant AT&T Corp. is a New York co rporation with its principal place of

2 business in the State of New Jersey.

3

18. Defendant AT&T Inc. is a Delaware corporation with its principal place of business

4 in San Antonio, Texas.
5 19. Both AT&T Corp. and AT&T Inc. are telecommunications carriers, and both offer
6

7 electronic communications service(s) to the public and remote computing service(s).

8

20. On or around November 18, 2005, SBCCommunications Inc. (SBC) acquired AT&T

9 Corp. At closing, a wholly-owned subsidiary ofSBC merged with and into AT&T Corp., and thus

10 AT&T Corp. became a wholly-owned subsidiary of SBC. SBC adopted AT&T, In c. as its name
11 following completion of its acquisition of AT&T Corp. 12
21. Prior to the acquisition and m erger, AT&T Corp. and SBC both had a significan t 13
business presence in California for m any years. The new AT&T Inc. and its subsidiary, AT&T 14
15 Corp., continue to have a significant business presence in California.

16

22. AT&T Corp. operates through two principal dvi isions, its business services division

17 and its consumer services division. AT&T Business Services provides a variety of communications
18 services to domestic and multi-national businesses and government agencies. AT&T Consum er 19
Services provides a variety of communications services to mass-market customers. These services 20
include traditional long distance voice services such as domestic and international dial and toll-free 21 22 services, as well a s operator-assisted services. In addition, AT&T Consumer Services provides
23 residential dial-up and DSL Internet services through its “Worldnet” service, as well as offering all-

24 distance services, which bundle AT&T’s facilities-based long distance services with local services.

25

23. AT&T Corp.’s communications facilities constitute one of the world’s most advanced

26 communications networks, spanning more than 50 countries. 27

28

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1

24. By the end of 2004, on an average businses day, AT&T Corp.’s network handled over

2 300 million voice calls as well as over 4,000 terabytes (million megabytes) of data, including traffic
3 from AT&T Business Services and AT&T Consumer Services, approximately 200 times the amount 4
of data contained in all the books in the Library of Congress. 5
25. By the end of 2004, AT&T Corp. provided long distance service (including both 6 7 stand-alone and bundled) to approxim ately 24.6 m illion residential customers. Before the
8 acquisition, AT&T Corp.’s bundled local and long distance servic e was available in 46 states,

9 covering more than 73 million households.

10

26. By the end of 2004, AT&T Corp. provided its residential Worldnet Internet services

11 to approximately 1.2 million customers. Even prior to its being acquired by SBC, AT&T Corp. was
12 the second largest Internet provider in the country, primarily serving businesses in addition to its
13
Worldnet customers. 14

15

27. The new AT&T Inc. constitutes the largest telecommunications provider in th e

16 United States and one of the largest in the world. AT&T Inc. is the largest U.S. provider of both

17 local and long distance services, serving m illions of custom ers nationwide. AT&T Inc.’s

18 international voice service carries more than 18 billion minutes per year, reaching approximately 240

19 countries, linking approximately 400 carriers and offering remote access in approx imately 149
20 countries around the globe.
21

22

28. AT&T Inc. is the country’s largest provider of broadband DSL Internet service, and

23 its backbone Internet network carries approximately 4,600 terabytes of data on an average business

24 day to nearly every continent and country.

25

29. According to the Description of the Transacti on, Public Interest Showing, and

26 Related Demonstrations filed by AT&T Corp. and SBC w
27 Commission in anticipation of the merger:
28

ith the F ederal Communications

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1

AT&T is a significant provider of telecommunications and inform ation

technology services to the federal government. AT&T provides network services,

2

systems integration and engineering, and software development services to a broad

range of governm ent agencies, including those involved in national defense,

3

intelligence, and homeland security. AT&T’s federal customers include the White

House, the State Department, the Department of Homeland Security, the Department

4

of Defense, the Departm ent of Jus tice, and most branches of the ar med forces.

AT&T’s support of the in telligence and def ense communities includes the

5

performance of various classified contracts. To undertake this work, AT&T employs

thousands of individuals who hold government security clearances, and it maintains

6

special secure facilities for the performance of classified work and the safeguarding

of classified information. In addition to providing services to critical governm ent

7

agencies responsible for national security, both AT&T and SBC support the national

security infrastructure through their participation in all of thekey fora for supporting

8

U.S. government national security objectives.

9

30. On information and belief, this characterization was substantially correct when filed,

10 and is substantially correct as to the current AT&T Corp. and AT&T Inc.

11

31. Plaintiffs are currently unaware of the true names and capacities of Defendants sued

12 herein as Does 1-20, and therefore sue these Defendants by using fictitious names. Plaintiffs will
13 amend this complaint to allege their true names and capacities when ascertained. Upon information
14

15 and belief each fictitiously nam ed Defendant is responsible in som e manner for the occurrences

16 herein alleged and the injuries to Plaintiffs a nd class members herein alleged were proxim ately

17 caused in relation to the conduct of Does 1-20 as well as the nam ed Defendants. Hereafter,

18 Defendants AT&T Corp. and Does 1-8 are refe rred to collectively as “AT&T Corp.,” and
19 Defendants AT&T Inc. and Does 9-15 are referred to collectively as “AT&T Inc.”
20 FACTUAL ALLEGATIONS RELATED TO ALL COUNTS
21 THE NSA SURVEILLANCE PROGRAM
22 32. The NSA began a class ified surveillance program (“the Program ”) shortly afte r
23
September 11, 2001 to intercept the telephone and Internet communications of people inside the 24
25 United States without judicial authorization, a program that continues to this day.

26

27

28

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1

33. The President has stated that he aut horized the Program in 2001, that he has

2 reauthorized the Program more than 30 times since its inception, a nd that he intends to continue

3 doing so.
4 34. The Attorney General has admitted that, absent additional authority from Congress,
5 the electronic surveillance conduc ted by the Program requires a c ourt order under the Foreign
6
7 Intelligence Surveillance Act of 1978 (50 U.S.C. §§1801, et seq.).

8

35. The President and other government officials have admitted that the NSA does not

9 seek judicial review of the Program’s interceptions before or after the surveillance, whether by the

10 Foreign Intelligence Surveillance Court or any other court.

11

36. Neither the President nor the Attorney General personally approves the individual

12 targets of the Program’s electronic surveillance before communications are intercepted.
13

37. Instead, NSA operational personnel identify particular persons, telephone numbers or 14

15 Internet addresses as potential surveillance targets, and NSA shift supervisors approve those targets.

16

38. On information and belief, besides actually eavesdropping on specific conversations,

17 NSA personnel have intercepted large volumes of domestic and international telephone and Internet
18 traffic in search of patterns of interest, in what has been described in press reports as a large “data19
mining” program. 20
39. On information and belief, as part of this data-mining program, the NSA intercepts 21 22 millions of communications made or received by people inside the United States, and uses powerful
23 computers to scan their contents for particular names, numbers, words or phrases.

24

40. Additionally, on information and belief, the NSA collects and analyzes a vast amount

25 of communications traffic data to identify persons whose communications patterns the government 26 believes may link them, even if indirectly, to investigatory targets. 27

28

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1

41. On information and belief, the NSA has accomplished its m assive surveillance

2 operation by arranging with some of the nation’s largest telecommunications companies, including

3 Defendants, to gain direct access to the telephone and Internet communications transmitted via those

4 companies’ domestic telecommunications facilities, and to those companies’ records pertaining to
5 the communications they transmit.
6

7

AT&T PROVIDES THE GOVERNMENT WITH DIRECT ACCESS TO ITS DOMESTIC TELECOMMUNICATIONS NETWORK

8

42. On information and belief, AT&T Corp. has provided and continues to provide the

9 government with direct access to all or a subs tantial number of the com munications transmitted
10 through its key dom estic telecommunications facilities, including direct access to stream s of
11

12 domestic, international and foreign telephone and Internet communications.

13

43. On information and belief, AT&T Corp. has installed and used, or assisted

14 government agents in installing or using, interceptoi n devices and pen registers and/or trap and trace

15 devices on or in a number of its key telecommunications facilities for use in the Program.

16

44. On information and belief, the interception devices acquire the content of all or a

17 substantial number of the wire or electronic communications transferred through the AT&T Corp.
18 facilities where they have been installed.
19

20

45. On information and belief, the pen register s and/or trap and trace d evices capture,

21 record or decode the dialing, routing, addressing and/or signaling information (“DRAS information”)

22 for all or a substantial num ber of the wire or electronic communications transferred through the

23 AT&T Corp. facilities where they have been installed.

24

46. On information and belief, using these devices, government agents have acquired and

25 are acquiring wire or electronic communications content and DRAS information directly via remote
26

or local control of the device, and/or AT&T Corp. has disc losed and is disclosing those 27

28

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1 communications and infor mation to the gov ernment after interception, capture, recording or

2 decoding.

3

47. On information and belief, AT&T Corp. used orassisted in the use of these devices to

4 acquire wire or electronic communications to which Plaintiffs and class members were a party, and
5 to acquire DRAS information pertaining to those comm unications. On inform ation and belief,
6

7 Defendants continue to do so.

8

AT&T HAS PROVIDED AND CONTINUES TO PROVIDE THE

GOVERNMENT WITH DIRECT ACCESS TO DATABASES

9

CONTAINING ITS STORED TELEPHONE AND INTERNET RECORDS

10

48. Defendants AT&T Corp. and AT&T Inc. have provided at all relevant tim es and

11 continue to provide electronic communication services to the public, i.e., services that provide to

12 users thereof the ability to send or receive wire or electronic communications.

13

49. Defendants AT&T Corp. and AT&T Inc. have provided at all relevant tim es and

14 continue to provide computer or storage processing services to the public, by means of wire, radio,
15

electromagnetic, photooptical or photoelectronic facilities for the transmission of wire or electronic 16

17 communications, and/or by m eans of computer facilities or related electronic equ ipment for the

18 electronic storage of such communications.

19

50. Plaintiffs and class m embers are, or at pertinent times were, subsc ribers to or

20 customers of one or more of those services.
21 51. On information and belief, AT&T Corp. has provided and continues to provide the
22 government with direct access to its databases of stored telephone and Internet records, which are
23 24 updated with new information in real time or near-real time.

25

52. On information and belief, AT&T Corp. hasdisclosed and is currently disclosing to

26 the government records concerning communications to which Plaintiffs and class members were a

27 party, and there is a strong likelihood that Defendants will disclose more of the same in the future. 28

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1

53. As reported by the Los Angeles Times, “AT&T has a database code-named Daytona

2 that keeps track of telephone numbers on both ends of calls as well as the duration of all land-line

3 calls. . . . After Sept. 11, intelligence agencies began to view it as a potential investigative tool, and
4 the NSA has had a direct hookup into the database. . . .” Joseph Menn and Josh Meyer,U.S. Spying
5 is Much Wider, Some Suspect, L.A. TIMES, Dec. 25, 2005, at A1. On information and belief, this
6
7 report is substantially correct.

8

54. Daytona is a database management technology originally developed and maintained

9 by the AT&T Laboratories division of AT&T Corp., and is used by AT&T Corp. to manage multiple

10 databases.

11

55. Daytona was designed to handle very la rge databases and is used to m anage

12 “Hawkeye,” AT&T Corp.’s call detail record (“CDR”) database, which contains records of nearly
13

every telephone communication carried over its domestic network since approximately 2001, records 14

15 that include the originating and terminating telephone numbers and the time and length for each call.

16

56. On information and belief, this CDR database contains r ecords pertaining to

17 Plaintiffs’ and class members’ use of AT&T Corp. long distance service and dial-up Internet service,

18 including but not limited to DRAS inf ormation and personally identifiable customer proprietary

19 network information (CPNI) that AT&T Cor
20 telecommunications service.
21

p. obtained by virtue of its provision of

22

57. As of Septem ber 2005, all of the CDR data m anaged by Daytona, when

23 uncompressed, totaled more than 312 terabytes.

24

58. The Daytona system’s speed and powerful query language allow users to quickly and

25 easily search the entire contents of a database to find records that match simple or complex search 26 parameters. For example, a Daytona user can query the Hawkeye database for all calls made to a 27

28

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1 particular country from a specific area code during a specific month and receive information about

2 all such calls in about one minute.

3

59. Daytona is also used to m anage AT&T Corp.’s huge network-security database,

4 known as Aurora, which has been used to store Internet traffic data since approximately 2003. The
5 Aurora database contains huge amounts of data acquired by firewalls, routers, honeypots and other
6

7 devices on AT&T Corp.’s global IP (Internet Protocol) network and other networks connected to

8 AT&T Corp.’s network, including but not limited to DRAS information and personally identifiable

9 CPNI that AT&T Corp. obtained by virtue of its provision of telecommunications service.

10

60. On information and belief, the Aurora database managed and/or accessed via Daytona

11 contains records or other information, including but not limited to DRAS information and CPNI,
12 pertaining to Plaintiffs’ and class members’ use of AT&T Corp.’s Internet services.
13
61. On information and belief, AT&T Corp. ha s provided the government with direct 14

15 access to the contents of the Hawkeye, Aurora and/or other databases that it manages using Daytona,

16 including all information, records, DRAS information and CPNI pertaining to Plaintiffs and class

17 members, by providing the government with copies of the information in the databases and/or by
18 giving the government access to Daytona’s qu erying capabilities and/or some other technology 19
enabling the government agents to search the databases’ contents. 20
62. AT&T Inc. has begun a transition process designed to integrate the form er SBC’s 21 22 telecommunications network with AT&T Corp.’s network, ultimately leading into unified IP-based
23 networks. AT&T Inc. intends to use AT&T Corp.’sIP network in place of the fee-based transiting

24 and backbone access arrangements it currently has with third parties. In addition, others aspects of

25 both companies will be integrated. For example, SBC Laboratories and AT&T Laboratories will be
26 combined into AT&T Labs to p rovide technology research and developm ent exclusively to th e 27
subsidiaries of AT&T Inc. 28

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1

63. On information and belief, the facilities and technologies of AT&T Corp, including

2 without limitation the Daytona system and those transmission facilities to which the government has
3 been given direct access as alleged above, are being or will imminently be used by AT&T Inc. to 4
transmit the communications of its customers and to store DRAS information and other records 5
pertaining to those communications. Similarly, the facilities and technologies of the former SBC are 6 7 being or will imm inently be used to transm it the communications of AT&T Corp. custom ers
8 including Plaintiffs and class members.

9

64. On information and belief, there is a srtong likelihood that Defendants will continue

10 to intentionally intercept, disclose, divulge and use Plaintiffs’ and class members’ communications
11 and records in cooperation with the Program.
12 CLASS ACTION ALLEGATIONS
13 65. Pursuant to Federal Rules of Civil Procedure, Rule 23 (a) and (b), Plaintiffs Hepting,
14 Hicks, Jewel and Knutzen bring this action on be half of themselves and a Nationwide Class of
15
16 similarly situated persons defined as:

17

All individuals in the United States that are current residential subscribers or

customers of Defendants’ telephone services or Internet services, or that were

18

residential telephone or Internet subscribers or customers at any time after September

2001.

19 66. The Nationwide Class seeks certification of claims for declaratory relief, injunctive

20

relief and damages pursuant to 50 U.S.C. §1810, 18 U.S.C. §2520, 47 U.S.C. §605, and 18 U.S.C. 21

22 §2707, in addition to d eclaratory and injunctiv e relief for violations o f the First and Fourth

23 Amendments.

24

67. Plaintiffs Hepting, Hicks, Jewel and Knutzen also br ing certain of the claim s,

25 identified, on behalf of the following California Subclass:

26

All individuals that are residents of theState of California and that are current

27

residential subscribers or cu stomers of Defendants’ telephone services or Internet services, or that were residential telephone or Internet subscribers or customers at

28

any time after September 2001.

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1

68. The California Subclass seeks certification of claims for declaratory and injunctive

2 relief, and for restitu tion pursuant to the Unf air Competition Law (Cal. Bus. and Prof . Code

3 §§17200, et seq.).
4 69. Excluded from the Nationwide Class and Ca lifornia Subclass a re the of ficers,
5 directors, and employees of Defendants, and the legal representatives, heirs, successors, and assigns
6
7 of Defendants.

8

70. Also excluded from the Nationwide Class and California Subclass are any foreign

9 powers, as defined by 50 U.S.C. §1801(a), or any agents of foreignpowers, as defined by 50 U.S.C.

10 §1801(b(1)(A), including without lim itation anyone who knowingly engages in sabotage or
11 international terrorism, or activities that are in preparation therefore. 12
71. This action is brought as a class action andmay properly be so maintained pursuant to 13
the provisions of the Federal Rule s of Civil Procedure, Rule 23. Plaintiffs reserve the right to 14
15 modify the Nationwide Class and the California Subclass definitions and the class period based on
16 the results of discovery.

17

72. Numerosity of the Nationwide Class and California Subclass: Members of the

18 Nationwide Class and California Subclass are so num erous that their individual joinder is
19 impracticable. The p recise numbers and add resses of m embers of th e Nationwide Class and
20 California Subclass are unknown to the Plaintif fs. Plaintiffs estimate that the Nationwide Class
21 22 consists of millions of members and the California Subclass consists of hundreds of thousands of

23 members. The precise number of persons in both the Nationwide Class and California Subclass and

24 their identities and addresses may be ascertained from Defendants’ records.

25

73. Existence of Common Questions of Fact and Law : There is a well-defined

26 community of interest in the qu estions of law and fact involved affecting the members of th e
27 Nationwide Class and California Subclass. These common legal and factual questions include:
28

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1

(a) Whether Defendants, acting as agents orinstruments of the government, have

2 violated the First and Fourth Amendment rights of Nationwide Cl ass members, or are currently

3 doing so;

4

(b) Whether Defendants have subjected Nationwide Class members to electronic

5 surveillance, or have disclosed or used inform ation obtained by electronic surveillance of the

6 Nationwide Class members, in violation of 50 U.S.C. §1809, or are currently doing so;

7

(c) Whether Defendants have intercepted, used or disclosed Nationwide Class

8 members’ communications in violation of 18 U.S.C. §2511, or are currently doing so;

9

(d) Whether Defendants have divulged or published the existence, contents,

10 substance, purport, effect, or meaning of Nationwide Class members’ communications in violation

11 of 47 U.S.C. §605(a), or are currently doing so;

12

(e) Whether Defendants have divulged th e contents of Nationwide Cla ss

13 members’ communications in violation of 18 U.S.C.§2702(a)(1) or (a)(2), or are currently doing so;

14

(f) Whether Defendants have divulged subscriber information or other records

15 pertaining to Nationwide Class m embers in violation of 18 U.S.C. §2702(a)(3), or are currently

16 doing so;

17

(g) Whether Defendants’ interception, use or disclosure of California Subclass

18 members’ communications, or the disclosure of subscriber information or other records pertaining to

19 California Subclass members, constitutes unfair, unlawful and/or fraudulent business practices in

20 violation of California’s Unfair Competition Law;

21

(h) Whether Plaintiffs and California Subclass members are entitled to restitution,

22 disgorgement of profits, or other equitable relie f to remedy Defendants’ unfair, unlawful and/or

23 fraudulent business practices;

24

(i) Whether Plaintiffs and class members are entitled to recover compensatory,

25 statutory and punitive damages, whether as a result of Defendants’ fraudulent, illegal and deceitful

26 conduct, and/or otherwise; and

27

(j) Whether Plaintiffs and class members are entitled to an award of reasonable

28 attorneys’ fees, pre-judgment interest, and costs of this suit.

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1

74. Typicality: Plaintiffs’ claim s are typical of the claims of the m embers of the

2 Nationwide Class and California Subclass because Plaintiffs are or were subscribers to the Internet

3 and telephone services of De fendants. Plaintiffs and all m embers of the Nationwid e Class and

4 California Subclass have sim ilarly suffered harm arising from Defendants’ violations of law, as
5 alleged herein.
6

7

75. Adequacy: Plain tiffs are ad equate representatives of the Nationwide Class and

8 California Subclass because their interests do not conflict with the interests of the members of the

9 classes they seek to rep resent. Plaintiffs ha ve retained counsel competent and exp erienced in

10 complex class action litigation and Plaintiffs intends to prosecute this action vigorously. Plaintiffs
11 and their counsel will fairly and adequately protect the interests of the members of the Nationwide 12
Class and California Subclass. 13
76. This suit may also be maintained as a class action pursuant to Federal Rules of Civil 14
15 Procedure, Rule 23(b)(2) because Plaintiffs and both the Nationwide Class and California Subclass
16 seek declaratory and injunctive relief, and all of the above factors of numerosity, common questions

17 of fact and law, typicality and adequacy are present. Moreover, Defendants have acted on grounds
18 generally applicable to Plaintiffs and both the Nationwide Class andCalifornia Subclass as a whole, 19
thereby making declaratory and/or injunctive relief proper. 20
77. Predominance and Superiority: This suit may also be maintained as a class action 21 22 under Federal Rules of Civil Procedure, Rule 23(b)(3) because questions of law and fact common to
23 the Nationwide Class and California Subclass pr edominate over the questions affecting only

24 individual members of the classes and a class action is superior to other available means for the fair

25 and efficient adjudication of this dispute. The damages suffered by each individual class member
26 may be relatively small, especially given the burden and expense of individual prosecution of the 27
complex and extensive litigation necessitated by Defendants’ conduct. Furthermore, it would be 28

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1 virtually impossible for the class members, on an individual basis, to obtaineffective redress for the

2 wrongs done to them. Moreover, even if class members themselves could afford such individual
3 litigation, the court system could not. Individual litigation presents a potential for inconsistent or 4
contradictory judgments. Individualized litigation increases the delay and expense to all parties and 5
the court system presented by the complex legal issu e of the case. By contras t, the class action 6 7 device presents far fewer management difficulties, and provides the benefitsof a single adjudication,
8 economy of scale and comprehensive supervision by a single court.

9

COUNT I

10

Violation of Plaintiffs’ and Class Members’ Rights Under the First and Fourth

Amendments to the United States Constitution (Plaintiffs Hepting, Hicks, Jewel and 11 Knutzen and the Nationwide Class [Including the California Subclass] vs. Defendants)

12

78. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

13 paragraphs of this complaint, as if set forth fully herein.
14 79. On information and be lief, Plaintiffs and class m embers have a reasonable
15
16 expectation of privacy in their com munications, contents of communications, and/or records

17 pertaining to their communications transmitted, collected, and/or stored by AT&T Corp.

18

80. On information and belief, Plaintiffs andclass members use AT&T Corp.’s services

19 to speak or receive speech anonymously and to associate privately.

20

81. On information and belief, the above-de scribed acts of inte rception, disclosure,

21 divulgence and/or use of Plai ntiffs’ and class m embers’ communications, contents of
22
communications, and records pertaining to their communications occurred without judicial or other 23

24 lawful authorization, probable cause, and/or individualized suspicion.

25

82. On information and belief, at all relevanttimes, the government instigated, directed

26 and/or tacitly approved all of the above-described acts of AT&T Corp. 27

28

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1

83. On information and belief, at all releva nt times, the government knew of and/or

2 acquiesced in all of the above-des cribed acts of AT&T Corp., and failed to protect the First and

3 Fourth Amendment rights of the Plaintiffs and class members by obtaining judicial authorization.
4 84. In performing the acts alleged herein, AT&TCorp. had at all relevant times a primary
5 or significant intent to assist or purpose of assisting the gover nment in carrying out the Program
6
7 and/or other government investigations, rather than to protect its own property or rights.

8

85. By the ac ts alleged herein, AT&T Corp. act ed as an instru ment or agent of the

9 government, and thereby violated Plaintiffs’ and class members’ reasonable expectations of privacy

10 and denied Plaintiffs and class m embers their ri ght to be free from unreasonable searches and

11 seizures as guaranteed by the Fourth Am endment to the Constitu tion of the United States, and
12 additionally violated Plaintiffs’ and class members’ rights to speak and receive speech anonymously
13
and associate privately under the First Amendment. 14

15

86. By the acts alleged herein, AT&T Corp.’ s conduct proximately caused harm to

16 Plaintiffs and class members.

17

87. On information and belief, AT&T Corp.’ s conduct was do ne intentionally, with

18 deliberate indifference, or with reckless disregard of, Plaintiffs’ and class members’ constitutional

19 rights.
20 88.
21

On information and belief, there is a strong likelihood that Defendants are now

22 engaging in and will continue to engage in the above-described violations of Plaintiffs’ and class

23 members’ constitutional rights, as agents of the government, and that likelihood represents a credible

24 threat of immediate future harm.

25

89. Wherefore, Plaintiffs and class members pray for this court to declare that AT&T

26 Corp. has violated their rights under the First and Fourth Amendments to the United States
27 Constitution, and enjoin Defendants and their agents, successors and assigns from violating the
28

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1 Plaintiffs’ and class members’ rights under the First and Fourth Amendments to the United States

2 Constitution.

3

COUNT II

4 Electronic Surveillance Under Color of Law in Violation of 50 U.S.C. §1809 (Plaintiffs
5 Hepting, Hicks, Jewel and Knutzen and the Nationwide Class [Including the California Subclass] vs. Defendants)
6 90. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
7

8 paragraphs of this complaint, as if set forth fully herein.

9

91. In relevant part, 50 U.S.C. §1809 provides that:

10

(a) Prohibited activities – Aperson is guilty of an offense if he intentionally – (1)

engages in electronic surveillance under color of law except as authorized by statute;

11

or (2) discloses or uses inform ation obtained under color of law by electronic

surveillance, knowing or having reason to know that the information was obtained

12

through electronic surveillance not authorized by statute.

13

92. In relevant part 50 U.S.C. §1801 provides that:

14

(f) “Electronic surveillance” means – (1) the acq uisition by an electronic,

mechanical, or other surveillance device of the contents of any wire or radio

15

communication sent by or intended to be received by a particular, know n United

States person who is in the United States, if the contents are acquired by intentionally

16

targeting that United States person, unde r circumstances in which a person has a

reasonable expectation of privacy and a warrant would be required for law

17

enforcement purposes; (2) the acquisition by an electronic, mechanical, or other

surveillance device of the contents of anywire communication to or from a person in

18

the United States, without the consent of any party thereto, if such acquisition occurs

in the United States, but does not includethe acquisition of those communications of

19

computer trespassers that would be permissible under section 2511(2)(i) of Title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance

20

device of the contents of any radio communication, under circumstances in which a

person has a reasonable expectation of privacy and a warrant would be required for

21

law enforcement purposes, and if both the sender and all intended recipients are

located within the Unite d States; or (4) th e installation or use of an electron ic,

22

mechanical, or other surveillance device in the United States f or monitoring to

acquire information, other than from a wire or radio comm unication, under

23

circumstances in which a person h as a re asonable expectation of privacy and a

warrant would be required for law enforcement purposes. 24

93. On information and belief, AT&T Corp. has intentionally acquired, by means of a 25

26 surveillance device, the contents ofone or more wire communications to or from Plaintiffs and class

27 members or other information in which Plaintiffs or class members have a reasonable expectation of

28 privacy, without the consent of any party thereto,and such acquisition occurred in the United States.

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1

94. By the acts alleged herein, AT&T Corp. has intentionally engaged in electronic

2 surveillance (as defined by 50 U.S.C. §1801(f)) under color of law, but which is not authorized by
3 any statute, and AT&T Corp. has intentionally subjected Plainti ffs and class m embers to such 4
electronic surveillance, in violation of 50 U.S.C. §1809. 5
95. Additionally or in the a lternative, by the acts alleged here in, AT&T Corp. has 6 7 intentionally disclosed or used information obtained under color of law by electronic surveillance,
8 knowing or having reason to know that the information was obtained through electronic surveillance

9 not authorized by statute.

10

96. AT&T Corp. did not notify Plaintiffs or class m embers of the above-described

11 electronic surveillance, disclosure, and/or use, nor did Plaintiffs or class members consent to such.
12 97. On information and belief, there is a strong likelihood that Defendants are now
13
engaging in and will continue to engage in the above-described electronic surveillance, disclosure, 14

15 and/or use of Plaintiffs’ and class members’ wire communicati ons described herein, and that

16 likelihood represents a credible threat of immediate future harm.

17

98. Plaintiffs and class members have been and are aggrieved by Defendants’ electronic

18 surveillance, disclosure, and/or use of their wire communications.
19 99. Pursuant to 50 U.S.C. §1810, which provides a civil action for any person who has
20 been subjected to an electronic surveillance or about whom information obtained by electronic
21 22 surveillance of such person has been disclosed or uesd in violation of 50 US. .C. §1809, Plaintiffs and

23 class members seek equitable and declaratory relief; statutory damages for each Plaintiff and class

24 member of whichever is the greater of $100 a da y for each day of violation or $1,0 00; punitive

25 damages as appropriate; and reasonable attorneys’ fees and other litigation costs reasonably incurred. 26

27

28

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1

COUNT III

2 Interception, Disclosure and/or Use of Communications in Violation of 18 U.S.C. §2511

(Plaintiffs Hepting, Hicks, Jewel and Knutzen and the Nationwide Class

3

[Including the California Subclass] vs. Defendants)

4

100. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

5 paragraphs of this complaint, as if set forth fully herein.

6
101. In relevant part, 18 U.S.C. §2511 provides that: 7

8

(1) Except as otherwise specifically provided in this chapter any person who – (a) intentionally intercepts, endeavors to inte rcept, or procures any other person to

9

intercept or endeavor to intercept, any wire, oral, or electronic communication . . . (c) intentionally discloses, or endeavors to disclose, to any other person the contents of

10

any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic

11

communication in violation of this subsect ion . . . [or](d) intentionally uses, or endeavors to use, the contents of a ny wire, oral, or electronic communication,

12

knowing or having reason to know that th e information was obtained through the interception of a wire, oral, or electro nic communication in violation of this

13

subsection . . . shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).

14 18 U.S.C. §2511 further provides that:

15

(3)(a) Except as provid ed in paragraph (b) of this subsection, a pers on or entity

16

providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than one to such person or entity,

17

or an agent thereof) while in tran smission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of

18

such addressee or intended recipient.

19

102. By the acts alleged herein, AT&T Corp. hasintentionally intercepted, endeavored to

20 intercept, or procured another person to intercep t or endeavor to intercept, Plaintiffs’ and class

21 members’ wire or electronic communications in violation of 18 U.S.C. §2511(1)(a); and/or

22

103. By the acts alleged herein, AT&T Corp. has intentionally disclosed, or endeavored to

23 disclose, to another person the co ntents of Plaintiffs’ and class members’ wire or electronic

24 communications, knowing or having reason to know that the information was obtained through the
25 interception of wire or electronic communications in violation of 18 U.S.C. §2511(1)(c); and/or
26

27

104. By the acts alleged herein, AT&T Corp. has intentionally used, or endeavored to use,

28 the contents of Plaintiffs’ and class members’ wire or electronic communications, while knowing or

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1 having reason to know that the inform ation was obtained through the interception of wire or

2 electronic communications in violation of 18 U.S.C. §2511(1)(d); and/or

3

105. On information and belief, AT&T Corp. has intentionally divulged the contents of

4 Plaintiffs’ and class members’ wire or electronic communications to persons or entities other than
5 the addressee or intended recipient, or the agents of same, or other providers of wire or electronic
6

7 communication service, while t hose communications were in transm ission on AT &T Corp.’s

8 electronic communications services, in violation of 18 U.S.C. §2511(3)(a).

9

106. AT&T Corp. did not notify Plaintiffs or class m embers of the above-described

10 intentional interception, disclosure, divulgence and/or use of their wire or electronic
11 communications, nor did Plaintiffs or class members consent to such. 12
107. On information and belief, there is a strong likelihood that Defendants are now 13
engaging in and will continue to engage in the above-described intentional interception, disclosure, 14
15 divulgence and/or use of Plaintiffs’ and class members’ wire or electronic communications, and that
16 likelihood represents a credible threat of immediate future harm.

17

108. Plaintiffs and class members have been and are aggrieved by Defendants’ intentional

18 interception, disclosure, divulgence and/or use of their wire or electronic communications.
19 109. Pursuant to 18 U.S.C. §2520, which providesa civil action for any person whose wire
20 or electronic communications have been intercepted, disclosed or intentionally used in violation of
21 22 18 U.S.C. §2511, Plaintiffs and class m embers seek equitable and declarat ory relief; statutory

23 damages for each Plaintiff and class member of whichever is the greater of $100 a day for eachday

24 of violation or $10,000; punitive damages as appropriate; and reasonable attorneys’ fees and other

25 litigation costs reasonably incurred. 26

27

28

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1

COUNT IV

2 Unauthorized Publication and/or Use of Communications in Violation of 47 U.S.C. §605

(Plaintiffs Hepting, Hicks, Jewel and Knutzen and The NationwideClass

3

[Including the California Subclass] vs. Defendants)

4

110. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

5 paragraphs of this complaint, as if set forth fully herein.

6
111. In relevant part, 47 U.S.C. §605 provides that: 7

8

(a) Practices prohibited – Except as au thorized by chapter 1 19, Title 18 , no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any

9

interstate or foreign communication by wire or radio sh all divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through

10

authorized channels of transmission or reception, (1) to any person other than the addressee, his agent, or attorney, (2) to a person employed or authorized to forward

11

such communication to its destination, (3) to proper accounting or distributing officers of the various communicating centers over which the communication may be

12

passed, (4) to the m aster of a ship under whom he is serving, (5) in response to a subpoena issued by a court of competent jurisdiction, or (6) on dem and of other

13

lawful authority.

14

112. AT&T Corp. received, assisted in receiving, transmitted, or assisted in transmitting,

15 Plaintiffs’ and class members’ interstate or foreign communications by wire or radio.

16

113. By the acts alleged herein, AT&T Cor p. divulged or published the existence,

17 contents, substance, purport, effect, or m eaning of such communications, by m eans other than

18 through authorized channels of transmission or reception, in violation of 47 U.S.C. §605.

19 114. On information and belief , such divulg ence or publica tion was willf ul and f or
20 purposes of direct or indirect commercial advantage or private financial gain.
21

22

115. AT&T Corp. did not notify Plaintiffs or class m embers of the divulgence or

23 publication of their communications, nor did Plaintiffs or class members consent to such.

24

116. On information and belief, there is a strong likelihood that Defendants are now

25 engaging in and will continue to engage in th e above-described divulgence or pu blication of
26 Plaintiffs’ and class m embers’ wire or radio communications, a nd that likelihood represents a 27
credible threat of immediate future harm. 28

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1

117. Plaintiffs and class members have been and are aggrieved by Defendants’ divulgence

2 or publication of their wire or radio communications.

3

118. Pursuant to 47 U.S.C. §605(e)(3)(A), which provides a civil action for any person

4 whose wire or electronic communications have been divulged or published in violation of 47 U.S.C.
5 §605(a), Plaintiffs and class m embers seek temporary and final injunctions on such term s as the
6

7 Court deems reasonable to prevent or restrain such violations; statutory damages of not less than

8 $1,000 or more than $10,000 for each violation aggrieving each Plaintiff and class member, as the

9 Court considers just; in the Court’s discretion, an increase in thereward of damages to each Plaintiff

10 and class member by an amount of not more than $100,000 for each violation; and the recovery of

11 full costs, including reasonable attorneys’ fees.

12
COUNT V 13
Divulgence of Communications Contents in Violation of 18 U.S.C. §§2702(a)(1)

14

and/or (a)(2) (Plaintiffs Hepting, Hicks, Jewel and Knutzen and the Natiowide Class

[Including the California Subclass] vs. Defendants) 15

16

119. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

17 paragraphs of this complaint, as if set forth fully herein.

18

120. In relevant part, 18 U.S.C. §2702 provides that:

19

(a) Prohibitions. – Except as provided in subsection (b) – (1) a person or entity

20

providing an electronic co mmunication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic

21

storage by that se rvice; and (2) a person or entity providing remote computing service to the public shall notknowingly divulge to any person or entity the contents

22

of any communication which is carried or maintained on that service – (A) on behalf of, and received by means of electronic transmission from (or created by means of

23

computer processing of comm unications received by means of electronic transmission from), a subscriber or custom er of such service; (B) solely for the

24

purpose of providing storage or computer processing services to such subscriber or customer, if the p rovider is not au thorized to access the contents of any such

25

communications for purposes of providing any services othe r than storage or computer processing. . . .

26

121. On information and belief, AT&T Corp. knowingly divulged to oneor more persons

27 or entities the contents of Plaintiffs’ and class members’ communications while in electronic storage 28

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1 by an AT&T Corp. electronic com munication service, and/or while carried or maintained by an

2 AT&T Corp. remote computing service, in violation of 18 U.S.C. §§2702(a)(1) and/or (a)(2).

3

122. AT&T Corp. did not notify Pl aintiffs or class members of the divulgence of their

4 communications, nor did Plaintiffs or class members consent to such.
5 123. On information and belief, there is a strong likelihood that Defendants are now
6

7 engaging in and will continue to engage in the above-described divulgence of Plaintiffs’ and class

8 members’ communications while in electronic storage by Defendants’ electronic communication

9 service(s), and/or while carried or maintained byDefendants’ remote computing service(s), and that

10 likelihood represents a credible threat of immediate future harm.

11

124. Plaintiffs and class members have been and are aggrieved by Defendants’ above-

12 described divulgence of the contents of their communications.
13

125. Pursuant to 18 U.S.C. §2707, which providesa civil action for any person aggrieved 14

15 by knowing or intentional violati on of 18 U.S.C. §2702, Plaintiffs and class m embers seek such

16 preliminary and other equitable or declaratory relei f as may be appropriate; statutory damages of no

17 less than $1 000 for each aggrieved Plaintiff or class m ember; punitive damages as the Court

18 considers just; and reasonable attorneys’ fees and other litigation costs reasonably incurred.

19 COUNT VI

20 Divulgence Of Communications Records In Violation Of 18 U.S.C. §2702(A)(3)

21

(Plaintiffs Hepting, Hicks, Jewel and Knutzen and the Nationwide Class

[Including the California Subclass] vs. Defendants) 22

126. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding 23

24 paragraphs of this complaint, as if set forth fully herein.

25

127. In relevant part, 18 U.S.C. §2702 provides that:

26

(a) Prohibitions. – Except as provided in subsection (b) – (3) a provider of

remote computing service or electronic communication service to the public shall not

27

knowingly divulge a record or other information pertaining to a subscriber to or

customer of such service (not including the contents of communications covered by

28

paragraph (1) or (2)) to any governmental entity.

AMENDED COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF – C-06-0672-JCS

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1

128. On information and belief, AT&T Corp., a provider of remote computing service and

2 electronic communication service to the public, knowingly divulged records or other information
3 pertaining to Plaintiffs and clas s members to a governm ental entity in violation of 18 U.S.C. 4
§2702(a)(3). 5
129. AT&T Corp. did not notify Plaintiffs or class members of the divulgence of these 6 7 records and other information pertaining to them and their use of AT&T Corp. services, nor did
8 Plaintiffs or class members consent to such.

9

130. On information and belief, there is a strong likelihood that Defendants are now

10 engaging in and will co ntinue to engage in the above-described divulgence of records or other
11 information pertaining to Plaintiffs and class m embers, and that likelih ood represents a credible 12
threat of immediate future harm. 13
131. Plaintiffs and class members have been and are aggrieved by Defendants’ above14
15 described divulgence of records or other information pertaining to Plaintiffs and class members.

16

132. Pursuant to 18 U.S.C. §2707, which providesa civil action for any person aggrieved

17 by knowing or intentional violati on of 18 U.S.C. §2702, Plaintiffs and class m embers seek such

18 preliminary and other equitable or declaratory relei f as may be appropriate; statutory damages of no

19 less than $1 000 for each aggrieved Plaintiff or class m ember; punitive damages as the Court
20 considers just; and reasonable attorneys’ fee and other litigation costs reasonably incurred.
21

22

COUNT VII

23

Unfair, Unlawful And Deceptive Business Practices (Plaintiffs Hepting, Hicks, Jewel and Knutzen and the California Subclass vs. Defendants)

24

133. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

25 paragraphs of this complaint, as if set forth fully herein.
26

134. Defendants have engaged in unfair, unlawfuland/or fraudulent business practices as 27

28 set forth above.

AMENDED COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF – C-06-0672-JCS

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1

135. By engaging in the acts and practices described herein, Defendants have committed

2 one or more unfair business practices within the meaning of Bus. & Prof. Code §§17200, et seq.
3 Specifically, Defendants’ busine ss practices offend the public po licies set forth in California 4
Constitution Art. 1, section 1. 5
136. Defendants’ above-described decep tive and misleading acts and practices have 6 7 deceived and/or are likely to deceive Plaintiffs and other California Subclass members. Plaintiffs
8 were, in fact, deceived as to the terms and conditions of services provided by defendants. Plaintiffs

9 and California Subclass members have suffered harm as a result of Defendants’ misrepresentations

10 and/or omissions.

11

137. Defendants’ acts and practices are also unlawful because, as described above, they

12 violate the First and Fourth Amendments to the United States Constitution, 50 U.S.C. §1809, 18
13

U.S.C. §2511, 47 U.S.C. §605, 18 U.S.C. §2702(a)(1) and/or (a)(2), and 18 U.S.C. §2702(a)(3). 14

15

138. AT&T Corp.’s acts and practices are also unlawful because they violate 18 U.S.C.

16 §3121.

17

139. In relevant part, 18 U.S.C. §3121 provides that:

18

(a) In general. – Except as provided in this section, no person may install or use a

19

pen register or a trap an d trace device without first obtaining a court order under section 3123 of this title or under the Foreign Intelligence Surveillance Act of 1978

20

(50 U.S.C. 1801 et seq.).

21 As defined by 18 U.S.C. §3127:

22

(3) the term “pen regis ter” means a device or p rocess which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or

23

facility from which a wire or elec tronic communication is transmitted, provided, however, that such information shall not include the contents of any communication,

24

but such term does not include any device orprocess used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident

25

to billing, for communications services provided by such provider or any device or process used by a provider or custom er of a wire comm unication service for cost

26

accounting or other like purposes in the ordinary course of its business;

27

(4) the term “trap and trace device” means a device or process which captures the incoming electronic or other impulses which identify the originating number or other

28

dialing, routing, addressing, and signaling information reasonably likely to identify

AMENDED COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF – C-06-0672-JCS

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Case3:06-cv-00672-VRW Document8 Filed02/22/06 Page28 of 33

1

the source of a wire or electronic co mmunication, provided, however, that such

information shall not include the contents of any communication;

2

140. On information and belief, AT&T Corp. installed or used pen registers and/or trap

3

and trace devices without first obtaining a court order under 18 U.S.C. §3123 or under the Foreign 4

5 Intelligence Surveillance Act of 1978 (50 U.S.C. §§1801, et seq.), and continue to do so.

6

141. On information and belief, the pen registers and/or trap and trace devices installed

7 and used by AT&T Corp. have captured, recorded, or decoded, and continue to capture, record or
8 decode, dialing, routing, addressingor signaling information pertaining to Plaintiff and/or California 9
Subclass members’ wire or electronic communications. 10
142. AT&T Corp. did not notify Plaintiffs or California Subclass m embers of the 11 12 installation or use of pen regist ers and/or trap and trace dev ices, nor did Plaintiffs or California
13 Subclass members consent to such.

14

143. AT&T Corp.’s acts and practices are also unlawful because they violate 47 U.S.C.

15 §222, which in relevant part provides that:

16

(c) Confidentiality of customer proprietary network information – (1) Privacy

17

requirements for telecommunications carriers – Except as required by law or with the

approval of the custom er, a telecommunications carrier th at receives or obtains

18

customer proprietary network inform ation by virtue of its provision of a

telecommunications service shall only use,disclose, or permit access to individually

19

identifiable customer proprietary network information in its provision of (A) the

20

telecommunications service from which such information is derived, or (B) services necessary to, or used in, the provisionof such telecommunications service, including

21

the publishing of directories.

22

144. AT&T Corp. is a telecommunications carrierthat obtains and hasobtained customer

23 proprietary network information by virtue of its provision of telecommunications service.

24

145. On information and belief, AT&T Corp. used, disclosed and/or provided to

25 government entities individually identifiable customer proprietary network information pertaining to
26 Plaintiffs and California Subclass members, and continue to do so.
27

28

AMENDED COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF – C-06-0672-JCS

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Case3:06-cv-00672-VRW Document8 Filed02/22/06 Page29 of 33

1

146. AT&T Corp. did not notify Plaintiffs or California Subclass m embers of the

2 disclosure and/or provision of their personally identifiable customer proprietary network information
3 to government entities, nor did Plaintiffs or California Subclass members consent to such. 4
147. Plaintiffs and the California Subclass have suffered injury in fact and have lost money 5
or property as a result of such unfair and unlaw ful business practices. Such injuries and losses 6 7 include, but are not lim ited to, the service fees and other fees a nd charges paid to AT&T Corp.
8 Neither the Plaintiffs nor any reasonable California Subclass member would have paid such fees and

9 charges for AT&T Corp. services had they fi rst known of AT&T Corp.’s unlawful acts and

10 practices.

11

148. On information and belief, there is a strong likelihood that Defendants are now

12 engaging in and will continue to engage in the above-described electronic surveillance, disclosure,
13

and/or use of Plaintiffs’ and class members’ wire communications, and that likelihood represents a 14

15 credible threat of immediate future harm.

16

149. Plaintiffs and the California Subclass seekrestitution, disgorgement, injunctive relief

17 and all other relief from Defendants allowed under §§17200, et seq. Plaintiffs and the California

18 Subclass also seek attorneys’ fees pursuant to Cal. Code Civ. Proc. §1021.5, as well as such other

19 and further relief as the Court deems just and proper.

20

PRAYER FOR RELIEF 21

WHEREFORE, the Plaintiffs for themselves and all others similarly situated respectfully 22

request that the Court: 23

A. Declare that Defendants’ part icipation in the P rogram as alleged herein violates 24

applicable law including without limitation: 25

(i)

The First and Fourth Amendments to the United States Constitution,

26

50 U.S.C. §1809, 18 U.S.C. §2511, 47 U.S.C. §605, and 18 U.S.C. §2702, as to Plaintiffs and the 27

Nationwide Class; and 28

AMENDED COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF – C-06-0672-JCS

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Case3:06-cv-00672-VRW Document8 Filed02/22/06 Page30 of 33

1

(ii)

Cal. Bus. & Prof. Code §§17200, et seq., as to Plaintiffs and the

2 California Subclass.

3

B. Award equitable relief, including without limitation, a preliminary and permanent

4 injunction prohibiting Defendants’ continued or future participation in the Program:

5

(i)

Pursuant to the Firs t and Fourth Amendments to the Unite d States

6 Constitution, 50 U.S.C. §1810, 18 U.S.C. §2520(b)(1), 47 U.S.C. §605(e)(3)(b)(i), and 18 U.S.C.

7 §2707(b)(1), as to the Plaintiffs and the Nationwide Class; and

8

(ii)

Pursuant to Cal. Bus. & Prof. Code §§17200, et seq., as to Plaintiffs

9 and California Subclass;

10

C. Award statutory damages to the extent permitted by law to each Plaintiff and class

11 member in the sum of:

12

(i)

$100 per day for each dayof violation of 50 U.S.C. §1809 aggrieving

13 that Plaintiff or class member or $1,000, whichever is greater, pursuant to 50 U.S.C. §1810(a);

14

(ii)

$100 a day for each violation of 18 U.S.C. §2511 aggrieving that

15 Plaintiff or class member or $10,000, whichever is greater, pursuant to 18 U.S.C. §2520(c)(2)(A);

16

(iii)

Not less than $1,000 or m ore than $10,000 for each violation

17 aggrieving that Plaintiff or class m ember, as the court considers just, pursuant to 47 U.S.C.

18 §605(e)(3)(C)(i)(II); and

19

(iv)

$1000 pursuant to 18 U.S.C. §2707(c);

20

D. Award punitive damages to the extent permitted by law to each Plaintiff and class

21 member, including without limitation:

22

(i)

An appropriate sum pursuant to 50 U.S.C. §1810(b);

23

(ii)

An appropriate sum pursuant to 18 U.S.C. §2520(b)(2); and

24

(iii)

Not more than $100,000 per violationof 47 U.S.C. §605(a) aggrieving

25 that Plaintiff or class member, in the court’s discretion, pursuant to 47 U.S.C. §605(e)(3)(C)(ii);

26

E. Award to Plaintiffs attorneys’ fees and other costs of suit to the extent permitted by

27 law, including without limitation pursuant to 50U.S.C. §1810(c), 18 U.S.C. §2520(b)(3), 47 U.S.C.

28 §605(e)(3)(B)(iii), 18 U.S.C. §2707(b)(3), and Cal. Code Civ. Proc. §1021.5;

AMENDED COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF – C-06-0672-JCS

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Case3:06-cv-00672-VRW Document8 Filed02/22/06 Page31 of 33

1

F. Award restitution, disgorgement, preliminary and permanent injunctive relief and all

2 other relief allowed under §§17200, et seq. to Plaintiffs and the California Subclass;

3

G. Grant such other and further relief as the Court deems just and proper.

4

JURY DEMAND

5

Plaintiffs hereby request a jury trial for all issues triable by jury including, but not limited to,

6 those issues and claims set forth in any amended complaint or consolidated action.

7 DATED: February 22, 2006 8 9

LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP
REED R. KATHREIN JEFF D. FRIEDMAN SHANA E. SCARLETT

10

11

s/ REED R. KATHREIN

REED R. KATHREIN

12

100 Pine Street, Suite 2600

13

San Francisco, CA 94111

Telephone: 415/288-4545

14

415/288-4534 (fax)

15

TRABER & VOORHEES

BERT VOORHEES

16

THERESA M. TRABER

128 North Fair Oaks Avenue, Suite 204

17

Pasadena, CA 91103

Telephone: 626/585-9611

18

626/577-7079 (fax)

19

ELECTRONIC FRONTIER FOUNDATION

CINDY COHN

20

LEE TIEN

KURT OPSAHL

21

KEVIN S. BANKSTON

CORYNNE MCSHERRY

22

JAMES S. TYRE

454 Shotwell Street

23

San Francisco, CA 94110

Telephone: 415/436-9333

24

415/436-9993 (fax)

25 26 T:\CasesSF\AT&T Privacy\cpt00028368.doc

Attorneys for Plaintiffs

27

28

AMENDED COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF – C-06-0672-JCS

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Case3:06-cv-00672-VRW Document8 Filed02/22/06 Page32 of 33

1

CERTIFICATE OF SERVICE

2

I hereby certify that on February 22, 2006, I elecrtonically filed the foregoing with the Clerk

3 of the Court using the CM/ECF system which will send notification of such filing to the e-mail

4 addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have

5 mailed the foregoing document or paper via the United States Postal Service to the non-CM/ECF

6 participants indicated on the attached Manual Notice List.

7

s/ REED R. KATHREIN

REED R. KATHREIN

8

LERACH COUGHLIN STOIA GELLER

9

RUDMAN & ROBBINS LLP

100 Pine Street, 26th Floor

10

San Francisco, CA 94111

Telephone: 415/288-4545

11

415/288-4534 (fax)

E-mail:

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CAND-ECF

Case3:06-cv-00672-VRW Document8 Filed02/22/06 Page33 of 33

Mailing Information for a Case 3:06-cv-00672-VRW

Page 1 of 1

Electronic Mail Notice List

The following are those who are currently on the list to receive e-mail notices for this case.

z Kevin Stuart Bankston bankston@eff.org
z Cindy Ann Cohn cindy@eff.org wendy@eff.org;barak@eff.org

z Jeff D Friedman JFriedman@lerachlaw.com RebeccaG@lerachlaw.com

z Reed R. Kathrein reedk@lerachlaw.com e_file_sd@lerachlaw.com;e_file_sf@lerachlaw.com

z Corynne McSherry corynne@eff.org

z Kurt Opsahl kurt@eff.org

z Shana Eve Scarlett shanas@lerachlaw.com e_file_sd@lerachlaw.com;e_file_sf@lerachlaw.com

z Theresa M. Traber, Esq tmt@tvlegal.com

z James Samuel Tyre jstyre@jstyre.com jstyre@eff.org

z Bert Voorhees bv@tvlegal.com

Manual Notice List

The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these recipients.
Lee Tien Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110

https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?642977593428803-L_293_0-1

2/22/2006

 Case3:06-cv-00672-VRW Document122 Filed05/13/06 Page1 of 10

1 PETER D. KEISLER Assistant Attorney General, Civil Division
2 CARL J. NICHOLS Deputy Assistant Attorney General
3 DOUGLAS N. LETTER Terrorism Litigation Counsel
4 JOSEPH H. HUNT Director, Federal Programs Branch
5 ANTHONY J. COPPOLINO Special Litigation Counsel
6 tony.coppolino@usdoj.gov ANDREW H. TANNENBAUM
7 Trial Attorney andrew.tannenbaum@usdoj.gov
8 U.S. Department of Justice Civil Division, Federal Programs Branch
9 20 Massachusetts Avenue, NW Washington, D.C. 20001
10 Phone: (202) 514-4782/(202) 514-4263 Fax: (202) 616-8460/(202) 616-8202/(202) 318-2461
11
Attorneys for Intervenor Defendant United States of America
12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

)

16 TASH HEPTING, GREGORY HICKS )

CAROLYN JEWEL and ERIK KNUTZEN )

17 on Behalf of Themselves and All Others )

Similarly Situated,

)

18

)

Plaintiffs,

)

19

)

v.

)

20

)

)

21 AT&T CORP., AT&T INC. and

)

DOES 1-20, inclusive,

)

22

)

)

23

Defendants.

)

____________________________________)

24

Case No. C-06-0672-VRW

NOTICE OF MOTION AND MOTION TO INTERVENE BY THE UNITED STATES OF AMERICA

Judge:

The Hon. Vaughn R. Walker

Hearing Date: June 21, 2006

Courtroom: 6, 17th Floor

25

26

27
MOTION TO INTERVENE BY THE UNITED STATES OF AMERICA
28 Case No. C 06-0672-VRW

Case3:06-cv-00672-VRW Document122 Filed05/13/06 Page2 of 10

1

NOTICE OF MOTION AND MOTION TO INTERVENE

2

PLEASE TAKE NOTICE that, on June 21, 2006,1 before the Honorable Vaughn R.

3 Walker, intervenor United States of America will move, pursuant to Rule 24(a) of the Federal

4 Rules of Civil Procedure, for an order allowing the United States to intervene in this action for

5 the purpose of seeking dismissal. The grounds in support of this motion are set out in the United

6 States' memorandum below.

7

MEMORANDUM OF SUPPORTING POINTS AND AUTHORITIES

8

INTRODUCTION

9

Plaintiffs, subscribers of various communications services of AT&T Corporation, bring

10 this purported class action alleging that AT&T Corporation and AT&T Incorporated (together,

11 “AT&T”) participated in a Government program to intercept and analyze Americans’ telephone

12 and Internet communications in violation of certain federal electronic surveillance and

13 telecommunications statutes as well as the First and Fourth Amendments of the United States

14 Constitution. Through the present motion, the United States seeks to intervene in this action,

15 pursuant to Federal Rule of Civil Procedure 24(a), for the purpose of seeking dismissal of this

16 action. For the reasons set forth below, the United States clearly meets all the requirements for

17 intervention under Rule 24(a): (1) its application for intervention is timely; (2) the United States

18 has a significantly protectable interest relating to the subject matter of this action, i.e., the

19 preservation of state secrets, as set forth in its separate assertion of the military and states secrets

20 privilege, and the protection of information covered by statutory privileges; (3) the United States

21 needs to intervene because this action challenges alleged Government surveillance activities; and

22 (4) no other party in this lawsuit could adequately represent the United States’ interest.

23 Accordingly, the United States’ motion to intervene should be granted.

24

25

1 The United States has filed an Administrative Motion to Set Hearing Date for the

United States’ Motions requesting that the Court set the hearing date for this motion and the 26 United States’ Motion To Dismiss Or, In The Alternative, For Summary Judgment, for June 21,

27 2006 – the present hearing date for Plaintiffs’ Motion For Preliminary Injunction.

MOTION TO INTERVENE BY THE UNITED STATES OF AMERICA
28 Case No. C 06-0672-VRW

Case3:06-cv-00672-VRW Document122 Filed05/13/06 Page3 of 10

1

FACTUAL BACKGROUND

2 A. The Terrorist Surveillance Program

3

The President has explained that, following the devastating events of September 11,

4 2001, he authorized the National Security Agency (“NSA”) to intercept international

5 communications into and out of the United States of persons linked to al Qaeda or related

6 terrorist organizations. See Press Conference of President Bush (Dec. 19, 2005), available at

7 http://www.whitehouse.gov/news/releases/2005/12/20051219-2.html (“President’s Press

8 Conference”). The Attorney General has further explained that in order to intercept a

9 communication, there must be “a reasonable basis to conclude that one party to the

10 communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an

11 organization affiliated with al Qaeda.” Press Briefing by Attorney General Alberto Gonzales

12 and General Michael Hayden, Principal Deputy Director for National Intelligence (Dec. 19,

13 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html. The

14 purpose of these intercepts is to provide the United States with an early warning system to detect

15 and prevent another catastrophic terrorist attack on the United States. See President’s Press

16 Conference. The President has stated that the NSA activities “ha[ve] been effective in disrupting

17 the enemy, while safeguarding our civil liberties.” Id.

18 B. Allegations in Plaintiffs’ Amended Complaint

19

Following the President’s statements, Plaintiffs filed the instant suit alleging that AT&T

20 is participating in a Government program to intercept and analyze vast quantities of Americans’

21 telephone and Internet communications “without the authorization of a court and in violation of

22 federal electronic surveillance and telecommunications statutes, as well as the First and Fourth

23 Amendments to the United States Constitution.” Amended Complaint for Damages, Declaratory

24 and Injunctive Relief (“Amended Complaint”) ¶ 2. Plaintiffs assert that the NSA began this

25 alleged classified surveillance program (which they call “the Program”) shortly after September

26 11, 2001, “to intercept the telephone and Internet communications of people inside the United

27

MOTION TO INTERVENE BY THE UNITED STATES OF AMERICA

28 Case No. C 06-0672-VRW

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Case3:06-cv-00672-VRW Document122 Filed05/13/06 Page4 of 10

1 States without judicial authorization. . . .” Id. ¶ 32. Plaintiffs state that neither the President nor

2 the Attorney General personally approves the particular targets of the alleged surveillance;

3 instead, they assert, NSA operational personnel identify particular persons, telephone numbers or

4 Internet addresses as potential surveillance targets, with supervisory approval. Id. ¶¶ 36-37.

5

Plaintiffs further claim, based on their “information and belief,” that NSA personnel have

6 also “intercepted large volumes of domestic and international telephone and Internet traffic in

7 search of patterns of interest.” Id. ¶ 38. Plaintiffs allege that through this “data-mining

8 program,” the NSA intercepts “millions of communications made or received by people inside

9 the United States, and uses powerful computers to scan their contents for particular names,

10 numbers, words or phrases.” Id. ¶ 39. They claim that the NSA analyzes this communications

11 traffic data “to identify persons whose communications patterns the government believes may

12 link them, even if indirectly, to investigatory targets.” Id. ¶ 40. Plaintiffs allege that the NSA

13 has accomplished this surveillance program by “arranging with some of the nation’s largest

14 telecommunications companies, including AT&T, to gain direct access to the telephone and

15 Internet communications transmitted via those companies’ domestic telecommunications

16 facilities,” as well as to gain access to those companies’ communications records. Id. ¶ 41.

17

Plaintiffs claim that defendant AT&T has provided and continues to provide the

18 Government with direct access to all or a substantial number of the communications transmitted

19 through its domestic telecommunications facilities and has installed interception devices to allow

20 for such access. Id. ¶¶ 42-46. They further allege that AT&T used these interception devices,

21 and continue to use them, to acquire wire or electronic communications to which plaintiffs and

22 purported class members were a party, as well as to acquire other information pertaining to those

23 communications. Id. ¶ 47. And Plaintiffs allege that AT&T has provided the Government with

24 direct access to their databases of stored telephone and Internet records, including those of

25 Plaintiffs and the class members. See, e.g., id. ¶¶ 48-52.

26

Plaintiffs bring this action on behalf of themselves as well as a nationwide class of

27

MOTION TO INTERVENE BY THE UNITED STATES OF AMERICA

28 Case No. C 06-0672-VRW

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1 subscribers – past and present since September 2001 – of AT&T’s residential telephone or

2 Internet services.2 Id. ¶ 65. They seek declaratory and injunctive relief and damages pursuant to

3 50 U.S.C. § 1810; 18 U.S.C. § 2520; 47 U.S.C. § 605; and 18 U.S.C. § 2707. Id. ¶ 66 & Counts

4 II-VI. They also seek declaratory and injunctive relief under the First and Fourth Amendments

5 of the U.S. Constitution. Id. ¶ 66 & Count I.

6

ARGUMENT

7

THE UNITED STATES IS ENTITLED TO INTERVENE AS A MATTER OF RIGHT

8

Rule 24(a) provides:

9

Upon timely application anyone shall be permitted to intervene in

an action: (1) when a statute of the United States confers an

10

unconditional right to intervene; or (2) when the applicant claims

an interest relating to the property or transaction which is the

11

subject of the action and the applicant is so situated that the

disposition of the action may as a practical matter impair or

12

impede the applicant’s ability to protect that interest, unless the

applicant’s interest is adequately represented by existing parties.

13

Fed. R. Civ. P. 24(a). A potential intervenor must meet four requirements to satisfy Rule 24(a):

14

“(1) the application for intervention must be timely; (2) the applicant must have a ‘significantly

15

protectable’ interest relating to the property or transaction that is the subject of the action; (3) the

16

applicant must be so situated that the disposition of the action may, as a practical matter, impair

17

or impede the applicant’s ability to protect that interest; and (4) the applicant’s interest must not

18

be adequately represented by the existing parties in the lawsuit.” Southwest Ctr. for Biological

19

Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001) (citing Northwest Forest Resource Council

20

v. Glickman, 82 F.3d 825, 836 (9th Cir. 1996)). The Ninth Circuit generally construes Rule

21

24(a) liberally in favor of potential intervenors. Southwest Ctr. for Biological Diversity, 268

22

F.3d at 818; see also United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004) (“the

23

24 2 Plaintiffs also seek a subclass of California residents that are subscribers – past and
25 present since September 2001 – of AT&T’s residential telephone or Internet services. Id.
¶ 67. In addition to the relief sought by Plaintiffs and the nationwide class, the California 26 subclass seeks relief for alleged unfair, unlawful, and deceptive business practices. See id. Count
27 VII.

MOTION TO INTERVENE BY THE UNITED STATES OF AMERICA

28 Case No. C 06-0672-VRW

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Case3:06-cv-00672-VRW Document122 Filed05/13/06 Page6 of 10

1 requirements for intervention are broadly interpreted in favor of intervention”). The United

2 States clearly meets all the standards for intervention.

3

First, there should be no question that the Government’s motion to intervene is timely

4 within the meaning of Rule 24. “In determining whether a motion for intervention is timely, we

5 consider three factors: ‘(1) the stage of the proceeding at which an applicant seeks to intervene;

6 (2) the prejudice to other parties; and (3) the reason for and length of the delay.” League of

7 United Latin American Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997) (quoting County

8 of Orange v. Air California, 799 F.2d 535, 537 (9th Cir. 1986)). This case is only in its initial

9 stages. Plaintiffs filed their Amended Complaint on February 22, 2006. See Docket No. 8. On

10 March 6, 2006, the parties filed a Stipulation Setting Uniform Time for Defendants and Possible

11 Intervener to Respond to Plaintiffs’ Amended Complaint, in which the Court was advised of the

12 United States’ possible interest or participation in the matter. See Docket No. 13. On April 28,

13 2006, the United States filed its First Statement of Interest, which explained that the United

14 States had determined it would assert the military and state secrets privilege (hereinafter, “state

15 secrets privilege”) and that it would, by May 12, 2006, move to intervene in this case and seek

16 its dismissal. See Docket No. 82. The United States has thus moved to intervene and to dismiss

17 or, in the alternative, for summary judgment, prior to the scheduled hearing date for Plaintiffs’

18 motion for preliminary injunction (June 21, 2006), see Order Dated April 26, 2006 (Docket No.

19 78), and before the scheduling conference presently set for May 17, 2006. There can be no

20 dispute that this motion is timely.

21

Second, the United States clearly has an interest relating to the subject matter of this

22 action. This case involves a challenge to AT&T’s alleged role in the activities described by the

23 President relating to his authorization of NSA to intercept international communications into and

24 out of the United States of persons linked to al Qaeda or related terrorist organizations, as well as

25 challenges to alleged activities beyond those described by the President. The United States has

26 asserted the state secrets privilege and statutory privileges in this matter, and is hereby moving to

27

MOTION TO INTERVENE BY THE UNITED STATES OF AMERICA

28 Case No. C 06-0672-VRW

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Case3:06-cv-00672-VRW Document122 Filed05/13/06 Page7 of 10

1 intervene for the purpose of moving to dismiss or, in the alternative, for summary judgment.3

2 Because the lawsuit challenges alleged intelligence activities of the United States and because

3 the United States has asserted the state secrets privilege and statutory privileges over information

4 at issue, the Government’s interest satisfies requirements of Rule 24(a).

5

Third, for these very reasons – that the lawsuit challenges alleged activities of the United

6 States and that the United States has asserted the state secrets privilege and statutory privileges –

7 the United States is simultaneously seeking dismissal or, in the alternative, summary judgment.

8 It is appropriate to permit the United States to intervene to seek such dismissal. See

9 Zuckerbraun v. General Dynamics Corp., 935 F.2d 544, 546-48 (2nd Cir. 1991) (United States

10 intervened and successfully sought dismissal of the action based on the assertion of the state

11 secrets privilege); Fitzgerald v. Penthouse Int’l, Ltd., 77 F.2d 1236, 1239 (4th Cir. 1985) (court

12 allowed intervention where United States has a national interest in proceedings); see also Kasza

13 v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998) (“‘if the very subject matter of the action’ is a

14 state secret, then the court should dismiss the plaintiff’s action based solely on the invocation of

15 the state secrets privilege”) (quoting Reynolds, 345 U.S. at 11 n. 26).

16

Finally, the United States’ interest is not adequately represented by the parties to the

17 litigation. In determining whether a potential intervenor’s interests will be adequately

18 represented by an existing party, courts consider: “(1) whether the interest of a present party is

19 such that it will undoubtedly make all the intervenor’s arguments; (2) whether the present party

20 is capable and willing to make such arguments; and (3) whether the would-be intervenor would

21 offer any necessary elements to the proceedings that other parties would neglect.” Southwest

22 Ctr. for Biological Diversity, 268 F.3d at 822. The intervenor’s burden of showing that the

23 existing parties may not adequately represent its interest is “minimal,” and the potential

24

25

3 The state secrets privilege permits the Government to protect against the unauthorized

disclosure in litigation of information that may harm national security interests. See United 26 States v. Reynolds, 345 U.S. 1, 7-8 (1953). Specific statutory privileges also permit the

27 Government to protect against disclosure of intelligence-related activities.

MOTION TO INTERVENE BY THE UNITED STATES OF AMERICA

28 Case No. C 06-0672-VRW

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Case3:06-cv-00672-VRW Document122 Filed05/13/06 Page8 of 10

1 intervenor “need only show that representation of its interests by existing parties ‘may be’

2 inadequate.” Id. at 822-23 (citing Trbobich v. United Mine Workers, 404 U.S. 528, 538 n. 10

3 (1972)). The court’s focus should be on the “subject of the action.” Southwest Center for

4 Biological Diversity, 268 F.3d at 823 (citation omitted).

5

None of the parties has either the obligation or the ability to assert the state secrets

6 privilege or specified statutory privileges in this litigation. The privilege belongs to the

7 Government alone and cannot be asserted by private citizens. See Reynolds, 345 U.S. at 7-8

8 (state secrets privilege must be asserted by head of department which has control over issue).

9 Indeed, the parties are not aware of the breadth of the information covered by the privilege, and

10 because information covered by the privilege is classified, they would, in any event, be unable to

11 present the issues to the Court effectively and properly. Moreover, the parties’ interest may well

12 be in the disclosure of state secrets to the extent that doing so might assist them in presenting

13 their claims or defenses fully to vindicate their own private interests. Thus, only the United

14 States is in a position to protect against the disclosure of information over which it has asserted

15 the state secrets privilege, and the United States is the only entity properly positioned to explain

16 to the Court why continued litigation of the matter threatens the national security. Accordingly,

17 the United States should be permitted to intervene for the purpose of moving to dismiss this

18 action on state secrets grounds.

19

Having satisfied the requirements of Rule 24(a), the United States should be allowed to

20 intervene as of right.4

21

22

23

24

25

4 In the alternative, Rule 24(b) allows for permissive intervention where the motion is

timely, the party has an interest in the litigation, and there is no undue delay or prejudice to the 26 parties in allowing the intervention. See Fed. R. Civ. P. 24(b). As the discussion above

27 demonstrates, the Government has met these standards for permissive intervention.

MOTION TO INTERVENE BY THE UNITED STATES OF AMERICA

28 Case No. C 06-0672-VRW

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Case3:06-cv-00672-VRW Document122 Filed05/13/06 Page9 of 10

1

CONCLUSION

2

Accordingly, the United States respectfully requests that the Court grant its motion to

3 intervene pursuant to Fed. R. Civ. P. 24(a).

4

Respectfully submitted,

5

PETER D. KEISLER

Assistant Attorney General, Civil Division

6

CARL J. NICHOLS

7

Deputy Assistant Attorney General

8

DOUGLAS N. LETTER

Terrorism Litigation Counsel

9

JOSEPH H. HUNT

10

Director, Federal Programs Branch

11

s/Anthony J. Coppolino

ANTHONY J. COPPOLINO

12

Special Litigation Counsel

tony.coppolino@usdoj.gov

13

s/Andrew H. Tannenbaum

14

ANDREW H. TANNENBAUM

Trial Attorney

15

andrew.tannenbaum@usdoj.gov

U.S. Department of Justice

16

Civil Division, Federal Programs Branch

20 Massachusetts Avenue, NW

17

Washington, D.C. 20001

Phone: (202) 514-4782/(202) 514-4263

18

Fax: (202) 616-8460/(202) 616-8202/(202) 318-2461

19

Attorneys for Intervenor Defendant United States

20 DATED: May 12, 2006

21

22

23

24

25

26

27

MOTION TO INTERVENE BY THE UNITED STATES OF AMERICA

28 Case No. C 06-0672-VRW

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Case3:06-cv-00672-VRW Document122 Filed05/13/06 Page10 of 10

1

CERTIFICATE OF SERVICE

2 I hereby certify that the foregoing NOTICE OF MOTION AND MOTION TO
3 INTERVENE BY THE UNITED STATES OF AMERICA will be served by means of the
4 Court’s CM/ECF system, which will send notifications of such filing to the following:
5

6 Electronic Frontier Foundation Cindy Cohn
7 Lee Tien Kurt Opsahl
8 Kevin S. Bankston Corynne McSherry
9 James S. Tyre 545 Shotwell Street
10 San Francisco, CA 94110

11 Lerach Coughlin Stoia Geller Rudman & Robbins LLP Reed R. Kathrein
12 Jeff D. Friedman Shana E. Scarlett
13 100 Pine Street, Suite 2600 San Francisco, CA 94111
14
Traber & Voorhees 15 Bert Voorhees
Theresa M. Traber 16 128 North Fair Oaks Avenue, Suite 204
Pasadena, CA 91103
17
Pillsbury Winthrop Shaw Pittman LLP 18 Bruce A. Ericson
David L. Anderson 19 Patrick S. Thompson
Jacob R. Sorensen 20 Brian J. Wong
50 Freemont Street 21 PO Box 7880
San Francisco, CA 94120-7880
22
Sidney Austin LLP 23 David W. Carpenter
Bradford Berenson 24 Edward R. McNicholas
David L. Lawson 25 1501 K Street, NW
Washington, DC 20005
26
s/ Anthony J. Coppolino
27
CERTIFICATE OF SERVICE, Case No. C 06-0672-VRW
28

 Case3:06-cv-00672-VRW Document282 Filed06/26/06 Page1 of 1

United States District Court For the Northern District of California

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 TASH HEPTING, et al,

No C-06-672 VRW

12

Plaintiffs,

ORDER

13

v

14 AT&T CORPORATION, et al,

15

Defendants.

/ 16

17

At the June 23, 2006, hearing, the court granted the

18 government’s unopposed motion to intervene (Doc #122). The

19 remaining motions addressed by the parties at the hearing remain

20 under submission.

21

22

IT IS SO ORDERED.

23

24

25

VAUGHN R WALKER

26

United States District Chief Judge

27

28

 Case3:06-cv-00672-VRW Document390 Filed07/21/09 Page1 of 1

1

2

IN THE UNITED STATES DISTRICT COURT

3 FOR THE NORTHERN DISTRICT OF CALIFORNIA
4

5

6 TASH HEPTING, et al,

No. C 06-0672 VRW

7 8 v.

Plaintiff(s),

JUDGMENT IN A CIVIL CASE

9 AT&T COMMUNICATIONS, et al.,

10

Defendant(s).

/

11

12

(X) Decision by Court. This action came to trial or hearing before the Court. The

13 issues have been tried or heard and a decision has been rendered.

14

IT IS ORDERED AND ADJUDGED that in accordance with the Court’s June 3,

15 2009 Order, judgment is hereby entered in favor of all defendants.

16

17

18 Dated: July 21, 2009

Richard W. Wieking, Clerk

19

By:

20

Deputy Clerk

21

22

23

24

25

26

27

28

 CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe1agoef:513of 53

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
 In re: N ATIONAL SECURITY AGENCY
TELECOMMUNICATIONS RECORDS LITIGATION,

TASH HEPTING; GREGORY HICKS; ERIK KNUTZEN; CAROLYN JEWEL, on
 behalf of themselves and all other
similarly situated, Plaintiffs-Appellants,
v.
AT&T CORPORATION; AT&T, I NC., Defendants-Appellees,
UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16676
D.C. Nos. 3:06-cv-00672-
VRW M:06-cv-01791-
VRW

SEAN BASINSKI, on behalf of



himself and all others similarly

situated; ALL PLAINTIFFS,

Plaintiffs-Appellants,

v.



VERIZON COMMUNICATIONS, INC.;

VERIZON,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16677
D.C. Nos. 3:06-cv-06434-
VRW M-06-cv-01791-
VRW

21545

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe2agoef:523of 53

21546

HEPTING v. AT&T C ORP.

RICHARD D. S UCHANEK, III, on



behalf of himself and all others

similarly situated; A LL PLAINTIFFS,

Plaintiffs-Appellants,

v.



SPRINT NEXTEL CORPORATION,

Defendant-Appellee,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16679
D.C. Nos. 3:06-cv-06295-
VRW M:06-cv-01791-
VRW

CHARLES F. B ISSITT; SANDRA



BISSITT; GEORGE HAYEK, III; J UNE

MATRUMALO; GERARD THIBEAULT;

ARTHUR BOUCHARD; MARYANN

BOUCHARD; ALDO CAPARCO; JANICE

CAPARCO; JENNA CAPARCO; ROSE

DELUCA; NICOLE MIRABELLA;

PATRICIA POTHIER; PAUL POTHIER;

MARSHALL VOTTA; VINCENT MATRUMALO; PAULA MATRUMALO;



JENNIFER THOMAS; CHRISTINE

DOUQUETTE; MARYANN KLACZYNSKI;

ALL PLAINTIFFS,

Plaintiffs-Appellants,

v.

VERIZON COMMUNICATIONS, INC.; VERIZON,
 Defendants-Appellees.

No. 09-16682
D.C. Nos. 3:06-cv-05066-
VRW M:06-cv-01791-
VRW

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe3agoef:533of 53

HEPTING v. AT&T C ORP.

21547

CHRISTOPHER BREADY; ANNE



BREADY; KYU CHUN KIM; JENET

ARTIS; CLAUDIS ARTIS; DAVID

BEVERLY, Jr.; A LL PLAINTIFFS,

 Plaintiffs-Appellants, v.

VERIZON MARYLAND, INC.; VERIZON, Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16683
D.C. Nos. 3:06-cv-06313-
VRW M:06-cv-01791-
VRW

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe4agoef:543of 53

21548

HEPTING v. AT&T C ORP.

TOM CAMPBELL; GEORGE MAIN;



DENNIS P. R IORDAN; MARGARET

RUSSELL; ROBERT SCHEER; PETER

SUSSMAN; RICHARD BELZER; MARC

COOPER; STEPHEN J. M ATHER;

SANDRA RICHARDS; CURREN WARF;

AMERICAN CIVIL LIBERTIES UNION OF

NORTHERN CALIFORNIA, a nonprofit

corporation; ACLU OF SOUTHERN

CALIFORNIA, a nonprofit

corporation; AMERICAN CIVIL

LIBERTIES UNION OF SAN DIEGO/IMPERIAL COUNTIES, a



nonprofit corporation; A LL

PLAINTIFFS,

Plaintiffs-Appellants,

v.

AT&T COMMUNICATIONS OF CALIFORNIA, a corporation; AT&T CORP., a corporation,
Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16684
D.C. Nos. 3:06-cv-03596-
VRW M:06-cv-01791-
VRW

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe5agoef:553of 53

HEPTING v. AT&T C ORP.

21549

DENNIS P. R IORDAN; EDWARD



GERARD DE BONIS; ROBERT S.

GERSTEIN; ROD GORNEY; ROBERT

JACOBSON; VINCENT J. M ANISCALCO;

CAROL SOBEL; AMERICAN CIVIL

LIBERTIES UNION OF NORTHERN

CALIFORNIA, a nonprofit

corporation; ACLU OF SOUTHERN

CALIFORNIA, a nonprofit

corporation; AMERICAN CIVIL

LIBERTIES UNION OF SAN DIEGO/IMPERIAL COUNTIES, a



nonprofit corporation; A LL

PLAINTIFFS,

Plaintiffs-Appellants,

v.

VERIZON COMMUNICATIONS, INC., a corporation; VERIZON,
Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16685
D.C. Nos. 3:06-cv-03574-
VRW M:06-cv-01791-
VRW

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe6agoef:563of 53

21550

HEPTING v. AT&T C ORP.

GLEN CHULSKY; ALEJANDRO



TROMBLEY; SAMUEL FISHER; OMAR

MORENO; PAUL ROBILOTTI; STEPHEN

TERNLUND; ANATOLY SAPOZNICK;

ALL PLAINTIFFS,

Plaintiffs-Appellants,

v.



CELLCO PARTNERSHIP, DBA

Verizon Wireless; V ERIZON,

Verizon Communications, Inc.;

AT&T, INC.; CINGULAR WIRELESS,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16686
D.C. Nos. 3:06-cv-06570-
VRW M:06-cv-01791-
VRW

CHARMAINE CROCKETT; A. J ORIS



WATLAND; ANAKALIA KALUNA; KIM

COCO IWAMOTO; WILLIAM R.

MASSEY, individually and on

behalf of all others similarly

situated; ALL PLAINTIFFS,

Plaintiffs-Appellants,

v.



VERIZON WIRELESS, (VAW) LLC;

HAWAIIAN TELECOM, INC., DBA

Verizon Hawaii; N EXTEL WEST

CORP., DBA Sprint; C INGULAR

WIRELESS LLC; V ERIZON,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16687
D.C. Nos. 3:06-cv-06254-
VRW M:06-cv-01791-
VRW

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe7agoef:573of 53

HEPTING v. AT&T C ORP.

21551

TRAVIS CROSS; JOHN ELDER;



GABRIEL FILEPPELLI; SAM

GOLDSTEIN; HEALING ARTS CENTER;

DAVID KADLEC; THE LIBERTARIAN

PARTY OF INDIANA; TIM PETERSON;

CAROLYN W. R ADER; SAM

GOLDSTEIN INSURANCE AGENCY,

INC.; SEAN SHEPPARD; ALL

PLAINTIFFS,

Plaintiffs-Appellants,

v.

AT&T COMMUNICATIONS, INC.;

AT&T CORP.; AT&T

TELEHOLDINGS, INC., FKA SBC;

BRIGHT HOUSE NETWORKS, LLC;



CINGULAR WIRELESS, LLC;

COMCAST TELECOMMUNICATIONS,

INC.; INDIANA BELL TELEPHONE

COMPANY, INC., DBA SBC

Ameritech Indiana; MCI

COMMUNICATIONS SERVICES, INC.;

NEXTEL WEST CORP., DBA Sprint

Nextel; SPRINT COMMUNICATIONS

COMPANY, L.P.; S PRING SPECTRUM

L.P.; TDS C OMMUNICATIONS

SOLUTIONS, INC.; VERIZON WIRELESS

SERVICES, INC.; VERIZON,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16688
D.C. Nos. 3:06-cv-06222-
VRW M:06-cv-01791-
VRW

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe8agoef:583of 53

21552

HEPTING v. AT&T C ORP.

 JOAN DUBOIS; CHRISTOPHER YOWTZ;
REBECCA YOWTZ; ALL PLAINTIFFS, Plaintiffs-Appellants,

v.

AT&T CORP.; CHARTER

COMMUNICATIONS LLC; MCI



COMMUNICATIONS SERVICES, INC.;

TRANSWORLD NETWORK CORP.;

VERIZON WIRELESS, LLC; V ERIZON,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16690
D.C. Nos. 3:06-cv-06387-
VRW M:06-cv-01791-
VRW

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe9agoef:593of 53

HEPTING v. AT&T C ORP.

21553

TRAVIS CROSS; JOHN ELDER;



GABRIEL FILEPPELLI; SAM

GOLDSTEIN; HEALING ARTS CENTER;

DAVID KADLEC; THE LIBERTARIAN

PARTY OF INDIANA; TIM PETERSON;

CAROLYN W. R ADER; SAM

GOLDSTEIN INSURANCE AGENCY,

INC.; SEAN SHEPPARD, individually

an on behalf of others similarly

situated; ALL PLAINTIFFS,

Plaintiffs-Appellants,

v.

AT&T COMMUNICATIONS OF

CALIFORNIA, INC.; AT&T C ORP.;

AT&T TELEHOLDINGS, INC.; BRIGHT

HOUSE NETWORKS, LLC; C INGULAR

WIRELESS, LLC; C OMCAST



TELECOMMUNICATIONS, INC.; INDIANA

BELL TELEPHONE COMPANY

INCORPORATED, other SBC

Ameritech Indiana; MCI

WORLDCOM ADVANCED NETWORKS,

LLC; MCLEODUSA

TELECOMMUNICATIONS SERVICES,

INC.; NEXTEL WEST CORP., DBA

Sprint Nextel Corporation; S PRINT

COMMUNICATIONS COMPANY L.P.;

SPRING SPECTRUM L.P.; TDS

COMMUNICATIONS SOLUTIONS, INC.;

VERIZON WIRELESS SERVICES, LLC;

VERIZON,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16691
D.C. Nos. 3:06-cv-06224-
VRW M:06-cv-01791-
VRW

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe1a0geo:f1503of 53

21554

HEPTING v. AT&T C ORP.

PAT MAHONEY, individually, and



on behalf of all others similarly

situated; ALL PLAINTIFFS,

Plaintiffs-Appellants,

v.



AT&T COMMUNICATIONS, INC.;

AT&T CORP.,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16692 D.C. Nos.
3:06-cv-05065VRW
M:06-cv-01791VRW

 PAMELA A. M AHONEY, on behalf of
herself and all others similarly situated; ALL PLAINTIFFS,
Plaintiffs-Appellants,

v.



VERIZON COMMUNICATIONS, INC.;

VERIZON,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16693
D.C. Nos. 3:06-cv-05064-
VRW M:06-cv-01791-
VRW

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe1a1geo:f1513of 53

HEPTING v. AT&T C ORP.

21555

 MARK P. S OLOMON, MD, on behalf
of himself and all others similarly situated; ALL PLAINTIFFS,
Plaintiffs-Appellants,

v.



VERIZON COMMUNICATIONS, INC.;

VERIZON,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16694
D.C. Nos. 3:06-cv-06388-
VRW M:06-cv-01791-
VRW

 RHEA FULLER, on behalf of herself
and all others similarly situated; ALL PLAINTIFFS,
Plaintiffs-Appellants,

v.



VERIZON COMMUNICATIONS, INC.;

VERIZON WIRELESS, LLC; V ERIZON,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16696
D.C. Nos. 3:06-cv-05267-
VRW M:06-cv-01791-
VRW

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe1a2geo:f1523of 53

21556

HEPTING v. AT&T C ORP.

 SHELLY D. S OUDER; ALL PLAINTIFFS,
Plaintiffs-Appellants,

v.

AT&T INC.; AT&T C ORP.,



Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16697 D.C. Nos.
3:06-cv-05067VRW
M:06-cv-01791VRW

STEVE DOLBERG, on behalf of



himself and all others similarly

situated; ALL PLAINTIFFS,

Plaintiffs-Appellants,

v.



AT&T, INC.; AT&T C ORP.,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16698
D.C. Nos. 3:06-cv-05269-
VRW M:06-cv-01791-
VRW

THERESA FORTNASH; ALL



PLAINTIFFS,

Plaintiffs-Appellants,

v.



AT&T CORP.,

Defendant-Appellee,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16700
D.C. Nos. 3:06-cv-06385-
VRW M:06-cv-01791-
VRW

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe1a3geo:f1533of 53

HEPTING v. AT&T C ORP.

21557

 D. CLIVE HARDY; ALL PLAINTIFFS,
Plaintiffs-Appellants,

v.

AT&T CORPORATION,



Defendant-Appellee,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16701
D.C. Nos. 3:06-cv-06924-
VRW M:06-cv-01791-
VRW

 JAMES C. H ARRINGTON; RICHARD A.
GRIGG; LOUIS BLACK; THE AUSTIN CHRONICLE; MICHAEL KENTOR, on behalf of themselves and all others similarly situated; A LL PLAINTIFFS,
 Plaintiffs-Appellants, v.
AT&T, INC.; AT&T C ORP.; AT&T OPERATIONS INC.; NEW CINGULAR WIRELESS SERVICES, INC.,
 Defendants-Appellees.

No. 09-16702
D.C. Nos. 3:06-cv-05452-
VRW M:06-cv-01791-
VRW

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe1a4geo:f1543of 53

21558

HEPTING v. AT&T C ORP.

TINA HERRON; BRANDY SERGI,



individually and as representative

of all similarly situated

individuals; ALL PLAINTIFFS,

Plaintiffs-Appellants,

v.

VERIZON GLOBAL NETWORKS, INC.;

AT&T CORP.; AMERICAN



TELEPHONE AND TELEGRAPH

COMPANY; BELLSOUTH

COMMUNICATION SYSTEMS, LLC;

BELLSOUTH TELECOMMUNICATIONS,

INC.; VERIZON,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16704
D.C. No. 3:06-cv-05343-
VRW

DARRYL HINES; ALEX KLABACKA;



JANA KLABACJA; ALL PLAINTIFFS,

Plaintiffs-Appellants,

v.

VERIZON NORTHWEST, INC., an

active Washington corporation;



VERIZON COMMUNICATIONS, INC., an

active Delaware corporation;

VERIZON,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16706
D.C. Nos. 3:06-cv-05341-
VRW M:06-cv-01791-
VRW

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe1a5geo:f1553of 53

HEPTING v. AT&T C ORP.

21559

 HOWARD JACOBS, a natural person;
LAURENCE KORNBLUM, a natural person; KATHLEEN MILLER, a natural person, on behalf of themselves and all others similarly situated; ALL PLAINTIFFS,
Plaintiffs-Appellants,

v.

AT&T CORP., a foreign

corporation; AMERICAN TELEPHONE

AND TELEGRAPH COMPANY, a foreign corporation; B ELLSOUTH



TELECOMMUNICATIONS, INC., a

foreign corporation; C INGULAR

WIRELESS LLC, a foreign limited

liability company; V ERIZON

COMMUNICATIONS, INC., a foreign

limited liability company; V ERIZON

FLORIDA, INC., a Florida

corporation; VERIZON,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16707
D.C. Nos. 3:07-cv-02538-
VRW M:06-cv-01791-
VRW

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21560

HEPTING v. AT&T C ORP.

CLAUDIA MINK; ALL PLAINTIFFS,



Plaintiffs-Appellants,

v.

AT&T COMMUNICATIONS OF THE SOUTHWEST, INC., a Delaware
 corporation; SOUTHWESTERN BELL
TELEPHONE, L.P., a Texas limited partnership; SBC L ONG DISTANCE, LLC, a Delaware corporation,
Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16708
D.C. Nos. 3:06-cv-07934-
VRW M:06-cv-01791-
VRW

RICHARD ROCHE; ALL PLAINTIFFS,



Plaintiffs-Appellants,

v.

AT&T CORP.,



Defendant-Appellee,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16709
D.C. Nos. 3:07-cv-01243-
VRW M:06-cv-01791-
VRW

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HEPTING v. AT&T C ORP.

21561

BENSON B. R OE; PAUL GOLTZ,



individually and on behalf of all

others similarly situated; A LL

PLAINTIFFS,

Plaintiffs-Appellants,

v.

AT&T CORP., a New York

corporation; AT&T I NC., a

Delaware corporation; SBC L ONG

DISTANCE, LLC, a Delaware



limited liability company, DBA

AT&T Long Distance; P ACIFIC

BELL TELEPHONE COMPANY, a

California corporation, DBA

AT&T California; AT&T

COMMUNICATIONS OF CALIFORNIA,

INC., a California corporation,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16710
D.C. Nos. 3:06-cv-03467-
VRW M:06-cv-01791-
VRW

ELAINE SPIELFOGEL-LANDIS, on



behalf of herself and all others

similarly situated; A LL PLAINTIFFS,

Plaintiffs-Appellants,

v.



MCI, LLC, a Delaware limited

liability company; V ERIZON,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16712
D.C. Nos. 3:06-cv-04221-
VRW M:06-cv-01791-
VRW

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21562

HEPTING v. AT&T C ORP.

STUDS TERKEL, (now deceased);



BARBARA FLYNN CURRIE; DIANE C.

GERAGHTY; GARY S. G ERSON; JAMES

D. MONTGOMERY; QUENTIN YOUNG,

on behalf of themselves and all

others similarly situated; A MERICAN

CIVIL LIBERTIES UNION OF ILLINOIS,

INC.; ALL PLAINTIFFS,



Plaintiffs-Appellants,

v.

AT&T CORP.; ILLINOIS BELL TELEPHONE CO., DBA AT&T Illinois; UNITED STATES OF AMERICA,
 Defendants-Appellees.

No. 09-16713
D.C. Nos. 3:06-cv-05340-
VRW M:06-cv-01791-
VRW

HERBERT WAXMAN, on behalf of



himself and all others similarly

situated; ALL PLAINTIFFS,

Plaintiffs-Appellants,

v.



AT&T CORP.,

Defendant-Appellee,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16717
D.C. Nos. 3:06-cv-06294-
VRW M:06-cv-01791-
VRW

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HEPTING v. AT&T C ORP.

21563

STEVEN LEBOW, Rabbi; S TEVEN



BRUNING; CATHY BRUNING; JONNIE

STARKEY; BRIAN BRADLEY; BARRY

KALTMAN; MEREDITH KALTMAN;

ALL PLAINTIFFS,

 Plaintiffs-Appellants, v.

BELL SOUTH CORPORATION; CINGULAR WIRELESS LLC; S PRINT NEXTEL CORPORATION; NATIONAL SECURITY AGENCY,
 Defendants-Appellees.

No. 09-16719
D.C. Nos. 3:07-cv-00464-
VRW M:06-cv-01791-
VRW

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21564

HEPTING v. AT&T C ORP.

RAY ANDERSON; COLLIN BABER;



MARK BARKER; JOHN BARRETT;

ANTHONY BARTELEMY; WILLIAM

BETZ; FRAN BLAMER; TRUDY BOND;

KRISTEN BRINK; SHANE BRINK;

MICHAEL BROOKS; PAUL BRUNEY;

PETER CATIZONE; STEVE

CHRISTIANSON; JOHN CLARK;

KINGSLEY CLARK; THOMAS M.

CLEAVER; GERARD P. C LERKIN;

PETER B. C OLLINS; KRIS COSTA;

MARK COSTA; JULIE DAVIS; SHARON

L. DAVIS; TONI DIDONA; THERESA R. DUFFY; THOMAS S. D WYER;



THOMAS MICHAEL FAIN; SHAWN

FITZGIBBONS; JOHN FITZPATRICK;

JENNIFER FLORIO; MARGARET

FRANKLIN; DAWN FURLER; C.

GARIFO; DIANE GAVLINSKI; JOSEPH

GEHRING; JANE GENTILE-YOUD;

MARK GENTILE-YOUD; G.

LAWRENCE GETTIER; LINDA GETTIER;

LINDA J. G ETTIER; JIT GILL; MIKE

GILMORE; JAYSON GLEASON; MARC

GOLDSTONE; TODD GRAFF; JANET

GRANJA; SUSAN GROSSMAN;



No. 09-16720
D.C. Nos. 3:07-cv-02029-
VRW M:06-cv-01791-
VRW

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HEPTING v. AT&T C ORP.
 STEPHANIE GUSTAVE; PAM HADDON;
VERN HADDON; DON HAWKINS; DONNA HAWKINGS; JOSE V. HEINERT; LAMAR HENDERSON; CAROLYN R. H ENSLEY; DOUGLAS S. HENSLEY; DONALD HERRON; JENNIFER HONTZ; JOYCE JACKSON; ANDREW JAFFE; RANDEL JAMES; MICHAEL JOHNSON; DIANE JULIANO; FAY KAISER; RAJENDRAM KRISHNAN; BARBARA LANGER; MICHAEL LAVO; FRED LEAK; KEN LEHA; BEN LINDSEY; LISA LOCKWOOD; MS.
 LODGE; NANCY K. L OREY; MICHAEL
T. LYDA; ELEANOR M. L YNN; ESQ.; TERRY MANCOUR; CHARLENE MANN; REV.; JON PAUL MCCLELLAN; ALICIA MCCOLLUM; JAMES MCGRATTAN; REV. JOE MCMURRAY; STEPHANIE MEKET; CLYDE MICHAEL MORGAN; THEODORE R. M ORRIS; SHERI A. M UELLER; PROF. ROBERT NEWBY; FRAN NOBILE; SERGE POPPER; ILENE PRUETT; DR. MICHAEL REUSCH; MERRILYN ROME; MICHELE ROSEN; MICHELE S. ROTHMEL; KEVIN SHAWLER; GREG L. SMITH; HARRIS SONDAK; JAMES
 VANALSTINE; CHRIS VON OBENAUER;

21565

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21566

HEPTING v. AT&T C ORP.

 DEADRIA FARMER-PAELLMANN; DAN

PATTON; RAY PENA; CONSTANCE

PHILLIPS; MARK PLANTE; JEREMY

PUHLMAN; MARTIN RAZO; DANIEL

REIMANN; MARK RICHARDS; LINDA

RITHKIS; WILLIAM ROBINETTE; FRED

ROGERS; DARLENE ROGERS;

KATHLEEN ROGERS; WILLIAM J.

ROMANSKY; BRONSON ROSIER; JOSH

SEEFRIED; ANNA F. S HALLENBERGER;

ROYCE SHEPARD; ROBERT SIDEN;

GREGORY L. S MITH; CHRISTIAN

STALBERG; MICHAEL L. S TEPHAN;

ROBERT STEWART; DONNA A.

 STONE; REGINA SUNBERG; WILLIAM
R. SWEENEY; JR.; DAVID TAYLOR;

APRIL TIPE; ALLEN T. T RADER III;

BARRY W. T RIBBLE; FRED

TRINKOFF; THOMAS VILAR; VICKIE

VOTAW; LEON DWIGHT WALLACE;

ACHIENG WARAMBO; ULRICH

GEISTER; DAVID WHITE; JANE

WINSTON; KEVIN WRIGHT; JOEL

AINGER; CAROL COSE; DEBORAH

DOUGHERTY; JAMES FLYNN; IRENE

KING; PAUL KRAFT; GINA DE

MIRANDA; CATALINA R. T HOMPSON;

MARY LEAH WEISS; ELIZABETH

ARNONE; ELEANOR LYNN; JAY H.

ROWELL; DANIEL REIMANN;



CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe2a3geo:f2533of 53

HEPTING v. AT&T C ORP.

21567

VIVIAN PHILLIPS; JEFFREY G.



MARSOCCI; BRIDGET IRVING; JAMES

HALL; JOHN MCINTYRE; BETH

WHITE; BRAD MARSTON; AND PAUL

SUNBERG,

Plaintiffs-Appellants,

v.

VERIZON COMMUNICATIONS, INC.;



NATIONAL SECURITY AGENCY;

GEORGE W. B USH; BELLSOUTH

CORPORATION; AT&T C ORPORATION;

AT&T INC.; VERIZON,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

 JAMES JOLL; RAMON GOGGINS; IAN
WALKER; JAMES NURKIEWICZ, on behalf of themselves and all others similarly situated; A LL PLAINTIFFS,
Plaintiffs-Appellants,

v.



AT&T CORP.; AT&T I NC.;

VERIZON COMMUNICATIONS, INC.;

BELLSOUTH CORP.; VERIZON,

Defendants-Appellees,

UNITED STATES OF AMERICA,
 Defendant-intervenor-Appellee.

No. 09-16723
D.C. Nos. 3:06-cv-05485-
VRW M:06-cv-01791-
VRW
OPINION

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21568

HEPTING v. AT&T C ORP.

Appeal from the United States District Court for the Northern District of California
Vaughn R. Walker, District Judge, Presiding

Argued and Submitted August 31, 2011—Seattle, Washington

Filed December 29, 2011

Before: Harry Pregerson, Michael Daly Hawkins, and M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown

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HEPTING v. AT&T C ORP.

21571

COUNSEL
Kevin Stuart Bankston, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California; Aram Antaramian, LAW OFFICE OF ARAM ANTARAMIAN, Berkeley, California; Richard R. Wiebe, LAW OFFICE OF RICHARD R. WIEBE, San Francisco, California; Thomas E. Moore, III, The Moore Law Group, Palo Alto, California, Cindy Cohn, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California; Gary Edward Mason and Nicholas A. Migliaccio, Mason LLP, Washington, District Of Columbia; Michael A. St. Pierre, Revens Revens & St. Pierre, Warwick, Rhode Island; Julia Harumi Mass, ACLU FOUNDATION OF NORTHERN CALIFORNIA, San Francisco, California; Peter Jay Eliasberg, ACLU FOUNDATION OF SOUTHERN CALIFORNIA, Los Angeles, California, Vincent Ian Parrett, MOTLEY RICE LLC, Mt. Pleasant, South Carolina; Roger L. Mandel, LACKEY HERSHMAN LLP, Dallas, Texas; Marc

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe2a6geo:f2563of 53

21572

HEPTING v. AT&T C ORP.

R. Stanley, STANLEY MANDEL & IOLA LLP, Dallas, Texas; Michael D. Donovan, DONOVAN, SEARLES, LLC, Philadelphia, Pennsylvania; M. Stephen Turner, Broad & Cassel, Tallahassee, Florida; Gerald Edward Meunier, Gainsburgh Benjamin David Meunier & Warshauer, L.L.C., New Orleans, Louisiana; R. James George, Jr., George & Brothers LLP, Austin, Texas, Val P. Exnicios, Liska Exnicios & Nungesser, New Orleans, Louisiana; Christopher A. Slater, Slater Ross, Portland, Oregon; Brian Hugh Adler, Bader Stillman & Adler PL, Margate, Florida; Sam J. Alton, Stone Leyton Gersham PC, St. Louis, Missouri; Barry Himmelstein, LIEFF CABRASER HEIMANN & BERNSTEIN, LLP, San Francisco, California; Harvey Grossman, Roger Baldwin Foundation of ACLU, Inc., Chicago, Illinois; Clinton A. Krislov, KRISLOV & ASSOCIATED, LTD, Chicago, Illinois; James M. Evangelista, Evangelista & Associates, LLC, Atlanta, Georgia; Carl Mayer, Mayer Law Group LLC, Princeton, New Jersey; Steven Edward Schwarz, The Law Offices of Steven E. Schwarz, Chicago, Illinois, for the plaintiffsappellants.

Michael Kellogg, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, District Of Columbia, for the defendant-appellee.

Thomas Mark Bondy, DOJ – U.S. Department of Justice, Washington, District Of Columbia, for the defendantintervenor-appellee.

Howard Merrill Wasserman, FIU COLLEGE OF LAW, MIAMI, Florida, for the Amicus Curiae Law Professors in support of appellees.

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe2a7geo:f2573of 53

HEPTING v. AT&T C ORP. OPINION

21573

McKEOWN, Circuit Judge:

These consolidated appeals arise from claims that major telecommunications carriers assisted the government with intelligence gathering following the terrorist attacks on September 11, 2001. News reports that the National Security Agency (“NSA”) undertook a warrantless eavesdropping program with alleged cooperation by telecommunications companies spawned dozens of lawsuits by customers against the companies, along with multiple suits against the NSA and other government actors. Tash Hepting and other residential telephone customers (collectively “Hepting”) challenge the legality of the companies’ participation in the surveillance program. Partially in response to these suits, Congress held hearings and ultimately passed legislation that provided retroactive immunity to the companies, subject to various conditions, but expressly left intact potential claims against the government. The sole issue before us is the constitutionality of § 802 of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1885a, known as the FISA Amendments Act of 2008, which allows for immunity for the telecommunication companies. Like the district court, we conclude that § 802 passes constitutional muster.

BACKGROUND

I. The Lawsuits

This appeal includes thirty-three actions against the nation’s telecommunications companies, originally filed in 2006. The complaints were filed in the wake of news reports in December 2005 that President Bush had issued an order permitting the NSA to conduct warrantless eavesdropping. Under a program known as the Terrorist Surveillance Program (“TSP”), the NSA “had obtained the cooperation of telecommunications companies to tap into a significant portion of

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe2a8geo:f2583of 53

21574

HEPTING v. AT&T C ORP.

the companies’ telephone and e-mail traffic, both domestic

and international.” James Risen & Eric Lichtblau, Bush Lets

U.S. Spy on Callers Without Courts , N.Y. T IMES, Dec. 16,

2005, at A1. The President later acknowledged that in the

weeks following September 11, he authorized a “terrorist sur-

veillance program to detect and intercept al Qaeda Communi-

cations” and stated that the program applied

“only to

international communications, in other words, [where] one

end of the communication [was] outside the United States. ”

President George W. Bush, Speech at the National Security

Agency (Jan. 25, 2006) available at http://georgewbush-

whitehouse.archives.gov/news/releases/2006/01/20060125-

1.html. The complaints “challenge[d] the legality of Defen-

dants’ participation in a secret and illegal government pro-

gram to intercept and analyze vast quantities of Americans’

telephone and Internet communications.” Hepting alleged that

the telecommunications companies provided the government

with direct access to nearly all of the communications passing

through their domestic telecommunications facilities. These

suits were consolidated in August 2006 in the Northern Dis-

trict of California under the multidistrict litigation ( “MDL”)

provisions of 28 U.S.C. § 1407. Although not a defendant in

these suits, the United States intervened to seek dismissal

under § 802 of the FISA.

II. The 2008 Amendments to the FISA

While the underlying actions were pending in district court, and partially in response to these suits, Congress enacted the FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2435, codified at 50 U.S.C. § 1885a. Among the amendments is § 802, an immunity provision and related procedures that are triggered if the United States Attorney General certifies to one or more of five conditions. In such case, no civil action may be maintained “against any person for providing assistance to an element of the intelligence community. ” § 802(a).

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HEPTING v. AT&T C ORP.

21575

This amendment dovetails with an existing comprehensive statutory framework that grants the Executive Branch authority to enlist telecommunications companies for intelligence gathering, to protect those companies from suit, and to keep their efforts secret. Acknowledging the existing legislation, Congress deemed an amendment necessary to empower the Attorney General to immunize from suit telecommunications companies that had cooperated with the government’s intelligence gathering, including post-September 11 activities under the TSP.

Subsection 802(a) reads as follows:

(a) Requirement for certification. Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that—

(1) any assistance by that person was provided pursuant to an order of the court established under section 103(a) [50 U.S.C. § 1803(a)] directing such assistance;

(2) any assistance by that person was provided pursuant to a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code;

(3) any assistance by that person was provided pursuant to a directive under section 102(a)(4) [50 U.S.C. § 1802(a)(4)], 105B(e) [50 U.S.C. § 1805b(e)], as added by section 2 of the Protect America Act of 2007 (Public Law 110-55), or 702(h) [50 U.S.C. § 1881a(h)] directing such assistance;

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21576

HEPTING v. AT&T C ORP.

(4) in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was—

(A) in connection with an intelligence activity involving communications that was—

(i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and

(ii) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and

(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was—

(i) authorized by the President; and

(ii) determined to be lawful; or

(5) the person did not provide the alleged assistance.

Section 802(a) permits the Attorney General to certify to a court that assistance was provided under at least one of a series of situations—ranging from a Foreign Intelligence Surveillance Court order, a national security letter, an Attorney General directive regarding FISA-authorized warrantless surveillance to participation in the TSP—or that no assistance was provided. This certification is subject to judicial review under a substantial evidence standard: “[a] certification under subsection (a) shall be given effect unless the court finds that

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HEPTING v. AT&T C ORP.

21577

such certification is not supported by substantial evidence provided to the court pursuant to this section. ” § 802(b)(1).

Section 802(c) details the court’s handling of classified information. If the Attorney General declares that public disclosure of the certification and related materials “would harm the national security of the United States,” then the court must review the material ex parte and in camera. The court may not reveal the specific subsection under which the certification was made nor may the court reveal any such material. Instead, the court must simply state whether the case is dismissed and a description of the legal standards governing the order.

Finally, § 802(d) provides that

[a]ny plaintiff or defendant in a civil action may submit any relevant court order, certification, written request, or directive to the district court referred to in subsection (a) for review and shall be permitted to participate in the briefing or argument of any legal issue in a judicial proceeding conducted pursuant to this section, but only to the extent that such participation does not require the disclosure of classified information to such party.

All classified materials must be reviewed in camera and ex parte and any part of the court’s order reviewing such information must be under seal.

The Senate Select Committee on Intelligence issued a report on the amendments, discussing, among other provisions, § 203, which was later codified as the FISA § 802. See S. Rep. 110-209 (2007). The report contains a lengthy background section describing “Pending Litigation” and “Civil Suits Against Electronic Communication Service Providers, ” leaving little doubt that these cases were among the intended targets of the amendments.

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21578

HEPTING v. AT&T C ORP.

The new immunity provision “reflect[ed] the Committee’s belief that there is a strong national interest in addressing the extent to which the burden of litigation over the legality of surveillance should fall on private parties.” Id. at 8. The Committee noted the “importance of the private sector in security activities.” Id. at 5. It emphasized that electronic intelligence gathering depends in great part on cooperation from private companies, id. at 9, and that if litigation were allowed to proceed against persons allegedly assisting in such activities, “the private sector might be unwilling to cooperate with lawful Government requests in the future. ” Id. at 10. The “possible reduction in intelligence that might result . . . is simply unacceptable for the safety of our Nation. ” Id. The Committee pointed to the pending suits, including this one, noting that “even if these suits are ultimately dismissed on state secrets or some other grounds, litigation is likely to be protracted. ” Id. at 7. Thus Congress explicitly crafted § 802 to allow for the dismissal of cases against telecommunications companies.

III. The Attorney General’s Certification under § 802

Shortly after § 802(a) became law, Attorney General

Michael Mukasey submitted to the district court both a public

and a classified certification under the statute. In his public

declaration, Attorney General Mukasey “confirm[ed] the exis-

tence of the TSP ” but “denied the existence of the alleged

dragnet.” He “certif[ied] that the claims asserted in the civil

actions pending in these consolidated proceedings brought

against electronic communication service providers fall within

at least one provision contained in Section 802(a) of the

FISA.” He further explained that disclosure of the classified

certification “would cause exceptional harm to the national

security of the United States ” and “must therefore be

reviewed in camera, ex parte by the Court ” pursuant to

§ 802(c)(2). Mukasey concluded that

“the provider-

defendants are entitled to statutory protection based on at least

one of the provisions contained in Section 802(a)(1) to (5) of

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the FISA, which includes the possibility that a provider defendant did not provide any assistance. ”

IV. The District Court Decision

With the filing of the Attorney General’s certification, the United States intervened and moved to dismiss all of the claims against the telecommunications companies. The district court granted the motion and dismissed the complaints. Al-Haramain Islamic Found., Inc. v. Bush (In re NSA Telcomms. Records Litig.), 633 F. Supp. 2d 949, 955 (N.D. Cal. 2009).

In a thoughtful and lengthy opinion, the district court characterized § 802 as “sui generis among immunity laws. ”Id. at 959. The district court considered Hepting’s multiple claims “that constitutional defects make the statute unenforceable. ” Id. at 959-60. In the end, the district court rejected each of these claims.

Hepting also made “a series of arguments to the effect that, on the merits and putting alleged infirmities in section 802 aside, the Attorney General’s certifications are inadequate under section 802’s own terms to support dismissal of these actions.” Id. at 975. In support of these claims, Hepting pointed to specific evidence offered with respect to the surveillance. Unpersuaded, the district court wrote as follows:

While plaintiffs have made a valiant effort to challenge the sufficiency of certifications they are barred by statute from reviewing, their contentions under section 802 are not sufficiently substantial to persuade the court that the intent of Congress in enacting the statute should be frustrated in this proceeding in which the court is required to apply the statute. The court has examined the Attorney General’s submissions and has determined that he has met his burden under section 802(a).

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21580 Id. at 976.

HEPTING v. AT&T C ORP.

ANALYSIS

On appeal, Hepting challenges only the facial constitutionality of § 802, not its application. He does not appeal the district court’s determination that the substance of the Attorney General’s certifications (both classified and unclassified) was supported by substantial evidence and that the Attorney General met his statutory burden. As a consequence, our legal analysis is not dependent on the details contained within the certifications.1

Three of Hepting’s arguments focus on separation of powers: (1) bicameralism and presentment; (2) nondelegation; and (3) congressional interference with litigation. The fourth claim, which draws upon separation of powers and due process, is that the statute effectively forecloses litigation of the claims. Finally, Hepting characterizes his claims as a property interest and seeks relief under the Due Process Clause of the Fifth Amendment for deprivation of an opportunity to be heard before an unbiased adjudicator and of his right to meaningful notice in light of the statutory secrecy provisions.

I. Separation-of-Powers Challenges

A. Bicameralism and Presentment

[1] We first consider whether, in view of the requirements of bicameralism and presentment found in Article I, § 7 of the Constitution, § 802 effectively amends or negates existing law without going through the constitutionally-mandated legislative process. Relying primarily on Clinton v. City of New

1The district court considered both the public and classified certifications. Because this appeal raises only the constitutionality of § 802 and not its specific application in this case, we need not consider the classified materials.

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York, 524 U.S. 417 (1998), in which the Supreme Court struck down the Line Item Veto Act as unconstitutional, Hepting correctly asserts that “[a]mendment and repeal of statutes, no less than enactment, must conform with Art[icle] I. ” INS v. Chadha, 462 U.S. 919, 954 (1983). Similarly, there is no “provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes. ” Clinton, 524 U.S. at 438. Hepting’s argument fails, however, because in enacting § 802, Congress did not give the Executive the power to enact, amend or repeal a statute.

In Clinton, the Supreme Court characterized the Line Item Veto Act as giving “the President the power to ‘cancel in whole’ ” tax and spending provisions that had been passed by both houses of Congress and signed into law. Id. at 436 (citation omitted). The line item veto prevented the cancelled items “from having legal force or effect, ” though the remaining provisions “continue[d] to have the same force and effect as they had when signed into law. ” Id. at 437-38. The Court concluded “that cancellations pursuant to the Line Item Veto Act are the functional equivalent of partial repeals of Acts of Congress that fail to satisfy Article I, § 7.” Id. at 444.

[2] Hepting argues that § 802 is similar to the Line Item Veto Act because the Executive may partially repeal or preempt the law governing electronic surveillance on a case-bycase basis by certifying to one of the five circumstances set forth in § 802(a). This argument glosses over a crucial distinction between § 802 and the Line Item Veto Act: Under § 802 the Executive does not change or repeal legislatively enacted law, as was the case with the Line Item Veto. The law remains as it was when Congress approved it and the President signed it. In other words, nothing effected by the Attorney General “prevent[s] the item from having legal force or effect.” Clinton, 524 U.S. at 437 (internal quotation marks omitted). Unlike the line item veto, the Attorney General’s certification implements the law as written and does not frustrate or change the law as enacted by Congress.

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[3] Through the amendment to the FISA, Hepting’s causes of action are now subject to an additional statutory defense. As a practical matter, a discretionary decision by the Attorney General that invokes a defense or immunity hardly represents an impermissible statutory repeal. It is not uncommon for executive officials to have authority to trigger a defense or immunity for a third party. The United States Code is dotted with statutes authorizing comparable executive authority.2 For example, executive officials regularly grant immunity from the fruits of compelled testimony in criminal prosecutions. See 18 U.S.C. § 6003; see also 28 U.S.C. § 2679(d) (allowing the government to trigger immunity by certifying that a defendant is acting within the scope of federal employment); cf. Republic of Iraq v. Beaty , ___ U.S. ___, 129 S. Ct. 2183, 2192 (2009) (A provision of the emergency Wartime Supplemental Appropriations Act “did not repeal anything, but merely granted the President authority to waive the application of particular statutes to a single foreign nation. ” (citing Clinton, 524 U.S. at 443-45)); Chadha, 462 U.S. at 953 n.16 (noting that the Attorney General’s discretionary authority under the INA to suspend removal does not implicate Article I, § 7). An executive grant of immunity or waiver of claim has never been recognized as a form of legislative repeal. Section 802 thus does not violate the bicameralism and presentment requirements of Article I, § 7.

B. The Nondelegation Doctrine

[4] The nondelegation doctrine is central to the notion of separation of powers. See Mistretta v. United States, 488 U.S. 361, 371 (1989) (“The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite

2The Brief of the Amici Law Professors includes an appendix that contains a laundry list of “Selected Statutes Authorizing Executive Branch Officials to Waive Existing Laws in Certain Circumstances ” ranging from the Intelligence Authorization Act, 21 U.S.C. § 1903(g)(1), to the Protect our Children Act of 2008, 42 U.S.C. § 17616(a)(3)(C).

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system of Government.”). The Supreme Court has only twice invalidated legislation under this doctrine, the last time being seventy-five years ago.

[5] Article I, § 1 of the Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States. ” In practice, of course, Congress delegates authority frequently. The relevant question is how, when, and under what circumstances Congress may delegate its authority. The Supreme Court’s answer: “[W]hen Congress confers decisionmaking authority upon agencies Congress must lay down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform.” Whitman v. Am. Trucking Ass’ns , 531 U.S. 457, 472 (2001) (emphasis and internal quotation marks omitted). “Only if [a court] could say that there is an absence of standards for the guidance of the Administrator’s action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would [it] be justified in overriding its choice of means for effecting its declared purpose . . . . ” Yakus v. United States, 321 U.S. 414, 426 (1944).

In applying the intelligible principle test to congressional delegations, the Supreme Court “has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. ” Mistretta, 488 U.S. at 372. The Court summed up its nondelegation jurisprudence as follows: “[I]n the history of the Court we have found the requisite ‘intelligible principle’ lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition.’ ” Whitman, 531 U.S. at 474 (citing Panama Refining Co. v. Ryan , 392 U.S. 388 (1935); A.L.A. Schechter

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Poultry Corp. v. United States , 295 U.S. 495 (1935)). The text, structure, history, and context of § 802 together demonstrate the existence of an intelligible principle.

Hepting argues that § 802 contravenes the nondelegation doctrine because Congress imposed no standard or intelligible principle governing the Attorney General’s certification authority. The text of § 802 sets out five statutory categories —ranging from the specific TSP program to the fact that no assistance was provided—that delineate and circumscribe the Attorney General’s certification discretion. Hepting faults the legislation because it lacks guidance on whether the Attorney General should exercise his discretion. In our view, the Attorney General’s discretion whether to invoke a specific subsection does not eviscerate the “intelligible principle” standard.

A review of standards upheld by the Court underscores the concrete and intelligible nature of the text of § 802. For example, the Court has countenanced as intelligible seemingly vague principles in statutory text such as whether something would “unduly or unnecessarily complicate,” or be “generally fair and equitable, ” in the “public interest,” or “requisite to protect the public health. ” Whitman, 531 U.S. at 474-76 ; Am. Power & Light Co. v. SEC , 329 U.S. 90, 104 (1946); Yakus, 321 U.S. at 420; Nat’l Broadcasting Co. v. United States , 319 U.S. 190, 225-26 (1943) . Statutes authorizing the recovery of “excessive profits,” and allowing action when “necessary to avoid an imminent hazard to public safety ” also passed the test. Touby v. United States , 500 U.S. 160, 166 (1991); Lichter v. United States , 334 U.S. 742, 778-79 (1948) . The Supreme Court has “almost never felt qualified to secondguess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.” Whitman, 531 U.S. at 474-75 (quoting Mistretta, 488 U.S. at 416 (Scalia, J., dissenting)). Indeed, the “hazard to public safety” provision in Lichter is comparable to, if not less specific than, the “designed to detect or prevent a terrorist attack” language in § 802(4)(4). Never has the Court invali-

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dated a law simply because the Executive has the discretion to act.

Section 802’s structure resembles that of similar statutes that have been found valid. When considering the statesponsored terrorism exception to the FISA, the D.C. Circuit explained that “Congress delineated the area of immunity and the exception to the immunity, delegating to the Executive only the authority to make a factual finding upon which the legislatively enacted statute and the judicially exercised jurisdiction would partially turn. ” Owens, 531 F.3d at 889. The same is true regarding § 802. Congress created liability under the FISA, as well as the immunity exception for private companies, under certain circumstances. And Congress delegated to the Executive the authority to trigger this immunity. See infra Part III.A.

The legislative history also confirms our textual analysis of the statute. In the context of nondelegation, the Supreme Court has emphasized the role of legislative history, even absent ambiguity in the statute. See Mistretta, 488 U.S. at 376 n.10 (“[L]egislative history, together with Congress’ directive that the Commission begin . . . by ascertaining the average sentence imposed in each category in the past, and Congress’ explicit requirement that the Commission consult with authorities in the field of criminal sentencing provide a factual background and statutory context that give content to the mandate of the Commission.” (citing Am. Power & Light Co. v. SEC , 329 U.S. 90, 104-05 (1946))).

Following Mistretta, the D.C. Circuit also noted that when the court reviews statutes under the nondelegation doctrine, the court “do[es] not confine [itself] to the isolated phrase in question, but utilize[s] all the tools of statutory construction, including the statutory context and, when appropriate, the factual background of the statute to determine whether the statute provides the bounded discretion that the Constitution

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requires.” Owens v. Republic of the Sudan , 531 F.3d 884, 890 (D.C. Cir. 2008). In short, context matters.

The Senate Select Committee Report goes far in explaining the congressional concerns that motivated the passage of the immunity provision. When considering how to respond to lawsuits like this one, the Committee “recogniz[ed] the importance of the private sector in assisting law enforcement and intelligence officials in critical criminal justice and national security activities.” S. Rep. 110-209 at 5. The Report further states that “electronic surveillance for law enforcement and intelligence purposes depends in great part on the cooperation of the private companies that operate the Nation’s telecommunication system.” Id. at 9. The intelligible principle that comes through in the legislative history is one of protecting intelligence gathering and national security information.

The fact that § 802 arises within the realm of national security—a concern traditionally designated to the Executive as part of his Commander-in-Chief power—further suggests that the intelligible principle standard need not be overly rigid. See U.S. Const. art. II, § 2, cl. 1; see also Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988) (noting “constitutional investment of power [over national security] in the President ” that “exists quite apart from any explicit congressional grant”). The Supreme Court has repeatedly underscored that the intelligible principle standard is relaxed for delegations in fields in which the Executive has traditionally wielded its own power. See, e.g., Loving, 517 U.S. at 772 (military affairs); United States v. Curtiss-Wright Export Corp. , 299 U.S. 304, 324 (1936) (foreign relations); Freedom to Travel Campaign v. Newcomb, 82 F.3d 1421, 1438 (9th Cir. 1996) (same).

[6] Section 802 authorizes the Attorney General to act only in narrow, definable situations, subject to review by the courts. In sum, the text, structure, history, and context of § 802 contain an intelligible principle consistent with the Constitution’s nondelegation doctrine.

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C. No Congressional Interference with Adjudication

Hepting asserts that § 802 offends the doctrine of separation of powers because it is a legislative incursion upon the judicial branch. He claims that judicial review under § 802 “is deferential to the point of meaninglessness,” taking issue with the “substantial evidence” standard of review. To support his argument, Hepting cites only two cases, neither of which illuminates his point, but instead contain broad pronouncements on the proper role of the judiciary.

Hepting invokes Plaut v. Spendthrift Farm, Inc. , 514 U.S. 211 (1995). But he does well not to dwell on this case because the Supreme Court in Plaut struck down a very different statute—one that “require[d] federal courts to reopen final judgments in private civil actions. ” Id. at 213. When compared to Plaut, where Congress “attempted to set aside the final judgment of an Article III court by retroactive legislation,” 514 U.S. at 230, Hepting’s separation of powers claim as to § 802 is weak indeed. Nor does Crim v. Handley , 94 U.S. 652, 657 (1876), bolster Hepting’s argument. He cites it only for the general proposition that courts review criminal trials for errors of law, but Crim discusses the Seventh Amendment and does not implicate Article III powers.

[7] On the other hand, there is a long line of cases upholding deferential standards of review for administrative factual determinations in other statutory schemes. See, e.g., Dickinson v. Zurko , 527 U.S. 150, 152-61 (1999) (rejecting clearly erroneous standard and reaffirming substantial evidence standard of review for agency findings); Universal Camera Corp. v. NLRB, 340 U.S. 474, 490 (1951) (stating that substantial evidence review is sufficient to fulfill the conventional judicial function); Bonnichsen v. United States , 367 F.3d 864, 879-80 (9th Cir. 2004) ( “We review the full agency record to determine whether substantial evidence supports the agency’s decision.”); Retlaw Broad. Co. v. NLRB , 53 F.3d 1002, 1006 (9th Cir. 1995) ( “Credibility determinations by the ALJ are

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given great deference, and are upheld unless they are ‘inherently incredible or patently unreasonable.’ ”) (citing Local 512, Warehouse & Office Workers v. NLRB , 795 F.2d 705, 712 (9th Cir. 1986)).

[8] Deferential review does not mean that courts abdicate their judicial role. Section 802 does not represent a legislative incursion into the independent decisionmaking and reviewing authority of the courts. Given the judiciary’s long history and experience with reviewing cases for substantial evidence, review under § 802 is neither “partial” nor “meaningless” as Hepting urges.

II. Separation of Powers and Due Process Challenges to Claims Limitation

[9] Hepting claims § 802 forecloses a challenge to the government’s wiretapping program, thus violating due process and separation of powers under Article III. Although Congress granted immunity to private parties that assisted the government, § 802 does not foreclose relief against government actors and entities who are the primary players in the alleged wiretapping. Hepting retains an independent judicial avenue to address these claims. 3

The Senate Report confirms this reading. “Only civil lawsuits against electronic communication service providers alleged to have assisted the Government are covered under this provision. The Committee does not intend for this section to apply to, or in any way affect, pending or future suits against the Government as to the legality of the President’s

3As the district court pointed out, “the same plaintiffs who brought the Hepting v. AT&T lawsuit . . . are now actively prosecuting those claims in a separate suit . . . against government defendants. Al-Haramain, 633 F. Supp at 960. Notably, Hepting has a separate proceeding pending against the government. See Jewel v. NSA, No. 08-4373 (N.D. Cal., filed Sept. 18, 2008).

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program.” S. Rep. 110-209 at 8. The Committee determined that “narrowly circumscribed civil immunity should be afforded to [cooperating] companies. ” Id. at 3. The report continues, describing § 802 as “establish[ing] procedures by which civil actions against those who assist the Government shall be dismissed. ” Id. at 10-11. Congress did not prohibit adjudication of Hepting’s claims, it simply limited the universe of responsibility to government defendants.

[10] To be sure, a “serious constitutional question . . . would arise if a federal statute were construed to deny any judicial forum for a colorable claim. ” Webster v. Doe , 486 U.S. 592, 603 (1988) (emphasis added). Separation of powers concerns would be raised because “the appellant would have no forum at all for the pursuit of her claims ” and the court “would thus be faced with a situation in which Congress has enacted legislation and simultaneously declared that legislation to be immune from any constitutional challenge by the plaintiff.” Bartlett v. Bowen , 816 F.2d 695, 703 (D.C. Cir. 1987). Such is not the situation here. The federal courts remain a forum to consider the constitutionality of the wiretapping scheme and other claims, including claims for injunctive relief. The judiciary’s essential role in protecting constitutional rights is not undermined simply because Hepting is unable to bring twin claims against the telecommunications companies and the government.

III. Section 802 Does Not Violate Due Process

Hepting’s final argument—that § 802’s certification and review procedures deprive him of liberty and property interests without sufficient process—rests on the Due Process Clause of the Fifth Amendment. Hepting identifies his causes of action against the telecommunications companies as the property right at issue. We assume, without deciding, that he

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has such a right, even if minimal, as it does not affect the ultimate outcome of the appeal. 4

Hepting’s due process argument is twofold. He argues first that the Attorney General’s certification is an adjudication that denies claimants a de novo review before an unbiased adjudicator. He then claims that the procedures under § 802 deny him meaningful notice of the government’s basis for certification.

A. The Attorney General Was Not an Adjudicator

[11] Hepting’s initial complaint is that the Attorney General acts as a biased adjudicator when certifying immunity. But Hepting’s focus on the role of the Attorney General misapprehends the certification process. The Attorney General certifies either that assistance was provided in narrowly defined circumstances or that no assistance was offered. In this capacity, the Attorney General does not function as an adjudicator. See Owens, 531 F. 3d at 891-92 (citing cases and describing executive decision making in the context of foreign affairs as “factfinding”). Mere certification, which is the foundation of immunity under § 802, is not tantamount to an adjudication.

The fact that the Attorney General may have supported the

4The parties disagree as to when a cause of action becomes a property right protected by the due process clause. Compare Lujan v. G & G Fire Sprinklers, 532 U.S. 189, 195 (2001) (“assum[ing], without deciding,” that a “claim for payment under [specified] contracts” was a property interest), and Logan v. Zimmerman Brush Co. , 455 U.S. 422, 428 (1982) ( “[A] cause of action is a species of property protected by the Fourteenth Amendment’s Due Process Clause”), with Lyon v. Agusta, 252 F.3d 1078, 1086 (9th Cir. 2001) (holding that “a party’s property right in any cause of action does not vest until a final unreviewable judgment is obtained.”) (citing Grimsey v. Huff, 876 F.2d 738, 743-44 (9th Cir. 1989)), and Fields v. Legacy Health System, 413 F.3d 943, 956 (9th Cir. 2005) (same). We need not resolve this issue because § 802 provides sufficient process.

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legislation to amend the FISA has no legal import in this context. Hepting views Attorney General Mukasey as operating under “a structural, institutional bias ” because he served during the Bush Administration, which advocated for the legislation, and was counsel to the United States in these lawsuits. He follows with the claim that Mukasey “had an actual bias in this matter, ” because he stated publicly that the immunity provision was “important” and that immunity represented “a fair and just result, ” and also conveyed this opinion to members of Congress.

[12] Hepting ignores that the Attorney General has a legitimate policy role. It is well established that “[a]dministrators . . . may hold policy views on questions of law prior to participating in a proceeding. ” Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151, 1174 (D.C. Cir. 1979) (quoted in United States v. Payne, 944 F.2d 1458, 1476-77 (9th Cir. 1991)); see also FTC v. Cement Inst., 333 U.S. 683, 702 (1948) (rejecting a due process claim where agency head previously expressed a view on the issue); Fidelity Television, Inc. v. FCC , 515 F.2d 684, 694 (D.C. Cir. 1975) (rejecting bias argument based on prior Commission decisions and Chairman’s testimony before Congress). Public officials are presumed not to be biased; expressing an opinion, even a strong one, on legislation, does not disqualify an official from later responding to a congressional mandate incorporating that opinion. Withrow v. Larkin, 421 U.S. 35, 47 (1975). The ultimate legislative judgment regarding immunity for the telecommunications companies was made by Congress, not the Attorney General, and falls to the courts, not the Attorney General, to review.

B. Section 802 Provides Sufficient Notice and Process

The question we next address is whether the judicial review procedures under § 802 satisfy the Due Process Clause. Under § 802(a), no claim may be brought against any person providing certain categories of assistance, as certified by the Attorney General. If the Attorney General files a declaration that

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disclosure of his certification or any supplemental materials “would harm the national security of the United States, the court shall . . . review such certification and supplemental materials in camera and ex parte.” § 802(c). “[A]ny public disclosure concerning such certification and the supplemental materials [is limited] . . . to a statement as to whether the case is dismissed and a description of the legal standards that govern the order, ” without disclosing the specific subsection of the certification. Id.

In targeting § 802, Hepting challenges only a narrow subset of the statutory provisions that render the proceedings secret. Two important points bear noting: the requirements of § 802 piggyback on a preexisting framework of secrecy statutes not challenged by Hepting; and the scope of the § 802 certification is itself narrow.

[13] The FISA amendments essentially left untouched the basic framework of statutes that already provide broad protection of the secrecy of court orders and certifications that rest on national security materials. These statutes range from certification provisions under the Wiretap Act, 18 U.S.C. § 2511(2)(a)(ii)(B), to authorization for telecommunication companies’ provision of information under the Electronic Communications and Security Act, 18 U.S.C. § 2709(b). Where Hepting references these underlying provisions, he characterizes them as constitutional in contrast to the alleged unconstitutionality of § 802. The amendment that Hepting objects to was enacted

[b]ecause the Government has claimed the state secrets privilege over the question of whether any particular provider furnished assistance to the Government, [and thus] an electronic communication service provider who cooperated with the Government pursuant to a valid court order or certification cannot prove it is entitled to immunity under section

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2511(2)(a)(ii) without disclosing the information deemed privileged by the Executive branch.

S. Rep. 110-209 at 11. In other words, the amendment was adopted to effectuate a pre-existing immunity for telecommunications companies.

[14] Hepting’s challenge is simply to the extra layer of secrecy provided by § 802 which precludes him from knowing the precise statutory subsection relied on by the Attorney General in the certification. Hepting does not take aim at the underlying provisions which, standing alone, allow for the wiretapping, immunity, and in camera proceedings. Thus, § 802 only marginally refines and limits the notice available to a potential claimant. 5

Next, the practical effects of § 802’s additional constraints on notice are limited. The statute lays out the five grounds for certification. Hepting has notice that the foundation of the certification rests on one of those grounds, and may challenge any or all of them even when the Attorney General does not publicly disclose the exact ground .

5For example, certification under § 802(a)(1) means that “any assistance by that person was provided pursuant to an order of the court established under section 103(a) [50 U.S.C. § 1803(a)] directing such assistance.” The cited statute creates the authority for the FISA courts. 50 U.S.C. § 1803(a). The FISA court orders and proceedings are already secret, id. 1803(c), and entirely independent of the challenged in camera provisions in § 802. Thus, certification under § 802(a)(1) would mean that the party being granted immunity acted pursuant to an already secret FISA court order. Likewise, certification under § 802(a)(2) invokes either the Wiretap Act, which authorizes telecommunications companies to provide the government with aid in eavesdropping under certain, narrow circumstances, and provides for secrecy and immunity, 18 U.S.C. § 2511(2)(a)(ii)(B), or the Electronic Communications and Privacy Act, which requires telecommunications companies to provide information to law enforcement and to keep secret their assistance. 18 U.S.C. § 2709. Certification under § 802(a)(3) invokes provisions of the FISA that already have secrecy and immunity clauses.

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe4a8geo:f4583of 53

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HEPTING v. AT&T C ORP.

The grounds of certification do not require complex analysis. The first three subsections of § 802(a) invoke a binary determination (yes or no) of whether the person provided assistance under the specific laws listed. § 802(a)(1)-(3).

The fourth subsection, § 802(a)(4), the most lengthy of the provisions, covers the widely reported TSP program, whose existence was acknowledged by the President, and, at this stage, has been much discussed and reported. S. Rep. 110-209 at 1; David Sanger & John O’Neil, White House Begins New Effort to Defend Surveillance Program, Bush Lets U.S. Spy on Callers Without Courts , N.Y. T IMES, Jan. 23, 2006; see also Al-Haramain Islamic Found., Inc. v. Bush , 507 F.3d 1190 (9th Cir. 2007). Under subparagraph four, immunity is dependent on assistance under the TSP along with additional requirements, including that the assistance was “designed to detect or prevent ” a terrorist attack. The activity must have been documented in writing and “authorized by the President” or “determined to be lawful. ”

Finally, certification under § 802(a)(5) can only mean that the party being immunized “did not provide the alleged assistance.” This too is binary. If assistance was provided, immunity is available. Absent such assistance, a plaintiff would have no claim in any event. As the Senate Report describes it, § 802(a)(5) “provides a procedure . . . to seek dismissal of a suit when a defendant either provided assistance pursuant to a lawful statutory requirement, or did not provide assistance. ” S. Rep. 110-209 at 11.

Section 802’s limited effect on Hepting’s ability to challenge the grounds for certification stands in marked contrast to the statute considered in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Hepting cites Hamdi to urge that the secrecy provisions in § 802 deprive him of due process because he has no “notice of the factual basis ” of the government’s claim. 542 U.S. at 533 (plurality opinion); That case involved the power of the Executive to indefinitely detain a citizen on unspecified

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe4a9geo:f4593of 53

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criminal charges; Hamdi had no notice at all of the evidence arrayed against him. Id. at 509-15. In this civil case, however, Hepting is on notice of the limited universe of situations that could justify certification. He has the opportunity to provide evidence and arguments as to why certification or immunity is not justified under each scenario. Indeed, the procedures under § 802(c) are not fully ex parte—any party may participate in the briefing or argument challenging the certification and grant of immunity, “but only to the extent that such participation does not require the disclosure of classified information to such party.” § 802(d). The government noted at oral argument that Hepting is “free if [he] want[s] to submit to the district court public information that [he] believe[s] supports [his] claim, and [he has] done so—hundreds and hundreds of pages.” Oral Argument at 52:36-45. These hundreds of pages of evidence, including books, television interviews, government reports and documents from the Director of National Intelligence, are nicely catalogued in Hepting’s Rule 1006 Summary of Voluminous Evidence.

[15] Finally, the national security considerations present here successfully outweigh the limited effects of § 802 on the scope of the notice Hepting receives and his ability to challenge the Attorney General’s certification. “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

Courts have consistently upheld in camera and ex parte reviews when national security information is concerned. In National Council of Resistance of Iran v. Dep’t of State , the D.C. Circuit explained that the notice “need not disclose the classified information to be presented in camera and ex parte to the court under the statute. This is within the privilege and the prerogative of the Executive, and we do not intend to compel a breach in the security which that branch is charged to protect.” 251 F.3d 192 (D.C. Cir. 2001). The court conducted a detailed analysis of the interests at stake under the

CaseC: 0a9s-e136:0667-6cv-01026/7229-/2V0R1W1 DIDoc:u8m01e4n7t43040 FDilketdE0n1tr/1y:21/1028-1PagPe5a0geo:f5503of 53

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traditional balancing test for procedural due process claims, Mathews v. Eldridge , 424 U.S. 319, 335 (1976), and definitively upheld the congressionally-approved in camera and ex parte proceedings. 251 F.3d at 206-08 (considering Secretary of State’s designation of two foreign entities as foreign terrorist organizations under in camera and ex parte provisions of the Antiterrorism and Effective Death Penalty Act, 8 U.S.C. § 1189).

Hepting’s claim mirrors the one made—and rejected—in People’s Mojahedin Organization of Iran v. Department of State: that a statute violates the Due Process Clause because it “permits the Secretary to rely upon secret evidence—the classified information that respondent refused to disclose and against which [the petitioner] could therefore not effectively defend.” 327 F.3d 1238, 1241-42 (D.C. Cir. 2003) (rejecting a due process challenge to a designation as a terrorist organization). Similarly, in Holy Land Foundation for Relief & Development v. Ashcroft , the court held that the petitioner’s designation as a “Specially Designated Global Terrorist ” using classified information reviewed by the court in camera and ex parte did not violate due process for lack of meaningful notice. 333 F.3d 156, 164 (D.C. Cir. 2003); see also Global Relief Found., Inc. v. O’Neill , 315 F.3d 748, 754 (7th Cir. 2002) ( “Administration of the IEEPA is not rendered unconstitutional because that statute authorizes the use of classified evidence that may be considered ex parte by the district court.” (citing 50 U.S.C. § 1702(c)).

To counter this line of cases Hepting relies on AmericanArab Anti-Discrimination Committee v. Reno (“AADC”), in which we held that the use of undisclosed classified information in adjustment-of-immigration-status proceedings violated due process. 70 F.3d 1045, 1070 (9th Cir. 1995). The circumstances in AADC could hardly diverge more. Most significantly there was “no statutory or regulatory basis supporting ” in camera process, id. at 1068; under § 802, Congress sanctioned in camera and ex parte procedures. Another significant

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distinction: the government in AADC offered no evidence to demonstrate the threat to national security posed by the individuals against whom it sought to use the in camera and ex parte information. Id. at 1169. Here Congress itself expressed the seriousness of the national security interests at stake, see S. Rep. 110-209 at 9, and the Attorney General explicitly declared “that disclosure of [the] classified certification, including the basis of [the] certification, for particular provider defendants, would cause exceptional harm to the national security of the United States. ” Finally, in AADC, the government “[did] not seek to shield state information from disclosure in the adjudication of a tort claim against it; instead, it [sought] to use secret information as a sword against the aliens.” 70 F.3d at 1070. AADC is thus instructive because it represents the striking contrast between a court process unhinged to specific standards and statutes in the immigration context and § 802’s certification process crafted for specific national security reasons and subject to judicial review.

The government’s invocation of national security concerns does not guarantee it a free pass. When enacting § 802, Congress was mindful to preserve and even expand the essential role of the courts. The Senate Report explained that:

The procedure in [§ 802] allows a court to review a certification . . . even when public disclosure of such facts would harm the national security. Because an assertion of state secrets over the same facts would likely prevent all judicial review . . . this provision serves to expand judicial review to an area that may have been previously non-justiciable. In addition, the statute explicitly allows the court to review . . . the Attorney General’s certification.

S. Rep. 110-209 at 12. The certification is reviewed for “substantial evidence.” § 802(b)(1); cf. Hamdi, 542 U.S. at 527 (using a more deferential “some evidence” standard). The

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statute envisions a meaningful role for the courts, as exemplified by the careful and detailed work of the district court in this case.

[16] Accordingly, we conclude that the procedures afforded under § 802 are sufficient under the Due Process Clause. Given the circumstances dictated by national security concerns, the statute provides sufficient notice of a range of grounds for immunity from suit and provides meaningful judicial review based on substantial evidence. The public evidence is, of course, provided to all parties; the courts may review any sealed evidence in camera to assure that there is a legitimate national security interest and to review the certification and its accompanying evidence under the substantial evidence standard.

IV. Issues Specific to Joll, Anderson, Herron, and Lebow

[17] Four appellants, Joll, Anderson, Herron, and Lebow, filed complaints alleging conduct that began as far back as February 2, 2001, predating the TSP program. In its dismissal of their actions, the district court stated that because “section 802’s immunity provision may only be invoked with regard to suits arising from actions authorized by the president between September 11, 2001 and January 7, 2007, the dismissal is without prejudice. ” Al-Haramain, 633 F. Supp. 2d at 976. Unlike the district court, we conclude that § 802’s immunity provisions are not temporally limited; only § 802(a)(4), which references the TSP, contains a temporal limitation. The district court did not err by dismissing these four appellants’ pre-September 11, 2001 claims.

[18] In addition to claims against the private telecommunications companies, the complaints filed by Anderson and Lebow also included alleged illegal conduct on the part of the government. Because § 802 does not apply to claims against the government, the district court erred in dismissing these claims. We reverse and remand with respect to Anderson and

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Lebow’s claims against the government for further consideration by the district court.

CONCLUSION

Although Hepting offers a broadside against the constitutionality of § 802, we conclude that the statute is constitutional and does not violate Articles I or III of the Constitution or the Due Process Clause of the Fifth Amendment. After rejecting similar constitutional arguments, the district court dismissed the complaints based on the Attorney General’s certification under § 802. Hepting did not appeal this underlying basis for dismissal, so we do not pass on it here. The district court’s grant of the government’s motion to dismiss is AFFIRMED as to the challenge of all appellants with respect to the § 802 claims and REVERSED and REMANDED as to Anderson and Lebow’s claims against the government.

Each party shall bear its own costs on appeal.

 Case3:06-cv-00672-VRW Document308 Filed07/20/06 Page1 of 72

United States District Court For the Northern District of California

1

2

3

4

5

6

7

8

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

12 TASH HEPTING, et al,

No C-06-672 VRW

13

Plaintiffs,

ORDER

14

v

15 AT&T CORPORATION, et al,

16

Defendants.

/ 17

18

Plaintiffs allege that AT&T Corporation (AT&T) and its

19 holding company, AT&T Inc, are collaborating with the National

20 Security Agency (NSA) in a massive warrantless surveillance program

21 that illegally tracks the domestic and foreign communications and

22 communication records of millions of Americans. The first amended

23 complaint (Doc #8 (FAC)), filed on February 22, 2006, claims that

24 AT&T and AT&T Inc have committed violations of:

25

(1) The First and Fourth Amendments to the United States

26

Constitution (acting as agents or instruments of the

27

government) by illegally intercepting, disclosing,

28

divulging and/or using plaintiffs’ communications;

Case3:06-cv-00672-VRW Document308 Filed07/20/06 Page2 of 72

United States District Court For the Northern District of California

1

(2) Section 109 of Title I of the Foreign Intelligence

2

Surveillance Act of 1978 (FISA), 50 USC § 1809, by

3

engaging in illegal electronic surveillance of

4

plaintiffs’ communications under color of law;

5

(3) Section 802 of Title III of the Omnibus Crime Control and

6

Safe Streets Act of 1968, as amended by section 101 of

7

Title I of the Electronic Communications Privacy Act of

8

1986 (ECPA), 18 USC §§ 2511(1)(a), (1)(c), (1)(d) and

9

(3)(a), by illegally intercepting, disclosing, using

10

and/or divulging plaintiffs’ communications;

11

(4) Section 705 of Title VII of the Communications Act of

12

1934, as amended, 47 USC § 605, by unauthorized

13

divulgence and/or publication of plaintiffs’

14

communications;

15

(5) Section 201 of Title II of the ECPA (“Stored

16

Communications Act”), as amended, 18 USC §§ 2702(a)(1)

17

and (a)(2), by illegally divulging the contents of

18

plaintiffs’ communications;

19

(6) Section 201 of the Stored Communications Act, as amended

20

by section 212 of Title II of the USA PATRIOT Act, 18 USC

21

§ 2702(a)(3), by illegally divulging records concerning

22

plaintiffs’ communications to a governmental entity and

23

(7) California’s Unfair Competition Law, Cal Bus & Prof Code

24

§§ 17200 et seq, by engaging in unfair, unlawful and

25

deceptive business practices.

26 The complaint seeks certification of a class action and redress

27 through statutory damages, punitive damages, restitution,

28 disgorgement and injunctive and declaratory relief.

2

Case3:06-cv-00672-VRW Document308 Filed07/20/06 Page3 of 72

United States District Court For the Northern District of California

1

On April 5, 2006, plaintiffs moved for a preliminary

2 injunction seeking to enjoin defendants’ allegedly illegal

3 activity. Doc #30 (MPI). Plaintiffs supported their motion by

4 filing under seal three documents, obtained by former AT&T

5 technician Mark Klein, which allegedly demonstrate how AT&T has

6 implemented a warrantless surveillance system on behalf of the NSA

7 at a San Francisco AT&T facility. Doc #31, Exs A-C (the “AT&T

8 documents”). Plaintiffs also filed under seal supporting

9 declarations from Klein (Doc #31) and J Scott Marcus (Doc #32), a

10 putative expert who reviewed the AT&T documents and the Klein

11 declaration.

12

On April 28, 2006, AT&T moved to dismiss this case. Doc

13 #86 (AT&T MTD). AT&T contends that plaintiffs lack standing and

14 were required but failed to plead affirmatively that AT&T did not

15 receive a government certification pursuant to 18 USC §

16 2511(2)(a)(ii)(B). AT&T also contends it is entitled to statutory,

17 common law and qualified immunity.

18

On May 13, 2006, the United States moved to intervene as

19 a defendant and moved for dismissal or, alternatively, for summary

20 judgment based on the state secrets privilege. Doc #124-1 (Gov

21 MTD). The government supported its assertion of the state secrets

22 privilege with public declarations from the Director of National 23 Intelligence, John D Negroponte (Doc #124-2 (Negroponte Decl)), and 24 the Director of the NSA, Keith B Alexander (Doc #124-3 (Alexander 25 Decl), and encouraged the court to review additional classified 26 submissions in camera and ex parte. The government also asserted 27 two statutory privileges under 50 USC § 402 note and 50 USC § 40328 1(i)(1).

3

Case3:06-cv-00672-VRW Document308 Filed07/20/06 Page4 of 72

United States District Court For the Northern District of California

1

At a May 17, 2006, hearing, the court requested

2 additional briefing from the parties addressing (1) whether this

3 case could be decided without resolving the state secrets issue,

4 thereby obviating any need for the court to review the government’s

5 classified submissions and (2) whether the state secrets issue is

6 implicated by an FRCP 30(b)(6) deposition request for information

7 about any certification that AT&T may have received from the

8 government authorizing the alleged wiretapping activities. Based

9 on the parties’ submissions, the court concluded in a June 6, 2006,

10 order that this case could not proceed and discovery could not

11 commence until the court examined in camera and ex parte the

12 classified documents to assess whether and to what extent the state

13 secrets privilege applies. Doc #171.

14

After performing this review, the court heard oral

15 argument on the motions to dismiss on June 23, 2006. For the

16 reasons discussed herein, the court DENIES the government’s motion

17 to dismiss and DENIES AT&T’s motion to dismiss.

18

19

I

20

The court first addresses the government’s motion to

21 dismiss or, alternatively, for judgment on state secrets grounds.

22 After exploring the history and principles underlying the state 23 secrets privilege and summarizing the government’s arguments, the 24 court turns to whether the state secrets privilege applies and 25 requires dismissal of this action or immediate entry of judgment in 26 favor of defendants. The court then takes up how the asserted 27 privilege bears on plaintiffs’ discovery request for any government 28 certification that AT&T might have received authorizing the alleged

4

Case3:06-cv-00672-VRW Document308 Filed07/20/06 Page5 of 72

United States District Court For the Northern District of California

1 surveillance activities. Finally, the court addresses the

2 statutory privileges raised by the government.

3

4

A

5

“The state secrets privilege is a common law evidentiary

6 rule that protects information from discovery when disclosure would

7 be inimical to the national security. Although the exact origins

8 of the privilege are not certain, the privilege in this country has

9 its initial roots in Aaron Burr’s trial for treason, and has its

10 modern roots in United States v Reynolds, 345 US 1 (1953).” In re

11 United States, 872 F2d 472, 474-75 (DC Cir 1989) (citations omitted

12 and altered). In his trial for treason, Burr moved for a subpoena

13 duces tecum ordering President Jefferson to produce a letter by

14 General James Wilkinson. United States v Burr, 25 F Cas 30, 32

15 (CCD Va 1807). Responding to the government’s argument “that the

16 letter contains material which ought not to be disclosed,” Chief

17 Justice Marshall riding circuit noted, “What ought to be done under

18 such circumstances presents a delicate question, the discussion of

19 which, it is hoped, will never be rendered necessary in this

20 country.” Id at 37. Although the court issued the subpoena, id at

21 37-38, it noted that if the letter “contain[s] any matter which it

22 would be imprudent to disclose, which it is not the wish of the 23 executive to disclose, such matter, if it be not immediately and 24 essentially applicable to the point, will, of course, be 25 suppressed.” Id at 37. 26 // 27 // 28 //

5

Case3:06-cv-00672-VRW Document308 Filed07/20/06 Page6 of 72

United States District Court For the Northern District of California

1

The actions of another president were at issue in Totten

2 v United States, 92 US 105 (1876), in which the Supreme Court

3 established an important precursor to the modern-day state secrets

4 privilege. In that case, the administrator of a former spy’s

5 estate sued the government based on a contract the spy allegedly

6 made with President Lincoln to recover compensation for espionage

7 services rendered during the Civil War. Id at 105-06. The Totten

8 Court found the action to be barred:

9

The service stipulated by the contract was a secret

service; the information sought was to be obtained

10

clandestinely, and was to be communicated

privately; the employment and the service were to

11

be equally concealed. Both employer and agent must

have understood that the lips of the other were to

12

be for ever sealed respecting the relation of

either to the matter. This condition of the

13

engagement was implied from the nature of the

employment, and is implied in all secret

14

employments of the government in time of war, or

upon matters affecting our foreign relations, where

15

a disclosure of the service might compromise or

embarrass our government in its public duties, or

16

endanger the person or injure the character of the

agent. 17

18 Id at 106, quoted in Tenet v Doe, 544 US 1, 7-8 (2005). Hence,

19 given the secrecy implied in such a contract, the Totten Court

20 “thought it entirely incompatible with the nature of such a

21 contract that a former spy could bring suit to enforce it.” Tenet,

22 544 US at 8. Additionally, the Totten Court observed:

23

It may be stated as a general principle, that

public policy forbids the maintenance of any suit

24

in a court of justice, the trial of which would

inevitably lead to the disclosure of matters which

25

the law itself regards as confidential, and

respecting which it will not allow the confidence

26

to be violated. * * * Much greater reason exists

for the application of the principle to cases of

27

contract for secret services with the government,

as the existence of a contract of that kind is

28

itself a fact not to be disclosed.

6

Case3:06-cv-00672-VRW Document308 Filed07/20/06 Page7 of 72

United States District Court For the Northern District of California

1 Totten, 92 US at 107. Characterizing this aspect of Totten, the

2 Supreme Court has noted, “No matter the clothing in which alleged

3 spies dress their claims, Totten precludes judicial review in cases

4 such as [plaintiffs’] where success depends upon the existence of

5 their secret espionage relationship with the Government.” Tenet,

6 544 US at 8. “Totten’s core concern” is “preventing the existence

7 of the [alleged spy’s] relationship with the Government from being

8 revealed.” Id at 10.

9

In the Cold War era case of Reynolds v United States, 345

10 US 1 (1953), the Supreme Court first articulated the state secrets

11 privilege in its modern form. After a B-29 military aircraft

12 crashed and killed three civilian observers, their widows sued the

13 government under the Federal Tort Claims Act and sought discovery

14 of the Air Force’s official accident investigation. Id at 2-3.

15 The Secretary of the Air Force filed a formal “Claim of Privilege”

16 and the government refused to produce the relevant documents to the

17 court for in camera review. Id at 4-5. The district court deemed 18 as established facts regarding negligence and entered judgment for

19 plaintiffs. Id at 5. The Third Circuit affirmed and the Supreme

20 Court granted certiorari to determine “whether there was a valid

21 claim of privilege under [FRCP 34].” Id at 6. Noting this

22 country’s theretofore limited judicial experience with “the 23 privilege which protects military and state secrets,” the court 24 stated: 25 // 26 // 27 // 28 //

7

Case3:06-cv-00672-VRW Document308 Filed07/20/06 Page8 of 72

United States District Court For the Northern District of California

1

The privilege belongs to the Government and must be

2

asserted by it * * *. It is not to be lightly

invoked. There must be a formal claim of

3

privilege, lodged by the head of the department

which has control over the matter, after actual

4

personal consideration by that officer. The court

itself must determine whether the circumstances are

5

appropriate for the claim of privilege, and yet do

so without forcing a disclosure of the very thing

6

the privilege is designed to protect.

7 Id at 7-8 (footnotes omitted). The latter determination requires a

8 “formula of compromise,” as “[j]udicial control over the evidence

9 in a case cannot be abdicated to the caprice of executive

10 officers,” yet a court may not “automatically require a complete

11 disclosure to the judge before the claim of privilege will be

12 accepted in any case.” Id at 9-10. Striking this balance, the

13 Supreme Court held that the “occasion for the privilege is

14 appropriate” when a court is satisfied “from all the circumstances

15 of the case, that there is a reasonable danger that compulsion of

16 the evidence will expose military matters which, in the interest of

17 national security, should not be divulged.” Id at 10.

18

The degree to which the court may “probe in satisfying

19 itself that the occasion for invoking the privilege is appropriate”

20 turns on “the showing of necessity which is made” by plaintiffs.

21 Id at 11. “Where there is a strong showing of necessity, the claim

22 of privilege should not be lightly accepted, but even the most 23 compelling necessity cannot overcome the claim of privilege if the 24 court is ultimately satisfied that military secrets are at stake.” 25 Id. Finding both a “reasonable danger that the accident 26 investigation report would contain” state secrets and a “dubious 27 showing of necessity,” the court reversed the Third Circuit’s 28 decision and sustained the claim of privilege. Id at 10-12.

8

Case3:06-cv-00672-VRW Document308 Filed07/20/06 Page9 of 72

United States District Court For the Northern District of California

1

In Halkin v Helms, 598 F2d 1 (DC Cir 1978) (Halkin I),

2 the District of Columbia Circuit applied the principles enunciated

3 in Reynolds in an action alleging illegal NSA wiretapping. Former

4 Vietnam War protestors contended that “the NSA conducted

5 warrantless interceptions of their international wire, cable and

6 telephone communications” at the request of various federal

7 defendants and with the cooperation of telecommunications

8 providers. Id at 3. Plaintiffs challenged two separate NSA

9 operations: operation MINARET, which was “part of [NSA’s] regular

10 signals intelligence activity in which foreign electronic signals

11 were monitored,” and operation SHAMROCK, which involved “processing

12 of all telegraphic traffic leaving or entering the United States.”

13 Id at 4.

14

The government moved to dismiss on state secrets grounds,

15 arguing that civil discovery would impermissibly “(1) confirm the

16 identity of individuals or organizations whose foreign

17 communications were acquired by NSA, (2) disclose the dates and

18 contents of such communications, or (3) divulge the methods and

19 techniques by which the communications were acquired by NSA.” Id

20 at 4-5. After plaintiffs “succeeded in obtaining a limited amount

21 of discovery,” the district court concluded that plaintiffs’ claims

22 challenging operation MINARET could not proceed because “the 23 ultimate issue, the fact of acquisition, could neither be admitted 24 nor denied.” Id at 5. The court denied the government’s motion to 25 dismiss on claims challenging operation SHAMROCK because the court 26 “thought congressional committees investigating intelligence 27 matters had revealed so much information about SHAMROCK that such a 28 disclosure would pose no threat to the NSA mission.” Id at 10.

9

Case3:06-cv-00672-VRW Document308 Filed07/20/06 Page10 of 72

United States District Court For the Northern District of California

1

On certified appeal, the District of Columbia Circuit

2 noted that even “seemingly innocuous” information is privileged if

3 that information is part of a classified “mosaic” that “can be

4 analyzed and fitted into place to reveal with startling clarity how

5 the unseen whole must operate.” Id at 8. The court affirmed

6 dismissal of the claims related to operation MINARET but reversed

7 the district court’s rejection of the privilege as to operation

8 SHAMROCK, reasoning that “confirmation or denial that a particular

9 plaintiff's communications have been acquired would disclose NSA

10 capabilities and other valuable intelligence information to a

11 sophisticated intelligence analyst.” Id at 10. On remand, the

12 district court dismissed plaintiffs’ claims against the NSA and

13 individuals connected with the NSA’s alleged monitoring.

14 Plaintiffs were left with claims against the Central Intelligence

15 Agency (CIA) and individuals who had allegedly submitted watchlists

16 to the NSA on the presumption that the submission resulted in

17 interception of plaintiffs’ communications. The district court

18 eventually dismissed the CIA-related claims as well on state

19 secrets grounds and the case went up again to the court of appeals.

20

The District of Columbia Circuit stated that the state

21 secrets inquiry “is not a balancing of ultimate interests at stake

22 in the litigation,” but rather “whether the showing of the harm 23 that might reasonably be seen to flow from disclosure is adequate 24 in a given case to trigger the absolute right to withhold the 25 information sought in that case.” Halkin v Helms, 690 F2d 977, 990 26 (DC Cir 1982) (Halkin II). The court then affirmed dismissal of 27 “the claims for injunctive and declaratory relief against the CIA 28 defendants based upon their submission of plaintiffs’ names on

10

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United States District Court For the Northern District of California

1 ‘watchlists’ to NSA.” Id at 997 (emphasis omitted). The court

2 found that plaintiffs lacked standing given the court’s “ruling in

3 Halkin I that evidence of the fact of acquisition of plaintiffs’

4 communications by NSA cannot be obtained from the government, nor

5 can such fact be presumed from the submission of watchlists to that

6 Agency.” Id at 999 (emphasis omitted).

7

In Ellsberg v Mitchell, 709 F2d 51 (DC Cir 1983), the

8 District of Columbia Circuit addressed the state secrets privilege

9 in another wiretapping case. Former defendants and attorneys in

10 the “Pentagon Papers” criminal prosecution sued individuals who

11 allegedly were responsible for conducting warrantless electronic

12 surveillance. Id at 52-53. In response to plaintiffs’

13 interrogatories, defendants admitted to two wiretaps but refused to

14 answer other questions on the ground that the requested information

15 was privileged. Id at 53. The district court sustained the

16 government’s formal assertion of the state secrets privilege and

17 dismissed plaintiffs’ claims pertaining to foreign communications

18 surveillance. Id at 56.

19

On appeal, the District of Columbia Circuit noted that

20 “whenever possible, sensitive information must be disentangled from

21 nonsensitive information to allow for the release of the latter.”

22 Id at 57. The court generally affirmed the district court’s 23 decisions regarding the privilege, finding “a ‘reasonable danger’ 24 that revelation of the information in question would either enable 25 a sophisticated analyst to gain insights into the nation’s 26 intelligence-gathering methods and capabilities or would disrupt 27 diplomatic relations with foreign governments.” Id at 59. The 28 court disagreed with the district court’s decision that the

11

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1 privilege precluded discovery of the names of the attorneys general

2 that authorized the surveillance. Id at 60.

3

Additionally, responding to plaintiffs’ argument that the

4 district court should have required the government to disclose more

5 fully its basis for asserting the privilege, the court recognized

6 that “procedural innovation” was within the district court’s

7 discretion and noted that “[t]he government’s public statement need

8 be no more (and no less) specific than is practicable under the

9 circumstances.” Id at 64.

10

In considering the effect of the privilege, the court

11 affirmed dismissal “with regard to those [individuals] whom the

12 government ha[d] not admitted overhearing.” Id at 65. But the

13 court did not dismiss the claims relating to the wiretaps that the

14 government had conceded, noting that there was no reason to

15 “suspend the general rule that the burden is on those seeking an

16 exemption from the Fourth Amendment warrant requirement to show the

17 need for it.” Id at 68.

18

In Kasza v Browner, 133 F3d 1159 (9th Cir 1998), the

19 Ninth Circuit issued its definitive opinion on the state secrets

20 privilege. Former employees at a classified United States Air

21 Force facility brought a citizen suit under the Resource

22 Conservation and Recovery Act (RCRA), 42 USC § 6972, alleging the 23 Air Force violated that act. Id at 1162. The district court 24 granted summary judgment against plaintiffs, finding discovery of 25 information related to chemical inventories impossible due to the 26 state secrets privilege. Id. On appeal, plaintiffs argued that an 27 exemption in the RCRA preempted the state secrets privilege and 28 even if not preempted, the privilege was improperly asserted and

12

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1 too broadly applied. Id at 1167-69. After characterizing the

2 state secrets privilege as a matter of federal common law, the

3 Ninth Circuit recognized that “statutes which invade the common law

4 * * * are to be read with a presumption favoring the retention of

5 long-established and familiar principles, except when a statutory

6 purpose to the contrary is evident.” Id at 1167 (omissions in

7 original) (citations omitted). Finding no such purpose, the court

8 held that the statutory exemption did not preempt the state secrets

9 privilege. Id at 1168.

10

Kasza also explained that the state secrets privilege can

11 require dismissal of a case in three distinct ways. “First, by

12 invoking the privilege over particular evidence, the evidence is

13 completely removed from the case. The plaintiff’s case then goes

14 forward based on evidence not covered by the privilege. * * * If,

15 after further proceedings, the plaintiff cannot prove the prima 16 facie elements of her claim with nonprivileged evidence, then the 17 court may dismiss her claim as it would with any plaintiff who

18 cannot prove her case.” Id at 1166. Second, “if the privilege

19 deprives the defendant of information that would otherwise give the

20 defendant a valid defense to the claim, then the court may grant

21 summary judgment to the defendant.” Id (internal quotation

22 omitted) (emphasis in original). Finally, and most relevant here, 23 “notwithstanding the plaintiff’s ability to produce nonprivileged 24 evidence, if the ‘very subject matter of the action’ is a state 25 secret, then the court should dismiss the plaintiff’s action based 26 solely on the invocation of the state secrets privilege.” Id 27 (quoting Reynolds, 345 US at 11 n26). See also Reynolds, 345 US at 28 11 n26 (characterizing Totten as a case “where the very subject

13

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1 matter of the action, a contract to perform espionage, was a matter

2 of state secret. The action was dismissed on the pleadings without

3 ever reaching the question of evidence, since it was so obvious

4 that the action should never prevail over the privilege.”).

5

According the “utmost deference” to the government’s

6 claim of privilege and noting that even “seemingly innocuous

7 information” could be “part of a classified mosaic,” id at 1166,

8 Kasza concluded after in camera review of classified declarations

9 “that release of such information would reasonably endanger

10 national security interests.” Id at 1170. Because “no protective

11 procedure” could salvage plaintiffs’ case, and “the very subject

12 matter of [her] action [was] a state secret,” the court affirmed

13 dismissal. Id.

14

More recently, in Tenet v Doe, 544 US 1 (2005), the

15 Supreme Court reaffirmed Totten, holding that an alleged former

16 Cold War spy could not sue the government to enforce its

17 obligations under a covert espionage agreement. Id at 3.

18 Importantly, the Court held that Reynolds did not “replac[e] the

19 categorical Totten bar with the balancing of the state secrets

20 evidentiary privilege in the distinct class of cases that depend

21 upon clandestine spy relationships.” Id at 9-10.

22

Even more recently, in El-Masri v Tenet, 2006 WL 1391390,

23 05-cv-01417 (ED Va May 12, 2006), plaintiff sued the former

24 director of the CIA and private corporations involved in a program

25 of “extraordinary rendition,” pursuant to which plaintiff was

26 allegedly beaten, tortured and imprisoned because the government

27 mistakenly believed he was affiliated with the al Qaeda terrorist

28 organization. Id at *1-2. The government intervened “to protect

14

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1 its interests in preserving state secrets.” Id at *3. The court

2 sustained the government’s assertion of the privilege:

3

[T]he substance of El-Masri’s publicly available

complaint alleges a clandestine intelligence

4

program, and the means and methods the foreign

intelligence services of this and other countries

5

used to carry out the program. And, as the public

declaration makes pellucidly clear, any admission

6

or denial of these allegations by defendants * * *

would present a grave risk of injury to national

7

security.

8 Id at *5. The court also rejected plaintiff’s argument “that

9 government officials’ public affirmation of the existence” of the

10 rendition program somehow undercut the claim of privilege because

11 the government’s general admission provided “no details as to the

12 [program’s] means and methods,” which were “validly claimed as

13 state secrets.” Id. Having validated the exercise of privilege,

14 the court reasoned that dismissal was required because “any answer

15 to the complaint by the defendants risk[ed] the disclosure of

16 specific details [of the program]” and special discovery procedures

17 would have been “plainly ineffective where, as here, the entire aim

18 of the suit [was] to prove the existence of state secrets.” Id at

19 *6.

20

21

B

22

Relying on Kasza, the government advances three reasons

23 why the state secrets privilege requires dismissing this action or

24 granting summary judgment for AT&T: (1) the very subject matter of

25 this case is a state secret; (2) plaintiffs cannot make a prima

26 facie case for their claims without classified evidence and (3) the

27 privilege effectively deprives AT&T of information necessary to

28 raise valid defenses. Doc #245-1 (Gov Reply) at 3-5.

15

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1

In support of its contention that the very subject matter

2 of this action is a state secret, the government argues: “AT&T

3 cannot even confirm or deny the key factual premise underlying

4 [p]laintiffs’ entire case —– that AT&T has provided any assistance

5 whatsoever to NSA regarding foreign-intelligence surveillance.

6 Indeed, in the formulation of Reynolds and Kasza, that allegation

7 is ‘the very subject of the action.’” Id at 4-5.

8

Additionally, the government claims that dismissal is

9 appropriate because plaintiffs cannot establish a prima facie case

10 for their claims. Contending that plaintiffs “persistently confuse

11 speculative allegations and untested assertions for established

12 facts,” the government attacks the Klein and Marcus declarations

13 and the various media reports that plaintiffs rely on to

14 demonstrate standing. Id at 4. The government also argues that

15 “[e]ven when alleged facts have been the ‘subject of widespread

16 media and public speculation’ based on ‘[u]nofficial leaks and

17 public surmise,’ those alleged facts are not actually established

18 in the public domain.” Id at 8 (quoting Afshar v Dept of State,

19 702 F2d 1125, 1130-31 (DC Cir 1983)).

20

The government further contends that its “privilege

21 assertion covers any information tending to confirm or deny (a) the

22 alleged intelligence activities, (b) whether AT&T was involved with 23 any such activity, and (c) whether a particular individual’s 24 communications were intercepted as a result of any such activity.” 25 Gov MTD at 17-18. The government reasons that “[w]ithout these 26 facts * * * [p]laintiffs ultimately will not be able to prove 27 injury-in-fact and causation,” thereby justifying dismissal of this 28 action for lack of standing. Id at 18.

16

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1

The government also notes that plaintiffs do not fall

2 within the scope of the publicly disclosed “terrorist surveillance

3 program” (see infra I(C)(1)) because “[p]laintiffs do not claim to

4 be, or to communicate with, members or affiliates of [the] al Qaeda

5 [terrorist organization] —– indeed, [p]laintiffs expressly exclude

6 from their purported class any foreign powers or agent of foreign

7 powers * * *.” Id at 18 n9 (citing FAC, ¶ 70). Hence, the

8 government concludes the named plaintiffs “are in no different

9 position from any other citizen or AT&T subscriber who falls

10 outside the narrow scope of the [terrorist surveillance program]

11 but nonetheless disagrees with the program.” Id (emphasis in

12 original).

13

Additionally, the government contends that plaintiffs’

14 Fourth Amendment claim fails because no warrant is required for the

15 alleged searches. In particular, the government contends that the

16 executive has inherent constitutional authority to conduct

17 warrantless searches for foreign intelligence purposes, id at 24

18 (citing In re Sealed Case, 310 F3d 717, 742 (For Intel Surv Ct of

19 Rev 2002)), and that the warrant requirement does not apply here

20 because this case involves “special needs” that go beyond a routine

21 interest in law enforcement, id at 26. Accordingly, to make a

22 prima facie case, the government asserts that plaintiffs would have 23 to demonstrate that the alleged searches were unreasonable, which 24 would require a fact-intensive inquiry that the government contends 25 plaintiffs could not perform because of the asserted privilege. Id 26 at 26-27. 27 // 28 //

17

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1

The government also argues that plaintiffs cannot

2 establish a prima facie case for their statutory claims because

3 plaintiffs must prove “that any alleged interception or disclosure

4 was not authorized by the Government.” The government maintains

5 that “[p]laintiffs bear the burden of alleging and proving the lack

6 of such authorization,” id at 21-22, and that they cannot meet that

7 burden because “information confirming or denying AT&T’s

8 involvement in alleged intelligence activities is covered by the

9 state secrets assertion.” Id at 23.

10

Because “the existence or non-existence of any

11 certification or authorization by the Government relating to any

12 AT&T activity would be information tending to confirm or deny

13 AT&T’s involvement in any alleged intelligence activity,” Doc #145-

14 1 (Gov 5/17/06 Br) at 17, the government contends that its state

15 secrets assertion precludes AT&T from “present[ing] the facts that

16 would constitute its defenses.” Gov Reply at 1. Accordingly, the

17 government also argues that the court could grant summary judgment

18 in favor of AT&T on that basis.

19

20

C

21

The first step in determining whether a piece of

22 information constitutes a “state secret” is determining whether 23 that information actually is a “secret.” Hence, before analyzing 24 the application of the state secrets privilege to plaintiffs’ 25 claims, the court summarizes what has been publicly disclosed about 26 NSA surveillance programs as well as the AT&T documents and 27 accompanying Klein and Marcus declarations. 28 //

18

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1

1

2

Within the last year, public reports have surfaced on at

3 least two different types of alleged NSA surveillance programs,

4 neither of which relies on warrants. The New York Times disclosed

5 the first such program on December 16, 2005. Doc #19 (Cohn Decl),

6 Ex J (James Risen and Eric Lichtblau, Bush Lets US Spy on Callers

7 Without Courts, The New York Times (Dec 16, 2005)). The following

8 day, President George W Bush confirmed the existence of a

9 “terrorist surveillance program” in his weekly radio address:

10

In the weeks following the [September 11, 2001]

terrorist attacks on our Nation, I authorized the

11

National Security Agency, consistent with US law

and the Constitution, to intercept the

12

international communications of people with known

links to Al Qaeda and related terrorist

13

organizations. Before we intercept these

communications, the Government must have

14

information that establishes a clear link to these

terrorist networks. 15

16 Doc #20 (Pl Request for Judicial Notice), Ex 1 at 2, available at

17 http://www.whitehouse.gov/news/releases/2005/12/print/20051217.html

18 (last visited July 19, 2006). The President also described the

19 mechanism by which the program is authorized and reviewed:

20 21 22 23 24 25 26 27 // 28 //

The activities I authorized are reviewed approximately every 45 days. Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our Government and the threat of catastrophic damage to our homeland. During each assessment, previous activities under the authorization are reviewed. The review includes approval by our Nation’s top legal officials, including the Attorney General and the Counsel to the President. I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our Nation faces a continuing threat from Al Qaeda and related groups.

19

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1

The NSA’s activities under this authorization are

throughly reviewed by the Justice Department and

2

NSA’s top legal officials, including NSA’s General

Counsel and Inspector General. Leaders in Congress

3

have been briefed more than a dozen times on this

authorization and the activities conducted under

4

it. Intelligence officials involved in this

activity also receive extensive training to ensure

5

they perform their duties consistent with the

letter and intent of the authorization.

6

Id.

7

Attorney General Alberto Gonzales subsequently confirmed

8

that this program intercepts “contents of communications where * * *

9

one party to the communication is outside the United States” and 10

the government has “a reasonable basis to conclude that one party 11

to the communication is a member of al Qaeda, affiliated with al 12

Qaeda, or a member of an organization affiliated with al Qaeda, or 13

working in support of al Qaeda.” Doc #87 (AT&T Request for 14

Judicial Notice), Ex J at 1 (hereinafter “12/19/05 Press 15

Briefing”), available at http://www.whitehouse.gov/news/releases/ 16

2005/12/print/20051219-1.html (last visited July 19, 2005). The 17

Attorney General also noted, “This [program] is not about 18

wiretapping everyone. This is a very concentrated, very limited 19

program focused at gaining information about our enemy.” Id at 5. 20

The President has also made a public statement, of which the court 21

takes judicial notice, that the government’s “international 22

activities strictly target al Qaeda and their known affiliates,” 23

“the government does not listen to domestic phone calls without 24

court approval” and the government is “not mining or trolling 25

through the personal lives of millions of innocent Americans.” The 26

27 White House, President Bush Discusses NSA Surveillance Program (May

11, 2006) (hereinafter “5/11/06 Statement”), http://www.whitehouse. 28

20

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1 gov/news/releases/2006/05/20060511-1.html (last visited July 19,

2 2005).

3

On May 11, 2006, USA Today reported the existence of a

4 second NSA program in which BellSouth Corp, Verizon Communications

5 Inc and AT&T were alleged to have provided telephone calling

6 records of tens of millions of Americans to the NSA. Doc #182

7 (Markman Decl), Ex 5 at 1 (Leslie Cauley, NSA Has Massive Database

8 of Americans’ Phone Calls, USA Today (May 11, 2006)). The article

9 did not allege that the NSA listens to or records conversations but

10 rather that BellSouth, Verizon and AT&T gave the government access

11 to a database of domestic communication records that the NSA uses

12 “to analyze calling patterns in an effort to detect terrorist

13 activity.” Id. The report indicated a fourth telecommunications

14 company, Qwest Communications International Inc, declined to

15 participate in the program. Id at 2. An attorney for Qwest’s

16 former CEO, Joseph Nacchio, issued the following statement:

17

In the Fall of 2001 * * * while Mr Nacchio was

Chairman and CEO of Qwest and was serving pursuant

18

to the President’s appointment as the Chairman of

the National Security Telecommunications Advisory

19

Committee, Qwest was approached to permit the

Government access to the private telephone records

20

of Qwest customers.

21

Mr Nacchio made inquiry as to whether a warrant or

other legal process had been secured in support of

22

that request. When he learned that no such

authority had been granted and that there was a

23

disinclination on the part of the authorities to

use any legal process, including the Special Court

24

which had been established to handle such matters,

Mr Nacchio concluded that these requests violated

25

the privacy requirements of the Telecommications

[sic] Act. Accordingly, Mr Nacchio issued

26

instructions to refuse to comply with these

requests. These requests continued throughout Mr

27

Nacchio’s tenure and until his departure in June of

2002. 28

21

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1 Markman Decl, Ex 6.

2

BellSouth and Verizon both issued statements, of which

3 the court takes judicial notice, denying their involvement in the

4 program described in USA Today. BellSouth stated in relevant part:

5

As a result of media reports that BellSouth

provided massive amounts of customer calling

6

information under a contract with the NSA, the

Company conducted an internal review to determine

7

the facts. Based on our review to date, we have

confirmed no such contract exists and we have not

8

provided bulk customer calling records to the NSA.

9 News Release, BellSouth Statement on Governmental Data Collection

10 (May 15, 2006), available at http://bellsouth.mediaroom.com/

11 index.php?s=press_releases&item=2860 (last visited July 19, 2006).

12 Although declining to confirm or deny whether it had any

13 relationship to the NSA program acknowledged by the President,

14 Verizon stated in relevant part:

15

One of the most glaring and repeated falsehoods in

the media reporting is the assertion that, in the

16

aftermath of the 9/11 attacks, Verizon was

approached by NSA and entered into an arrangement

17

to provide the NSA with data from its customers’

domestic calls. 18

This is false. From the time of the 9/11 attacks

19

until just four months ago, Verizon had three major

businesses - its wireline phone business, its

20

wireless company and its directory publishing

business. It also had its own Internet Service

21

Provider and long-distance businesses. Contrary to

the media reports, Verizon was not asked by NSA to

22

provide, nor did Verizon provide, customer phone

records from any of these businesses, or any call

23

data from those records. None of these companies

—– wireless or wireline —– provided customer

24

records or call data.

25 See News Release, Verizon Issues Statement on NSA Media Coverage

26 (May 16, 2006), available at http://newscenter.verizon.com/

27 proactive/newsroom/release.vtml?id=93450 (last visited July 19,

28 2006). BellSouth and Verizon’s denials have been at least somewhat

22

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1 substantiated in later reports. Doc #298 (DiMuzio Decl), Ex 1

2 (Lawmakers: NSA Database Incomplete, USA Today (June 30, 2006)).

3 Neither AT&T nor the government has confirmed or denied the

4 existence of a program of providing telephone calling records to

5 the NSA. Id.

6

7

2

8

Although the government does not claim that the AT&T

9 documents obtained by Mark Klein or the accompanying declarations

10 contain classified information (Doc #284 (6/23/06 Transcript) at

11 76:9-20), those papers remain under seal because AT&T alleges that

12 they contain proprietary and trade secret information.

13 Nonetheless, much of the information in these papers has already

14 been leaked to the public or has been revealed in redacted versions

15 of the papers. The summary below is based on those already

16 disclosed facts.

17

In a public statement, Klein explained that while working

18 at an AT&T office in San Francisco in 2002, “the site manager told

19 me to expect a visit from a National Security Agency agent, who was

20 to interview a management-level technician for a special job.” Doc

21 #43 (Ericson Decl), Ex J at 1. While touring the Folsom Street

22 AT&T facility in January 2003, Klein “saw a new room being built 23 adjacent to the 4ESS switch room where the public’s phone calls are 24 routed” and “learned that the person whom the NSA interviewed for 25 the secret job was the person working to install equipment in this 26 room.” Id. See also Doc #147 (Redact Klein Decl), ¶ 10 (“The NSA 27 agent came and met with [Field Support Specialist (FSS)] #2. FSS 28 #1 later confirmed to me that FSS #2 was working on the special

23

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1 job.”); id, ¶ 16 (“In the Fall of 2003, FSS #1 told me that another

2 NSA agent would again visit our office * * * to talk to FSS #1 in

3 order to get the latter’s evaluation of FSS #3’s suitability to

4 perform the special job that FSS #2 had been doing. The NSA agent

5 did come and speak to FSS #1.”).

6

Klein then learned about the AT&T documents in October

7 2003, after being transferred to the Folsom Street facility to

8 oversee the Worldnet Internet room. Ericson Decl, Ex J at 2. One

9 document described how “fiber optic cables from the secret room

10 were tapping into the Worldnet circuits by splitting off a portion

11 of the light signal.” Id. The other two documents “instructed

12 technicians on connecting some of the already in-service circuits

13 to [a] ‘splitter’ cabinet, which diverts some of the light signal

14 to the secret room.” Id. Klein noted the secret room contained “a

15 Narus STA 6400” and that “Narus STA technology is known to be used

16 particularly by government intelligence agencies because of its

17 ability to sift through large amounts of data looking for

18 preprogrammed targets.” Id. Klein also “learned that other such

19 ‘splitter’ cabinets were being installed in other cities, including

20 Seattle, San Jose, Los Angeles and San Diego.” Id.

21

22

D

23

Based on the foregoing, it might appear that none of the

24 subject matter in this litigation could be considered a secret

25 given that the alleged surveillance programs have been so widely

26 reported in the media.

27 //

28 //

24

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1

The court recognizes, however, that simply because a

2 factual statement has been publicly made does not necessarily mean

3 that the facts it relates are true and are not a secret. The

4 statement also must come from a reliable source. Indeed, given the

5 sheer amount of statements that have been made in the public sphere

6 about the alleged surveillance programs and the limited number of

7 permutations that such programs could take, it would seem likely

8 that the truth about these programs has already been publicly

9 reported somewhere. But simply because such statements have been

10 publicly made does not mean that the truth of those statements is a

11 matter of general public knowledge and that verification of the

12 statement is harmless.

13

In determining whether a factual statement is a secret

14 for purposes of the state secrets privilege, the court should look

15 only at publicly reported information that possesses substantial

16 indicia of reliability and whose verification or substantiation

17 possesses the potential to endanger national security. That

18 entails assessing the value of the information to an individual or

19 group bent on threatening the security of the country, as well as

20 the secrecy of the information.

21

For instance, if this litigation verifies that AT&T

22 assists the government in monitoring communication records, a 23 terrorist might well cease using AT&T and switch to other, less 24 detectable forms of communication. Alternatively, if this 25 litigation reveals that the communication records program does not 26 exist, then a terrorist who had been avoiding AT&T might start 27 using AT&T if it is a more efficient form of communication. In 28 short, when deciding what communications channel to use, a

25

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1 terrorist “balanc[es] the risk that a particular method of

2 communication will be intercepted against the operational

3 inefficiencies of having to use ever more elaborate ways to

4 circumvent what he thinks may be intercepted.” 6/23/06 Transcript

5 at 48:14-17 (government attorney). A terrorist who operates with

6 full information is able to communicate more securely and more

7 efficiently than a terrorist who operates in an atmosphere of

8 uncertainty.

9

It is, of course, an open question whether individuals

10 inclined to commit acts threatening the national security engage in

11 such calculations. But the court is hardly in a position to

12 second-guess the government’s assertions on this matter or to

13 estimate the risk tolerances of terrorists in making their

14 communications and hence at this point in the litigation eschews

15 the attempt to weigh the value of the information.

16

Accordingly, in determining whether a factual statement

17 is a secret, the court considers only public admissions or denials

18 by the government, AT&T and other telecommunications companies,

19 which are the parties indisputably situated to disclose whether and

20 to what extent the alleged programs exist. In determining what is

21 a secret, the court at present refrains from relying on the

22 declaration of Mark Klein. Although AT&T does not dispute that 23 Klein was a former AT&T technician and he has publicly declared 24 under oath that he observed AT&T assisting the NSA in some capacity 25 and his assertions would appear admissible in connection with the 26 present motions, the inferences Klein draws have been disputed. To 27 accept the Klein declaration at this juncture in connection with 28 the state secrets issue would invite attempts to undermine the

26

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1 privilege by mere assertions of knowledge by an interested party.

2 Needless to say, this does not reflect that the court discounts

3 Klein’s credibility, but simply that what is or is not secret

4 depends on what the government and its alleged operative AT&T and

5 other telecommunications providers have either admitted or denied

6 or is beyond reasonable dispute.

7

Likewise, the court does not rely on media reports about

8 the alleged NSA programs because their reliability is unclear. To

9 illustrate, after Verizon and BellSouth denied involvement in the

10 program described in USA Today in which communication records are

11 monitored, USA Today published a subsequent story somewhat backing

12 down from its earlier statements and at least in some measure

13 substantiating these companies’ denials. See supra I(C)(1).

14

Finally, the court notes in determining whether the

15 privilege applies, the court is not limited to considering strictly

16 admissible evidence. FRE 104(a) (“Preliminary questions concerning

17 * * * the existence of a privilege * * * shall be determined by the

18 court, subject to the provisions of subdivision (b). In making its

19 determination it is not bound by the rules of evidence except those

20 with respect to privileges.”). This makes sense: the issue at bar

21 is not proving a question of liability but rather determining

22 whether information that the government contends is a secret is

23 actually a secret. In making this determination, the court may

24 rely upon reliable public evidence that might otherwise be

25 inadmissible at trial because it does not comply with the technical

26 requirements of the rules of evidence.

27

With these considerations in mind, the court at last

28 determines whether the state secrets privilege applies here.

27

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1

E

2

Because this case involves an alleged covert relationship

3 between the government and AT&T, the court first determines whether

4 to apply the categorical bar to suit established by the Supreme

5 Court in Totten v United States, 92 US 105 (1875), acknowledged in

6 United States v Reynolds, 345 US 1 (1953) and Kasza v Browner, 133

7 F3d 1159 (9th Cir 1998), and reaffirmed in Tenet v Doe, 544 US 1

8 (2005). See id at 6 (“[A]pplication of the Totten rule of

9 dismissal * * * represents the sort of ‘threshold question’ we have

10 recognized may be resolved before addressing jurisdiction.”). The

11 court then examines the closely related questions whether this

12 action must be presently dismissed because “the very subject matter

13 of the action” is a state secret or because the state secrets

14 privilege necessarily blocks evidence essential to plaintiffs’

15 prima facie case or AT&T’s defense. See Kasza, 133 F3d at 1166-67. 16

17

1

18

Although the principles announced in Totten, Tenet,

19 Reynolds and Kasza inform the court’s decision here, those cases

20 are not strictly analogous to the facts at bar.

21

First, the instant plaintiffs were not a party to the

22 alleged covert arrangement at issue here between AT&T and the 23 government. Hence, Totten and Tenet are not on point to the extent 24 they hold that former spies cannot enforce agreements with the 25 government because the parties implicitly agreed that such suits 26 would be barred. The implicit notion in Totten was one of 27 equitable estoppel: one who agrees to conduct covert operations 28 impliedly agrees not to reveal the agreement even if the agreement

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1 is breached. But AT&T, the alleged spy, is not the plaintiff here.

2 In this case, plaintiffs made no agreement with the government and

3 are not bound by any implied covenant of secrecy.

4

More importantly, unlike the clandestine spy arrangements

5 in Tenet and Totten, AT&T and the government have for all practical

6 purposes already disclosed that AT&T assists the government in

7 monitoring communication content. As noted earlier, the government

8 has publicly admitted the existence of a “terrorist surveillance

9 program,” which the government insists is completely legal. This

10 program operates without warrants and targets “contents of

11 communications where * * * one party to the communication is

12 outside the United States” and the government has “a reasonable

13 basis to conclude that one party to the communication is a member

14 of al Qaeda, affiliated with al Qaeda, or a member of an

15 organization affiliated with al Qaeda, or working in support of al

16 Qaeda.” 12/19/05 Press Briefing at 1.

17

Given that the “terrorist surveillance program” tracks

18 “calls into the United States or out of the United States,” 5/11/06

19 Statement, it is inconceivable that this program could exist

20 without the acquiescence and cooperation of some telecommunications

21 provider. Although of record here only in plaintiffs’ pleading, it

22 is beyond reasonable dispute that “prior to its being acquired by 23 SBC, AT&T Corp was the second largest Internet provider in the 24 country,” FAC, ¶ 26, and “AT&T Corp’s bundled local and long 25 distance service was available in 46 states, covering more than 73 26 million households,” id, ¶ 25. AT&T’s assistance would greatly 27 help the government implement this program. See also id, ¶ 27 28 (“The new AT&T Inc constitutes the largest telecommunications

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1 provider in the United States and one of the largest in the

2 world.”). Considering the ubiquity of AT&T telecommunications

3 services, it is unclear whether this program could even exist

4 without AT&T’s acquiescence and cooperation.

5

Moreover, AT&T’s history of cooperating with the

6 government on such matters is well known. AT&T has recently

7 disclosed that it “performs various classified contracts, and

8 thousands of its employees hold government security clearances.”

9 FAC, ¶ 29. More recently, in response to reports on the alleged

10 NSA programs, AT&T has disclosed in various statements, of which

11 the court takes judicial notice, that it has “an obligation to

12 assist law enforcement and other government agencies responsible

13 for protecting the public welfare, whether it be an individual or

14 the security interests of the entire nation. * * * If and when

15 AT&T is asked to help, we do so strictly within the law and under

16 the most stringent conditions.” News Release, AT&T Statement on

17 Privacy and Legal/Security Issues (May 11, 2006) (emphasis added),

18 available at http://www.sbc.com/gen/press-room?pid=4800&cdvn=news

19 &newsarticleid=22285. See also Declan McCullagh, CNET News.com,

20 Legal Loophole Emerges in NSA Spy Program (May 19, 2006) (“Mark 21 Bien, a spokesman for AT&T, told CNET News.com on Wednesday:

22 ‘Without commenting on or confirming the existence of the program, 23 we can say that when the government asks for our help in protecting 24 national security, and the request is within the law, we will 25 provide that assistance.’”), available at http://news.com.com/ 26 Legal+loophole+emerges+in+NSA+spy+program/2100-1028_3-6073600.html; 27 Justin Scheck, Plaintiffs Can Keep AT&T Papers in Domestic Spying 28 Case, The Recorder (May 18, 2006) (“Marc Bien, a spokesman for

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1 AT&T, said he didn’t see a settlement on the horizon. ‘When the

2 government asks for our help in protecting American security, and

3 the request is within the law, we provide assistance,’ he said.”),

4 available at http://www.law.com/jsp/article.jsp?id=1147856734796.

5 And AT&T at least presently believes that any such assistance would

6 be legal if AT&T were simply a passive agent of the government or

7 if AT&T received a government certification authorizing the

8 assistance. 6/23/06 Transcript at 15:11-21:19. Hence, it appears

9 AT&T helps the government in classified matters when asked and AT&T

10 at least currently believes, on the facts as alleged in plaintiffs’

11 complaint, its assistance is legal.

12

In sum, the government has disclosed the general contours

13 of the “terrorist surveillance program,” which requires the

14 assistance of a telecommunications provider, and AT&T claims that

15 it lawfully and dutifully assists the government in classified

16 matters when asked.

17

A remaining question is whether, in implementing the

18 “terrorist surveillance program,” the government ever requested the

19 assistance of AT&T, described in these proceedings as the mother of

20 telecommunications “that in a very literal way goes all the way

21 back to Alexander Graham Bell summoning his assistant Watson into

22 the room.” Id at 102:11-13. AT&T’s assistance in national 23 security surveillance is hardly the kind of “secret” that the 24 Totten bar and the state secrets privilege were intended to protect 25 or that a potential terrorist would fail to anticipate. 26 // 27 // 28 //

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1

The court’s conclusion here follows the path set in

2 Halkin v Helms and Ellsberg v Mitchell, the two cases most

3 factually similar to the present. The Halkin and Ellsberg courts

4 did not preclude suit because of a Totten-based implied covenant of

5 silence. Although the courts eventually terminated some or all of

6 plaintiffs’ claims because the privilege barred discovery of

7 certain evidence (Halkin I, 598 F2d at 10; Halkin II, 690 F2d at

8 980, 987-88; Ellsberg, 709 F2d at 65), the courts did not dismiss

9 the cases at the outset, as would have been required had the Totten

10 bar applied. Accordingly, the court sees no reason to apply the

11 Totten bar here.

12

For all of the above reasons, the court declines to

13 dismiss this case based on the categorical Totten/Tenet bar.

14

15

2

16

The court must also dismiss this case if “the very

17 subject matter of the action” is a state secret and therefore “any

18 further proceeding * * * would jeopardize national security.”

19 Kasza, 133 F3d at 1170. As a preliminary matter, the court agrees

20 that the government has satisfied the three threshold requirements

21 for properly asserting the state secrets privilege: (1) the head

22 of the relevant department, Director of National Intelligence John 23 D Negroponte (2) has lodged a formal claim of privilege (Negroponte 24 Decl, ¶¶ 9, 13) (3) after personally considering the matter (Id, ¶¶ 25 2, 9, 13). Moreover, the Director of the NSA, Lieutenant General 26 Keith B Alexander, has filed a declaration supporting Director 27 Negroponte’s assertion of the privilege. Alexander Decl, ¶¶ 2, 9. 28 //

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1

The court does not “balanc[e the] ultimate interests at

2 stake in the litigation.” Halkin II, 690 F2d at 990. But no case

3 dismissed because its “very subject matter” was a state secret

4 involved ongoing, widespread violations of individual

5 constitutional rights, as plaintiffs allege here. Indeed, most

6 cases in which the “very subject matter” was a state secret

7 involved classified details about either a highly technical

8 invention or a covert espionage relationship. See, e g, Sterling v

9 Tenet, 416 F3d 338, 348 (4th Cir 2005) (dismissing Title VII racial

10 discrimination claim that “center[ed] around a covert agent’s

11 assignments, evaluations, and colleagues”); Kasza, 133 F3d at 1162-

12 63, 1170 (dismissing RCRA claim regarding facility reporting and

13 inventory requirements at a classified Air Force location near

14 Groom Lake, Nevada); Zuckerbraun v General Dynamics Corp, 935 F2d

15 544, 547-48 (2d Cir 1991) (dismissing wrongful death claim

16 implicating classified information about the “design, manufacture,

17 performance, functional characteristics, and testing of [weapons]

18 systems and the rules of engagement”); Fitzgerald v Penthouse Intl,

19 776 F2d 1236, 1242-43 (4th Cir 1985) (dismissing libel suit

20 “charging the plaintiff with the unauthorized sale of a top secret

21 marine mammal weapons system”); Halpern v United States, 258 F2d

22 36, 44 (2d Cir 1958) (rejecting government’s motion to dismiss in a 23 case involving a patent with military applications withheld under a 24 secrecy order); Clift v United States, 808 F Supp 101, 111 (D Conn 25 1991) (dismissing patent dispute over a cryptographic encoding 26 device). 27 // 28 //

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1

By contrast, the very subject matter of this action is

2 hardly a secret. As described above, public disclosures by the

3 government and AT&T indicate that AT&T is assisting the government

4 to implement some kind of surveillance program. See supra I(E)(1).

5

For this reason, the present action is also different

6 from El-Masri v Tenet, the recently dismissed case challenging the

7 government’s alleged “extraordinary rendition program.” In El-

8 Masri, only limited sketches of the alleged program had been

9 disclosed and the whole object of the suit was to reveal classified

10 details regarding “the means and methods the foreign intelligence

11 services of this and other countries used to carry out the

12 program.” El-Masri, 2006 WL 1391390, *5. By contrast, this case

13 focuses only on whether AT&T intercepted and disclosed

14 communications or communication records to the government. And as

15 described above, significant amounts of information about the

16 government’s monitoring of communication content and AT&T’s

17 intelligence relationship with the government are already non-

18 classified or in the public record.

19

20

3

21

The court also declines to decide at this time whether

22 this case should be dismissed on the ground that the government’s 23 state secrets assertion will preclude evidence necessary for 24 plaintiffs to establish a prima facie case or for AT&T to raise a 25 valid defense to the claims. Plaintiffs appear to be entitled to 26 at least some discovery. See infra I(G)(3). It would be premature 27 to decide these issues at the present time. In drawing this 28 conclusion, the court is following the approach of the courts in

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1 Halkin v Helms and Ellsberg v Mitchell; these courts did not

2 dismiss those cases at the outset but allowed them to proceed to

3 discovery sufficiently to assess the state secrets privilege in

4 light of the facts. The government has not shown why that should

5 not be the course of this litigation.

6

7

4

8

In sum, for much the same reasons that Totten does not

9 preclude this suit, the very subject matter of this action is not a

10 “secret” for purposes of the state secrets privilege and it would

11 be premature to conclude that the privilege will bar evidence

12 necessary for plaintiffs’ prima facie case or AT&T’s defense.

13 Because of the public disclosures by the government and AT&T, the

14 court cannot conclude that merely maintaining this action creates a

15 “reasonable danger” of harming national security. Accordingly,

16 based on the foregoing, the court DENIES the government’s motion to

17 dismiss.

18

19

F

20

The court hastens to add that its present ruling should

21 not suggest that its in camera, ex parte review of the classified 22 documents confirms the truth of the particular allegations in 23 plaintiffs’ complaint. Plaintiffs allege a surveillance program of 24 far greater scope than the publicly disclosed “terrorist 25 surveillance program.” The existence of this alleged program and 26 AT&T’s involvement, if any, remain far from clear. And as in 27 Halkin v Helms, it is certainly possible that AT&T might be 28 entitled to summary judgment at some point if the court finds that

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1 the state secrets privilege blocks certain items of evidence that

2 are essential to plaintiffs’ prima facie case or AT&T’s defense.

3 The court also recognizes that legislative or other developments

4 might alter the course of this litigation.

5

But it is important to note that even the state secrets

6 privilege has its limits. While the court recognizes and respects

7 the executive’s constitutional duty to protect the nation from

8 threats, the court also takes seriously its constitutional duty to

9 adjudicate the disputes that come before it. See Hamdi v Rumsfeld,

10 542 US 507, 536 (2004) (plurality opinion) (“Whatever power the

11 United States Constitution envisions for the Executive in its

12 exchanges with other nations or with enemy organizations in times

13 of conflict, it most assuredly envisions a role for all three

14 branches when individual liberties are at stake.”). To defer to a

15 blanket assertion of secrecy here would be to abdicate that duty,

16 particularly because the very subject matter of this litigation has

17 been so publicly aired. The compromise between liberty and

18 security remains a difficult one. But dismissing this case at the

19 outset would sacrifice liberty for no apparent enhancement of

20 security.

21 //

22 // 23 // 24 // 25 // 26 // 27 // 28 //

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1

G

2

The government also contends the issue whether AT&T

3 received a certification authorizing its assistance to the

4 government is a state secret. Gov 5/17/06 Br at 17.

5

6

1

7

The procedural requirements and impact of a certification

8 under Title III are addressed in 18 USC § 2511(2)(a)(ii):

9

Notwithstanding any other law, providers of wire or

electronic communication service, their officers,

10

employees, and agents, * * * are authorized to

provide information, facilities, or technical

11

assistance to persons authorized by law to

intercept wire, oral, or electronic communications

12

or to conduct electronic surveillance, as defined

in section 101 of [FISA] * * * if such provider,

13

its officers, employees, or agents, * * * has been

provided with —– * * *

14

(B) a certification in writing by a person

15

specified in section 2518(7) of this title [18 USCS

§ 2518(7)] or the Attorney General of the United

16

States that no warrant or court order is required

by law, that all statutory requirements have been

17

met, and that the specified assistance is required

* * *. 18

19 Although it is doubtful whether plaintiffs’ constitutional claim

20 would be barred by a valid certification under section

21 2511(2)(a)(ii), this provision on its face makes clear that a valid

22 certification would preclude the statutory claims asserted here. 23 See 18 USC § 2511(2)(a)(ii) (“No cause of action shall lie in any 24 court against any provider of wire or electronic communication 25 service * * * for providing information, facilities, or assistance 26 in accordance with the terms of a * * * certification under this 27 chapter.”). 28 //

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1

2

2

As noted above, it is not a secret for purposes of the

3 state secrets privilege that AT&T and the government have some kind

4 of intelligence relationship. See supra I(E)(1). Nonetheless, the

5 court recognizes that uncovering whether and to what extent a

6 certification exists might reveal information about AT&T’s

7 assistance to the government that has not been publicly disclosed.

8 Accordingly, in applying the state secrets privilege to the

9 certification question, the court must look deeper at what

10 information has been publicly revealed about the alleged electronic

11 surveillance programs. The following chart summarizes what the

12 government has disclosed about the scope of these programs in terms

13 of (1) the individuals whose communications are being monitored,

14 (2) the locations of those individuals and (3) the types of

15 information being monitored:

16

17

Purely domestic Domestic-foreign Communication

communication communication

records

18

content

content

19 General public

20

21

al Qaeda or affiliate

22 member/agent

Government DENIES
Government DENIES

Government DENIES
Government CONFIRMS

Government NEITHER CONFIRMS NOR DENIES

23

As the chart relates, the government’s public disclosures

24 regarding monitoring of “communication content” (i e, wiretapping

25 or listening in on a communication) differ significantly from its

26 disclosures regarding “communication records” (i e, collecting

27 ancillary data pertaining to a communication, such as the telephone

28

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1 numbers dialed by an individual). See supra I(C)(1). Accordingly,

2 the court separately addresses for each alleged program whether

3 revealing the existence or scope of a certification would disclose

4 a state secret.

5

6

3

7

Beginning with the warrantless monitoring of

8 “communication content,” the government has confirmed that it

9 monitors “contents of communications where * * * one party to the

10 communication is outside the United States” and the government has

11 “a reasonable basis to conclude that one party to the communication

12 is a member of al Qaeda, affiliated with al Qaeda, or a member of

13 an organization affiliated with al Qaeda, or working in support of

14 al Qaeda.” 12/19/05 Press Briefing at 1. The government denies

15 listening in without a warrant on any purely domestic

16 communications or communications in which neither party has a

17 connection to al Qaeda or a related terrorist organization. In

18 sum, regarding the government’s monitoring of “communication

19 content,” the government has disclosed the universe of

20 possibilities in terms of whose communications it monitors and

21 where those communicating parties are located.

22

Based on these public disclosures, the court cannot

23 conclude that the existence of a certification regarding the

24 “communication content” program is a state secret. If the

25 government’s public disclosures have been truthful, revealing

26 whether AT&T has received a certification to assist in monitoring

27 communication content should not reveal any new information that

28 would assist a terrorist and adversely affect national security.

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1 And if the government has not been truthful, the state secrets

2 privilege should not serve as a shield for its false public

3 statements. In short, the government has opened the door for

4 judicial inquiry by publicly confirming and denying material

5 information about its monitoring of communication content.

6

Accordingly, the court concludes that the state secrets

7 privilege will not prevent AT&T from asserting a certification-

8 based defense, as appropriate, regarding allegations that it

9 assisted the government in monitoring communication content. The

10 court envisions that AT&T could confirm or deny the existence of a

11 certification authorizing monitoring of communication content

12 through a combination of responses to interrogatories and in camera

13 review by the court. Under this approach, AT&T could reveal

14 information at the level of generality at which the government has

15 publicly confirmed or denied its monitoring of communication

16 content. This approach would also enable AT&T to disclose the non-

17 privileged information described here while withholding any

18 incidental privileged information that a certification might

19 contain.

20

21

4

22

Turning to the alleged monitoring of communication

23 records, the court notes that despite many public reports on the

24 matter, the government has neither confirmed nor denied whether it

25 monitors communication records and has never publicly disclosed

26 whether the NSA program reported by USA Today on May 11, 2006,

27 actually exists. Although BellSouth, Verizon and Qwest have denied

28 participating in this program, AT&T has neither confirmed nor

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1 denied its involvement. Hence, unlike the program monitoring

2 communication content, the general contours and even the existence

3 of the alleged communication records program remain unclear.

4

Nonetheless, the court is hesitant to conclude that the

5 existence or non-existence of the communication records program

6 necessarily constitutes a state secret. Confirming or denying the

7 existence of this program would only affect a terrorist who was

8 insensitive to the publicly disclosed “terrorist surveillance

9 program” but cared about the alleged program here. This would seem

10 unlikely to occur in practice given that the alleged communication

11 records program, which does not involve listening in on

12 communications, seems less intrusive than the “terrorist

13 surveillance program,” which involves wiretapping. And in any

14 event, it seems odd that a terrorist would continue using AT&T

15 given that BellSouth, Verizon and Qwest have publicly denied

16 participating in the alleged communication records program and

17 would appear to be safer choices. Importantly, the public denials

18 by these telecommunications companies undercut the government and

19 AT&T’s contention that revealing AT&T’s involvement or lack thereof

20 in the program would disclose a state secret.

21

Still, the court recognizes that it is not in a position

22 to estimate a terrorist’s risk preferences, which might depend on 23 facts not before the court. For example, it may be that a 24 terrorist is unable to avoid AT&T by choosing another provider or, 25 for reasons outside his control, his communications might 26 necessarily be routed through an AT&T facility. Revealing that a 27 communication records program exists might encourage that terrorist 28 to switch to less efficient but less detectable forms of

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1 communication. And revealing that such a program does not exist

2 might encourage a terrorist to use AT&T services when he would not

3 have done so otherwise. Accordingly, for present purposes, the

4 court does not require AT&T to disclose what relationship, if any,

5 it has with this alleged program.

6

The court stresses that it does not presently conclude

7 that the state secrets privilege will necessarily preclude AT&T

8 from revealing later in this litigation information about the

9 alleged communication records program. While this case has been

10 pending, the government and telecommunications companies have made

11 substantial public disclosures on the alleged NSA programs. It is

12 conceivable that these entities might disclose, either deliberately

13 or accidentally, other pertinent information about the

14 communication records program as this litigation proceeds. The

15 court recognizes such disclosures might make this program’s

16 existence or non-existence no longer a secret. Accordingly, while

17 the court presently declines to permit any discovery regarding the

18 alleged communication records program, if appropriate, plaintiffs

19 can request that the court revisit this issue in the future.

20

21

5

22

Finally, the court notes plaintiffs contend that

23 Congress, through various statutes, has limited the state secrets

24 privilege in the context of electronic surveillance and has

25 abrogated the privilege regarding the existence of a government

26 certification. See Doc #192 (Pl Opp Gov MTD) at 16-26, 45-48.

27 Because these arguments potentially implicate highly complicated

28 separation of powers issues regarding Congress’ ability to abrogate

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1 what the government contends is a constitutionally protected

2 privilege, the court declines to address these issues presently,

3 particularly because the issues might very well be obviated by

4 future public disclosures by the government and AT&T. If

5 necessary, the court may revisit these arguments at a later stage

6 of this litigation.

7

8

H

9

The government also asserts two statutory privileges in

10 its motion to dismiss that it contends apply “to any intelligence-

11 related information, sources and methods implicated by

12 [p]laintiffs’ claims and the information covered by these privilege

13 claims are at least co-extensive with the assertion of the state

14 secrets privilege by the DNI.” Gov MTD at 14. First, the

15 government relies on 50 USC § 402 note, which provides:

16

[N]othing in this Act or any other law * * * shall

be construed to require the disclosure of the

17

organization or any function of the National

Security Agency, of any information with respect to

18

the activities thereof, or of the names, titles,

salaries, or number of the persons employed by such

19

agency.

20 The government also relies on 50 USC § 403-1(i)(1), which states,

21 “The Director of National Intelligence shall protect intelligence

22 sources and methods from unauthorized disclosure.”

23

Neither of these provisions by their terms requires the

24 court to dismiss this action and it would be premature for the

25 court to do so at this time. In opposing a subsequent summary

26 judgment motion, plaintiffs could rely on many non-classified

27 materials including present and future public disclosures of the

28 government or AT&T on the alleged NSA programs, the AT&T documents

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1 and the supporting Klein and Marcus declarations and information

2 gathered during discovery. Hence, it is at least conceivable that

3 some of plaintiffs’ claims, particularly with respect to

4 declaratory and injunctive relief, could survive summary judgment.

5 After discovery begins, the court will determine step-by-step

6 whether the privileges prevent plaintiffs from discovering

7 particular evidence. But the mere existence of these privileges

8 does not justify dismissing this case now.

9

Additionally, neither of these provisions block AT&T from

10 producing any certification that it received to assist the

11 government in monitoring communication content, see supra I(G)(3).

12 Because information about this certification would be revealed only

13 at the same level of generality as the government’s public

14 disclosures, permitting this discovery should not reveal any new

15 information on the NSA’s activities or its intelligence sources or

16 methods, assuming that the government has been truthful.

17

Accordingly, the court DENIES the government’s motion to

18 dismiss based on the statutory privileges and DENIES the privileges

19 with respect to any certification that AT&T might have received

20 authorizing it to monitor communication content.

21 //

22 // 23 // 24 // 25 // 26 // 27 // 28 //

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1

II

2

AT&T moves to dismiss plaintiffs’ complaint on multiple

3 grounds, contending that (1) plaintiffs lack standing, (2) the

4 amended complaint fails to plead affirmatively the absence of

5 immunity from suit and (3) AT&T is entitled to statutory, common

6 law and qualified immunity. Because standing is a threshold

7 jurisdictional question, the court addresses that issue first. See

8 Steel Company v Citizens for a Better Environment, 523 US 83, 94,

9 102 (1998).

10

11

A

12

“[T]he core component of standing is an essential and

13 unchanging part of the case-or-controversy requirement of Article

14 III.” Lujan v Defenders of Wildlife, 504 US 555, 560 (1992). To

15 establish standing under Article III, a plaintiff must satisfy

16 three elements: (1) “the plaintiff must have suffered an injury in

17 fact —– an invasion of a legally protected interest which is (a)

18 concrete and particularized and (b) actual or imminent, not

19 conjectural or hypothetical,” (2) “there must be a causal

20 connection between the injury and the conduct complained of” and

21 (3) “it must be likely, as opposed to merely speculative, that the

22 injury will be redressed by a favorable decision.” Id at 560-61 23 (internal quotation marks, citations and footnote omitted). A 24 party invoking federal jurisdiction has the burden of establishing 25 its standing to sue. Id at 561. 26 // 27 // 28 //

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1

In the present case, AT&T contends plaintiffs have not

2 sufficiently alleged injury-in-fact and their complaint relies on

3 “wholly conclusory” allegations. AT&T MTD at 20-22. According to

4 AT&T, “Absent some concrete allegation that the government

5 monitored their communications or records, all plaintiffs really

6 have is a suggestion that AT&T provided a means by which the

7 government could have done so had it wished. This is anything but

8 injury-in-fact.” Id at 20 (emphasis in original). AT&T compares

9 this case to United Presbyterian Church v Reagan, 738 F2d 1375 (DC

10 Cir 1984) (written by then-Judge Scalia), in which the court found

11 that plaintiffs’ allegations of unlawful surveillance were “too

12 generalized and nonspecific to support a complaint.” Id at 1380.

13

As a preliminary matter, AT&T incorrectly focuses on

14 whether plaintiffs have pled that the government “monitored

15 [plaintiffs’] communications or records” or “targeted [plaintiffs]

16 or their communications.” Instead, the proper focus is on AT&T’s

17 actions. Plaintiffs’ statutory claims stem from injuries caused

18 solely by AT&T through its alleged interception, disclosure, use,

19 divulgence and/or publication of plaintiffs’ communications or

20 communication records. FAC, ¶¶ 93-95, 102-05, 113-14, 121, 128,

21 135-41. Hence, plaintiffs need not allege any facts regarding the

22 government’s conduct to state these claims.

23

More importantly, for purposes of the present motion to

24 dismiss, plaintiffs have stated sufficient facts to allege injury-

25 in-fact for all their claims. “At the pleading stage, general

26 factual allegations of injury resulting from the defendant’s

27 conduct may suffice, for on a motion to dismiss we ‘presume that

28 general allegations embrace those specific facts that are necessary

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1 to support the claim.’” Lujan, 504 US at 561 (quoting Lujan v

2 National Wildlife Federation, 497 US 871, 889 (1990)). Throughout

3 the complaint, plaintiffs generally describe the injuries they have

4 allegedly suffered because of AT&T’s illegal conduct and its

5 collaboration with the government. See, e g, FAC, ¶ 61 (“On

6 information and belief, AT&T Corp has provided the government with

7 direct access to the contents of the Hawkeye, Aurora and/or other

8 databases that it manages using Daytona, including all information,

9 records, [dialing, routing, addressing and/or signaling

10 information] and [customer proprietary network information]

11 pertaining to [p]laintiffs and class members, by providing the

12 government with copies of the information in the databases and/or

13 by giving the government access to Daytona’s querying capabilities

14 and/or some other technology enabling the government agents to

15 search the databases’ contents.”); id, ¶ 6 (“On information and

16 belief, AT&T Corp has opened its key telecommunications facilities

17 and databases to direct access by the NSA and/or other government

18 agencies, intercepting and disclosing to the government the

19 contents of its customers’ communications as well as detailed

20 communications records about millions of its customers, including

21 [p]laintiffs and class members.”).

22

By contrast, plaintiffs in United Presbyterian Church

23 alleged they “ha[d] been informed on numerous occasions” that mail

24 that they had sent never reached its destination, “ha[d] reason to

25 believe that, for a long time, [their] officers, employees, and

26 persons associated with [them had] been subjected to government

27 surveillance, infiltration and disruption” and “discern[ed] a long-

28 term pattern of surveillance of [their] members, disruption of

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1 their speaking engagements in this country, and attempts at

2 character assassination.” See 738 F2d at 1380 n2. Because these

3 allegations were more attenuated and less concrete than the

4 specific injuries alleged here, United Presbyterian Church does not

5 support dismissing this action.

6

AT&T also contends “[p]laintiffs lack standing to assert

7 their statutory claims (Counts II-VII) because the FAC alleges no

8 facts suggesting that their statutory rights have been violated”

9 and “the FAC alleges nothing to suggest that the named plaintiffs

10 were themselves subject to surveillance.” AT&T MTD at 24-25

11 (emphasis in original). But AT&T ignores that the gravamen of

12 plaintiffs’ complaint is that AT&T has created a dragnet that

13 collects the content and records of its customers’ communications.

14 See, e g, FAC, ¶¶ 42-64. The court cannot see how any one

15 plaintiff will have failed to demonstrate injury-in-fact if that

16 plaintiff effectively demonstrates that all class members have so

17 suffered. This case is plainly distinguishable from Halkin II, for

18 in that case, showing that plaintiffs were on a watchlist was not

19 tantamount to showing that any particular plaintiff suffered a

20 surveillance-related injury-in-fact. See Halkin II, 690 F2d at

21 999-1001. As long as the named plaintiffs were, as they allege,

22 AT&T customers during the relevant time period (FAC, ¶¶ 13-16), the 23 alleged dragnet would have imparted a concrete injury on each of 24 them. 25 // 26 // 27 // 28 //

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1

This conclusion is not altered simply because the alleged

2 injury is widely shared among AT&T customers. In FEC v Akins, 524

3 US 11 (1998), the Supreme Court explained:

4

Whether styled as a constitutional or prudential

limit on standing, the Court has sometimes

5

determined that where large numbers of Americans

suffer alike, the political process, rather than

6

the judicial process, may provide the more

appropriate remedy for a widely shared grievance.

7

[This] kind of judicial language * * * however,

8

invariably appears in cases where the harm at issue

is not only widely shared, but is also of an

9

abstract and indefinite nature.

10 Id at 23. The Court continued:

11

[W]here a harm is concrete, though widely shared,

the Court has found “injury in fact.” Thus the

12

fact that a political forum may be more readily

available where an injury is widely shared (while

13

counseling against, say, interpreting a statute as

conferring standing) does not, by itself,

14

automatically disqualify an interest for Article

III purposes. Such an interest, where sufficiently

15

concrete, may count as an “injury in fact.”

16 Id at 24.

17

Here, the alleged injury is concrete even though it is

18 widely shared. Despite AT&T’s alleged creation of a dragnet to

19 intercept all or substantially all of its customers’

20 communications, this dragnet necessarily inflicts a concrete injury

21 that affects each customer in a distinct way, depending on the

22 content of that customer’s communications and the time that 23 customer spends using AT&T services. Indeed, the present situation 24 resembles a scenario in which “large numbers of individuals suffer 25 the same common-law injury (say, a widespread mass tort).” Id. 26 // 27 // 28 //

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1

AT&T also contends that the state secrets privilege bars

2 plaintiffs from establishing standing. Doc #244 (AT&T Reply) at

3 16-18. See also Gov MTD 16-20. But as described above, the state

4 secrets privilege will not prevent plaintiffs from receiving at

5 least some evidence tending to establish the factual predicate for

6 the injury-in-fact underlying their claims directed at AT&T’s

7 alleged involvement in the monitoring of communication content.

8 See supra I(G)(3). And the court recognizes that additional facts

9 might very well be revealed during, but not as a direct consequence

10 of, this litigation that obviate many of the secrecy concerns

11 currently at issue regarding the alleged communication records

12 program. Hence, it is unclear whether the privilege would

13 necessarily block AT&T from revealing information about its

14 participation, if any, in that alleged program. See supra I(G)(4). 15 The court further notes that the AT&T documents and the

16 accompanying Klein and Marcus declarations provide at least some

17 factual basis for plaintiffs’ standing. Accordingly, the court

18 does not conclude at this juncture that plaintiffs’ claims would

19 necessarily lack the factual support required to withstand a future

20 jurisdictional challenge based on lack of standing.

21

Because plaintiffs have sufficiently alleged that they

22 suffered an actual, concrete injury traceable to AT&T and 23 redressable by this court, the court DENIES AT&T’s motion to 24 dismiss for lack of standing. 25 // 26 // 27 // 28 //

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1

B

2

AT&T also contends that telecommunications providers are

3 immune from suit if they receive a government certification

4 authorizing them to conduct electronic surveillance. AT&T MTD at

5 5. AT&T argues that plaintiffs have the burden to plead

6 affirmatively that AT&T lacks such a certification and that

7 plaintiffs have failed to do so here, thereby making dismissal

8 appropriate. Id at 10-13.

9

As discussed above, the procedural requirements for a

10 certification are addressed in 18 USC § 2511(2)(a)(ii)(B). See

11 supra I(G)(1). Under section 2511(2)(a)(ii), “No cause of action

12 shall lie in any court against any provider of wire or electronic

13 communication service * * * for providing information, facilities,

14 or assistance in accordance with the terms of a * * * certification

15 under this chapter.” This provision is referenced in 18 USC §

16 2520(a) (emphasis added), which creates a private right of action

17 under Title III:

18

Except as provided in section 2511(2)(a)(ii), any

person whose wire, oral, or electronic

19

communication is intercepted, disclosed, or

intentionally used in violation of this chapter [18

20

USCS §§ 2510 et seq] may in a civil action recover

from the person or entity, other than the United

21

States, which engaged in that violation such relief

as may be appropriate. 22

23 A similar provision exists at 18 USC § 2703(e) (emphasis added):

24

No cause of action shall lie in any court against

any provider of wire or electronic communication

25

service, its officers, employees, agents, or other

specified persons for providing information,

26

facilities, or assistance in accordance with the

terms of a court order, warrant, subpoena,

27

statutory authorization, or certification under

this chapter. 28

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1

The court recognizes that the language emphasized above

2 suggests that to state a claim under these statutes, a plaintiff

3 must affirmatively allege that a telecommunications provider did

4 not receive a government certification. And out of the many

5 statutory exceptions in section 2511, only section 2511(2)(a)(ii)

6 appears in section 2520(a), thereby suggesting that a lack of

7 certification is an element of a Title III claim whereas the other

8 exceptions are simply affirmative defenses. As AT&T notes, this

9 interpretation is at least somewhat supported by the Senate report

10 accompanying 18 USC § 2520, which states in relevant part:

11

A civil action will not lie [under 18 USC § 2520]

where the requirements of sections 2511(2)(a)(ii) of

12

title 18 are met. With regard to that exception,

the Committee intends that the following procedural

13

standards will apply:

14

(1) The complaint must allege that a wire or

electronic communications service provider (or

15

one of its employees) (a) disclosed the

existence of a wiretap; (b) acted without a

16

facially valid court order or certification;

(c) acted beyond the scope of a court order or

17

certification or (d) acted on bad faith.

Acting in bad faith would include failing to

18

read the order or collusion. If the complaint

fails to make any of these allegations, the

19

defendant can move to dismiss the complaint for

failure to state a claim upon which relief can

20

be granted.

21 ECPA, S Rep No 99-541, 99th Cong, 2d Sess 26 (1986) (reprinted in

22 1986 USCCAN 3555, 3580) (emphasis added).

23

Nonetheless, the statutory text does not explicitly

24 provide for a heightened pleading requirement, which is in essence

25 what AT&T seeks to impose here. And the court is reluctant to

26 infer a heightened pleading requirement into the statute given that

27 in other contexts, Congress has been explicit when it intended to

28 create such a requirement. See, e g, Private Securities Litigation

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1 Reform Act of 1995, § 101, 15 USC § 78u-4(b)(1), (2) (prescribing

2 heightened pleading standards for securities class actions).

3

In any event, the court need not decide whether

4 plaintiffs must plead affirmatively the absence of a certification

5 because the present complaint, liberally construed, alleges that

6 AT&T acted outside the scope of any government certification it

7 might have received. In particular, paragraphs 81 and 82, which

8 are incorporated in all of plaintiffs’ claims, state:

9

81. On information and belief, the

above-described acts [by defendants] of

10

interception, disclosure, divulgence and/or use of

Plaintiffs’ and class members’ communications,

11

contents of communications, and records pertaining

to their communications occurred without judicial

12

or other lawful authorization, probable cause,

and/or individualized suspicion.

13

82. On information and belief, at all

relevant times, the government instigated, directed

14

and/or tacitly approved all of the above-described

acts of AT&T Corp. 15

FAC, ¶¶ 81-82 (emphasis added). 16

Plaintiffs contend that the phrase “occurred without 17

judicial or other lawful authorization” means that AT&T acted 18

without a warrant or a certification. Doc #176 (Pl Opp AT&T MTD) 19

at 13-15. At oral argument, AT&T took issue with this 20

characterization of “lawful authorization”: 21

The emphasis there is on the word ‘lawful[.’] When

22

you read that paragraph in context, it’s clear that

what [plaintiffs are] saying is that any

23

authorization [AT&T] receive[s] is, in

[plaintiffs’] view, unlawful. And you can see that

24

because of the other paragraphs in the complaint.

The very next one, [p]aragraph 82, is the paragraph

25

where [plaintiffs] allege that the United States

government approved and instigated all of our

26

actions. It wouldn’t be reasonable to construe

Paragraph 81 as saying that [AT&T was] not

27

authorized by the government to do what [AT&T]

allegedly did when the very next paragraph states

28

the exact opposite.

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1 6/23/06 Transcript at 10:21-11:6. Indeed, the court does not

2 question that it would be extraordinary for a large, sophisticated

3 entity like AT&T to assist the government in a warrantless

4 surveillance program without receiving a certification to insulate

5 its actions.

6

Nonetheless, paragraph 81 could be reasonably interpreted

7 as alleging just that. Even if “the government instigated,

8 directed and/or tacitly approved” AT&T’s alleged actions, it does

9 not inexorably follow that AT&T received an official certification

10 blessing its actions. At the hearing, plaintiffs’ counsel

11 suggested that they had “information and belief based on the news

12 reports that [the alleged activity] was done based on oral

13 requests” not a written certification. Id at 24:21-22.

14 Additionally, the phrase “judicial or other lawful authorization”

15 in paragraph 81 parallels how “a court order” and “a certification”

16 appear in 18 USC §§ 2511(2)(a)(ii)(A) and (B), respectively; this

17 suggests that “lawful authorization” refers to a certification.

18 Interpreted in this manner, plaintiffs are making a factual

19 allegation that AT&T did not receive a certification.

20

In sum, even if plaintiffs were required to plead

21 affirmatively that AT&T did not receive a certification authorizing

22 its alleged actions, plaintiffs’ complaint can fairly be 23 interpreted as alleging just that. Whether and to what extent the 24 government authorized AT&T’s alleged conduct remain issues for 25 further litigation. For now, however, the court DENIES AT&T’s 26 motion to dismiss on this ground. 27 // 28 //

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1

C

2

AT&T also contends that the complaint should be dismissed

3 because it failed to plead the absence of an absolute common law

4 immunity to which AT&T claims to be entitled. AT&T MTD at 13-15.

5 AT&T asserts that this immunity “grew out of a recognition that

6 telecommunications carriers should not be subject to civil

7 liability for cooperating with government officials conducting

8 surveillance activities. That is true whether or not the

9 surveillance was lawful, so long as the government officials

10 requesting cooperation assured the carrier that it was.” Id at 13.

11 AT&T also argues that the statutory immunities do not evince a

12 “congressional purpose to displace, rather than supplement, the

13 common law.” Id.

14

AT&T overstates the case law when intimating that the

15 immunity is long established and unequivocal. AT&T relies

16 primarily on two cases: Halperin v Kissinger, 424 F Supp 838 (DDC

17 1976), revd on other grounds, 606 F2d 1192 (DC Cir 1979) and Smith

18 v Nixon, 606 F2d 1183 (DC Cir 1979). In Halperin, plaintiffs

19 alleged that the Chesapeake and Potomac Telephone Company (C&P)

20 assisted federal officials in illegally wiretapping plaintiffs’

21 home telephone, thereby violating plaintiffs’ constitutional and

22 Title III statutory rights. 424 F Supp at 840. In granting 23 summary judgment for C&P, the district court noted: 24 // 25 // 26 // 27 // 28 //

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1

Chesapeake and Potomac Telephone Company, argues

persuasively that it played no part in selecting

2

any wiretap suspects or in determining the length

of time the surveillance should remain. It

3

overheard none of plaintiffs’ conversations and was

not informed of the nature or outcome of the

4

investigation. As in the past, C&P acted in

reliance upon a request from the highest Executive

5

officials and with assurances that the wiretap

involved national security matters. Under these

6

circumstances, C&P’s limited technical role in the

surveillance as well as its reasonable expectation

7

of legality cannot give rise to liability for any

statutory or constitutional violation.

8

Id at 846.

9

Smith v Nixon involved an allegedly illegal wiretap that 10

was part of the same surveillance program implicated in Halperin. 11

In addressing C&P’s potential liability, the Smith court noted: 12

The District Court dismissed the action against

13

C&P, which installed the wiretap, on the ground

cited in the District Court’s opinion in Halperin:

14

‘C&P’s limited technical role in the surveillance

as well as its reasonable expectation of legality

15

cannot give rise to liability for any statutory or

constitutional violation. * * *.’ We think this

16

was the proper disposition. The telephone company

did not initiate the surveillance, and it was

17

assured by the highest Executive officials in this

nation that the action was legal. 18

606 F2d at 1191 (citation and footnote omitted) (omission in 19

original). 20

The court first observes that Halperin, which formed the 21

basis for the Smith decision, never indicated that C&P was “immune” 22

from suit; rather, the court granted summary judgment after it 23

determined that C&P played only a “limited technical role” in the 24

surveillance. And although C&P was dismissed in Smith on a motion 25

to dismiss, Smith never stated that C&P was immune from suit; the 26

only discussion of “immunity” there related to other defendants who 27

claimed entitlement to qualified and absolute immunity. 28

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1

At best, the language in Halperin and Smith is equivocal:

2 the phrase “C&P’s limited technical role in the surveillance as

3 well as its reasonable expectation of legality cannot give rise to

4 liability for any statutory or constitutional violation” could

5 plausibly be interpreted as describing a good faith defense. And

6 at least one court appears to have interpreted Smith in that

7 manner. See Manufacturas Intl, Ltda v Manufacturers Hanover Trust

8 Co, 792 F Supp 180, 192-93 (EDNY 1992) (referring to Smith while

9 discussing good faith defenses).

10

Moreover, it is not clear at this point in the litigation

11 whether AT&T played a “mere technical role” in the alleged NSA

12 surveillance programs. The complaint alleges that “at all relevant

13 times, the government instigated, directed and/or tacitly approved

14 all of the above-described acts of AT&T Corp.” FAC, ¶ 82. But

15 given the massive scale of the programs alleged here and AT&T’s

16 longstanding history of assisting the government in classified

17 matters, one could reasonably infer that AT&T’s assistance here is

18 necessarily more comprehensive than C&P’s assistance in Halperin

19 and Smith. Indeed, there is a world of difference between a single

20 wiretap and an alleged dragnet that sweeps in the communication

21 content and records of all or substantially all AT&T customers.

22

AT&T also relies on two Johnson-era cases: Fowler v

23 Southern Bell Telephone & Telegraph Co, 343 F2d 150 (5th Cir 1965),

24 and Craska v New York Telephone Co, 239 F Supp 932 (NDNY 1965).

25 Fowler involved a Georgia state claim for invasion of right of

26 privacy against a telephone company for assisting federal officers

27 to intercept plaintiff’s telephone conversations. Fowler noted

28 that a “defense of privilege” would extend to the telephone company

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1 only if the court determined that the federal officers acted within

2 the scope of their duties:

3

If it is established that [the federal officers]

acted in the performance and scope of their

4

official powers and within the outer perimeter of

their duties as federal officers, then the defense

5

of privilege would be established as to them. In

this event the privilege may be extended to

6

exonerate the Telephone Company also if it appears,

in line with the allegations of the complaint, that

7

the Telephone Company acted for and at the request

of the federal officers and within the bounds of

8

activity which would be privileged as to the

federal officers.

9

343 F2d at 156-57 (emphasis added). Accordingly, Fowler does not 10

absolve AT&T of any liability unless and until the court determines 11

that the government acted legally in creating the NSA surveillance 12

programs alleged in the complaint. 13

Craska also does not help AT&T. In that case, plaintiff 14

sued a telephone company for violating her statutory rights by 15

turning over telephone records to the government under compulsion 16

of state law. Craska, 239 F Supp at 933-34, 936. The court 17

declined to ascribe any liability to the telephone company because 18

its assistance was required under state law: “[T]he conduct of the 19

telephone company, acting under the compulsion of State law and 20

process, cannot sensibly be said to have joined in a knowing 21

venture of interception and divulgence of a telephone conversation, 22

which it sought by affirmative action to make succeed.” Id at 936. 23

By contrast, it is not evident whether AT&T was required to help 24

the government here; indeed, AT&T appears to have confirmed that it 25

did not have any legal obligation to assist the government 26

implement any surveillance program. 6/23/06 Transcript at 17:2527

18:4 (“The Court: Well, AT&T could refuse, could it not, to 28

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1 provide access to its facilities? [AT&T]: Yes, it could. Under

2 [18 USC §] 2511, your Honor, AT&T would have the discretion to

3 refuse, and certainly if it believed anything illegal was

4 occurring, it would do so.”).

5

Moreover, even if a common law immunity existed decades

6 ago, applying it presently would undermine the carefully crafted

7 scheme of claims and defenses that Congress established in

8 subsequently enacted statutes. For example, all of the cases cited

9 by AT&T as applying the common law “immunity” were filed before the

10 certification provision of FISA went into effect. See § 301 of

11 FISA. That provision protects a telecommunications provider from

12 suit if it obtains from the Attorney General or other authorized

13 government official a written certification “that no warrant or

14 court order is required by law, that all statutory requirements

15 have been met, and that the specified assistance is required.” 18

16 USC § 2511(2)(a)(ii)(B). Because the common law “immunity” appears

17 to overlap considerably with the protections afforded under the

18 certification provision, the court would in essence be nullifying

19 the procedural requirements of that statutory provision by applying

20 the common law “immunity” here. And given the shallow doctrinal

21 roots of immunity for communications carriers at the time Congress

22 enacted the statutes in play here, there is simply no reason to 23 presume that a common law immunity is available simply because 24 Congress has not expressed a contrary intent. Cf Owen v City of 25 Independence, 445 US 622, 638 (1980) (“[N]otwithstanding § 1983’s 26 expansive language and the absence of any express incorporation of 27 common-law immunities, we have, on several occasions, found that a 28 tradition of immunity was so firmly rooted in the common law and

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1 was supported such strong policy reasons that ‘Congress would have

2 specifically so provided had it wished to abolish the doctrine.’”

3 (quoting Pierson v Ray, 386 US 547, 555 (1967))).

4

Accordingly, the court DENIES AT&T’s motion to dismiss on

5 the basis of a purported common law immunity.

6

7

D

8

AT&T also argues that it is entitled to qualified

9 immunity. AT&T MTD at 16. Qualified immunity shields state actors

10 from liability for civil damages “insofar as their conduct does not

11 violate clearly established statutory or constitutional rights of

12 which a reasonable person would have known.” Harlow v Fitzgerald,

13 457 US 800, 818 (1982). “Qualified immunity strikes a balance

14 between compensating those who have been injured by official

15 conduct and protecting government’s ability to perform its

16 traditional functions.” Wyatt v Cole, 504 US 158, 167 (1992).

17 “[T]he qualified immunity recognized in Harlow acts to safeguard

18 government, and thereby to protect the public at large, not to

19 benefit its agents.” Wyatt v Cole, 504 US 158, 168 (1992).

20 Compare AT&T MTD at 17 (“It would make little sense to protect the

21 principal but not its agent.”). The Supreme Court does not “draw a

22 distinction for purposes of immunity law between suits brought 23 against state officials under [42 USC] § 1983 and suits brought 24 directly under the Constitution [via Bivens v Six Unknown Named 25 Agents, 403 US 388 (1971)] against federal officials.” Butz v 26 Economou, 438 US 478, 504 (1978). 27 // 28 //

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1

At the pleadings stage, qualified immunity analysis

2 entails three steps. First, the court must determine whether,

3 taken in the light most favorable to the plaintiff, the facts

4 alleged show a violation of the plaintiffs’ statutory or

5 constitutional rights. Saucier v Katz, 533 US 194, 201 (2001). If

6 a violation has been alleged, the court next determines whether the

7 right infringed was clearly established at the time of the alleged

8 violation. Finally, the court assesses whether it would be clear

9 to a reasonable person in the defendant’s position that its conduct

10 was unlawful in the situation it confronted. Id at 202, 205. See

11 also Frederick v Morse, 439 F3d 1114, 1123 (9th Cir 2006)

12 (characterizing this final inquiry as a discrete third step in the

13 analysis). “This is not to say that an official action is

14 protected by qualified immunity unless the very action in question

15 has previously been held unlawful, but it is to say that in the

16 light of pre-existing law the unlawfulness must be apparent.” Hope

17 v Pelzer, 536 US 730, 739 (2002) (citation omitted).

18

19

1

20

When a private party seeks to invoke qualified immunity,

21 the court must first decide whether qualified immunity is

22 “categorically available,” which “requires an evaluation of the 23 appropriateness of qualified immunity given its historical 24 availability and the policy considerations underpinning the 25 doctrine.” Jensen v Lane County, 222 F3d 570, 576 (9th Cir 2000). 26 This inquiry is distinct from the question whether a nominally 27 private party is a state actor for purposes of a section 1983 or 28 Bivens claim.

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1

In Wyatt v Cole, 504 US 158 (1992), the Supreme Court

2 laid the foundation for determining whether a private actor is

3 entitled to qualified immunity. The plaintiff there sued under

4 section 1983 to recover property from a private party who had

5 earlier obtained a writ of replevin against the plaintiff. See

6 Lugar v Edmondson Oil Co, 457 US 922 (1982) (holding that a private

7 party acted under color of law under similar circumstances). After

8 determining that the common law did not recognize an immunity from

9 analogous tort suits, the court “conclude[d] that the rationales

10 mandating qualified immunity for public officials are not

11 applicable to private parties.” Wyatt, 504 US at 167. Although

12 Wyatt purported to be limited to its facts, id at 168, the broad

13 brush with which the Court painted suggested that private parties

14 could rarely, if ever, don the cloak of qualified immunity. See

15 also Ace Beverage Co v Lockheed Information Mgmt Servs, 144 F3d

16 1218, 1219 n3 (9th Cir 1998) (noting that “[i]n cases decided

17 before [the Supreme Court’s decision in Richardson v McKnight, 521

18 US 399 (1997)],” the Ninth Circuit had “adopted a general rule that

19 private parties are not entitled to qualified immunity”).

20

Applying Wyatt to a case involving section 1983 claims

21 against privately employed prison guards, the Supreme Court in

22 Richardson v McKnight, 521 US 399 (1997), stated that courts should 23 “look both to history and to the purposes that underlie government 24 employee immunity in order to” determine whether that immunity 25 extends to private parties. Id at 404. Although this issue has 26 been addressed by the Ninth Circuit in several cases, the court has 27 yet to extend qualified immunity to a private party under McKnight. 28 See, e g, Ace Beverage, 144 F3d at 1220; Jensen, 222 F3d at 576-80.

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1

2

2

The court now determines whether the history of the

3 alleged immunity and purposes of the qualified immunity doctrine

4 support extending qualified immunity to AT&T.

5

As described in section II(C), supra, no firmly rooted

6 common law immunity exists for telecommunications providers

7 assisting the government. And presently applying whatever immunity

8 might have previously existed would undermine the various statutory

9 schemes created by Congress, including the certification defense

10 under 18 USC § 2511(2)(a)(ii)(B).

11

Turning to the purposes of qualified immunity, they

12 include: “(1) protecting the public from unwarranted timidity on

13 the part of public officials and encouraging the vigorous exercise

14 of official authority; (2) preventing lawsuits from distracting

15 officials from their governmental duties; and (3) ensuring that

16 talented candidates are not deterred by the threat of damages suits

17 from entering public service.” Jensen, 222 F3d at 577 (citations,

18 quotations and alterations omitted). See also Harlow, 457 US at

19 816 (recognizing “the general costs of subjecting officials to the

20 risks of trial —– distraction of officials from their governmental

21 duties, inhibition of discretionary action, and deterrence of able

22 people from public service”). AT&T contends that national security 23 surveillance is “a traditional governmental function of the highest 24 importance” requiring access to the “critical telecommunications 25 infrastructure” that companies such as AT&T would be reluctant to 26 furnish if they were exposed to civil liability. AT&T MTD at 17. 27 // 28 //

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1

AT&T’s concerns, while relevant, do not warrant extending

2 qualified immunity here because the purposes of that immunity are

3 already well served by the certification provision of 18 USC §

4 2511(2)(a)(ii). As noted above, although it is unclear whether a

5 valid certification would bar plaintiffs’ constitutional claim,

6 section 2511(2)(a)(ii) clearly states that a valid certification

7 precludes the statutory claims asserted here. See supra I(G)(1).

8 Hence, but for the government’s assertion of the state secrets

9 privilege, the certification provision would seem to facilitate

10 prompt adjudication of damages claims such as those at bar. And

11 because section 2511(2)(a)(ii)’s protection does not appear to

12 depend on a fact-intensive showing of good faith, the provision

13 could be successfully invoked without the burdens of full-blown

14 litigation. Compare Tapley v Collins, 211 F3d 1210, 1215 (11th Cir

15 2000) (discussing the differences between qualified immunity and

16 good faith defense under Title III, 18 USC § 2520(d)).

17

More fundamentally, “[w]hen Congress itself provides for

18 a defense to its own cause of action, it is hardly open to the

19 federal court to graft common law defenses on top of those Congress

20 creates.” Berry v Funk, 146 F3d 1003, 1013 (DC Cir 1998) (holding

21 that qualified immunity could not be asserted against a claim under

22 Title III). As plaintiffs suggest, the Ninth Circuit appears to 23 have concluded that the only defense under Title III is that 24 provided for by statute —– although, in fairness, the court did not 25 explicitly address the availability of qualified immunity. See 26 Jacobson v Rose, 592 F2d 515, 522-24 (9th Cir 1978) (joined by 27 then-Judge Kennedy). But cf Doe v United States, 941 F2d 780, 79728 99 (9th Cir 1991) (affirming grant of qualified immunity from

64

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United States District Court For the Northern District of California

1 liability under section 504 of the Rehabilitation Act without

2 analyzing whether qualified immunity could be asserted in the first

3 place). Nonetheless, at least two appellate courts have concluded

4 that statutory defenses available under Title III do not preclude a

5 defendant from asserting qualified immunity. Blake v Wright, 179

6 F3d 1003, 1013 (6th Cir 1999) (The court “fail[ed] to see the logic

7 of providing a defense of qualified immunity to protect public

8 officials from personal liability when they violate constitutional

9 rights that are not clearly established and deny them qualified

10 immunity when they violate statutory rights that similarly are not

11 clearly established.”); accord Tapley, 211 F3d at 1216. But see

12 Mitchell v Forsyth, 472 US 511, 557 (1985) (Brennan concurring in

13 part and dissenting in part) (“The Court’s argument seems to be

14 that the trial court should have decided the legality of the

15 wiretap under Title III before going on to the qualified immunity

16 question, since that question arises only when considering the

17 legality of the wiretap under the Constitution.”).

18

With all due respect to the Sixth and Eleventh Circuits,

19 those courts appear to have overlooked the relationship between the

20 doctrine of qualified immunity and the schemes of state and federal

21 official liability that are essentially creatures of the Supreme

22 Court. Qualified immunity is a doctrinal outgrowth of expanded 23 state actor liability under 42 USC § 1983 and Bivens. See Monroe v 24 Pape, 365 US 167 (1961) (breathing new life into section 1983); 25 Scheuer v Rhodes, 416 US 232, 247 (1974) (deploying the phrase 26 “qualified immunity” for the first time in the Supreme Court’s 27 jurisprudence); Butz v Economou, 438 US 478 (1978) (extending 28 qualified immunity to federal officers sued under Bivens for

65

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United States District Court For the Northern District of California

1 federal constitutional violations); Maine v Thiboutot, 448 US 1

2 (1980) (holding that section 1983 could be used to vindicate non-

3 constitutional statutory rights); Harlow, 457 US at 818 (making the

4 unprecedented reference to “clearly established statutory” rights

5 just two years after Thiboutot (emphasis added)). These causes of

6 action “were devised by the Supreme Court without any legislative

7 or constitutional (in the sense of positive law) guidance.”

8 Crawford-El v Britton, 93 F3d 813, 832 (DC Cir 1996) (en banc)

9 (Silberman concurring), vacated on other grounds, 523 US 574

10 (1998). “It is understandable then, that the Court also developed

11 the doctrine of qualified immunity to reduce the burden on public

12 officials.” Berry, 146 F3d at 1013.

13

In contrast, the statutes in this case set forth

14 comprehensive, free-standing liability schemes, complete with

15 statutory defenses, many of which specifically contemplate

16 liability on the part of telecommunications providers such as AT&T.

17 For example, the Stored Communications Act prohibits providers of

18 “electronic communication service” and “remote computing service”

19 from divulging contents of stored communications. See 18 USC §

20 2702(a)(1), (a)(2). Moreover, the Stored Communications Act

21 specifically contemplates carrier liability for unauthorized

22 disclosure of subscriber records “to any governmental entity.” See 23 id § 2702(a)(3). It can hardly be said that Congress did not 24 contemplate that carriers might be liable for cooperating with the 25 government when such cooperation did not conform to the 26 requirements of the act. 27 // 28 //

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United States District Court For the Northern District of California

1

Similarly, Congress specifically contemplated that

2 communications carriers could be liable for violations of Title

3 III. See Jacobson, 592 F2d at 522. And in providing for a “good

4 faith” defense in Title III, Congress specifically sought “‘to

5 protect telephone companies or other persons who cooperate * * *

6 with law enforcement officials.’” Id at 522-23 (quoting Senate

7 debates). See also id at 523 n 13. Cf 18 USC § 2511(2)(a)(ii)

8 (providing a statutory defense to “providers of wire or electronic

9 communication service”).

10

In sum, neither the history of judicially created

11 immunities for telecommunications carriers nor the purposes of

12 qualified immunity justify allowing AT&T to claim the benefit of

13 the doctrine in this case.

14

15

3

16

The court also notes that based on the facts as alleged

17 in plaintiffs’ complaint, AT&T is not entitled to qualified

18 immunity with respect to plaintiffs’ constitutional claim, at least

19 not at this stage of the proceedings. Plaintiffs’ constitutional

20 claim alleges that AT&T provides the government with direct and

21 indiscriminate access to the domestic communications of AT&T

22 customers. See, e g, FAC, ¶ 42 (“On information and belief, AT&T 23 Corp has provided and continues to provide the government with 24 direct access to all or a substantial number of the communications 25 transmitted through its key domestic telecommunications facilities, 26 including direct access to streams of domestic, international and 27 foreign telephone and Internet communications.”); id, ¶ 78 28 (incorporating paragraph 42 by reference into plaintiffs’

67

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United States District Court For the Northern District of California

1 constitutional claim). In United States v United States District

2 Court, 407 US 297 (1972) (Keith), the Supreme Court held that the

3 Fourth Amendment does not permit warrantless wiretaps to track

4 domestic threats to national security, id at 321, reaffirmed the

5 “necessity of obtaining a warrant in the surveillance of crimes

6 unrelated to the national security interest,” id at 308, and did

7 not pass judgment “on the scope of the President’s surveillance

8 power with respect to the activities of foreign powers, within or

9 without this country,” id. Because the alleged dragnet here

10 encompasses the communications of “all or substantially all of the

11 communications transmitted through [AT&T’s] key domestic

12 telecommunications facilities,” it cannot reasonably be said that

13 the program as alleged is limited to tracking foreign powers.

14 Accordingly, AT&T’s alleged actions here violate the constitutional

15 rights clearly established in Keith. Moreover, because “the very

16 action in question has previously been held unlawful,” AT&T cannot

17 seriously contend that a reasonable entity in its position could

18 have believed that the alleged domestic dragnet was legal.

19

20

4

21

Accordingly, the court DENIES AT&T’s instant motion to

22 dismiss on the basis of qualified immunity. The court does not 23 preclude AT&T from raising the qualified immunity defense later in 24 these proceedings, if further discovery indicates that such a 25 defense is merited. 26 // 27 // 28 //

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United States District Court For the Northern District of California

1

III

2

As this case proceeds to discovery, the court flags a few

3 procedural matters on which it seeks the parties’ guidance. First,

4 while the court has a duty to the extent possible to disentangle

5 sensitive information from nonsensitive information, see Ellsberg,

6 709 F2d at 57, the court also must take special care to honor the

7 extraordinary security concerns raised by the government here. To

8 help perform these duties, the court proposes appointing an expert

9 pursuant to FRE 706 to assist the court in determining whether

10 disclosing particular evidence would create a “reasonable danger”

11 of harming national security. See FRE 706(a) (“The court may on

12 its own motion or on the motion of any party enter an order to show

13 cause why expert witnesses should not be appointed, and may request

14 the parties to submit nominations. The court may appoint any

15 expert witnesses agreed upon by the parties, and may appoint expert

16 witnesses of its own selection.”). Although other courts do not

17 appear to have used FRE 706 experts in the manner proposed here,

18 this procedural innovation seems appropriate given the complex and

19 weighty issues the court will confront in navigating any future

20 privilege assertions. See Ellsberg, 709 F2d at 64 (encouraging

21 “procedural innovation” in addressing state secrets issues);

22 Halpern, 258 F2d at 44 (“A trial in camera in which the privilege 23 relating to state secrets may not be availed of by the United 24 States is permissible, if, in the judgment of the district court, 25 such a trial can be carried out without substantial risk that 26 secret information will be publicly divulged”). 27 // 28 //

69

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United States District Court For the Northern District of California

1

The court contemplates that the individual would be one

2 who had a security clearance for receipt of the most highly

3 sensitive information and had extensive experience in intelligence

4 matters. This individual could perform a number of functions;

5 among others, these might include advising the court on the risks

6 associated with disclosure of certain information, the manner and

7 extent of appropriate disclosures and the parties’ respective

8 contentions. While the court has at least one such individual in

9 mind, it has taken no steps to contact or communicate with the

10 individual to determine availability or other matters. This is an

11 appropriate subject for discussion with the parties.

12

The court also notes that should it become necessary for

13 the court to review additional classified material, it may be

14 preferable for the court to travel to the location of those

15 materials than for them to be hand-carried to San Francisco. Of

16 course, a secure facility is available in San Francisco and was

17 used to house classified documents for a few days while the court

18 conducted its in camera review for purposes of the government’s 19 instant motion. The same procedures that were previously used

20 could be employed again. But alternative procedures may also be

21 used and may in some instances be more appropriate.

22

Finally, given that the state secrets issues resolved

23 herein represent controlling questions of law as to which there is

24 a substantial ground for difference of opinion and that an

25 immediate appeal may materially advance ultimate termination of the

26 litigation, the court certifies this order for the parties to apply

27 for an immediate appeal pursuant to 28 USC § 1292(b). The court

28 notes that if such an appeal is taken, the present proceedings do

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United States District Court For the Northern District of California

1 not necessarily have to be stayed. 28 USC § 1292(b)

2 (“[A]pplication for an appeal hereunder shall not stay proceedings

3 in the district court unless the district judge or the Court of

4 Appeals or a judge thereof shall so order.”). At the very least,

5 it would seem prudent for the court to select the expert pursuant

6 to FRE 706 prior to the Ninth Circuit’s review of this matter.

7

Accordingly, the court ORDERS the parties to SHOW CAUSE

8 in writing by July 31, 2006, why it should not appoint an expert

9 pursuant to FRE 706 to assist in the manner stated above. The

10 responses should propose nominees for the expert position and

11 should also state the parties’ views regarding the means by which

12 the court should review any future classified submissions.

13 Moreover, the parties should describe what portions of this case,

14 if any, should be stayed if this order is appealed.

15 //

16 //

17 //

18 //

19 //

20 //

21 //

22 // 23 // 24 // 25 // 26 // 27 // 28 //

71

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United States District Court For the Northern District of California

1

IV

2

In sum, the court DENIES the government’s motion to

3 dismiss, or in the alternative, for summary judgment on the basis

4 of state secrets and DENIES AT&T’s motion to dismiss. As noted in

5 section III, supra, the parties are ORDERED TO SHOW CAUSE in

6 writing by July 31, 2006, why the court should not appoint an

7 expert pursuant to FRE 706 to assist the court. The parties’

8 briefs should also address whether this action should be stayed

9 pending an appeal pursuant to 28 USC § 1292(b).

10

The parties are also instructed to appear on August 8,

11 2006, at 2 PM, for a further case management conference.

12

13

IT IS SO ORDERED.

14

15

16

VAUGHN R WALKER

17

United States District Chief Judge

18

19

20

21

22

23

24

25

26

27

28

72

 Hepting v. AT&T Corp., Not Reported in F.Supp.2d (2006)

2006 WL 1581965 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Tash HEPTING, et al, Plaintiffs, v.
AT & T CORPORATION, et al, Defendants.
No. C-06-672 VRW. | June 6, 2006.
Attorneys and Law Firms
Cindy Ann Cohn, Jeff D. Friedman, Corynne McSherry, Kevin Stuart Bankston, Kurt Opsahl, San Francisco, CA, Bert Voorhees, Traber & Voorhees, Pasadena, CA, Eric A. Isaacson, Maria V. Morris, Reed R. Kathrein, Lerach, Coughlin, Stoia, Geller, Rudman & Robbins LLP, San Diego, CA, James Samuel Tyre, Culver City, CA, Michael M. Markman, Heller, Ehrman, White & McAuliffe LLP, Menlo Park, CA, Richard Roy Wiebe, Law Office of Richard R. Wiebe, San Francisco, CA, Shana Eve Scarlett, Lerach, Coughlin, Stoia, Geller, Rudman & Robbins LLP, San Francisco, CA, Theresa M. Traber, Esq., Traber & Voorhees, Pasadena, CA, Tze Lee Tien, Berkeley, CA, for Plaintiffs.
Bruce A. Ericson, Jacob R. Sorensen, Pillsbury Winthrop Shaw Pittman LLP, San Francisco, CA, Bradford Allan Berenson, Sidley Austin LLP, Washington, DC, David W. Carpenter, Sidley, Austin, Brown & Wood LLP, Chicago, IL, David L. Lawson, Edward Robert McNicholas, Sidley, Austin, Brown & Wood, Washington, DC, for Defendants.
Opinion
ORDER
VAUGHN R. WALKER, District Chief Judge.
*1 At a May 17, 2006, hearing, the court invited the parties and the government to brief two issues: (1) whether this case can be litigated without deciding whether the state secrets privilege applies, thereby obviating any need for the court to review ex parte and in camera certain classified documents offered by the

government and (2) whether the state secrets privilege implicates plaintiffs’ FRCP 30(b)(6) deposition request for information on any certification that defendant AT & T Corporation (“AT & T”) might have received from the government. Doc # 130. After reviewing the submitted papers, the court concludes that this case cannot proceed and discovery cannot commence until the court examines the classified documents to assess whether and to what extent the state secrets privilege applies.
Plaintiffs’ principal argument is that the court need not address the state secrets issue nor review the classified documents because plaintiffs can make their prima facie case based solely on the public record, including government admissions regarding the wiretapping program and non-classified documents provided by former AT & T technician Mark Klein. Doc # 134 (Pl Redact Br) at 5-8. Even if plaintiffs are correct in this argument, it does not afford sufficient reason to delay deciding the state secrets issue.
The government asserts that “the very subject matter of Plaintiffs’ allegations is a state secret and further litigation would inevitably risk their disclosure.” Doc # 145-1 (Gov Br) at 14. If the government is correct, then “the court should dismiss [plaintiffs’] action based solely on the invocation of the state secrets privilege.” Kasza v. Browner, 133 F3d 1159, 1166 (9th Cir1998). Moreover, until the applicability and reach of the privilege is ascertained, AT & T might be prevented from using certain crucial evidence, such as whether AT & T received a certification from the government. See Gov Br at 16-17. See also Kasza, 133 F3d at 1166 (noting that a defendant might be entitled to summary judgment if “the privilege deprives the defendant of information that would otherwise give the defendant a valid defense to the claim” (quoting Bareford v. General Dynamics Corp, 973 F.2d 1138, 1141 (5th Cir1992)) (emphasis and internal quotation marks omitted)). The state secrets issue might resolve the case, discovery or further motion practice might inadvertently cause state secrets to be revealed and AT & T’s defense might be hindered until the scope of the privilege is clarified. Hence, the court agrees with the government that the state secrets issue should be addressed first.
To address this issue, the government claims that the court should examine the classified documents, which apparently “disclose the sources and methods, the intelligence activities, etc, that could be brought into play
1

Hepting v. AT&T Corp., Not Reported in F.Supp.2d (2006)

by the allegations in plaintiffs’ complaint.” Doc # 138 (5/17/06 Transcript) at 34:15-17. Because the government contends that “the primary reasons for rejecting Plaintiffs’ arguments are set forth in the Government’s in camera, ex parte materials,” Gov Br at 13, the court would be remiss not to consider those classified documents in determining whether this action is barred by the privilege. And although the court agrees with plaintiffs that it must determine the scope of the privilege before ascertaining whether this case implicates state secrets, Pl Redact Br at 13-14, review of the classified documents is necessary to determine the privilege’s scope.
*2 Plaintiffs also contend that “the government must make a more specific showing [in its public filings] than it has before this Court may be required to review secret filings ex parte.” Id at 10. But the government, via Director of National Intelligence John D Negroponte, has stated that “any further elaboration on the public record concerning these matters would reveal information that could cause the very harms my assertion of the state secrets privilege is intended to prevent.” Doc # 124-2 (Negroponte Decl), ¶ 12. See also Doc # 124-3 (Alexander Decl), ¶ 8. Although the court may later require the government to provide a more specific public explanation why the state secrets privilege must be invoked, Ellsberg v. Mitchell, 709 F.2d 51, 63-64 (DC Cir1983), the court cannot, without first examining the classified documents, determine whether the government could provide a more detailed public explanation without potentially “forc[ing] ‘disclosure of the very thing the privilege is designed to protect.’ “ Id at 63 (quoting United States v. Reynolds, 345 U.S. 1, 8 (1953)).
Plaintiffs further assert that adjudicating whether AT & T received any certification does not require the court to review the classified documents. Specifically, plaintiffs rely on 18 USC § 2511(2)(a)(ii)(B), which states in relevant part (emphasis added):
No provider of wire or electronic communication service * * * or other specified person shall disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished an order or certification under this subparagraph, except as may otherwise be required by legal process and then only after prior notification to the Attorney

General or to the principal prosecuting attorney of a State or any political subdivision of a State, as may be appropriate.
Plaintiffs claim that the phrase “except as may otherwise be required by legal process” means that “if the AT & T defendants are claiming that they have a certification defense, then ‘legal process’ would require the disclosure of the fact of that certification in the ordinary course of litigation.” Pl Redact Br at 8-9.
This argument fails, however, because the government’s “state secrets assertion ‘covers any information tending to confirm or deny’ whether ‘AT & T was involved with any’ of the ‘alleged intelligence activities.’ “ Gov Br at 17 (quoting Doc # 124-1 (Gov Mot Dis) at 17-18). Because the existence or non-existence of a certification would tend to prove or disprove whether AT & T was involved in the alleged intelligence activities, the privilege as claimed prevents the disclosure of any certification. And because the “legal process” could not require AT & T to disclose a certification if the state secrets privilege prevented such disclosure, discovery on the certification issue cannot proceed unless the court determines that the privilege does not apply with respect to that issue.
*3 Finally, plaintiffs claim that they should be able to review the classified documents alongside the court. Plaintiffs note that due process disfavors deciding this case based on secret evidence and they contend that “the Court should proceed incrementally, examining only the least amount of ex parte information when-and if-this becomes absolutely necessary.” Pl Redact Br at 3. Although ex parte, in camera review is extraordinary, this form of review is the norm when state secrets are at issue. See Kasza, 133 F3d at 1169 (“Elaborating the basis for the claim of privilege through in camera submissions is unexceptionable.”). See also Black v. United States, 62 F3d 1115, 1119 & n6 (8th Cir1995); Ellsberg, 709 F.2d at 60 (“It is well settled that a trial judge called upon to assess the legitimacy of a state secrets privilege claim should not permit the requester’s counsel to participate in an in camera examination of putatively privileged material.”). And for the reasons stated above, review of the classified documents is necessary here to determine whether the state secrets privilege applies.
Plaintiffs also contend that a statutory provision, 50 USC § 1806(f), entitles them to review the classified
2

Hepting v. AT&T Corp., Not Reported in F.Supp.2d (2006)

documents. Pl Redact Br at 4. Section 1806(f) provides in relevant part:
[W]henever any motion or request is made by an aggrieved person * * * to discover or obtain applications or orders or other materials relating to electronic surveillance * * * the United States district court * * * shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.
Plaintiffs contend if the court determines that it must review the classified documents, this provision indicates that the court “should do so under conditions that provide for some form of appropriate access by plaintiffs’ counsel.” Pl Redact Br at 4.
The government and AT & T contend that this provision is inapplicable here because “[p]laintiffs’ claims are based on their contention that the alleged surveillance activities

should have occurred under FISA, but allegedly did not, whereas the review available under section 1806(f) is available only when electronic surveillance did, in fact, occur ‘under this chapter.’ “ Gov Br at 11 (citation omitted); Doc # 150 (AT & T Redact Br) at 10. Even if this provision applies to the present case, it does not follow that plaintiffs are entitled to view some or all of the classified documents at this time. Section 1806(f) requires the court to “review in camera and ex parte the application, order, and such other materials relating to the surveillance” when determining whether the surveillance was legal. Only after such review may the court disclose the protected materials to the aggrieved person to the extent “necessary to make an accurate determination of the legality of the surveillance.” Hence, § 1806(f) does not provide plaintiffs with a present right to view the classified documents.
*4 The court is mindful of the extraordinary due process consequences of applying the privilege the government here asserts. The court is also mindful of the government’s claim of “exceptionally grave damage to the national security of the United States” (Negroponte Decl, ¶ 3) that failure to apply the privilege could cause. At this point, review of the classified documents affords the only prudent way to balance these important interests.
Accordingly, because review of the classified documents is necessary to determine whether and to what extent the state secrets privilege applies, the court ORDERS the government forthwith to provide in camera and no later than June 9, 2006, the classified memorandum and classified declarations of John D Negroponte and Keith B Alexander for review by the undersigned and by any chambers personnel that he so authorizes.
IT IS SO ORDERED.
	
  

3

 Case4:08-cv-04373-JSW Document222 Filed05/05/14 Page1 of 31
Approved for public release May 5, 2014
- •· .. \'

'fOP SECRET:JCOMl~r

ffSRIJl:ICS/IORCONfNQEOR N / / M R

UNITED STATES DISTRICT COURT

2

. NORTHERN DISTRICT OF CALIFORNIA

3 TASH HEPTING, GREGORY HICKS,

)

4

CAROLYN JEWEL, and ERIK KNUTZEN
On Behalfof Themselves and All Others

) )

s Similarly Situated,

)

)

6

. Plaintiffs,

)

7

v.

) )

8

)

AT&T CORP., AT&T INC., and

)

9 DOES 1-20, inclusive,

)

10

)

Defendants.

)

11 ~~~~~~~~~~~~~~~~)

Case No. C-06-0672-VRW
CLASSIFIED DECLARATION OF JOHN D. NEGROPONTE, DIRECTOR OF NATIONAL INTELLIGENCE
SUBMITTED IN CAMERA, EXPARTE
Hon. Vaughn R. Walker

12

JN CAMERA,.EX PARTE DECLARA'DON OF JOHN D. NEGROPONTE,

13

DIRECTOR OF NATIONAL INTELLIGENCE

l4

I, John D. Negroponte, do hereby state and declare as follows:

<Ul INTRODUCTION

16

1. (U) I am the Director of National Intelligence (DNI) of the United States. I have

17

held this position since April 21, 2005. From June 28, 2004, until appointed to be DNI, I served
18

19 as United States Ambassador to Iraq. From September 18, 20011 until my appointment in Iraq, I

20 served as the United States Pennanent Representative to the United Nations. 1have also served

21 as Ambassador to Honduras (1981~1985), Mexico (1989-1993), the Philippines (1993- 1996), an

22
as Deputy Assistant to the President for National Security Affairs (1987-1989).

23

24

2. (U) In the course of my official duties, I have been advised of this lawsuit and the

25 allegations at issu-e in this case. The statements made herein are based on my personal

26 knowledge as well as on information provided to me in my official capacity as Director of
27
National Intelligence. 1n particular, as set forth below, 1have read and personally considered the
28
CLASSIPIHD DBCLARATION OPJOHN D. NE!GROPONTE,
DIRECTOR OF NATIONAL INTBLLIGBNCB CASE NO. C-()6.()672.VRW
mp SECRET/ICOMlN~rrspuHcsuoBcowNOEOR~WMR
1

Case4:08-cv-04373-JSW Document222 Filed05/05/14 Page2 of 31
Approved for public release May 5, 2014

'f'OP SECRETHCOMIN~fFSPNIICSHORCON/~lOFORN!/MR
information contained in the In Camera, Ex Parte Declaration of Lt. Gen. Keith B. Alexander,

2 Director of the National Security Agency, filed in this case.

3

3.

4 Alexander Deel. 'I 3, this lawsuit implicates several highly classified and critically important

intelligence activities of the National Security Agency and, in particular
6 7 8 9 JO

II

12

13

14

IS

16

\7
threat of another terrorist attack on the U.S. Homeland
18
19 a threat which I describe further below based on a recent assessment of the National Counter

20 Terrorism Center (NCTC) prepared in April 2006.

21

4. (U) The putpose of this declaration is to fonnally assert, in my capacity as the

22
Director of National Intelligence and head of the United States Intelligence Conununity, the
23

24 military and state secrets privilege (hereafter ..state secrets privilege") and a statutory privilege

2S under the National Security Act, see 50 U.S.C. § 403-l(i)(l), in order to protect intelligence

26 infonnation, sources, and methods that are at risk of disclosure in this case. Disclosure of the
27
infonnation covered by this privilege assertion reasonably could be expected to cause
28

CLASSIFIED DBCLARATION Of JOHN D. NEGROPONTE, DIRF..CTOR OF NATIONAL INTELLIGENCH CASE NO. C-06·0672.YRW
TOP SECRE,T//COMINT~SRl./HCSl/ORCON/NOFORNNMR
2

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Approved for public release May 5, 2014

TOP SBCRBTHCOMIN..-ffSP//HCS/IORCON!~lOFOR~t//MR
exceptionally grave damage to the national security of the United States and, therefore, the

2 information should be excluded from any use in this case. In addition, I concur with Gen.

3 Alexander's conclusion that, because the very subject matter of this lawsuit concerns highly

4 classified and critically important foreign intelligence activities, the risk is great that further
5
litigation will lead to the disclosure of information hannful to U.S. national security and,
6
accordingly, mat this case should be dismissed. See In Camera Alexander Decl. ljl 76.
7

8

(U) CLASSIFICATION OF DECLARATION

9

5, ~Pursuant to the standards in Executive Order No. 12958, as amended by

IO

11

12
13 markings are set forth in the Alexander Declaration at Tl 5~8 and are briefly summarized here.

14 Under Executive Order No. 12958, information is classified ''TOP SECRET.. if unauthorb:ed

IS disclosure of the infonnation reasonably could be expected to cause exceptionally grave damage
16
to the national security of the United States; "SECRET' ifunauthorized disclosure of the
17
infonnation reasonably could be expected to cause serious damage to national security; and
18
19 .°CONFIDENTIAL" if unauthorized disclosure of the infonnation reasonably could be expected

20 to cause identifiable damage to national security. At the beginning of each paragraph of this

21 declaration, the letters "U.0 "C," "S," and "TS" indicate respectively that the information is

22 either UNCLASSIFIED, or is classified CONFIDENTIAL, SECRET, or TOP SECRET.
23

24

6. \s).._AdditionaUy, this declaration also contains Sensitive Compartmented

25 Information (SCI}, which is "subject to special access and handling requirements because it

26 involves or derives from particularly sensitive intelligence sources and methods." 28 C.F.R,
27 § 17. l 8(a). This declaration references communications intelligence (COMINT), also referred to
28
CLASSIFU!O DECLARATION OF JOHN D. NBGROPONTE, DIRECTOR OF NATIONAL INTBLLIOBNCB CASB NO. C-06·0672-VRW
TOP SECRETh'€0Ml:N~8f!l/HCS!tORCON/WOFQRN//M R
3

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TOP SECRETNCOMINT-1 SP/111CS/IORCON/NOF0Rt4h'MR as specie). intelligence (SI), which is a subcategory of SCI that identifies information that was

2 derived from exploiting cryptographic systems or other protected sources by applying methods

3 or techniques, or from intercepted foreign communications. This declaration also references
4 human intelligence (HCS), another subcategory of SCI that identifies information derived from
s
individuals who provide intelligence infonnation.
6
7.
7
8 about the Teaorlsi Surveillance Program (TSP), a controlled access signals intelligence program

9 authorized by the President in response to the attacks of September 11, 2001. lnfomtation
10
pertaining to this program is denoted with the special marking "TSP...
II

12

13

14

IS

8. '""(S).Einally, information labeled "NOFORN" may not be released to foreign

16
governments, foreign nationals, or non-U.S. citizens without permission of the originator and in
17
accordance with DNI policy. The "ORCON" designator means that the originator of the
18

19 infonnation controls to whom it is released. Finally, this document is marked Manual Review

!t 20 ("MR") indicating that is not subject to automatic declassification at any specific date.

21

(U) BACKGROUND ON DIRECTQR OF NATIONAL INTELLIGENCE

22
9. (U) The position of Director of National Intelligence was created by Congress in
23

24 the Intelligence Refonn and Te1Torism Prevention Act of 2004, Pub. L. 108458, §§ 10l l(a) and

2s 1097, 118 Stat. 3638, 3643-63, 3698-99 (2004) (amending sections 102 through 104 of Title I of

26 the National Security Acl of 1947). Subject to the authority. direction, and control of the
27 President, the Director of National Intelligence serves as the head of the U.S. lntelligenc~
2&

CLASSIFIED DECLARATION OF JOHN D. NCGROPONTB, DIRBCTOR OF NATIONAL INTELLIOBNCE CASE NO. C-06-0672-VRW
TOP SMCRBTHCOMlN~SP/IHCS//ORCO~YNOFORN.~4R
4

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"fOP St!CIU!'f'ftCOMIN'f~SPh'HCS/IORCOWNOFORN/IMR
Community and as the principal adviser to the President, the National Security Council. and the

2 Homeland Security Council for intelligence matters related to the national security. See 50
3 u.s.c. § 403(b)(l), (2).

4

10. (U) The United States ''Intelligence Community" includes the Office of the

s
Director of National Intelligence; the Central Intelligence Agency; the National Security
6

Agency; the Defense Intelligence Agency; the National Geospatial-Intelligence Agency; the
7

8 National Reconnaissance Office; other offices within the Department of Defense for the

9 collection of specialized national intelligence through reconnaissance programs; the intelligence
10
elements of tlte military services, the Federal Bureau of Investigation, the Department of the
II
Treasury, the Department of Energy, the Drug Enforcement Administration, and the Coast
12
13 Guard; the Bureau of Intelligence and Research of the Department of State; the elements of the

14 Department of Homeland Security concerned with the analysis of inteJligence information; and

15 such other elements of any other department or agency as may be designated by the President. or

16
jointly designated by lhe DNI and heads of the department or agency concerned, as an element o
. 17
the Intelligence Community. See 50 U.S.C. § 40la(4).
18

19

11. (U) The responsibilities and authorities of the Director of National Intelligence

20 are set forth in the National Security Act. See 50 U.S.C. § 403-1. These responsibilities include
21 ensuring that national intelligence is provided to the President, the heads ofthe departments and
22
agencies of the Executive Branch, the Chainnan of the Joint Chiefs of Staff and senior military
23
24 commanders, and the Senate and House of Representatives and conunittecs thereof. 50 U.S.C.

25 § 403-1(a)(1). The DNI is also charged with establishing the objectives of, determining the

26 requirements and priorities for, and managing and directing the tasking, collection, analysis.
27
production, and dissemination of national intelligence by elements of the Intelligence
2S
CLASSIFll!D DDCLARATION OF JOHN D. N&JROPONTB, DIRECTOR OP NATIONAL INTEWGENCE CASE NO. C-06-0672-VRW
TOP SECRET.llCOMINT-'ITSR'!HCSl/O~CON/NOFOR:Nl/MR
5

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TOP SBCRBT/ICOMINT- SP//HCS//ORCON/NOFORN#MR Community. Id. § 403-1 (f)(l )(A)(i) and (ii). The DNI is also responsible for developing and

2 detennining. based on proposals submitted by the heads of agencies and departments within the

3 Intelligence Community, an annual consolidated budget for the National lntelligence Program

4 for presentation to the President, and for ensuring the effective execution of the annual budget
s
for intelligence and intelligence-related activities, and for managing and allotting appropriations
6
7 for the National Intelligence Program. Id.§ 403-l(c)(l)-(5).

8

12. (U) In addition, the National Security Act of 1947, as amended, provides that

9 "[t]he Director of National Intelligence shall protect intelligence sources and methods from
10
unauthorized disclosure." 50 U.S.C. § 403-l(i)(l). Consistent with this responsibility, the DNI
II
establishes and implements guidelines for the Intelligence Community for the classification of
1'2
13 infonnation under applicable law, Executive orders, or other Presidential directives and access to

14 and dissemination of intelligence. Id. § 403-l(i){2)(A). (B). In particular, the DNI is responsible
15 for the establishment of unifonn standards and procedures for the gr.mt of access to Sensitive
16
Compartmented Information ("SCI") to any officer or employee of any agency or department of
17
the United States, and for ensuring the consistent implementation of those standards throughout
18
19 such departments and agencies. Id. § 403-1(j)(1 ), (2).

20

13. (U) By virtue of my position as the Director of National Intelligence, and unless

21 otherwise directed by the President, I have access to all intelligence related to the national
22
security that is collected by any department, agency, or other entity of the United States.
23

24 Pursuant to Executive Order No. 12958, 3 C.F.R. § 333 (1995), as amended by Executive Order

2s 13292 (March 25, 2003), reprinted as amended in 50 U.S,C.A. § 435 at 93 (Supp. 2004), the

26 President bas authorized me to exercise original TOP SECRET classification authority.
27

28

CLASSIFIED DF.CLARATION OP JOHN D. NEOROPONTE, DIRECTOR OP NATIONAL INTELLIGBNCE CASE NO. C·06·0672-VRW

TOP SECR..ETUCOMINT

trSRl/liCS//ORCOtil.'tilOPORNUMR

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TOP SECRETi/COMIN~'SP//WCS//ORCOWNOFOR~llJMR
CID ASSERTION OF STAIE SECUTS PRIVILEGE
14. ~s set forth herein, and as described in the Declaration o

3 Gen. Alexander, see AlexanderDeel. 'I 3, various classified facts and categories of classified
4 infonnation related to national intelligence activities are implicated by the Plaintiffs' claims in
s
this case. After careful and actual personal consideration of the matter, based upon my own
6
knowledge and infonnation obtained in the course of my official duties, including the
7
8 Declaration of Gen. Alexander, I have determined that the disclosure of the information
9 described herein concerning intelligence infonnation, sources, and methods reasonably could be
10
expected to cause eJtceptionally grave damage to the national security of the United States and
ll
must be excluded from disclosure and use in this case. In addition, it is my judgment that
12
13 sensitive state secrets are so central to the subject matter of the litigation that any attempt to
14 proceed in the case will substantially risk the disclosure of the secrets descdbed herein and will
15 cause exceptionally grave damage to the national security of the United States.
16
<Ul &S§ERTION OF STATUTORY PRIVILEGE UNDER NATIONAL SECURITY ACT
17
15. (f8N81//NF) Through this declaration, I also he.reby invoke and assert a statutory
18
19 privilege held by the Director of National Intelligence under the National Security Act to protect

20 intelligence sources and methods at issue in this case, see 50 U.S.C. § 403*1(i)(l). My assertion

21 of this statutory privilege for intelligence sources and methods is coextensive with my state
22
secrets privilege assertion as to intelligence sources and methods.
23

24

25

16.

26 claims that is subject to the state secrets and statutory privileges I am asserting includes the
27
following:
28
CLASSlfllBD DBCLARATlON OP JOHN D. NBGROPON'll!,
DIRECTOR OP NATIONAL lNTELUGBNCR CASE NO. C-()6-0672-VRW
TOP SECRE1Y/€0MlNT~8PHHCS//ORCON/NOFORJ>l'JMR

Case4:08-cv-04373-JSW Document222 Filed05/05/14 Page8 of 31
Approved for public release May 5, 2014

TOP SeCR'STHCOMINT-'ffSPHI ICSNORCON/NOFORNHMR
A. Infonnation Concemi~nuing e.J Qaeda Terrorist 1breat

2

B. Intelligence Sources and Methods

3

(1)

4

(2)

s
(3) Meta Data CoJlection and Analysis
6

7

(4) The Terrorist Surveillance Program

8

(a) Focus of the TSP on al Qaeda Terrorist Targets

9

(b) Importance of the TSP

IO

c. Information that Would Confirm or Deny Intelligence Targets

11

I first describe the al Qaeda terrorist threat, which foi:ms the foundation of my assertion of
12

13 privilege. because it is the threat at which the challenged intelligence activities are directed. I

14 then summarize the intelligence sources and methods at issue in this case described by Gen.

15 Alexander. I also discuss the hann that would result to U.S. national security ifthe privileged

16
information a1 issue were disclosed.

17

18

CU> DESCRIPTION OF INFORMATION AND HARM OF DISCLOSURE

19

A. CID lnfonnatlon Concerning the Continuing al Qaeda Terrorist Threat

20

17. (S;'JOG'NF) Based on all of the intel!igence infonnation presently available to us,

21 it is the judgment of the U.S. Intelligence Community that the al Qaeda teaorist network has the
22
intention and the potential capability to carry out catastrophic terrorist acts on the U.S.
23
24 Homeland. Indeed, intelligence indicates that al Qaeda's central leadership is pursuing multiple.

2s possibly related, paths to an attack against the Homeland. This is so notwithstanding a series of

26 setbacks to the al Qaeda terrorist network. Preventing such attacks is the U.S. Intelligence
27
Community's highest priority. The intelligence activities that are impUcated by and put at risk o
28
CLASSIPlED DECLARATION OF JOHN D. NEGROPON'TE, DIROCTOR OP NATIONAL INTEll.IGENCE CASB NO. C-06-0672·VRW
'f'OP SECRETHCOMINT-I'SP/!HCS/toR.COt-1/N<lOORNllMR 8

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TOP SECRE'f/ICOMl~f~'SIWl ICSHORCONINOFORN//MR
disclosure in this lawsuit must be understood in the context of the extremely serious threat faced

2 by the United·States.

3

18. (U) With the attacks of September 11. al Qaeda demonstrated its ability to

4 introduce agents ~nto the United States undetected and to perpetrate devastating attacks. As the

President has recently made clear, "[t]he terrorists want to strike America again. and they hope to
6
7 inflict even more damage than they did on September the 11th." Press Conference of President
8 Bush (Dec. 19, 2005). 1 For this reason, as the President e~lained, finding al Qaeda sleeper

9 agents in the United States remains one of the paramount concerns in the War on Terror to this

10
day. Id.
11
19.
12

(U) Since September 11, al Qaeda leaders have repeatedly promised to deliver

13 another, even more devastating attack.on America. For example, in October 2002, al Qaeda

14 leader Ayman al-Zawahiri stated in a video addressing the ''citizens of the United States": "I

I .S promise you that the Islamic youlh are preparing for you what will fill your hearts with horror."
16
In October 2003, Osama bin Laden stated in a released videotape that "We, God wHling, will
17
18 continue to fight you and will continue martyrdom operations inside and outside the United

19 States ...." And again in a videotape released on October 241 20041 bin Laden warned United

20 States citizens of further attacks and asserted that ,.your security is in your own hands."

21

20. (U) In recent months, al Qaeda has reiterated its intent to inflict a catastrophic

22

terrorist attack on the United States. On December 7, 2005, al-Zawahiri professed that al Qaeda
23

24 ''is spreading, growing, and becoming stronger," and that al Qaeda is "waging a great historic

25 battle in Iraq, Afghanistan, Palestine, and even in the Crusaders' own homes."

26

27

28

1 Available at http://www.whjtehouse.gov//news/releases/2005/12/20051219-2.html.

CLASSIFIED DECLARATION OF JOHN D. NEOROPONTE,

.

DIRECTOR Of NATIONAL INTELLIGENCE

CASE NO. C-06-0672-VRW

TOP SfiCRE'f//COMIN~ 'SPNMCS!IORCOW/NOVOaN//MR

9

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TOP SECRETJ/COMIN l~SPNI JCS//ORCONh'K>FORN//MR
21. (U) Since the September 11 attacks, al Qaeda has staged several large-scale

2 atlacks around the world, including in Indonesia, Madrid, and London, killing hundreds of

3 innocent people.

4

CS#0CJNF).-Al Qaeda's Likely Presence in the United States

22. lS1JlleSN9GtMO Classified intelligence information provides a more specific
6
1 and alarming picture of the continuing terrorist threat to the Homeland posed by al Qaeda. Jn
8 sum, the U.S. Intelligence Community believes that the al Qaeda terrorist network intends to
9 execute a catastrophic terrorist attack on the U.S. Homeland. That threat is the reason that the
10 President authorized the Terrorist Surveillance Program and related activities described herein.
11
The intelligence activities at issue in this case are thus being utilized to meet a known, real. and
11
13 perhaps imminent threat to the Jives of thousands of Americans and, indeed, to the continuity of
14 the United States Government. The threat that we face cannot be understated and may be of the

most extreme nature.

16
23. -

particular, based on the mqst recent assessment issued

l7

on April 20, 2006, by the National Counterterrorism Center (NCTC}, an entity that I oversee as
18

19 DNJ, the U.S. Intelligence Community continues to receive reliable intelligenc

20

intelligence sources that al Qaeda remains intent on conducting a grand-scale

21 attack on the Homeland with a likely focus on U.S. symbols of power or economic might. Al
22
Qaeda continues to have these intentions despite the degradation of its leadership, resources, and
23
operational capabiUty in the wake of a steady stream of deaths, captures, and disruptions.

25

26

As a result of our

27
disruptions of the group's planning and increased security measures, however, "softer" targets
28

0.ASSJflfED DECLARATION OF JOHN O. NBGROPONTE,
DIRECTOR OP NATIONAL INTEU.IGENCB CASB NO. C-06-0672·VRW
TOP SECRET//CQMlN~SP#HCSl/ORCON/NOF-ORNNMR
10

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TOP SECRETHCOMIN~SP/.'HCS/IORCON/NOFORNHMR
have become increasingly attractive. Specific softer targets include tourist sites. shopping

2 centers, and passenger trains.

3

4
s

6

7

8

9

24. ~e have numerous reasons to believe al Qaeda is still plotting

10
another attack on U.S. soil. The Al-Jazirah television network aired an audiotape in January
II
2006 in whfoh Osama bin Laden said that preparations were under way for attacks inside the
12
13 United States and that al Qaeda's failure to strike the United States since September 11, 2001

14 was not due to improved U.S. security measures. Bin Laden's deputy, Ayman al-Zawahiri, also

lS issued threats against the United States in statements in January and March of this year. In
16
addition, an al Qaeda media facilitator released a sta~ment on September 11, 2005. threatening
17
new attacks on the United States, specifically naming Los Angeles as a target.
18

28
CLASSIPJEO DECLARATION OF JOHN D. NEGROPONTE,
DIRECTOR OF NATJONAL INTELLIGBNCB CASE NO. C.oo-0672-VRW
TOP SECRETHCOMlN~P!.'MCSt!OR.COf)l/NOEQRN//MR
11

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2

3

4
s

6

7

8

9

10

II

Possible al Qaeda Targe\§ and Attacks

12

13

27. (TS/19;'6~-Whileany attack on the Homeland would be viewed by al

14

1.5

l6

17

18

19

20

21

22

23

24

26
27
28
CLASSIPIBD DECLARATION OF JOHN D, NEGROPON'IE,
DIROCTOR OP NATIONAL INTBU.IGl!NCB CASB NO. C-06-0672-VRW
TOP SOCRET1!/tOMlN._.SFVIHCS,40RCONINOJiORN.'/MR 12

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3

4

5

6

7

8

9

10

II

12

13

14

IS

16

17

30. (Sft11CS/IOCINF) In addition, constraints on al Qaeda's capabilities and

18 increased security measures at airports, government buildings, and other high-profile targets in
19
the United States could be making lower profile, less-protected targets increasingly attractive.
20
An attack in the United States, like those against thC Madrid commuter train and London
21
22 transport system, would probably meet al Qaeda's objectives without requiring the planning,

23 resources, and expertise that would be necessary for a complex September 11-style attack.
24
According to our present intelligence, this shift in al Qaeda's planning has become apparent in
25

26

27

28
CLASSIFIBD DECLARATION OF JOHN D. NBGROPONTE,
DIRECTOR OF NATIONAL JNTELLIGENCH CASE NO. C-06-0611-VRW

TOP SECRSTNCOMlN'-fSP!!HCS/IORCOf>t!NOFORN#MR 13

Case4:08-cv-04373-JSW Document222 Filed05/05/14 Page14 of 31
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28 CLASSIPJBD Dl!CLARATION OP JOHN O. NBOROPONTE, DIRECTOR Of NATIONAL INTBLUOBNCB CASE NO. C-06-0672-VRW
TOP SOCRl!Tt/COMIN l~P/JI ICS//ORCON.'NOPORNl/MR
14

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TOP SECRS'fHCOMIN 1-f'SP/JHCS/fORCONINOFORN/fMR 33. (S'//llCSl!OCJNF) The U.S. Intelligence Community remains concerned that the

2 multiple terrorist attacks carried out in London in July 2005 and Madrid in March 2004 may be a

3 harbinger of similar attacks to come in the United States in which Islamic extremists in Western

4 countries-whether homegrown or sent from abroad-will mimic and refine the small bomb
s
tactics used in these attacks.2 Of specific concern to the Intelligence Community in the wake of
6
7 the London bombings is the continuing interest that al Qaeda and its affiliates have expressed in

8

Our intelligence suggests that any attack against

9

most likely would occur in major cities or against

erving major

10
cities, which would be consistent with al Qaeda's expressed intent to inflict a high number of
II

12

13

14

IS

16

17

18

19

20

21

22

23

24

2S

26

27 28

CLASSIFIED DECLARATION OP JOHN D. NEGROPONTE, DIRECTOR OF NA110NAL lNTllLUGENCE CASB NO. C-06-0672-VRW
TOP SeClltffliCOMIN~PHlICSNOR:COt-1/NOPORN/JMR
15

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Approved for public release May 5, 2014

2

3

4
s

6 7
s While U.S. authorities have identified instances of possible surveillance and pre-operational

9 activities aimed at gathering intelligence on rail transit systems, as yet there is no corroborating
10 intelligence to link them to operational planning against U.S. mass transit systems.
ll
35. (Sl/ilCSHOCINF) !'.J'he Intelligence Community also believes that al Qaeda and
12
13 its affiliates continue to target the civil aviation sector, including U.S. passengers and Western
14

IS 16

17 18 19

20

21 ll

23

24

25

36. (<f&'/HCS/1-0CINF) Despite our intelligence successes, however, there are

26 significant swaths of~ Qaeda activity that almost certainly remain undetected. We believe it
27
likely that, at any given point in time, the group has multiple plots in play against the U.S.
28

CLASSIPIBO DECLARATION OP JOHN D. NOOROPONTE, DIRF.CTOR OF NATIONAL INTELLIGENCE CASE NO. C-06-0672-VRW
TOP SECRETH€0Mlt>ff~SPlll-ICSl!ORCOM/NOPORN//MR
16

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TOP SECRETllCOMINT~Ph'HCSi/OJtCON/NOr'ORN17MR
Homeland, some of which could be in the advanced stages of preparation.

2

3

4
s

6
7

8

9

37.

10

II

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26
27
28
CLASSIPIED DECLARATION OP JOHN D. NHGROPONTE, DJRECTOR OF NATIONAL INTELLIGENCE CASE NO. C-06·0672-VRW
TOP SBCRE'f1/COMirn~8PNH:CS//ORCON/NOEQR NUMR
17

Case4:08-cv-04373-JSW Document222 Filed05/05/14 Page18 of 31
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2
3 4
5
6 7 8 9 10 II 12 13 14
I~
16
40. (TSYSf/fOCINF) These various examples of some of our intelligence information
17
demonstrate that the al Qaeda network conUnues to plan ways to inflict a catastrophic attack. In
18
19 sum, based on all of the intelligence presently available to us, it is the U.S. Intelligence 20 Community's judgment that al Qaeda poses a grave danger lo the U.S. Homeland. The severity
21
of that threat, and the difficulty of tracking al Qaeda members, is precisely the reason the
22
government is utilizing all lawful intelligence-gathering capabilities. I set forth this threat
23
24 information not only to provide the court with crucial background as to why the intelligence 25 activities at issue in this case are being undertaken, but also to assert a claim of privilege over 26 this threat information. Although the foregoing threat assessment demonstrates precisely why
27
we undenake these activities, the government cannot disclose this infonnation in defending the
28 CLASSIFIED DI!CLARATION OP JOHN D. NEOROPONTB,
DIRECTOR OF NATIONAL INTELLIGENCE CASB NO. C-06-0672-VRW
TOP S~CRlITUCOMl~l'.-.SP.l/MCS//GRGO~i'~JOFORNl/MR
18

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'fOP SECRffi'//COMIN' -

'SPi'/I ICS//-ORCOWNOPORN//MR

legality of the intelligence activities being challenged, since to do so obviously would disclose to

2 our adversaries what we know of their plans and how we may be obtaining infonnation about

3 them. Such disclosure would lead our adversaries to not only alter their plans, but to implement
4 greater security for their communications, thereby increasing the risk of non-detection. In
s
addition, disclosure of threat information might reveal human sources for the United States and,
6
7 thus, compromise those sources and put lives at danger. Accordingly, while l believe that such
8 threat information is crucial to understanding the context in which NSA conducts the intelligence

9 activities put at issue by Plaintiffs' lawsuit, I must assert the state secrets privilege and DNJ

10
statutory privilege over the information because of the grave damage to national security that

11
could reasonably be expected to result from its disclosure.
12

13

B. Intelllgence Sources and Methods

14

41.

15 the United States faced urgent and immediate intelligence challenges after the September 11
16
attacks, and the President authorized signals intelligence activities designed to meet those
17
challenges and to detect and prevent future terrorist attacks by al Qaeda and its affiliates. S{!e In
18
19 Camera Alexander Deel. Tl 17-20• 21-24. In carrying out these.intelligence activities and

20 others, the NSA utilizes various sources and methods, including
21

22

23

24

Id. In addition, pursuant to

25 authorizations of the President and Foreign Intelligence Surveillapce Court ("FISC"), NSA is

26 collecting non-content "meta data" related to Internet communications for the purpose of
27
conducting targeted analysis to uncover the contacts
28

CLASSIPllID OBCLARATION OF JOHN D. NEOROPONTE,
DIRECTOR OP NATIONAL INTELLIGENCE CASB NO. C-06-0672..VRW
·rop sBc1tt!TttcoMtNT- sP11HCsno~oN1NoFORNt1MR
19

Case4:08-cv-04373-JSW Document222 Filed05/05/14 Page20 of 31
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2 content meta data for telephone calls. Id. 1. 24. NSA is also collecting the content of certain

3 telephone and Internet communications involving al Qaeda members or affiliates, as authorized

4 by the President under the TSP. ld.122.
s
42.
6

7

8

9 at issue in this case and that further litigation thus poses a grave risk to national security. For thi
IO
reason, along with the al Qaeda threat infonnation as to which I have asserted privilege above, I
II
am also formally assening the state secrets privilege and the DNl's statutory privilege to protect
12
13 the intelligence information, sources and methods further described in Gen. Alexander's

14 declaration. I have personally considered this infonnation, assert a claim of privilege as to each

15 category, and explain the harm to national security that would result from its disclosure.
16
43.
17
matter, it is my judgment that disclosure of the infonnation described below, and as further
18
19 detailed in the Declaration of Gen. Alexander, would cause exceptionally grave damage to the

'.20 national security of the United States by:

21

(I) Revealing the sources and methods concerning NSA intelligence-gathering

22

activities, including by:

23

•

24

25

26

27

•

28

CLASSIFJBD DECLARATION OF JOHN D. NEGROPONTB, ()(RECTOR OF NATIONAL INTELLIGENCE CASE NO. C-OM>672·VRW
TOP SECRET/ICOMIN~'SP,t/WC~//ORCO!'U~lOFORNNMR.
20

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• Revealing information regarding the success of NSA activities implicated by this

case, which would disclose the substantive knowledge of the United States

4

Government as to terrorist plans and activities, and also could tend to reveal the

5

sources and methods by which the United States obtained such information.

6

(2)

7

8

9 In Camera Alexander Deel. 'I 62. I describe the harm that would be caused by the disclosure of
10
the infonnation in each category at issue further below. In addition, I concur with Oen.
II
Alexander's assessment that even bits of infonnation or seemingly innocuous facts can, in the
12
13 context of this case or in conjunction with unclassified information, reveal a fuller picture of

14 highly classified government activities and cause severe harm to national security interests. Id.

CLASSIFIED DECLARATION OF JOHN D. NEGROPONTB, DlRECTOR OF NATIONAL INTELLIGENCE
CASE NO. C-06-0672·VRW
TOP SECRET//COMlNl-FSP/ll lCS//-ORCON.'NOFORNi'1~\1R
21

Case4:08-cv-04373-JSW Document222 Filed05/05/14 Page22 of 31
Approved for public release May 5, 2014
CLASSIFIED DECLARATION OP JOHN 0 . NEGROPONTE, DIROCTOR OF NATIONAL INIBLLIOBNCf CASB NO. C-06-0672-VRW
1'0P SECRE'fNCOMlN~BP/IHCS//-ORCON/NOPOR.M//MR.
22

Case4:08-cv-04373-JSW Document222 Filed05/05/14 Page23 of 31
Approved for public release May 5, 2014

20

(3) \T8HSlltNF> ~Data Collection and Analysis

21

49. ~ further assert the state secrets privilege and the DNI statutory

22

privilege to protect from disclosure in this case information that would reveal or tend to reveal
23

24 NSA actions to collect and conduct targeted analysis of non~content information known as "meta

25. data" related to lntemet and telephone communications; See In Camera Alexander Deel. 'fl 37-

26

27

28

..
•

ARATION OF JOHN D. NEGROPONTE,

DIRECTOR OP NATIONAL lNTELLlOENCE

CASE NO. C-06-0672-VRW

TOP SECRETUCOMIN~SPttHCS!/ORC~.'~OFORW.l/MR

23

Case4:08-cv-04373-JSW Document222 Filed05/05/14 Page24 of 31
Approved for public release May 5, 2014

44.
2

IOP Sl!CltB'fitcOMIN~SPllHCSJ/ORCONl~IOl10R~UMR
50. ~Gen. Alexander explains, meta data is non-content

3 header/router/addressing infonnation, such as the "to," "from," "cc," and "bee" lines {as opposed
4 to the body or 0 re" Jines) of a standard email, for certain communications. See In Camera
s Alexander De.cl. 1 39. The NSA collects, in bulk, meta data associated with electronic
6
7

8

9
10
Id. The NSA also collects, in bulk, telephony meta data
11
Id. ff 24, 44. The collection of Internet and telephony meta data was authorized
12
13 by lhe Pre.~ident after lhe September 11 attacks. Id. !f 23 n.7. In July 2004, lhe Foreign
14 Intelligence Surveillance Court also authorized the bulk collection ofInternet meta data and has

reauthorized that collection approximately every 90 days since. Id.

16

51. ~ulk collection of meta data allows NSA to use critical and

17

unique analytical capabilities to track, historically, the contac
18

of

19 known terrorists, a tool that has been highly useful in detecting previously unknown te1Torists

20 and unknown terrorist accounts. In Camera Alexander Deel. Tl 40-42; 44. Although the NSA is
21
collecting meta data in bulk, it is only authorized to query the w:chived meta data using email
22
· addresses or telephone numbers for which there are facts giving rise to a reasonable, articulable
23
24 suspicion that the email address is associated with
Id. ff 23, 24, 39.

26

27

28

CLASSIFIED DecLARATION OP JOHN D. NEOROPONTE,
DIRECTOR OF NATIONAL INTEU.IOENCB CASS NO. C06-0672-VRW

TOP SECRBT//COMINT

8P/!HCSNOR:CON;NOFORN/1Mlt 24

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Approved for public release May 5, 2014

TOP SECRET/i'C
plans as possible. Id. t 43.

SPiil ICSNORCON/NOFORN"lfMft

2

52. (1fS//SlllNF) As Gen. Alexander explains, with meta data analysis, NSA can

3 analyze critical

ommunicatlons that identify those conununicating and collaborating

4 with~peratives. See Tn Camera Alexander Deel. i 43. Without this method of s
analysis, NSA would be left with individual communications conducted, for example, with email
6
7 addresses that may quickly vanish. Id. In order to ascertain as rapidly as possible the potenti

8

errorist threats facing the United States, NSA must know not only what a foreign terrorist

9 target says in a particular telephone or Internet intercept, but with whom that person has been
10
communicating. Id.
11
53. lfS/.l.SllffSP,'/OC/NF) Disclosure ofNSA activities to collect and analyze meta
12
13 data, including the Foreign Intelligence Surveillance Court's authorization of bulk Internet meta

14 data collection, would cause exceptionally grave hann to the national security of the United

I~ States. As Gen. Alexander explains, NSA's collection and analysis of meta data is a unique and
16
highly valuable tool for quickly MSessing the identities, whereabouts, and relationships of
17
18 individuals involved in terrorist activities. Se1 In Camera Alexander Deel. '170. nie loss of this
19 technique would cause exceptionally grave harm, and indeed, grave danger, because

20

eek already to utilize significant measures to bide their communications. The loss of

21
any tool to help track this severe terrorist threat to the U.S. Homeland, but particularly one so
22
sophisticated, could have devastating results-in loss of life, or the economic, social, and
23
24 governmental stability of the United States.

25

26

27

28

CLASSIFIED DECLARATION OF JOHN D, NEOROPONTB, DIRF.CTOR OF NATIONAL INTELLIOBNCB CASB NO. C·OM1672-VRW
'fOP SECRC'fh'COMIN~ 'SP//HCSNORCON/NOPOR~!!MR
25

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·,Approved for public release May 5, 2014

TOP SOCRBT!ICOMl~Sf&h'ilCS>'IORCONi'NOFORM//MR
(4) cm The Terrorist Surveillance Proeram

2

54. (TS/ISIHfSPr'/OCINF) 1 hereby also assert the state secrets privilege and the DNI

3 statutory privilege to protect from disclosure in this case information that would reveal or tend to

4 reveal classified infonnation concerning the operation of the Terrorist Surveillance Program
s
acknowledged by the President in December 2005. See In Camera Alexander Deel. Tl 45-58.
6
While public speculation about the TSP tends to assume that the program collects a wide range
7
8 of domestic comm\lnications, that is not the case. The program is narrowly focused on collectin

9 the communications of an agent, member, of associate of al Qaeda. Under the TSP,
10 communications are intercepted ~nly if they either originated or terminated outside the United
11
States and only if a party to the communication is a member or affiliate of al Qaeda. As Gen.
12
13 Alexander explains, NSA's decision to collect the content of phone calls or emails turns on

14 factors that are all linked to whether an al Qaeda connection is at issue. See In Camera

JS

16

17

18
19 intercepts telephone and email address that, through analysis, are reasonably believed to be that

20 of an agent. member, of associate of al Qaeda. Id. ff 49, 52. Among the highly classified
21 aspects of the TSP is its relationship to meta data collection and analysis. NSA SIGINT
22
activities typically interrelate, and in this instance the importance and effectiveness of the TSP is
23
24 that, in conjunction with meta data analysis, it provides an unmatched operational swiftness for
25 targeting not just one suspected te1Torist, but for ascertaining those who are collaborating with
26 that terrorist. Id ft 56-57.
27
28
CLASSIFIED DECLARATION OF JOHN D. N&lROPONTB, · OJRECTOR OF NATIONAL INTELLJGENCE
CASB NO. C-06-0672-VRW
TOP SECRET#COMlN~Pl/HCSl/ORCON/NOFQRN//.MR
26

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TOP SBCRET!ICOMl~r~rsR<JWCSJ/ORCObUWOEORNllMR
55. (TS//SllffSPNOCINF) Information about how the TSP is operated could not be

2 revealed without causing exceptionally grave 4amage to the national security. The factors on

3 which NSA relies to target someone under the TSP but would tip-off adversaries as to how they

4 might get caught in this surveillance. The interaction between the TSP and meta data analysis,
s
while important to understanding the speed and flexibility of the program, would also reveal to
6
7 adversaries that

8

9

10

See In Camera Alexander Deel. fl 70. In short, anything that compromises

Jl

how NSA collects vital intelligence on the terrorist threat within the United States will make it
12

13 harder to detect that threat. and more likely that a terrorist attack will be successful.

14

56. (TS/ISllffSP/!OC/NF).Pinally, disclosure of information that would reveal or tend

IS to reveal the success of the NSA activities at issue would cause exceptionally grave harm to the
16
national security. As Gen. Alexander explains, these activities constitute highly important
17
intelligence tools available to the United States for protecting the Homeland from another
18
19 terrorist attack. See In Camera Alexander Deel. Tl 58(a)-(e). The interception of

20 communications under the TSP, in conjunction with meta data analysis, has been successful in
21 helping to find terrorists in our midst. Id. But, as again should be clear, the government cannot
22
disclose how the challenged activities have worlced to protect the national security of the United
23
States without compromising those very activities and revealing the substantive knowledge of th

2S United States Government as to terrorist plans and activities. Nor can the government use the
26 examples of successes to demonstrate that the central focus ofthe program is on al Qaeda
27
terrorist threats, nor the significant benefits already served by the activities at issue.
28
CLASSIFIED DECLARATION OP JOHN D. NEGROPONTE,
DIRECTOR OF NATIONAL INTELLIGBNCB CASE NO. C-06-0672-VRW
TOP SECRETNCOMIN~ SPfRICSl/ORCOtJ/NOFORNNMR
27

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TOP SECRITIWCOMINT~SPl~'HCSIJORCONINOPORN!lMR
Accordingly, while this infonnation would help demonstrate the imponance of the activities and

2 compelling interests at stake would itself harm national securityt I must assert the state secrets

privilege and DNI statutory privilege over the successful application of the NSA TSP and meta

4 data activities.

s

C.

(JD Information That Would Confirm or Deny lntelllgence Tareet&

6

57. ('fS1fSlllNF) I further assert the state secret~ privilege and the DNI statutory
7

s privilege to protect from disclosure in this case infonnation that would reveal or tend to reveal

9 whether or not the four Plaintiffs in this case have had the contents of their telephone and
10
Internet communications and infonnation related to those communicatio1.1s intercepted,
II
disclosed, divulged, and/or used without judicial or other lawful authorization. See In Camera
12
13· Alexander Deel. 1 61.
J4
IS
16
See In Camera Alexander Deel. ft 74-75. As should be
t7
obvioust to confirm or deny whether someone is a target of surveillance would disclose either
18
19 who is being targeted-thus compromising that collection-or who is not being targeted, thus

20 revealing to adversaries that an individual is a secure source for communicating or, more
21 broadly, the methods being used to conduct surveillance. See id. f 75. While it may seem
22
innocuous to disclose that law-abiding citizens are not being targeted, this may provide insight to
23
24 a trained eye as to tbe scope ofNSA's activities. Moreover, providing assurances that someone
is is not being targeted becomes unworkable, and itself revealing, in cases where an individual may

26 be targeted. A refusal to confirm or deny only in cases where surveillance is occurring would
27
effectively disc1ose and compromise that surveillance.
28

CLASSIPHlD DECLAR.ATION OF JOHN O. NBOROPON'lll, DIRECTOR OF NATIONAL INTELUGENCB CASE NO. C-06-0672-VRW

TOP SllCRIIT/tC

SPt!WOWOR:CONJNOPORNIJMR

Case4:08-cv-04373-JSW Document222 Filed05/05/14 Page29 of 31
Approved for public release May 5, 2014

2

3

4 neither confirm nor deny whether someone has been targeted or subject to NSA collection,
s
regardless of whether the individual has been targeted or not. To say otherwise when challenged
6
7 in litigation would result in the frequent, routine exposure of NSA infonnation, sources, and
8 methods and would severely undennine suiveillance activities in general.

9

{U) RISK OF LITIGATION

to

11
that further litigation of this case will inherently risk the disclosure of highly classified activities.
12

l3

14

IS

16

17

18

19

20

21

22

23

24

25

60.

~M~ In addition, as Gen. Alexander explains, Plaintiffs'

26 central claims are simply inae-0urate: NSA is not sweeping up the content of millions of
27
domestic Internet communications. The contem of email and telephone communications are
28
CLASSlf!IBD DECLARATION OF JOHN D. NEOROPONTE, DIRECTOR OF NATIONAL INTBU..IGENCB
CASE NO. C-06-06?2-VRW
TOP SECRETHCOMlN'~SPlt'llCS/IORCON/P.IOfORN//-MR
29

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TOP SECRETHCOMlN~Pi/HCSi/OttCON/NOfiOltNftMR
collected by NSA pursuant to the TSP only if at least one party to the communication is a

2 member or affiliate of al Qaeda and such communication originated or tenninated outside the

3 United States; meta data, which is non-content infonnation, is collected in bulk but only queried

4 and viewed in limited circumstances in order to track

terrorist groups.

5
See In Camera Alexander Deel. '45. Moreover, since July 2004, Internet meta data is being
6

7 collected pursuant to FISC authorization-not. as Plaintiffs allege, without a warrant. Id.

8 Nonetheless, any attempt to adjudicate the lawfulness of classified intelligence programs at issue

9 including to demonstrate why Plaintiffs' allegations are inaccurate, would not only require a

lO
exposition of the facts to demonstrate their lawfulness, but would risk disclosure of those facts in
11
the process.
12

13

61. ffSl/SflfOCllNF) !J'he stakes we face in the U.S. Intelligence Community are of

14 the highest magnitude. We know al Qaeda is planning to attack inside the United States again,

JS whether it be a "small" scale attack on shopping malls or "fun"·places that kills dozens, a
16
devastating attack on aviation or rail systems that kills hundreds, a catastrophic, mass-casualty
17
attack that kills thousands, an attack on government or economic sector infrastructure that would
18
19 cause severe economic harm or threaten the continuity of government. or perhaps in the future,

20 the unthinkable prospect of a nuclear or radiological attack of some kind. NSA's activities
21
authorized by the President after 9/11, and one crucial tool
22
authorized by the Foreign Intelligence Surveillance Court, are all directed at this terrible threat.
23
24 NSA's activities at risk of disclosure in this case an essential tools in detecting and preventing

2S the threat of a future ten:orist attack on the United States and great care must be taken to protect

26 them from disclosure.

27

62. ('rsltNFt.For these reasons, in addition to invo~ng the state secrets and DNJ

28

CLASSIPIBD DECLARATION OF JOHN D. NEGROPONTE,
DJRP.CTOR OP NATIONAL INTELLIGBNCE CASE NO. C-06-0672-VRW .
TOP SECRET/ICOMIN~ 'SPllMCS!JORCON/NOFORNNMR
30

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'I OP SECRE I/ICOMIN~SPl/HCS/IORCON/NOFORNILMR
statutory privilege to protect the intelligence information, sources, and methods at issue, I join

2 wilh Gen. Alexander in respectfully urging the Court to dismiss this case.

3

J declare under penalty of perjury that the foregoing is true and correct.

4

s

6

7

9 10 II ll 13 14 IS 16 17 18 19

21 22 23

2S
26
27
28
CLASSIFIED DECLARATION OF JOHN D. NEOROPONTE,
DIRECTOR OP NATIONAL JN'IBLLIGBNCE CASB NO. C-06-0672-VRW
TOP SECRETNCOMl~IT- 'SPJ/HCSJ/O~CON/NOEDRN//MR
31

 Case4:08-cv-04373-JSW Document223 Filed05/05/14 Page1 of 3
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1'0P SBCRET//COMIN'l

ORCONtNOFORN/IMR

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3 TASH HEPTING, GREGORY HICKS, CAROLYN JEWEL, and ERIK KNUTZEN
4
On Behalf of Themselves and All Others 5 Similarly Situated,

6

Plaintiffs,

7

v.

8
AT&T CORP., AT&T INC., and 9 DOES 1-20, inclusive,

10
Defendants.
11

)

)

)

Case No. C-06-0672-VRW

)

)

CLASSIFIED SUPPLEMENTAL

) DECLARATION OF JOHN

) D.NEGROPONTE,DIRECTOR

)

OF NATIONAL INTELLIGENCE

)

) SUBMITTED IN CAMERA,

) EXPARTE

)

)

Hon. Vaughn R. Walker

12

IN CAMERA, EX PARTE SUPPLEMENTAL DECLARATION OF JOHN D.

13

NEGROPONTE, DIRECTOR OF NATIONAL INTELLIGENCE

14

I, John D. Negroponte, do hereby state and declare as follows:

15

(U) INTRODUCTION

16

1. ~ I am the Director of National Intelligence (DNI) of the United States. I submit

17
this.declaration to supplement my prior In Camera, Ex Parte Declaration of May 12, 2006 ("In
18

19 Camera Negroponte Deel."), and to assert the military and state secrets privilege (hereafter "state

20 secrets privilege") and a statutory privilege over new facts relevant to this case.1

21

2.

22 Presidential authorizatioIJ, the National Security Agency (NSA) collects, in bulk, non-content

23

telephony meta da
24

in order to track the contacts.

25

26

1 -tS1 Pursuant to the standards in Executive Order No. 12958, as amended by Executive

27 Order No. 13292, this declaration is classified as: TOP SECRET//COMINT-
~RCON/NOFORN//MR. The details concerning these classification markings are set forth
28 in the May 12, 2006 In Camera, Ex Parte Declaration of Keith B. Alexander, Director, National

Security Agency ("In Camera Alexander Deel."), at CJ[')[ 5-8.

CLASSlPIBD SUPPLBMENTAL DECLARATION OF JOHN D. NEGROPONTE,

DIRECTOR OF NATIONAL INTELLIGENCE, CASE NO. C-06-0672-VRW

TOP SECRET//COMIN~ORCON/NOFORNNMR

1

Case4:08-cv-04373-JSW Document223 Filed05/05/14 Page2 of 3
Approved for public release May 5, 2014

TOP SECRET/fCOMlN~'fORCONINOFORN//MR
of al Qaeda-related operatives and agents. See In Camera Negroponte

2 Deel 150; see also In Camera Alexander Deel. 1 24. I further explained that meta data collection

3 and analysis is a highly valuable tool for tracking al Qaeda-related networks, is therefore highly

4 classified and strictly compartmented, and that exceptionally grave damage to the national security
5
would result if information about this tool were disclosed. Id. !][ 43. Accordingly, I asserted the
6
state secrets privilege and a statutory privilege under the National Security Act, see 50 U.S.C.
7
8 § 403-l(i)(l), in order to protect this very important intelligence method that is at risk of disclosure

9 in this case.
10
3.
11
prior declaration that must also be protected from disclosure. On May 24, 2006, pursuant to 50
12
13 U.S.C. § 1861, the Foreign Intelligence Surveillance Court ("FISC") issued an Order

14

15 with the NSA's past practices described in my earlier declaration, the May 24, 2006 Order
16
authorizes the NSA to access the archived telephony meta data only when the NSA has identified a
17
known telephone number for which, based on the factual and practical considerations of everyday
18
19 life on which reasonable and prudent persons act, there are facts giving rise to a reasonable,

20 articulable suspicion that the telephone number is associated with

21

The Order further provides that a telephone number believed to be used by a U.S.

22 person shall not be regarded as associated with
23

solely

on the basis of activities that are protected by the First Amendment. In addition to setting forth 24

25 other procedures, the FISC has authorized the NSA to retain the meta data for five years, after

26 which time it shall be destroyed.

27 4.
28

hall disclose to any other person that the FBI or NSA has sought or obtained

CLASSIFIED SUPPLEMENTAL DECLARATlON OF JOHN D. NEGROPONTE, DIRECTOR OP NATIONAL INTELLIGBNCE, CASE NO. C-06-0672-VRW

TOP SECRE'P/ICOMJN
2

)RCONINOPORNi/MR

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TOP SECRET//€0M

'IORCONINOFORNHMR

the telephony meta data, other than to (a) those persons to whom disclosure is necessary to comply

2 with the Order; (b) an attorney to obtain legal advice or assistance with respect to the production of

3 meta data in response to the Order; or (c) other persons as permitted by the Director of the FBI or
4
the Director's designee. A person to whom disclosure is made pursuant to (a), (b), or (c) shall be
5
subject to the nondisclosure requirements applicable to a person to whom the Order is directed in
6
7 the same manner as such person. The FISC's current Order expires on August 18, 2006, but may b

8 reauthorized for additional 90-day periods upon further applications.

9

5. (TSIJSll!OCINF) For the same reasons articulated in my prior declaration, I hereby

10
assert the state secrets and statutory privileges over these new facts in order to protect from

11

disclosure a highly classified and valuable tool for tracking
12

Indeed, as

13 stated above, disclosure of NSA's collection of telephony meta da

is now prohibited

14 by court order.

15

16
I declare under penalty of perjury that the foregoing is true and correct.
17
18 DATE: 6/1t/2~t1 ~

19
Director of National Intelligence 20

21

22

23

24

25

26

27

28

CLASSIFIED SUPPLEMENTAL DECLARATION OF JOHN D. NHGROPONTE, DIRECTOR OF NATIONAL INTELLIGENCE, CASE NO. C-06·0672-VRW
TOP SECRETN€0MINF~3RCON/NOFORN//MR

 Case4:08-cv-04373-JSW Document224 Filed05/05/14 Page1 of 48
Approved for public release May 5, 2014

..
2

TOP SECRFff/fCOMlN..-'/TSPl/ORCON/NOFORNHMR

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

FILED WITH
cou
cso:
DATE:~~~..---

3 TASH HEPTING, GREGORY HICKS, CAROLYN JEWEL, and ERJK KNUTZEN,
4 On BehalfofThemselves and All Others
s Similarly Situated, .

6

Plaintiffs,

7

v.

8
AT&T CORP., AT&T INC., and 9 DOES 1-20, inclusive,

10
Defendants.

)

)

CaseNo. C-06-0672-VRW

)

)

CLASSIFIED DECLARATION

)

OFLT. GEN. KEITHB.

)

ALEXANDER, DIRECTOR,

)

NATIONAL SECURITY

)

AGENCY

)

)

SUBMl'ITED IN CAMERA,

)

EXPARTE

)

) Hon. Vaughn R. Walker

11

12

IN CAMERA, EXPARTE DECLARATION OF LIEUTENANT GENERAL

13

KEITH B. ALEXANDER, DIRECTOR, NATIONAL SECURITY AGENCY

14

(U) I, Lieutenant General Keith B. Alexander, do hereby state and declare as follows:

1S

(U) Introduction and Summary

16
1. {U) I am the Director ofthe National Security Agency (NSA), an intelligence

17

agency within the Department of Defense. I am responsibie for directing the NSA, overseeing

18

I

19 the operations undertaken to carry out its.mission and, by specific charge ofthe President and the

20 Director ofNational Intelligence, protecting NSA activities and intelligence sources and
21 methods. I have been designated an original TOP SECRET classification authority under
22
Executive Order No. 12958, 60 Fed. Reg. 19825 (1995), as amended on March 25, 2003, and
23
24 Department ofDefense Directive No. 5200.1-R, Infonnation Security Program Regulation, 32
2s C.F.R. § 159a.12 (2000).

26

2. (U) The purpose of this declaration is to support the assertion of a formal claim of

27
the military and state secrets privilege (hereafter 11state secrets privilege'') by the Director of
28
Derived ·From: NSA/CSSM J-5 Dated: 20041123
Declassjfy On: MR

TO.P SBCRETl/CO.MIN1-'IT8P//ORCONINO:FORN/fMR

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TOP SECRET/K30MfN'~'lFSP/-/ORCON/NOFORN//MR National Intelligence (DNI) as the head ofthe intelligence community. In this declaration, I also

2 assert a statutory privilege with respect to information about NSA activities. For the reasons

3 described below, the disclosure of the information covered by these privilege assertions would

4 cause exceptionally grave damage to the national security ofthe United States. The statements
s
made herein are based on my personal knowledge ofNSA. activities and operations, and on
6
information available to me as Director of the NSA.
7

8

3.

9

10 ll 12

\3 14 15

17
ts

19

20

21

·Plaintiffs, in fact, have put at issue actiyities th_at have been considered and

22
approvedby the FISC, which has authorized NSA to conduct a bulk collection ofnon:.content
23

24 header/router/addressing information (hereafter referred to as "meta data,,) related to Internet

2s oommwrications for the vital purpose ofuncovering the contacts

26

27

28
. 1· •• KEITH B. ALEXANDER, DIRECTOR, NATIONAL SECURITY AGENCY
• CASE NO. C06-0672-VRW TOP SECRET//COMIN~jfFSP.NORCONfNOFORN//MR
•

Case4:08-cv-04373-JSW Document224 Filed05/05/14 Page3 of 48
Approved for public release May 5, 2014

2

3 For example, NSA collects bulk meta data related to telephone communications in order to

4 conduct specific and targeted analysis to track

a highly useful and

5 -

.

..

--

critical tool like the Internet meta data collection. Also, although Plaintiffs wrongly claim that

6

NSA is·collecting and searching, ona massive scale, the content ofmillions ofcommunications
7

8 sent or received inside the United States, NBA does collect the content ofcertain international

9 telephone and 1-itemet communications that involve an agent or member <;>f al Qaeda or an

LO
associated terrorist organization that either originate or tenninate outside the United States.
IJ
Although the President has acknowledged the existence ofthat narrowly targeted collection-
12

13

infonnation about this program remains highly classified. The

14 assertion ofthe state secrets privilege by the Director ofNational futelligence and NSA's

15 statutory privilege is essential to protect the national security of the United States. Moreover, in
16
my opinion, because the very subject matter ofthis lawsuit concerns state secrets, and the risk of
17
th.eir discfosure is so great, this actic~n should be dismissed.
18

19

20

21

22

23

24

25

26

27

28 CLASSJPIBD DECLARATION OF LT. GEN. KEITH B. ALEXANDER, DIRECTOR,
NATJONAL SECURITY AGENCY CASE NO. C-06-0672-VRW

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TOP SECRET//COM~'l'FSPl/ORGON/NOFORN//MR

2

(U) Table of Contents

3

4.

4 ofthis declaration is organized as follows:
5
Classification of Declaration
6
Background
7

8

A. The National Security Agency

9

B. September 11, 2001

10

c. Intelligence Challenges After September 11, 2001

II

D. Summary ofNSA Actjvities Cri~cal to Meeting Post-9/11

Intelligence Challenges ·

·

12

13 State Secrets Privilege

14 NSA Statutory Privilege

15 Infonnation Subject to Claims of Privilege

16
A. NSA Sources and Methods at Issue

17

(1)

18

(2)

19 .

(3) Meta Data Collection and Analysis

(4) · The Terrorist Surveillance Program

20

(a) Focus of the TSP on al Qaeda Terrorist Targets

21

(b) Importan~ of the TSP and Mata Data Analysis

21

B. Information Confirming or Denying Intelligence Targets

23 Harm to National Security from Disclosure

24
Risk ofNlowing Litigation to Proceed

25

;

Summary and Conclusion

26

27

28 CLASSIFIED DECLARATION OF LT. GEN. KEITH B. ALEXANDER, DIRECTOR, NATIONALSECURITY AGENCY CASE NO. C-06-0672-VRW
• TOP SBCRETHCOM~L/TSPl/ORGONINOFORN/-/MR

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TOP SECRET/ICOMfrt~'/TSPNOR:CON/NOFORP'UIMR ({]) Classification of Declaration
2
5. ~This declaration is Glassified TOP SECRET//COMIN-
3
·s 12958, as amended by Executive Order No.. 13292. Under Executive Order No. 12958,
6 infonnation is cl$sified ''TOP SECRET" ifwiauthoi.ized disclosure ofthe infonnation
7
reasonably could be expected to cause exceptionally grave damage to.the national security ofthe
8
9 United States; "SECRET" if unauthorized disclosme ofthe infonnation reasonably could be
10 expected to cause serious damage to national security; and "CONFIDENTIAL" ifunauthorized
11 disclosiire ofthe infonnation reasonably could be expected to cause identifiable damage to
12
national security. At the beginning ofeach pa,i:agraph ofthis declaration, the letteror letters in
13
parentheses designate{s) the degree ofclassification ofthe infonnation the paragraph contains.
14
IS When used for this purpose, the letters "U," "C," "S," and "TS0 indicate respectively that the
'
16 inforination is either UNCLASSIFIED, or is classified CONFIDENTIAL, SECRET, or TOP
17 SECRET.2
18
6. -(St Additionally, this declar~tion also contains Sensitive Compartmented
19
Information (SCI), which is "infonnation that not only is classified for national security reasons
20
21 as Top Secret, Secret, or Confidential, but also is subject to special access and handling
22
23
24
25
26
27
28 CLASSIFIED DECLARATION OF LT. GEN. KEITH B. ALBXANDBR, DIRECTOR, NATIONAL SECURI1Y AGENCY . CASB NO. C-06-0672-VRW
• TOP SECRET/ICOM~'/TSPf/ORCON/NOFORNl/MR

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TOP SECRET//COMftf~'fTSIYIORCON/NOFORN/IMR
requirements because it involves or derives from particularly sensitive intelligence sources and

2 methods." 28 C.F.R. § 17.18(a). Because ofthe exceptional sensitivity and vulnerability ofsuch
3 infonnation, these safeguards and access requirements exceed the access standards that are
4 nonnally required for information ofthe same classification level. Specifically, this declaration
s
references communications intelligence (COMINT), also referred to as special intelligence (SI),
6
1 which is a subcategory of SCI. COMINT or SI identifies SCI that was derived from exploiting
s cryptographic systems or other protected. sources by applying methods or techni~ues, or from

9 intercepted foreign' communications.

10
7.
11
related to or derived from the Terrorist Surveillance Program (TSP), a controlled access signals
12

13 intelligence program authorized by the President in response to the attacks of September 11,

.

.

14 2001. Although the President publicly acknowledged the existence ofthe TSP in December

15 2005, details about the program remain highly classified and strictly compartmented.
16
Information pertaining to this program is denoted with the special marking ''TSP" and requires
17
more restrictive handling.
18

19

20

21

22

23

24 '

25

26

27

28

·..:

I I

·'• I' I

• ~

KElTH B. ALEXANDER, DIRECTOR,

• NATIONALSECURITY AGENCY
CASE NO. C-06-0672-VRW
TOP SECRET/fCOM:lNT-"fSPh'OR:CON/NOFORNHMR

'

-

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TOP SBCRET/KJOMIN' -'ITSPl/ORCON/NOFORN-h'MR 8. ~ In addition to the fact that classified information contained herein may not be

2 revealed to any person without authorization pursuant to Executive Order 12958, as amended,

3 this declaration contains iD:fQrmation that may not be released to foreign governments, foreign

4 nationals, or non-U.S. citizens without permission Qfthe originator and in accordance with DNI
5
policy. This infonnation is labeled "NOFORN." The "ORCON" designator means that the
6
originator ofthe infonnation controls to whom it is released. Finally, this document is marked
7
8 Manual Review ("MR") indicating that it is not subject to automatic declassification at any

9 specific date.

lO
11
A.
l2

CID Backgtound (U) The National SecurityAgency

13

9. (U) The NSA was established by Presidential Directive in 1952 as a separately

14 orgaruzed agency within the Department of Defense. Under Executive Order 12333, § 1.12(b),

15 as amended, NSA's cryptologic mission includes three functions: (I) to collect, process, and
16
disseminate signals intelligenc.e (SIGINT) information, ofwhich CO:MINT is a significant
17
subset, for (a) national foreign intelligenc.epurposes, (b) counterintelligence purposes, and (c)
18
19 the support ofmilitary operations; (2) to conduct information security activities; and (3) to

20 conduct operations security training for the U.S. Government.

21

10. (TS//~I) Signals intelligence (SIGINT) consists ofthree subcategories:

22
(1) communications intelligence (COMINT); (2) electronic intelligenc.e (ELINT); and (3) forei
23

24 instrumentation signals intelligence (FISINT). Commwiications intelligence (COMINT) is

25 defined as "all procedures and methods used in the interception ofcommunications and the

26 obtaining ofinformation from such communications by other· than the intended.recipients." 18

... .. 27

28

... ·~

~

KEITH B. ALEXANDER, DIRECTOR.

NATJONAL SBCURITY AGENCY

CASE NO. C-06-0672-VRW

TOP SECRET//€0MIN~17SPHORCONINOFORN//MR
II

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. TOP SECRBT//COMfN~/TSPNORCON/NOFORN//MR U.S.C. § 798. COMINT includes information derived from the interception offoreign and

2 international communications, such as voice, facsimile, and computer-to-computer information

3 conveyed via a number ofmeans

4

Electronic intelligence (BLINT) is technical intelligence information derived from

5
foreign non-communications electromagnetic radiations except a~omic detonation or radioactive
6

7 sources-in essence, radar systems affiliated with military weapons platforms (e.g., anti.-ship)

8 and civilian systems (e.g., shipboard and air traffic control radars). Foreign instrumentation

9 signals intelligence (FISINT) is derived from non~U.S. aerospace surfaces and subsurface
10 systems which may have ei~er military or civilian applications.
II
11. (S).NSA's SIGINT responsibilities include establishing and operating an effective
12
13 unified organization to conduct SIGINT activities set forth in Executive Order No. 12333, §

14 l.12{b), as amended. In performing its SIGINT mission, 'NSA has developed a sophisticated

15 worldwide SIGINT collection network that acquires, among other tlrings, foreign and
16
international electronic communications and related information. The technological
17
infrastructure that supports NSA's foreign intelligence information oollection network lias taken
18
19 years to develop at a cost ofbillions ofdollars ~d untold h~ effort. It relies on sophisticated

20 collection and processing technology.

21

12. 00-There are two primary reasons for gathering and analyzing foreign

. 22

I

intelligence information. The first, and most important, is to gain as much information as
23

24 possible in order to allow the United States to counter threats to the nation's security. The

25 second reason is to obtain infonnation critical to the fonnulation of U.S. fureign policy. Foreign

26 intelligence infonnation provided by NSA.is thus relevant to a wide range ofimportant issues,
27 including (but not limited to) ~li™?' order ofbattle; threat warnings and readiness; anns
28 CLASSIFIED DECLARATION OF LT. GEN. KElTH B. ALEXANDER, DIRECTOR NATIONAL SECURITY AGENCY ' CASE NO. C..06-0672-VRW

TOP SECRET/ICOMIN -'ffSP//ORCONfl

NJ/MR

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TOP SECREr£'tCOMfN'-ffSPHORCOHINOFORNHMR
pr~liferatien; international terrorism; and foreign aspects of international narcotics trafficking.

2

13. -(8)-NSA's ability to produce foreign intelligence infonnation depends on its

3 .access to foreign and international electronic communications. Foreign intelligence produced by

4 COMINT activities is an extremely importantpart of the overall foreign intelligence infonnati~n
5
available to the United States and is often unobtainable by other means. Public disclosure of
6
either the capability to collect specific communications or the su'Qstance ofthe information
7

8 derived from such collection itSelfcan easily alert targets to the vulnerability oftheir

9 communications. Disclosure ofeven a single communication holds the potential ofrevealing
10
intelligence collection techniques that ¥e applied against targets around the world. Once alerted,
11
targets can frustrate COMINT collectjon by using different or new encryption techniques, by
12.
13 disseminating disinformation, or by utilizing a different communications link. Such evasion

14 techniques may inhibit access to the target's communications and therefore deny the United

15 States aitcess to infonnation crucial to the defense of the United States both at home and abroad.
16
COMINT is provided special statutory protection under 18 U.S.C. § 798, which makes it a crime
17
to knowingly disclose to an unauthorized person classified infonnatipn "concerning the
18
19 communication intelligence activities ofthe United States or any foreign government."

20 B. (U) Se]tember 11, 2001

21

14. (U) On September 11, 2001, the al Qaeda terrorist network launched a set of

2.2
coordinated attacks along the East Coast ofthe United States. Fow- commercial jetliners, each
23
al 24 carefully selected to be fully loaded with fuel for a transcontinental flight, were hijacked by

2s Qaeda operatives. Those operatives targeted the Nation's financial center in New York with two

26 of the jetliners, which they deliberately flew into the Twin Towers ofthe World Trade Center.
27
Al Qaeda targeted the headquarters ofthe Nation's Anned Forces, the Pentagon, with the third
28 CLASSIFIED DECLARATION OF LT. GEN. KBITH B. ALEXANDER, DIRECTOR, NATIONAL SECURITY AGENCY CASE NO. C.06-0672-VRW
- 1'0P SECRET/fCOMIN~/(fSPl/ORCON/NOFORl"l//MR:

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Tffi? SECRET//COMIH._'/TSPf/OR.CON'/NOFORN//MR jetliner. Al Qaeda operatives were apparently headed toward Washington, D.C. with the fourth
2 jetliner when passengers struggled with the hijackers and the plane crashed in Shanksville,
3 Pennsylvania. The intended target ofthis fourth jetliner was most evidently the White House or
4 the Capitol, strongly suggesting that al Qaeda's intended mission was to strike a decapitation
5
blow to the Government ofthe United States-to kill the President, the Vice President, or
6
Members ofCongress. The attacks of September 11 resulted in approximately 3,000 deaths-
7
8 the highest single-day death toll fiom hostile foreign attacks in the Nation's history. In addition,
9 these attacks shut down air travel in the United States, disrupted the Nation's financial markets
10
and government operations, and caused billions ofdollars ofdamage to the economy.
11
15. (U) On September 14, 2001, the President declared a national emergency ''by
12
13 reason ofthe terrorist attacks at the World Trade Center, New York, New York, and the
14 Pentagon, and the continuing and immediate threat offurther attacks on the United States."
15 Proclamation No. 7463, 66 Fed. Reg. 481.99 (Sept. 14, 2001). The United States also launched a
16
massive military response, b~th at home and abroad. In.the United States, combat air patrols
l7
were immediately established over major metropolitan areas and were maintained 24 hours a day
18
The 19 until April 2002. United States a1so immediately began plans for a military response
20 directed at al Qaeda's training grounds and haven in Afghanistan. On September 14, 2001, both
21
Houses ofCongress passed a Joint Resolution authorizing the President "to use all necessary and
22
appropriate force against those nations, organizations, or persons he determines planned, ·
23
24 authorized, committed, or aided the terrorist attacks" of September 11. Authorization for Use of
2s Military Force, Pub. L. No. 107-40 § 2l(a), 115 Stat. 224, 224 (Sept. 18, 2001)("Cong. Auth.").
26 Congress also expressly acknowledged that the attacks rendered it "necessary and appropriate''
27
for the United States to exercise its right "to protect United States_citizens both at home and
28 CLASSIFIED DBCLARATION OF LT. GEN. KEITH B. ALEXANDER, DIRECTOR, NATlONAL SECURITY AGENCY CASE NO. C-06-0672-VRW
TOP SECRETIJCOMJN' -//TSPh'ORGONtNOFORN//M:R

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.

'fOP SECRETHCOMIN~lffSP//ORCONINOFORN//MR

abroad," and acknowledged in particular that 'ibe President has authority under the Constitution

2 to take action to deter and prevent acts of international terrorism against the United States." Id.

3 pmbl.

4

16. (U) As the President made clear at the time, the attacks of September 11 "created

5
a state of armed conflict." Military Order,§ l(a), 66F.ed. Reg. 57833, 57833 (Nov. 13, 2001).
6
Indeed, shortly after the attacks, NATO took the ~precedented step ofinvoking article 5 ofthe
7

8 North Atlantic Treaty, which provides that an "armed attack against one or more of[the parties]

9 shall be considered an attack against them all" North Atlantic Treaty, Apr. 4, 1949, art. S, 63
10 Stal 2241, 2244, 34 u:N.T.S. 243, 246; see also Statement by NATO Secretary General Lord
11
Robertson.(Oct. 2, 2001), available at http:~/www.nato.int/docu/speech/2001/s011002a.htm ("[I]t
12
13 has now been determined that the attack against the United States on 11 September was directed

14 from abroad and shall therefore be regarded as an action covered by Article 5 ofthe Washington

15 Treaty .. .."). The President also determined that al Qaeda terrorists "possess both the capabilit
16
and ~e intention to undertake further terrorist attacks against the United States that, if not
17
detected and prevented, will cause mass deaths, mass injuries, and mas~ive destruction of
18
19 property, and may place at risk the continuity of the operations ofthe U?-ited States

20 Government," andhe concluded that "an extraordinary emerge.ncy exists for national defense

21 purposes." Military Order,§ l(c), (g), 66 Fed. Reg. at 57833~34.

22
C.
23

(Ul Intelligence Challenges After Sqptember 11. 2001

2A

17.- (U) As a result ofthe unprecedented attacks ofSeptember 11, 2001, the United

States found itself imm~iately propelled into a worldwide war against a network of terrorist

groups, centeredon and affiliated with al Qaeda, that possesses the evolving capability and
27
28 CLASSIFIED DE~LARATION OF LT. GEN. KEITH B. ALEXANDER, DIRECTOR, NATIONAL SECURITY AGENCY CASBNO. C-06-0672-VRW
• ·TOI> SBCRET//COMENT-'TSP/f{)R:CON~iGFORNl/MR

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TOP SECRETh'€0MfN~'JTSPHORCON'fNOFOR:N'//MR intention ofinflicting further catastrophic attacks on the United States. That war is continuing

2 today, at home as well as abroad.

3

18. (U) The war against al Qaeda and its allies is a very different kind of war, against

4 a very different enemy, than any other war or enemy the Nation has previously faced. Al Qaeda·
5
and its supporters operate not as a traditional nation-state but as a diffuse, decentralized global
6
7 network of individuals, cells, and loosely associated, often disparate groups, that act sometimes
8 in concert, sometimes independently, and sometimes in the United States, but always in secret-

9 and their mission is to destroy lives and to disrupt a way oflife through terrorist acts. Al Qaeda

10
works in the shadows; secrecy is essential to al Qaeda's success in plotting and executing its
11
terrorist attacks. ·
12

13

19.

14

15

Global teleconununications networks, especially the Iriternet, have

16
developed in recent years into a loosely interconnected systeffi---..a netWork of network~that is
11
ideally suited for the secret communications needs ofloosely affiliatedterrorist cells. Hundreds
18

19 of Internet.service providers, or "ISPs," and other providers of communications services offer ~

20 wide variety of global communications options, often free of charge.
21

22

23

24

25

26

27

28

KEITH B. ALEXANDER, DIRECTOR,
• NATlONAL SECUR11Y AGENCY
CASE NO. C-06-0672-VRW
TOP SECRBTNCOMfN~SPh'OR:CONINOFORNl/MR
~

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2 3 4 5 6
7 8 9
to
II 12
13
14 challenges for the Nation's communications intelligence capabilities. First, in this new kind of 15 war, more than in any other we have ever faced, communications intelligence is essential to our
16
ability to identify the enemy and to detect and disrupt its plans for further attacks on the United
17
States. Communications intelligence often is the only means we have to learn the identities of
' 18
19 particul~ individuals who are involved in terrorist activities and the existence ofparticular 20 terrorist threats. Second, at the same time that communications intelligence is more important 21 than ever, the.decentralized, non~hierarchical nature ofthe enemy and their sophistication in
22
exploiting the agility ofmodem telecommun~cations make successful communications
. 23
24 intelligence more difficult than ever.
25 26 27 28
CLASSIFIBD DECLARATION OP LT. GEN. KElTH 8 . ALEXANDER, DIRECTOR;
NATIONAL SECURITY AGBNCY
- CA.SE NO. C-06-0672-VRW TOP SECRETh'COMUi1-1TSPHOR:Cffitl:NOFORNNMR .

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TOP 8ECRE'ff/COMIN1-fESPh'OR:CONINOPORNN:MR D. (U) Summarv ofNSA Activities Critical to Meeting Post-9/11 Intelligence Challenges
2
21.
3
4· catastrophic terrorist attack within the United States, the United States has utilized a number of
5 critically important intelligence tools that are implicated by t)le allegations in this case.
6
7
8.
9
to
11
12
13
14
15
16
17
18
19
20
21
22
23 challenge is the Terrorist Surveillance Program (TSP), which the President authorized
24
·specifically to detect and prevent terrorist attacks within the United States by members or agents
25
26 ofal Qaeda or an associated terrorist organization. Pursuant to the TSP, NSA intercepts the
27
28 CLASSIFIBD DBCLARATION OF LT. GEN. KEITH B. ALEXANDER, DIRECTOR, NATIONAL SECURITY AOBNCY CASE NO. C-06-0672-VRW
TOP SECRfilY/COMil·f--'ffSPilORCffi~INOFORN//MR

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TOP SBCRETl/COMEN'~l/TSPHORCONR~OFORNNMR content5 oftelephone or Internet communications for which there are reasonable grounds to

2 believe that (1) such communication originated or terminated outside the United States, and (2) a

3 party to such communication is a member ofal Qaeda, a member ofa group affiliated with al
4 Qaeda, or an agent of al Qaeda or its affiliates. Recently, in December 2005, and in the wake of
5
media leaks, the President acknowledged the existence ofthe TSP. Critical details about the
6
TSP, however, have not been disclosed and remain highly classified and strictly
7
s comparbnented.6

9

23.

10
information known as "meta data"

The collection of

II

meta data related to Internet communications is conducted pursuant to an Order ofthe Foreign
12

13 Intelligence Surveillance Court authorizing the use ofa pen register and trap and trace device

14 (''FISA Pen Register Order''). See 18 U.S.C. § 3127 (defining "pen register" and "trap and trace

15 device'').7 Internet communication meta data is header/router/addressing information, such as
16
the ''to," "from," "cc," and "bee" lines, as opposed to the body or "re" lines, of a standard email.
17
Specifically, the FISA Court has authorized NSA to collect, in bulk, meta data associated with
18

19

20

21

5 (TSHSf/ffSP!/OC/NF) Throughout this declaration, "content" is used to refer to the

22 substance, meaning, or purport ofa communication, as opposed to the type ofaddressing or

routing information referred throughout this declaration as "meta data.si

23

24

6 (U). These details, and the hann that would follow from their public disclosure, are . explained more fully below.

2S
7 (TSh'SJJ/OCJ'NF} The FISA Pen Register Order-was first issued in July 2004 and since

26 then has been reauthorized by the Court approximately every 90 days. Prior to July 2004, the

27

email meta data activities described herein were conducted by NSA pursuant to Presidential authorization issued after September 11, 2001.

28

CLASSIFIED DECLARATION OF LT. GEN.

KHlTH B. ALEXANDER, DIRECTOR,

NATIONAL SECURITY AGENCY

- CASE NO. C-06-0672-VRW TOP SECRETJ/COM~fl-IFSP/fOR:CffiffNO:FORNl/MR

.

.

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2

3 4
s

6

7

'tis only authorized to query the archived meta data

s using email addresses for which there are fii.cts giving rise to a reasonable, articulable suspicion

9 that the email address is associated wi

As the

10
FISA Court recognized in authorizing the pen register and in finding it consistent with the First
11
and Fourth Amendments, the bulk collection is necessary to allow NSA to use .critical and uniqu
12

13 analytical capabilities to track the contacts (even retrospectively)

14 known terrorists. Meta data collection/analysis is a highly valuable tool available for protecting

15 the United States from attack, and, accordingly, information pertaining to the email meta data
16
collection activitie8 is highly classified and strictly compartmented.
17
24.
18
I9 President, NSA is collecting in bulk meta data for telephony communicat1.ons in the form of

20 billing records that reflect non-content information such as the date, time, and duration of
21
telephone calls, as well as the phone numbers used to place and receive the calls. Although tl.iis
22
oollection is broad in scope, the NSA does not generally .search or analyze the data, but solely
23
24

25
26

27
28 CLASSIFIED DECLARATION OF LT. GEN. kE11ll. B. ALEXANDER, DIRECTOR, NATJONAL SECURITY AGBNCY CASE NO. C-06-0672-VRW
- TOI' SECRETHCOMINT~SPHORCONINOFORNHMR

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TOP SECRE1WC~tfFSPHORCON!NOFORN//~
queries the data with an identified telephone numbers for which there are facts giving rise to a

2 reasonable, articulable suspicion that the number is associated with

3

-As with the broad email meta data collection authorized by the FISC, the bulk

4 collection oftelephony meta data is necessary to allow the utilization ofsophisticated analytical
s
tools for tracking the contacts
6
7 Historically, only a tiny fraction
s meta data records collected by NSA bas actually been presented to a trained professional for

10

11 .
Like the email meta data collection activities, telephony meta
12
13 data collection and analysis are highly valuable tools in tracking terrorists and are therefore
14 highly classified and strictly compartmented.

15

(U) State Secrets Privilege

16
25. (I'SNSIJ/NI') In the course ofmy official duties I have been advised ofthis
17
litigati~n and have reviewed the allegations in th~ Plaintiffs' Amended.Complaint and Motion
18

19 for a P~eliminary Injunction. As described herein, various classified facts or categories of

20 classified information related to the PlaintiflB' claims ate subject to the stat.e secrets pri.vilege
21 assertion in this case by the Director ofNational Intelligence. The disclosure ofthis information,
22
which relates to NSA intelligence activities, sources and methods, reasonably could be expected
23
to cause exceptionally grave damage to the national security ofthe United States. In addition, it
24
2s is my judgn:ient that sensitive state secrets are so central to the subject matter pfthe litigation that

26 any attempt to proceed in the case-will substantially risk ~e disclosure ofthe secrets described
27
herein and will cause exceptionally grave damage to the national security of the United States.
28 CLASSIFIED DECLARATION OFLT. GEN. KEITH B. ALEXANDER, DIRECTOR, '
NATIONAL SECURllY AGENCY
• • .CASE NO.C-06-0672-VRW TOP.SECRETJ/COMJN~'/TSPHORCON/NOFORN!IMR
•

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TOP SECRETHGOMIN~l/TSPllORCONINOFORNl/MR
. ((J) NSA Statutory Privilege

2

26. (TSl/81/INF) Through this declaration, I also hereby invoke and assert NSA's

3 statutory privilege to protect information related to NSA activities described below. NSA's

4 statutory privilegt? is set forth in section 6 ofthe National Security Agency Act of 1959, Public
5
Law No. 86-36 (codified as a note to 50 USC. § 402) ("NSA Act''). Section 6 of the NSA Act
6
provides that ''(n]othing in this Act or any other law ... shall be construed to require the
7
s disclosure of the organizaifon or any ftmction ofthe National Security Agency [or] any

9 information with respect to the activities thereof . .. ". By this language Congress expressed its

10
determination that disclosure of any infonnation relating to NSA activities is potentially harmful.
II
Section 6 states unequivocally that, notwithstanding~ other law, NSA cannot be compelled to
12
13 disclose anyinformation with respect to its activities. Further, while in this case the hann would

t4 be very serious, NSA is not required to demonstrate specific harm to national security when

15 invoking.this statutory privilege, but only to show tha~ the infonnation relates to its activities. T
16
invoke this privilege, NSA must demonstrate only that the information to be protected falls
17
within the scope ofsection 6. NSA's functions and activities are therefore protected from
18
19 disclosure regardless of whether or not the information is classified.

20

({J) Information Subject to Claims ofPrivilege

21

27.

22
claims tha~ is subject to the state secrets privilege asserted by the Director ofNational
23

24 Intelligence, and to NSA's statutory privilege which I assert herein, includes the following:9

25

26

9 (U) In addition to asserting-the state secrets privilege with re3pect to the NSA

information described herein, the Director ofNational Intelligence, in his accompanying 27 declaration, also asserts the privilege with respect to specific threat information regarding al

28 · Qaeda and its affiliates.

-

CLASSIFIED DECLARATION Of LT. OEN.

KEITH B. ALBXANDBR, DIRECTOR,

NATIONAL SECURITY AGENCY

CASE NO. C-06-0672-VRW

TOP SECRET//€0M1f~!TSPHORCON/fo

NHMR

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TOP SECRETHCOMIN1-'/TSPHORCON/NOFORN//MR

A.

NSA Sources and Methods at Issue

2

(1)

(2)

3

(3) Meta Data Collection and Analysis

(4) The Terrorist Surveillance Program
4

5

(a) Focus ofthe TSP on al Qaeda Terrorist Targets

6

(b) Importanc.e ofthe TSP

7

B. (e} Information Confirming or Deriying Intelligenc.e Targets

8
28.
9

10 mass·casualty terrorist attacks within the United States, the President has authorized signals

11 intelligence activities designed to detect and prevent such attacks. As discussed in detail below,

12

'n out these activities, the NSA utilizes various sources and methods,

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

The state secrets related to this lawsuit are de~cribed in further detail below. I

28 CLASSIFIED DECLARATION OF LT. GEN. KBl1H B. ALEXANDER, DIRECTOR, NATIONAL SECURITY AGENCY : CASE NO. C-06-0672-VRW
TOP SECRBTJJCOM~JTSPNORCOAA

RN/IMR

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TOP SECRET//COMIJi.f~SPHORCO~YNOFORN/IMR also discuss separately the grave harm to national s~curity that would occur ifthat infonnation

2 were to be disclosed in this litigation.

3 A.

an NSA Sources arid Methods

4

29.

5
ofNSA's classified intelligence activities, including activities authorized by the President and
6

the Foreign Intelligence Surveillance Court and.designed to prevent and detect terrorist attacks
7

s within the United States. To carry out such activities,

as detailed

9 in this declaration. The sources and methods at issue in this litigation are described in further
10
detail below.
11
(1)
12
13
14
15
16
17
18 19
20
21
22
23
24
25
26
27 28
CLASSIFIED DECLARATION OFLT. GEN. . KEITH B. ALBXANDER,DlRECTOR, NATIONAL SECURllYAGENCY
CASE NO. C-06-0672-VRW
TOP SECRETf/-'/TSPHORCON/NOFORN/IMR

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[[Page(s) Redacted]]

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2

3

4

5

6

7

8

37.

9 also puts at issue sources and methods for surveillance activities conducted pursuant to orders of
10 the Foreign Intelligen~ Surveillance Court. For example, Paragraph 38 ofthe Amended
11
Complaint alleges that ''besides actually eavesdropping on specific conversations, NSA
12
13 personnel have intercepted large volumes ofdomestic and international telephone and Internet

14 traffic in search ofpatterns ofinterest, in what has been described in press reports as a large 'da

15 mining' program." Am. Complaint138. Plaintiffi; allege in particular that AT&T has assisted
16
the government in installing "interception devices," "pen registers" and ''trap and·trace" devices
17
in order to "acquire the contentH ofcommunications and receive "dialing, routing, addressing, or
18
19 signaling infonnation." Am. Complaint~ 42-47.

20

38. (fS/ISilfl'SP!IOCINF) Plaintiffs' allegations implicate foreign intelligence

21 collection activities underlaken by NSA after September 11 in addition to the publicly described
22
TSP. Because these activities have not been publicly disclosed or confirmed, infonnation about
23
24 their existence and operational details are especially sensitive. Disclosure of these activities will

25 cause exceptionally grave damage to U.S. national security.

26

39.

27
targeted analysis ofinformation known as ''meta data," which is non-content
28 CLASSlFlED DECLARATION OF LT. GBN. KEITH B. ALEXANDBR, DIRECTOR, NATIONAL SECURITY AGENCY CASE NO. C-06-0672-VRW

TOP SECR£THCOMIN'l-'R'SP/fORCON/NOFORNtlMR

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TOP SEE-'RET//COMIN,_l/TSPl/-ORCOl'l/~IOPOIUi//MR header/router/addressing infonnation for certain comniunications, such as the ~·to," "from," "cc,"

2 and ''bee" lines (as opposed to the body or "re" lines) of a standard email. Pursuant to the FISA 3 Pen Register Order, NSA collects, in bulk, meta data associated with electronic communications
4 5

6

7

8

NSA is authorized by the Foreign Intelligence Surveillance Court to query the archived

9 meta dat~ only using email addresses for which, based on the factual and practical considerations
10 ofeveryday life on which reasonable and prudent persons act, there are facts giving rise to a
II
reasonable, articulable suspicion that the email address is associated with
12

13

14

IS

40. (TS#Sl/ffSPNOCINF) The FISA court authorized bulk collection ofemail meta

16
·.data allows NSA to use critical and unique analytical capabilities to track the contacts
17
fknown terrorists through the use ofhighly sophisticated "contact
18

19

lgoritluns. Contact-chaining queries allow the NSA to identify

20 those Internet-based accounts that have been in contact with known terroris.t accounts; in turn,
21 those contacts can be targeted for immediate query and analysis as new terrorist-associated
22
addresses are identified. This tool hasbeen highly useful in detecting previously.unlmown
23
24 terrorists and unknown terrorist accounts for further surveillance or potential con~ent collection
2s under the TSP.

26

41.

27
that identify the internet protocol ("IP") address from which email accounts have been accessed.
28 CLASSIP!ED DECLARATION OF LT. GEN. KEITH B..ALEXANDBR, DIRECTOR,
NATIONAL SECURI1Y AGENCY CASE NO. C-06-0672-VRW
• • TOP SECRE1Y/COMIN~'/TSP/IDRCffit/NOFORNl/MR

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2 3 4
s·
6 7
8
9 10
11
12
13 14 15 16 17 18
CLASSIFIE!D DECLARATION OF LT. GEN.
KEITH B. AL~ANDBR, DIRECTOR,
NATlONAL SECURITY AGENCY CASE NO. C-06-0672-VRW
T<;>P SECRET//COMIN~'!FSP/1-0RCOJ>llnOFORN//MR

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2

3 4
s

6 7 8

9 lO 11

12
In order to ascertain as rapidly as possible the potenti

14 the United States, NSA must know not only what a foreign terrorist target says in a particular
15 telephone or Internet intercept, but with whom·that person has been communicating.
16
44.
17
the government with "direct access to its databases ofstored telephone and Internet records"
18
19 concerning communications to which Plaintiffs were a party. Am. Complaint ~ S1-52.·
20

21 22 23

24 25 26 27

28 CLASS111IED DECLARATION OF LT. GBN.

KEITH B. ALEXANDER, DIRECTOR,

• NA'flONAL SECURITY AGENCY
CASE NO. C-06-0672-VRW
TOP SBCRET//COM~'/TSP//ORCON/:NOFOR:Nl!MR

•

•

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2

are a1so inaccurate. In particular, Plaintiffs' allegation that NSA

3 intercepts the content ofmillions ofcommunications inside the United States, and seeks to
4 search the content ofthose communications by means ofkey words, is simply wrong. Am.
5

6

7

8

9

10

11

12
13 the content ofan Internet communication under the TSP only ifthere are reasonab1e grounds to

14 believe that such communication originated or tenninated outside the United States and that a

15 party to such communication is a member or agent ofal Qaeda or an affiliated terrorist
16
organization. In addition, NSA's b1:1llc collection ofemail meta data does not collect the content
17
of the communication, and such meta data is collected
18

19

20 Moreover, this email meta data collection and analysis is being undertaken pursuant to an
21 authorization from the Foreign Intelligence Surveillance Court, andNSA is only authorized to
22 ·
query the archived meta data using email addresses for which there are fucts giving rise to a
23
24 reasonable, articulable suspicion that the email address is associated with
As set forth further below, the disclosure of these activities would caus

26 exceptionally grave hann to the national security ofthe United States.
27
(4) lU) The Terrorist Surveillance Program
28 CLASSIFIED DECLARATION OF LT. GEN. KEITH B. ALEXANDER, DIRECTOR, NATIONAL SECURITY AGENCY CASE 1-!0. C-06-0672-VRW
. . 11111 TOP SECRET//COMfN'~'/TSPHORCONINOFORNf/MR

Case4:08-cv-04373-JSW Document224 Filed05/05/14 Page27 of 48
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2

3

Plaintiffii allege in their Amended Complaint that "NSA began

4 a classified surveillance program shortly after September 11, 2001 to intercept the
5
communications within the United States without judicial warrant" Am. Compl. ii 32. Plaintiffs
6
7 cite in particular the President's statements that he authorized "the Program" in 2001 and has
8 continued to re~authorize it. Id. ii 33. The Amended Complaint also refers to statements made

9 by the President and Attorney General concerning the TSP. ·rd. iMf 34~37.
10
47. (TS/ISl/lfSP/fOC/NF) While the existence ofthe TSP is now publicly
11
acknowledged, and some facts about the program have been disclosed, sensitive information
12
13 about the nature, scope, operation, and effectiveness ofthe program remains classified and

14 cannot be disclosed without causing exceptionally grave harm to U.S. national security. This

15 information demonstrates that the TSP is a foreign intelligence collection program focused on
16
dett'.cting and preventing a foreign terrorist threat posed by al Qaeda ahd its affiliates, and does
17
not involve the interception ofcontent ofdomestic communications by U.S. persons that are
18
19 unrelated to al Qaeda and its affiliates, and is an operationally swift and effective foreign

20 intelligence tool.·

21

(a) ®Focus ofthe TSP on al Qaeda Terrorist Targets

22
48. (fSIJSlllTSP.l/OC/NF) NSA action to intercept the content ofcommunications
23

24 under the TSP is triggered by a range offoreign intelligence information obtained or derived

2s from various sources indicating that a particular phone number or email address is reasonably

26 believed by the U.S. Intelligence Community to be associated with a member or agent of al

27
Qaeda or associated terrorist organizations. Professional intelligence officers at NSA undertake

28 CLASSIFIED DECLARATION OF LT. GEN. KEITH B. ALEXANDER, DIRECTOR, NATIONAL SECURITY AGENCY CA.SE NO. C-06-0672-VRW

TOP SECRETHCOMlt

• 'fFSPHORCON~OFORN//MR

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'fOP SECRWfHCOMIN'-ffSPHORCON/NOFORN-h'MR. a careful but expeditious analysis ofthat information to determine whether it would be
2 appropri~te to target a telephone. number or email address under the TSP. No one piece of
3 informati~n or source is relied upon by NSA to make that decision. Rather, NSA decides based 4 on a range of factors whether there are reasonable grounds to believe that a target for interceptio
5
is a member ofagent of al Qaeda or associated terrorist organizations, including whether the
6
target phone number or email address: (1) is reasonably believed by the U.S. Intelligence
7
B Community, based on other authorized collection activities or other law enforcement or
9 intelligence sources, to be used by a member or agent ofal Qaeda or associated terrorist
10
II
12
13
14
15
16
17
18 19
20
21 22
23
24
25 26
27
28 CLASSIFIED DECLARATION OP LT. GEN. KEITH B. ALEXANDER; DIRECTOR, NAtJONALSECURITY AGENCY, CASE NO. C-06-0672-V.RW
• • TOP SECRlITNCOMTN~SPHORCONINOFORl'q/fMR

Case4:08-cv-04373-JSW Document224 Filed05/05/14 Page29 of 48
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2

3

49. (TBllBJ//TSPHOCINF) Once NSA has determined that a target under the TSP is

4 reasonably believed to be,

a member or agent of al Qaeda or as~ociated

5
terrorist organizations, NSA takes steps in the process ofactually intercepting a communication
6

7 to focus the interception on the specific al Qaeda-related t.arget and

8

9

10

11
In addition, NSA collects only those communications as to which it has reasonable
12
13 grounds to believe that (1) one ofthe communicants is a member or agent of al Qaeda or

14 associated terrorist organizations, and (2) the communication being collected is to or.from a

15 foreign country.
16

17·

18

19

20

21

22

23

24

' 25
26

27

28 CLASSIPIED DECLARATION OF LT. GEN. KEITH B. ALEXANDER, DIRECTOR,
NATIONAL SECURITY AGENCY
CASE NO. C-06-0672-VRW
• TOP SECRETNCOMIN~;lfSP/IORCON/NOFOJlW//MR

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2 3 4 5 6
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
52.
23
24 interception process to minimize'the risk that the·Communications ofnon-targets will be 25 intercepted. With respect to the collection oftelephone communications, specific telephone 26 numbers identified through the analysis outlined above
27 28
CLASSIFIED DECLARATION OF LT. OEN. KEITH B. ALEXANDER, DIRECJ'OR, NATIONAL SBCURilY AGENCY CASE NO. C-06-0672-VRW
• • TOP SECRET/JCOMIN,_ITSi?HOR£oN/NOFORN//MR •

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TOP SECR:ETHCOMf~fffSPHOR:CON1'NOFORN'llMR targeted number ofa suspected member or agent ofal Qaeda or associated terrorist organizations

2 is collected. For Internet communications, NSA uses identifying information obtained through

3 its analysis ofthe target, such as email addresses

to target Internet

4 communications ofa suspected member or agent ofal Qaeda or associated terrorist organizations
5

6 7
8

9

53. (TSUSJhlTSPNOC/INF) In addition to procedures designed to ensure that the TSP

10
is limited to the international communications ofal Qaeda members and affiliates, the NSA also
II .
apPlies the existing Legal Compliance and Minimization Procedures applicable to U.S. persons.
12

13

14

15

16

17

18

19

20

21
.In addition, the NSA Office ofthe General Counsel and Inspector
22
General provide continuing oversight over the program.13
23

24

25

26

13 (U) In addition, Congress recently authorized subcommittees ofthe House and Senate

27 Select Committees on Intelligence to undertake oversight responsibilities for the TSP, and these subcommittees have commenced their review functions.

28 CLASSIFIED DECLARATION OF LT. GEN. KEITH B. ALEXANDER, DIRECTOR, NATCONAL SECURITY AGENCY CASE NO. C-06-0672-VRW

TOP SBCRETHCOMH·of'--IFSPh'ORCONft- R:NHMR

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TOP S"ECRETl/COM1N 1-'/'FSPf/OR:CON'~OFrnUU/M.R
54. (1'S//Sll/TSPllOCl/NF) Second, NSA minimization procedures also require that
2 NSA refrain from intentionally ~uiring the communications ofU.S. persons who are not the
3 targets ofits surveillance activities, that it destroy upon recognition any communications it 4 acquires inadvertently that are solely between persons in the U.S., and that it refrain from
s
identifying U.S. persons in its reports unless a senior NSA official determines that th~ recipient
6
ofthe report requires such infonnatton in order to perfonn. a lawful function assigned to it, and
7
a the identity ofthe U.S. person is necessary to understand the foreign intelligence or to ~ssess its
9 significance.
10
II
12
13
14
IS
16
17
18
19
20
21
22
23
24
25 26
27 28
CLASSIPIBD DECLARATION OP LT. GBN. · KE!ITH B. ALEXANDBR, DIRECTOR, NATIONAL SECURITY AGENCY CASE NO. C-06-0672-VRW
- TOP. SECRETHCOMIN~trSPHORCffil/NOFORNllMR

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TOP SECRET//COM~R'SP//ORCON"fNOFORNl/MR (b) ffSHB -'ffSPh'OCINFl Importance ofthe TSP and Meta Data
Analysis ,
2
56. (l'S//Slffl'SPll-Oo/NF) The TSP is designed to address an urgent need for NSA to
3
react with operational swiftness to meet the severity ofthe al Qaeda threat to the United States.
4
5 By utilizing meta data and contact c h a i n i n - e s c r i b e d above, the NSA can

6 quickly search for multiple terrorist related collaborators at the same time and analyze those

7 targets quickly for interception under the TSP. This process greatly enhances the speed and
8
flexibility ofthe government's efforts to find-enemy operatives in the United States and to obtain
9
10 actionable intelligence. In some cases, NSA can begin collection on a target ph~ne numb

11

to begin collection on a targeted phone

12 number or address.
13
57. (f8NSl//TSPNOC~ The TSP provides NSA far greater operational swiftness
14
and effectiveness than under current procedures for obtaining a~thorization for surveillance
15
16 under the Foreign ~telligence Surveillance Acl To the extent individual ~arrant applications
11 are required for individual targets under current PISA procedures, NSA would be unable to
18 obtain authorization in time to immediately collectoperational information sent to and.from new
19
phone numbers or Internet accounts, and valuable intelligence would be lost.
20

21 22 23
24

25

26 27

28· CLASSIFIED DECLARA110N OFLT. OEN. KEITH B. ALEXANDER. DIREC1UR. NATIONAL SECURITY AGENCY CASE NO. C.06-0672-VRW
• TOP SECRBT/ICOMFN~'fFSPl/ORCONffqOFORN//MR

Case4:08-cv-04373-JSW Document224 Filed05/05/14 Page34 of 48
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2 3 4 5
6
in conjunction with meta data collection and analysis, allows NSA to obtain rapidly not only the
7
s content of a particular communication, but connections between that target and other possible

9 targets who may form a web of

nspirators. Indeed, because bulk meta data is

IO archived, NSA may search to detennine theprior contacts of

and gain a

11
historical, as well as forward-looking perspective on potential threats. Where the gravest of
12

13 dangers are at stake-a catastrophic mass casualty terrorist attack against the U.S. Homelan·d-it

14 is vital that NSA obtain as broad a picture ofterrorist communications as rapidly as possible in

15 order to identify other targets based on new information. The TSP, in conjunction with meta.
16
data analysis, allpws NSA this capability.
17
58. (TSJ/Bl//TSP//-OCINF) A few success stories may help illustrate the point. The
18
19 TSP and meta data collection activities have led to the development by N~A of actionable

20 intelligence, much·ofwhich could not have been obtained by other means, and much of which 21 has led to important and specific counter-terrorism efforts. Examples include the following:
22
23

24
25
26
27
28 CLASSIFIED DECLARATION OF LT. OEN. KEITif B. ALEXANDER, DIRECTOR, NATIONAL SECURlTY AGHNCY CASE NO. C-06-0672-VRW
'fOP SBCRB'fl~ffSl'flO~llMR-

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2 3
4 5
6
7
8 9 10 11 12 13 \4 15 16 17 18 19 20 21 22
CLASSIFIED DECLARATION OF LT. GBN.
KEITH B. ALEXANDER, DIRECfOR,
NATIONAL SECURITY AGENCY CASE NO. C-06-0672-VRW
TOP Sf!€RET//OO~SPilORCON!NiORN//Ma

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2 3 4
5
6 7 8 9 10 It 12 13 14 IS 16 17 18 19
20
21
22
23
24
59. (TS//SWNF) The capability provid~d by theTSP and meta data analysis may also
28 CLASSIPIED DECLARATION OP LT. GBN, KBITH B. ALEXANDER, DIRECTOR, NATIONAL SECURITY AGENCY CASE NO. C-06-0672-VRW
- TOP SECRETNCOMRff~SP//ORCONtNOFOR?~HMR

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TOP SECRETllCOM~'ITSPHOIWONfNO.FORNHMR
be illustrated by an ·example ofwhen this tool was not utilized. According to the 911°1

2 Commission report, when Khalid al-Mihdhar, one of the 9/11 hijackers, was in the United States
3 from January 2000 to June 2001, he telephoned the home ofhis wife's family in Yemen. The
4 phone number for this home in Y~en had well-established terrorist connections14 and was
5
being targeted by NSA through an overseas collection process that did not have the capability to
6
1 obtain me~-data to help identify the location ofincoming calls. At the time, there was no PISA
s collection on this number, and neither the TSP program, under which NSA targets "one-end"

9 foreign calls into the United States, nor collection ofbulk meta data that would have allowed

·10. analysis oftbis number to ascertain other contact numbers, were in place. Had the Yemeni

11
phone number been tarpeted using the TSP and meta data analysis, we should ~ave been able to
12

13 collect al-Mihdhaes one.end·U.S. calls from the U.S. to Yemen, and their interception would

.

.

14 have provided leads for the FBI·and CIA to investigate the matter further. Indeed, the 9/11

.

.

15 Commission report noted that if_the FBI had known that al Mihdhar was in the United Stat~.

16
''inv~tigations orinterrogation of [al Mihdhar], and investigation of[his] travel and financial
17
activities could have yielded evidence ofconnections to other participants in the 9/11 plot. The
18

19 simple fact of [his] detention could have derailed the plan. In any case, the opportunity did not

20 arise." Final Report ofthe National Commission on Terrorist Attacks Upon the United States

21

.

.

("9/11 CommissionReport") at 272. While there is an element ofhindsight to this example, and

22
perhaps other actions could have detected al Mihdhar, the existence ofthe TSP one-end
23

24 collection and meta data analysis would have provided a highly significant tool that may have

25
14 (1'8/JSIHNF) In August 1998, the nwnber was found in the pocket ofone ofthe

26 W.d b K

Eb b b

h ha eel .I . It II

• I ~I. I • I

. • f . ; fl I .

27

28 CLASSIPIEO DBCLARA'l'JON OP L'f. GBN. K.ElTH B. ALBXANDER, DJRECTOR. NATfONAL SECURITY AGENCY
- CASENO. C-06-0672-VRW TOP SECRETNCOMIN l~TSPh'ORCffii/NOFOR:NHMR
..

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TOP SECRETHCOMIN~ITSPHOR€0Nlt•OFORNlfM:R

proved most valuable in detecting the 9/11 plot.

·

2

60. (TS/ISll/TSPl/-OCIN.F) The foregoing discussion ofthe TSP, in particular its

3 vital connection to meta data collection and analysis, are important to understanding the need for

4 and highly targeted nature ofthis method for detecting and preventing for~ign terrorist threats.
5
Based on my extensive military career and my role as the Director of the NSA, I believe that the
6
NSA activities discussed herein are among the most important intelligence tools available to the
7
s United States for protecting the homeland from another catastrophic terrorist attack. In my view,

9 NSA could not have obtained critical intelligence that has been necessary to protect the Nation in
any 10 other way. These NSA activities have given the United States unparalleled ability to
11
understand the interconnected groups and agents that al Qaedahas become. They also have
12
13 allowed us to identify and track terrorists

14

However, while.essential to understanding the program, disclosure

15 ofthis information would reveal sensitive and classified state secrets and, as set forth below,

16

.

.

would cause exceptionally·grave harm to the national security ofthe United States.

17

B.
18

f€} Information Confirming or Denying Intelliunce Targets

19

61 . (TS//SJffFSPIJOC/NFj The four Plaintiffs in this case-Tash ~epting, Gregory

20 Hicks, Carolyn Jewel, and Erik l(nutzen-have alleged that"AT&T bas assisted NSA in .
2l intercepting their individual communications. Specifically, the named Plaintiffs allege that the
22
content oftheir telephone and·Internet communications and information related, to those
23
24 communications are being intercepted, disclosed, diwlged, and/or used without judicial or other
25 lawful authorization. See, e.g., Am. Compl. iMI 32-41; 47; 52; 64; 80"81; 92-93; 101-07; 112-16;
26
27
28 CT.ASSll'IBD DECLARATION OF LT. GEN. KEITH B. ALEXANDER, DlRECTOR, NATIONAL SECURITY AGENCY CASE NO. C--06-0672-VRW
• • TOP 8BCRETHCO~r~·rrsP/tORCONIHOFOR:N//~

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·2

3 4

5 6
7

8
I\.
9

10

t I

12

13.

62.

-teIHaan to National Security from Disclosure

14 facts, and issues raised by this case, it is my judgment that disclosure ofthe infonnation

ts described above during the course ofthis litigation would cause exceptionally grave damage to
16
the national security ofthe United.States. I have personally reviewed the information upon
17
which this ~eclaration is based and I also assert NSA's statutory privileges to protect that
18
19 infonnation. Disclosure ofthe information described herein will harm national security ~y:

20

A.

Revealing the sources and methods

21

concerning NSA intelligence-gathering .activities, including by:

22

•

23

24

25

26

27

• · Revealin th

d hd

including

28 CLASSIFIED DECLARATION OF LT. GEN.
KEITH B. ALEXANDER, DIRECTOR.,
NATIONAL SECURITY AGENCY
CASE NO. C-06-0672-VRW

TOP SECRETNCOM~'ffSPifORCON/r~/Mll

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0R:€0Ni1NOFORNHMR

aswell~ed

or e purpose o etec ng an p r e v e n t i n g -

2

attacks, such as the TSP and meta data collection~

~abling any foreign adversary, includin~

3

- t o compromise, detect, and evade NSA surveillance.

4

• Revealing infonnation regarding the success ofNSA activities

5

implicated by this c~e, which would disclose the substantive

knowledge of the United States Goverrunent as to terrorist plans

6

and activities, and also could tend to reveal the sources and

mefuods by which the United States obtained such infonnation.15
7

8

B. (T8N81/JTSP/JOC/NF) Revealing infonnation regarding who is or is not

targeted for surveillance by the NSA, or the basis ! I I t t _.!

9

t d th reby allowing any foreign adversary,

10

. .to compromise, detect, or evade U.S. surveillance operations.

11
The harm that would be caused by the disclosure of the infonnation in each category at
12
issue is described further below. It is especially important to note that even bits of information
13
14 or seemingly innocuous·facts can, in the context ofthis case or in conjunction with unclassified

15 information, reveal a fuller picture ofhighly classified government activities and cause severe

16 bann to national security interests.

17
A.
18

fTSf/Sf) Harm ofDisclosing NSA Sources and Methods

19

20

21

22

23

24

25

26

15 ~ AB noted, the Director ofNational Intelligence has also asserted the state secrets

27

privilege with respect to intelligence information demonstrating the serious threat ofcontinued terrorist attacks by the al Qaeda terrorist network. See Declaration of John D. Negroponte.

28 CLASSIFIED DE!CLARATION OF LT. OBN.
KBITii B. ALEXANDER, UIRECTOR,
NATIONAL SECURITY AGENCY
CASE NO. C-06-0672-VRW

. . 1111 TOP 8BCRBT/ICOMIN1-/FSPHORCON/NOFORNNMR

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[[Page(s) Redacted]]

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2

3

4

5

6

7

8

(3) fTSNSll/TSPNOC!NFl Harm ofDisclosing Meta Data Collection and Analysis

9

10

70. (TSN8Ilff8Ph'OC/NF) Disclosure ofNSA activities to collect and analyze meta

11 data, including that the Foreign Intelligence Surveillance Court has authorized Internet meta data
12
collection, would cause exceptionally grave damage to the national security ofthe United States.
13
NSA's collection·of communications meta data is a vital tool for quickly assessing contacts ~d
14
15 communications made by individuals susp~ted of a terrorist connection-information that ma~
16 be far more useful than intercepting·the contents ofparticular conununications. The

17 sophisticated algorithms NSA uses to conduct contact chaining

can, if

18
employed on a sufficient volume ofraw data, identify many telephone numbers, electronic
19
ad~esses, and communications that are ofinterest for intelligence purposes. Meta data
20

2 1 collection enables NSA to segregate some ofthat very small amount ofotherwise undetectable

22 but highly valuable infonnation froin the overwhelming amount ofother infonnation that has no
23 intelligence value whatsoever-in colloquial terms, to find at least some of the needles hidden in
24

25

26

27

28 CLASSIFIED DBCLARATIO'N OF LT. OBN. KBlTH B. ALBXANDBR, DIRECTOR, NATIONAL SBCUR11Y AGENCY CASE NO. C-C6-0672-VRW
- TOP SE€RBTNCOMIN~fFSPi'iDRCONINOFORNHMR

Case4:08-cv-04373-JSW Document224 Filed05/05/14 Page43 of 48
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2

3

4

to these critical intelligence capabilities and thereby severely

5
undennine NSA's ability to gather infonnation concerning terrorist connections.
6

7

(4) lel Harm ofDisclosing Sources and Methods for TSP

8

71. (TSl/Sl/ffSPHOC/NF) Disclosure of classified information about the Terrorist

9 Surveillance Program would also reveal to hostile foreign adversaries specific intel1igence

10

.

sources and methods by which NSA conducts this surveillance, thereby providing key i~sights to

l l
fC?reign adversaries as to whether and how NSA is monitoring communications. Information
12

13 about the specificforeign intelligence factors that trigger in~erception under the TSP.would

14 obviously reveal to foreign adversaries the very facts that would most likely lead to their

IS communications being intercepted, thereby giving them~ roadmap as to how to avoid such
16

17

18

19

20 Likewise, disclosure ofNSA's methodology ofidentifying and selecting certain phone numbers

21 or hiternet information would readily confinn to our adversaries key information that could be

22
used by those adversaries to avoid interception.
23

24

72. (fSl/Sllfl'SPNOC/Mi') Similarly, information about the speed and agility with

2s which NSA can collect contenton a target, and how long it might maintain surveillance, would

26 provide invaluableinsights for an adversary to devise new and different ways to protect their
27
communications. In particular, disclosure ofNSA's ability to utilize TSP in conjunction with
28 CLASS!FlBO DECLARATlON OF LT. GEN. KEITH B. ALEXANDER, DIRECTOR, NATlONAL SECUlUTY AGENCY
• CASE NO. C-06-0672-VRW TOP SECRETHCOM~'ffSP1/0'RCON/NOPORN/1MR:1
•

Case4:08-cv-04373-JSW Document224 Filed05/05/14 Page44 of 48
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contact chaining

o determine with whom al Qaeda targets are

2 communicating would severelyundennine efforts to detect terrorist activities. Armed with this

3 knowledge, an adversary could make more robust use
4
s

6
Compromising NSA's methods ofsurveillance, such as
7
8 the TSP, can easily lead to the use ofalternatives that deprive U.S. decision-makers ofcritical

9 information needed to detect al Qaeda terrorist threats.

10
73. (TSNSllffSP//OCfNF) Disclosure ofthe success ofNSA activities implicated by
11
this case-which further demonstrate the compelling need for this program-would also
12
13 severely hann U.S. national security interests. Information about any ofthe successes ofNSA

14 activities would not only be revealing ofthe substantive knowledge ofthe United States

to 15 Government as terrorist plans and activities, but would also tend to reveal or confirm to all of

16
our foreign adversaries the sources and methods by which the United States obtained such
17
infonnation, including the sources and methods ofthe TSP and meta data analysis.
I&

t9 B.

(€) Hann of Disclosing Inf~ation Confirming or Denying Intelligence Targets

20 21

22
First, as a matter ofcourse. NSA cannot
23
24 publicly confitm or deny whether any individual is subject to the surveillance activities descnbe
2s herein, because to dos~ would tend to reveal actual targets. For example, ifNSA were to

26 confinn in this case and others that specific individuals are not targets ofsurveillance, but later
27
refuse to comment (as it would have to) in a case involving an actual target, a person could easil

CLASSIFIED DECLARATION OF LT. GEN.

KEITH B. ALBXANDER, DIRECTOR,

- NATIONAL SECURITY AGENCY
CASENO. C-06-0672-VRW
TOP SECRETh'COMR'~ -'ff8P#ORCONINOFORNNMR

.

.

Case4:08-cv-04373-JSW Document224 Filed05/05/14 Page45 of 48
Approved for public release May 5, 2014
TOP SECRET/ICOMJN'-/fFSP//OR:CON/NOFORN//MR deduce by comparing such responses that the person in the latter case is a target. The hann of
2 revealing targets offoreign intelligence swveillance is obvious. If an individual knows or
3 .suspects he is.a target ofU.S. intelligence activities, he would naturally tend to alter his behavior 4 to take new precautions against surveillanoo. Moreover, others might be able to draw
5
conclusions from the fact that certain people are, and certain people are not, targets of
6
7
8
9
10
II
12
13
14
15
16
17
18
19
20
21
Disclosing any ofthis information
22
would reveal some ofthe Nation's most sensitive and important intelligence-gatheringmeth<?ds ·
23
24 and, for reasons already discussed above, would cause exceptionally grave damage to the 25 national security by allowing al Qaeda and its affiliates to evade detection (as w~ll as alerting
26 ~other foreign adversaries to these critical intelligence-gathering methods).
27
28
CLASSIFIED DECLARATJON OF LT. GEN. KEITH B. ALEXANDER, DIRECTOR, NATIONALSECURilY AGENCY CASE NO. C-06-0672-VRW
• TOP SECRE'fH€0MIN~'ffSPh'ORCOlffl<lOFORN/fMR:

Case4:08-cv-04373-JSW Document224 Filed05/05/14 Page46 of 48
Approved for public release May 5, 2014

TOP S£CRET//€0MFN1-//TSP//OR£0NINOFORNHMR (U) Risk of Allowing Litigation to Proceed

2

76.

3 and issues raised by this case; it is my judgment that sensitive state secrets are so central to the

4 subject matter ofthe litigation that any attempt to proceed will substantially risk the disclosure o
s
the privileged state secrets described above.
6

7

8

10

II

12

13

77.

..

14 a no~-classified fashion could be revealing ofclassified details that should not be disclosed.

IS

16

17

18
19 exampleofhow some limited, non-classified information, combined with ignorance ofthe true

20 facts, can be used to speculate about, and risk the disclosure of, classified activities
21

22
23 24
25 adversaries with expertise in the area, a

tend to reveal, particularly to foreign ofU.S. intelligence gathering

26 sources and methods.
27
78. zg
CLASSIFIED DECLARATION OF LT. GBN. KEITH B, ALBXANDBR, DIRECTOR, NATIONAL SECURJTY'AGENCY CASE NO. C-06-0672-VRW
•• TOP SECRET//COMINT-'FFSPHORCONfNOFORNHMR

Case4:08-cv-04373-JSW Document224 Filed05/05/14 Page47 of 48
Approved for public release May 5, 2014

2

3

4

<ID Suromarv and Conclusion

5
79. (TSHSil/NF) The United States has an overwhelming interest in detecting and
6

7 thwarting further mass casualty attacks by al Qaeda. The United States has already suffered one

8 attack that killed thousands, disrupted the Nation's financial center for days, and successfully

9 struck at the command and control center.for the nation's military. Al Qaeda continues to

10

possess

'
the

ability

and

.clear,

stated

intent

to

carry

out

a

massive

attack

in

the

United

States

that

II
could result in a significant loss oflife, as well as have a devastating impact on the U.S.
12

13 economy. According to the most recent intelligence analysis, attacking the U.S. Homeland

14 remains one of Al Qaeda's top operational priorities, see Declaration ofJohn D. Negroponte,

IS DNI, and al Qaeda will keep trying for high-impact attacks as long as its central command
16
structure is functioning and affiliated groups are capable offurthering its interests.
17

18

19

20

One ofthe greatest challenges the United States confronts in the ongoing

21 effort to prevent another ca~trophic terrorist attack against the homeland is the critical need t~.
22
follow-up on new leads quickly. Time is ofthe essenee in preventing terrorist attacks, and the
23
24 government faces significant obstacles in finding and 1racking agents of al Qaeda as they

25 manip'11ate modern technology in an attempt to communicate while remaining undetected.

26 Speed and flexibility are essential in tracking individuals
27

28 CLASSlFIBD DECLARATION OP LT. GEN. KEITH B. ALEXANDER. DIRECTOR,
NATIONALSECURITY AGENCY
- CASE NO. C-06-0672-VRW TOP SECR:ET//COMIN~SPIK>RCC»~lOFORl'WMR
.

Case4:08-cv-04373-JSW Document224 Filed05/05/14 Page48 of 48
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2 tnu1s effectively, and to respond to new leads, it is vital for the U.S. Intelligence Community to

3 be able to quickly and efficiently acq~ire communications to or from individuals reasonably

4 believed to be a member or agent ofal Qaeda and associated terrorist organizations. The NSA

5
activities described herein are vital tools in this effort.
6

7

81. (TSNSlllNF!) For tlie foregoing reasons, in my judgment the disclosure ofthe

s infonnation at issue in this lawsuit would cause exceptionally grave damage to the national

9 security ofthe United States. In addition to upholding the state secrets privilege and statutory·
10 privilege asserti~ns by the Director ofNational Intelligence in this case, I request that the Court
11
also ilphold my assertion ofNSA•s statutory privilege to protect infonnation about NSA
12
13 activities. Finally, it is my view that continued litigation ofthis lawsuit, which directly puts at

14 issue highly classified NSA intelligence activities for the detection and targeting of al Qaeda

15 terrorist operations, would risk the disclosure ofsensitive classi:fied_infonnation and,

16
accordingly, that the Court should not only protect from disclomire the classified information
17
descn'beci herein but dismiss this lawsuit.
18

19

I declare under penalty ofperjury that the·foregoing is true and corr~t.

20

Mg /2 21 DATE:

dk

22

23
Direct.or, National Security Agency
24

25

26

27

28
CLASSIFJBD DECLARATION OF LT. GEN.
KBITH B. ALBXANDBR, DIRECTOR,
NATIONALSBCURl1Y AGENCY CASE NO. C-06-0672-VRW
- TOP SECRET/fCOM~L/TSPHORCON/NOFORNHMR

 Case4:08-cv-04373-JSW Document226 Filed05/05/14 Page1 of 2
Approved for public release May 5, 2014

'fOP SECRE'THC v

COM/NOFORNIMR

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3 TASH HEPTING, GREGORY HICKS,

4

CAROLYN JEWEL, and ERIK KNUTZEN On BehalfofThemselves and All Others

s Similarly Situated,

6

Plaintiffs,

7

v.

8
AT&T CORP., AT&T INC., and 9 DOES 1-20, inclusive,

10
Defendants.
II

)

)

) Case No. C-06-0672-VRW

)

)

CLASSIFJED DECLARATION OF

)

WILLIAM B. BLACK, ACTING

) DIRECTOR, NATIONAL

)

SECURITY AGENCY

)

)

SUBMITTED IN CAMERA,

) EXPARTE

)

) Hon. Vaughn R. Walker

12

IN CAMERA, EXPARTE DECLARATION OF WILLIAM B. BLACK, ACTING

13

DIRECTOR, NATIONAL SECURITY AGENCY.

14

I, William B. Black, do hereby state and declare as follows:

15

(U) INTRODUCTION

16
1. -{Ery I am the Deputy Director ofthe National Security Agency (NSA), an intelligenc
17
agency within the United States Department ofDefense (DoD). Pursuant to the NSA's Order of
18
19 Succession, I am also currently the Acting Director because the Director is outside the United

20 States. As Acting Director, I am responsible for directing the NSA, overseeing the operations

21 undertaken to carry out its mission and, by specific charge ofthe President and the Director of ·
22
National Intelligence, protecting NSA activities and intelligence sources and methods. I have been
23
designated an original TOP SECRET classification authority under Executive Order No. 12958, as
24
25 amended. In the course ofmy official duties, I have been informed al:iout this lawsuit, the issues

26 raised by the Plaintiffs' claims and new facts relevant to this lawsuit.1
27

28
1 .-(STPursuant to the standards in Executive Order No. 12958, as amended by Executive
CLASSIFIED SUPPLEMENTAL DECLARATION OF WILLIAM B. BLACK, ACTlNG DIRECTOR, NATIONAL SECURITY AGENCY, CASE NO. C-06-0672-VRW

-TOP SECRET/ICOMRff

RCON/NOFORWMR

Case4:08-cv-04373-JSW Document226 Filed05/05/14 Page2 of 2
Approved for public release May 5, 2014

9RCON/NOFORN/MR

2.

J.-H-~~In a supp emental in camera, exparte declaration

2 dated Jwie 16, 2006, the Director·ofNational futelligence, John D. Negroponte, has asserted the

3 military and state secrets privilege and a statutory privilege over new facts related to a May 24,
4 2006 Order ofthe Foreign ~telligence Surveillance Court (FISC).
s

6

7

I have reviewed the FISC's Order and Director Negroponte's supplemental

8 declaration, and I agree with Director Negroponte that the disclosure of information related to the

9 FISC's Order would cause exceptionally grave damage to t~e national security. I also note that the
10
FISC has prohibited the disclosure of infonnation related to the Order except pursuant to narrow
11
exceptions not applicable here. Accordingly, I support Director Negroponte's privilege assertions
12
13 · and likewise assert the NSA's statutory privilege, set forth in section 6 ofthe National Seeurity

14 Agency Act of 1959, Public Law No. 86-36 (codified as a note to 50 USC. § 402), over the same

15 information.
16

17
I declare under penalty ofperjury that the fo
18

19 DATE: /JJ;i' OIP
20
21

Acting Director, National Security Agency

22

. 23

24

25

26

27 Order No. 13292, this declaration is classified as: TOP SECRET//COM~

·

28

~~Pa //y OR1C2O, 2N0/06NJOn FCaOmReNra., ETx hPeardteetaDilescclaornactieornniongfKtheeisthe

classification B. Alexander

markings Director

are set forth National

Security Agency ("In Camera Alexander Deel."), at tt 5-8.

'

'

CLASSIFIED SuPPLEMENTAL DECLARATION OF WILLIAM B. BLACK,

ACTING DIRECTOR, NATIONAL SECURITY AGBNCY, CASE NO. C·06·0672·VRW

TOP SEGRET//COMINT-SRCON/NOFORN/MR
2

 ELECTRONIC FRONTIER FOUNDATION CINDY COHN (145997) 2 cindy@eff.org LEE TIEN (148216) 3 tien@eff.org KURT OPSAHL (191303) 4 kurt@eff.org KEVIN S. BANKSTON (217026) 5 bankston@eff.org CORYNNE MCSHERRY (221504) 6 corynne@eff.org JAMES S. TYRE (083117) 7 jstyre@eff.org 454 Shotwell Street 8 San Francisco, CA 94110 Telephone: 415/436-9333 9 415/436-9993 (fax)
10 TRABER & VOORHEES BERT VOORHEES (137623)
11 bv@tvlegal.com THERESA M. TRABER (116305)
12 tmt@tvlegaLcom 128 North Fair Oaks Avenue, Suite 204
13 Pasadena, CA 91103 Telephone: 626/585-9611
14 626/577-7079 (fax) Attorneys for Plaintiffs
15 [Additional counsel appear following the signature page.]
16

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19

TASH HEPTING, GREGORY HICKS,

) No. C-06-0672-VRW

20 CAROLYN JEWEL and ERIK KNUTZEN on )

Behalf of Themselves and All Others Similarly) CLASS ACifON

21 Situated,

)

) DECLARATION OF MARK KLEIN IN

22

Plaintiffs,

) SUPPORT OF PLAINTIFFS' MOTION FOR

23

VS.

) PRELIMINARY INJUNCTION
)

) Date: June 8, 2006

24 AT&T CORP., AT&T INC. and DOES 1-20, ) Time: 2:00 p.m.

inclusive, 25

Defendants.

) ) )

Court: Courtroom 6, 17th Floor Judge: The Hon. Vaughn R. Walker,

26

)

Chief United States District Judge

27

28

FILED UNDER SEAL PURSUANT TO CIVIL LOCAL RULE 79-S

DECLARATION OF MARK KLEIN

C-06-0672-VRW

-l -

I, Mark Klein, declare under penalty of perjury that the following is true and cotTect:

2

I. I am submitting this Declaration in support of Plaintiffs' Motion for a

3 Preliminary Injunction. I have personal knowledge of the facts stated herein, unless stated

4 on information and belief, and if called upon to testify to those facts I could and would

5 competently do so.

6

2. For over 22 years I worked as a technician for AT&T Corporation ("AT&T"),

7 first in New York and then in California: I started working for AT&T in November 1981 as

8 a Communications Technician.

9

3. From January 1998 to October 2003, I worked as a Computer Network

10 Associate III at an AT&T facility on Geary Street in San Francisco, CA.

11

4. From October 2003 to May 2004 I worked as a Communications Technician at

12 an AT&T facility at 611 Folsom St., San Francisco, CA (the "Folsom Street Facility'').

13

5. Previously, I worked as an AT&T Communications Technician from

14 November 1981 to January 1998. I was assigned to AT&T facilities in New York, New

15 York (November 1981 to December 1990), White Plains, NY (December 1990 to March 16 1991), Pleasanton, CA (March 1991 to May 1993 and March 1994 to January 1998) and

17 Point Reyes, CA (June 1993 to March 1994).

18

6. I retired from AT&T in May 2004.

19

7. AT&T Corp. (now a subsidiary of AT&T Inc.) maintains domestic

20 telecommunications facilities over which millions of Americans' telephone and Internet 21 communications pass every day. These facilities allow for the transmission of interstate or 22 foreign electronic voice and data communications by the aid of wire, fiber optic cable, or

23 other like connection between the point of origin and the point of reception.

24

8. Between 1998 and 2003 I worked in an AT&T office located on Geary Street

25 in San Francisco as one of six Computer Network Associates in the office. The site manager 26 was a management-level technician with the title of Field Support Specialist (hereinafter

27 referred to as FSS #1). Two other FSS people (FSS #2 and FSS #3) also operated from this 28

DECLARATION OF MARK KLEIN

C-06-0672-VR W

- 2-

office.

2

9. During my service at the Geary Street facility, the office provided WorldNet

3 Internet service, international and domestic Voice Over IP (voice communications

4 transmitted over the Internet), and data transport service to the Asia/Pacific region.

5

l 0. While I worked in the Geary Street facility in 2002, FSS # l told me to expect a

6 visit from a National Security Agency ("NSA") agent. I and other technicians also received

7 an email from higher management advising us of the pending visit, and the email explicitly

8 mentioned the NSA. FSS # l told me the NSA agent was to interview FSS #2 for a special

9 job. The NSA agent came and met with FSS #2. FSS #l later confirmed to me that FSS #2

10 was working on the special job, and that it was at the Folsom Street Facility.

ll

11. In January 2003, I, along with others, toured the Folsom Street Facility. The

12 Folsom Street Facility consists of three floors of a building that was then operated by SBC

13 Communications, Inc. (now known as AT&T Inc.).

14

12. While on the January 2003 tour, I saw a new room being built adjacent to the

15 4ESS switch room. The new room was near completion. I saw a workman apparently

16 working on the door lock for the room. I later learned that this new room being built was

17 referred to in AT&T documents as the "SG3 Secure Room" (hereinafter the "SG3 Secure

18 Room"). The SG3 Secure Room was room number 641A, and measures approximately 24

19 by 48 feet.

20

13. The 4ESS switch room is a room that contains a 4ESS switch, a type of

21 electronic switching system that is used to direct long-distance telephone communications.

22 AT&T uses the 4ESS switch in this room to route the public's telephone calls that transit 23 through the Folsom Street Facility.

24

14. FSS #2, the management-level technician whom the NSA cleared and

25 approved for the special job referenced above, was the person working to install equipment 26 in the SG3 Secure Room.

27

15. In October 2003, the company transferred me to the AT&T Folsom Street

28 Facility to oversee the WorldNet Internet room, as a Communications Technician.

DECLARATION OF MARK KLElN

C-06-0672-VRW

- 3-

16. ln the Fall of2003, FSS #l told me that another NSA agent would again visit

2 our office at Geary Street to talk to FSS #l in order to get the latter's evaluation ofFSS #3 's

3 suitability to perform the special job that FSS #2 had been doing. The NSA agent did come

4 and speak to FSS #l. By January2004, FSS #3 had taken over the special job as FSS #2 was

5 forced to leave the company in a downsizing.

6

17. The regular AT&T technician workforce was not allowed in the SG3 Secure

7 Room. To my knowledge, only employees cleared by the NSA were permitted to enter the

8 SG3 Secure Room. To gain entry to the SG3 Secure Room required both a physical key for

9 the cylinder lock and a combination code number to be entered into an electronic keypad on

10 the door. To my knowledge, only FSS #2, and later FSS #3, had both the key and the

ll combination code. Regular technicians, including myself, had keys to every other door in

12 the facility because we were often there working alone. We were not given either a key or

l3 the combination code for the SG3 Secure Room. On one occasion, when FSS #3 was

14 retrieving a circuit card for me from the SG3 Secure Room, he invited me into the room with

15 him for a couple of minutes while he retrieved the circuit card from a storage cabinet and

16 showed me some poorly installed cable.

17

18. The extremely limited access to the SG3 Secure Room was highlighted by one

18 incident in 2003. FSS # l told me that the large industrial air conditioner in the SG3 Secure

19 Room was leaking water through the floor and onto SBC's equipment downstairs, but

20 FSS #2 was not immediately available to provide servicing, and the regular technicians had

21 no access, so the semi-emergency continued for some days until FSS #2 arrived.

22

19. AT&T provides dial-up and DSL lntemet services to its customers through its

23 WorldNet service. The WorldNet Internet room included large routers, racks of modems for

24 AT&T customers' WorldNet dial-in services, and other teleconununications equipment. The

25 equipment in the WorldNet Internet room was used to direct emails, web browsing requests

26 and other electronic communications sent to or from the customers of AT&T's WorldNet

27 lnternet service.

28

20. In the course of my employment, I was responsible for troubleshooting

DECLARATION OF MARK KLEIN C-06-0672-VRW

-4-

problems on the fiber optic circuits and installing new fiber optic circuits.

2

21. The fiber optic cables used by AT&T typically consist of up to 96 optical

3 fibers, which are flexible thin glass fibers capable of transmitting communications through

4 light signals.

5

22. Within the WorldNet Internet room, high speed tiber optic circuits connect to

6 routers for AT&T's WorldNet Internet service and are part of the AT&T WorldNet's

7 "Common Backbone" (CBB). The CBB comprises a number of major hub facilities, such as

8 the Folsom Street Facility, connected by a mesh of high-speed (OC3, OC 12, OC48 and some

9 even higher speed) optical circuits.

10

23. Unlike traditional copper wire circuits, which emit electromagnetic fields that

11 can be tapped into without disturbing the circuits, fiber optic circuits do not "leak" their light

12 signals. In order to monitor such communications, one has to physically cut into the fiber

13 and divert a portion of the light signal to access the information.

14

24. A fiber optic circuit can be split using splitting equipment to divide the light

15 signal and to divert a portion of the signal into each of two fiber optic cables. While both

16 signals will have a reduced signal strength, after the split both signals still contain the same

17 information, effectively duplicating the communications that pass through the splitter.

18

25. In the course of my employment, I reviewed two "Cut-In and Test Procedure"

19 documents dated January 13, 2003 and January 24, 2003, which instructed technicians on

20 how to connect the already in-service circuits to a "splitter cabinet," which diverted light

21 signals from the WorldNet Internet service's fiber optical circuits to the SG3 Secure Room.

22

26. A true and correct copy of the "Cut-In and Test Procedure" documents are

23 attached hereto as Exhibits A and B. Exhibit A is the January 13, 2003 document, and

24 Exhibit B is the January 24,2003 document.

25

27. The light signals from the WorldNet Internet service's optical circuits were

26 split, with a portion of the light signal going through fiber optic cables into the SG3 Secure

27 Room. The AT&T location code of the "splitter cabinet" is 070177.04, which denotes the

28 7th floor, aisle 177 and bay 04.

DECLARATION OF MARK KLEIN

C-06-0672-VRW

- 5-

28. In the course of my employment, I reviewed a document entitled "Study Group 2 3, LGX/Splitter Wiring, San Francisco" dated December 10,2002, authored by AT&T Labs'.

3 consultant Mathew F. Casamassima. A true and correct copy of this document is attached

4 hereto as Exhibit C. This document described the connections from the SG3 Secure Room 5 on the 6th floor to the WorldNet Internet room on the 7th floor, and provided diagrams on

6 how the light signal was being split.

7

29. The circuits that were listed in the "Cut-in and Test Procedure" document

8 dated January 24, 2003 are "Peering Links" that connect the WorldNet Internet network to

9 national and international Intemet networks of non-AT&T telecommunications companies.

10

30. The "Cut-In and Test Procedure" documents provided procedures to "cut-in"

II AT&T's Peering Links to the splitter and hence to the SG3 Secure Room.

12

31. Starting in February 2003, the "splitter cabinet" split (and diverted to the SG3

13 Secure Room) the light signals that contained the communications in transit to and from

14 AT&T' s Peering Links with the following Internet networks and Internet exchange points: 15 ConXion, Verio, XO, Genuity, Qwest, PAIX, Allegiance, Abovenet, Global Crossing, C&W, I6 UUNET, Level3, Sprint, Telia, PSINet, and MAE-West.

I7

32. MAE-West is an Internet nodal point and one of the largest"Internetexchange

18 points" in the United States. PAIX, the Palo Alto Internet Exchange, is another significant 19 Internet exchange point.

20

33. Internet exchange points are facilities at which large numbers of major Internet

2I service providers interconnect their equipment in order to facilitate the exchange of

22 communications among their respective networks.

23

34. Through the "splitter cabinet," the content of all of the electronic voice and

24 data communications going across the Peering Links mentioned in paragraphs 29 to 31 was

25 transferred from the WorldNet Internet room's fiber optical circuits into the SG3 Secure 26 Room.

27

35. The document "Study Group 3, LGX/Splitter Wiring, San Francisco" dated

28 December 10, 2002, listed the equipment installed in the SG3 Secure Room, including such

DECLARATION OF MARK KLEIN

C-06-0672-VRW

-6-

equipment as Sun servers and Juniper (M40e and Ml60) "backbone" routers. This list also

2 included a Narus STA 6400, which is a "Semantic Traffic Analyzer."

3

36. In the course of my employment, I was required to connect new circuits to the

4 "splitter cabinet" and get them up and running. While working on a particularly difficult one

5 with another AT&T technician, I teamed that other such "splitter cabinets" were being

6 installed in other cities, including Seattle, San Jose, Los Angeles and San Diego.

7

8

I declare under penalty of perjury under the laws of the United States that the

9 foregoing is true and correct.

10 ll DATED: March 28, 2006

12

~/~

13

Mark Klein

14

15

16

17

18

19

20

21

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24

25

26

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DECLARATION OF MARK KLEIN C-06-0672-VRW

- 7-

EXHIBIT A

PERSONAL INFORMATION REDACTED FROM THIS PAGE

' . ·. •- <

~AT&T

Labs Connectivity & Net Services

SIMS Splitter Cut-In and Test Procedure
Issue 2, 01/13/03
Author: Mathew F. Casamassima

KLEIN A-1

PAGES 11 AND 12 INTENTIONALLY OMITTED

PERSONAL INFORMATION REDACTED FROM THIS PAGE

SIMS - SpliHer Test and Cut-In Procedure Issue 2, 01/13/03
Mathew F. Casamasslma,

1. Procedure Overview
actAntoiunimgtWc-IheoiPtnMnofFfobfiiSrreetmilhpTndeegitSchrcfukeupopeteWrptrtmofowMoribirtnDSmeSggTebpitdneeihcceycikisooaewsloutuiorrshedtroadik(fsnFfbadibScyteeiSeoest)chnnwfr.eirriloebTAlcmebheTdeietv&ihcweneoTdont.DhrBtBkaairscyrdiitdpedTegsrdgecoeecbrctthiyooebnnodethrduNNgeriaDeneBntCdrwtizhiodaopegrteripuekrortsmnoooO.ncnepennNdeelurelaArtwwettiiwoolslrnoikalmlCgObaeepeinpneSotrcleai\onrt~rnt{potopNnarrstcOieotCCd.rO,e)tnooSttonWteh-rcseF{ihtNsteahp,rOelgbiCteyt)er

:TFcwtewto(aShhCoxcSpheiieetmilttBcSiuslihsDtnctaBpiibimaeolnalnp)ewlenysgerxtpOcosmhT2c.lolpceCoiieTboeplrtscict3Cdethfteehiutur,ceBltreiyhrooaOrtBcseislrfscppuCgtcocaltLdwhaci1rtootnohieoOt2invreil.csdDlz.eXrusTaiasrT-nambnsthccihwaydeooeeotitinTennshmlacOd.lnteecoppTeCbcwtwnolucshehe4tirttaialxetes8tpollihip.onrraacdsoegnceutne-phAatdtsdcruoetn-ceaiiaficrpinqibBlztniatlaulbashosrleritepitaterdifdacileoatiltgiwbdhnshltrleittcyeeoneaiwutnNrngroapsiikscdnptrlOtsnleuialaEc.nei-Ctlclatc-FowslTtoniaueenn&anhtrtrenbictteoiIiwaedrsnnococ'vsisddawsptlpetalesbotOanltn-bisiiiilcdctncilldSeteaaooreeWbltindtrtroibeeonotsueFsilonepnsnotdtcusltesctooioitihpeatdsndfftreptseeutecaSccoirrrdrlorhtsreeilohotnnecaesesiwidgtrnsdnsiwu-Coio-,ttctlcohitnhfBeoolhoeli-annB3esnntC-ehbndnosleetpeBmeeiehfctrdccBpeeaoatttitrhs,isccxneCimcbaJais-tcmoitBeyncavaedmnudieBnidaoni~tpmnycttLbChpLeluceiOIeonoomsGPerahmfdXptXen\ewFortmnocdebhnSitnce-na.oeeScobdynwoumypoCmft(irwBUnpBtritehoeedl.a.mBesmer.ocGxtwbkAitwo.nLoXebvngToarGo1itrnhnhonIo3kXPdegee)ff.

will The number of cross-connects required and the
of the affected LOX bays within the multiple describe all possible splitter cut-in circuit paths. each. possible circuit path.

final path the circuit' take is dependant on the location line-ups of the CBB .LOX complex. This procedure w!U The procedure will also describe the procedures for testing
·

1.1. How to Use this Procedure

TTSaarrehhrrcaaiestnnrieoggpneeraommsrec2eee4nndattpunyarodeops3upsd,ilobaigecrloseeumtdLdoieGeratenhXlctietnilascgyriqrrwtacouniuittgtihhete.eyltosohnuuagbta.smreIectatwyiisooennnrskociowtnunginte.htcTeienrhs.eSsBnaey,rcyatrifeottoaendrsriren2eagaaddsnietdnhcg3tiisotahwnsesh1oio.nc2ltierabotededloduoccwwut,oimtdrhyeenttphetaerrmtoaLgiOdnreaoXpwthhhseiicnwhoLrGk.X

1.2. LGX Dermition and LGX-Arrangement: ·

PccpLpLoorrrOGoeinnoscXvvXereeendDtnnbtoutteaeiirdyootefhisn:nneinifwitossWtlitalluhlonrniwt:bsiofeTodfahuromtesshcerpueedaemcwcahreireoofenirrsctekms.. nsud'Sliael1titmetslieecspi-.rlnsiefSgbpoieeLlncldcGoociwfehnXiecvitnrhebeeginasntytgihadsoireonneacelfou(efgIcermeLiacnnletGeegnIrdPtXiwcibsiFyl1dlSd,etSeuhUfssiiisnwe.g.iGitpntUhirXeoeodnl2caLs,etboGdlefLulcoXrorGtehvP.XteehIWrCL3ea,iGcltLlhloXLGisdniGeXtbetaXrhsayb,et4sahtC,hyewisBr.si.tBt.ahhu.f)anf:LtneihfTGceotthXhrenimedsacnmnonbaamaiymnmmpgitiinlhnneagigxgss.

AT&T Proprietary Use Pursuant to Company Instmcti<>ns
Pagc4 of43

KLEIN A-4

PAGES 14 THROUGH 52 INTENTIONALLY OMITTED

EXHIBIT B

PAGES 55 THROUGH 59 INTENTIONALLY OMITTED

Figure 5 - Arrangement 3 - Circuit Connectivity - Cut Night Measurements
Network Facing & Router Facing LGX in Ist Line-Up I Splitter Facing LGX in 2nd Line-Up

\C I
c::l

Overhead View of Bays (Applies to
IVEC.S02963, IVEC.547506,

Circuits AGEC.671212, AGEC.622360, AGEC.622352, IVEC.517519. IVEC.S78278, IVEC.509396, IVEC.597Z63, IVEC.502961, IVEC.502960 & IWEC.S02947)

~
~

New Cross-Connects

·=o
Q.
d 070174.
:".="ee";.''

ee Note
Cable to /CORELGX

\ Tie Cable Between LLGX·Tl &
LLGX-T2
08 :~~
~fuet: · !· • 1,•,"

RearofLGXs
zud Line-UP I LLGX 8 I LLGX 9 I LLGX 101 LLGX 11

060044.

01

02

Note: (1) The number of CORErrransmission LGXs in the circuit may vary from circuit to circuit (2) This arrangement also applies to circuit AGEC.242541 except the Router facing LGX is LLGX 5.

03

04

05

Front of LGXs

New Cross Connects _.... ~----.....1

PAGES 61 THROUGH 73 INTENTIONALLY OMITTED

P;•l Circuit
Englntorfng Change

Circuit Englnearfng
Complett

Circuit Spllttar Engineering Test O&tt . Complete

Splltttr In·! ~SPITlW\ CommentSCircuit Oatt Activo Date

0
N
dl

Ord~~ lssuo ~. Dato Date Actual

~

•~•4
•

oncouH><
. u•• o •• <.

t'V~ "''
~~" " ' "

1/22/2003 1/31/2003 1122/2003 21412003 216r.

1123!2003 1/2312003

1/3!/2003 1/31/2003

112312003 1/23/2003

2/4/2003 214/2003

2/fJ/: 2J6r.

~
...:I
~

!123/2003 1130/2003

1/31/2C 3 21712003

1/2312003 2/412003 2/6f•vw 1/23/21)(]3 2/1112003 211312003

1/3012003

217/2003 112312003 211112003 2/1312003

1/30/2003

217/2003 112412003 2/1112003 2/1312003

1/3012003

217/2003 112412003 2/1112003 2/1312003

T..~ ..o.~ .... ~ ~~-w "-

2/1412003 VI~ "'1412003

V181200 2120/20 • VI~~ 211812003 2120/20

14/2003

2/1812003 2120/20

i03

212M003 2127120 15/20031 1!17120

!003 !121/2003

!&:2003! 'l./27/20• W'l.0031 2127/201

EXHIBIT C

PERSONAL INFORMATION REDACTED FROM THIS PAGE
f~ [fi; ATs.T·
Labs Connectivity & Net Services
Study Group 3 LGX/Sp/ltter Wiring
San Francisco
Issue 1, 12/10102 Author: Mathew F. Casamassima
KLEIN C-l

PAGE 78 INTENTIONALLY OMITTED

PERSONAL INFORMATION REDACTED FROM THIS PAGE

Study Group 3 LGX/Splitter Wiring, San Francisco Issue 1, 12110102
Mathew F. Casamassima,
Cabinet Naming:

Equipment Splitter Cabinet LGX Cabinet Meta Data Cabinet Network Management Cabinet Data Filter Cabinet Juniper M40E Router Cabinet Sun V880 Cabinet Sun 3800 Cabinet Sun Storedge Cabinet ADC Chassis For LGX ADC Chassis For Splitter ADC Splitter Module ADC Bulkhead Module (LGX) Juniper Ml60 Juniper M40e Narus STA 6400 Sun Vrre V880/Narus LQgic Server Sun Frre 3800 Sun StorEdge T3 Sun StorEdge FC switch Cisco Cataly_st 2924M-XL BayTechDS9 BayTech RPC22 Brocade SilkWorm 2800 Switch LucentLGX

Name SPC LXC MDC NMC DFC JC
sac
S3C
sse
lxp spp spl bk jp j4
nr
sB
s3
st sf cz b9 bv bz LLGX

AT&T Proprietary

KLEINC-3

PAGES 80 THROUGH 120 INTENTIONALLY OMITTED

PERSONAL INFORMATION REDACTED FROM THIS PAGE

Study Group 3 LGX!Splitter Wiring, San Francisco Issue 1, 12110102
Mathew F. Casamassima,

011xp SG3 LGX Panel to Splitter Cabinet Connectivity

011xp SG3LGX
Panel Port (In SG3 Room)
1
2
3
4
5
6
7
1--·
8
9
10
11
12
13
14
15
16

Splitter Cabinet Destination

SG3LGX Designation Card
Text

Splitter End Fiber Label Text

01spp/Siot 3/port 14 01spp/Siot 3/port 13 01spp/Siot 3/port 16 01 spp/Siot 3/port 15
f
01 spp/Siot 3/port 18 01 spp/Siot 3/port 17 01spp/Siot 4/port 20 01 spp/Siot 4/port 19 01spp/Siot 4/port 22 01 spp/Siot 4/port 21 01 spp/Siot 4/port 24 01spp/Siot 4/port 23 01 spp/Siot 5/port 82
01spp/Siot 5/port A2
01spp/Siot 6/port 82
01 spp/Siot 6/port A2

RR 070177.04 01spp/Siot 3/port 14
RR 070177.04 01 sppiSiot 3/port 13
RR 070177.04 01spp/Siot 3/port 16
RR 070177.04 01 spp/Siot 3/port 15
RR 070177.04 01 spp/Siot 3/port 18
RR 070177.04 01spp/Slot 3/port 17
RR 070177.04 01 spp/Siot 4/port 20
RR 070177.04 01 spp!Siot 4/port 19
RR 070177.04 01 spp/Siot 4/port 22
RR 070177.04 01 spp/Siot 4/port 21
RR 070177.04 01spp/Siot 4/port 24
RR 070177.04 01spp/Siot 4/port 23
RR 070177.04 01 spp/Siot 5/port 82
RR 070177.04
01 spp/Siot 5/port A2
RR 070177:04 01 spp/Siot 6/port 82
RR 070177.04
01 spp/Siot 6/port A2

AT&T Proprietary

FROM: 060903.01 011xp/JK 1
TO: 01soo/Siot 3/oort 14 FROM: 060903.01 011xp/JK 2
TO: 01soo!Siot 3/oort 13 FROM: 060903.01 011xp/JK3
TO: 01soo!Siot 3/port 16 FROM: 060903.01 011xp/JK 4
T0:01s~~ot31port15 FROM: 060903.01 011xp/JK5
TO: 01spp/Siot 3/port 16 FROM: 060903.01 011xp/JK 6
TO: 01 spp/Siot 3/port 17 FROM: 060903.01 011xp/JK7
TO: 01spp/Stot 3/oort 20 FROM: 060903.01 01lxp/JK8
T0:01spp/~t3/oort19 FROM: 060903.01 011xp/JK9
TO: 01sop1Stot 3/oort 22 FROM: 060903.01 011xp/JK 10
TO: 01soo/Siot 3/P<Jrt 21 FROM: 060903.01 011xp/JK 11
TO: 01 spJliSiot 3/part 24 FROM: 060903.01 011xp/JK 12
TO: 01srnJiSiot 3/port 23 FROM: 060903.01 011xp/JK 13
T0:01SOPiSiot 5/oort 82 FROM: 060903.01 011xp/JK 14
T0:01 sooistot 5/oort A2 FROM: 060903.01 . 011xpfJK 15
T0:01 spp/Siot 6/oort 82
FROM: 060903.01 011xp/JK 16
T0:01spp/Slot 6/port A2

KLEIN C-45

PERSONAL INFORMATION REDACTED FROM THIS PAGE

Study Group 3 LGX!Splitter Wiring, San Francisco Issue 1, 12110102
Mathew F. Casamasslma,
Splitter to SG3 LGX Connectivity

The Tables in this section give the splitter to SGJ LGX connectivity as shown with in the bounds of this boL

SGJ Splitter Facing LGX In SG3 Secure Room. Ollxp ••~'!"gb 041xp panet.

Splitter Interfacing
CBB LLGXIJ Jacks 1 -36 . Newly Installed

Splitter Cabinet

Splitter lllterfaciog
CBB LLGXIJ .Jacks 37-72
Newly Installed

AT&T Proprietary

KLEfNC-46

PAGES 123 THROUGH 134 INTENTIONALLY OMITTED

DECLARATION OF SERVICE BY HAND-DELIVERY

2

I, the undersigned, declare:

3

l.

That declarant is and was, at all times herein mentioned, a resident of the United

4 States and employed in the City and County of San Francisco, over the age of 18 years, and not a

5 party to or interested party in the within action; that declarant's business address is 100 Pine Street,

6 Suite 2600, San Francisco, California 94111.

7

2. That on AprilS, 2006, declarant served by Hand-Delivery the DECLARATION OF

8 MARK KLEIN IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION-

9 FILED UNDER SEAL PURSUANT TO CIVIL LOCAL RULE 79-5 to the parties listed on the

10 attached Service List

11

I declare under penalty of perjury that the foregoing is true and correct. Executed this 5th

12 day of April, 2006, at San Francisco, California.

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DECLARATION OF MARK KLEIN C-06-0672-VRW

SeiVice List - 4/5/2006 Page 1

(06-00101

Counsel For Defendant(s)

Bruce A Ericson
Pillsbury Winthrop Shaw Pittman LLP 50 Fremont Street San Francisco, CA 94105-2228
415/983-1 000 415/983-1200 (Fax)

Counsel For Plalntiff(s)
Cindy Cohn Lee Tien Kurt Opsahl
Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 9411 0
415/436-9333 415/436-9993 (Fax)

Reed R. Kathreln Jeff D. Friedman Shana E. Scartett
Lerach Coughlin Stoia Geller Rudman & Robbins LLP
100 Pine Street, Suite 2600 San Francisco, CA 94111-5238
415/288-4545 415/288-4534(Fax}

Richard R. Wiebe Law Office of Richard D. Wiebe 425 California Street, Suite 2025 San Francisco, CA 94104
415/433-3200 415/433-6382(Fax)
_;-.;<

 Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 1 of 42
ADRMOP,CLOSED,E−Filing,ProSe
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:06−cv−00672−VRW

Hepting et al v. ATTCorp. et al Assigned to: Hon. Vaughn R. Walker Lead case: 3:06−md−01791−VRW Member case: (View Member Case) Case in other court: 06−17132
06−17137
USCA, 06−16676 Cause: 28:1331 Fed. Question
Plaintiff
Tash Hepting on Behalf of Themselves and All Others Similarly Situated

Date Filed: 01/30/2006 Date Terminated: 07/21/2009 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Cindy Ann Cohn Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: cindy@eff.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeff D Friedman Hagens Berman Sobol Shapiro LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 (510) 725−3000 Fax: (510) 725−3001 Email: jefff@hbsslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bert Voorhees Traber &Voorhees 128 North Fair Oaks Avenue Suite 204 Pasadena, CA 91103 (626) 585−9611 Fax: (626) 577−7079 Email: bv@tvlegal.com ATTORNEY TO BE NOTICED
Corynne McSherry Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: corynne@eff.org ATTORNEY TO BE NOTICED
Elena Maria DiMuzio Covington &Burling LLP One Front Street 35th Floor San Francisco, CA 94104 415−591−7039 Fax: 415−955−6539 Email: edimuzio@cov.com

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 2 of 42
TERMINATED: 09/30/2008 ATTORNEY TO BE NOTICED
Eric B. Fastiff Lieff, Cabraser, Heimann &Bernstein,LLP 275 Battery Street 29th Floor San Francisco, CA 94111−3339 415−956−1000 Fax: 415−956−1008 Email: efastiff@lchb.com ATTORNEY TO BE NOTICED
Eric Alan Isaacson Robbins Geller Rudman &Dowd LLP 655 West Broadway Suite 1900 San Diego, CA 92101 (619) 231−1058 Email: erici@rgrdlaw.com ATTORNEY TO BE NOTICED
James Samuel Tyre Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 415−436−9333 Fax: 415−436−9993 Email: jstyre@jstyre.com ATTORNEY TO BE NOTICED
Kevin Stuart Bankston Center for Democracy and Technology 1634 I Street NW #1100 Washington, DC 20006 202−637−9800 Fax: 202−637−0968 Email: kbankston@cdt.org ATTORNEY TO BE NOTICED
Kurt Bradford 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
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
Maria V. Morris Southern Poverty Law Center 400 Washington Av Montgomery, AL 36104 334−956−8200 Email: maria.morris@splcenter.org ATTORNEY TO BE NOTICED

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 3 of 42

Plaintiff
Gregory Hicks on Behalf of Themselves and All Others Similarly Situated

Michael Myles Markman Covington &Burling LLP One Front Street San Francisco, CA 94111 (415) 591−7004 Email: mmarkman@cov.com TERMINATED: 09/30/2008 ATTORNEY TO BE NOTICED
Reed R. Kathrein Hagens Berman Sobol Shapiro LLP 425 2nd St., Suite 500 San Francisco, CA 94107 415−896−6300 Fax: 415−896−6301 Email: reed@hbsslaw.com ATTORNEY TO BE NOTICED
Richard R. Wiebe Law Office Of Richard R. Wiebe One California Street Suite 900 San Francisco, CA 94111 (415)433−3200 Fax: 415−433−6382 Email: wiebe@pacbell.net ATTORNEY TO BE NOTICED
Shana E. Scarlett Hagens Berman Sobol Shapiro LLP 715 Hearst Avenue Suite 202 Berkeley, CA 94710 (510) 725−3000 Fax: (510) 725−3001 Email: shanas@hbsslaw.com ATTORNEY TO BE NOTICED
Theresa M. Traber , Esq. Traber &Voorhees 128 North Fair Oaks Avenue Suite 204 Pasadena, CA 91103 (626) 585−9611 Fax: (626) 577−7079 Email: tmt@tvlegal.com ATTORNEY TO BE NOTICED
represented by Cindy Ann Cohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeff D Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bert Voorhees (See above for address) ATTORNEY TO BE NOTICED

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 4 of 42

Plaintiff
Erik Knutzen on Behalf of Themselves and All Others Similarly Situated

Corynne McSherry (See above for address) ATTORNEY TO BE NOTICED
Elena Maria DiMuzio (See above for address) TERMINATED: 09/30/2008 ATTORNEY TO BE NOTICED
Eric Alan Isaacson (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (See above for address) ATTORNEY TO BE NOTICED
Kevin Stuart Bankston (See above for address) ATTORNEY TO BE NOTICED
Kurt Bradford Opsahl (See above for address) ATTORNEY TO BE NOTICED
Lee Tien (See above for address) ATTORNEY TO BE NOTICED
Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED
Michael Myles Markman (See above for address) TERMINATED: 09/30/2008 ATTORNEY TO BE NOTICED
Reed R. Kathrein (See above for address) ATTORNEY TO BE NOTICED
Richard R. Wiebe (See above for address) ATTORNEY TO BE NOTICED
Shana E. Scarlett (See above for address) ATTORNEY TO BE NOTICED
Theresa M. Traber , Esq. (See above for address) ATTORNEY TO BE NOTICED
represented by Cindy Ann Cohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeff D Friedman (See above for address) LEAD ATTORNEY

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 5 of 42

ATTORNEY TO BE NOTICED

Bert Voorhees (See above for address) ATTORNEY TO BE NOTICED

Corynne McSherry (See above for address) ATTORNEY TO BE NOTICED

Elena Maria DiMuzio (See above for address) TERMINATED: 09/30/2008 ATTORNEY TO BE NOTICED

Eric Alan Isaacson (See above for address) ATTORNEY TO BE NOTICED

James Samuel Tyre (See above for address) ATTORNEY TO BE NOTICED

Kevin Stuart Bankston (See above for address) ATTORNEY TO BE NOTICED

Kurt Bradford Opsahl (See above for address) ATTORNEY TO BE NOTICED

Lee Tien (See above for address) ATTORNEY TO BE NOTICED

Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED

Michael Myles Markman (See above for address) TERMINATED: 09/30/2008 ATTORNEY TO BE NOTICED

Reed R. Kathrein (See above for address) ATTORNEY TO BE NOTICED

Richard R. Wiebe (See above for address) ATTORNEY TO BE NOTICED

Shana E. Scarlett (See above for address) ATTORNEY TO BE NOTICED

Theresa M. Traber , Esq. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Carolyn Jewel on Behalf of Themselves and All Others Similarly Situated

represented by Reed R. Kathrein (See above for address) LEAD ATTORNEY

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 6 of 42
ATTORNEY TO BE NOTICED
Bert Voorhees Traber &Voorhees 128 North Fair Oaks Avenue, Suite 204 Pasadena, CA 91103 (626) 585−9611 Fax: (626) 577−7079 Email: bv@tvlegal.com ATTORNEY TO BE NOTICED
Cindy Ann Cohn (See above for address) ATTORNEY TO BE NOTICED
Corynne McSherry (See above for address) ATTORNEY TO BE NOTICED
Elena Maria DiMuzio (See above for address) TERMINATED: 09/30/2008 ATTORNEY TO BE NOTICED
Eric Alan Isaacson (See above for address) ATTORNEY TO BE NOTICED
James Samuel Tyre (See above for address) ATTORNEY TO BE NOTICED
Jeff D Friedman (See above for address) ATTORNEY TO BE NOTICED
Kevin Stuart Bankston (See above for address) ATTORNEY TO BE NOTICED
Kurt Bradford Opsahl (See above for address) ATTORNEY TO BE NOTICED
Lee Tien (See above for address) ATTORNEY TO BE NOTICED
Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED
Michael Myles Markman (See above for address) TERMINATED: 09/30/2008 ATTORNEY TO BE NOTICED
Richard R. Wiebe (See above for address) ATTORNEY TO BE NOTICED
Shana E. Scarlett (See above for address) ATTORNEY TO BE NOTICED

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 7 of 42

Theresa M. Traber , Esq. Traber &Voorhees 128 N. Fair Oaks Avenue Pasadena, CA 91103 (626) 585−9611 Email: tmt@tvlegal.com ATTORNEY TO BE NOTICED

Plaintiff
Benson B. Roe Plaintiff in related case no. C−06−03467 MMC

represented by Barry R. Himmelstein HIMMELSTEIN LAW NETWORK 2000 Powell St. Suite 1605 Emeryville, CA 94608−1861 (510) 450−0782 Fax: (510) 380−6147 Email: barry@himmellaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff All Plaintiffs

represented by Cindy Ann Cohn (See above for address) ATTORNEY TO BE NOTICED

Kevin Stuart Bankston (See above for address) ATTORNEY TO BE NOTICED

V. Defendant ATTCorp.

represented by Bruce A. Ericson Pillsbury Winthrop Shaw Pittman LLP Post Office Box 2824 San Francisco, CA 94126 (415) 983−1000 Fax: (415) 983−1200 Email: bruce.ericson@pillsburylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Lloyd Anderson U.S. Attorney's Office 450 Golden Gate Avenue 11th Floor San Francisco, CA 94102−3495 415−436−6783 Email: david.l.anderson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacob R. Sorensen Pillsbury Winthrop Shaw Pittman LLP Post Office Box 2824 San Francisco, CA 94126 415 983−1000 Fax: 415 983−1200 Email: jake.sorensen@pillsburylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 8 of 42

Bradford Allan Berenson , Sidley Austin LLP 1501 K Street, NW Washington, DC 20005

202−736−8971 Fax: 202−736−8711 Email: bberenson@sidley.com ATTORNEY TO BE NOTICED

David William Carpenter Sidley Austin LLP One S. Dearborn Street Chicago, IL 60603 (312) 853−7000 Email: dcarpenter@sidley.com ATTORNEY TO BE NOTICED

David L. Lawson , Sidley Austin LLP 1501 K St. NW Washington, DC 20005 202−736−8088 Fax: 202−736−8711 Email: dlawson@sidley.com ATTORNEY TO BE NOTICED

Edward Robert McNicholas Sidley Austin LLP 1501 K St., NW Washington, DC 20005 202−736−8010 Fax: 202−736−8711 Email: emcnicholas@sidley.com ATTORNEY TO BE NOTICED

Marc H. Axelbaum Pillsbury Winthrop Shaw Pittman LLP Post Office Box 2824 San Francisco, CA 94126 (415) 983−1967 Fax: (415) 983−1200 Email: marc.axelbaum@pillsburylaw.com ATTORNEY TO BE NOTICED

Defendant ATTInc.

represented by Bruce A. Ericson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacob R. Sorensen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bradford Allan Berenson , (See above for address) ATTORNEY TO BE NOTICED

David William Carpenter (See above for address) ATTORNEY TO BE NOTICED

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 9 of 42
David L. Lawson , (See above for address) ATTORNEY TO BE NOTICED
Edward Robert McNicholas (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Dft United States of America
Amicus Center for Constitutional Rights Center for Constitutional Rights Amicus Mark Klein

represented by Anthony Joseph Coppolino USDOJ Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 (202) 514−4782 Fax: (202) 616−8460 Email: tony.coppolino@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter D. Keisler , Sidley Austin LLP 1501 K Street, N.W. Washington, DC 20005 202−736−8027 Fax: 202−736−8711 Email: pkeisler@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Kenneth Haas United States Department of Justice Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 (202) 307−3937 Email: Alexander.Haas@usdoj.gov ATTORNEY TO BE NOTICED
Renee S. Orleans U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. PO Box 883, Room 7120 Washington, DC 20044 202−514−4504 Email: renee.orleans@usdoj.gov ATTORNEY TO BE NOTICED
represented by Marc VanDerHout Van Der Hout &Brigagliano 180 Sutter Street, Fifth Floor San Francisco, CA 94123 415−981−3000 Email: ndca@vblaw.com ATTORNEY TO BE NOTICED
represented by

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 10 of 42

James J. Brosnahan Morrison &Foerster LLP 425 Market Street San Francisco, CA 94105 415−268−7000 Fax: 415−268−7522 Email: jbrosnahan@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian Martinez Morrison &Foerster LLP 425 Market Street San Francisco, CA 94105−2482 415−268−7000 Fax: 415−268−7522 Email: brianmartinez@mofo.com ATTORNEY TO BE NOTICED

Amicus
Amici Law Professors Amici Law Professors

represented by Jennifer Stisa Granick 350 Townsend Street, Ste. 612 San Francisco, CA 94107 415−684−8111 Fax: 424−298−8589 Email: granicklaw@granick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Susan Freiwald Amici Law Professor

represented by Susan A. Freiwald USF School of LAW 2130 Fulton St San Francisco, CA 94117 415−422−6467 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Stisa Granick (See above for address) ATTORNEY TO BE NOTICED

Amicus
The Center for National Security Studies

represented by Terry Gross Gross Belsky Alonso LLP One Sansome Street Suite 3670 San Francisco, CA 94104 415−544−0200 Fax: 415−544−0201 Email: terry@gba−law.com ATTORNEY TO BE NOTICED

Amicus California First Amendment Coalition

represented by Roger Rex Myers Bryan Cave LLP 560 Mission Street, 25th Floor San Francisco, CA 94105 415−268−2000 Fax: 415−268−1999 Email: roger.myers@bryancave.com LEAD ATTORNEY

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 11 of 42

ATTORNEY TO BE NOTICED

Amicus CNET News.com

represented by Roger Rex Myers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Miscellaneous Tom Campbell
Miscellaneous Eric Schneider
Miscellaneous Willie H. Ellis Miscellaneous Daniel N. Gall

represented by Laurence F. Pulgram Fenwick &West LLP 555 California Street, Suite 1200 San Francisco, CA 94104 (415) 875−2300 Fax: (415) 281−1350 Email: lpulgram@fenwick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eric Schneider 1730 South Federal Hwy. #104 Delray Beach, FL 33483 561−542−7541 PRO SE
represented by Daniel N. Gall c/o Luna Innocations 2851 Commerce STreet Blacksburg, VA 24060 PRO SE

V. Intervenor Associated Press
Intervenor Bloomberg News
Intervenor Los Angeles Times

represented by Karl Olson Ram, Olson, Cereghino &Kopczynski LLP 555 Montgomery Street, Suite 820 San Francisco, CA 94111 415−433−4949 Fax: 415−433−7311 Email: kolson@ramolson.com ATTORNEY TO BE NOTICED
represented by Karl Olson (See above for address) ATTORNEY TO BE NOTICED
represented by Karl Olson (See above for address) ATTORNEY TO BE NOTICED

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 12 of 42

Intervenor San Francisco Chronicle
Intervenor San Jose Mercury News
Intervenor USA Today
Intervenor Lycos, Inc. TERMINATED: 08/08/2006
Intervenor Wired News
Intervenor CondeNet Inc.

represented by Karl Olson (See above for address) ATTORNEY TO BE NOTICED
represented by Karl Olson (See above for address) ATTORNEY TO BE NOTICED
represented by Karl Olson (See above for address) ATTORNEY TO BE NOTICED
represented by Timothy L. Alger Quinn Emanuel Urquhart Oliver &Hedges 865 S. Figueroa st. 10th Floor Los Angeles, CA 90017 213 443 3000 Email: timalger@quinnemanuel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Timothy L. Alger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Timothy L. Alger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/31/2006
01/31/2006
01/31/2006 01/31/2006 01/31/2006

# Docket Text
1 COMPLAINT for Damages, Declaratory and Injunctive Relief; Demand for Jury Trial against ATTCorp., ATTInc. (Filing fee $ 250.00, receipt number 3381033.). Filed byGregory Hicks, Erik Knutzen, Tash Hepting. (gba, COURT STAFF) (Filed on 1/31/2006) (Entered: 01/31/2006)
2 ADR SCHEDULING ORDER: Case Management Statement due by 4/28/2006. Case Management Conference set for 5/5/2006 01:30 PM. (Attachments: # 1 CMC Standing Order# 2 Standing Order #2)(gba, COURT STAFF) (Filed on 1/31/2006) (Entered: 01/31/2006)
3 Certificate of Interested Entities or Persons filed by Tash Hepting, Gregory Hicks and Erik Knutzen (gba, COURT STAFF) (Filed on 1/31/2006) (Entered: 01/31/2006)
Summons Issued as to ATTCorp., ATTInc.. (gba, COURT STAFF) (Filed on 1/31/2006) (Entered: 01/31/2006)
CASE DESIGNATED for Electronic Filing. (gba, COURT STAFF) (Filed on 1/31/2006) (Entered: 01/31/2006)

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 13 of 42

01/31/2006 01/31/2006
02/03/2006 02/13/2006 02/22/2006
02/23/2006 02/23/2006 02/23/2006 02/27/2006 02/28/2006
03/06/2006
03/06/2006 03/30/2006 03/31/2006
03/31/2006 03/31/2006
03/31/2006

4 Declination to Proceed Before a U.S. Magistrate Judge by Gregory Hicks, Erik Knutzen, Tash Hepting. (gba, COURT STAFF) (Filed on 1/31/2006) (Entered: 01/31/2006)
5 ORDER REASSIGNING CASE. Case reassigned to Judge Vaughn R. Walker for all further proceedings. Judge Joseph C. Spero no longer assigned to case.Signed by Executive Committee on 1/31/06. (as, COURT STAFF) (Filed on 1/31/2006) Additional attachment(s) added on 1/31/2006 (gba, COURT STAFF). (Entered: 01/31/2006)
6 NOTICE of Appearance by Jeff D Friedman (Friedman, Jeff) (Filed on 2/3/2006) (Entered: 02/03/2006)
7 CLERK'S NOTICE : Initial Case Management Conference set for 5/16/2006 09:00 AM. Case Management Statement due by 5/9/2006. (Attachments: # 1 # 2) (cgd, COURT STAFF) (Filed on 2/13/2006) (Entered: 02/13/2006)
8 AMENDED COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF against ATTCorp., ATTInc.. Filed byGregory Hicks, Erik Knutzen, Tash Hepting. (Scarlett, Shana) (Filed on 2/22/2006) (Entered: 02/22/2006)
9 NOTICE of Appearance by Maria V. Morris NOTICE OF APPEARANCE (Morris, Maria) (Filed on 2/23/2006) (Entered: 02/23/2006)
10 Summons Returned Unexecuted by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel (gsa, COURT STAFF) (Filed on 2/23/2006) (Entered: 02/27/2006)
Summons Issued as to ATTCorp., ATTInc.. (gsa, COURT STAFF) (Filed on 2/23/2006) (Entered: 02/27/2006)
11 NOTICE of Appearance by Eric A. Isaacson NOTICE OF APPEARANCE OF ERIC A. ISAACSON (Isaacson, Eric) (Filed on 2/27/2006) (Entered: 02/27/2006)
12 SUMMONS Returned Executed by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. ATTCorp. served on 2/24/2006, answer due 3/16/2006; ATTInc. served on 2/24/2006, answer due 3/16/2006. (Scarlett, Shana) (Filed on 2/28/2006) (Entered: 02/28/2006)
13 STIPULATION SETTING UNIFORM TIME FOR DEFENDANTS AND POSSIBLE INTERVENER TO RESPOND TO PLAINTIFFS' AMENDED COMPLAINT by ATTCorp., ATTInc.. (Ericson, Bruce) (Filed on 3/6/2006) (Entered: 03/06/2006)
14 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. re 13 Stipulation Setting Uniform Time For Defendants And Possible Intervener to Respond to Plaintiffs' Amended Complaint (Ericson, Bruce) (Filed on 3/6/2006) (Entered: 03/06/2006)
15 NOTICE of Appearance by Richard Roy Wiebe as additional counsel for plaintiffs and the plaintiff class (Wiebe, Richard) (Filed on 3/30/2006) (Entered: 03/30/2006)
16 MOTION for Preliminary Injunction filed by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. Motion Hearing set for 6/8/2006 02:00 PM in Courtroom 6, 17th Floor, San Francisco. (Kathrein, Reed) (Filed on 3/31/2006) (Entered: 03/31/2006)
17 Proposed Order re 16 MOTION for Preliminary Injunction by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Kathrein, Reed) (Filed on 3/31/2006) (Entered: 03/31/2006)
18 Declaration of Carolyn Jewel in Support of 16 MOTION for Preliminary Injunction filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Related document(s) 16 ) (Kathrein, Reed) (Filed on 3/31/2006) (Entered: 03/31/2006)
19 Declaration of Cindy A. Cohn in Support of 16 MOTION for Preliminary Injunction filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J)(Related

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 14 of 42

03/31/2006
03/31/2006 03/31/2006 04/04/2006 04/04/2006 04/04/2006 04/04/2006 04/04/2006 04/04/2006
04/05/2006 04/05/2006 04/05/2006 04/05/2006 04/05/2006 04/05/2006

document(s) 16 ) (Kathrein, Reed) (Filed on 3/31/2006) (Entered: 03/31/2006)
20 Request for Judicial Notice re 16 MOTION for Preliminary Injunction filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(Related document(s) 16 ) (Kathrein, Reed) (Filed on 3/31/2006) (Entered: 03/31/2006)
21 Proposed Order re 20 Request for Judicial Notice, by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Kathrein, Reed) (Filed on 3/31/2006) (Entered: 03/31/2006)
22 Declaration of Lee Tien in Support of 16 MOTION for Preliminary Injunction filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Related document(s) 16 ) (Kathrein, Reed) (Filed on 3/31/2006) (Entered: 03/31/2006)
23 MOTION for leave to appear in Pro Hac Vice − David W. Carpenter filed by ATTCorp., ATTInc. Fee paid − 3384002. (gsa, COURT STAFF) (Filed on 4/4/2006) (Entered: 04/05/2006)
24 MOTION for leave to appear in Pro Hac Vice − Bradford A. Berenson filed by ATTCorp., ATTInc. Fee paid 3384003. (gsa, COURT STAFF) (Filed on 4/4/2006) (Entered: 04/05/2006)
25 MOTION for leave to appear in Pro Hac Vice − David L. Lawson filed by ATTCorp., ATTInc. Fee paid − 3384005. (gsa, COURT STAFF) (Filed on 4/4/2006) (Entered: 04/05/2006)
26 MOTION for leave to appear in Pro Hac Vice − Edward R. McNicholas filed by ATTCorp., ATTInc. Fee paid − 3384004. (gsa, COURT STAFF) (Filed on 4/4/2006) (Entered: 04/05/2006)
Proposed Order granting 23 MOTION for leave to appear in Pro Hac Vice, 24 MOTION for leave to appear in Pro Hac Vice, 25 MOTION for leave to appear in Pro Hac Vice, 26 MOTION for leave to appear in Pro Hac Vice by ATTCorp., ATTInc.. (gsa, COURT STAFF) (Filed on 4/4/2006) (Entered: 04/05/2006)
27 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. re 23 MOTION for leave to appear in Pro Hac Vice, 24 MOTION for leave to appear in Pro Hac Vice, 25 MOTION for leave to appear in Pro Hac Vice, 26 MOTION for leave to appear in Pro Hac Vice, Proposed Order, (gsa, COURT STAFF) (Filed on 4/4/2006) (Entered: 04/05/2006)
28 MOTION for Leave to File Excess Pages FOR THE MOTION FOR PRELIMINARY INJUNCTION filed by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Kathrein, Reed) (Filed on 4/5/2006) (Entered: 04/05/2006)
29 Proposed Order REGARDING THE MOTION TO EXTEND PAGE LIMITS by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Kathrein, Reed) (Filed on 4/5/2006) (Entered: 04/05/2006)
30 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel OF MANUAL FILING OF MOTION FOR PRELIMINARY INJUNCTION (Kathrein, Reed) (Filed on 4/5/2006) (Entered: 04/05/2006)
31 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel OF MANUAL FILING OF DECLARATION OF MARK KLEIN (Kathrein, Reed) (Filed on 4/5/2006) (Entered: 04/05/2006)
32 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel OF MANUAL FILING OF DECLARATION OF J. SCOTT MARCUS (Kathrein, Reed) (Filed on 4/5/2006) (Entered: 04/05/2006)
33 MOTION to Seal Document RE MOTION FOR PRELIMINARY INJUNCTION, DECLARATIONS OF MARK KLEIN AND J. SCOTT MARCUS filed by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Kathrein, Reed) (Filed on 4/5/2006) (Entered: 04/05/2006)

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 15 of 42

04/05/2006 04/05/2006 04/05/2006 04/05/2006 04/05/2006 04/05/2006 04/10/2006 04/10/2006 04/10/2006 04/10/2006 04/10/2006 04/10/2006 04/10/2006 04/10/2006 04/10/2006

34 Proposed Order REGARDING THE LODGING OF DOCUMENTS by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Kathrein, Reed) (Filed on 4/5/2006) (Entered: 04/05/2006)
35 Declaration of LEE TIEN IN SUPPORT OF MOTIONS TO LODGE AND TO EXTEND PAGE LIMITS filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Kathrein, Reed) (Filed on 4/5/2006) (Entered: 04/05/2006)
36 CERTIFICATE OF SERVICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel (Kathrein, Reed) (Filed on 4/5/2006) (Entered: 04/05/2006)
229 AMENDED MOTION for Preliminary Injunction; Memorandum of Points and Authorities in Support filed by Gregory Hicks, Erik Knutzen, Tash Hepting, Benson B. Roe, Carolyn Jewel. FILED UNDER SEAL (gba, COURT STAFF) (Filed on 4/5/2006) (Entered: 06/15/2006)
230 Declaration of Mark Klein in Support of 229 AMENDED MOTION for Preliminary Injunction filed byGregory Hicks, Erik Knutzen, Tash Hepting, Benson B. Roe, Carolyn Jewel. FILED UNDER SEAL (Related document(s) 229 ) (gba, COURT STAFF) (Filed on 4/5/2006) (Entered: 06/15/2006)
231 Declaration of J. Scott Marcus in Support of 229 AMENDED MOTION for Preliminary Injunction filed byGregory Hicks, Erik Knutzen, Tash Hepting, Benson B. Roe, Carolyn Jewel. FILED UNDER SEAL (Related document(s) 229 ) (gba, COURT STAFF) (Filed on 4/5/2006) (Entered: 06/15/2006)
37 ORDER by Chief Judge Vaughn R Walker granting 28 Motion for Leave to File Excess Pages. Plaintiffs shall be permitted to file a memorandum of points and authorities of 35 pages in support of their motion for preliminary injunction. (cgd, COURT STAFF) (Filed on 4/10/2006) (Entered: 04/10/2006)
38 MOTION to Seal Motion to Compel Return of Confidential Documents and Declaration of James W. Russell filed by ATTCorp., ATTInc.. (Ericson, Bruce) (Filed on 4/10/2006) (Entered: 04/10/2006)
39 Declaration of Bruce A. Ericson in Support of 38 MOTION to Seal Motion to Compel Return of Confidential Documents and Declaration of James W. Russell filed byATTCorp., ATTInc.. (Related document(s) 38 ) (Ericson, Bruce) (Filed on 4/10/2006) (Entered: 04/10/2006)
40 Proposed Order re 38 MOTION to Seal Motion to Compel Return of Confidential Documents and Declaration of James W. Russell, 39 Declaration in Support, by ATTCorp., ATTInc.. (Ericson, Bruce) (Filed on 4/10/2006) (Entered: 04/10/2006)
41 NOTICE by ATTCorp., ATTInc. of Manual Filing of Motion of Defendant ATTCorp. to Compel Return of Confidential Documents; Supporting Memorandum (Ericson, Bruce) (Filed on 4/10/2006) (Entered: 04/10/2006)
42 NOTICE by ATTCorp., ATTInc. re 41 Notice (Other) of Manual Filing of Declaration of James W. Russell in Support of Motion to Defendant ATTCorp. to Compel Return of Confidential Documents (Ericson, Bruce) (Filed on 4/10/2006) (Entered: 04/10/2006)
43 Declaration of Bruce A. Ericson in Support of 41 Notice (Other), 42 Notice (Other) of Motion of Defendant ATTCorp. to Compel Return of Confidential Documents filed byATTCorp., ATTInc.. (Attachments: # 1 Exhibit A−K)(Related document(s) 41 , 42 ) (Ericson, Bruce) (Filed on 4/10/2006) (Entered: 04/10/2006)
44 Proposed Order re 43 Declaration in Support,, 41 Notice (Other), 42 Notice (Other) Regarding ATTCorp. Confidential Documents by ATTCorp., ATTInc.. (Ericson, Bruce) (Filed on 4/10/2006) (Entered: 04/10/2006)
45 MOTION to Shorten Time (Administrative) of Defendant ATTCorp. for Order Shortening Time as to ATs Motion to Compel Return of Confidential Documents filed by ATTCorp., ATTInc.. (Ericson, Bruce) (Filed on 4/10/2006) (Entered: 04/10/2006)

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 16 of 42

04/10/2006 04/10/2006 04/11/2006 04/11/2006 04/12/2006
04/12/2006
04/12/2006
04/12/2006 04/12/2006 04/12/2006 04/12/2006 04/12/2006
04/12/2006 04/13/2006
04/13/2006 04/13/2006

219 MOTION to Compel Return of Confidential Documents; Supporting Memorandum filed by ATTCorp., ATTInc. FILED UNDER SEAL (gba, COURT STAFF) (Filed on 4/10/2006) (Entered: 06/15/2006)
220 Declaration of James W. Russell in Support of 219 MOTION to Compel filed byATTCorp., ATTInc. FILED UNDER SEAL (Related document(s) 219 ) (gba, COURT STAFF) (Filed on 4/10/2006) (Entered: 06/15/2006)
46 Letter from Cindy A. Cohn re Administrative Motion for an Order Shortening Time. (Kathrein, Reed) (Filed on 4/11/2006) (Entered: 04/11/2006)
47 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. PROOF OF SERVICE VIA HAND DELIVERY (Sorensen, Jacob) (Filed on 4/11/2006) (Entered: 04/11/2006)
48 MOTION to Seal Motion of Defendants ATTCorp. to File Under Seal Defendant ATTCorp.'s Memorandum in Support of Filing Documents Under Seal [Dkt. 30−32] filed by ATTCorp., ATTInc.. (Ericson, Bruce) (Filed on 4/12/2006) (Entered: 04/12/2006)
49 Declaration of Bruce A. Ericson in Support of 48 MOTION to Seal Motion of Defendants ATTCorp. to File Under Seal Defendant ATTCorp.'s Memorandum in Support of Filing Documents Under Seal [Dkt. 30−32] filed byATTCorp., ATTInc.. (Related document(s) 48 ) (Ericson, Bruce) (Filed on 4/12/2006) (Entered: 04/12/2006)
50 Proposed Order re 48 MOTION to Seal Motion of Defendants ATTCorp. to File Under Seal Defendant ATTCorp.'s Memorandum in Support of Filing Documents Under Seal [Dkt. 30−32], 49 Declaration in Support, by ATTCorp., ATTInc.. (Ericson, Bruce) (Filed on 4/12/2006) (Entered: 04/12/2006)
51 NOTICE by ATTCorp., ATTInc. of Manual Filing of Defendant ATTCorp.'s Memorandum in Support of Filing Documents Under Seal [Dkt. 30−32] (Ericson, Bruce) (Filed on 4/12/2006) (Entered: 04/12/2006)
52 Declaration of Bruce A. Ericson in Support of 51 Notice (Other) Sealing Documents [Dkt. 30−32] filed byATTCorp., ATTInc.. (Related document(s) 51 ) (Ericson, Bruce) (Filed on 4/12/2006) (Entered: 04/12/2006)
53 Proposed Order re 51 Notice (Other), 52 Declaration in Support of Sealing Documents [Dkt. 30−32] by ATTCorp., ATTInc.. (Ericson, Bruce) (Filed on 4/12/2006) (Entered: 04/12/2006)
54 ORDER by Chief Judge Vaughn R Walker granting 23 Motion Application for Admission Pro Hac Vice David W. Carpenter (cgd, COURT STAFF) (Filed on 4/12/2006) (Entered: 04/12/2006)
55 ORDER by Chief Judge Vaughn R Walker granting 24 Motion for Admission of Attorney Pro Hac Vice Bradford A. Berenson, David L. Lawson and Edward R. McNicholas. granting 25 , granting 26 . (cgd, COURT STAFF) (Filed on 4/12/2006) (Entered: 04/12/2006)
221 MEMORANDUM in Support of Filing Documents Under Seal [30−32] filed byATTCorp., ATTInc. FILED UNDER SEAL (gba, COURT STAFF) (Filed on 4/12/2006) (Entered: 06/15/2006)
56 *** FILED IN ERROR. PLEASE SEE DOCKET # 57 . *** CERTIFICATE OF SERVICE by ATTCorp., ATTInc. PROOF OF SERVICE VIA HAND DELIVERY (Sorensen, Jacob) (Filed on 4/13/2006) Modified on 4/14/2006 (ewn, COURT STAFF). (Entered: 04/13/2006)
57 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. PROOF OF SERVICE VIA HAND DELIVERY (Sorensen, Jacob) (Filed on 4/13/2006) (Entered: 04/13/2006)
58 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel OF MANUAL FILING OF PLAINTIFFS' OPPOSITION TO ADMINISTRATIVE MOTION OF DEFENDANT ATTCORP. FOR ORDER SHORTENING TIME AS TO ATS MOTION TO COMPEL RETURN OF CONFIDENTIAL DOCUMENTS (Kathrein, Reed) (Filed on 4/13/2006) (Entered: 04/13/2006)

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 17 of 42

04/13/2006 04/14/2006
04/17/2006 04/17/2006 04/17/2006
04/17/2006 04/17/2006 04/17/2006 04/17/2006 04/17/2006 04/20/2006 04/21/2006

222 Opposition to Administrative Motion of Defendant ATTCorp. for Order Shortening Time as to ATs Motion to Compel Return of Confidential Documents filed byGregory Hicks, Erik Knutzen, Tash Hepting, Benson B. Roe, Carolyn Jewel. FILED UNDER SEAL (gba, COURT STAFF) (Filed on 4/13/2006) (Entered: 06/15/2006)
59 ORDER As in any case, the court has reviewed this matter for possible recusal. In this case, because of the circumstances and reasons discussed in this order, the court's review has been more extensive than in the usual instance. Although the court has reached the conclusion that recusal is not necessary here, the court has reached this conclusion without the benefit of guidance from the parties. Accordingly, the court invites the parties to submit on or before April 21, 2006, briefs no longer than 10 pages in length that address the matters stated above.Signed by Chief Judge Vaughn R Walker on April 14, 2006. (vrwlc2, COURT STAFF) (Filed on 4/14/2006). (Entered: 04/14/2006)
60 CERTIFICATE OF SERVICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel AMENDED DECLARATION OF SERVICE (Morris, Maria) (Filed on 4/17/2006) (Entered: 04/17/2006)
61 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel re 30 Notice (Other), 31 Notice (Other), 32 Notice (Other) NOTICE OF MANUAL FILING OF PLAINTIFFS' OPPOSITION TO DEFENDANT ATTCORP.'S MEMORANDUM IN SUPPORT OF FILING DOCUMENTS UNDER SEAL [DKT. 30−32] (Kathrein, Reed) (Filed on 4/17/2006) (Entered: 04/17/2006)
62 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel re 30 Notice (Other), 31 Notice (Other), 32 Notice (Other) NOTICE OF MANUAL FILING OF DECLARATION OF KEVIN S. BANKSTON IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT ATTCORP.'S MEMORANDUM IN SUPPORT OF FILING DOCUMENTS UNDER SEAL [DKT. 30−32] (Kathrein, Reed) (Filed on 4/17/2006) (Entered: 04/17/2006)
63 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel NOTICE OF MANUAL FILING OF PLAINTIFFS' EVIDENTIARY OBJECTIONS TO DECLARATION OF JAMES W. RUSSELL IN SUPPORT OF MOTION OF DEFENDANT ATTCORP. TO COMPEL RETURN OF CONFIDENTIAL DOCUMENTS (Kathrein, Reed) (Filed on 4/17/2006) (Entered: 04/17/2006)
64 Proposed Order re 63 Notice (Other), Notice (Other), 61 Notice (Other), Notice (Other), 62 Notice (Other), Notice (Other) [PROPOSED] ORDER DENYING MOTION OF DEFENDANT ATTCORP.'S TO FILE DOCUMENTS UNDER SEAL by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Kathrein, Reed) (Filed on 4/17/2006) (Entered: 04/17/2006)
223 Opposition to Defendant ATTCorp.'s Memorandum in Support of Filing Documents Under Seal [30−32] filed byGregory Hicks, Erik Knutzen, Tash Hepting, Benson B. Roe, Carolyn Jewel. FILED UNDER SEAL (gba, COURT STAFF) (Filed on 4/17/2006) (Entered: 06/15/2006)
224 EVIDENTIAY OBJECTIONS to Declaration of James W. Russell in Support of Motion of Defendant ATTCorp. to Compel Return of Confidential Documents by Gregory Hicks, Erik Knutzen, Tash Hepting, Benson B. Roe, Carolyn Jewel. FILED UNDER SEAL (gba, COURT STAFF) (Filed on 4/17/2006) (Entered: 06/15/2006)
225 Declaration of Kevin S. Bankston in Support of 223 Opposition filed byGregory Hicks, Erik Knutzen, Tash Hepting, Benson B. Roe, Carolyn Jewel. FILED UNDER SEAL (Related document(s) 223 ) (gba, COURT STAFF) (Filed on 4/17/2006) (Entered: 06/15/2006)
65 ADR Clerks Notice re: Non−Compliance with Court Order. (tjs, COURT STAFF) (Filed on 4/20/2006) (Entered: 04/20/2006)
66 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Ericson, Bruce) (Filed on 4/21/2006) (Entered: 04/21/2006)

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 18 of 42

04/21/2006 04/21/2006 04/21/2006 04/21/2006 04/21/2006 04/21/2006 04/21/2006 04/24/2006 04/24/2006 04/24/2006 04/24/2006 04/24/2006 04/26/2006
04/28/2006

67 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. re 66 Notice of need of ADR Phone Conference (ADR L.R. 3−5 d) (Ericson, Bruce) (Filed on 4/21/2006) (Entered: 04/21/2006)
68 Brief re: Recusal filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on 4/21/2006) (Entered: 04/21/2006)
69 RESPONSE in Support To Order Regarding Recusal (DKT. 59) filed byATTCorp., ATTInc.. (Ericson, Bruce) (Filed on 4/21/2006) (Entered: 04/21/2006)
70 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. re 69 Response in Support To Order Regarding Recusal (DKT. 59) (Ericson, Bruce) (Filed on 4/21/2006) (Entered: 04/21/2006)
71 NOTICE by ATTCorp., ATTInc. of Manual Filing of Defendant ATTCorp.'s Reply Memorandum in Support of Filing Documents Under Seal [DKT. 30−32] (Ericson, Bruce) (Filed on 4/21/2006) (Entered: 04/21/2006)
72 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. re 71 Notice (Other) of Manual Filing of ATTCorp.'s Reply Memorandum in Support of Filing Documents Under Seal [DKT. 30−32] (Ericson, Bruce) (Filed on 4/21/2006) (Entered: 04/21/2006)
226 Reply Memorandum in Support of Filing Documents Under Seal [30−32] filed byATTCorp., ATTInc. FILED UNDER SEAL (gba, COURT STAFF) (Filed on 4/21/2006) (Entered: 06/15/2006)
73 STIPULATION Re: Participation of Amici Curiae in Civil Local Rule 79−5 Proceedings; and [Proposed] Order by ATTCorp., ATTInc.. (Ericson, Bruce) (Filed on 4/24/2006) (Entered: 04/24/2006)
74 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. PROOF OF SERVICE VIA HAND DELIVERY (Sorensen, Jacob) (Filed on 4/24/2006) (Entered: 04/24/2006)
75 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. re 73 Stipulation Re: Participation of Amici Curiae in Civil Local Rule 79−5 Proceedings; and [Proposed] Order (Ericson, Bruce) (Filed on 4/24/2006) (Entered: 04/24/2006)
76 MOTION for Leave to Appear Amicus filed by Center for Constitutional Rights. (Van Der Hout, Marc) (Filed on 4/24/2006) (Entered: 04/24/2006)
77 Brief re 76 MOTION for Leave to Appear Amicus filed byCenter for Constitutional Rights. (Related document(s) 76 ) (Van Der Hout, Marc) (Filed on 4/24/2006) (Entered: 04/24/2006)
78 ORDER by Chief Judge Vaughn R Walker GRANTING IN PART 45 Motion to Shorten Time, GRANTING 76 Motion for Leave to File Amici Curiae Brief. The court GRANTS IN PART defendants' motion for shortened time and sets the following briefing schedule. Oral argument is specially set for May 17, 2006, at 10:00 AM, on defendants' motion to compel and the parties' motions regarding sealing. Plaintiffs' opposition to defendants' motion to compel is due on May 1, 2006, and defendants' reply is due on May 5, 2006. Plaintiffs' motion for a preliminary injunction is specially set for hearing on June 21, 2006, at 10:00 AM. Because plaintiffs were permitted additional pages to file their motion, defendants may file an opposition brief of up to 35 pages by May 18, 2006. Plaintiffs may file their reply brief by May 25, 2006. At the May 17 hearing, the parties may address case management and scheduling issues regarding other motions in this case. The court therefore vacates the initial case management conference currently set for May 16, 2006. Moreover, pursuant to a stipulation by the parties and Civ L R 7−11, the court accepts the brief filed by amici curiae Center for Constitutional Rights and the American Civil Liberties Union. Any response to this brief must be e−filed by April 28, 2006.(vrwlc2, COURT STAFF) (Filed on 4/26/2006). (Entered: 04/26/2006)
79 MOTION to Dismiss Motion of Defendant ATInc. to Dismiss Plaintiffs' Amended Complaint; Supporting Memorandum filed by ATTInc.. Motion Hearing set for 6/8/2006 02:00 PM in Courtroom 6, 17th Floor, San Francisco. (Ericson, Bruce) (Filed on 4/28/2006) (Entered: 04/28/2006)

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 19 of 42

04/28/2006
04/28/2006 04/28/2006 04/28/2006 04/28/2006 04/28/2006 04/28/2006 04/28/2006
04/28/2006 04/28/2006 04/28/2006 04/28/2006 04/28/2006

80 Declaration of Starlene Meyerkord in Support of 79 MOTION to Dismiss Motion of Defendant ATInc. to Dismiss Plaintiffs' Amended Complaint; Supporting Memorandum Declaration of Starlene Meyerkord in Support of Motion of Defendant ATInc. to Dismiss Plaintiffs' Amended Complaint filed byATTInc.. (Related document(s) 79 ) (Ericson, Bruce) (Filed on 4/28/2006) (Entered: 04/28/2006)
81 Proposed Order re 79 MOTION to Dismiss Motion of Defendant ATInc. to Dismiss Plaintiffs' Amended Complaint; Supporting Memorandum, 80 Declaration in Support, [Proposed] Order Granting Defendant ATInc.'s Motion to Dismiss Plaintiffs' Amended Complaint by ATTInc.. (Ericson, Bruce) (Filed on 4/28/2006) (Entered: 04/28/2006)
82 NOTICE by United States of America of First Statement of Interest of the United States (Coppolino, Anthony) (Filed on 4/28/2006) (Entered: 04/28/2006)
83 NOTICE of Appearance by Anthony Joseph Coppolino on behalf of the United States of America (Coppolino, Anthony) (Filed on 4/28/2006) (Entered: 04/28/2006)
84 RESPONSE in Support Defendant ATTCorp.'s Response to Brief of Amici Curiae Center for Constitutional Rights and American Civil Libeties Union in Opposition to Filing Documents Under Seal [DKT. 30−32] filed byATTCorp.. (Ericson, Bruce) (Filed on 4/28/2006) (Entered: 04/28/2006)
85 NOTICE of Appearance by Andrew H Tannenbaum on Behalf of the United States of America (Tannenbaum, Andrew) (Filed on 4/28/2006) (Entered: 04/28/2006)
86 MOTION to Dismiss Motion of Defendant ATTCorp. To Dismiss Plaintiffs' Amended Complaint; Supporting Memorandum filed by ATTCorp.. Motion Hearing set for 6/8/2006 02:00 PM in Courtroom 6, 17th Floor, San Francisco. (Ericson, Bruce) (Filed on 4/28/2006) (Entered: 04/28/2006)
87 Request for Judicial Notice re 86 MOTION to Dismiss Motion of Defendant ATTCorp. To Dismiss Plaintiffs' Amended Complaint; Supporting Memorandum Request for Judicial Notice in Support of Defendant ATTCorp.'s Motion to Dismiss filed byATTCorp.. (Attachments: # 1 Exhibit Exhibit A Part 1# 2 Exhibit Exhibit A Part 2# 3 Exhibit Exhibit B through D# 4 Exhibit Exhibit E through J)(Related document(s) 86 ) (Ericson, Bruce) (Filed on 4/28/2006) (Entered: 04/28/2006)
88 Proposed Order re 86 MOTION to Dismiss Motion of Defendant ATTCorp. To Dismiss Plaintiffs' Amended Complaint; Supporting Memorandum, 87 Request for Judicial Notice, [Proposed] Order Granting ATTCorp.'s Motion to Dismiss Plaintiffs' Amended Complaint by ATTCorp.. (Ericson, Bruce) (Filed on 4/28/2006) (Entered: 04/28/2006)
89 MOTION to Dismiss Administrative Motion to Set Hearing Dates for Defendants' Motions to Dismiss filed by ATTCorp.. (Ericson, Bruce) (Filed on 4/28/2006) (Entered: 04/28/2006)
90 Declaration in Support of 89 MOTION to Dismiss Administrative Motion to Set Hearing Dates for Defendants' Motions to Dismiss Declaration of Bruce A. Ericson in Support of Administrative Motion to Set Hearing Dates for Defendants' Motions to Dismiss filed byATTCorp.. (Related document(s) 89 ) (Ericson, Bruce) (Filed on 4/28/2006) (Entered: 04/28/2006)
91 Proposed Order re 89 MOTION to Dismiss Administrative Motion to Set Hearing Dates for Defendants' Motions to Dismiss, 90 Declaration in Support, [Proposed] Order Granting Administrative Motion of Defendants ATTCorp. to Specially Set the Hearing on Defendants' Motion to Dismiss by ATTCorp.. (Ericson, Bruce) (Filed on 4/28/2006) (Entered: 04/28/2006)
92 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. re 86 MOTION to Dismiss Motion of Defendant ATTCorp. To Dismiss Plaintiffs' Amended Complaint; Supporting Memorandum, 79 MOTION to Dismiss Motion of Defendant ATInc. to Dismiss Plaintiffs' Amended Complaint; Supporting Memorandum, 80 Declaration in Support,, 88 Proposed Order,, 87 Request for Judicial Notice,, 89 MOTION to Dismiss Administrative Motion to Set Hearing Dates for Defendants' Motions to

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 20 of 42

05/01/2006 05/01/2006 05/01/2006 05/01/2006 05/01/2006 05/01/2006 05/01/2006
05/01/2006 05/01/2006 05/02/2006 05/02/2006 05/02/2006 05/03/2006
05/03/2006

Dismiss, 81 Proposed Order,, 90 Declaration in Support,, 84 Response in Support,, 91 Proposed Order, Via U.S. Mail (Ericson, Bruce) (Filed on 4/28/2006) (Entered: 04/28/2006)
94 Letter from Plaintiffs re Discovery. (Cohn, Cindy) (Filed on 5/1/2006) (Entered: 05/01/2006)
95 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel of Manual Filing of Notice of 30(b)(6) Deposition of ATTCorp. (Cohn, Cindy) (Filed on 5/1/2006) (Entered: 05/01/2006)
96 MOTION to Remove Incorrectly Filed Document filed by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on 5/1/2006) (Entered: 05/01/2006)
97 Declaration of Cindy Cohn in Support of Motion to Remove Incorrectly Filed Document filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on 5/1/2006) (Entered: 05/01/2006)
98 Proposed Order Granting Motion to Remove Incorrectly Filed Document by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on 5/1/2006) (Entered: 05/01/2006)
99 Memorandum in Opposition TO THE MOTION OF DEFENDANT ATTCORP. TO COMPEL RETURN OF CONFIDENTIAL DOCUMENTS filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Morris, Maria) (Filed on 5/1/2006) (Entered: 05/01/2006)
100 Declaration of KEVIN S. BANKSTON in Support of 99 Memorandum in Opposition TO THE MOTION OF DEFENDANT ATTCORP. TO COMPEL RETURN OF CONFIDENTIAL DOCUMENTS filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Related document(s) 99 ) (Morris, Maria) (Filed on 5/1/2006) (Entered: 05/01/2006)
101 Proposed Order re 99 Memorandum in Opposition TO THE MOTION OF DEFENDANT ATTCORP. TO COMPEL RETURN OF CONFIDENTIAL DOCUMENTS by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Morris, Maria) (Filed on 5/1/2006) (Entered: 05/01/2006)
227 NOTICE of 30(b)(6) Deposition of ATTCorp. by Gregory Hicks, Erik Knutzen, Tash Hepting, Benson B. Roe, Carolyn Jewel FILED UNDER SEAL (gba, COURT STAFF) (Filed on 5/1/2006) (Entered: 06/15/2006)
102 ADR Clerks Notice Setting ADR Phone Conference on 5/11/06 at 9:30 a.m. Please take note that plaintiff's counsel initiates the call to all parties. (tjs, COURT STAFF) (Filed on 5/2/2006) (Entered: 05/02/2006)
103 Letter from Defendant ATTCorp. in Opposition to Plaintiffs' Request for Leave to File Motion to Compel Discovery. (Ericson, Bruce) (Filed on 5/2/2006) (Entered: 05/02/2006)
104 CERTIFICATE OF SERVICE by ATTCorp. re 103 Letter Proof of Service Via US Mail (Ericson, Bruce) (Filed on 5/2/2006) (Entered: 05/02/2006)
105 ORDER. On May 2, 2006, the court received a letter from a producer at CNBC requesting permission to film inside the undersigned's courtroom at the May 17, 2006 hearing. The court DENIES this request for the May 17 hearing but the issue of filming/taping may be re−considered for future hearings after the parties have been given notice and an opportunity to be heard and to advise the court on this issue. The court DIRECTS the clerk to place this letter in the file. Signed by Chief Judge Vaughn R Walker on May 2, 2006. (vrwlc2, COURT STAFF) (Filed on 5/3/2006) (Entered: 05/03/2006)
106 Memorandum in Opposition to Administrative Motion for Order Shortening Time as to ATs Motion to Dismiss filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on 5/3/2006) (Entered: 05/03/2006)

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 21 of 42

05/04/2006 05/04/2006 05/04/2006 05/04/2006
05/04/2006 05/04/2006
05/04/2006 05/04/2006 05/04/2006
05/05/2006 05/05/2006 05/05/2006 05/05/2006 05/08/2006 05/08/2006

107 Reply Memorandum Defendants' Reply in Support of Administrative Motion to Set Hearing Dates for Motions to Dismiss filed byATTCorp., ATTInc.. (Ericson, Bruce) (Filed on 5/4/2006) (Entered: 05/04/2006)
108 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. re 107 Reply Memorandum Defendants' Reply in Support of Administrative Motion to Set Hearing Dates for Motions to Dismiss (Ericson, Bruce) (Filed on 5/4/2006) (Entered: 05/04/2006)
109 CASE MANAGEMENT STATEMENT filed by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on 5/4/2006) (Entered: 05/04/2006)
110 ORDER by Chief Judge Vaughn R Walker granting 96 Motion to Remove Incorrectly Filed DocumentPlaintiffs' Administrative Motion to Remove Incorrectly Filed Document From Docket is hereby GRANTED. The Clerk will remove document #93 from the court's electronic filing system.(vrwlc2, COURT STAFF) (Filed on 5/4/2006) (Entered: 05/04/2006)
111 MOTION to File Amicus Curiae Brief Notice of Motion and Motion of Mark Klein for Leave to File Brief as Amicus Curiae filed by Mark Klein. (Brosnahan, James) (Filed on 5/4/2006) (Entered: 05/04/2006)
112 Declaration of James J. Brosnahan in Support of 111 MOTION to File Amicus Curiae Brief Notice of Motion and Motion of Mark Klein for Leave to File Brief as Amicus Curiae Declaration of James J. Brosnahan in Support of Motion of Mark Klein for Leave to File Brief as Amicus Curiae filed byMark Klein. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B)(Related document(s) 111 ) (Brosnahan, James) (Filed on 5/4/2006) (Entered: 05/04/2006)
113 Proposed Order re 111 MOTION to File Amicus Curiae Brief Notice of Motion and Motion of Mark Klein for Leave to File Brief as Amicus Curiae [Proposed] Order Granting Mark Klein's Motion for Leave to File Brief as Amicus Curiae by Mark Klein. (Brosnahan, James) (Filed on 5/4/2006) (Entered: 05/04/2006)
114 Brief re 111 MOTION to File Amicus Curiae Brief Notice of Motion and Motion of Mark Klein for Leave to File Brief as Amicus Curiae Brief of Amicus Curiae Mark Klein filed byMark Klein. (Attachments: # 1 Exhibit Exhibit A)(Related document(s) 111 ) (Brosnahan, James) (Filed on 5/4/2006) (Entered: 05/04/2006)
115 Appendix re 111 MOTION to File Amicus Curiae Brief Notice of Motion and Motion of Mark Klein for Leave to File Brief as Amicus Curiae Amicus Curiae Mark Klein's Submission of Legal Authority Regarding State Secrets Privilege filed byMark Klein. (Attachments: # 1 Exhibit Tab 1# 2 Exhibit Tab 2# 3 Exhibit Tab 3# 4 Exhibit Tab 4# 5 Exhibit Tab 5# 6 Exhibit Tab 6# 7 Exhibit Tab 7)(Related document(s) 111 ) (Brosnahan, James) (Filed on 5/4/2006) (Entered: 05/04/2006)
116 CERTIFICATE OF SERVICE by Mark Klein re 111 MOTION to File Amicus Curiae Brief Notice of Motion and Motion of Mark Klein for Leave to File Brief as Amicus Curiae Certificate of Service by Mail (Martinez, Brian) (Filed on 5/5/2006) (Entered: 05/05/2006)
117 NOTICE by ATTCorp. Notice of Manual Filing of Defendant ATTCorp.'s Reply Memorandum in Support of Motion to Compel Return of Confidential Documents [DKT. 41−44] (Ericson, Bruce) (Filed on 5/5/2006) (Entered: 05/05/2006)
118 CERTIFICATE OF SERVICE by ATTCorp. re 117 Notice (Other) Proof of Service Via U.S. Mail (Ericson, Bruce) (Filed on 5/5/2006) (Entered: 05/05/2006)
228 Reply Memorandum in Support of Motion to Compel Return of Confidential Documens [41−44] filed byATTCorp., ATTInc.FILED UNDER SEAL (gba, COURT STAFF) (Filed on 5/5/2006) (Entered: 06/15/2006)
119 ORDER by Chief Judge Vaughn R Walker granting 111 Motion for Leave to File Amicus Curiae Brief(vrwlc2, COURT STAFF) (Filed on 5/8/2006) (Entered: 05/08/2006)
120 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. Defendant ATs Corp.'s Reply Memorandum in Support of Motion to Compel Return of Confidential Documents [Dkt. 41−44] (filed under seal) (Sorensen, Jacob) (Filed on 5/8/2006)

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 22 of 42

05/10/2006 05/11/2006 05/13/2006 05/13/2006 05/13/2006 05/13/2006 05/13/2006 05/16/2006 05/16/2006
05/16/2006
05/17/2006
05/17/2006 05/17/2006 05/18/2006 05/18/2006 05/19/2006

(Entered: 05/08/2006)
121 Memorandum in Opposition Defendants' Response to Plaintiffs' Case Management Statement [Dkt. 109] filed byATTCorp., ATTInc.. (Ericson, Bruce) (Filed on 5/10/2006) (Entered: 05/10/2006)
ADR Remark: ADR Phone Conference conducted on 5/11/06 by RWS. (tjs, COURT STAFF) (Filed on 5/11/2006) (Entered: 05/11/2006)
122 MOTION to Intervene filed by United States of America. (Attachments: # 1)(Coppolino, Anthony) (Filed on 5/13/2006) (Entered: 05/13/2006)
123 MOTION for Hearing re 122 MOTION to Intervene filed by United States of America. (Attachments: # 1 # 2)(Coppolino, Anthony) (Filed on 5/13/2006) (Entered: 05/13/2006)
124 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by United States of America. (Attachments: # 1 # 2)(Coppolino, Anthony) (Filed on 5/13/2006) (Entered: 05/13/2006)
125 NOTICE by United States of America re 124 MOTION to Dismiss or, in the Alternative, for Summary Judgment Notice of Lodging of In Camera, Ex Parte Material (Coppolino, Anthony) (Filed on 5/13/2006) (Entered: 05/13/2006)
126 MOTION for Leave to File Excess Pages filed by United States of America. (Attachments: # 1)(Coppolino, Anthony) (Filed on 5/13/2006) (Entered: 05/13/2006)
127 ORDER by Chief Judge Vaughn R Walker granting 126 Motion for Enlargement of Pages by the United States of America. (cgd, COURT STAFF) (Filed on 5/16/2006) (Entered: 05/16/2006)
128 Memorandum in Opposition to Administrative Motion of the USA to Set Hearing Date for Government Motion to Dismiss and Motion to Intervene filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on 5/16/2006) (Entered: 05/16/2006)
166 Letter from David L. Anderson, Attorney for Defendants, to the Honorable Vaughn R. Walker dated 5/16/2006 requesting that the Court hold a brief telepone confeence this afternoon to discuss the logistics for tomorrow's hearing on ATs motion to compel return of its confidential and proprietary documents and plaintiffs' motion to unseal certain documents that were filed under seal. (gsa, COURT STAFF) (Filed on 5/16/2006) (Entered: 06/05/2006)
129 Memorandum in Opposition TO MOTION TO SEAL; OPPOSITION TO CLOSURE OF COURTROOM; MOTION TO INTERVENE filed byAssociated Press, Bloomberg News, Los Angeles Times, San Francisco Chronicle, San Jose Mercury News. (Olson, Karl) (Filed on 5/17/2006) (Entered: 05/17/2006)
130 Minute Entry: Motion Hearing held on 5/17/2006 before Chief Judge Vaughn R Walker (Date Filed: 5/17/2006) (Court Reporter Connie Kuhl) (vrwlc2, COURT STAFF). (Entered: 05/17/2006)
305 MEMORANDUM in Support of Closure of Hearing filed byATTCorp., ATTInc.. (gsa, COURT STAFF) (Filed on 5/17/2006) (Entered: 07/12/2006)
131 NOTICE of Appearance by Robert D. Fram on behalf of Heller Ehrman LLP (Fram, Robert) (Filed on 5/18/2006) (Entered: 05/18/2006)
132 CERTIFICATE OF SERVICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel re 131 Notice of Appearance (Markman, Michael) (Filed on 5/18/2006) (Entered: 05/18/2006)
133 MOTION to Intervene Notice of Motion and Motion for Leave to Intervene; Notice of Motion and Motion to Unseal Documents filed by USA Today, Associated Press, Bloomberg News, Los Angeles Times, San Francisco Chronicle, San Jose Mercury News. Motion Hearing set for 6/23/2006 09:30 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Declaration of Karl Olson in Support of Motion for Leave to Intervene and Motion to Unseal Documents# 2 Proposed

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 23 of 42

05/22/2006 05/22/2006
05/22/2006 05/22/2006 05/22/2006 05/23/2006 05/23/2006 05/24/2006
05/24/2006 05/24/2006 05/24/2006 05/24/2006 05/24/2006

Order Granting Motions for Leave to Intervene and Unseal Records)(Olson, Karl) (Filed on 5/19/2006) (Entered: 05/19/2006)
134 MEMORANDUM in Support re 130 Motion Hearing PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO COURT'S MAY 17, 2006 MINUTE ORDER filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Related document(s) 130 ) (Scarlett, Shana) (Filed on 5/22/2006) (Entered: 05/22/2006)
135 Declaration in Support of 134 Memorandum in Support, DECLARATION OF SHANA E. SCARLETT IN SUPPORT OF PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO COURT'S MAY 17, 2006 MINUTE ORDER filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit 1)(Related document(s) 134 ) (Scarlett, Shana) (Filed on 5/22/2006) (Entered: 05/22/2006)
136 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel re 134 Memorandum in Support, MANUAL FILING NOTIFICATION REGARDING PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO COURT'S MAY 17, 2006 MINUTE ORDER (Scarlett, Shana) (Filed on 5/22/2006) (Entered: 05/22/2006)
137 Declaration PROOF OF SERVICE filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Scarlett, Shana) (Filed on 5/22/2006) (Entered: 05/22/2006)
138 TRANSCRIPT of Proceedings held on 5/17/2006 before Judge Vaughn R. Walker. Court Reporter: Connie Kuhl.. (gsa, COURT STAFF) (Filed on 5/22/2006) (Entered: 05/23/2006)
139 MOTION to Intervene and Unseal Documents filed by Lycos, Inc., Wired News. Motion Hearing set for 6/29/2006 02:00 PM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Alger, Timothy) (Filed on 5/23/2006) (Entered: 05/23/2006)
140 MOTION to Shorten Time on Motion to Intervene and Unseal Documents filed by Lycos, Inc., Wired News. (Attachments: # 1 Proposed Order)(Alger, Timothy) (Filed on 5/23/2006) (Entered: 05/23/2006)
*** FILED IN ERROR. DOCUMENT LOCKED. PLEASE SEE DOCKET # 150 . *** Reply Memorandum [Redacted] Reply Memorandum of Defendant ATTCorp. in Response to Court's May 17, 2006 Minute Order filed byATTCorp.. (Ericson, Bruce) (Filed on 5/24/2006) Modified on 5/26/2006 (ewn, COURT STAFF). Modified on 5/26/2006 (ewn, COURT STAFF). (Entered: 05/24/2006)
142 NOTICE by ATTCorp. Notice of Manual Filing of Reply Memorandum of Defendant ATTCorp. in Response to Court's May 17, 2006 Minute Order (Ericson, Bruce) (Filed on 5/24/2006) (Entered: 05/24/2006)
143 CERTIFICATE OF SERVICE by ATTCorp. re 141 Reply Memorandum, 142 Notice (Other) Proof of Service Via U.S. Mail (Ericson, Bruce) (Filed on 5/24/2006) (Entered: 05/24/2006)
144 CERTIFICATE OF SERVICE by Associated Press, Bloomberg News, Los Angeles Times, San Francisco Chronicle, San Jose Mercury News, USA Today re 133 MOTION to Intervene Notice of Motion and Motion for Leave to Intervene; Notice of Motion and Motion to Unseal Documents (Olson, Karl) (Filed on 5/24/2006) (Entered: 05/24/2006)
145 RESPONSE in Support United States' Response to Plaintiffs' Memorandum of Points and Authorities in Response to Court's May 17, 2006 Minute Order filed byUnited States of America. (Attachments: # 1 Exhibit A −− El Masri Opinion (E.D.Va.))(Orleans, Renee) (Filed on 5/24/2006) (Entered: 05/24/2006)
157 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. re 150 Reply Memorandum (gsa, COURT STAFF) (Filed on 5/24/2006) (Entered: 05/30/2006)

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 24 of 42

05/24/2006 05/24/2006 05/25/2006 05/25/2006 05/25/2006 05/25/2006
05/26/2006 05/26/2006 05/26/2006
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163 MEMORANDUM in Response to Court's 5/17/2006 Minute Order re 130 Motion Hearing filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. FILED UNDER SEAL (Related document(s) 130 ) (gsa, COURT STAFF) (Filed on 5/24/2006) (Entered: 06/05/2006)
164 Reply Memorandum of defedant ATTCorp. in Response to Court's May 17, 2006 Minute Order to re 130 Motion Hearing by ATTCorp., ATTInc. FILED UNDER SEAL. (gsa, COURT STAFF) (Filed on 5/24/2006) (Entered: 06/05/2006)
146 Letter from Electronic Frontier Foundation to Hon. Vaughn R. Walker. (Tien, Tze) (Filed on 5/25/2006) (Entered: 05/25/2006)
147 Declaration of Mark Klein in Support of Plaintiffs' Motion for Preliminary Injunction [REDACTED] filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Tien, Tze) (Filed on 5/25/2006) (Entered: 05/25/2006)
148 CERTIFICATE OF SERVICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel (Tien, Tze) (Filed on 5/25/2006) (Entered: 05/25/2006)
149 MEMORANDUM in Support Motion for Preliminary Injunction; Plaintiffs' Amended Notice of Motion and Motion for Preliminary Injunction [REDACTED] filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Supplement Document Part 2# 2 Supplement Document Part 3# 3 Supplement Document Part 4)(Tien, Tze) (Filed on 5/25/2006) (Entered: 05/25/2006)
150 Reply Memorandum [Redacted] Reply Memorandum of Defendant ATTCorp. in Response to Court's May 17, 2006 Minute Order CORRECTION OF DOCKET # 141 filed byATTCorp.. (Ericson, Bruce) (Filed on 5/26/2006) (Entered: 05/26/2006)
151 Memorandum in Opposition ATs Opposition to Motion for Order Shortening Time for Hearing on Motion of Lycos, Inc. and Wired News for Orders Permitting Intervention and Unsealing Documents filed byATTCorp., ATTInc.. (Ericson, Bruce) (Filed on 5/26/2006) (Entered: 05/26/2006)
152 Declaration of Bruce A. Ericson in Support of 151 Memorandum in Opposition, ATs Opposition to Motion for Order Shortening Time for Hearing on Motion of Lycos, Inc. and Wired News for Orders Permitting Intervention and Unsealing Documents filed byATTCorp., ATTInc.. (Related document(s) 151 ) (Ericson, Bruce) (Filed on 5/26/2006) (Entered: 05/26/2006)
153 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. re 151 Memorandum in Opposition,, 152 Declaration in Support, (Ericson, Bruce) (Filed on 5/26/2006) (Entered: 05/26/2006)
154 MOTION to Remove Incorrectly Filed Document re 141 Reply Memorandum, filed by ATTCorp.. (Ericson, Bruce) (Filed on 5/26/2006) (Entered: 05/26/2006)
155 Declaration of Bruce A. Ericson in Support of 154 MOTION to Remove Incorrectly Filed Document re 141 Reply Memorandum, filed byATTCorp.. (Related document(s) 154 ) (Ericson, Bruce) (Filed on 5/26/2006) (Entered: 05/26/2006)
156 Proposed Order re 154 MOTION to Remove Incorrectly Filed Document re 141 Reply Memorandum, by ATTCorp.. (Ericson, Bruce) (Filed on 5/26/2006) (Entered: 05/26/2006)
158 ORDER by Chief Judge Vaughn R Walker granting 140 Lycos Inc and Wired News' Administrative Motion for an Order Shortening Time for hearing on their motion to intervene and motion to unseal documents. Hearing on the Motion by Lycos, Inc and Wired News to Intervene and Unseal Documents will be held on 6/23/2006 at 9:30 AM. Opposition due 6/12/2006. Reply due 6/19/2006. (cgd, COURT STAFF) (Filed on 6/2/2006) (Entered: 06/02/2006)
159 ORDER by Chief Judge Vaughn R Walker granting 154 Motion to Remove Incorrectly Filed Document,doc. #141. (cgd, COURT STAFF) (Filed on 6/2/2006) (Entered: 06/02/2006)

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160 Memorandum in Opposition DEFENDANT ATTCORP.'S MEMORANDUM IN OPPOSITION TO MOTION FOR LEAVE TO INTERVENE AND MOTION TO UNSEAL DOCUMENTS filed byATTCorp.. (Ericson, Bruce) (Filed on 6/2/2006) (Entered: 06/02/2006)
161 RESPONSE in Support of Motions of the San Francisco Chronicle et al. for Leave to Intervene and to Unseal Records filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Tien, Tze) (Filed on 6/2/2006) (Entered: 06/02/2006)
162 DECLARATION of Bruce A. Ericson in Opposition to 160 Memorandum in Opposition DECLARATION OF BRUCE A. ERICSON IN SUPPORT OF DEFENDANT ATTCORP.'S MEMORANDUM IN OPPOSITION TO MOTION FOR LEAVE TO INTERVENE AND MOTION TO UNSEAL DOCUMENTS filed byATTCorp.. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D# 5 Exhibit Exhibit E# 6 Exhibit Exhibit F# 7 Exhibit Exhibit G# 8 Exhibit Exhibit H)(Related document(s) 160 ) (Ericson, Bruce) (Filed on 6/2/2006) (Entered: 06/02/2006)
165 MOTION to Related Case ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED filed by Benson B. Roe. (Himmelstein, Barry) (Filed on 6/5/2006) (Entered: 06/05/2006)
167 Declaration of ADAM L. RUBINGER IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT ATTINC.'S MOTION TO DISMISS AMENDED COMPLAINT filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit A)(Morris, Maria) (Filed on 6/6/2006) (Entered: 06/06/2006)
168 Declaration of DANIEL O'BRIEN IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT ATTINC.'S MOTION TO DISMISS AMENDED COMPLAINT filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Morris, Maria) (Filed on 6/6/2006) (Entered: 06/06/2006)
169 Declaration of JAMES S. TYRE IN SUPPORT OF PLAINTIFFS' OPPOSITION TO ATTINC.'S MOTION TO DISMISS AMENDED COMPLAINT filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Exhibit P# 17 Exhibit Q# 18 Exhibit R# 19 Exhibit S# 20 Exhibit T# 21 Exhibit U# 22 Exhibit V# 23 Exhibit W# 24 Exhibit X# 25 Exhibit Y# 26 Exhibit Z)(Morris, Maria) (Filed on 6/6/2006) (Entered: 06/06/2006)
170 Proposed Order DENYING ATTINC.'S MOTION TO DISMISS AMENDED COMPLAINT by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Morris, Maria) (Filed on 6/6/2006) (Entered: 06/06/2006)
171 ORDER re 145 Response in Support filed by United States of America, 134 Memorandum in Support filed by Tash Hepting, Gregory Hicks, Erik Knutzen, Carolyn Jewel, 150 Reply Memorandum filed by ATTCorp,Because review of the classified documents is necessary to determine whether and to what extent the state secrets privilege applies, the court ORDERS the government forthwith to provide in camera and no later than June 9, 2006, the classified memorandum and classified declarations of John D Negroponte and Keith B Alexander for review by the undersigned and by any chambers personnel that he so authorizes.Signed by Chief Judge Vaughn R Walker on 06/06/06. (vrwlc2, COURT STAFF) (Filed on 6/6/2006). (Entered: 06/06/2006)
172 MOTION for Leave to File Excess Pages for Plaintiff's Opposition to Motion to Dismiss Amended Complaint by Defendant ATCorp.; Notice of Motion; Memorandum of Points and Authorities filed by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on 6/6/2006) (Entered: 06/06/2006)
173 Declaration of Michael M. Markman in Support of Plaintiffs' Motion to Extend Page Limit for Opposition to Motion to Dismiss Amended Complaint by Defendant ATCorp. filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel.

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(Cohn, Cindy) (Filed on 6/6/2006) (Entered: 06/06/2006)
174 Memorandum in Opposition to Defendant ATTInc.'s Motion to Dismiss Amended Complaint filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Morris, Maria) (Filed on 6/6/2006) (Entered: 06/06/2006)
175 Proposed Order Granting Plaintiffs' Motion to Extend Page Limit by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on 6/6/2006) (Entered: 06/06/2006)
176 Memorandum in Opposition to Motion to Dismiss Amended Complaint by Defendant ATCorp. filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on 6/6/2006) (Entered: 06/06/2006)
177 Proposed Order Denying ATTCorp.'s Motion to Dismiss Plaintiffs' Amended Complaint by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on 6/6/2006) (Entered: 06/06/2006)
178 Declaration of Daniel O'Brien in Support of 174 Memorandum in Opposition [CORRECTED] Declaration of Daniel O'Brien in Support of Plaintiffs' Opposition to Defendant ATTInc.'s Motion to Dismiss Amended Complaint filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit A1# 2 Exhibit A2# 3 Exhibit A3# 4 Exhibit B# 5 Exhibit C# 6 Exhibit D)(Related document(s) 174 ) (Morris, Maria) (Filed on 6/6/2006) (Entered: 06/06/2006)
179 Declaration of James S. Tyre in Support of 174 Memorandum in Opposition [CORRECTED] Declaration of James S. Tyre in Support of Plaintiffs' Opposition to Defendant ATTInc.'s Motion to Dismiss Amended Complaint filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Exhibit P# 17 Exhibit Q# 18 Exhibit R# 19 Exhibit S# 20 Exhibit T# 21 Exhibit U# 22 Exhibit V# 23 Exhibit W# 24 Exhibit X# 25 Exhibit Y# 26 Exhibit Z)(Related document(s) 174 ) (Morris, Maria) (Filed on 6/6/2006) (Entered: 06/06/2006)
180 Declaration of Adam L. Rubinger in Support of 174 Memorandum in Opposition [CORRECTED] Declaration of Adam L. Rubinger in Support of Plaintiffs' Opposition to Defendant ATTInc.'s Motion to Dismiss Amended Complaint filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit A)(Related document(s) 174 ) (Morris, Maria) (Filed on 6/6/2006) (Entered: 06/06/2006)
207 MOTION to Intervene and Consolidate similar and pending case number A−05−CA−682−LY in the Western District of Texas at Austin filed by Willie H. Ellis. (gba, COURT STAFF) (Filed on 6/6/2006) (Entered: 06/13/2006)
181 Memorandum in Opposition to motion to dismiss (notice of manual filing) filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Fram, Robert) (Filed on 6/8/2006) (Entered: 06/08/2006)
182 DECLARATION of Michael M. Markman in opposition to motion to dismiss (notice of manual filing − decl. only) filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(Fram, Robert) (Filed on 6/8/2006) (Entered: 06/08/2006)
183 MOTION to Seal Document opposition to motion to dismiss, and declaration in support of motion to dismiss, First MOTION for Leave to File Excess Pages filed by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. Motion Hearing set for 6/23/2006 09:30 AM in Courtroom 6, 17th Floor, San Francisco. (Fram, Robert) (Filed on 6/8/2006) (Entered: 06/08/2006)
184 Declaration of Michael M. Markman in support of administrative motions to extend page limit for opposition to United States' motion to dismiss and to lodge documents with the Court (N.D. Cal. Civil Local Rules 7−11, 79−5) filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Fram, Robert) (Filed on 6/8/2006) (Entered: 06/08/2006)

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185 Proposed Order Granting Plaintiffs' Motion to Extend Page Limit and File Documents Under Seal by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Fram, Robert) (Filed on 6/8/2006) (Entered: 06/08/2006)
191 NOTICE of Manual Filing by Gregory Hicks, Tash Hepting, Carolyn Jewel (gsa, COURT STAFF) (Filed on 6/8/2006) (Entered: 06/12/2006)
192 Memorandum in Opposition re 124 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed byGregory Hicks, Tash Hepting, Carolyn Jewel. FILED UNDER SEAL (gsa, COURT STAFF) (Filed on 6/8/2006) (Entered: 06/12/2006)
193 NOTICE OF MANUAL FILING by Gregory Hicks, Tash Hepting, Carolyn Jewel (gsa, COURT STAFF) (Filed on 6/8/2006) (Entered: 06/12/2006)
194 DECLARATION of Michael M. Markman in Opposition to 124 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed byGregory Hicks, Tash Hepting, Carolyn Jewel. (Related document(s) 124 ) (gsa, COURT STAFF) (Filed on 6/8/2006) (Entered: 06/12/2006)
186 Reply Memorandum re 133 MOTION to Intervene Notice of Motion and Motion for Leave to Intervene; Notice of Motion and Motion to Unseal Documents filed byAssociated Press, Bloomberg News, Los Angeles Times, San Francisco Chronicle, San Jose Mercury News, USA Today. (Olson, Karl) (Filed on 6/9/2006) (Entered: 06/09/2006)
187 Declaration of Karl Olson in Support of 186 Reply Memorandum, in Support of Press' Motion to Intervene and Unseal Records filed byAssociated Press, Bloomberg News, Los Angeles Times, San Francisco Chronicle, San Jose Mercury News, USA Today. (Attachments: # 1 Exhibit A)(Related document(s) 186 ) (Olson, Karl) (Filed on 6/9/2006) (Entered: 06/09/2006)
188 CERTIFICATE OF SERVICE by Associated Press, Bloomberg News, Los Angeles Times, San Francisco Chronicle, San Jose Mercury News, USA Today re 186 Reply Memorandum,, 187 Declaration in Support, (Olson, Karl) (Filed on 6/9/2006) (Entered: 06/09/2006)
189 RELATED CASE ORDER by Chief Judge Vaughn R Walker granting 165 Motion to Relate Case. (cgd, COURT STAFF) (Filed on 6/9/2006) (Entered: 06/09/2006)
190 RESPONSE in Support Response of ATTCorp. to Plaintiffs' Motion for Leave to File Excess Pages [Dkts. 172−73, 175] filed byATTCorp.. (Ericson, Bruce) (Filed on 6/10/2006) (Entered: 06/10/2006)
195 Memorandum in Opposition of Defendant ATTCorp. to Motion of Lycos, Inc. and Wired News for Orders Permitting Intervention and Unsealing Documents [DKT. 139] filed byATTCorp., ATTInc.. (Ericson, Bruce) (Filed on 6/12/2006) (Entered: 06/12/2006)
196 Declaration of Bruce A. Ericson in Support of 195 Memorandum in Opposition of Defendant ATTCorp. to Motion of Lycos, Inc. and Wired News for Orders Permitting Intervention and Unsealing Documents [DKT. 139] filed byATTCorp., ATTInc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I, Part One# 10 Exhibit I, Part Two# 11 Exhibit J# 12 Exhibit K)(Related document(s) 195 ) (Ericson, Bruce) (Filed on 6/12/2006) (Entered: 06/12/2006)
197 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel of Motion and Administrative Motion Pursuant to Civil Local Rules 7−11 and 79−5 to Seal Plaintiffs' Statement in Support of Motion by Lycos, Inc. and Wired News for Orders (1) Permitting Intervention and (2) Unsealing Documents (Morris, Maria) (Filed on 6/12/2006) (Entered: 06/12/2006)
198 Proposed Order Regarding Notice of Motion and Administrative Motion Pursuant to Civil Local Rules 7−11 and 79−5 to Seal Plaintiffs' Statement in Support of Motion by Lycos, Inc. and Wired News for Orders (1) Permitting Intervention and (2) Unsealing Documents by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Morris, Maria) (Filed on 6/12/2006) (Entered: 06/12/2006)

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199 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel of Manual Filing Regarding Plaintiffs' Statement in Support of Motion by Lycos, Inc. and Wired News for Orders (1) Permitting Intervention and (2) Unsealing Documents (Morris, Maria) (Filed on 6/12/2006) (Entered: 06/12/2006)
200 Declaration of Maria V. Morris in Support of 199 Notice (Other), Notice (Other) Plaintiffs' Statement in Support of Motion by Lycos, Inc. and Wired News for Orders (1) Permitting Intervention and (2) Unsealing Documents filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Related document(s) 199 ) (Morris, Maria) (Filed on 6/12/2006) (Entered: 06/12/2006)
201 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. re 195 Memorandum in Opposition, 196 Declaration in Support,, Opposition of Defendant ATTCorp. to Motion of Lycos, Inc. and Wired News for Orders Permitting Intervention and Unsealing Documents [DKT. 139] (Ericson, Bruce) (Filed on 6/12/2006) (Entered: 06/12/2006)
218 Statement in Support re 212 Order, filed byGregory Hicks, Erik Knutzen, Tash Hepting, Benson B. Roe, Carolyn Jewel. (Related document(s) 212 ) (gsa, COURT STAFF) (Filed on 6/12/2006) (Entered: 06/15/2006)
202 Memorandum in Opposition PRESS INTERVENORS' OPPOSITION TO ADMINISTRATIVE MOTION TO FILE OPPOSITION UNDER SEAL (Rule 7−11(b)) filed byAssociated Press, Bloomberg News, Los Angeles Times, San Francisco Chronicle, San Jose Mercury News, USA Today. (Olson, Karl) (Filed on 6/13/2006) (Entered: 06/13/2006)
203 Proposed Order re 202 Memorandum in Opposition, DENYING ADMINISTRATIVE MOTION TO FILE OPPOSITION UNDER SEAL by Associated Press, Bloomberg News, Los Angeles Times, San Francisco Chronicle, San Jose Mercury News, USA Today. (Olson, Karl) (Filed on 6/13/2006) (Entered: 06/13/2006)
204 CERTIFICATE OF SERVICE by Associated Press, Bloomberg News, Los Angeles Times, San Francisco Chronicle, San Jose Mercury News, USA Today re 202 Memorandum in Opposition, (Olson, Karl) (Filed on 6/13/2006) (Entered: 06/13/2006)
205 RESPONSE in Support RESPONSE OF ATTCORP. TO PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL [DKTS. 183−85] filed byATTCorp., ATTInc.. (Ericson, Bruce) (Filed on 6/13/2006) (Entered: 06/13/2006)
206 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. TO RESPONSE OF ATTCORP. TO PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL [DKTS. 183−85] (Ericson, Bruce) (Filed on 6/13/2006) (Entered: 06/13/2006)
208 MOTION to Related Case Administrative Motion of Defendant ATTCorp. to Consider Whether Cases Should Be Related (Nos. C−06−0672−VRW and C−06−3596−VRW) filed by ATTCorp.. (Ericson, Bruce) (Filed on 6/13/2006) (Entered: 06/13/2006)
209 MOTION to Related Case Proposed Order Deeming Cases Related filed by ATTCorp.. (Ericson, Bruce) (Filed on 6/13/2006) (Entered: 06/13/2006)
210 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. re 208 MOTION to Related Case Administrative Motion of Defendant ATTCorp. to Consider Whether Cases Should Be Related (Nos. C−06−0672−VRW and C−06−3596−VRW) Proof of Service Via U.S. Mail (Ericson, Bruce) (Filed on 6/14/2006) (Entered: 06/14/2006)
211 ORDER by Chief Judge Vaughn R Walker granting 183 Motion to Seal Document, granting 183 Motion for Leave to File Excess Pages. The court hereby Orders that Plaintiffs may file a memorandum of points and authorities of 60 pages in support of their opposition to the United States' motion to dismiss, and may file this motion and the supporting declaration under seal. (cgd, COURT STAFF) (Filed on 6/14/2006) (Entered: 06/14/2006)

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212 ORDER granting request to file under seal Plaintiffs' Statement in support of motion by Lycos, Inc and Wired News for orders permitting intervention and unsealing documents re 197 Notice. Signed by Chief Judge Vaughn R Walker on 6/14/2006. (cgd, COURT STAFF) (Filed on 6/14/2006) (Entered: 06/14/2006)
213 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel ADMINISTRATIVE MOTION FOR DESIGNATION OF INTERIM CLASS COUNSEL (Scarlett, Shana) (Filed on 6/14/2006) (Entered: 06/14/2006)
214 Declaration of Cindy A. Cohn in Support of 213 Notice (Other) DECLARATION OF CINDY A. COHN IN SUPPORT OF ADMINISTRATIVE MOTION FOR DESIGNATION OF INTERIM CLASS COUNSEL filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Related document(s) 213 ) (Scarlett, Shana) (Filed on 6/14/2006) (Entered: 06/14/2006)
215 Proposed Order re 213 Notice (Other) [PROPOSED] CASE MANAGEMENT ORDER NUMBER 1 by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Scarlett, Shana) (Filed on 6/14/2006) (Entered: 06/14/2006)
216 NOTICE by ATTCorp. re 208 MOTION to Related Case Administrative Motion of Defendant ATTCorp. to Consider Whether Cases Should Be Related (Nos. C−06−0672−VRW and C−06−3596−VRW) NOTICE OF REASSIGNMENT IN CONNECTION WITH ADMINISTRATIVE MOTION OF DEFENDANT ATTCORP. TO CONSIDER WHETHER CASES SHOULD BE RELATED (Ericson, Bruce) (Filed on 6/14/2006) (Entered: 06/14/2006)
217 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. Proof of Service Via U.S. Mail (Ericson, Bruce) (Filed on 6/15/2006) (Entered: 06/15/2006)
256 MOTION for leave to appear in Pro Hac Vice − Susan Freiwald filed by Susan Freiwald. (gsa, COURT STAFF) (Filed on 6/15/2006) (Entered: 06/20/2006)
Proposed Order re 256 MOTION for leave to appear in Pro Hac Vice by Susan Freiwald. (gsa, COURT STAFF) (Filed on 6/15/2006) (Entered: 06/20/2006)
232 Amicus Curiae APPEARANCE entered by Jennifer Stisa Granick on behalf of Amici Law Professors, Susan Freiwald. (Attachments: # 1 Proposed Order Proposed Order re: Participation# 2 Freiwald et. al. Law Professors Amici Brief)(Granick, Jennifer) (Filed on 6/16/2006) (Entered: 06/16/2006)
233 MOTION for Leave to File Brief as Amicus Curiae filed by The Center for National Security Studies. (Attachments: # 1 Proposed Order)(Gross, Terry) (Filed on 6/16/2006) (Entered: 06/16/2006)
234 Memorandum in Opposition re 208 MOTION to Related Case Administrative Motion of Defendant ATTCorp. to Consider Whether Cases Should Be Related (Nos. C−06−0672−VRW and C−06−3596−VRW) by Plaintiffs Tom Campbell, et al. and Dennis P. Riordan, et al. filed byTom Campbell. (Pulgram, Laurence) (Filed on 6/16/2006) (Entered: 06/16/2006)
235 Proposed Order re 234 Memorandum in Opposition, Denying Administrative Motion to Consider Whether Cases Should Be Related by Tom Campbell. (Pulgram, Laurence) (Filed on 6/16/2006) (Entered: 06/16/2006)
236 Brief of Amicus Curiae in Opposition to Motion by the United States Government to Dismiss or, in the Alternative, for Summary Judgment filed byThe Center for National Security Studies. (Gross, Terry) (Filed on 6/16/2006) (Entered: 06/16/2006)
237 CERTIFICATE OF SERVICE by Tom Campbell re 234 Memorandum in Opposition, to ATTCorp's Administrative Motion to Consider Whether Cases Should Be Related and Proposed Order (Pulgram, Laurence) (Filed on 6/16/2006) (Entered: 06/16/2006)
238 Reply Memorandum re 79 MOTION to Dismiss Motion of Defendant ATInc. to Dismiss Plaintiffs' Amended Complaint; Supporting Memorandum filed byATTInc.. (Sorensen, Jacob) (Filed on 6/16/2006) (Entered: 06/16/2006)

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239 Request for Judicial Notice re 79 MOTION to Dismiss Motion of Defendant ATInc. to Dismiss Plaintiffs' Amended Complaint; Supporting Memorandum, 238 Reply Memorandum in Support of Motion to Dismiss filed byATTInc.. (Attachments: # 1 Exhibit A)(Related document(s) 79 , 238 ) (Sorensen, Jacob) (Filed on 6/16/2006) (Entered: 06/16/2006)
240 Declaration of Starlene Meyerkord in Support of 238 Reply Memorandum, 79 MOTION to Dismiss Motion of Defendant ATInc. to Dismiss Plaintiffs' Amended Complaint; Supporting Memorandum filed byATTInc.. (Related document(s) 238 , 79 ) (Sorensen, Jacob) (Filed on 6/16/2006) (Entered: 06/16/2006)
241 Declaration of Joseph P. Tocco in Support of 238 Reply Memorandum, 79 MOTION to Dismiss Motion of Defendant ATInc. to Dismiss Plaintiffs' Amended Complaint; Supporting Memorandum filed byATTInc.. (Related document(s) 238 , 79 ) (Sorensen, Jacob) (Filed on 6/16/2006) (Entered: 06/16/2006)
242 CERTIFICATE OF SERVICE by ATTInc. re 240 Declaration in Support,, 239 Request for Judicial Notice,, 241 Declaration in Support,, 238 Reply Memorandum (Sorensen, Jacob) (Filed on 6/16/2006) (Entered: 06/16/2006)
243 STIPULATION and [Proposed] Order Granting ATTCorp. Leave to File Excess Pages by ATTCorp.. (Ericson, Bruce) (Filed on 6/16/2006) (Entered: 06/16/2006)
244 Reply to Opposition Reply Memorandum of Defendant ATTCorp. in Support of Motion to Dismiss Plaintiffs' Amended Complaint filed byATTCorp.. (Ericson, Bruce) (Filed on 6/16/2006) (Entered: 06/16/2006)
245 Reply Memorandum re 124 MOTION to Dismiss or, in the Alternative, for Summary Judgment and in Support of the Assertion of the Military and State Secrets Privilege filed byUnited States of America. (Tannenbaum, Andrew) (Filed on 6/16/2006) (Entered: 06/16/2006)
246 NOTICE by United States of America of Lodging of In Camera, Ex Parte Material (Tannenbaum, Andrew) (Filed on 6/16/2006) (Entered: 06/16/2006)
247 Consent MOTION for Leave to File Excess Pages filed by United States of America. (Tannenbaum, Andrew) (Filed on 6/16/2006) (Entered: 06/16/2006)
248 Reply to Opposition re 139 MOTION to Intervene and Unseal Documents filed byLycos, Inc., Wired News. (Alger, Timothy) (Filed on 6/19/2006) (Entered: 06/19/2006)
249 Memorandum in Opposition re 207 MOTION to Intervene PLAINTIFFS' OPPOSITION TO MOTION TO INTERVENE AND CONSOLIDATE SIMILAR AND PENDING CASE NUMBER A−05−CA−682−LY IN THE WESTERN DISTRICT OF TEXAS AT AUSTIN filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Scarlett, Shana) (Filed on 6/19/2006) (Entered: 06/19/2006)
250 Declaration of Shana E. Scarlett in Support of 249 Memorandum in Opposition, DECLARATION OF SHANA E. SCARLETT IN SUPPORT OF PLAINTFFS' OPPOSITION TO MOTION INTERVENE AND CONSOLIDATE SIMILAR AND PENDING CASE NUMBER A−05−CA−682−LY IN THE WESTERN DISTRICT OF TEXAS AT AUSTIN filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C PART 1# 4 Exhibit C PART 2# 5 Exhibit C PART 3# 6 Exhibit C PART 4)(Related document(s) 249 ) (Scarlett, Shana) (Filed on 6/19/2006) (Entered: 06/19/2006)
251 Proposed Order re 249 Memorandum in Opposition, [PROPOSED] ORDER DENYING MOTION TO INTERVENE AND CONSOLIDATE SIMILAR AND PENDING CASE NUMBER A−05−CA−682−LY IN THE WESTERN DISTRICT OF TEXAS AT AUSTIN by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Scarlett, Shana) (Filed on 6/19/2006) (Entered: 06/19/2006)
252 Memorandum in Opposition of ATTCorp. to Electronic Frontier Foundation's Administrative Motion for Designation of Interim Class Counsel filed byATTCorp.. (Sorensen, Jacob) (Filed on 6/19/2006) (Entered: 06/19/2006)

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 31 of 42

06/19/2006 06/19/2006 06/19/2006 06/20/2006 06/20/2006 06/20/2006 06/20/2006 06/20/2006 06/20/2006 06/20/2006 06/20/2006
06/20/2006 06/20/2006 06/20/2006 06/20/2006 06/20/2006

253 Memorandum in Opposition ROE PLAINTIFFS' RESPONSE TO ADMINISTRATIVE MOTION FOR DESIGNATION OF INTERIM CLASS COUNSEL filed byBenson B. Roe. (Himmelstein, Barry) (Filed on 6/19/2006) (Entered: 06/19/2006)
254 Declaration of BARRY HIMMELSTEIN IN SUPPORT OF ROE PLAINTIFFS' RESPONSE TO ADMINISTRATIVE MOTION FOR DESIGNATION OF INTERIM CLASS COUNSEL filed byBenson B. Roe. (Attachments: # 1 Exhibit A)(Himmelstein, Barry) (Filed on 6/19/2006) (Entered: 06/19/2006)
255 Proposed Order re 253 Memorandum in Opposition, 254 Declaration in Support [PROPOSED] ORDER DESIGNATING INTERIM CLASS COUNSEL PURSUANT TO FED. R. CIV. P. 23(g) by Benson B. Roe. (Himmelstein, Barry) (Filed on 6/19/2006) (Entered: 06/19/2006)
257 CERTIFICATE OF SERVICE by ATTCorp. re 252 Memorandum in Opposition VIA HAND DELIVERY (Sorensen, Jacob) (Filed on 6/20/2006) (Entered: 06/20/2006)
258 CERTIFICATE OF SERVICE by ATTCorp. re 252 Memorandum in Opposition VIA OVERNIGHT COURIER (Sorensen, Jacob) (Filed on 6/20/2006) (Entered: 06/20/2006)
259 CERTIFICATE OF SERVICE by ATTCorp. re 252 Memorandum in Opposition VIA U.S. MAIL (Sorensen, Jacob) (Filed on 6/20/2006) (Entered: 06/20/2006)
260 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel Request For Permission To Bring Audio/Visual Equipment To Hearing On June 23, 2006; [Proposed] Order (Markman, Michael) (Filed on 6/20/2006) (Entered: 06/20/2006)
261 ORDERIn addition to all other matters pertinent to the hearing noticed for June 23, 2006, the parties should be prepared to address the questions provided in this order.Signed by Chief Judge Vaughn R Walker on 06/20/06. (vrwlc2, COURT STAFF) (Filed on 6/20/2006) (Entered: 06/20/2006)
262 AFFIDAVIT in Opposition [REDACTED] of Michael Markman to Motion to Dismiss, etc. by the United States Based on State Secrets Privilege filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on 6/20/2006) (Entered: 06/20/2006)
263 STIPULATION AND ORDER: Pursuant to the stipulation, ATTmay file a reply to docket 176 of not more than 18 pages. Signed by Chief Judge Vaughn R Walker on 6/20/2006. (cgd, COURT STAFF) (Filed on 6/20/2006) (Entered: 06/20/2006)
264 Memorandum in Opposition [REDACTED] to Motion to Dismiss, etc. by the United States Based on State Secrets Privilege filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Supplement Redacted Brief Part 2# 2 Supplement Redacted Brief Part 3# 3 Supplement Redacted Brief Part 4)(Cohn, Cindy) (Filed on 6/20/2006) (Entered: 06/20/2006)
265 CERTIFICATE OF SERVICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel (Cohn, Cindy) (Filed on 6/20/2006) (Entered: 06/20/2006)
266 ORDER by Chief Judge Vaughn R Walker granting 247 unopposed Motion for Leave to File Excess Pages by the United States of America. (cgd, COURT STAFF) (Filed on 6/20/2006) (Entered: 06/20/2006)
267 ORDER by Chief Judge Vaughn R Walker granting 208 Motion to Relate Cases C06−0672 and C06−3596. (cgd, COURT STAFF) (Filed on 6/20/2006) (Entered: 06/20/2006)
269 MOTION to File Amicus Curiae Brief filed by Eric Schneider. Motion Hearing set for 6/23/2006 09:30 AM in Courtroom 6, 17th Floor, San Francisco. (gsa, COURT STAFF) (Filed on 6/20/2006) (Entered: 06/21/2006)
271 Declaration of Eric Schneider in Support of 133 MOTION to Intervene Notice of Motion and Motion for Leave to Intervene; Notice of Motion and Motion to Unseal Documents filed byEric Schneider. (Related document(s) 133 ) (gsa, COURT

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 32 of 42

06/20/2006 06/20/2006 06/21/2006 06/21/2006 06/21/2006 06/21/2006 06/22/2006 06/22/2006 06/22/2006
06/22/2006 06/22/2006 06/23/2006
06/23/2006

STAFF) (Filed on 6/20/2006) (Entered: 06/21/2006)
Proposed Order re 269 MOTION to File Amicus Curiae Brief by Eric Schneider. (gsa, COURT STAFF) (Filed on 6/20/2006) (Entered: 06/21/2006)
272 CERTIFICATE OF SERVICE by Eric Schneider re Proposed Order, 269 MOTION to File Amicus Curiae Brief, 271 Declaration in Support, (gsa, COURT STAFF) (Filed on 6/20/2006) (Entered: 06/21/2006)
268 MOTION to File Amicus Curiae Brief filed by California First Amendment Coalition, CNET News.com. Motion Hearing set for 6/23/2006 09:30 AM in Courtroom 6, 17th Floor, San Francisco. (Myers, Roger) (Filed on 6/21/2006) (Entered: 06/21/2006)
270 Brief re 139 MOTION to Intervene and Unseal Documents Amici Curiae Brief in Support of filed byCalifornia First Amendment Coalition, CNET News.com. (Related document(s) 139 ) (Myers, Roger) (Filed on 6/21/2006) (Entered: 06/21/2006)
273 Declaration of Roger Myers in Support of 270 Brief [Amici Curiae] in Support of Motion of Lycos and Wired News to Intervene and Unseal Documents filed byCalifornia First Amendment Coalition, CNET News.com. (Related document(s) 270 ) (Myers, Roger) (Filed on 6/21/2006) (Entered: 06/21/2006)
274 Proposed Order re 268 MOTION to File Amicus Curiae Brief by California First Amendment Coalition, CNET News.com. (Myers, Roger) (Filed on 6/21/2006) (Entered: 06/21/2006)
275 ORDER Granting request to bring audio−visual equipment to hearing on 6/23/2006, re 260 Notice. Signed by Chief Judge Vaughn R Walker on 6/22/2006. (cgd, COURT STAFF) (Filed on 6/22/2006) (Entered: 06/22/2006)
276 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel of Manual Filing of Letter to Hon. Vaughn R. Walker and Proof of Service (Cohn, Cindy) (Filed on 6/22/2006) (Entered: 06/22/2006)
277 Declaration of J. Scott Marcus [REDACTED] in Support of Plaintiffs' Motion for Preliminary Injunction filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Supplement Part 2# 2 Supplement Part 3# 3 Supplement Part 4# 4 Supplement Part 5# 5 Supplement Part 6# 6 Supplement Part 7)(Cohn, Cindy) (Filed on 6/22/2006) (Entered: 06/22/2006)
278 Letter from Plaintiffs to Hon. Vaughn R. Walker dated 6/22/2006. FILED UNDER SEAL. (gsa, COURT STAFF) (Filed on 6/22/2006) Modified on 6/22/2006 (gsa, COURT STAFF). (Entered: 06/22/2006)
279 CERTIFICATE OF SERVICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Benson B. Roe, Carolyn Jewel re 278 Letter (gsa, COURT STAFF) (Filed on 6/22/2006) (Entered: 06/22/2006)
280 Declaration of James S. Tyre in Support of 174 Memorandum in Opposition SUPPLEMENTAL DECLARATION OF JAMES S. TYRE IN SUPPORT OF PLAINTIFFS' OPPOSITION TO ATTINC.'S MOTION TO DISMISS AMENDED COMPLAINT filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 174 ) (Scarlett, Shana) (Filed on 6/23/2006) (Entered: 06/23/2006)
281 Minute Entry: Motion Hearing held on 6/23/2006 before Chief Judge Vaughn R Walker re 124 89 86 79 133 139 ; motion to intervene by the United States ; motion to dismiss or in the alternative for summary judgment based on the government's assertion of the state secrets doctrine; motion to dismiss by ATTCorp for failing to plead the absence of immunity and for lack of standing; motion to dismiss by ATTInc for lack of personal jurisdiction; motion to intervene and to unseal documents by various media entities; motion to intervene and to unseal documents by Lycos, Inc and Wired News. The Court granted the govt's unopposed motion to intervene. The Court also heard arguments from counsel on the other motions and took those matters under submission. (Court Reporter Connie Kuhl.) (cgd, COURT STAFF) (Date Filed: 6/23/2006) (Entered:

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 33 of 42

06/26/2006
06/27/2006 06/27/2006 06/28/2006 06/28/2006 06/28/2006 06/28/2006 06/28/2006 06/30/2006 07/03/2006 07/03/2006 07/04/2006
07/05/2006
07/05/2006

06/26/2006)
282 ORDER by Chief Judge Vaughn R Walker granting 122 the government's motion to intervene. At the June 23, 2006, hearing, the court granted the government's unopposed motion to intervene (Doc #122). The remaining motions addressed by the parties at the hearing remain under submission. (vrwlc2, COURT STAFF) (Filed on 6/26/2006) (Entered: 06/26/2006)
283 ORDER by Chief Judge Vaughn R Walker granting 256 Application for Admission of Attorney Susan A. Freiwald Pro Hac Vice. (cgd, COURT STAFF) (Filed on 6/27/2006) (Entered: 06/27/2006)
284 TRANSCRIPT of Proceedings held on 6/23/2006 before Judge Vaughn R. Walker. Court Reporter: Connie Kuhl.. (gsa, COURT STAFF) (Filed on 6/27/2006) (Entered: 06/28/2006)
285 Response to Question 8 (Summary) byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on 6/28/2006) (Entered: 06/28/2006)
286 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel of Motion and Motion To File The Demonstrative Presentation Presented at The June 23, 2006 Hearing Under Seal (DiMuzio, Elena) (Filed on 6/28/2006) (Entered: 06/28/2006)
287 Declaration of Elena M. DiMuzio in support of Administrative Motion To Lodge Documents With The Court (N.D. Cal. Civil Local Rules 7−11, 79−5) filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (DiMuzio, Elena) (Filed on 6/28/2006) (Entered: 06/28/2006)
288 Proposed Order Granting Plaintiffs' Motion To File Documents Under Seal by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (DiMuzio, Elena) (Filed on 6/28/2006) (Entered: 06/28/2006)
289 NOTICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel of Manual Filing (Demonstrative Presentation Presented at The June 23, 2006 Hearing) (DiMuzio, Elena) (Filed on 6/28/2006) (Entered: 06/28/2006)
290 NOTICE by ATTCorp., ATTInc. re 278 Letter NOTICE OF MANUAL FILING OF LETTER OF BRUCE A. ERICSON IN RESPONSE TO LETTER OF JASON SCHULTZ DATED JUNE 22, 2006 [DKT. 278] (Ericson, Bruce) (Filed on 6/30/2006) (Entered: 06/30/2006)
291 RESPONSE in Support Defendants' Response to Plaintiffs' Motion to File Their Demonstrative Presentation From the June 23, 2006 Hearing Under Seal filed byATTCorp., ATTInc.. (Ericson, Bruce) (Filed on 7/3/2006) (Entered: 07/03/2006)
292 Declaration of Jacob R. Sorensen in Support of Defendants' Response to Plaintiffs' Administrative Motion to File Their Demonstrative Presentation From the June 23, 2006 Hearing Under Seal filed byATTCorp., ATTInc.. (Ericson, Bruce) (Filed on 7/3/2006) (Entered: 07/03/2006)
293 ORDER The court has reviewed an April 13, 2006, letter sent from a James B Fatchett and a June 25, 2006, letter sent from a Joseph M Gaffney. The clerk is DIRECTED to file these letters and to serve the letters on the parties. Signed by Chief Judge Vaughn R Walker on 7/4/2006.(vrwlc2, COURT STAFF) (Filed on 7/4/2006) (Entered: 07/04/2006)
294 EXHIBITS A−K, Q−T, and V−Y to Declaration of J. Scott Marcus in Support of Plaintiffs' Motion for Preliminary Injunction filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit Exhibits Q−R# 2 Exhibit Exhibit S, Part 1# 3 Exhibit Exhibit S, Part 2# 4 Exhibit Exhibit S, Part 3# 5 Exhibit Exhibits T, V−Y)(Cohn, Cindy) (Filed on 7/5/2006) (Entered: 07/05/2006)
295 Letter from James B. Fatchett dated 4/13/2006 concerning knowledge of domestic listening activities conducted by the National Security Agency.. (gsa, COURT STAFF) (Filed on 7/5/2006) (Entered: 07/06/2006)

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 34 of 42

07/05/2006 07/06/2006 07/06/2006 07/06/2006 07/07/2006 07/11/2006 07/11/2006 07/11/2006 07/11/2006 07/14/2006 07/17/2006 07/20/2006
07/20/2006 07/24/2006 07/27/2006 07/27/2006

296 Letter from Joseph M. Gaffney to Chief Judge Walker dated 6/25/2006 concerning the federal government's intrusion into this case.. (gsa, COURT STAFF) (Filed on 7/5/2006) (Entered: 07/06/2006)
297 MOTION for Leave to File Supplementary Material filed by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. Motion Hearing set for 6/23/2006 09:30 AM in Courtroom 6, 17th Floor, San Francisco. (DiMuzio, Elena) (Filed on 7/6/2006) (Entered: 07/06/2006)
298 Declaration of Elena M. DiMuzio In Support of Motion To File Supplementary Material filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit 1)(DiMuzio, Elena) (Filed on 7/6/2006) (Entered: 07/06/2006)
299 Proposed Order Granting Plaintiffs' Motion To file Supplementary Material by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (DiMuzio, Elena) (Filed on 7/6/2006) (Entered: 07/06/2006)
300 MEMORANDUM in Opposition to Plaintiff's True and Correct Copy Declaration made on 6/19/2006 filed byWillie H. Ellis. (gsa, COURT STAFF) (Filed on 7/7/2006) (Entered: 07/11/2006)
301 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. re 290 Notice (Other) (Ericson, Bruce) (Filed on 7/11/2006) (Entered: 07/11/2006)
302 CERTIFICATE OF SERVICE by ATTCorp., ATTInc. PROOF OF SERVICE VIA HAND DELIVERY OF LETTER OF BRUCE A. ERICSON IN RESPONSE TO LETTER OF JASON SCHULTZ DATED JUNE 22, 2006 (Ericson, Bruce) (Filed on 7/11/2006) (Entered: 07/11/2006)
303 MOTION to Related Case filed by Tash Hepting. (Fastiff, Eric) (Filed on 7/11/2006) (Entered: 07/11/2006)
304 Memorandum in Opposition United States' Opposition to Plaintiffs' Motion to File Supplementary Material filed byUnited States of America. (Attachments: # 1 Proposed Order)(Orleans, Renee) (Filed on 7/11/2006) (Entered: 07/11/2006)
306 Memorandum in Opposition HEPTING PLAINTIFFS' OPPOSITION TO ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Scarlett, Shana) (Filed on 7/14/2006) (Entered: 07/14/2006)
307 ORDER by Chief Judge Vaughn R Walker granting 303 Motion to Relate Case (C06−4221). (cgd, COURT STAFF) (Filed on 7/17/2006) (Entered: 07/17/2006)
308 ORDER by Chief Judge Vaughn R Walker denying 86 Motion to Dismiss, denying 124 Motion to Dismiss. The court DENIES the government's motion to dismiss, or in the alternative, for summary judgment on the basis of state secrets and DENIES ATs motion to dismiss. The parties are ORDERED TO SHOW CAUSE in writing by July 31, 2006, why the court should not appoint an expert pursuant to FRE 706 to assist the court. The parties' briefs should also address whether this action should be stayed pending an appeal pursuant to 28 USC 1292(b). The parties are also instructed to appear on August 8, 2006, at 2 PM, for a further case management conference.(vrwlc2, COURT STAFF) (Filed on 7/20/2006). (Entered: 07/20/2006)
Set/Reset Hearings: Further Case Management Conference set for 8/8/2006 02:00 PM. (gsa, COURT STAFF) (Filed on 7/20/2006) (Entered: 07/25/2006)
309 ORDER The court has reviewed a July 20, 2006, letter sent from a Daniel Gall. The clerk is DIRECTED to file this letter and to serve the letter on the parties.Signed by Chief Judge Vaughn R Walker on 7/24/06. (vrwlc2, COURT STAFF) (Filed on 7/24/2006) (Entered: 07/24/2006)
310 MOTION to Stay PENDING DETERMINATION OF ATTCORP.'S MOTION TO STAY filed by ATTCorp.. (Ericson, Bruce) (Filed on 7/27/2006) (Entered: 07/27/2006)
311 Declaration of Jacob R. Sorensen in Support of 310 MOTION to Stay PENDING DETERMINATION OF ATTCORP.'S MOTION TO STAY filed byATTCorp..

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 35 of 42

07/27/2006 07/27/2006 07/28/2006
07/31/2006 07/31/2006
07/31/2006
07/31/2006 07/31/2006 07/31/2006 07/31/2006 07/31/2006 07/31/2006 07/31/2006 07/31/2006 07/31/2006 07/31/2006 08/01/2006

(Related document(s) 310 ) (Ericson, Bruce) (Filed on 7/27/2006) (Entered: 07/27/2006)
312 Proposed Order re 310 MOTION to Stay PENDING DETERMINATION OF ATTCORP.'S MOTION TO STAY by ATTCorp.. (Ericson, Bruce) (Filed on 7/27/2006) (Entered: 07/27/2006)
313 Letter from Daniel N. Gall dated 7/20/2006 to the Honorable Vaughn R. Walker regarding expert appointment for this case.. (gsa, COURT STAFF) (Filed on 7/27/2006) (Entered: 07/28/2006)
314 CERTIFICATE OF SERVICE by ATTCorp. re 311 Declaration in Support, 310 MOTION to Stay PENDING DETERMINATION OF ATTCORP.'S MOTION TO STAY, 312 Proposed Order Proof of Service Via U.S. Mail (Sorensen, Jacob) (Filed on 7/28/2006) (Entered: 07/28/2006)
315 RESPONSE TO ORDER TO SHOW CAUSE by United States of America. (Coppolino, Anthony) (Filed on 7/31/2006) (Entered: 07/31/2006)
316 NOTICE by United States of America re 315 Response to Order to Show Cause United States' Notice of Lodging of In Camera, Ex Parte Material with Response to Order to Show Cause (Coppolino, Anthony) (Filed on 7/31/2006) (Entered: 07/31/2006)
317 RESPONSE in Support PLAINTIFFS' BRIEF ON ORDER TO SHOW CAUSE ISSUED IN THE COURT'S JULY 20, 2006 ORDER filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Scarlett, Shana) (Filed on 7/31/2006) (Entered: 07/31/2006)
318 ORDER by Chief Judge Vaughn R Walker granting 172 Plaintiffs' Motion for Leave to extend page limit. (cgd, COURT STAFF) (Filed on 7/31/2006) (Entered: 07/31/2006)
319 ORDER by Chief Judge Vaughn R Walker granting 233 Motion of The Center for National Security Studies for Leave to File as amicus curiea. (cgd, COURT STAFF) (Filed on 7/31/2006) (Entered: 07/31/2006)
320 ORDER by Chief Judge Vaughn R Walker granting 297 Plaintiffs' Motion to File documents under seal. (cgd, COURT STAFF) (Filed on 7/31/2006) (Entered: 07/31/2006)
321 ORDER re 297 granting MOTION for Leave to File Supplementary Material filed by Tash Hepting,, Gregory Hicks,, Erik Knutzen,, Carolyn Jewel, (cgd, COURT STAFF) (Filed on 7/31/2006) (Entered: 07/31/2006)
322 ORDER re 232 Amicus Curiae Appearance, filed by Susan Freiwald,, Amici Law Professors, (cgd, COURT STAFF) (Filed on 7/31/2006) (Entered: 07/31/2006)
323 ORDER by Chief Judge Vaughn R Walker granting 268 Motion of CNET News.com and California First Amendment Coalition for leave to File Amicus Curiae Brief. (cgd, COURT STAFF) (Filed on 7/31/2006) (Entered: 07/31/2006)
324 MOTION to Stay PROCEEDINGS PENDING APPEAL filed by ATTCorp.. Motion Hearing set for 9/14/2006 02:00 PM in Courtroom 6, 17th Floor, San Francisco. (Axelbaum, Marc) (Filed on 7/31/2006) (Entered: 07/31/2006)
325 Proposed Order re 324 MOTION to Stay PROCEEDINGS PENDING APPEAL by ATTCorp.. (Axelbaum, Marc) (Filed on 7/31/2006) (Entered: 07/31/2006)
326 RESPONSE TO ORDER TO SHOW CAUSE by ATTCorp.. (Axelbaum, Marc) (Filed on 7/31/2006) (Entered: 07/31/2006)
327 Plaintiff's Demontrative Presentation Presented at the June 23, 2006 Hearing by Gregory Hicks, Tash Hepting, Carolyn Jewel. FILED UNDER SEAL (gsa, COURT STAFF) (Filed on 7/31/2006) (Entered: 08/01/2006)
328 CERTIFICATE OF SERVICE by ATTCorp. re 326 Response to Order to Show Cause, 325 Proposed Order, 324 MOTION to Stay PROCEEDINGS PENDING APPEAL (Axelbaum, Marc) (Filed on 8/1/2006) (Entered: 08/01/2006)

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 36 of 42

08/01/2006 08/02/2006
08/04/2006 08/07/2006 08/08/2006
08/10/2006 08/10/2006 08/11/2006 08/14/2006 08/14/2006 08/14/2006 08/14/2006 11/09/2006
11/13/2006 11/13/2006 11/15/2006 11/15/2006

329 Memorandum in Opposition to ATTAdmin Motion for Interim Stay filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Cohn, Cindy) (Filed on 8/1/2006) (Entered: 08/01/2006)
330 ORDER by Chief Judge Vaughn R. Walker GRANTING 310 motion for interim stay. All further proceedings are stayed until further order of the court. ATs and the government's motions for a stay of proceedings pending appeal will be heard on August 8, 2006, at 2:00 pm. (vrwlc2, COURT STAFF) (Filed on 8/2/2006) (Entered: 08/02/2006)
331 STIPULATION AND [PROPOSED] ORDER RE SUBSTITUTION OF PROPOSED INTERVENOR by CondeNet Inc., Wired News. (Alger, Timothy) (Filed on 8/4/2006) (Entered: 08/04/2006)
332 NOTICE by CondeNet Inc., Wired News NOTICE OF MATTER UNDER SUBMISSION AND REQUEST TO BE HEARD AT CASE MANAGEMENT CONFERENCE (Alger, Timothy) (Filed on 8/7/2006) (Entered: 08/07/2006)
339 Minute Entry: Further Case Management Conference and hearing on Defendant ATTand USA's motion to stay pending appeal held on 8/8/2006. The court determined that it would not, at this stage, appoint a technical advisor or expert witness and that it would issue a stay of limited duration. (Court Reporter Sahar McVickar.) (cgd, COURT STAFF) (Date Filed: 8/8/2006) (Entered: 08/15/2006)
333 Letter from Cindy A. Cohn. (Cohn, Cindy) (Filed on 8/10/2006) (Entered: 08/10/2006)
334 CERTIFICATE OF SERVICE by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel (Amended) (Cohn, Cindy) (Filed on 8/10/2006) (Entered: 08/10/2006)
335 Letter from Bruce A. Ericson. (Attachments: # 1 Exhibit A)(Ericson, Bruce) (Filed on 8/11/2006) (Entered: 08/11/2006)
336 ORDER to stay all further proceedings until September 29, 2006. Signed by Chief Judge Walker on 8/14/2006. (vrwlc2, COURT STAFF) (Filed on 8/14/2006) (Entered: 08/14/2006)
337 CERTIFICATE OF SERVICE by ATTCorp. re 335 Letter from Bruce A. Ericson to Judge Vaughn Walker (Ericson, Bruce) (Filed on 8/14/2006) (Entered: 08/14/2006)
338 STIPULATION AND ORDER that CondeNet Inc. shall be substituted for Lycos, Inc for all purposes in this matter. Signed by Chief Judge Vaughn R Walker on 8/14/2006. (cgd, COURT STAFF) (Filed on 8/14/2006) (Entered: 08/14/2006)
340 TRANSCRIPT of Proceedings held on 8/8/2006 before Judge Vaughn R. Walker. Court Reporter: Sahar McVickar.. (gsa, COURT STAFF) (Filed on 8/14/2006) (Entered: 08/17/2006)
341 NOTICE OF APPEAL/ORDER GRANTING PERMISSION TO APPEAL PURSUANT TO 28 U.S.C. Section 1292(b) by ATTCorp.. Filing fee $ 455, receipt number 3392285. (gsa, COURT STAFF) (Filed on 11/9/2006) Modified on 11/13/2006 (gsa, COURT STAFF). (Entered: 11/13/2006)
Copy of Notice of Appeal and Docket sheet mailed to all counsel (gsa, COURT STAFF) (Filed on 11/13/2006) (Entered: 11/13/2006)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 341 Notice of Appeal (gsa, COURT STAFF) (Filed on 11/13/2006) (Entered: 11/13/2006)
342 NOTICE OF APPEAL/ORDER GRANTING PERMISSION TO APPEAL PURSUANT TO 28 U.S.C. Section 1292(b) by United States of America. (gsa, COURT STAFF) (Filed on 11/15/2006) (Entered: 11/20/2006)
USCA Case Number 06−17137 for 342 Notice of Appeal filed by United States of America,. (gsa, COURT STAFF) (Filed on 11/15/2006) (Entered: 11/20/2006)

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 37 of 42

11/15/2006 11/17/2006 12/07/2006 12/22/2006 02/20/2007 02/20/2007 04/30/2007
06/22/2007 06/22/2007 06/23/2007 06/23/2007

USCA Case Number 06−17132 for 341 Notice of Appeal filed by ATTCorp.,. (gsa, COURT STAFF) (Filed on 11/15/2006) (Entered: 11/20/2006)
343 TRANSCRIPT DESIGNATION by ATTCorp., ATTInc., for proceedings held on 5/17/2006, 6/23/2006, 8/8/2006 before Judge Vaughn R. Walker.. (gsa, COURT STAFF) (Filed on 11/17/2006) (Entered: 11/21/2006)
344 NOTICE by United States of America Regarding Transcript Orders (Tannenbaum, Andrew) (Filed on 12/7/2006) (Entered: 12/07/2006)
345 Certificate of Record Mailed to USCA re appeal 342 Notice of Appeal, 341 Notice of Appeal: (gsa, COURT STAFF) (Filed on 12/22/2006) (Entered: 12/22/2006)
346 ORDER by Chief Judge Walker granting in part and denying in part 133 motion to intervene, granting in part and denying in part 139 motion to Intervene. (vrwlc2, COURT STAFF) (Filed on 2/20/2007) (Entered: 02/20/2007)
347 ORDER by Chief Judge Walker granting in part and denying in part 324 motion to stay. (vrwlc2, COURT STAFF) (Filed on 2/20/2007) (Entered: 02/20/2007)
348 ORDER of USCA as to 342 Notice of Appeal filed by United States of America,, 341 Notice of Appeal filed by ATTCorp. The court has reviewed the motion for reconsideration and responses thereto, includng the opposition to consolidation filed by the non−party plaintiff's appellees in Hepting v. ATappeals No, 06−17132. 06−17137. The motion for reconsideration seeking to lift the stay of appellate proceedings is granted. Appellants' April 20, 2007 motion for leave to file an opposition to appellees' proposed briefing scheduled in appeal No. 06−36083 is granted. Appellants' opposition has been filed. The Clerk shall consolidate and calendar this appeal with the appeals Hepting v. ATTCorp. appeal No. 06−17132, and Hepting v. United States appeal No. 06−17137. The briefing schedule in appeal Nos. 06−17132 and 06−17137 remains as previously established. The following briefing schedule shall be set for appeal No. 06−36083; the opening brief and excerpts or record are due June 6, 2007, the answering brief is due July 6, 2007; and the optional reply brief is due within 14 days after service of the answering brief. The provisions of Ninth Circuit Rule 31−2.2(a) shall not be applicable to appeal No. 06−36083; any Rule 31−2.2(b) request is strongly disfavored. The Clerk shall calendar these consolidated appeals during the week of August 13−17. 2007, in San Francisco, California. No motions for reconsideration, modification or clarification of this order shall be filed or entertained. (gsa, COURT STAFF) (Filed on 4/30/2007) (Entered: 05/01/2007)
349 Memorandum in Opposition re (253 in M:06−cv−01791−VRW) MOTION to Dismiss or, in the Alternative, for Summary Judgment on State Secrets Grounds filed byDennis P. Riordan. (Pulgram, Laurence) (Filed on 6/22/2007) (Entered: 06/22/2007)
350 Declaration of Candace J. Morey in Support of (315 in M:06−cv−01791−VRW) Memorandum in Opposition to Motion to Dismiss or In the Alternative for Summary Judgment by the United States filed byDennis P. Riordan. (Attachments: # 1 Exhibit A−Z# 2 Exhibit AA−II# 3 Exhibit JJ−KK)(Morey, Candace) (Filed on 6/22/2007) (Entered: 06/22/2007)
351 Memorandum in Opposition re (273 in M:06−cv−01791−VRW) MOTION to Dismiss Plaintiffs' Master Consolidated Complaint filed byElaine Spielfogel−Landis(on behalf of herself and all others similarly situated). (Himmelstein, Barry) (Filed on 6/23/2007) (Entered: 06/23/2007)
352 Appendix re (6 in 3:07−cv−00464−VRW, 5 in 3:07−cv−01187−VRW, 7 in 3:06−cv−06254−VRW, 7 in 3:06−cv−05576−VRW, 5 in 3:06−cv−07934−VRW, 4 in 3:07−cv−02029−VRW, 5 in 3:06−cv−06434−VRW, 6 in 3:06−cv−05269−VRW, 67 in 3:06−cv−03596−VRW, 7 in 3:06−cv−06570−VRW, 13 in 3:06−cv−06224−VRW, 5 in 3:06−cv−06294−VRW, 70 in 3:06−cv−03574−VRW, 6 in 3:06−cv−05268−VRW, 12 in 3:06−cv−06387−VRW, 5 in 3:07−cv−01323−VRW, 7 in 3:06−cv−05066−VRW, 13 in 3:06−cv−06222−VRW, 5 in 3:06−cv−06435−VRW, 7 in 3:06−cv−05063−VRW, 7 in 3:06−cv−06253−VRW, 7 in 3:07−cv−01396−VRW, 7 in 3:07−cv−00693−VRW, 7 in 3:06−cv−06295−VRW, 8 in 3:06−cv−06313−VRW, 7 in 3:06−cv−05065−VRW, 7 in 3:06−cv−05067−VRW, 5 in

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 38 of 42

07/12/2007
07/18/2007 09/20/2007 09/20/2007 09/20/2007 09/25/2007 09/25/2007 09/26/2007 10/01/2007
10/03/2007 10/25/2007

3:06−cv−05452−VRW, 6 in 3:06−cv−05340−VRW, 319 in M:06−cv−01791−VRW, 7 in 3:06−cv−05064−VRW, 32 in 3:06−cv−03467−VRW, 5 in 3:07−cv−01326−VRW, 9 in 3:07−cv−00109−VRW, 7 in 3:06−cv−06225−VRW, 5 in 3:07−cv−01242−VRW, 5 in 3:06−cv−06388−VRW, 13 in 3:07−cv−01324−VRW, 351 in 3:06−cv−00672−VRW, 6 in 3:06−cv−05267−VRW, 5 in 3:06−cv−06385−VRW, 6 in 3:06−cv−05341−VRW, 5 in 3:07−cv−01243−VRW, 8 in 3:06−cv−05485−VRW, 7 in 3:06−cv−05343−VRW, 4 in 3:06−cv−06924−VRW, 4 in 3:07−cv−02538−VRW, 14 in 3:06−cv−04221−VRW) Memorandum in Opposition, to Verizon's Motion to Dismiss Master Complaint filed byElaine Spielfogel−Landis(on behalf of herself and all others similarly situated). (Attachments: # 1 Exhibit Tabs 4−12# 2 Exhibit Tabs 13−20)(Himmelstein, Barry) (Filed on 6/23/2007) (Entered: 06/23/2007)
353 Certified and Transmitted Record on Appeal to US Court of Appeals re Notice of Appeal (sv, COURT STAFF) (Filed on 7/12/2007) Modified on 7/19/2007 (sv, COURT STAFF). Additional attachment(s) added on 7/19/2007 (sv, COURT STAFF). Additional attachment(s) added on 7/20/2007 (sv, COURT STAFF). Additional attachment(s) added on 7/20/2007 (sv, COURT STAFF). (Entered: 07/12/2007)
354 Receipt for Appeal Record re appeal 353 Appeal Record Sent to USCA, : (gsa, COURT STAFF) (Filed on 7/18/2007) (Entered: 07/20/2007)
355 MOTION Motion for Order to Preserve Evidence; Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Order to Preserve Evidence filed by Tash Hepting. Motion Hearing set for 10/25/2007 02:00 PM in Courtroom 6, 17th Floor, San Francisco. (Cohn, Cindy) (Filed on 9/20/2007) (Entered: 09/20/2007)
356 Declaration of Cindy A. Cohn in Support of Plaintiffs' 355 Motion for Order to Preserve Evidence filed byTash Hepting. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Cohn, Cindy) (Filed on 9/20/2007) Modified on 9/26/2007 (gsa, COURT STAFF). (Entered: 09/20/2007)
357 Proposed Order [Proposed] Interim Order to Preserve Evidence by Tash Hepting. (Cohn, Cindy) (Filed on 9/20/2007) (Entered: 09/20/2007)
358 STIPULATION by All Plaintiffs'. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Cohn, Cindy) (Filed on 9/25/2007) (Entered: 09/25/2007)
359 Proposed Order re 358 Stipulation by All Plaintiffs'. (Cohn, Cindy) (Filed on 9/25/2007) (Entered: 09/25/2007)
360 ORDER by Judge VRW finding as moot 16 Motion for Preliminary Injunction; terminating 33 Motion to Seal ; terminating 38 Motion to Seal; terminating 48 Motion to Seal; terminating 79 Motion to Dismiss; terminating 219 Motion to Compel; finding as moot 229 Motion for Preliminary Injunction (vrwlc3, COURT STAFF) (Filed on 9/26/2007) (Entered: 09/26/2007)
361 STIPULATION AND ORDER filed by All Plaintiffs. Pursuant to stipulation and good cause appearing, the Court hereby orders the following documents will be unsealed: Declaration of Mark Klein (dkt no. 230); Declaration of Mark Klein's exh A pp 1,4, exh B pp 6,20 and exh C pp 1,3,45−6; Declaration of J Scott Marcus (dkt no. 231); Declaration of J Scott Marcus' exh L−P and exh U. Plaintiffs may file public versions, or in some cases public redacted versions, of the documents identified in para 1 and attached as exhibits 1−4 to the stipulation. Signed by Chief Judge Vaughn R Walker on 10/1/2007. (cgk, COURT STAFF) (Filed on 10/1/2007) (Entered: 10/01/2007)
362 MOTION to Amend/Correct 355 MOTION Motion for Order to Preserve Evidence; Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Order to Preserve Evidence filed by All Plaintiffs'. Motion Hearing set for 11/15/2007 02:00 PM in Courtroom 6, 17th Floor, San Francisco. (Cohn, Cindy) (Filed on 10/3/2007) (Entered: 10/03/2007)
363 Memorandum in Opposition re 362 MOTION to Amend/Correct 355 MOTION Motion for Order to Preserve Evidence; Plaintiffs' Memorandum of Points and

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 39 of 42

10/25/2007 10/26/2007 11/01/2007 12/14/2007 12/14/2007 12/14/2007 01/25/2008 02/05/2008 02/07/2008
03/25/2008 08/22/2008 09/12/2008
09/12/2008

Authorities in Support of Motion for Order to Preserve Evidence MOTION to Amend/Correct 355 MOTION Motion for Order to Preserve Evidence; Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Order to Preserve Evidence, 355 MOTION Motion for Order to Preserve Evidence; Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Order to Preserve Evidence filed byUnited States of America. (Attachments: # 1 Affidavit Coppolino Declaration &Exhibits Thereto)(Haas, Alexander) (Filed on 10/25/2007) (Entered: 10/25/2007)
364 NOTICE by United States of America re 363 Memorandum in Opposition,, of Lodging of Classified Supplement &accompanying Declaration (Haas, Alexander) (Filed on 10/25/2007) (Entered: 10/25/2007)
365 Joinder of ATCingular and Bellsouth Defendants and United States' 363 Opposition to Plaintiffs' Motion for an Order to Preserve Evidence (Dkt. 386) by ATTCorp.. (Axelbaum, Marc) (Filed on 10/26/2007) Modified on 10/29/2007 (gsa, COURT STAFF). (Entered: 10/26/2007)
366 RESPONSE in Support re 355 MOTION Motion for Order to Preserve Evidence; Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Order to Preserve Evidence filed byAll Plaintiffs'. (Cohn, Cindy) (Filed on 11/1/2007) (Entered: 11/01/2007)
367 NOTICE by United States of America of Manual Filing (Haas, Alexander) (Filed on 12/14/2007) (Entered: 12/14/2007)
368 NOTICE by ATTCorp. Notice of Manual Filing (Axelbaum, Marc) (Filed on 12/14/2007) (Entered: 12/14/2007)
369 NOTICE by ATTCorp. PROOF OF SERVICE BY E−MAIL (Axelbaum, Marc) (Filed on 12/14/2007) (Entered: 12/14/2007)
370 CLERK'S NOTICE : Case Management Conference set for 2/7/2008 10:00 AM. (cgk, COURT STAFF) (Filed on 1/25/2008) (Entered: 01/29/2008)
371 NOTICE by United States of America of Withdrawal of Counsel (Tannenbaum, Andrew) (Filed on 2/5/2008) (Entered: 02/05/2008)
372 Minute Entry: Case Management and Status Conference held on 2/7/2008 before Chief Judge Vaughn R Walker. RESULTS:Further briefing re 1806(f) in Al−Haramain case only.Amici were permitted to file their briefs.Schedule: File brief : 3/14/08. Opposition: 3/28/08. Reply: 4/14/08. Hearing: 4/23/2008 at 10:00 AM.Filing of the briefs limited to the master MDL case and the individual case only.Page limitation has been set by the court to up to 40page limit. (Court Reporter Connie Kuhl.) (cgk, COURT STAFF) (Date Filed: 2/7/2008) (Entered: 02/11/2008)
373 REVISED PRACTICE AND PROCEDURE ORDER re (370 in M:06−cv−01791−VRW) Order filed September 10, 2007 signed by Judge Vaughn R Walker on 3−24−08. (vrwlc3, COURT STAFF) (Filed on 3/25/2008) (Entered: 03/25/2008)
374 NOTICE of Hearing: Case Management Conference set for 9/12/2008 11:00 AM. in Hepting et al v ATTCorp et al. and pending Carrier cases. (cgk, COURT STAFF) (Filed on 8/22/2008) (Entered: 08/22/2008)
375 Minute Entry: Case Management Conference held on 9/12/2008 before Chief Judge Vaughn R Walker. SCHEDULE:Al−Haramain and Telecomm Cases:Defs file motion to dismiss or for summary judgment − 9/30/08. Plas file motion for discovery under 1806 (f) − 9/30/08. Plas file opposition to defs motion to dismiss/sj − 10/23/08. Defs file opposition to plas motion for discovery (1806(f)) − 10/23/08. File reply memorandum − 11/14/08. Hearing: 12/2/2008 at 10:00 A.M. Page limits:Government − 25,30,30 = total 85 pages.Plaintiffs − 40, 45 = total 85 pages. (Court Reporter Debra Pas.) (cgk, COURT STAFF) (Date Filed: 9/12/2008) (Entered: 09/16/2008)
Set/Reset Hearings: Motion Hearing set for 12/2/2008 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (cgk, COURT STAFF) (Filed on 9/12/2008) (Entered:

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 40 of 42

09/17/2008 09/17/2008 09/18/2008 09/29/2008 09/30/2008
09/30/2008
09/30/2008 10/21/2008 10/21/2008
10/23/2008 10/28/2008 11/06/2008

09/16/2008)
377 USCA ORDER as to 341 Notice of Appeal filed by ATTCorp. (gsa, COURT STAFF) (Filed on 9/17/2008) (Entered: 09/22/2008)
378 CLERKS Letter Spreading Mandate to Counsel (gsa, COURT STAFF) (Filed on 9/17/2008) (Entered: 09/22/2008)
376 Appeal Record Returned: (gsa, COURT STAFF) (Filed on 9/18/2008) (Entered: 09/19/2008)
379 STIPULATION and [Proposed] Order for Withdrawal of Heller Ehrman LLP as Counsel for Plaintiffs Tash Hepting, et al. by Tash Hepting. (Fram, Robert) (Filed on 9/29/2008) (Entered: 09/29/2008)
380 STIPULATION AND ORDER RE BRIEF LENGTH re (471 in M:06−cv−01791−VRW) filed by All Plaintiffs. Based upon the stipulation, the following shall be the page limits for the remaining briefs: Plaintiffs' Opposition: 50 pages. Government Reply: 35 pages. Carrier Brief: 30 pages. Plaintiffs' response to Carrier brief: 35 pages. Signed by Chief Judge Vaughn R Walker on 9/30/2008. (cgk, COURT STAFF) (Filed on 9/30/2008) (Entered: 09/30/2008)
381 AMENDED MINUTE ORDER re (468 in M:06−cv−01791−VRW): SCHEDULE: Al−Haramain v Bush (07−0109 VRW): 9/30/08 − Govt Defendants' Motion to Dismiss or for Summary Judgment (30 pages)9/30/08 − Plaintiffs' Motion for Discovery under FISA Section 1806(f) (30 pages)10/23/08 − Govt Defendants' Opposition (30 pages)10/23/08 − Plaintiffs' Opposition (30 pages)11/14/08 − Govt Defendants' and Plaintiffs' Reply Briefs (15 pages)12/2/08 − Hearing at 10:00 A.M. SCHEDULE: MDL Telecom Carrier Cases (MDL06−1791 ) (including Hepting v ATT (06−0672 VRW): 9/19/08 − Govt's Motion to Dismiss or for Summary Judgment(filed 9/9/08) (25 pages)10/16/08 − Plaintiffs' Opposition (50 pages per stipulation)11/5/08 − Govt's Reply (35 pages per stipulation)11/5/08 − Brief of Telecom Carrier Defendants (30 pages)11/20/08 − Plaintiffs' Reply to Telecom Carriers (35 pages per stipulation)12/2/08 − Hearing at 10:00 A.M. (cgk, COURT STAFF) (Filed on 9/30/2008) (Entered: 09/30/2008)
382 STIPULATION AND ORDER FOR WITHDRAWAL OF HELLER EHRMAN LLP AS COUNSEL FOR PLAINTIFFS TASH HEPTING et al re 379 . Signed by Chief Judge Vaughn R Walker on 9/30/2008. (cgk, COURT STAFF) (Filed on 9/30/2008) (Entered: 09/30/2008)
383 MOTION to Relate Case Administrative Motion by Plaintiffs to Consider Whether Cases Should be Related; Declaration of Kevin S. Bankston; Proof of Service filed by All Plaintiffs. (Bankston, Kevin) (Filed on 10/21/2008) (Entered: 10/21/2008)
384 Proposed Order re 383 MOTION to Relate Case Administrative Motion by Plaintiffs to Consider Whether Cases Should be Related; Declaration of Kevin S. Bankston; Proof of Service ; Deeming Cases Related and Assigning Jewel to MDL Docket No. 06−1791 VRW, In Re National Security Agency Telecommunications Records Litigation by All Plaintiffs. (Bankston, Kevin) (Filed on 10/21/2008) (Entered: 10/21/2008)
385 Response re 384 Proposed Order, 383 MOTION to Relate Case Administrative Motion by Plaintiffs to Consider Whether Cases Should be Related; Declaration of Kevin S. Bankston; Proof of Service Response of ATTCorp. to Hepting Plaintiffs' Administrative Motion to Relate Jewel to Hepting [Docket Nos. 383−84] byATTCorp.. (Ericson, Bruce) (Filed on 10/23/2008) (Entered: 10/23/2008)
386 ORDER by Chief Judge Vaughn R Walker granting 383 Motion to Relate Case. C06−0672 and C08−4373 are related. LR 3−12. (cgk, COURT STAFF) (Filed on 10/28/2008) (Entered: 10/28/2008)
387 Transcript of Proceedings held on 9−12−2008, before Judge Vaughn R. Walker. Court Reporter/Transcriber Debra L. Pas, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 41 of 42

11/24/2008
12/02/2008
07/21/2009 07/31/2009 08/20/2009 12/11/2009 12/15/2009 03/09/2010 06/11/2010 04/06/2011 04/06/2011 04/18/2011 01/12/2012 02/23/2012 02/23/2012 04/05/2012 11/07/2012

Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 2/2/2009. (Pas, Debra) (Filed on 11/6/2008) (Entered: 11/06/2008)
388 CLERKS NOTICE : TO ALL PARTIES AND COUNSEL OF RECORD;YOU ARE NOTIFIED THAT the Court has set the following schedule:December 2, 2008 − Hearing at 10:00 A.M. MDL Telecom Carrier Cases (including Hepting v ATT(06−0672 VRW) − Govt's motion to dismiss or for Summary Judgment. December 2, 2008 − Hearing at 2:00 P.M. Al−Haramain et al v George Bush (07−0109 VRW) − Govt's motion to dismiss or for Summary Judgment. Plaintiffs' Motion for Discovery under FISA Section 1806(f). Please report to Courtroom No.6, on the 17th floor at 450 Golden Gate Avenue, San Francisco, California. (cgk, COURT STAFF) (Filed on 11/24/2008) (Entered: 11/24/2008)
389 Minute Entry: Hearing on Defendants' Motion to Dismiss and/or Motion for Summary Judgment held on 12/2/2008 before Chief Judge Vaughn R Walker. The court heard argument from counsel.The matter has been submitted.The court to issue written order. (Court Reporter Sahar McVickar.) (cgk, COURT STAFF) (Date Filed: 12/2/2008) (Entered: 12/03/2008)
390 JUDGMENT. IT IS ORDERED AND ADJUDGED that in accordance with the Court's June 3, 2009 Order, judgment is hereby entered in favor of all defendants. (cgk, COURT STAFF) (Filed on 7/21/2009) (Entered: 07/21/2009)
391 NOTICE OF APPEAL. Filing fee $ 455. (Attachments: # 1 2nd part of Notice of Appeal)(gsa, COURT STAFF) (Filed on 7/31/2009) (Entered: 08/05/2009)
392 USCA Case Number 06−16676 USCA for 391 Notice of Appeal. (ys, COURT STAFF) (Filed on 8/20/2009) (Entered: 08/20/2009)
393 ORDER of USCA as to 391 Notice of Appeal (far, COURT STAFF) (Filed on 12/11/2009) (Entered: 12/13/2009)
394 ORDER of USCA (far, COURT STAFF) (Filed on 12/15/2009) (Entered: 12/15/2009)
395 ORDER of USCA (far, COURT STAFF) (Filed on 3/9/2010) (Entered: 03/09/2010)
396 CLERKS NOTICE Advising Counsel of Change in MDL Master Case Number Format (rcs, COURT STAFF) (Filed on 6/11/2010) (Entered: 06/11/2010)
397 ORDER of USCA (far, COURT STAFF) (Filed on 4/6/2011) (Entered: 04/06/2011)
398 ORDER of USCA (far, COURT STAFF) (Filed on 4/6/2011) (Entered: 04/06/2011)
399 ORDER of USCA (far, COURT STAFF) (Filed on 4/18/2011) (Entered: 04/18/2011)
400 USCA OPINION. (far, COURT STAFF) (Filed on 1/12/2012) (Entered: 01/12/2012)
401 MANDATE of USCA (far, COURT STAFF) (Filed on 2/23/2012) (Entered: 02/23/2012)
402 CLERKS Letter Spreading Mandate to Counsel (far, COURT STAFF) (Filed on 2/23/2012) (Entered: 02/23/2012)
403 WRIT OF CERTIORARI. (far, COURT STAFF) (Filed on 4/5/2012) (Entered: 04/05/2012)
404 MANDATE of USCA as to (49 in 3:06−cv−03467−VRW, 29 in 3:06−cv−06313−VRW, 23 in 3:06−cv−05269−VRW, 28 in 3:06−cv−06254−VRW, 86 in 3:06−cv−03596−VRW, 25 in 3:06−cv−05066−VRW, 23 in 3:06−cv−05452−VRW, 25 in 3:06−cv−05341−VRW, 24 in 3:06−cv−05067−VRW, 22 in 3:06−cv−06385−VRW, 23 in 3:06−cv−06295−VRW, 31 in

Case: 3:06-cv-00672-VRW As of: 09/17/2013 01:48 PM PDT 42 of 42

11/07/2012

3:06−cv−06387−VRW, 33 in 3:06−cv−04221−VRW, 34 in 3:06−cv−06222−VRW, 27 in 3:07−cv−00464−VRW, 21 in 3:07−cv−01243−VRW, 34 in 3:06−cv−06224−VRW, 24 in 3:06−cv−05065−VRW, 31 in 3:06−cv−06570−VRW, 31 in 3:06−cv−05343−VRW, 23 in 3:06−cv−05340−VRW, 21 in 3:07−cv−02538−VRW, 24 in 3:06−cv−05267−VRW, 94 in 3:06−cv−03574−VRW, 21 in 3:06−cv−06924−VRW, 391 in 3:06−cv−00672−VRW, 25 in 3:06−cv−05064−VRW, 21 in 3:06−cv−06434−VRW, 22 in 3:06−cv−07934−VRW, 23 in 3:06−cv−06294−VRW) Notice of Appeal, (21 in 3:06−cv−06388−VRW) Notice of Appeal (Attachments: # 1 USCA OPINION 12/29/2011)(rcs, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
405 SUPREME COURT ORDER. (farS, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)


On January 31, 2006, AT&T telephone and internet customers filed a class action lawsuit in the U.S. District Court for the Northern District of California against AT&T Corp. and AT&T Inc.  The plaintiffs, represented by public interest and private counsel, asked the court to declare as unlawful the defendants' participation in the federal government's program to monitor and collect Americans' telephone and internet communications and sought an injunction against the defendants' continued or future participation in the program, claiming that the program was operated in violation of federal electronic surveillance and telecommunication statutes, as well as the First and Fourth Amendments to the United States Constitution.  

In 2006, the Multi District Litigation (MDL) Panel consolidated the case as the lead case in a multi-district litigation consolidation, In Re National Security Agency Telecommunications Records Litigation, <a href="http://www.clearinghouse.net/detail.php?id=13881">NS-CA-11</a>, in this Clearinghouse. For information about what happened while the case was a part of the consolidation see <a href="http://www.clearinghouse.net/detail.php?id=12825">NS-CA-0004</a>.

On May 13, 2006, the United States moved to intervene as a defendant.  The motion was unopposed and the District Court (Judge Vaughn R. Walker) granted the motion at a June 23, 2006 hearing.  AT&T and the United States separately moved to dismiss the lawsuit. On July 20, 2006, the Court denied both motions to dismiss. Judge Walker ruled that the government could not rely on the state secrets privilege and that a telecom defendant could not assert immunity. The Court, however, certified the case for immediate appeal. Hepting v. AT & T Corp., 439 F. Supp. 2d 974, 1011 (N.D. Cal. 2006). 

The defendants' appealed to the Ninth Circuit Court of Appeals.  On April 26, 2007, the Ninth Circuit consolidated Al-Haramain v. Bush, No. 06-36083, with this case.  However, on November 16, 2007, the Ninth Circuit severed the two cases from each other and ordered that the cases would no longer be consolidated for any purpose. Hepting v. AT & T Corp., 508 F.3d 898, 899 (9th Cir. 2007). Oral argument was heard in August 2007. 

Prior to any Ninth Circuit decision, in July 2008, Congress enacted and President George Bush signed, the FISA Amendments Act that granted retroactive immunity to telecommunications companies for past violations of the Foreign Intelligence Surveillance Act ("FISA") provided that the Attorney General of the United States certified to the relevant U.S. District Court that the surveillance did not occur, was legal, or was authorized by the president. The case was returned to the District Court in light of the FISA Amendments Act. Hepting v. AT & T Corp., 539 F.3d 1157 (9th Cir. 2008).

Attorney General Michael Mukasey filed the requisite certification in September 2008 and the United States moved to dismiss all claims against telecommunication company defendants in this lawsuit as well as dozens of other lawsuits that were ordered to be consolidated in the U.S. District Court for the Northern District of California in a multidistrict litigation proceeding.  

On June 3, 2009, the District Court (U.S. District Judge Vaughn R. Walker) granted the United States' motion to dismiss based upon the retroactive immunity provision in the the FISA Amendments Act. Judge Walker dismissed the plaintiffs' claims, but without prejudice, saying that the plaintiffs could re-file if there was evidence of improper surveillance that fell outside the telecoms' immunity period found in the FISA amendments, which extended from Sept. 11, 2001 to Jan. 7, 2007.  The plaintiffs appealed the dismissal.   

On December 29, 2011, the Ninth Circuit Court of Appeals (Judges Harry Pregerson, Michael Daly Hawkins, and M. Margaret McKeown) affirmed the District Court's dismissal. However, Judge McKeown disagreed with the district court's conclusion that the immunity provisions were temporally limited.  The Supreme Court declined to hear the case on October 9, 2012.

The case is now closed.