BR 14-01 Declaration Of Kurt Opsahl In Support of Motion Of Plaintiffs In Jewel v. NSA And In First Unitarian Church v. NSA For Leave To Correct The Record (FISC 2014)

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The court issued a subsequent related opinion or order on April 9, 2014.
The court issued a subsequent related opinion or order on March 21, 2014.
The court issued a subsequent related opinion or order on March 12, 2014.

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IN THE UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT ~,,,..,..,lQ 'J lli•i• 2 Jj P'~!.·l7 j i Li• j r-Lv'·'"l i; .• '-'Al Ii '- L I,_;:.t:.hi c~~.I'" li I i IN RE MOTION FOR CONSENT TO DISCLOSURE ) c r ': 0 '~ Cu'l'u· l\ nr (': -·~-~-J\~\ OF COURT RECORDS OR, IN THE ALTERNATIVE, ) A DETERMINATION OF THE EFFECT OF THE ) Docket No.: Misc. 13-61 '6'll.. P\-o\ COURT'S RULES ON STATUTORY ACCESS RIGHTS ) '1 ~~~~~~~~~~~~~~~~~~> DECLARATION OF KURT OPSAHL IN SUPPORT OF MOTION OF PLAINTIFFS IN JEWEL v. NSA AND IN FIRST UNITARIAN CHURCH v. NSA, BOTH PENDING IN THE UNITED STATES DISTRICT COURT FOR THE NORTHEN DISTRICT OF CALIFORNIA, FOR LEAVE TO CORRECT THE RECORD I. I am an attorney of record for Movants in this action and a member in good standing of the California State Bar. I have personal knowledge of the matters stated in this declaration and if called upon to do so I am competent to testify to all matters set forth herein. 2. Attached hereto as Exhibit A is a true and correct copy of the Evidence Preservation Order in In Re: National Security Agency Telecommunications Records Litigation, MDL No. 06cv-1791-VR W (N .D. Cal) dated November 6, 2007. 3. Attached hereto as Exhibit B is the Complaint in Carolyn Jewel, et al., v. National Security Agency, et al., No. 08-cv-4373-JSW (N.D. Cal.) filed September 18, 2008. 4. Attached hereto as Exhibit C is a true and correct copy of the Evidence Preservation Order in Carolyn Jewel, et al., v. National Security Agency, et al., No. 08-cv-4373-JSW (N.D. Cal.) filed November 16, 2009. 5. Attached hereto as Exhibit Dis a true and correct copy of the Government Defendants' Notice Regarding Order of the Foreign Intelligence Surveillance Court in First Unitarian Church of Los Angeles, et al. v. National Security Agency, et al., Case No. 13-cv-3287JSW (N.D. Cal.) filed on March 7, 2014. .; I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on March 8, 2014 at San Francisco, California. /~~~ KURT OPSAHL Counsel for Movants ! ' i i I!. i. I· ' I' 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the foregoing declaration have been served on the following counsel on this 81h day of March, 2014, in the manner indicated: By Overnight Delivery: CHRISTINE GUNNING United States Department of Justice Litigation Security Group 2 Constitution Square 145 N Street NE Suite 2W-l 15 Washington, DC 20530 (202) 514-9016 By Email: JAMES J. GILLIGAN Special Litigation Counsel james.gilligan@usdoj.gov U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW, Rm. 6102 Washington, D.C. 20001 Phone: (202) 514-3358 HON. JEFFREYS. WHITE United States District Judge Northern District of California 450 Golden Gate Avenue Courtroom 11, 19th Floor San Francisco, CA 94102 (415) 522-4173 MARCIA BERMAN Senior Trial Counsel marcia.berman@usdoj.gov U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW, Rm. 7132 Washington, D.C. 20001 Phone: (202) 514-2205 Counsel for Defendants in Jewel v. NSA, No. 08-cv-4373-JSW (N.D. Cal.) and First Unitarian Church, v. NSA, No. 13-cv-3287JSW (N.D. Cal.) Dated: March 8, 2014 KURT OPSAHL Counsel/or Movants 3 I I. r Exhibit A Exhibit A ase M:06-cv-01791-VAW Document 393 Filed 11 /06/2007 Page 1 of 4 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA IO 11 IN RE: MDL Docket No 06-1791 VRW 12 NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS 13 LITIGATION 14 15 16 17 5 LL. ORDER This Document Relates To: ALL CASES -------------------------------' 18 19 Plaintiffs have moved for an order prohibiting the 20 alteration or destruction of evidence during the pendency of this 21 action. MDL Doc # 384. The United States has filed papers 22 opposing the motion, Doc # 386, and has prepared and lodged with 23 the court a confidential submission designed for ex parte, in 24 camera review. Doc# 387. Telephone company defendants AT&T, 25 Cingular, Bellsouth, Sprint and Verizon have joined in the United 26 States's opposition to plaintiffs' motion. 27 Doc # 365, 388, 390. Upon careful review of the non-confidential papers 28 submitted in support of and in opposition to the motion, the court ase M:OB-cv-01791-VAW Filed 11/06/2007 Document 393 Page 2 of 4 has determined that (1) no hearing on the motion is necessary; (2) 2 an order requiring the preservation of evidence is appropriate; and 3 (3) an interim order shall forthwith enter requiring the parties to 4 take steps to prevent the alteration or destruction of evidence as 5 follows: A. 6 Until the issues in these proceedings can be further 7 refined in light of the guidance and directives anticipated to be 8 received upon appellate review of the court's decision in Heptinq v 9 AT&T Corporation, 439 F Supp 974 (N D Cal 2006) and of the Oregon 10 district court's decision in Al-Haramain Islamic Foundation, Inc v 11 Bush, 451 F Supp 2d 1215 (D Or 2006), the court reminds all parties 12 of their duty to preserve evidence that may be relevant to this 13 action. 14 the possession, custody and control of the parties to this action, The duty extends to documents, data and tangible things in 15 and any employees, agents, contractors, carriers, bailees or other 16 non-parties who possess materials reasonably anticipated to be 17 subject to discovery in this action. 18 Counsel are under an obligation to exercise efforts to identify and notify such non- 19 parties, including employees of corporate or institutional parties. 20 21 B. "Documents, data and tangible things" is to be interpreted broadly to include writings, records, files, 22 correspondence, reports, memoranda, calendars, diaries, minutes, 23 electronic messages, voicemail, e-mail, telephone message records 24 or logs, computer and network activity logs, hard drives, backup 25 data, removable computer storage media such as tapes, disks and 26 cards, printouts, document image files, web pages, databases, 27 spreadsheets, software, books, ledgers, journals, orders, invoices, 28 bills, vouchers, checks, statements, worksheets, summaries, 2 ase M:OS-cv-01791-VRW Filed 11/06/2007 Document 393 Page 3 of 4 compilations, computations, charts, diagrams, graphic 2 presentations, drawings, films, digital or chemical process 3 photographs, video, phonographic, tape or digital recordings or 4 transcripts thereof, drafts, jottings and notes. Information that 5 serves to identify, locate, or link such material, such as file 6 inventories, file folders, indices and metadata, is also included 7 in this def ini ti on. C. 8 \\Preservation" is to be interpreted broadly to 9 accomplish the goal of maintaining the integrity of all documents, 10 data and tangible things reasonably anticipated to be subject to 11 discovery under FRCP 26, 45 and 56(e) in this action. Preservation 12 includes taking reasonable steps to prevent the partial or full 13 destruction, alteration, testing, deletion, shredding, 14 incineration, wiping, relocation, migration, theft, or mutation of 15 such material, as well as negligent or intentional handling that 16 would make material incomplete or inaccessible. 17 D. Counsel are directed to inquire of their respective 18 clients if the business practices of any party involve the routine 19 destruction, recycling, relocation, or mutation os such materials 20 and, if so, direct the party, to the extent practicable for the 21 pendency of this order, either to 22 (1) halt such business processes; 23 (2) sequester or remove such material from the business 24 process; or 25 (3) arrange for the preservation of complete and accurate 26 duplicates or copies of such material, suitable for later discovery 27 if requested. 28 \\ 3 ase M:OS-cv-01791-VRW Document 393 Filed 11 /06/2007 Page 4 of 4 The most senior lawyer or lead trial counsel representing 2 each party shall, not later than December 14, 2007, submit to the 3 court under seal and pursuant to FRCP 11, a statement that the 4 directive in paragraph D, above, has been carried out. 5 The clerk is directed to vacate the hearing now scheduled 6 for November 15, 2007 in this matter. 7 8 IT IS SO ORDERED. 9 ·e t: tE t1;I =:.= uut1' CJ 0 ........ ... .... ·Q .... lo... {,,) .~ l:: Q.~ {/} 0 ~ !! C) 00 ..s:: "C t: e Cl.I = 0 ::Z u ;:;> .;: i... 0 J.i.. 10 11 VAUGHN R WALKER United States District Chief Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Exhibit B Exhibit B 2 3 4 5 6 7 ELcCrRONIC FRONTIER FOUNOArlON CINDY COi iN ( 145997) cindy@eff.org LEE TIEN (148216) KURT OPSAHi. (191 303) KEVIN S. BANKSTON (217026) JAMES S. TYRE (083117) 454 Sholwell Street San Francisco, CA 941 I 0 Tc:lcphone: 4151436-9333; Fax: 4151436-9993 RICH1\RD R WI EBE ( l 2 I 156) widi\.'(~V,pachcll net LA\\' OFFICE OF RICllt\RD R WIEBE 8 425 Cahforniu Street, Suite 2025 San Francisco, CA 94 i O·~ 9 rclcphonc: 415;433.3200; Fax: 4 i 5/433-6382 lO THO.t-.IAS E. MOOR£ Ill ( 11S107} tmoorc@mnorcla\vtcam.com 11 TllE ~fOORE LAW GROUP 228 H:unillon :\venue, 3rd Floor 12 Palo Alto, CA 94301 13 1..i Telephone: 6501798-5352, Fax: 6501798-5001 Attorneys for PlamtilTs 15 16 17 NORTHERN DISTRICT OF CAl.IFORNIA C:\RUL YN JEWEL. 1 ASH HEPTING, GREGOR-Y. HICK~ ) CASE NU: ERIK KNUTZEN and JOlCE WAI.TON. on be~f bf : ) themselves ~md all other~ :-.imila1 ly situated. · -~--' :__ . ·\. - 18 19 20 21 22 23 24 25 26 27 28 UNITED ST:\TES DJSlRICT COURT ) Plamt1ffs. ) ) ) ) vs NATIONAi. SECURITY AGENCY and KEITH B. ) ALEXANDER, its Director, in his official and personal ) capacities; MICHAEL V. HA VDt:N, in hi~ personal c<1paclly, ) Lhc UNITED STATES OF AMERICA; UEORGE W. BUSH, ) President of the Unilc<l States, in his official and personal ) ,~1padtic~. RlCHARD f3. CHE.NI~ Y, in his personal capacity: ) DAVIDS. ADDINGTON, :n his personal capacity: ) DEPARTMENT OF JUSTICE and MICllAEL B. > MLI KASEY, its Attorney General. m his official and personal ) capacities; ALBERTO R GONZALES, in his rersonal ) capilcit·y; JOHN D ASI ICROFT. in his personal capacity; ) JOI fN M. MCCONNELL, Dircclor of National Intelligence. in) his offo:ial and personal capacities; JOHN D. NEGROPONTE, ) in his personal \:apacit)'. and DOES #I -IOO, inclusive. } Defendants. ____ COMPl.AINT ) ) ) CLASS r\CTION I .f".,. . RR COf\11'1.AJNT FOR .,_. CONSTITUTIONAL AND STATUTORY VIOL\TIONS. SEEKING DAMAO!;S. DECJ .ARATOR Y. AND INJUNCTIVE Rf:l.IEF DEMAND FOi<. JURY TE.JAL ) 1. Plaintiffs, on behalf of themselves and a class of similarly situated persons, bring th 2 action and allege upon personal knowledge and belief as to their own acts, and upon information a d 3 4 5 6 belief (based on the investigation of counsel) as to all other matters, as to which allegations Plainti s believe substantial evidentiary support exists or will exist after a reasonable opportunity for further investigation and discovery, as follows: PRELIMINARY STATEMENT 7 8 2. This case challenges an illegal and unconstitutional program of dragnet 9 communications surveillance conducted by the National Security Agency (the "NSA") and other 10 Defendants in concert with major telecommunications companies ("Defendants" is defined 11 12 13 14 15 collectively as the named defendants and the Doe defendants as set forth in paragraphs 25 through 38 below). 3. This program of dragnet surveillance (the "Program"), first authorized by Executive Order of the President in October of 2001 (the "Program Order") and first revealed to the public in 16 December of2005, continues to this day. 17 4. Some aspects of the Program were publicly acknowledged by the President in 18 December 2005 and later described as the "terrorist surveillance program" ("TSP"). 19 20 21 22 23 24 5. The President and other executive officials have described tliESP's activities, which were conducted outside the procedures of the Foreign Intelligence Surveillance Act ("FISA") and without authorization by the Foreign Intelligence Surveillance Court ("FISC"), as narrowly targeti g for interception the international communications of persons linked to Al Qaeda. 6. The Attorney General and the Director of National Intelligence have since publicly 25 admitted that the TSP was only one particular aspect of the surveillance activities authorized by th 26 Program Order. 27 28 7. In addition to eavesdropping on or reading specific communications, Defendants 2 have indiscriminately intercepted the communications content and obtained the communications 3 4 5 6 7 8 9 IO 11 records of millions of ordinary Americans as part of the Program authorized by the President. 8. The core component of the Program is Defendants' nationwide network of sophisticated communications surveillance devices, attached to the key facilities of telecommunications companies such as AT&T that carry Americans' Internet and telephone communications. 9. Using this shadow network of surveillance devices, Defendants have acquired and continue to acquire the content of a significant portion of the phone calls, emails, instant messages, text messages, web communications and other communications, both international and domestic, 12 of practically every American who uses the phone system or the Internet, including Plaintiffs and 13 class members, in an unprecedented suspicionless general search through the nation's 14 communications networks. 15 16 17 18 IO. In addition to using surveillance devices to acquire the domestic and international communications content of millions of ordinary Americans, Defendants have unlawfully solicited and obtained from telecommunications companies such as AT&T the complete and ongoing 19 disclosure of the private telephone and Internet transactional records of those companies' millions 20 of customers (including communications records pertaining to Plaintiffs and class members), 21 communications records indicating who the customers communicated with, when and for how Ion , 22 among other sensitive infonnation. 23 24 25 26 11. This non-content transactional information is analyzed by computers in conjunction with the vast quantity of communications content acquired by Defendants' network of surveillance devices, in order to select which communications are subjected to personal analysis by staff of the 27 NSA and other Defendants, in what has been described as a vast "data-mining" operation. 28 12. Plaintiffs and class members arc ordinary Americans who are current or former 2 subscribers to AT&T's telephone and/or Internet services. 3 13. Communications of Plaintiffs and class members have been and continue to be 4 illegally acquired by Defendants using surveillance devices attached to AT&T' s network, and 5 Defendants have illegally solicited and obtained from AT&T the continuing disclosure of private 6 communications records pertaining to Plaintiffs and class members. Plaintiffs' communications or 7 activities have been and continue to be subject to electronic surveillance. 8 14. Plaintiffs are suing Defendants to enjoin their unlawful acquisition of the 9 communications and records of Plaintiffs and class members, to require the inventory and IO destruction of those that have already been seized, and to obtain appropriate statutory, actual, and 11 punitive damages to deter future illegal surveillance. 12 13 JURISDICTION AND VENUE 15. This court has subject matter jurisdiction over the federal claims pursuant to 28 14 U.S.C. § 1331, 18 U.S.C. § 2712, and 5 U.S.C. § 702. 15 16 17 18 19 20 21 16. Plaintiffs are informed, believe and thereon allege that Defendants have sufficient contacts with this district generally and, in particular, with the events herein alleged, that Defendan s are subject to the exercise of jurisdiction of this court over the person of such Defendants and that venue is proper in this judicial district pursuant to 28 U.S.C. § 1391. 17. Plaintiffs are informed, believe and thereon allege that a substantial part of the even giving rise to the claims herein alleged occurred in this district and that Defendants and/or agents 22 of Defendants may be found in this district. 23 24 25 26 27 28 18. Intradistrict Assignment: Assignment to the San Francisco/Oakland division is proper pursuant to Local Rule 3-2(c) and (d) because a substantial portion of the events and omissions giving rise to this lawsuit occurred in this district and division. 19. Plaintiffs have fully complied with the presentment of claim provisions of 28 U.S.C § 2675, as required for their claimsunder 18 U.S.C. § 2712. Plaintiffs timely served notice of their 1 claims on the NSA and the Department of Justice on December 19, 2007, and over six months hav 2 passed since the filing of that notice. 3 4 5 6 7 8 PARTIES 20. Plaintiff Tash Hepting, a senior systems architect, is an individual residing in Livermore, California. Hepting has been a subscriber and user of AT&T's residential long distanc telephone service since at least June 2004. 21. Plaintiff Gregory Hicks is an individual residing in San Jose, California. Hicks, a 9 retired Naval Officer and systems engineer, has been a subscriber and user of AT&T's residential IO long distance telephone service since February 1995. 11 12 13 14 15 22. Plaintiff Carolyn Jewel is an individual residing in Petaluma, California. Jewel, a database administrator and author, has been a subscriber and user of AT&T's WorldNet dial-up Internet service since approximately June 2000. 23. PlaintiffErikK.nutzen is an individual residing in Los Angeles, CaliforniaK.nutzen, 16 a photographer and land use researcher, was a subscriber and user of AT&T's WorldNet dial-up 17 Internet service from at least October 2003 until May 2005. Knutzen is currently a subscriber and 18 user of AT&T's High Speed Internet DSL service. 19 20 21 22 23 24 25 26 27 28 24. Plaintiff Joice Walton is an individual residing in San Jose, California. Walton, a high technology purchasing agent, is a current subscriber and user of AT&T's WorldNet dial-up Internet service. She has subscribed to and used this service since around April 2003. 25. Defendant National Security Agency (NSA) is an agency under the direction and control of the Department of Defense that collects, processes and disseminates foreign signals intelligence. It is responsible for carrying out the Program challenged herein. 26. Defendant Lieutenant General Keith B. Alexander is the current Director of the NS , in office since April 2005. As NSA Director, defendant Alexander has ultimate authority for supervising and implementing all operations and functions of the NSA, including the Program. 1 27. Defendant Lieutenant General (Ret.) Michael V. Hayden is the former Director of 2 the NSA, in office from March 1999 to April 2005. While Director, Defendant Hayden had ultima e 3 authority for supervising and implementing all operations and functions of the NSA, including the 4 Program. 5 28. Defendant United States is the United States of America, its departments, agencies, 6 and entities. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29. Defendant George W. Bush is the current President of the United States, in office since January 2001. Mr. Bush authorized and continues to authorize the Program. 30. Defendant Richard B. Cheney is the current Vice President of the United States, in office since January 2001. Defendant Cheney was personally involved in the creation, developme t and implementation of the Program. 31. Defendant David S. Addington is currently the chief of staff to Defendant Cheney, in office since October 2005. Previously, Defendant..ddington served as legal counsel to the Office of the Vice President. DefendantAddington was personally involved in the creation, development and implementation of the Program. On information and belief, Defendant Addington drafted the documents that purportedly authorized the Program. 32. Defendant Department of Justice is a Cabinet-level executive department in the United States government charged with law enforcement, defending the interests of the United Stat s according to the law, and ensuring fair and impartial administration of justice for all Americans. 33. Defendant Michael B.Mukasey is the current Attorney General of the United States, in office since November 2007. As Attorney General, DefendanMukasey approves and authorizes the Program on behalf of the Department of Justice. 34. Defendant Alberto R. Gonzales is the former Attorney General of the United States, in office from February 2005 to September 2007, and also served as White House Counsel to 26 President George W. Bush from January 2001 to February 2005. Defendant Gonzales was 27 personally involved in the creation, development and implementation of the Program. As Attorne 28 General, Defendant Gonzales authorized and approved the Program on behalf of the Department o 2 Justice. 3 4 5 6 7 35. Defendant John D. Ashcroft is the former Attorney General of the United States, in office from January 2001 to February 2005. As Attorney General, Defendant Ashcroft authorized and approved the Program on behalf of the Department of Justice. 36. Defendant Vice Admiral (Ret.) John M. McConnell is the Director of National g Intelligence ("DNI"), in office since February 2007. Defendant McConnell has authority over the 9 activities of the U.S. intelligence community, including the Program. 10 37. Defendant John D. Negroponte was the first Director of National Intelligence, in 11 office from April 2005 to February 2007. As DNI, Defendant Negroponte had authority over the 12 activities of the U.S. intelligence community, including the Program. 13 38. At all times relevant hereto, Defendants Doe Nos. 1-100, inclusive (the "Doc 14 defendants"), whose actual names Plaintiffs have been unable to ascertain notwithstanding 15 reasonable efforts to do so, but who are sued herein by the fictitious designation "Doe # 1" through I6 "Doe# 100," were agents or employees of the NSA, the DOJ, the White House, or were other 17 government agencies or entities or the agents or employees of such agencies or entities, who 18 authorized or participated in the Program. Plaintiffs will amend this complaint to allege their true l 9 names and capacities when ascertained. Upon information and belief each fictitiously named 20 Defendant is responsible in some manner for the occurrences herein alleged and the injuries to 21 Plaintiffs and class members herein alleged were proximately caused in relation to the conduct of 22 Does 1-100 as well as the named Defendants. 23 FACTUAL ALLEGATIONS RELATED TO ALL COUNTS 24 THE PRESIDENT'S AUTHORIZATION OF THE PROGRAM 25 39. On October 4, 200 I, President Bush, in concert with White House Counsel Gonzale , 26 NSA Director Hayden, Attorney General Ashcroft and other Defendants, issued a secret presidenti l 27 order (the "Program Order") authorizing a range of surveillance activities inside of the United Stat s 28 without statutory authorization or court approval, including electronic surveillance of Americans' 2 telephone and Internet communications (the "Program"). 3 40. This Program of surveillance inside the United States began at least by October 6, 4 200 l, and continues to this day. 5 41. The President renewed and, on infonnation and belief, renews his October 4, 2001 6 order approximately every 45 days. 7 42. The Program of domestic surveillance authorized by the President and conducted b 8 Defendants required and requires the assistance of major telecommunications companies such as 9 AT&T, whose cooperation in the Program was and on infonnation and belief is obtained based on 10 periodic written requests from Defendants and/or other government agents indicating that the 11 President has authorized the Program's activities, and/or based on oral requests from Defendants 12 and/or other government agents. 13 43. The periodic written requests issued to colluding telecommunications companies, 14 including AT&T, have stated and on infonnation and belief do state that the Program's activities 15 have been detennined to be lawful by the Attorney General, except for one period of less than six 16 days. 17 44. On infonnation and belief, at some point prior to March 9, 2004, the Department of 18 Justice concluded that certain aspects of the Program were in excess of the President's authority an 19 in violation of criminal law. 20 21 45. On Tuesday, March 9, 2004, Acting Attorney General James Corney advised the Administration that he saw no legal basis for certain aspects of the Program. The then-current 22 Program authorization was set to expire March 11, 2004. 23 46. On Thursday, March 11, 2004, the President renewed the Program Order without a 24 certification from the Attorney General that the conduct it authorized was lawful. 25 47. On information and belief, the March 11 Program Order instead contained a 26 statement that the Program's activities had been determined to be lawful by Counsel to the Preside t 27 Alberto Gonzales, and expressly claimed to override the Department of Justice's conclusion that th 28 Program was unlawful as well as any act of Congress or judicial decision purporting to constrain t 2 President's power as commander in chief. 3 48. For a period of less than sixty days, beginning on or around March 11, 2004, writte 4 requests to the telecommunications companies asking for cooperation in the Program stated that th 5 Counsel to the President, rather than the Attorney General, had determined the Program's activitie 6 to be legal. 7 49. By their conduct in authorizing, supervising, and implementing the Program, 8 Defendants, including the President, the Vice-President, the Attorneys General and the Directors o 9 NSA since October 2001, the Directors of National Intelligence since 2005 and the Doe defendant 10 have aided, abetted, counseled, commanded, induced or procured the commission of all Program 11 activities herein alleged, and proximately caused all injuries to Plaintiffs herein alleged. 12 13 14 15 16 17 18 19 THE NSA'S DRAGNET INTERCEPTION OF COMMUNICATIONS TRANSMITTED THROUGH AT&T FACILITIES 50. AT&T is a provider of electronic communications services, providing to the public the ability to send or receive wire or electronic communications. 51. AT&T is also a provider of remote computing services, providing to the public computer storage or processing services by means of an electronic communications system. 52. Plaintiffs and class members are, or at pertinent times were, subscribers to and/or customers of AT&T' s electronic communications services and/or computer storage or processing 20 services. 21 53. AT&T maintains domestic telecommunications facilities over which millions of 22 Americans' telephone and Internet communications pass every day. 23 54. These facilities allow for the transmission of interstate and/or foreign electronic voi e 24 and data communications by the aid of wire, fiber optic cable, or other like connection between the 25 point of origin and the point of reception. 26 55. One of these AT&T facilities is located at on Folsom Street in San Francisco, CA 27 (the "Folsom Street Facility"). 28 56. The Folsom Street Facility contains a "4ESS Switch Room." A 4ESS switch is a 2 type of electronic switching system used to route long-distance telephone communications transiti 3 through the facility. 4 57. The Folsom Street Facility also contains a "WorldNet Internet Room" containing 5 large routers, racks of modems for AT&T customers' WorldNet dial-up services, and other 6 telecommunications equipment through which wire and electronic communications to and from 7 AT&T's dial-up and DSL Internet service subscribers, including emails, instant messages, Voice8 Over-Internet-Protocol ("VOiP") conversations and web browsing requests, are transmitted. 9 58. The communications transmitted through the WorldNet Internet room are carried as 10 light signals on fiber-optic cables that are connected to routers for AT&T's WorldNet Internet 11 service and are a part of AT&T's Common Backbone Internet network ("CBB"), which comprises 12 a number of major hub facilities such as the Folsom Street Facility that are connected by a mesh o 13 high-speed fiber optic cables and that are used for the transmission of interstate and foreign 14 communications. 15 59. The WorldNct Internet Room is designed to route and transmit vast amounts of 16 Internet communications that are "peered" by AT&T between AT&T's CBB and the networks of 17 other carriers, such asConXion, Verio, XO, Genuity, Qwest, PAIX,Allegieance, Abovenet, Global 18 Crossing, C&W, UUNET, Level 3, Sprint,Telia, PSINet, and MAE-West. "Peering" is the process 19 whereby Internet providers interchange traffic destined for their respective customers, and for 20 customers of their customers. 21 60. Around January 2003, the NSA designed and implemented a program m 22 collaboration with AT&T to build a surveillance operation at AT&T's Folsom Street Facility, insid 23 a secret room known as the "SG3 Secure Room". 24 61. The SG3 Secure Room was built adjacent to the Folsom Street Facility's 4ESS 25 switch room. 26 62. An AT&T employee cleared and approved by the NSA was charged with setting up 27 and maintaining the equipment in the SG3 Secure Room, and access to the room was likewise 28 controlled by those NSA-approved AT&T employees. 63. The SG3 Secure Room contains sophisticated computer equipment, including a 2 device know as aNarus Semantic Traffic Analyzer (the Narus STA"), which is designed to analyze 3 large volumes of communications at high speed, and can be programmed to analyze the contents a d 4 traffic patterns of communications according to user-defined rules. 5 64. By early 2003, AT&T-under the instruction and supervision of the NSA-had 6 connected the fiber-optic cables used to transmit electronic and wire communications through the 7 WorldNet Internet Room to a "splitter cabinet" that intercepts a copy of all communications 8 transmitted through the WorldNet Internet Room and diverts copies of those communications to th 9 equipment in the SG3 Secure Room. (Hereafter, the technical means used to receive the diverted 10 communications will be referred to as the "Surveillance Configuration.") 11 65. The equipment in the SG3 Secure Room is in tum connected to a private high-spee 12 backbone network separate from the CBB (the "SG3 Network"). 13 66. NSA analysts communicate instructions to the SG3 Secure Room's equipment, 14 including theNarus STA, using the SG3 Network, and the SG3 Secure Room's equipment transmit 15 communications based on those rules back to NSA personnel using the SG3 Network. 16 67. The NSA in cooperation with AT&T has installed and is operating a nationwide 17 network of Surveillance Configurations in AT&T facilities across the country, connected to the SO 18 Network. 19 68. This network of Surveillance Configurations includes surveillance devices installed 20 at AT&T facilities in Atlanta, GA; Bridgeton, MO; Los Angeles, CA; San Diego, CA; San Jose C 21 22 23 and/or Seattle, WA. 69. Those Surveillance Configurations divert all peered Internet traffic transiting those facilities into SG3 Secure Rooms connected to the secure SG3 Network used by the NSA, and 24 information of interest is transmitted from the equipment in the SG3 Secure Rooms to the NSA 25 based on rules programmed by the NSA. 26 70. This network of Surveillance Configurations indiscriminately acquires domestic 27 communications as well as international and foreign communications. 28 71. This network of Surveillance Configurations involves considerably more locations 2 than would be required to capture the majority of international traffic. 3 72. This network of Surveillance Configurations acquires over half of AT&T' s purely 4 domestic Internet traffic, representing almost all of the AT&T traffic to and from other providers, 5 and comprising approximately 10% of all purely domestic Internet communications in the United 6 States, including those of non-AT&T customers. 7 73. Through this network of Surveillance Configurations and/or by other means, 8 Defendants have acquired and continue to acquire the contents of domestic and international wire 9 and/or electronic communications sent and/or received by Plaintiffs and class members, as well as I0 non-content dialing, routing, addressing and/or signaling information pertaining to those 11 communications. 12 74. In addition to acquiring all of the Internet communications passing through a numb 13 of key AT&T facilities, Defendants and AT&T acquire all or most long-distance domestic and 14 international phone calls to or from AT&T long-distance customers, including both the content of 15 those calls and dialing, routing, addressing and/or signaling information pertaining to those calls, 16 by using a similarly nationwide network of surveillance devices attached to AT&T's long-distance 17 telephone switching facilities, and/or by other means. 18 75. The contents of communications to which Plaintiffs and class members were a par 19 and dialing, routing, addressing, and/or signaling information pertaining to those communications, 20 21 22 23 24 25 26 27 were and are acquired by Defendants in cooperation with AT&T by using the nationwide network of Surveillance Configurations, and/or by other means. 76. Defendants' above-described acquisition in cooperation with AT&T of Plaintiffs' a d class members' communications contents and non-content information is done without judicial, statutory, or other lawful authorization, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority. 77. Defendants' above-described acquisition in cooperation with AT&T of Plaintiffs' 28 and class members' communications contents and non-content information is done without probable cause or reasonable suspicion to believe that Plaintiffs or class members have 2 committed or are about to commit any crime or engage in any terrorist activity. 3 4 5 78. Defendants' above-described acquisition in cooperation with AT&T of Plaintiffs' a d class members' communications contents and non-content information is done without probable cause or reasonable suspicion to believe thaPlaintiffs or class member!Bre foreign powers or agents 6 thereof. 7 8 79. Defendants' above-described acquisition in cooperation with AT&T of Plaintiffs' a d class members' communications contents and non-content information is donewithout any reason 9 to believe that the information is relevant to an authorized criminal investigation or to an authorize l 0 investigation to protect against international terrorism or clandestine intelligence activities. 11 12 13 14 15 80. Defendants' above-described acquisition in cooperation with AT&T of Plaintiffs' a d class members' communications contents and non-content information was directly performed, and/or aided, abetted, counseled, commanded, induced or procured, by Defendants. 81. On information and belief, Defendants will continue to directly acquire, and/or aid, 16 abet, counsel, command, induce or procure the above-described acquisition in cooperation with 17 AT&T, the communications contents and non-content information of Plaintiffs and class members. 18 19 20 THE NSA'S DRAGNET COLLECTION OF COMMUNICATIONS RECORDS FROM AT&T DATABASES 82. Defendants have since October 2001 continuously solicited and obtained the 2I disclosure of all information in AT&T's major databases of stored telephone and Internet records, 22 including up-to-the-minute updates to the databases that are disclosed in or near real-time. 23 24 25 26 27 28 83. Defendants have solicited and obtained from AT&T records concerning communications to which Plaintiffs and class members were a party, and continue to do so. 84. In particular, Defendants have solicited and obtained the disclosure of information managed by AT&T's "Daytona" database management technology, which includes records concerning both telephone and Internet communications, and continues to do so. 85. Daytona is a database management technology designed to handle very large 2 databases and is used to manage ..Hawkeye," AT&T's call detail record (..CDR") database, which 3 4 5 6 contains records of nearly every telephone communication carried over its domestic network since approximately 200 I , records that include the originating and terminating telephone numbers and th time and length for each call. 86. 7 The Hawkeye CDR database contains records or other information pertaining to 8 Plaintiffs' and class members' use of AT&T's long distance telephone service and dial-up Internet 9 service. IO 11 12 13 14 87. As of September 2005, all of the CDR data managed by Daytona, when uncompressed, totaled more than 312 terabytcs. 88. Daytona is also used to manage AT&T's huge network-security database, known as "Aurora," which has been used to store Internet traffic data since approximately 2003. The Aurora 15 database contains huge amounts of data acquired by firewalls, routersltoneypots and other devices 16 on AT&T's global IP (Internet Protocol) network and other networks connected to AT&T's netwo 17 89. The Aurora database managed by Daytona contains records or other information 18 pertaining to Plaintiffs' and class members' use of AT&T's Internet services. 19 90. Since October 6, 2001 or shortly thereafter, Defendants have continually solicited 20 and obtained from AT&T disclosure of the contents of the Hawkeye and Aurora communications 21 records databases and/or other AT&T communications records, including records or other 22 information pertaining to Plaintiffs' and class members' use of AT&T's telephone and Internet 23 services. 24 25 26 27 28 91. The NSA and/or other Defendants maintain the communications records disclosed by AT&T in their own database or databases of such records. 92. Defendants' above-described solicitation of the disclosure by AT&T of Plaintiffs' and class members' communications records, and its receipt of such disclosure, is done without judicial, statutory, or other lawful authorization, in violation of statutory and constitutional 2 limitations, and in excess of statutory and constitutional authority. 3 93. Defendants' above-described solicitation of the disclosure by AT&T of Plaintiffs' 4 and class members' communications records, and its receipt of such disclosure, is done without 5 probable cause or reasonable suspicion to believe that Plaintiffs' or class members have 6 7 8 9 10 11 12 13 14 15 16 17 18 committed or are about to commit any crime or engage in any terrorist activity. 94. Defendants' above-described solicitation of the disclosure by AT&T of Plaintiffs' and class members' communications records, and its receipt of such disclosure, is done without probable cause or reasonable suspicion to believe that Plaintiffs' or class members are foreign powers or agents thereof. 95. Defendants' above-described solicitation of the disclosure by AT&T of Plaintiffs' and class members' communications records, and its receipt of such disclosure, is domvithout any reason to believe that the information is relevant to an authorized criminal investigation or to an authorized investigation to protect against international terrorism or clandestine intelligence activities. 96. Defendants' above-described solicitation of the disclosure by AT&T of Plaintiffs' and class members' communications records, and its receipt of such disclosure, is directly 19 performed, and/or aided, abetted, counseled, commanded, induced or procured, by Defendants. 20 21 22 23 24 28 97. On information and belief, Defendants will continue to directly solicit and obtain AT&T's disclosure of its communications records, including records pertaining to Plaintiffs and class members, and/or will continue to aid, abet, counsel, command, induce or procure that conduc . CLASS ACTION ALLEGATIONS 2 All individuals in the United States that are current residential subscribers or customers of AT&T's telephone services or Internet services, or that were residential telephone or Internet subscribers or customers at any time after September 200 I. 3 99. The class seeks certification of claims for declaratory, injunctive and other equitabl 4 relief pursuant to 18 U.S.C. §2520, 18 U.S.C. §2707 and 5 U.S.C. § 702, in addition to declaratory 5 6 7 8 9 Io 11 and injunctive relief for violations of the First and Fourth Amendments. Members of the class expressly and personally retain any and all damages claims they individually may possess arising out of or relating to the acts, events, and transactions that form the basis of this action. The individual damages claims of the class members are outside the scope of this class action. I 00. Excluded from the class are the individual Defendants, all who have acted in active concert and participation with the individual Defendants, and the legal representatives, heirs, 12 successors, and assigns of the individual Defendants. 13 14 15 16 101. Also excluded from the class are any foreign powers, as defined by 50 U.S.C. § 1801(a), or any agents of foreign powers, as defined by 50 U.S.C. § 180l{b)(l)(A), including without limitation anyone who knowingly engages in sabotage or international terrorism, or 17 activities that are in preparation therefore. 18 102. This action is brought as a class action and may properly be so maintained pursuant 19 to the provisions of the Federal Rules of Civil Procedure, Rule 23. Plaintiffs reserve the right to 20 modify the class definition and the class period based on the results of discovery. 21 22 23 24 103. Numerosity of the Class: Members of the class are so numerous that their individual joinder is impracticable. The precise numbers and addresses of members of the class ar unknown to the Plaintiffs. Plaintiffs estimate that the class consists of millions of members. The 25 precise number of persons in the class and their identities and addresses may be ascertained from 26 Defendants' and AT&T's records. 27 28 104. Existence of Common Questions of Fact and Law: There is a well-defined 2 community of interest in the questions of law and fact involved affecting the members of the class. 3 These common legal and factual questions include: 4 (a) Whether Defendants have violated the First and Fourth Amendment rights o s 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 2S 26 27 28 class members, or are currently doing so; (b) Whether Defendants have subjected class members to electronic surveillanc , or have disclosed or used information obtained by electronic surveillance of the class members, in violation of SO U.S.C. § 1809, or are currently doing so; (c) Whether Defendants have intercepted, used or disclosed class members' communications in violation of 18 U.S.C. § 2Sl 1, or are currently doing so; (d) Whether Defendants have solicited and obtained the disclosure of the contents of class members' communications in violation of 18 U.S.C. § 2703(a) or (b), or are currently doing so; (e) Whether Defendants have solicited or obtained the disclosure of non-content records or other information pertaining to class members in violation of 18 U.S.C. § 2703(c), or ar currently doing so; (f) Whether Defendants have violated the Administrative Procedures Act, S U.S.C. §§ 701 et seq., or are currently doing so; (g) Whether the Defendants have violated the constitutional principle of separation of powers, or arc currently doing so; (h) Whether Plaintiffs and class members are entitled to injunctive, declaratory, and other equitable relief against Defendants; (i) Whether Plaintiffs and class members are entitled to an award of reasonable attorneys' fees and costs of this suit. lOS. Typicality: Plaintiffs' claims are typical of the claims of the members of the class because Plaintiffs are or were subscribers to the Internet and telephone services of Defendants. Plaintiffs and all members of the class have similarly suffered harm arising from Defendants' 2 violations of law, as alleged herein. 3 4 5 6 7 106. Adequacy. Plaintiffs are adequate representatives of the class because their interest do not conflict with the interests of the members of the class they seek to represent. Plaintiffs have retained counsel competent and experienced in complex class action litigation and Plaintiffs intend to prosecute this action vigorously. Plaintiffs and their counsel will fairly and adequately protect 8 the interests of the members of the class. 9 107. This suit may be maintained as a class action pursuant to Federal Rules of Civil 10 Procedure, Rule 23(b)(2) because Plaintiffs and the class seek declaratory and injunctive relief, an 11 12 13 14 all of the above factors ofnumerosity, common questions of fact and law, typicality and adequacy are present. Moreover, Defendants have acted on grounds generally applicable to Plaintiffs and th class as a whole, thereby making declaratory and/or injunctive relief proper. COUNT I 15 16 Violation of Fourth Amendment-Declaratory, Injunctive, and Equitable Relief 17 (Named Plaintiffs and Class vs. Defendants United States, National Security Agency, Department of Justice, Bush (in his official and personal capacities), Alexander (in his official and personal capacities), Mukasey (in his official and personal capacities), McConnell (in his official and personal capacities), and one or more of the Doe Defendants) 18 19 20 2I 22 I 08. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this complaint, as if set forth fully herein. 109. Plaintiffs and class members have a reasonable expectation of privacy in their 23 communications, contents of communications, and/or records pertaining to their communications 24 transmitted, collected, and/or stored by AT&T. 25 26 27 28 110. Defendants have directly performed, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of the above-described acts of acquisition, interception, disclosure, divulgence and/or use of 2 Plaintiffs' and class members' communications, contents of communications, and records pertaini 3 to their communications transmitted, collected, and/or stored by AT&T, without judicial or other 4 lawful authorization, probable cause, and/or individualized suspicion, in violation of statutory and 5 constitutional limitations, and in excess of statutory and constitutional authority. 6 111. AT&T acted as the agent of Defendants in performing, participating in, enabling, 7 8 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti , 9 interception, disclosure, divulgence and/or use of Plaintiffs' and class members' communications, 10 contents of communications, and records pertaining to their communications transmitted, collected 11 12 13 14 and/or stored by AT&T, without judicial or other lawful authorization, probable cause, and/or individualized suspicion. 112. At all relevant times, Defendants committed, knew of and/or acquiesced in all of th 15 above-described acts, and failed to respect the Fourth Amendment rights of Plaintiffs and class 16 members by obtainingjudicial or other lawful authorization and by conforming their conduct to th 17 requirements of the Fourth Amendment. 18 19 20 21 22 23 113. By the acts alleged herein, Defendants have violated Plaintiffs' and class members' reasonable expectations of privacy and denied Plaintiffs and class members their right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constituti n of the United States. 114. By the acts alleged herein, Defendants' conduct has proximately caused harm to 24 Plaintiffs and class members. 25 115. Defendants' conduct was done intentionally, with deliberate indifference, or with 26 reckless disregard of, Plaintiffs' and class members' constitutional rights. 27 28 116. On infonnation and belief, the Count I Defendants are now engaging in and will 2 continue to engage in the above-described violations of Plaintiffs' and class members' constitution l 3 4 5 6 7 8 rights, and are thereby irreparably hanning Plaintiffs and class members. Plaintiffs and class members have no adequate remedy at law for the Count I Defendants' continuing unlawful conduc, and the Count I Defendants will continue to violate Plaintiffs' and class members' legal rights unle s enjoined and restrained by this Court. 117. Plaintiffs seek that this Court declare that Defendants have violated their rights and 9 the rights of the class; enjoin the Count I Defendants, their agents, successors, and assigns, and all IO those in active concert and participation with them from violating the Plaintiffs' and class member ' 11 12 13 rights under the Fourth Amendment to the United States Constitution; and award such other and further equitable relief as is proper. COUNT II 14 Violation of Fourth Amendment-Damages 15 16 17 18 19 (Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity), Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his personal capacity), McConnell (in his personal capacity), Negroponte (in his personal capacity), and one or more of the Doe Defendants) 118. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding 20 paragraphs of this complaint, as if set forth fully herein. 21 22 23 24 25 119. Plaintiffs have a reasonable expectation of privacy in their communications, content of communications, and/or records pertaining to their communications transmitted, collected, and/ r stored by AT&T. 120. Defendants have directly performed, or aided, abetted, counseled, commanded, 26 induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, 27 enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission 28 of the above-described acts of acquisition, interception, disclosure, divulgence and/or use of 2 Plaintiffs' communications, contents of communications, and records pertaining to their 3 communications transmitted, collected, and/or stored by AT&T without judicial or other lawful 4 5 6 7 authorization, probable cause, and/or individualized suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority. 121. AT&T acted as the agent of Defendants in performing, participating in, enabling, g contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti , 9 interception, disclosure, divulgence and/or use of Plaintiffs' communications, contents of I0 communications, and records pertaining to their communications transmitted, collected, and/or 11 12 13 14 stored by AT&T without judicial or other lawful authorization, probable cause, and/or individualiz d suspicion. 122. At all relevant times, Defendants committed, knew of and/or acquiesced in all of th 15 above-described acts, and failed to respect the Fourth Amendment rights of Plaintiffs by obtaining 16 judicial or other lawful authorization and conforming their conduct to the requirements of the Four h 17 Amendment. 18 19 20 21 22 123. By the acts alleged herein, Defendants have violated Plaintiffs' reasonable expectations of privacy and denied Plaintiffs their right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constitution of the United States. 124. By the acts alleged herein, Defendants' conduct has proximately caused harm to 23 Plaintiffs. 24 125. Defendants' conduct was done intentionally, with deliberate indifference, or with 25 reckless disregard of, Plaintiffs' constitutional rights. 26 27 28 126. Plaintiffs seek an award of their actual damages and punitive damages against the Count II Defendants, and such other or further relief as is proper. COUNT III 2 Violation of First Amendment-Declaratory, Injunctive, and Other Equitable Relief 3 (Named Plaintiffs and Class vs. Defendants United States, National Security Agency, Department of Justice, Bush (in his official and personal capacities), Alexander (in his official and personal capacities), Mukasey (in his official and personal capacities), and McConnell (in his official and personal capacities), and one or more of the Doe Defendants) 4 5 6 127. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding 7 paragraphs of this complaint, as if set forth fully herein. 8 9 10 11 12 13 128. Plaintiffs and class members use AT&T's services to speak or receive speech anonymously and to associate privately. 129. Defendants directly performed, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of the 14 above-described acts of acquisition, interception, disclosure, divulgence and/or use of Plaintiffs' a 15 class members' communications, contents of communications, and records pertaining to their 16 communications without judicial or other lawful authorization, probable cause, and/or individualiz d 17 18 19 20 suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority. 130. AT&T acted as the agent of Defendants in performing, participating in, enabling, 21 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti n, 22 interception, disclosure, divulgence and/or use of Plaintiffs' communications, contents of 23 communications, and records pertaining to their communications transmitted, collected, and/or 24 stored by AT&T without judicial or other lawful authorization, probable cause, and/or individualiz d 25 26 27 28 suspicion. 131. By the acts alleged herein, Defendants violated Plaintiffs' and class members' right to speak and to receive speech anonymously and associate privately under the First Amendment. 132. By the acts alleged herein, Defendants' conduct proximately caused hann to 2 Plaintiffs and class members. 3 4 5 6 7 133. Defendants' conduct was done intentionally, with deliberate indifference, or with reckless disregard of, Plaintiffs' and class members' constitutional rights. 134. On infonnation and belief, the Count III Defendants are now engaging in and will continue to engage in the above-described violations of Plaintiffs' and class members' constitution 1 8 rights, and are thereby irreparably banning Plaintiffs and class members. Plaintiffs and class 9 members have no adequate remedy at law for the Count III Defendants' continuing unlawful IO conduct, and the Count III Defendants will continue to violate Plaintiffs' and class members' legal 11 12 13 14 rights unless enjoined and restrained by this Court. 135. Plaintiffs seek that this Court declare that Defendants have violated their rights and the rights of the class; enjoin the Count III Defendants, their agents, successors, and assigns, and al 15 those in active concert and participation with them from violating the Plaintiffs' and class member ' 16 rights under the First Amendment to the United States Constitution; and award such other and 17 further equitable relief as is proper. 18 COUNT IV 19 Violation of First Amendment-Damages 20 21 22 23 24 (Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity), Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal capacity), and one or more of the Doe Defendants) 136. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding 25 paragraphs of this complaint, as if set forth fully herein. 26 137. Plaintiffs use AT&T's services to speak or receive speech anonymously and to 27 associate privately. 28 138. Defendants directly perfonned, or aided, abetted, counseled, commanded, induced, 2 procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, 3 4 5 6 7 contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of the above-described acts of acquisition, interception, disclosure, divulgence and/or use of Plaintiffs' communications, contents of communications, and records pertaining to their communications without judicial or other lawful authorization, probable cause, and/or individualized suspicion, in 8 violation of statutory and constitutional limitations, and in excess of statutory and constitutional 9 authority. 10 11 12 13 14 15 139. By the acts alleged herein, Defendants violated Plaintiffs' rights to speak and receiv speech anonymously and associate privately under the First Amendment. 140. By the acts alleged herein, Defendants' conduct proximately caused hann to Plaintiffs. 141. Defendants' conduct was done intentionally, with deliberate indifference, or with 16 reckless disregard of, Plaintiffs' constitutional rights. 17 142. Plaintiffs seek an award of their actual damages and punitive damages against the 18 Count IV Defendants, and for such other or further relief as is proper. 19 20 21 22 23 24 25 26 27 28 COUNTY Violation of Foreign Intelligence Surveillance Act-Declaratory, Injunctive and Other Equitable Relief (Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal capacities), Mukasey (in his official and personal capacities), and McConnell (in his official and personal capacities), and one or more of the Doe Defendants) 143. Plaintiffs repeat and incorporate herein by reference the allegations in the precedin paragraphs of this complaint, as if set forth fully herein. 144. In relevant part, 50 U.S.C. § 1809 provides that: (a) Prohibited activities-A person is guilty of an offense if he intentionally-(1) engages in electronic surveillance under color of law except as authorized by this chapter, chapter 119, 121, or 206 of Title 18 or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title; 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 through electronic surveillance not authorized by this chapter, chapter 119, 121, or 206 of Title 18 or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title. 2 3 4 5 6 145. (f) "Electronic surveillance" means - (I) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent 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 States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of 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 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 law enforcement 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 surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes. 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In relevant part 50 U.S.C. § 1801 provides that: 146. 18 U.S.C. § 251 l(2)(f) further provides in relevant part that "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be th<X?Xclusive means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted." (Emphasis added.) 147. 50 U.S.C. § 1812 further provides in relevant part that: (a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of Title 18 and this chapter shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted. 2 (b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall constitute an additional exclusive means for the purpose of subsection (a). 3 4 5 (Emphasis added.) 6 148. Defendants intentionally acquired, or aided, abetted, counseled, commanded, 7 induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, 8 9 10 11 12 enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of such acquisition, by means of a surveillance device, the contents of one or more wire communications to or from Plaintiffs and class members or other information in which Plaintiffs o class members have a reasonable expectation of privacy, without the consent of any party thereto, 13 and such acquisition occurred in the United States. 14 149. AT&T acted as the agent of Defendants in performing, participating in, enabling, l 5 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti 16 17 18 19 of Plaintiffs' communications. 150. By the acts alleged herein, Defendants acting in excess of their statutory authority and in violation of statutory limitations have intentionally engaged in, or aided, abetted, counseled, 20 commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, 21 participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in 22 the commission of, electronic surveillance (as defined by 50 U.S.C. § 180I(t)) under color oflaw, 23 24 25 26 27 not authorized by any statute, to which Plaintiffs and class members were subjected in violation of 50 u.s.c. § 1809. 151. Additionally or in the alternative, by the acts alleged herein, Defendants acting in excess of their statutory authority and in violation of statutory limitations have intentionally 28 disclosed or used information obtained under color of law by electronic surveillance, knowing or l having reason to know that the information was obtained through electronic surveillance not 2 authorized by statute, including information pertaining to Plaintiffs and class members, or aided, 3 4 5 6 7 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i , or conspired in the commission of such acts. 152. Defendants did not notify Plaintiffs or class members of the above-described 8 electronic surveillance, disclosure, and/or use, nor did Plaintiffs or class members consent to such. 9 153. Plaintiffs and class members have been and are aggrieved by Defendants' electronic 1O surveillance, disclosure, and/or use of their wire communications. 11 12 13 14 15 154. On information and belief, the Count V Defendants are now engaging in and will continue to engage in the above-described acts resulting in the electronic surveillance, disclosure, and/or use of Plaintiffs' and class members' wire communications, acting in excess of the Count V Defendants' statutory authority and in violation of statutory limitations, including 50 U.S.C. § 180 16 and 18 U.S.C. § 2511(2)(f), and are thereby irreparably harming Plaintiffs and class members. 17 Plaintiffs and class members have no adequate remedy at law for the Count V Defendants' 18 19 20 21 22 23 continuing unlawful conduct, and the Count V Defendants will continue to violate Plaintiffs' and class members' legal rights unless enjoined and restrained by this Court. 155. Pursuant to Larson v. United States, 337 U.S. 682 (1949) and to 5 U.S.C. § 702, Plaintiffs seek that this Court declare that Defendants have violated their rights and the rights of th class; enjoin the Count V Defendants, their agents, successors, and assigns, and all those in active 24 concert and participation with them from violating the Plaintiffs' and class members' statutory 25 26 27 28 rights, including their rights under 50 U.S.C. §§ 1801 el seq.; and award such other and further equitable relief as is proper. COUNT VI 2 Violation of 50 U.S.C. § 1809, actionable under 50 U.S.C. § 1810-Damages 3 (Named Plaintiffs vs. Defendants United States, National Security Agency, Department of Justice, Alexander (in his official and personal capacities), Hayden (in his personal 4 capacity), Cheney (in his personal capacity), Addington (in his personal capacity), Mukasey 5 (in his official and personal capacities), Gonzales (in his personal capacity), Ashcroft (in his personal capacity), McConnell (in his official and personal capacities), and Negroponte (in 6 his personal capacity), and one or more of the Doe Defendants) 7 I 56. Plaintiffs repeat and incorporate herein by reference the allegations in the precedin 8 paragraphs of this complaint, as if set forth fully herein. 9 I57. 10 (a) Prohibited activities-A person is guilty of an offense if he intentionally-(1) engages in electronic surveillance under color of law except as authorized by this chapter, chapter I 19, I21, or 206 of Title 18 or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section I812 of this title; 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 through electronic surveillance not authorized by this chapter, chapter I 19, 121, or 206 of Title 18 or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 18I2 of this title. II I2 13 I4 I5 I6 I7 I8 I9 20 21 22 23 24 25 26 27 28 In relevant part, 50 U.S.C. § 1809 provides that: I58. In relevant part 50 U.S.C. § 1801 provides that: (t) "Electronic surveillance" means - (I) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent 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 States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 251 I (2)(i) of Title 18; (3) the intentional acquisition by an electronic, mechanical, or other surveillance 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 law enforcement 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 surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes. 2 3 4 5 6 7 159. 18 U.S.C. § 2511(2)(f) further provides in relevant part that "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the?Xclusive means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted." 8 (Emphasis added.) 9 160. 10 50 U.S.C. § 1812 further provides in relevant part that: (a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of Title 18 and this chapter shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted. 11 12 (b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters 119, 12 l, or 206 of Title 18 shall constitute an additional exclusive means for the purpose of subsection (a). 13 14 15 (Emphasis added.) 16 17 18 19 20 21 161. Defendants intentionally acquired, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of such acquisition, by means of a surveillance device, the contents of one or more wire communications to or from Plaintiffs or other information in which Plaintiffs have a reasonable 22 expectation of privacy, without the consent of any party thereto, and such acquisition occurred in 23 the United States. 24 25 26 27 28 162. AT&T acted as the agent of Defendants in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti of Plaintiffs' communications. 163. By the acts alleged herein, Defendants have intentionally engaged in, or aided, 2 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, 3 4 5 6 7 8 9 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i , or conspired in the commission of, electronic surveillance (as defined by 50 U.S.C. § 1801(f)) und r color of law, not authorized by any statute, to which Plaintiffs were subjected in violation of 50 u.s.c. § 1809. 164. Additionally or in the alternative, by the acts alleged herein, Defendants have intentionally disclosed or used infonnation obtained under color of law by electronic surveillance, 1O knowing or having reason to know that the infonnation was obtained through electronic surveillan e II 12 13 14 not authorized by statute, including infonnation pertaining to Plaintiffs, or aided, abetted, counsele , commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in I 5 the commission of such acts. I6 165. Defendants did not notify Plaintiffs of the above-described electronic surveillance, 17 disclosure, and/or use, nor did Plaintiffs consent to such. 18 19 20 21 22 23 24 25 26 27 28 166. Plaintiffs have been and are aggrieved by Defendants' electronic surveillance, disclosure, and/or use of their wire communications. 167. Pursuant to 50 U.S.C. § 1810, which provides a civil action for any person who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of 50 U.S.C. § 1809, Plaintiffs seek from the Count VI Defendants for each Plaintiff their statutory damages or actual damages; punitive damages as appropriate; and such other and further relief as is proper. COUNT VII 2 Violation of 18 U.S.C. § 2511-Declaratory, Injunctive, and Other Equitable Relief 3 (Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal capacities), Mukasey (in his official and personal capacities), and McConnell (in his official and personal capacities), and one or more of the Doe Defendants) 4 5 6 7 8 168. paragraphs of this complaint, as if set forth fully herein. 169. IO 11 12 13 14 15 16 170. 19 20 22 23 18 U.S.C. § 2511 further provides that: (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 divulge the contents of any communication (other than one to such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient. 18 21 In relevant part, 18 U.S.C. § 2511 provides that: {l) Except as otherwise specifically provided in this chapter any person who - (a) intentionally intercepts, endeavors to intercept, or procures any other person to 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 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 communication in violation of this subsection ... [or](d) intentionally uses, or endeavors to use, the contents of 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 communication in violation of this subsection ... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5). 9 17 Plaintiffs repeat and incorporate herein by reference the allegations in the preceding 171. 18 U. S.C. § 2511 (2)(f) further provides in relevant part that "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be th~clusive 24 means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act, 25 and the interception of domestic wire, oral, and electronic communications may be conducted." 26 (Emphasis added.) 27 28 172. 50 U.S.C. § 1812 further provides in relevant part that: (a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of Title 18 and this chapter shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted. 2 3 (b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall constitute an additional exclusive means for the purpose of subsection (a). 4 5 6 (Emphasis added.) 7 173. By the acts alleged herein, Defendants have intentionally and willfully intercepted, 8 endeavored to intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs 9 and class members' wire or electronic communications in violation of 18 U.S.C. § 251 l(l)(a); an IO 11 12 13 14 174. r By the acts alleged herein, Defendants have intentionally and willfully disclosed, or endeavored to disclose, to another person the contents of Plaintiffs' and class members' wire or electronic communications, knowing or having reason to know that the infonnation was obtained through the interception of wire or electronic communications in violation of 18 U.S.C. § 2511(1)( ); 15 and/or 16 175. By the acts alleged herein, Defendants have intentionally and willfully used, or 17 endeavored to use, the contents of Plaintiffs' and class members' wire or electronic communicatio s, 18 while knowing or having reason to know that the infonnation was obtained through the interceptio 19 20 21 22 of wire or electronic communications in violation of 18 U.S.C. § 251 l(l)(d). 176. By the acts alleged herein, Defendants have intentionally and willfully caused, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, 23 advised, participated in, contributed to, facilitated, directed, controlled, assisted in, or conspired to 24 cause AT&T's divulgence of Plaintiffs' and class members' wire or electronic communications to 25 Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 2511(3)(a). 26 27 28 177. Defendants have committed these acts of interception, disclosure, divulgence and/o use of Plaintiffs' and class members' communications directly or by aiding, abetting, counseling, commanding, inducing, procuring, encouraging, promoting, instigating, advising, willfully causing 2 participating in, enabling, contributing to, facilitating, directing, controlling, assisting in, or 3 4 5 6 7 conspiring in their commission. In doing so, Defendants have acted in excess of their statutory authority and in violation of statutory limitations. 178. AT&T acted as the agent of Defendants in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure, 8 divulgence and/or use of Plaintiffs' and class members' communications. 9 10 11 12 13 14 179. Defendants did not notify Plaintiffs or class members of the above-described intentional interception, disclosure, divulgence and/or use of their wire or electronic communications, nor did Plaintiffs or class members consent to such. 180. Plaintiffs and class members have been and are aggrieved by Defendants' intention and willful interception, disclosure, divulgence and/or use of their wire or electronic 15 communications. 16 181. On information and belief, the Count VII Defendants are now engaging in and will 17 continue to engage in the above-described acts resulting in the intentional and willful interception, 18 disclosure, divulgence and/or use of Plaintiffs' and class members' wire or electronic 19 20 21 22 23 communications, acting in excess of the Count VII Defendants' statutory authority and in violation of statutory limitations, including 18 U.S.C. § 2511, and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class members have no adequate remedy at law for the Count V I Defendants' continuing unlawful conduct, and the Count VII Defendants will continue to violate 24 Plaintiffs' and class members' legal rights unless enjoined and restrained by this Court. 25 26 27 28 182. Pursuant to 18 U.S.C. § 2520, which provides a civil action for any person whose wire or electronic communications have been intercepted, disclosed, divulged or intentionally used in violation of 18 U.S.C. § 2511, to Larson v. United States, 337 U.S. 682 (1949), and to 5 U.S.C. § 702, Plaintiffs and class members seek equitable and declaratory relief against the Count VII 2 Defendants. 3 4 5 6 7 183. Plaintiffs seek that this Court declare that Defendants have violated their rights and the rights of the class; enjoin the Count VII Defendants, their agents, successors, and assigns, and all those in active concert and participation with them from violating the Plaintiffs' and class members' statutory rights, including their rights under 18 U.S.C. § 2511; and award such other and 8 further equitable relief as is proper. 9 COUNT VIII 10 Violation of 18 U.S.C. § 2511, actionable under 18 U.S.C. § 2520-Damages 11 (Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity), Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal capacity), and one or more of the Doe Defendants) 12 13 14 15 16 17 184. paragraphs of this complaint, as if set forth fully herein. 185. 19 20 21 22 23 24 25 27 28 In relevant part, 18 U.S.C. § 2511 provides that: ( 1) Except as otherwise specifically provided in this chapter any person who - (a) intentionally intercepts, endeavors to intercept, or procures any other person to 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 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 communication in violation of this subsection ... [or](d) intentionally uses, or endeavors to use, the contents of 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 communication in violation of this subsection ... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5). 18 26 Plaintiffs repeat and incorporate herein by reference the allegations in the preceding 186. 18 U.S.C. § 2511 further provides that: (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 divulge the contents of any communication (other than one to 1 such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient. 2 3 4 5 6 7 187. 18 U.S.C. § 2511(2)(f) further provides in relevant part that "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be th~clusive means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted." 8 (Emphasis added.) 9 188. 10 50 U.S.C. § 1812 further provides in relevant part that: (a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of Title 18 and this chapter shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted. 11 12 (b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall constitute an additional exclusive means for the purpose of subsection (a). 13 14 15 (Emphasis added.) 16 17 18 19 20 21 189. By the acts alleged herein, Defendants have intentionally and willfully intercepted, endeavored to intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs wire or electronic communications in violation of 18 U.S.C. § 251 l(l)(a); and/or 190. By the acts alleged herein, Defendants have intentionally and willfully disclosed, or endeavored to disclose, to another person the contents of Plaintiffs' wire or electronic 22 communications, knowing or having reason to know that the information was obtained through the 23 24 25 26 27 interception of wire or electronic communications in violation of 18 U .S.C. § 2511 (1 )(c ); and/or 191. By the acts alleged herein, Defendants have intentionally and willfully used, or endeavored to use, the contents of Plaintiffs' wire or electronic communications, while knowing or having reason to know that the information was obtained through the interception of wire or 28 electronic communications in violation of 18 U.S.C. § 251 l(l)(d). l 192. By the acts alleged herein, Defendants have intentionally and willfully caused, or 2 aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, 3 4 5 6 7 advised, participated in, contributed to, facilitated, directed, controlled, assisted in, or conspired to cause AT&T's divulgencc of Plaintiffs' and class members' wire or electronic communications to Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 2511(3)(a). 193. Defendants have committed these acts of interception, disclosure, divulgence and/o 8 use of Plaintiffs' communications directly or by aiding, abetting, counseling, commanding, induci 9 procuring, encouraging, promoting, instigating, advising, willfully causing, participating in, 10 enabling, contributing to, facilitating, directing, controlling, assisting in, or conspiring in their 11 12 13 14 commission. 194. AT&T acted as the agent of Defendants in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure, 15 divulgence and/or use of Plaintiffs' communications. 16 195. Defendants did not notify Plaintiffs of the above-described intentional interception, 17 disclosure, divulgence and/or use of their wire or electronic communications, nor did Plaintiffs or 18 class members consent to such. 19 20 21 22 23 196. Plaintiffs have been and are aggrieved by Defendants' intentional and willful interception, disclosure, divulgence and/or use of their wire or electronic communications. 197. Pursuant to 18 U.S.C. § 2520, which provides a civil action for any person whose wire or electronic communications have been intercepted, disclosed, divulged or intentionally used 24 in violation of 18 U.S.C. § 2511, Plaintiffs seek from the Count VIII Defendants for each Plaintiff 25 their statutory damages or actual damages; punitive damages as appropriate; and such other and 26 27 28 further relief as is proper. , COUNT IX 2 3 4 5 6 7 8 Violation of 18 U.S.C. § 2511, actionable under 18 U.S.C. § 2712-Damages Against The United States (Named Plaintiffs vs. Defendants United States, Department of Justice, and National Security Agency) 198. paragraphs of this complaint, as if set forth fully herein. 199. IO 11 12 13 14 15 17 200. 19 20 22 23 18 U.S.C. § 2511 further provides that: (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 divulge the contents of any communication (other than one to such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient. 18 21 In relevant part, 18 U.S.C. § 2511 provides that: (1) Except as otherwise specifically provided in this chapter any person who - (a) intentionally intercepts, endeavors to intercept, or procures any other person to 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 any wire, oral, or electronic communication, knowing or having reason to know that the infonnation was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection ... [or](d) intentionally uses, or endeavors to use, the contents of 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 communication in violation of this subsection ... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5). 9 16 Plaintiffs repeat and incorporate herein by reference the allegations in the preceding 201. 18 U.S.C. § 2511(2)(f) further provides in relevant part that "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be thc:r!Xclusive 24 means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act, 25 and the interception of domestic wire, oral, and electronic communications may be conducted." 26 (Emphasis added.) 27 28 202. 50 U.S.C. § 1812 further provides in relevant part that: (a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of Title 18 and this chapter shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted. 1 2 3 (b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters I I 9, 12 I, or 206 of Title I 8 shall constitute an additional exclusive means for the purpose of subsection (a). 4 5 6 (Emphasis added.) 7 8 9 IO II 203. By the acts alleged herein, Defendants have intentionally and willfully intercepted, endeavored to intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs wire or electronic communications in violation of 18 U.S.C. § 251 l(l)(a); and/or 204. By the acts alleged herein, Defendants have intentionally and willfully disclosed, or 12 endeavored to disclose, to another person the contents of Plaintiffs' wire or electronic I 3 communications, knowing or having reason to know that the information was obtained through the 14 interception of wire or electronic communications in violation of 18 U.S.C. § 251 l(l)(c); and/or 15 16 17 18 19 20 205. By the acts alleged herein, Defendants have intentionally and willfully used, or endeavored to use, the contents of Plaintiffs' wire or electronic communications, while knowing or having reason to know that the information was obtained through the interception of wire or electronic communications in violation of 18 U.S.C. § 251 l(l)(d). 206. By the acts alleged herein, Defendants have intentionally and willfully caused, or 21 aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, 22 advised, participated in, contributed to, facilitated, directed, controlled, assisted in, or conspired to 23 cause AT&T's divulgence of Plaintiffs' and class members' wire or electronic communications to 24 Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 2511(3)(a). 25 207. Defendants have committed these acts of interception, disclosure, divulgencc audio 26 use of Plaintiffs' communications directly or by aiding, abetting, counseling, commanding, induci , 27 28 procuring, encouraging, promoting, instigating, advising, willfully causing, participating in, enabling, contributing to, facilitating, directing, controlling, assisting in, or conspiring in their 2 commission. 3 4 5 6 7 208. AT&T acted as the agent of Defendants in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure, divulgence and/or use of Plaintiffs' communications. 209. Defendants did not notify Plaintiffs of the above-described intentional interception, 8 disclosure, divulgence and/or use of their wire or electronic communications, nor did Plaintiffs or 9 class members consent to such. 10 11 12 13 14 15 210. Plaintiffs have been and are aggrieved by Defendants' intentional and willful interception, disclosure, divulgence and/or use of their wire or electronic communications. 211. Title 18 U.S.C. § 2712 provides a civil action against the United States and its agencies and departments for any person whose wire or electronic communications have been intercepted, disclosed, divulged or intentionally used in willful violation of 18 U .S.C. § 2511. 16 Plaintiffs have complied fully with the claim presentment procedure of 18 U.S.C. § 2712. Pursuan 17 to 18 U.S.C. § 2712, Plaintiffs seek from the Count IX Defendants for each Plaintiff their statutory 18 damages or actual damages, and such other and further relief as is proper. 19 20 21 22 23 24 25 26 27 28 COUNTX Violation of 18 U.S.C. § 2703(a) & (b)-Declaratory, Injunctive, and Other Equitable Relief (Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal capacities), Mukasey (in his official and personal capacities), and McConnell (in his official and personal capacities), and one or more of the Doe Defendants) 212. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this complaint, as if set forth fully herein. 213. In relevant part, 18 U.S.C. § 2703 provides that: (a) Contents of Wire or Electronic Communications in Electronic Storage.- A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an.electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section. (b) Contents of Wire or Electronic Communications in a Remote Computing Service.( l) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection(A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; or (B) with prior notice from the governmental entity to the subscriber or customer if the governmental entity(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or (ii) obtains a court order for such disclosure under subsection (d) of this section; except that delayed notice may be given pursuant to section 2705 of this title. (2) Paragraph (1) is applicable with respect to any wire or electronic communication that is held or maintained on that service(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such remote computing service; and (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing. 2 3 4 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 214. Defendants intentionally and willfully solicited and obtained from AT&T, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, 27 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i , 28 or conspired in soliciting and obtaining from AT&T, the disclosure to Defendants of the contents 1 of Plaintiffs' and class members' communications while in electronic storage by an AT&T electro ic 2 communication service, and/or while carried or maintained by an AT&T remote computing servic 3 4 5 6 7 in violation of 18 U.S.C. §§ 2703(a) and/or (b). In doing so, Defendants have acted in excess of their statutory authority and in violation of statutory limitations. 215. AT&T acted as the agent of Defendants in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs' 8 and class members' communications. 9 216. Defendants did not notify Plaintiffs or class members of the disclosure of their 1O communications, nor did Plaintiffs or class members consent to such. 11 12 13 14 217. Plaintiffs and class members have been and arc aggrieved by Defendants' above- described soliciting and obtaining of disclosure of the contents of communications. 218. On information and belief, the Count X Defendants are now engaging in and will 15 continue to engage in the above-described soliciting and obtaining of disclosure of the contents of 16 class members' communications while in electronic storage by AT&T's electronic communication 17 service(s), and/or while carried or maintained by AT&T's remote computing service(s), acting in 18 excess of the Count X Defendants' statutory authority and in violation of statutory limitations, 19 20 21 22 23 24 including 18 U.S.C. § 2703(a) and (b), and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class members have no adequate remedy at law for the Count X Defendants' continuing unlawful conduct, and the Count X Defendants will continue to violate Plaintiffs' and class members' legal rights unless enjoined and restrained by this Court. 219. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieve 25 by knowing or intentional violation of 18 U.S.C. § 2703, to Larson v. United States, 337 U.S. 682 26 27 28 ( 1949), and to 5 U .S.C. § 702, Plaintiffs and class members seek equitable and declaratory relief against the Count X Defendants. 220. Plaintiffs seek that this Court declare that Defendants have violated their rights and 2 the rights of the class; enjoin the Count X Defendants, their agents, successors, and assigns, and all 3 those in active concert and participation with them from violating the Plaintiffs' and class member ' 4 5 6 statutory rights, including their rights under 18 U.S.C. § 2703; and award such other and further equitable relief as is proper. COUNT XI 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Violation of 18 U.S.C. § 2703(a) & (b), actionable under 18 U.S.C. § 2707-Damages (Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity), Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal capacity), and one or more of the Doe Defendants) 221. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this complaint, as if set forth fully herein. 222. In relevant part, 18 U.S.C. § 2703 provides that: (a) Contents of Wire or Electronic Communications in Electronic Storage.- A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section. (b) Contents of Wire or Electronic Communications in a Remote Computing Service.( I) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection(A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; or (B) with prior notice from the governmental entity to the subscriber or customer ifthe governmental entity(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or (ii) obtains a court order for such disclosure under subsection (d) of this section; except that delayed notice may be given pursuant to section 2705 of this title. (2) Paragraph (l) is applicable with respect to any wire or electronic communication that is held or maintained on that service(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such remote computing service; and (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing. 2 3 4 5 6 7 8 9 10 11 12 223. Defendants intentionally and willfully solicited and obtained from AT&T, or aided, 13 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, l4 15 16 17 18 19 20 21 22 23 24 25 26 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i , or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of the con ten of Plaintiffs' communications while in electronic storage by an AT&T electronic communication service, and/or while carried or maintained by an AT&T remote computing service, in violation of 18 U.S.C. §§ 2703(a) and/or (b). 224. AT&T acted as the agent of Defendants in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs' communications. 225. Defendants did not notify Plaintiffs of the disclosure of their communications, nor did Plaintiffs consent to such. 226. Plaintiffs have been and are aggrieved by Defendants' above-described soliciting an 27 obtaining of disclosure of the contents of communications. 28 227. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieve 2 by knowing or intentional violation of 18 U.S.C. § 2703, Plaintiffs seek from the Count XI 3 4 5 6 7 8 9 1o Defendants for each Plaintiff their statutory damages or actual damages; punitive damages as appropriate; and such other and further relief as may be proper. COUNT XII Violation of 18 U.S.C. § 2703(a) & (b), actionable under 18 U.S.C. § 2712-Damages Against The United States (Named Plaintiffs vs. Defendants United States, Department of Justice, and National Security Agency) 228. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding 11 paragraphs of this complaint, as if set forth fully herein. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 229. In relevant part, 18 U.S.C. § 2703 provides that: (a) Contents of Wire or Electronic Communications in Electronic Storage.- A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section. (b) Contents of Wire or Electronic Communications in a Remote Computing Service.( l) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection(A) without required notice to the subscriber or customer, ifthe governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; or (B) with prior notice from the governmental entity to the subscriber or customer ifthe governmental entity(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or (ii) obtains a court order for such disclosure under subsection (d) of this section; except that delayed notice may be given pursuant to section 2705 of this title. (2) Paragraph (1) is applicable with respect to any wire or electronic communication that is held or maintained on that service(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such remote computing service; and (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, ifthe provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 230. Defendants intentionally and willfully solicited and obtained from AT&T, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i , or conspired in the soliciting and obtaining from AT&T the disclosure to the NSA of the contents of Plaintiffs' communications while in electronic storage by an AT&T electronic communication 16 service, and/or while carried or maintained by an AT&T remote computing service, in violation of 17 18 19 20 21 22 23 24 18 U.S.C. §§ 2703(a) and/or (b). 231. AT&T acted as the agent of Defendants in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs' communications. 232. Defendants did not notify Plaintiffs of the disclosure of their communications, nor did Plaintiffs consent to such. 233. Plaintiffs have been and are aggrieved by Defendants' above-described soliciting an 25 obtaining of disclosure of the contents of communications. 26 27 28 234. Title 18 U.S.C. § 2712 provides a civil action against the United States and its agencies and departments for any person whose communications have been disclosed in willful 1 violation of 18 U.S.C. § 2703. Plaintiffs have complied fully with the claim presentment procedur 2 of 18 U.S.C. § 2712. Pursuant to 18 U.S.C. § 2712, Plaintiffs seek from the Count XII Defendants 3 4 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for each Plaintiff their statutory damages or actual damages, and such other and further relief as is proper. COUNT XIII Violation of 18 U.S.C. § 2703(c)-Declaratory, Injunctive, and Other Equitable Relief (Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal capacities), Mukasey (in his official and personal capacities), and McConnell (in his official and personal capacities), and one or more of the Doe Defendants) 235. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this complaint, as if set forth fully herein. 236. In relevant part, 18 U.S.C. § 2703(c) provides that: (c) Records Concerning Electronic Communication Service or Remote Computing Service.( 1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; (B) obtains a court order for such disclosure under subsection (d) of this section; (C) has the consent of the subscriber or customer to such disclosure; (D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title); or (E) seeks information under paragraph (2). (2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the(A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of service (including start date) and types of service utilized; (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) means and source of payment for such service (including any credit card or bank account number), of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1). (3) A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer. 2 3 4 5 6 7 237. Defendants intentionally and willfully solicited and obtained from AT&T, or aided, 8 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, 9 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i , 1O or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of records or 11 other information pertaining to Plaintiffs' and class members' use of electronic communication 12 services and/or remote computing services offered to the public by AT&T, in violation of 18 U.S. 13 14 15 16 17 18 19 § 2703(c). In doing so, Defendants have acted in excess of their statutory authority and in violatio of statutory limitations. 238. AT&T acted as the agent of Defendants in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs' and class members' records or other information. 239. Defendants did not notify Plaintiffs or class members of the disclosure of these 20 records or other information pertaining to them and their use of AT&T services, nor did Plaintiffs 21 22 23 24 25 26 27 or class members consent to such. 240. Plaintiffs and class members have been and are aggrieved by Defendants' above- described acts of soliciting and obtaining disclosure by AT&T of records or other information pertaining to Plaintiffs and class members. 241. On information and belief, the Count XIII Defendants are now engaging in and will continue to engage in the above-described soliciting and obtaining disclosure by AT&T of records 28 or other information pertaining to Plaintiffs and class members, acting in excess of the Count XIII 1 Defendants' statutory authority and in violation of statutory limitations, including 18 U.S.C. § 2 2703(c), and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class 3 4 5 6 7 members have no adequate remedy at law for the Count XIII Defendants' continuing unlawful conduct, and the Count XIII Defendants will continue to violate Plaintiffs' and class members' leg 1 rights unless enjoined and restrained by this Court. 242. Pursuant to I8 U.S.C. § 2707, which provides a civil action for any person aggrieve 8 by knowing or intentional violation of I8 U.S.C. § 2703, to Larson v. United States, 337 U.S. 682 9 (1949), and to 5 U.S.C. § 702, Plaintiffs and class members seek equitable and declaratory relief 10 against the Count XIII Defendants. II 12 13 I4 243. Plaintiffs seek that the Court declare that Defendants have violated their rights and the rights of the class; enjoin the Count XIII Defendants, their agents, successors, and assigns, and all those in active concert and participation with them from violating the Plaintiffs' and class 15 members' statutory rights, including their rights under I8 U.S.C. § 2703; and award such other and I 6 further equitable relief as is proper. COUNT XIV 17 18 Violation of 18 U.S.C. § 2703(c), actionable under 18 U.S.C. § 2707-Damages I9 (Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity), Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal capacity), and one or more of the Doe Defendants) 20 21 22 23 24 25 26 27 28 244. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this complaint, as if set forth fully herein. 245. In relevant part, 18 U.S.C. § 2703(c) provides that: (c) Records Concerning Electronic Communication Service or Remote Computing Service.( 1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; (B) obtains a court order for such disclosure under subsection (d) of this section; (C) has the consent of the subscriber or customer to such disclosure; (D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title); or (E) seeks information under paragraph (2). (2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the(A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of service (including start date) and types of service utilized; (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) means and source of payment for such service (including any credit card or bank account number), of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph ( l ). (3) A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 246. Defendants intentionally and willfully solicited and obtained from AT&T, or aided, 21 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, 22 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i , 23 or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of records or 24 other information pertaining to Plaintiffs' use of electronic communication services and/or remote 25 computing services offered to the public by AT&T, in violation of 18 U.S.C. § 2703(c). 26 27 28 1 247. AT&T acted as the agent of Defendants in performing, participating in, enabling, 2 contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs' 3 4 5 6 7 records or other information. 248. Defendants did not notify Plaintiffs of the disclosure of these records or other information pertaining to them and their use of AT&T services, nor did Plaintiffs consent to such. 249. Plaintiffs have been and are aggrieved by Defendants' above-described acts of 8 soliciting and obtaining disclosure by AT&T of records or other information pertaining to Plaintiffi . 9 250. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieve 10 by knowing or intentional violation of 18 U.S.C. § 2703, Plaintiffs seek from the Count XIV 11 12 13 14 15 16 17 18 Defendants for each Plaintiff their statutory damages or actual damages; punitive damages as appropriate; and such other and further relief as may be proper. COUNT XV Violation of 18 U.S.C. § 2703(c), actionable under 18 U.S.C. § 2712-Damages Against The United States (Named Plaintiffs vs. Defendants United States, Department of Justice, and National Security Agency) 251. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding 19 paragraphs of this complaint, as if set forth fully herein. 20 21 22 23 24 25 26 27 28 252. In relevant part, 18 U.S.C. § 2703(c) provides that: (c) Records Concerning Electronic Communication Service or Remote Computing Service.( 1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; (8) obtains a court order for such disclosure under subsection (d) of this section; (C) has the consent of the subscriber or customer to such disclosure; (D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title); or (E) seeks information under paragraph (2). (2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the(A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of service (including start date) and types of service utilized; (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) means and source of payment for such service (including any credit card or bank account number), of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (I). (3) A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer. 2 3 4 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 253. Defendants intentionally and willfully solicited and obtained from AT&T, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i , or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of records or other information pertaining to Plaintiffs' use of electronic communication services and/or remote computing services offered to the public by AT&T, in violation of 18 U.S.C. § 2703(c). 254. AT&T acted as the agent of Defendants in performing, participating in, enabling, contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs' records or other information. 255. Defendants did not notify Plaintiffs of the disclosure of these records or other 26 information pertaining to them and their use of AT&T services, nor did Plaintiffs consent to such. 27 28 1 256. Plaintiffs have been and are aggrieved by Defendants' above-described acts of 2 soliciting and obtaining disclosure by AT&T of records or other information pertaining to Plaintiff:. 3 4 5 6 7 257. Title 18 U.S.C. § 2712 provides a civil action against the United States and its agencies and departments for any person aggrieved by willful violation of 18 U.S.C. § 2703. Plaintiffs have complied fully with the claim presentment procedure of 18 U.S.C. § 2712. Pursuan to 18 U.S.C. § 2712, Plaintiffs seek from the Count XV Defendants for each Plaintiff their statuto 8 damages or actual damages and such other and further relief as is proper. 9 IO 11 COUNT XVI Violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. - Declaratory, Injunctive, and Other Equitable Relief (Named Plaintiffs and Class vs. Defendants United States, Department of Justice, National Security Agency, Alexander (in his official and personal capacities}, Mukasey (in his official 13 and personal capacities), and McConnell (in his official and personal capacities), and one or more of the Doe Defendants) 14 258. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding 15 paragraphs of this complaint, as if set forth fully herein. 16 12 17 259. The Program violates the Administrative Procedures Act, 5 U.S.C. § 701 et seq., 18 because Defendants' actions under the Program exceed statutory authority and limitations imposed 19 by Congress through FISA, and through Chapters 119, 121and206 of Title 18 of the U.S. Code (t e 20 21 22 23 Wiretap Act, the Stored Communications Act, and the Pen Register Statute, respectively) and in violation of statutory rights under those law;sare not otherwise in accordance with law; are contrary to constitutional rights, including the Fourth Amendment, First Amendment, and separation of 24 powers principles; and are taken without observance of procedures required by law. 25 260. Plaintiffs and class members are aggrieved by these violations because, as describe 26 previously in this Complaint, Defendants' actions under the Program has resulted in the interceptio , 27 acquisition, disclosure, divulgence and/or use of the contents of their wire and electronic 28 communications, communications records, and other infonnation in violation of their constitutiona 2 and statutory rights. 3 4 5 6 7 261. Plaintiffs seek nonmonetary relief against the Count XVI Defendants, including a declaration that Defendants have violated their rights and the rights of the class; an injunction enjoining the Count XVI Defendants, their agents, successors, and assigns, and all those in active concert and participation with them from violating the Plaintiffs' and class members' rights; and 8 such other and further nonmonetary relief as is proper. 9 COUNT XVII IO Violation of Separation of Powers - Declaratory, Injunctive, and Other Equitable Relief 11 (Named Plaintiffs and Class vs. Defendants United States, Department of Justice, National Security Agency, Bush (in his official and personal capacities), Alexander (in his official and personal capacities), Mukasey (in bis official and personal capacities), and McConnell (in his official and personal capacities), and one or more of the Doe Defendants) 12 13 14 262. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding 15 paragraphs of this complaint, as if set forth fully herein. 16 17 18 19 20 21 22 23 263. The Program violates the principles of separation of powers because it was authorized by the Executive in excess of the Executive's authority under Article II of the United States Constitution, in excess of statutory authority granted the Executive under FISA and under Chapters 119, 121 and 206 of Title 18 of the U.S. Code (the Wiretap Act, the Stored Communications Act, and the Pen Register Statute, respectively) and exceeds the statutory limits imposed on the Executive by Congress. 264. Plaintiffs and class members are aggrieved by these violations because, as describe 24 previously in this Complaint, Defendants' actions under the Program has resulted in the interceptio , 25 acquisition, disclosure, divulgence and/or use of the contents of their wire and electronic 26 communications, communications records, and other infonnation in violation of their constitutiona 27 28 and statutory rights. 265. Plaintiffs seek nonmonetary relief against the Count XVII Defendants, including a 2 declaration that Defendants have violated their rights and the rights of the class; an injunction 3 4 5 6 enjoining the Count XVII Defendants, their agents, successors, and assigns, and all those in active concert and participation with them from violating the Plaintiffs' and class members' rights; and fo such other and further nonmonetary relief as is proper. PRAYER FOR RELIEF 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 WHEREFORE, Plaintiffs respectfully request that the Court: A. Declare that the Program as alleged herein violates without limitation Plaintiffs' an class members' rights under the First and Fourth Amendments to the Constitution; their statutory rights, including their rights under 18 U.S.C. § 2511, 18 U.S.C. § 2703, 50 US.C. § 1809, and the Administrative Procedures Act; and their rights under the constitutional principle of Separation of Powers. B. Award Plaintiffs and the class equitable relief, including without limitation, a preliminary and permanent injunction pursuant to the First and Fourth Amendments to the United States Constitution prohibiting Defendants' continued use of the Program, and a preliminary and permanent injunction pursuant to the Fourth Amendment requiring Defendants to provide to Plaintiffs and the class an inventory of their communications, records, or other information that wa seized in violation of the Fourth Amendment, and further requiring the destruction of all copies of those communications, records, or other information within the possession, custody, or control of Defendants. c. Award Plaintiffs their statutory, actual, and punitive damages to the extent permitte by law and according to proof. D. Award to Plaintiffs reasonable attorneys' fees and other costs of suit to the extent permitted by law. G. 27 II 28 II Grant such other and further relief as the Court deems just and proper. ,JtJltY 2 Plamlilts hc:r\.:b)· rc4ucst a Jury trial for all issues triable by jlJf) mduding, bu1 not hmitcd to. J thusc issues and clairnli set forth in any ~ 5 7 8 9 Dl~MANO DATl:D. Scptcmbcr/1, 2008 mn~nded complaint or con:-;olidutcd actwn ~ ~ ELECTRONIC FRONTIER FOUNDATION CINDY COHN (1455997) LEE "flE~ (1482!6J KURT OPSAHL (191303) KEVIN S. BANKSTOt-: (217026) JAMES S. TYRE (0831171 45-l Shotwell Strccl San Francisco. CA 941 I0 4 J 5.1436-9333 l"t~lcphon(' 415'436-9993 (fax) 11 I:! 14 15 17 i8 I 11 RJCllARD R. WIEBE (121156) LAW OFFICE OF RICHARD R. WIEBE 425 California Street, Suite 2025 San Francisco, CA 9~ I 04 Tdcphonc. (415) 431-3200 f-'ilcsimile: (4 I 5) 433-6382 THOMAS I:. MOORE Ill (115107) THE MOORE LAW GROUP 228 llamilton Avenue. 3rJ Floor Palo Alto. C:\ 94301 Telephone: (650) 798-5352 Facs11nik: (650) 798-5001 t\llumcys for Plillntiffs 20 2\ 22 23 24 _,. ) 26 27 COMPLA I N·1 · .54. Exhibit C Exhibit C Case3:08-cv-04373-VRW Document51 UNITED STATES DISTRICT COURT 1 NORTHERN DISTRICT OF CALIFORNIA 2 SAN FRANCISCO DIVISION 3 4 5 6 7 8 Filed11/16/09 Page1 of 2 ) CAROLYN JEWEL et al., ) ) Plai11tiffs, ) Case No. C:08-cv-4373-VRW ) ) ~ NATIONAL SECURITY AGENCY et al., Defe11dants 9 10 ) ) ) ) Chief Judge Vaughn R. Walker ) ) 11 12 (PR:8P881!Bf ORDER 13 Upon consideration of the parties' joint motion for entry of an order regarding the 14 preservation of evidence and good cause appearing, the Court hereby ENTERS the following 15 order based on the Court's prior Order of November 6, 2007, in 06-cv-1791-VRW (Dkt. 393). 16 A. The Court reminds all parties of their duty to preserve evidence that may be 17 relevant to this action. The duty extends to documents, data and tangible things in the 18 possession, custody and control of the parties to this action, and any employees, agents, 19 contractors, carriers, bailees or other non-parties who possess materials reasonably anticipated to 20 be subject to discovery in this action. Counsel are under an obligation to exercise efforts to 21 identify and notify such non-parties, including employees of corporate or institutional parties. 22 B. "Documents, data and tangible things" is to be interpreted broadly to include 23 writings, records, files, correspondence, reports, memoranda, calendars, diaries, minutes, 24 electronic messages, voicemail, e-mail, telephone message records or logs, computer and 25 network activity logs, hard drives, backup data, removable computer storage media such as tapes, 26 disks and cards, printouts, document image files, web pages, databases, spreadsheets, software, 27 books, ledgers, journals, orders, invoices, bills, vouchers, checks, statements, worksheets, 28 Joint Motion for Entry of Order Regarding Preservation or Evidence Jewel et al. v. Natio11al Security Agency et al., Case No. 08-cv-4373-VRW Case3:08-cv-04373-VRW Document51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Filed11/16/09 Page2 of 2 summaries, compilations, computations, charts, diagrams, graphic presentations, drawings, films, digital or chemical process photographs, video, phonographic, tape or digital recordings or transcripts thereof, drafts, jottings and notes. Information that seives to identify, locate, or link such material, such as file inventories, file folders, indices and metadata, is also included in this definition. C. "Preseivation" is to be interpreted broadly to accomplish the goal of maintaining the integrity of all documents, data and tangible things reasonably anticipated to be subject to discovery under FRCP 26, 45 and 56(e) in this action. Preservation includes taking reasonable steps to prevent the partial or full destruction, alteration, testing, deletion, shredding, incineration, wiping, relocation, migration, theft, or mutation of such material, as well as negligent or intentional handling that would make material incomplete or inaccessible. D. Counsel are directed to inquire of their respective clients if the business or government practices of any party involve the routine destruction, recycling, relocation, or mutation of such materials and, if so, direct the party, to the extent practicable for the pendency of this order, either to ( l) halt such business or government practices; (2) sequester or remove such material from the business or government practices; or (3) arrange for the preservation of complete and accurate duplicates or copies of such material, suitable for later discovery if requested. Counsel representing each party shall, not later than December 15, 2009, submit to the Court under seal and pursuant to FRCP 11, a statement that the directive in paragraph D, above, has been carried out. IT IS SO ORDERED. Dated: Nov· 13 • 2009. Exhibit D Exhibit D Case3:13-cv-03287-JSW Document85 Filed03/07/14 Pagel of 2 IO STUART F. DELERY Assistant Attorney General JOSEPH H. HUNT Director, Federal Programs Branch ANTHONY J. COPPOLINO Deputy Branch Director JAMES J. GILLIGAN Special Litigation Counsel MARCIA BERMAN Senior Trial Counsel marcia.berman usdo'. ov BRYAN DEA GER Trial Attorney RODNEY PATTON Trial Attorney U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, NW, Rm. 7132 Washington, D.C. 20001 Phone: (202) 514-2205; Fax: (202) 616-8470 11 Auomeys for the Government Deft. in their Official Capacities 2 3 4 5 6 7 8 9 12 13 14 15 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DMSION FIRST UNITARIAN CHURCH OF LOS ANGELES, et al., 16 Plaintiffs, 17 v. 18 NATIONAL SECURITY AGENCY, et al., 19 20 21 22 23 24 Case No. 3:13-cv-03287-JSW GOVERNMENT DEFENDANTS' NOTICE REGARDING ORDER OF THE FOREIGN INTELLIGENCE SURVEILLANCE COURT Defendants. --~~~~~~~~~~~~~~·> The Government Defendants hereby provide notice regarding an order issued by the Foreign Intelligence Surveillance Court (FISC) today. On February 25, 2014, the United States filed a motion with the FISC for leave to retain call-detail records collected under the National 25 Security Agency (NSA) bulk telephony metadata program beyond the five-year deadline by 26 which FISC orders require the records to be destroyed. See Exh. I, attached hereto. The United 27 28 States filed that motion in order to ensure compliance with any preservation obligations the Government may have in this and other civil actions respecting those records. Today, the FISC Gov't Defs.' Notice Regarding Order of the Foreign Intel!. Surveillance Court (3: 13-cv-03287-JSW) Case3:13-cv-03287-JSW Document85 Filed03/07/14 Page2 of 2 issued an order denying that motion. See Exh. 2, attached hereto. Consistent with that order, as 2 of the morning of Tuesday, March 11, 2014, absent a contrary court order, the United States will 3 commence complying with applicable FISC orders requiring the destruction of call-detail record 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ' at this time. Dated: March 7, 2014 Respectfully submitted, STUART F. DELERY Assistant Attorney General JOSEPH H. HUNT Director, Federal Programs Branch ANTHONY J. COPPOLINO Deputy Branch Director Isl Marcia Berman JAMES J. GILLIGAN Special Litigation Counsel MARCIA BERMAN Senior Trial Counsel BRYAN DEARINGER Trial Attorney RODNEY PATTON Trial Attorney U.S Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 6102 Washington, D.C. 2000 I Phone: (202) 514-3358 Fax: (202) 616-8202 Counsel for the Government Defendants 26 27 28 Gov't Defs.' Notice Regarding Order of the Foreign lntell. Surveillance Court (3: 13-cv-03287-JSW) 2 Case3:13-cv-03287-JSW Document85-1 Filed03/07/14 Pagel of 15 EXHIBIT 1 Case3:13-cv-03287-JSW Document85-1 Filed03/07/14 Page2of15 . '~I '~ UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT ~,.,,, I IN RE APPLICATION OF 1HE FEDERAL BUREAU OF INVESTIGATION FOR AN ORDER REQUIRING 1HE PRODUCTION OF TANGIBLE 1HINGS ,..,. .. ,..._ . -- : f 't f " r .... ..:J ltL·~t"-~ WASHINGTON, D. C. ...... '• ( 1 ···: ~· \ \, o 1••• ! I t ' . }:-:·: MOTION FOR SECOND AMENDMENT TO "PRIMARY ORDER The United States of America, hereby moves this Court, pursuant to the Foreign Intelligence Surveillance Act of 1978 (the "Act''), Title 50, United States Code (U.S.C.), § 1861, as amended, for an amendment to the Primary Order issued in the above-captioned docket number. Specifically, the Government requests that Section (3)E of the Court's Primary Order be amended to authorize the preservation and/or storage of certain .call detail records or "telephony metadata" (hereinafter "BR metadata") beyond five years (60 months) after its initial collection under strict conditions and for the limited purpose of allowing the Government to comply with its preservation obligations, described below, arising as a result of the filing of several civil lawsuits challenging the legality of the National Security Agency (NSA) Section 215 bulk telephony metadata collection program. As detailed below, several plaintiffs have filed civil lawsuits in several United States District Courts challenging, among other things, the legality of the Government's receipt of BR metadata from certain telecommunications service providers in response to • '•J t ' .!.·:_···- . ~ '. :.......~. ' i Docket Number: BR 14-01 production orders issued by this Court under Section 215. While the Court's Primary I •I Case3:13-cv-03287-JSW Document85-1 Filed03/07/14 Page3 of 15 Order requires destruction of the BR metadata no later than five years (60 months) after its initial collection, such destruction could be inconsistent with the Government's preservation obligations in connection with civil litigation pending against it. Accordingly, to avoid the destruction of the BR metadata, the Government seeks an amendment to the Court's Primary Order that would allow the NSA to preserve and/or store the BR metadata for non-analytic purposes until relieved of its preservation obligations, or until further order of this Court under the conditions described below. 1. Upon consideration of the Application by the United States, on January 3, 2014, the Honorable Thomas F. Hogan of this Court issued orders in the above-captioned docket number requiring the production to the NSA of certain BR metadata created by certain specified telecommunications providers. That authority expires on March 28, 2014, at 5:00 p.m. Eastern Time. On February 5, 2014, this Court issued an order granting the Government's motion for amendment to the Primary Order to modify certain applicable minimization procedures.1 The application in docket number BR 14-01, including all exhibits and the resulting orders, as well as the Government's motion and the Court's February 5, 2014 Order, are incorporated herein by reference. 1 · The minimization procedures were modified to requirethe Government, by motion, to first obtain the Court's approval to use specific selection terms to query the BR metadata for p\irposes of obtaining foreign intelligence information, except in cases of emergency, and to restrict queries of the BR metadata to return only that metadata within two "hops" of anapproved seed. 2 Case3:13-cv-03287-JSW Oocument85-1 Filed03/07/14 Page4of15 2. The Primary Order in the above-captioned docket number, as amended, requires NSA to strictly adhere to the enumerated minimization procedures. Among the minimization procedures is subparagraph (3)E, which requires that "BR metadata be destroyed no later than five years (60 months) after its initial collection." The Court's February 5, 2014 Order granting the Government's motion to amend the Primary Order does not relieve the NSA of this destruction requirement. 3. The Government moves this Court for an amendment to the Primary Order in docket number BR 14-01, as amended, that would allow the NSA to preserve and/or store the BR metadata for non-analytic purposes nntil relieved of its preservation obligations or until further order of this Court under the conditions described below. I. Backgromd Concerning Pending Civil Litigation 4. Over the course of the last several months certain plaintiffs have filed civil actions against various government agencies and officials challenging the legality of the NSA bulk telephony metadata collection program as authorized by the Court under Section 215. The following matters, currently pending either before a United States District Court, or United States Court of Appeals, are among those in which a challenge to the lawfulness of the Section 215 program have been raised: (i) American Civil Liberties Union, et al., v. James R. Clapper, et al, No. 13-cv-3994 (WHP) (S.D.N.Y.), action challenging the legality of the NSA bulk telephony metadata collection program and seeking, among other things, an injunction permanently 3 Case3:13-cv-03287-JSW Document85-1 Filed03/07/14 Pages of 15 enjoining the collection under the program of telephony metadata pertaining to Plaintiffs' communications, and requiring the Government to purge all of Plaintiffs' call detail records heretofore acquired. Following dismissal of the Complaint and denial of Plaintiffs' motion for preliminary injunction in the District Court, Plaintiffs have filed an appeal to the United States Court of Appeals for the Second Orcuit; (ii) Klayman, et al., v. Obama, et al., Nos. 13-cv-851, 13-cv-881, 14-cv-092 (RJL) (D.D.C.), actions challenging the legality of the NSA bulk telephony metadata collection program and seeking, among other things, an injunction during the pendency of the proceedings barring the Government from collecting metadata pertaining to Plaintiffs' calls, the destruction of all call detail records of Plaintiffs' calls previously acquired, and a prohibition on the querying of the collected telephony metadata using any telephone number or other identifier associated with Plaintiffs. Following the granting (with a stay of the order pending appeal) of Plaintiffs' motion for preliminary injunction in Docket · Number 13-cv-851, the Government filed an appeal to the United States Court of Appeals for the District of Columbia Circuit; (iii) Smith v. Obama, et al., No.13-cv-00257 (D. Idaho), action challenging the legality of the NSA bulk telephony metadata collection program, and seeking, among other things, to permanently enjoin the Government from continuing to acquire BR metadata of Plaintiffs calls, and the purging of all BR metadata of Plaintiff's calls heretofore acquired; 4 Case3:13-cv-03287-JSW DocumentBS-1 Filed03/07/14 Page6of15 (iv) First Unitarian Church of Los Angles, et al., v. National Security Agency, et al., No. 3:13-cv-3287 OSW) (N.D.Cal.), action challenging the legality of the NSA bulk telephony metadata collection program and seeking similar injunctive relief; (v) Paul, et al., v. Obama, et al., No. 14-cv-0262 (RJL) (D.D.C.) putative class action for declaratory and injunctive relief against the NSA bulk telephony metadata collection program and seeking similar injunctive relief. According to the Complaint, plaintiffs apparently anticipate attempting to ascertain the exact size and identities of the putative class and its members through the Government's acquired BR metadata (although the BR metadata does not contain the substantive content of any communication, as defined by 18 U.S.C. § 2510(8), or the name,.address or financial information of a subscriber or customer); and (vi) Perez, et al., v. Clapper, et al., No. 3:14-cv-0050-KC (W.D. Tx.), prose "Bivens action" challenging the legality of the NSA bulk telephony metadata collection program and seeking monetary damages of $1.2 II. The Government's Preservation Obligations 5. When litigation is pending against a party (or reasonably anticipated), that party has a duty to preserve-that is, to identify, locate, and maintain-relevant information that may be evidence in the case. West v. Goodyear Tire & Rubber Co., 167 F.3d The Government can neither confirm nor deny whether it has specifically acquired and/or queried and/or obtained query results of BR metadata pertaining to plaintiffs. 2. s Case3:13-cv-03287-JSW Document85-1 Filed03/07/14 Page7of15 776, 779 (2d Or. 1999). The duty to preserve typically arises from the common-law duty . to avoid spoliation of relevant evidence for use at trial; the inherent power of the courts; and court rules governing the imposition of sanctions. See, e.g., Silvestri v. General Motors, 271F.3d583, 590-91 (4th Cir. 2001) (applying the "federal common law of spoliation''). "Relevant'' in this context means relevant for purposes of discovery, Condit v. Dunne, 225 F.R.0.100, 105 (S.D.N.Y. 2004), including information that relates to the claims or defenses of any party, as well as information that is reasonably calculated to lead to the discovery of admissible evidence. West, 167 F.3d at 779; Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 217-18 (S.D.N.Y. 2003). A party may be exposed to a range of sanctions not only for violating a preservation order, 3 but also for failing to produce relevant evidence when ordered to do so because it destroyed information that it had a duty to preserve. See, e.g., Residential Funding Corp. v. DeGeorge Financial Corp.,306 F.3d 99, 106-07 (2d Or. 2002); Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 288 (S.D.N.Y. 2009); Danis v. USN Communications, Inc., 2000 WL 1694325, *1 (N.D. Ill. Oct. 20, 2000) ("fundamental to the duty of production of information is the threshold duty to preserve documents and other information that may be relevant in a case"). Accord Pipes v. United Parcel Serv., Inc., 2009 WL 2214990, *1 n.3 (W.D. La. July 22, 2009). To date, no District Court or Court of Appeals has entered a specific preservation order in any of the civil lawsuits referenced in paragraph 4 abov~ but a party's duty to preserve arises apart from any specific court order. 3 6 Case3:13-cv-03287-JSW Document85-1 Filed03/07/14 Pages of 15 6. When preservation of information is required, the duty to preserve supersedes statutory or regulatory requirements or records-management policies that would otherwise result in the destruction of the information. See, e.g., Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 431(S.D.N.Y.2004) (a litigant "must suspend its routine document retention/destruction policy and put in place a 'litigation hold' to ensure preservation of relevant documents"). The duty to preserve discoverable information persists throughout the litigation; the responsible party must ensure that all potentially relevant evidence is retained. Id. at 432-33; see also Richard Green (Fine Paintings), 262 F.R.D. at 289; R.F.M.A.S.1 Inc. v. So, 2010 WL 3322639, ,.6 (S.D.N.Y. Aug. 11, 2010). 7. Based upon the issues raised by Plaintiffs in the above-referenced lawsuits and the Govenunent's potential defenses to those claims, the United States must ensure that all potentially relevant evidence is retained which includes the BR metadata obtained in bulk from certain telecommunications service providers pursuant to this Court's production orders. To meet this obligatio~ the Government seeks an order that would allow the NSA to retain the BR metadata for non-analytic purposes until relieved of its preservation obligations or until further order of this Court under the conditions described below. Based upon the claims raised and the relief sought, a more limited retention of the BR metadata is not possible as there is no way for the Government to know in advance and then segregate and retain only that BR metadata specifically relevant to the identified lawsuits. 1 Case3:13-cv-03287-JSW Document85-1 Filed03/07/14 Page9of15 III. The Conditions Under Which the BR Metadata will be Retained 8. All BR metadata retained beyond the five-year period specified in Section (3}E of the Court's Primary Order will be preserved and/or stored in a format that precludes any access or use by NSA intelligence analysts for any purpose, including to conduct RAS-approved contact chaining queries of the BR metadata for the purpose of obtaining foreign intelligence information, and subject to the following additional conditions: (i) NSA technical personnel may access BR metadata only for the purpose of ensuring continued compliance with the Government's preservation obligations to include taking reasonable steps designed to ensure appropriate continued preservation and/or storage, as well as the continued integrity of the BR metadata. (ii} Should any further accesses to the BR metadata be required for civil litigation purposes, such accesses will occur only following prior written notice specifically describing the nature of and reason for the access, and the approval of this Court. 8 Case3:13-cv-03287-JSW Document85-1 Filed03/07/14 PagelO of 15 IV. Conclusion 9. In light of the above, the Government respectfully submits that it is reasonable to extend the retention period for the BR metadata for this very limited purpose. Congress did not intend FISA or the minimization procedures adopted pursuant to section 1801(h) to abrogate the rights afforded to defendants in criminal proceedings.4 For example, in discussing section 1806, Congress stated, [a]t the outset, the committee recognizes that nothing in these subsections abrogates the rights afforded a criminal defendant under Brady v. Maryland, and the Jencks Act. These legal principles inhere in any such proceeding and are wholly consistent with the procedures detailed here. Furthermore, nothing contained in this section is intended to alter the traditional principle that the Government cannot ~se material at trial against a criminal defendant, and then withhold from him such material at trial. H.R. Rep. No. 95-1283, 95th Cong., 2d Sess, pt. 1at89 (1978); S. Rep. No. 95-604, 95th Cong. 2d Sess., pt. 1, at 55-56 (1978). Although the legislative history discussed above focuses on the use of evidence against a person in criminal proceedings, the Government respectfully submits that the preservation of evidence in civil proceedings is likewise consistent with FISA. By this motion, the Government does not seek to modify any other provision of the January 3, 2014 Primary Order, as amended by the Court's February 5, 2014 Order. By extension, this should also apply to section 1861(g) which, with respect to retention is entirely consistent with section 1801(h). 4 9 Case3:13-cv-03287-JSW Document85-1 Filed03/07/14 Pagell of 15 WHEREFORE, the United States of America, through the undersigned attorneys, moves for an amendment to the Primary Order in docket number BR 14-01 as set forth above. Respectfully submitted, ft"hnP. Carlin Acting Assistant Attorney General National Security Division V Stuart F. Delery Assistant Attorney General Gvil Division U.S. Department of Justice 10 Case3:13-cv-03287-JSW Document85-1 Filed03/07/14 Page12of15 APPROVAL I find that the foregoing Motion for Amendment to Primary Order satisfies the criteria and requirements set forth in the Foreign Intelligence Surveillance Act of 1978, as amended, and hereby approve its filing with the United States Foreign Intelligence Surveillance Court. Date Eric H. Holder, Jr. Attorney General of the United States Jan{es M. Cole Deputy Attorney General of the United States 11 Case3:13-cv-03287-JSW Document85-1 Filed03/07/14 Page13of15 UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D. C. IN RE APPLICATION OF THE FEDERAL BUREAU OF INVESTIGATION FOR AN ORDER REQUIRING Tiffi PRODUCTION OF TANGIBLE TffiNGS Docket Number: BR 14-01 SECOND AMENDMENT TO PRIMARY ORDER This matter having come before the Court upon the motion of the United States seeking an second amendment to this Court's Primary Order in the above-captioned docket number, which requires the production to the National Security Agency (NSA) of certain call detail records or "telephony metadata" (hereinafter, "BR metadata") pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA or the Act), Title 50, United States Code (U.S.C.), § 1861, as amended, and relying upon and incorporating the verified application, declaration, and orders issued in the above-captioned docket number, with full consideration having been given to the matters set fQrth thereil1., as well as the matters set forth in the Government's motion, and it appearing to the Court that the Government's motion should be granted, IT IS HEREBY ORDERED that the Government's Motion for Second Amendment to Primary Order is GRANTED, and Case3:13-cv-03287-JSW Document85-1 Filed03/07/14 Page14of15 IT IS FURTHER ORDERED that subparagraph (3)E of the Court's Primary Order in the above-captioned docket number is amended to authorize the Government to retain BR metadata off-line beyond five years (60 months) after its initial collection for the purpose of the Government meeting its preservation obligations in civil lawsuits, subject to the following conditions: (i) all BR metadata retained beyond five-years (60 months) shall be preserved and/or stored in a format that precludes any access or use by NSA intelligence analysts for any purpose, including to conduct RAS-approved contact chaining queries of the BR metadata for the purpose of obtaining foreign intelligence information; (ii) NSA technical personnel shall access BR metadata retained beyond fiveyears (60 months) only for the purpose of ensuring continued compliance with the Government's preservation obligations to include taking reasonable steps designed to ensure appropriate continued preservation and/or storage, as well as the continued integrity of the BR metadata; and (iii) should any further accesses to the BR metadata retained beyond five-years (60 months) be required for civil litigation purposes, such accesses shall occur only following prior written notice specifically describing the nature of and reason for the access, and the approval of this Court. 2 Case3:13-cv-03287-JSW Document85-1 Filed03/07/14 Pagels of 15 The Court finds that, as so amended, the minimization procedures contained in the Primary Order issued in docket number BR 14-01 are consistent with the definition of "minimization procedures" as set forth by 50 U.S.C. § 1861(g)(2). IT IS FURTHER ORDERED that all other provisions of the Court's Primary Order issued in docket number BR 14-01 shall remain in effect. Signed _ _ _ _ _ _ _ _ _ _ Eastern Time Time Date REGGIE B. WALTON Presiding Judge, United States Foreign Intelligence Surveillance Court 3 Case3:13-cv-03287-JSW Document85-2 Filed03/07/14 Page1of13 EXHIBIT 2 Case3:13-cv-03287-JSW Document85-2 Filed03/07/14 Page2of13 UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D.C. IN RE APPLICATION OF THE FEDERAL BUREAU OF INVESTIGATION FOR AN ORDER REQUIRING THE PRODUCTION OFTANGIBLE THINGS Docket Number: BR 14-01 OPINION AND ORDER This matter is before the United States Foreign Intelligence Surveillance Court ("FISC" or "Court") on the motion of the government for a second amendment to the Primary Order issued on January 3, 2014, in the above-captioned docket ("January 3 Primary Order" or "Jan. 3 Primary Order''), which was submitted on February 25, 2014 ("Motion''). In the January 3 Primary Order, the Court approved the government's application pursuant to Section 501 of the Foreign Intelligence Surveillance Act of 1978 ("FISA" or "the Act"), codified at 50 U.S.C. § 1861, as amended (also known as Section 215 of the USA PATRIOT Act),' for orders requiring the production to the National Security Agency ("NSA"), on an ongoing basis, of all "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of2001," Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001) ("USA PATRIOT Act"), amended by the "USA PATRIOT Improvement Reauthorization Act of 2005," Pub. L. No. 109-177, 120 Stat. 192 (Mar. 9, 2006); "USA PATRIOT Act Additional Reauthorizing Amendments Act of2006," Pub. L. No. 109-178, 120 Stat. 278 (Mar. 9, 2006); and Section 215 expiration extended by the "Department of Defense Appropriations Act, 2010," Pub. L. No. 111-118 (Dec. 19, 2009); "USA PATRIOT- Extension of Sunsets," Pub. L. No. 111141(Feb.27, 2010); "FISA Sunsets Extension Act of2011," Pub. L. No. 112-3 (Feb. 25, 2011); and the "PATRIOT Sunsets Extension Actof2011," Pub. L. No. 112-14, 125 Stat. 216 (May 26, 2011). 1 1 Case3:13-cv-03287-JSW Document85-2 Filed03/07/14 Page3of13 call detail records or "telephony metadata" from certain telecommunications carriers ("BR metadata"). The January 3 Primary Order approved and adopted a detailed set of minimization procedures restricting the NSA's retention and use of the BR metadata, including a requirement that telephony metadata produced in response to the Court's orders be destroyed within five years. The government seeks to modify this destruction requirement in order to pennit the government to retain telephony metadata beyond the five years subject to further restrictions on the NSA's accessing and use of the metadata. The motion asserts that such relief is needed because destruction of the metadata "could be inconsistent with the Government's preservation obligations in connection with civil litigation pending against it.'' Motion at 2. For the reasons set forth below, the Motion is DENIED without prejudice. The January 3 Primary Order provides that "[w]ith respect to the information that NSA receives~ a result of this Order, 2 NSA shall strictly adhere to the minimization procedures [set forth in the Primary Order]." Jan. 3 Primary Order at 4. Those procedures include the requirement that "BR metadata shall be destroyed no later than five years (60 months) after its initial collection." Id. at 14. The government seeks an amendment to the Court's order that would allow the NSA "to preserve and/or store the BR metadata for non-analytic pwposes until relieved of its preservation obligations,'' subject to certain access restrictions. Motion at 3, 8. This Court is cognizant of the general obligation of civil litigants to preserve records that could potentially serve as evidence. Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998) ("obligation to preserve evidence arises when the party has notice that the evidence is relevant to The Court understands the government to be requesting changes to the minimization procedures that the NSA applies to the telephony metadata acquired under this order and all previous orders issued by the FISC for the production of such metadata. 2 2 Case3:13-cv-03287-JSW Document85-2 Filed03/07/14 Page4of13 litigation - most commonly when suit has already been filed. providing the party responsible for the destruction with express notice, but also on occasion in other circumstances, as for example when a party should have known that the evidence may be relevant to future litigation"); see also Gerlich v. U.S. Dep't of Justice, 711 F.3d 161, 171 (D.C. Cir. 2013)(duty to preserve is triggered by a reasonably foreseeable Department investigation, which was "not merely foreseeable but likely"). The government contends that its duty to preserve the BR metadata "supersedes statutory or regulatory requirements or records-management policies that would otherwise result in the destruction of the information." Motion at 7. From that premise, it would follow that FISA's minimization requirements would yield to a duty to preserve, regardless of what the statute states. The Court rejects this premise. The government cites three cases in support of its position: R.F.M.A.S .• Inc. v. So, 271 F.R.D. 13 (S.D.N.Y. 2010), Richard Green CFine Paintings) v. McClendon, 262 F.R.D. 284 (S.D.N.Y. 2009), and Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004). Although the destruction of electronic records was an issue in all three cases,~ R.F.M.A.S. at 40; Green at 287-88; Zubulake at 434, none of these cases involved a conflict between a litigant's duty to preserve electronic records and a statute or regulation that required their destruction. They merely demonstrate that, when triggered, a civil litigant's duty to preserve relevant evidence includes electronic records and that duty trumps a corporate document destruction policy. The Court has not found any case law supporting the government's broad assertion that its duty to preserve supersedes statutory or regulatory requirements. Moreover, as the government acknowledges,~ Motion at 6 (citing Silvestri v. Gen. Motors, 271 F.3d 583, 590-91 (4th Cir. 2001)), the general obligation to preserve records that 3 Case3:13-cv-03287-JSW Document85-2 Filed03/07/14 Pages of 13 may be relevant to the civil matters cited by the government is a matter of federal common law. As such, it may be displaced by statute whenever Congress speaks directly to the issue. See. e.g., Am. Electric Power Co. v. Connecticut. 131 S. Ct. 2527, 2537 (2011). Here, with respect to the retention of records produced under Section 1861, Congress has sought to protect the privacy interests of United States persons by requiring the government to apply minimization procedures that restrict the retention of United States person information. See 50 U.S.C. § 1861(g)(2) (definition of "minimization procedures" set out below). As specifically provided for by Congress, the procedures in question are embodied in FISC orders that the government is obliged to follow. See Id. § 1861 (c)(I). In sharp contrast with the document retention policies of corporations, the restrictions on retention of United States person information embodied in FISA minimization procedures are the means by which Congress has chosen to protect the privacy interests of United States persons when they are impacted by certain forms of intelligence gathering. The government's contention that FISA's minimization requirements are superseded by the common-law duty to preserve evidence is simply unpersuasive. The procedures proposed by the government accordingly must stand or fall based on whether they comport with FISA. Specifically, Section 1861(g)(2) defines "minimization procedures" as follows: (A) specific procedures that are reasonably designed in light of the purpose and technique of an order for the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information; (B) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in section 180 I (e)( 1) of this title, shall 4 Case3:13-cv-03287-JSW Document85-2 Filed03/07/14 Page6of13 not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence infonnation or assess its importance; and (C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of infonnation that is evidence of a crime which has been, or is about to be committed and that is to be retained or disseminated for law enforcement purposes. 50 u.s.c. § 1861(g}(2). The government's proposed amendment of the minimization procedures would allow the NSA to retain call detail records that were acquired more than five years ago and that would otherwise be destroyed. Given the scope of the production under the Court's orders, the number of records is likely voluminous and they undoubtablycontain United States person infonnation, including infonnation concerning United States persons who are not the subject of an FBI investigation to protect against international terrorism or clandestine intelligence activities. See In Re Production of Tangible Things From [redacted], No. BR 08-13 at 11-12 (FISA Ct. Mar. 21 2009). 3 Further, under the amended procedures proposed by the government, such records would be retained indefinitely while the six civil matters currently pending in various courts are litigated. 4 The government's proposed amendment would, therefore, significantly increase the 3 Available at: http://www.dni.gov/files/documents/section/pub_March%202%202009%200rder'/o20ftom%20F ISC.pdf. The six pending matters identified by the government are: American Civil Liberties Union v. Clap_per, No. 13-cv-3994 (WHP} (S.D.N.Y.), agpeal docketed. No. 14-42 (2d Cir. Jan. 2, 2014}; Klavman v. Obam!!, Nos. 13-cv-851, 13-cv-881, 14-cv-092 (RJL) (D.D.C.), appeals docketed, No. 14-5004 (D.C. Cir. Jan. 3, 2014), No. 14-5005 (D.C. Cir. Jan. 3, 2014), No. 145016 (D.C. Cir. Jan. IO, 2014), No. 14-5017 (D.C. Cir. Jan. 10, 2014); Smith v. Obama, No. 13cv-00257 (D. Idaho); First Unitarian Church v. National Security Agency, No. 3:13-cv-2387 (JSW} (N.D.Cal.); Paul v. Obama, No. 14-cv-0262 (RJL) (D.D.C.); and Perez v. Clapper. No. 3:14-cv-0050-KC (W.D. Tx.). Motion at 3-5. 4 5 Case3:13-cv-03287-JSW Document85-2 Filed03/07/14 Page? of 13 amount of nonpublicly available infonnation concerning United States persons being retained by the government under the minimization procedures. Extending the period of retention for these voluminous records increases the risk that infonnation about United States persons may be improperly used or disseminated. The government seeks to mitigate this risk by imposing certain access restrictions on the data being retained. Specifically, the goverrunent proposes to: (I) store the infonnation in a format that precludes any access or use by NSA intelligence analysts for any purpose; (2) permit NSA technical personnel to access the BR metadata, but only for the purpose of ensuring continued preservation and/or storage, as well as the integrity of, the BR metadata; and (3) require this Court's approval before allowing "any further accesses" to the BR metadata for civil litigation purposes. Motion at 8. As noted above, in order to approve the proposed modifications to the minimization procedures, the Court must find that they "are reasonably designed in light of the purpose and technique of an order for the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information." 50 U.S.C. § 1861(g)(2)(A). For the following reasons, the Court concludes that it cannot make this finding based on the government's motion. The sole purpose of the production of call detail records under the Court's January 3, 2014 Primary Order is to obtain foreign intelligence infonnation in support of individual authorized investigations to protect against international terrorism and concerning various international organizations. In Re Application of the Fed. Bureau of Investigation for an Order 6 Case3:13-cv-03287-JSW Document85-2 Filed03/07/14 Pages of 13 Reguiring the Production of Tangible Things From [redacted), No. BR 13-109 (FISA Ct. Aug. 29, 2013) (Amended Memorandum Opinion at 4). 5 In order to accomplish this objective, the government acquires call detail records in bulk in order to create a historical repository of metadata that enables the NSA to find or identify known and unknown operatives, some of whom may be in the United States or in communication with United States persons. Id. at 21. Thus, the "technique" employed by the government by necessity captures a large volume of infonnation, i.e., metadata, of or concerning United States persons. Examining the government's proposed amendment in light of the purpose and technique of the government's program, it is clear the proposed retention of the BR metadata beyond five years is unrelated to the government's need to obtain, produce, and disseminate foreign intelligence infonnation. This conclusion in compelled because the BR metadata loses its foreign intelligence value after five years. See The Administration's Use ofFISA Authorities: Hearing before the H. Comm. on the Judiciary, 113th Cong. 16 (Jul. 17, 2013) http://www.fas.orglirp/congress/2013 _hr/fisa.pdf (statement of John C. Inglis, NSA) ("Typically in our holdings, under BR FISA, the infonnation is mandatorily destroyed at 5 years. For most of the rest of our collection, 5 years is the reference frame. We found that over time at about the 5year point, it loses its relevance simply in tenns of its temporal nature."). Further, the amendment is sought ..for the limited purpose of allowing the Government to comply with its [purported] preservation obligations," and any possibility of obtaining, producing, or disseminating foreign intelligence information from the BR metadata being retained is foreclosed 5Available at http://www.uscourts.gov/uscourts/courts/fisclbrl 3-09-primary-order.pdf. 7 Case3:13-cv-03287-JSW Document85-2 Filed03/07/14 Page9of13 by the requirement that the data be stored in a format "that precludes any access or use by NSA intelligence analysts for any purpose." Motion at 1, 8. Therefore, unlike most cases where this Court examines the adequacy of minimization procedures, the amendment proposed by the government provides no occasion to balance United States person privacy interests against foreign intelligence needs.6 Rather, the countervailing interest asserted by the government is the purported litigation interests of the civil plaintiffs in having these records preserved. 7 Even if it is assumed that the Court, in assessing whether the proposed minimization procedures satisfy Section 1861 (g)(2), should afford some weight to the civil litigants' purported interests in preserving the BR metadata, those interests, at least on the current record, are unsubstantiated. To date, no District Court or Circuit Court of Appeals has entered a preservation order applicable to the BR metadata in question in any of the civil matters cited in the motion. Motion at 6 n.3. Further, there is no indication that any of the plaintiffs have sought discovery of this Nor does the government assert any law enforcement interest in retaining the infonnation as evidence ofa crime. See 50 U.S.C. § 186l(g)(2)(C). 6 The government suggests that FISA 's legislative history supports the retention requested. Motion at 9 (citing H.R. Rep. No. 95-1283, 95th Cong., 2d Sess, pt.I at 89 (1978); S. Rep. No. 95-604, 95th Cong. 2d Sess., pt I at 55-56 (1978)) (the preservation of evidence in civil proceedings is consistent with FISA because "Congress did not intend FISA or the minimization procedures adopted pursuant to section 1801 (h) [respecting electronic surveillance] to abrogate the rights afforded to defendants in criminal proceedings.''). But the legislative history cited does not concern minimization at all. Rather, it pertains to the provisions of FISA at 50 U.S.C. § 1806 that govern district court review of the lawfulness of FISA surveillances in the context of adversarial proceedings in which the government seeks to introduce the fruits of electronic surveillance. FISA has no comparable provisions for use of infonnation acquired under Section 1861. And obviously, the government's motion has nothing to do with the rights of criminal defendants. The cited legislative history sheds no light on what is before the Court, i.e., the nexus of minimization requirements and the retention of infonnation for purposes of civil litigation. 7 8 Case3:13-cv-03287-JSW Document85-2 Filed03/07/14 PagelO of 13 information or made any effort to have it preserved, despite it being a matter of public record that BR metadata is routinely destroyed after five years. See. e.g., In Re Application of the Fed. Bureau of Investigation for an Order Requiring the Production of Tangible Things From [redactedl, No. BR 06-05 Primary Order at 8 (FISA Ct. Aug. 18, 2006) declassified on Sept 10, 2013 8 ("[t]he metadata collected under this Order may be kept online ... for five years, at which time it shall be destroyed."); In Re Application of the Fed. Bureau of Investigation for an Order Requiring the Production of Tangible Things From [redacted]. No. BR 13-109 Primary Order at 2, 14 (FISA Ct. July 19, 2013) declassified on Sept. 17, 2013 ("[T]he minimization procedures [including the destruction requirement in subsection 3(E)J ... are similar to the minimization procedures approved and adopted as binding by the order of this Court in Docket Number BR 13-80 and its predecessors''). In fact, with one possible exception, the substantive relief sought by the plaintiffs would require the destruction of BR metadata, not its retention.9 Motion at 3-5. For its part, the government makes no attempt to explain why it believes the records that are subject to destruction are relevant to the civil cases. The government merely notes that "'[r]elevant' in this context means relevant for purposes of discovery, ... including information that relates to the claims or defenses of any party, as well as information that is reasonably calculated to lead to the discovery of admissible evidence." Motion at 6. Similarly, the government asserts that "[b]ased on the issues raised by Plaintiffs,'' the information must be Available at: http://www.dni.gov/files/documents/section/pub_Ma}'°At2024%202006%200rder%20from%20FI SC.pdf. 8 The one possible exception identified in the motion is that the pro se plaintiffs in Perez v. CJApper are challenging the legality of the NSA bulk telephony metadata collection program in a "Bivens action" seeking monetary damages of $1. Motion at 5. 9 9 Case3:13-cv-03287-JSW Document85-2 Filed03/07/14 Pagell of 13 retained, but it fails to identify what those issues are and how the records might shed light on them. 10 Id. at 7. Finally, the motion asserts, without any explanation, that "[b]ased on the claims raised and the relief sought, a more limited retention of the BR metadata is not possible as there is no way for the Government to know in advance and then segregate and retain only that BR metadata specifically relevant to the identified lawsuits." Id. Of course, questions of relevance are ultimately matters for the courts entertaining the civil litigation to resolve. But the government now requests this Court to afford substantial weight to the purported interests of the civil litigants in retaining the BR metadata relative to the primary interests of the United States persons whose infonnation the government seeks to retain. The government's motion provides scant basis for doing so. The government's motion seems to be motivated to a significant degree by its fear that the judges presiding over the six pending civil matters may sanction the government at some point in the future for destroying BR metadata that is more than five years old. Id. at 6. Yet the cases cited by the government show that, in order for the government to be sanctioned for spoilation of evidence, the plaintiffs must establish: ( 1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed "with a culpable state of mind"; and (3) that the destroyed evidence was "relevant" to the party's claim or defense such that a reasonable trier of fact could find that it would support '°The motion identifies one possible issue: "[a]ccording to the Complaint, plaintiffs [in Paul v. Obama] apparently anticipate attempting to ascertain the exact size and identities of the putative class and its members through the Government's acquired BR Metadata •.. .'' Motion at 5. But the government then suggests that the metadata will not be helpful in this regard since it "does not contain the substantive contents of any communication,... or the name, address or financial infonnation of a subscriber or customer." Id. 10 Case3:13-cv-03287-JSW Document85-2 Filed03/07/14 Page12of13 that claim or defense. Green, 262 F.R.D. at 289; Zubulake, 229 F.R.D. at 430. On the current record, such an outcome appears far-fetched, as the plaintiffs appear not to have made any attempt to have the BR metadata retained, despite being on notice that the government has a statutorily-mandated obligation to destroy the information that is embodied in prior orders of this Court. Further, it would appear that the government could significantly reduce its exposure by simply notifying the plaintiffs and the district courts of the pending destruction. United States v. Ochoa, 88 Fed. App'x 40, 42, 2004 WL 304183 (C.A.5 (Tex.)) (disposal of evidence was done pursuant to a routine policy, and plaintiff was informed of steps she would need to take to retrieve the evidence prior to its disposal but declined to do so). To sum up, the amended procedures would further infringe on the privacy interests of United States persons whose telephone records were acquired in vast numbers and retained by the government for five years to aid in national security investigations. The great majority of these individuals have never been the subject of investigation by the Federal Bureau of Investigation to protect against international terrorism or clandestine intelligence activities. The government seeks to retain these records, not for national security reasons, but because some of them may be relevant in civil litigation in which the destruction of those very same records is being requested. However, the civil plaintiffs potentially interested in preserving the BR metadata have expressed no desire to acquire the records, even though they have notice that this Court's orders require destruction after five years and that production of the records conunenced in2006. On this record, the Court cannot find that the amended minimization procedures proposed by the government "are reasonably designed in light of the purpose and technique of an order for 11 Case3:13-cv-03287-JSW Document85-2 Filed03/07/14 Page13of13 the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence infonnation." 50 U.S.C. § 186l(g)(2)(A). While the proposed procedures would include enhanced retention on access to, and use of, BR metadata after five years, ~Motion at 8, the demonstrated need for preseivation does not warrant retention after five years, even with such limitations. 11 This Court is reluctant to taJce any action that could impede the proper adjudication of the identified civil suits, and understands why the government would proceed with caution in coMection with records potentially relevant to those matters. However, as explained above, the Court cannot make the finding required to grant the motion based upon the record before it. Accordingly, the government's motion is DENIED, without prejudice to the govenunent bringing another motion providing additional facts or legal analysis, or seeking a modified amendment to the existing minimization procedures. SO ORDERED, this'l-~ of March, 2014, in Docket Number BR 14-01. ~a~ffflo Presiding Judge, United States Foreign Intelligence SU1Veillance Court By minimizing retention, Congress intended that "infonnation acquired, which is not necessary for obtaining[,] producing or disseminating foreign intelligence infonnation, be destroyed where feasible." In Re Sealed Case, 310 F.3d 717, 731 (FISA Ct Rev. 2002) (citing H.R. Rep. No. 95-1283, pt. 1, at 56 (1978)). 11 12

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