BR 14-01 Notice of Entry of Temporary Restraining Order and Motion for Temporary Relief (FISC 2014)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on March 7, 2014.
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LJ $,,-, F"'l['F'I"• ,!./' ' .,. I··,·. -- .' :,;,, .. UNITED STATES SUf('/i-i.' 1 FOREIGN INTELLIGENCE SURVEILLANCE COURJ011 WASHINGTON, D. C. , _ I I· r" .~ 1 • ·,;;t ,.:·.'·-·-·.. ; ·- :_;·o~r:r ~ lii/( / / Pil ~ c- ~ /I· ·J ! ''' ·-~-f;i-.;·;,; I I r:--:1.• .,._,_ 11 '1 IN RE APPLICATION OF THE FEDERAL BUREAU OF INVESTIGATION FOR AN ORDER REQUIRING THE PRODUCTION OF TANGIBLE THINGS : FLY'"' flhLL u,, G..- COUfff r• . . . . Docket Number: BR 14-01 NOTICE OF ENTRY OF TEMPORARY RESTRAINING ORDER AGAINST THE UNITED STATES AND MOTION FOR TEMPORARY RELIEF FROM SUBPARAGRAPH (3)E OF PRIMARY ORDER The United States of America, hereby notifies this Court of the entry of a temporary restraining order (hereinafter, "TRO") yesterday, March 10, 2014, in two pending proceedings in the United States District Court for the Northern District of California: Jewel, et al., v. National Security Agency, et al., No. C 08-04373-JSW (N.D. Cal.), and First Unitarian Church of Los Angeles, et al., v. National Security AgenctJ, et al., No. C 13-03287-JSW (N.D. Cal.). The TRO prohibits, enjoins, and restrains various defendant government agencies, officials, and all those in active concert or participation with them from destroying any potential evidence relevant to the claims at issue in those civil actions, "including but not limited to prohibiting the destruction of any telephone metadata or 'call detail' records, pending further order" of that District Court. In light of the entry of this TRO, the United States respectfully moves this Court for temporary relief from the BR metadata destruction requirement set forth in subparagraph (3)E of the Primary Order entered in Docket Number BR 14-01, to allow the NSA to preserve and retain BR metadata otherwise subject to destruction for non-analytic purposes under strict conditions set forth below pending resolution of the preservation issues raised by plaintiffs in Jewel and First Unitarian Church with the United States District Court for the Northern District of California. 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. East-em Time. 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. 2. The Primary Order in the above-captioned docket number, as amended, requires NSA to strictly adhere to the enumerated minimization procedures, including subparagraph (3)E, which requires that "BR metadata be destroyed no later than five years (60 months) after its initial collection." On February 5, 2014, this Court also issued an order granting the Government's motion for amendment to the Primary Order to modify certain applicable minimization procedures. The minimization procedures were modified to require the Government, by motion, to first obtain the Court's approval to use specific selection terms to query the BR metadata for purposes 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 an approved seed. 1. 2 3. On February 25, 2014, the Government moved this Court for a second amendment to the Primary Order in docket number BR 14-01, as amended, to allow the NSA to preserve and/or store the BR metadata for non-analytic purposes. As detailed in the Government's motion, several plaintiffs filed civil lawsuits2 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 production orders issued by this Court under Section 215. While the Court's Primary Order requires destruction of the BR metadata no later than five years (60 months) after its initial collection, the Government argued that such destruction could be inconsistent with its preservation obligations in connection with the pending civil litigation described 2 · Among the cases referenced in the Government's motion was First Unitarian Church of Los Angeles, et al., v. National Security Agency, et al., No. C 13-03287 JSW (N.D. Cal.), one of the civil actions filed 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 Government's motion did not describe the pending civil action in Jewel, et al., v. National Security Agency, et al., No. C 08-04373 JSW (N.D. Cal.) (hereinafter, "Jewel")and a companion case, Shubert v. Obama, No. C-07-0693-JSW (N.D. Cal.) (hereinafter, "Shubert"). Unlike the cases listed in the Government's Motion for Second Amendment to Primary Order, the claims raised in the Jewel and Shubert complaints challenge alleged intelligence activities conducted without court approval. In those cases, as the Government explained to plaintiffs' counsel, "the question of preservation of evidence ha[d] already been litigated in those cases" (on motions by the plaintiffs there) "and the court issued separate preservation orders that govern" in those actions. Those orders followed the Government's submission of a classified ex parte declaration that described in detail the specific preservation steps the government was taking. The orders direct the parties in Jewel and Shubert, inter alia, to halt ''business practices" and "processes" that involve the destruction of "materials reasonably anticipated to be subject to discovery in th[ose] action[s]" "to the extent practicable for the pendency of [the] order[s]." Mot., Kurt Deel. Exh. A, at 3; id., Exh. C at3. 3 in the motion. Accordingly, to avoid the destruction of the BR metadata, the Government sought an amendment to the Court's Primary Order to allow the NSA under strict conditions 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. The Government's Motion for Second Amendment to Primary Order in docket number BR 14-01 is incorporated herein by reference. 4. By Opinion and Order dated March 7, 2014 this Court denied, without prejudice, the Government's motion. While the Court indicated that it was "reluctant to take any action that could impede the proper adjudication" of the lawsuits outlined in the Government's motion, and that it understood that the United States was proceeding with caution by seeking continued retention for preservation purposes, the Court ultimately concluded that it could not make the requisite findings to grant the motion based on the record before it. Op. at 12. The Court explained that "the proposed retention of the BR metadata beyond five years is unrelated to the government's need to obtain, produce, and disseminate foreign intelliger:ice information" Id. at 7. It also noted that to date, no District Court or Circuit Court of Appeals had entered a preservation order in the cited litigation, none of the plaintiffs had sought discovery of the BR metadata, and none had made any effort to ensure its preservation. Op. at 8-9. As further described below, some of these circumstances have changed. 4 5. After the receipt of the Court's March 7, 2014 Opinion and Order, the Department of Justice assessed that prior to beginning destruction of the BR metadata, the Government should notify the plaintiffs and the District Courts in the relevant civil cases of the pending destruction. See Op at 11. Accordingly, on the same day, the Department began notifying the plaintiffs and district courts in the pending civil lawsuits listed in the Government's February 25, 2014 motion of this Court's Opinion and Order, and that consistent with the Order, as of the morning of Tuesday, March 11th, absent a contrary court order, the government would commence complying with the applicable destruction requirements. The Department also advised the NSA that unless a court instructed otherwise, destruction begin at the start of business on Tuesday, March 11, 2014.3 6. On March 10, 2014, plaintiffs in Jewel and First Unitarian Church moved in the United States District Court for the Northern District of California for TROs to prohibit destruction of the BR metadata, arguing that such data is evidence relevant to these lawsuits. True, correct and complete copies of the motions are attached hereto and incorporated by reference herein as Exhibits A and B. The District Court ordered the Government to file a response by 5:30 p.m. Eastern Time on March 10, and the Government filed a short response by that deadline. Following the entry of the TRO on March 10, 2014, the Department further advised NSA not to commence destruction as originally anticipated pending further court proceedings. 3 · 5 7. On March 10, 2014, the District Court entered an Order granting the temporary relief requested by plaintiffs. The District Court ordered that the Government defendants, "their officers, agents, servants[,] employees, and attorneys, and all those in active concert or participation with them are prohibited, enjoined, and restrained from destroying any potential evidence relevant to the claims at issue in this action, including but not limited to prohibiting the destruction of any telephone metadata or 'call detail' records, pending further order of the Court." The Court's TRO also set the following briefing/hearing schedule: Plaintiffs' opening brief due March 13, 2013; Government defendants' opposition brief due March 17, 2014; Plaintiffs' reply brief due March 18, 2014; and Hearing March 19, 2014. A true, correct and complete copy of the order of the United States District Court for the Northern District of California is attached hereto as Exhibit C. 8. The United States is now subject to both (a) the order of this Court to destroy BR metadata no later than five years after its initial collection, and (b) the TRO entered by the United States District Court for the Northern District of California requiring that the BR metadata be retained and preserved pending resolution of the preservation issues raised by plaintiffs in Jewel and First Unitarian Church. In light of the developments in the district court litigation, and in order to complete the temporary restraining order 6 proceedings in the Northern District of California that would enable the development of additional facts or legal analysis relevant to topics discussed in this Court's March 7 Order, the Government respectfully requests that this Court grant temporary relief from the BR metadata destruction requirement set forth in subparagraph (3)E of the Primary Order entered in Docket Number BR 14-01 to allow the NSA to preserve and retain BR metadata otherwise subject to destruction solely for non-analytic purposes pending resolution of the preservation issues raised by plaintiffs in Jewel and First Unitarian Church, under the conditions described below. 9. Pending resolution of the preservation issues raised by plaintiffs in Jewel and First Unitarian Church, the Government proposes that all BR metadata retained beyond the five-year period specified in subparagraph (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. 7 (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. 10. The Government will promptly notify this Court of any additional material developments in the district court litigation, including upon resolution of the TRO proceedings by the Northern District of California. 8 WHEREFORE, the United States of America, through the undersigned attorneys, respectfully moves for temporary relief from the BR metadata destruction requirement set forth in subparagraph (3)E of the Primary Order entered in Docket Number BR 14-01 to allow the NSA to preserve and retain BR metadata otherwise subject to destruction for non-analytic purposes as described above pending resolution of the preservation issues raised by plaintiffs in Jewel and First Unitarian Church with the United States District Court for the Northern District of California. Respectfully submitted, Acting Assistant Attorney General National Security Division Stuart F. Delery~ Assistant Attorney General Civil Division U.S. Department of Justice 9 APPROVAL I hereby approve the filing of the foregoing Notice of Entry of Temporary Restraining Order Against the United States and Motion for Temporary Relief From Subparagraph (3)E of Primary Order with the United States Foreign Intelligence Surveillance Court. March 11, 2014 Date Date James M. Cole Deputy Attorney General of the United States 10 UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D. C. IN RE APPLICATION OF THE FEDERAL BUREAU OF INVESTIGATION FOR AN ORDER REQUIRING THE PRODUCTION OF TANGIBLE THINGS Docket Number: BR 14-01 ORDER This matter having come before the Court upon the motion of the United States of America seeking temporary relief from the destruction requirement set forth in subparagraph (3)E of the Primary Order entered in Docket Number BR 14-01, which order 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 all motions and orders issued in the above-captioned docket number, with full consideration having been given to the matters set forth therein, as well as the matters set forth in the Government's motion, and it appearing to the Court that the Government's motion for temporary relief should be granted, IT IS HEREBY ORDERED that the Government's Motion for Temporary Relief from Subparagraph (3)E of Primary Order is GRANTED, and IT IS FURTHER ORDERED the Government is authorized to preserve and retain BR metadata off-line beyond five years (60 months) after its initial collection pending resolution of the preservation issues raised by plaintiffs in Jewel, et al., v. National Securihj Agency, et al., No. C 08-04373-JSW (N .D. Cal.), and First Unitarian Church of Los Angeles, et al., v. National Security AgenctJ, et al., No. C 13-03287-JSW (N.D. Cal.), 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 five years (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 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. S i g n e d - - - - - - - - - - - - Eastern Time Time Date REGGIE B. WALTON Presiding Judge, United States Foreign Intelligence Surveillance Court 3 Case3:08-cv-04373-JSW Document186 Filed03/10/14 Pagel of 6 2 3 4 5 6 7 8 9 10 11 CINDY COHN (SBN 145997) cindy@eff.org LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303) JAMES S. TYRE (SBN 083117) MARK RUMOLD (SBN 279060) ANDREW CROCKER (SBN 291596) ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 Fax: (415) 436-9993 RACHAEL E. MENY (SBN 178514) rmeny@kvn.com PAULA L. BLIZZARD (SBN 207920) MICHAEL S. KWUN (SBN 198945) AUDREY WAL TON-HADLOCK (SBN 250574) BENJAMIN W. BERKOWITZ (SBN 244441) JUSTINA K. SESSIONS (SBN 270914) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, CA 94111 Telephone: (415) 391-5400 Fax: (415) 397-7188 RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 433-3200 Fax: (4I5) 433-6382 THOMAS E. MOORE III (SBN 115107) tmoore@rroyselaw.com ROYSE LAW FIRM, PC 1717 Embarcadero Road Palo Alto, CA 94303 Telephone: (650) 813-9700 Fax: (650) 813-9777 ARAM ANT ARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626 12 13 14 15 Counsel for Plaintiffs 16 UNITED STATES DISTRICT COURT 17 FOR THE NORTHERN DISTRICT OF CALIFORNIA 18 SAN FRANCISCO DIVISION 19 20 21 22 CAROLYN JEWEL, TASH HEPTING, YOUNG BOON HICKS, as executrix of the estate of GREGORY HICKS, ERIK KNUTZEN and JOICE WALTON, on behalf of themselves and all others similarly situated, 23 24 25 26 27 28 Plaintiffs, v. ) ) ) ) ) ) ) ) ) CASE NO. 08-CV-4373-JSW ) Date: March l 0, 2014 Time: I :30 p.m. Courtroom 11, 19th Floor The Honorable Jeffrey S. White ) NATIONAL SECURITY AGENCY, et al., Defendants. ) ) ) PLAINTIFFS' NOTICE OF EX PARTE MOTION AND EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE IMMEDIATE RELIEF REQUESTED CRITICAL DATE: TUESDAY MORNING, MARCH 11, 2014 Case No. 08-CV-4373-JSW PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE Case3:08-cv-04373-JSW Document186 Filed03/10/14 Page2 of 6 1 NOTICE OF EX PARTE MOTION 2 PLEASE TAKE NOTICE that on Monday, March IO, 2014 at 1:30 p.m., or as soon 3 thereafter as they may be heard by the Court at Courtroom 11, 19th Floor, 450 Golden Gate Ave., 4 San Francisco, CA, plaintiffs will move ex parte for a temporary restraining order and, after a 5 hearing has been held, an order prohibiting, enjoining, and restraining defendants National Security 6 Agency, United States of America, Department of Justice, Barack H. Obama, Keith B. Alexander, 7 Eric H. Holder, Jr., and James R. Clapper, Jr. (in their official capacities) (collectively, the 8 "government defendants'') and all those acting in concert with them from destroying any evidence 9 relevant to the claims at issue in this action, including but not limited to prohibiting the destruction 10 of any telephone metadata or "call detail" records. 11 Notice of this motion has been given to opposing counsel. Attached to the Cohn 12 Declaration filed herewith as Exhibit E are email exchanges between parties' counsel between on 13 February 26, 2014, and this morning, March 10, 2014, in which plaintiffs have consistently stated 14 their intentions to seek relief from this court unless the government clarifies its intention to 15 preserve all relevant evidence in the two cases consistent with its obligations in both cases and the 16 preservation order in Jewel v. NSA that reaches the same telephonic records at issue in First 17 Unitarian Church v. NSA. 18 This matter became an emergency matter because on Friday, March 7, based on a mistaken 19 belief that no preservation order existed for the material at issue, and without consultation with 20 plaintiff or this Court, the FISC denied the government's motion to be allowed to preserve the 21 telephone records it had collected. Late Friday, the government served notice in the First Unitarian 22 case that it intended to begin destroying the records. REASONS WHY RELIEF SHOULD BE GRANTED 23 24 The government defendants have given notice that they plan to begin destroying telephone 25 metadata ("call detail record") evidence relevant to this lawsuit tomorrow, Tuesday Morning, 26 March 11, 2014. 27 respectfully request that the Court today issue an immediate temporary restraining order to prevent 28 the destruction of evidence before the Court has an opportunity to determine whether destruction of ECF No. 85 in First Unitarian v. NSA, No. 13-cv-3287-JSW. Plaintiffs Case No. 08-CV-4373-JSW 1 PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE Case3:08-cv-04373-JSW DocumenU86 Filed03/10/14 Page3 of 6 this evidence is contrary to the Court's November 16, 2009 evidence preservation order (ECF 2 No. 51) or otherwise contrary to the government defendants' discovery obligations. 3 The purpose of a TRO is to preserve the status quo and prevent irreparable harm "just so 4 long as is necessary to hold a hearing, and no longer." Granny Goose Foods, Inc. v. Brotherhood 5 o/Teamsters, 415 U.S. 423, 439 (1974). This is exactly what is needed here. 6 There has been litigation challenging the lawfulness of the government's telephone 7 metadata collection activity, Internet metadata collection activity, and upstream collection activity 8 pending in the Northern District of California continuously since 2006. The government has been 9 under evidence preservation orders in those lawsuits continuously since 2007. IO The first-filed case was Hepting v. AT&T, No. 06-cv-0672 (N.D. Cal). It became the lead 11 case in the MDL proceeding in this district, In Re: National Security Agency Telecommunications 12 Records Litigation, MDL No. 06-cv-1791-VRW (N .D. Cal). On November 6, 2007, this Court 13 entered an evidence preservation order in the MDL proceeding. ECF No. 393 in MDL No. 06-cv- l4 1791-VRW. One of the MDL cases, Virginia Shubert, el al., v. Barack Obama, et al. No. 07-cv- 15 0603-JSW (N.D. Cal.), remains in litigation today before this Court, and the MDL preservation 16 order remains in effect today as to that case. 17 In 2008, movants filed this action-Jewel v. NSA-and this Court related it to the Hepting 18 action. This Court entered an evidence preservation order in Jewel. ECF No. 51. The Jewel 19 evidence preservation order remains in effect as of today. 20 The government has never sought to seek clarification of its preservation obligations 21 regarding telephone metadata records from this Court or raised the issue with plaintiffs. Instead, 22 the government defendants chose to raise the issue of preservation of telephone metadata records in 23 an ex parte proceeding before the Foreign Intelligence Surveillance Court, without any notice to 24 plaintiffs and without mentioning its obligations with regard to the same telephone records in Jewel 25 v. NSA and Shubert v. Obama. Plaintiffs learned of the government's motion by reading the news 26 media, and asked counsel for the government defendants to explain why they had not told the FISC 27 about the Jewel evidence preservation order. See Cohn Deel, Exh. E. 28 Indeed, the government is aware and has acknowledged that destruction of the information Case No. 08-CV-4373-JSW 2 PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE Case3:08-cv-04373-JSW DocumenU86 Filed03/10/14 Page4 of 6 in question may conflict with the preservation orders issued in this and related cases: "While the 2 Court's Primary Order requires destruction of the BR metadata no longer than five years (60 3 months) after its initial collection, such destruction could be inconsistent with the Government's 4 preservation obligations in connection with civil litigation pending against it. Accordingly, to 5 avoid the destruction of the BR metadata, the Government seeks an amendment to the Court's 6 Primary Order that would allow the NSA to preserve and/or store the BR metadata for non-analytic 7 purposes until relieved of its preservation obligations, or until further order of this Court under the 8 conditions described below." Government's Motion for Second Amendment to Primary Order, 9 FISC No. BR 14-01 (February 25, 2014). Although the government's motion in the FISC did not l0 discuss the preservation order in Jewel, this preservation order includes the same records at issue in 11 First Unitarian. 12 LEGAL STANDARD FOR TEMPORARY RESTRAINING ORDER 13 "A plaintiff seeking a [TRO] must establish that he is likely to succeed on the merits, that 14 he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 15 equities tips in his favor, and that an injunction is in the public interest." Network Automation, Inc. 16 v. Advanced Sys. Concepts, 638 F.3d 1137, 1144 (9th Cir. 2011) (quoting Winter v. Natural Res. 17 Defense Council, Inc., 555 U.S. 7 (2008)). 18 A. 19 The Jewel preservation order required the Government to "preserve evidence that may be 20 relevant to this action." The Jewel complaint alleged unlawful and unconstitutional acquisition of 21 call-detail records, including the "call-detail records collected under the National Security Agency 22 (NSA) bulk telephony metadata program" that the Government proposed to destroy. Likelihood of Success 23 Plaintiffs sought, among other relief, an injunction "requiring Defendants to provide to 24 Plaintiffs and the class an inventory of their communications, records, or other information that 25 was seized in violation of the Fourth Amendment." Complaint, Prayer for Relief. This would be 26 impossible if the records are destroyed. While the Plaintiff ultimately want the call-detail records 27 destroyed at the conclusion of the case, there is no doubt the call-records "may be relevant" in the 28 interim. Case No. 08-CV-4373-JSW 3 PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE Case3:08-cv-04373-JSW Document186 Filed03/10/14 Pages of 6 The Jewel order also required the Government to cease "destruction, recycling, relocation, 2 or mutation of such materials." Thus, the proposed destruction would be in direct violation of the 3 Jewel preservation order. 4 B. 5 If the government proceeds with its planned destruction of evidence, the evidence will be 6 Irreparable Harm gone. This is by definition irreparable. 7 c. 8 While the Government contends it is required by the FISC to destroy the records 9 immediately, the FISC order belies this assertion. The FISC denied the government's motion l0 without prejudice to bringing another motion with additional facts and the FISC plainly was not 11 informed of the preservation order in Jewel or even of its existence. 12 contemplated that the evidence destruction could wait while the government prepared and filed 13 another motion, and continue until the Court considered and ruled on the motion. Balance of Equities The FISC clearly 14 D. 15 These records are both an affront to the rights of millions of Americans and proof of their 16 violation. Plaintiffs have no objection to severe restrictions on the Government's right to access 17 and use the infonnation, which will address the public interest in the documents being destroyed. 18 However, it remains in the public interest to wait a short period of time before taking action, so that 19 the fate of the documents can be addressed in an orderly fashion. Public Interest 20 The necessity for this ex parte application could have been easily avoided had the 21 government defendants followed the discovery and evidence preservation practices customary in 22 this District. They could have, but did not, raised the issue of preserving telephone metadata 23 records in the CMC statement meet-and-confer process in September 2013 (three months after the 24 government defendants publicly acknowledged the phone records program), or at the Case 25 Management Conference itself on September 27, 2013. They could have, but did not, raised this 26 issue in the CMC statement meet-and-confer process in the related First Unitarian action during 27 October 2013, or at the First Unitarian Case Management Conference itself on November 8, 2013. 28 Thereafter, at any point between November 8 and now the government defendants could Case No. 08-CV-4373-JSW 4 PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE Case3:08-cv-04373-JSW DocumenU86 Filed03/10/14 Page6 of 6 have raised the issue with plaintiffs by the meet-and-confer process, but they did not. They could 2 have sought a further Case Management Conference before the Court or proceeded to raise the 3 issue by noticed motion. Any of these manifold alternatives would have permitted the Court and 4 the parties to address the issue in an orderly manner. By failing to pursue any of these alternatives, 5 the government has made a temporary restraining order essential. Plaintiffs believe that no security 6 is necessary under the circumstances. Plaintiffs respectfully request that the Court issue the order 7 pending further proceedings on this issue. 8 9 IO 11 12 13 14 15 16 17 18 19 20 DATE: March 10, 2014 Respectfully submitted, s/ Cindy Cohn CINDY COHN LEE TIEN KURT OPSAHL JAMES S. TYRE MARKRUMOLD ANDREW CROCKER ELECTRONIC FRONTIER FOUNDATION RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE THOMAS E. MOORE III ROYSE LAW FIRM, PC RACHAEL E. MENY PAULA L. BLIZZARD MICHAEL S. KWUN AUDREY WALTON-HADLOCK BENJAMIN W. BERKOWITZ KEKER & VAN NEST LLP 21 ARAM ANTARAMIAN LAW OFFICE OF ARAM ANTARAMIAN 22 Counsel for Plaintiffs 23 24 25 26 27 28 Case No. 08-CV-4373-JSW 5 PLAINTIFFS' EX PARTE MOTION FOR A TEMPOR RY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE . Case3:08-cv-04373-JSW Document186-1 Filed03/10/14 Pagel of 2 1 2 3 4 5 6 7 8 9 10 11 12 CINDY COHN (SBN 145997) cindy@eff.org LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303) JAMES S. TYRE (SBN 083117) MARK RUMOLD (SBN 279060) ANDREW CROCKER (SBN 291596) ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 Fax: (415) 436-9993 RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 433-3200 Fax: (415) 433-6382 13 14 15 16 Attorneys for Plaintiffs RACHAEL E. MENY (SBN 178514) rmcny@kvn.com PAULA L. BLIZZARD (SBN 207920) MICHAEL S. KWUN (SBN 198945) AUDREY WALTON-HADLOCK (SBN 250574) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, CA 94111 Telephone: (415) 391-5400 Fax: (415) 397-7188 THOMAS E. MOORE III (SBN 115107) tmoore@rroyselaw.com ROYSE LAW FIRM, PC 1717 Embarcadero Road Palo Alto, CA 94303 Telephone: (650) 813-9700 Fax:(650)813-9777 ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626 17 UNITED STATES DISTRICT COURT 18 FOR THE NORTHERN DISTRICT OF CALIFORNIA 19 SAN FRANCISCO DIVISION 20 21 22 23 24 25 26 CAROLYN JEWEL, TASH HEPTING, YOUNG BOON HICKS, as executrix of the estate of GREGORY HICKS, ERIK KNUTZEN and JOICE WALTON, on behalf of themselves and all others similarly situated, Plaintiffs, v. Case No.: 08-cv-4373-JSW DECLARATION OF CINDY COHN Courtroom 11, 19th Floor The Honorable Jeffrey S. White ) ) NATIONAL SECURITY AGENCY, et al., Defendants. 27 ) ) ) ) ) ) ) ) ) ) ) ) 28 Case No. 08-cv-4373-JSW DECLARATION OF CINDY COHN Case3:08-cv-04373-JSW Document186-1 Filed03/10/14 Page2 of 2 2 3 4 5 6 7 I, CINDY COHN, hereby declare: I am a lawyer duly licensed to practice law in the State of California and before this I. district. I am the Legal Director of the Electronic Frontier Foundation, counsel of record for the plaintiffs. 2. I have attached to this Declaration true and correct copies of the following documents: • 8 Security Agency, et al., No. 08-cv-4373-JSW (N.D. Cal.) filed September 18, 2008; • 11 • • 22 Constitutional and Statutory Exhibit C: Evidence Preservation Order in Carolyn Jewel, et al., v. National Exhibit D: Evidence Preservation Order in In Re: National Security Agency Telecommunications Records Litigation, MDL No. 06-cv-1791-VRW (N.D. Cal) 18 21 for Security Agency, et al., No. 08-cv-4373-JSW (N.D. Cal.) filed November 16, 2009; 17 20 Complaint (N.D. Cal.) filed on March 7, 2014; 15 19 First Amended Los Angeles, et al. v. National Security Agency, et al., Case No. 13-cv-3287-JSW 13 16 Exhibit B: Violations, Seeking Declaratory and Injunctive Relief in First Unitarian Church of 12 14 Complaint for Constitutional and Statutory Violations, Seeking Damages, Declaratory and Injunctive Relief in Carolyn Jewel, et al., v. National 9 IO Exhibit A: dated November 6, 2007; and • Exhibit E: Emails between plaintiffs and defendants regarding preservation issues. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on March 10, 2014, at San Francisco, California. 23 24 Isl Cindy Cohn CINDY COHN 25 26 27 28 Case No. 08-cv-4373-JSW DECLARATION OF CINDY COHN Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Pagel of 56 Exhibit A Exhibit A case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page2 of 56 ELECTRONIC FRONTIER FOUNDATION CINDY COHN (145997) 2 cindy@eff.org LEE TIEN ( 148216) 3 KURT OPSAHL (191303) KEVIN S. BANKSTON (217026) 4 JAMES S. TYRE (083117) 454 Shotwell Street 5 San Francisco, CA 94110 Telephone: 415/436-9333; Fax: 415/436-9993 6 RICHARD R. WIEBE (121156) 7 wiebe@pacbell .net .;·._ . LAW OFFICE OF RICHARD R. WIEBE i.....,. 8 425 California Street, Suite 2025 San Francisco, CA 94104 9 Telephone: 415/433-3200; Fax: 415/433-6382 ,,. ' ' .: •• ' ·.' . • .,• ~.'.;j·~~ 10 THOMAS E. MOORE III (115107) tmoore(a)_,moorelawteam.com 11 THE MOORE LAW GROUP 228 Hamilton Avenue, 3rd Floor 12 Palo Alto, CA 94301 Telephone: 650/798-5352; Fax: 6501798-5001 13 Attorneys for Plaintiffs 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA "' 16 CAROLYN JEWEL, TASH HEPTING, GREGO~ .. '.¥J HIC~~~ ) ... CASE NO: ERIKKNUTZENandJOICEWALTON,onbe. f f t>: f~} 17 themselves and all others similarly situated, · V C: · 18 19 Plaintiffs, vs. ) ) ) ) ) 20 NATIONAL SECURITY AGENCY and KEITH B. ) ALEXANDER, its Director, in his official and personal ) 21 capacities; MICHAEL V. HAYDEN, in his personal capacity; ) the UNITED STATES OF AMERICA; GEORGE W. BUSH, ) ) 22 President of the United States, in his official and personal capacities; RICHARD B. CHENEY, in his personal capacity; ) ) 23 DAVID S. ADDINGTON, in his personal capacity; DEPARTMENT OF JUSTICE and MICHAEL B. ) 24 MUKASEY, its Attorney General, in his official and personal ) ) capacities; ALBERTO R. GONZALES, in his personal ) 25 capacity; JOHN D. ASHCROFT, in his personal capacity; JOHN M. MCCONNELL, Director of National Intelligence, in) 26 his official and personal capacities; JOHN D. NEGROPONTE, ) in his personal capacity; and DOES #1-100, inclusive, ) 27 ) ) Defendants. 2811-~~~~~~~~~~~~~~~~~-> COMPLAINT (:_;,; CLASS ACTION ,~~.,. Q CR. ' COMPLAINT FOR CONSTITUTIONAL AND STATUTORY VIOLATIONS, SEEKING DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF DEMAND FOR JURY TRIAL B Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page3 of 56 l. 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 ll 12 13 14 15 collectively as the named defendants and the Doc 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 25 5. The President and other executive officials have described tlIBSP'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 admitted that the TSP was only one particular aspect of the surveillance activities authorized by th 26 Program Order. 27 28 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page4 of 56 1 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 10 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 10. 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 information. 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 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Pages of 56 I 12. Plaintiffs and class members are 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. JURISDICTION AND VENUE 12 13 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 arc 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 arc 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 of28 U.S.C § 2675, as required for their claimsunder 18 U.S.C. § 2712. Plaintiffs timely served notice of their Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page6 of 56 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 9 10 11 12 13 14 15 PARTIES 20. Plaintiff Tash Hepting, a senior systems architect, is an individual residing in Livennore, 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 retired Naval Officer and systems engineer, has been a subscriber and user of AT&T's residential long distance telephone service since February 1995. 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. Plaintiff Erik Knutzen is an individual residing in Los Angeles, CaliforniaKnutzen, 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. Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page7 of 56 27. Defendant Lieutenant General (Ret.) Michael V. Hayden is the fonner 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 5 Program. 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 200 I. 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, Defenda~ddington served as legal counsel to the Office of the Vice President. DefcndantAddington 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 Sta 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 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Pages of 56 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 fonner 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 8 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 11 37. Defendant John D. Negroponte was the first Director of National Intelligence, in 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 "Doe 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# I" through 16 "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 l8 authorized or participated in the Program. Plaintiffs will amend this complaint to allege their true l 9 names and capacities when ascertained. Upon infonnation 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, 2001, President Bush, in concert with White House Counsel Gonzale , 26 NSA Director Hayden, Attorney General Ashcroft and other Defendants, issued a secret presidenti I 2 7 order (the "Program Order") authorizing a range of surveillance activities inside of the United Stat s 28 Case3:08-cv-04373-JSW DocumenU86-2 Filed03/10/14 Page9 of 56 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 2001, and continues to this day. 5 41. The President renewed and, on information and belief, renews his October 4, 200 I 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 information and belief is obtained based on IO 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 information and belief do state that the Program's activities 15 have been determined to be lawful by the Attorney General, except for one period of less than six 16 days. 17 44. On information 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 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 PagelO of 56 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 l l, 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 defendants I0 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 20 21 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 services. 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 26 27 28 point of origin and the point of reception. 55. One of these AT&T facilities is located at on Folsom Street in San Francisco, CA (the "Folsom Street Facility"). Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Pagell of 56 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' WorldN et 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 IO light signals on fiber-optic cables that arc connected to routers for AT&T's WorldNet Internet 11 service and arc 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 arc used for the transmission of interstate and foreign 14 communications. 15 59. The WorldNet 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, PSJNet, 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 in 22 collaboration with AT&T to build a surveillance operation at AT&T's Folsom Street Facility, insi 23 24 25 26 a secret room known as the "SG3 Secure Room". 61. The SG3 Secure Room was built adjacent to the Folsom Street Facility's 4ESS switch room. 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. Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page12 of 56 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 5 traffic patterns of communications according to user-defined rules. 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-spec 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 SG 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 26 based on rules programmed by the NSA. 70. This network of Surveillance Configurations indiscriminately acquires domestic 27 communications as well as international and foreign communications. 28 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page13 of 56 1 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 10 non-content dialing, routing, addressing and/or signaling infonnation pertaining to those 11 communications. 12 74. In addition to acquiring all of the Internet communications passing through a numbe 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 infonnation 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 pa 19 and dialing, routing, addressing, and/or signaling infonnation pertaining to those communications, 20 21 22 23 24 25 26 27 28 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 infonnation 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' and class members' communications contents and non-content information is done without Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page14 of 56 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.are 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 1O 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 21 THE NSA'S DRAGNET COLLECTION OF COMMUNICATIONS RECORDS FROM AT&T DATABASES 82. Defendants have since October 200 I continuously solicited and obtained the 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. Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Pagels of 56 85. 2 3 4 5 6 7 Daytona is a database management technology designed to handle very large databases and is used to manage "Hawkeye," AT&T's call detail record ("CDR") database, which contains records of nearly every telephone communication carried over its domestic network since approximately 2001, records that include the originating and terminating telephone numbers and th time and length for each call. 86. 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. 10 11 12 13 14 15 87. As of September 2005, all of the CDR data managed by Daytona, when uncompressed, totaled more than 312 terabytes. 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 database contains huge amounts of data acquired by firewalls, routcrsponeypots 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 20 21 22 23 24 25 26 27 28 90. Since October 6, 2001 or shortly thereafter, Defendants have continually solicited and obtained from AT&T disclosure of the contents of the Hawkeye and Aurora communications records databases and/or other AT&T communications records, including records or other information pertaining to Plaintiffs' and class members' use of AT&T' s telephone and Internet services. 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 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page16 of 56 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 committed or are about to commit any crime or engage in any terrorist activity. 7 8 9 10 11 12 13 14 15 16 17 18 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 don-without 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 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 . 23 24 25 26 CLASS ACTION ALLEGATIONS 98. Pursuant to Federal Rules of Civil Procedure, Rule 23(b)(2), Plaintiffs Hepting, Hicks, Jewel, Knutzen, and Walton bring this action on behalf of themselves and a class ofsimilarl 27 situated persons defined as: 28 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Pagel 7 of 56 1 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 2001. 3 99. 4 5 6 7 8 9 o 1 11 The class seeks certification of claims for declaratory, injunctive and other equitabl relief pursuant to 18 U.S.C. §2520, 18 U.S.C. §2707 and 5 U.S.C. § 702, in addition to declaratory 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 fonn the basis of this action. The individual damages claims of the class members are outside the scope of this class action. 100. 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. § 180l(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 21 22 23 24 25 modify the class definition and the class period based on the results of discovery. 103. Numcrosity 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 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 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Pagels of 56 104. 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 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (a) Whether Defendants have violated the First and Fourth Amendment rights o 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 of50 U.S.C. § 1809, or arc currently doing so; (c) Whether Defendants have intercepted, used or disclosed class members' communications in violation of 18 U.S.C. § 2511, 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; (t) Whether Defendants have violated the Administrative Procedures Act, 5 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 arc 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. 105. Tvoicality: 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. Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page19 of 56 1 Plaintiffs and all members of the class have similarly suffered harm arising from Defendants' 2 3 4 5 6 7 violations of law, as alleged herein. 106. Adequacy: Plaintiffs are adequate representatives of the class because their interes 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 1O 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 bis official and personal capacities), and one or more of the Doe Defendants) 18 19 20 21 22 23 24 25 26 27 28 108. 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 communications, contents of communications, and/or records pertaining to their communications transmitted, collected, and/or stored by AT&T. 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 commissio Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page20 of 56 1 of the above-described acts of acquisition, interception, disclosure, divulgence and/or use of 2 3 4 5 6 7 Plaintiffs' and class members' communications, contents of communications, and records pertaini to their communications transmitted, collected, and/or stored by AT&T, without judicial or other lawful authorization, probable cause, and/or individualized suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority. 111. AT&T acted as the agent of Defendants in performing, participating in, enabling, 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 obtaining judicial or other lawful authorization and by conforming their conduct to th 17 18 19 20 21 22 23 requirements of the Fourth Amendment. 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 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page21 of 56 I 116. On infonnation and belief, the Count I Defendants arc now engaging in and will 2 continue to engage in the above-described violations of Plaintiffs' and class members' constitution I 3 4 5 6 7 8 9 rights, and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class members have no adequate remedy at law for the Count l 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 the rights of the class; enjoin the Count I Defendants, their agents, successors, and assigns, and all 10 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 bis personal capacity), Hayden (in his personal capacity), Cheney (in bis personal capacity), Addington (in bis personal capacity), Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in bis 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 26 119. 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, 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 Case3:08-cv-04373-JSW DocumenU86-2 Filed03/10/14 Page22 of 56 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 4 5 6 7 communications transmitted, collected, and/or stored by AT&T without judicial or other lawful 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, 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' communications, contents of 10 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 Fou 17 Amendment 18 19 20 21 22 23 24 25 26 27 28 123. 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 Plaintiffs. 125. Defendants' conduct was done intentionally, with deliberate indifference, or with reckless disregard of, Plaintiffs' constitutional rights. 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. Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page23 of 56 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 4 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) 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 IO 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 l6 communications without judicial or other lawful authorization, probable cause, and/or individualiz d 17 18 19 20 21 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, 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' righ to speak and to receive speech anonymously and associate privately under the First Amendment. Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page24 of 56 132. By the acts alleged herein, Defendants' conduct proximately caused harm 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 information 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 harming 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 15 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 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 Doc 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 13 7. Plaintiffs use AT&T' s services to speak or receive speech anonymously and to 27 associate privately. 28 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page25 of 56 138. 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 g 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 COUNTV 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 bis official and personal capacities), and McConnell (in bis official and personal capacities), and one or more of the Doc 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-{l) engages in electronic surveillance under color of law Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page26 of 56 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 infonnation 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. 1 2 3 4 5 6 145. (f) "Electronic surveillance" means - ( l) 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, ifthe contents arc 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 pennissible 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 infonnation, 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 10 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. § 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 tht:r!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 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page27 of 56 1 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 I 19, 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 13 14 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, and such acquisition occurred in the United States. 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. § 1801(t)) under color oflaw, 23 not authorized by any statute, to which Plaintiffs and class members were subjected in violation of 24 50 u.s.c. § 1809. 25 26 27 151. 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 2 8 disclosed or used information obtained under color of law by electronic surveillance, knowing or Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page28 of 56 1 having reason to know that the information was obtained through electronic surveillance not 2 3 4 5 6 7 authorized by statute, including information pertaining to Plaintiffs and class members, 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 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 10 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 continuing unlawful conduct, and the Count V Defendants will continue to violate Plaintiffs' and 19 20 21 22 23 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 et seq.; and award such other and further equitable relief as is proper. Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page29 of 56 1 COUNT VI 2 Violation of SO U.S.C. § 1809, actionable under SO 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) 7 156. Plaintiffs repeat and incorporate herein by reference the allegations in the precedin 8 paragraphs of this complaint, as if set forth fully herein. 9 157. 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 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. 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. § 1809 provides that: 158. In relevant part 50 U.S.C. § 1801 provides that: (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, ifthe 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 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page30 of 56 communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes. 1 2 3 4 5 6 7 159. 18 U.S.C. § 2511(2)(t) further provides in relevant part that "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be tha?xclusive means by which electronic surveillance, as defined in section IOI [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. IO (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 16 17 18 19 20 50 U.S.C. § 1812 further provides in relevant part that: (Emphasis added.) 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 commissio of such acquisition, by means of a surveillance device, the contents of one or more wire 21 communications to or from Plaintiffs or other infonnation 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 perfonning, participating in, enabling, contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti of Plaintiffs' communications. Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page31 of 56 163. 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 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. § 180l(t)) 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 9 intentionally disclosed or used information obtained under color of law by electronic surveillance, 10 knowing or having reason to know that the information was obtained through electronic surveillan e 11 12 13 14 not authorized by statute, including information 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 15 the commission of such acts. 16 165. 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. Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page32 of 56 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 17 170. 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: ( 1) Except as otheiwise 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 16 Plaintiffs repeat and incorporate herein by reference the allegations in the preceding 171. 18 U.S.C. § 25ll(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 thCE:Cclusive 24 means by which electronic surveillance, as defined in section IOI [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: Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page33 of 56 1 (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 10 11 12 13 14 15 16 174. 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 information was obtained through the interception of wire or electronic communications in violation of 18 U.S.C. § 2511(1)( ); and/or 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, l8 while knowing or having reason to know that the information was obtained through the interceptio 19 20 21 22 23 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, 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 26 27 28 Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 2511(3)(a). 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, Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page34 of 56 commanding, inducing, procuring, encouraging, promoting, instigating, advising, willfully causing 2 participating in, enabling, contributing to, facilitating, directing, controlling, assisting in, or 3 conspiring in their commission. In doing so, Defendants have acted in excess of their statutory 4 5 6 7 authority and in violation of statutory limitations. 178. AT&T acted as the agent of Defendants in perfonning, 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. 9 179. Defendants did not notify Plaintiffs or class members of the above-described 10 intentional interception, disclosure, divulgence and/or use of their wire or electronic 11 12 13 14 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 infonnation 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 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 banning Plaintiffs and class members. Plaintiffs and class members have no adequate remedy at law for the Count V I 23 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. § 251 I, to Larson v. United States, 337 U.S. 682 (1949), and to 5 U.S.C. Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page35 of 56 § 702, Plaintiffs and class members seek equitable and declaratory relief against the Count VII 2 3 4 5 6 7 Defendants. 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 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page36 of 56 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~xclusive means by which electronic surveillance, as defined in section IOI [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. IO 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 infonnation was obtained through the 23 24 25 26 27 28 interception of wire or electronic communications in violation of 18 U.S.C. § 251 l(l)(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 electronic communications in violation of 18 U.S.C. § 2511 ( 1)(d). Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page37 of 56 1 192. 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 divulgence 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, I 0 enabling, contributing to, facilitating, directing, controlling, assisting in, or conspiring in their 11 commission. 12 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 22 196. 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 23 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. , Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page38 of 56 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. 10 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 diwlge 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 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 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 th~xc/usive 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: Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page39 of 56 (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 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 8 9 10 11 12 13 203. 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. § 2511 ( 1)(a); and/or 204. 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 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 25 26 27 Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 2511 (3)(a). 207. Defendants have committed these acts of interception, disclosure, divulgence and/o use of Plaintiffs' communications directly or by aiding, abetting, counseling, commanding, induci 28 procuring, encouraging, promoting, instigating, advising, willfully causing, participating in, , Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page40 of 56 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 pcrfonning, 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: Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page41 of 56 (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.( 1) 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 (I) 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 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 case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page42 of 56 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 10 communications, nor did Plaintiffs or class members consent to such. 11 12 13 14 217. Plaintiffs and class members have been and are 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 scrvicc(s), acting in 18 excess of the Count X Defendants' statutory authority and in violation of statutory limitations, 19 20 21 22 23 24 25 26 27 28 including 18 U.S.C. § 2703(a) and (b), and arc 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 by knowing or intentional violation of 18 U.S.C. § 2703, 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 X Defendants. Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page43 of 56 1 220. 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 4 5 6 those in active concert and participation with them from violating the Plaintiffs' and class membe ' 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 10 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.( 1) 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 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page44 of 56 (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. 1 2 3 4 5 6 7 8 9 10 11 12 13 223. Defendants intentionally and willfully solicited and obtained from AT&T, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, 14 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i , 15 16 17 18 19 20 21 22 23 24 25 26 or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of the conten 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 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page45 of 56 227. 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 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 paragraphs of this complaint, as if set forth fully herein. 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.(1) 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 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page46 of 56 (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 (I) 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 I0 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 25 26 27 28 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 obtaining of disclosure of the contents of communications. 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 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page47 of 56 1 violation of 18 U.S.C. § 2703. Plaintiffs have complied fully with the claim presentment procedu11 2 3 4 5 6 7 8 9 1o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of 18 U.S.C. § 2712. Pursuant to 18 U.S.C. § 2712, Plaintiffs seek from the Count XII Defendants 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 infonnation 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; Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page48 of 56 (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 infonnation under this subsection is not required to provide notice to _a subscriber or customer. 1 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 , 1 O or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of records or 11 12 13 14 15 16 17 18 19 other infonnation pertaining to Plaintiffs' and class members' use of electronic communication services and/or remote computing services offered to the public by AT&T, in violation of 18 U.S. § 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 perfonning, participating in, enabling, contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs' and class members' records or other infonnation. 239. Defendants did not notify Plaintiffs or class members of the disclosure of these 20 records or other infonnation 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 arc aggrieved by Defendants' above- described acts of soliciting and obtaining disclosure by AT&T of records or other infonnation pertaining to Plaintiffs and class members. 241. On infonnation and belief, the Count XIIJ 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 infonnation pertaining to Plaintiffs and class members, acting in excess of the Count XIII Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page49 of 56 l 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 18 U.S.C. § 2707, which provides a civil action for any person aggrieve 8 by knowing or intentional violation of 18 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 l 0 against the Count XIII Defendants. ll 12 13 14 243. 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 18 U.S.C. § 2703; and award such other and 16 further equitable relief as is proper. 17 COUNT XIV 18 Violation of 18 U.S.C. § 2703(c), actionable under 18 U.S.C. § 2707-Damages 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), 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.( I) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 PageSO of 56 other infonnation pertaining to a subscriber to or customer of such scivice (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 fonnal 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 tennis defmed in section 2325 of this title); or (E) seeks information under paragraph (2). (2) A provider of electronic communication seivice or remote computing seivice 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 seivice (including start date) and types of seivicc 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 seivice (including any credit card or bank account number), of a subscriber to or customer of such seivice 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 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 246. Defendants intentionally and willfully solicited and obtained from AT&T, or aided, 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 seivices and/or remote 25 26 27 28 computing seivices offered to the public by AT&T, in violation of 18 U.S.C. § 2703(c). Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page51of56 1 24 7. AT&T acted as the agent of Defendants in perfonning, 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 infonnation. 248. Defendants did not notify Plaintiffs of the disclosure of these records or other infonnation 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 Plaintiff: . 9 250. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieve IO 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 herei!,t. 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.( I) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other infonnation 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; Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page52 of 56 (C) has the consent of the subscriber or customer to such disclosure; (D) submits a fonnal 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. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 253. 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 infonnation pertaining to them and their use of AT&T services, nor did Plaintiffs consent to such. 27 28 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page53 of 56 256. 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 Plaintiffi. 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 10 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 12 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 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, 121 and 206 of Title 18 of the U.S. Code ( e 20 21 22 23 24 25 Wiretap Act, the Stored Communications Act, and the Pen Register Statute, respectively) and in violation of statutory rights under those la~are not otherwise in accordance with law; are contrary to constitutional rights, including the Fourth Amendment, First Amendment, and separation of powers principles; and are taken without observance of procedures required by law. 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 Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page54 of 56 1 communications, communications records, and other infonnation in violation of their constitutiona 2 3 4 5 6 7 and statutory rights. 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 10 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 his official and personal capacities), and McConnell (in his official and personal capacities), and one or more of the Doe Defendants) 12 13 14 15 16 17 18 19 20 21 22 23 262. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this complaint, as if set forth fully herein. 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 described 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. Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page55 of 56 1 265. 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 pennanent injunction pursuant to the First and Fourth Amendments to the United States Constitution prohibiting Defendants' continued use of the Program, and a preliminary and pennanent injunction pursuant to the Fourth Amendment requiring Defendants to provide to Plaintiffs and the class an inventory of their communications, records, or other infonnation that wa seized in violation of the Fourth Amendment, and further requiring the destruction of all copies of those communications, records, or other infonnation within the possession, custody, or control of Defendants. c. Award Plaintiffs their statutory, actual, and punitive damages to the extent pennitte 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. Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page56 of 56 1 2 JURY DEMAND Plaintiffs hereby request a jury trial for all issues triable by jury including, but not limited to, 3 those issues and claims set forth in any amended complaint or consolidated action. 4 DATED: September/.12008 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 ~~/=----:::.._ ~ ELECTRONIC FRONTIER FOUNDATION CINDY COHN (1455997) LEE TIEN (148216) KURT OPSAHL (191303) KEVIN S. BANKSTON (217026) JAMES S. TYRE (083117) 454 Shotwell Street San Francisco, CA 94110 Telephone: 415/436-9333 415/436-9993 (fax) RICHARD R. WIEBE (121156) LAW OFFICE OF RICHARD R. WIEBE 425 California Street, Suite 2025 San Francisco, CA 94104 Telephone: (415) 433-3200 Facsimile: (415) 433-6382 THOMAS E. MOORE Ill (115107) THE MOORE LAW GROUP 228 Hamilton A venue, 3rd Floor Palo Alto, CA 94301 Telephone: (650) 798-5352 Facsimile: (650) 798-5001 Attorneys for Plaintiffs 20 21 22 23 24 25 26 27 28 COMPLAINT -54- Case3:08-cv-04373-JSW DocumenU86-3 Filed03/10/14 Pagel of 29 Exhibit B Exhibit B 2 3 4 5 6 7 CINDY COHN (SBN 145997) cindy@eff.org LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303) MATIHEW ZIMMERMAN (SBN 212423) MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160 I 07) JAMES S. TYRE (SBN 083117) ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993 THOMAS E. MOORE III (SBN 115107) 8 tmoore@moorelawteam.com ROYSE LAW FIRM, PC 9 1717 Embarcadero Road Palo Alto, CA 94303 IO Tel.: 650-813-9700; Fax: 650-813-9777 11 Attorneys for Plaintiffs 12 13 14 15 RACHAEL E. MENY (SBN 178514) nneny@kvn.com MICHAELS. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188 RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382 ARAM ANTARAMIAN (SBN 239070) aram@cff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION FIRST UNITARIAN CHURCH OF LOS ) 16 ANGELES; ACORN ACTIVE MEDIA; BILL OF ) RIGHTS DEFENSE COMMITTEE; CALGUNS ) 17 FOUNDATION, INC.; CALIFORNIA ) ASSOCIATION OF FEDERAL FIREARMS ) 18 LICENSEES, INC.; CHARITY AND SECURITY ) NETWORK; COUNCIL ON AMERICAN ) 19 ISLAMIC RELATIONS-CALIFORNIA; ) COUNCIL ON AMERICAN ISLAMIC ) 20 RELATIONS-OHIO; COUNCIL ON ) AMERICAN ISLAMIC RELATIONS) 21 FOUNDATION, INC.; FRANKLIN ARMORY; ) ) FREE PRESS; FREE SOFTWARE 22 FOUNDATION; GREENPEACE, INC.; HUMAN ) RIGHTS WATCH; MEDIA ALLIANCE; ) 23 NATIONAL LAWYERS GUILD; NATIONAL ) ORGANIZATION FOR THE REFORM OF ) 24 MARIJUANA LAWS, CALIFORNIA CHAPTER;) ) PATIENT PRIVACY RIGHTS; PEOPLE FOR 25 THE AMERICAN WAY; PUBLIC ) ) KNOWLEDGE; SHALOM CENTER; 26 STUDENTS FOR SENSIBLE DRUG POLICY; ) TECHFREEDOM; and UNITARIAN ) 27 UNIVERSALIST SERVICE COMMITTEE, ) 28 eJaiotiff!:i. Case No: 3:13-cv-03287 JSW FIRST AMENDED COMPLAINT FOR CONSTITUTIONAL AND STATUTORY VIOLATIONS, SEEKING DECLARATORY AND INJUNCTIVE RELIEF Hon. Jeffrey S. White Courtroom 11 - 19th Floor DEMAND FOR JURY TRIAL ) ) FIRST AMENDED COMPLAINT v. ) ) 2 NATIONAL SECURITY AGENCY and KEITH ) B. ALEXANDER, its Director, in his official and ) 3 individual capacities; the UNITED STATES OF ) AMERICA; DEPARTMENT OF JUSTICE and ) 4 ERIC H. HOLDER, its Attorney General, in his ) official and individual capacities; Acting Assistant ) 5 Attorney General for National Security JOHN P. ) CARLIN, in his official and individual capacities; ) 6 FEDERAL BUREAU OF INVESTIGATION and ) JAMES B. COMEY, its Director, in his official ) 7 and individual capacities; ROBERTS. ) MUELLER, fonner Director of the FEDERAL ) 8 BUREAU OF INVESTIGATION, in his individual) capacity; JAMES R. CLAPPER, Director of ) 9 National Intelligence, in his official and individual ) capacities, and DOES 1-100, ) IO ) Defendants. ) II ) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINT CASE NO. l 3-cv-3287 JSW v. ) ) 2 NATIONAL SECURITY AGENCY and KEITH ) B. ALEXANDER, its Director, in his official and ) 3 individual capacities; the UNITED STATES OF ) AMERICA; DEPARTMENT OF JUSTICE and ) 4 ERIC H. HOLDER, its Attorney General, in his ) official and individual capacities; Acting Assistant ) 5 Attorney General for National Security JOHN P. ) CARLIN, in his official and individual capacities; ) 6 FEDERAL BUREAU OF INVESTIGATION and ) JAMES B. COMEY, its Director, in his official ) 7 and individual capacities; ROBERT S. ) MUELLER, former Director of the FEDERAL ) 8 BUREAU OF INVESTIGATION, in his individual) capacity; JAMES R. CLAPPER, Director of ) 9 National Intelligence, in his official and individual ) capacities, and DOES 1-100, ) 10 ) Defendants. ) 11 ) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 1 1. Plaintiffs bring this action on behalf of themselves and, where indicated, on behalf of 2 their members and staff. Plaintiffs allege as follows: 3 PRELIMINARY STATEMENT 2. 4 Plaintiffs, as described more particularly below, are associations, as well as the 5 members and staffs of associations, who use the telephone to engage in private communications 6 supportive of their associations and activities, including engaging in speech, assembly, petition for 7 the redress of grievances, and the exercise of religion. 3. 8 This lawsuit challenges an illegal and unconstitutional program of dragnet electronic 9 surveillance, specifically the bulk acquisition, seizure, collection, storage, retention, and searching of 10 telephone communications information (the "Associational Tracking Program") conducted by the 11 National Security Agency (NSA) and the other defendants (collectively, "Defendants"). 4. 12 13 The Associational Tracking Program is vast. It collects telephone communications information for all telephone calls transiting the networks of all major American telecommunication 14 companies, including Verizon, AT&T, and Sprint, ostensibly under the authority of section 215 of 15 the USA PATRIOT Act, codified at 50 U.S.C. § 1861. 5. 16 The communications information that Defendants collect in the Associational 17 Tracking Program is retained and stored by Defendants in one or more databases. The Program 18 collects information concerning all calls wholly within the United States, including local telephone 19 calls, as well as all calls between the United States and abroad, regardless of a connection to 20 international terrorism, reasonable suspicion of criminality, or any other form of wrongdoing. This 21 information is stored for at least five years. Defendants have indiscriminately obtained, and stored 22 the telephone communications information of millions of ordinary Americans as part of the 23 Associational Tracking Program. 24 6. Defendants search and analyze the Associational Tracking Program's database(s) for 25 various purposes, including but not limited to, obtaining the communications history of particular 26 phone numbers, which, when aggregated, reveals those numbers' contacts and associations over 27 time. 28 1 FIRST AMENDED COMPLAINT CASE NO. l 3-cv-3287 JSW 7. 1 Defendants' collection of telephone communications infonnation includes, but is not 2 limited to, records indicating who each customer communicates with, at what time, for how long and 3 with what frequency communications occur. This communications infonnation discloses the 4 expressive and private associational connections among individuals and groups, including Plaintiffs 5 and their members and staff. 6 8. The Associational Tracking Program has been going on in various forms since October 9. The bulk collection of telephone communications information without a valid, 7 2001. 8 9 particularized warrant supported by probable cause violates the First, Fourth, and Fifth Amendments, 10 as well as statutory prohibitions and limitations on electronic surveillance. 11 IO. Defendants' searches of the Associational Tracking Program database(s) without a 12 valid, particularized warrant supported by probable cause violate the First, Fourth, and Fifth 13 Amendments. 14 11. Plaintiffs' records are searched even if they are not targets of the search. 15 12. Plaintiffs are organizations, associations, and advocacy groups, their staffs, and their 16 members who are current subscribers to Verizon and other telephone services. Using the 17 Associational Tracking Program, Defendants seize, collect, acquire, retain, and search the records of 18 the telephone communications of Plaintiffs, their members and staff, and others seeking to associate 19 and communicate with them. JURISDICTION AND VENUE 20 21 22 23 13. This court has subject matter jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331, 5 U.S.C. § 702, and the Constitution. 14. Plaintiffs are informed, believe, and thereon allege that Defendants have sufficient 24 contacts with this district generally and, in particular, with the events herein alleged, that Defendants 25 are subject to the exercise of jurisdiction of this court over the person of such Defendants and that 26 venue is proper in this judicial district pursuant to 28 U.S.C. § 1391. 27 28 15. Plaintiffs are infonned, believe, and thereon allege that a substantial part of the events 2 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW giving rise to the claims herein alleged occurred in this district and that Defendants and/or agents of 2 Defendants may be found in this district. 3 16. Intradistrict Assignment: Assignment to the San Francisco/Oakland division is 4 proper pursuant to Local Rule 3-2(c) and (d) because a substantial portion of the events and 5 omissions giving rise to this lawsuit occurred in this district and division. 6 7 PARTIES 17. Plaintiff First Unitarian Church of Los Angeles (First Unitarian) was founded in 1877 8 by Caroline Seymour Severance, a woman who worked all her life for causes such as the abolition of 9 slavery and women's suffrage. First Unitarian is located in Los Angeles, California. Throughout its 10 history members of First Unitarian defined their religious goals in terms of justice, equality, and 11 liberty for all persons. During the middle decades of the 20th century, First Unitarian provided aid to 12 Japanese-Americans displaced by internment camps, defended free speech against anti-communist 13 hysteria, and protested nuclear proliferation. In the 1980s, First Unitarian provided sanctuary to 14 Central American refugees and, in recent decades, First Unitarian opened its building as a 15 community center for the economically-depressed and ethnically-diverse neighborhood of 16 MacArthur Park. Members of First Unitarian have been quick to engage in difficult work and 17 controversial ideas and are proud of their contribution to moving the world closer to justice for all. 18 First Unitarian brings this action on behalf of itself and its adversely affected members and staff. 19 18. Plaintiff Acom Active Media is an outlet for technically skilled members to build 20 technical resources for groups, non-profits, and individuals who otherwise do not have the capacity 21 or would not be able to afford these services. Since Acorn's inception in January 2004, it has 22 engaged in website design, web application development, general technical consulting and hardware 23 support, and organizational database development for a diverse array of groups, individuals, and 24 organizations from around the globe. Acom members have supported democracy advocates and 25 independent media outlets worldwide, often working directly with communities laboring under 26 hostile and oppressive regimes. Plaintiff Acom brings this action on behalfofitself and its adversely 27 affected volunteers and members. 28 3 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 19. Plaintiff Bill of Rights Defense Committee (BORDC) is a non-profit, advocacy 2 organization based in Northhampton, Massachusetts. BORDC supports an ideologically, politically, 3 ethnically, geographically, and generationally diverse grassroots movement focused on educating 4 Americans about the erosion of fundamental freedoms; increasing civic participation; and converting 5 concern and outrage into political action. BORDC brings this action on behalf of itself and its 6 adversely affected staff. 7 20. Plaintiff Calguns Foundation, Inc. (CGF) is a non-profit, membership organization 8 based in San Carlos, California. CGF works to support the California fireanns community by 9 promoting education for all stakeholders about California and federal firearm laws, rights, and I 0 privileges, and defending and protecting the civil rights of California gun owners. In particular, CGF 11 operates a hotline for those with legal questions about gun rights in California. Plaintiff CGF brings 12 this action on behalf of itself and on behalf of its adversely affected members and staff. 13 21. Plaintiff California Association of Federal Firearms Licensees, Inc. (CAL-FFL) is a 14 non-profit, industry association of, by, and for fireanns manufacturers, dealers, collectors, training 15 professionals, shooting ranges, and others, advancing the interests of its members and the general 16 public through strategic litigation, legislative efforts, and education. CAL-FFL expends financial and 17 other resources in both litigation and non-litigation projects to protect the interests of its members 18 and the public at large. CAL-FFL brings this action on behalf of itself and its adversely affected 19 members and staff. 20 21 22. Plaintiff Charity and Security Network's mission is to protect civil society's ability to carry out peacebuilding projects, humanitarian aid, and development work effectively and in a 22 manner consistent with human rights principles and democratic values. To accomplish this, the 23 Network focuses on: coordinating advocacy by bringing together stakeholders from across the 24 nonprofit sector with policymakers to support needed changes in U.S. national security rules; and 25 raising awareness, dispelling myths and promoting awareness of the positive contribution civil 26 society makes to human security. CSN brings this action on behalf ofitself and its adversely affected 27 membership and staff. 28 4 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 1 23. Plaintiffs Council on American Islamic Relations-California (CAIR-CA), Council on 2 American Islamic Relations-Ohio (CAIR-OHIO), and Council on American Islamic Relations3 Foundation, Inc. (CAIR-F) are non-profit, advocacy organization with offices in California, Ohio, 4 and Washington, D.C., respectively. CAIR-CA, CAIR-OHIO, and CAIR-F's missions are to 5 enhance the understanding oflslam, encourage dialogue, protect civil liberties, empower American 6 Muslims, and build coalitions that promote justice and mutual understanding. CAIR-CA, CAIR7 OHIO, and CAIR-F bring this action on behalf of themselves and their adversely affected staffs. 8 24. Plaintiff Franklin Armory, a wholly owned subsidiary of CBE, Inc., is a state and 9 federally licensed manufacturer of firearms located in Morgan Hill, California. Franklin Armory I 0 specializes in engineering and building products for restrictive firearms markets, such as California. 11 Franklin Armory is a member ofCAL-FFL. Franklin Armory brings this suit on its own behalf. 12 25. Plaintiff Free Press is anon-profit, advocacy organization based in Washington, D.C. 13 Free Press's mission is to build a nationwide movement to change media and technology policies, 14 promote the public interest, and strengthen democracy by advocating for universal and affordable 15 Internet access, diverse media ownership, vibrant public media, and quality journalism. Free Press 16 brings this action on behalf of itself and its adversely affected members and staff. 17 26. Plaintiff the Free Software Foundation (FSF) is a non-profit, membership organization 18 based in Boston, Massachusetts. FSF helped pioneer a worldwide free software movement and 19 provides an umbrella of legal and technical infrastructure for collaborative software development 20 internationally. FSF brings this action on behalf of itself and its adversely affected members and 21. staff. 22 27. Plaintiff Greenpeace, Inc. (Greenpeace) is a non-profit, membership organization 23 headquartered in Washington, D.C. Through a domestic and international network of offices and 24 staff, Greenpeace uses research, advocacy, public education, lobbying, and litigation to expose 25 global environmental problems and to promote solutions that are essential to a green and peaceful 26 future. Greenpeace brings this action on behalf ofitselfand its adversely affected members and staff. 27 28 28. Plaintiff Human Rights Watch (HRW) is a non-profit, advocacy organization, based in 5 FIRST AMENDED COMPLAINT CASE NO ..J3-cv-3287 JSW New York, New York. Through its domestic and international network of offices and staff, HRW 2 challenges governments and those in power to end abusive pra~tices and respect international human 3 rights law by enlisting the public and the international community to support the cause of human 4 rights for all. HRW brings this action on behalf of itself and its adversely affected staff. 5 29. Plaintiff Media Alliance is a non-profit, membership organization based in Oakland, 6 California. Media Alliance serves as a resource and advocacy center for media workers, non-profit 7 organizations, and social justice activists to make media accessible, accountable, decentralized, 8 representative of society's diversity, and free from covert or overt government control and corporate 9 dominance. Media Alliance brings this action on behalf of itself and its adversely affected members 10 and staff. 11 30. Plaintiff National Lawyers Guild, Inc. is a non-profit corporation formed in 1937 as 12 the nation's first racially integrated voluntary bar association. For over seven decades the Guild has 13 represented thousands of Americans critical of government policies, from antiwar, environmental 14 and animal rights activists, to Occupy Wall Street protesters, to individuals accused of computer15 related offenses. From 1940-1975 the FBI conducted a campaign of surveillance, investigation and 16 disruption against the Guild and its members, trying unsuccessfully to label it a subversive 17 organization. The NLG brings this action on behalf of itself and its adversely affected membership 18 and staff. 19 31. PlaintiffNational Organization for the Reform of Marijuana Laws, California Chapter 20 (NORML, California Chapter) is a non-profit, membership organization located in Berkeley, 21 California. NORML, California Chapter is dedicated to reforming California's marijuana laws and 22 its mission is to establish the right of adults to use cannabis legally. NORML, California Chapter 23 brings this action on behalf of itself and its adversely affected members and staff. 24 25 32. Plaintiff Patient Privacy Rights (PPR) is a bipartisan, non-profit organization with 12,000 members in all 50 states. It works to give patients control over their own sensitive health 26 information in electronic systems, with the goal of empowering privacy and choices that protect jobs 27 and opportunities and ensure trust in the patient-physician relationship. The lack of privacy of health 28 6 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 1 infonnation causes millions of individuals every year to refuse or delay needed medical treatment or 2 hide infonnation, putting their health at risk. PPR brings this action on behalf of itself and its 3 adversely affected members and volunteers. 4 33. Plaintiff People for the American Way (PF AW) is a non-profit, membership 5 organization based in Washington, D.C. With over 595,000 members, PFAW's primary function is 6 the education of its members, supporters, and the general public as to important issues that impact 7 fundamental civil and constitutional rights and freedoms, including issues concerning civil liberties, 8 government secrecy, improper government censorship, and First Amendment freedoms. PFAW 9 brings this action on behalf of itself and its adversely affected members and staff. 10 34. Plaintiff Public Knowledge is a non-profit, advocacy organization based in 11 Washington, D.C. Public Knowledge is dedicated to preserving the openness of the Internet and the 12 public's access to knowledge, promoting creativity through the balanced application of copyright 13 laws, and upholding and protecting the rights of consumers to use innovative technology lawfully. 14 Public Knowledge brings this action on behalf of itself and its adversely affected staff. 15 35. Plaintiff the Shalom Center seeks to be a prophetic voice in Jewish, multireligious, and 16 American life. It connects the experience and wisdom of the generations forged in the social, 17 political, and spiritual upheavals of the last half-century with the emerging generation of activists, 18 addressing with special concern the planetary climate crisis and the power configurations behind that 19 crisis. The Shalom Center brings this action on behalf of itself and its adversely affected membership 20 and staff. 21 36. Plaintiff Students for Sensible Drug Policy (SSDP) is a non-profit, membership 22 organization based in Washington, D.C. With over 3,000 members, SSDP is an international, 23 grassroots network of students who are concerned about the impact drug abuse has on our 24 communities, but who also know that the War on Drugs is failing our generation and our society. 25 SSD P creates change by bringing young people together and creating safe spaces for students of all 26 political and ideological stripes to have honest conversations about drugs and drug policy. SSDP 27 brings this action on behalf of itself and its adversely affected membership and staff. 28 7 FIRST AMENDED COMPLAINT CASE NO. l 3-cv-3287 JSW 37. Plaintiff TechFreedom is a non-profit, think tank based in Washington, D.C. 2 TechFreedom's mission is promoting technology that improves the human condition and expands 3 individual capacity to choose by educating the public, policymakers, and thought leaders about the 4 kinds of public policies that enable technology to flourish. TechFreedom seeks to advance public 5 policy that makes experimentation, entrepreneurship, and investment possible, and thus unleashes 6 the ultimate resource: human ingenuity. TechFreedom brings this action on behalf of itself and its 7 adversely affected staff. 8 38. Plaintiff Unitarian Universalist Service Committee (UUSC) is a non-profit, 9 membership organization based in Cambridge, Massachusetts. UUSC advances human rights and I0 social justice around the world, partnering with those who confront unjust power structures and 11 mobilizing to challenge oppressive policies. Through a combination of advocacy, education, and 12 partnerships with grassroots organizations, UUSC promotes economic rights, advances 13 environmental justice, defends civil liberties, and preserves the rights of people in times of 14 humanitarian crisis. UUSC brings this action on behalf of itself and its adversely affected members 15 16 and staff. 39. All Plaintiffs make and receive telephone calls originating within the United States in 17 furtherance of their mission and operations. In particular, Plaintiffs make and receive telephone calls 18 to and from their members, staffs, and constituents, among other groups and individuals seeking to 19 associate with them, in furtherance of their mission and operations, including advancing their 20 political beliefs, exchanging ideas, and formulating strategy and messages in support oftheir causes. 21 40. Each of the Plaintiffs above is a membership organization and brings this action on 22 behalf ofits members has members whose communications information has been collected as part of 23 the Associational Tracking Program. 24 41. Defendant NSA is an agency under the direction and control of the Department of 25 Defense that seizes, collects, processes, and disseminates signals intelligence. It is responsible for 26 carrying out at least some of the Associational Tracking Program challenged herein. 27 28 42. Defendant General Keith B. Alexander is the current Director of the NSA, in office 8 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW since April of 2005. As NSA Director, General Alexander has authority for supervising and 2 implementing all operations and functions of the NSA, including the Associational Tracking 3 Program. General Alexander personally authorizes and supervises the Associational Tracking 4 Program. 5 43. Defendant United States is the United States of America, its departments, agencies, 6 and entities. 7 44. Defendant Department of Justice is a Cabinet-level executive department in the United 8 States government charged with law enforcement, defending the interests of the United States 9 according to the law, and ensuring fair and impartial administration of justice for all Americans. 10 11 45. Defendant Eric H. Holder is the current Attorney General of the United States, in office since February of2009. Attorney General Holder personally approves, authorizes, supervises, 12 and participates in the Associational Tracking Program on behalf of the Department of Justice. 13 46. Defendant John B. Carlin is the current Acting Assistant Attorney General for 14 National Security. In that position, defendant Carlin participates in the Department of Justice's 15 implementation of the Associational Tracking Program. 16 47. Defendant Federal Bureau oflnvestigation (FBI) is a component of the Department of 17 Justice that conducts federal criminal investigation and collects domestic intelligence. FBI is 18 responsible for carrying out at least some of the Associational Tracking Program activities 19 challenged herein. 20 48. Defendant James B. Corney is the current Director of the FBI, in office since 21 September of2013. As FBI Director, defendant Corney has ultimate authority for supervising and 22 implementing all operations and functions of the FBI, including its participation in the Associational 23 Tracking Program. Defendant Corney personally authorizes and supervises the FBI's participation in 24 the Associational Tracking Program. 25 49. Defendant Robert S. Mueller is the previous Director of the FBI, from September, 26 200 I-September, 2013. As FBI Director, defendant Mueller had ultimate authority for supervising 27 and implementing all operations and functions of the FBI, including its participation in the 28 9 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 1 Associational Tracking Program. Defendant Mueller personally authorized and supervised the FBl's 2 participation in the Associational Tracking Program. 3 4 50. Defendant Lieutenant General (Ret.) James R. Clapper is the Director of National Intelligence (DNI), in office since August of2010. Defendant Clapper participates in the activities of 5 the U.S. intelligence community, including the Associational Tracking Program. 6 51. Defendants DOES 1-100 are persons or entities who have authorized or participated in 7 the Associational Tracking Program. Plaintiffs will allege their true names and capacities when 8 ascertained. Upon infonnation and belief each is responsible in some manner for the occurrences 9 herein alleged and the injuries to Plaintiffs herein alleged were proximately caused by the acts or I 0 omissions of DOES 1-l 00 as well as the named Defendants. FACTUAL ALLEGATIONS RELATED TO ALL COUNTS 11 STATUTORY BACKGROUND 12 13 50 U.S.C § 1861, the codification of section 215 of the USA PATRIOT Act, as 52. 14 amended, is entitled "Access to certain business records for foreign intelligence and surveillance 15 purposes." Section 1861 provides narrow and limited authority for the Foreign Intelligence 16 Surveillance Court (FISC) to issue orders for the production of "any tangible things (including 17 books, records, papers, documents, and other items) for an investigation to obtain foreign 18 intelligence information not concerning a United States person or to protect against international 19 terrorism or clandestine intelligence activities." The limitations on section 186 l orders include the 20 21 following: • an order may be issued only upon "a statement of facts showing that there are 22 reasonable grounds to believe that the tangible things sought are relevant to an 23 authorized investigation;" 24 • sufficient particularity to permit them to be fairly identified;" and 25 26 27 28 the tangible things sought to be produced by an order must be described "with • an order "may only require the production of a tangible thing if such thing can be obtained with a subpoena duces tecum issued by a court of the United States in aid of 10 FIRST AMENDED COMPLAINT CASE NO. l 3-cv-3287 JSW a grand jury investigation or with any other order issued by a court of the United 2 States directing the production of records or tangible things." 3 THE ASSOCIATIONAL TRACKING PROGRAM 4 53. The Associational Tracking Program is electronic smveillance that collects and 5 acquires telephone communications infonnation for all telephone calls transiting the networks of all 6 major American telecommunication companies, including Verizon, AT&T, and Sprint. Every day, 7 the Associational Tracking Program collects infonnation about millions of telephone calls made by 8 millions of Americans. This includes infonnation about all calls made wholly within the United 9 States, including local telephone calls, as well as communications between the United States and 10 abroad. 11 54. Defendants' Associational Tracking Program collects and acquires call detail records 12 and comprehensive communications routing infonnation about telephone calls. The collected 13 infonnation includes, but is not limited to, session identifying information (e.g., originating and 14 tenninating telephone number, International Mobile Subscriber Identity (IMSI) number, 15 International Mobile station Equipment Identity (IMEi) number, etc.), trunk identifier, telephone 16 calling card numbers, and time and duration of call. Defendants acquire this information through the 17 18 use of a surveillance device. 55. Beginning in 2001, participating phone companies voluntarily provided telephone 19 communications information for the Associational Tracking program to Defendants. Since 2006, the 20 FISC, at the request of Defendants, has issued orders under 50 U .S.C. § 1861 purporting to compel 21 the production of communications infonnation, including communications information not yet in 22 existence, on an ongoing basis, as part of the Associational Tracking Program. 23 56. As an example, attached hereto as Exhibit A, and incorporated herein by this 24 reference, is an Order issued under 50 U.S.C. § 1861 requiring the production of communications 25 infonnation for use in the Associational Tracking Program. 26 27 28 57. DNI Clapper has admitted the Order is authentic, as indicated in Exhibit B, attached hereto and incorporated by this reference. 11 FIRST AMENDED COMPLAINT CASE NO. l 3-cv-3287 JSW 1 58. The Order is addressed to Verizon Business Network Services Inc., on behalf of MCI 2 Communications Services Inc., d/b/a Verizon Business Services (individually and collectively 3 "Verizon"). Verizon is one of the largest providers of telecommunications services in the United 4 States with over 98 million subscribers. Through its subsidiaries and other affiliated entities that it 5 owns, controls, or provides services to, Verizon provides telecommunications services to the public 6 and to other entities. These subsidiaries and affiliated entities include Verizon Business Global, 7 LLC; MCI Communications Corporation; Verizon Business Network Services, Inc.; MCI 8 Communications Services, Inc.; and Verizon Wireless (Cellco Partnership). 9 10 11 BULK SEIZURE COLLECTION, ACQUISITION, AND STORAGE 59. The Associational Tracking Program seizes, collects and acquires telephone communications information for all telephone calls transiting the networks of all major American 12 telecommunication companies, including Verizon, AT&T, and Sprint. 13 60. The telephone communications information Defendants seize, collect and acquire in 14 bulk as part of the Associational Tracking Program is retained and stored by Defendants in one or 15 more databases. These databases contain call information for all, or the vast majority, of calls wholly 16 within the United States, including local telephone calls, and calls between the United States and 17 abroad, for a period of at least five years. Defendants have indiscriminately obtained and stored the 18 telephone communications information of millions of ordinary Americans, including Plaintiffs, their 19 members, and staffs, as part of the Associational Tracking Program. 20 21 61. Defendants' bulk seizure, collection and acquisition of telephone communications information includes, but is not limited to, records indicating who each customer communicates 22 with, at what time, and for how long. The aggregation of this information discloses the expressive, 23 political, social, personal, private, and intimate associational connections among individuals and 24 groups, which ordinarily would not be disclosed to the public or the government. 25 62. Through the Associational Tracking Program, Defendants have seized, collected, 26 acquired, and retained, and continue to seize, collect, acquire, and retain, bulk communications 27 information of telephone calls made and received by Plaintiffs, their members, and their staffs. This 28 12 FIRST AMENDED COMPLAINT CASE NO. l 3-cv-3287 JSW 1 information is otherwise private. 2 63. Because of the Associational Tracking Program, Plaintiffs have lost the ability to 3 assure confidentiality in the fact of their communications to their members and constituent. 4 Plaintiffs' associations and political advocacy efforts, as well as those of their members and staffs, 5 are chilled by the fact that the Associational Tracking Program creates a permanent record of all of 6 Plaintiffs' telephone communications with their members and constituents, among others. 7 64. Plaintiffs' associations and political advocacy efforts, as well as those of their 8 members and staffs, arc chilled by Defendants' search and analysis of information obtained through 9 the Associational Tracking Program and Defendants' use and disclose of this information and the 10 results of their searches and analyses. 11 65. Plaintiffs' telephone communications information obtained, retained, and searched 12 pursuant to the Associational Tracking Program was at the time of acquisition, and at all times 13 thereafter, neither relevant to an existing authorized criminal investigation nor to an existing 14 authorized investigation to protect against international terrorism or clandestine intelligence 15 activities. 16 66. Defendants' bulk seizure, collection, acquisition, and retention of the telephone 17 communications information of Plaintiffs, their members, and their staffs is done without lawful 18 authorization, probable cause, and/or individualized suspicion. It is done in violation of statutory and 19 constitutional limitations and in excess of statutory and constitutional authority. Any judicial, 20 administrative, or executive authorization (including any order issued pursuant to the business 21 records provision of 50 U.S.C. § 1861) of the Associational Tracking Program or of the acquisition 22 and retention of the communications information of Plaintiffs, their members, and their staffs is 23 24 unlawful and invalid. 67. Defendants' bulk seizure, collection, acquisition, and retention of the telephone 25 communications information of Plaintiffs, their members, and their staffs is done (a) without 26 probable cause or reasonable suspicion to believe that Plaintiffs, their members, and their staffs have 27 committed or are about to commit any crime or engage in any international terrorist activity; (b) 28 13 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW without probable cause or reasonable suspicion to believe that Plaintiffs, their members, or their 2 staffs are foreign powers or agents of foreign powers; and (c) without probable cause or reasonable 3 suspicion to believe that the communications of Plaintiffs, their members, and their staffs contain or 4 pertain to foreign intelligence infonnation, or relate to an investigation to obtain foreign intelligence 5 infonnation. 6 68. Defendants, and each of them, have authorized, approved, supervised, perfonned, 7 caused, participated in, aided, abetted, counseled, commanded, induced, procured, enabled, 8 contributed to, facilitated, directed, controlled, assisted in, or conspired in the Associational Tracking 9 Program and in the seizure, collection, acquisition, and retention of the telephone communications 10 infonnation of Plaintiffs, their members, and their staffs. Defendants have committed these acts 11 willfully, knowingly, and intentionally. Defendants continue to commit these acts and will continue 12 to do so absent an order of this Court enjoining and restraining them from doing so. SEARCH 13 14 69. Through the Associational Tracking Program, Defendants have searched and continue 15 to search communications infonnation of telephone calls made and received by Plaintiffs, their 16 members, and their staffs. Defendants use the communications infonnation acquired for the 17 Associational Tracking Program for a process known as "contact chaining" - the construction of an 18 associational network graph that models the communication patterns of people, organizations, and 19 their associates. 20 70. As part of the Associational Tracking Program, contact chains are created both in an 21 automated fashion and based on particular queries. Contact chain analyses are typically perfonned 22 for two degrees of separation (or two "hops") away from an intended target. That is, an associational 23 network graph would be constructed not just for the target of a particular query, but for any number 24 in direct contact with that target, and any number in contact with a direct contact of the target. 25 Defendants sometimes conduct associational analyses up to three degrees of separation ("three 26 hops") away. 27 28 71. The searches include Plaintiffs' communications infonnation even if plaintiffs are not 14 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 1 targets of the government and even if they are not one, two or more "hops" away from a target. All 2 telephone communications information is searched as part of the Associational Tracking Program. 3 72. Plaintiffs' telephone communications information searched pursuant to the 4 Associational Tracking Program was, at the time of search and at all times thereafter, was neither 5 relevant to an existing authorized criminal investigation nor to an existing authorized investigation to 6 protect against international terrorism or clandestine intelligence activities. 7 73. Defendants' searching of the telephone communications information of Plaintiffs is 8 done without lawful authorization, probable cause, and/or individualized suspicion. It is done in 9 violation of statutory and constitutional limitations and in excess of statutory and constitutional 10 authority. Any judicial, administrative, or executive authorization (including any business records 11 order issued pursuant 50 U.S.C. § 1861) of the Associational Tracking Program or of the searching 12 of the communications information of Plaintiffs is unlawful and invalid. 13 74. Defendants• searching of the telephone communications information of Plaintiffs is 14 done (a) without probable cause or reasonable suspicion to believe that Plaintiffs, their members, or 15 their staffs, have committed or are about to commit any crime or engage in any international terrorist 16 activity; (b) without probable cause or reasonable suspicion to believe that Plaintiffs, their members, 17 or their staffs are foreign powers or agents of foreign powers; and (c) without probable cause or 18 reasonable suspicion to believe that Plaintiffs', their members', or their staffs' communications 19 contain or pertain to foreign intelligence information or relate to an investigation to obtain foreign 20 intelligence information. 21 75. Defendants, and each of them, have authorized, approved, supervised, pcrfonned, 22 caused, participated in, aided, abetted, counseled, commanded, induced, procured, enabled, 23 contributed to, facilitated, directed, controlled, assisted in, or conspired in the Associational Tracking 24 Program and in the search or use of the telephone communications information of Plaintiffs, their 25 members, and their staff. Defendants have committed these acts willfully, knowingly, and 26 intentionally. Defendants continue to commit these acts and will continue to do so absent an order of 27 this Court enjoining and restraining them from doing so. 28 15 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW INJURY COMMON TO ALL PLAINTIFFS 2 76. Each and every Plaintiff is informed and believes that its associational activities have 3 been harmed since the existence of the Associational Tracking Program became publicly known. 4 Each Plaintiff has experienced a decrease in communications from members and constituents who 5 had desired the fact of their communication to Plaintiff to remain secret, especially from the 6 government and its various agencies, or has heard employees, members or associates express 7 concerns about the confidentiality of the fact of their communications with Plaintiffs. Those 8 Plaintiffs who operate hotlines have observed a decrease in calls to the hotlines and/or an increase in 9 callers expressing concern about the confidentiality of the fact of their communications. Since the l 0 disclosure of the Associational Tracking Program, Plaintiffs have lost the ability to assure their 11 members and constituents, as well as all others who seek to communicate with them, that the fact of 12 their communications to Plaintiffs will be kept confidential, especially from the federal government, 13 including its various agencies. This injury stems not from the disclosure of the Associational 14 Tracking Program, but from the existence and operation of the program itself. Before the public 15 disclosure of the program, Plaintiffs' assurances of confidentiality were illusory. 16 17 77. For instance, these specific Plaintiffs experienced the following: (a) Plainitff First Unitarian has a proud history of working for justice and 18 protecting people in jeopardy for expressing their political views. In the 1950s, it resisted the 19 McCarthy hysteria and supported blacklisted Hollywood writers and actors, and fought California's 20 'loyalty oaths' all the way to the Supreme Court. And in the 1980s, it gave sanctuary to refugees from 21 civil wars in Central America. The principles of its faith often require the church to take bold stands 22 on controversial issues. Church members and neighbors who come to the church for help should not 23 fear that their participation in the church might have consequences for themselves or their families. 24 This spying makes people afraid to belong to the church community. 25 (b) PlaintiffCalguns Foundation runs a hotline for that allows the general public 26 to call to ask questions about California's byzantine firearms laws. It has members who would be 27 28 very worried about having their calls taped and stored by NSA/FBI when they're enquiring about 16 FIRST AMENDED COMPLAINT CASE NO. l 3-cv-3287 JSW 1 whether firearms and parts they possess are felonious in California. It has a phone number 2 specifically so people or their loved ones can call from jail becaues Californians are often arrested 3 for actually innocent possession oruse of firearms. 4 (c) PlaintiffNLG notes that much ofits work involves cases (some high profile) 5 involving individuals who have been charged with aiding terrorism or who have been monitored by 6 the FBI and Joint Terrorism Task Forces for their political activism. Knowledge that its email and 7 telephonic communications may likely be monitored has resulted in restricting what its employees 8 and members say over the telephone and in email about legal advocacy and work related to NLG 9 litigation or legal defense committees. In several instances, it has had to convene in-person meetings 10 to discuss sensitive matters. One example is its "Green Scare" hotline for individuals contacted by 11 the FBI, either as targets or in relation to environmental or animal rights cases. NLG immediately 12 advises Hotline callers that the line may not be secure, asks limited information before referring 13 callers to specific NLG attorneys in their geographic area, and does not keep notes or records of the 14 calls. One foundation funder asks for records of Hotline calls, but in response the NLG can only send 15 general examples of the types of calls it receives. (d) 16 Plaintiff Human Rights Watch conducts research and advocacy such that its 17 effectiveness and credibility depend heavily on being able to interview those with direct knowledge 18 of human rights abuses, be they victims, witnesses, perpetrators, or knowledgeable bystanders such 19 as government officials, humanitarian agencies, lawyers and other civil society partners. Because 20 this type of research and reporting can endanger people and organizations, our stakeholders21 including even our researchers and/or consultants--often require us to keep their identities or other 22 identifying information confidential. HRW has staff in these offices who talk to the above- 23 mentioned types of stakeholders by telephone to conduct research. HRW is concerned that many of 24 these stakeholders will have heightened concerns about contacting us through our offices now that 25 we are aware the NSA is logging metadata of these calls. This impairs HR W's research ability 26 and/or causes HRW to rely more on face-to-face encounters or other costly means of holding secure 27 conversations. 28 17 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW (e) Plaintiff Shalom Center's Executive Director, Rabbi Arthur Waskow, was 2 subjected to COINTELPRO activity (warrantless searches, theft, forgery) by the FBI between 1968 3 and 1974. He took part in a suit against the FBI and the Washington DC police (Hobson v. Wilson) 4 for deprivation of the "right of the people peaceably to assemble." Rabbi Waskow won in DC 5 Federal District Court and the part of the suit that focused on the FBI was upheld in the DC Circuit 6 Court of Appeals. The result of this experience is that he has been very troubled and frightened by 7 the revelations ofwarrantless mass searches of telephone and Internet communications by the NSA. 8 For several weeks, as the revelations continued, Rabbi Waskow realized the likelihood that the 9 organization he leads, the Shalom Center, and he were under illegitimate surveillance and 10 because of its involvement in legal and nonviolent opposition to US government policy in several 11 fields -possibly worse. This realization made him rethink whether he wanted to continue in sharp 12 prophetic criticism and action in regard to disastrous public policies. Rabbi Waskow had trouble 13 sleeping, delayed some essays and biogs he had been considering, and worried whether his actions 14 might make trouble for nonpolitical relatives. Rabbi Waskow certainly felt a chill fall across his 15 work of peaceable assembly, association, petition, and the free exercise of his religious convictions. 16 COUNT I 17 Violation of First Amendment-Declaratory, Injunctive, and Other Equitable Relief (Against All Defendants) 18 19 20 21 22 23 24 25 26 27 28 78. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this complaint, as if set forth fully herein. 79. Plaintiffs, their members, and their staffs use telephone calls to communicate and to associate within their organization, with their members and with others, including to communicate anonymously and to associate privately. 80. By their acts alleged herein, Defendants have violated and are violating the First Amendment free speech and free association rights of Plaintiffs, their members, and their staffs, including the right to communicate anonymously, the right to associate privately, and the right to engage in political advocacy free from government interference. 81. By their acts alleged herein, Defendants have chilled and/or threaten to chill 18 FIRST AMENDED COMPLAINT CASE NO. l 3-cv-3287 JSW the legal associations and speech of Plaintiffs, their members, and their staffs by, among other 2 things, compelling the disclosure of their political and other associations, and eliminating Plaint~ffs' 3 ability to assure members and constituents that the fact of their communications with them will be 4 kept confidential. s 82. Defendants are irreparably harming Plaintiffs, their members, and their staffs by 6 violating their First Amendment rights. Plaintiffs have no adequate remedy at law for Defendants' 7 continuing unlawful conduct, and Defendants will continue to violate Plaintiffs' legal rights unless 8 enjoined and restrained by this Court. 9 83. Plaintiffs seek that this Court declare that Defendants have violated the First 10 Amendment rights of Plaintiffs, their members, and their staffs; enjoin Defendants, their agents, 11 successors, and assigns, and all those in active concert and participation with them from violating the 12 First Amendment to the United States Constitution; and award such other and further equitable relief 13 as 1s proper. 14 COUNT II IS Violation of Fourth Amendment-Declaratory, Injunctive, and Equitable Relief (Against All Defendants) 16 17 18 19 20 21 22 23 24 25 26 27 28 84. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs 1 through 66 of this complaint, as if set forth fully herein. 85. Plaintiffs have a reasonable expectation of privacy in their telephone communications, including in their telephone communications information. 86. 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, including, but not limited to, obtaining per se unreasonable general warrants. Defendants have further violated Plaintiffs' rights by failing to apply to a court for, and for a court to issue, a warrant prior to any search and seizure as guaranteed by the Fourth Amendment. 87. Defendants arc now engaging in and will continue to engage in the above-described violations of Plaintiffs' constitutional rights, and 19 arc thereby irreparably harming Plaintiffs. FIRST AMENDED COMPLAINT CASE NO. I3-cv-3287 JSW Plaintiffs have no adequate remedy at law for Defendants' continuing unlawful conduct, and 2 Defendants will continue to violate Plaintiffs' legal rights unless enjoined and restrained by this 3 Court. 4 88. Plaintiffs seek that this Court declare that Defendants have violated their Fourth 5 Amendment rights; enjoin Defendants, their agents, successors, and assigns, and all those in active 6 concert and participation with them from violating the Plaintiffs' rights under the Fourth 7 Amendment to the United States Constitution; and award such other and further equitable relief as is 8 proper. 9 COUNT III 10 Violation of Fifth Amendment-Declaratory, Injunctive, and Equitable Relief (Against All Defendants) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 89. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs 1 through 66 of this complaint, as if set forth fully herein. 90. Plaintiffs, their members, and their staffs have an infonnational privacy interest in their telephone communications infonnation, which reveals sensitive infonnation about their personal, political, and religious activities and which Plaintiffs do not ordinarily disclose to the public or the government. This privacy interest is protected by state and federal laws relating to privacy of communications records and the substantive and procedural right to due process guaranteed by the Fifth Amendment. 91. Defendants through their Associational Tracking Program secretly seize, collect, acquire, retain, search, and use the bulk telephone communications information of Plaintiffs, their members, and their staff without providing notice to them, or process by which they could seek redress. Defendants provide no process adequate to protect their interests. 92. Defendants seize, collect, acquire, retain, search, and use the bulk telephone communications information of Plaintiffs, their members, and their staff without making any showing of any individualized suspicion, probable cause, or other governmental interest sufficient or narrowly tailored to justify the invasion of Plaintiffs' due process right to infonnational privacy. 93. Defendants seize, and acquire the 20 bulk telephone communications infonnation of FIRST AMENDED COMPLAINT CASE NO. l 3-cv-3287 JSW Plaintiffs, their members, and their staff under, inter alia, section 215 of the USA-PATRI OT Act (50 2 u.s.c. § 1861). 3 94. On information and belief, Defendants' information seizure, collection and acquisition 4 activities rely on a secret legal interpretation of 50 U.S.C. § 1861 under which bulk telephone 5 communications information of persons generally is as a matter of law deemed a "tangible thing" 6 "relevant" to "an investigation to obtain foreign intelligence information not concerning a United 7 States person or to protect against international terrorism or clandestine intelligence activities," even 8 without any particular reason to believe that telephone communications information is a "tangible 9 thing" or that the telephone communications information of any particular person, including l 0 Plaintiffs, their members, and their staff, is relevant to an investigation to obtain foreign intelligence 11 information not concerning a U.S. person or to protect against international terrorism or clandestine 12 intelligence activities. 13 95. This legal interpretation of 50 U.S.C. § 1861 is not available to the general public, 14 including Plaintiffs, their members, and their staff, leaving them and all other persons uncertain 15 about where a reasonable expectation of privacy from government intrusion begins and ends and 16 specifically what conduct may subject them to electronic surveillance. 17 96. This secret legal interpretation of 50 U.S.C. § 1861, together with provisions of the 18 FISA statutory scheme that insulate legal interpretations from public disclosure and adversarial 19 process, fails to establish minimal guidelines to govern law enforcement and/or intelligence seizur~ 20 and collection. 21 97. The secret legal interpretation of 50 U.S.C. § 1861 used in the Associational Tracking 22 Program and related surveillance programs causes section 1861 to be unconstitutionally vague in 23 violation of the Fifth Amendment and the rule oflaw. The statute on its face gives no notice that it 24 could be construed to authorize the bulk seizure and collection of telephone communications 25 information for use in future investigations that do not yet exist. 26 98. By these and the other acts alleged herein, Defendants have violated and are 27 continuing to violate the right to due process under the Fifth Amendment of Plaintiffs, their 28 21 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW members, and their staff. 2 99. By the acts alleged herein, Defendants' conduct proximately caused harm to Plaintiffs. 3 100. On information and belief, Defendants are now engaging in and will continue to 4 engage in the above-described violations of Plaintiffs' constitutional rights, and are thereby 5 irreparably harming Plaintiffs. Plaintiffs have no adequate remedy at law for Defendants' continuing 6 unlawful conduct, and Defendants will continue to violate Plaintiffs' legal rights unless enjoined and 7 restrained by this Court. 8 l 01. Plaintiffs seek that this Court declare that Defendants have violated their due process 9 rights under the Fifth Amendment to the United States Constitution; enjoin Defendants, their agents, 10 successors, and assigns, and all those in active concert and participation with them from violating the 11 Plaintiffs' due process rights; and award such other and further equitable relief as is proper. 12 COUNT IV 13 Violation of 50 U.S.C. § 1861-Declaratory, Injunctive and Other Equitable Relief (Against All Defendants) 14 15 16 17 18 19 20 21 22 23 24 25 26 102. Plaintiffs repeat and incorporate herein by reference the allegations in paragraph 1 through 66 of this complaint, as if set forth fully herein. 103. The business records order provision set forth in 50 U.S.C. § 1861 limits Defendants' ability to seek telephone communications information. It does not permit the suspicionless bulk seizure and collection of telephone communications information unconnected to any ongoing investigation. It does not permit an order requiring the production of intangible things, including telephone communications information not yet in existence. 104. Defendants' Associational Tracking Program and the seizure, collection, acquisition, retention, searching, and use of the telephone communications records of Plaintiffs, their members, and their staff exceed the conduct that may be lawfully authorized by an order issued under 50 U.S.C § 1861. 105. By the acts alleged herein, Defendants arc acting in excess of their statutory authority and in violation of the express statutory limitations and procedures Congress has imposed on them in 27 28 50 u.s.c. § 1861. 22 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 2 106. Sovereign immunity for this claim is waived by 5 U.S.C. § 702. 107. Defendants are now engaging in and will continue to engage in the above-described 3 acts in excess of Defendants' statutory authority and in violation of statutory limitations and 4 procedures of 50 U.S.C. § 1861 and are thereby irreparably banning Plaintiffs. Plaintiffs have no 5 adequate remedy at law for Defendants' continuing unlawful conduct, and Defendants will continue 6 to violate Plaintiffs' legal rights unless enjoined and restrained by this Court. 7 I 08. Plaintiffs seek that this Court declare that Defendants have acted in excess of 8 Defendants' statutory authority and in violation of statutory limitations and procedures of 50 U.S.C. 9 § 1861; declare that Defendants have thereby irreparably banned and will continue to irreparably 10 harm Plaintiffs; enjoin Defendants, their agents, successors, and assigns, and all those in active 11 concert and participation with them from acting in excess of Defendants' statutory authority and in 12 violation of statutory limitations and procedures of 50 U.S.C. § 1861; and award such other and 13 further equitable relief as is proper. 14 COUNTV 15 Motion For Return Of Unlawfully Searched And Seized Property Pursuant To Federal Ruic of Criminal Procedure 41 (g) 16 17 18 19 20 21 22 23 24 25 26 27 28 109. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs I through 97 of this complaint, as if set forth fully herein. 110. This Court has civil equitable jurisdiction under Federal Rule of Criminal Procedure 4l(g) to order the return of illegally searched and seized property. 111. Defendants, by their Associational Tracking Program and their bulk seizure, collection, acquisition, retention, searching, and use of the telephone communications infonnation of Plaintiffs, have unlawfully searched and seized Plaintiffs' telephone communications information. Plaintiffs are aggrieved by Defendants unlawful seizure and search of their telephone communications information. 112. Plaintiffs seek an order directing the return of their telephone communications information in the possession, custody, or control of Defendants, their agents, successors, and assigns, and all those in active concert and 23 participation with them. FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW PRAYER FOR RELIEF 2 WHEREFORE, Plaintiffs respectfully request that the Court: 3 I. Declare that the Program as alleged herein violates without limitation Plaintiffs' 4 rights under the First, Fourth, and Fifth Amendments to the Constitution; and their 5 statutory rights; 6 2. Award to Plaintiffs equitable relief, including without limitation, a preliminary and 7 pennancnt injunction pursuant to the First, Fourth, and Fifth Amendments to the 8 United States Constitution prohibiting Defendants' continued use of the Program, 9 and a preliminary and pcnnanent injunction pursuant to the First, Fourth, and Fifth IO Amendments requiring Defendants to provide to Plaintiffs an inventory of their 11 communications, records, or other infonnation that was seized in violation of the 12 First, Fourth, and Fifth Amendments, and further requiring the destruction of all 13 copies of those communications, records, or other information within the possession, 14 custody, or control of Defendants. 15 3. permitted by law. 16 17 Award to Plaintiffs reasonable attorneys' fees and other costs of suit to the extent 4. Order the return and destruction of their telephone communications information in 18 the possession, custody, or control of Defendants, their agents, successors, and 19 assigns, and all those in active concert and participation with them. 20 21 22 23 24 25 26 5. Grant such other and further relief as the Court deems just and proper. DATED: September 10, 2013 Respectfully submitted, Isl Cindy Cohn CINDY COHN LEE TIEN KURT OPSAHL MATTHEW ZIMMERMAN MARKRUMOLD DAVID GREENE JAMES S. TYRE ELECTRONIC FRONTIER FOUNDATION 27 28 24 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 2 3 4 5 6 RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE THOMAS E. MOORE III THE MOORE LAW GROUP RACHAEL E. MENY MlCHAEL S. KWUN BENJAMIN W. BERKOWITZ KEKER & VAN NEST, LLP 7 ARAM ANTARAMIAN LAW OFFICE OF ARAM ANTARAMIAN 8 Attorneys for Plaintiffs 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW JURY DEMAND 2 Plaintiffs hereby request a jury trial for all issues triable by jury including, but not limited to, 3 those issues and claims set forth in any amended complaint or consolidated action. 4 DATED: September IO, 2013 Respectfully submitted, 5 Isl Cindy Cohn CINDY COHN LEE TIEN KURT OPSAHL MATTHEW ZIMMERMAN MARKRUMOLD DAVID GREENE JAMES S. TYRE ELECTRONIC FRONTIER FOUNDATION 6 7 8 9 lO 11 12 13 14 15 16 17 RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE THOMAS E. MOORE III THE MOORE LAW GROUP RACHAEL E. MENY MICHAELS. KWUN BENJAMIN W. BERKOWITZ KEKER & VAN NEST, LLP ARAM ANTARAMIAN LAW OFFICE OF ARAM ANTARAMIAN Attorneys for Plaintiffs 18 19 20 21 22 23 24 25 26 27 28 26 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW Case3:08-cv-04373-JSW Document186-4 Filed03/10/14 Pagel of 3 Exhibit C Exhibit C UNITED STATES DISTRICT COURT 1 NORTHERN DISTRICT OF CALIFORNIA 2 SAN FRANCISCO DIVISION 3 4 5 6 7 8 ) CAROLYN JEWEL et al., ) ) Plaintiffs, ) v. NATIONAL SECURITY AGENCY et al, 9 Defendants 10 ) ) ) ) ) ) Case No. C:OS-cv-4373-VRW Chief Judge Vaughn R. Walker ) ) 11 12 [PR8P88BB)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 Regording Preservotlon of Evidence Jewel et aL v. National Security Agency et al., Cose No. 08-cv-4373-VRW 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 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 serves to identify, locate, or link such material, such as file inventories, file folders, indices and metadata, is also included in this definition. C. "Preservation" 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 ifthe 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 (I) 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. Case3:08-cv-04373-JSW Document186-5 Filed03/10/14 Pagel of s Exhibit D Exhibit D 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 IN RE: MDL Docket No 06-1791 VRW 12 NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS 13 LITIGATION 14 15 16 ...0 ~ 17 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 28 Doc# 365, 388, 390. Upon careful review of the non-confidential papers submitted in support of and in opposition to the motion, the court asl£1ttOB:fli-011.:mn.nmygw OOooomantlBti-5 AiietllDll/0.6/aooiPageagat g of 4 1 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 cu ·e t: iS ==-=cu ~ uu -"'"'2 10 district court's decision in Al-Bara.main 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, E 15 and any employees, agents, contractors, carriers, bailees or other -g ~ 16 non-parties who possess materials reasonably anticipated to be ~ ,S 17 subject to discovery in this action. 18 obligation to exercise efforts to identify and notify such non- .~ a. 0 t: '.E s.~ Ill ~ 0 .5 cu Cl.l .Cl :::Z & The duty extends to documents, data and tangible things in Counsel are under an 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 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 definition. 8 C. "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 1 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 tU IO 11 =:.: tU 12 0 13 t:~ uu .... ~ ~ ·--;; ·.s.... 14 ~ E 15 00 "O 0 16 ~ 17 u a. ·- 0 0 Q.~ WJ :! ~ '€ =-s ~z ;:i ...0 ""' VAUGHN R WALKER United States District Chief Judge 18 19 20 21 22 23 24 25 26 27 28 4 Case3:08-cv-04373-JSW Document186-6 Filed03/10/14 Pagel of a Exhibit E Exhibit E ··· · ' · · · ... .. Cas,~3:08-cv;.,04~73..:Jsw · DpcumenU86-6 Filed03/10/14 Page2 of a ·. .. C!ridy.¢c:;hri <¢i~dy@~~~(frg~: .. ,.· . . .. .:· fV!arch 1O, 2014 8:35 AM To:: 11 BE!rm~n,. M~rci~· (CIVt_ <Marci!=l.Berman@.usdoj.goV> . · Cc: "~i.lligan,. .Jfrii ·{Cl\/)~ ·~am~.s,Giliigan@u.sdoj.g6V>, 11 wiebe@pacbell.net!' <Wie.be@'.p.acbeJrnet>., .Stephanie Shattuck.<steph@eff.org>, "Thonias·E. Moore Ill {tmoore@~oo,r~la~~ani.s<Jm}" <tmoor~@rrioorelawteam.com::;., "Patton, Rodney {CIV)" . <~odney~Pa~pit~usc;toj;go~. "Dearinaer,' B~an (CIV)" <Bryal"!.Dearinger@usdoj.goV>, 11 llann · Maazel11 <imaazel@ecbalaw.com> . · · Re: Preseiniatlciri ·of Evidence .in Jew~I NSA and First Unitarian Church v. NSA ·satlid.tY: .rj:Slgn~d (cindy@eff.org) .· .· · · · . : ...... ····· .... " . . : .... ··-. ··.····~ "·:. :,. ·: ·~·. -· -. ....... :.. :.. M.' v. '' ; ' . Dear. ~~cy,.: :.·. · · .. ·.· .' r·a:m, ·socy·~~t w.e ·~d n9~ h~~·fl'.o~ you ~ter my.message on· Saturday asking for further · : clarifiC.~no~:·a~qµU·~ow the government plans to ensure that it.does. not spoliate evidence. . ·U~ess we ~~eat frpm y~nl. by noon Galiforni,a time today that the government does not ·intend··to··qestfoy.·eV14.eQce.th~t.may be likely to..lead fo the discovery:of:ad.missible evidence unde:i.. the cia.llni(raised •in· J'ewel ·an,CI First Uhitarian cases,. we intend. to·:seek a TRO from ·JUdge White~: ;. .·.. . · · · . ··: . . . .. ,.. .. .. . J ! I I . ~·. . · : Piea~~ ~~··a;·.~~~ ~~.-if~~~i'.'dtik~·i~ .discuss·thi~ furthe~. My cellphone 'is 415-307~214s. ·We·have 4e~ire :to.elevate this.in~o afremergency matt~r before·the court but believe we .. . ..nave no·.ch.ofoe:based actions.and statements so far. . .·· ' . . . . .l,lpOn·the govemment!s .. . . ··.· . .. ·Cindy ' ·c · :. ·. :. :·: ~ . · .· , . nq .'. . · . ·:o .··:··~·~~::~bi4. \l~:i:i·:·43 ·~~ cfudy c • •• • • ·• . .. ,·~' •••• !• • ~ ••. : ·: •• • . • ~ : : . ' . • • : . • · <dndv(werr:or'.g> ·Wt-o~e:."· ·: •• ~troubling '...A~:y9ukh · ;·both~ewel v~· N "·~d First Unitarian· Chutch y. NSA ari.se fro~ the e record·s, a:s did Hepting and the other MDL cases ·:befor · .~~.(al.orig with additional i- · rination at issue iri Jewel that Iriust also be . pre ·ed)• N~ither:'tl:ie coniplai~ts no ·e protective order mention the "President's , .. $ · ~i.llance . Piogram'.' ·~a:·your reference. .that'program is confusing...The clai~s arise · orri the:act~at activity of bulk c·olle~tion state ongoing claims regardless of the legal or ·ex~~utive.:~u~ority und~r which th~ gave ent claims,_it conducts that ·activity at ·any point)n.tiin~: .. -.~ .::·........· . : ... · . . . .- · . . .ongoing.~ .• .. ' . . >· . :.· ... ·. . ' '· .. . ..... :·· .- •• ; ... i • • ~k c·one~tion ·ar teleph ' i .' : . .· \. • ·.:·: 'i ! .• : I; • ·• :· • . ...... . .· . . ',' · tq us, as is your notice to the.court in First ' ....... : . . .. . : .... ., ~ .. ~ '. - • " I· . I ·. Case3:08-cv-04373-JSW DocumenU86-6 Filed03/10/14 Page3 of a .. ' ... ·Cindy Qohn. <Cind·y~eff.org; · · ·· .. · . · ·· . March 8, 201·4 11 :43 AM • . Tq::'~B.eriT1ari;·M~pia (CIVr<Marcia;Berm8"@usdoj.goV> . . ,-:;,_,.. 1 11 .. C~:·"~illi~~n, ~im.(~IVt <James~Gilligan@usdoj.goV>, ' wieb.e@pacbell.riet <Wiebe@pacbe ·· Stephanie Shattµ~k <$teph@eff.org>, "Thomas E. Moore Ill (tmoore@moorelawteam.com)" -~~ · <tn:io.ore.@!mobr~law:tearn,corn>,'. 11 Pa:tton 1 Rodney (CIV)" <Rodney.Patton@usdo).goV>, 11Deaririger, Bryan·(CIV)"«Bryat:i.Dearing~r@usdoj:goV>; "llann M~ Maazel" <imaazel@ecbalaw.com> · Re: .Preserya~l~n·of:Ev~di:ln~~.in Jewel v. NSA Se~nty: ~-Sign~ (cindy@eff.. org) · ,. . . .·. ·. . . . . . . · ... . DearM~cy, .. · . :: ·, ', : Yqur·r¢sp~:Qse is co,rtfus1ng a,nd. troubling to Ul:1, as is youz: notice to the co~rt in First Ut_ritarii:4i ·Uiat you. ~ntend to 'begin to destroy call detail records on Tuesday, March 11, .wJtlch i~j~st:.t\Vo ~usip.~ss days.from now. To. b.e cl~ar, the qnly court that relieve the ,goY~mm-~I'lfi:~f its ·oQlig~tions-to :preserv~ evide~ce in our' ca:ses 1 regardless of the basis·.for those~ obugations; is the Northern District of California and it has not done so. This is true can · ·· in~J~wei_~ci"in·~s:t:".uriitariari.: ·_ · · , · · you~~~~ ·both·J~w~lv~_NSA ~d First Unitarlan Ch~rcJ:i v. NSA a,rise from the ongoing · · .b~.c6ll~ction .oft~lepho~e records, ~s did. l:feptihg and the·.<?ther MDL cases before that .(along :wi'th additional.information at "issue in.Jewel that. must·also be preserved). Neither . :" A_l:1 . the e·OJµplajiits p.or:th~ prot~~tive. order mention the ,;President's Surveilfa.rice. Program" so . . .yo?f';.r~f.erence-_to -~~ ·:pr0gram..~s-,con.f~s~g·: The _cl~s ·arise:fr_oin .the ·a~tual ~ctivity of .·..-_ ..b~ .~<?µeqt:i-0~'.~,9~· s~E!J.~~:.-Ongoirig ·<?la:inis .reg~dless ·of j:he legal or exe~utive a~ thority . under, whlcli"#,le 'goyerririier)t c~s-it conduets that_ a~tivity.~t any·po_int in .time . . -·.. ... ; ...... \. . :': . . . . . . . . . . ·.. .·.. Mc;>~~oye~;::We·do·nat µ~deis(~Ci-l10w tile ·presei:Vaµori. orci~i--41·p1ace fu:Je~el (and.,_._ · Siiu~ert): ~:foe~-.no(aI~o inelude :uie preservation of the records at issue. mFirst Unitarian . ..- WC'i.f!ii,tber:do qot ·u_rideJ:"sta'.nd.w.hy the government failed to infonn ~e FISC ofyour duties · irt.J~wel arid Shuberfsince they·require you .to preserve the same records or why it waited ...un~lju.st:bef()r~_t;lie·:dead~~. to:se~kdarity-~n this i~sue, ~esu.lting in ail apparent .."em~rgency ..that.could easily have. been avoided. . . . . .: . ·.. . .. . si.tuatiori . . . . . . : ·. _. w~·-~·~~~k·_~c~tld~ .from J.udge White-on ~s:_but we urge_you ~ot t~ de~troy any · ·. records i:el~Va:Iit tQ o.W.. dahns in ~i-µter case until w~ can do so. Please do provide us with . ·.'full.information so. that we"<~an narrow'the i~sues before the court. Frankly, youd~mail to ... _~e.y¢st~4ai ancUil~g in tJte lfii'st . .Uriitaria.tt case yesterday raise mor~ cpp.c~ms, not less, .. · .; . . . "that·:tli.e govetiiine.nt·has not"been fulfµling•its duties to preserve relevant evidence in either . · · · . case. Pfease·:ziote ·&at we.will seek ·a11 a.v.ailable remedies if it turns out that the · govetii:tne.nt-J;l:a~·n9(abided by it;; d\ities.. . .. . .. . .· .:. - .. ·. : . . . : _-. ·.. . . · ·. ··: · c~nciy . . .•' .. . . ·.. . ....... .· " ... ... :: . ...... . . . . . ... .. : -· .: . : .: .. ......... · ·.. ... .·' ···-.· .. . . .. .. ·.._, ·.....: .... : .. :. ~: ... ~ . '• ··: .·- _ . . · · ·· · · · Case3':08';;cv-Q4373~JSW Qocument186-6 Filed03/10/14: ·Page4 of .: . a . ·: On.M~ 7~_;2014,· ai 6:.14 PM, "Berm~, Marcia (CIV)" .. <Marcia.Berrnanr@usdoj.gov> wrote: qndy--1~ ~esponse to your.questions regardfng the preservation orders in Jewel (13nd the prior . H~ptl~g dec_is_io:r:it t~e Government's niotioilto the FISC, and the FISC's. decision today, addressed the rec~nt iitig~tion ~hatrenging the FISC-authorized telephony meta data collection under Section ii's·-.IJtigatip_n as to which the~re are no preservation orders. As·we.indicated last week, the Government's moti.on did not address the·pend.ing Jewel (and Shubert)' litigation because the district C:olfrf had preyiously entered preservation orders applicable to those cases. As we also indicated, -since the entry qfthose ·orders the.Government has complied with our preservation. obligations in those-cases. At ·the.ti·m.e the preservation issue was first litigated in the MDL proceedings in 2007, the Government s·ubmitted a classified ex parte, in camera declaration addressing in detail the steps ta.ken t.o.mee.t our pn:1servatior;i obligations. Because the activities undertaken in connection with tbe Pre$i.dent's.su..V~ll!an_ce·i>rogram (PSP) were not de.classified until December 2013, we were not . . abie to '¢onsi.Jlt. with, you.-~reviously about the specific preservation steps that have been taken with : ... respect to ~~e JeW~l.litigation:. 'However, th~ Government described for the district court in 2001 : how i1: was ineetl.ng hs preservation obligations, including with respect to the lnformation concerning ... the PSP·aC:~i~iti~s declassified las.t December., We have been working with our clients to prepare an ... u'ndassified..sum"m.ary of.the 'preservation steps described to the court in 2007 so that we can . ·address :Y.our questio~$·in·~n orde.rly fashion whh JU~ge White, if you continu·e·tcr believe that is necessary. )vlarCv... ·. .·. · Than~S:-~ . . . ~ ;! . ....:....... : '. ,,._:_: ....... ............ __,.,,, ... -·........ : ..:~~---- .. ~-~--·- ... ···--'-···---- ...... ~ ,r_ • •' · · ··froln:..aeiman;-°Martia .: ·sent: ·Friday,. March o7; :2014. 6: 14 PM . · ro·::Cinqy·Qiho .. , . ·. . . .. · · · . ... cc~ 'Gilliga~; Jim··(cry); wiebe@QAcbell.net; Stephanie Shattuck; Thomas E. Moore III ·(tmoore@iTIOorelawteam.c:Om); Patton, Rodney.(CIV); Dea.ringer, Bryan (CIV); Ilann M. Maazel · Subject: ·FW: pre5erv~tlon of' EvidE;mce in Jewel. v. NSA . . . · '. ...... ·. ... : . . . ... . . .~ ·-·....:._..:._,_...;~---··""---~.::.:.:-.---·. .·-·--M~. . . ... ~ ... caV):· ·: · · . ·, . •, .. ..... · . · . .. "-'· .. · ; ,,_ . . .·; : :" · ·Cin~f~ we'il ge·t back".to you. on.thistoday, hopefUlly wit.hin an hour. . . .·. . . . . . . . . . .. . . . . . .:'ir.~~= ~~~-~9t/;0~~~ ·(~Y)·.-. . ····-:·~--7·:.'·::_ ~ •' ........................... _.• ·--·-. · ..$enti Fri.day,-. Mardi. 0'1,. 2014 .4:39. PM, ·· · To: Berman/Marcia (Cl\i) . . su.bjeCt~· f'N: ·Preservation of Evidenc~_in Jewel v. NSA ,; • , . >.' • • '. 'v~ ·:.. • •• ~ ••· ' :·• • ,• , , , , ~ • ., F.'il •.: • .;·.-__.:. ._;___. . -.-~-~:.-~:::....-.:! :-..·-·-··-· -- .... , '. ·- Fi:~m:-:cindy ·~lin-rma.iltwa.ridy@eff.orql . ·$ent:ff.iday;'March 07,.2014. 4:37 PM : ri •• ,, .. Thanks-:- Marcy ..... , -·-··· ..• :..•• :~·-·· ··-------- .•.. ·"--··· -· ..••• • ...... To~··Gilllgan,:Jlm (OV). :. . · . . .- · cc::Rick:Wielfo~·StephanieShattu<::k; Tliomas'E. Moorelll; Patton, Rodney (CIV);·oearinger, Bryan (CIV); ·· ·nanri ,M/M~are1 · .... : . · ·. ·.. · ·. · . · . Sl:i.bj~ct=:·~.e: ~~riation ·of Evidenee in Jewel v_.. _NSA. . '.;" . . . . '. :·. .. . . .. . . ': ~. ',-. . '·. •' ·:_.-_: ·. ·.:· . . . . ,: ':· .....· ... .. .,•'.· · · . · · · · .· · . ·· .. :<.~' :· '. .. ·.·..·c~~~:oa-c~-<;J4373~JSW .· " · ... :· . Oocument186-6 · Filed03/10/14 Pages of a ...· HUini,. I assul:Tie·you;ve. ~een the FlSC Order. Can you please explain hmv the court could be under the. misir.npressiqn that there are·no_preservation orders for the telephone records infom1ation in pface gi:ven the l~istory-.apewel and Hept~ng· before i~? As you m.ight expect. this i~ quite alarn1ing to.ti~~· · ·. · ·... · · . . .·we-~~iii be:t'ili~1g ~omethfog. shortly and I want-to be -suie that w~ correctly state your position. 'Cindy .Senf from..my. phone On·feb.28', Cohn <cindy@eft:org> wrote: .. · 2914~ at S: 17. PM~. Ci.ndy . :.··. ·wei1·. ~~~it'a bi~ ·. . assum·i~g:this doesn't·d1:ag 0 · .. •. . <>: ·.9iridy .· .·. ·. :... 011 too.long. Thanks for responding. . ·: .: . . ·. ··s~ni·fi.~om:~~y:phone .. :. ·::··>. .on ·f'.~Q.;2s~· ·2o·i_4~: at ·s ;26 PM~ "Gilligan, Jin1 (CIV)° <1am es.Gill ig~@usdoj .go~> '• ... . . . : . . wrote:·.. :..·.. .. ·.... ... : . .. ....~.. . ·: .' . . :. :<::<·:~i·~·~y,'· .<>. : ... ~ . . .. . . . . .. . . . . . ·: . . . .. . •. . . .: :> ·· We ~i~·r:ec;eive y6ur email about preservation, ~nd I ~anted to get back to . ·.:. ·.· ·. :. ,·;you.before the.week ended to Jet you know that we will need a.bit more ". ·,. ·tjm~ ~~'.pr~p~r·e· a.-.m~~e complete: response than we will be.able to do. by· .... :·. ·: _. Mqnday."~so ·1 wquld a_sk that y(>u forbear from filing anything with the . . . . . ·.... FISC~'.or'Judge"White, imtil we:ha\(e forther'opportUl'.lity to confer. )~.s you · -~ ··: ., · 'n9ted)e~el and Shubert are rlotspeiifically.me·ntioned in the·motion.we .. . : .' ·.· "· .. ".... til~d with th.e .FISC,:b.~t as you als0 o.bserved; the question of. preservation . . . . .: ··: .· :. ·~-- ... h·~~ alr~a·dv bee.n _litigat~d In those' cases; ·and tn·e court issued SE'.!parate · · " ·.· .'.: .. · ·p.~eservation ·orders that gqvern th!!!re: Many of the details surrounding . . ' .... · . "th~"i.ntelligenc~ prog~ams.in question remain classified, however,. and so · ··· . : :: ·:.)h~re'.remain. llmitatio'ns on ou·r ability to confer with you concer.ning our . . . .:. . .· ..... com~h~~c;:~ vii"th those orders.". . .. : .. . .··. ·At.thJs.poi~t I ~·eed to .~onsult further with my clients fo ~scert.ain. how. ·· .· mti!Zh _informatiqn"l-can convey to you·about the Government's · . · . . . . . ... ·pres~rvation efforts without revealing classified information:. I simply . ·: '.: . <··....::. won't be:·in. .3 position to . provide .you with a· detail~d response to your . . . . . . . ... . . . .. ... . .... :... .' ' ~ ' ...... . ·.,. " ~ .. ··.:.·"·. .:.. . ; ' ~ . ' I. . 1· . . . Casea:oa.:cv-04~73-JSW Document186-6 · Filed03/10/14 Pages of a in . Jnqufry by_.Mond·ay, as you·reque.st, part: because of the work that remains <;m .our reply to your brief on the court's four questions, and in part beca1,.Jse I w.\ll'.be out ohhe office on Moriday and Tuesday for a family · -ski trip·; (Also,· as.you observed, Marcy is presently diverted by another matter.. ) "~,ut we will do our besno address your questions by the middle .of next week . . . JG . james J. Gilligan : ~pedal ~ltlgation Counsel ·. CiV.il Division; Federal P.rograms Branch . ·.··u.s: Dep-~rtment 'of Justice · : · . . P.O. Box 883 W~stiingt~n; D.C. ·20044 . ., ···.. · :... Tel:._ 2.o.2~514:-3358 .. .... ··.. . ;. f . . . .•. .:· ···-· -~~c:;~:-~Ci~d~ Coh~ m~iitc;:dndy@eff.org] . : :· Serit: Fri~ay, Febru~iY 28, .2014 5:54 PM . . ·. To:· Gilligar:ii· Jim {OV) . ., .. · · Cc:. Rick Wiebe; Stephanie·Shattuck; Thomas E. Moore III; Patton, Rodney .. ·:. " ..-· " :: (OY);:Dearil)ger, Bryan (CIV); nann·M. Maazel · · · · . .. ·. Subject; Re: Preservation ofEvidence in Jewel v. NSA .. . ·... •. ·.:· ,. ·· :.· ...... ·. .. . .. . . . ... . . . ' . . : · . · · · · ·:: . ;~Ii.Jim~· Rodtjey"and B1-y~n~ ..... . . ·: " .....; . . ...·-:. . .-. ' >. · · ·. .··:/ljust w.ah~il ·to.cpnflrm· that you received· this and. l~arn \Vhc:n· you will · · ·. ,: . ·be, responding'. .. .:· · · · · · · · ·· . "· ;. = .. . ' .· . . .".:.. We)ire.pJanning ~o .fiie something·in the FI°SC and before Judge . __ · .. : ·:.Walker:early ne}{t week ·and.I do want to be able LO accurately convey ....." · . .' · · · . '::·your P.Osi~ion.· : · " · . . . . _....... .. ' . . .:·. . , " .· .Thri!1ks~ ·'. . ··... ..... . .. '. ··~ " . ,... ,.. ". : "·: "Cindy . > . .· ". : : " :. . ~ ·: Qn Feb 26~ ~·0'14, at, 4·:08 PM, Cindy Cohn <Cindy@eff.org> wrote: . ' ' 'I. ' ., ~ .... . ' •: ' '. '.: ~· ~ .':, '' ' ' : : : ~ ' "·'; ••• ' •• • . . • • ' • • • ' • I • • ' ·: .. ·· , . .\·; Riclc~ill :\vi-ire .you ·separate!)• about the scheduli11'g, but i wanted to· '... ".. ·. ..::ralse~01nething thalhas.confused us and to seek clm·itfoatfon .. . ·. '· · •.: .. . . . . . ,. .... " .::· .. . . j· .. ~ .·... ·... . . :': . '=., .. . . :.<. . . : ·: .· .. ·..; .. : . . . .. . ... ' .. . .. . . ·, . .. . .. ·. ' :· c~se3:o~,.c~-:o4313·_.~sw ooc\Jment186-6 · Filed03/l0/14. Page7 of a We-saw your filing in the FISC asking that the Court's current Primary .Order be amended to authc;nize the prese1:vation and/or storage of call detail. recqrds b¢yond five yeai;s based upon your duty to preserve evidence· and nl'enciotiing the First Unitarian case specifically. We do agree that the govermnent has a duty to preserve all reasonably anticipated to be suoject to discovery in this action .. We. were · .. suiprfsed, ho\vever, that you did not approach us to discuss ways that this duty could ·be met sho1t of the request you made. which \Ve read as aifowing you to preserve all of the mctadata you have collected . . . . :. ... ._ :W,e_ also:wrjt~ because, as I think you know·, the government has been ·. · ··~nd~r an :obligati01i to.pre~e1ve tele1)hone records i~ has co1Jecte9-since . ' 2006:- \vhe!Hlie cases tliat niade- tip the.MDL action in Re NSA ·were .. ·. fl~dilec:J> ·.one ·ofthose .cases. Shube1t v. Obama;. has remained . :.. ongo_ing si11_ce·_that time. 1J1ato~ligation was reinforced by an Order ,... -_ ., · . issu~4. l>y Jl;ldge ·walker in 2007 and order was specifically adopted by ..·_.tlje court.in.Jewel·v. NSA in 2009 by ajoint reque$t by the·government ·. · and the pla~ntiffs (Jewel v. NSA, Do~. 51 ). • 1. • ~.. . . ·•· . . .,· Th~s my' c_~mtuSi.011."1'!11 n.ot $Ute· why the Jewel {at~d ~Imbert) ca~es . . -w~re·riotmention~d:pr.retet~nced inth¢ request to th~ FlSC since both - · ·. ·:.-._ of.those· also contain ongoing preseryation obligations·relate<;t.to the . "=.. ·bulk ·phpneTecords·collectio11 by the NSA. Since they were 1iot, it also : ··raises·the.-questfon of \vhether and how the government has beei1 ··· .. · .. ,. · abiding; by ,its <?bligation tp preserve evidence in those two c~es; since . . .: . ubvfously both l;tave been pending for more than five years . : .. .· . . . .. . :. . : : . . .. . . . . ' . .. . . . ··I-'Y.f~uld ~ppre~iate·a prori1pt response and clarification. I'm coilfidei1t ·· . ·:_ ·· · :. ".' tha.t·~he.:g~ver1)m~nt takes ·se.riously its· obligation to preserve _evidence :. ·, .. . · ·. :': .. '_· ·that m,ay .be re,l.evant to pend}ng litigation, but.given the situation, I .: ·: :." . .- .·.. would. ·like !l'· sped tic rcaftirination that bulk telephone records .. . :. .". · .· _c·o:ll¢cted by the,NSA.have been·presetved ~n the Jewel case and.I ··. _ . ·..... · :-· · susp:ect mujn is .ce~cel'~1ed ab~ut lhe same for Shubert. I would also ·, ·· · . ' . ·- ·request some more specific infonnatio11 about ho\\; that preseivation · : " ·. has 0£9ur_red -: similai·.to the pl~n you suggested to the FISC !n your · _-, ·motion:· . · ·· -_ . · · · ,- ·:·:I hope Y<?.U.~an provide us with a thorough response. before any .. ··, apdhioilal:phone. record.sate destroyed and hopefully by Monday. ·.. ,. :·-:~-·'··March -3.' While we're liopeful that we w~ll rece-i\'.e a satfsfactory . ' . .... . ··,·: ~-~.---r~sp.ohse, but.'ifnoti--\ve do inten~ to_rwse this question witJ?.'both the . '. . -· : . · ·..· . ·:. ·. "_.:,FISGand the .judge--W11ite. · . ' . ·.· .. . . rhanks',_..· ·.•, : . :·.'. . ... : . ·.. · ........ ·· . : . \· ....·.·: ·. . . ,·:' .. · ........ · .. . I I I I I ... . . : ' ~:. ·. I .. . ·.. '•. <.··. ;:> .~· ;c~s~3:0S~c;v-b4373-JSW . .. , . Document186-6 Filed03/10/14. · Pages of s .,. .cin.dy· .·PS: Has Marcy· gone'? I noticed that she's not on the plendings you filed last .week or on this message. · . ........................................................ . . . · CindyCohn . l.:egal Di~tor Eiectronic Frontier Foundation ·.' 81S Eddy Street · ' San FraneisCo,·CA ~4109 . .; :C41~1 .436-9333 x1os. · . ~--.:Clndy@ifl.cira . . . ~-wwvJ.ett.om : . . · . ·: Join·:eFFI. https:Hsupporters.eff.org/donate . . •'. . ' ... . ,, ·. . ' , . · • 1., ':: • • "'· ;, . . .... • : . " :. .L . • .· . .. . . . ..·: ~ ,· •. ..... •,. "• •. ' ·• •: .. ••••••··~·.••.••••••••••••••••••••••••••••••••••H••••••• Ci!J~Y Co~n. . . .·· .. L~al. Di~Sctor · . Beetr.onic Frontier Foundation ~ ; ·8~5 ~~ay·s~eE'.1.· .· ". · . : San.Fniricisco, CA' 94109 · (415):43&:~33~ x10S . •"":c1ndy®·eff.cira · -- WWYl.effom · ·· . · ·· · . .: .. ·. .. .. :: .. : .. . . . . ·, ..... ··:··:: ' . .- .. .. . .. · , .... . :.· . '• ·.. ·:. Joiri.EFF.f https:l/sup!)Orters.eff.org/donate .. ~-' . : :.. '. ....·.~: . .. : :· .. : . :·· ....... . ·: ... .. . .. .: ·~ .· . ,• .. . :' Case3:08-cv-04373-JSW Document186-7 Filed03/10/14 Pagel of 3 2 3 4 5 6 7 8 9 10 11 CINDY COHN (SBN 145997) cindy@eff.org LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303) JAMES S. TYRE (SBN 083117) MARK RUMOLD (SBN 279060) ANDREW CROCKER (SBN 291596) ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 Fax: (415) 436-9993 RACHAEL E. MENY (SBN 178514) rmeny@kvn.com PAULA L. BLIZZARD (SBN 207920) MICHAEL S. KWUN (SBN 198945) AUDREY WALTON-HADLOCK (SBN 250574) BENJAMIN W. BERKOWITZ (SBN 244441) JUSTINA K. SESSIONS (SBN 270914) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, CA 94111 Telephone: (415) 391-5400 Fax: (415) 397-7188 RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 433-3200 Fax: (415) 433-6382 THOMAS E. MOORE III (SBN 115107) tmoore@rroysclaw.com ROYSE LAW FIRM, PC 1717 Embarcadero Road Palo Alto, CA 94303 Telephone: (650) 813-9700 Fax: (650) 813-9777 ARAM ANT ARAMIAN (SBN 239070) 12 aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626 13 14 15 Counsel for Plaintiffs UNITED STATES DISTRICT COURT 16 FOR THE NORIBERN DISTRICT OF CALIFORNIA 17 SAN FRANCISCO DIVISION 18 19 20 21 CAROLYN JEWEL, TASH HEPTING, YOUNG BOON HICKS, as executrix of the estate of GREGORY HICKS, ERIK KNUTZEN and JOICE WALTON, on behalf of themselves and all others similarly situated, 22 23 24 Plaintiffs, v. CASE NO. 08-CV-4373-JSW [PROPOSED] TEMPORARY RESTRAINING ORDER Hon. Jeffi'ey S. White Courtroom 11 - 19th Floor ) NATIONAL SECURITY AGENCY, et al., 25 ) ) ) ) ) ) ) ) ) Defendants. ) ) ) ) 26 27 28 Case No. 08-CV-4373-JSW [PROPOSED] TEMPORARY RESTRAINING ORDER Case3:08-cv-04373-JSW Document186-7 Filed03/10/14 Page2 of 3 1 This matter is before the Court on plaintiffs' motion for a temporary restraining order to 2 prevent defendants National Security Agency, United States of America, Department of Justice, 3 Barack H. Obama, Keith B. Alexander, Eric H. Holder, Jr., and James R. Clapper, Jr. (in their 4 official capacities) (collectively, the "government defendants") and all those in active concert or 5 participation with them from destroying any potential evidence relevant to the claims at issue in 6 this action, including but not limited to prohibiting the destruction of any telephone metadata or 7 "call detail" records. The government defendants have given notice that they will commence 8 destroying call detail records on Tuesday morning, March 11, 2014. ECF No. 85 in First 9 Unitarian Church ofLos Angeles v. NSA, No. 13-cv-3287-JSW. 10 Plaintiffs contend that the Court's prior evidence preservation order (ECF No. 51) as well 11 as defendants' obligations under the Federal Rules of Civil Procedure prohibit destruction of this 12 potential evidence. It is undisputed that the Court would be unable to afford effective relief to 13 plaintiffs once the records are destroyed, and therefore the harm plaintiffs face is irreparable. A 14 temporary restraining order is necessary and appropriate so that the Court may decide whether the 15 evidence should be preserved with the benefit of full briefing and participation by all parties. 16 It is hereby ordered that defendants National Security Agency, United States of America, 17 Department of Justice, Barack H. Obama, Keith B. Alexander, Eric H. Holder, Jr., and James R. 18 Clapper, Jr. (in their official capacities), their officers, agents, servants, employees, and attorneys, 19 and all those in active concert or participation with them are prohibited, enjoined, and restrained 20 from destroying any potential evidence relevant to the claims at issue in this action, including but 21 not limited to prohibiting the destruction of any telephone metadata or "call detail" records, 22 pending further order of the Court. 23 The Court sets the following briefing and hearing schedule in this matter: 24 Plaintiffs' opening brief 25 Government defendants opposition brief 26 Plaintiffs' reply brief 27 Hearing 28 Case No. 08-CV-4373-JSW l [PROPOSED] TEMPORARY RESTRAINING ORDER Case3:08-cv-04373-JSW DocumenU86-7 Filed03/10/14 Page3 of 3 1 2 3 This order expires at Entered at _ _ a.m./p.m. on March _ _, 2014 4 IT IS SO ORDERED. 5 6 7 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 08-CV-4373-JSW 2 [PROPOSED] TEMPORARY RESTRAINING ORDER Case3:13-cv-03287-JSW Document86 Filed03/10/14 Pagel of 6 2 3 4 5 6 7 CINDY COHN (SBN 145997) cindy@eff.org LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423) MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160 l 07) JAMES S. TYRE (SBN 083117) ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993 8 THOMAS E. MOORE ill (SBN 115107) 9 tmoore@rroyselaw.com ROYSE LAW FIRM, PC IO 1717 Embarcadero Road 11 Palo Alto, CA 94303 Tel.: 650-813-9700; Fax: 650-813-9777 12 Counsel for Plaintiffs 13 14 RACHAEL E. MENY (SBN 178514) nncny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 941 l l Tel.: (415) 391-5400; Fax: (415) 397-7188 RICHARD R. WIEBE (SBN 121156) wicbe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382 ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Tel.: (510) 289-1626 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 SAN FRANCISCO DIVISION 17 FIRST UNIT ARIAN CHURCH OF LOS 18 ANGELES, et al., Plaintiffs, 19 20 21 22 23 v. NATIONAL SECURITY AGENCY, et al., Defendants. Case No: 3: l 3-cv-03287 JSW PLAINTIFFS' NOTICE OF EX PARTE MOTION AND EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE Date: March I 0, 2014 Time: I :30 p.m. Courtroom 11, 19th Floor The Honorable Jeffrey S. White 24 25 26 27 28 IMMEDIATE RELIEF REQUESTED CRITICAL DATE: TUESDAY MORNING, MARCH 11, 2014 PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE Case3:13-cv-03287-JSW Document86 Filed03/10/14 Page2 of 6 1 2 NOTICE OF EX PARTE MOTION PLEASE TAKE NOTICE that on Monday, March IO, 2014 at 1:30 p.m., or as soon 3 thereafter as they may be heard by the Court at Courtroom 11, 19th Floor, 450 Golden Gate Ave., 4 San Francisco, CA, plaintiffs will move ex parte for a temporary restraining order and, after a 5 hearing has been held, an order prohibiting, enjoining, and restraining defendants National Security 6 Agency, United States of America, Department of Justice, Barack H. Obama, Keith B. Alexander, 7 Eric H. Holder, Jr., and James R. Clapper, Jr. (in their official capacities) (collectively, the 8 "government defendants") and all those acting in concert with them from destroying any evidence 9 relevant to the claims at issue in this action, including but not limited to prohibiting the destruction 10 of any telephone metadata or "call detail" records. 11 Notice of this motion has been given to opposing counsel. Attached to the Cohn Declaration 12 filed herewith as Exhibit E are email exchanges between parties' counsel between on February 26, 13 2014, and this morning, March I0, 2014, in which plaintiffs have consistently stated their intentions 14 to seek relief from this court unless the government clarifies its intention to preserve all relevant 15 evidence in the two cases consistent with its obligations in both cases and the preservation order in 16 Jewel v. NSA that reaches the same telephonic records at issue in First Unitarian Church v. NSA. 17 This matter became an emergency matter because on Friday, March 7, based on a mistaken 18 belief that no preservation order existed for the material at issue, and without consultation with 19 plaintiff or this Court, the FISC denied the government's motion to be allowed to preserve the 20 telephone records it had collected. Late Friday, the government served notice in the First Unitarian 21 22 23 case that it intended to begin destroying the records. REASONS WHY RELIEF SHOULD BE GRANTED The government defendants have given notice that they plan to begin destroying telephone 24 metadata ("call detail record") evidence relevant to this lawsuit tomorrow, Tuesday Morning, 25 March 11, 2014. ECF No. 85 in First Unitarian v. NSA, No. 13-cv-3287-JSW. Plaintiffs 26 respectfully request that the Court today issue an immediate temporary restraining order to prevent 27 the destruction of evidence before the Court has an opportunity to determine whether destruction of 28 PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE CASE NO. 13-cv-3287 JSW Case3:13-cv-03287-JSW Document86 Filed03/10/14 Page3 of 6 this evidence is contrary to the Court's November 16, 2009 evidence preservation order (ECF 2 No. 51) or otherwise contrary to the government defendants' discovery obligations. 3 The purpose of a TRO is to preserve the status quo and prevent irreparable harm 'just so long 4 as is necessary to hold a hearing, and no longer." Granny Goose Foods, Inc. v. Brotherhood of 5 Teamsters, 415 U.S. 423, 439 (1974). This is exactly what is needed here. 6 There has been litigation challenging the lawfulness of the government's telephone metadata 7 collection activity, Internet metadata collection activity, and upstream collection activity pending in 8 the Northern District of California continuously since 2006. The government has been under 9 evidence preservation orders in those lawsuits continuously since 2007. 10 The first-filed case was Hepting v. AT&T, No. 06-cv-0672 (N.D. Cal). It became the lead 11 case in the MDL proceeding in this district, Jn Re: National Security Agency Telecommunications 12 Records Litigation, MDL No. 06-cv-1791-VRW (N.D. Cal). On November 6, 2007, this Court 13 entered an evidence preservation order in the MDL proceeding. ECF No. 393 in MDL No. 06-cv14 1791-VRW. One of the MDL cases, Virginia Shubert, et al., v. Barack Obama, et al. No. 07-cv- 15 0603-JSW (N.D. Cal.), remains in litigation today before this Court, and the MDL preservation order 16 remains in effect today as to that case. 17 In 2008, movants filed this action-Jewel v. NSA-and this Court related it to the Hepting 18 action. This Court entered an evidence preservation order in Jewel. ECF No. 51. The Jewel 19 evidence preservation order remains in effect as of today. 20 The government has never sought to seek clarification of its preservation obligations 21 regarding telephone metadata records from this Court or raised the issue with plaintiffs. Instead, the 22 government defendants chose to raise the issue of preservation of telephone metadata records in an 23 ex parte proceeding before the Foreign Intelligence Surveillance Court, without any notice to 24 plaintiffs and without mentioning its obligations with regard to the same telephone records in Jewel 25 v. NSA and Shubert v. Obama. Plaintiffs learned of the government's motion by reading the news 26 media, and asked counsel for the government defendants to explain why they had not told the FISC 27 about the Jewel evidence preservation order. See Cohn Deel, Exh. E. 28 2 PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE CASE NO. 13-cv-3287 JSW Case3:13-cv-03287-JSW Document86 Filed03/10/14 Page4 of 6 l Indeed, the government is aware and has acknowledged that destruction of the information in 2 question may conflict with the preservation orders issued in this and related cases: "While the 3 Court's Primary Order requires destruction of the BR metadata no longer than five years (60 months) 4 after its initial collection, such destruction could be inconsistent with the Government's preservation 5 obligations in connection with civil litigation pending against it. Accordingly, to avoid the 6 destruction of the BR metadata, the Government seeks an amendment to the Court's Primary Order 7 that would allow the NSA to preserve and/or store the BR metadata for non-analytic purposes until 8 relieved of its preservation obligations, or until further order of this Court under the conditions 9 described below." Government's Motion for Second Amendment to Primary Order, FISC No. BR IO 14-01 (February 25, 2014). Although the government's motion in the FISC did not discuss the 11 preservation order in Jewel, this preservation order includes the same records at issue in First 12 Unitarian. 13 14 LEGAL STANDARD FOR TEMPORARY RESTRAINING ORDER "A plaintiff seeking a [TRO] must establish that he is likely to succeed on the merits, that he 15 is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities 16 tips in his favor, and that an injunction is in the public interest." Network Automation, Inc. v. 17 Advanced Sys. Concepts, 638 F.3d 1137, 1144 (9th Cir. 2011) (quoting Winter v. Natural Res. 18 Defense Council, Inc., 555 U.S. 7 (2008)). 19 A. 20 The Jewel preservation order required the Government to "preserve evidence that may be 21 relevant to this action." The Jewel complaint alleged unlawful and unconstitutional acquisition of Likelihood of Success 22 call-detail records, including the "call-detail records collected under the National Security Agency 23 (NSA) bulk telephony metadata program" that the Government proposed to destroy. 24 Plaintiffs sought, among other relief, an injunction "requiring Defendants to provide to 25 Plaintiffs and the class an inventory of their communications, records, or other information that was 26 seized in violation of the Fourth Amendment." Complaint, Prayer for Relief. This would be 27 impossible if the records are destroyed. While the Plaintiff ultimately want the call-detail records 28 3 PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE CASE NO. 13-cv-3287 JSW Case3:13-cv-03287-JSW Document86 Filed03/10/14 Pages of 6 1 destroyed at the conclusion of the case, there is no doubt the call-records "may be relevant" in the 2 interim. 3 The Jewel order also required the Government to cease "destruction, recycling, relocation, or 4 mutation of such materials." Thus, the proposed destruction would be in direct violation of the 5 Jewel preservation order. 6 B. 7 If the government proceeds with its planned destruction of evidence, the evidence will be Irreparable Harm 8 gone. This is by definition irreparable. 9 c. Balance of Equities l0 While the Government contends it is required by the FISC to destroy the records 11 immediately, the FISC order belies this assertion. The FISC denied the government's motion 12 without prejudice to bringing another motion with additional facts and the FISC plainly was not 13 informed of the preservation order in Jewel or even of its existence. The FISC clearly contemplated 14 that the evidence destruction could wait while the government prepared and filed another motion, 15 and continue until the Court considered and ruled on the motion. 16 D. 17 These records are both an affront to the rights of millions of Americans and proof of their Public Interest 18 violation. Plaintiffs have no objection to severe restrictions on the Government's right to access and 19 use the information, which will address the public interest in the documents being destroyed. 20 However, it remains in the public interest to wait a short period of time before taking action, so that 21 22 the fate of the documents can be addressed in an orderly fashion. The necessity for this ex parte application could have been easily avoided had the 23 government defendants followed the discovery and evidence preservation practices customary in this 24 District. They could have, but did not, raised the issue of preserving telephone metadata records in 25 the CMC statement meet-and-confer process in September 2013 (three months after the government 26 defendants publicly acknowledged the phone records program), or at the Case Management 27 Conference itself on September 27, 2013. They could have, but did not, raised this issue in the CMC 28 4 PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE CASE NO. 13-cv-3287 JSW Case3:13-cv-03287-JSW Document86 Filed03/10/14 Page6 of 6 statement meet-and-confer process in the related First Unitarian action during October 2013, or at 2 the First Unitarian Case Management Conference itself on November 8, 2013. 3 Thereafter, at any point between November 8 and now the government defendants could 4 have raised the issue with plaintiffs by the meet-and-confer process, but they did not. They could S have sought a further Case Management Conference before the Court or proceeded to raise the issue 6 by noticed motion. Any of these manifold alternatives would have permitted the Court and the 7 parties to address the issue in an orderly manner. By failing to pursue any of these alternatives, the 8 government has made a temporary restraining order essential. Plaintiffs believe that no security is 9 necessary under the circumstances. Plaintiffs respectfully request that the Court issue the order l0 pending further proceedings on this issue. 11 DATED: March 10, 2014 12 l3 14 15 16 17 18 19 20 21 22 23 Respectfully submitted, Isl Cindy Cohn CINDY COHN LEE TIEN KURT OPSAHL MATTHEW ZIMMERMAN MARKRUMOLD DAVID GREENE JAMES S. TYRE ELECTRONIC FRONTIER FOUNDATION RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE THOMAS E. MOORE III ROYSE LAW FIRM, PC RACHAEL E. MENY MICHAELS. KWUN BENJAMIN W. BERKOWITZ KEKER & VAN NEST, LLP 24 ARAM ANTARAMIAN LAW OFFICE OF ARAM ANTARAMIAN 25 Counsel for Plaintiffs 26 27 28 s PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE CASE NO. 13-cv-3287 JSW Case3:13-cv-03287-JSW Document86-1 Filed03/10/14 Pagel of 2 2 3 4 5 6 7 8 CINDY COHN (SBN 145997) cindy@eff.org LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423) MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107) JAMES S. TYRE (SBN 083117) ANDREW CROCKER (SBN 291596) ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993 9 THOMAS E. MOORE III (SBN 115107) tmoore@rroyselaw.com I 0 ROYSE LAW FIRM, PC 1717 Embarcadero Road 11 Palo Alto, CA 94303 12 Tel.: 650-813-9700; Fax: 650-813-9777 13 Counsel for Plaintiffs 14 RACHAEL E. MENY (SBN 178514) nneny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188 RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382 ARAM ANTARAMIAN (SBN 239070) aram@cff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 SAN FRANCISCO DIVISION 17 18 FIRST UNITARIAN CHURCH OF LOS 19 ANGELES, et al. Plaintiffs, 20 21 22 23 24 Case No: 3: 13-cv-03287 JSW DECLARATION OF CINDY COHN Courtroom 11, 19th Floor The Honorable Jeffrey S. White v. NATIONAL SECURITY AGENCY, et al., Defendants. 25 26 27 28 DECLARATION OF CINDY COHN Case3:13-cv-03287-JSW Document86-1 Filed03/10/14 Page2 of 2 I, CINDY COHN, hereby declare: 2 l. I am a lawyer duly licensed to practice law in the State of California and before this 3 district. I am the Legal Director of the Electronic Frontier Foundation, counsel of record for the 4 plaintiffs. 5 2. I have attached to this Declaration true and correct copies of the following 6 documents: 7 • Exhibit A: Complaint for Constitutional and Statutory Violations, Seeking 8 Damages, Declaratory and Injunctive Relief in Carolyn Jewel, et al., v. National 9 Security Agency, et al., No. 08-cv-4373-JSW (N.D. Cal.) filed September 18, 2008; 10 • Exhibit B: First Amended Complaint for Constitutional and Statutory Violations, 11 Seeking Declaratory and Injunctive Reliefin First Unitarian Church ofLos Angeles, 12 el al. v. National Security Agency, et al., Case No. l 3-cv-3287-JSW (N.D. Cal.) filed 13 on March 7, 2014; 14 • Evidence Preservation Order in Carolyn Jewel, et al., v. National Security Agency, el al., No. 08-cv-4373-JSW (N.D. Cal.) filed November 16, 2009; 15 16 Exhibit C: • Exhibit D: Evidence Preservation Order in In Re: National Security Agency 17 Telecommunications Records Litigation, MDL No. 06-cv-1791-VRW (N.D. Cal) 18 dated November 6, 2007; and 19 20 21 22 • Exhibit E: Emails between plaintiffs and defendants regarding preservation issues. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on March 10, 2014, at San Francisco, California. 23 24 25 Isl Cindy Cohn CINDY COHN 26 27 28 1 DECLARATION Of CINDY COHN CASE NO. 13-cv-3287 JSW Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Pagel of 56 Exhibit A Exhibit A case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page2 of·56 1 ELECTRONIC FRONTIER FOUNDATION CINDY COHN (145997) 2 cindy@eff.org LEE TIEN (148216) 3 KURT OP.SAHL (191303) KEVIN S. BANKSTON (217026) 4 JAMES S. TYRE (083117) 454 Shotwell Street 5 San Francisco, CA 94110 Telephone: 415/436-9333; Fax: 415/436-9993 6 RICHARD R. WIEBE (121156) 7 wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE : . ~=~ 8 425 California Street, Suite 2025 San Francisco, CA 94104 9 Telephone: 415/433-3200; Fax: 415/433-6382 . : ; ::·,, ~ . . ~ ~ ·~~ 10 THOMAS E. MOORE Ill (115107) tmoore@moorelawteam.com 11 THE MOORE LAW GROUP 228 Hamilton A venue, 3rd Floor 12 Palo Alto, CA 94301 Telephone: 650/798-5352; Fax: 650/798-500 I 13 Attorneys for Plaintiffs 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA - .. 16 CAROLYN JEWEL, TASH HEPTING, GREGO~~HIC~~ ) ·~. CASE NO: ERIK KNUTZEN and JOICE WALTON, on be . f f t~ .\ f~} (~ :•"'·/ 6) 17 themselves and all others similarly situated, ' V ) 18 ) CLASS ACTION Plaintiffs, ) 19 vs. ) COMPLAINTFOR ) CONSTITUTIONAL AND 20 NATIONAL SECURITY AGENCY and KEITH B. ) STATUTORY ALEXANDER, its Director, in his official and personal ) VIOLATIONS, SEEKING 21 capacities; :MICHAEL V. HAYDEN, in his personal capacity; ) DAMAGES, the UNITED STATES OF AMERICA; GEORGE W. BUSH, ) DECLARATORY, AND ) INJUNCTIVE RELIEF 22 President of the United States, in his official and personal capacities; RICHARD B. CHENEY, in his personal capacity; ) 23 DAVID S. ADDINGTON, in his personal capacity; ) DEPARTMENT OF JUSTICE and MICHAEL B. ) 24 MUK.ASEY, its Attorney General, in his official and personal ) ) capacities; ALBERTO R. GONZALES, in his personal ) DEMAND FOR JURY 25 capacity; JOHN D. ASHCROFT, in his personal capacity; JOHN M. MCCONNELL, Director of National Intelligence, in ) TRIAL 26 his official and personal capacities; JOHN D. NEGROPONTE, ) in his personal capacity; and DOES #1-100, inclusive, ) 27 ) Defendants. ) D - · CRB 28 ~~~~~~~~~~~~~~~~~~~.> COMPLAINT Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page3 of 56 I. 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 I 0 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page4 of 56 1 2 3 4 5 6 7 8 9 10 11 7. In addition to eavesdropping on or reading specific communications, Defendants have indiscriminately intercepted the communications content and obtained the communications 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 10. 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 22 23 24 25 26 communications records indicating who the customers communicated with, when and for how lon , among other sensitive information. 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page5 of 56 12. Plaintiffs and class members are ordinary Americans who are current or former 2 subscribers to AT&T's telephone and/or Internet services. 3 4 13. Communications of Plaintiffs and class members have been and continue to be 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 10 destruction of those that have already been seized, and to obtain appropriate statutory, actual, and 11 punitive damages to deter future illegal surveillance. JURISDICTION AND VENUE 12 13 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 arc 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 of28 U.S.C § 2675, as required for their claimsunder 18 U.S.C. § 2712. Plaintiffs timely served notice of their Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page6 of 56 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 I 0 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. Plaintiff ErikK.nutzen is an individual residing in Los Angeles, CaliforniaKnutzen, 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 24. Plaintiff Joice Walton is an individual residing in San Jose, California. Walton, a 20 high technology purchasing agent, is a current subscriber and user of AT&T's WorldNet dial-up 21 22 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 23 control of the Department of Defense that collects, processes and disseminates foreign signals 24 25 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 , 26 in office since April 2005. As NSA Director, defendant Alexander has ultimate authority for 27 supervising and implementing all operations and functions of the NSA, including the Program. 28 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page7 of 56 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 deparbnents, agencies, 6 and entities. 7 8 9 IO 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 200 I. 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 200 I. 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, DefendaM.ddington served as legal counsel to the Office of the Vice President. DcfendantAddington 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 Sta 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Pages of 56 1 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 fonner 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 8 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 11 37. Defendant John D. Negroponte was the first Director of National Intelligence, in 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 "Doe 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 l6 "Doe# 100," were agents or employees of the NSA, the DOJ, the White House, or were other l 7 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 l9 names and capacities when ascertained. Upon infonnation 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, 2001, President Bush, in concert with White House Counsel Gonzale , 26 NSA Director Hayden, Attorney General Ashcroft and other Defendants, issued a secret presidenfr l 27 order (the "Program Order") authorizing a range of surveillance activities inside of the United Stat s 28 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page9 of 56 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 2001, and continues to this day. 5 41. The President renewed and, on information and belief, renews his October 4, 200 I 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 information and belief is obtained based on I 0 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 information and belief do state that the Program's activities I 5 have been determined to be lawful by the Attorney General, except for one period of less than six 16 days. 17 44. On information 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page10 of 56 1 Program was unlawful as well as any act of Congress or judicial decision purporting to constrain 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 defendants 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Pagel! of 56 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 transi · 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 l 0 light signals on fiber-optic cables that are connected to routers for AT&T's WorldNet Internet 11 service and arc 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 WorldNet 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 in 22 collaboration with AT&T to build a surveillance operation at AT&T's Folsom Street Facility, insi 23 24 a secret room known as the "SG3 Secure Room". 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. Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page12 of 56 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 I 0 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 IS 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 SG 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 and/or Seattle, WA. 69. Those Surveillance Configurations divert all peered Internet traffic transiting those 23 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page13 of 56 1 2 3 71. This network of Surveillance Configurations involves considerably more locations than would be required to capture the majority of international traffic. 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 8 73. Through this network of Surveillance Configurations and/or by other means, 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 10 non-content dialing, routing, addressing and/or signaling information pertaining to those 11 communications. 12 74. 13 In addition to acquiring all of the Internet communications passing through a numb 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 p 19 and dialing, routing, addressing, and/or signaling information pertaining to those communications, 20 were and are acquired by Defendants in cooperation with AT&T by using the nationwide network 21 22 23 24 25 26 27 28 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' and class members' communications contents and non-content information is done without Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page14 of 56 1 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' d class members' communications contents and non-content infonnation is done without probable cause or reasonable suspicion to believe thaPlaintiffs or class member.are 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 infonnation is donewithout any reason 9 to believe that the infonnation is relevant to an authorized criminal investigation or to an authorize 10 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 infonnation was directly perfonned, and/or aided, abetted, counseled, commanded, induced or procured, by Defendants. 81. On infonnation 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 infonnation 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 200 I continuously solicited and obtained the 21 disclosure of all infonnation 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 infonnation managed by AT&T's "Daytona" database management technology, which includes records concerning both telephone and Internet communications, and continues to do so. Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Pagels of 56 1 2 3 4 5 6 7 85. Daytona is a database management technology designed to handle very large databases and is used to manage "Hawkeye," AT&T's call detail record ("CDR") database, which contains records of nearly every telephone communication carried over its domestic network since approximately 2001, records that include the originating and terminating telephone numbers and th time and length for each call. 86. 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. 10 ll 12 13 14 87. As of September 2005, all of the CDR data managed by Daytona, when uncompressed, totaled more than 312 terabytes. 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, routersponeypots and other devices 16 on AT&T's global IP (Internet Protocol) network and other networks connected to AT&T's netwo k. 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 20 21 22 23 24 25 26 27 28 90. Since October 6, 2001 or shortly thereafter, Defendants have continually solicited and obtained from AT&T disclosure of the contents of the Hawkeye and Aurora communications records databases and/or other AT&T communications records, including records or other information pertaining to Plaintiffs' and class members' use of AT&T's telephone and Internet services. 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page16 of 56 1 judicial, statutory, or other lawful authorization, in violation of statutory and constitutional 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 limitations, and in excess of statutory and constitutional authority. 93. 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 have 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 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 . 23 24 25 26 CLASS ACTION ALLEGATIONS 98. Pursuant to Federal Rules of Civil Procedure, Rule 23(b)(2), Plaintiffs Hepting, Hicks, Jewel, Knutzen, and Walton bring this action on behalf of themselves and a class of similar! 27 situated persons defined as: 28 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Pagel 7 of 56 1 2 All individuals in the United States that arc 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 2001. 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 1o 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. 100. 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. § 180l(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 25 103. Numerosity of the Class: Members of the class are so numerous that their individualjoinder 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 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page18 of 56 104. 2 3 community of interest in the questions of law and fact involved affecting the members of the class. These common legal and factual questions include: 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 Existence of Common Questions of Fact and Law: There is a well-defined (a) Whether Defendants have violated the First and Fourth Amendment rights o 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 50 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. § 2511, or arc 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 arc currently doing so; (e) Whether Defendants have solicited or obtained the disclosure of non-conten records or other information pertaining to class members in violation of 18 U.S.C. § 2703(c), or ar currently doing so; (t) Whether Defendants have violated the Administrative Procedures Act, 5 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 are 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. 105. 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. Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page19 of 56 l Plaintiffs and all members of the class have similarly suffered harm arising from Defendants' 2 violations of law, as alleged herein. 3 4 5 6 106. 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 7 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 lO 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 18 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) 19 108. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding 20 2l 22 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 25 26 27 28 transmitted, collected, and/or stored by AT&T. 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 commissio Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page20 of 56 1 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 4 5 6 7 to their communications transmitted, collected, and/or stored by AT&T, without judicial or other lawful authorization, probable cause, and/or individualized suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority. 111. AT&T acted as the agent of Defendants in perfonning, participating in, enabling, 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, I 0 contents of communications, and records pertaining to their communications transmitted, collected II 12 13 14 15 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 above-described acts, and failed to respect the Fourth Amendment rights of Plaintiffs and class 16 members by obtaining judicial or other lawful authorization and by conforming their conduct to th 17 18 19 20 21 22 23 requirements of the Fourth Amendment. 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page21of56 1 2 3 4 5 6 7 8 9 IO 11 12 13 116. On information and belief, the Count I Defendants are now engaging in and will continue to engage in the above-described violations of Plaintiffs' and class members' constitution l rights, and are thereby irreparably banning 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 the rights of the class; enjoin the Count I Defendants, their agents, successors, and assigns, and all those in active concert and participation with them from violating the Plaintiffs' and class membe ' 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 20 21 22 23 24 25 (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 bis personal capacity), Gonzales (in bis 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 paragraphs of this complaint, as if set forth fully herein. 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 perfonned, 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page22 of 56 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 4 5 6 7 communications transmitted, collected, and/or stored by AT&T without judicial or other lawful 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, 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' communications, contents of I 0 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 Fou 17 Amendment. 18 19 20 21 22 23 24 25 26 27 28 123. 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 Plaintiffs. 125. Defendants' conduct was done intentionally, with deliberate indifference, or with reckless disregard of, Plaintiffs' constitutional rights. 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. Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page23 of 56 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 4 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) 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 IO 11 12 128. 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, 13 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 21 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, contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti , 22 interception, disclosure, divulgencc 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 susp1c1on. 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. Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page24 of 56 132. By the acts alleged herein, Defendants' conduct proximately caused harm 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 information 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 l 8 rights, and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class 9 members have no adequate remedy at law for the Count Ill Defendants' continuing unlawful 10 conduct, and the Count III Defendants will continue to violate Plaintiffs' and class members' legal II 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 membe ' 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 bis personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity), Mukasey (in bis 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page25 of 56 1 138. 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 COUNTV 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page26 of 56 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. (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 arc 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 docs 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. § 2511 (2)(t) further provides in relevant part that "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be theexc/usive means by which electronic surveillance, as defined in section IOI [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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page27 of 56 1 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 ll 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, 15 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti n 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. § 180l(t)) under color of law, 23 not authorized by any statute, to which Plaintiffs and class members were subjected in violation of 24 50 u.s.c. § 1809. 25 26 27 151. 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 2 g disclosed or used information obtained under color of law by electronic surveillance, knowing or Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page28 of 56 1 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 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, 4 5 6 7 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 10 surveillance, disclosure, and/or use of their wire communications. 11 12 13 14 154. 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 15 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 continuing unlawful conduct, and the Count V Defendants will continue to violate Plaintiffs' and 19 20 21 22 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 23 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 rights, including their rights under 50 U.S.C. §§ 1801 et seq.; and award such other and further 26 27 28 equitable relief as is proper. Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page29 of 56 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) 7 156. Plaintiffs repeat and incorporate herein by reference the allegations in the precedin 8 paragraphs of this complaint, as if set forth fully herein. 9 157. 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 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. 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. § 1809 provides that: 158. In relevant part 50 U.S.C. § 1801 provides that: (f) "Electronic surveillance" means - ( 1) 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 arc 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 arc 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page30 of 56 1 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 thtl?Xc/usive 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. IO (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, or206 of Title 18 shall constitute an additional exclusive means for the purpose of subsection (a). 13 14 15 16 17 18 19 20 50 U.S.C. § 1812 further provides in relevant part that: (Emphasis added.) 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 21 communications to or from Plaintiffs or other infonnation 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. Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page31of56 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 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. § l 80l(t)) 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 9 intentionally disclosed or used information obtained under color of law by electronic surveillance, 10 knowing or having reason to know that the information was obtained through electronic surveillan e 11 12 13 14 not authorized by statute, including information 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 15 the commission of such acts. 16 165. 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. Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page32 of 56 1 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. 10 11 12 13 14 15 17 170. 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: ( 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 infonnation 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 171. 18 U .S.C. § 2511 (2)(t) further provides in relevant part that "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be tha?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 28 172. 50 U.S.C. § 1812 further provides in relevant part that: Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page33 of 56 (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 10 11 12 13 14 15 16 174. 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 information was obtained through the interception of wire or electronic communications in violation of 18 U .S.C. § 2511 ( 1)( ); and/or 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, l 8 while knowing or having reason to know that the information was obtained through the interceptio 19 20 21 22 23 of wire or electronic communications in violation of 18 U .S.C. § 2511 ( 1)(d). 176. By the acts alleged herein, Defendants have intentionally and willfully caused, or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, 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 26 27 28 Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 2511(3)(a). 177. Defendants have committed these acts of interception, disclosure, divulgcnce and/o use of Plaintiffs' and class members' communications directly or by aiding, abetting, counseling, Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page34 of 56 1 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 diwlgence and/or use of Plaintiffs' and class members' communications. 9 179. Defendants did not notify Plaintiffs or class members of the above-described 10 intentional interception, disclosure, divulgence and/or use of their wire or electronic 11 12 13 14 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. Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page35 of 56 1 § 702, Plaintiffs and class members seek equitable and declaratory relief against the Count VII 2 Defendants. 3 4 5 6 7 8 183. 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 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page36 of 56 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 thcr?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.) 9 188. 10 (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 16 17 18 19 20 21 50 U .S.C. § 1812 further provides in relevant part that: (Emphasis added.) 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 28 interception of wire or electronic communications in violation of 18 U.S.C. § 251 l(l)(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 electronic communications in violation of 18 U.S.C. § 251 l(l)(d). Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page37 of 56 1 192. 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 divulgence 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 comn11ss1on. 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 arc 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. , Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page38 of 56 1 COUNT IX 2 Violation of 18 U.S.C. § 2511, actionable under 18 U.S.C. § 2712-Damages Against The United States 3 4 5 6 7 8 (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. 10 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 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 infonnation 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 20 I. 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:x!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: Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page39 of 56 (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 8 9 IO 11 12 203. 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 endeavored to disclose, to another person the contents of Plaintiffs' wire or electronic 13 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. § 2511 ( 1)(c); and/or 15 16 17 18 19 20 21 205. 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 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 25 26 27 Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 2511(3)(a). 207. Defendants have committed these acts of interception, disclosure, divulgence and/o use of Plaintiffs' communications directly or by aiding, abetting, counseling, commanding, induci 28 procuring, encouraging, promoting, instigating, advising, willfully causing, participating in, , Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page40 of 56 1 enabling, contributing to, facilitating, directing, controlling, assisting in, or conspiring in their 2 conumss1on. 3 4 5 6 7 208. AT&T acted as the agent of Defendants in perfonning, participating in, enabling, contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure, divulgcnce and/or use of Plaintiffs' communications. 209. Defendants did not notify Plaintiffs of the above-described intentional interception, 8 disclosure, divulgencc 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 arc 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: Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page41of56 (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 ( 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. 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 26 214. 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page42 of 56 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 I 0 communications, nor did Plaintiffs or class members consent to such. 11 12 13 14 217. Plaintiffs and class members have been and are 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 25 26 27 28 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 by knowing or intentional violation of 18 U.S.C. § 2703, 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 X Defendants. Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page43 of 56 220. 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 4 5 6 those in active concert and participation with them from violating the Plaintiffs' and class member ' 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 10 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 bis personal capacity), Cheney (in his personal capacity), Addington (in bis personal capacity), Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in bis 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page44 of 56 (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 12 223. Defendants intentionally and willfully solicited and obtained from AT&T, or aided, 13 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, 14 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i , 15 16 17 18 19 20 21 22 23 24 25 26 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page45 of 56 I 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 27 28 227. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieve by knowing or intentional violation of 18 U.S.C. § 2703, Plaintiffs seek from the Count XI 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 paragraphs of this complaint, as if set forth fully herein. 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.(1) 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page46 of 56 (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 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 25 26 27 28 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 obtaining of disclosure of the contents of communications. 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 will~l Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page47 of 56 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 Remo le Computing Service.( I) 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; Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page48 of 56 (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 grandjury 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 8 237. Defendants intentionally and willfully solicited and obtained from AT&T, or aided, 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 12 13 14 15 16 17 18 19 other information pertaining to Plaintiffs' and class members' use of electronic communication services and/or remote computing services offered to the public by AT&T, in violation of 18 U.S. § 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 28 or class members consent to such. 240. Plaintiffs and class members have been and arc 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 or other information pertaining to Plaintiffs and class members, acting in excess of the Count XIII Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page49 of 56 Defendants' statutory authority and in violation of statutory limitations, including 18 U.S.C. § 2 3 4 5 6 7 2703(c), and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class 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 I rights unless enjoined and restrained by this Court. 242. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieve 8 by knowing or intentional violation of 18 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 I0 11 12 13 14 15 against the Count XIII Defendants. 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 members' statutory rights, including their rights under 18 U.S.C. § 2703; and award such other and 16 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 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), and Negroponte (in his personal capacity), and one or more of the Doc 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page50 of 56 1 other infonnation 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 fonnal 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 tennis defined in section 2325 of this title); or (E) seeks infonnation 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 8 9 IO 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 infonnation pertaining to Plaintiffs' use of electronic communication services and/or remote 25 26 27 28 computing services offered to the public by AT&T, in violation of 18 U.S.C. § 2703(c). Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page51of56 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 1O 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; (B) obtains a court order for such disclosure under subsection (d) of this section; Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page52 of 56 (C) has the consent of the subscriber or customer to such disclosure; (D) submits a fonnal 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 tenn is defined in section 2325 of this title); or (E) seeks infonnation under paragraph (2). (2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity thc(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 infonnation 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 26 27 28 253. 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 infonnation 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 perfonning, participating in, enabling, contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs' records or other infonnation. 255. Defendants did not notify Plaintiffs of the disclosure of these records or other infonnation pertaining to them and their use of AT&T services, nor did Plaintiffs consent to such. Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page53 of 56 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 infonnation pertaining to Plaintiffl . 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 presenbncnt 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 I 19, 121and206 of Title 18 of the U.S. Code ( e 20 21 22 23 24 25 Wiretap Act, the Stored Communications Act, and the Pen Register Statute, respectively) and in violation of statutory rights under those law,;are not otherwise in accordance with law; are contrary to constitutional rights, including the Fourth Amendment, First Amendment, and separation of powers principles; and are taken without observance of procedures required by law. 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 Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page54 of 56 1 communications, communications records, and other information in violation of their constitutiona 2 3 4 5 6 7 and statutory rights. 261. Plaintiffs seek nonmonctary 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 nonmonctary relief as is proper. 9 COUNT XVII 10 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 bis official and personal capacities), Mukasey (in bis official and personal capacities), and McConnell (in bis 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 described 24 previously in this Complaint, Defendants' actions under the Program has resulted in the interceptio , 25 acquisition, disclosure, divulgcnce and/or use of the contents of their wire and electronic 26 communications, communications records, and other information in violation of their constitutiona 27 28 and statutory rights. Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page55 of 56 265. Plaintiffs seek nonmonetary relief against the Count XVIl 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 WHEREFORE, Plaintiffs respectfully request that the Court: A. Declare that the Program as alleged herein violates without limitation Plaintiffs' an 10 class members' rights under the First and Fourth Amendments to the Constitution; their statutory 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. II II Grant such other and further relief as the Court deems just and proper. Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page56 of 56 JURY DEMAND 2 Plaintiffs hereby request a jury trial for all issues triable by jury including, but not limited to, 3 those issues and claims set forth in any amended complaint or consolidated action. 4 DATED: September/.1,2008 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 ~ ~ ELECTRONIC FRONTIER FOUNDATION CINDY COHN (1455997) LEE TIEN (148216) KURT OPSAHL (191303) KEVIN S. BANKSTON (217026) JAMES S. TYRE (083117) 454 Shotwell Street San Francisco, CA 941 l 0 Telephone: 415/436-9333 415/436-9993 (fax) RICHARD R. WIEBE (121156) LAW OFFICE OF RICHARD R. WIEBE 425 California Street, Suite 2025 San Francisco, CA 94104 Telephone: (415) 433-3200 Facsimile: (415) 433-6382 THOMAS E. MOORE III (115107) THE MOORE LAW GROUP 228 Hamilton Avenue, 3rd Floor Palo Alto, CA 94301 Telephone: (650) 798-5352 Facsimile: (650) 798-5001 Attorneys for Plaintiffs 20 21 22 23 24 25 26 27 28 COMPLAINT -54- Case3:13-cv-03287-JSW Document86-3 Filed03/10/14 Pagel of 29 Exhibit B Exhibit B 2 3 4 5 6 7 CINDY COHN (SBN 145997) cindy@eff.org LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303) MATTHEW ZIMMERMAN (SBN 212423) MARK RUMOLD (SBN 279060) DAVID GREENE (SBN 160107) JAMES S. TYRE (SBN 083117) ELECTRONIC FRONTIER FOUNDATION 8I5 Eddy Street San Francisco, CA 94109 Tel.: (415) 436-9333; Fax: (415) 436-9993 THOMAS E. MOORE III (SBN 115107) 8 bnoore@moorelawteam.com ROYSE LAW FIRM, PC 9 1717 Embarcadero Road Palo Alto, CA 94303 10 Tel.: 650-813-9700; Fax: 650-813-9777 11 12 13 14 15 Attorneys for Plaintiffs RACHAEL E. MENY (SBN 178514) nneny@kvn.com MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188 RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382 ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION FIRST UNITARIAN CHURCH OF LOS ) 16 ANGELES; ACORN ACTIVE MEDIA; BILL OF ) RIGHTS DEFENSE COMMITTEE; CALGUNS ) 17 FOUNDATION, INC.; CALIFORNIA ) ASSOCIATION OF FEDERAL FIREARMS ) 18 LICENSEES, INC.; CHARITY AND SECURITY ) ) NETWORK; COUNCIL ON AMERICAN I9 ISLAMIC RELATIONS-CALIFORNIA; ) COUNCIL ON AMERICAN ISLAMIC ) 20 RELATIONS-OHIO; COUNCIL ON ) ) AMERICAN ISLAMIC RELATIONS21 FOUNDATION, INC.; FRANKLIN ARMORY; ) ) FREE PRESS; FREE SOFTWARE 22 FOUNDATION; GREENPEACE, INC.; HUMAN ) RIGHTS WATCH; MEDIA ALLIANCE; ) 23 NATIONAL LAWYERS GUILD; NATIONAL ) ORGANIZATION FOR THE REFORM OF ) 24 MARIJUANA LAWS, CALIFORNIA CHAPTER;) ) PATIENT PRIVACY RIGHTS; PEOPLE FOR ) 25 THE AMERICAN WAY; PUBLIC ) KNOWLEDGE; SHALOM CENTER; 26 STUDENTS FOR SENSIBLE DRUG POLICY; ) TECHFREEDOM; and UNITARIAN ) ) 27 UNNERSALIST SERVICE COMMITTEE, ) Plaintiffs. ) 28 Case No: 3:13-cv-03287 JSW FIRST AMENDED COMPLAINT FOR CONSTITUTIONAL AND STATUTORY VIOLATIONS, SEEKING DECLARATORY AND INJUNCTIVE RELIEF Hon. Jeffrey S. White Courtroom 11 - 19th Floor DEMAND FOR JURY TRIAL FIRST AMENDED COMPLAINT v. ) ) 2 NATIONAL SECURITY AGENCY and KEITH ) B. ALEXANDER, its Director, in his official and ) 3 individual capacities; the UNITED STATES OF ) AMERICA; DEPARTMENT OF JUSTICE and ) 4 ERIC H. HOLDER, its Attorney General, in his ) official and individual capacities; Acting Assistant ) 5 Attorney General for National Security JOHN P. ) CARLIN, in his official and individual capacities; ) 6 FEDERAL BUREAU OF INVESTIGATION and ) JAMES B. COMEY, its Director, in his official ) ) 7 and individual capacities; ROBERT S. MUELLER former Director of the FEDERAL ) 8 BUREAU OF INVESTIGATION, in his individual) ) capacity; JAMES R. CLAPPER, Director of 9 National Intelligence, in his official and individual ) ) capacities, and DOES 1-100, IO ) Defendants. ) 11 ) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINT CASE NO. l 3-cv-3287 JSW 1 I. Plaintiffs bring this action on behalf of themselves and, where indicated, on behalf of 2 their members and staff. Plaintiffs allege as follows: 3 PRELIMINARY STATEMENT 2. 4 Plaintiffs, as described more particularly below, are associations, as well as the 5 members and staffs of associations, who use the telephone to engage in private communications 6 supportive of their associations and activities, including engaging in speech, assembly, petition for 7 the redress of grievances, and the exercise of religion. 3. 8 This lawsuit challenges an illegal and unconstitutional 'program of dragnet electronic 9 surveillance, specifically the bulk acquisition, seizure, collection, storage, retention, and searching of IO telephone communications information (the "Associational Tracking Program") conducted by the 11 National Security Agency (NSA) and the other defendants (collectively, "Defendants"). 4. 12 13 The Associational Tracking Program is vast. It collects telephone communications information for all telephone calls transiting the networks of all major American telecommunication 14 companies, including Verizon, AT&T, and Sprint, ostensibly under the authority of section 215 of 15 the USA PATRIOT Act, codified at 50 U.S.C. § 1861. 5. 16 The communications information that Defendants collect in the Associational 17 Tracking Program is retained and stored by Defendants in one or more databases. The Program 18 collects information concerning all calls wholly within the United States, including local telephone 19 calls, as well as all calls between the United States and abroad, regardless of a connection to 20 international terrorism, reasonable suspicion of criminality, or any other form of wrongdoing. This 21 information is stored for at least five years. Defendants have indiscriminately obtained, and stored 22 the telephone communications information of millions of ordinary Americans as part of the 23 Associational Tracking Program. 24 6. Defendants search and analyze the Associational Tracking Program's database(s) for 25 various purposes, including but not limited to, obtaining the communications history of particular 26 phone numbers, which, when aggregated, reveals those numbers' contacts and associations over 27 time. 28 1 FIRST AMENDED COMPLAINT CASE NO. l 3-cv-3287 JSW 7. 2 Defendants' collection of telephone communications information includes, but is not limited to, records indicating who each customer communicates with, at what time, for how long and 3 with what frequency communications occur. This communications information discloses the 4 expressive and private associational connections among individuals and groups, including Plaintiffs 5 and their members and staff. 6 8. The Associational Tracking Program has been going on in various forms since October 9. The bulk collection of telephone communications information without a valid, 7 2001. 8 9 particularized warrant supported by probable cause violates the First, Fourth, and Fifth Amendments, I 0 as well as statutory prohibitions and limitations on electronic surveillance. 11 10. Defendants' searches of the Associational Tracking Program database(s) without a 12 valid, particularized warrant supported by probable cause violate the First, Fourth, and Fifth 13 Amendments. 14 11. Plaintiffs' records are searched even if they are not targets of the search. 15 12. Plaintiffs are organizations, associations, and advocacy groups, their staffs, and their 16 members who are current subscribers to Verizon and other telephone services. Using the 17 Associational Tracking Program, Defendants seize, collect, acquire, retain, and search the records of 18 the telephone communications of Plaintiffs, their members and staff, and others seeking to associate 19 and communicate with them. JURISDICTION AND VENUE 20 21 13. This court has subject matter jurisdiction over the federal claims pursuant to 28 U.S.C. 22 § 1331, 5 U.S.C. § 702, and the Constitution. 23 14. Plaintiffs arc informed, believe, and thereon allege that Defendants have sufficient 24 contacts with this district generally and, in particular, with the events herein alleged, that Defendants 25 are subject to the exercise of jurisdiction of this court over the person of such Defendants and that 26 venue is proper in this judicial district pursuant to 28 U.S.C. § 1391. 27 28 15. Plaintiffs are informed, believe, and thereon allege that a substantial part of the events 2 FIRST AMENDED COMPLAINT CASE NO. l 3-cv-3287 JSW giving rise to the claims herein alleged occurred in this district and that Defendants and/or agents of 2 Defendants may be found in this district. 3 16. Intradistrict Assignment: Assignment to the San Francisco/Oakland division is 4 proper pursuant to Local Rule 3-2(c) and (d) because a substantial portion of the events and 5 omissions giving rise to this lawsuit occurred in this district and division. PARTIES 6 7 17. Plaintiff First Unitarian Church of Los Angeles (First Unitarian) was founded in 1877 8 by Caroline Seymour Severance, a woman who worked all her life for causes such as the abolition of 9 slavery and women's suffrage. First Unitarian is located in Los Angeles, California. Throughout its IO history members of First Unitarian defined their religious goals in terms of justice, equality, and 11 liberty for all persons. During the middle decades of the 20th century, First Unitarian provided aid to 12 Japanese-Americans displaced by internment camps, defended free speech against anti-communist 13 hysteria, and protested nuclear proliferation. In the 1980s, First Unitarian provided sanctuary to 14 Central American refugees and, in recent decades, First Unitarian opened its building as a 15 community center for the economically-depressed and ethnically-diverse neighborhood of 16 MacArthur Park. Members of First Unitarian have been quick to engage in difficult work and 17 controversial ideas and are proud of their contribution to moving the world closer to justice for all. 18 First Unitarian brings this action on behalf of itself and its adversely affected members and staff. 19 18. Plaintiff Acom Active Media is an outlet for technically skilled members to build 20 technical resources for groups, non-profits, and individuals who otherwise do not have the capacity 21 or would not be able to afford these services. Since Acorn's inception in January 2004, it has 22 engaged in website design, web application development, general technical consulting and hardware 23 support, and organizational database development for a diverse array of groups, individuals, and 24 organizations from around the globe. Acom members have supported democracy advocates and 25 independent media outlets worldwide, often working directly with communities laboring under 26 hostile and oppressive regimes. Plaintiff Acom brings this action on behalf of itself and its adversely 27 affected volunteers and members. 28 3 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 1 19. Plaintiff Bill of Rights Defense Committee (BORDC) is a non-profit, advocacy 2 organization based in Northhampton, Massachusetts. BORDC supports an ideologically, politically, 3 ethnically, geographically, and generationally diverse grassroots movement focused on educating 4 Americans about the erosion of fundamental freedoms; increasing civic participation; and converting 5 concern and outrage into political action. BORDC brings this action on behalf of itself and its 6 adversely affected staff. 7 20. Plaintiff Calguns Foundation, Inc. (CGF) is a non-profit, membership organization 8 based in San Carlos, California. CGF works to support the California firearms community by 9 promoting education for all stakeholders about California and federal fireann laws, rights, and 10 privileges, and defending and protecting the civil rights of California gun owners. In particular, CGF 11 operates a hotline for those with legal questions about gun rights in California. Plaintiff CGF brings 12 this action on behalf of itself and on behalf of its adversely affected members and staff. 13 21. Plaintiff California Association of Federal Fireanns Licensees, Inc. (CAL-FFL) is a 14 non-profit, industry association of, by, and for firearms manufacturers, dealers, collectors, training 15 professionals, shooting ranges, and others, advancing the interests of its members and the general 16 public through strategic litigation, legislative efforts, and education. CAL-FFL expends financial and 17 other resources in both litigation and non-litigation projects to protect the interests of its members 18 and the public at large. CAL-FFL brings this action on behalf of itself and its adversely affected 19 members and staff. 20 21 22. Plaintiff Charity and Security Network's mission is to protect civil society's ability to carry out peacebuilding projects, humanitarian aid, and development work effectively and in a 22 manner consistent with human rights principles and democratic values. To accomplish this, the 23 Network focuses on: coordinating advocacy by bringing together stakeholders from across the 24 nonprofit sector with policymakers to support needed changes in U.S. national security rules; and 25 raising awareness, dispelling myths and promoting awareness of the positive contribution civil 26 society makes to human security. CSN brings this action on behalf ofitself and its adversely affected 27 membership and staff. 28 4 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 1 23. Plaintiffs Council on American Islamic Relations -California (CAIR-CA), Council on 2 American Islamic Relations-Ohio (CAIR-OHIO), and Council on American Islamic Relations3 Foundation, Inc. (CAIR-F) are non-profit, advocacy organization with offices in California, Ohio, 4 and Washington, D.C., respectively. CAIR-CA, CAIR-OHIO, and CAIR-F's missions are to 5 enhance the understanding oflslam, encourage dialogue, protect civil liberties, empower American 6 Muslims, and build coalitions that promote justice and mutual understanding. CAIR-CA, CAIR7 OHIO, and CAIR-F bring this action on behalf of themselves and their adversely affected staffs. 8 24. Plaintiff Franklin Armory, a wholly owned subsidiary of CBE, Inc., is a state and 9 federally licensed manufacturer of firearms located in Morgan Hill, California. Franklin Annory 10 specializes in engineering and building products for restrictive firearms markets, such as California. 11 Franklin Armory is a member ofCAL-FFL. Franklin Armory brings this suit on its own behalf. 12 25. Plaintiff Free Press is a non-profit, advocacy organization based in Washington, D.C. 13 Free Press's mission is to build a nationwide movement to change media and technology policies, 14 promote the public interest, and strengthen democracy by advocating for universal and affordable 15 Internet access, diverse media ownership, vibrant public media, and quality journalism. Free Press 16 brings this action on behalf of itself and its adversely affected members and staff. 17 26. Plaintiff the Free Software Foundation (FSF) is a non-profit, membership organization 18 based in Boston, Massachusetts. FSF helped pioneer a worldwide free software movement and . 19 provides an umbrella of legal and technical infrastructure for collaborative software development 20 internationally. FSF brings this action on behalf of itself and its adversely affected members and 21 22 23 staff. 27. Plaintiff Greenpeace, Inc. (Greenpeace) is a non-profit, membership organization headquartered in Washington, D.C. Through a domestic and international network of offices and 24 staff, Greenpeace uses research, advocacy, public education, lobbying, and litigation to expose 25 global environmental problems and to promote solutions that are essential to a green and peaceful 26 future. Greenpeace brings this action on behalf of itself and its adversely affected members and staff. 27 28 28. ·PlaintiffHuman Rights Watch (HRW) is a non-profit, advocacy organization, based in 5 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 1 New York, New York. Through its domestic and international network of offices and staff, HR W 2 challenges governments and those in power to end abusive practices and respect international human 3 rights law by enlisting the public and the international community to support the cause of human 4 5 rights for all. HRW brings this action on behalf of itself and its adversely affected staff. 29. Plaintiff Media Alliance is a non-profit, membership organization based in Oakland, 6 California. Media Alliance serves as a resource and advocacy center for media workers, non-profit 7 organizations, and social justice activists to make media accessible, accountable, decentralized, 8 representative of society's diversity, and free from covert or overt government control and corporate 9 dominance. Media Alliance brings this action on behalfofitselfand its adversely affected members IO and staff. 11 30. Plaintiff National Lawyers Guild, Inc. is a non-profit corporation fonned in 1937 as 12 the nation's first racially integrated voluntary bar association. For over seven decades the Guild has 13 represented thousands of Americans critical of government policies, from antiwar, environmental 14 and animal rights activists, to Occupy Wall Street protesters, to individuals accused of computer15 related offenses. From 1940-1975 the FBI conducted a campaign of surveillance, investigation and 16 disruption against the Guild and its members, trying unsuccessfully to label it a subversive 17 organization. The NLG brings this action on behalf of itself and its adversely affected membership 18 and staff. 19 31. Plaintiff National Organization for the Reform of Marijuana Laws, California Chapter 20 (NORML, California Chapter) is a non-profit, membership organization located in Berkeley, 21 California. NORML, California Chapter is dedicated to refonning California's marijuana laws and 22 its mission is to establish the right of adults to use cannabis legally. NORML, California Chapter 23 brings this action on behalf of itself and its adversely affected members and staff. 24 25 32. Plaintiff Patient Privacy Rights (PPR) is a bipartisan, non-profit organization with 12,000 members in all 50 states. It works to give patients control over their own sensitive health 26 information in electronic systems, with the goal of empowering privacy and choices that protect jobs 27 and opportunities and ensure trust in the patient-physician relationship. The lack of privacy of health 28 6 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 1 infonnation causes millions ofindividuals every year to refuse or delay needed medical treatment or 2 hide infonnation, putting their health at risk. PPR brings this action on behalf of itself and its 3 adversely affected members and volunteers. 4 33. Plaintiff People for the American Way (PF AW) is a non-profit, membership 5 organization based in Washington, D.C. With over 595,000 members, PF AW's primary function is 6 the education of its members, supporters, and the general public as to important issues that impact 7 fundamental civil and constitutional rights and freedoms, including issues concerning civil liberties, 8 government secrecy, improper government censorship, and First Amendment freedoms. PFAW 9 brings this action on behalf of itself and its adversely affected members and staff. l0 11 34. Plaintiff Public Knowledge is a non-profit, advocacy organization based in Washington, D.C. Public Knowledge is dedicated to preserving the openness of the Internet and the 12 public's access to knowledge, promoting creativity through the balanced application of copyright 13 laws, and upholding and protecting the rights of consumers to use innovative technology lawfully. 14 Public Knowledge brings this action on behalf of itself and its adversely affected staff. l5 35. Plaintiff the Shalom Center seeks to be a prophetic voice in Jewish, multireligious, and 16 American life. It connects the experience and wisdom of the generations forged in the social, 17 political, and spiritual upheavals of the last half-century with the emerging generation of activists, 18 addressing with special concern the planetary climate crisis and the power configurations behind that 19 crisis. The Shalom Center brings this action on behalf of itself and its adversely affected membership 20 and staff. 21 36. Plaintiff Students for Sensible Drug Policy (SSDP) is a non-profit, membership 22 organization based in Washington, D.C. With over 3,000 members, SSDP is an international, 23 grassroots network of students who are concerned about the impact drug abuse has on our 24 communities, but who also know that the War on Drugs is failing our generation and our society. 25 SSDP creates change by bringing young people together and creating safe spaces for students of all 26 political and ideological stripes to have honest conversations about drugs and drug policy. SSDP 27 brings this action on behalf of itself and its adversely affected membership and staff. 28 7 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 37. Plaintiff TechFreedom is a non-profit, think tank based in Washington, D.C. 2 TechFreedom's mission is promoting technology that improves the human condition and expands 3 individual capacity to choose by educating the public, policymakers, and thought leaders about the 4 kinds of public policies that enable technology to flourish. TechFreedom seeks to advance public 5 policy that makes experimentation, entrepreneurship, and investment possible, and thus unleashes 6 the ultimate resource: human ingenuity. TechFrccdom brings this action on behalf of itself and its 7 adversely affected staff. 8 38. Plaintiff Unitarian Univcrsalist Service Committee (UUSC) is a non-profit, 9 membership organization based in Cambridge, Massachusetts. UUSC advances human rights and I 0 social justice around the world, partnering with those who confront unjust power structures and 11 mobilizing to challenge oppressive policies. Through a combination of advocacy, education, and 12 partnerships with grassroots organizations, UUSC promotes economic rights, advances 13 environmental justice, defends civil liberties, and preserves the rights of people in times of 14 humanitarian crisis. UUSC brings this action on behalf of itself and its adversely affected members 15 and staff. 16 39. All Plaintiffs make and receive telephone calls originating within the United States in 17 furtherance of their mission and operations. In particular, Plaintiffs make and receive telephone calls 18 to and from their members, staffs, and constituents, among other groups and individuals seeking to 19 associate with them, in furtherance of their mission and operations, including advancing their 20 political beliefs, exchanging ideas, and formulating strategy and messages in support of their causes. 21 40. Each of the Plaintiffs above is a membership organization and brings this action on 22 behalf of its members has members whose communications information has been collected as part of 23 the Associational Tracking Program. 24 41. Defendant NSA is an agency under the direction and control of the Department of 25 Defense that seizes, collects, processes, and disseminates signals intelligence. It is responsible for 26 carrying out at least some of the Associational Tracking Program challenged herein. 27 28 42. Defendant General Keith B. Alexander is the current Director of the NSA, in office 8 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 1 since April of 2005. As NSA Director, General Alexander has authority for supervising and 2 implementing all operations and functions of the NSA, including the Associational Tracking 3 Program. General Alexander personally authorizes and supervises the Associational Tracking 4 Program. 5 43. Defendant United States is the United States of America, its departments, agencies, 6 and entities. 7 44. Defendant Department of Justice is a Cabinet-level executive department in the United 8 States government charged with law enforcement, defending the interests of the United States 9 according to the law, and ensuring fair and impartial administration of justice for all Americans. IO 11 45. Defendant Eric H. Holder is the current Attorney General of the United States, in office since February of2009. Attorney General Holder personally approves, authorizes, supervises, 12 and participates in the Associational Tracking Program on behalf of the Department of Justice. 13 46. Defendant John B. Carlin is the current Acting Assistant Attorney General for 14 National Security. In that position, defendant Carlin participates in the Department of Justice's 15 16 implementation of the Associational Tracking Program. 47. Defendant Federal Bureau oflnvestigation (FBI) is a component of the Department of 17 Justice that conducts federal criminal investigation and collects domestic intelligence. FBI is 18 responsible for carrying out at least some of the Associational Tracking Program activities 19 challenged herein. 20 48. Defendant James B. Corney is the current Director of the FBI, in office since 21 September of2013. As FBI Director, defendant Corney has ultimate authority for supervising and 22 implementing all operations and functions of the FBI, including its participation in the Associational 23 Tracking Program. Defendant Corney personally authorizes and supervises the FBI's participation in 24 the Associational Tracking Program. 25 49. Defendant Robert S. Mueller is the previous Director of the FBI, from September, 26 2001-September, 2013. As FBI Director, defendant Mueller had ultimate authority for supervising 27 and implementing all operations and functions of the FBI, including its participation in the 28 9 FIRST AMENDED COMPLAINT CASE NO. l 3-cv-3287 JSW Associational Tracking Program. Defendant Mueller personally authorized and supervised the FBI's 2 participation in the Associational Tracking Program. 3 50. Defendant Lieutenant General (Ret.) James R. Clapper is the Director of National 4 Intelligence (DNI), in office since August of 20 I 0. Defendant Clapper participates in the activities of 5 the U.S. intelligence community, including the Associational Tracking Program. 6 51. Defendants DOES 1-100 are persons or entities who have authorized or participated in 7 the Associational Tracking Program. Plaintiffs will allege their true names and capacities when 8 ascertained. Upon information and belief each is responsible in some manner for the occurrences 9 herein alleged and the injuries to Plaintiffs herein alleged were proximately caused by the acts or IO omissions of DOES 1-100 as well as the named Defendants. FACTUAL ALLEGATIONS RELATED TO ALL COUNTS 11 STATUTORY BACKGROUND 12 13 50 U.S.C § 1861, the codification of section 215 of the USA PATRIOT Act, as 52. 14 amended, is entitled "Access to certain business records for foreign intelligence and surveillance 15 purposes." Section 1861 provides narrow and limited authority for the Foreign Intelligence 16 Surveillance Court (FISC) to issue orders for the production of "any tangible things (including 17 books, records, papers, documents, and other items) for an investigation to obtain foreign 18 intelligence information not concerning a United States person or to protect against international 19 terrorism or clandestine intelligence activities." The limitations on section 1861 orders include the 20 following: 21 • an order may be issued only upon "a statement of facts showing that there arc 22 reasonable grounds to believe that the tangible things sought are relevant to an 23 authorized investigation;" 24 • sufficient particularity to permit them to be fairly identified;" and 25 26 27 28 the tangible things sought to be produced by an order must be described ••with • an order "may only require the production of a tangible thing if such thing can be obtained with a subpoena duces tecum issued by a court of the United States in aid of IO FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW a grand jury investigation or with any other order issued by a court of the United 2 States directing the production of records or tangible things." 3 THE ASSOCIATIONAL TRACKING PROGRAM 4 53. The Associational Tracking Program is electronic surveillance that collects and 5 acquires telephone communications information for all telephone calls transiting the networks of all 6 major American telecommunication companies, including Verizon, AT&T, and Sprint. Every day, 7 the Associational Tracking Program collects information about millions of telephone calls made by 8 millions of Americans. This includes information about all calls made wholly within the United 9 States, including local telephone calls, as well as communications between the United States and 10 abroad. 11 54. Defendants' Associational Tracking Program collects and acquires call detail records 12 and comprehensive communications routing information about telephone calls. The collected 13 information includes, but is not limited to, session identifying information (e.g., originating and 14 terminating telephone number, International Mobile Subscriber Identity (IMSI) number, 15 International Mobile station Equipment Identity (IMEi) number, etc.), trunk identifier, telephone 16 calling card numbers, and time and duration ofcall. Defendants acquire this information through the 17 use of a surveillance device. 18 55. Beginning in 2001, participating phone companies voluntarily provided telephone 19 communications information for the Associational Tracking program to Defendants. Since 2006, the 20 FISC, at the request of Defendants, has issued orders under 50 U.S.C. § 1861 purporting to compel 21 the production of communications information, including communications information not yet in 22 existence, on an ongoing basis, as part of the Associational Tracking Program. 23 56. As an example, attached hereto as Exhibit A, and incorporated herein by this 24 reference, is an Order issued under 50 U.S.C. § 1861 requiring the production of communications 25 26 information for use in the Associational Tracking Program. 57. DNI Clapper has admitted the Order is authentic, as indicated in Exhibit B, attached 27 hereto and incorporated by this reference. 28 11 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 58. The Order is addressed to Verizon Business Network Services Inc., on behalfofMCI 2 Communications Services Inc., d/b/a Verizon Business Services (individually and collectively 3 "Verizon"). Verizon is one of the largest providers of telecommunications services in the United 4 States with over 98 million subscribers. Through its subsidiaries and other affiliated entities that it 5 owns, controls, or provides services to, Verizon provides telecommunications services to the public 6 and to other entities. These subsidiaries and affiliated entities include Verizon Business Global, 7 LLC; MCI Communications Corporation; Verizon Business Network Services, Inc.; MCI 8 Communications Services, Inc.; and Verizon Wireless (Cellco Partnership). BULK SEIZURE COLLECTION, ACQUISITION, AND STORAGE 9 10 11 59. The Associational Tracking Program seizes, collects and acquires telephone communications infonnation for all telephone calls transiting the networks of all major American 12 telecommunication companies, including Verizon, AT&T, and Sprint. 13 60. The telephone communications infonnation Defendants seize, collect and acquire in 14 bulk as part of the Associational Tracking Program is retained and stored by Defendants in one or 15 more databases. These databases contain call information for all, or the vast majority, of calls wholly 16 within the United States, including local telephone calls, and calls between the United States and 17 abroad, for a period of at least five years. Defendants have indiscriminately obtained and stored the 18 telephone communications infonnation of millions of ordinary Americans, including Plaintiffs, their 19 members, and staffs, as part of the Associational Tracking Program. 20 21 61. Defendants' bulk seizure, collection and acquisition of telephone communications infonnation includes, but is not limited to, records indicating who each customer communicates 22 with, at what time, and for how long. The aggregation of this information discloses the expressive, 23 political, social, personal, private, and intimate associational connections among individuals and 24 groups, which ordinarily would not be disclosed to the public or the government. 25 62. Through the Associational Tracking Program, Defendants have seized, collected, 26 acquired, and retained, and continue to seize, collect, acquire, and retain, bulk communications 27 infonnation of telephone calls made and received by Plaintiffs, their members, and their staffs. This 28 12 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW information is othetwise private. 2 63. Because of the Associational Tracking Program, Plaintiffs have lost the ability to 3 assure confidentiality in the fact of their communications to their members and constituent. 4 Plaintiffs' associations and political advocacy efforts, as well as those of their members and staffs, 5 are chilled by the fact that the Associational Tracking Program creates a permanent record of all of 6 Plaintiffs' telephone communications with their members and constituents, among others. 7 64. Plaintiffs' associations and political advocacy efforts, as well as those of their 8 members and staffs, are chilled by Defendants' search and analysis ofinformation obtained through 9 the Associational Tracking Program and Defendants' use and disclose of this information and the 10 results of their searches and analyses. 11 65. Plaintiffs' telephone communications information obtained, retained, and searched 12 pursuant to the Associational Tracking Program was at the time of acquisition, and at all times 13 thereafter, neither relevant to an existing authorized criminal investigation nor to an existing 14 authorized investigation to protect against international terrorism or clandestine intelligence 15 activities. 16 66. Defendants' bulk seizure, collection, acquisition, and retention of the telephone 17 communications information of Plaintiffs, their members, and their staffs is done without lawful 18 authorization, probable cause, and/or individualized suspicion. It is done in violation of statutory and 19 constitutional limitations and in excess of statutory and constitutional authority. Any judicial, 20 administrative, or executive authorization (including any order issued pursuant to the business 21 records provision of50 U.S.C. § 1861) of the Associational Tracking Program or of the acquisition 22 and retention of the communications information of Plaintiffs, their members, and their staffs is 23 24 unlawful and invalid. 67. Defendants' bulk seizure, collection, acquisition, and retention of the telephone 25 communications information of Plaintiffs, their members, and their staffs is done (a) without 26 probable cause or reasonable suspicion to believe that Plaintiffs, their members, and their staffs have 27 committed or are about to commit any crime or engage in any international terrorist activity; (b) 28 13 FIRST AMENDED COMPLAINT CASE NO. l 3-cv-3287 JSW without probable cause or reasonable suspicion to believe that Plaintiffs, their members, or their 2 staffs are foreign powers or agents of foreign powers; and (c) without probable cause or reasonable 3 suspicion to believe that the communications of Plaintiffs, their members, and their staffs contain or 4 pertain to foreign intelligence information, or relate to an investigation to obtain foreign intelligence 5 information. 6 68. Defendants, and each of them, have authorized, approved, supervised, performed, 7 caused, participated in, aided, abetted, counseled, commanded, induced, procured, enabled, 8 contributed to, facilitated, directed, controlled, assisted in, or conspired in the Associational Tracking 9 Program and in the seizure, collection, acquisition, and retention of the telephone communications l 0 information of Plaintiffs, their members, and their staffs. Defendants have committed these acts 11 willfully, knowingly, and intentionally. Defendants continue to commit these acts and will continue 12 to do so absent an order of this Court enjoining and restraining them from doing so. SEARCH 13 14 69. Through the Associational Tracking Program, Defendants have searched and continue 15 to search communications information of telephone calls made and received by Plaintiffs, their 16 members, and their staffs. Defendants use the communications information acquired for the 17 Associational Tracking Program for a process known as "contact chaining" - the construction of an 18 associational network graph that models the communication patterns of people, organizations, and 19 their associates. 20 70. As part of the Associational Tracking Program, contact chains are created both in an 21 automated fashion and based on particular queries. Contact chain analyses are typically performed 22 for two degrees of separation (or two "hops") away from an intended target. That is, an associational 23 network graph would be constructed not just for the target of a particular query, but for any number 24 in direct contact with that target, and any number in contact with a direct contact of the target. 25 Defendants sometimes conduct associational analyses up to three degrees of separation ("three 26 27 28 hops") away. 71. The searches include Plaintiffs' communications information even if plaintiffs are not 14 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW targets of the government and even if they are not one, two or more "hops" away from a target. All 2 telephone communications infonnation is searched as part of the Associational Tracking Program. 3 72. Plaintiffs' telephone communications infonnation searched pursuant to the 4 Associational Tracking Program was, at the time of search and at all times thereafter, was neither 5 relevant to an existing authorized criminal investigation nor to an existing authorized investigation to 6 protect against international terrorism or clandestine intelligence activities. 7 73. Defendants' searching of the telephone communications infonnation of Plaintiffs is 8 done without lawful authorization, probable cause, and/or individualized suspicion. It is done in 9 violation of statutory and constitutional limitations and in excess of statutory and constitutional lO authority. Any judicial, administrative, or executive authorization (including any business records ll order issued pursuant 50 U.S.C. § 1861) of the Associational Tracking Program or of the searching 12 of the communications infonnation of Plaintiffs is unlawful and invalid. 13 74. Defendants' searching of the telephone communications infonnation of Plaintiffs is 14 done (a) without probable cause or reasonable suspicion to believe that Plaintiffs, their members, or 15 their staffs, have committed or are about to commit any crime or engage in any international terrorist 16 activity; (b) without probable cause or reasonable suspicion to believe that Plaintiffs, their members, 17 or their staffs are foreign powers or agents of foreign powers; and (c) without probable cause or 18 reasonable suspicion to believe that Plaintiffs', their members', or their staffs' communications 19 contain or pertain to foreign intelligence infonnation or relate to an investigation to obtain foreign 20 intelligence information. 21 75. Defendants, and each of them, have authorized, approved, supervised, performed, 22 caused, participated in, aided, abetted, counseled, commanded, induced, procured, enabled, 23 contributed to, facilitated, directed, controlled, assisted in, or conspired in the Associational Tracking 24 Program and in the search or use of the telephone communications information of Plaintiffs, their 25 members, and their staff. Defendants have committed these acts willfully, knowingly, and 26 intentionally. Defendants continue to commit these acts and will continue to do so absent an order of 27 this Court enjoining and restraining them from doing so. 28 15 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW INJURY COMMON TO ALL PLAINTIFFS 2 76. Each and every Plaintiff is informed and believes that its associational activities have 3 been banned since the existence of the Associational Tracking Program became publicly known. 4 Each Plaintiff has experienced a decrease in communications from members and constituents who 5 had desired the fact of their communication to Plaintiff to remain secret, especially from the 6 government and its various agencies, or has heard employees, members or associates express 7 concerns about the confidentiality of the fact of their communications with Plaintiffs. Those 8 Plaintiffs who operate hotlines have observed a decrease in calls to the hotlines and/or an increase in 9 callers expressing concern about the confidentiality of the fact of their communications. Since the 10 disclosure of the Associational Tracking Program, Plaintiffs have lost the ability to assure their 11 members and constituents, as well as all others who seek to communicate with them, that the fact of 12 their communications to Plaintiffs will be kept confidential, especially from the federal government, 13 including its various agencies. This injury stems not from the disclosure of the Associational 14 Tracking Program, but from the existence and operation of the program itself. Before the public 15 disclosure of the program, Plaintiffs' assurances of confidentiality were illusory. 16 17 77. For instance, these specific Plaintiffs experienced the following: {a) Plainitff First Unitarian has a proud history of working for justice and 18 protecting people in jeopardy for expressing their political views. In the 1950s, it resisted the 19 McCarthy hysteria and supported blacklisted Hollywood writers and actors, and fought California's 20 'loyalty oaths' all the way to the Supreme Court. And in the 1980s, it gave sanctuary to refugees from 21 civil wars in Central America. The principles ofits faith often require the church to take bold stands 22 on controversial issues. Church members and neighbors who come to the church for help should not 23 fear that their participation in the church might have consequences for themselves or their families. 24 This spying makes people afraid to belong to the church community. 25 (b) Plaintiff Calguns Foundation runs a hotline for that allows the general public 26 to call to ask questions about California's byzantine firearms laws. It has members who would be 27 very worried about having their calls taped and stored by NSA/FBI when they're enquiring about 28 16 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW whether firearms and parts they possess are felonious in California. It has a phone number 2 specifically so people or their loved ones can call from jail becaues Californians are often arrested 3 for actually innocent possession oruse of firearms. 4 (c) PlaintiffNLG notes that much of its work involves cases (some high profile) 5 involving individuals who have been charged with aiding terrorism or who have been monitored by 6 the FBI and Joint Terrorism Task Forces for their political activism. Knowledge that its email and 7 telephonic communications may likely be monitored has resulted in restricting what its employees 8 and members say over the telephone and in email about legal advocacy and work related to NLG 9 litigation or legal defense committees. In several instances, it has had to convene in-person meetings I 0 to discuss sensitive matters. One example is its "Green Scare" hotline for individuals contacted by 11 the FBI, either as targets or in relation to environmental or animal rights cases. NLG immediately 12 advises Hotline callers that the line may not be secure, asks limited information before referring 13 callers to specific NLG attorneys in their geographic area, and does not keep notes or records of the 14 calls. One foundation funder asks for records of Hotline calls, but in response the NLG can only send 15 general examples of the types of calls it receives. (d) 16 Plaintiff Human Rights Watch conducts research and advocacy such that its 17 effectiveness and credibility depend heavily on being able to interview those with direct knowledge 18 of human rights abuses, be they victims, witnesses, perpetrators, or knowledgeable bystanders such 19 as government officials, humanitarian agencies, lawyers and other civil society partners. Because 20 this type of research and reporting can endanger people and organizations, our stakeholders21 including even our researchers and/or consultants--often require us to keep their identities or other 22 identifying information confidential. HRW has staff in these offices who talk to the above23 mentioned types of stakeholders by telephone to conduct research. HRWis concerned that many of 24 these stakeholders will have heightened concerns about contacting us through our offices now that 25 we are aware the NSA is logging metadata of these calls. This impairs HR W's research ability 26 and/or causes HRW to rely more on face-to-face encounters or other costly means of holding secure 27 conversations. 28 17 FIRST AMENDED COMPLAINT CASE NO. l 3-cv-3287 JSW (e) Plaintiff Shalom Center's Executive Director, Rabbi Arthur Waskow, was 2 subjected to COINTELPRO activity (warrantless searches, theft, forgery) by the FBI between 1968 3 and 1974. He took part in a suit against the FBI and the Washington DC police (Hobson v. Wilson) 4 for deprivation of the "right of the people peaceably to assemble." Rabbi Waskow won in DC 5 Federal District Court and the part of the suit that focused on the FBI was upheld in the DC Circuit 6 Court of Appeals. The result of this experience is that he has been very troubled and frightened by 7 the revelations of warrantless mass searches of telephone and Internet communications by the NSA. 8 For several weeks, as the revelations continued, Rabbi Waskow realized the likelihood that the 9 organization he leads, the Shalom Center, and he were under illegitimate surveillance and 10 because of its involvement in legal and nonviolent opposition to US government policy in several 11 fields -possibly worse. This realization made him rethink whether he wanted to continue in sharp 12 prophetic criticism and action in regard to disastrous public policies. Rabbi Waskow had trouble 13 sleeping, delayed some essays and biogs he had been considering, and worried whether his actions 14 might make trouble for nonpolitical relatives. Rabbi Waskow certainly felt a chill fall across his 15 work of peaceable assembly, association, petition, and the free exercise of his religious convictions. 16 COUNT I 17 Violation of First Amendment-Declaratory, Injunctive, and Other Equitable Relief (Against All Defendants) 18 19 20 21 22 23 24 25 26 27 28 78. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs of this complaint, as if set forth fully herein. 79. Plaintiffs, their members, and their staffs use telephone calls to communicate and to associate within their organization, with their members and with others, including to communicate anonymously and to associate privately. 80. By their acts alleged herein, Defendants have violated and are violating the First Amendment free speech and free association rights of Plaintiffs, their members, and their staffs, including the right to communicate anonymously, the right to associate privately, and the right to engage in political advocacy free from government interference. 81. By their acts alleged herein, Defendants have chilled and/or threaten to chill 18 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 1 the legal associations and speech of Plaintiffs, their members, and their staffs by, among other 2 things, compelling the disclosure of their political and other associations, and eliminating Plaintiffs' 3 ability to assure members and constituents that the fact of their communications with them will be 4 kept confidential. 5 82. Defendants are irreparably harming Plaintiffs, their members, and their staffs by 6 violating their First Amendment rights. Plaintiffs have no adequate remedy at law for Defendants' 7 continuing unlawful conduct, and Defendants will continue to violate Plaintiffs' legal rights unless 8 enjoined and restrained by this Court. 9 83. Plaintiffs seek that this Court declare that Defendants have violated the First 10 Amendment rights of Plaintiffs, their members, and their staffs; enjoin Defendants, their agents, 11 successors, and assigns, and all those in active concert and participation with them from violating the 12 First Amendment to the United States Constitution; and award such other and further equitable relief 13 as is proper. 14 COUNT II 15 Violation of Fourth Amendment-Declaratory, Injunctive, and Equitable Relief (Against All Defendants) 16 17 18 19 20 21 22 23 24 25 26 27 28 84. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs I through 66 of this complaint, as if set forth fully herein. 85. Plaintiffs have a reasonable expectation of privacy in their telephone communications, including in their telephone communications information. 86. 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, including, but not limited to, obtainingper se unreasonable general warrants. Defendants have further violated Plaintiffs' rights by failing to apply to a court for, and for a court to issue, a warrant prior to any search and seizure as guaranteed by the Fourth Amendment. 87. Defendants are now engaging in and will continue to engage in the above-described violations of Plaintiffs' constitutional rights, and are thereby irreparably harming Plaintiffs. 19 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW Plaintiffs have no adequate remedy at law for Defendants' continuing unlawful conduct, and 2 Defendants will continue to violate Plaintiffs' legal rights unless enjoined and restrained by this 3 Court. 4 88. Plaintiffs seek that this Court declare that Defendants have violated their Fourth 5 Amendment rights; enjoin Defendants, their agents, successors, and assigns, and all those in active 6 concert and participation with them from violating the Plaintiffs' rights under the Fourth 7 Amendment to the United States Constitution; and award such other and further equitable relief as is 8 proper. 9 COUNT III IO Violation of Fifth Amendment-Declaratory, Injunctive, and Equitable Relief (Against All Defendants) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 89. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs I through 66 of this complaint, as if set forth fully herein. 90. Plaintiffs, their members, and their staffs have an informational privacy interest in their telephone communications information, which reveals sensitive information about their personal, political, and religious activities and which Plaintiffs do not ordinarily disclose to the public or the government. This privacy interest is protected by state and federal laws relating to privacy of communications records and the substantive and procedural right to due process guaranteed by the Fifth Amendment. 91. Defendants through their Associational Tracking Program secretly seize, collect, acquire, retain, search, and use the bulk telephone communications information of Plaintiffs, their members, and their staff without providing notice to them, or process by which they could seek redress. Defendants provide no process adequate to protect their interests. 92. Defendants seize, collect, acquire, retain, search, and use the bulk telephone communications information of Plaintiffs, their members, and their staff without making any showing of any individualized suspicion, probable cause, or other governmental interest sufficient or narrowly tailored to justify the invasion of Plaintiffs' due process right to informational privacy. 93. Defendants seize, and acquire the bulk telephone communications information of 20 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW Plaintiffs, their members, and their staffunder, inter alia, section 215 of the USA-PATRIOT Act (50 2 u.s.c. § 1861). 3 94. On infonnation and belief, Defendants' infonnation seizure, collection and acquisition 4 activities rely on a secret legal interpretation of 50 U.S.C. § 1861 under which bulk telephone 5 communications information of persons generally is as a matter of law deemed a "tangible thing" 6 "relevant" to "an investigation to obtain foreign intelligence information not concerning a United 7 States person or to protect against international terrorism or clandestine intelligence activities," even 8 without any particular reason to believe that telephone communications information is a "tangible 9 thing" or that the telephone communications information of any particular person, including I 0 Plaintiffs, their members, and their staff, is relevant to an investigation to obtain foreign intelligence 11 information not concerning a U.S. person or to protect against international terrorism or clandestine 12 intelligence activities. 13 95. This legal interpretation of 50 U.S.C. § 1861 is not available to the general public, 14 including Plaintiffs, their members, and their staff, leaving them and all other persons uncertain 15 about where a reasonable expectation of privacy from government intrusion begins and ends and 16 specifically what conduct may subject them to electronic surveillance. 17 96. This secret legal interpretation of 50 U.S.C. § 1861, together with provisions of the 18 FISA statutory scheme that insulate legal interpretations from public disclosure-and adversarial 19 process, fails to establish minimal guidelines to govern law enforcement and/or intelligence seizure 20 and collection. 21 97. The secret legal interpretation of 50 U.S.C. § 1861 used in the Associational Tracking 22 Program and related surveillance programs causes section 1861 to be unconstitutionally vague in 23 violation of the Fifth Amendment and the rule oflaw. The statute on its face gives no notice that it 24 could be construed to authorize the bulk seizure and collection of telephone communications 25 26 information for use in future investigations that do not yet exist. 98. By these and the other acts alleged herein, Defendants have violated and are 27 continuing to violate the right to due process under the Fifth Amendment of Plaintiffs, their 28 21 FIRST AMENDED COMPLAINT CASE NO. I 3-cv-3287 JSW members, and their staff. 2 99. By the acts alleged herein, Defendants' conduct proximately caused harm to Plaintiffs. 3 100. On information and belief, Defendants are now engaging in and will continue to 4 engage in the above-described violations of Plaintiffs' constitutional rights, and are thereby 5 irreparably harming Plaintiffs. Plaintiffs have no adequate remedy at law for Defendants' continuing 6 unlawful conduct, and Defendants will continue to violate Plaintiffs' legal rights unless enjoined and 7 restrained by this Court. 8 l 0 l. Plaintiffs seek that this Court declare that Defendants have violated their due process 9 rights under the Fifth Amendment to the United States Constitution; enjoin Defendants, their agents, 10 successors, and assigns, and all those in active concert and participation with them from violating the 11 Plaintiffs' due process rights; and award such other and further equitable relief as is proper. 12 COUNT IV 13 Violation of 50 U.S.C. § 1861-Declaratory, Injunctive and Other Equitable Relief (Against All Defendants) 14 15 16 17 18 19 20 21 22 23 24 102. Plaintiffs repeat and incorporate herein by reference the allegations in paragraph 1 through 66 of this complaint, as if set forth fully herein. 103. The business records order provision set forth in 50 U.S.C. § 1861 limits Defendants' ability to seek telephone communications information. It docs not permit the suspicionlcss bulk seizure and collection of telephone communications information unconnected to any ongoing investigation. It does not permit an order requiring the production of intangible things, including telephone communications information not yet in existence. 104. Defendants' Associational Tracking Program and the seizure, collection, acquisition, retention, searching, and use of the telephone communications records of Plaintiffs, their members, and their staff exceed the conduct that may be lawfully authorized by an order issued under 50 U.S.C 25 § 1861. 26 105. By the acts alleged herein, Defendants are acting in excess of their statutory authority and in violation of the express statutory limitations and procedures Congress has imposed on them in 27 28 50 u.s.c. § 1861. 22 FIRST AMENDED COMPLAINT CASE NO. l 3-cv-3287 JSW 2 106. Sovereign immunity for this claim is waived by 5 U.S.C. § 702. I 07. Defendants are now engaging in and will continue to engage in the above-described 3 acts in excess of Defendants' statutory authority and in violation of statutory limitations and 4 procedures of 50 U .S.C. § 1861 and are thereby irreparably harming Plaintiffs. Plaintiffs have no 5 adequate remedy at law for Defendants' continuing unlawful conduct, and Defendants will continue 6 7 to violate Plaintiffs' legal rights unless enjoined and restrained by this Court. I 08. Plaintiffs seek that this Court declare that Defendants have acted in excess of 8 Defendants' statutory authority and in violation of statutory limitations and procedures of 50 U.S.C. 9 § 1861; declare that Defendants have thereby irreparably harmed and will continue to irreparably I 0 harm Plaintiffs; enjoin Defendants, their agents, successors, and assigns, and all those in active 11 concert and participation with them from acting in excess of Defendants' statutory authority and in 12 violation of statutory limitations and procedures of 50 U .S.C. § 1861; and award such other and 13 further equitable relief as is proper. 14 COUNTY 15 Motion For Return Of Unlawfully Searched And Seized Property Pursuant To Federal Ruic of Criminal Procedure 41(g) 16 17 18 19 20 21 22 23 24 25 26 27 28 109. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs I through 97 of this complaint, as if set forth fully herein. 110. This Court has civil equitable jurisdiction under Federal Rule of Criminal Procedure 4l(g) to order the return of illegally searched and seized property. 111. Defendants, by their Associational Tracking Program and their bulk seizure, collection, acquisition, retention, searching, and use ofthe telephone communications information of Plaintiffs, have unlawfully searched and seized Plaintiffs' telephone communications information. Plaintiffs are aggrieved by Defendants unlawful seizure and search of their telephone communications information. 112. Plaintiffs seek an order directing the return of their telephone communications information in the possession, custody, or control of Defendants, their agents, successors, and assigns, and all those in active concert and 23 participation with them. FIRST AMENDED COMPLAINT CASE NO. l 3-cv-3287 JSW PRAYER FOR RELIEF 2 WHEREFORE, Plaintiffs respectfully request that the Court: 3 I. Declare that the Program as alleged herein violates without limitation Plaintiffs' 4 rights under the First, Fourth, and Fifth Amendments to the Constitution; and their 5 statutory rights; 6 2. Award to Plaintiffs equitable relief, including without limitation, a preliminary and 7 permanent injunction pursuant to the First, Fourth, and Fifth Amendments to the 8 United States Constitution prohibiting Defendants' continued use of the Program, 9 and a preliminary and permanent injunction pursuant to the First, Fourth, and Fifth IO Amendments requiring Defendants to provide to Plaintiffs an inventory of their 11 communications, records, or other information that was seized in violation of the 12 First, Fourth, and Fifth Amendments, and further requiring the destruction of all 13 copies of those communications, records, or other information within the possession, 14 custody, or control of Defendants. 15 3. permitted by law. 16 17 Award to Plaintiffs reasonable attorneys' fees and other costs of suit to the extent 4. Order the return and destruction of their telephone communications information in 18 the possession, custody, or control of Defendants, their agents, successors, and 19 assigns, and all those in active concert and participation with them. 20 21 22 23 24 25 26 5. Grant such other and further relief as the Court deems just and proper. DATED: September 10, 2013 Respectfully submitted, Isl Cindy Cohn CINDY COHN LEE TIEN KURT OPSAHL MATTHEW ZIMMERMAN MARKRUMOLD DAVID GREENE JAMES S. TYRE ELECTRONIC FRONTIER FOUNDATION 27 28 24 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 2 3 4 5 6 RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE THOMAS E. MOORE Ill THE MOORE LAW GROUP RACHAEL E. MENY MICHAELS. KWUN BENJAMIN W. BERKOWITZ KEKER & VAN NEST, LLP 7 ARAM ANTARAMIAN LAW OFFICE OF ARAM ANTARAMIAN 8 Attorneys for Plaintiffs 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW 1 2 JURY DEMAND Plaintiffs hereby request a jury trial for all issues triable by jury including, but not limited to, 3 those issues and claims set forth in any amended complaint or consolidated action. 4 DATED: September 10, 2013 5 6 7 8 9 10 ll 12 13 14 15 16 17 18 Respectfully submitted, Isl Cindy Cohn CINDY COHN LEE TIEN KURT OPSAHL MATTHEW ZIMMERMAN MARKRUMOLD DAVID GREENE JAMES S. TYRE ELECTRONIC FRONTIER FOUNDATION RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE THOMAS E. MOORE III THE MOORE LAW GROUP RACHAEL E. MENY MICHAELS. KWUN BENJAMIN W. BERKOWITZ KEKER & VAN NEST, LLP ARAM ANTARAMIAN LAW OFFICE OF ARAM ANTARAMIAN Attorneys for Plaintiffs 19 20 21 22 23 24 25 26 27 28 26 FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW Case3:13-cv-03287-JSW Document86-4 Filed03/10/14 Pagel of 3 Exhibit C Exhibit C UNITED STATES DISTRICT COURT 1 NORTHERN DISTRICT OF CALIFORNIA 2 SAN FRANCISCO DIVISION 3 4 5 6 7 8 ) CAROLYN JEWEL et al., ) ) l'lainti.J:j"s, ) Case No. C:08-cv-4373-VRW ) v. ) NATIONAL SECURITY AGENCY et al., Defendants 9 10 ) ) ) ) Chief Judge Vaughn R. Walker ) ) 11 12 (PR8P88tiBIORDER 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 Reg11rdlng Preserv11tlon of Evidence Jewel el aL v. Nadonal Security Agency et al., Case No. 08-cv-4373-VRW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 18 19 20 21 22 23 24 25 26 27 28 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 serves to identify, locate, or link such material, such as file inventories, file folders, indices and metadata, is also included in this definition. C. "Preservation" 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 arid 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 ifthe 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 (1) halt such business or government practices; 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. Case3:13-cv-03287-JSW Document86-5 Filed03/10/14 Pagel of 5 Exhibit D Exhibit D 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 IN RE: MDL Docket No 06-1791 VRW 12 NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS 13 LITIGATION 14 15 16 ORDER This Document Relates To: ALL CASES 17 5 J.L. 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. 25 Doc # 387. Telephone company defendants AT&T, Cingular, Bellsouth, Sprint and Verizon have joined in the United 26 States's opposition to plaintiffs' motion. 27 28 Doc # 365, 388, 390. Upon careful review of the non-confidential papers submitted in support of and in opposition to the motion, the court has detel:Dli.ned 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 Hepting 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 e== ~ 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 ".E WJO action. 14 the possession, custody and control of the parties to this action, 15 and any employees, agents, contractors, carriers, bailees or other ~ 16 non-parties who possess materials reasonably anticipated to be ;5 .£3 17 subject to discovery in this action. ~ 18 obligation to exercise efforts to identify and notify such non- ·e ~ t:: cS uu .... Co-. ·c tl s.~ =e ~ Cl) Ci} .:::; 'C !z ..... The duty extends to documents, data and tangible things in Counsel are under an 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 1 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 defini ti on. 8 9 C. "Preservation" is to be interpreted broadly to 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 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 'C iS cu :s :.:: cu 0 u (.) _i.... 10 11 0 13 .~ E 14 ~ e OS a> -..c fl'.l t: 15 =·!!l0 II) 'C 0 =..s ~z j:;) 16 (!) 17 ~ 18 ...0 United States District Chief Judge 12 y :S.u VAUGHN R WALI<ER 19 20 21 22 23 24 25 26 27 28 4 Case3:13-cv-03287-JSW Document86-6 Filed03/10/14 Pagel of 8 Exhibit E Exhibit E .. :case3:13.:.cv-0~87-JSW · Document86-6 Filed0.3/10/14 .Page2 of 8 .... . .·· ... C!ridy Qo.hri ~il'.l_dy@.~~~cir~:,. . ·· . . . ·: March 10, 20;4 8:35 AM To:: ~·a~rm~_n,. Marcia· (CIVt_ <Marci!!.Berman@.usdoj.goV>. . ·. cc: "~illigari;:. .:lim ·(CiV}" ~ames,GUilgan@u.sdoj.goV>, "wiebe@pacbell.net" <Wle.be®p'acbe_ILneb., .Stephanie Shattuck.<St~ph@eftorg>, "Thonia$·E. Moore 111 . (tmoore~n:ioo,rela\\1~ani.coin)" <tmoore.@nioorelawteam.co~. ·~Patton, Rodney (CIV)" · · . <~odney~Patt.tjit~us~oj~Q6v.::".,· "Dearinaer;· B~an (CIV)" <Bryan.Dearinger@usdoj.goV>, "llann M." .· Maazel'' <imaazel@ecbalaw.com> · · · · · · · · . · ~~:: ~r~se".V~t~<;>rj ·ot Evtderice .ih J~w$1 NSA !ind First Unitarian Church v. NSA · Secu~i_ty: O.'Sign~Q (cindy@eff.org} v. . ·. . ·._· .. --:.·.--·· -. .. ·•·... ··· . ..... :· . Dear. ~arcy,. .- :·. ·· r ·~ ·soni~t we ~~d n9t hear from you after. my·message on· Saturday asking for further · : ·clarifit;:;atiotj:·ab.q'\it ·how the .government plans to ensure that it. does not spoliate eviden~e. . ·unless.we:_liear frpm :Y9u by noon Qalifomta: time today that-the government does not . mtend"·to··q.e'stfoy:evfq_en~e.tha:t may·be likely to.lead tO the discovery:of:admissible evidence tinder the cia.Uns raised ··in·Je-iNel·and. First Uhitarian cases,. we intend to·.seek a TRO from · ·JUage:White> ;. . ·. . ·. · · . · ··. . · . ·-.-· . ·.·.· ·. .··.. · : Piea~~ ~~··9~~·e~~ ~~· if'~~:u'.d. Iike. t~ .discuss thi$ furthe~ .· My ~ellphone .'is 415-307~2148; ·We·haye nq·d.cisire ;t6_el~vate this:int.o an.:-emergency matter before·the court but believe we . .llave ·no· c~ofoe··Qased u.pon. the govemt'.llent!s· actions .and statements so far. • • • " • • ! I : • . ,: ·Cll:idy ' .·, · : .·· .. >·. ·: . ...,. .. • -~ • • ; • • • • ' •. . ·. ··~.6 · ·:·.,~ ~,:.2bi4,\i~<JA:·43·-P.M', cii:idy c .'. . . ·. ... ·, .... . ·:. :.. .. . . . . .. . .. . . :• : ~ ~ \ • . . <c°in~waieff.rirg> M-o~e:··· <;I troubling to us, as is your _notice to the.court in First •' i : ; : ... . ... .... :-- . ..... . ....·". ..... . : ·: .. -·· . 1:: . .. ·.:'!. · ..· . .. ,· . .. ' ·: . .• . :·"-..' . :., ... . ,· ··~ .. . . ·, ,.· t .·• . ~ . ... . . ~ i i i I ; ·cas.e3:13-cv-03287-JSW Document86-6 Filed03/10/14 Page3 of 8 ·Cindy Qohn.<.cindy@eff~org;· . . Tq:.''B.eri~lari;·MEµ'gia (CIV)''· <Marcia.Bermari@usdoj.goV> March B, 2014 11 :43 AM . 11 11 . Cc:· Gilllg;!n, ~ir:n. (CIV)'' <.James~~illigan@usdoj.goV>, wiebe@pacbell.net11 <Wiebe@pacb Stephanie $hattµ~k·qt~ph@eff.org>, "Thomas E. Moore Ill (tmoore@moorelaWteam.com)" · <tn:ioo.re.@.mobr~law:tea~,com>,: "Patton, Rodney (CIV)" <Rodney.Patton@usdoj.goV>, 11Dearinger, Brya~·(CIV}"_'<Bryar;tDearing~r@usdoj:goV>; 11 llanh M. Maazel 11 <imaazel@ecbalaw.cam> Re: Preservatlorr of "Evidence In Jewel v. NSA seq~nty: &·sig·n~d (cindy@efi:org) ... -·.. --. :.---~....-.:......._: __ ·.·-·_.._ ·.· . Dear Marcy, ·· · . ·-: · : .. ' . : Y~ur re.spQi")..se is·collfusing a,nd troubling to us, as is your. notice to the court in First Ul)itari~·thatyouJritettd"to'be~n to destroy call detail records on Tuesday, March 11, .wJrich i~.Jt;tst:.two ~usi.p.ess days.from now. To. ~e clear, ~e only court '11at can relieve the ,goY~rilln.ent":C:~f its ·oQllgations to :preserv~ evide~ce in our cases! regardless of the basis . for ~o~e'·oqligatj.oµs;·is·:tJie 'i'Torthem- Distrlct of_ Cali(ornia and it.has not done so. This is true in:Jewei_and 'i1tl1Ji~t.Unitan8ri.:. · · . · ·. . . · · A~ you. ~9W,,bofll.:J~ei V;:~SA ~d First Unitarlan Churc.tiv. NSA arise from the ongoing _bulk.c6ll~ction.of telephone records, as did.Hept.iilg·and the.other MDL cases before that .(a,long:with additiona:i.infortnation at issue in.Jewel thafmust also be preserved). Neither the co~pla,futs P:or:th~ prote~tive order mention the "President's Surveillance. Program" so . . .Y.ou~'.referenceJo -~·program i_s· con~sing._. T~e d~s arise Jr.om .the :actual activity of ·. . '. ..btilk. ~·~µe~tj.o~'.anp:' s~t¢::ongoiiig ·<;:l.ainis .regardless·of .the legal or exec;;utive al.J,thority . . undei;: whicH·t!te ·goyerrimerit cl~s·it conducts that. a~tivity.-~t any· po.int in . time. . M~·~~~ye~;~~~-~~ ~~~--~~dei~~d:~o~ ~~ ord~r-~:place iii--~~~el (~d. ·~· · :-.. .. ·preseiVatiori · Shu\>ei:t;):dc>es-.not ·ai~o include ·the preservation of the records at issue. in First Unitarian. fUi,thet :do il;ot ·u_ndei;stand why the government failed to inform ~e FISC ofyour duties ·. in.Jewel arid Shuberfsince· they·require you .to preserve· the same records or why.it waited . .untiljust:befor~· t;he:deadline. to:se~kdarity«?n this i~sue, .resultin'g in ail app,arent .. em~rgency s~tuation.:that.could easily have ·1Jeen avoi4ed. . . .·. ·. · . ., w-e. ·.. · ... .. . .. : :. ·.. . . . . . . . . . . W~·~lis~~k cl~c~ti.6~ .from J:udge Whit~ o"n ~s:.but we urge you QOt to destroy any ·: '. records· rei~vant t~ o.Ur-."clalnis .in ~i~er case until w~ can do so." Please do provide us with · 'fuU.irµon:nation so. that we·~an narrow·the i~sues before the court. Frankly, your·email to .". ~e.y~t~dai and:~g .in t:p:e F,ll'st . Uriitarian·~ase yesterday ~aise mor~ cpnc~_ms, not less, ... .: . . . . that·:fue:.gove~~~t :has not been fulfilling· its duties to preserve relevant evidence in either · · · · ·ca~e. Pfoase··note 'that we.will seek ·a11 available remedies if it turns out that the ... · goyeri:i:me.nt:J;I~~·n.9t abic;led_by Jt~ duties. ·· . :· . . ·. . ·. .. ,' ·. . ·· ·.Cindy· . .. ·:."· ' . .. .. ··• ;'. •. . .. ... ' : .· .. .... ·.. - . -·. :· . ... :.· ... ·. .: . ... . ·.....: .. ··:- .....• .:.-:· : . :. -·.. :·: _:·-.i . ·-·: ·: . · ·. ·· · . · Ca~e3~13-cv-:032S7-JSW OoGument86-6 Filed03/10/14. Page4 of 8 On.Mar 7~'2014,.at 6:.14 PM, "Berm~, Marcia (CIV)" <Marcia.Berman:c1~usctoj.gov> wrote: . C.indy -- In respooseto your.questions regarding the preservation orders in Jewel (~nd the prior . H~ptln,g_cie'C:is.ici9t. t~e Government'~ niotion·to the FISC, and the FISC's.decision today, addr~ssed the rec~nt litigcit~on ~haltenging the FISC-authorized· 'telephony metadata collection under Section 21°5"-.IJtigatio.n asto which the'.re are no preservation orders. As·we indicated last week, the Government's moti.on did not address the·pending Jewel (and Shubert) litigation because the district court had preyiously entered. presen.iation orders applicable to those cases. As we ~lso indicated, since the entry qfthose ·orders the.Government has complied with our preservation obligations in t.hose.cases. At ·the .tim~ the preservation issue was first litigated in the MDL proceedings in 2007, the Govemment s·ubmitted a.classified ex parte, in camera declaration addressing in detail the steps ta.ken to. nieetour im~servatior:i obligations. Because the activities undertaken in connection with tl:i~ Pr~$i.dE!nf'·s"suni~O!an.ce·i>rognim (PSP} we~e not de.classified until.D~cember 2013, we were not . ahie.tc)¢onsuli wlth,ybu.. previously about the specific preservation steps that have.been taken with. · r~spectto the Je~~l.litigation·. 'However, the Government described for the district court in 2007 how it was.meeting 'its prese..:Vation obligations, including with resp_ect to the.information concerning the PSP·activities de~lassified last December"' We have been working with our clients to prepare an ·. ·u·ndassified".sum·tn~ry of .the ·preservation steps described to the court in 2007 so that we can . address :Y_our queStio~s in·~n orderly fashion ~Ith Ji.Jdge White, if you continu·e to: believe that is necessary. . . .. Thanks.-;:MarCV. ._ _.· . ::~- ·. ·> :· -~ .'· .·· ~:~·~~--~.:.:...~. ,:---~···-·· ......... '· ... ,..,. ........ ~: .......,. ·-· :............... ---······-. ..... ~+---···•-.,...· :cclV) .: ·:··: ·.. :· · ·· f'r9ita::Serman{Mart.ia ·Friday,. March 07/2014. 6:14 PM · T9: .Cinqy·~hn ·. . · . . .. · · · · Cc:-"GUligaf.1/:liin·(CIV);·wiebe@pacbell.net; Stephanie Shattuck; Thomas E. Moore III ·(trhoore@tnOorelawteam.cOni); Patton, Rodney(CIV); Dea.ringer, Bryar) (CIV); Ilann M. Maazel · Subjed:"Fw: i>re5erv(;!tion ofEvidE;!nce in Jewel v. NSA . .. · .. ·.•. . . . . . ·''. . . . ·'~·-·"'-•· ..·• ! .•••. .: ·sent: :~ din~y·.,.. .w~~kgi~ b~~k..to~.y~·Li..on"thistod~~. h~pefully within an ho:ur. . . .. . . . . • :" .OF~~~= 6*~ng~:,~~~~~-{ci¥)':·.·····--···:·_·:"· ,.:....... :.,HO . . . ="" .. ·· · . '•' . .$ent: Friqay;_March.07, 2014 .4:39 PM., Jo: Berma_n/Marcia (CIV) . Thanks"'."' Marcy .... ·-··-· ;....;; . .. --- ~................... -·-· .- . . su.bjed:;- fW: ·Preservation of Evidenc~.in Jewel v. NSA ':. ···,·:-~. . ··:·:: .: .. -~·-- :- . . . ~ .. · . . : . .. F.VI ••: • ;.~~~-;.~c.~d;"'eoh~ ·t~~j,t;;;C:iriciv@eff.~rgJ- - -·· .... ·$ent:Jf.iday/March07~·io14 4:37 PM · · . To~· Gilllgaii;.Jtm (CIV). . . · .: . . · . . . . . .. " . · · . · · · Cc::RickWiebe~·Stepha.nie:Shattu<::k; rt\omas'E. Moore :UI; Patton, Rodney (OV);·Dearinger, Bryan (OV}; ·nanri·M:.·M~aze1 · -~ · : · ·. · · · s~·bj~ct:)~e: ~!.~e~ation of. Evidence in Jewel v•. _NSA. : ·: ·._ .. .: .. ':. ···:.·_..-.:·,· ~ ·.:· .. -.:." . ..•. . .. · : ":· . _. ,:. .· :::r '. : .· .. ·~- - .·" ..-oocument86:..s· ·Filed03/l0/14 Pages of s .· ._. ,- ·.·. .:· ·... . .·.· . ..ca5e3:13~cv-03287:-JSW . . .· . . . . ·...... ·. ·. ... .• f.li)im,, .. ' I assu~e· you\~e seell the flSC Order. Can you please explain hmv the court could be under th~ misimpressiqn th~fthere are-no_prese~·vation orders for the telephone records infomrntion in pface given the l1istory . apewel and Hepting: before it'? As you might expect. this is quite alarming to. u~~- . . ......· :we ~v.ifl .. be,-fll~~g ;omethlng.shortl)~ and _I _want to be -s~1ie that we. correctly state your position . "Cindy .Senf from.. my.... phpne . ,. ' •" . On·Feb.2~·,.2914~. at 5;17. PM~ 9i:ndy Cohn <cindy@eff.org> wrote: • ···, ' I . • , ' -,' ' .. · ":' .i-ii'iiin;'·· . .. : ._: .· . . . . ~ . ' . ' • .. ' . _., ·-.. ,'•:We~il·. w~t a bit~ assum·i~g.this doesn't-.drag Oil too.long. Thanks for responding. .. . . . ,' . .. . , :._ >: . . Giricty .... .·.: -i" : ··. -_-:Sent·fyprn--i~y:phone ". . . ;- "· "·:" . . . "Clilligan: .. ...Tin1. .".<Jam~s.Gi11ig~@i1sdol.go~> ...·: ". . . :. ."' ··/..'O~ ~~~-::2s/i6"14~ at ~;26-PM~ >~~~~~< (CIV)" µ ·, .~...._::. ":/~i·~~y, .. ·· .: :> · We d)d·r:e.ceive your e~ail about preservation, ~nd I ~anted to g~t back to ·.. :. ,·:you before the week ended to let you know that we will need a.bit more ~i:i:ie ~~'pr~p~r·e a.-.m~re c~mpl~te,_re~ponse than we will be able to ~o by . .. . : . ' ... rVlQnday•. ;so ·1 wquld a~k that yq_u' forbear from filing anythingwlth the :· ;_ . . . .. F1sc:.or'Judge'Wlii~e, ~ntil we:have fu'r'ther'opportUl'.\ity to confer. ·As you -~ ~pte~;)ewe1 a_nd,-Shu_ber.t are n'ot.speclfically-"me·~tion·ed In the·motion.we : :·: .. · . "filed with the.FISC,·.b·ut as.you als0 o.bservea, the question of.preservation". ·.·· · ·· :.. · . "h.~s· alr~ady bee.n ,litigated in those· cases, and th·e court issued· s~·parate · - · · .· ·· .. · j)(eser-Vatlon orders that gc;>vern there.' Many of the details surrounding . . . ......." ". 'th~' i~telllgence. programs.in cjuestion remain classified; however,· and so ...... · .·: . :: ·.-.."there'.remain. limitatio'ns on ou'r ability to confer with you concerning our .. . ......... :-' co~pli~nc::~ wff~ those orders.'. . . . "' ·.... ,_. . . . .• . . . .·-: 'At.thls po·i~t I n-~~d to .~o~sult fu-~her with my clients to ~scert.ain_ how · · ... · · ... mti~h.Informatiq1{1-can convey toyot:rabout-the Government's· ,. . . ... j)res~rvatlon efforts without revealing classified information~· I si_mply won't be- i~ -a p~sition to 'pro~ide .you with a detail Eld fesponse to your .. : .: ·: ·..:.<-. ':· . ·- .... . .. .. . .... .. .. ~. ~ ' . . ..... ' ~ . .. . -.: ~ .. ., ...... ::. •• ... l . .... .... •• • • •_ • • • • : . ' . .-. ._ · ·_Case3:~3·-cv-03?87-JSW Document86-6 Filed03/10/14 Page6 of 8 . :inquiry by Monday, as you ·reque_st, iri part: because of the work that remains on .our reply to your brief on the court's four questions, and in P.art becayse I w.i.11-be out ·ahhe office on Monday and Tuesday for a family -ski_ trip·; {A.Isa,· as you ob.served, Marcy is presently diverted by another . m_atter_.) --~:ut we will d.o our besno address your questions by the middle . of next week . . . JG . James J. Gilligan Special Qtlgatlon counsel · Chiil Division, Federal ·erograms Branch ....·U.s; Oep.~rtment of Justice : · · . ·p:c)· Box8~3"· Wasllingtbn; O;C. -20044 · .. .... . :. .Tel:" 202~s1ii,.335s . . . · ·. . . : . --- ..'"-·- . - : .... . . .. · __ ·from: .OndyC:Ohnfmailto:cindy@eff.oral ·. :· Serit: Fric;tay, Febru~ry 28, .2014 5:54 PM . . ·. To·:· Gilligar:ii· Jim (OV) . Cc:. RiCk Wiebe; Stephanie-Shattuck; Thomas E. Moore III; ·Patton, Rodney :· (OY);;Deariqger, Bryan (CIV); Uann'M. Maazel · ... ·. ..Subj~ct: .Re~ Preseriation ofEvidence in Jewel v. fllSA · . . . . . . .· .... '" ~--- .... . :.- . . ·.· ·', : · ..·· · ···:: .·;Hi.Jim~· Rodr~ey"and Bry~n, . . . . . . . .. · ... ·' ·'. •' ... .:. " . . '. . ". · ·_. :_ .":/I Just wazj._t¢tho.conflrnfthat you.received·this and. learn \vhc:n'yo~ will 'responding~ · . . .: . ·be. .· .. . . •· · ~ · · · · · · . :- ': ..We)ire pl~i1~g ~o .file something·i.n the 'FISC and before Judge . .. : :_.Walker:early next week and_I do want to \)e able to accurately convey .. .: · · . ':: . .. ... y~w: position.· . .. • . .··.. · .. . , ... . _ · · : .Thri~1k~~ .·:: .. ..·· " ·: _. " :._.: ·: Qn Feb 26~ ~014, ai ~k08 PM, ~indy Cohn <Cindy@eff.org> \\'fote: • ' • • . . . · ~ •:. .... ' • •• ·., • ' ' • • • ·.' ,' • • • • • • ' I ": ....:· :-.--;·":-~{:Jim, . .·· .·. · . · , ·. -:__ ·;Rick'.wilhvi-ite _you ·separatdy about the scheduling, but I wanted to : '.... · .. ."- -~:raise $Ornething that has confused us and to seek 'claritlc_aticin. ·. . . •, t.. : .•. ·.:=. .. ·.· . . ·,.. . . ...... . ..... · ; . . . .. . . · .f· . . ": .-:_."·: .. .! • . :. . . ~ : .~ ·- :: -.· .: .•· . .... . ,. .. ~· ... ·' . .... - .. · . . Case3:·~3-~v.-032B7-~sw DbGument86-6 ·Filed03/10/14 .Pag~7 of a ..· ... We S~"o/ your filing in the FISC asking that the Court's current Primary .Order be amended to authoiize the preservation and/or storage of call detail recqrds b¢yond five years based upon your duty to preserve evidence and nientionfog the First Unitarian case specifically. We do agree that the governril.ent has a duty to preserve all reasonably antidpated to be subject lo discovei-y in this action. We were · .: SUrprfsed, hov~i~ver, t~at you did not approach LIS tO discuss ways that ·this duty could be met sho1t of the request you made. which we read as allowing you to prese1ve all of the mctadata you have collected . . :· .. =we. a1so:~rit~ b.ecause, as 1 think you know, the go:vemmenr has been ·. .. ·):inder an obligatimi to.prese1ve telephone records i~ has coUecte~:t"since . . 'i006, \vheti:the cases tliat niade tip the.MDL action ln Re NSA 'were ·· ~ (lrst'f11ecl~ ·".One··ofthose .cases. Shube1t v. Obama,. h~ remained · ..··. ongoing si!~.cethat tinie. T.l1at.obligati~n was reiriforced by. ah Order . .. ., .. issued. by J1:1dge ·walker in 2007 and order·was specifically adopted by :.. the courtmJewel'.v. NSA in 2009 by a joint request by the·government ·. · and the.pla~ritiffs. (Jewel v. NSA, Doc. 51 ). . . ·'· ' ........ .. ·.·Thus my" c9~fu~i01i.-.Ti11 not ·~ure: why the Jewel (and $Imbert) cases .:were·riotmtmtion~d:pr.r.eterenced in th~·request to th~ FISC since both . . . , · · ·......:. of those· also contain ongoing prese1v.ation obligaifonn·elated·to the . . -<'.. ·bulk phpne-records collection by the.NSA. Since they were riot, it also . ··raises. the·.questlon of\.vhether and how the government has been · . . . · · · abiding: by .its obligation to prcse1ve evidence in those two cases; since ·. :·. . · obvfously both. ~ave. been pending . . . . for mcii·e than five years. . .. .' : . . ... (would ~ppreciate·a prompt response ai1d claritication. l'nn~oilfidel1t "· . ~ .: ·.' ::..... tha.t )he":g~veriim~nt takes ·se.riously its obligation to preserve evidence. :. -, :·:.. · '.::_ .... ·that in.a)' .be re.1.evant to.pend)ng ·litigation, butgiven the situation, I ., ·.. ". · : .'. ··V~'.oulci-Iike ~· 8peCific reaffirmation that bulk telephone records ·. ·: ·.. ·... ·. co.ll~cted by the NSA.have been "preserved in the Jewel case and .I suspect ll~1 is :co("!cerned aboutthe same for Shubert. I would also : · ·. <··.' . :·; ·request"some more specific infonnation about hO\v that prese~vation · · . : ". · ha$ o~~ur.red -;-·similar .to the·pl~n you suggested to the FISC jn your ·· ·_., ·mQtio1i~··. · '· ·. : · . . · . ·': · ·· · .:. ·... ·:· > :· ·.•. ·l hope you ..can provide us with a thorough response before any ·. ..· ·, additjoi1~'r.'plJQne. records. ate destroyed and hopefully by Monday, <. ,. :·::~··'··March 3;. While wei;e hopetlil tha~ we wi.11 rece-i".e a satisfactory. .... ·. , : :. ~ ... r~sp.ohse, bud(not~· ~ve do intenq to. ffiise this ques~ion \Vi~ both t!1e . · .: ·. ._ '.: . _.:,FISC'ano the Judge. White. · : ~.. :· . . .' .. . .· .·. . . .:. .. .. · ·· · Thank{.··, . II I I. ' I . ·.. ·:· : ... ' ... . :· ··... ·· ~ ... : .. :. .: .... . .·.·: . .· ..... • . . I I . ·' ....._':-.::·::·:~<ca.s·ea:13-cv~0328.7-JSW. Doc.ument~6-6 Filed03/10/14 .-Pages of a .. I, .-PS:.Has Marcy· gone? I noticed that she's not on the pleadings you fil~d ~ast.\Veek or on.this message. · ........... ................ ............................ ~ ~ · Cindy Cohn legal Director · El~ctronic Frontier Foundation .' 815 Eddy Street . San Franeisc0, ·CA ~4 f09 . .. ,(41~)_436·9333 ~108. . -:-·;cindv®&ff.org . '. ~--.·ww:w·~ff.org .' . : · . J.oin·:EFFI bttpS:/lsupoorters.eff.oro/dgnate ,·., . ·.· . .: " . .. ··... . "• ..... ~al :.· .. . ·:·. . . .. ':; ·······•·············· Director " . flecti.onic frontier Foundation ; · 8~5 ~~dy·s~reet: . : '. · · ·san.Fraticlseo, CA' 94109 · · (415):436·~~ x1~8 -.-Cindy®eff.or9 · -· WWYl.eff:om · .··. . .. . . ·. .Jc;i,iri- ~~F.I https://sup9,9rters.eff.org/donate '. =. .. '.·: .. . . ·····--·~·-····-················ . _CIJ?l:lY Co~n '. : ": >~ ..... ·. :: ': . ~·. . . . .. .'·... . .. -. :' ' ~· .' ... : . . ... ·~ :. ..·· ·...~ :· ·: ~ ":;~ :, ' ." ._ ...... ... Case3:13-cv-03287-JSW Document86-7 Filed03/10/14 Pagel of 3 2 3 4 5 6 7 8 9 10 11 CINDY COHN (SBN 145997) cindy@eff.org LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303) JAMES S. TYRE (SBN 083117) MARK RUMOLD (SBN 279060) ANDREW CROCKER (SBN 291596) ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 Fax: (415) 436-9993 RACHAEL E. MENY (SBN 178514) nneny@kvn.com PAULA L. BLIZZARD (SBN 207920) MICHAEL S. KWUN (SBN 198945) AUDREY WALTON-HADLOCK (SBN 250574) BENJAMIN W. BERKOWITZ (SBN 244441) JUSTINA K. SESSIONS (SBN 270914) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, CA 94111 Telephone: (415) 391-5400 Fax: (415) 397-7188 RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 433-3200 Fax: (415) 433-6382 THOMAS E. MOORE III (SBN 115107) tmoore@rroyselaw.com ROYSE LAW FIRM, PC 1717 Embarcadero Road Palo Alto, CA 94303 Telephone: (650) 813-9700 Fax: (650) 813-9777 ARAM ANTARAMIAN (SBN 239070) aram@etT.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626 12 13 14 15 Counsel for Plaintiffe UNITED STATES DISTRICT COURT 16 FOR THE NORTHERN DISTRICT OF CALIFORNIA 17 SAN FRANCISCO DIVISION 18 19 20 21 CAROLYN JEWEL, TASH HEPTING, YOUNG BOON HICKS, as executrix of the estate of GREGORY HICKS, ERIK KNUTZEN and JOICE WALTON, on behalfofthemselves and all others similarly situated, 22 23 24 Plaintiffs, ) CASE NO. 08-CV-4373-JSW [PROPOSED] TEMPORARY RESTRAINING ORDER Hon. Jeffrey S. White Courtroom 11 - 19th Floor ) ~ NATIONAL SECURITY AGENCY, et al., 25 ) ) ) ) ) ) ) ) Defendants. ) ) ) ) 26 27 28 Case No. 08-CV-4373-JSW [PROPOSED] TEMPORARY RESTRAINING ORDER Case3:13-cv-03287-JSW Document86-7 Filed03/10/14 Page2 of 3 1 This matter is before the Court on plaintiffs' motion for a temporary restraining order to 2 prevent defendants National Security Agency, United States of America, Department of Justice, 3 Barack H. Obama, Keith B. Alexander, Eric H. Holder, Jr., and James R. Clapper, Jr. (in their 4 official capacities) (collectively, the "government defendants") and all those in active concert or 5 participation with them from destroying any potential evidence relevant to the claims at issue in 6 this action, including but not limited to prohibiting the destruction of any telephone metadata or 7 "call detail" records. The government defendants have given notice that they will commence 8 destroying call detail records on Tuesday morning, March 11, 2014. ECF No. 85 in First 9 Unitarian Church ofLos Angeles v. NSA, No. 13-cv-3287-JSW. 10 Plaintiffs contend that the Court's prior evidence preservation order (ECF No. 51) as well 11 as defendants' obligations under the Federal Rules of Civil Procedure prohibit destruction of this 12 potential evidence. It is undisputed that the Court would be unable to afford effective relief to 13 plaintiffs once the records are destroyed, and therefore the harm plaintiffs face is irreparable. A 14 temporary restraining order is necessary and appropriate so that the Court may decide whether the 15 evidence should be preserved with the benefit of full briefing and participation by all parties. 16 It is hereby ordered that defendants National Security Agency, United States of America, 17 Department of Justice, Barack H. Obama, Keith B. Alexander, Eric H. Holder, Jr., and James R. 18 Clapper, Jr. (in their official capacities), their officers, agents, servants, employees, and attorneys, 19 and all those in active concert or participation with them arc prohibited, enjoined, and restrained 20 from destr~ying any potential evidence relevant to the claims at issue in this action, including but 21 not limited to prohibiting the destruction of any telephone metadata or "call detail" records, 22 pending further order of the Court. The Court determines that no security is necessary under the 23 circumstances. 24 The Court sets the following briefing and hearing schedule in this matter: 25 Plaintiffs' opening brief 26 Government defendants opposition brief 27 Plaintiffs' reply brief 28 Hearing Case No. 08-CV-4373-JSW l [PROPOSED] TEMPORARY RESTRAINING ORDER Case3:13-cv-03287-JSW Document86-7 Filed03/10/14 Page3 of 3 1 2 This order expires at 3 4 Entered at _ _ a.m./p.m. on March _ _, 2014 5 IT IS SO ORDERED. 6 7 8 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 08-CV-4373-JSW 2 [PROPOSED] TEMPORARY RESTRAINING ORDER Case3:13-cv-03287-JSW Document89 Filed03/10/14 Pagel of 2 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 7 8 -8= a.. ·~ .2 u ·ca a.. ... ·u ·- 9 10 11 12 14 E 15 00 z0 "' "Cl .:; Qi» l5 16 -= ·--= QflJ ·0 Go» ;:i 'E"' "" CAROLYN JEWEL, ET AL., Plaintiffs, v. 17 18 19 No. C 08-04373 JSW No. C 13-03287 JSW NATIONAL SECURITY AGENCY, ET AL., Defendants. 13 t>0 ·~ - flJ FOR THE NORTHERN DISTRICT OF CALIFORNIA ORDER GRANTING TEMPORARY RESTRAINING ORDER FIRST UNITARIAN CHURCH OF LOS ANGELES, ET AL., Plaintiffs, v. NATIONAL SECURITY AGENCY, ET AL., Defendants. 20 21 22 This matter is now before the Court on Plaintiffs' ex parte motion for a temporary 23 restraining order requesting immediate relief. The Court HEREBY ORDERS that its prior 24 evidence preservation orders in these related matters shall be enforced. It is undisputed that the 25 Court would be unable to afford effective relief once the records are destroyed, and therefore 26 the harm to Plaintiffs would be irreparable. A temporary restraining order is necessary and 27 appropriate in order to allow the Court to decide whether the evidence should be preserved with 28 the benefit of full briefing and participation by all parties. Case3:13-cv-03287-JSW Document89 Filed03/10/14 Page2 of 2 Accordingly, it is HEREBY ORDERED that Defendants, their officers, agents, servants. t: = a·§ ·...... .s "'rn ...a -u .~ ...... = employees, and attorneys, and all those in active concert or participation with them are 3 prohibited, enjoined, and restrained from destroying any potential evidence relevant to the 4 claims at issue in this action, including but not limited to prohibiting the destruction of any 5 telephone metadata or "call detail" records, pending further order of the Court. The Court 6 determines that there is no security necessary under the circumstances. 7 The Court sets the following briefing and hearing schedule, all in PST, in this matter: 8 Plaintiffs' opening brief shall be filed no later than March 13, 2014 at 2:00 p.m. 9 Defendants' opposition brief shall be filed no later than March 17, 2014 at 11 :00 a.m. 10 Plaintiffs' reply brief shall be filed no later than March 18, 2014 at 2:00 p.m. 11 The hearing on this issue shall be set for March 19, 2014 at 2:00 p.m. 12 13 IT IS SO ORDERED. Q Q :~ rn Q ~ 2 ~ ...... 1! ...... zQ VJ .. "CS '5 ·-= if 14 JEF9.#1.!;::UNITED STATES DISTRICT JUDGE Dated: March I 0, 2014 15 16 ~ 17 ;:::> 18 19 20 21 22 23 24 25 26 27 28 2
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