Hepting v. AT&T

Hepting v. AT&T is a United States class action lawsuit filed in January 2006 by the Electronic Frontier Foundation (EFF) against the telecommunications company AT&T, in which the EFF alleges that AT&T permitted and assisted the National Security Agency (NSA) in unlawfully monitoring the communications of the United States, including AT&T customers, businesses and third parties whose communications were routed through AT&T's network, as well as Voice over IP telephone calls routed via the Internet.

The case is separate from, but related to, the NSA warrantless surveillance controversy, in which the federal government agency bypassed the courts to monitor U.S. phone calls without warrants. Hepting v. AT&T does not include the federal government as a party.

In July 2006, the United States District Court for the Northern District of California—in which the suit was filed—rejected a federal government motion to dismiss the case. The motion to dismiss, which invoked the State Secrets Privilege, had argued that any court review of the alleged partnership between the federal government and AT&T would harm national security.

The case was immediately appealed to the Ninth Circuit. It was dismissed on June 3, 2009, citing retroactive legislation in the Foreign Intelligence Surveillance Act. On October 9, 2012, the Supreme Court of the United States declined to review Hepting. The Electronic Frontier Foundation, however, vowed to continue working on a similar case named Jewel v. NSA.

Background and allegation

Basic diagram of how the alleged wiretapping was accomplished. From EFF court filings

More complicated diagram of how it allegedly worked. From EFF court filings

It is alleged in the lawsuit that in 2002-2003, AT&T permitted and assisted the NSA to install a NarusInsight system in its San Francisco switching center (Room 641A), which was capable of monitoring billions of bits of Internet traffic a second, including the playback of telephone calls routed on the Internet, and thus in effect spying upon the entirety of the communication of many or all American citizens and businesses who use the Internet.

A former AT&T engineer, Mark Klein, attested that a supercomputer built by Narus was installed for the purpose, and that similar systems were also installed in at least Seattle, San Jose, Los Angeles and San Diego. Wired News states Klein said he came forward "because he does not believe that the Bush administration is being truthful about the extent of its extrajudicial monitoring of Americans' communications":

"Despite what we are hearing, and considering the public track record of this administration, I simply do not believe their claims that the NSA's spying program is really limited to foreign communications or is otherwise consistent with the NSA's charter or with FISA [...] And unlike the controversy over targeted wiretaps of individuals' phone calls, this potential spying appears to be applied wholesale to all sorts of Internet communications of countless citizens."

The EFF alleges in the suit that AT&T also allowed the NSA to data-mine hundreds of terabytes of client records which included detailed transaction records such as domestic numbers dialed since 2001, and all Internet addresses visited, as well as other content. The EFF's attorney Kevin Bankston states:

"Our goal is to go after the people who are making the government's illegal surveillance possible [...] They could not do what they are doing without the help of companies like AT&T. We want to make it clear to AT&T that it is not in their legal or economic interests to violate the law whenever the president asks them to."

In its Amended Complaint, the EFF seeks injunctive relief against AT&T continuing such surveillance and damages allowed under the Foreign Intelligence Surveillance Act (FISA), the Communications Assistance for Law Enforcement Act, and other U.S. laws. It also seeks aggregated damages under each of four laws. These would exceed $100,000 for each instance of surveillance, creating potentially ruinous liability for AT&T, considering the EFF's claims about the scope of AT&T's cooperation.

Litigation

AT&T objected to the filing of the documents supporting the case on the grounds they were trade secrets or might compromise the security of its network. The EFF speculated that the federal government would invoke the State Secrets Privilege to bar the entire lawsuit from being heard, but added: "If state secrecy can prevent us from preserving the rights of millions upon millions of people, then there is a profound problem with the law."

EFF's speculation proved accurate when the government indicated, in an April 28 Statement of Interest in the case, that it intended to invoke the State Secrets Privilege in a bid to dismiss the action. The Justice Department filed its motion to dismiss on May 15, 2006. On July 20, however, Chief Judge Vaughn Walker of the United States District Court for the Northern District of California rejected the federal motion, holding that "[t]he government has opened the door for judicial inquiry by publicly confirming and denying material information about its monitoring of communications content."

In his decision not to dismiss the case Judge Walker certified the case for immediate appeal, and the government and AT&T both appealed to the Ninth Circuit. The case was argued in August 2007.

In July 2008, Congress passed, and on July 10, 2008, President George Bush signed, the FISA Amendments Act, which granted retroactive immunity to telecommunications companies for past violations of FISA. Before any Ninth Circuit decision, the case was returned to the District Court "[i]n light of the FISA Amendments Act of 2008." In September 2008, Attorney General Michael Mukasey filed a certification pursuant to Section 802 of the FISAAA and the government moved to dismiss the Hepting litigation.

The Hepting plaintiffs opposed the motion to dismiss, asserting that the FISA Amendments Act's retroactive immunity provision was unconstitutional. Judge Walker heard oral arguments on December 2, 2008, and took the matter under submission.

The case was dismissed on June 3, 2009 by Judge Walker, citing retroactive legislation (section 802 of FISA) stating that

in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was in connection with an intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was authorized by the President; and determined to be lawful.

The case went under review in the Ninth Circuit Court of Appeals by a three judge panel (Harry Pregerson, Michael Daly Hawkins, and M. Margaret McKeown). The argument was heard in Seattle, Washington on August 31, 2011. It was dismissed on December 29, 2011, and some issues in the case were submitted as a Petition for Certiorari to the Supreme Court on March 30, 2012. The Supreme Court, however, declined to review the lower court ruling on the case on October 9, 2012, closing the door on further appeals.

Related issues

• The American Civil Liberties Union has also sued the NSA for its wiretapping program, as well as drawing attention to federal government spying programs on "grassroots groups." See ACLU v. NSA and the web page on ACLU site.
• On February 5, 2006, USA Today ran a further story that, according to seven telecommunications executives, NSA had secured the cooperation of the main telecommunications companies in charge of international phone-calls, including AT&T, MCI and Sprint, in its efforts to eavesdrop without warrants on international calls.

See also

• Jewel v. NSA
• President's Surveillance Program
• PRISM (surveillance program)
• Communications Assistance for Law Enforcement Act (CALEA)
• Foreign Intelligence Surveillance Act
• Lawful interception
• List of class action lawsuits
• Mass surveillance
• Privacy
• Room 641A
• SIGINT (Signals Intelligence)
• Telephone tapping
• Traffic analysis
• Thomas Tamm, Russ Tice, Edward Snowden, Thomas Andrews Drake

Further reading

• Cohn, Cindy (2010). "Lawless Surveillance, Warrantless Rationales" (PDF). J. on Telecomm. & High Tech. L. 8 (2): 351–358.

External links

• The story, from Wired News

AT&T Sued Over NSA Eavesdropping, Jan 31 2006, Ryan Singel

Whistle-Blower Outs NSA Spy Room, Apr 07 2006

AT&T Seeks to Hide Spy Docs, Apr 12 2006, Ryan Singel

• Mark Klein's memo
• unredacted version of Mark Klein's memo on Cryptome
• The lawsuit (PDF)
• The lawsuit (HTML) on thewall.civiblog.org
• Electronic Frontier Foundation Hepting Case Page
• Judge Declines to Dismiss Privacy Suit Against AT&T, The New York Times, July 21, 2006
• ACLU page on NSA wiretapping and related issues
• Complaint: (HTML) ACLU Complaint (Initial Filing) against the NSA Central Security Service and Lieutenant General Keith B. Alexander via thewall.civiblog.org, related litigation