UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT 33? *2 PM 55 1 WASHINGTON, n.c. H, CGURT IN RE APPLICATION OF THE FEDERAL BUREAU OF INVESTIGATION FOR AN Docket No. BR 14-01 ORDER REQUIRING THE PRODUCTION OF TANGIBLE THINGS RESPONSE OF THE UNITED STATES OF AMERICA TO THE MARCH 21, 2014, OPINION AND ORDER RE: MOTION OF PLAINTIFFS IN JEWEL V. NSA AND FIRST UNITARMN CHURCH V. NSA, BOTH PENDING IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, FOR LEAVE TO CORRECT THE RECORD The United States respectfully submits this ?ling pursuant to the Court?s Opinion and Order issued in the above-captioned matter on March 21, 2014 (?March 21 Order?), which directed the Government to make a ?ling pursuant to Foreign Intelligence Surveillance Court (FISC) Rule of Procedure and explain why it failed to notify this Court during its consideration of the Government?s Motion for Second Amendment to Primary Order of preservation orders issued in two lawsuits, Jewel v. NSA, No. 08-cv-4373 (N .D. Cal.), and Shubert v. Obama, No. 07-cv-0693 (N .D. Cal.), and of the plaintiffs? understanding of the scope of those orders, following the Government?s receipt of plaintiffs? counse1?s February 26, 2014, email. Based upon the nature of the claims made in Jewel and Shubert, which the Government has always understood to be limited to certain presidentially authorized intelligence collection 1 FISC Rule of Procedure 13(a), Correction of Material Facts, provides in relevant part that, the government discovers that a submission to the Court contained a misstatement or omission of material fact, the government, in writing, must immediately infonn the Judge to whom the submission was made of: the misstatement or omission; (2) any necessary correction; (3) the facts and circumstances relevant to the misstatement or omission.? activities outside FISA, the Government did not identify those lawsuits, nor the preservation orders issued therein, in its Motion for Second Amendment to Primary Order ?led in the above- captioned Docket number on February 25, 2014. For the same reasons, the Government did not notify this Court of its receipt of plainti?s? counsel?s February 26, 2014, e-mail. With the bene?t of hindsight, the Government recognizes that upon receipt of plainti?s? counsel?s e-mail, it should have made this Court aware of those preservation orders and of the plaintiffs? disagreement as to their scope as relevant to the Court?s consideration of the Govemment?s motion and regrets its omission. The Government respectfully submits that in light of this submission, and this Court's Opinion and Order dated March 12, 2014, granting the Government?s motion for temporary relief from the destruction requirement in subsection of the Court?s Primary Order, no additional corrective action on the part of the Govemment or this Court is necessary. The facts and circumstances relevant to the Government?s omission are set out below. The Government takes its preservation obligations with the utmost seriousness, as it does its duty of candor to the Court, particularly in the setting of ex parte proceedings. As explained further below, it was not the Government?s intention to omit information that it believed this Court would ?nd relevant and material to its consideration of the Government?s Motion for Second Amendment to Primary Order. In light of this Court's rulings on March 7 and 21 and the reasoning contained therein, the Government understands why this Court would have considered the Jewel plaintiffs? recently-expressed views regarding the scope of the preservation orders in Jewel and Shubert as material to its consideration of the Govemment?s motion. The Government sincerely regrets not having brought these matters to the Court?s attention prior to its March 7, 2014, ruling and assures the Court that it will apply utmost attention to its submissions in this and all other matters before this Court. On February 25, 2014, the Government ?led its Motion for Second Amendment to Primary Order. In the Motion, the Government requested that this Court amend minimization procedures related to the destruction of metadata acquired pursuant to authority of this Court so that the infonnation could be maintained under strict conditions, for the limited purpose of ensuring that the Government continues to comply fully with its preservation obligations related to certain identi?ed civil litigation. The cases that the Government listed in its February 25 Motion were all ?led a?er last year?s unauthorized public disclosures concerning the collection of telephony metadata pursuant to FISA authority, and all challenge the lawfulness of the collection of telephony metadata pursuant to this Court?s authorization. Motion for Second Amendment at 3-5 ;2 see, e. American Civil Liberties Union v. Clapper, No. 13-cv-3 994 (WHP) (S.D.N.Y.), Complaint 1| 1 (ECF No. 1) (?This lawsuit challenges the government?s dragnet acquisition of Plaintiffs? telephone records under Section 215 of the Patriot Act, 50 U.S.C. The Government did not notify the Court of Jewel and Shubert in the Motion because the Government has always understood those matters to challenge certain presidentially authorized intelligence collection activities and not metadata subsequently obtained pursuant to orders issued by this Court under FISA, and because the preservation issues in those cases had been previously addressed before the district court in which those matters are pending. Jewel and Shubert, ?led in 2008 and 2007, respectively, challenge particular NSA intelligence activities authorized by President Bush after the September 11, 2001 terrorist attacks without statutory or 2 Known active civil cases challenging bulk telephony metadata collection under FISC orders pursuant to FISA as unauthorized by statute and/or unconstitutional are those listed in the Motion for Second Amendment. In an additional pro se case, Ndiaye v. Baker, No. 13-cv-1701 (D. the plaintiff? alleges collection of metadata pertaining to his telephone calls under FISA, among numerous other alleged acts by federal and local officials, as part of a scheme to persecute and harass him because of his ethnicity and religion. No preservation order has been entered in Ndinye and the plaintiff has not expressed a view to the Government regarding preservation. judicial authorization the Terrorist Surveillance Program (TSP), and the lntemet and telephony metadata programs)? The Jewel plaintiffs stated in 2008 when they ?led their complaint and asked that it be related to Hepting v. (a precursor to Shubert), ?both cases allege the same facts: that in 2001 the President authorized a program of domestic surveillance without court approval or other lawful authorization, and that through this Program, the government illegally obtains and continues to obtain with assistance the contents of Plaintiffs? and class members? telephone and intemet communications, as well as records concerning those communications.? Admin. Motion by Plaintiffs To Consider Whether Cases Should be Related at 3 (Jewel No. 7) (emphasis added) (attached hereto as Exhibit 3 The Government?s recent ?ling before the Northern District of California regarding its preservation obligations in cases before that court cites various portions of the Jewel and Shubert complaints that made clear to the Government that they challenge presidentially-authorized, non-court-authorized, programs. See, Jewel Complaint (attached as Exhibit to Plaintiffs? Motion for Leave to Correct the Record) 39 (President Bush ?authoriz[ed] ?a range of surveillance activities . . . without statutory authorization or court approval, including electronic surveillance of Americans? telephone and lntemet communications (the 1] 76 (?Defendants? above-described acquisition in cooperation with of . . . communications content 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?), 1| 92 ("Defendants' above-described solicitation of the disclosure by of. . . communications records . . . is done without judicial, statutory, or other lawful authorization, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional 1 10, 120, 129, 138 (?Defendants have [acquired] . . . contents of communications, and records pertaining to . . . communications . . . without judicial, statutory, or other lawful authorization, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional Shubert Second Amended Complaint (MDL ECF No. 77]) (attached hereto as Exhibit B) 1] 2 (?Without the approval of Congress, without the approval of any court, and without notice to the American people, President George W. Bush authorized a secret program to spy upon millions of innocent Americans, including the named plaintiftsf?), 1] 9 (?This class action is brought on behalfof all present and future United States persons who have been or will be subject to electronic surveillance by the National Security Agency without a search warrant, a court order, or other lawful authorization since September 12, ii 55 (?Although it is true that federal law requires law enforcement officers to get pennission from a federal judge to wiretap, track, or search, President Bush secretly authorized a Spying Program that did none of those 1] 66 (?The Program admittedly operates ?in lieu of? court orders or other judicial authorization . . . 1] 93 (?Prior to its initiation, defendants never sought authorization from the FISA Court to conduct the Spying The district court has set a timber brie?ng schedule to assess the Govemment?s compliance with the preservation order in Jewel. Hepting is the lead case in the Multidistrict Litigation (MDL) proceeding in the Northern District of California (In re NSA Telecommunications Records Litigation Multi-District Litigation (designated as which includes Shubert. Hepting and the other MDL cases (including Shubert) concern activity authorized by the President, without court approval. Among other things, these suits were brought against telecommunications companies (as opposed to the Government), and such companies are statutorily immune from suit for providing assistance to the Government pursuant to court order. In 2007, the Government informed the district court in a then-classi?ed submission (prior to the entry of the MDL preservation order, upon which the Jewel preservation order was based) that the Government did not understand the MDL proceedings to challenge FISC-authorized programs: ?Because Plaintiffs have not challenged activities occurring pursuant to an order of the FISC, this declaration does not address information collected pursuant to such an authorization or any retention policies associated therewi Declassi?ed Declaration of National Security Agency 1[ 12 n.4.5 (attached hereto as Exhibit C). In the same 2007 submission, consistent with the Govemmenfs stated view that FISC-authorized collections were not at issue,.the Govemment informed the district court that it was preserving a range of documents and infonnation concerning only the presidentially?authorized activities at issue in the plainti?s? complaints. See Declass. NSA Decl.1|1[ 6, 12-13, 16, 18-28. Therea?er, the court issued a preservation order that directed the parties to preserve ?relevan evidence that was ?reasonably anticipated to be subject to discovery,? without instructing the Government then, or at any other time, that its understanding of its preservation obligations was erroneous. Nov. 6, 2007 Preservation Order (MDL ECF No. 393). An identical order was issued in Jewel, on stipulation by the parties, in 2009. (Jewel ECF No. A day after the Government ?led its Motion for Second Amendment with this Court on February 25, 2014, counsel for the Jewel plaintiffs sent an email to Civil Division counsel representing the Government in Jewel, suggesting that the preservation orders in Jewel and Shubert required the Government to preserve telephony metadata acquired under FISA. For the 5 A classi?ed submission was necessary at that time because the existence of the presidentially-authorized program was classi?ed and remained so until December 2013. 5 Consistent with the Govemment?s understanding of these orders in Jewel and Shubert, until the district court's March 10, 2014, temporary restraining order and the subsequent March 12, 2014, order of this Court, the Government has complied with this Court's requirements that metadata obtained by the NSA under Section 215 authority be destroyed no later than ?ve years a?er their collection. 5 reasons set forth above, and as the Government has explained to the district court, it views that position as irreconcilable with the express allegations of the Jewel and Shubert complaints and the long course of litigation in both cases. Because the Government?s Motion for Second Amendment already had sought relief from this Court based on a list of cases in which the parties expressly challenge the bulk collection of BR metadata pursuant to FISC authorization, see Motion for Second Amendment at 3-5, counsel did not appreciate even after receiving the email from plaintiffs? counsel in Jewel that it would be important to notify this Court about Jewel and Shubert or the email from counsel for the Jewel plaintiffs about those cases with which the Government disagreed. Rather, counsel viewed any potential dispute about the scope of the Jewel and Shubert preservation orders as a matter to be resolved, if possible, by the parties to those cases (through a potential unclassi?ed explanation to plaintiffs? counsel) or, failing that, by the district court.7 In other words, the Government did not recognize a need to identify to this Court preservation orders issued in litigation that was not believed to be pertinent to the retention of BR metadata collected under authority of this Court, and which the Government had never treated as applicable to such metadata. Accordingly, counsel responded to counsel for the Jewel plaintiffs, by email dated February 28, 2014, that the Jewel and Shuberr matters presented a separate issue, and that they would discuss further with counsel for the Jewel plaintiffs a?er consultation with client agencies about what unclassi?ed information could be provided to plaintiff's? counsel about the preservation effort in Jewel. In particular, the request in its February 28 email that counsel for the Jewel plaintiffs ?forbear from ?ling anything with the FISC, or [the district court], until we 7 For these reasons, counsel did not think to forward the email ?'om Jewel Plaintiffs? counsel to the attorneys with primary responsibility for interaction with this Court before the Court ruled on the Motion for Second Amendment. The Department wishes to assure the Court that it has always endeavored to maintain close coordination within the Department regarding civil litigation matters that involve proceedings before this Court, and will take even greater care to do so in the future. have ?irther opportunity to confer? was a good faith attempt to avoid unnecessary motions practice in the event that the issue could be worked out among the parties through the Government?s provision of an unclassi?ed explanation concerning its preservation in Jewel and Shubert. Accordingly, the Government did not bring the Jewel plainti?fs? February 25 email to this Court?s attention. The Government?s paramount objective in its recent ?lings with this Court and the district courts has been to comply with its preservation obligations in civil litigation and to obtain guidance about its obligations regarding the metadata obtained pursuant to orders of this Court. The Government now appreciates that the Court would have found the Jewel plainti?s? recently- expressed views on the Jewel and Shubert preservation orders to be relevant to its consideration of the Government?s Motion for Second Amendment. As noted above, the Government sincerely regrets not apprising the Court of these matters before its March 7 ruling and assures the Court that it will apply utmost attention and coordination in its submissions in this and all other matters before this Court. Dated: April 2, 2014 Respectfully submitted, /5hn P. Carlin Assistant Attorney General National Security Division Stuart F. Delery Assistant Attorney General Civil Division United States Department of Justice BCase3:08-cv-04373-JSW Document? FiIed10l21l08 Page1of9 ELECTRONIC FRONTIER FOUNDATION CINDY COHN (145997) cindy@eff.org LEE TIEN (148216) KURT OPSAI-IL (191303) KEVIN s. BANKSTON (217026) JAMES S. TYRE (0831 17) 454 Shotwell Street San Francisco, CA 94110 Telephone: 415/436-9333; Fax: 415/436-9993 RICHARD R. WIEBE (121156) wiebe@pacbe1l.net LAW OFFICE OF RICHARD R. WIEBE 425 California Street, Suite 2025 San Francisco, CA 94104 Telephone: 415/433-3200; Fax: 415/433-6382 Attorneys for Plaintiffs situated, VS. 4511., THOMAS E. MOORE (115107) tmoore@moorelawteam.com THE MOORE LAW GROUP 228 Hamilton Avenue, 3rd Floor Palo Alto, CA 94301 Telephone: 650/798-5352; Fax: 650/798-5001 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA TASH HEPTING, GREGORY HICKS, CAROLYN JEWEL and ERIK KNUTZEN, on behalf of themselves and all others similarly Plaintiffs, Defendants. CAROLYN JEWEL, TASH HEPTING, GREGORY HICKS, ERIK KNUTZEN and JOICE WALTON, on behalf of themselves and all others similarly situated, VS. Plaintiffs, NATIONAL SECURITY AGENCY, et al., Defendants. CASE NO. C-06-0672-VRW ADMINISTRATIVE MOTION BY TO CONSIDER WHETHER CASES SHOULD BE DECLARATION OF KEVIN S. BANKSTON ORDER FILED CASE NO. C-08-4373-CRB CAL Civ. L.R. 3-12, 7-1 1] Case3:08-cv-04373-JSW Document? Fi|ed10l21lO8 Pagez of9 TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: Pursuant to Civil Local Rules and 7-1 1, Plaintiffs hereby move the Court for an Order relating Jewel, et al., v. NSA, et al., No. C-08-4373-CRB (hereinafter simply ?JeweI?) to Hepting, er al. v. AT Corp. eta1., No. C-06-0672-VRW (hereinafter simply ?Hepting?). APPLICABLE RULE Civil Local Rule 3-12 provides, in pertinent part: ?An action is related to another when: (1) The actions concern substantially the same parties, property, transaction or event; and (2) It appears likely that there will be an unduly burdensome duplication of labor and expense or con?icting results if the cases are conducted before different Judges.? THE RELATIONSHIP BETWEEN JEWEL AND HEPTING On September 18, 2008, all four of the named Plaintiffs in Hepting, along with a fi?h customer, Joice Walton, ?led a complaint in the U.S. District Court for the Northern District of California in San Francisco. That complaint seeks damages on behalf of the named Plaintiffs, and equitable relief for a class of customers, against the U.S. government and its agencies, including the National Security Agency, as well as a number of current and former government of?cials in their official and/or personal capacities. As in Hepting, the Plaintiffs in this pending case, Jewel, allege that and the government have illegally collaborated in a program of surveillance of Plaintiffs? and class members telephone and intemet communications and communications records (?the Program?), in violation of, inter alia, the U.S. Constitution, the Foreign Intelligence Surveillance Act and the Electronic Communications Privacy Act Hepting originally was assigned to, and is still pending before, Chief Judge Vaughn R. Walker; Jewel has been assigned to Judge Charles R. Breyer. Jewel and Hepting concern substantially the same parties. As already noted, all four named Plaintiffs in Hepting are also named Plaintiffs in Jewel?; the Electronic Frontier Foundation serves as lead counsel for the Plaintiffs in both cases. Furthermore, the de?nition of the Jewel class is identical to the de?nition of the Hepting Nationwide Class: All individuals in the United States that are current residential subscribers or customers of telephone services or Internet services, or that were -2- ADMINISTRATIVE MOTION BY PLAINTIFF TO CONSIDER WHETHER CASES SHOULD BE RELATED Case No. C-06-0672 7r?I- IQ IQ D-I tsCase3:08-cv-04373-JSW Document? Filed10I21lO8 Page3 of9 residential telephone or Internet subscribers or customers at any time after September 200] Hepting named two entities as Defendants, while Jewel is exclusively against the United States, its agencies, and current and former U.S. government officials. However, the United States has intervened in Hepting, and has been an extremely active participant in that case. And although Plaintiffs have been advised by the Department of Justice that attorneys in the Constitutional Torts section of the DOJ will represent individuals sued in their personal capacity in Jewel, it appears that the same Department of Justice attorneys representing the United States in Hepring will also represent the United States and its agencies and offices in Jewel. In addition to concerning substantially the same parties, Jewel and Hepting concern substantially the same transactions and events. In particular, both cases allege the same facts: that in 2001 the President authorized a program of domestic surveillance without court approval or other law?xl authorization, and that through this Program, the government illegally obtained and continues to obtain with assistance the contents of Plaintiffs? and class members? telephone and Internet communications, as well as records concerning those communications. Discovery related to those allegations and the ?ndings of fact required in both cases are therefore also substantially the same, leading to unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before di?erent judges. Furthermore, although the speci?c counts asserted in Hepting against the Defendants are not strictly identical to those against the government and its officials in Jewel, they do raise identical legal questions, i.e. and whether the Program violated or violates Plaintiffs? rights under the U.S. Constitution, FISA and ECPA. Litigating those legal questions before different judges, as with the factual questions, will undoubtedly lead to unduly burdensome duplication of labor and expense by both Plaintiffs and the government, and would threaten to generate conflicting results. Although the same in substance, the class de?nition in Jewel varies in form from the Hepting Nationwide Class de?nition: Because Hepting named entities as Defendants, while Jewel does not, the Hepting de?nition refers to customers of ?Defendants,? while the de?nition in Jewel refers to customers of Additionally, Hepting includes a separate California Class not included in Jewel. -3- ADMINISTRATIVE MOTION BY PLAINTIFFS TO CONSIDER WHETHER CASES SHOULD BE RELATED Case No. 006-0672 Document? Filed10I21l08 Page4 of9 NEED FOR ADMINISTRATIVE MOTION As explained in more detail in the attached Declaration of Kevin S. Bankston, and as required by Civil Local Rule 7-1 counsel for Plaintiffs in both Hepting and Jewel have attempted but failed to secure a stipulation ?'om counsel for the Government and government Defendants in Hepling and Jewel, for in Hep-ting, and for the personal capacity Defendants in Jewel. However, as detailed in the Bankston declaration, neither the Government nor oppose this motion. Counsel for the personal capacity Defendants in Jewel has indicated that because those Defendants have not yet been served with the Jewel complaint, their consent is irrelevant for this motion. CONCLUSION The parties, transactions and events in Hepting and Jewel are substantially the same, and there is a substantial risk of unduly burdensome litigation, and, more important, of con?icting results, if Jewel is not related to Hepting. Plaintiffs therefore respectfully submit that Jewel can and should be related to Hepting pursuant to Civil Local Rule 3-12. Plaintiffs further direct the Court?s attention to Rule 7.5(a) of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation. That rule provides that the assignment of potential ?tag-along actions? such as Jewel to this court as a part of In re National Security Agency Telecommunications Records Litigation, MDL No. (a proceeding that also includes Hepting) may be accomplished without any action on the part of the Panel on Multidistrict Litigation, and Plaintiffs respectfully ask for such assignment here. DATED: October 21, 2008 By ELECTRONIC FRONTIER FOUNDATION CINDY COHN LEE TIEN KURT OPSAHL KEVIN S. BANKSTON JAMES S. TYRE .4- ADMINISTRATIVE MOTION BY PLAINTIFF TO CONSIDER WHETHER CASES SHOULD BE RELATED Case No. C-06-0672 Case No. C-06-0672 Case3:08-cv-04373-JSW Document? Fi|ed10I21l08 Page5 of9 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 (1 15107) THE MOORE LAW GROUP 228 Hamilton Avenue, 3rd Floor Palo Alto, CA 94301 Telephone: (650) 798-5352 Facsimile: (650)798-5001 Attorneys for Plaintiffs -5- ADMINISTRATIVE MOTION BY PLAINTIFF TO CONSIDER WHETHER CASES SHOULD BE RELATED I-Case3:08-cv-04373-JSW Document? Filed10l21l08 Page6 of9 DECLARATION OF KEVIN BANKSTON 1, KEVIN S. BANKSTON, declare and state: 1. On Wednesday, October 1, 2008, I was informed by Plaintiffs? counsel and Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn that she had spoken that morning with counsel for the government Defendants, Anthony Coppolino of the U.S. Department of Justice?s Civil Division, who indicated that the government would not oppose relation of Jewel to Hepting or assignment of Jewel to the MDL. He ?irther indicated to Ms. Cohn that based on a voicemail message he had received from counsel Bradford Berenson, he believed that would oppose, ?although he noted that the voicemail was somewhat garbled. 2. To seek clarity on the Government and position on the matter, on Friday, October 3, 2008, I circulated via email to Mr. Coppolino and Mr. Berenson a copy of our draft motion to relate the cases, seeking their consent and requesting a response by Wednesday, October 8, 2008. 3. Mr. Berenson responded to me by email on Monday, October 6, 2008, stating in relevant part that: has reviewed your draft and decided that it will not oppose the motion. does not wish to join in the motion or to be represented as af?nnatively consenting or stipulating, but you may represent that has no objection to the requested relief and does not oppose the motion. It is possible that after you ?le, may make a very short submission explaining its non-opposition. 4. After alerting me in a timely manner that there would be a slight delay in his response as he consulted with his clients, Mr. Coppolino responded to me by email on Thursday, October 9, 2008, stating in relevant part that: The Government Defendants sued in their official capacity in the Jewel case (08-cv- 4373-CRB) do not oppose the relief requested in your administrative motion, made pursuant to Local Rule 3-12, for an Order relating Jewel to the Hepting case (06-cv- and, in turn, for the assignment of Jewel to MDL pursuant to MDL Rule Other than this consent, the Government Defendants do not agree to or adopt any statement or representation made in the motion itself. 5. Mr. Coppolino further explained in a subsequent email on October 9 that the appropriate contact regarding the personal capacity Defendants in Jewel was trial attorney Jim Whitman of the Constitutional Torts Section of the Torts Branch of the U.S. Department of .1- Case No. C-06-0672 DECLARATION OF KEVIN S. BANKSTON #-13Case3:08-cv-04373-JSW Document? Filed10I21l08 Page? of9 Justice?s Civil Division. I emailed the draft motion to Mr. Whitman, along with our draft proposed order, that same day, seeking his consent on behalf of the Jewel personal capacity Defendants. 6. The next day, Friday, October 10, 2008, Mr. Whitman left a voicemail message for me indicating that because he had not yet secured authority to represent all of the individual personal capacity Defendants in Jewel, and because those Defendants had not yet been served with the Jewel complaint, he was unable to provide?and did not believe Plaintiffs required?the consent of those Plaintiffs. 7. Mr. Whitman summarized his voicemail in an email to me later that same day. In relevant part: To summarize, I do not yet have authority to represent all the individual Defendants in their personal capacity. With that, and because those Defendants have not yet been served in their personal capacity (for the same reason, I'm still working on getting authority to accept service on behalf of the Defendants), I am not in a position to oppose or not oppose Plaintiffs? motion to relate. In theory, I see no reason to oppose that motion, but I simply cannot make that representation at this time. So, since the individual Defendants are technically not "in the case" yet, I see no problem with Plaintiffs going forward with their motion to relate without obtaining the individual Defendants? consent (or, more accurately, non-opposition). 8. On Tuesday, October 14, 2008, I was informed by Plaintiffs? counsel and EFF Civil Liberties Director Jennifer Granick, who had been conferring with Mr. Whitman on service issues, that he had indicated to her by phone that afternoon that he had secured authority to represent the individual Jewel Defendants in their personal capacity and that he could accept service of Plaintiffs? motion to relate Jewel to Hepting, but again indicating that he could not and need not consent to such because the individual Defendants had not yet been served with the complaint. 9. Ms. Granick forwarded to me on October 14, 2008 an email from Mr. Whitman sent to her that same day summarizing their discussion, which stated in relevant part: As 1 indicated, I am now authorized to represent all of the individual Defendants in the Jewel case in their individual capacities. . .. [T]his [email] will con?rm that I am authorized to accept service of Plaintiffs? motion to relate the case and motion to reassign it to the MDL on behalf of the individual Defendants. For that purpose, you can serve me . .. by e-mail at this e-mail address. -2- Case No. 006-0672 DECLARATION or KEVIN s. BANKSTON I--I-I- bJb?Iu?In?Io?Ir-?n?-t?au?s NJ IxCase3:08-cv-04373-JSW Document? Filed10I21I08 Page8 of9 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. DATED: October 21, 2008 By Isl Kevin S. Bankston KEVIN S. BANKSTON 454 Shotwell Street San Francisco, CA 94110 Telephone: 415/436-9333 415/436-9993 (fax) -3- Case NO. C-06-0572 DECLARATION OF KEVIN S. BANKSTON Case3:08-cv-04373-JSW Document? File-d10l21IO8 Page9 of9 PROOF OF SERVICE I am a citizen of the United States and employed in San Francisco County, California. I am over the age of eighteen years and not a party to the within-entitled actions. My business address is 454 Shotwell Street, San Francisco, California 94110. On October 21, 2008, I served true and correct copies of the documents described as ADMINISTRATIVE MOTION BY PLAINTIFFS TO CONSIDER WHETHER CASES SHOULD BE SUPPORTING DECLARATION OF KEVIN S. and - PROPOSED ORDER DEEMING CASES RELATED AND ASSIGNING JEWEL TO MDL Docket No 06-1791 VRW, IN RE NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS LITIGATION BY EMAIL on JAMES WHITMAN, trial attorney, U.S. Department of Justice, Civil Division, Torts Branch, Constitutional Torts Section, counsel to the personal capacity Defendants in Jewel, et v. NSA, er al., No. C-08-4373-CRB, by transmitting copies of the documents to James.Whitman@usdoi.gov, and BY ELECTRONIC FILING using the Court's system on the parties to Hepting, er al. v. Cargo. et al., No. C-06-0672-VRW, counsel for whom includes counsel for the government Defendants in Jewel. I declare that I am a member of the bar of this court at whose direction the service was made. Executed on October 21, 2008, at San Francisco, California. Kevin S. Bankston KEVIN S. BANKSTON Case No. C-06-0672 PROOF OF SERVICE fl be U) -I3 r--n v--I *4 O0 1-0 ko IN.) 9 I0 INCase3:O6-md-01791-VRW Document771 Pagel of 27 Ilatm M. Maazel (pro hac vice) Matthew D. Brinckerhoff (pro hat: vice) -Adam R. Pulver (SBN 268370) EMERY CELLI BRINCKERHOFF ABADY LLP 75 Rockefeller Plaza, 20"? Floor New York, New York 10019 Telephone: (212)763-5000 Facsimile: (212) 763-5001 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA IN RE NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS LITIGATION This Docu_ment Relates to: VIRGINIA SHUBERT, N01-IA ARAFA, SARAH DRANOFF and HILARY BOTEIN, individually and on behalf of all others similarly situated, Plaintiffs, -against - BARACK OBAMA, KEITH B. . ALEXANDER, ERIC HOLDER, MICHAEL HAYDEN, ALBERTO GONZALES, JOHN ASHCROFT, UNITED STATES OF AMERICA, and DOES #1-100 (07-693) Plaintiffs Virginia Shubert, Noha Arafa, Sarah Dranoff, and Hilary Botein, by their attorneys Emery Celli Brinekerhoff Abady LLP, for their Second Amended Complaint, allege as follows: Case No. SECOND AMENDED CLASS ACTION - DEMAND FOR TRIAL - an -14- 13-? - --9. r-I 3 }j r?o DJ -PCase3:O6-md-01791-VRW Document771 Filed05l08l12 Page2 of 27 PRELIMINARY STATEMENT 1. This class action challenges a secret government spying program pursuant to which, on information and belief, virtually every telephone, Internet and email communication sent from or received within the United States since shortly after September 1 1, 2001 has been (and continues to be) searched, seized, intercepted, and subjected to surveillance without a warrant, court order or any other lawful authorization in violation of the Foreign Intelligence Surveillance Act of 1979, 50 U.S.C. 1810. 2. Without the approval of Congress, without the approval of any court, and without notice to the American people, President George W. Bush authorized a secret program to spy upon millions of innocent Americans, including the named plaintiffs. As one former NSA employee admitted, ?The National Security Agency had access to all Americans? communications: faxes, phone calls, and their computer communications . . . It didn?t matter whether you were in Kansas, you know, in the middle of the country and you never made foreign communications at all. They monitored all communications.? This program (the ?Spying Program?) intercepting, searching, seizing, and subjecting to surveillance the content of personal phone conversations, email, and Internet searches of millions of unsuspecting?, innocent Americans is illegal. It violates the plain terms of federal statutes that make such conduct a crime? It violates themost basic principles of separation of powers. It violates the Constitution. 3. The governrnent?s spy agency, the National Security Agency spied upon Americans at home. It spied upon Americans at work. And it is spying today, and will continue to spy on millions of innocent, unsuspecting Americans, unless stopped by a federal court. 4. The existence and operation of this secret spying program has been acknowledged by numerous executive officials, including former President Bush in December 1 at 2:15 (statement by NSA operative Russell Tice). 2 E.g. The Foreign Intelligence Surveillance Act, 50 U.S.C. 1801 et seq. the Wiretap Act 18 U.S.C. 2510 er seq.; the Stored Communications Act, 18 U.S.C. 2701 et seq. IQ DJ 9--I -5- L): n-A i-I *4 I--Case3:06-md-01791-VRW Document771 Fi|ed05/08l12 Pages of 27 2005, former Attorney General Alberto Gonzales and former Director of National Intelligence Michael Hayden, as well as high-level officials in the NSA. 5. As part of the Spying Program, defendants have not only eavesdropped on speci?c communications by American citizens, they have also intercepted and continue to intercept en mosse the communications of millions of ordinary Americans - estimated at between 15 and 20 trillion communications over the past eleven years. 6. Defendants have achieved this dragnet in part by attaching sophisticated communications surveillance devices to the key facilities of numerous telecommunications companies, including and Verizon (used by the named plaintiffs), that transmit and receive Americans? Internet and telephone communications. 7. Using these surveillance devices, defendants have acquired and continue to acquire the content of phone calls, emails, instant messages, text messages, web communications and other communications, both international and domestic, of millions of Americans who use the phone system or the Internet, including Plaintiffs and class members. 8. from United States persons, the SA searches for keywords, phrases, or names it deems suspicious, Having unlawfully acquired and intercepted millions of communications in order to select which communications are subjected to yet further analysis by staff of the NSA, as part of a vast data-mining operation. 9. subjected to a illegal, covert, dragnet spying operation by their own government. This class action The American people deserve better. The American people should not be is brought on behalf of all present and future United States persons who have been or will be subject to electronic surveillance by the National Security Agency without a search warrant, court order, or other law?il authorization since September 12, 2001.3 It primarily seeks liquidated damages under the Federal Intelligence Surveillance Act 50 U.S.C. 1810 et. seq. which authorizes civil actions for violations of ISA. 3 ?United States persons? and ?electronic surveillance? are both de?ned terms set forth in FISA. 50 1801. rd 3 -h 5-?t h? I--Case3:06-md-01791-VRW Document771 Fi|ed05lO8l12 Page4 of 27 PARTIES10. Plaintiff Virginia Shubert is an American citizen who resides and works in Brooklyn, New York. Ms. Shubert regularly makes phone calls and sends email both within the United States, and outside the United States. Ms. Shubert, for example, frequently calls and sends emails to the United Kingdom, France and Italy and has made similar communications as a part of her work. Since September 12, 2001, Ms. Shubert has been and continues to be a customer of which participated and participates in the Spying Program. Pursuant to the illegal Spying Program, Ms. Shubert?s phone calls and emails have repeatedly been surveilled and intercepted by the NSA without a warrant or other judicial authorization. On information and belief, Ms. Shubert?s illegally intercepted communications are currently in the custody, control, and possession of the NSA. 11. Plaintiff Noha Arafa is an American citizen who resides and works in _Brooklyn, New York. She regularly makes phone calls and sends email both within the United States, and outside the United States. Ms. Arafa, for example, frequently calls and sends emails to family and ?'iends in Egypt from her home, and has made telephone calls abroad as a part of her work. Since September 12, 2001, Ms. Dranoff has been and continues to be a customer of a customer of which participated and participates in the Spying Program. Pursuant to the illegal Spying Program, Ms. Arafa?s phone calls and emails have repeatedly been surveilled and intercepted by the NSA without a warrant or other judicial authorization. On information and belief, Ms. Arafa?s illegally intercepted communications are currently in the custody, control, and possession of the NSA. 12. Brooklyn, New York. Ms. Dranoff regularly makes phone calls and sends email both within the Plaintiff Sarah Dranoff is an American citizen who resides and works in United States, and outside the United States. Ms. Dranoff for example, calls the Netherlands and sends emails to the Netherlands and Norway from her home. Since September 12, 2001, Ms. Dranoff has been a customer of Verizon and of which, on information and belief, participated and participates in the Spying Program. Pursuant to the illegal Spying Program, Ms. Dranoff?s phone calls and emails have repeatedly been surveilled and intercepted by the NSA ts.) IO IQ IN-J NJ IN) 00 Case3:06-md-01791-VRW Document771 FiIed05lO8l12 Page5 of 27 without a warrant or other judicial authorization. On. information and belief, Ms. Dranoff? illegally intercepted communications are currently in the custody, control, and possession of the NSA. 13. Brooklyn, New York. Ms. Botein makes phone calls and sends email both within the United Plaintiff Hilary Botein is an American citizen who resides and works in States, and outside the United States. Since September l2, 2001, Ms. Botein has been a customer of Verizon which, on information and belief, participated and participates in the Spying Program. Pursuant to the illegal Spying Program, Ms. Botein?s phone calls and emails have repeatedly been surveilled and intercepted by the NSA without a warrant or other judicial authorization. On information and belief, Ms. Botein?s illegally intercepted communications are currently in the custody, control, and possession of the NSA. 14. Defendant Barack H. Obama is the President of the United States, and sued solely in his o?icial capacity. Mr. Obama?s predecessor, George W. Bush, authorized the illegal Spying Program, and Mr. Obama has continued and continues to authorize the illegal Spying Program. 15. Defendant Lieutenant General Keith B. Alexander is the Director of the NSA, and is sued in both his personal and of?cial capacities. Since 2005, Defendant Alexander has had ultimate authority for supervising and implementing all operations and functions of the NSA, including the illegal Spying Program. 16. sued solely in his of?cial capacity. On information and belief, Mr. Holder approved and authorized Defendant Eric Holder is the Attorney General of the United States, and is the Spying Program. Mr. Holder?s predecessor, Defendant Gonzales approved and authorized the Spying Program and has consistently defended the program before Congress and in other public fora. 17. Defendant Lieutenant General Michael V. Hayden is the former Director of the NSA, and is sued solely in his personal capacity. While Director, defendant Hayden had ultimate authority for supervising and implementing all operations and functions of the NSA, tLo.) -PCase3:06-md-01791-VRW Document??/1 Fi|ed05I08I12 Pages of 27 including the illegal Spying F.'rogram.. Defendant Hayden also. apparently. approved.the.illegal initiation of the Spying Program. 18. States. Defendant Gonzales approved and authorized the Spying Program and has consistently Defendant Alberto Gonzales is the former Attorney General of the United defended the program before Congress and in other public fora. 19. Defendant John Ashcroft is the former Attorney General of the United States. Although, according to some published reports, defendant Ashcro? had reservations concerning the Spying Program, Mr. Ashcro? ultimately approved and authorized the Spying Program. 20. United States of America, which has conducted and continues to conduct the illegal Spying Each of the individual defendants works or worked for the government of the Program. 21. At all times relevant hereto, defendants John and Jane Does 111-100 (the ?Doc defendants?), whose actual names plaintiff has been unable to ascertain notwithstanding reasonable efforts to do so, but who are sued herein by the ?ctitious designation ?John Doe? and ?Jane Doe,? were agents and employees of the NSA, Department of Homeland Security, Department of Justice, the White House, or other government agencies, acting in the capacity of agents, servants, and employees of the United States government, and within the scope of their employment as such, who conducted, authorized, and/or participated in the Spying Program. JURISDICTION AND VENUE 22. This action arises under the Fourth Amendment to the United States Constitution, the Foreign Intelligence Surveillance Act, 50 U.S.C. 1801 et .seq., the Wiretap Act 18 U.S.C. 2510 et seq.; and the Stored Communications Act, 18 U.S.C. 2701 et seq. 23. The jurisdiction of this Court is predicated upon 28 U.S.C. 1331, l343(a)(4). 24. Venue is proper in this transferee district pursuant to an Order of the Judicial Panel on Multi-District Litigation, pursuant to 28 U.S.C. 1407, and is proper in the transferor district (Eastern District of New York), pursuant to 28 U.S.C. 1391(e). Case3:06-md-01791-VRW Document771 Filed05l08/12 Page? of 27 JURY DEMAND 25. Plaintiffs demand trial by jury in this action. CLASS ACTION ALLEGATIONS 26. The plaintiff class seeks a judgment declaring that the Spying Program violates FISA, the Wiretap Act, the SCA, and the Fourth Amendment; (ii) an order enjoining defendants from continuing the Spying Program or otherwise subjecting United States persons to electronic surveillance by the NSA without a search warrant or court order; an order requiring defendants to delete and destroy, pennanently and irrevocably, every communication and record of every communication intercepted by the NSA pursuant to the Spying Program in the custody, control, or possession of the United States or any of its agents or employees; and (iv) liquidated damages as set forth in 50 U.S.C. 1810, and 18 U.S.C. 2520, 2707 to redress the extraordinary invasion of privacy caused by the Spying Program. 27. Plaintiffs sue on behalf of themselves and all other similarly situated individuals, and seek to represent a class comprised of all present and ?iture United States persons - who have been or will be subject to electronic surveillance by the National Security Agency without a search warrant, court order, or other lawful authorization since September 12, 200]. 28. The members of the class are so numerous as to renderjoinder impracticable. 29. The questions of law and fact common to the class include that the class members were all-?subject to electronic surveillance without a search warrant, court order, or any lawful authorization pursuant to the Spying Program; all have the common right under FISA, the Wiretap Act, and the SCA to be free from electronic surveillance absent a search warrant or court order, the common right under FISA, the Wiretap Act, and the SCA to liquidated damages for violations of those rights, and the common right under the Fourth Amendment to be free from electronic surveillance absent a search warrant or court order. Defendants? electronic surveillance without a search warrant, court order, or any lawful authorization violated those rights. ICase3:06-md-01791-VRW Fi|ed05I08!12 Pages of 27 30. The named plaintiffs are adequate representatives of the class. The violations of law alleged by the named plaintiffs stem from the same course of conduct by defendants - failure to seek a search warrant, court order, or any other lawful authorization before conducting electronic surveillance that violated and continue to violate the rights of members of the class; the legal theory under which the named plaintiffs seek relief is the same or similar to that on which the class will rely. In addition, the harms suffered by the named plaintiffs are typical of the harms suffered by the class members, especially given the common calculation of liquidated damages. 31. The named plaintiffs have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the class. The named plaintiffs are represented by Emery Celli Brinckerhoff Abady LLP Counsel has the resources, expertise and experience to prosecute this action. Counsel for the plaintiffs knows of no con?icts among members of the class or between ECBA and members of the class. 32. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because: the prosecution of millions of separate actions would be ine?icient and wasteful of legal resources; (ii) the members of the class are scattered throughout the United States and are not likely to be able to vindicate and enforce their statutory and constitutional rights unless this action is maintained as a class action; the issues raised can be more fairly and ef?ciently resolved in the context of a single class action than piecemeal in many separate actions; (iv) the resolution of litigation in a single forum will avoid the danger and resultant confusion of possible inconsistent deterrninations; the prosecution of separate actions would create the risk of inconsistent or varying adjudications with respect to individuals pursuing claims against defendants which would establish incompatible standards of conduct for defendants; and (vi) questions of law and/or fact common to members of the class predominate over any question that affects individual members. ?j j? has 3-I La-D-gb-3 I-I Case3:06-md-01791-VRW Document771 FiIed05l08I12 Page9 of 27 . Classwide Allegations Legal Framework 33. The Fourth Amendment provides that ?[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or a?irmation, and particularly describing the place to be searched, and the persons or things to be seized.? 34. Congress has enacted two statutes that together supply ?the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.? 18 U.S.C. 2511(2)(i) (emphasis added). The first is the Electronic Communications Privacy Act which includes the Wiretap Act, 18 U.S.C. 2510 at and the Stored Communications Act, 18 U.S.C. 2701 er seq., and the second is the Foreign Intelligence Surveillance Act, 50 U.S.C. 180] et? seq. The ECPA 35. Congress first enacted the predecessor to the ECPA (commonly referred to as Title in response to the U.S. Supreme Court?s recognition, in Katz v. United States, 389 U.S. 347 (1967), that individuals have a constitutionally protected privacy interest in the content of their telephone calls. Through Title and then the ECPA, Congress created a statutory framework to govern the surveillance of wire and oral communications in law enforcement investigations. 36. The ECPA authorizes the government to intercept wire, oral, or electronic communications in investigations of certain enumerated criminal offenses, see 18 U.S.C. 2516, with priorjudicial approval, see id. 2518. 37. electronic communication, the government must demonstrate that ?there is probable cause for In order to obtain a court order authorizing the interception of a wire, oral, or belief that an individual is committing, has committed, or is about to commit? one of the enumerated criminal offenses. Id. 2518(3)(a). DJ I--I IJI I-I 00 v?-Ix.) hi I O0 Case3:06-md-01791-VRW Document771 File-d05l08l12 Pagelo of 27 38. It must also demonstrate, among otherthings, that ?there is probable cause for belief that particular communications concerning [the enumerated] offense will be obtained through [the] interception,? id. 25l8(3)(b), and that ?normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous,? id. ?2518(3)(e). 39. authorized. See id 251], 2520, 2701, 2707. The ECPA speci?es civil and criminal penalties for surveillance that is not Foreign Intelligence Surveillance Act 40. The government has one and only one other legal avenue to engage in electronic surveillance: the Foreign Intelligence Surveillance Act. 41. In 1978, Congress enacted FISA to govern the use of electronic surveillance against foreign powers and their agents inside the United States. The statute created the Foreign Intelligence Surveillance Court, a court composed of seven (now eleven) federal district court judges, and empowered this court to grant or deny government applications for electronic surveillance orders in foreign intelligence investigations. See 50 U.S.C. I803(a). Congress enacted ISA after the U.S. Supreme Court held, in United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297 (1972), that the Fourth Amendment does not permit warrantless surveillance in intelligence investigations of domestic security threats. FISA was a response to that decision and to the Report of the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities, S.Rep. No. 94-755, 94th Cong., 2d Sess. (I 976) (?Church Committee Report?), which found that the executive had engaged in warrantless wiretapping of numerous United States citizens including journalists, activists, and Congressmen who posed no threat to the nation?s security and who were not suspected of any criminal offense. The Church Committee Report warned that ?[u]nless new and tighter controls are established by legislation, domestic intelligence activities threaten to undermine our democratic society and fundamentally alter its nature.? I-I h?l l\J v--s Ln5-3 5-- Is.) IO U.) U: IN) I0 Case3:06-md-01791-VRW Document771 Filed05/08/12 Pagell of 27 -.42. When..Congress enacted ISA, it .pro.vided that. theprocedures set outtherein ?shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.? 18 U.S.C. 251 (emphasis added). 43. ISA provides that no one may engage in electronic surveillance ?except as authorized by statute,? id. l809(a)(I). 44. FISA speci?es civil and criminal penalties for electronic surveillance undertaken without statutory authority, see id. 1809 1810. 45. The Senate Judiciary Committee explained that ?[t]he basis for this legislation is the understanding - concurred in by the Attorney General that even if the President has an ?inherent? Constitutional power to authorize warrantless surveillance for foreign intelligence purposes, Congress has the power to regulate the exercise of this authority by legislating a reasonable wanant procedure governing foreign intelligence surveillance.? S. Rep. reprinted at 1978 U.S.C.C.A.N. at 3917. The Committee ?mrther explained that the legislation was meant to ?spell out that the executive cannot engage in electronic surveillance within the United States without a prior Judicial warrant.? Id. at 3906. 46. PISA de?nes ?electronic surveillance? to include: a. ?the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes?; b. ?the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire l\J -53Case3:06-md-01791-VRW Document771 Filed05I08l12 Page12 of 27 47. cornrnunicatiorLto.or from-a. person in the .United. States, . without the consent of any party thereto, if such acquisition occurs in the United States . . ?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?; and ?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.? 50 U.S.C. 1801(1). ISA de?nes ?contents" to include ?any infonnation concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.? 50 U.S.C. 48. FISA defines ?United States person? to include United States citizens and lawful permanent residents. Id. l80l(d). 49. In order to obtain an order from the FISA Court authorizing electronic surveillance, the government must demonstrate, among other things, probable cause to believe that ?the target of the electronic surveillance is a foreign power or an agent of a foreign power? and that I-?t lb-J -P- H-4 ON 00 t? IN) r-?Case3:06-md-01791-VRW Document771 Filed05l08l12 Page13 of 27 ?each of the facilities or.places.at which .the electronic surveillance is.directed.is being used, or is about to be used, by a foreign power or an agent of a foreign power.? id. 50. While FISA generally prohibits surveillance without prior judicial authorization, it includes a provision that allows for warrantless surveillance in "emergency Where an emergency situation exists and ?the factual basis for issuance of an order under this subchapter to approve such surveillance exists,? the statute permits the Attorney General to authorize warrantless surveillance ?if ajudge having jurisdiction under section 1803 of this title is infonned by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance." Id. 1805(i). 51. days after a formal declaration of war. Id. 1811 (?Notwithstanding any other law, the President, ISA also pennits electronic surveillance without a court order for ?fteen through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress?). 52. FISA requires the Attorney General to report to the House and Senate Intelligence Committees twice a year regarding ?all electronic surveillance" authorized under FISA. Id. I808(a). Statistics released annually by the Justice Department indicate that, between 1978 and 2004, the government submitted almost 19,000 surveillance applications to the FISA Court. The FISC denied four of these applications; granted approximately 180 applications with modi?cations; and granted the remainder without modi?cations. The Creation of the Spying Program 53. Until December 2005, even the existence of the Spying Program was unknown to Congress and to the American people. 54. enforcement o?icers need a federal judge ?s permission to wiretap a foreign terrorist is phone, a To the contrary, in a speech on June 9, 2005, President Bush stated: ?Law federal judge ?s permission to track his calls, or a federal judge is permission to search his property. I-I IN) 9-: U) 1-: -5 I--Case3:06-md-01791-VRW Document771 Filed05l08l12 Page14 of 27 O?icers must meet. tame any of these tools. .And thesestandards a1:e.i11lly . - . - . .. consistent with the Constitution of the (Emphasis supplied)? 55. Although it is true that federal law requires law enforcement officers to get permission from a federal judge to wiretap, track, or search, President Bush secretly authorized a Spying Program that did none of those things. 56. revealed by, inter alia, published press reports, whistleblowers, insiders within the United States As revealed in The New York Times in December 2005, and as subsequently government, top government officials, and (after initial equivocation) President Bush himself, in the fall of 200] the NSA launched a secret electronic surveillance program to intercept, search and seize, without prior judicial authorization, the telephone and Internet communications of people inside the United States. This program, as Rep. Silvestre Reyes, then-Chairman of the House Permanent Select Committee On Intelligence (who has been briefed on the Program), explained at a September 2007 hearing, ?involved not only targets overseas, but also American citizens whose phone calls were listened to and e-mail read without a warrant.? 57. On or around October 4, 2001, President Bush issued an order authorizing the NSA to conduct surveillance of telephone and Internet communications of persons within the United States, without court-approved warrants or other judicial authorization. The Spying Program began on or around October 6, 2001. While President Bush ultimately signed the Program Order initiating the Program, Vice President Cheney and the legal counsel to the Office of the Vice President, David Addington, ?guided the program?s expansion and development.? According to one former DOJ Of?cial, Addington was the ?chief legal architect? of the Program, and he and Cheney ?had abhorred intrusion on presidential power ever since its enactment in 1978. After 9/1 1 they and other top o?icials in the administration dealt with FISA the way they dealt with other laws they didn?t like: They blew through them in secret based on ?imsy legal opinions that they guarded closely so no one could question the legal basis for the operations.? 4 See I?l IQ I--I U-1 run?lb- Ln ON [0 \3l GO Document771 Fi|ed05l08I12 Page15 of 27 58,. - .Rresirlent.Bush reauthorized the-Spying Program more.Lhan.30 times between October 2001 and December 2006, approximately every 45 days, as con?rmed by responses by the O?ice of the Vice President to a Congressional subpoena. 59. The Program re?ects a goal of the NSA presented to the incoming Bush administration in December 2000. A transition document for the new administration stated ?The volumes and routing of data make ?nding and processing nuggets of intelligence information more difficult. To perform both its offensive and defensive mission, NSA must ?live on the network.? Moreover, the NSA asserted that its ?mission will demand a powerful, permanent presence on a _global telecommunications network that will host the ?protected? communications of Americans as well as the targeted communications of adversaries.? 60. Yoo, then a Deputy Assistant Attorney General in the Of?ce of Legal Counsel, to prepare legal Addington and then-White House Counsel Alberto Gonzales assigned John opinions in support of the Program. The Department of Justice prepared memoranda dated October 4 and November 2, 2001; January 9, May 17, and October 1 l, 2002; February 25, 2003; March 15, May 6, and July 16, 2004; and February 4, 2005. Years later, after he le? government service in 2003, Yoo explained why FISA was not sufficient for the Program's dragnet interception: [U]nder existing laws like FISA, you have to have the name of somebody, have to already suspect that someone?s a terrorist before you can get a warrant. You have to have a name to put in the warrant to tap their phone calls, and so it doesn?t allow you as a government to use judgment based on probability to say: ?Well, 1 percent probability of the calls from or maybe 50 percent of the calls are coming out of this one city in Afghanistan, and there?s a high probability that some of those calls are terrorist communications. But we don?t know the names of the people making those calls.? You want to get at those phone calls, those e-mails, but under FISA you can?t do that. If ?j I- K0 I- U) has u-?s I- O0 I--Case3:06-md-01791-VRW Document771 Filed05I08l12 Page16 of 27 61. .. The goyemment hascandidly admitted that 1SA.?requires.a court order before engaging in this kind of surveillance . . . unless otherwise authorized by statute or by Congress." The Program admittedly operates ?in lieu of? court orders or otherjudicial authorization, and neither the President nor Attorney General authorizes the speci?c interceptions. As General (Ret.) Michael V. Hayden, the former Principal Deputy Director for National Intelligence, put it, the Program ?is a more . . . ?aggressive? program than would be traditionally available under in part because ?[t]he trigger is quicker and a bit so?er than it is for a FISA warrant." The only review process is authorization by an NSA ?shift supervisor" for direct review of particular individuals? communication. The Mechanics of the Spying Program 62. As part of the Spying Program, the NSA uses satellite dishes controlled both by the NSA and those controlled by telecommunications companies to intercept, search and seize, and subject to electronic surveillance communications that are transmitted via satellite. Many of these satellite dishes are located within the United States. 63. According to the Senate Select Committee on Intelligence, shortly after September 1 1, 201 1, the Executive branch sent letters requesting or directing U.S. electronic communication service providers to provide access to communications in order to assist the NSA with intelligence activities that had been authorized by the President. In a Report, the Committee confirmed: ?The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President.? 64. The ?assistance? sought involved an important aspect of the Spying Program challenged here. The NSA uses electronic communication companies, including and Verizon (used by the named plaintiffs), to intercept, search and seize, and subject to electronic surveillance communications, including voice calls and e-mails, that pass through switches bud v--I IQ I-?l DJ ha 42Case3:06-md-01791-VRW Document771 Fi|ed05l08l12 Page17 of27 controlled by these.companies. Theseswitches are the.hubs- through whicl1voice.calJs and data. transmissions are routed every second. 65. These switches, which are located inside the United States, serve as primary gateways for communications going into, through, and out of the United States. The switches connect to transoceanic ?ber-optic cables that transmit communications to other countries. 66. detailed eyewitness testimony and documentary evidence showing how telecommunications In January 2006, a former employee named Mark Klein provided companies in general, and in particular, are acquiring communications for the government. Klein had worked as an technician for 22 years, most recently at San Francisco facility on Folsom Street. 67. The NSA has worked with telecommunications and Internet providers in the United States to install ?splitters? on ?ber-optic cables carrying domestic and international communications. According to William Binney, the-former chief and co-founder of the Signals Intelligence Automation Research Center, and a former senior NSA there are between 10 and 20 such splitters installed throughout the country??not just San Francisco; they have them in the middle of the country and also on the East Coast.?5 The installation of these splitters allows two identical copies of all communications to be made, with one copy traveling its intended course, and the other being routed to the NSA. These communications are routed en masse to the NSA without any concern for the subject matter or content of the communications. 68. splitters operate, and divert communications to the NSA, at one facility. To divert the Former employee Klein has provided documents showing how these communications, connected the fiber-optic cables entering its WorldNet Internet room to a ?splitter cabinet.? The splitter cabinet splits the light signals ?'om the WorldNet Internet service in two, making two identical copies of the material carried on the light signal. The splitter cabinet 5 James Barnford, ?The NSA is Building the Country's Biggest Spy Center (Watch What You Say)," Wired Threat Level Blog (Mar. 15, 2012), also available as James Bamford, ?Inside the Matrix," Wired, April 2012, at 78. IIx) l?~Case3:06-md-01791-VRW Document771 Fi|ed05lO8I12 Page18 of 27 directs one portion o?the lightsignalthroughiiberoptic cables into.a secret roorn.builLon premises, but controlled by the NSA while allowing the other portion to travel its normal course to its intended destination. The split cables carry domestic and international communications of customers, as well as communications from users of other non-AT&T networks that pass through that facility. The position or location of the ?ber split make clear that it was not designed to capture only international traf?c, and necessarily captures purely domestic communications, as a fiber splitter is not a selective device. According to Klein, intercepts every single one of the communications passing through the WorldNet Internet room and directs them all to the NSA. Klein and others have reported similar splitters throughout the United States. l(lein?s report has been con?rmed by James Russell, Managing Director-Asset Protection. 69. According to former NSA official Binney, at the outset of this program, the NSA recorded 320 million calls a day a number that has since increased.? 70. initial computer?controlled analysis to ?listen? to the content of the communications, search for After the communications are acquired by the NSA, they are subjected to an targeted addresses, locations, countries, phone numbers, keywords, phrases, and watch-listed names, and analyze patterns, referred to by former Secretary of Homeland Security Michael Chertotf as ?data-mining.? This analysis intrudes into content, and the computers ?listen? to more Americans than humans do. The Program uses extremely powerful computerized search programs?-originally intended to scan foreign communications?to scrutinize large volumes of American communications. According to a recent article based on interviews with former NSA officials, ?Any communication that arouses suspicion, especially to or from the million or so people on agency watch lists, are automatically copied or recorded,? and subjected to human review. Once an individual has been ??agged,? all calls and communications to or from that individual are automatically routed to the recorders. 71. United States? are subjected to such searches, regardless of whether there was any suspicion of the Government of?cials have acknowledged that ?most telephone calls in the ?Jet 7 Id. 1-: .t?J I-I l\J I-?F-I l\J IxCase3:06-md-01791-VRW Document771 Fi|ed05I08I12 Page19 of 27 sender or recipient.. As oneo?icial explained, f?you have to. haveall the .c.alls nr.most.of them. But you wouldn?t be interested in the vast majority of them." 72. One way communications are searched is by keywords. If the keywords included ?jihad,? ?Iraq,? ?Bush is a criminal,? or whatever words or phrases the United States government deems of interest, then, pursuant to the Spying Program, the Americans who use such terms may be targeted by the NSA for even further interception, search and seizure, and electronic surveillance. 73. As reported in The Wall Street Journal, the data-si?ing effort can also begin by using a phone number or web address as a lead. ?In partnership with the FBI, the systems then can track all domestic and foreign transactions of people associated with that item and then the people who associated with them, and so on, casting a gradually wider net. An intelligence o?icial described more of a rapid-response effect: If a person suspected of terrorist connections is believed to be in a US. city -- for instance, Detroit, a community with a high concentration of Muslim Americans -- the govemment?s spy systems may be directed to collect and analyze all electronic communications into and out of the city.? 74. NSA employees have also confirmed that they have personally listened in on hundreds of citizens? phone calls that have no connection to national security, including calls between Americans and their family members abroad and calls regarding international aid organizations. 75. NSA employees have also admitting listing to calls simply for their own entertainment specifically calls that are in some way tantalizing and salacious - and sharing the calls of these private, personal conversations with office mates. 76. As one former NSA employee, Adrienne Kinne, has explained, NSA interceptors often found themselves listening to ?incredibly intimate, personal conversations.? She noted, ?It?s almost like going through and finding somebody?s diary.? 77. Prior to human review, all the acquired communications, including those to, from and/or between Americans, are stored in a vast government database for potential future use. As Director of National Intelligence J. Michael McConnell later explained, immediately and LAcommunications without authorizationand/or exceeds authorization to access electronic Case3:06-md-01791-VRW Dccument771 Fi|ed05l08l12 Page2D of 27 after is .no..human that is aware: of it. So you woI.1ldn?t know that until you went . . into the database.? The NSA is currently building a large facility known as the ?Utah Data Center,? -where it is. believed these and other communications will be stored in the Future. This information is apparently kept inde?nitely, even if the subject of the ,surveil.lanc_e is an ordinary American. Trr'lIr'on.r.of domestic communications with no intelligence value are acquired? and stored in the database. 78. rotect Americans? rivacy obtaining a warrant or minimization by ur tin the record From. the I3 la la On the occasions where the government follows procedures established to database), it does -so not only after the communications is acquired but only after ansanalyst reviews the acquired communication. If a government analyst reviewed the communications and determined that ?it was a U.S. person inside the United States . . . that would stimulate the system to geta warrant:-And that -is how the process would work.? In other words, the NSA only seeks a warrant (if at" all), after the comrnunieation is (1) illegally intercepted and -acquired; (2) illegally placed in a government database; (3) illegally reviewed by an analyst; and (4) the system ?ags it for a warrant. 79. Spying?Progran'1, the NSA engages in??eleclroni'c surveillance" as defined by FISA. 80. Under the Spying Program, the NSA engages in ?interception? of both ?wire communication[s]? and ?electronic cotnmunication[s]? as de?ned in the Wiretap Act. 18 U.S.C.. 2510. 81. Under the Spying Program, the NSA intentionally accesses electronic communications that are maintainjcd in ?electronic storage" as de?ned by the SCA. 82. Under the Spying Program, the -NSA .intereepts, searches and seizes, and subjects to electronic stuveillance both .domcstie and international telephone communications of people insidethe United States, including citizens and law?tl permanent. residents, including plaintiffs. D--9-- Ix) Is.) IO 41:- IQ [0 xi IN) 00 Case3:06-md-01791-VRW Document771 Filed05I08l12 Page21 of 27 83. .. ..Under the .Spy.ing Program, the NSA intercepts, searches and.seizes,and .-. subjects to electronic surveillance both domestic and intemational Internet communications, including email, of people inside the United States, including citizens and lawful permanent residents, including plaintiffs, who are innocent, law-abiding citizens have no connection whatsoever to terrorism. 84. Under the Spying Program, the NSA has intercepted, subjected to electronic surveillance, and searched and seized millions of both domestic and international telephone and Internet communications (hereina?er collectively ?communications?) of people inside the United States, including citizens and lawful permanent residents, including plaintiffs. This includes the private phone conversations, private email, and private Internet use of millions of Americans. 85. subjects to electronic surveillance the communications of people inside the United States without Under the Spying Program, the NSA intercepts, searches and seizes, and probable cause to believe that the surveillance targets have committed or are about to commit any crime. 86. subjects to electronic surveillance the communications of people inside the United States without Under the Spying Program, the NSA intercepts, searches and seizes, and probable cause, reasonable suspicion, or any reason to believe that the surveillance targets either have committed or are about to commit any crime or are foreign powers or agents thereof. 87. Under the Spying Program, the NSA intercepts, searches and seizes, and subjects to electronic surveillance the communications of people inside the United States without obtaining speci?c authorization for each interception from the President or the Attorney General. 88. Under the Spying Program, NSA shi? supervisors are authorized to approve NSA employees? requests to intercept, search and seize, and subject to electronic surveillance the communications of people inside the United States. 89. search warrant, a court order, or any lawful authorization whatsoever before or after intercepting, Under the Spying Program, the NSA does not seek judicial review, obtain a searching and seizing, and subjecting to electronic surveillance the communications of people inside the United States. 5--give its approval to the reauthorization of the order because of concerns about the legal basis of Case3:06-md-01791-VRW Document771 FiledO5l08I12 Page22 of 27 90. . Orrinformation and.bel.ief, pursuant to the secret Spying-Pr.o gram, .the NSA has intercepted, searched and seized, and subjected to electronic surveillance private communications between Americans and their husbands, wives, children, parents, friends, pastors, doctors, lawyers, accountants, and others. the unlawful interception, search and seizure, and electronic surveillance of the contents of their Each of the named plaintiffs was, pursuant to the Spying Program, subject to phone and Intemet communications. 92. Prior to its initiation, defendants never advocated that Congress enact a bill authorizing the illegal Spying Program. 93. Prior to its initiation, defendants never sought authorization from the ISA Court to conduct the Spying Program. 94. Prior to its initiation, defendants never sought authorization ?'om any Article Court to conduct the Spying Program. 95. Defendants were, or should have been, well aware that the Spying Program was a clear violation of the law. 96. Defendants were, or should have been, well aware that the Spying Program is a federal crime. Recognition of the Blatant Illegality of the Spying Program, and Continued Operations 97. The Spying Program was so blatantly illegal that, ?when the presidential order was set to expire, the Department of Justice, under Acting Attorney General James Comey, refused certain of these NSA activities.? When the-then White House Counsel and Chief of Staff sought approval from Attorney General Ashcroft ?om his hospital bed, ?Ashcroft gave a lucid account of the reasons that Justice had decided to withhold support. And then he went beyond that. Ashcro? said he never should have certi?ed the program. Ashcroft speci?ed a list of facts, and a list of legal concerns, that the secrecy rules had prevented him from discovering. Had be known them, he said, he would have withheld his signature before.? n-0 I--I--I IN) I--I ix) tn 475 -.Jax_t..n B3 00 Case3:06-md-01791-VRW Document771 Filed05IO8I12 Page23 of27 ?Despite. the.apparent.conclusion by .the.Department of Justice thatthe- - -. Program violated criminal laws, President Bush nevertheless reissued the Program Order on or around March 11, 2004. As one author has explained, ?Addington deleted the Justice Department from the document [and] typed in ?Alberto R. Gonzales,? the White House Counsel, on a substitute signature line. . . . He did not stop at adding a legally meaningless signature line for Gonzales. Addington drew up new language in which Bush relied upon his own authority to certify the program as lawful.? As a result of this incident, about ?two dozen Bush appointees," including Acting Attorney General Corney and FBI Director Mueller, were prepared to resign. 99. o?icials with knowledge of the Program felt compelled as whistleblowers to report defendants? The Spying Program was so blatantly illegal that at least a dozen government illegal conduct to The New York Times, notwithstanding substantial risks to their employment and potentially to their liberty. 100. After the revelations to The New York Times, defendant Bush authorized a criminal investigation into the whistleblowing activity. 101. To plaintiffs? knowledge, however, defendants have failed to open any criminal investigation into the Spying Program itself. 102. Law 110-55 Although not authorized by the PAA, the Spying Program continues to this In August 2007, Congress passed the Protect America Act of 2007, Public day. As The Wall Street Journal noted in March 2008, the essential aspects of the Spying Program are unchanged: ?According to current and former intelligence o?icials, the now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit- card transactions, travel and telephone records. The NSA receives this so-called ?transactional? data ?om other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns.? fl 9- IN) LnIsCase3:06-md-01791-VRW Document771 Filed05l08I12 Page24 of 27 OEACTION .. .. --., Foreign -Intelligence Surveillance Act, 50 U.S.C. 1810 (against all Defendants) 103. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were ?illy set forth at length herein. 104. Plaintiffs are ?aggrieved person[s]? as de?ned in 50 U.S.C. 1810, are not foreign powers or agents of a foreign power, and were subjected to electronic surveillance conducted or authorized by defendants pursuant to the Spying Program in violation of 50 U.S.C. 1809. 105. Defendants are ?person[s]? within 50 U.S.C. 180l(m). 106. Plaintiffs are entitled to the damages set forth in 50 U.S.C. 1810. SECOND CAUSE OF ACTION Wiretap Act, 18 U.S.C. 2510, et seq. (against Defendants Alexander, Hayden, Gonzales and Ashcroft) 107. Plaintiffs repeat and reallegc the foregoing paragraphs as if the same were fully set forth at length herein. 108. Plaintiffs are ?aggrieved person[s]? as de?ned in 18 U.S.C. 2510. 109. The contents of plaintiffs? wire and electronic communications were intercepted by defendants pursuant to the Spying Program in violation of 18 U.S.C. 2511. 110. Plaintiffs are entitled to the damages set forth in 18 U.S.C. 2520. #t?-41- IN.) IN) P0 00 Case3:06-md-01791-VRW Document771 Filed05I08!12 Page25 of 27 THIRD CAUSE OEACTION Stored Communications Act, 18 U.S.C. 2701, et seq. (against Defendants Alexander, Hayden, Gonzales and Ashcroft) II 1. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully set forth at length herein. 112. Plaintiffs are ?aggrieved? within 18 U.S.C. 2707(a). 113. Defendants intentionally accessed plaintiffs? stored communications without authorization pursuant to the Spying Program in violation of 18 U.S.C. 270]. 1 14. Plaintiffs are entitled to the damages set forth in 18 U.S.C. 2707(c). FOURTH CAUSE OF ACTION Bivens/Fourth Amendment (against all Individual Defendants) 1 l5. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully set forth at length herein. 116. surveillance of plaintiffs, and by searching and seizing the contents of plaintiffs? communications By conducting, authorizing, and/or participating in the electronic without reasonable suspicion or probable cause, and failing to prevent their fellow government of?cers from engaging in this unconstitutional conduct, defendants deprived plaintiffs of rights, remedies, privileges, and immunities guaranteed under the Fourth Amendment of the United States Constitution. 117. In addition, defendants conspired among themselves to deprive plaintiffs of their Fourth Amendment rights, and took numerous overt steps in furtherance of such conspiracy, as set forth above. |I?l ?n 1- DJ I--Case3:06-md-01791-VRW Document771 Fi|ed05I08I12 Page26 of 27 118. As a direct and proximate result of the misconduct and abuse of authority detailed above, plaintiffs sustained a shocking loss of privacy, and the damages hereinbefore alleged. WI-IEREFORE, plaintiffs respectfully seek: (A) an order certifying this action as a class action pursuant to Fed. R. Civ. P. 23(b) for the plaintiff class described herein and naming plaintiffs as the class representatives; (B) a judgment declaring that defendants? Spying Program violates ISA, the Wiretap Act, SCA, and the Fourth Amendment, and permanently enjoining the Spying Program or any NSA electronic surveillance of United States persons without a search warrant or court order, and requiring defendants to delete and destroy, permanently and irrevocably, every communication and record of every communication intercepted by the NSA pursuant to the Spying Program in the custody, control, or possession of the United States or any of its agents or employees; (C) an award of liquidated and/or compensatory damages to the named plaintiffs and members of the class in an amount to be determined at trial; (D) an award of punitive damages to the named plaintiffs and members of the class against the individual defendants in an amount to be determined at trial; (B) an award of reasonable attorneys? fees, costs, and disbursements, pursuant to 50 U.S.C. 1810, 18 U.S.C. 2520, 18 U.S.C. 2707, and 28 U.S.C. 2412. (F) a grant of such other and ?irther relief as this Court shall findjust and proper. Case3:06-md-01791-VRW Document771 FiIed05l08I12 Page27 of 27 Dated: May 8, 2012 EMERY CELLI BRINCKERHOFF ABADY LLP 7/ Ilann M. Maazel Matthew D. Brinckerhoff Adam R. Pulver 75 Rockefeller Plaza, 20"? Floor New York, NY. 10019 Phone: (212) 763-5000 Fax: (212) 763-5001 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION MDL Dkt. No. 06-1791-VRW IN RE NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS CL ION LITIGATION OF NATIONAL SECURITY AGENCY This Document Relates to: ALL CASES ex tA!-Horamain V. Bush (07-109); v. as}: (07-1115); United States v. Farber (07-1324 United States v. Adams SUBMITTED IN CAMERA, 07-1326); United tates v. I/olz EXPARTE nited States v. Gow (07-1242); Clayton v. Communications of the Southwest (07~l Hon. Vaughn R. Walker Date: November 15, 2007 Time: 2:00 gm Courtroom: Floor I,?do hereby state and declare as follows: Introduction 1. (U) I am the Deputy Chief of Stuff for Operations and Support for the Signals Intelligence Directorate of the National Security Agency (NSA), an intelligence agency within the Department of Defense. I oversee ignals intelligence (SIGINT) operations of NSA which includes the SIGINT units er the u.s. armed services. Under Executive Order No- 12333, 45 Fed. Reg. 5994! (1981), as amended on January 23, 2003, 68 Fed. Reg. 4075 (2003), and August 27, 2004, 69 Fed. Reg. 53593 (2004), the NSA SIGINT Directorate is responsible for the collection, processing, and dissemination of SIGINT infonnation for the foreign intelligence purposes of the United States. I am responsible for protecting NSA SIGINT activities, sources and methods against unauthorized disclosures. I have be designated an original TOP SECRET classi?cation authority under Executive Order No. 12958, 60 Fed. Reg. 19825 (I 995), Classi?ed Declaration I: National Agency, B: Part: In Ceaura Review MDL No. 06-1791-VRW A 1.1.: ul as amended on March 25, 2003, 68 Fed. Reg. 15315 (2003), and Department of Defense Directive No. 5200.1-R, Information Security Program Regulation, 32 C.F.R. 15 9a.l2 (2000). I have worked at NSA for thirty three years various positions as a linguist, analyst and supervisor. As the Deputy Chief of Staff for Operations and Support, I am familiar with the document retention and preservation policies of the NSA. 2. 1 make this declaration in support the United States? Opposition to Plaintiffs? Motion for an Order to Preserve Evidence. The purpose of this declaration is to describe the policies and practices in place at NSA to preserve documents and information related to particular intelligence activities authorized by the President after the 9/1 1 attacks that are implicated by the claims in this proceeding, as well as to discuss stepsthat I understand have been taken 3. will address the following topics in this declaration. First, I brie?y summarize the intelligence activities implicated by these lawsuits and which are subject to the state secrets privilege assertion, as previously in described in the classified Declarations that Lt. General Keith T. Alexander, Director of NSA, has submitted in support of the United States? assertion of the state secrets privilege and NSA statutory privilege in Hepting v. which involved claims aginst and in the various cases against various Verraan defendants (hereafter ?In Camera Alexander Declaration in Case or Verizon Cases"). Second, I identify categories of documents and information that may be related to these activities ?Thir? (U) Classi?cation markings in this declaration are in accordance with the marking system Mute to -- Classi?ed Declaration of National Security Agency, Ex Paris In Caesar-a Review MDL No. B6-1191-VRW 8 I0 described in the In Camera Alexander Declarations submitted in the Hapring and Verizon cases. u. A ur:u.u. mnvut 2 I then describe the speci?c preservation status of various categories of documents and information potentially relevant to this litigation. 4. (U) My statements in this decimation are based on my personal knowledge of NSA activities as well as information provided to me in the course of my ot?cial duties. I have - become familiar with the subject matter of the lawsuits before the Court in this action and the Plaintiffs? pending motion. In particular, I have read the Plaintiffs? Motion as well as the classi?ed declarations that General Alexander has submitted, see supra 1] 3 5. addition, the description set forth herein of the documents and information maintained and preserved _is known to and has been obtained by NSA in the course of its official duties. As previously described by General Alexander, NSA in carrying out its signals intelligence mission. See In Camera Alexander Declaration in Hepting Case 3, 27-33; In Camera Alexander Declaration in Verizon Cases 3-4, 24-26. Declaration or National Security Agency, Pure In Camera Review 27 MDL No. as-1191-vnw a?innative steps (described below) to ensure the preservation of infonnation that may be relevant to this litigation. In particular, NSA is preserving a range of documents and communications concerning the presidcntially-authorized activities at issue, including: authorizations for these activities by the President; communications- documents related to the TSP, including speci?c selectors telephone numbers and email addresses) tasked for content interception and the reasons they were targeted; the actual content of communications intercepted under the intelligence reports containing TSP information; Internet and telephony metadata collected under the Presidential authorization; requests that NSA task that metadata for analysis to obtain infonnation on terrorist contacts the reports of that land analysis relating to the lawfulness of the TSP and metadata activities; brie?ng materials analysis; and miscellaneous information concerning these activities, including legal opinions used to advise Members of Congress and the Foreign Intelligence Surveillance Court about these activities; internal NSA oversight materials, such as NSA Inspector General oversight of the operation of these activities; guidance used by NSA concerning how to designate, use, and protect TSP information in intelligence reports; and technical information concerning the manner in which these presidentially-authorized activities were implemented, - Clalnl?ed Declaration National Security Agency, Paris a Camera Review MDL No. 06-1791-VRW 4 Q- Background A. NSA Activities 3. Asmnem Alexanderhaspreviously described in detail, the lawsuits before the Court implicate several highly classi?ed and 9-- I9 critically important SA intelligence activities As General Alexander explained, this information is subject to the Government's assertion of 15 the state secrets and related statutory privileges and cannot be disclosed without causing 15 exceptionally grave harm to national security. See In Camera Alexander Declaration in 17 Case ?ml 27-78;1n Camera Alexander Declaration in Verizon Cases ?.111 23-90. 18 26 Classi?ed Declaration of National Security Agency, Ex Pam In Camera Review 27 MDL No. 06-1 m-vnw 28 ., 5 9. First, these lawsuits put at issue whether the NSA has intercepted the content of domestic communications of the plaintiffs and other U.S. citizens. As set forth in General Alexander's prior submissions, although the Plaintiffs wrongly allege that the NSA conducts a dragnet of surveillance of the content of minions of communications sent or received by people inside the United States, see in Camera Alexander Declaration in Fen?-am Cases 54_th=NsA interception of the content of communications reasonably believed to involve a member or agent of al Qaeda or an affiliated terrorist organizations pursuant to the President's Terrorist sovcmance rmcam 10. smnd, again after the 9/11 attacks and pursuant to an authorization of the President, _the NSA-the bulk collection of non-content information about telephone calls and Internet communications (herea?er that enable the NSA to uncover the contacts - of members or agents of al Qaeda or affiliated terrorist organizations. 16 Speci?cally, the President authorized the NSA to collect metadata related to Internet 17 communications for the purpose of conducting targeted analysis to track 211 Qaeda-related 10 13 networks. Internet metadata is hcaderlrouter/addressing information, such as the 19 and ?bcc" lines, as opposed to the body or ?re" lines, of a standard email. Since July 20 2004, the collection of Internet metadata has been conducted pursuant to an Order of the 21 Foreign Intelligence Surveillance Court authorizing the use of a pen register and trap 22 and trace device Pen Register Order?). See 18 U.S.C. 3127 (de?ning ?pen register" 23 and ?trap and trace device"). 24 11. addition, also after the 911 1 attacks, 26 Classi?ed Declaration of National Security Agency, Ex Part: In Camera Review 27 MDL No. as-rm-vnw 1 NSA -the collection of telephony metadata conducted 2 ursuant to an authorization of the President. Such metadata is compiled from call detail data 3 reflects non-content 4 information such as the date, time, and duration of telephone calls, as well as the phone 5 numbers used to place and receive the cells. As with the broad Internet metadata collection 5 now authorized by the FISA Court, the bulk collection of telephony metadata was and remains 7 8 9 necessary to utilize sophisticated analytical tools for tracking the contacts Since May 2oo6.? have been required to produce this information by order of the FISA Court Telephone 19 Records Order?). 11 Document Catgories 12 12. 1 describe below the categories and preservation status of documents or information maintained by NSA in the following three program activities prior to the relevant FISC Order for that activity!? 15 '_I?he Terrorist $ur_vei1lance Program aut_hor_ized by the President to rnterc certain international commumcations into or out of the United 17 States tie. ,?one-en forei that are reasonably believed to involve a [8 member or agent of al Qa or a?liated terrorist organization; and (ii) The collection of non-content data Internet 19 communications authorized by the President ?Internet 20 metadata"). The collection of telephone calligg record information 31 (?telephony metadata authoriz by the President. 22 23 eases Because Plaintiffs have not challenged activities occurring pursuant to an order of the FISC, this declaration does not address infonnation collected pursuant to such an 25 authorization or any retention policies associated therewith. 26 Classi?ed Declaration of National Security Agency, B5: Parts In Camera Review 27 MDL No. as-1191-vnw 28 1 cannot state that all documents and information concerning these activities have been preserved since the activities commenced under presidential authorization alter the 9/11 attacks. I speci?cally describe below various categories of documents and information concerning these activities that may be potentially relevant to the litigation and that NS.- acted to preserve since the? onset of this litigation. Preservation of Information A. Eli?f?? National Secnrig Agency Information 13. As set forth below, the NSA preserving documents and information potentially relevant to the claims and issues in this lawsuit with respect to the three categories ofactivities authorized by the President after 911 1 and detailed above for the period prior to the respective superseding FISC orders. NSA has taken various steps to ensure that mstaff and officials in offices that were cleared to possess information related to the presidcntially authorized activities are preserving documents contained in their ?les and on their computer systems that relate to these activities. Initially, on January 10, 2006, the General Counsel of the National Security Agency, through a classi?ed electronic mail communication, instructed that information, records, or materials (including in electronic form) related to the presidentially- authorized activities be preserved. Prior to the initiation of these lawsuits, NSA has held internal meetings between the Of?ce of General Counsel (OGC), Of?ce of the inspector General, Signals Intelligence Directorate, and senior agency management, to discuss operational and logistical issues associated with the operation of the presidentially-authorized activities; the preservation of information and documents related to those activities has been irregularly discussed at these meetings. Following the initiation of their cases in 2006, OGC has used these meetings to regularly advise the relevant program of?ces to preserve all information related to these activities, including in electronic form. In addition, in August Classi?ed Declaration of National security Agency, Ex Pam In Camera Review 27 MDL N. as-1191-vuw . I h,.I ill 8 1 2007, following the issuance of Congressional subpoenas for information related to the 2 lpresidenlially-authorized activities, NSA's OGC again instructed the NSA program o?icials 3 and personnel who had been cleared for access to information concerning the pesidentially- 4 authorized activities that all information and documents (including written or electronic) related 5 to these activities and the current litigation be preserved. The categories of documents and 5 information related to the presidentially authorized activities is described belowCamera Alexander Declaration in Hepting Case 111] 61, 74-75; In Camera Alexander 19 Declaration in Verizon 171] 49-52; and In Camera Alexander Declaration in Shubert Cases 39 11 34-36. Pursuant to the presidential authoriza?on, NSA queried the collected 21 metadata using telephone numbers and email addresses that are reasonably suspected to be 22 associated with al Qaeda or a group a?liated with al Qaeda (as discussed aboveclmmed Declaration of! National Security Agency, Parts In Camera Review 27 MDL No. 05-1791-vnw 28 9 it?: 24 26 27 2.8 set forth below; NSA has preserved metadata collected in bu1k_u.nder presidential authorization. 2. msiden?al Authorizations I6. SA is preserving copies of all Presidential authorizations of the TSP and metadata collection activities described herein from the inception ofthesc activities, including the periodic re-authorization of these activities by the President. 'I?hese authorizations were accompanied by a current analysis of the teirorist threat facing the United States, and these threat memoranda have also been preserved. These documents originated outside of NSA and were obtained and are preserved solely in paper fonn. These documents are maintained in the of?ces of the NSA Director. 4. (U) Terrorist Surveillance Program Information 18. NSA is preserving several categories of documents related to the Terrorist Surveillance Program under which the content of international, one-end foreign telephone and Internet cornmunications reasonably believed to involve a member or Classi?ed-Declaration of Nation! Security Agency. Part: In Camera Review MDL No. 10 agent of al Qacda or a?liated terrorist organization were intercepted during the existence of that program. These TSP documents include the following: 19. TSP Tasking and Probable Cause Infonnation: SA is preserving documentation assembled by its in the process of determining whether it should, in connection with the TSP, intercept the content of communications of a particular selector telephone number or email address). As set forth in General .A1exander?s prior declarations in this case, the interception of the content of communications under the TSP was ltriggered by a range of information, including sensitive foreign intelligence, obtained or derived from various sources indicating that a particular phone number or email address is reasonably believed by the U.S. Intelligence Community to be associated with a member or agent of al iQaeda or an a?iliated terrorist organization. See, In Camera Alexander Declaration in 12 Verizon Cases 1 55. After NSA would task for content collection a particular phone number or 13 email address that met this criteria, it preserved documentation of the particular selectors 14 (telephone numbers and Internet addresses) and are reasons for the tasking. 21 20. preserves documentation on an electronic database of telephony selectors tasked telephone numbers 23 reasonably believed to be associated with persons outside the United States). Since 24 approximately September 2005, NSA has also maintained a record of foreign Internet selectors 25 Classi?ed Declaration or National Security Agency, Parts In Caurn Review 27 MDL No. as-1791-vnw 10 ll 1- I I- I l.Vl.I.\ in an electronic database (which includes the basis for tasking the selector). For the period prior to September 2005, tasking documentation identifying foreign Internet selectors is not complete. However, since the initiation of this lawsuit, NSA has acted to preserve all records that did exist at that time for foreign Internet tasking. 21. SP Content: As described herein, SA is preserving the actual content of communications intercepted under the presidentially-authorized TSP as described in this paragraph. For voice intercepts under the TSP, NSA has maintained all ?raw traffic? in an electronic database.? From the initiation of the TSP until the program ceased in 2007, the raw traffic of Internet content intercepts were maintained on a database for approximately 180 days. Because the operational relevance of this intelligence declined over time, and because the performance of this system is affected by the volume maintained on the online database, NSA migrated the raw Internet traf?c to computer tape. However, NSA is preserving tapes of the Intemet content intercepted under the TSP since the inception of the program. 22. ml?gence Reports: NSA have prepared detailed intelligence reports that utilize content intercepts obtained under the TSP authorization by the President. NSA intelligence reports are written assessments of intelligence on particular topics (for example, the threat of al Qaeda attacks or the activities of suspected al Qaeda operatives). For each of these reports, an NSA analyst is able to determine ifinfermation "obtained through a TSP inteneept was utilized. All NSA intelligence reports are preserved 5 Dm to a technical mal?mction (which occurred on orabout January 26, 2007), raw telephony intercept for a period of approximately six months (June 2005-December 2005) was inadvertently deleted from this database. However, foreign intelligence information derived from these raw intercepts is preserved. Clulliled Declaration of National Security Agency. Ex Part: In Camera Review MDL No. 06-1191-VRW 12 I. at I permanently in paper and electronic form. 5. Internet and Telephony Metadata Collection 23. mma Metadata Collection: As described above and in General Alexander?s prior Declarations, starting in October 2001, and now pursuant to the FISC Pen Register Order, NSA has obtained- ulk metadata associated with electronic communications - See, In Camera Alexander Declaration in Verizon Cases, 1] 31. NSA collected Internet mctadata pursuant to Presidential authorization until -2004 (nearlp two years before these lawsuits commenced). On -2004, NBA took initial steps to embargo this data ?om access by all NSA Because the Internet metadata collected prior to the FISC Iorder ?was no longer being used for analysis, it was migrated to electronic tapes starting in January 2006. Those tapes are stored by the Signals Intelligence Directorate. To be clear, the presidcntially authorized collection of internet metadata is segregated from information collected under the FISC Order of July 2004 and has not been destroyed. 24. Telephony Metadata Collection: As dwcribed above and in General Alexander-?s prior declarations, starting in October 2001, and now pursuant to the FISC Telephone Records Order entered in May 2006 (FISC Telephone Records Collection 0rd=r>- NSA has ??"ected? telephony metadata compiled from call detail records thet? reflects non-content information such as the date, time, and duration -h of telephone calls, as well as the phone numbers used to place and receive the calls. See. 25 5?-5 ciauined neeimnon or National Security Agency, B: Part: In Cam era Review 27 MDL No. as-1191-vnw 28 In Camera Alexander Declaration in Verizon Cases 1] 32. The telephony metadata NSA collected _n'ior to the FISC order is segregated in an online database from that collected after May 2006 under the FISC Order, but remains subject to querying for analysis of _ontacts by those reasonably believed to be associated with al Qaeda and affiliated terrorist organizations. 25. For operational reasons, NSA maintains approximately ?ve years worth of telephony metadata in its online database. Data acquired La?er 2003 under Presidential authorization is preserved electronically in an online data base. NSA has migrated to tapes telephony metadata collected during the period 2001-02, since the current operational relevance of that data has declined and continuing to maintain it on current operational systems would be unnecessary and would encumber current operations with more years old from an online database to tapes for preservation. To the extent NSA is required to halt the migration of older telephony metadata to tape, less relevant data would be retained in the operational system, encumbering the performance of the current online database because of the volume of data, and this would severely undermine NSA's ability to identify- contacts of suspected terrorist communications. 26. Mom?on Pertaining to meries of Meta-Data: SA is preserving documentation of requests that it query its database of Internet and telephony recent data. SA's operational policy is to continue to migrate telephony metadata beyond ?metadata for analysis. See In Camera Alexander Declaration in Verizon Cases 31-32 and In 21 Camera Alexander Declaration in Hepting Cases 111] 37-43 (describing contact chaining- 22 fmetadata). This documentation indicates the selectors (Internet addresses 23 and phone numbers) that NSA searched in order to analyze particular contacts 24 ?or that selector, and the basis for its analysis for the selectors under which the 25 26 Classi?ed Declaration of - National Security Agency, Bx Paris In Camera Review 37 MDL No. no.1-191-vnw 28 Is) inetadata was queried. Documentation of metadata queries is maintained by NSA's Signals Intelligence Directorate in electnonic form. 27. Lepom ofMetadata Analysis: NSA is preserving documentation of its analysis of Internet and Telephony Metadata obtained pursuant to Presidential authorization and prior to the respective FISC Orders for these activities. These reports include the results of any contact chaining ?for particular selectors reasonably believed to be that of a mher or agent of al Qaeda or af?liated terrorist organization. This documentation sets forth assessment of a particular Internet or telephony selector?s contacts in order to detect other potential al Qaeda associates. Reports documting metadata analysis are maintained by NSA's Signals Intelligence Directorate in both an electronic database and in paper form. 6. Miscellaneous NSA Information 28. summarized below, NSA is also preserving miscellaneous categories of administrative records related to the presidentially-authorized activities implicated by these lawsuits (TSP content collection, Internet nietadata collection, telephony metadata collection). These categories include: Legal Qinions and analysis relating to the law?ilness of_ the TSP and metadata activities. a information is maintained in paper form in the Office of the General Counsel. Materials Related to Brie?ngs to Members at Can Es and the FISA Court on the TSP and me ata activities since ir inception. These documents are ein maintained . anggireserved in paper form by the Program -Manager's Of?ce for these SA activities. In dition, an electronic version of the latest iteration of these brie?ngs is also maintained. Altho no brie?n materials have been destroyed since the initiation of these lawsuits in 20 6, it is possi le that not all earlier iterations of brie?ngs have been preserved. (ii) Internal Oversi hi Documents of the residentially-authorized TSP and metadata collection activi'ti'es, incl?d?g reports by l~lS_A_ General Counsel and the NSA eetor General of the taperation of these activities. NSA also is preserving agendas an notes of regular mon ly meetings between the Office of the General Counsel, Classi?ed Declaration of? National Security Agency, E1: and In Camera Review MDL No. 06-1791-VRW Lesa; A 12 O?ice of the Inspector General, and the Signals Intelligence Directorate, which review and address legs and operational issues concerning the TSP and metadata collection activiti descri'bed herein. Classi?cation Guides that address the classification status, processing, dissemination, an reporting a into gence traffic and information obtained pursuant to the presidential authorization. This guidance, which NSA intelligence use in analyzing TSP traf?c, includes instructions on how to designate and protect TSP information in intelli cc reports, how to designate its clas?cation status, and how to implement NSA inimmization procedures in drafting reports (typically procedures that require the minimization of the names of U.S. persons _mentioned in such reports who are not foreign intelligence targets). This information is maintained in electronic form. (iV) Classi?ed Declaration of National Security Agency, fans In cam era Review MDL No. 06-I791-VRW 16 National Security Agency, Bx Parts In Camera Review; 27 MDL No. as-rm-vnw 17 clmmed Declaration National Security Agency, BxPam In Camera Review MDL No. 06-1791-VRW 18 _26 Classi?ed Declaration National Security Agency. Ex Part: In Camera Review 7 MDL No. ?.1191-vnw 23 . .. Au .ll?L 19 3Claml?ed Declaration 0 National Security Agency, Ex Part: In Cam our Review MDL No. 06-1791-VRW 20 10 26 Classi?ed Declaration of? National Security Agency, Bx Pane In Camera Review 27 MDL No. as-1191-vnw 21 Classi?ed of National security Agency, Ex Pane In Camera Review MDL No. Jsuu . . 22 A I I0 11 r-A i?l 1 -BU-lb) 26 Classi?ed Declaration of National seen my Agency, Ex Part: In Camera Review 27 MDL No. 06-1791-VRW 28 an nu .1 1? I Classi?ed Declaration of National Security Agency, Part: In Camera Review 27 MDL No. I16-1791-VRW 28 - .1. Lon-dsaa. as .1 _l I 53.1 26 Classi?ed Declaration of National Sacurlty Agency, Bx Part: In Camera Review No. 06-1191-VRW Hi 25 Classi?ed Declaration of National Security Agency, Ex Pam In Cam era Review MDL No. 54. (U) Ifthe Court has any questions concerning this submission, the NSA is prepared to address them and assist the Court further through secure in camera, ex parte 1? 26 0proceedings. I declare under penalty of pezjmy that the foregoing is true and correct. mm: 3605/9/w Jam 7 epn Signal; Intellig_ence Directorate National Security Agency 26 Cleul?ed Dcelaratlon National Security Agency, arm 1: Camera Review MDL No. 06-1791-VRW mumma cf of Staff for Operations and Support 27