Case4:08-cv-04373-JSW Document235 Filed06/05/14 Page1 of 4 1 2 3 4 5 6 7 8 9 10 11 CINDY COHN (SBN 145997) cindy@eff.org LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303) JAMES S. TYRE (SBN 083117) MARK RUMOLD (SBN 279060) ANDREW CROCKER (SBN 291596) DAVID GREENE (SBN 160107) ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: 415/436-9333; Fax: 415/436-9993 RICHARD R. WIEBE (SBN 121156) wiebe@pacbell.net LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Telephone: 415/433-3200; Fax: 415/433-6382 12 13 14 15 RACHAEL E. MENY (SBN 178514) rmeny@kvn.com PAULA L. BLIZZARD (SBN 207920) MICHAEL S. KWUN (SBN 198945) AUDREY WALTON-HADLOCK (SBN 250574) BENJAMIN W. BERKOWITZ (SBN 244441) JUSTINA K. SESSIONS (SBN 270914) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, CA 94111 Telephone: 415/391-5400; Fax: 415/397-7188 THOMAS E. MOORE III (SBN 115107) tmoore@rroyselaw.com ROYSE LAW FIRM, PC 1717 Embarcadero Road Palo Alto, CA 94303 Telephone: 650/813-9700; Fax: 650/813-9777 ARAM ANTARAMIAN (SBN 239070) aram@eff.org LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Tel.: 510/289-1626 Counsel for Plaintiffs 16 UNITED STATES DISTRICT COURT 17 FOR THE NORTHERN DISTRICT OF CALIFORNIA 18 OAKLAND DIVISION 19 20 21 22 CAROLYN JEWEL, TASH HEPTING, YOUNG BOON HICKS, as executrix of the estate of GREGORY HICKS, ERIK KNUTZEN and JOICE WALTON, on behalf of themselves and all others similarly situated, Plaintiffs, 23 24 25 26 v. NATIONAL SECURITY AGENCY, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 4:08-cv-4373-JSW IMMEDIATE ACTION REQUESTED PLAINTIFFS’ EMERGENCY APPLICATION TO ENFORCE THE COURT’S TEMPORARY RESTRAINING ORDER HEARING REQUESTED FOR JUNE 6, 2014 Courtroom 5, 2nd Floor The Honorable Jeffrey S. White 27 28 Case No. 08-cv-4373-JSW PLAINTIFFS’ EMERGENCY APPLICATION TO ENFORCE THE COURT’S TEMPORARY RESTRAINING ORDER Case4:08-cv-04373-JSW Document235 Filed06/05/14 Page2 of 4 1 By this emergency application, plaintiffs seek immediate enforcement of the evidence 2 preservation Temporary Restraining Order (the “TRO”) entered by the Court on March 10, 2014 3 (ECF No. 189) and reaffirmed in the Court’s April 17, 2014 Amended Minute Order (ECF 4 No. 206). Because of the urgency of this matter, plaintiffs respectfully request that the Court hear 5 the parties on this matter on Friday, June 6, 2014 at a time convenient to the Court. Plaintiffs 6 have conferred with counsel for the plaintiffs in Shubert v. Obama and they join in this application. 7 Plaintiffs also informed defendants, as of 10:30 am PDT today, that they are seeking this relief. 8 Cohn Decl., Exh. E. 9 In its TRO, the Court ordered the government to refrain from any further destruction of 10 evidence pending final resolution of the parties’ dispute over the government’s evidence 11 preservation obligations: “Accordingly, it is HEREBY ORDERED that Defendants, their officers, 12 agents, servants, employees, and attorneys, and all those in active concert or participation with 13 them are prohibited, enjoined, and restrained from destroying any potential evidence relevant to the 14 claims at issue in this action, including but not limited to prohibiting the destruction of any 15 telephone metadata or ‘call detail’ records, pending further order of the Court.” ECF No. 189 at 2 16 (emphasis added). In its Amended Minute Order, the Court reiterated that the TRO’s prohibition 17 on any evidence destruction remains in effect until the Court has finally decided the evidence 18 preservation dispute: “The Court extends the temporary restraining order issued on March 10, 19 2014 until a final order resolving the matter is issued.” ECF No. 206 at 1. 20 In communications with the government this week, plaintiffs learned to their surprise that 21 the government is continuing to destroy evidence relating to the mass interception of Internet 22 communications it is conducting under section 702 of the Foreign Intelligence Surveillance Act. 23 This would include evidence relating to its use of “splitters” to conduct bulk interceptions of the 24 content of Internet communications from the Internet “backbone” network of AT&T, as described 25 in multiple FISC opinions and in the evidence of Mark Klein and J. Scott Marcus, ECF Nos. 84, 26 85, 89, 174 at Ex. 1. 27 Specifically, in connection with the modification of the evidence preservation briefing 28 schedule earlier this week, plaintiffs’ counsel sought assurances from the government that no Case No. 08-cv-4373-JSW -1PLAINTIFFS’ EMERGENCY APPLICATION TO ENFORCE THE COURT’S TEMPORARY RESTRAINING ORDER Case4:08-cv-04373-JSW Document235 Filed06/05/14 Page3 of 4 1 evidence destruction would occur if the briefing schedule were extended. Cohn Decl. Ex. A. After 2 initially giving a cryptic response, the government finally confirmed today that in its view the TRO 3 does not require it to preserve evidence relating to Internet content interceptions and that it has not 4 stopped the routine destruction of such evidence. Cohn Decl., Exs. B, C and D. The government 5 stated: “The Court is presently considering whether the Government must preserve material 6 obtained under Section 702 of FISA in the context of the Jewel/Shubert litigation. 7 meantime, pending resolution of the preservation issues in this case, we have been examining with 8 our clients how to address the preservation of data acquired under the Section 702 program in light 9 of FISC imposed data retention limits (even though we disagree that the program is at issue in 10 Jewel and Shubert).” This, quite plainly, means that the government has interpreted the March 10, 11 2014 TRO as putting it under no current obligation to preserve evidence it has collected under 12 section 702 despite the clear language of the TRO and the context in which it was entered. In the 13 Once again, the government has apparently secretly and unilaterally reinterpreted its 14 obligations under the Court’s evidence preservation orders, without notice to the Court or to 15 plaintiffs, and has determined that it need not engage in preservation of relevant evidence. This 16 time, however, there can be no dispute that the government was aware of broad scope of the TRO 17 and the Court’s intention that no destruction occur of evidence plaintiffs contend is relevant until 18 the Court has decided the matter. 19 Plaintiffs request an immediate hearing before the Court on Friday, June 6, 2014 to enforce 20 the existing TRO and to impose on the government whatever further measures are necessary to 21 ensure that no destruction of evidence occurs before the Court has decided the pending evidence 22 preservation dispute. 23 Dated: June 5, 2014 24 Respectfully submitted, /s/ Cindy Cohn CINDY COHN LEE TIEN KURT OPSAHL JAMES S. TYRE MARK RUMOLD ANDREW CROCKER 25 26 27 28 Case No. 08-cv-4373-JSW -2- PLAINTIFFS’ EMERGENCY APPLICATION TO ENFORCE THE COURT’S TEMPORARY RESTRAINING ORDER Case4:08-cv-04373-JSW Document235 Filed06/05/14 Page4 of 4 DAVID GREENE ELECTRONIC FRONTIER FOUNDATION 1 2 RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE 3 4 THOMAS E. MOORE III ROYSE LAW FIRM 5 RACHAEL E. MENY MICHAEL S. KWUN BENJAMIN W. BERKOWITZ JUSTINA K. SESSIONS AUDREY WALTON-HADLOCK PAULA L. BLIZZARD KEKER & VAN NEST LLP 6 7 8 9 10 11 ARAM ANTARAMIAN LAW OFFICE OF ARAM ANTARAMIAN 12 Counsel for Plaintiffs 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 08-cv-4373-JSW -3- PLAINTIFFS’ EMERGENCY APPLICATION TO ENFORCE THE COURT’S TEMPORARY RESTRAINING ORDER