ELECTRONIC FRONTIER FOUNDATION CINDY COIIN (145997) Cindy@eff.org LEE TIEN (148216) tien@eff.org KURT OPSAHL (191303) kurt@eff.org KEVIN S. BANKSTON (217026) bankston@eff.org CORYNNE MCSHERRY (221504) corynne@ef?org JAMES S. TYRE (083117) 454 Shotwell Street San Francisco, CA 94110 Telephone: 415/436?9333 415/436-9993 (fax) TRABER VOORHEES BERT VOORHEES (137623) bv@tvlegal.com THERESA M. TRABER (116305) tml@tvlegal.eom 128 North Fair Oaks Avenue, Suite 204 Pasadena, CA 91103 . Telephone: 626/585?9611 626/ 57751079 (fax) Attorneys for Plaintiffs [Additional counsel appear following the signature page] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA TASH HEPTING, GREGORY HICKS, CAROLYN JEWEL and ERIK KNUTZEN on Behalf of Themselves and All Others Similarly) Situated, Plaintiffs, vs. CORP., INC. and DOES 1?20, inclusive, Defendants. No. DECLARATION OF MARK KLEIN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Date; Time: Court: Judge: June 8, 2006 2:00 p.111. Courtroom 6, 17th Floor The Hon. Vaughn R. Waiker, Chief United States District Judge FILED UNDER SEAL PURSUANT TO CIVIL LOCAL RULE 79-8 DECLARATION OF MARK KLEIN Mark Klein, declare under penalty of perjury that the following is true and correct: 1. I am submitting this Declaration in support of Plaintiffs? Motion for a Preliminary Injunction. I have personal knowledge of the facts stated herein, unless stated on information and belief, and if called upon to testify to those facts I could and would competently do so. 2. For over 22 years [worked as a technician for Corporation ?rst in New York and then in California: I started working for in November 1981 as a Communications Technician. 3. From January 1998 to October 2003, I worked as a Computer Network Associate at an facility on Geary Street in San Francisco, CA. 4. From October 2003 to May 2004 I worked as a Communications Technician at an facility at 61 Folsom St, San Francisco, CA (the ?Folsom Street Facility?). 5. Previously, I worked as an Communications Technician from November 1981 to January 1998. I was assigned to facilities in New Yorle New York (November 1981 to December 1990), White Plains, NY (December 1990 to March 1991), Pleasanton, CA (March I991 to May 1993 and March 1994 to January 1998) and Point Reyes, CA (June 1993 to March 1994). 6. I retired from in May 2004- 7. Corp. (now a subsidiary of Inc.) maintains domestic telecommunications facilities over which millions of Americans? telephone and Internet communications pass every day. These facilities allow for the transmission of interstate or foreign electronic voice and data communications by the aid of wire, ?ber optic cable, or other like connection between the point of origin and the point of reception. 8. Between 1998 and 2003 I worked in an of?ce located on Geary Street in San Francisco as one of six Computer Network Associates in the of?ce. The site manager was a managementnlevel technician with the title of Field Support Specialist (hereinafter referred to as PSS Two other FSS people (PBS #2 and F88 also operated from this DECLARATION OF MARK KLEIN of?ce. 9. During my service at the Geary Street facility, the of?ce provided WorldNet Internet service, international and domestic Voice Over IP (voice communications transmitted over the Internet), and data transport service to the Asia/Paci?c region. 10. While I worked in the Geary Street facility in 2002, FSS #1 told me to expect a visit from a National Security Agency agent. I and other technicians also received an email from higher management advising us of the pending visit, and the email explicitly mentioned the NSA. FSS #1 told me the NSA agent was to interview FSS #2 for a special job. The NSA agent came and met with SS SS #1 later continued to me that FSS #2 was working on the Specialjob, and that it was at the Folsom Street Facility. II. In January 2003, I, along with others, toured the Folsom Street Facility. The Folsom Street Facility consists of three ?oors of a building that was then operated by SBC Communications, Inc. (now known as Inc). 12. While on the January 2003 tour, I saw a new room being built adjacent to the 4ESS switch room. The new room was near completion. I saw a workman apparently working on the door lock for the room. I later learned that this new room being built was referred to in documents as the Secure Room? (hereinafter the Secure Room?). The 8G3 Secure Room was room number 641A, and measures approximately 24 by 48 feet. 13. The 4ESS switch room is a room that contains a 4ESS switch, a type of electronic switching system that is used to direct long~distance telephone communications. uses the 4ESS switch in this room to route the public?s telephone calls that transit through the Folsom Street Facility. 14. SS the management-level technician whom the NSA cleared and approved for the specialjob referenced above, was the person working to install equipment in the 8G3 Secure Room. 15. In October 2003, the company transferred me to the Folsom Street Facility to oversee the WorldNet Internet room, as a Communications Technician. DECLARATION OF MARK KLEFN ?JO?ilJt the Fall of 2003, F38 #1 told me that another NSA agent would again visit our of?ce at Geary Street to talk to FSS #1 in order to get the latter?s evaluation of FSS #3 ?s Suitability to perform the special job that SS #2 had been doing. The NSA agent did come and speak to FSS By January 2004, F88 #3 had taken over the Special job as FSS #2 was forced to leave the company in a downsizing. 17. The regular technician workforce was not allowed in the SG3 Secure Room. To my knowledge, oniy employees cleared by the NSA were permitted to enter the SG3 Secure Room. To gain entry to the SG3 Secure Room required both a physical key for the cylinder lock and a combination code number to be entered into an electronic keypad on the door. To my knowledge, only FSS and later FSS had both the key and the combination code. Regular technicians, including myself, had keys to every other door in the facility because we were often there working alone. We were not given either a key or the combination code for the SG3 Secure Room. On one occasion, when SS #3 was retrieving a circuit card for me from the SG3 Secure Room, he invited me into the room with him for a couple of minutes while he retrieved the circuit card from a storage cabinet and showed me somepoorly installed cable. 18. The extremely limited access to the SG3 Secure Room was highlighted by one incident in 2003. F88 told me that the large industrial air conditioner in the SG3 Secure Room was leaking water through the floor and onto equipment downstairs, but FSS #2 was not immediately available to provide servicing, and the regular technicians had no access, so the seminemergency continued for some days until FSS #2 arrived. 19. provides dial~up and DSL Internet services to its customers through its WorldNet service. The WorldNet Internet room included large routers, racks of modems for customers? WorldNet dial-in services, and other telecommunications equipment. The equipment in the WorldNet Intemet room was used to direct emails, web browsing requests and other electronic communications sent to or from the customers of WorldNet internet service. 20. In the course of my employment, I was responsible for troubleshooting DECLARATION OF MARK KLEIN 4 .. ao?ooqmmproblems on the ?ber optic circuits and installing new ?ber optic circuits. 21. The ?ber Optic cables used by typically consist of up to 96 optical ?bers, which are ?exible thin glass ?bers capable of transmitting communications through light signals. 22. Within the WorldNet Internet room, high speed ?ber optic circuits connect to routers for WorldNet Internet service and are part of the WorldNet?s ?Common Backbone? (CBB). The CBB comprises a number of major hub facilities, such as the Folsom Street Facility, connected by a mesh of high-speed (0C3, OC12, OC48 and some even higher speed) optical circuits. 23. Unlike traditional copper wire circuits, which emit electromagnetic ?elds that can be tapped into without disturbing the circuits, ?ber Optic circuits do not ?leak? their light signals. In order to monitor such communications, one has to physically cut into the ?ber and divert a portion of the light signal to access the information. 24. A ?ber optic circuit can be split using splitting equipment to divide the light signal and to divert a portion of the signal into each of two ?ber optic cables. While both signals will have a reduced signal strength, after the split both signals still contain the same information, effectively duplicating the communications that the splitter. 25. In the course of my employment, I reviewed two ?Cut-In and Test Procedure? documents dated January 13, 2003 and January 24, 2003, which insnucted technicians on how to connect the already circuits to a ?splitter cabinet,? which diverted light signals from the WorldNet Internet service?s ?ber optical circuits to the SG3 Secure Room. 26. A true and correct copy of the ?Cut?In and Test Procedure? documents are attached hereto as Exhibits A and B. Exhibit A is the January 13, 2003 document, and Exhibit is the January 24, 2003 dOCurnent. 27. . The light signals from the WorldNet Internet service?s optical circuits were Split, with a portion of the light signal going through ?ber optic cables into the 8G3 Secure Room. The location code of the ?splitter cabinet? is 070 77.04, which denotes the 7th ?oor, aisle I77 and bay 04. DECLARATION OF MARK KLEIN LIX-DWN @0049 Splitter Wiring, San Francisco? dated December 10, 2002, authored by Labs?. In the course of my employment, I reviewed a document entitled ?Study Group consultant Mathew F. Casamassima. A true and correct copy of this document is attached hereto as Exhibit C. This document described the connections from the SG3 Secure Room on the 6th ?oor to the WorldNet Internet room on the 7th ?oor, and provided diagrams on how the light signal was being split. 29. The circuits that were listed in the ?Cut-in and Test Procedure? document dated January 24, 2003 are ?Peering Links? that connect the WorldNet Internet network to national and international Internet networks of non?AT&T telecommunications companies. 30. The ?Cut-In and Test Procedure? documents provided procedures to ?cut-in? Peering Links to the Splitter and hence to the SG3 Secure Room. 3 . Starting in February 2003, the ?splitter cabinet? split (and diverted to the SG3 Secure Room) the light signals that contained the communications in transit to and from Peering Links with the following Internet networks and Internet exchange points: ConXion, Verio, X0, Genuity, Qwest, PAIX, Allegiance, Abovenet, Global Crossing, UUNET, Level 3, Sprint, Telia, and 32. is an Internet nodal point and one of the largest ?Internet exchange points? in the United States. PAIX, the Palo Alto Internet Exchange, is another signi?cant Internet exchange point. 33. Internet exchange points are facilities at which large numbersof major Internet service providers interconnect their equipment in order to facilitate the exchange of communications among their respective networks. 34. Through the ?splitter cabinet,? the content of all of the electronic voice and data communications going across the Peering Links mentioned in paragraphs 29 to 31 was transferred from the WorldNet Internet room?s ?ber optical circuits into the SG3 Secure Room. 35. The document ?Study Group 3, LGX/Splitter Wiring, San Francisco? dated December 10, 2002, listed the equipment installed in the SG3 Secure Room, including such DECLARATION OF MARK KLEIN C-06-0672-VRW - 6 - equipment as Sun servers and Juniper (M40e and M160) ?backbone? routers. This list also included a Nams STA 6400, which is a ?Semantic Traf?c Analyzer.? 36. In the course of my employment, I was required to connect new circuits to the ?splitter cabinet? and get them up and running. While working on a particularly dif?cult one with another technician, I learned that other such ?splitter cabinets? were being OOQON installed in other cities, including Seattle, San Jose, Los Angeles and San Diego. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. DATED: March 28, 2006 Mark Klein DECLARATION OF MARK KLEIN EXHIBIT A PERSONAL INFORMATION REDACTED FROM THIS PAGE I Labs Connectivity Net Services . SIMS Splitter. Cut-In and {Test Procedure . - A lgsqe'z, 01/13/03 Author: Mathew F. Gasamassima KLEIN A?l PAGES 11 AND 12 INTENTIONALLY OMITTED PERSONAL INFORMATION REDACTED FROM THIS PAGE SIMS - Splitter Testland Cut-In Procedure Mathew F. Casamassima, 1 . Procedure Overview A wars Ticket will be issued by the Bridgeton Network Operation Center (N00 to charge time for performing the work described in this-procedure document. At some point prior to the splitter cut-in being performed your of?ce will be contacted by the Bridgeton Network Operations Center (NOC) to con?rm the WMS Ticket has been received Bridgeton NUC personnel will again contactOSWF the night'of the cut to begin coordination. The work described in the procedure will be supported, on-site, by an IP Field Support Specialist (FSS) from the Day Tech organization. This precedure covers the steps required to insert optical ?splitters into select liVe Common Backbone (CBB) 0C3, OCIZ and 0048 optical circuits. The splitter insertion will be accomplished by removing existing optical crossconnects and installing new cross-connects all within the CBB LGX complex. The optical splitters will be contained in? a standalone cabinet located in the proximity of the CBB IJGX complex. The splitters will be pro-cabled by vendor to the tear of a dedicated LGX bay - within the CBB IGX complex. A partial installation and test of cross-connects can be done" prior to the actual splitter cut?in. This portion of the work can be done outside the CBB maintenance Window. An IP ., FSS member? of the Day Tech organization will contact OSWF to schedule?tho pmut portion of?the wodr. :?Section-Z of this document will describe the pMut installation bf and the present testing of the new circuit path. The actual cut-in of the splitter will be done during the CBB maintenance window and will be closely coordinated with the Bridge NOC andfwill be supported, on?site. by an IP FSS member of the Day Tech organization. The actual splitter cutsin is described in Section 3 of this document. The number of cross?connects required and the final path the circuit'will take is dependant on the location of the affected bays within the multiple line-ups of the LGX complex- This procedure will describe all possible splitter cut?in circuit paths. The procedure will also describe the procedures for testing each possible circuit path. 1.1. How to Use this Procedure This procedure document is quite long. It is not necessary to read this whole document to do the work. There are 4 possible LGX arrange that may encounter.- By reading sectidn 1.2 below, determine which LGX arrangement applies to the circuit you are working. Then. after reading the introductory paragraphs in Sections 2 and 3, go directly to the subsections within Sections 2 and 3 associated with the LGX arrangement you are dealing with. 7 1.2. LGX Definition and LGX-Arrangement: LGX De?nition: There are multiple LGX bays affected by this procedure. Within the CBB LGX cornplex LGX bays follow a speci?c naming convention (LLGX 1, LLGX3. LLGX4, This naming convention is uniform across sites. Since thisdocument is designed to cover all sites, this uniform naming convention will be used here. Site~speci?c engineering will use the LGX PIC code rather than the naming. Prior to the start of the work described here the local IP FSS will label the LGX bays with the naming as presented in this document. The following are generic de?nitions for the LGX bays affected by this procedure: Proprietary Use Pursuant to Company Instructions Page 4 of 43 KLEIN PAGES 14 THROUGH 52 INTENTIONALLY OMITTED EXHIBIT PAGES 55 THROUGH 59 INTENTIONALLY OMITTED Figure 5 - Arrangement 3 - Circuit Connectivigt- Cut Night Measurements Network Facing;r Router Facing LGX in 1?t Line-Up Spiitter Facing LGX in 2nd Line-U13 Overhead View Of Bavs (Anpiies to Circuits AGEC.671212. AGEC.622360. AGEC-622352, MC.517519. IVEC.502963. IVEC.547506. IVEC.509396. WEC.597263. IVEC.502961.IVEC.502960 IWEC.502947) Transport Facili ems?com?em Measurement Point kg} Pi See Note Rear v\\Cnble to Router LLze LLGX 2 3 anx 5 LLGX 1 LLGX 7 '5 15? Tye 070174Front of LGXs :v It?! New Cross Connects .t -: Existing Cross Connect Rear of LGXs 49" l3 Liox- 2nd Line_UP LLGX 8 LLGX 9 LLGX 10 LLGX 11 LLGX 12 5 ?mgr ?e LG z?aeln 060944 01 02 03 04 05 07 Front of LGXS Note: (1) The number of CORE/Transmission LGXs in the circuit may vary from circuit to circuit. (2) This arrangement also applies to circuit AGEC.242541 except the Router facing LGX is LLGX 5. New Cross Connects Tie Cable Between LLGX-TZ KLEIN B-6 PAGES 61 THROUGH 73 INTENTIONALLY OMITTED Engineering Engineering Engineering ?mum: Circuit Change Complau . Complete Order luut Date Dato Active KLEIN EXHIBIT PERSONAL INFORMATION REDACTED FROM THIS PAGE ?72 Labs Connectivity Net Services Study Group 3 LGX/Spli?tter Wiring San Francisco Issue 1 12/10/02 Author: Mathew F. Casamassima KLEIN PAGE 78 INTENTIONALLY OMITTED PERSONAL INFORMATION REDACTED FROM THIS PAGE Study Group 3 LG?Splitter Wirinq, San Francisco Issue 1 12/10/02 Mathew F. Casamassima, Cabinet Naming: Eggipmant Name Splitter Cabinet S90 LGX Cabinet LXC Meta Data Cabinet HDC Network Management Cabinet NMC Data Filter Cabinet - DFC Juniper M4OE Router Cabinet JC Sun V880 Cabinet 58C Sun 3800 Cabinet 53C Sun Storedge Cabinet SSC ADC Chassis For LGX le ADC Chassis For Splitter SPP ADC Splitter Module ADC Bulkhead Module (LGX) bk Juniper M160 - jP Juniper M406 4 News STA 6400 nr Sun Fire V880fNarus Logic Server 33 Sun Fire 3800 33 Sun StorEdge T3 at Sun StorEdge FC switch sf Cisco Catalyst . 0: BayTech D39 139 BayTech RPC22 bv Brocade SilkWorm 2800 Switch 132 Lueent LGX Proprietary KLEIN PAGES 80 THROUGH 120 INTENTIONALLY OMITTED PERSONAL INFORMATION REDACTED FROM THIS PAGE Study GrOup 3 LGX/Splitter Wirinq. San Francisco Issue 1I 12/10/02 Mathew F. Casamassima, (Him 563 LGX Panel to Splitter Cabinet Connectivity 01lxp Splitter Cabinet SG3 LGX Splitter End Fiber SGE LGX Destination Designation Card Label Text Panel Text Port (In 363 Room) 1 3/poct 14 RR 070177.04 FROM: 060903.01 31pm 14 01lxpiJK 1 TO: aiport 14 2 31pm 13 RR 070177.04 FROM: 000903.01 013131318101 3152071 13 01lxleK 2 TO: 015W 3153011 13 3 3Ipor1 16 RR 070177.04 - FROM: 060903.01 Biport 16 01lxleK 3 TO: 01591318101 Slpod 16 4 3lporl 15 RR 070177.04 FROM: 060903.01 Blport 15 01lxleK 4 TO: :3me 15 5 01801318101 319011 18 RR 070177.04 FROM: 060903.01 01sppi?Slot 315301118 TO: Slpon 1B 6 3lpor1 17 RR 070177.04 FROM: 060903.01 01sppI?Slot 3/port 17 01IXDUK 6 TO: Slport 1 7 7 01553131810: 4fpod 20 RR 070177.04 FROM: 060903.01 01 app/Slot 4fpo?t 20 01lxleK 7 TO: 3/port 20 8 01spp/Slot 41pm 19 RR 070177.04 FROM: 060903.01 01 spp/Siot 4lport 19 a - TO: 3/port 19 9 4Jpou1 22 RR 070177.04 FROM: 060903.01 01 4Jport 22 011mm 9 TO: 3Iport 22 10 01 app/Slot 4113011 21 RR 070177.04 FROM: 060903.01 4lport 21 01lxleK 10 TO: 01 app/3101 31pm 21 11 OisppISlot 4Ip011 24 RR 070177.04 FROM: 060903.01 4lport 24 011m.le 11 TO: 01 alport 24 12 4Jp011 23 RR 070177.04 FROM: 060903.01 .01sppISlot 4Iport 23 12 TO: 01sppISlol 31pm 23 13 01 Slport 132 RR 070177.04 FROM: 060903.01 01sppl8lot Slpod 82 13 5713011 82 14 ?lport A2 RR 070177.04 FROM: 060903.01 01spp/Slot Slport A2 01bchK 14 Slpod A2 15 Blpo? 32 RR 070177204 FROM: 060903.01 Biport BZ 01lxleK 15 T0201sppISlot Glport 82 16 01spp/Slol Glporl A2 RR 070177.04 FROM: 060903.01 Glport A2 . 01lxleK 16 T0201spp1310t61pod A2 Proprietary - KLEIN (3?45 PERSONAL INFORMATION REDACTED FROM THIS PAGE .NAAWW mm," a WA- Study Group 3 LGX/Splitter Wining, San Francisco Issue 1 12/10/02 Mathew F. Casamassima, Splitter to 8G3 LGX Connectivity The Tabies in this section give the splitter to 8G3 LGX connectivity as shown with in the bounds of this box. 8G3 Splitter Facing LGX In 8G3 Secure Room. Ullxp through 04k}; panels I . . til? .- I ADC 50/50 Splitter Interfacing Interfacing CBB CBB LLGX 13 LLGX 13 Jacks 1 ~36 Jacks 37- 72 . Newly . NEWIY Installed Installed Preprietary KLEIN (3-46 PAGES 123 THROUGH 134 INTENTIONALLY OMITTED DECLARATION OF SERVICE BY HAND-DELIVERY I, the undersigned, declare: I. That declarant is and was, at all times herein mentioned, a resident of the United - States and employed in the City and County of San Francisco, over the age of 18 years, and not a party to or interested party in the within action; that declarant?s business address is 100 Pine Street, Suite 2600, San Francisco, California 94111, 2. That ?on April 5, 2006, declarant served by Hand?Delivery the DECLARATION MARK KLEIN IN SUPPORT OF MOTION FOR PRELIMJNARY INIUNCTION FILED UNDER SEAL PURSUANT TO CIVIL LOCAL RULE 79-5 to the parties listed on the attached Service List I declare under penalty of perjury that the foregoing is true and correct. Executed this 5th Won @1901?le MARZENA day of April, 2006, at San Francisco, California. i DECLARATION OF MARK. KLEIN warranties/'1 a. Service List 4512006 (0641010) Page 1 I Counsel For Defendantis) Bruce A. Ericson Pillsbury Winthrop Shaw Pittman LLP ?50 Fremont Street San Francisco, CA 94105-2228 415/983?1000 4 1 51983?1 200 (Fax) Counsel For Plaintif?s) Cindy Cohn Lee Tien Kurt Opsahl Electronic Frontier Foundation 454 Shotweli Street San Francisco, CA 94110 415/436-9333 41 51436-9993 (Fax) Reed R. Kathrein Jeff D. Friedman Shana E- Scarlett Lerach Coughlin Stoia Geller Rudman 8: Robbins LLP . 100 Pine Street. Suite 2600 San Francisco, CA 94111-5238 415/288-4545 41 512-8 8?4534 (Fax) Richard R. Wiebe Law Of?ce of Richard D. Wiebe 425 California Street, Suite 2025 San Francisco. CA 94104 41 51433-3200 41 51433?6382 (Fax)