On September 18, 2008, AT&T customers filed this class action lawsuit in the U.S. District Court for the Northern District of California, against the United States. The plaintiffs, represented by the Electronic Frontier Foundation and by private counsel, claimed that the federal government's electronic surveillance program violated the Fourth Amendment, First Amendment, separation of powers, the Foreign Intelligence Surveillance Act ("FISA"), the Wiretap Act, the Electronic Communications Privacy Act or the Stored Communications Act, and the Administrative Procedure Act.
Specifically, the plaintiffs alleged the National Security Agency ("NSA") implemented a massive, indiscriminate, illegal dragnet of the phone calls and email of tens of millions of ordinary Americans since the September 11 terrorist attacks. The core component of the defendants' surveillance program is a nationwide network of sophisticated communication surveillance devices attached to the key facilities of various telecommunication companies that carry Americans' Internet and telephone communications.
On October 28, 2008, Judge Walker marked this case as formally related to Hepting v. AT&T, NS-CA-0004
, in this Clearinghouse. The Multi District Litigation (MDL) Panel then consolidated the case as part of a multi-district litigation consolidation, In Re National Security Agency Telecommunications Records Litigation, NS-CA-11
, in this Clearinghouse. For information about what happened while this case was a part of that multi-district consolidated matter, see NS-CA-0004
After dismissals of almost all of the cases in the MDL, this case was one of only two cases remaining. The other case was Shubert v. Obama, see NS-CA-0006
, in this Clearinghouse. But in January 21, 2010, Judge Walker dismissed this case, along with Shubert v. Obama, because the plaintiffs failed to establish their standing to bring suit -- that is, they failed to establish that they were personally affected by the alleged violation of law. Jewel v. National Sec Agency, 2010 WL 235075 (N.D. Cal. Jan. 21, 2010). The plaintiffs appealed.
On December 29, 2011, the Ninth Circuit vacated Judge Walker's dismissal decision. Again writing for the Ninth Circuit, Judge McKeown held that the plaintiffs did
have standing, and remanded "with instructions to consider, among other claims and defenses, whether the government's assertion that the state secrets privilege bars this litigation." Jewel v. NSA, 673 F.3d 902 (9th Cir. 2011).
In 2012, Judge Walker retired; the matter was reassigned to District Judge Jeffrey S. White on May 18, 2012. Upon remand, the plaintiffs filed their motion for partial summary adjudication requesting that the district court dismiss the defendants' state secret defense. The U.S. cross-moved to dismiss on the basis of sovereign immunity for the statutory claims and for summary judgment on the assertion of the state secrets privilege.
On July 23, 2013, Judge White granted plaintiffs' motion for partial summary adjudication, rejecting the government's state secrets defense. However, Judge White also granted the government's motion to dismiss the plaintiffs' claims for damages under FISA and all statutory claims for injunctive relief on the basis of sovereign immunity. Judge White reserved ruling on the government's motions for summary judgment on remaining non-statutory claims (counts 1-4 of the Jewel Complaint and the fourth cause of action in the Shubert Complaint). Jewel v. Nat'l Sec. Agency, 965 F. Supp. 2d 1090 (N.D. Cal. 2013).
On July 24, 2013, Judge White granted a motion to relate this case with First Unitarian Church of Los Angeles v. NSA, NS-CA-0003
, in this Clearinghouse.
Under the "minimization" rules applicable to Section 215 metadata program, the NSA has been required to destroy all metadata within five years of collection. See, e.g., In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], BR 14-01, NS-DC-0051
. In this case, the plaintiffs argued that this data destruction would interfere with their ability to establish the facts needed for their lawsuit. Accordingly, on their request, Judge White entered a temporary restraining order on March 10, 2014, requiring the preservation of relevant evidence pending the parties' further briefing and the Court's final determination of the preservation issues. In its restraining order, the Court required that the government refrain from "destroying any potential evidence relevant to the claims at issue in this action, including but not limited to prohibiting the destruction of any telephone metadata or 'call detail' records, pending further order of the Court." This order applied to this case; Shubert v. Obama; and First Unitarian Church of Los Angeles v. NSA.
This temporary restraining order directly conflicted with the standing Foreign Intelligence Surveillance Court order in In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], BR 14-01 (NS-DC-0051
in this Clearinghouse). To eliminate the conflict, the FISC responded to Judge White's order by granting temporary relief from the five-year destruction requirement but required that telephony metadata being preserved beyond the five-year limitation not be used by the NSA for any purpose.
In the summer of 2014, Plaintiffs moved for partial summary judgment on their Fourth Amendment Claim, and the defendants responded by also moving for partial summary judgment on the Fourth Amendment Claim.
On February 10, 2015, Judge White denied
the plaintiffs' motion for partial summary judgment and granted the defendants' motion for partial summary judgment. Judge White held that the plaintiffs failed to establish a sufficient factual basis to find that they had standing to sue under the Fourth Amendment regarding the possible interception of their Internet communications. Further, even if the plaintiffs could establish standing, the Claim must be dismissed because any possible defenses would require impermissible disclosure of state secret information. Jewel v. Nat'l Sec. Agency, No. C 07-00693 JSW, 2015 WL 545925 (N.D. Cal. Feb. 10, 2015).
As of February 17, the case is ongoing.Michael Mirdamadi - 11/19/2013
Jessica Kincaid - 02/17/2015