On January 31, 2006, AT&T telephone and internet customers filed a class action lawsuit in the U.S. District Court for the Northern District of California against AT&T Corp. and AT&T Inc. The plaintiffs, represented by public interest and private counsel, asked the court to declare as unlawful the defendants' participation in the federal government's program to monitor and collect Americans' telephone and internet communications and sought an injunction against the defendants' continued or future participation in the program, claiming that the program was operated in violation of federal electronic surveillance and telecommunication statutes, as well as the First and Fourth Amendments to the United States Constitution.
In 2006, the Multi District Litigation (MDL) Panel consolidated the case as the lead case in 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 the case was a part of the consolidation see NS-CA-0004
On May 13, 2006, the United States moved to intervene as a defendant. The motion was unopposed and the District Court (Judge Vaughn R. Walker) granted the motion at a June 23, 2006 hearing. AT&T and the United States separately moved to dismiss the lawsuit. On July 20, 2006, the Court denied both motions to dismiss. Judge Walker ruled that the government could not rely on the state secrets privilege and that a telecom defendant could not assert immunity. The Court, however, certified the case for immediate appeal. Hepting v. AT & T Corp., 439 F. Supp. 2d 974, 1011 (N.D. Cal. 2006).
The defendants' appealed to the Ninth Circuit Court of Appeals. On April 26, 2007, the Ninth Circuit consolidated Al-Haramain v. Bush, No. 06-36083, with this case. However, on November 16, 2007, the Ninth Circuit severed the two cases from each other and ordered that the cases would no longer be consolidated for any purpose. Hepting v. AT & T Corp., 508 F.3d 898, 899 (9th Cir. 2007). Oral argument was heard in August 2007.
Prior to any Ninth Circuit decision, in July 2008, Congress enacted and President George Bush signed, the FISA Amendments Act that granted retroactive immunity to telecommunications companies for past violations of the Foreign Intelligence Surveillance Act ("FISA") provided that the Attorney General of the United States certified to the relevant U.S. District Court that the surveillance did not occur, was legal, or was authorized by the president. The case was returned to the District Court in light of the FISA Amendments Act. Hepting v. AT & T Corp., 539 F.3d 1157 (9th Cir. 2008).
Attorney General Michael Mukasey filed the requisite certification in September 2008 and the United States moved to dismiss all claims against telecommunication company defendants in this lawsuit as well as dozens of other lawsuits that were ordered to be consolidated in the U.S. District Court for the Northern District of California in a multidistrict litigation proceeding.
On June 3, 2009, the District Court (U.S. District Judge Vaughn R. Walker) granted the United States' motion to dismiss based upon the retroactive immunity provision in the the FISA Amendments Act. Judge Walker dismissed the plaintiffs' claims, but without prejudice, saying that the plaintiffs could re-file if there was evidence of improper surveillance that fell outside the telecoms' immunity period found in the FISA amendments, which extended from Sept. 11, 2001 to Jan. 7, 2007. The plaintiffs appealed the dismissal.
On December 29, 2011, the Ninth Circuit Court of Appeals (Judges Harry Pregerson, Michael Daly Hawkins, and M. Margaret McKeown) affirmed the District Court's dismissal. However, Judge McKeown disagreed with the district court's conclusion that the immunity provisions were temporally limited. The Supreme Court declined to hear the case on October 9, 2012.Michael Mirdamadi - 10/25/2013
Jessica Kincaid - 07/01/2014