On May 17, 2006, American citizens who use the telephone and internet filed a class action lawsuit on behalf of themselves and others similarly situated in the United States District Court for the Eastern District of New York. The plaintiffs sued the President of the United States of America, the National Security Agency and the Attorney General under the Declaratory Judgment Act and bivens. Represented by private counsel, they sought declaratory, injunctive, and monetary relief, claiming that the defendant's electronic surveillance program violated the Foreign Intelligence Surveillance Act ("FISA"), the Wiretap Act, the Stored Communications Act, and the Fourth Amendment. Specifically, the plaintiffs alleged the government had engaged in a massive, indiscriminate, illegal dragnet of the phone calls and email of tens of millions of ordinary Americans since the September 11 terrorist attacks. Allegedly, the core component of the defendant's surveillance program was a nationwide network of sophisticated communication surveillance devices attached to the key facilities of various telecommunication companies carrying Americans' Internet and telephone communications.

On February 2, 2007, this case was transferred to the United States District Court for the Northern District of California. The Multi District Litigation (MDL) Panel then consolidated the case as part of a multi-district litigation, 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. After dismissals of almost all of the cases in the MDL, this case was one of only two cases remaining. The other case was Jewel v. NSA, see NS-CA-0002, in this Clearinghouse.

On January 21, 2010, Judge Walker dismissed this case and Jewel v. NSA, holding the plaintiffs lacked standing. 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 that judgment. Writing for the Ninth Circuit, Judge McKeown held that the plaintiffs did have standing and remanded the case back to district court "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).

Upon remand, the plaintiffs moved for partial summary adjudication, requesting that the district court dismiss the defendants' state secret defense. The defendants 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 May 8, 2012, the plaintiffs filed a second amended class action complaint and demand for a jury trial against government defendants. Earlier in 2012, Judge Walker had retired, so the matter was reassigned to District Judge Jeffrey S. White on September 17, 2012.

On July 23, 2013, Judge White granted the plaintiffs' motion for partial summary adjudication, rejecting the defendants' state secrets defense. However, the Judge White also granted the defendants' 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 Defendants' 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 March 10, 2014, Judge White entered a temporary restraining order 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, as well as Jewel v. NSA and First Unitarian Church of Los Angeles v. NSA, NS-CA-0003, in this Clearinghouse.

This temporary restraining order directly conflicted with an order to destroy all metadata within five years of collection issued by the Foreign Intelligence Surveillance Court 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. As a result, the FISC granted 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.

On February 10, 2015, the Court denied the plaintiffs' motion for partial summary judgment and granted the defendants' motion for partial summary judgment with regard to Plaintiffs' claim that interception of their internet communications was a violation of their rights under the Fourth Amendment. The Court found that the plaintiffs did not establish a sufficient factual basis to sue under the Fourth Amendment, and even if plaintiffs did establish sufficient facts, the claim would be dismissed because any defense would impermissibly disclose state secret information. 2015 WL 545925.

On May 20, 2015, the Court ordered final judgment in favor on the defendants based on the February 10, 2015 order.

The docket was last updated on March 5, 2018. The Court granted a Stipulated Protective Order with regard to Plaintiffs' personal information. Within 60 days of the final disposition of the action, the Defendants were required to return or destroy all protected material.

Michael Mirdamadi - 11/18/2013
Jessica Kincaid - 07/07/2014
Cade Boland - 03/19/2018


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