Hepting et al v. AT&T Corp. et al

Filing 149

MEMORANDUM in Support Motion for Preliminary Injunction; Plaintiffs' Amended Notice of Motion and Motion for Preliminary Injunction [REDACTED] filed byGregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Attachments: # 1 Supplement Document Part 2# 2 Supplement Document Part 3# 3 Supplement Document Part 4)(Tien, Tze) (Filed on 5/25/2006)

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Where the balance of hardships tips sharply in the movant's favor, there need not be a

2 probability of success, but only a "serious question" as to which the movant has "fair chance of 3 success on the merits." Nat'l Wildlife Fed'n v. Coston, 773 F.2d 1513, 1517 (9th Cir. 1985). 4 "Serious questions are `substantial, difficult and doubtful, as to make them a fair ground for 5 litigation and thus for more deliberative investigation.'" Republic of the Philippines, 862 F.2d at 6 1362 (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953)). 7 Plaintiffs amply meet the standard for preliminary injunctive relief. The balance of harms

8 tilts sharply in favor of plaintiffs, because AT&T will face no harm if it is merely prohibited from 9 continuing to provide wholesale its customers' communications to the government, while plaintiffs 10 will continue to suffer irreparable injury to their constitutional and statutory privacy rights if AT&T 11 is permitted to continue to do so in violation of federal statutes and the Constitution. Plaintiffs are 12 likely to prove the necessary facts that confirm AT&T's role in the Program, and are likely to 13 succeed on the merits ­ and certainly raise "serious questions" ­ as to their legal claims. Further, it 14 is strongly in the public interest to enforce the requirements of the wiretapping statutes and the 15 Constitution, and stop AT&T from assisting with a massive government fishing expedition into the 16 communications of millions of ordinary Americans. 17 18 The facts above, at the very least, raise a serious question as to whether AT&T, by assisting 19 the NSA in its domestic surveillance program, has violated the federal wiretapping statute and 20 assisted in the violation of plaintiffs' Fourth Amendment rights. Considering that the balance of 21 hardships tips strongly in plaintiffs' favor ­ AT&T would lose nothing by cutting off the NSA's 22 direct access to the communications on its network, while plaintiffs face an ongoing and irreparable 23 injury to their constitutional and statutory privacy rights ­a serious question is all plaintiffs must 24 show in order to obtain preliminary relief. 25 However, more than raising a serious question, the facts demonstrate a likelihood of success 26 on the merits of their two claims: first, that by conducting the surveillance described above, AT&T is 27 "intercepting" plaintiffs' communications, and using and disclosing them, in violation of 18 U.S.C. 28 PLTFS' AMENDED NOT OF MOT AND MOT FOR PRELIM INJUN; PLTFS' MEM OF P & IN SUPPORT OF MOT FOR PRELIM INJUN - C-06-00672-VRW - 11 B. Plaintiffs Raise Serious Questions and Have a Reasonable Likelihood of Success on the Merits

1 §2511; second, that AT&T is acting as an agent of the government, and is seizing and searching 2 plaintiffs' communications for the government in violation of the Fourth Amendment. In the face of 3 such irreparable injury, plaintiffs, who represent millions of ordinary Americans, are entitled to 4 injunctive relief until the legality of AT&T's actions can be finally adjudicated. 5 6 In 1967, the Supreme Court first held that electronic eavesdropping on private 7 communications by the government was a search and seizure subject to the Fourth Amendment. 8 Berger, 388 U.S. at 51-60; Katz v. United States, 389 U.S. 347, 352-53 (1967). In Katz, the Court 9 held that prior judicial review was required because the "far less reliable procedure of an after-the10 event justification" is "too likely to be subtly influenced by the familiar shortcomings of hindsight 11 judgment," and "will leave individuals secure from Fourth Amendment violations only in the 12 discretion of the police." Id. at 358-59 (citation and quotation omitted). 13 In response to Berger and Katz, Congress enacted Title III, Pub. L. No. 90-351, Tit. III, 14 §§801-04, 82 Stat. 211 (codified as amended at 18 U.S.C. §2510 et seq.). Bartnicki v. Vopper, 532 15 U.S. 514, 523 (2001). Consistent with those decisions, Title III requires law enforcement officers to 16 17 communications in all but emergency situations. 18 U.S.C. §§2511, 2518; see also United States v. 18 Turner, 528 F.2d 143, 158-59 (9th Cir. 1975), cert. denied sub nom., Lewis v. United States, 423 19 U.S. 996 (1975) ("[I]n enacting Title III Congress was aware of the decisions of the Supreme Court 20 in this area and had complied with the standards there set forth."). 21 However, as Congress' broad intent was to "effectively protect the privacy of . . . 22 communications," Title III is not limited to regulating government surveillance. Bartnicki, 532 U.S. 23 24 25 at 523-24 (citation and quotation omitted). It also generally prohibits any person from intercepting
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1.

The Legal Framework: Wiretapping Under the Fourth Amendment and Under Statute

obtain a search warrant based on probable cause before intercepting wire, oral, or electronic11

Title III was amended to protect electronic communications as well as phone conversations by the Electronic Communications Privacy Act of 1986 ("ECPA"), Pub. L. No. 99-508, 100 Stat 26 1848, codified in pertinent part at 18 U.S.C. §§2510(12), 2511(1)(a), 2510(4); see Bartnicki, 532 U.S. at 524 (through ECPA, Congress "enlarged the coverage of Title III to prohibit the interception 27 of `electronic' as well as oral and wire communications"). 28 PLTFS' AMENDED NOT OF MOT AND MOT FOR PRELIM INJUN; PLTFS' MEM OF P & IN SUPPORT OF MOT FOR PRELIM INJUN - C-06-00672-VRW - 12 -

1 private communications, or using or disclosing intercepted communications. Id.; 18 U.S.C. §2511. 2 Communications providers themselves are subject to this prohibition, except to the extent their 3 conduct is reasonably necessary to providing their service or protecting their rights and property.12 4 18 U.S.C. §2511(2)(a)(i). By so regulating interceptions by providers, Title III ­ like its predecessor 5 wiretapping statute, 18 U.S.C. §605 ­ "recognizes that the integrity of the communications system 6 demands that the public be assured that employees who thus come to know the content of messages 7 will in no way breach the trust which such knowledge imposes on them." Hodge v. Mountain States 8 Telephone and Telegraph Co., 555 F.2d 254, 259 (9th Cir. 1977). 9 Congress soon discovered in the wake of Watergate that communications companies had

10 violated that trust routinely at the NSA's behest. In 1976, a congressional committee headed by 11 Senator Frank Church found that the NSA had engaged in widespread, warrantless domestic 12 electronic surveillance for about thirty years under a program called "Operation Shamrock." See S. 13 Rep. No. 94-755 (Senate Select Committee to Study Governmental Operations with Respect to 14 Intelligence Activities), 94th Cong., 2d Sess., Book II at 5-20 (1976); id., Book III at 735 (1976) 15 (NSA "intercepted and disseminated internal communications of American citizens" for decades 16 without judicial or congressional oversight). The Church Committee discovered that this illegal 17 surveillance was carried out by the three major international telegraph companies of the day ­ RCA 18 Global, ITT World Communications and Western Union International ­ who secretly gave the NSA 19 copies of millions of international telegrams sent to, from, or simply crossing the United States 20 between August 1945 and May 1975. Id. at 740. 21 The need to closely regulate national security surveillance, made evident by the Church

22 Committee's shocking findings, was bolstered by the Supreme Court's earlier decision in United 23 States v. United States Dist. Court, 407 U.S. 297, 322 (1972) ("Keith") (holding that Fourth 24 Amendment's warrant requirement applied even to wiretaps intended to protect domestic national 25
12 This allowance for interceptions by communications providers is limited "to such invasion of 26 the subscriber's privacy as is necessary to protect the telephone company's property." United States v. Goldstein, 532 F.2d 1305, 1311 (9th Cir. 1976) (quoting Bubis v. United States, 384 F.2d 643, 658 27 n.5 (9th Cir. 1967)).

28 PLTFS' AMENDED NOT OF MOT AND MOT FOR PRELIM INJUN; PLTFS' MEM OF P & IN SUPPORT OF MOT FOR PRELIM INJUN - C-06-00672-VRW - 13 -

1 security, and suggesting that Congress establish protective procedures specific to such wiretaps). 2 "Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect 3 that interest becomes apparent, " and the Court thus held that prior judicial approval was required. Id. 4 at 321, 323-24. 5 Responding to Keith, as well as to post-Watergate concerns about the Executive's widespread

6 use of warrantless electronic surveillance as revealed by the Church Committee, Congress enacted the 7 FISA in 1978 to establish a regularized procedure for electronic surveillance in the foreign intelligence 8 and counterintelligence field. See United States v. Belfield, 692 F.2d 141, 145 (D.C. Cir. 1982); Pub. 9 L. 95-511, Title I, 92 Stat. 1796 (codified as amended at 50 U. S.C. §1801 et seq.). FISA requires that 10 foreign-intelligence surveillance of foreign powers and their agents be conducted with prior judicial 11 approval in almost all circumstances, with a only few carefully delimited exceptions, 13 and provides 12 for civil and criminal penalties when such surveillance is conducted under color of law without a 13 court order. 50 U.S.C. §§1809-10. 14 Together, Title III and FISA generally require judicial authorization for communications

15 surveillance inside the United States. See S. Rep. No. 95-604(I) at 6 (1978), 1978 U.S.C.C.A.N. at 16 3908 (FISA meant to " s pell out that the executive cannot engage in electronic surveillance within the 17 United States without a prior Judicial warrant " ). Specifically, FISA's amendments to Title III spelled 18 out ­ to both the Executive and the telecommunications companies that had aided it in the past ­ that the 19 procedures of Title III and FISA "shall be the exclusive means by which electronic surveillance . . . 20 and the interception of domestic wire, oral, and electronic communications may be conducted." 18 21 U.S.C. §2511(2)(f). As shown below, the surveillance being conducted here by AT&T on behalf of 22 the government is inconsistent with those procedures, and with the requirements of the Fourth 23 Amendment. 24 25 26 27 28 PLTFS' AMENDED NOT OF MOT AND MOT FOR PRELIM INJUN; PLTFS' MEM OF P & IN SUPPORT OF MOT FOR PRELIM INJUN - C-06-00672-VRW - 14 13

See discussion at text pp. 19-21.