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)

1 assistance for surveillance that follows those procedures. S. Rep. No. 604(I), at 49050, 62 (1977), 2 1978 U.S.C.C.A.N. 3904, at 3951, 3963. 3 Here, the government has admitted that the Program's surveillance has been conducted

4 without court orders, and has continued for several years. RJN at ¶¶3, 6. Furthermore, no 5 certification allowed by statute could authorize the wholesale, long-term interception of customer 6 communications seen here.23 Title III and FISA allow warrantless surveillance in only the most 7 limited circumstances, and even under those limited circumstances, a court order is usually required 8 eventually, typically in a matter of hours. 9 Specifically, there are only four situations where the statutes allow for warrantless

10 wiretapping, none of which apply here: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
23 AT&T can only disclose the existence of any purported certification in response to legal 27 process, see 18 U.S.C. 2511(2)(a)(ii), and plaintiffs intend to seek early discovery on this issue.

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50 U.S.C. §1805(f) of FISA provides that the Attorney General may in emergency situations authorize electronic surveillance, but only if a FISA judge is informed at the time of the Attorney General's authorization, and only if an application for a FISA warrant is made to a FISA judge "as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance." Id. The surveillance must end after 72 hours, unless a FISA warrant is obtained. Id. Yet, by the government's own admission, FISA warrants are not being sought for Program surveillance, and the government has not utilized this emergency provision in FISA. RJN at ¶¶5-6.

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18 U.S.C. §2518(7) of Title III similarly allows emergency surveillance without a warrant in the law enforcement context, but only if an application is made for a court order within 48 hours; the surveillance must terminate without one. Id. Again, the Program's surveillance is done without warrants, and for much longer than 48 hours.

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50 U.S.C. §1802 authorizes the Attorney General to approve warrantless surveillance for up to one year, but only if the electronic surveillance "is solely directed at . . . the

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 - 20 -

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acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers," or "the acquisition of technical intelligence . . . from property or premises under the open and exclusive control of a foreign power," where "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party. . . ." Id. This authority cannot be used to conduct surveillance on AT&T's network, which carries the communications of U.S. persons and is not exclusively used, nor under the exclusive control, of any foreign power. See H.R. Conf. Rep. 95-1720, at 25, 1978 U.S.C.C.A.N. 4048, at 4054 ("The Conferees do not intend . . . to authorize the Attorney General to direct electronic surveillance against a line or channel of communication substantially likely to carry conversations or messages of U.S. persons."). Finally, 50 U.S.C. §1811 of FISA authorizes warrantless electronic surveillance in the fifteen days following a declaration of war by Congress. War has not been declared, yet the Program has been ongoing since 2001, RJN at ¶3, and AT&T's mass surveillance via the Surveillance Configuration has been ongoing since at least 2003. Klein Decl., ¶31. As the nation's oldest and largest telecommunications carrier, AT&T cannot credibly plead

19 ignorance regarding the clear requirements of Title III and FISA, including the inapplicability of 20 their warrantless surveillance procedures. As a result, AT&T cannot reasonably and in good faith 21 rely on a certification for conducting this surveillance when such certification is plainly false and 22 unlawful. See Jacobson, 592 F.2d at 522 (The defense in 18 U.S.C. §2520 for good-faith reliance on 23 legal demands such as court orders and certifications may be invoked by a defendant "only if he can 24 demonstrate (1) that he had a subjective good faith belief that he acted legally . . . and (2) that this 25 belief was reasonable."). 26 Even if AT&T asserts that it is reasonably relying on an invalid certification, a preliminary

27 injunction is proper to prevent ongoing harm to AT&T's customers while the lawfulness and 28 reasonableness of AT&T's reliance is fully litigated. In this circuit, "all wire tapping by the 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 - 21 -