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 Amendment safeguards." (footnote omitted)). "[T]he Fourth Amendment protects people, not 2 places." Katz, 389 U.S. at 351. 3 Because Title III provides statutory protection for privacy of electronic communications, few

4 courts have had occasion to apply Fourth Amendment standards to Internet transmissions like e5 mail. In United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996), however, the Court of Appeals for 6 the Armed Forces found that "the transmitter of an e-mail message enjoys a reasonable expectation 7 that police officials will not intercept the transmission without probable cause and a search warrant." 8 Id. at 418. While the sender bears the risk that "an employee of the company will read e-mail 9 against company policy . . . this is not the same as the police commanding an individual to intercept 10 the message." Id. 11 Importantly, Katz did not frame the protections of the Fourth Amendment strictly in terms of

12 privacy, but also in terms of speech. It recognized that "one is surely entitled to assume that the 13 words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution 14 more narrowly is to ignore the vital role that the public telephone has come to play in private 15 communication." Katz, 389 U.S. at 352; cf. Stanford v. Texas, 379 U.S. 476, 485 (1965) (Fourth 16 Amendment requirements apply with "most scrupulous exactitude" when speech at issue); Ex parte 17 Jackson, 96 U.S. 727, 733 (1878) (Fourth Amendment protects letters from search and bars 18 government from conditioning use of postal service on assent to search). 19 Today, millions of people send and receive e-mail with their friends and loved ones and use

20 the Internet to manage their private financial transactions and learn about political, religious, cultural 21 and health issues. Plaintiffs are AT&T customers who use its electronic communications services to 22 take advantage of this global marketplace of ideas ­ to read and learn, and to speak to and associate 23 with others. For example, plaintiff Jewel uses defendants' services to send and receive private 24 correspondence about personal matters, including banking, medical, and family matters. Jewel 25 Decl., ¶5. She also uses her AT&T WorldNet service to correspond with individuals in foreign 26 countries, including England, Germany, and Indonesia. Id., ¶4. She reasonably expected and 27 expects these communications to be private. Id., ¶7. She and the AT&T WorldNet customers she 28 represents are surely entitled to assume that the words they type on a computer keyboard and send 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 - 24 -

1 over the Internet will only be read by their correspondents, not broadcast to the world or delivered to 2 government agents, just as they expect privacy in the words they speak into a telephone mouthpiece. 3 To read the Constitution to exclude these communications from Fourth Amendment protections is to 4 deny the vital role that the Internet plays in private communication today. 5 6 AT&T's participation in the Program clearly violates plaintiffs' reasonable expectation of 7 privacy in their communications. As an agent of the government, AT&T's wholesale copying of vast 8 amounts of communications carried by its WorldNet Internet service through the Surveillance 9 Configuration is itself a search and seizure of those communications subject to the Fourth 10 Amendment's strictures. Berger, 388 U.S. at 51 (holding that "`conversation' [i]s within the Fourth 11 Amendment's protections, and . . . the use of electronic devices to capture it [i]s a `search' within the 12 meaning of the Amendment"); id. at 59 (unconstitutional state eavesdropping statute authorized 13 "roving commission to `seize' any and all conversations"). 14 It should also be clear that the Program, putatively grounded in the government's zeal to 15 protect national security, places speech in great jeopardy. "The Bill of Rights was fashioned against 16 the background of knowledge that unrestricted power of search and seizure could also be an 17 instrument for stifling liberty of expression. For the serious hazard of suppression of innocent 18 expression inhered in the discretion confided in the officers authorized to exercise the power." 19 Marcus, 367 U.S. at 729. 20 Thus, the Fourth Amendment harm here includes not only the actual search and seizure of 21 22 23 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 - 25 communications, but also the chilling effect on speech from plaintiffs ' fear of unauthorized surveillance. " It is characteristic of the freedoms of expression in general that they are vulnerable to gravely damaging yet barely visible encroachments. " Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66 (1963). The danger of unauthorized official surveillance parallels the danger of official censorship, which lies " not merely in the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence. " Thornhill v. Alabama, 310 U. S. 88, 97 (1940). c. Plaintiffs Are Harmed by Defendants' Participation in the Program

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For example, plaintiff Jewel is currently deterred in her use of defendants ' services precisely

2 because of this fear. Until the Program was revealed, she expected that her use of defendants' 3 services was private and that her communications would not be revealed to the government absent 4 appropriate legal process. Jewel Decl., ¶7. Now, she is wary of how she uses the Internet. As an 5 author, she researches subjects she intends to write about, but she now will not use the Internet to 6 research weapons, arms, and military and paramilitary operations for action novels and futuristic 7 romance novels. Id., ¶8. Recently, after receiving e-mail from a Muslim correspondent in Indonesia, 8 she chose not to respond openly to religious questions about Islam or political questions about U.S. 9 foreign policy. Id., ¶8. Her self-censorship is a perfect example of how "fear of unauthorized official 10 eavesdropping " may " deter vigorous citizen dissent and discussion of Government action in private 11 conversation. " Keith, 407 U.S. at 314. 12 13 The Fourth Amendment was specifically adopted to prohibit invasions of privacy by 14 indiscriminate, suspicionless searches of the kind that the English Crown had practiced through its 15 infamous use of "general warrants" and "writs of assistance." 16 indiscriminate searches and seizures conducted under the authority of `general warrants' were the 17 immediate evils that motivated the framing and adoption of the Fourth Amendment." Payton v. New 18 York, 445 U.S. 573, 583 (1980). "These warrants . . . often gave the most general discretionary 19 authority." Marcus, 367 U.S. at 726. "An even broader form of general warrant was the writ of 20 assistance, which met such vigorous opposition in the American Colonies prior to the Revolution." 21 Id. at 729 n.22. 22 "The central objectionable feature of both warrants was that they provided no judicial check 23 on the determination of the executing officials that the evidence available justified an intrusion into 24 any particular home." Steagald v. United States, 451 U.S. 204, 220 (1981). "Moreover, in addition 25 to authorizing search without limit of place, they had no fixed duration. In effect, complete 26 discretion was given to the executing officials; in the words of James Otis, their use placed `the 27 liberty of every man in the hands of every petty officer.'" Marcus, 367 U.S. at 729 n.22. 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 - 26 "It is familiar history that d. The Fourth Amendment Prohibits Dragnet, Suspicionless Searches of the Type Present Here

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The Supreme Court has recognized that "[i]t was in the context of . . . general warrants that

2 the battle for individual liberty and privacy was finally won ­ in the landmark cases of Wilkes v. 3 Wood and Entick v. Carrington." Stanford, 379 U.S. at 483. In Entick: 4 5 6 7 [Lord] Camden expressly dismissed the contention that such a warrant could be justified on the grounds that it was "necessary for the ends of government to lodge such a power with a state officer. . . ." He declared that these warrants . . . amounted to a "discretionary power given to [Crown officers] to search wherever their suspicions may chance to fall. If such a power is truly invested in a secretary of state, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject."

8 Marcus, 367 U.S. at 728-29. 9 On these foundations, the Fourth Amendment erected an absolute prohibition to general

10 searches of the private writings and communications of an individual. Thus, it is long and well 11 settled that the Fourth Amendment absolutely prohibits indiscriminate, general searches: 12 13 14 15 General warrants, of course, are prohibited by the Fourth Amendment. "[T]he problem [posed by the general warrant] is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings. . . . [The Fourth Amendment addresses the problem] by requiring a "`particular description' of the things to be seized." This requirement "`makes general searches . . . impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.'"

16 Andresen v. Maryland, 427 U.S. 463, 482 (1976) (citations omitted) (alterations in original). The 17 surveillance described here, an automated "rummaging" through the millions of private 18 communications passing over AT&T's fiber optic network at the discretion of NSA staff, is wholly 19 inconsistent with the Fourth Amendment's clear prohibitions. 20 21 The Fourth Amendment's "basic purpose . . . is to safeguard the privacy and security of 22 individuals against arbitrary invasions by governmental officials." Camara v. Municipal Court, 387 23 U.S. 523, 528 (1967). The crucial Fourth Amendment protection against such arbitrariness is prior 24 judicial authorization, based on probable cause, and specifying the scope of the search with 25 particularity. In Katz, the Supreme Court explained that "bypassing a neutral determination of the 26 scope of a search leaves individuals secure from Fourth Amendment violations only in the discretion 27 of the police." Katz, 389 U.S. at 358-59 (internal quotation and citation omitted); Keith, 407 U.S. at 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 - 27 e. The Program's Sweeping Dragnet Surveillance Cannot Be Reconciled with the Fourth Amendment

1 318 ("post-surveillance review would never reach the surveillances which failed to result in 2 prosecutions. Prior review by a neutral and detached magistrate is the time-tested means of 3 effectuating Fourth Amendment rights") (citation omitted). 4 Accordingly, the government's admission that no judicial authorization has been or will be

5 sought for surveillance under the Program, RJN, ¶¶5-7, is sufficient to render AT&T's assistance in 6 searching and seizing plaintiffs' communications unconstitutional. 7 In addition to lacking prior judicial authorization, the sweeping, dragnet surveillance at issue

8 here is wholly bereft of the particularity and reliability required by the Fourth Amendment. In 9 Berger, the Supreme Court condemned the state eavesdropping statute at issue, even though it 10 required prior judicial approval, precisely because it authorized "indiscriminate use of electronic 11 devices" and "actually permits general searches by electronic devices." 388 U.S. at 58. "The need 12 for particularity and evidence of reliability in the showing required when judicial authorization of a 13 search is sought is especially great in the case of eavesdropping," which "[b]y its very nature . . . 14 involves an intrusion on privacy that is broad in scope." Id. at 56, 57 (heightened scrutiny triggered 15 when surveillance is undertaken as "a series or a continuous surveillance" rather than as "one limited 16 intrusion."). 17 Here, the dragnet of the Surveillance Configuration captures countless communications

18 without a sliver of particularity, much less evidence of reliability. When communications are 19 captured wholesale in order to sift out possibly suspicious communications, the search is not 20 particularized with respect to any person or communication surveilled and no showing of reliability 21 has been or can be made. 22 The surveillance of plaintiffs' communications here is the kind of indiscriminate,

23 suspicionless search condemned throughout the history of the Fourth Amendment. But it is also far 24 worse. General searches in the physical world are visible; the general searches under the Program 25 are invisible to the public and the judiciary. General searches aimed at uncovering crime will 26 ultimately be brought to trial, where defendants can challenge the admissibility of evidence; the 27 general searches under the Program are aimed at further covert surveillance that may never see the 28 light of day, much less a courtroom. We only know about warrantless surveillance when 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 - 28 -

1 government decides to tell us about it, and only as much as it decides to tell us. All of the problems 2 of unaccountable arbitrariness posed by general searches in the physical world are magnified with 3 electronic surveillance of the kind that is occurring here. 4 5 C. The Balance of Hardships Tilts Sharply in Favor of Plaintiffs

The balance of hardships tilts decidedly toward the plaintiffs here because plaintiffs face

6 irreparable harm to their constitutional and statutory privacy rights from ongoing dragnet 7 surveillance, and AT&T faces no harm from restoring privacy to its customers. This determination 8 reduces the showing that plaintiffs must make on the merits in order to obtain a preliminary 9 injunction, meaning that plaintiffs need only demonstrate that "serious questions" exist, a test easily 10 met here. "The critical element in determining the test to be applied is the relative hardship to the 11 parties. If the balance of harm tips decidedly toward the plaintiff, then the plaintiff need not show as 12 robust a likelihood of success on the merits as when the balance tips less decidedly." Benda v. 13 Grand Lodge of the Int'l Ass'n of Machinists, 584 F.2d 308, 315 (9th Cir. 1978), cert. denied, 441 14 U.S. 937 (1979). 15 16 17 AT&T, acting on behalf of the government, has intercepted plaintiffs' private 18 communications and searched or enabled the government to search their contents, with neither 19 judicial oversight nor prior judicial scrutiny. As demonstrated above, AT&T's warrantless 20 interceptions of private communications on behalf of the government violate the Fourth Amendment. 21 Indeed, the very purpose of the Fourth Amendment is to prevent unreasonable governmental 22 intrusions into one's privacy. The harm to the individual's privacy "is fully accomplished by the 23 original search without probable cause." United States v. Calandra, 414 U.S. 338, 354 (1974). The 24 Fourth Amendment harm of unreasonably intercepting conversations, particularly in the interest of 25 national security, comes at the price of "a dread of subjection to an unchecked surveillance power." 26 Keith, 407 U.S. at 313-14. 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 - 29 1. The Plaintiffs Face Irreparable Harm a. Plaintiffs Face Irreparable Harm to Their Constitutional Rights

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The Ninth Circuit has repeatedly held that where a constitutional violation is part of a

2 "pattern or policy," the irreparable harm prong of the injunctive relief analysis has been satisfied. 3 Gomez v. Vernon, 255 F.3d 1228, 1129-30 (9th Cir. 2001) (injunctive relief necessary in light of past 4 pattern of unconstitutional retaliation); Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 5 1500-1501 (9th Cir. 1996) (government misconduct that "flowed from a policy or plan" justified 6 injunctive relief); Int'l Molders' and Allied Workers' Local Union No. 164 v. Nelson, 799 F.2d 547, 7 551 (9th Cir. 1986) (injunctive relief proper where district court found an "evident systematic policy 8 and practice of fourth amendment violations"); Conner v. City of Santa Ana, 897 F.2d 1487, 1493-94 9 (9th Cir. 1990) (government's prior warrantless entry into private yard justified injunctive relief). 10 Here, the government has repeatedly stated that it will continue its surveillance program

11 unchanged. RJN, ¶3. A governmental policy or plan that violates the Fourth Amendment and that 12 the government has declared it intends to continue makes substantial and immediate irreparable 13 injury not just a likelihood, but a certainty. As the government's agent in carrying out this policy, 14 AT&T must be enjoined from assisting in its implementation. 15 16 Irreparable harm is presumed for violation of statutes, like Title III, that provide for 17 injunctions. Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 827 (9th Cir. 18 2001); Smallwood v. Nat'l Can Co., 583 F.2d 419, 420 (9th Cir. 1978) (for Title VII claim, holding 19 that where an "injunction [is] issued in response to a statutory provision . . . irreparable harm is 20 presumed from the fact of the violation of the Act"); Burlington N. R.R. Co. v. Dep't of Revenue, 934 21 F.2d 1064, 1074 (9th Cir. 1991) ("When the evidence shows that the defendants are engaged in, or 22 about to be engaged in, the act or practices prohibited by a statute which provides for injunctive 23 relief to prevent such violations, irreparable harm to the plaintiffs need not be shown."). 24 Pursuant to Title III, this Court is specifically authorized to provide "such preliminary and 25 other equitable or declaratory relief as may be appropriate." 18 U.S.C. §2520. Injunctive relief is 26 necessary because "invasion of privacy, like injury to reputation, inflicts damage which is both 27 difficult to quantify and impossible to compensate fully with money damages." Williams v. Poulos, 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 - 30 b. Irreparable Harm Is Presumed Because AT&T Is Violating Title III

1 801 F. Supp. 867, 874 (D. Me. 1992). Accordingly, irreparable injury is presumed upon plaintiffs' 2 showing, set forth above, that AT&T has violated Title III. 3 4 2. AT&T Faces No Harm from a Preliminary Injunction

As discussed above, the plaintiffs face significant and irreparable harm from the continuation

5 of the warrantless eavesdropping program. At the same time, there is little if any hardship to AT&T 6 from an injunction requiring it to stop its illegal diversion of Internet traffic to the NSA. Such an 7 injunction would not cause it to incur any direct expenses, nor would it prevent AT&T from 8 providing any services to its customers. "Enforced inaction" generally does not create a threat of 9 harm to be considered in the preliminary injunction context. Kootenai Tribe of Idaho v. Veneman, 10 313 F.3d 1094, 1125 (9th Cir. 2002) (finding that enforced inaction would not threaten harm to the 11 plaintiffs seeking the injunction). Accordingly, the balance of harm tilts sharply toward plaintiffs. 12 13 D. A Preliminary Injunction Serves the Public's Interest

"[A]lthough Title III authorizes invasions of individual privacy under certain circumstances,

14 the protection of privacy was an overriding congressional concern." Gelbard v. United States, 408 15 U.S. 41, 48 (1972); see also Williams, 801 F. Supp. at 874 ("There is [a] strong public interest in 16 protecting the privacy and security of communications in a society so heavily dependent on 17 information."). As the Supreme Court noted: 18 19 20 21 22 23 Gelbard v. United States, 408 U.S. at 48 (quoting S. Rep. No. 90-1097, at 66 (1968)). Accordingly, 24 the public interest is best served by an injunction prohibiting AT&T's cooperation in any 25 wiretapping and electronic surveillance without the authorization of a court order obtained after a 26 showing and finding of probable cause. 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 - 31 The Senate committee report that accompanied Title III underscores the congressional policy: "Title III has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized. To assure the privacy of oral and wire communications, Title III prohibits all wiretapping and electronic surveillance by persons other than duly authorized law enforcement officers engaged in the investigation or prevention of specified types of serious crimes, and only after authorization of a court order obtained after a showing and finding of probable cause."

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To be clear, plaintiffs do not seek the cessation of AT&T's assistance with lawful

2 surveillance conducted pursuant to the proper statutory requirements and judicial authorization. 3 Rather, the injunctive relief sought would simply forbid the massive divulgence of the 4 communications of millions of AT&T customers to the government, while allowing that appropriate 5 targeted domestic eavesdropping be conducted with appropriate judicial oversight, in accordance 6 with constitutional and statutory requirements. 7 The government has stated that its domestic eavesdropping program serves the interest of

8 national security. See, e.g., RJN, Attachment 1. It has long been recognized that, in national 9 security cases, "the investigative duty of the executive may be stronger," but also that such cases 10 involve "greater jeopardy to constitutionally protected speech." Keith, 407 U.S. at 313. The warrant 11 requirements of the Fourth Amendment, and the specific provisions for warrants under FISA and 12 Title III, provide a balance between the investigative duties of the executive and the need to protect 13 the liberties of the public. As the Supreme Court has noted, "[t]he historical judgment, which the 14 Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to 15 pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected 16 speech." Keith, 407 U.S. at 317. 17 Where the government has probable cause to believe that the target of surveillance is an

18 agent of a foreign power, AT&T can insist upon a warrant from the FISA court, and the government 19 can provide it. The interest in national security may thus be served, without unnecessarily 20 jeopardizing privacy or protected speech. 21 Accordingly, the proposed injunctive relief serves the public interests which led to Title III

22 and FISA, as well as assuring the pubic that the courts will preserve and defend their constitutionally 23 guaranteed freedoms of speech and association, and their right to be free from unreasonable searches 24 and seizures. At the same time, our national security interests are preserved by the availability of 25 legal surveillance under FISA and Title III. 26 IV. 27 AMOUNT OF BOND Whether to require an injunction bond before issuing a preliminary injunction is within the

28 sound discretion of this Court. Fed. R. Civ. Proc. 65(c); Barahona-Gomez v. Reno, 167 F.3d 1228, 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 - 32 -

1 1237 (9th Cir. 1999). As discussed above, the balance of hardships is overwhelmingly in favor of 2 plaintiffs, who are facing harm to the fundamental rights guaranteed by the Constitution, while 3 AT&T faces neither harm from stopping compliance with the illegal program, nor risk of monetary 4 loss. Accordingly, a bond is unnecessary because there is "no realistic likelihood of harm to the 5 defendant from enjoining his or her conduct." Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 6 2003). 7 V. 8 CONCLUSION For the reasons stated above, plaintiffs respectfully request that this Court grant their motion

9 for a preliminary injunction. 10 DATED: April 5, 2006 11 12 13 14 15 16 17 18 19 20 21 22 23 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 - 33 454 Shotwell Street San Francisco, CA 94110 Telephone: [phone] (fax) TRABER & VOORHEES BERT VOORHEES THERESA M. TRABER 128 North Fair Oaks Avenue, Suite 204 Pasadena, CA 91103 Telephone: [phone] (fax) /s/ CINDY COHN CINDY COHN ELECTRONIC FRONTIER FOUNDATION CINDY COHN LEE TIEN KURT OPSAHL KEVIN S. BANKSTON CORYNNE MCSHERRY JAMES S. TYRE

1 2 3 4 5 6 7 8 9 10 11 12 13 14 Attorneys for Plaintiffs 15 16 17 18 19 20 21 22 23 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 - 34 LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP REED R. KATHREIN JEFF D. FRIEDMAN SHANA E. SCARLETT MARIA V. MORRIS 100 Pine Street, Suite 2600 San Francisco, CA 94111 Telephone: [phone] (fax) LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP ERIC ALAN ISAACSON 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: [phone] (fax) LAW OFFICE OF RICHARD R. WIEBE RICHARD R. WIEBE 425 California Street, Suite 2025 San Francisco, CA 94104 Telephone: [phone] (fax)

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DECLARATION OF SERVICE BY HAND-DELIVERY I, the undersigned, declare: 1. That declarant is and was, at all times herein mentioned, a resident of the United

4 States and employed in the City and County of San Francisco, over the age of 18 years, and not a 5 party to or interested party in the within action; that declarant's business address is 100 Pine Street, 6 Suite 2600, San Francisco, California 94111. 7 2. That on April 5, 2006, declarant served by Hand-Delivery the PLAINTIFFS'

8 AMENDED NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION; 9 PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 10 FOR PRELIMINARY INJUNCTION to the parties listed on the attached Service List. 11 I declare under penalty of perjury that the foregoing is true and correct. Executed this 5th

12 day of April, 2006, at San Francisco, California. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MARZENA PONIATOWSKA