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

Filing 21

Proposed Order re 20 Request for Judicial Notice, by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. (Kathrein, Reed) (Filed on 3/31/2006)

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

Doc. 21

1 ELECTRONIC FRONTIER FOUNDATION CINDY COHN (145997) 2 [e-mail] LEE TIEN (148216) 3 [e-mail] KURT OPSAHL (191303) 4 [e-mail] KEVIN S. BANKSTON (217026) 5 [e-mail] CORYNNE MCSHERRY (221504) 6 [e-mail] JAMES S. TYRE (083117) 7 [e-mail] 454 Shotwell Street 8 San Francisco, CA 94110 Telephone: [phone] (fax) 10 Attorneys for Plaintiffs 11 [Additional counsel appear on signature page.] 12 13 14

TRABER & VOORHEES BERT VOORHEES (137623) [e-mail] THERESA M. TRABER (116305) [e-mail] 128 North Fair Oaks Avenue, Suite 204 Pasadena, CA 91103 Telephone: [phone] (fax)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA No. C-06-00672-VRW CLASS ACTION [PROPOSED] ORDER REGARDING REQUEST FOR JUDICIAL NOTICE The Hon. Vaughn R. Walker, Chief Judge

15 TASH HEPTING, GREGORY HICKS, ) CAROLYN JEWEL and ERIK KNUTZEN, on ) 16 Behalf of Themselves and All Others Similarly ) Situated, ) 17 ) Plaintiffs, ) 18 ) vs. ) 19 ) AT&T CORP., et al. ) 20 ) Defendants. ) 21 ) 22 23 24 25 26 27 28

Dockets.Justia.com

1

Pursuant to Federal Rule of Evidence 201 and the inherent authority of the Court, and having

2 given full consideration to all of Plaintiffs' papers and the relevant authorities, and all of Defendants' 3 responses thereto, and good cause appearing, in accordance with Federal Rule of Evidence 201, it is 4 HEREBY ORDERED as follows: 5 1. The Court takes judicial notice of certain admissions made by the President of the

6 United States and representatives of the President's Administration about the National Security 7 Agency ("NSA")'s surveillance program, as more particularly described below: 8 (a) In the fall of 2001 the President authorized the NSA to launch a secret

9 electronic surveillance program (the "Program"); 10 11 (b) (c) Under the Program, the NSA intercepts electronic communications; The President has reauthorized the Program more than thirty times,

12 approximately every 45 days, based on periodic review and approval of the Program by the Attorney 13 General and other officials. 14 indefinitely; 15 (d) Under the Program, the NSA conducts "electronic surveillance" as defined by The President intends to continue reauthorizing the Program

16 the Foreign Intelligence Surveillance Act of 1978 ("FISA"), 50 U.S.C. §1801 et. seq.; 17 (e) Under the Program, the NSA conducts surveillance that would not satisfy the

18 standards of the FISA statute; 19 (f) Under the Program, the NSA intercepts communications without obtaining a

20 warrant or any other type of judicial authorization; 21 22 FISA; 23 (h) The Administration is not using the 72 hour emergency exception to FISA, 50 (g) The Program has been used "in lieu of" the procedures specified under the

24 U.S.C. §1805(f), to conduct the Program; 25 (i) Under the Program, an NSA "shift supervisor" is authorized to approve

26 interceptions of communications without need for specific approval from the President, the Attorney 27 General or any judicial authority; 28 [PROPOSED] ORDER RE: REQUEST FOR JUDICIAL NOTICE - C-06-00672-VRW -1-

1

(j)

The Program "is a more . . . `aggressive' program than would be traditionally

2 available under FISA," in part because "[t]he trigger is quicker and a bit softer than it is for a FISA 3 warrant"; 4 (k) Under the Program, communications are intercepted without probable cause to

5 believe that the surveillance targets have committed or are about to commit any crime, or are foreign 6 powers or agents thereof. Instead, the NSA claims to intercept communications when the agency 7 has, in its own judgment, a "reasonable basis to conclude that one party to the communication is a 8 member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al 9 Qaeda, or working in support of al Qaeda," as well as the communications of individuals it deems 10 suspicious on the basis of its belief that they have some unspecified "link" to al Qaeda or a related 11 terrorist organization, or "want to kill Americans." Put another way, when the NSA believes there is 12 "[i]nherent foreign intelligence value"; 13 (l) Information collected under the Program is retained and disseminated, even

14 when such information is about an American and gives no indication that the individual is involved 15 in terrorism; and 16 (m) The Administration has not denied that the warrantless surveillance operations

17 may extend beyond the conduct that the President has already publicly acknowledged. 18 2. The Court take judicial notice of the following public documents, copies of which are

19 attached to Plaintiffs' Request for Judicial Notice, which verify the above-listed facts: 20 21 (a) (b) President Bush, Radio Address (Dec. 17, 2005); Press Briefing by Attorney General Alberto Gonzales and General Michael

22 Hayden, Principal Deputy Director for National Intelligence, Dec. 19, 2005; 23 (c) Letter from William E. Moschella, Assistant Attorney General, Office of

24 Legislative Affairs, Department of Justice, to congressional leaders, December 22, 2005; 25 (d) Michael Hayden, Remarks at the National Press Club on NSA Domestic

26 Surveillance (Jan. 23, 2006); 27 28 [PROPOSED] ORDER RE: REQUEST FOR JUDICIAL NOTICE - C-06-00672-VRW -2(e) President Bush, Press Conference (Dec. 19, 2005);

1

(f)

Letter from William E. Moschella, Assistant Attorney General, Office of

2 Legislative Affairs, Department of Justice, to Senator Arlen Specter, March 24, 2006; 3 (g) Wartime Executive Power and the NSA's Surveillance Authority Before the

4 Senate Judiciary Committee, 109th Congress (Feb. 6, 2006); and 5 6 7 8 IT IS SO ORDERED. THE HONORABLE VAUGHN R. WALKER CHIEF UNITED STATES DISTRICT JUDGE (h) Letter from Alberto Gonzales to Senator Arlen Specter (February 28, 2006). * * ORDER *

9 DATED: _________________________ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
T:\CasesSF\AT&T Privacy\ORD00029452.doc

[PROPOSED] ORDER RE: REQUEST FOR JUDICIAL NOTICE - C-06-00672-VRW

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CERTIFICATE OF SERVICE I hereby certify that on March 31, 2006, I electronically filed the foregoing with the Clerk of

3 the Court using the CM/ECF system which will send notification of such filing to the e-mail 4 addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have 5 mailed the foregoing document or paper via FedEx to the non-CM/ECF participants indicated on the 6 attached Manual Notice List. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ REED R. KATHREIN REED R. KATHREIN LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 100 Pine Street, 26th Floor San Francisco, CA 94111 Telephone: [phone] (fax) E-mail: [e-mail]

CAND-ECF

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Mailing Information for a Case 3:06-cv-00672-VRW
Electronic Mail Notice List
The following are those who are currently on the list to receive e-mail notices for this case. Stuart Bankston [e-mail]
Kevin

Ann Cohn [e-mail] [e-mail];[e-mail]
Cindy

A. Ericson [e-mail]
Bruce

D Friedman [e-mail] [e-mail]
Jeff

A. Isaacson [e-mail] [e-mail]
Eric

R. Kathrein [e-mail] [e-mail];[e-mail]
Reed

McSherry [e-mail]
Corynne

V. Morris [e-mail] [e-mail];[e-mail]
Maria

Opsahl [e-mail]
Kurt

Eve Scarlett [e-mail] [e-mail];[e-mail]
Shana

M. Traber, Esq [e-mail]
Theresa

Samuel Tyre [e-mail] [e-mail]
James

Voorhees [e-mail]
Bert

Manual Notice List
The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these recipients.
Lee Tien

https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?814506106457448-L_293_0-1

3/30/2006

CAND-ECF
Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 Lee Tien Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110

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https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?814506106457448-L_293_0-1

3/30/2006