It is alleged in the lawsuit that in 2002-2003, AT&T permitted and assisted the NSA to install a
NarusInsight system in its
San Francisco switching center (
Room 641A), which was capable of monitoring billions of
bits of Internet traffic a second, including the playback of
telephone calls routed on the Internet, and thus in effect spying upon the entirety of the communication of many or all American citizens and businesses who use the
Internet.
A former AT&T engineer,
Mark Klein, attested that a
supercomputer built by
Narus was installed for the purpose, and that similar systems were also installed in at least
Seattle,
San Jose,
Los Angeles and
San Diego.
Wired News states Klein said he came forward "because he does not believe that the
Bush administration is being truthful about the extent of its
extrajudicial monitoring of Americans' communications":
"Despite what we are hearing, and considering the public track record of this administration, I simply do not believe their claims that the NSA's spying program is really limited to foreign communications or is otherwise consistent with the NSA's charter or with
FISA [...] And unlike the controversy over targeted wiretaps of individuals' phone calls, this potential spying appears to be applied wholesale to all sorts of Internet communications of countless citizens."The EFF alleges in the suit that AT&T also allowed the NSA to
data-mine hundreds of
terabytes of client records which included detailed transaction records such as domestic numbers dialed since 2001, and all Internet addresses visited, as well as other content. The EFF's attorney Kevin Bankston states:
"Our goal is to go after the people who are making the government's illegal surveillance possible [...] They could not do what they are doing without the help of companies like AT&T. We want to make it clear to AT&T that it is not in their legal or economic interests to violate the law whenever the president asks them to."In its amended complaint, the EFF seeks
injunctive relief against AT&T continuing such surveillance and
damages allowed under the
Foreign Intelligence Surveillance Act (FISA), the
Communications Assistance for Law Enforcement Act, and other U.S. laws. It also seeks aggregated damages under each of four laws. These would exceed $100,000 for each instance of surveillance,[SUP]
[6][/SUP] creating potentially ruinous liability for AT&T, considering the EFF's claims about the scope of AT&T's cooperation
It is alleged in the lawsuit that in 2002-2003, AT&T permitted and assisted the NSA to install a
NarusInsight system in its
San Francisco switching center (
Room 641A), which was capable of monitoring billions of
bits of Internet traffic a second, including the playback of
telephone calls routed on the Internet, and thus in effect spying upon the entirety of the communication of many or all American citizens and businesses who use the
Internet.
A former AT&T engineer,
Mark Klein, attested that a
supercomputer built by
Narus was installed for the purpose, and that similar systems were also installed in at least
Seattle,
San Jose,
Los Angeles and
San Diego.
Wired News states Klein said he came forward "because he does not believe that the
Bush administration is being truthful about the extent of its
extrajudicial monitoring of Americans' communications":
"Despite what we are hearing, and considering the public track record of this administration, I simply do not believe their claims that the NSA's spying program is really limited to foreign communications or is otherwise consistent with the NSA's charter or with
FISA [...] And unlike the controversy over targeted wiretaps of individuals' phone calls, this potential spying appears to be applied wholesale to all sorts of Internet communications of countless citizens."The EFF alleges in the suit that AT&T also allowed the NSA to
data-mine hundreds of
terabytes of client records which included detailed transaction records such as domestic numbers dialed since 2001, and all Internet addresses visited, as well as other content. The EFF's attorney Kevin Bankston states:
"Our goal is to go after the people who are making the government's illegal surveillance possible [...] They could not do what they are doing without the help of companies like AT&T. We want to make it clear to AT&T that it is not in their legal or economic interests to violate the law whenever the president asks them to."In its amended complaint, the EFF seeks
injunctive relief against AT&T continuing such surveillance and
damages allowed under the
Foreign Intelligence Surveillance Act (FISA), the
Communications Assistance for Law Enforcement Act, and other U.S. laws. It also seeks aggregated damages under each of four laws. These would exceed $100,000 for each instance of surveillance,[SUP]
[6][/SUP] creating potentially ruinous liability for AT&T, considering the EFF's claims about the scope of AT&T's cooperation.
Litigation[edit source | editbeta]
AT&T objected to the filing of the documents supporting the case on the grounds they were trade secrets or might compromise the security of its network. The EFF speculated that the federal government would invoke the
state secrets privilege to bar the entire lawsuit from being heard, but added: "If state secrecy can prevent us from preserving the rights of millions upon millions of people, then there is a profound problem with the law."
EFF's speculation proved accurate when the government indicated, in an April 28 statement of interest in the case, that it intended to invoke the state secrets privilege in a bid to dismiss the action.[SUP]
[7][/SUP] The Justice Department filed its motion to dismiss on May 15, 2006. On July 20, however, Chief Judge
Vaughn Walker of the
United States District Court for the Northern District of California rejected the federal motion, holding that "[t]he government has opened the door for judicial inquiry by publicly confirming and denying material information about its monitoring of communications content."[SUP]
[8][/SUP]
In his decision not to dismiss the case Judge Walker certified the case for immediate appeal, and the government and AT&T both appealed to the
Ninth Circuit. The case was argued in August 2007.[SUP]
[9][/SUP]
In July 2008,
Congress passed,[SUP]
[10][/SUP] and on July 10, 2008, President George Bush signed, the
FISA Amendments Act, which granted
retroactive immunity to telecommunications companies for past violations of FISA.[SUP]
[11][/SUP] Before any Ninth Circuit decision, the case was returned to the District Court "
n light of the FISA Amendments Act of 2008."[SUP][12][/SUP] In September 2008, Attorney General Michael Mukasey filed a certification[SUP][13][/SUP] pursuant to Section 802 of the FISAAA and the government moved to dismiss the Hepting litigation.
The Hepting plaintiffs opposed the motion to dismiss,[SUP][14][/SUP] asserting that the FISA Amendments Act's retroactive immunity provision was unconstitutional. Judge Walker heard oral arguments on December 2, 2008, and took the matter under submission.[SUP][15][/SUP]
The case was dismissed on June 3, 2009 by Judge Walker,[SUP][1][/SUP] citing retroactive legislation (section 802 of FISA) stating that[SUP][2][/SUP]in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was in connection with an intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was authorized by the President; and determined to be lawful.
The case went under review in the Ninth Circuit Court of Appeals by a three judge panel (Harry Pregerson, Michael Daly Hawkins, and M. Margaret McKeown). The argument was heard in Seattle, Washington on August 31, 2011.[SUP][16][/SUP] It was dismissed on December 29, 2011, and some issues in the case were submitted as a petition for certiorari to the Supreme Court on March 30, 2012.[SUP][17][/SUP] The Supreme Court, however, declined to review the lower court ruling on the case on October 9, 2012, closing the door on further appeals.[SUP][3][/SUP]