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Hepting et al. v. AT & T Corp.

Concerning NSA Warrantless Domestic Spying Program

Latest News

  • EPIC Urges Court Review of Surveillance Program. EPIC, in cooperation with the Stanford Constitutional Law Center, filed a "friend-of-the-court" brief (pdf) in "Hepting v. AT&T." This lawsuit alleges that AT&T allowed the government to wiretap calls and e-mails without judicial authority. The U.S. government and AT&T seek to dismiss this case. The EPIC brief states, "The statutes and constitutional provisions relied upon in the complaint are designed to interpose the courts between citizens and the government when government conducts surveillance that it naturally would prefer to conduct in secret and wholly at its own discretion . . . . This litigation should thus proceed, lest the privacy claims here be made effectively unreviewable." For more information, see EPIC's Resources on Domestic Surveillance and Spotlight on Surveillance on the NSA Program. (May 3, 2007)

Introduction

On January 31, 2006, the Electronic Frontier Foundation (EFF) filed a class-action lawsuit against AT&T, accusing the telecommunications company of violating the law and the privacy of its customers by working with the National Security Agency (NSA) in its warrantless domestic spying program. AT&T and the government filed motions to dismiss the case, but a federal judge denied these motions on July 20, 2006, allowing the case to go forward.

A December 16, 2005 New York Times article first revealed President George W. Bush had issued an order in 2002 allowing the National Security Agency unprecedented authority to conduct domestic surveillance. The NSA had been engaging in surveillance of Americans' telephone and Internet communications without court approval and in apparent violation of federal privacy laws, as well as the First and Fourth Amendments to the Constitution. President Bush disclosed the order to only a few Congressional leaders and the presiding judge of the Foreign Intelligence Surveillance Court, which issues warrants for domestic surveillance. These officials were told not to discuss the secret surveillance program with anyone else, making it difficult to question or provide oversight for the program. Analyses by the nonpartisan Congressional Research Office and a group of 13 legal experts and former government officials concluded that the Congress expressly intended for the government to seek warrants from a special Foreign Intelligence Surveillance Court before engaging in such surveillance when it passed legislation creating the court in 1978.

In order to implement its program, the government required the collaboration of major telecommunications companies. The lawsuit alleges that AT&T provided the NSA and/or other government agencies with direct access to its key telecommunications facilities and databases, "intercepting and disclosing to the government the contents of its customers' communications as well as detailed communications records about millions of its customers." EFF is suing on behalf of nationwide class of AT&T customers to stop this conduct and hold AT&T responsible for violating the law and privacy rights of Americans.

Both AT&T and the government moved to dismiss the case. AT&T argued that it should be immune from suit because it was following government directives. The government argued that the case would reveal "state secrets," which would harm national security. In July 2006, U.S. District Judge Vaughn Walker issued a decision denying both motions. In dismissing AT&T immunity claims, Judge Walker said that AT&T count not have reasonably believed that the alleged surveillance activity was legal. In rejecting the government's secrecy argument, Judge Walker stated: "The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security."

EPIC's Interest

This case is important because AT&T's customers are demanding that companies who were complicit in the government's warrantless domestic surveillance program be held responsible. Since the discovery of the program, EPIC has unsuccessfully sought review of the program by the Federal Communications Commission (pdf) and the House Energy and Commerce Committee (pdf). EPIC was be blocked by assertions of national security interests. EPIC holds that the privacy violations alleged in this case must be found actionable in federal court lest they become effectively unreviewable by any branch of government.

As EPIC's main concern is that this case be allowed to continue, the brief focuses mainly on the procedural issue of standing. The Supreme Court most recently defined standing in Massachusetts v. EPA (2007), where it stated the principle as whether the petitioners have "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination." The brief argues that the plaintiff's allegation that AT&T violated their statutory and constitutional rights by illegally intercepting and divulging to the government the contents of their privacy communications as well as their personal communications records is sufficient to survive a motion to dismiss.

The brief also argues that the state secretes privilege does not prevent a finding of standing for the plaintiffs. In this case, evidence implicating national security can be either segregated or excluded from discovery, and unclassified evidence remains available for the plaintiffs to use in establishing standing.

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