Hepting v. AT&T
Encyclopedia
Hepting v. AT&T is a United States
class action lawsuit filed in January 2006 by the Electronic Frontier Foundation
(EFF) against the telecommunications company AT&T
, in which the EFF alleges that AT&T permitted and assisted the National Security Agency
(NSA) in unlawfully monitoring the communications of the United States
, including AT&T customers, businesses and third parties whose communications were routed through AT&T's network, as well as Voice over IP
telephone calls routed via the Internet
.
The case is separate from, but related to, the NSA warrantless surveillance controversy
, in which the federal government
agency bypassed the courts
to monitor U.S. phone calls without warrants. Hepting v. AT&T does not include the federal government as a party.
In July 2006, the United States District Court for the Northern District of California
– in which the suit was filed – rejected a federal government motion to dismiss the case. The motion to dismiss, which invoked the State Secrets Privilege
, had argued that any court review of the alleged partnership between the federal government and AT&T would harm national security.
The case was immediately appealed to the Ninth Circuit
. It was dismissed on June 3, 2009, citing retroactive legislation in the Foreign Intelligence Surveillance Act.
s 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":
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:
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, creating potentially ruinous liability for AT&T, considering the EFF's claims about the scope of AT&T's cooperation.
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. The Justice Department filed its motion to dismiss on May 15, 2006. On July 20, however, Chief Judge Vaughn R. 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."
. The case was argued in August 2007.
In July 2008, Congress
passed, 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. Before any Ninth Circuit decision, the case was returned to the District Court "[i]n light of the FISA Amendments Act of 2008." In September 2008, Attorney General
Michael Mukasey filed a certification pursuant to Section 802 of the FISAAA and the government moved to dismiss the Hepting litigation.
The Hepting plaintiffs opposed the motion to dismiss, 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.
The case was dismissed on June 3, 2009 by Judge Walker, citing retroactive legislation (section 802 of FISA) stating that
The case is now 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 held in Seattle Washington on August 31, 2011. The EFF has a page on the events as well as the Wired Threat Level blog.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
class action lawsuit filed in January 2006 by the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
(EFF) against the telecommunications company AT&T
AT&T
AT&T Inc. is an American multinational telecommunications corporation headquartered in Whitacre Tower, Dallas, Texas, United States. It is the largest provider of mobile telephony and fixed telephony in the United States, and is also a provider of broadband and subscription television services...
, in which the EFF alleges that AT&T permitted and assisted the National Security Agency
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
(NSA) in unlawfully monitoring the communications of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, including AT&T customers, businesses and third parties whose communications were routed through AT&T's network, as well as Voice over IP
Voice over IP
Voice over Internet Protocol is a family of technologies, methodologies, communication protocols, and transmission techniques for the delivery of voice communications and multimedia sessions over Internet Protocol networks, such as the Internet...
telephone calls routed via the Internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
.
The case is separate from, but related to, the NSA warrantless surveillance controversy
NSA warrantless surveillance controversy
The NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency as part of the war on terror...
, in which the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
agency bypassed the courts
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
to monitor U.S. phone calls without warrants. Hepting v. AT&T does not include the federal government as a party.
In July 2006, the United States District Court for the Northern District of California
United States District Court for the Northern District of California
The United States District Court for the Northern District of California is the federal United States district court whose jurisdiction comprises following counties of California: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San...
– in which the suit was filed – rejected a federal government motion to dismiss the case. The motion to dismiss, which invoked the State Secrets Privilege
State Secrets Privilege
The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...
, had argued that any court review of the alleged partnership between the federal government and AT&T would harm national security.
The case was immediately appealed to the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
. It was dismissed on June 3, 2009, citing retroactive legislation in the Foreign Intelligence Surveillance Act.
Background and allegation
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, which was capable of monitoring billions of bitBit
A bit is the basic unit of information in computing and telecommunications; it is the amount of information stored by a digital device or other physical system that exists in one of two possible distinct states...
s of Internet traffic a second, including the playback of telephone calls routed on the Internet
Voice over IP
Voice over Internet Protocol is a family of technologies, methodologies, communication protocols, and transmission techniques for the delivery of voice communications and multimedia sessions over Internet Protocol networks, such as 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
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
.
A former AT&T engineer, Mark Klein
Mark Klein
Mark Klein is a former AT&T technician who leaked knowledge of his company's cooperation with the United States National Security Agency in installing network hardware to monitor and process American telecommunications...
, attested that a supercomputer
Supercomputer
A supercomputer is a computer at the frontline of current processing capacity, particularly speed of calculation.Supercomputers are used for highly calculation-intensive tasks such as problems including quantum physics, weather forecasting, climate research, molecular modeling A supercomputer is a...
built by Narus was installed for the purpose, and that similar systems were also installed in at least Seattle, San Jose
San Jose, California
San Jose is the third-largest city in California, the tenth-largest in the U.S., and the county seat of Santa Clara County which is located at the southern end of San Francisco Bay...
, Los Angeles
Los Ángeles
Los Ángeles is the capital of the province of Biobío, in the commune of the same name, in Region VIII , in the center-south of Chile. It is located between the Laja and Biobío rivers. The population is 123,445 inhabitants...
and San Diego. Wired News
Wired News
Wired News is an online technology news website, formerly known as HotWired, that split off from Wired magazine when the magazine was purchased by Condé Nast Publishing in the 1990s. Wired News was owned by Lycos not long after the split, until Condé Nast purchased Wired News on July 11, 2006...
states Klein said he came forward "because he does not believe that the Bush administration
George W. Bush administration
The presidency of George W. Bush began on January 20, 2001, when he was inaugurated as the 43rd President of the United States of America. The oldest son of former president George H. W. Bush, George W...
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
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
against AT&T continuing such surveillance and damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
allowed under the Foreign Intelligence Surveillance Act (FISA), the Communications Assistance for Law Enforcement Act
Communications Assistance for Law Enforcement Act
The Communications Assistance for Law Enforcement Act is a United States wiretapping law passed in 1994, during the presidency of Bill Clinton...
, 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, creating potentially ruinous liability for AT&T, considering the EFF's claims about the scope of AT&T's cooperation.
Litigation
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 PrivilegeState Secrets Privilege
The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...
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
State Secrets Privilege
The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...
in a bid to dismiss the action. The Justice Department filed its motion to dismiss on May 15, 2006. On July 20, however, Chief Judge Vaughn R. Walker of the United States District Court for the Northern District of California
United States District Court for the Northern District of California
The United States District Court for the Northern District of California is the federal United States district court whose jurisdiction comprises following counties of California: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San...
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."
Current status
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 CircuitUnited States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
. The case was argued in August 2007.
In July 2008, Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
passed, 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. Before any Ninth Circuit decision, the case was returned to the District Court "[i]n light of the FISA Amendments Act of 2008." In September 2008, Attorney General
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
Michael Mukasey filed a certification pursuant to Section 802 of the FISAAA and the government moved to dismiss the Hepting litigation.
The Hepting plaintiffs opposed the motion to dismiss, 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.
The case was dismissed on June 3, 2009 by Judge Walker, citing retroactive legislation (section 802 of FISA) stating that
The case is now under review in the Ninth Circuit Court of Appeals by a three judge panel (Harry Pregerson
Harry Pregerson
Harry Pregerson serves as a judge on the United States Court of Appeals for the Ninth Circuit. He was appointed to the Ninth Circuit in 1979 by President Jimmy Carter...
, Michael Daly Hawkins
Michael Daly Hawkins
Michael Daly Hawkins serves as a senior judge on the United States Court of Appeals for the Ninth Circuit, and is resident in Phoenix, Arizona at the Sandra Day O'Connor United States Courthouse.- Early life and education :...
, and M. Margaret McKeown
M. Margaret McKeown
Mary Margaret McKeown, usually styled as M. Margaret McKeown is a federal judge on the United States Court of Appeals for the Ninth Circuit, and is based in San Diego, California. McKeown, a native of Casper, Wyoming, has served on the Ninth Circuit since her confirmation in 1998...
). The argument was held in Seattle Washington on August 31, 2011. The EFF has a page on the events as well as the Wired Threat Level blog.
Related issues
- The American Civil Liberties UnionAmerican Civil Liberties UnionThe American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
has also sued the NSA for its wiretapping program, as well as drawing attention to federal government spying programs on "grassroots groups." See ACLU v. NSAACLU v. NSAAmerican Civil Liberties Union et al., v. National Security Agency / Central et al., 493 F.3d 644 , is a case decided July 6, 2007, in which the United States Court of Appeals for the Sixth Circuit held that the plaintiffs in the case did not have standing to bring the suit against the NSA, because...
and the web page on ACLU site. - On February 5, 2006, USA TodayUSA TodayUSA Today is a national American daily newspaper published by the Gannett Company. It was founded by Al Neuharth. The newspaper vies with The Wall Street Journal for the position of having the widest circulation of any newspaper in the United States, something it previously held since 2003...
ran a further story that, according to seven telecommunications executives, NSA had secured the cooperation of the main telecommunications companies in charge of international phone-calls, including AT&TAT&TAT&T Inc. is an American multinational telecommunications corporation headquartered in Whitacre Tower, Dallas, Texas, United States. It is the largest provider of mobile telephony and fixed telephony in the United States, and is also a provider of broadband and subscription television services...
, MCIMCI Inc.MCI, Inc. is an American telecommunications subsidiary of Verizon Communications that is headquartered in Ashburn, Virginia...
and Sprint, in its efforts to eavesdrop without warrants on international calls.
See also
- President's Surveillance ProgramPresident's Surveillance ProgramThe President's Surveillance Program is a collection of secret intelligence activities authorized by then President of the United States George W. Bush after the September 11 attacks in 2001 as part of the War on Terrorism...
- Communications Assistance for Law Enforcement ActCommunications Assistance for Law Enforcement ActThe Communications Assistance for Law Enforcement Act is a United States wiretapping law passed in 1994, during the presidency of Bill Clinton...
(CALEA) - Foreign Intelligence Surveillance Act
- Lawful interceptionLawful interceptionLawful interception is obtaining communications network data pursuant to lawful authority for the purpose of analysis or evidence. Such data generally consist of signalling or network management information or, in fewer instances, the content of the communications...
- List of class action lawsuits
- Mass surveillanceMass surveillanceMass surveillance is the pervasive surveillance of an entire population, or a substantial fraction thereof.Modern governments today commonly perform mass surveillance of their citizens, explaining that they believe that it is necessary to protect them from dangerous groups such as terrorists,...
- PrivacyPrivacyPrivacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
- Room 641ARoom 641ARoom 641A is an intercept facility operated by AT&T for the U.S. National Security Agency, beginning in 2003. Room 641A is located in the SBC Communications building at 611 Folsom Street, San Francisco, three floors of which were occupied by AT&T before SBC purchased AT&T...
- SIGINT (Signals Intelligence)
- Telephone tappingTelephone tappingTelephone tapping is the monitoring of telephone and Internet conversations by a third party, often by covert means. The wire tap received its name because, historically, the monitoring connection was an actual electrical tap on the telephone line...
- Traffic analysisTraffic analysisTraffic analysis is the process of intercepting and examining messages in order to deduce information from patterns in communication. It can be performed even when the messages are encrypted and cannot be decrypted. In general, the greater the number of messages observed, or even intercepted and...
- Thomas TammThomas TammThomas Tamm is a former lawyer in the United States Department of Justice's Office of Intelligence Policy and Review during the period in 2004 when senior Justice officials fought against the widening scope of warrantless NSA surveillance—and was the anonymous initial whistleblower to The...
- Russ TiceRuss TiceRussell D. Tice is a former intelligence analyst for the U.S. Air Force, Office of Naval Intelligence, Defense Intelligence Agency and National Security Agency...
External links
- The story, from Wired News
-
- AT&T Sued Over NSA Eavesdropping, Jan 31 2006, Ryan Singel
- Whistle-Blower Outs NSA Spy Room, Apr 07 2006
- AT&T Seeks to Hide Spy Docs, Apr 12 2006, Ryan Singel
- Mark Klein's memo
- unredacted version of Mark Klein's memo on CryptomeCryptomeCryptome is a website hosted in the United States since 1996 by independent scholars and architects John Young and Deborah Natsios that functions as a repository for information about freedom of speech, cryptography, spying, and surveillance...
- The lawsuit (PDF)
- The lawsuit (HTML) on thewall.civiblog.org
- eff.org
- Judge Declines to Dismiss Privacy Suit Against AT&T, The New York Times, July 21, 2006
- ACLU page on NSA wiretapping and related issues
- Complaint: (HTML) ACLU Complaint (Initial Filing) against the NSA Central Security Service and Lieutenant General Keith B. Alexander via thewall.civiblog.org, related litigation