Prison Phone Justice

1

1.

Plaintiffs, on behalf of themselves and a class of similarly situated persons, bring this

2 action and allege upon personal knowledge and belief as to their own acts, and upon information and
3
4

belief (based on the investigation of counsel) as to all other matters, as to which allegations Plaintiffs
believe substantial evidentiary support exists or will exist after a reasonable opportunity for further

5
6

investigation and discovery, as follows:
PRELIMINARY STATEMENT

7
8

2.

This case challenges an illegal and unconstitutional program of dragnet

9 communications surveillance conducted by the National Security Agency (the “NSA”) and other
10 Defendants in concert with major telecommunications companies (“Defendants” is defined
11 collectively as the named defendants and the Doe defendants as set forth in paragraphs 25 through
12
13
14
15

38 below).
3.

This program of dragnet surveillance (the “Program”), first authorized by Executive

Order of the President in October of 2001 (the “Program Order”) and first revealed to the public in

16 December of 2005, continues to this day.
17

4.

Some aspects of the Program were publicly acknowledged by the President in

18 December 2005 and later described as the “terrorist surveillance program” (“TSP”).
19
20
21
22
23
24

5.

The President and other executive officials have described the
TSP’s activities, which

were conducted outside the procedures of the Foreign Intelligence Surveillance Act (“FISA”) and
without authorization by the Foreign Intelligence Surveillance Court (“FISC”), as narrowly targeting
for interception the international communications of persons linked to Al Qaeda.
6.

The Attorney General and the Director of National Intelligence have since publicly

25 admitted that the TSP was only one particular aspect of the surveillance activities authorized by the
26 Program Order.
27
28
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1

7.

In addition to eavesdropping on or reading specific communications, Defendants

2 have indiscriminately intercepted the communications content and obtained the communications
3
4
5
6
7
8

records of millions of ordinary Americans as part of the Program authorized by the President.
8.

The core component of the Program is Defendants’ nationwide network of

sophisticated communications surveillance devices, attached to the key facilities of
telecommunications companies such as AT&T that carry Americans’ Internet and telephone
communications.
9.

Using this shadow network of surveillance devices, Defendants have acquired and

9
10
11

continue to acquire the content of a significant portion of the phone calls, emails, instant messages,
text messages, web communications and other communications, both international and domestic,

12 of practically every American who uses the phone system or the Internet, including Plaintiffs and
13 class members, in an unprecedented suspicionless general search through the nation’s
14 communications networks.
15
16
17
18

10.

In addition to using surveillance devices to acquire the domestic and international

communications content of millions of ordinary Americans, Defendants have unlawfully solicited
and obtained from telecommunications companies such as AT&T the complete and ongoing

19 disclosure of the private telephone and Internet transactional records of those companies’ millions
20 of customers (including communications records pertaining to Plaintiffs and class members),
21 communications records indicating who the customers communicated with, when and for how long,
22 among other sensitive information.
23
24
25
26

11.

This non-content transactional information is analyzed by computers in conjunction

with the vast quantity of communications content acquired by Defendants’ network of surveillance
devices, in order to select which communications are subjected to personal analysis by staff of the

27 NSA and other Defendants, in what has been described as a vast “data-mining” operation.
28
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1

12.

Plaintiffs and class members are ordinary Americans who are current or former

2 subscribers to AT&T’s telephone and/or Internet services.
3

13.

Communications of Plaintiffs and class members have been and continue to be

4 illegally acquired by Defendants using surveillance devices attached to AT&T’s network, and
5 Defendants have illegally solicited and obtained from AT&T the continuing disclosure of private
6 communications records pertaining to Plaintiffs and class members. Plaintiffs’ communications or
7 activities have been and continue to be subject to electronic surveillance.
8

14.

Plaintiffs are suing Defendants to enjoin their unlawful acquisition of the

9 communications and records of Plaintiffs and class members, to require the inventory and
10 destruction of those that have already been seized, and to obtain appropriate statutory, actual, and
11 punitive damages to deter future illegal surveillance.
12
13

JURISDICTION AND VENUE
15.

This court has subject matter jurisdiction over the federal claims pursuant to 28

14 U.S.C. § 1331, 18 U.S.C. § 2712, and 5 U.S.C. § 702.
15
16

16.

Plaintiffs are informed, believe and thereon allege that Defendants have sufficient

contacts with this district generally and, in particular, with the events herein alleged, that Defendants

17
18
19
20

are subject to the exercise of jurisdiction of this court over the person of such Defendants and that
venue is proper in this judicial district pursuant to 28 U.S.C. § 1391.
17.

Plaintiffs are informed, believe and thereon allege that a substantial part of the events

21 giving rise to the claims herein alleged occurred in this district and that Defendants and/or agents
22 of Defendants may be found in this district.
23
24
25
26
27
28

18.

Intradistrict Assignment: Assignment to the San Francisco/Oakland division is

proper pursuant to Local Rule 3-2(c) and (d) because a substantial portion of the events and
omissions giving rise to this lawsuit occurred in this district and division.
19.

Plaintiffs have fully complied with the presentment of claim provisions of 28 U.S.C.

§ 2675, as required for their claimsunder 18 U.S.C. § 2712. Plaintiffs timely served notice of their

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1 claims on the NSA and the Department of Justice on December 19, 2007, and over six months have
2 passed since the filing of that notice.
3
4
5
6
7
8

PARTIES
20.

Plaintiff Tash Hepting, a senior systems architect, is an individual residing in

Livermore, California. Hepting has been a subscriber and user of AT&T’s residential long distance
telephone service since at least June 2004.
21.

Plaintiff Gregory Hicks is an individual residing in San Jose, California. Hicks, a

9 retired Naval Officer and systems engineer, has been a subscriber and user of AT&T’s residential
10 long distance telephone service since February 1995.
11
12
13
14
15

22.

Plaintiff Carolyn Jewel is an individual residing in Petaluma, California. Jewel, a

database administrator and author, has been a subscriber and user of AT&T’s WorldNet dial-up
Internet service since approximately June 2000.
23.

Plaintiff Erik Knutzen is an individual residing in Los Angeles, California.Knutzen,

16 a photographer and land use researcher, was a subscriber and user of AT&T’s WorldNet dial-up
17 Internet service from at least October 2003 until May 2005. Knutzen is currently a subscriber and
18 user of AT&T’s High Speed Internet DSL service.
19
20
21
22
23
24
25
26
27

24.

Plaintiff Joice Walton is an individual residing in San Jose, California. Walton, a

high technology purchasing agent, is a current subscriber and user of AT&T’s WorldNet dial-up
Internet service. She has subscribed to and used this service since around April 2003.
25.

Defendant National Security Agency (NSA) is an agency under the direction and

control of the Department of Defense that collects, processes and disseminates foreign signals
intelligence. It is responsible for carrying out the Program challenged herein.
26.

Defendant Lieutenant General Keith B. Alexander is the current Director of the NSA,

in office since April 2005. As NSA Director, defendant Alexander has ultimate authority for
supervising and implementing all operations and functions of the NSA, including the Program.

28
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1

27.

Defendant Lieutenant General (Ret.) Michael V. Hayden is the former Director of

2 the NSA, in office from March 1999 to April 2005. While Director, Defendant Hayden had ultimate
3 authority for supervising and implementing all operations and functions of the NSA, including the
4 Program.
5

28.

Defendant United States is the United States of America, its departments, agencies,

6 and entities.
7
8

29.

Defendant George W. Bush is the current President of the United States, in office

since January 2001. Mr. Bush authorized and continues to authorize the Program.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

30.

Defendant Richard B. Cheney is the current Vice President of the United States, in

office since January 2001. Defendant Cheney was personally involved in the creation, development
and implementation of the Program.
31.

Defendant David S. Addington is currently the chief of staff to Defendant Cheney,

in office since October 2005. Previously, DefendantAddington served as legal counsel to the Office
of the Vice President. Defendant Addington was personally involved in the creation, development
and implementation of the Program. On information and belief, Defendant Addington drafted the
documents that purportedly authorized the Program.
32.

Defendant Department of Justice is a Cabinet-level executive department in the

United States government charged with law enforcement, defending the interests of the United States
according to the law, and ensuring fair and impartial administration of justice for all Americans.
33.

Defendant Michael B. Mukasey is the current Attorney General of the United States,

in office since November 2007. As Attorney General, DefendantMukasey approves and authorizes
the Program on behalf of the Department of Justice.
34.

Defendant Alberto R. Gonzales is the former Attorney General of the United States,

in office from February 2005 to September 2007, and also served as White House Counsel to

26 President George W. Bush from January 2001 to February 2005. Defendant Gonzales was
27 personally involved in the creation, development and implementation of the Program. As Attorney
28
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1 General, Defendant Gonzales authorized and approved the Program on behalf of the Department of
2 Justice.
3
4

35.

Defendant John D. Ashcroft is the former Attorney General of the United States, in

office from January 2001 to February 2005. As Attorney General, Defendant Ashcroft authorized

5
6
7

and approved the Program on behalf of the Department of Justice.
36.

Defendant Vice Admiral (Ret.) John M. McConnell is the Director of National

8 Intelligence (“DNI”), in office since February 2007. Defendant McConnell has authority over the
9 activities of the U.S. intelligence community, including the Program.
10

37.

Defendant John D. Negroponte was the first Director of National Intelligence, in

11 office from April 2005 to February 2007. As DNI, Defendant Negroponte had authority over the
12 activities of the U.S. intelligence community, including the Program.
13

38.

At all times relevant hereto, Defendants Doe Nos. 1-100, inclusive (the “Doe

14 defendants”), whose actual names Plaintiffs have been unable to ascertain notwithstanding
15 reasonable efforts to do so, but who are sued herein by the fictitious designation “Doe # 1” through
16 “Doe # 100,” were agents or employees of the NSA, the DOJ, the White House, or were other
17 government agencies or entities or the agents or employees of such agencies or entities, who
18 authorized or participated in the Program. Plaintiffs will amend this complaint to allege their true
19 names and capacities when ascertained. Upon information and belief each fictitiously named
20 Defendant is responsible in some manner for the occurrences herein alleged and the injuries to
21 Plaintiffs and class members herein alleged were proximately caused in relation to the conduct of
22 Does 1-100 as well as the named Defendants.
23

FACTUAL ALLEGATIONS RELATED TO ALL COUNTS

24

THE PRESIDENT’S AUTHORIZATION OF THE PROGRAM

25

39.

On October 4, 2001, President Bush, in concert with White House Counsel Gonzales,

26 NSA Director Hayden, Attorney General Ashcroft and other Defendants, issued a secret presidential
27 order (the “Program Order”) authorizing a range of surveillance activities inside of the United States
28
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1 without statutory authorization or court approval, including electronic surveillance of Americans’
2 telephone and Internet communications (the “Program”).
3

40.

This Program of surveillance inside the United States began at least by October 6,

4 2001, and continues to this day.
5

41.

The President renewed and, on information and belief, renews his October 4, 2001

6 order approximately every 45 days.
7

42.

The Program of domestic surveillance authorized by the President and conducted by

8 Defendants required and requires the assistance of major telecommunications companies such as
9 AT&T, whose cooperation in the Program was and on information and belief is obtained based on
10 periodic written requests from Defendants and/or other government agents indicating that the
11 President has authorized the Program’s activities, and/or based on oral requests from Defendants
12 and/or other government agents.
13

43.

The periodic written requests issued to colluding telecommunications companies,

14 including AT&T, have stated and on information and belief do state that the Program’s activities
15 have been determined to be lawful by the Attorney General, except for one period of less than sixty
16 days.
17

44.

On information and belief, at some point prior to March 9, 2004, the Department of

18 Justice concluded that certain aspects of the Program were in excess of the President’s authority and
19 in violation of criminal law.
20

45.

On Tuesday, March 9, 2004, Acting Attorney General James Comey advised the

21 Administration that he saw no legal basis for certain aspects of the Program. The then-current
22 Program authorization was set to expire March 11, 2004.
23

46.

On Thursday, March 11, 2004, the President renewed the Program Order without a

24 certification from the Attorney General that the conduct it authorized was lawful.
25

47.

On information and belief, the March 11 Program Order instead contained a

26 statement that the Program’s activities had been determined to be lawful by Counsel to the President
27 Alberto Gonzales, and expressly claimed to override the Department of Justice’s conclusion that the
28
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1 Program was unlawful as well as any act of Congress or judicial decision purporting to constrain the
2 President's power as commander in chief.
3

48.

For a period of less than sixty days, beginning on or around March 11, 2004, written

4 requests to the telecommunications companies asking for cooperation in the Program stated that the
5 Counsel to the President, rather than the Attorney General, had determined the Program’s activities
6 to be legal.
7

49.

By their conduct in authorizing, supervising, and implementing the Program,

8 Defendants, including the President, the Vice-President, the Attorneys General and the Directors of
9 NSA since October 2001, the Directors of National Intelligence since 2005 and the Doe defendants,
10 have aided, abetted, counseled, commanded, induced or procured the commission of all Program
11 activities herein alleged, and proximately caused all injuries to Plaintiffs herein alleged.
12
13
14
15
16
17
18
19

THE NSA’S DRAGNET INTERCEPTION OF COMMUNICATIONS TRANSMITTED
THROUGH AT&T FACILITIES
50.

AT&T is a provider of electronic communications services, providing to the public

the ability to send or receive wire or electronic communications.
51.

AT&T is also a provider of remote computing services, providing to the public

computer storage or processing services by means of an electronic communications system.
52.

Plaintiffs and class members are, or at pertinent times were, subscribers to and/or

customers of AT&T’s electronic communications services and/or computer storage or processing

20 services.
21

53.

AT&T maintains domestic telecommunications facilities over which millions of

22 Americans’ telephone and Internet communications pass every day.
23

54.

These facilities allow for the transmission of interstate and/or foreign electronic voice

24 and data communications by the aid of wire, fiber optic cable, or other like connection between the
25 point of origin and the point of reception.
26

55.

One of these AT&T facilities is located at on Folsom Street in San Francisco, CA

27 (the “Folsom Street Facility”).
28
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1

56.

The Folsom Street Facility contains a “4ESS Switch Room.” A 4ESS switch is a

2 type of electronic switching system used to route long-distance telephone communications transiting
3 through the facility.
4

57.

The Folsom Street Facility also contains a “WorldNet Internet Room” containing

5 large routers, racks of modems for AT&T customers’ WorldNet dial-up services, and other
6 telecommunications equipment through which wire and electronic communications to and from
7 AT&T’s dial-up and DSL Internet service subscribers, including emails, instant messages, Voice8 Over-Internet-Protocol (“VOIP”) conversations and web browsing requests, are transmitted.
9

58.

The communications transmitted through the WorldNet Internet room are carried as

10 light signals on fiber-optic cables that are connected to routers for AT&T’s WorldNet Internet
11 service and are a part of AT&T’s Common Backbone Internet network (“CBB”), which comprises
12 a number of major hub facilities such as the Folsom Street Facility that are connected by a mesh of
13 high-speed fiber optic cables and that are used for the transmission of interstate and foreign
14 communications.
15

59.

The WorldNet Internet Room is designed to route and transmit vast amounts of

16 Internet communications that are “peered” by AT&T between AT&T’s CBB and the networks of
17 other carriers, such as ConXion, Verio, XO, Genuity, Qwest, PAIX, Allegieance, Abovenet, Global
18 Crossing, C&W, UUNET, Level 3, Sprint,Telia, PSINet, and MAE-West. “Peering” is the process
19 whereby Internet providers interchange traffic destined for their respective customers, and for
20 customers of their customers.
21

60.

Around January 2003, the NSA designed and implemented a program in

22 collaboration with AT&T to build a surveillance operation at AT&T’s Folsom Street Facility, inside
23 a secret room known as the “SG3 Secure Room”.
24

61.

The SG3 Secure Room was built adjacent to the Folsom Street Facility’s 4ESS

25 switch room.
26

62.

An AT&T employee cleared and approved by the NSA was charged with setting up

27 and maintaining the equipment in the SG3 Secure Room, and access to the room was likewise
28 controlled by those NSA-approved AT&T employees.
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1

63.

The SG3 Secure Room contains sophisticated computer equipment, including a

2 device know as a Narus Semantic Traffic Analyzer (the N
“ arus STA”), which is designed to analyze
3 large volumes of communications at high speed, and can be programmed to analyze the contents and
4 traffic patterns of communications according to user-defined rules.
5

64.

By early 2003, AT&T—under the instruction and supervision of the NSA—had

6 connected the fiber-optic cables used to transmit electronic and wire communications through the
7 WorldNet Internet Room to a “splitter cabinet” that intercepts a copy of all communications
8 transmitted through the WorldNet Internet Room and diverts copies of those communications to the
9 equipment in the SG3 Secure Room. (Hereafter, the technical means used to receive the diverted
10 communications will be referred to as the “Surveillance Configuration.”)
11

65.

The equipment in the SG3 Secure Room is in turn connected to a private high-speed

12 backbone network separate from the CBB (the “SG3 Network”).
13

66.

NSA analysts communicate instructions to the SG3 Secure Room’s equipment,

14 including the Narus STA, using the SG3 Network, and the SG3 Secure Room’s equipment transmits
15 communications based on those rules back to NSA personnel using the SG3 Network.
16

67.

The NSA in cooperation with AT&T has installed and is operating a nationwide

17 network of Surveillance Configurations in AT&T facilities across the country, connected to the SG3
18 Network.
19

68.

This network of Surveillance Configurations includes surveillance devices installed

20 at AT&T facilities in Atlanta, GA; Bridgeton, MO; Los Angeles, CA; San Diego, CA; San Jose CA;
21 and/or Seattle, WA.
22

69.

Those Surveillance Configurations divert all peered Internet traffic transiting those

23 facilities into SG3 Secure Rooms connected to the secure SG3 Network used by the NSA, and
24 information of interest is transmitted from the equipment in the SG3 Secure Rooms to the NSA
25 based on rules programmed by the NSA.
26

70.

This network of Surveillance Configurations indiscriminately acquires domestic

27 communications as well as international and foreign communications.
28
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1

71.

This network of Surveillance Configurations involves considerably more locations

2 than would be required to capture the majority of international traffic.
3

72.

This network of Surveillance Configurations acquires over half of AT&T’s purely

4 domestic Internet traffic, representing almost all of the AT&T traffic to and from other providers,
5 and comprising approximately 10% of all purely domestic Internet communications in the United
6 States, including those of non-AT&T customers.
7

73.

Through this network of Surveillance Configurations and/or by other means,

8 Defendants have acquired and continue to acquire the contents of domestic and international wire
9 and/or electronic communications sent and/or received by Plaintiffs and class members, as well as
10 non-content dialing, routing, addressing and/or signaling information pertaining to those
11 communications.
12

74.

In addition to acquiring all of the Internet communications passing through a number

13 of key AT&T facilities, Defendants and AT&T acquire all or most long-distance domestic and
14 international phone calls to or from AT&T long-distance customers, including both the content of
15 those calls and dialing, routing, addressing and/or signaling information pertaining to those calls,
16 by using a similarly nationwide network of surveillance devices attached to AT&T’s long-distance
17 telephone switching facilities, and/or by other means.
18

75.

The contents of communications to which Plaintiffs and class members were a party,

19 and dialing, routing, addressing, and/or signaling information pertaining to those communications,
20
21

were and are acquired by Defendants in cooperation with AT&T by using the nationwide network
of Surveillance Configurations, and/or by other means.

22
23
24
25
26
27
28

76.

Defendants’ above-described acquisition in cooperation with AT&T of Plaintiffs’ and

class members’ communications contents and non-content information is done without judicial,
statutory, or other lawful authorization, in violation of statutory and constitutional limitations, and
in excess of statutory and constitutional authority.
77.

Defendants’ above-described acquisition in cooperation with AT&T of Plaintiffs’

and class members’ communications contents and non-content information is done without

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1 probable cause or reasonable suspicion to believe that Plaintiffs or class members have
2 committed or are about to commit any crime or engage in any terrorist activity.
3
4
5

78.

Defendants’ above-described acquisition in cooperation with AT&T of Plaintiffs’ and

class members’ communications contents and non-content information is done without probable
cause or reasonable suspicion to believe thatPlaintiffs or class membersare foreign powers or agents

6 thereof.
7
8

79.

Defendants’ above-described acquisition in cooperation with AT&T of Plaintiffs’ and

class members’ communications contents and non-content information is donewithout any reason

9 to believe that the information is relevant to an authorized criminal investigation or to an authorized
10 investigation to protect against international terrorism or clandestine intelligence activities.
11
12

80.

Defendants’ above-described acquisition in cooperation with AT&T of Plaintiffs’ and

class members’ communications contents and non-content information was directly performed,

13
14
15

and/or aided, abetted, counseled, commanded, induced or procured, by Defendants.
81.

On information and belief, Defendants will continue to directly acquire, and/or aid,

16 abet, counsel, command, induce or procure the above-described acquisition in cooperation with
17 AT&T, the communications contents and non-content information of Plaintiffs and class members.
18
19
20

THE NSA’S DRAGNET COLLECTION OF COMMUNICATIONS RECORDS FROM
AT&T DATABASES
82.

Defendants have since October 2001 continuously solicited and obtained the

21 disclosure of all information in AT&T’s major databases of stored telephone and Internet records,
22 including up-to-the-minute updates to the databases that are disclosed in or near real-time.
23
24
25

83.

Defendants have solicited and obtained from AT&T records concerning

communications to which Plaintiffs and class members were a party, and continue to do so.
84.

In particular, Defendants have solicited and obtained the disclosure of information

26
27
28

managed by AT&T’s “Daytona” database management technology, which includes records
concerning both telephone and Internet communications, and continues to do so.

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1

85.

Daytona is a database management technology designed to handle very large

2 databases and is used to manage “Hawkeye,” AT&T’s call detail record (“CDR”) database, which
3
4

contains records of nearly every telephone communication carried over its domestic network since
approximately 2001, records that include the originating and terminating telephone numbers and the

5
6
7

time and length for each call.
86.

The Hawkeye CDR database contains records or other information pertaining to

8 Plaintiffs’ and class members’ use of AT&T’s long distance telephone service and dial-up Internet
9 service.
10
11
12
13
14

87.

As of September 2005, all of the CDR data managed by Daytona, when

uncompressed, totaled more than 312 terabytes.
88.

Daytona is also used to manage AT&T’s huge network-security database, known as

“Aurora,” which has been used to store Internet traffic data since approximately 2003. The Aurora

15 database contains huge amounts of data acquired by firewalls, routers,honeypots and other devices
16 on AT&T’s global IP (Internet Protocol) network and other networks connected to AT&T’s network.
17

89.

The Aurora database managed by Daytona contains records or other information

18 pertaining to Plaintiffs’ and class members’ use of AT&T’s Internet services.
19
20
21
22
23
24
25
26
27
28

90.

Since October 6, 2001 or shortly thereafter, Defendants have continually solicited

and obtained from AT&T disclosure of the contents of the Hawkeye and Aurora communications
records databases and/or other AT&T communications records, including records or other
information pertaining to Plaintiffs’ and class members’ use of AT&T’s telephone and Internet
services.
91.

The NSA and/or other Defendants maintain the communications records disclosed

by AT&T in their own database or databases of such records.
92.

Defendants’ above-described solicitation of the disclosure by AT&T of Plaintiffs’

and class members’ communications records, and its receipt of such disclosure, is done without

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1 judicial, statutory, or other lawful authorization, in violation of statutory and constitutional
2 limitations, and in excess of statutory and constitutional authority.
3

93.

Defendants’ above-described solicitation of the disclosure by AT&T of Plaintiffs’

4 and class members’ communications records, and its receipt of such disclosure, is done without
5
6

probable cause or reasonable suspicion to believe that Plaintiffs’ or class members have
committed or are about to commit any crime or engage in any terrorist activity.

7
8
9
10
11
12
13
14
15
16
17
18

94.

Defendants’ above-described solicitation of the disclosure by AT&T of Plaintiffs’

and class members’ communications records, and its receipt of such disclosure, is done without
probable cause or reasonable suspicion to believe that Plaintiffs’ or class members are foreign
powers or agents thereof.
95.

Defendants’ above-described solicitation of the disclosure by AT&T of Plaintiffs’

and class members’ communications records, and its receipt of such disclosure, is done
without any
reason to believe that the information is relevant to an authorized criminal investigation or to an
authorized investigation to protect against international terrorism or clandestine intelligence
activities.
96.

Defendants’ above-described solicitation of the disclosure by AT&T of Plaintiffs’

and class members’ communications records, and its receipt of such disclosure, is directly

19 performed, and/or aided, abetted, counseled, commanded, induced or procured, by Defendants.
20

97.

On information and belief, Defendants will continue to directly solicit and obtain

21 AT&T’s disclosure of its communications records, including records pertaining to Plaintiffs and
22

class members, and/or will continue to aid, abet, counsel, command, induce or procure that conduct.

23
24
25
26

CLASS ACTION ALLEGATIONS
98.

Pursuant to Federal Rules of Civil Procedure, Rule 23(b)(2), Plaintiffs Hepting,

Hicks, Jewel, Knutzen, and Walton bring this action on behalf of themselves and a class of similarly

27 situated persons defined as:
28
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1
2

All individuals in the United States that are current residential subscribers or
customers of AT&T’s telephone services or Internet services, or that were residential
telephone or Internet subscribers or customers at any time after September 2001.

3

99.

The class seeks certification of claims for declaratory, injunctive and other equitable

4 relief pursuant to 18 U.S.C. §2520, 18 U.S.C. §2707 and 5 U.S.C. § 702, in addition to declaratory
5
6

and injunctive relief for violations of the First and Fourth Amendments. Members of the class
expressly and personally retain any and all damages claims they individually may possess arising

7
8
9
10

out of or relating to the acts, events, and transactions that form the basis of this action. The
individual damages claims of the class members are outside the scope of this class action.
100.

Excluded from the class are the individual Defendants, all who have acted in active

11 concert and participation with the individual Defendants, and the legal representatives, heirs,
12 successors, and assigns of the individual Defendants.
13
14
15
16

101.

Also excluded from the class are any foreign powers, as defined by 50 U.S.C.

§ 1801(a), or any agents of foreign powers, as defined by 50 U.S.C. § 1801(b)(1)(A), including
without limitation anyone who knowingly engages in sabotage or international terrorism, or

17 activities that are in preparation therefore.
18

102.

This action is brought as a class action and may properly be so maintained pursuant

19 to the provisions of the Federal Rules of Civil Procedure, Rule 23. Plaintiffs reserve the right to
20 modify the class definition and the class period based on the results of discovery.
21
22
23
24

103.

Numerosity of the Class: Members of the class are so numerous that their

individual joinder is impracticable. The precise numbers and addresses of members of the class are
unknown to the Plaintiffs. Plaintiffs estimate that the class consists of millions of members. The

25 precise number of persons in the class and their identities and addresses may be ascertained from
26 Defendants’ and AT&T’s records.
27
28
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1

104.

Existence of Common Questions of Fact and Law: There is a well-defined

2 community of interest in the questions of law and fact involved affecting the members of the class.
3

These common legal and factual questions include:

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

(a)

Whether Defendants have violated the First and Fourth Amendment rights of

class members, or are currently doing so;
(b)

Whether Defendants have subjected class members to electronic surveillance,

or have disclosed or used information obtained by electronic surveillance of the class members, in
violation of 50 U.S.C. § 1809, or are currently doing so;
(c)

Whether Defendants have intercepted, used or disclosed class members’

communications in violation of 18 U.S.C. § 2511, or are currently doing so;
(d)

Whether Defendants have solicited and obtained the disclosure of the

contents of class members’ communications in violation of 18 U.S.C. § 2703(a) or (b), or are
currently doing so;
(e)

Whether Defendants have solicited or obtained the disclosure of non-content

records or other information pertaining to class members in violation of 18 U.S.C. § 2703(c), or are
currently doing so;
(f)

Whether Defendants have violated the Administrative Procedures Act, 5

U.S.C. §§ 701 et seq., or are currently doing so;
(g)

Whether the Defendants have violated the constitutional principle of

separation of powers, or are currently doing so;
(h)

Whether Plaintiffs and class members are entitled to injunctive, declaratory,

and other equitable relief against Defendants;
(i)

Whether Plaintiffs and class members are entitled to an award of reasonable

attorneys’ fees and costs of this suit.
105.

Typicality: Plaintiffs’ claims are typical of the claims of the members of the class

26
27

because Plaintiffs are or were subscribers to the Internet and telephone services of Defendants.

28
COMPLAINT

-16-

1 Plaintiffs and all members of the class have similarly suffered harm arising from Defendants’
2 violations of law, as alleged herein.
3
4

106.

Adequacy: Plaintiffs are adequate representatives of the class because their interests

do not conflict with the interests of the members of the class they seek to represent. Plaintiffs have

5
6
7

retained counsel competent and experienced in complex class action litigation and Plaintiffs intends
to prosecute this action vigorously. Plaintiffs and their counsel will fairly and adequately protect

8 the interests of the members of the class.
9

107.

This suit may be maintained as a class action pursuant to Federal Rules of Civil

10 Procedure, Rule 23(b)(2) because Plaintiffs and the class seek declaratory and injunctive relief, and
11
12
13
14

all of the above factors of numerosity, common questions of fact and law, typicality and adequacy
are present. Moreover, Defendants have acted on grounds generally applicable to Plaintiffs and the
class as a whole, thereby making declaratory and/or injunctive relief proper.
COUNT I

15
16

Violation of Fourth Amendment—Declaratory, Injunctive, and Equitable Relief

(Named Plaintiffs and Class vs. Defendants United States, National Security Agency,
Department of Justice, Bush (in his official and personal capacities), Alexander (in his
18
official and personal capacities), Mukasey (in his official and personal capacities),
McConnell (in his official and personal capacities), and one or more of the Doe Defendants)
19
108. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
20
17

21 paragraphs of this complaint, as if set forth fully herein.
22

109.

Plaintiffs and class members have a reasonable expectation of privacy in their

23 communications, contents of communications, and/or records pertaining to their communications
24
25

transmitted, collected, and/or stored by AT&T.
110.

Defendants have directly performed, or aided, abetted, counseled, commanded,

26
27
28

induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission

COMPLAINT

-17-

1 of the above-described acts of acquisition, interception, disclosure, divulgence and/or use of
2 Plaintiffs’ and class members’ communications, contents of communications, and records pertaining
3
4

to their communications transmitted, collected, and/or stored by AT&T, without judicial or other
lawful authorization, probable cause, and/or individualized suspicion, in violation of statutory and

5
6
7

constitutional limitations, and in excess of statutory and constitutional authority.
111.

AT&T acted as the agent of Defendants in performing, participating in, enabling,

8 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisition,
9 interception, disclosure, divulgence and/or use of Plaintiffs’ and class members’ communications,
10 contents of communications, and records pertaining to their communications transmitted, collected,
11
12
13
14

and/or stored by AT&T, without judicial or other lawful authorization, probable cause, and/or
individualized suspicion.
112.

At all relevant times, Defendants committed, knew of and/or acquiesced in all of the

15 above-described acts, and failed to respect the Fourth Amendment rights of Plaintiffs and class
16 members by obtaining judicial or other lawful authorization and by conforming their conduct to the
17 requirements of the Fourth Amendment.
18
19
20
21
22
23

113.

By the acts alleged herein, Defendants have violated Plaintiffs’ and class members’

reasonable expectations of privacy and denied Plaintiffs and class members their right to be free
from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constitution
of the United States.
114.

By the acts alleged herein, Defendants’ conduct has proximately caused harm to

24 Plaintiffs and class members.
25
26

115.

Defendants’ conduct was done intentionally, with deliberate indifference, or with

reckless disregard of, Plaintiffs’ and class members’ constitutional rights.

27
28
COMPLAINT

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1

116.

On information and belief, the Count I Defendants are now engaging in and will

2 continue to engage in the above-described violations of Plaintiffs’ and class members’ constitutional
3
4

rights, and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class
members have no adequate remedy at law for the Count I Defendants’ continuing unlawful conduct,

5
6
7
8

and the Count I Defendants will continue to violate Plaintiffs’ and class members’ legal rights unless
enjoined and restrained by this Court.
117.

Plaintiffs seek that this Court declare that Defendants have violated their rights and

9 the rights of the class; enjoin the Count I Defendants, their agents, successors, and assigns, and all
10 those in active concert and participation with them from violating the Plaintiffs’ and class members’
11
12
13

rights under the Fourth Amendment to the United States Constitution; and award such other and
further equitable relief as is proper.
COUNT II

14

Violation of Fourth Amendment—Damages

15
16
17
18
19

(Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his
personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity),
Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his
personal capacity), McConnell (in his personal capacity), Negroponte (in his personal
capacity), and one or more of the Doe Defendants)
118.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

20 paragraphs of this complaint, as if set forth fully herein.
21
22
23
24
25

119.

Plaintiffs have a reasonable expectation of privacy in their communications, contents

of communications, and/or records pertaining to their communications transmitted, collected, and/or
stored by AT&T.
120.

Defendants have directly performed, or aided, abetted, counseled, commanded,

26 induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
27 enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission
28
COMPLAINT

-19-

1 of the above-described acts of acquisition, interception, disclosure, divulgence and/or use of
2 Plaintiffs’ communications, contents of communications, and records pertaining to their
3
4

communications transmitted, collected, and/or stored by AT&T without judicial or other lawful
authorization, probable cause, and/or individualized suspicion, in violation of statutory and

5
6
7

constitutional limitations, and in excess of statutory and constitutional authority.
121.

AT&T acted as the agent of Defendants in performing, participating in, enabling,

8 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisition,
9 interception, disclosure, divulgence and/or use of Plaintiffs’ communications, contents of
10 communications, and records pertaining to their communications transmitted, collected, and/or
11
12
13
14

stored by AT&T without judicial or other lawful authorization, probable cause, and/or individualized
suspicion.
122.

At all relevant times, Defendants committed, knew of and/or acquiesced in all of the

15 above-described acts, and failed to respect the Fourth Amendment rights of Plaintiffs by obtaining
16 judicial or other lawful authorization and conforming their conduct to the requirements of the Fourth
17 Amendment.
18
19
20
21
22

123.

By the acts alleged herein, Defendants have violated Plaintiffs’ reasonable

expectations of privacy and denied Plaintiffs their right to be free from unreasonable searches and
seizures as guaranteed by the Fourth Amendment to the Constitution of the United States.
124.

By the acts alleged herein, Defendants’ conduct has proximately caused harm to

23 Plaintiffs.
24

125.

Defendants’ conduct was done intentionally, with deliberate indifference, or with

25 reckless disregard of, Plaintiffs’ constitutional rights.
26
27

126.

Plaintiffs seek an award of their actual damages and punitive damages against the

Count II Defendants, and such other or further relief as is proper.

28
COMPLAINT

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1

COUNT III

2

Violation of First Amendment—Declaratory, Injunctive, and Other Equitable Relief

3

(Named Plaintiffs and Class vs. Defendants United States, National Security Agency,
Department of Justice, Bush (in his official and personal capacities), Alexander (in his
4
official and personal capacities), Mukasey (in his official and personal capacities), and
McConnell
(in his official and personal capacities), and one or more of the Doe Defendants)
5
6

127.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

7 paragraphs of this complaint, as if set forth fully herein.
8
9
10
11
12

128.

Plaintiffs and class members use AT&T’s services to speak or receive speech

anonymously and to associate privately.
129.

Defendants directly performed, or aided, abetted, counseled, commanded, induced,

procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled,

13 contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of the
14 above-described acts of acquisition, interception, disclosure, divulgence and/or use of Plaintiffs’ and
15 class members’ communications, contents of communications, and records pertaining to their
16 communications without judicial or other lawful authorization, probable cause, and/or individualized
17
18
19
20

suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and
constitutional authority.
130.

AT&T acted as the agent of Defendants in performing, participating in, enabling,

21 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisition,
22 interception, disclosure, divulgence and/or use of Plaintiffs’ communications, contents of
23 communications, and records pertaining to their communications transmitted, collected, and/or
24
25

stored by AT&T without judicial or other lawful authorization, probable cause, and/or individualized
suspicion.

26
27
28

131.

By the acts alleged herein, Defendants violated Plaintiffs’ and class members’ rights

to speak and to receive speech anonymously and associate privately under the First Amendment.

COMPLAINT

-21-

1

132.

By the acts alleged herein, Defendants’ conduct proximately caused harm to

2 Plaintiffs and class members.
3
4

133.

Defendants’ conduct was done intentionally, with deliberate indifference, or with

reckless disregard of, Plaintiffs’ and class members’ constitutional rights.

5
6
7

134.

On information and belief, the Count III Defendants are now engaging in and will

continue to engage in the above-described violations of Plaintiffs’ and class members’ constitutional

8 rights, and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class
9 members have no adequate remedy at law for the Count III Defendants’ continuing unlawful
10 conduct, and the Count III Defendants will continue to violate Plaintiffs’ and class members’ legal
11
12
13
14

rights unless enjoined and restrained by this Court.
135.

Plaintiffs seek that this Court declare that Defendants have violated their rights and

the rights of the class; enjoin the Count III Defendants, their agents, successors, and assigns, and all

15 those in active concert and participation with them from violating the Plaintiffs’ and class members’
16 rights under the First Amendment to the United States Constitution; and award such other and
17 further equitable relief as is proper.
18

COUNT IV

19
20
21
22
23
24

Violation of First Amendment—Damages
(Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his
personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity),
Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his
personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal
capacity), and one or more of the Doe Defendants)
136.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

25 paragraphs of this complaint, as if set forth fully herein.
26

137.

Plaintiffs use AT&T’s services to speak or receive speech anonymously and to

27 associate privately.
28
COMPLAINT

-22-

1

138.

Defendants directly performed, or aided, abetted, counseled, commanded, induced,

2 procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled,
3
4

contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of the
above-described acts of acquisition, interception, disclosure, divulgence and/or use of Plaintiffs’

5
6
7

communications, contents of communications, and records pertaining to their communications
without judicial or other lawful authorization, probable cause, and/or individualized suspicion, in

8 violation of statutory and constitutional limitations, and in excess of statutory and constitutional
9 authority.
10
11
12
13
14
15

139.

By the acts alleged herein, Defendants violated Plaintiffs’ rights to speak and receive

speech anonymously and associate privately under the First Amendment.
140.

By the acts alleged herein, Defendants’ conduct proximately caused harm to

Plaintiffs.
141.

Defendants’ conduct was done intentionally, with deliberate indifference, or with

16 reckless disregard of, Plaintiffs’ constitutional rights.
17

142.

Plaintiffs seek an award of their actual damages and punitive damages against the

18 Count IV Defendants, and for such other or further relief as is proper.
19
20
21
22
23
24
25

COUNT V
Violation of Foreign Intelligence Surveillance Act—Declaratory, Injunctive and Other
Equitable Relief
(Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal
capacities), Mukasey (in his official and personal capacities), and McConnell (in his official
and personal capacities), and one or more of the Doe Defendants)
143.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

paragraphs of this complaint, as if set forth fully herein.

26
27
28

144.

In relevant part, 50 U.S.C. § 1809 provides that:
(a) Prohibited activities—A person is guilty of an offense if he
intentionally—(1) engages in electronic surveillance under color of law
COMPLAINT

-23-

1

except as authorized by this chapter, chapter 119, 121, or 206 of Title 18 or
any express statutory authorization that is an additional exclusive means for
conducting electronic surveillance under section 1812 of this title; or (2)
discloses or uses information obtained under color of law by electronic
surveillance, knowing or having reason to know that the information was
obtained through electronic surveillance not authorized by this chapter,
chapter 119, 121, or 206 of Title 18 or any express statutory authorization
that is an additional exclusive means for conducting electronic surveillance
under section 1812 of this title.

2
3
4
5
6

145.

(f) “Electronic surveillance” means – (1) the acquisition by an electronic,
mechanical, or other surveillance device of the contents of any wire or radio
communication sent by or intended to be received by a particular, known
United States person who is in the United States, if the contents are acquired
by intentionally targeting that United States person, under circumstances in
which a person has a reasonable expectation of privacy and a warrant would
be required for law enforcement purposes; (2) the acquisition by an
electronic, mechanical, or other surveillance device of the contents of any
wire communication to or from a person in the United States, without the
consent of any party thereto, if such acquisition occurs in the United States,
but does not include the acquisition of those communications of computer
trespassers that would be permissible under section 2511(2)(i) of Title 18; (3)
the intentional acquisition by an electronic, mechanical, or other surveillance
device of the contents of any radio communication, under circumstances in
which a person has a reasonable expectation of privacy and a warrant would
be required for law enforcement purposes, and if both the sender and all
intended recipients are located within the United States; or (4) the installation
or use of an electronic, mechanical, or other surveillance device in the United
States for monitoring to acquire information, other than from a wire or radio
communication, under circumstances in which a person has a reasonable
expectation of privacy and a warrant would be required for law enforcement
purposes.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

In relevant part 50 U.S.C. § 1801 provides that:

146.

18 U.S.C. § 2511(2)(f) further provides in relevant part that “procedures in this

chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be theexclusive
means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act,

23
24
25
26
27
28

and the interception of domestic wire, oral, and electronic communications may be conducted.”
(Emphasis added.)
147.

50 U.S.C. § 1812 further provides in relevant part that:
(a) Except as provided in subsection (b), the procedures of chapters 119, 121,
and 206 of Title 18 and this chapter shall be the exclusive means by which

COMPLAINT

-24-

1

electronic surveillance and the interception of domestic wire, oral, or
electronic communications may be conducted.

2

(b) Only an express statutory authorization for electronic surveillance or the
interception of domestic wire, oral, or electronic communications, other than
as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall
constitute an additional exclusive means for the purpose of subsection (a).

3
4

5 (Emphasis added.)
6

148.

Defendants intentionally acquired, or aided, abetted, counseled, commanded,

7 induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
8
9

enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission
of such acquisition, by means of a surveillance device, the contents of one or more wire

10
11
12

communications to or from Plaintiffs and class members or other information in which Plaintiffs or
class members have a reasonable expectation of privacy, without the consent of any party thereto,

13 and such acquisition occurred in the United States.
14

149.

AT&T acted as the agent of Defendants in performing, participating in, enabling,

15 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisition
16
17
18
19

of Plaintiffs’ communications.
150.

By the acts alleged herein, Defendants acting in excess of their statutory authority

and in violation of statutory limitations have intentionally engaged in, or aided, abetted, counseled,

20 commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused,
21 participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in
22 the commission of, electronic surveillance (as defined by 50 U.S.C. § 1801(f)) under color of law,
23 not authorized by any statute, to which Plaintiffs and class members were subjected in violation of
24
25
26
27

50 U.S.C. § 1809.
151.

Additionally or in the alternative, by the acts alleged herein, Defendants acting in

excess of their statutory authority and in violation of statutory limitations have intentionally

28 disclosed or used information obtained under color of law by electronic surveillance, knowing or
COMPLAINT

-25-

1 having reason to know that the information was obtained through electronic surveillance not
2 authorized by statute, including information pertaining to Plaintiffs and class members, or aided,
3
4

abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in,

5
6
7

or conspired in the commission of such acts.
152.

Defendants did not notify Plaintiffs or class members of the above-described

8 electronic surveillance, disclosure, and/or use, nor did Plaintiffs or class members consent to such.
9

153.

Plaintiffs and class members have been and are aggrieved by Defendants’ electronic

10 surveillance, disclosure, and/or use of their wire communications.
11
12
13
14

154.

On information and belief, the Count V Defendants are now engaging in and will

continue to engage in the above-described acts resulting in the electronic surveillance, disclosure,
and/or use of Plaintiffs’ and class members’ wire communications, acting in excess of the Count V

15 Defendants’ statutory authority and in violation of statutory limitations, including 50 U.S.C. § 1809
16 and 18 U.S.C. § 2511(2)(f), and are thereby irreparably harming Plaintiffs and class members.
17 Plaintiffs and class members have no adequate remedy at law for the Count V Defendants’
18 continuing unlawful conduct, and the Count V Defendants will continue to violate Plaintiffs’ and
19
20
21
22

class members’ legal rights unless enjoined and restrained by this Court.
155.

Pursuant to Larson v. United States, 337 U.S. 682 (1949) and to 5 U.S.C. § 702,

Plaintiffs seek that this Court declare that Defendants have violated their rights and the rights of the

23 class; enjoin the Count V Defendants, their agents, successors, and assigns, and all those in active
24 concert and participation with them from violating the Plaintiffs’ and class members’ statutory
25 rights, including their rights under 50 U.S.C. §§ 1801 et seq.; and award such other and further
26

equitable relief as is proper.

27
28
COMPLAINT

-26-

1

COUNT VI

2

Violation of 50 U.S.C. § 1809, actionable under 50 U.S.C. § 1810—Damages

3

(Named Plaintiffs vs. Defendants United States, National Security Agency, Department of
Justice, Alexander (in his official and personal capacities), Hayden (in his personal
4 capacity), Cheney (in his personal capacity), Addington (in his personal capacity), Mukasey
5 (in his official and personal capacities), Gonzales (in his personal capacity), Ashcroft (in his
personal capacity), McConnell (in his official and personal capacities), and Negroponte (in
his personal capacity), and one or more of the Doe Defendants)
6
7

156.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

8 paragraphs of this complaint, as if set forth fully herein.
9

157.

10

(a) Prohibited activities—A person is guilty of an offense if he
intentionally—(1) engages in electronic surveillance under color of law
except as authorized by this chapter, chapter 119, 121, or 206 of Title 18 or
any express statutory authorization that is an additional exclusive means for
conducting electronic surveillance under section 1812 of this title; or (2)
discloses or uses information obtained under color of law by electronic
surveillance, knowing or having reason to know that the information was
obtained through electronic surveillance not authorized by this chapter,
chapter 119, 121, or 206 of Title 18 or any express statutory authorization
that is an additional exclusive means for conducting electronic surveillance
under section 1812 of this title.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

In relevant part, 50 U.S.C. § 1809 provides that:

158.

In relevant part 50 U.S.C. § 1801 provides that:
(f) “Electronic surveillance” means – (1) the acquisition by an electronic,
mechanical, or other surveillance device of the contents of any wire or radio
communication sent by or intended to be received by a particular, known
United States person who is in the United States, if the contents are acquired
by intentionally targeting that United States person, under circumstances in
which a person has a reasonable expectation of privacy and a warrant would
be required for law enforcement purposes; (2) the acquisition by an
electronic, mechanical, or other surveillance device of the contents of any
wire communication to or from a person in the United States, without the
consent of any party thereto, if such acquisition occurs in the United States,
but does not include the acquisition of those communications of computer
trespassers that would be permissible under section 2511(2)(i) of Title 18; (3)
the intentional acquisition by an electronic, mechanical, or other surveillance
device of the contents of any radio communication, under circumstances in
which a person has a reasonable expectation of privacy and a warrant would
be required for law enforcement purposes, and if both the sender and all
intended recipients are located within the United States; or (4) the installation
or use of an electronic, mechanical, or other surveillance device in the United
States for monitoring to acquire information, other than from a wire or radio
COMPLAINT

-27-

communication, under circumstances in which a person has a reasonable
expectation of privacy and a warrant would be required for law enforcement
purposes.

1
2
3
4
5
6
7

159.

18 U.S.C. § 2511(2)(f) further provides in relevant part that “procedures in this

chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be theexclusive
means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act,
and the interception of domestic wire, oral, and electronic communications may be conducted.”

8 (Emphasis added.)
9

160.

10

50 U.S.C. § 1812 further provides in relevant part that:
(a) Except as provided in subsection (b), the procedures of chapters 119, 121,
and 206 of Title 18 and this chapter shall be the exclusive means by which
electronic surveillance and the interception of domestic wire, oral, or
electronic communications may be conducted.

11
12

(b) Only an express statutory authorization for electronic surveillance or the
interception of domestic wire, oral, or electronic communications, other than
as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall
constitute an additional exclusive means for the purpose of subsection (a).

13
14

15 (Emphasis added.)
16
17

161.

Defendants intentionally acquired, or aided, abetted, counseled, commanded,

induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in,

18
19
20

enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission
of such acquisition, by means of a surveillance device, the contents of one or more wire

21 communications to or from Plaintiffs or other information in which Plaintiffs have a reasonable
22 expectation of privacy, without the consent of any party thereto, and such acquisition occurred in
23 the United States.
24
25
26
27

162.

AT&T acted as the agent of Defendants in performing, participating in, enabling,

contributing to, facilitating, or assisting in the commission of the above-described acts of acquisition
of Plaintiffs’ communications.

28
COMPLAINT

-28-

1

163.

By the acts alleged herein, Defendants have intentionally engaged in, or aided,

2 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
3
4

willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in,
or conspired in the commission of, electronic surveillance (as defined by 50 U.S.C. § 1801(f)) under

5
6
7
8

color of law, not authorized by any statute, to which Plaintiffs were subjected in violation of 50
U.S.C. § 1809.
164.

Additionally or in the alternative, by the acts alleged herein, Defendants have

9 intentionally disclosed or used information obtained under color of law by electronic surveillance,
10 knowing or having reason to know that the information was obtained through electronic surveillance
11
12
13
14

not authorized by statute, including information pertaining to Plaintiffs, or aided, abetted, counseled,
commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused,
participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in

15 the commission of such acts.
16

165.

Defendants did not notify Plaintiffs of the above-described electronic surveillance,

17 disclosure, and/or use, nor did Plaintiffs consent to such.
18
19
20
21
22
23
24
25

166.

Plaintiffs have been and are aggrieved by Defendants’ electronic surveillance,

disclosure, and/or use of their wire communications.
167.

Pursuant to 50 U.S.C. § 1810, which provides a civil action for any person who has

been subjected to an electronic surveillance or about whom information obtained by electronic
surveillance of such person has been disclosed or used in violation of 50 U.S.C. § 1809, Plaintiffs
seek from the Count VI Defendants for each Plaintiff their statutory damages or actual damages;
punitive damages as appropriate; and such other and further relief as is proper.

26
27
28
COMPLAINT

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1

COUNT VII

2

Violation of 18 U.S.C. § 2511—Declaratory, Injunctive, and Other Equitable Relief

3

(Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal
capacities), Mukasey (in his official and personal capacities), and McConnell (in his official
and personal capacities), and one or more of the Doe Defendants)

4
5
6
7
8

168.

paragraphs of this complaint, as if set forth fully herein.
169.

10
11
12
13
14
15
16
170.

19
20
21

23

18 U.S.C. § 2511 further provides that:
(3)(a) Except as provided in paragraph (b) of this subsection, a person or
entity providing an electronic communication service to the public shall not
intentionally divulge the contents of any communication (other than one to
such person or entity, or an agent thereof) while in transmission on that
service to any person or entity other than an addressee or intended recipient
of such communication or an agent of such addressee or intended recipient.

18

22

In relevant part, 18 U.S.C. § 2511 provides that:
(1) Except as otherwise specifically provided in this chapter any person who
– (a) intentionally intercepts, endeavors to intercept, or procures any other
person to intercept or endeavor to intercept, any wire, oral, or electronic
communication . . . (c) intentionally discloses, or endeavors to disclose, to
any other person the contents of any wire, oral, or electronic communication,
knowing or having reason to know that the information was obtained through
the interception of a wire, oral, or electronic communication in violation of
this subsection . . . [or](d) intentionally uses, or endeavors to use, the contents
of any wire, oral, or electronic communication, knowing or having reason to
know that the information was obtained through the interception of a wire,
oral, or electronic communication in violation of this subsection . . . shall be
punished as provided in subsection (4) or shall be subject to suit as provided
in subsection (5).

9

17

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

171.

18 U.S.C. § 2511(2)(f) further provides in relevant part that “procedures in this

chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be theexclusive

24 means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act,
25 and the interception of domestic wire, oral, and electronic communications may be conducted.”
26 (Emphasis added.)
27

172.

50 U.S.C. § 1812 further provides in relevant part that:

28
COMPLAINT

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1

(a) Except as provided in subsection (b), the procedures of chapters 119, 121,
and 206 of Title 18 and this chapter shall be the exclusive means by which
electronic surveillance and the interception of domestic wire, oral, or
electronic communications may be conducted.

2
3

(b) Only an express statutory authorization for electronic surveillance or the
interception of domestic wire, oral, or electronic communications, other than
as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall
constitute an additional exclusive means for the purpose of subsection (a).

4
5

6 (Emphasis added.)
7

173.

By the acts alleged herein, Defendants have intentionally and willfully intercepted,

8 endeavored to intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs’
9 and class members’ wire or electronic communications in violation of 18 U.S.C. § 2511(1)(a); and/or
10
11
12

174.

By the acts alleged herein, Defendants have intentionally and willfully disclosed, or

endeavored to disclose, to another person the contents of Plaintiffs’ and class members’ wire or
electronic communications, knowing or having reason to know that the information was obtained

13
14
15
16

through the interception of wire or electronic communications in violation of 18 U.S.C. § 2511(1)(c);
and/or
175.

By the acts alleged herein, Defendants have intentionally and willfully used, or

17 endeavored to use, the contents of Plaintiffs’ and class members’ wire or electronic communications,
18 while knowing or having reason to know that the information was obtained through the interception
19
20
21
22

of wire or electronic communications in violation of 18 U.S.C. § 2511(1)(d).
176.

By the acts alleged herein, Defendants have intentionally and willfully caused, or

aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated,

23 advised, participated in, contributed to, facilitated, directed, controlled, assisted in, or conspired to
24 cause AT&T’s divulgence of Plaintiffs’ and class members’ wire or electronic communications to
25 Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 2511(3)(a).
26
27

177.

Defendants have committed these acts of interception, disclosure, divulgence and/or

use of Plaintiffs’ and class members’ communications directly or by aiding, abetting, counseling,

28
COMPLAINT

-31-

1 commanding, inducing, procuring, encouraging, promoting, instigating, advising, willfully causing,
2 participating in, enabling, contributing to, facilitating, directing, controlling, assisting in, or
3
4

conspiring in their commission. In doing so, Defendants have acted in excess of their statutory
authority and in violation of statutory limitations.

5
6
7

178.

AT&T acted as the agent of Defendants in performing, participating in, enabling,

contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure,

8 divulgence and/or use of Plaintiffs’ and class members’ communications.
9

179.

Defendants did not notify Plaintiffs or class members of the above-described

10 intentional interception, disclosure, divulgence and/or use of their wire or electronic
11
12
13
14

communications, nor did Plaintiffs or class members consent to such.
180.

Plaintiffs and class members have been and are aggrieved by Defendants’ intentional

and willful interception, disclosure, divulgence and/or use of their wire or electronic

15 communications.
16

181.

On information and belief, the Count VII Defendants are now engaging in and will

17 continue to engage in the above-described acts resulting in the intentional and willful interception,
18 disclosure, divulgence and/or use of Plaintiffs’ and class members’ wire or electronic
19
20
21
22

communications, acting in excess of the Count VII Defendants’ statutory authority and in violation
of statutory limitations, including 18 U.S.C. § 2511, and are thereby irreparably harming Plaintiffs
and class members. Plaintiffs and class members have no adequate remedy at law for the Count VII

23 Defendants’ continuing unlawful conduct, and the Count VII Defendants will continue to violate
24 Plaintiffs’ and class members’ legal rights unless enjoined and restrained by this Court.
25
26
27

182.

Pursuant to 18 U.S.C. § 2520, which provides a civil action for any person whose

wire or electronic communications have been intercepted, disclosed, divulged or intentionally used
in violation of 18 U.S.C. § 2511, to Larson v. United States, 337 U.S. 682 (1949), and to 5 U.S.C.

28
COMPLAINT

-32-

1 § 702, Plaintiffs and class members seek equitable and declaratory relief against the Count VII
2 Defendants.
3
4

183.

Plaintiffs seek that this Court declare that Defendants have violated their rights and

the rights of the class; enjoin the Count VII Defendants, their agents, successors, and assigns, and

5
6
7

all those in active concert and participation with them from violating the Plaintiffs’ and class
members’ statutory rights, including their rights under 18 U.S.C. § 2511; and award such other and

8 further equitable relief as is proper.
9

COUNT VIII

10

Violation of 18 U.S.C. § 2511, actionable under 18 U.S.C. § 2520—Damages

11

(Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his
personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity),
Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his
personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal
capacity), and one or more of the Doe Defendants)

12
13
14

184.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

15
16
17

paragraphs of this complaint, as if set forth fully herein.
185.

(1) Except as otherwise specifically provided in this chapter any person who
– (a) intentionally intercepts, endeavors to intercept, or procures any other
person to intercept or endeavor to intercept, any wire, oral, or electronic
communication . . . (c) intentionally discloses, or endeavors to disclose, to
any other person the contents of any wire, oral, or electronic communication,
knowing or having reason to know that the information was obtained through
the interception of a wire, oral, or electronic communication in violation of
this subsection . . . [or](d) intentionally uses, or endeavors to use, the contents
of any wire, oral, or electronic communication, knowing or having reason to
know that the information was obtained through the interception of a wire,
oral, or electronic communication in violation of this subsection . . . shall be
punished as provided in subsection (4) or shall be subject to suit as provided
in subsection (5).

18
19
20
21
22
23
24
25
26
27
28

In relevant part, 18 U.S.C. § 2511 provides that:

186.

18 U.S.C. § 2511 further provides that:
(3)(a) Except as provided in paragraph (b) of this subsection, a person or
entity providing an electronic communication service to the public shall not
intentionally divulge the contents of any communication (other than one to
COMPLAINT

-33-

such person or entity, or an agent thereof) while in transmission on that
service to any person or entity other than an addressee or intended recipient
of such communication or an agent of such addressee or intended recipient.

1
2
3
4
5
6
7

187.

18 U.S.C. § 2511(2)(f) further provides in relevant part that “procedures in this

chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be theexclusive
means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act,
and the interception of domestic wire, oral, and electronic communications may be conducted.”

8 (Emphasis added.)
9

188.

10

50 U.S.C. § 1812 further provides in relevant part that:
(a) Except as provided in subsection (b), the procedures of chapters 119, 121,
and 206 of Title 18 and this chapter shall be the exclusive means by which
electronic surveillance and the interception of domestic wire, oral, or
electronic communications may be conducted.

11
12

(b) Only an express statutory authorization for electronic surveillance or the
interception of domestic wire, oral, or electronic communications, other than
as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall
constitute an additional exclusive means for the purpose of subsection (a).

13
14

15 (Emphasis added.)
16
17

189.

By the acts alleged herein, Defendants have intentionally and willfully intercepted,

endeavored to intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs’

18
19
20

wire or electronic communications in violation of 18 U.S.C. § 2511(1)(a); and/or
190.

By the acts alleged herein, Defendants have intentionally and willfully disclosed, or

21 endeavored to disclose, to another person the contents of Plaintiffs’ wire or electronic
22 communications, knowing or having reason to know that the information was obtained through the
23 interception of wire or electronic communications in violation of 18 U.S.C. § 2511(1)(c); and/or
24
25
26
27

191.

By the acts alleged herein, Defendants have intentionally and willfully used, or

endeavored to use, the contents of Plaintiffs’ wire or electronic communications, while knowing or
having reason to know that the information was obtained through the interception of wire or

28 electronic communications in violation of 18 U.S.C. § 2511(1)(d).
COMPLAINT

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1

192.

By the acts alleged herein, Defendants have intentionally and willfully caused, or

2 aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated,
3
4

advised, participated in, contributed to, facilitated, directed, controlled, assisted in, or conspired to
cause AT&T’s divulgence of Plaintiffs’ and class members’ wire or electronic communications to

5
6
7

Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 2511(3)(a).
193.

Defendants have committed these acts of interception, disclosure, divulgence and/or

8 use of Plaintiffs’ communications directly or by aiding, abetting, counseling, commanding, inducing,
9 procuring, encouraging, promoting, instigating, advising, willfully causing, participating in,
10 enabling, contributing to, facilitating, directing, controlling, assisting in, or conspiring in their
11
12
13
14

commission.
194.

AT&T acted as the agent of Defendants in performing, participating in, enabling,

contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure,

15 divulgence and/or use of Plaintiffs’ communications.
16

195.

Defendants did not notify Plaintiffs of the above-described intentional interception,

17 disclosure, divulgence and/or use of their wire or electronic communications, nor did Plaintiffs or
18 class members consent to such.
19
20
21
22

196.

Plaintiffs have been and are aggrieved by Defendants’ intentional and willful

interception, disclosure, divulgence and/or use of their wire or electronic communications.
197.

Pursuant to 18 U.S.C. § 2520, which provides a civil action for any person whose

23 wire or electronic communications have been intercepted, disclosed, divulged or intentionally used
24 in violation of 18 U.S.C. § 2511, Plaintiffs seek from the Count VIII Defendants for each Plaintiff
25 their statutory damages or actual damages; punitive damages as appropriate; and such other and
26

further relief as is proper.

27
28
COMPLAINT

-35-

1

COUNT IX

2

Violation of 18 U.S.C. § 2511, actionable under 18 U.S.C. § 2712—Damages Against The
United States

3
4
5
6
7

(Named Plaintiffs vs. Defendants United States, Department of Justice, and National
Security Agency)
198.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

paragraphs of this complaint, as if set forth fully herein.
199.

In relevant part, 18 U.S.C. § 2511 provides that:

8
(1) Except as otherwise specifically provided in this chapter any person who
– (a) intentionally intercepts, endeavors to intercept, or procures any other
person to intercept or endeavor to intercept, any wire, oral, or electronic
communication . . . (c) intentionally discloses, or endeavors to disclose, to
any other person the contents of any wire, oral, or electronic communication,
knowing or having reason to know that the information was obtained through
the interception of a wire, oral, or electronic communication in violation of
this subsection . . . [or](d) intentionally uses, or endeavors to use, the contents
of any wire, oral, or electronic communication, knowing or having reason to
know that the information was obtained through the interception of a wire,
oral, or electronic communication in violation of this subsection . . . shall be
punished as provided in subsection (4) or shall be subject to suit as provided
in subsection (5).

9
10
11
12
13
14
15
16
17

200.

(3)(a) Except as provided in paragraph (b) of this subsection, a person or
entity providing an electronic communication service to the public shall not
intentionally divulge the contents of any communication (other than one to
such person or entity, or an agent thereof) while in transmission on that
service to any person or entity other than an addressee or intended recipient
of such communication or an agent of such addressee or intended recipient.

18
19
20
21
22
23

18 U.S.C. § 2511 further provides that:

201.

18 U.S.C. § 2511(2)(f) further provides in relevant part that “procedures in this

chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be theexclusive

24 means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act,
25 and the interception of domestic wire, oral, and electronic communications may be conducted.”
26 (Emphasis added.)
27

202.

50 U.S.C. § 1812 further provides in relevant part that:

28
COMPLAINT

-36-

1

(a) Except as provided in subsection (b), the procedures of chapters 119, 121,
and 206 of Title 18 and this chapter shall be the exclusive means by which
electronic surveillance and the interception of domestic wire, oral, or
electronic communications may be conducted.

2
3

(b) Only an express statutory authorization for electronic surveillance or the
interception of domestic wire, oral, or electronic communications, other than
as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall
constitute an additional exclusive means for the purpose of subsection (a).

4
5

6 (Emphasis added.)
7
8
9

203.

By the acts alleged herein, Defendants have intentionally and willfully intercepted,

endeavored to intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs’
wire or electronic communications in violation of 18 U.S.C. § 2511(1)(a); and/or

10
11
12

204.

By the acts alleged herein, Defendants have intentionally and willfully disclosed, or

endeavored to disclose, to another person the contents of Plaintiffs’ wire or electronic

13 communications, knowing or having reason to know that the information was obtained through the
14 interception of wire or electronic communications in violation of 18 U.S.C. § 2511(1)(c); and/or
15
16
17
18
19
20

205.

By the acts alleged herein, Defendants have intentionally and willfully used, or

endeavored to use, the contents of Plaintiffs’ wire or electronic communications, while knowing or
having reason to know that the information was obtained through the interception of wire or
electronic communications in violation of 18 U.S.C. § 2511(1)(d).
206.

By the acts alleged herein, Defendants have intentionally and willfully caused, or

21 aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated,
22 advised, participated in, contributed to, facilitated, directed, controlled, assisted in, or conspired to
23 cause AT&T’s divulgence of Plaintiffs’ and class members’ wire or electronic communications to
24
25
26
27

Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 2511(3)(a).
207.

Defendants have committed these acts of interception, disclosure, divulgence and/or

use of Plaintiffs’ communications directly or by aiding, abetting, counseling, commanding, inducing,

28 procuring, encouraging, promoting, instigating, advising, willfully causing, participating in,
COMPLAINT

-37-

1 enabling, contributing to, facilitating, directing, controlling, assisting in, or conspiring in their
2 commission.
3
4

208.

AT&T acted as the agent of Defendants in performing, participating in, enabling,

contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure,

5
6
7

divulgence and/or use of Plaintiffs’ communications.
209.

Defendants did not notify Plaintiffs of the above-described intentional interception,

8 disclosure, divulgence and/or use of their wire or electronic communications, nor did Plaintiffs or
9 class members consent to such.
10
11
12
13
14

210.

Plaintiffs have been and are aggrieved by Defendants’ intentional and willful

interception, disclosure, divulgence and/or use of their wire or electronic communications.
211.

Title 18 U.S.C. § 2712 provides a civil action against the United States and its

agencies and departments for any person whose wire or electronic communications have been

15 intercepted, disclosed, divulged or intentionally used in willful violation of 18 U.S.C. § 2511.
16 Plaintiffs have complied fully with the claim presentment procedure of 18 U.S.C. § 2712. Pursuant
17 to 18 U.S.C. § 2712, Plaintiffs seek from the Count IX Defendants for each Plaintiff their statutory
18 damages or actual damages, and such other and further relief as is proper.
19
20
21
22
23
24
25

COUNT X
Violation of 18 U.S.C. § 2703(a) & (b)—Declaratory, Injunctive, and Other Equitable
Relief
(Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal
capacities), Mukasey (in his official and personal capacities), and McConnell (in his official
and personal capacities), and one or more of the Doe Defendants)
212.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

paragraphs of this complaint, as if set forth fully herein.

26
27

213.

In relevant part, 18 U.S.C. § 2703 provides that:

28
COMPLAINT

-38-

(a) Contents of Wire or Electronic Communications in Electronic Storage.— A
governmental entity may require the disclosure by a provider of electronic
communication service of the contents of a wire or electronic communication, that
is in electronic storage in an electronic communications system for one hundred
and eighty days or less, only pursuant to a warrant issued using the procedures
described in the Federal Rules of Criminal Procedure by a court with jurisdiction
over the offense under investigation or equivalent State warrant. A governmental
entity may require the disclosure by a provider of electronic communications
services of the contents of a wire or electronic communication that has been in
electronic storage in an electronic communications system for more than one
hundred and eighty days by the means available under subsection (b) of this
section.
(b) Contents of Wire or Electronic Communications in a Remote Computing
Service.—
(1) A governmental entity may require a provider of remote computing
service to disclose the contents of any wire or electronic communication to
which this paragraph is made applicable by paragraph (2) of this subsection—
(A) without required notice to the subscriber or customer, if the
governmental entity obtains a warrant issued using the procedures
described in the Federal Rules of Criminal Procedure by a court with
jurisdiction over the offense under investigation or equivalent State
warrant; or
(B) with prior notice from the governmental entity to the subscriber or
customer if the governmental entity—
(i) uses an administrative subpoena authorized by a Federal or State
statute or a Federal or State grand jury or trial subpoena; or
(ii) obtains a court order for such disclosure under subsection (d) of this
section;
except that delayed notice may be given pursuant to section 2705 of this
title.
(2) Paragraph (1) is applicable with respect to any wire or electronic
communication that is held or maintained on that service—
(A) on behalf of, and received by means of electronic transmission from
(or created by means of computer processing of communications received
by means of electronic transmission from), a subscriber or customer of
such remote computing service; and
(B) solely for the purpose of providing storage or computer processing
services to such subscriber or customer, if the provider is not authorized to
access the contents of any such communications for purposes of providing
any services other than storage or computer processing.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

214.

Defendants intentionally and willfully solicited and obtained from AT&T, or aided,

abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,

27 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in,
28 or conspired in soliciting and obtaining from AT&T, the disclosure to Defendants of the contents
COMPLAINT

-39-

1 of Plaintiffs’ and class members’ communications while in electronic storage by an AT&T electronic
2 communication service, and/or while carried or maintained by an AT&T remote computing service,
3
4

in violation of 18 U.S.C. §§ 2703(a) and/or (b). In doing so, Defendants have acted in excess of
their statutory authority and in violation of statutory limitations.

5
6
7

215.

AT&T acted as the agent of Defendants in performing, participating in, enabling,

contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs’

8 and class members’ communications.
9

216.

Defendants did not notify Plaintiffs or class members of the disclosure of their

10 communications, nor did Plaintiffs or class members consent to such.
11
12
13
14

217.

Plaintiffs and class members have been and are aggrieved by Defendants’ above-

described soliciting and obtaining of disclosure of the contents of communications.
218.

On information and belief, the Count X Defendants are now engaging in and will

15 continue to engage in the above-described soliciting and obtaining of disclosure of the contents of
16 class members’ communications while in electronic storage by AT&T’s electronic communication
17 service(s), and/or while carried or maintained by AT&T’s remote computing service(s), acting in
18 excess of the Count X Defendants’ statutory authority and in violation of statutory limitations,
19
20
21
22

including 18 U.S.C. § 2703(a) and (b), and are thereby irreparably harming Plaintiffs and class
members. Plaintiffs and class members have no adequate remedy at law for the Count X
Defendants’ continuing unlawful conduct, and the Count X Defendants will continue to violate

23 Plaintiffs’ and class members’ legal rights unless enjoined and restrained by this Court.
24

219.

Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieved

25 by knowing or intentional violation of 18 U.S.C. § 2703, to Larson v. United States, 337 U.S. 682
26
27

(1949), and to 5 U.S.C. § 702, Plaintiffs and class members seek equitable and declaratory relief
against the Count X Defendants.

28
COMPLAINT

-40-

1

220.

Plaintiffs seek that this Court declare that Defendants have violated their rights and

2 the rights of the class; enjoin the Count X Defendants, their agents, successors, and assigns, and all
3
4

those in active concert and participation with them from violating the Plaintiffs’ and class members’
statutory rights, including their rights under 18 U.S.C. § 2703; and award such other and further

5
6

equitable relief as is proper.
COUNT XI

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Violation of 18 U.S.C. § 2703(a) & (b), actionable under 18 U.S.C. § 2707—Damages
(Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his
personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity),
Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his
personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal
capacity), and one or more of the Doe Defendants)
221.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

paragraphs of this complaint, as if set forth fully herein.
222.

In relevant part, 18 U.S.C. § 2703 provides that:
(a) Contents of Wire or Electronic Communications in Electronic Storage.— A
governmental entity may require the disclosure by a provider of electronic
communication service of the contents of a wire or electronic communication, that
is in electronic storage in an electronic communications system for one hundred
and eighty days or less, only pursuant to a warrant issued using the procedures
described in the Federal Rules of Criminal Procedure by a court with jurisdiction
over the offense under investigation or equivalent State warrant. A governmental
entity may require the disclosure by a provider of electronic communications
services of the contents of a wire or electronic communication that has been in
electronic storage in an electronic communications system for more than one
hundred and eighty days by the means available under subsection (b) of this
section.
(b) Contents of Wire or Electronic Communications in a Remote Computing
Service.—
(1) A governmental entity may require a provider of remote computing
service to disclose the contents of any wire or electronic communication to
which this paragraph is made applicable by paragraph (2) of this subsection—
(A) without required notice to the subscriber or customer, if the
governmental entity obtains a warrant issued using the procedures
described in the Federal Rules of Criminal Procedure by a court with
jurisdiction over the offense under investigation or equivalent State
warrant; or

COMPLAINT

-41-

(B) with prior notice from the governmental entity to the subscriber or
customer if the governmental entity—
(i) uses an administrative subpoena authorized by a Federal or State
statute or a Federal or State grand jury or trial subpoena; or
(ii) obtains a court order for such disclosure under subsection (d) of
this section;
except that delayed notice may be given pursuant to section 2705 of this
title.
(2) Paragraph (1) is applicable with respect to any wire or electronic
communication that is held or maintained on that service—
(A) on behalf of, and received by means of electronic transmission from
(or created by means of computer processing of communications received
by means of electronic transmission from), a subscriber or customer of
such remote computing service; and
(B) solely for the purpose of providing storage or computer processing
services to such subscriber or customer, if the provider is not authorized to
access the contents of any such communications for purposes of providing
any services other than storage or computer processing.

1
2
3
4
5
6
7
8
9
10
11
12

223.

Defendants intentionally and willfully solicited and obtained from AT&T, or aided,

13 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
14 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in,
15
16
17
18

or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of the contents
of Plaintiffs’ communications while in electronic storage by an AT&T electronic communication
service, and/or while carried or maintained by an AT&T remote computing service, in violation of

19 18 U.S.C. §§ 2703(a) and/or (b).
20

224.

AT&T acted as the agent of Defendants in performing, participating in, enabling,

21 contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs’
22
23

communications.
225.

Defendants did not notify Plaintiffs of the disclosure of their communications, nor

24
25
26

did Plaintiffs consent to such.
226.

Plaintiffs have been and are aggrieved by Defendants’ above-described soliciting and

27 obtaining of disclosure of the contents of communications.
28
COMPLAINT

-42-

1

227.

Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieved

2 by knowing or intentional violation of 18 U.S.C. § 2703, Plaintiffs seek from the Count XI
3
4

Defendants for each Plaintiff their statutory damages or actual damages; punitive damages as
appropriate; and such other and further relief as may be proper.

5
COUNT XII

6
7
8
9
10

Violation of 18 U.S.C. § 2703(a) & (b), actionable under 18 U.S.C. § 2712—Damages
Against The United States
(Named Plaintiffs vs. Defendants United States, Department of Justice, and National
Security Agency)
228.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

11 paragraphs of this complaint, as if set forth fully herein.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

229.

In relevant part, 18 U.S.C. § 2703 provides that:
(a) Contents of Wire or Electronic Communications in Electronic Storage.— A
governmental entity may require the disclosure by a provider of electronic
communication service of the contents of a wire or electronic communication, that
is in electronic storage in an electronic communications system for one hundred
and eighty days or less, only pursuant to a warrant issued using the procedures
described in the Federal Rules of Criminal Procedure by a court with jurisdiction
over the offense under investigation or equivalent State warrant. A governmental
entity may require the disclosure by a provider of electronic communications
services of the contents of a wire or electronic communication that has been in
electronic storage in an electronic communications system for more than one
hundred and eighty days by the means available under subsection (b) of this
section.
(b) Contents of Wire or Electronic Communications in a Remote Computing
Service.—
(1) A governmental entity may require a provider of remote computing
service to disclose the contents of any wire or electronic communication to
which this paragraph is made applicable by paragraph (2) of this subsection—
(A) without required notice to the subscriber or customer, if the
governmental entity obtains a warrant issued using the procedures
described in the Federal Rules of Criminal Procedure by a court with
jurisdiction over the offense under investigation or equivalent State
warrant; or
(B) with prior notice from the governmental entity to the subscriber or
customer if the governmental entity—
(i) uses an administrative subpoena authorized by a Federal or State
statute or a Federal or State grand jury or trial subpoena; or

COMPLAINT

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(ii) obtains a court order for such disclosure under subsection (d) of
this section;
except that delayed notice may be given pursuant to section 2705 of this
title.
(2) Paragraph (1) is applicable with respect to any wire or electronic
communication that is held or maintained on that service—
(A) on behalf of, and received by means of electronic transmission from
(or created by means of computer processing of communications received
by means of electronic transmission from), a subscriber or customer of
such remote computing service; and
(B) solely for the purpose of providing storage or computer processing
services to such subscriber or customer, if the provider is not authorized to
access the contents of any such communications for purposes of providing
any services other than storage or computer processing.

1
2
3
4
5
6
7
8
9
10
11
12

230.

Defendants intentionally and willfully solicited and obtained from AT&T, or aided,

abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in,

13
14
15

or conspired in the soliciting and obtaining from AT&T the disclosure to the NSA of the contents
of Plaintiffs’ communications while in electronic storage by an AT&T electronic communication

16 service, and/or while carried or maintained by an AT&T remote computing service, in violation of
17 18 U.S.C. §§ 2703(a) and/or (b).
18
19
20
21
22

231.

AT&T acted as the agent of Defendants in performing, participating in, enabling,

contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs’
communications.
232.

Defendants did not notify Plaintiffs of the disclosure of their communications, nor

23 did Plaintiffs consent to such.
24

233.

Plaintiffs have been and are aggrieved by Defendants’ above-described soliciting and

25 obtaining of disclosure of the contents of communications.
26
27

234.

Title 18 U.S.C. § 2712 provides a civil action against the United States and its

agencies and departments for any person whose communications have been disclosed in willful

28
COMPLAINT

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1 violation of 18 U.S.C. § 2703. Plaintiffs have complied fully with the claim presentment procedure
2 of 18 U.S.C. § 2712. Pursuant to 18 U.S.C. § 2712, Plaintiffs seek from the Count XII Defendants
3
4

for each Plaintiff their statutory damages or actual damages, and such other and further relief as is
proper.

5
COUNT XIII

6
7
8
9
10

Violation of 18 U.S.C. § 2703(c)—Declaratory, Injunctive, and Other Equitable Relief
(Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal
capacities), Mukasey (in his official and personal capacities), and McConnell (in his official
and personal capacities), and one or more of the Doe Defendants)
235.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

11 paragraphs of this complaint, as if set forth fully herein.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

236.

In relevant part, 18 U.S.C. § 2703(c) provides that:
(c) Records Concerning Electronic Communication Service or Remote
Computing Service.—
(1) A governmental entity may require a provider of electronic
communication service or remote computing service to disclose a record or
other information pertaining to a subscriber to or customer of such service
(not including the contents of communications) only when the governmental
entity—
(A) obtains a warrant issued using the procedures described in the Federal
Rules of Criminal Procedure by a court with jurisdiction over the offense
under investigation or equivalent State warrant;
(B) obtains a court order for such disclosure under subsection (d) of this
section;
(C) has the consent of the subscriber or customer to such disclosure;
(D) submits a formal written request relevant to a law enforcement
investigation concerning telemarketing fraud for the name, address, and
place of business of a subscriber or customer of such provider, which
subscriber or customer is engaged in telemarketing (as such term is
defined in section 2325 of this title); or
(E) seeks information under paragraph (2).
(2) A provider of electronic communication service or remote computing
service shall disclose to a governmental entity the—
(A) name;
(B) address;
(C) local and long distance telephone connection records, or records of
session times and durations;
(D) length of service (including start date) and types of service utilized;

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(E) telephone or instrument number or other subscriber number or
identity, including any temporarily assigned network address; and
(F) means and source of payment for such service (including any credit
card or bank account number),
of a subscriber to or customer of such service when the governmental entity
uses an administrative subpoena authorized by a Federal or State statute or a
Federal or State grand jury or trial subpoena or any means available under
paragraph (1).
(3) A governmental entity receiving records or information under this
subsection is not required to provide notice to a subscriber or customer.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

237.

Defendants intentionally and willfully solicited and obtained from AT&T, or aided,

abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in,
or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of records or
other information pertaining to Plaintiffs’ and class members’ use of electronic communication
services and/or remote computing services offered to the public by AT&T, in violation of 18 U.S.C.
§ 2703(c). In doing so, Defendants have acted in excess of their statutory authority and in violation
of statutory limitations.
238.

AT&T acted as the agent of Defendants in performing, participating in, enabling,

contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs’
and class members’ records or other information.
239.

Defendants did not notify Plaintiffs or class members of the disclosure of these

20 records or other information pertaining to them and their use of AT&T services, nor did Plaintiffs
21 or class members consent to such.
22
23
24

240.

Plaintiffs and class members have been and are aggrieved by Defendants’ above-

described acts of soliciting and obtaining disclosure by AT&T of records or other information
pertaining to Plaintiffs and class members.

25
26
27

241.

On information and belief, the Count XIII Defendants are now engaging in and will

continue to engage in the above-described soliciting and obtaining disclosure by AT&T of records

28 or other information pertaining to Plaintiffs and class members, acting in excess of the Count XIII
COMPLAINT

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1 Defendants’ statutory authority and in violation of statutory limitations, including 18 U.S.C. §
2 2703(c), and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class
3
4

members have no adequate remedy at law for the Count XIII Defendants’ continuing unlawful
conduct, and the Count XIII Defendants will continue to violate Plaintiffs’ and class members’ legal

5
6
7

rights unless enjoined and restrained by this Court.
242.

Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieved

8 by knowing or intentional violation of 18 U.S.C. § 2703, to Larson v. United States, 337 U.S. 682
9 (1949), and to 5 U.S.C. § 702, Plaintiffs and class members seek equitable and declaratory relief
10 against the Count XIII Defendants.
11
12
13
14

243.

Plaintiffs seek that the Court declare that Defendants have violated their rights and

the rights of the class; enjoin the Count XIII Defendants, their agents, successors, and assigns, and
all those in active concert and participation with them from violating the Plaintiffs’ and class

15 members’ statutory rights, including their rights under 18 U.S.C. § 2703; and award such other and
16 further equitable relief as is proper.
17

COUNT XIV

18

Violation of 18 U.S.C. § 2703(c), actionable under 18 U.S.C. § 2707—Damages

19

(Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his
personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity),
Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his
personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal
capacity), and one or more of the Doe Defendants)

20
21
22
23
24
25
26
27
28

244.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

paragraphs of this complaint, as if set forth fully herein.
245.

In relevant part, 18 U.S.C. § 2703(c) provides that:
(c) Records Concerning Electronic Communication Service or Remote
Computing Service.—
(1) A governmental entity may require a provider of electronic
communication service or remote computing service to disclose a record or

COMPLAINT

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other information pertaining to a subscriber to or customer of such service
(not including the contents of communications) only when the governmental
entity—
(A) obtains a warrant issued using the procedures described in the Federal
Rules of Criminal Procedure by a court with jurisdiction over the offense
under investigation or equivalent State warrant;
(B) obtains a court order for such disclosure under subsection (d) of this
section;
(C) has the consent of the subscriber or customer to such disclosure;
(D) submits a formal written request relevant to a law enforcement
investigation concerning telemarketing fraud for the name, address, and
place of business of a subscriber or customer of such provider, which
subscriber or customer is engaged in telemarketing (as such term is
defined in section 2325 of this title); or
(E) seeks information under paragraph (2).
(2) A provider of electronic communication service or remote computing
service shall disclose to a governmental entity the—
(A) name;
(B) address;
(C) local and long distance telephone connection records, or records of
session times and durations;
(D) length of service (including start date) and types of service utilized;
(E) telephone or instrument number or other subscriber number or
identity, including any temporarily assigned network address; and
(F) means and source of payment for such service (including any credit
card or bank account number),
of a subscriber to or customer of such service when the governmental entity
uses an administrative subpoena authorized by a Federal or State statute or a
Federal or State grand jury or trial subpoena or any means available under
paragraph (1).
(3) A governmental entity receiving records or information under this
subsection is not required to provide notice to a subscriber or customer.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

246.

Defendants intentionally and willfully solicited and obtained from AT&T, or aided,

21 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
22 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in,
23 or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of records or
24 other information pertaining to Plaintiffs’ use of electronic communication services and/or remote
25 computing services offered to the public by AT&T, in violation of 18 U.S.C. § 2703(c).
26
27
28
COMPLAINT

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1

247.

AT&T acted as the agent of Defendants in performing, participating in, enabling,

2 contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs’
3
4

records or other information.
248.

Defendants did not notify Plaintiffs of the disclosure of these records or other

5
6
7

information pertaining to them and their use of AT&T services, nor did Plaintiffs consent to such.
249.

Plaintiffs have been and are aggrieved by Defendants’ above-described acts of

8 soliciting and obtaining disclosure by AT&T of records or other information pertaining to Plaintiffs.
9

250.

Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieved

10 by knowing or intentional violation of 18 U.S.C. § 2703, Plaintiffs seek from the Count XIV
11
12
13

Defendants for each Plaintiff their statutory damages or actual damages; punitive damages as
appropriate; and such other and further relief as may be proper.
COUNT XV

14
15
16
17
18

Violation of 18 U.S.C. § 2703(c), actionable under 18 U.S.C. § 2712—Damages Against The
United States
(Named Plaintiffs vs. Defendants United States, Department of Justice, and National
Security Agency)
251.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

19 paragraphs of this complaint, as if set forth fully herein.
20
21
22
23
24
25
26
27
28

252.

In relevant part, 18 U.S.C. § 2703(c) provides that:
(c) Records Concerning Electronic Communication Service or Remote
Computing Service.—
(1) A governmental entity may require a provider of electronic
communication service or remote computing service to disclose a record or
other information pertaining to a subscriber to or customer of such service
(not including the contents of communications) only when the governmental
entity—
(A) obtains a warrant issued using the procedures described in the Federal
Rules of Criminal Procedure by a court with jurisdiction over the offense
under investigation or equivalent State warrant;
(B) obtains a court order for such disclosure under subsection (d) of this
section;

COMPLAINT

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(C) has the consent of the subscriber or customer to such disclosure;
(D) submits a formal written request relevant to a law enforcement
investigation concerning telemarketing fraud for the name, address, and
place of business of a subscriber or customer of such provider, which
subscriber or customer is engaged in telemarketing (as such term is
defined in section 2325 of this title); or
(E) seeks information under paragraph (2).
(2) A provider of electronic communication service or remote computing
service shall disclose to a governmental entity the—
(A) name;
(B) address;
(C) local and long distance telephone connection records, or records of
session times and durations;
(D) length of service (including start date) and types of service utilized;
(E) telephone or instrument number or other subscriber number or
identity, including any temporarily assigned network address; and
(F) means and source of payment for such service (including any credit
card or bank account number),
of a subscriber to or customer of such service when the governmental entity
uses an administrative subpoena authorized by a Federal or State statute or a
Federal or State grand jury or trial subpoena or any means available under
paragraph (1).
(3) A governmental entity receiving records or information under this
subsection is not required to provide notice to a subscriber or customer.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

253.

Defendants intentionally and willfully solicited and obtained from AT&T, or aided,

abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in,
or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of records or
other information pertaining to Plaintiffs’ use of electronic communication services and/or remote
computing services offered to the public by AT&T, in violation of 18 U.S.C. § 2703(c).
254.

AT&T acted as the agent of Defendants in performing, participating in, enabling,

contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs’

23
24
25

records or other information.
255.

Defendants did not notify Plaintiffs of the disclosure of these records or other

26 information pertaining to them and their use of AT&T services, nor did Plaintiffs consent to such.
27
28
COMPLAINT

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1

256.

Plaintiffs have been and are aggrieved by Defendants’ above-described acts of

2 soliciting and obtaining disclosure by AT&T of records or other information pertaining to Plaintiffs.
3
4

257.

Title 18 U.S.C. § 2712 provides a civil action against the United States and its

agencies and departments for any person aggrieved by willful violation of 18 U.S.C. § 2703.

5
6
7

Plaintiffs have complied fully with the claim presentment procedure of 18 U.S.C. § 2712. Pursuant
to 18 U.S.C. § 2712, Plaintiffs seek from the Count XV Defendants for each Plaintiff their statutory

8 damages or actual damages and such other and further relief as is proper.
9
10
11

COUNT XVI
Violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. - Declaratory,
Injunctive, and Other Equitable Relief

(Named Plaintiffs and Class vs. Defendants United States, Department of Justice, National
Security Agency, Alexander (in his official and personal capacities), Mukasey (in his official
and personal capacities), and McConnell (in his official and personal capacities), and one
13
or more of the Doe Defendants)
14
258. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
15
paragraphs of this complaint, as if set forth fully herein.
16
12

17

259.

The Program violates the Administrative Procedures Act, 5 U.S.C. § 701 et seq.,

18 because Defendants’ actions under the Program exceed statutory authority and limitations imposed
19 by Congress through FISA, and through Chapters 119, 121 and 206 of Title 18 of the U.S. Code (the
20
21
22
23

Wiretap Act, the Stored Communications Act, and the Pen Register Statute, respectively) and in
violation of statutory rights under those laws
; are not otherwise in accordance with law; are contrary
to constitutional rights, including the Fourth Amendment, First Amendment, and separation of

24 powers principles; and are taken without observance of procedures required by law.
25

260.

Plaintiffs and class members are aggrieved by these violations because, as described

26 previously in this Complaint, Defendants’ actions under the Program has resulted in the interception,
27 acquisition, disclosure, divulgence and/or use of the contents of their wire and electronic
28
COMPLAINT

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1 communications, communications records, and other information in violation of their constitutional
2 and statutory rights.
3
4

261.

Plaintiffs seek nonmonetary relief against the Count XVI Defendants, including a

declaration that Defendants have violated their rights and the rights of the class; an injunction

5
6
7

enjoining the Count XVI Defendants, their agents, successors, and assigns, and all those in active
concert and participation with them from violating the Plaintiffs’ and class members’ rights; and

8 such other and further nonmonetary relief as is proper.
9

COUNT XVII

10

Violation of Separation of Powers - Declaratory, Injunctive, and Other Equitable Relief

11

(Named Plaintiffs and Class vs. Defendants United States, Department of Justice, National
Security Agency, Bush (in his official and personal capacities), Alexander (in his official
and personal capacities), Mukasey (in his official and personal capacities), and McConnell
(in his official and personal capacities), and one or more of the Doe Defendants)

12
13
14

262.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding

15 paragraphs of this complaint, as if set forth fully herein.
16
17
18
19
20
21
22
23

263.

The Program violates the principles of separation of powers because it was

authorized by the Executive in excess of the Executive’s authority under Article II of the United
States Constitution, in excess of statutory authority granted the Executive under FISA and under
Chapters 119, 121 and 206 of Title 18 of the U.S. Code (the Wiretap Act, the Stored
Communications Act, and the Pen Register Statute, respectively) and exceeds the statutory limits
imposed on the Executive by Congress.
264.

Plaintiffs and class members are aggrieved by these violations because, as described

24 previously in this Complaint, Defendants’ actions under the Program has resulted in the interception,
25 acquisition, disclosure, divulgence and/or use of the contents of their wire and electronic
26 communications, communications records, and other information in violation of their constitutional
27

and statutory rights.

28
COMPLAINT

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1

265.

Plaintiffs seek nonmonetary relief against the Count XVII Defendants, including a

2 declaration that Defendants have violated their rights and the rights of the class; an injunction
3
4

enjoining the Count XVII Defendants, their agents, successors, and assigns, and all those in active
concert and participation with them from violating the Plaintiffs’ and class members’ rights; and for

5
6

such other and further nonmonetary relief as is proper.
PRAYER FOR RELIEF

7
8

WHEREFORE, Plaintiffs respectfully request that the Court:

9

A.

Declare that the Program as alleged herein violates without limitation Plaintiffs’ and

10 class members’ rights under the First and Fourth Amendments to the Constitution; their statutory
11 rights, including their rights under 18 U.S.C. § 2511, 18 U.S.C. § 2703, 50 US.C. § 1809, and the
12 Administrative Procedures Act; and their rights under the constitutional principle of Separation of
13 Powers.
14

B.

Award Plaintiffs and the class equitable relief, including without limitation, a

15 preliminary and permanent injunction pursuant to the First and Fourth Amendments to the United
16 States Constitution prohibiting Defendants’ continued use of the Program, and a preliminary and
17 permanent injunction pursuant to the Fourth Amendment requiring Defendants to provide to
18 Plaintiffs and the class an inventory of their communications, records, or other information that was
19 seized in violation of the Fourth Amendment, and further requiring the destruction of all copies of
20 those communications, records, or other information within the possession, custody, or control of
21 Defendants.
C.
22

Award Plaintiffs their statutory, actual, and punitive damages to the extent permitted

23 by law and according to proof.
D.
Award to Plaintiffs reasonable attorneys’ fees and other costs of suit to the extent
24
25 permitted by law.
G.
Grant such other and further relief as the Court deems just and proper.
26
27

//

28

//

COMPLAINT

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