ELECTRONIC FRONTIER FOUNDATION
CINDY COHN (145997)
LEE
TIEN (148216)
KURT
OPSAHL (191303)
KEVIN
S. BANKSTON (217026)
CORYNNE
MCSHERRY (221504)
JAMES
S. TYRE (083117)
454
Shotwell Street
San
Francisco, CA 94110
Telephone:
415/436-9333
415/436-9993
(fax)
TRABER
& VOORHEES
BERT
VOORHEES (137623)
THERESA
M. TRABER (116305)
128
North Fair Oaks Avenue, Suite 204
Pasadena,
CA 91103
Telephone:
626/585-9611
626/
577-7079 (fax)
Attorneys
for Plaintiffs
[Additional
counsel appear on signature page.]
UNITED
STATES DISTRICT COURT
NORTHERN
DISTRICT OF CALIFORNIA
TASH
HEPTING, GREGORY HICKS and
ERIK
KNUTZEN on Behalf of Themselves
and
All Others Similarly Situated,
Plaintiffs,
vs.
AT&T
CORP., AT&T INC. and DOES 1-20,
inclusive,
Defendants.
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No.
CLASS
ACTION
COMPLAINT
FOR DAMAGES,
DECLARATORY
AND INJUNCTIVE
RELIEF
DEMAND
FOR JURY TRIAL
1.
Plaintiffs,
by and through their attorneys, bring this action on behalf of
themselves
and
all others similarly situated, and allege upon personal knowledge and
belief as to their own acts,
and
upon information and 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 investigation and discovery, as follows:
PRELIMINARY
STATEMENT
2.
This
case challenges the legality of Defendants’ participation in a secret
and illegal
government
program to intercept and analyze vast quantities of Americans’
telephone and Internet
communications,
surveillance done without the authorization of a court and in violation
of federal
electronic
surveillance and telecommunications statutes, as well as the First and
Fourth Amendments
to
the United States Constitution.
3.
In
December of 2005, the press revealed that the government had instituted
a
comprehensive
and warrantless electronic surveillance program that violates the
Constitution and
ignores
the careful safeguards set forth by Congress. This surveillance
program, purportedly
authorized
by the President at least as early as 2001 and primarily undertaken by
the National
Security
Agency (“NSA”) without judicial review or approval, intercepts and
analyzes the
communications
of millions of Americans. Prior to this revelation, Plaintiffs and
class members had
no
reasonable opportunity to discover the existence of the surveillance
program or the violations of
law
alleged herein.
4.
But
the government did not act—and is not acting—alone. The government
requires
the
collaboration of major telecommunications companies to implement its
unprecedented and illegal
domestic
spying program.
5.
Defendants
AT&T Corp. and AT&T Inc. maintain domestic telecommunications
facilities
over which millions of Americans’ telephone and Internet communications
pass every day.
They
also manage some of the largest databases in the world containing
records of most or all
communications
made through their myriad telecommunications services.
6.
On
information and belief, AT&T Corp. has opened its key
telecommunications
facilities
and databases to direct access by the NSA and/or other government
agencies, intercepting
and
disclosing to the government the contents of its customers’
communications as well as detailed
communications
records about millions of its customers, including Plaintiffs and class
members.
7.
This
collaboration began before AT&T Corp. was acquired by AT&T Inc.
(formerly
known
as SBC Communications, Inc.). On information and belief, Defendants
continue to assist the
government
in its secret surveillance of millions of ordinary Americans.
8.
Plaintiffs
are suing to stop this illegal conduct and hold Defendants responsible
for
their
illegal collaboration in the surveillance program, which has violated
the law and damaged the
fundamental
freedoms of the American public.
JURISDICTION
AND VENUE
9.
This
court has subject matter jurisdiction over the federal claims pursuant
to Article
III
of the United States Constitution and 28 U.S.C. §1331, 28 U.S.C. §2201,
50 U.S.C. §1810,
18
U.S.C. §§2520 and 2707, and 47 U.S.C. §605, and over the state claims
pursuant to 28 U.S.C.
§§1332
and 1367.
10.
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
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.
11.
Plaintiffs
are informed, believe and thereon allege that, based on the places of
business
of the Defendants identified above and/or on the national reach of
Defendants, a substantial
part
of the events giving rise to the claims herein alleged occurred in this
district and that Defendants
and/or
agents of Defendants may be found in this district.
12.
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.
PARTIES
13.
Plaintiff
Tash Hepting, a customer service manager, is an individual residing in
San
Jose,
California. Hepting has been a subscriber and user of AT&T Corp.’s
residential long distance
telephone
service since at least June 2004, and has used it to call
internationally as well as
domestically.
14.
Plaintiff
Gregory Hicks is an individual residing in San Jose, California. Hicks,
a
retired
Naval Officer and systems engineer, has been a subscriber and user of
AT&T Corp.’s
residential
long distance telephone service since February 1995. He has regularly
used this service
for
calls to foreign countries including Korea, Japan and Spain.
15.
Plaintiff
Erik Knutzen is an individual residing in Los Angeles, California.
Knutzen, a
photographer
and land use researcher, was a subscriber and user of AT&T Corp.’s
Worldnet dial-up
Internet
service from at least October 2003 until May 2005. He used this service
to send and receive
personal
and professional emails, with both domestic and international
correspondents, and for web
browsing,
including visits to web sites hosted outside of the United States.
16.
Defendant
AT&T Corp. is a New York corporation with its principal place of
business
in the State of New Jersey.
17.
Defendant
AT&T Inc. is a Delaware corporation with its principal place of
business
in
San Antonio, Texas.
18.
Both
AT&T Corp. and AT&T Inc. are telecommunications carriers, and
both offer
electronic
communications service(s) to the public and remote computing
service(s).
19.
On
or around November 18, 2005, SBC Communications Inc. (SBC) acquired
AT&T
Corp.
At closing, a wholly-owned subsidiary of SBC merged with and into
AT&T Corp., and thus
AT&T
Corp. became a wholly-owned subsidiary of SBC. SBC adopted AT&T,
Inc. as its name
following
completion of its acquisition of AT&T Corp.
20.
Prior
to the acquisition and merger, AT&T Corp. and SBC both had a
significant
business
presence in California for many years. The new AT&T Inc. and its
subsidiary, AT&T
Corp.,
continue to have a significant business presence in California.
21.
AT&T
Corp. operates through two principal divisions, its business services
division
and
its consumer services division. AT&T Business Services provides a
variety of communications
services
to domestic and multi-national businesses and government agencies.
AT&T Consumer
Services
provides a variety of communications services to mass-market customers.
These services
include
traditional long distance voice services such as domestic and
international dial and toll-free
services,
as well as operator-assisted services. In addition, AT&T Consumer
Services provides
residential
dial-up and DSL Internet services through its “Worldnet” service, as
well as offering all-
distance
services, which bundle AT&T’s facilities-based long distance
services with local services.
22.
AT&T
Corp.’s communications facilities constitute one of the world’s most
advanced
communications
networks, spanning more than 50 countries.
23.
By
the end of 2004, on an average business day, AT&T Corp.’s network
handled over
300
million voice calls as well as over 4,000 terabytes (million megabytes)
of data, including traffic
from
AT&T Business Services and AT&T Consumer Services,
approximately 200 times the amount
of
data contained in all the books in the Library of Congress.
24.
By
the end of 2004, AT&T Corp. provided long distance service
(including both
stand-alone
and bundled) to approximately 24.6 million residential customers.
Before the
acquisition,
AT&T Corp.’s bundled local and long distance service was available
in 46 states,
covering
more than 73 million households.
25.
By
the end of 2004, AT&T Corp. provided its residential Worldnet
Internet services
to
approximately 1.2 million customers. Even prior to its being acquired
by SBC, AT&T Corp. was
the
second largest Internet provider in the country, primarily serving
businesses in addition to its
Worldnet
customers.
26.
The
new AT&T Inc. constitutes the largest telecommunications provider
in the
United
States and one of the largest in the world. AT&T Inc. is the
largest U.S. provider of both
local
and long distance services, serving millions of customers nationwide.
AT&T Inc.’s
international
voice service carries more than 18 billion minutes per year, reaching
approximately 240
countries,
linking approximately 400 carriers and offering remote access in
approximately 149
countries
around the globe.
27.
AT&T
Inc. is the country’s largest provider of broadband DSL Internet
service, and
its
backbone Internet network carries approximately 4,600 terabytes of data
on an average business
day
to nearly every continent and country.
28.
According
to the Description of the Transaction, Public Interest Showing, and
Related
Demonstrations filed by AT&T Corp. and SBC with the Federal
Communications
Commission
in anticipation of the merger:
AT&T
is a significant provider of telecommunications and information
technology
services
to the federal government. AT&T provides network services, systems
integration
and engineering, and software development services to a broad range of
government
agencies, including those involved in national defense, intelligence,
and
homeland
security. AT&T’s federal customers include the White House, the
State
Department,
the Department of Homeland Security, the Department of Defense, the
Department
of Justice, and most branches of the armed forces. AT&T’s support
of
the
intelligence and defense communities includes the performance of
various
classified
contracts. To undertake this work, AT&T employs thousands of
individuals
who hold government security clearances, and it maintains special
secure
facilities
for the performance of classified work and the safeguarding of
classified
information.
In addition to providing services to critical government agencies
responsible
for national security, both AT&T and SBC support the national
security
infrastructure
through their participation in all of the key fora for supporting U.S.
government
national security objectives.
29.
On
information and belief, this characterization was substantially correct
when filed,
and
is substantially correct as to the current AT&T Corp. and AT&T
Inc.
30.
Plaintiffs
are currently unaware of the true names and capacities of Defendants
sued
herein
as Does 1-20, and therefore sue these Defendants by using fictitious
names. Plaintiffs will
amend
this complaint to allege their true names and capacities when
ascertained. Upon information
and
belief each fictitiously named Defendant is responsible in some manner
for the occurrences
herein
alleged and the injuries to Plaintiffs and class members herein alleged
were proximately
caused
in relation to the conduct of Does 1-20 as well as the named
Defendants. Hereafter,
Defendants
AT&T Corp. and Does 1-8 are referred to collectively as “AT&T
Corp.,” and
Defendants
AT&T Inc. and Does 9-15 are referred to collectively as “AT&T
Inc.”
FACTUAL
ALLEGATIONS RELATED TO ALL COUNTS
THE
NSA SURVEILLANCE PROGRAM
31.
The
NSA began a classified surveillance program (“the Program”) shortly
after
September
11, 2001 to intercept the telephone and Internet communications of
people inside the
United
States without judicial authorization, a program that continues to this
day.
32.
The
President has stated that he authorized the Program in 2001, that he
has
reauthorized
the Program more than 30 times since its inception, and that he intends
to continue
doing
so.
33.
The
Attorney General has admitted that, absent additional authority from
Congress,
the
electronic surveillance conducted by the Program requires a court order
under the Foreign
Intelligence
Surveillance Act of 1978 (50 U.S.C. § 1801 et seq.).
34.
The
President and other government officials have admitted that the NSA
does not
seek
judicial review of the Program’s interceptions before or after the
surveillance, whether by the
Foreign
Intelligence Surveillance Court or any other court.
35.
Neither
the President nor the Attorney General personally approves the
individual
targets
of the Program’s electronic surveillance before communications are
intercepted.
36.
Instead,
NSA operational personnel identify particular persons, telephone
numbers or
Internet
addresses as potential surveillance targets, and NSA shift supervisors
approve those targets.
37.
On
information and belief, besides actually eavesdropping on specific
conversations,
NSA
personnel have intercepted large volumes of domestic and international
telephone and Internet
traffic
in search of patterns of interest, in what has been described in press
reports as a large “data-
mining”
program.
38.
On
information and belief, as part of this data-mining program, the NSA
intercepts
millions
of communications made or received by people inside the United States,
and uses powerful
computers
to scan their contents for particular names, numbers, words or phrases.
39.
Additionally,
on information and belief, the NSA collects and analyzes a vast amount
of
communications traffic data to identify persons whose communications
patterns the government
believes
may link them, even if indirectly, to investigatory targets.
40.
On
information and belief, the NSA has accomplished its massive
surveillance
operation
by arranging with some of the nation’s largest telecommunications
companies, including
Defendants,
to gain direct access to the telephone and Internet communications
transmitted via those
companies’
domestic telecommunications facilities, and to those companies’ records
pertaining to
the
communications they transmit.
AT&T
PROVIDES THE GOVERNMENT WITH DIRECT
ACCESS
TO ITS DOMESTIC TELECOMMUNICATIONS NETWORK
41.
On
information and belief, AT&T Corp. has provided and continues to
provide the
government
with direct access to all or a substantial number of the communications
transmitted
through
its key domestic telecommunications facilities, including direct access
to streams of
domestic,
international and foreign telephone and Internet communications.
42.
On
information and belief, AT&T Corp. has installed and used, or
assisted
government
agents in installing or using, interception devices and pen registers
and/or trap and trace
devices
on or in a number of its key telecommunications facilities for use in
the Program.
43.
On
information and belief, the interception devices acquire the content of
all or a
substantial
number of the wire or electronic communications transferred through the
AT&T Corp.
facilities
where they have been installed.
44.
On
information and belief, the pen registers and/or trap and trace devices
capture,
record
or decode the dialing, routing, addressing and/or signaling information
(“DRAS information”)
for
all or a substantial number of the wire or electronic communications
transferred through the
AT&T
Corp. facilities where they have been installed.
45.
On
information and belief, using these devices, government agents have
acquired and
are
acquiring wire or electronic communications content and DRAS
information directly via remote
or
local control of the device, and/or AT&T Corp. has disclosed and is
disclosing those
communications
and information to the government after interception, capture,
recording or
decoding.
46.
On
information and belief, AT&T Corp. used or assisted in the use of
these devices to
acquire
wire or electronic communications to which Plaintiffs and class members
were a party, and
to
acquire DRAS information pertaining to those communications. On
information and belief,
Defendants
continue to do so.
AT&T
HAS PROVIDED AND CONTINUES TO PROVIDE THE
GOVERNMENT
WITH DIRECT ACCESS TO DATABASES
CONTAINING
ITS STORED TELEPHONE AND INTERNET RECORDS
47.
Defendants
AT&T Corp. and AT&T Inc. have provided at all relevant times
and
continue
to provide electronic communication services to the public, i.e.,
services that provide to
users
thereof the ability to send or receive wire or electronic
communications.
48.
Defendants
AT&T Corp. and AT&T Inc. have provided at all relevant times
and
continue
to provide computer or storage processing services to the public, by
means of wire, radio,
electromagnetic,
photooptical or photoelectronic facilities for the transmission of wire
or electronic
communications,
and/or by means of computer facilities or related electronic equipment
for the
electronic
storage of such communications.
49.
Plaintiffs
and class members are, or at pertinent times were, subscribers to or
customers
of one or more of those services.
50.
On
information and belief, AT&T Corp. has provided and continues to
provide the
government
with direct access to its databases of stored telephone and Internet
records, which are
updated
with new information in real time or near-real time.
51.
On
information and belief, AT&T Corp. has disclosed and is currently
disclosing to
the
government records concerning communications to which Plaintiffs and
class members were a
party,
and there is a strong likelihood that Defendants will disclose more of
the same in the future.
52.
As
reported by the Los Angeles Times, “AT&T has a database code-named
Daytona
that
keeps track of telephone numbers on both ends of calls as well as the
duration of all land-line
calls….
After Sept. 11, intelligence agencies began to view it as a potential
investigative tool, and
the
NSA has had a direct hookup into the database….” Joseph Menn and Josh
Meyer, U.S. Spying is
Much
Wider, Some Suspect, L.A. TIMES, Dec. 25, 2005, at A1. On information
and belief, this
report
is substantially correct.
53.
Daytona
is a database management technology originally developed and maintained
by
the AT&T Laboratories division of AT&T Corp., and is used by
AT&T Corp. to manage multiple
databases.
54.
Daytona
was designed to handle very large databases and is used to manage
“Hawkeye,”
AT&T Corp.’s call detail record (“CDR”) database, which 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 time
and length for each call.
55.
On
information and belief, this CDR database contains records pertaining
to
Plaintiffs’
and class members’ use of AT&T Corp. long distance service and
dial-up Internet service,
including
but not limited to DRAS information and personally identifiable
customer proprietary
network
information (CPNI) that AT&T Corp. obtained by virtue of its
provision of
telecommunications
service.
56.
As
of September 2005, all of the CDR data managed by Daytona, when
uncompressed,
totaled more than 312 terabytes.
57.
The
Daytona system’s speed and powerful query language allow users to
quickly and
easily
search the entire contents of a database to find records that match
simple or complex search
parameters.
For example, a Daytona user can query the Hawkeye database for all
calls made to a
particular
country from a specific area code during a specific month and receive
information about
all
such calls in about one minute.
58.
Daytona
is also used to manage AT&T Corp.’s huge network-security database,
known
as Aurora, which has been used to store Internet traffic data since
approximately 2003. The
Aurora
database contains huge amounts of data acquired by firewalls, routers,
honeypots and other
devices
on AT&T Corp.'s global IP (Internet Protocol) network and other
networks connected to
AT&T
Corp.'s network, including but not limited to DRAS information and
personally identifiable
CPNI
that AT&T Corp. obtained by virtue of its provision of
telecommunications service.
59.
On
information and belief, the Aurora database managed and/or accessed via
Daytona
contains
records or other information, including but not limited to DRAS
information and CPNI,
pertaining
to Plaintiffs’ and class members’ use of AT&T Corp.’s Internet
services.
60.
On
information and belief, AT&T Corp. has provided the government with
direct
access
to the contents of the Hawkeye, Aurora and/or other databases that it
manages using Daytona,
including
all information, records, DRAS information and CPNI pertaining to
Plaintiffs and class
members,
by providing the government with copies of the information in the
databases and/or by
giving
the government access to Daytona’s querying capabilities and/or some
other technology
enabling
the government agents to search the databases’ contents.
61.
AT&T
Inc. has begun a transition process designed to integrate the former
SBC’s
telecommunications
network with AT&T Corp.’s network, ultimately leading into unified
IP-based
networks.
AT&T Inc. intends to use AT&T Corp.'s IP network in place of
the fee-based transiting
and
backbone access arrangements it currently has with third parties. In
addition, others aspects of
both
companies will be integrated. For example, SBC Laboratories and
AT&T Laboratories will be
combined
into AT&T Labs to provide technology research and development
exclusively to the
subsidiaries
of AT&T Inc.
62.
On
information and belief, the facilities and technologies of AT&T
Corp, including
without
limitation the Daytona system and those transmission facilities to
which the government has
been
given direct access as alleged above, are being or will imminently be
used by AT&T Inc. to
transmit
the communications of its customers and to store DRAS information and
other records
pertaining
to those communications. Similarly, the facilities and technologies of
the former SBC are
being
or will imminently be used to transmit the communications of AT&T
Corp. customers
including
Plaintiffs and class members.
63.
On
information and belief, there is a strong likelihood that Defendants
will continue
to
intentionally intercept, disclose, divulge and use Plaintiffs' and
class members' communications
and
records in cooperation with the Program.
CLASS
ACTION ALLEGATIONS
64.
Pursuant
to Federal Rules of Civil Procedure 23 (a) and (b), Plaintiffs Hepting,
Hicks,
and
Knutzen bring this action on behalf of themselves and a Nationwide
Class of similarly situated
persons
defined as:
All
individuals in the United States that are current residential
subscribers or
customers
of Defendants’ telephone services or Internet services, or that were
residential
telephone or Internet subscribers or customers at any time after
September
2001.
65.
The
Nationwide Class seeks certification of claims for declaratory relief,
injunctive
relief
and damages pursuant to 50 U.S.C. § 1810, 18 U.S.C. § 2520, 47 U.S.C. §
605, and 18 U.S.C.
§
2707, in addition to declaratory and injunctive relief for violations
of the First and Fourth
Amendments.
66.
Plaintiffs
Hepting, Hicks, and Knutzen also bring certain of the claims,
identified, on
behalf
of the following California Subclass:
All
individuals that are residents of the State of California and that are
current
residential
subscribers or customers of Defendants’ telephone services or Internet
services,
or that were residential telephone or Internet subscribers or customers
at
any
time after September 2001.
67.
The
California Subclass seeks certification of claims for declaratory and
injunctive
relief,
and for restitution pursuant to the Unfair Competition Law (Cal. Bus.
and Prof. Code §17200
et
seq.).
68.
Excluded
from the Nationwide Class and California Subclass are the officers,
directors,
and employees of Defendants, and the legal representatives, heirs,
successors, and assigns
of
Defendants.
69.
Also
excluded from the Nationwide Class and California Subclass 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 activities that are in preparation therefore.
70.
This
action is brought as a class action and may properly be so maintained
pursuant to
the
provisions of the Federal Rules of Civil Procedure 23. Plaintiffs
reserve the right to modify the
Nationwide
Class and the California Subclass definitions and the class period
based on the results of
discovery.
71.
Numerosity
of the Nationwide Class and California Subclass: Members of the
Nationwide
Class and California Subclass are so numerous that their individual
joinder is
impracticable.
The precise numbers and addresses of members of the Nationwide Class
and
California
Subclass are unknown to the Plaintiffs. Plaintiffs estimate that the
Nationwide Class
consists
of millions of members and the California Subclass consists of hundreds
of thousands of