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
members.
The precise number of persons in both the Nationwide Class and
California Subclass and
their
identities and addresses may be ascertained from Defendants' records.
72.
Existence
of Common Questions of Fact and Law: There is a well-defined
community
of interest in the questions of law and fact involved affecting the
members of the
Nationwide
Class and California Subclass. These common legal and factual questions
include:
(a)
Whether
Defendants, acting as agents or instruments of the government, have
violated
the First and Fourth Amendment rights of Nationwide Class members, or
are currently
doing
so;
(b)
Whether
Defendants have subjected Nationwide Class members to electronic
surveillance,
or have disclosed or used information obtained by electronic
surveillance of the
Nationwide
Class members, in violation of 50 U.S.C. § 1809, or are currently doing
so;
(c)
Whether
Defendants have intercepted, used or disclosed Nationwide Class
members’
communications in violation of 18 U.S.C. § 2511, or are currently doing
so;
(d)
Whether
Defendants have divulged or published the existence, contents,
substance,
purport, effect, or meaning of Nationwide Class members’ communications
in violation
of
47 U.S.C. § 605(a), or are currently doing so;
(e)
Whether
Defendants have divulged the contents of Nationwide Class
members’
communications in violation of 18 U.S.C. § 2702(a)(1) or (a)(2), or are
currently doing so;
(f)
Whether
Defendants have divulged subscriber information or other records
pertaining
to Nationwide Class members in violation of 18 U.S.C. § 2702(a)(3), or
are currently
doing
so;
(g)
Whether
Defendants’ interception, use or disclosure of California Subclass
members’
communications, or the disclosure of subscriber information or other
records pertaining to
California
Subclass members, constitutes unfair, unlawful and/or fraudulent
business practices in
violation
of California’s Unfair Competition Law;
(h)
Whether
Plaintiffs and California Subclass members are entitled to restitution,
disgorgement
of profits, or other equitable relief to remedy Defendants’ unfair,
unlawful and/or
fraudulent
business practices;
(i)
Whether
Plaintiffs and class members are entitled to recover compensatory,
statutory
and punitive damages, whether as a result of Defendants’ fraudulent,
illegal and deceitful
conduct,
and/or otherwise; and
(j)
Whether
Plaintiffs and class members are entitled to an award of reasonable
attorneys’
fees, pre-judgment interest, and costs of this suit.
73.
Typicality:
Plaintiffs’ claims are typical of the claims of the members of the
Nationwide
Class and California Subclass because Plaintiffs are or were
subscribers to the Internet
and
telephone services of Defendants. Plaintiffs and all members of the
Nationwide Class and
California
Subclass have similarly suffered harm arising from Defendants’
violations of law, as
alleged
herein.
74.
Adequacy:
Plaintiffs are adequate representatives of the Nationwide Class and
California
Subclass because their interests do not conflict with the interests of
the members of the
classes
they seek to represent. Plaintiffs have 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 the interests of the
members of the Nationwide
Class
and California Subclass.
75.
This
suit may also be maintained as a class action pursuant to Federal Rules
of Civil
Procedure
23(b)(2) because Plaintiffs and both the Nationwide Class and
California Subclass seek
declaratory
and injunctive relief, and 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 both the Nationwide Class and California
Subclass as a whole,
thereby
making declaratory and/or injunctive relief proper.
76.
Predominance
and Superiority: This suit may also be maintained as a class action
under
Federal Rules of Civil Procedure 23(b)(3) because questions of law and
fact common to the
Nationwide
Class and California Subclass predominate over the questions affecting
only individual
members
of the classes and a class action is superior to other available means
for the fair and
efficient
adjudication of this dispute. The damages suffered by each individual
class member may
be
relatively small, especially given the burden and expense of individual
prosecution of the
complex
and extensive litigation necessitated by Defendants' conduct.
Furthermore, it would be
virtually
impossible for the class members, on an individual basis, to obtain
effective redress for the
wrongs
done to them. Moreover, even if class members themselves could afford
such individual
litigation,
the court system could not. Individual litigation presents a potential
for inconsistent or
contradictory
judgments. Individualized litigation increases the delay and expense to
all parties and
the
court system presented by the complex legal issue of the case. By
contrast, the class action
device
presents far fewer management difficulties, and provides the benefits
of a single adjudication,
economy
of scale and comprehensive supervision by a single court.
COUNT
I
Violation
of Plaintiffs’ and Class Members’ Rights Under the
First
and Fourth Amendments to the United States Constitution
(Plaintiffs
Hepting, Hicks, and Knutzen and the Nationwide Class
[Including
the California Subclass] vs. Defendants)
77.
Plaintiffs
and class members repeat and incorporate herein by reference the
allegations
in the preceding paragraphs of this complaint, as if set forth fully
herein.
78.
On
information and belief, Plaintiffs and class members 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 Corp.
79.
On
information and belief, Plaintiffs and class members use AT&T
Corp.’s services
to
speak or receive speech anonymously and to associate privately.
80.
On
information and belief, the above-described acts of interception,
disclosure,
divulgence
and/or use of Plaintiffs’ and class members’ communications, contents
of
communications,
and records pertaining to their communications occurred without
judicial or other
lawful
authorization, probable cause, and/or individualized suspicion.
81.
On
information and belief, at all relevant times, the government
instigated, directed
and/or
tacitly approved all of the above-described acts of AT&T Corp.
82.
On
information and belief, at all relevant times, the government knew of
and/or
acquiesced
in all of the above-described acts of AT&T Corp., and failed to
protect the First and
Fourth
Amendment rights of the Plaintiffs and class members by obtaining
judicial authorization.
83.
In
performing the acts alleged herein, AT&T Corp. had at all relevant
times a primary
or
significant intent to assist or purpose of assisting the government in
carrying out the Program
and/or
other government investigations, rather than to protect its own
property or rights.
84.
By
the acts alleged herein, AT&T Corp. acted as an instrument or agent
of the
government,
and thereby 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, and
additionally
violated Plaintiffs’ and class members’ rights to speak and receive
speech anonymously
and
associate privately under the First Amendment.
85.
By
the acts alleged herein, AT&T Corp.'s conduct proximately caused
harm to
Plaintiffs
and class members.
86.
On
information and belief, AT&T Corp.'s conduct was done
intentionally, with
deliberate
indifference, or with reckless disregard of, Plaintiffs’ and class
members’ constitutional
rights.
87.
On
information and belief, there is a strong likelihood that Defendants
are now
engaging
in and will continue to engage in the above-described violations of
Plaintiffs and class
members’
constitutional rights, as agents of the government, and that likelihood
represents a credible
threat
of immediate future harm.
88.
Wherefore,
Plaintiffs and class members pray for this court to declare that
AT&T
Corp.
has violated their rights under the First and Fourth Amendments to the
United States
Constitution,
and enjoin Defendants and their agents, successors and assigns from
violating the
Plaintiffs’
and class members’ rights under the First and Fourth Amendments to the
United States
Constitution.
COUNT
II
Electronic
Surveillance Under Color of Law in Violation of 50 U.S.C. §1809
(Plaintiffs
Hepting, Hicks, and Knutzen and the Nationwide Class
[Including
the California Subclass] vs. Defendants)
89.
Plaintiffs
repeat and incorporate herein by reference the allegations in the
preceding
paragraphs
of this complaint, as if set forth fully herein.
90.
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 except as authorized by
statute;
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 statute.
91.
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 communication, under circumstances in which a
person has
a
reasonable expectation of privacy and a warrant would be required for
law
enforcement
purposes.
92.
On information and belief, AT&T Corp. has intentionally acquired,
by means of a
surveillance
device, the contents of one or more wire 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, and such acquisition occurred
in the United States.
93.
By
the acts alleged herein, AT&T Corp. has intentionally engaged in
electronic
surveillance
(as defined by 50 U.S.C. § 1801(f)) under color of law, but which is
not authorized by
any
statute, and AT&T Corp. has intentionally subjected Plaintiffs and
class members to such
electronic
surveillance, in violation of 50 U.S.C. § 1809.
94.
Additionally
or in the alternative, by the acts alleged herein, AT&T Corp. has
intentionally
disclosed or used 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 statute.
95.
AT&T
Corp. did not notify Plaintiffs or class members of the above-described
electronic
surveillance, disclosure, and/or use, nor did Plaintiffs or class
members consent to such.
96.
On
information and belief, there is a strong likelihood that Defendants
are now
engaging
in and will continue to engage in the above-described electronic
surveillance, disclosure,
and/or
use of Plaintiffs' and class members' wire communications described
herein, and that
likelihood
represents a credible threat of immediate future harm.
97.
Plaintiffs
and class members have been and are aggrieved by Defendants’ electronic
surveillance,
disclosure, and/or use of their wire communications.
98.
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
and
class members seek equitable and declaratory relief; statutory damages
for each Plaintiff and
class
member of whichever is the greater of $100 a day for each day of
violation or $1,000; punitive
damages
as appropriate; and reasonable attorneys’ fees and other litigation
costs reasonably incurred.
COUNT
III
Interception,
Disclosure and/or Use of Communications in Violation of 18 U.S.C. §2511
(Plaintiffs
Hepting, Hicks, and Knutzen and the Nationwide Class
[Including
the California Subclass] vs. Defendants)
99.
Plaintiffs
repeat and incorporate herein by reference the allegations in the
preceding
paragraphs
of this complaint, as if set forth fully herein.
100.
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).
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.
101.
By the acts alleged herein, AT&T Corp. has intentionally
intercepted, endeavored to
intercept,
or procured another person to intercept or endeavor to intercept,
Plaintiffs’ and class
members’
wire or electronic communications in violation of 18 U.S.C. §
2511(1)(a); and/or
102.
By the acts alleged herein, AT&T Corp. has intentionally 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
through the
interception
of wire or electronic communications in violation of 18 U.S.C. §
2511(1)(c); and/or
103.
By the acts alleged herein, AT&T Corp. has intentionally used, or
endeavored to use,
the
contents of Plaintiffs’ and class members’ 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); and/or
104.
On information and belief, AT&T Corp. has intentionally divulged
the contents of
Plaintiffs’
and class members’ wire or electronic communications to persons or
entities other than
the
addressee or intended recipient, or the agents of same, or other
providers of wire or electronic
communication
service, while those communications were in transmission on AT&T
Corp.’s
electronic
communications services, in violation of 18 U.S.C. § 2511(3)(a).
105.
AT&T Corp. did not notify Plaintiffs or class members of the
above-described
intentional
interception, disclosure, divulgence and/or use of their wire or
electronic
communications,
nor did Plaintiffs or class members consent to such.
106.
On information and belief, there is a strong likelihood that Defendants
are now
engaging
in and will continue to engage in the above-described intentional
interception, disclosure,
divulgence
and/or use of Plaintiffs' and class members' wire or electronic
communications, and that
likelihood
represents a credible threat of immediate future harm.
107.
Plaintiffs and class members have been and are aggrieved by Defendants’
intentional
interception,
disclosure, divulgence and/or use of their wire or electronic
communications.
108.
Pursuant to 18 U.S.C. § 2520, which provides a civil action for any
person whose
wire
or electronic communications have been intercepted, disclosed or
intentionally used in violation
of
18 U.S.C. § 2511, Plaintiffs and class members seek equitable and
declaratory relief; statutory
damages
for each Plaintiff and class member of whichever is the greater of $100
a day for each day
of
violation or $10,000; punitive damages as appropriate; and reasonable
attorneys’ fees and other
litigation
costs reasonably incurred.
COUNT
IV
Unauthorized
Publication and/or Use of Communications in Violation of 47 U.S.C. §
605
(Plaintiffs
Hepting, Hicks, and Knutzen and The NationwideClass
[Including
the California Subclass] vs. Defendants)
109.
Plaintiffs repeat and incorporate herein by reference the allegations
in the preceding
paragraphs
of this complaint, as if set forth fully herein.
110.
In relevant part, 47 U.S.C. § 605 provides that:
(a)
Practices prohibited--Except as authorized by chapter 119, Title 18, no
person
receiving,
assisting in receiving, transmitting, or assisting in transmitting, any
interstate
or foreign communication by wire or radio shall divulge or publish the
existence,
contents, substance, purport, effect, or meaning thereof, except
through
authorized
channels of transmission or reception, (1) to any person other than the
addressee,
his agent, or attorney, (2) to a person employed or authorized to
forward
such
communication to its destination, (3) to proper accounting or
distributing
officers
of the various communicating centers over which the communication may
be
passed,
(4) to the master of a ship under whom he is serving, (5) in response
to a
subpena
issued by a court of competent jurisdiction, or (6) on demand of other
lawful
authority.
111.
AT&T Corp. received, assisted in receiving, transmitted, or
assisted in transmitting,
Plaintiffs’
and class members’ interstate or foreign communications by wire or
radio.
112.
By the acts alleged herein, AT&T Corp. divulged or published the
existence,
contents,
substance, purport, effect, or meaning of such communications, by means
other than
through
authorized channels of transmission or reception, in violation of 47
U.S.C. § 605.
113.
On information and belief, such divulgence or publication was willful
and for
purposes
of direct or indirect commercial advantage or private financial gain.
114.
AT&T Corp. did not notify Plaintiffs or class members of the
divulgence or
publication
of their communications, nor did Plaintiffs or class members consent to
such.
115.
On information and belief, there is a strong likelihood that Defendants
are now
engaging
in and will continue to engage in the above-described divulgence or
publication of
Plaintiffs'
and class members' wire or radio communications, and that likelihood
represents a
credible
threat of immediate future harm.
116.
Plaintiffs and class members have been and are aggrieved by Defendants’
divulgence
or
publication of their wire or radio communications.
117.
Pursuant to 47 U.S.C. § 605(e)(3)(A), which provides a civil action for
any person
whose
wire or electronic communications have been divulged or published in
violation of 47 U.S.C.
§
605(a), Plaintiffs and class members seek temporary and final
injunctions on such terms as the
Court
deems reasonable to prevent or restrain such violations; statutory
damages of not less than
$1,000
or more than $10,000 for each violation aggrieving each Plaintiff and
class member, as the
Court
considers just; in the Court’s discretion, an increase in the reward of
damages to each Plaintiff
and
class member by an amount of not more than $100,000 for each violation;
and the recovery of
full
costs, including reasonable attorneys' fees.
COUNT
IV
Divulgence
of Communications Contents in Violation of 18 U.S.C. § 2702(a)(1)
and/or
(a)(2) (Plaintiffs Hepting, Hicks, and Knutzen and the Natiowide Class
[Including
the California Subclass] vs. Defendants)
118.
Plaintiffs repeat and incorporate herein by reference the allegations
in the preceding
paragraphs
of this complaint, as if set forth fully herein.
119.
In relevant part, 18 U.S.C. § 2702 provides that:
(a)
Prohibitions.--Except as provided in subsection (b)--(1) a person or
entity
providing
an electronic communication service to the public shall not knowingly
divulge
to any person or entity the contents of a communication while in
electronic
storage
by that service; and (2) a person or entity providing remote computing
service
to the public shall not knowingly divulge to any person or entity the
contents
of
any communication which is carried 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 service; (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….
120.
On information and belief, AT&T Corp. knowingly divulged to one or
more persons
or
entities the contents of Plaintiffs’ and class members’ communications
while in electronic storage
by
an AT&T Corp. electronic communication service, and/or while
carried or maintained by an
AT&T
Corp. remote computing service, in violation of 18 U.S.C. § 2702(a)(1)
and/or (a)(2).
121.
AT&T Corp. did not notify Plaintiffs or class members of the
divulgence of their
communications,
nor did Plaintiffs or class members consent to such.
122.
On information and belief, there is a strong likelihood that Defendants
are now
engaging
in and will continue to engage in the above-described divulgence of
Plaintiffs' and class
members'
communications while in electronic storage by Defendants’ electronic
communication
service(s),
and/or while carried or maintained by Defendants’ remote computing
service(s), and that
likelihood
represents a credible threat of immediate future harm.
123.
Plaintiffs and class members have been and are aggrieved by Defendants’
above-
described
divulgence of the contents of their communications.
124.
Pursuant to 18 U.S.C. § 2707, which provides a civil action for any
person aggrieved
by
knowing or intentional violation of 18 U.S.C. § 2702, Plaintiffs and
class members seek such
preliminary
and other equitable or declaratory relief as may be appropriate;
statutory damages of no
less
than $1000 for each aggrieved Plaintiff or class member; punitive
damages as the Court
considers
just; and reasonable attorneys’ fees and other litigation costs
reasonably incurred.
COUNT
V
Divulgence
Of Communications Records In Violation Of 18 U.S.C. § 2702(A)(3)
(Plaintiffs
Hepting, Hicks, and Knutzen and the Nationwide Class
[Including
the California Subclass] vs. Defendants)
125.
Plaintiffs repeat and incorporate herein by reference the allegations
in the preceding
paragraphs
of this complaint, as if set forth fully herein.
126.
In relevant part, 18 U.S.C. § 2702 provides that:
(a)
Prohibitions.--Except as provided in subsection (b)-- (3) a provider of
remote
computing
service or electronic communication service to the public shall not
knowingly
divulge a record or other information pertaining to a subscriber to or
customer
of such service (not including the contents of communications covered
by
paragraph
(1) or (2)) to any governmental entity.
127.
On information and belief, AT&T Corp., a provider of remote
computing service and
electronic
communication service to the public, knowingly divulged records or
other information
pertaining
to Plaintiffs and class members to a governmental entity in violation
of 18 U.S.C. §
2702(a)(3).
128.
AT&T Corp. did not notify Plaintiffs or class members of the
divulgence of these
records
and other information pertaining to them and their use of AT&T
Corp. services, nor did
Plaintiffs
or class members consent to such.
129.
On information and belief, there is a strong likelihood that Defendants
are now
engaging
in and will continue to engage in the above-described divulgence of
records or other
information
pertaining to Plaintiffs and class members, and that likelihood
represents a credible
threat
of immediate future harm.
130.
Pursuant to 18 U.S.C. § 2707, which provides a civil action for any
person aggrieved
by
knowing or intentional violation of 18 U.S.C. § 2702, Plaintiffs and
class members seek such
preliminary
and other equitable or declaratory relief as may be appropriate;
statutory damages of no
less
than $1000 for each aggrieved Plaintiff or class member; punitive
damages as the Court
considers
just; and reasonable attorneys’ fee and other litigation costs
reasonably incurred.
COUNT
VI
Unfair,
Unlawful And Deceptive Business Practices
(Plaintiffs
Hepting, Hicks, and Knutzen and the California Subclass vs. Defendants)
131.
Plaintiffs repeat and incorporate herein by reference the allegations
in the preceding
paragraphs
of this complaint, as if set forth fully herein.
132.
Defendants have engaged in unfair, unlawful and/or fraudulent business
practices as
set
forth above.
133.
By engaging in the acts and practices described herein, Defendants have
committed
one
or more unfair business practices within the meaning of Bus. &
Prof. Code §17200, et seq.
Specifically,
Defendants’ business practices offend the public policies set forth in
California
Constitution
Art. 1, section 1.
134.
Defendants’ above-described deceptive and misleading acts and practices
have
deceived
and/or are likely to deceive Plaintiffs and other California Subclass
members. Plaintiffs
were,
in fact, deceived as to the terms and conditions of services provided
by defendants. Plaintiffs
and
California Subclass members have suffered harm as a result of
Defendants’ misrepresentations
and/or
omissions.
135.
Defendants’ acts and practices are also unlawful because, as described
above, they
violate
the First and Fourth Amendments to the United States Constitution, 50
U.S.C. § 1809, 18
U.S.C.
§ 2511, 47 U.S.C. § 605, 18 U.S.C. § 2702(a)(1) and/or (a)(2), and 18
U.S.C. § 2702(a)(3).
136.
AT&T Corp.’s acts and practices are also unlawful because they
violate 18 U.S.C. §
3121.
137.
In relevant part, 18 U.S.C. § 3121 provides that:
(a)
In general.--Except as provided in this section, no person may install
or use a pen
register
or a trap and trace device without first obtaining a court order under
section
3123
of this title or under the Foreign Intelligence Surveillance Act of
1978 (50
U.S.C.
1801 et seq.).
As
defined by 18 U.S.C. § 3127:
(3)
the term "pen register" means a device or process which records or
decodes
dialing,
routing, addressing, or signaling information transmitted by an
instrument or
facility
from which a wire or electronic communication is transmitted, provided,
however,
that such information shall not include the contents of any
communication,
but
such term does not include any device or process used by a provider or
customer
of
a wire or electronic communication service for billing, or recording as
an incident
to
billing, for communications services provided by such provider or any
device or
process
used by a provider or customer of a wire communication service for cost
accounting
or other like purposes in the ordinary course of its business;
(4)
the term "trap and trace device" means a device or process which
captures the
incoming
electronic or other impulses which identify the originating number or
other
dialing,
routing, addressing, and signaling information reasonably likely to
identify
the
source of a wire or electronic communication, provided, however, that
such
information
shall not include the contents of any communication;
138.
On information and belief, AT&T Corp. installed or used pen
registers and/or trap
and
trace devices without first obtaining a court order under 18 U.S.C. §
3123 or under the Foreign
Intelligence
Surveillance Act of 1978 (50 U.S.C. § 1801 et seq.), and continue to do
so.
139.
On information and belief, the pen registers and/or trap and trace
devices installed
and
used by AT&T Corp.have captured, recorded, or decoded, and continue
to capture, record or
decode,
dialing, routing, addressing or signaling information pertaining to
Plaintiff and/or California
Subclass
members’ wire or electronic communications.
140.
AT&T Corp. did not notify Plaintiffs or California Subclass members
of the
installation
or use of pen registers and/or trap and trace devices, nor did
Plaintiffs or California
Subclass
members consent to such.
141.
AT&T Corp.’s acts and practices are also unlawful because they
violate 47 U.S.C. §
222,
which in relevant part provides that:
(c)
Confidentiality of customer proprietary network information--(1)
Privacy
requirements
for telecommunications carriers--Except as required by law or with the
approval
of the customer, a telecommunications carrier that receives or obtains
customer
proprietary network information by virtue of its provision of a
telecommunications
service shall only use, disclose, or permit access to individually
identifiable
customer proprietary network information in its provision of (A) the
telecommunications
service from which such information is derived, or (B) services
necessary
to, or used in, the provision of such telecommunications service,
including
the
publishing of directories.
142.
AT&T Corp. is a telecommunications carrier that obtains and has
obtained customer
proprietary
network information by virtue of its provision of telecommunications
service.
143.
On information and belief, AT&T Corp. used, disclosed and/or
provided to
government
entities individually identifiable customer proprietary network
information pertaining to
Plaintiffs
and California Subclass members, and continue to do so.
144.
AT&T Corp. did not notify Plaintiffs or California Subclass members
of the
disclosure
and/or provision of their personally identifiable customer proprietary
network information
to
government entities, nor did Plaintiffs or California Subclass members
consent to such.
145.
Plaintiffs and the California Subclass have suffered injury in fact and
have lost money
or
property as a result of such unfair and unlawful business practices.
Such injuries and losses
include,
but are not limited to, the service fees and other fees and charges
paid to AT&T Corp.
Neither
the Plaintiffs nor any reasonable California Subclass member would have
paid such fees and
charges
for AT&T Corp. services had they first known of AT&T Corp.’s
unlawful acts and
practices.
146.
On information and belief, there is a strong likelihood that Defendants
are now
engaging
in and will continue to engage in the above-described electronic
surveillance, disclosure,
and/or
use of Plaintiffs' and class members' wire communications, and that
likelihood represents a
credible
threat of immediate future harm.
147.
Plaintiffs and the California Subclass seek restitution, disgorgement,
injunctive relief
and
all other relief from Defendants allowed under §17200, et seq.
Plaintiffs and the California
Subclass
also seek attorneys’ fees pursuant to Cal. Code Civ. Proc. §1021.5, as
well as such other
and
further relief as the Court deems just and proper.
PRAYER
FOR RELIEF
WHEREFORE,
the Plaintiffs for themselves and all others similarly situated
respectfully
request
that the Court:
A.
Declare
that Defendants’ participation in the Program as alleged herein
violates
applicable
law including without limitation:
(i)
The
First and Fourth Amendments to the United States Constitution, 50
U.S.C.
§ 1809, 18 U.S.C. § 2511, 47 U.S.C. § 605, and 18 U.S.C. § 2702, as to
Plaintiffs and the
Nationwide
Class; and
(ii)
Cal.
Bus. & Prof. Code §17200 as to Plaintiffs and the California
Subclass.
B.
Award
equitable relief, including without limitation, a permanent injunction
prohibiting
Defendants’ continued or future participation in the Program:
(i)
Pursuant
to the First and Fourth Amendments to the United States
Constitution,
50 U.S.C. § 1810, 18 U.S.C. § 2520(b)(1), 47 U.S.C. § 605(e)(3)(b)(i),
and 18 U.S.C. §
2707(b)(1),
as to the Plaintiffs and the Nationwide Class; and
(ii)
Pursuant
to Cal. Bus. & Prof. Code §17200, as to Plaintiffs and California
Subclass;
C.
Award
statutory damages to the extent permitted by law to each Plaintiff and
class
member
in the sum of:
(i)
$100
per day for each day of violation of 50 U.S.C. § 1809 aggrieving that
Plaintiff
or class member or $1,000, whichever is greater, pursuant to 50 U.S.C.
§ 1810(a);
(ii)
$100
a day for each violation of 18 U.S.C. § 2511 aggrieving that Plaintiff
or
class
member or $10,000, whichever is greater, pursuant to 18 U.S.C. §
2520(c)(2)(A);
(iii)
Not
less than $1,000 or more than $10,000 for each violation aggrieving
that
Plaintiff
or class member, as the court considers just, pursuant to 47 U.S.C. §
605(e)(3)(C)(i)(II); and
(iv)
$1000
pursuant to 18 U.S.C. § 2707(c);
D.
Award
punitive damages to the extent permitted by law to each Plaintiff and
class
member,
including without limitation:
(i)
An
appropriate sum pursuant to 50 U.S.C. § 1810(b);
(ii)
An
appropriate sum pursuant to 18 U.S.C. § 2520(b)(2); and
(iii)
Not
more than $100,000 per violation of 47 U.S.C. § 605(a) aggrieving that
Plaintiff
or class member, in the court’s discretion, pursuant to 47 U.S.C. §
605(e)(3)(C)(ii);
E.
Award
to Plaintiffs attorneys' fees and other costs of suit to the extent
permitted by
law,
including without limitation pursuant to 50 U.S.C. § 1810(c), 18 U.S.C.
§ 2520(b)(3), 47 U.S.C.
§
605(e)(3)(B)(iii), 18 U.S.C. § 2707(b)(3), and Cal. Code Civ. Proc.
§1021.5;
F.
Award
restitution, disgorgement, injunctive relief and all other relief
allowed under
§17200,
et seq. to Plaintiffs and the California Subclass;
G.
Grant
such other and further relief as the Court deems just and proper.
JURY
DEMAND
Plaintiffs
hereby request a jury trial for all issues triable by jury including,
but not limited to,
those
issues and claims set forth in any amended complaint or consolidated
action.
DATED:
January 31, 2006
ELECTRONIC
FRONTIER FOUNDATION
CINDY
COHN
LEE
TIEN
KURT
OPSAHL
KEVIN
S. BANKSTON
CORYNNE
MCSHERRY
JAMES
S. TYRE
CINDY
COHN
454
Shotwell Street
San
Francisco, CA 94110
Telephone:
415/436-9333
415/436-9993
(fax)
TRABER
& VOORHEES
BERT
VOORHEES
THERESA
M. TRABER
128
North Fair Oaks Avenue, Suite 204
Pasadena,
CA 91103
Telephone:
626/585-9611
626/577-7079
(fax)
LERACH
COUGHLIN STOIA GELLER
RUDMAN & ROBBINS LLP
REED
R. KATHREIN
SHANA
E. SCARLETT
100
Pine Street, Suite 2600
San
Francisco, CA 94111
Telephone:
415/288-4545
415/288-4534
(fax)
Attorneys
for Plaintiffs
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