In re National Security Agency Telecommunications Records Litigation.

Decision Date24 July 2007
Docket NumberMDL Docket No. 06-1791 VRW.
Citation633 F.Supp.2d 892
CourtU.S. District Court — Northern District of California
PartiesIn re NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS LITIGATION. This Document Relates to: 07-1187, 07-1242, 07-1323, 07-1324, 07-1326, 07-1396.

VAUGHN R. WALKER, Chief United States District Chief Judge.

The government seeks to enjoin state officials in Missouri, Maine, New Jersey, Connecticut and Vermont from investigating various telecommunication carriers concerning their alleged disclosure of customer telephone records to the National Security Agency (NSA) based on the Supremacy Clause of the United States Constitution, the foreign affairs power of the federal government and the state secrets privilege.

Before these cases were transferred to this court by the Judicial Panel on Multidistrict Litigation (JPML) on February 15, 2007, the government and various defendants filed cross motions for dismissal and summary judgment. With the exception of reply briefs in the Connecticut and Vermont cases, these motions were fully briefed prior to transfer. The court's scheduling order directed the parties to complete briefing in the Connecticut and Vermont cases and permitted the government and state officials to submit consolidated briefs addressing Ninth Circuit law and other issues not previously briefed. Doc # 219.

The government seeks summary judgment on the ground that the states' investigations are barred by the Supremacy Clause and the foreign affairs power of the federal government and because of the state secrets privilege. As will presently be explained, the first two grounds of the government's motion fail. Due to the pending appeal in Hepting v. AT & T, the court will not at this time reach the third basis of the government's motion, the state secrets privilege. The result then is that the government's summary judgment motion is DENIED WITHOUT PREJUDICE to its renewal following the Ninth Circuit's decision in Hepting. Hence, the state officials' motions are rendered moot at this point. What follows will explain why the first grounds upon which the government seeks to proceed do not stand up.


On February 15, 2007, the JPML transferred six cases (the "state cases") pursuant to MDL 1791: United States v. Rabner, et al, 07-1324; United States v. Gaw, et al, 07-1242; United States v. Adams, et al, 07-1323; United States v. Palermino, et al, 07-1326; United States v. Volz, et al, 07-1396; and Clayton, et al v. AT&T Communications of the Southwest, Inc, et al, 07-1187. Doc # 165. The state cases arise out of attempts by state officials to compel various telecommunication carriers to release information concerning their alleged disclosure of customer telephone records to the National Security Agency (NSA). Before addressing the present motions, the court provides a brief summary of the factual background of each of the cases.

Clayton v. AT&T, 07-1187, arises out of investigative subpoenas issued to AT&T by two commissioners of the Missouri Public Service Commission (MoPSC) regarding information it allegedly disclosed to the NSA. Doc #1, Ex A. These subpoenas seek, for example,

(1) Any order, subpoena or directive of any court, tribunal or administrative agency or office whatsoever, directing or demanding the release of customer proprietary information relating to Missouri customers;

(2) The number of Missouri customers, if any, whose calling records have been delivered or otherwise disclosed to the [NSA]; and

(3) The nature or type of information disclosed to the NSA, including telephone number, subscriber name and address, social security numbers, calling patterns, calling history, billing information, credit card information, internet data and the like.

Doc # 299, Ex A, tab 3.

Because the commissioners considered AT&T's response to be inadequate, they moved pursuant to Missouri law to compel AT&T to comply with the investigation in Missouri state court. AT&T then removed the case to the United States District Court for the Western District of Missouri. Shortly thereafter, the government initiated a separate Missouri action, United States v. Gaw, 07-1242, on July 26, 2006, seeking declaratory and injunctive relief against the MoPSC and AT&T.

The Maine case, United States v. Adams, 07-1323, began after Maine citizens petitioned the Maine Public Utilities Commission (MePUC) to investigate whether Verizon had shared its customers' records with the NSA. Verizon submitted two press releases in response on May 12 and May 16, 2006, stating that (1) the NSA never requested customer records and (2) if a government agency requested its customer records, Verizon would disclose them only when authorized by law. Doc #1, ¶ 40. On August 9, 2006, MePUC ordered Verizon to affirm under oath that its press releases were accurate. Id, ¶¶ 41-42; Doc # 299, Ex A, tab 5. MePUC has not asked for any additional information from Verizon. See Doc # 299, Ex A, tab 5. On August 21, 2006, the government sued in the United States District Court for the District of Maine to enjoin the MePUC from pursuing this inquiry. On February 8, 2007, Judge Woodcock preliminarily enjoined MePUC from enforcing the order. See United States v. Adams, 473 F.Supp.2d 108 (D.Me.2007).

The New Jersey case, United States v. Rabner, 07-1324, stems from the New Jersey Attorney General's investigation into whether telecommunication carriers disclosed to the NSA telephone call history data of New Jersey subscribers. Doc # 1, ¶ 34. The New Jersey Attorney General issued subpoenas duces tecum pursuant to New Jersey consumer protection law to ten carriers doing business in New Jersey. These subpoenas include the following requests:

(1) All orders, subpoenas and warrants issued by or on behalf of any unit or officer of the Executive Branch of the Federal Government and provided to [the carriers] concerning any demand or request to provide telephone call history data to the NSA;

(2) All documents concerning an identification of customers * * * whose telephone call history data was provided * * * to the NSA; of the persons whose data was provided to the NSA; and

(3) All documents concerning any communication between [the carriers] and the NSA * * * concerning the provision of telephone call history data to the NSA.

Doc # 299, Ex A, tab 1. In response to these subpoenas, the government sued the New Jersey Attorney General in the United States District Court for the District of New Jersey. Doc # 1-1.

United States v. Palermino, 07-1324, arises from a complaint filed by the American Civil Liberties Union of Connecticut (ACLU) requesting that the Connecticut Department of Public Utility Control (CtDPUC) investigate whether the local carriers violated Connecticut law. In response, the CtDPUC initiated an administrative proceeding and pursued the requested investigation. After the CtDPUC denied the carriers' motions to dismiss, ACLU filed its first set of interrogatories to each of the carriers, seeking information concerning potential illegal disclosure of customer records, such as the following:

(1) Did AT & T have any published privacy policy or policies concerning customer information and/or records in effect between September 11, 2001, and August 10, 2006?

(2) To the extent that any published privacy policy referenced in your response [above] changed during the relevant period, explain the specific terms that changed, when the changes occurred, and the reasons for the change.

(3) Without providing any details about the purpose(s) or target(s) of any investigation(s) or operations(s), at any time during the relevant period has AT & T ever received [a court order or a request under 18 U.S.C. § 2709, i.e., a "national security letter"] seeking disclosure of customer information and/or records?

Doc # 299, Ex A, tab 4. On September 6, 2006, the government sued in the United States District Court for the District of Connecticut.

In United States v. Volz, 07-1396, the commissioner of the Vermont Department of Public Service (VtDPS) propounded information requests under Vermont law, 30 VSA § 206, to AT&T and Verizon concerning their conduct and policies vis-à-vis the NSA. 07-1396, Doc #1, Ex C. After AT&T and Verizon failed to comply with the request, VtDPS petitioned the Vermont Public Service Board (VtPSB) to open investigations of the carriers, Id. ¶¶ 33-34, and eventually ordered the carriers to respond. Id. ¶ 37 & Ex I. This prompted the government to bring suit to enjoin VtPSB in the District Court of Vermont.

The parties' cross motions for summary judgment concern three issues: whether the state officials' investigations (1) violate the Supremacy Clause by regulating directly or discriminating against the federal government or conflicting with an affirmative command of Congress; (2) impinge on the foreign affairs power of the federal government; or (3) run afoul of the state secrets privilege.

In reviewing a summary judgment motion, the court must determine whether genuine issues of material fact exist, resolving any doubt in favor of the party opposing the motion. "[S]ummary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id And the burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the moving party has the burden of proof on an issue, the party's showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party....

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