Jewel v. Nat'l Sec. Agency

• Decision Date: 01 January 2013
• Docket Number: No. C 08–04373,JSW, No. C 07–00693 JSW,C 08–04373
• Citation: 965 F.Supp.2d 1090
• Court: U.S. District Court — Eastern District of California
• Parties: Carolyn Jewel, et al., Plaintiffs, v. National Security Agency, et al., Defendants. Virginia Shubert, et al., Plaintiffs, v. Barack Obama, et al., Defendants.

965 F.Supp.2d 1090

Carolyn Jewel, et al., Plaintiffs,

v.National Security Agency, et al., Defendants.

Virginia Shubert, et al., Plaintiffs,

v.Barack Obama, et al., Defendants.

No. C 08–04373 JSW, No. C 07–00693 JSW

United States District Court, N.D. California.

Filed 07/23/2013

James Samuel Tyre, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Audrey Helena Walton-Hadlock, Keker & Van Nest LLP, 710 Sansome Street, San Francisco, CA 94111, Cindy Ann Cohn, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Kurt Bradford Opsahl, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Lee Tien, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Mark Thomas Rumold, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Michael S Kwun, Keker & Van Nest LLP, 633 Battery Street, San Francisco, CA 94111-1809, Paula Lenore Blizzard, Keker & Van Nest LLP, 633 Battery Street, San Francisco, CA 94111, Rachael Elizabeth Meny, Keker & Van Nest LLP, 633 Battery Street, San Francisco, CA 94111-1809, Richard R. Wiebe, Law Office Of Richard R. Wiebe, One California Street, Suite 900, San Francisco, CA 94111, Thomas Edward Moore, III, The Moore Law Group, 228 Hamilton Ave., Palo Alto, CA 94304, for Plaintiffs.

Anthony Joseph Coppolino, U.S. Department of Justice, Civil Division, 20 Massachusetts Avenue, N.W. Room 6102, Washington, DC 20530, Marcia Berman, U.S. Dept. of Justice, Civil Division, Federal Programs Branch, 20 Massachusetts Ave., N.W., Room 7204, Washington, DC 20530, Paul Gerald Freeborne, U.S. Department of Justice, Civil Division, 20 Massachusetts Ave., N.W., Room 6108, Washington, DC 20001, for Defendants.

Matthew Delmont Brinckerhoff, Emery Celli Brinckerhoff & Abady LLP, 75 Rockefeller Plaza, 20th Floor, New York, NY 10019, Ilann Margalit Maazel, Emery Celli Brinckerhoff & Abady LLP, 75 Rockefeller Plaza, 20th Floor, New York, NY 10019, for Plaintiffs.

Alexander Kenneth Haas, United States Department of Justice, Federal Programs Branch, 20 Massachusetts Ave., NW, Washington, DC 20530, Anthony Joseph Coppolino, U.S. Department of Justice, Civil Division, 20 Massachusetts Avenue, N.W. Room 6102, Washington, DC 20530, Paul Edward Ahern, U.S. Department of Justice, Civil Division, Federal Programs Branch, 20 Massachusetts Avenue NW, Washington, DC 20530, for Defendants.

AMENDED ORDER

JEFFREY S. WHITE, UNITED STATES DISTRICT JUDGE

In response to the parties' request for clarification, the Court issues this amended order. This matter comes before the Court upon consideration of the motion for partial summary judgment filed by Plaintiffs Carolyn Jewel, Tash Hepting, Young Boon Hicks, Erik Knutzen and Joice Walton, on behalf of themselves and all others similarly situated (collectively “ Jewel Plaintiffs” or “Plaintiffs”) and the cross motion to dismiss and for summary judgment filed by Defendants National Security Agency; Keith B. Alexander, Director of National Security Agency, in his official capacity; United States of America; Barack Obama, President of the United States, in his official capacity; the Department of Justice; Eric Holder, the Attorney General, in his official capacity; and James R. Clapper, Director of National Intelligence, in his official capacity (collectively “ Jewel Defendants” or “Defendants”).

This matter also comes before the Court in a related case upon consideration of the motion to dismiss and for summary judgment filed by Defendants Barack Obama, President of the United States, in his official capacity; Keith B. Alexander, Director of the National Security Agency, in his official capacity; the United States of America; and Eric Holder, the Attorney General, in his official capacity (“ Shubert Defendants” or “Defendants”) against Plaintiffs Virginia Shubert, Noha Arafa, Sarah Dranoff, and Hilary Botein, on behalf of themselves and all others similarly situated (collectively “ Shubert Plaintiffs” or “Plaintiffs”).

The Jewel Plaintiffs move for partial summary adjudication seeking to have the Court reject the Defendants' state secret defense by arguing that Congress has displaced the state secrets privilege in this action by the statutory procedure prescribed by 50 U.S.C. § 1806(f) of the Foreign Intelligence Surveillance Act (“FISA”).

The Shubert Plaintiffs filed an amended complaint upon remand of the case and the Shubert Defendants move to dismiss for lack of subject matter jurisdiction on the basis that Congress did not waive sovereign immunity as to the FISA claim. The Shubert Plaintiffs incorporate by reference the arguments made in the Jewel Defendants' motion.

Defendants in both related cases move to dismiss all of Plaintiffs' statutory claims for lack of subject matter jurisdiction on the basis that Congress did not waive sovereign immunity as to the statutory claims. Defendants also move for summary judgment on all counts on the grounds that Plaintiffs' claims would risk or require the disclosure of certain information that is properly protected by the statutory protections and the state secrets privilege asserted in this action by the Director of National Intelligence and by the National Security Agency.

Having thoroughly considered the parties' papers, Defendants' public and classified declarations, the relevant legal authority and the parties' arguments, the Court GRANTS the Jewel Plaintiffs' motion for partial summary adjudication by rejecting the state secrets defense as having been displaced by the statutory procedure prescribed in 50 U.S.C. § 1806(f) of FISA. In both related cases, the Court GRANTS Defendants' motions to dismiss Plaintiffs' statutory claims for damages as to FISA and claims for injunctive relief as to all statutory claims on the basis of sovereign immunity. The Court further finds that the parties have not addressed the viability of the Jewel Plaintiffs' constitutional claims under the Fourth and First Amendments and the claim for violation of separation of powers and the Shubert Plaintiffs' fourth cause of action for violation of the Fourth Amendment. Accordingly, the Court RESERVES ruling on Defendants' motion for summary judgment on those remaining, non-statutory claims.

The Court shall require that the parties submit further briefing on the course of this litigation going forward.¹

BACKGROUND

These cases are two in a series of many lawsuits arising from claims that the federal government, with the assistance of major telecommunications companies, conductedwidespread warrantless dragnet communications surveillance of United States citizens following the attacks of September 11, 2001. Plaintiffs filed these putative class actions on behalf of themselves and a class of similarly situated persons described as “millions of ordinary Americans ... who use[ ] the phone system or the Internet” and “a class comprised of all present and future United States persons who have been or will be subject to electronic surveillance by the National Security Agency without a search warrant or court order since September 12, 2001.” ( Jewel Complaint at ¶¶ 1, 7, and 9; see also Shubert Complaint at ¶ 1, 2, 20.) ²

According to the allegations in the Jewel Complaint, a program of dragnet surveillance (the “Program”) was first authorized by Executive Order of the President on October 4, 2001. ( Jewel Complaint at ¶¶ 3, 39.) Plaintiffs allege that, in addition to eavesdropping on or reading specific communications, Defendants have “indiscriminately intercepted the communications content and obtained the communications records of millions of ordinary Americans as part of the Program authorized by the President.” ( Id. at ¶ 7.) The core component of the Program is a nationwide network of sophisticated communications surveillance devices attached to the key facilities of various telecommunications companies that carry Americans' Internet and telephone communications. ( Id. at ¶¶ 8, 42.) Plaintiffs allege that Defendants have unlawfully solicited and obtained the private telephone and internal transactional records of millions of customers of the telecommunications companies, including records indicating who the customers communicated with, when those communications took place and for how long, among other sensitive information. Plaintiffs allege these records include both domestic and international communications. ( Id. at ¶ 10.) Plaintiffs sue Defendants “to enjoin their unlawful acquisition of the communications and records of Plaintiffs and class members, to require the inventory and destruction of those that have already been seized, and to obtain appropriate statutory, actual, and punitive damages to deter future illegal surveillance.” ( Id. at ¶ 14.)

The Jewel Plaintiffs allege seventeen counts against Defendants for: violation of the Fourth Amendment (counts 1 and 2); violation of the First Amendment (counts 3 and 4); violation of FISA, 50 U.S.C. §§ 1809, 1810 (counts 5 and 6); violation of the Wiretap Act, 18 U.S.C. § 2511(1)(a), (b), and (d) (counts 7 through 9); violation of the Electronic Communications Privacy Act or the Stored Communications Act, 18 U.S.C. § 2703(a), (b), and (c) (counts 10 through 15); violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (count 16); and violation of separation of powers (count 17). The Shubert Plaintiffs allege four causes of action for violations of FISA, the Wiretap Act, the Stored Communications Act, and the Fourth Amendment.

The Jewel Complaint was originally filed on September 18, 2008. Defendants moved to dismiss and alternatively sought summary judgment as to all claims. Defendants contended that the Court lacked jurisdiction over the statutory claims because the government had not waived its sovereign immunity. Defendants moved for summary judgment on the remaining claims based on the argument that the information necessary to litigate the claims was properly subject to the state secrets...