In re National Security Agency Telecommunications Records Litigation, 671 F. 3d 881 (9th Cir. 2011) (the Hepting case), cert. denied, 133 S.Ct. 421 (2012)On December 16, 2005, a New York Times article revealed that since 2001, the National Security Agency had been conducting the Bush Administration’s Terrorist Screening Program, involving massive warrantless surveillance of telephone and email communications. In response, thirty-three lawsuits were filed against telecommunications companies that had allegedly been assisting in the surveillance. One of the cases, Hepting v. AT&T, filed by the Electronic Frontier Foundation (“EFF”) in the federal district court for the Northern District of California in 2006, alleged violations of FISA and the Wiretap and Stored Communications Acts of the Electronic Communications Privacy Act (“ECPA”), and sought an injunction and damages against AT&T.
In response to The New York Times article, Attorney General Gonzalez claimed that the warrantless interception had been conducted only where the government had a reasonable basis to conclude that at least one party to the communication was outside the United States and that at least one party was affiliated with al-Qaeda, a related organization, or working in support of al-Qaeda. Shortly after Hepting was filed, however, whistle blower Mark Klein informed the EFF that in its Folsom Street facility in San Francisco, AT&T had given the NSA access to the contents of all of its subscribers’ communications with subscribers of other ISPs. (For corroboration of Mr. Klein’s claims, see Julia Angwin, Charlie Savage, Jeff Larson, Henrik Moltke, Laura Poitras and James Risen, “AT&T Helped U.S. Spy on Internet on a Vast Scale,” NY Times, Aug. 15, 2015, discussed in “International chronicle of surveillance events – 2015.”)
Hepting and the other lawsuits against the telecommunications companies were consolidated for litigation in the federal district court in the Northern District of California in 2006. Partly in response to the lawsuits, Congress enacted, as part of the FISA Amendments Act of 2008 (“FAA”), a retroactive immunity provision, which required the dismissal of lawsuits against telecommunications providers if the government secretly certified to the court that the surveillance did not occur, was legal, or was authorized by the President of the United States. FISA Section 802, 50 U.S.C. Sec. 1885a. After Attorney General Mukasey submitted certifications, the district court dismissed the lawsuits against the telecommunications providers. In 2011, the United States Court of Appeals for the Ninth Circuit upheld the district court’s dismissal of the lawsuits, reasoning that the court had correctly ruled that the retroactive immunity provision of FISA Sec. 802 did not violate either the separation of powers provisions or Due Process Clause of the Constitution.