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Nos. 06-17132, 06-17137 …
Tags: carolyn jewel, center for democracy and technology, computer scientists, constitutional law center, constitutional privacy, democracy and technology, hepting, kathleen m sullivan, manka, nathan abbott, privacy information center, privacy violations, stanford california, stanford law school, states district court, t corp, table of authorities, united states court, united states district, wachtell,Pages: 42
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Nos. 06-17132, 06-17137
__________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________
TASH HEPTING, GREGORY HICKS, CAROLYN JEWEL,
and ERIK KNUTZEN, et al.,
Plaintiffs-Appellees
v.
AT & T CORP., Defendant-Appellant
&
UNITED STATES, Intervenor-Appellant
______________________
On Appeal from the United States District Court
For the Northern District of California
__________________________
BRIEF OF ELECTRONIC PRIVACY INFORMATION CENTER,
CENTER FOR DEMOCRACY AND TECHNOLOGY, AND
COMPUTER SCIENTISTS FOR PROFESSIONAL RESPONSIBILITY
AS AMICI CURIAE IN SUPPORT OF APPELLEES
________________________
Kathleen M. Sullivan
Andrea L. Manka
David Z. Moskowitz
Melanie F. Wachtell
Constitutional Law Center
Stanford Law School
559 Nathan Abbott Way
May 2, 2007 Stanford, California 94305-8610
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................... iii
INTERESTS OF AMICI CURIAE.................................................................. 1
INTRODUCTION AND SUMMARY........................................................... 2
ARGUMENT.................................................................................................. 3
I. THE STATUTORY AND CONSTITUTIONAL PRIVACY
VIOLATIONS ALLEGED HERE PRESENT A CLASSIC CASE
FOR STANDING UNDER ARTICLE III ........................................... 3
A. Plaintiffs Invoke Statutory and Constitutional Privacy Rights
Personal to Them........................................................................ 4
1. Privacy harms ...................................................................... 5
2. Procedural harms ................................................................. 6
3. Constitutional violation ....................................................... 7
B. The Privacy Harms Alleged Here Are Personal and Concrete,
Not General or Abstract ............................................................. 8
1. Statutory causes of action .................................................... 9
2. Plaintiffs allege direct personal harm ................................ 10
C. Plaintiffs Also Allege Causation and Redressability Sufficient
To Establish Standing .............................................................. 12
D. In Order to Survive a Motion to Dismiss, Plaintiffs Need Only
Allege, Not Prove, Facts Sufficient to Establish Standing ...... 13
II. EVEN IF PLAINTIFFS HAD ALLEGED ONLY PROBABILISTIC
HARM, A PROBABILISTIC INJURY IS SUFFICIENT TO
ESTABLISH ARTICLE III STANDING .......................................... 16
A. Injury-in-Fact Requirements Are Met If a Plaintiff Alleges a
Substantial Probability of Actual Injury .................................. 17
i
B. Requests for Prospective Relief To Halt Probable Future Injury
Are Sufficient to Establish Article III Standing....................... 24
III. THE STATE SECRETS PRIVILEGE IS A NARROW
EVIDENTIARY PRIVILEGE THAT ORDINARILY, AS HERE,
DOES NOT PREVENT THE ADJUDICATION OF STANDING .. 25
A. The State Secrets Privilege Permits Litigation To Proceed
Beyond the Pleadings Stage Where Standing Is Otherwise
Established and the Government's Interests Can Be Adequately
Protected During Discovery..................................................... 26
B. Where State Secrets Are Entangled with Nonsensitive
Information, Materials Not Protected by the Privilege Should be
Separated from Privileged Information.................................... 30
CONCLUSION............................................................................................. 32
ii
TABLE OF AUTHORITIES
Cases:
Adarand Constructors, Inc. v. Pena
515 U.S. 200 (1995) ................................................................. 19
Allen v. Wright
468 U.S. 737 (1984) ................................................................ 11
American Petroleum Institute v. EPA
216 F.3d 50 (D.C. Cir. 2000) .................................................. 17
Ashcroft v. Mattis
431 U.S. 171 (1977) ................................................................. 23
Babbitt v. United Farm Workers National Union
442 U.S. 289 (1979) ........................................................... 18, 22
Baker v. Carr
369 U.S. 186 (1962) ................................................................... 4
Bareford v. General Dynamics Corp.
973 F.2d 1138 (5th Cir. 1992).................................................. 26
Baur v. Veneman
352 F.3d 625 (2d Cir. 2003)..................................................... 20
Bennett v. Spear
520 U.S. 154 (1997) ................................................................. 14
Berger v. New York
388 U.S. 41 (1967) ................................................................. 7, 8
Bryant v. Yellen
447 U.S. 352 (1980) ................................................................. 18
Central Delta Water Agency v. United States
306 F.3d 938 (9th Cir. 2002)........................................ 15, 19, 25
iii
Chicago & Grand Truck Ry. Co. v. Wellman
143 U.S. 339 (1892) ................................................................. 13
Churchill County v. Babbitt
150 F.3d 1072, as amended, 158 F.3d 491 (9th Cir. 1998) ..... 19
City of Los Angeles v. Lyons
461 U.S. 95 (1983) ............................................................ 12, 24
City of St. Louis v. Department of Transportation
936 F.2d 1528 (8th Cir. 1991)................................................. 15
Clinton v. City of New York
524 U.S. 417 (1998) ................................................................. 18
Covington v. Jefferson County
358 F.3d 626 (9th Cir. 2004).................................................... 19
Diamond v. Charles
476 U.S. 54 (1986) ................................................................... 23
Dimarzo v. Cahill
575 F.2d 15 (1st Cir. 1978) ...................................................... 21
DTM Research, L.L.C. v. AT&T Corp.
245 F.3d 327 (4th Cir. 2001).................................................... 27
Ellsberg v. Mitchell
709 F.2d 51 (D.C. Cir. 1983) ................................................... 30
FEC v. Akins
524 U.S. 11 (1998) .................................................................. 11
Fitzgerald v. Penthouse International, Ltd.
776 F.2d 1236 (4th Cir. 1985)................................................. 27
Friends of the Earth, Inc. v. Gaston Copper Recycling, Corp.
204 F.3d 149 (4th Cir. 2000).................................................... 21
iv
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.
484 U.S. 49 (1987) ............................................................. 14, 15
Halkin v. Helms (Halkin I)
598 F.2d 1 (D.C. Cir. 1978) ............................................... 30, 31
Halkin v. Helms (Halkin II)
690 F.2d 977 (D.C. Cir. 1982) ................................................. 31
Hall v. Norton
266 F.3d 969 (9th Cir. 2001).............................................. 15, 24
In re United States
872 F.2d 472 (D.C. Cir. 1989) ........................................... 25, 28
International Brotherhood of Teamsters v. Transportation Security
Administration
429 F.3d 1130 (D.C. Cir. 2005) ............................................... 17
Johnson v. Allsteel, Inc.
259 F.3d 885 (7th Cir. 2001).................................................... 21
Jones v. United States
362 U.S. 257 (1960) ................................................................... 7
Kasza v. Browner
133 F.3d 1159 (9th Cir. 1998).................................................. 26
Kerr v. U.S. District Court for the Northern District of California
426 U.S. 394 (U.S. 1976)......................................................... 28
LaDuke v. Nelson
762 F.2d 1318 (9th Cir. 1985).................................................... 8
Laird v. Tatum
408 U.S. 1 (1972) ..................................................................... 11
Lujan v. Defenders of Wildlife
504 U.S. 555 (1992) .......................... 4, 9, 10, 11, 12, 14, 15, 23
v
Lujan v. National Wildlife Federation
497 U.S. 871 (1990) ................................................................. 14
Maine People's Alliance & Natural Resources Defense Council v.
Mallinckrodt, Inc.
471 F.3d 277 (1st Cir. 2006) .................................................... 17
Martin v. Morgan Drive Away, Inc.
665 F.2d 598 (5th Cir. 1982).................................................... 15
Massachusetts v. EPA
127 S. Ct. 1438 (2007) ..................................... 4, 8, 9, 10, 11, 13
Molerio v. FBI
749 F.2d 815 (D.C. Cir. 1984) ........................................... 26, 28
Mountain States Legal Foundation v. Glickman
92 F.3d 1228 (D.C. Cir. 1996) ................................................. 21
O'Shea v. Littleton
414 U.S. 488 (1974) ................................................................. 18
Pennell v. City of San Jose
485 U.S. 1 (1988) ..................................................................... 16
Raines v. Byrd
521 U.S. 811 (1997) ................................................................. 11
Rakas v. Illinois
439 U.S. 128 (1978) ................................................................... 8
Sierra Club v. Morton
405 U.S. 727 (1972) ................................................................. 12
Simon v. Eastern Kentucky Welfare Rights Organization
426 U.S. 26 (1976) ................................................. 10, 12, 19, 22
Smelt v. County of Orange
447 F.3d 673 (9th Cir. 2006).................................................... 15
vi
Steffel v. Thompson
415 U.S. 452 (1974) ................................................................. 21
Sutton v. St. Jude Medical S.C., Inc.
419 F.3d 568 (6th Cir. 2002).................................................... 20
United States v. Reynolds
345 U.S. 1 (1983) ............................................................... 25, 26
United States v. U.S. District Court (Plamondon)
407 U.S. 297 (1972) ................................................................... 7
Valley Forge Christian College v. Americans United for Separation of
Church & State
454 U.S. 464 (1982) ..................................................... 11, 12, 13
Village of Elk Grove Village v. Evans
997 F.2d 328 (7th Cir. 1993)................................................... 20
Walters v. Edgar
163 F.3d 430 (1998)................................................................. 17
Warth v. Seldin
422 U.S. 490 (1975) ............................... 9, 11, 12, 13, 14, 15, 23
Whitmore v. Arkansas
495 U.S. 149 (1990) ................................................................. 22
Younger v. Harris
401 U.S. 37 (1971) ................................................................... 21
Youngstown Sheet & Tube v. Sawyer
342 U.S. 939 (1952) ................................................................. 30
United States Constitution:
U.S. Const. art. III.................................................................................. 3
U.S. Const. amend. IV ........................................................................... 5
vii
Statutes:
Title III, Omnibus Crime Control and Safe Streets Act of 1968, as
amended,
18 U.S.C. § 2511 .................................................................... 5, 7
18 U.S.C. § 2511(2)(a)(ii) .......................................................... 7
18 U.S.C. § 2518 ........................................................................ 5
18 U.S.C. § 2520(a)................................................................ 5, 9
Stored Communication Act of 1986, as amended,
18 U.S.C. § 2702 .................................................................... 5, 7
18 U.S.C. § 2707(a)............................................................ 5, 6, 9
Communications Act of 1947, as amended
47 U.S.C. § 605 .......................................................................... 5
47 U.S.C. § 605(e)(3)(a) ........................................................ 5, 9
Foreign Intelligence Surveillance Act of 1978 ("FISA"), as amended,
50 U.S.C. § 1806(f) ............................................................ 28, 29
50 U.S.C. § 1809 ........................................................................ 5
50 U.S.C. § 1810 .................................................................... 5, 9
Miscellaneous:
Kenneth Davis & Richard Pierce, Administrative Law Treatise
(3d ed. 1994) ........................................................................... 18
Charles Fried, Privacy
77 Yale L.J. 475 (1968).............................................................. 6
Paul M. Schwartz, Privacy and Democracy in Cyberspace
52 Vand. L. Rev. 1609 (1999) ................................................... 6
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy
4 Harv. L. Rev. 193 (1890) ........................................................ 6
viii
INTERESTS OF AMICI CURIAE1
The Electronic Privacy Information Center (EPIC) is a public interest
research center dedicated to protecting individual privacy and bringing
public attention to emerging civil liberties issues. EPIC has sought
unsuccessfully to have the Federal Communications Commission and the
House Energy and Commerce Committee review these programs, only to be
blocked by assertions of national security interests. EPIC is concerned that
the privacy violations alleged here be found justiciable in the federal courts
lest they become effectively unreviewable by any branch of the government.
The Center for Democracy and Technology (CDT) is a non-profit
public policy organization that works to promote democratic values and
constitutional liberties including free expression, privacy and open access in
the digital age and the increasingly integrated communications media. CDT
advocates public policies that protect individual privacy by clearly defining
rules for service provider cooperation with government surveillance and
responsibilities of companies that provide communications services and
collect personally identifiable information from consumers.
Computer Professionals for Social Responsibility (CPSR) is a public-
interest alliance concerned about the impact of information and
1
Pursuant to Fed. R. App. P. 29(a), all parties have consented to the
filing of this brief.
1
communications technology on society. CPSR works to influence decisions
regarding the development and use of computers and to provide expert
assessments of the power, promise, and limitations of computer technology.
INTRODUCTION AND SUMMARY
This case involves allegations of a dragnet surveillance program in
which AT&T, without legal authority, has provided the communications
records and data of its customers to the government over the course of the
past five years. AT&T, joined by the government, seeks to dismiss this case
on the pleadings, asserting that AT&T customers do not have standing to
seek relief because they have not "proven" exactly which of their
communications have been diverted.
Contrary to these suggestions, the complaint here presents a classic
case for federal adjudication, bearing all the traditional hallmarks of standing
sufficient to survive a motion to dismiss. Plaintiffs have alleged direct
personal injury, namely that their own communications were diverted by
AT&T to the government in violation of federal statutes and the
Constitution. See Part I. Even if plaintiffs had alleged only a substantial
probability of actual or future injury, they would still have standing to assert
their claims. See Part II. Finally, the state secrets doctrine should not
preclude standing at the threshold of the case so long as the district court
2
can disentangle non-secret from secret information to protect national
security. See Part III.
It is especially important that this Court not narrow the traditional
scope of justiciability in a case involving privacy claims like those here.
The statutes and constitutional provisions relied upon in the complaint are
designed to interpose the courts between citizens and the government when
government conducts surveillance that it naturally would prefer to conduct
in secret and wholly at its own discretion. As Amici's own experience
attests, such secret programs will often prove resistant to scrutiny by the
political branches of government. This litigation should thus proceed, lest
the privacy claims here be made effectively unreviewable.
ARGUMENT
I. THE STATUTORY AND CONSTITUTIONAL PRIVACY
VIOLATIONS ALLEGED HERE PRESENT A CLASSIC CASE
FOR STANDING UNDER ARTICLE III
Article III of the United States Constitution reserves the judicial
branch solely for actual "cases" and "controversies." U.S. Const. art. III. As
the Supreme Court reaffirmed this Term, "[a]t bottom, `the gist of the
question of standing' is whether petitioners have `such a personal stake in
the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends
3
for illumination." Massachusetts v. EPA, 127 S. Ct. 1438, 1453 (2007)
(quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
Here, plaintiffs present a classic case for federal adjudication: a
concrete and personal stake in the outcome, actual adverseness between the
parties, and a redressable claim for direct relief. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). Specifically, plaintiffs allege that
AT&T has violated their statutory and constitutional rights, by illegally
intercepting and divulging to the government the contents of their private
communications as well as their personal communications records. Contrary
to AT&T's contention that plaintiffs must "prove standing now," AT&T Br.
at 22, plaintiffs need only allege, not prove, the facts necessary to support
standing in order to survive a motion to dismiss.2
A. Plaintiffs Invoke Statutory and Constitutional Privacy
Rights Personal to Them
Plaintiffs claim that AT&T, their telecommunications provider, "has
provided and continues to provide the government with direct access to all
2
In its motion to dismiss, the Government also moved in the alternative for
summary judgment. As explained in Appellees' Brief at 73, however,
plaintiffs filed a statement under Rule 56(f) specifying the discovery they
should be permitted to conduct before having to respond to a motion for
summary judgment, and the district court appropriately chose in its
discretion not to treat the motion to dismiss as a motion for summary
judgment.
4
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." SER 9 (Amended Compl. at 8). This alleged conduct, if
proven in the course of discovery and trial, would violate the Electronic
Communications Privacy Act (ECPA), the Communications Act of 1934, the
Foreign Intelligence Surveillance Act (FISA), and the Fourth Amendment.
Plaintiffs, as customers of AT&T, are precisely the aggrieved persons whom
these federal privacy statutes exist to protect, and are the direct beneficiaries
of the protections of the Fourth Amendment.
1. Privacy harms
The federal privacy statutes invoked here aim to protect the privacy
and anonymity of people who communicate by telephone or e-mail. The
Communications Act of 1934, Title III, and ECPA safeguard privacy by
prohibiting telephone and internet service providers from divulging
information about customers' communications. See 47 U.S.C. § 605; 18
U.S.C §§ 2511, 2702. See also FISA, 50 U.S.C. § 1809. These statutes
provide private rights of action for persons whose communications or
records are intercepted or divulged. See 47 U.S.C. § 605(e)(3)(a); 18 U.S.C.
§ 2520(a); 18 U.S.C. § 2707 (a); 50 U.S.C. § 1810. Plaintiffs are the very
5
"subscriber[s] . . . aggrieved," 18 U.S.C. § 2707(a), whom Congress sought
to protect by enacting these laws.
Plaintiffs allege a concrete and personal injury: that AT&T
intercepted and divulged plaintiff's communications and records to the NSA,
The violation of the right to privacy has long been recognized as a personal
tort.3 The right to privacy "is not simply an absence of information about
[us] in the minds of others; rather it is the control we have over information
about ourselves." Charles Fried, Privacy, 77 Yale L.J. 475 (1968). In the
modern information age, a person's ability to control his personal
information has become ever more critical; accordingly, "academics and the
law have gravitated towards the idea of privacy as a personal right to control
the use of one's data." Paul M. Schwartz, Privacy and Democracy in
Cyberspace, 52 Vand. L. Rev. 1609, 1659 (1999).
2. Procedural harms
AT&T is alleged to have infringed not only the substantive privacy
protections guaranteed to plaintiffs but also upon the procedural components
of the Store Communications Act (SCA) and the Wiretap Act as amended by
ECPA. The two sections at issue here prohibit the interception and
3
As famously stated in 1890: "The right to privacy" is held "against the
world"; the remedy is "[a]n action of tort for damages in all cases." Samuel
D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193,
213, 219 (1890).
6
disclosure of plaintiffs' communications and records. 18 U.S.C. §§ 2511,
2702. Under the Wiretap Act, a communications service can only assist the
government in the interception or electronic surveillance of communications
if the government provides (a) a court order based on probable cause or (b) a
certification from the Attorney General or other select officials ensuring that
all legal requirements have been met and that no court order is necessary. 18
U.S.C. § 2511(2)(a)(ii). Similarly, under the SCA, a communications
service can only disclose its stored information to the government if the
government presents a valid warrant or court order, or in limited
circumstances, a subpoena. 18 U.S.C. § 2702(b). The complaint adequately
alleges that AT&T evaded these procedural protections.
3. Constitutional violation
Plaintiffs have also alleged injury from AT&T's violation of their
Fourth Amendment rights against unreasonable search and seizure. The
Constitution prohibits the government or its agents (here, AT&T) from
engaging in electronic surveillance without a warrant issued upon probable
cause. United States v. U.S. District Court (Plamondon), 407 U.S. 297, 321-
22 (1972); see also Berger v. New York, 388 U.S. 41, 58-59 (1967). Here,
plaintiffs allege an infringement of this interest through the warrantless
seizure of their communications or records that is adequate to support
7
standing. As the Supreme Court has noted, the standing inquiry under the
Fourth Amendment is merely a "[r]igorous application of the principle that
the rights secured by this Amendment are personal." Rakas v. Illinois, 439
U.S. 128, 140 (1978). Where plaintiffs are "aggrieved by the defendants'
unconstitutional pattern of conduct in contravention of the Fourth
Amendment," they have alleged personal injury-in-fact sufficient to
establish standing. LaDuke v. Nelson, 762 F.2d 1318, 1326 (9th Cir. 1985).
Moreover, the Constitution forbids indiscriminate general searches;
the government or its agents cannot go "roving" through citizens' private
information en masse. Berger, 388 U.S. at 59. Here, AT&T is alleged to
have provided the government access to its customers' information
wholesale.
B. The Privacy Harms Alleged Here Are Personal and
Concrete, Not General or Abstract
Unlike litigants who pursue generalized public grievances in court,
plaintiffs allege personal injury in which they have a concrete stake. Unlike
other cases in which standing has been found defective, plaintiffs allege
direct personal injury from violations of their substantive and procedural
rights as defined by federal statute and the Constitution. Plaintiffs thus have
posed "a question eminently suitable to resolution in federal court."
Massachusetts v. EPA, 127 S. Ct. at 1453.
8
1. Statutory causes of action
Plaintiffs' claim that AT&T violated their statutory rights alone
constitutes "injury in fact" sufficient to allege standing. As the Supreme
Court has noted, "[t]he injury . . . required by Art. III may exist solely by
virtue of `statutes creating legal rights, the invasion of which creates
standing.'" Defenders of Wildlife, 504 U.S. at 578 (citing Warth v. Seldin,
422 U.S. 490, 500 (1975) (internal quotation omitted)). Here, plaintiffs
assert their legal right, protected by statute, not to have their
telecommunications service divert their private communications and records
to NSA analysts. Federal statutes forbid the exact conduct in which AT&T
has allegedly engaged, and Congress has granted plaintiffs a private right of
action to sue violators under these privacy statutes. See 47 U.S.C. §
605(e)(3)(a); 18 U.S.C. § 2520(a); 18 U.S.C. § 2707(a); 50 U.S.C. § 1810.
Such authorization "is of critical importance to the standing inquiry"; here,
Congress has "identif[ied] the injury it seeks to vindicate and relate[d] the
injury to the class of persons entitled to bring suit." Massachusetts v. EPA,
127 S. Ct. at 1453 (citing Defenders of Wildlife, 504 U.S. at 580).
In addition, plaintiffs have alleged an independently sufficient
procedural injury, as there is no evidence that AT&T took the procedural
steps required by federal statute before diverting plaintiff's personal data to
9
the government, under ECPA or the Fourth Amendment. "When a litigant is
vested with a procedural right, that litigant has standing if there is some
possibility that the requested relief will prompt the injury-causing party to
reconsider the decision that allegedly harmed the litigant." Massachusetts v.
EPA, 127 S. Ct. at 1453; see also Defenders of Wildlife, 504 U.S. at 572 n.7.
2. Plaintiffs allege direct personal harm
Plaintiffs have a personal stake in obtaining an injunction to stop
AT&T from violating their statutory and procedural rights, and to redress the
injuries that have already occurred. To have standing, plaintiffs must allege
a harm that is "particularized" as to them, that is, that "affect[s] the plaintiff
in a personal and individual way," Defenders of Wildlife, 504 U.S. at 561
n.1; a plaintiff "who seeks to invoke judicial power [must] stand to profit in
some personal interest," Simon v. Eastern Kentucky Welfare Rights
Organization, 426 U.S. 26, 39 (1976). Here, plaintiffs seek an injunction
against AT&T so that, in the future, they will be able to make telephone
calls and send emails from the privacy of their own homes without the
content of those communications or information about whom they are
contacting and for how long being transmitted directly to the NSA.
Plaintiffs have alleged "specific, concrete facts demonstrating that the
10
challenged practices harm [them], and that [they] personally would benefit
in a tangible way from the court's intervention." Warth, 422 U.S. at 508.
Nor does this personal stake diminish simply because those harms are
"`widely shared.'" Massachusetts v. EPA, 127 S. Ct. at 1456 (quoting FEC
v. Akins, 524 U.S. 11, 24 (1998)). Plaintiffs' claims here stand in sharp
contrast to those cases in which litigants lack standing because they seek
merely to vindicate "generalized grievance[s]," Warth, 422 U.S. at 499, or to
litigate "public rights," Defenders of Wildlife, 504 U.S. at 578. See, e.g.,
Laird v. Tatum, 408 U.S. 1, 3 (1972) (denying standing to challenge "only []
the existence and operation of [an Army] intelligence gathering and
distributing system"(internal citation omitted)); Valley Forge Christian
College v. Americans United for Separation of Church & State, 454 U.S.
464, 489-90 (1982) (denying standing to taxpayers to challenge the
provision of public land to a religious school); Raines v. Byrd, 521 U.S. 811,
830 (1997) (denying standing to Members of Congress to challenge the
constitutionality of the Line Item Veto Act); Allen v. Wright, 468 U.S. 737,
766 (1984) (denying standing to parents of minority students to challenge
the failure of the IRS to deny tax-exempt status to segregated schools).
In contrast, plaintiffs here seek to vindicate their own rights: it is their
own communications and records that their telecommunications service is
11
alleged to be releasing to government analysts. Plaintiffs are far from mere
"concerned bystanders," Valley Forge, 454 U.S. at 473 (internal citation
omitted), seeking to vindicate "the public's nonconcrete interest in the
proper administration of the laws," Defenders of Wildlife, 504 U.S. at 581
(Kennedy, J., concurring). Rather, as customers aggrieved under federal
statute, they have a "direct stake in the outcome" of this suit. Valley Forge,
454 U.S. at 473 (quoting Sierra Club v. Morton, 405 U.S. 727, 740 (1972)).
C. Plaintiffs Also Allege Causation and Redressability
Sufficient To Establish Standing
Plaintiffs have alleged an injury that can be fairly "traced to" the
alleged willful actions of AT&T, Simon, 426 U.S. at 41, and for which there
is "an available remedy which will have a `substantial probability' of
redressing the plaintiff's injury," City of Los Angeles v. Lyons, 461 U.S. 95,
129 n.20 (1983) (internal citation omitted). AT&T is the party in control of
plaintiffs' communications and records, the party that has allegedly diverted
those communications and records to the government, and the party that can
halt the interception and disclosure of these communications and records
going forward. Here, the possibility is not "remote" that AT&T could
redress plaintiffs' harm, Simon, 426 U.S. at 44 (citing Warth, 422 U.S. at
507); if plaintiffs obtain the injunction and damages sought, their records
will no longer be gathered by AT&T and disclosed to government officials.
12
The complaint here "suffers from none of [the] defects" of other cases
dismissed for failing the case or controversy requirements of Article III.
Massachusetts v. EPA, 127 S. Ct. at 1452. Cases are not justiciable when
"parties seek adjudication of a political question, Luther v. Borden, 7 How. 1
(1849), when they ask for an advisory opinion, Hayburn's Case, 2 Dall. 409
(1792), or when the question sought to be adjudicated has been mooted by
subsequent developments, California v. San Pablo & Tulare R. Co., 149
U.S. 308 (1893)." Id. Nor do plaintiffs allege claims that fall outside the
"zone of interest[]" of the statutes invoked, Valley Forge, 454 U.S. at 475
(internal citation omitted), or that rest on the rights of third parties, Warth,
422 U.S. at 509. Rather, their case against AT&T presents a "real, earnest,
and vital controversy" that should be permitted to proceed in federal court.
Chicago & Grand Truck Ry. Co. v. Wellman, 143 U.S. 339, 345 (1892).
D. In Order to Survive a Motion to Dismiss, Plaintiffs
Need Only Allege, Not Prove, Facts Sufficient to
Establish Standing
AT&T and the government repeatedly suggest that plaintiffs must not
merely allege personal and concrete injury but must prove as much even at
the pleading stage. See, e.g., Gov't Br. at 26 ("[E]ach element [of standing]
must not only be alleged, but proven."); AT&T Br. at 23 ("It is not sufficient
merely to allege standing; the burden is upon the plaintiff to demonstrate
13
each element of standing."). No such proof is in fact required on a motion to
dismiss. Article III standing need only "be supported in the same way as
any other matter on which the plaintiff bears the burden of proof, i.e., with
the manner and degree of evidence required at the successive stages of the
litigation." Defenders of Wildlife, 504 U.S. at 561. Accordingly, "while a
plaintiff must `set forth' by affidavit or other evidence `specific facts' to
survive a motion for summary judgment, and must ultimately support any
contested facts with evidence adduced at trial, `[a]t the pleading stage,
general factual allegations of injury resulting from the defendant's conduct
may suffice, for on a motion to dismiss we presum[e] that general
allegations embrace those specific facts that are necessary to support the
claim.'" Bennett v. Spear, 520 U.S. 154, 168 (1997) (quoting Defenders of
Wildlife, 504 U.S. at 561, and Lujan v. National Wildlife Federation, 497
U.S. 871, 889 (1990)) (internal citation omitted).
The Supreme Court has repeatedly made this principle clear: "[A]
suit will not be dismissed for lack of standing if there are sufficient
`allegations of fact'--not proof--in the complaint or supporting affidavits."
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S.
49, 65 (1987) (discussing Warth, 422 U.S. at 501). After all, "[t]he purpose
of the standing doctrine is to ensure that the plaintiff has a concrete dispute
14
with the defendant, not that the plaintiff will ultimately prevail against the
defendant." Hall v. Norton, 266 F.3d 969, 976-77 (9th Cir. 2001). Thus, "in
the context of standing, it is the nonfrivolous claims of a party that are
determinative, not whether the party can sustain those claims by proof on the
merits." City of St. Louis v. Department of Transportation, 936 F.2d 1528,
1532 (8th Cir. 1991).
Each case that AT&T cites for the proposition that plaintiffs must
prove standing is, in fact, a summary judgment decision, not a decision on a
motion to dismiss.4 See Smelt v. County of Orange, 447 F.3d 673, 678 (9th
Cir. 2006); Defenders of Wildlife, 504 U.S. at 561. Indeed, in Martin v.
Morgan Drive Away, Inc., the Fifth Circuit held the district court erred by
summarily disposing of a case on standing when there was a material factual
dispute and the parties did not have adequate time to complete discovery and
develop jurisdictional facts. 665 F.2d 598, 602 (5th Cir. 1982). AT&T
incorrectly cites this case for the proposition that "a district court must
resolve [factual] dispute[s] and determine its own jurisdiction." AT&T Br.
at 24. Rather than resolving factual disputes, on a motion to dismiss a
4
Even if this were a motion for summary judgment, see supra note 1, AT&T
applies the wrong standard: to survive summary judgment, plaintiffs need
not "prove" or "establish" standing; they need only show that there "is a
genuine question of material fact as to the standing elements." Central Delta
Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002).
15
district court must accept as true all material allegations of the complaint and
construe any ambiguity in favor of the plaintiff. Pennell v. City of San Jose,
485 U.S. 1, 7 (1988).
Viewed under the appropriate standard, the complaint alleges facts
sufficient to support standing for each named plaintiff. Contrary to the
government's and AT&T's assertions, plaintiffs did allege that AT&T
injured each and every plaintiff individually. At best, AT&T has an
argument that the complaint is ambiguous; however, as noted earlier, any
ambiguity must be construed in favor of the plaintiff, Pennell, 485 U.S. at 7.
And as explained in Appellees' brief, Hepting Br. at 72, plaintiffs are
alleging that at least one of each plaintiff's communications was diverted
from AT&T to the government, a direct allegation that AT&T has injured
each plaintiff. Because this is a motion to dismiss, no more factual evidence
than plaintiffs have provided is necessary.
II. EVEN IF PLAINTIFFS HAD ALLEGED ONLY
PROBABILISTIC HARM, A PROBABILISTIC INJURY IS
SUFFICIENT TO ESTABLISH ARTICLE III STANDING
Plaintiffs have each alleged an actual injury caused by AT&T. But
even if plaintiffs had only alleged--or were only later able to prove at trial--
a probabilistic injury, that allegation would be sufficient for Article III
standing purposes. Alleging a substantial probability that a plaintiff was
16
harmed by a defendant's actions is enough to create a non-hypothetical case
or controversy. Furthermore, when, as here, a plaintiff seeks prospective
relief, that plaintiff need only allege a substantial probability of future harm
from a defendant's conduct.
A. Injury-in-Fact Requirements Are Met If a Plaintiff
Alleges a Substantial Probability of Actual Injury
Plaintiffs need only allege a substantial probability of harm to fulfill
Article III standing requirements. Even if AT&T and the government were
correct that plaintiffs have only alleged a probabilistic injury and not
existing actual injury, it is well established that "[a] probabilistic harm, if
nontrivial, can support standing," Walters v. Edgar, 163 F.3d 430, 434
(1998) (Posner, C.J.). "To establish an injury in fact based on a probabilistic
harm, a plaintiff must show that there is a substantial probability that harm
will occur." Maine People's Alliance & Natural Resources Defense Council
v. Mallinckrodt, Inc., 471 F.3d 277, 284 (1st Cir. 2006); see also
International Brotherhood of Teamsters v. Transportation Security
Administration, 429 F.3d 1130, 1134 (D.C. Cir. 2005) (stating that to
establish standing on summary judgment, the plaintiff must "show a
`substantial probability' that it has been injured, that the defendant caused its
injury, and that the court could redress that injury" (quoting American
Petroleum Institute v. EPA, 216 F.3d 50 (D.C. Cir. 2000)).
17
The Supreme Court has consistently held that standing may be
established based on probabilistic injury. As the Court itself noted, it
"routinely recognizes probable economic injury resulting from
[governmental actions] that alter competitive conditions as sufficient to
satisfy the [Article III `injury-in-fact' requirement]." Clinton v. City of New
York, 524 U.S. 417, 433 (1998) (quoting 3 Kenneth Davis & Richard Pierce,
Administrative Law Treatise 13-14 (3d ed. 1994) (alterations in original)).
Accordingly, in Bryant v. Yellen, 447 U.S. 352, 367 (1980), where
respondents' alleged injury was an inability to purchase excess lands, the
Court found standing even though respondents "could not with certainty
establish" that they would be able to purchase excess lands if the statute at
issue was held applicable.
While often applied to probabilistic economic injury, the principle is
not limited to that form of harm. For example, the Court has applied the
probabilistic harm principle generally to parties wishing to challenge
statutes. Parties need not wait for injury before suing; rather, they have
standing when they can demonstrate "a realistic danger of sustaining a direct
injury as a result of the statute's operation or enforcement." Babbitt v.
United Farm Workers National Union, 442 U.S. 289, 298 (1979) (citing
O'Shea v. Littleton, 414 U.S. 488, 494 (1974)). The Court has further
18
generalized that "there is no difference for purposes of Art. III standing--
personal interest sufficient for concrete adverseness--between a small but
certain injury and a harm of a larger magnitude discounted by some
probability of its nonoccurrence." Simon, 426 U.S. at 61 n.10. Thus, in
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), the Court found
standing for the petitioner to challenge subcontractor compensation
clauses--offering financial incentives to prime contractors for hiring
disadvantaged subcontractors--on equal protection grounds even though the
company was not challenging any particular contract. The Court held that it
was enough that the petitioner would likely bid on another contract with a
similar clause in the relatively near, but not imminent, future.
Applying these principles, it is now well-established that increased
risk of future injury is sufficient to establish Article III injury-in-fact. Under
Central Delta Water Agency v. United States, 306 F.3d 938, 949 (9th Cir.
2002), "a credible threat of harm is sufficient to constitute actual injury for
standing purposes." In Covington v. Jefferson County, 358 F.3d 626, 638
(9th Cir. 2004), for example, this Court held that plaintiffs living across the
street from an improperly run landfill had standing (and injury-in-fact) based
on the increased risk that plaintiffs might eventually be harmed by the
landfill. See also Churchill County v. Babbitt, 150 F.3d 1072, 1078 (9th Cir.
19
1998), as amended, 158 F.3d 491 (9th Cir. 1998) (holding that claimant need
only establish "the reasonable probability of the challenged action's threat to
[his or her] concrete interest").
This Court is not alone: as the Second Circuit found, "the courts of
appeals have generally recognized that threatened harm in the form of an
increased risk of future injury may serve as injury-in-fact for Article III
standing purposes." Baur v. Veneman, 352 F.3d 625, 633 (2d Cir. 2003).
For example, in Village of Elk Grove Village v. Evans, 997 F.2d 328 (7th
Cir. 1993), plaintiffs were concerned that construction of a radio tower on a
flood plain, "by plopping down a huge slab of concrete near the creek and
thus limiting the creek's drainage area," would increase the risk of flooding.
Id. at 329. The court acknowledged that injury was probabilistic, but
reasoned that "even a small probability of injury is sufficient to create a case
or controversy--to take a suit out of the category of the hypothetical--
provided of course that the relief sought would, if granted, reduce the
probability." Id.; see also, e.g., Sutton v. St. Jude Medical S.C., Inc., 419
F.3d 568, 575 (6th Cir. 2002) (holding the increased risk of future disease
for an aortic connector implant patient--in comparison with the risks from
traditional surgery--was sufficient to establish standing to sue for medical
monitoring costs, even without current indication of harm); Johnson v.
20
Allsteel, Inc., 259 F.3d 885, 888 (7th Cir. 2001) (holding that "increased risk
that a plan participant faces" from an ERISA plan administrator's increase in
discretionary authority satisfies injury-in-fact); Friends of the Earth, Inc. v.
Gaston Copper Recycling, Corp., 204 F.3d 149, 160 (4th Cir. 2000) (en
banc) (concluding that "[t]hreats or increased risk constitutes cognizable
harm" sufficient to meet injury-in-fact); Mountain States Legal Foundation
v. Glickman, 92 F.3d 1228, 1234-35 (D.C. Cir. 1996) (holding an
incremental increase in risk of forest fire is sufficient for standing); Dimarzo
v. Cahill, 575 F.2d 15, 18 (1st Cir. 1978) (holding that inmates have
standing to challenge actions creating an increased risk of fire at the jail).
Likewise, probabilistic harm is often sufficient to establish standing
prior to a criminal charge. Individuals wishing to challenge the
constitutionality of statutes need not wait to be arrested or prosecuted, Steffel
v. Thompson, 415 U.S. 452, 459 (1974); rather, they have standing for
prospective relief when they intend to engage in a course of conduct and
there is a "genuine threat of enforcement" of the statute at issue. Id. at 475.
As in cases alleging increased risk of future harm, a purely "imaginary or
speculative" threat of prosecution is not sufficient. See, e.g., Younger v.
Harris, 401 U.S. 37, 42 (1971). But where "there exists a credible threat of
21
prosecution," a plaintiff has standing to challenge the law. United Farm
Workers, 442 U.S. at 298.
As these cases across various contexts establish, probabilistic harm is
sufficient to establish standing so long as there is a substantial probability of
actual injury--i.e., so long as the injury is not just "unadorned speculation,"
Simon, 426 U.S. at 45. The harm alleged here--that AT&T has diverted and
continues to divert plaintiffs' private communications and records--is not
speculative. These allegations are backed by affidavits containing personal
knowledge regarding AT&T's conduct, newspaper articles detailing the
NSA program, and statements by at least nineteen members of Congress
confirming the existence of the program.
Plaintiffs' alleged injuries stand in sharp contrast to the speculative
harms rejected by federal courts in other cases. For example, in Whitmore v.
Arkansas, 495 U.S. 149 (1990), a death row prisoner sought appeal on
behalf of Simmons, another inmate who had waived his appeal, alleging that
that if he 1) obtained future habeas relief; 2) received a new trial; 3) was re-
convicted; 4) was re-sentenced to death; and 5) appealed his sentence, he
would be injured during Arkansas's comparative death sentence review
because Simmons's heinous crimes (killing 14 family members) would not
be used in the comparative review (against Whitmore's less heinous crime).
22
The Court rejected such an extended inferential chain as a basis for standing.
Likewise in Defenders of Wildlife, 504 U.S. at 560, harm to plaintiffs' ability
to observe endangered animals in foreign countries like Sri Lanka, with only
intentions to "some day" visit those countries, was deemed too speculative.
See also Ashcroft v. Mattis, 431 U.S. 171, 172 (1977); Diamond v. Charles,
476 U.S. 54 (1986). The complaint here requires no such intermediary
steps.
Although the majority of probabilistic harm cases involve potential
future injuries, the principle applies equally to past injuries. Indeed, it would
be anomalous that a potential future harm--with all of its inherent
contingencies--could establish a non-hypothetical injury, but an injury
alleged to have already occurred would not.
Finally, that plaintiffs need only establish a substantial probability of
injury aligns with the requirements for the other two elements of standing,
which require a reasonable or substantial probability of causation and
redressability. The causation element simply necessitates that plaintiffs
establish a reasonable probability that the injury-in-fact was caused by the
defendant's actions. See, e.g., Warth, 422 U.S. at 504 (requiring plaintiffs to
"allege facts from which it reasonably could be inferred that, absent the
[challenged] zoning practices, there is a substantial probability that they
23
would have been able to purchase or lease" property in the community);
Hall, 266 F.3d at 977 (requiring a "reasonable probability" of causation).
Likewise, redressability requires only that "a court must determine that there
is an available remedy which will have a `substantial probability' of
redressing the plaintiff's injury." Lyons, 461 U.S. at 129 n.20. Indeed, it
would be peculiar if an injury that was probably caused by a defendant
created a "case or controversy," but a probabilistic injury that was definitely
caused by a defendant would not.
B. Requests for Prospective Relief To Halt Probable
Future Injury Are Sufficient to Establish Article III
Standing
Even if this Court decides that plaintiffs have only alleged a
probabilistic injury and even if it decides probabilistic injury is not sufficient
to establish standing based on past AT&T actions, plaintiffs Hepting, Hicks,
and Jewel--as current subscribers to AT&T's services--still maintain
standing to sue for prospective relief to prevent future injury. Plaintiffs have
alleged facts--and have gone further by providing evidence via affidavits--
supporting a substantial probability of future injury based on the strong
likelihood that AT&T will continue to turn over their own private
communications and data to the government. As discussed above, it is well
established in this Court, the other courts of appeal, and the Supreme Court
24
that a probabilistic future injury is sufficient to establish standing. See, e.g.,
Central Delta Water Agency, 306 F.3d at 947-48. Thus, at a minimum, this
Court should find the factual allegations sufficient to support plaintiffs'
action for prospective relief.
III. THE STATE SECRETS PRIVILEGE IS A NARROW
EVIDENTIARY PRIVILEGE THAT ORDINARILY, AS HERE,
DOES NOT PREVENT THE ADJUDICATION OF STANDING
Even if the allegations in the complaint implicate some conduct that
might be found later to be protected by the state secrets privilege,
adjudication of standing is not precluded as AT&T and the government
assert. See AT&T Br. at 22-59; Gov't Br. at 26-36. A court faced with such
a privilege claim must determine whether "the circumstances are appropriate
for the claim of privilege, and yet do so without forcing a disclosure of the
very thing the privilege is designed to protect." United States v. Reynolds,
345 U.S. 1, 8 (1983). Although review where state secrets privilege is
asserted requires some judicial deference, no such privilege may be found
unless "there is a reasonable danger that compulsion of the evidence will
expose military matters which, in the interest of national security should not
be divulged." Id. at 10; see also In re United States, 872 F.2d 472, 476
(D.C. Cir. 1989). But where, as here, evidence implicating military or
government secrets can be segregated and excluded from discovery,
25
unclassified evidence remains available for the plaintiffs to use in
establishing standing.
A. The State Secrets Privilege Permits Litigation To
Proceed Beyond the Pleadings Stage Where Standing
Is Otherwise Established and the Government's
Interests Can Be Adequately Protected During
Discovery
When the government invokes the state secrets privilege over specific
evidence and a court accepts that claim, the evidence is removed from the
case. See Reynolds, 345 U.S. at 11. If the plaintiff cannot prove the prima
facie case without the privileged evidence, the court can then dismiss the
claim. Some courts of appeals have also held that "if the privilege deprives
the defendant of information that would otherwise give the defendant a valid
defense to the claim, then the court may grant summary judgment to the
defendant." Bareford v. General Dynamics Corp., 973 F.2d 1138, 1141 (5th
Cir. 1992); see also Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998);
Molerio v. FBI, 749 F.2d 815, 825 (D.C. Cir. 1984).
Dismissal is inappropriate upon the invocation of the state secrets
privilege, however, unless efforts to safeguard privileged material have been
explored. With "creativity and care," loss of evidence from a proper
assertion of the state secrets privilege may be minimized "through the use of
procedures which will protect the privilege yet allow the merits of the
26
controversy to be decided in some form." Fitzgerald v. Penthouse
International, Ltd., 776 F.2d 1236, 1238 n.3 (4th Cir. 1985). Dismissal is
warranted "[o]nly when no amount of effort and care on the part of the court
and the parties will safeguard privileged material." Id. at 1244.
Even when a party asserts that it cannot fairly defend itself without
privileged information, a court can satisfy itself that such a case can go
forward. In DTM Research, L.L.C. v. AT&T Corp., 245 F.3d 327 (4th Cir.
2001), for example, AT&T was defending against an allegation of trade
secret misappropriation regarding a data mining technique. One of its
primary defenses was that DTM had actually misappropriated the techniques
from the United States, and AT&T accordingly subpoenaed government
agencies to provide that evidence. The United States invoked the state
secrets doctrine to quash the subpoenas. Id. at 329. AT&T then moved for
summary judgment arguing that the state secrets doctrine "completely
prevents AT&T from developing its defenses" and asserting that "dismissal
is mandated." Id. at 334. The Fourth Circuit rejected that argument, finding
that at that stage of the litigation, the record did not foreclose the possibility
of a fair trial, even if some relevant evidence was not available.
Among other techniques, in camera review of possibly sensitive
information can protect the public interest in keeping secrets pertaining to
27
national security out of the public eye. Documents argued to be privileged
can be examined in camera to determine whether the parties' need for the
information is outweighed by the government's claim of privilege. See Kerr
v. U.S. District Court for the Northern District of California, 426 U.S. 394,
405-06 (1976). In camera review of affidavits asserting state secrets
privilege ensures that a court does not "merely unthinkingly ratify the
executive's assertion of absolute privilege, lest it inappropriately abandon its
important judicial role." In re United States, 872 F.2d at 475. In camera
review of an affidavit will not always be "sufficient to determine the validity
of a claim of privilege for state secrets," and "the extent to which a district
court may properly rely on affidavits and similar sources will vary from case
to case." Molerio, 749 F.2d at 822 n.2. But dismissal of a claim without
such inquiry is inappropriate.
As an additional safeguard against disclosure of secret government
information, section 1806(f) of FISA sets forth a procedure for dealing with
privileged information where the legality of electronic surveillance is
challenged. FISA's procedure applies to all motions "to discover or obtain
applications or orders or other materials relating to electronic surveillance."
50 U.S.C. § 1806(f).
28
Section 1806(f) lays out a five-step protocol for dealing with sensitive
evidence: First, the court receives a motion from "an aggrieved person . . .
to discover or obtain . . . materials relating to electronic surveillance." Id.
The Attorney General may then file "an affidavit under oath that disclosure
or an adversary hearing would harm the national security of the United
States." Id. Upon receiving such an affidavit, the court then "shall review
in camera and ex parte the application, order, and other materials relating to
the surveillance as may be necessary to determine whether the surveillance
of the aggrieved person was lawfully authorized and conducted." Id.
(emphasis added). The court may decide to "disclose to the aggrieved
person . . . portions of the application, order and other materials relating to
the surveillance only where such disclosure is necessary to make an accurate
determination of the legality of the surveillance." Id. Such disclosures
ought to be made to the aggrieved persons "under appropriate security
procedures and protective orders." Id.
The very existence of these detailed statutory procedures makes clear
that, contrary to AT&T's and the government's arguments, an assertion of
states secrets privilege is not the death knell of a suit involving electronic
surveillance. Congress made the judgment that there ought to be a
procedure for examining evidence of illegal wiretapping even in the face of
29
a claimed need for government secrecy. The fact that such a procedure
exists suggests that courts have latitude to balance government need for
secrecy against individual claims of injury from an electronic surveillance
program. Indeed, the existence of these detailed statutory provisions suggest
that the executive's claim of authority to invoke a mere common law
privilege here arises in an area where its power is at its "lowest ebb."
Youngstown Sheet & Tube v. Sawyer, 342 U.S. 939, 637 (1952).
B. Where State Secrets Are Entangled with Nonsensitive
Information, Materials Not Protected by the Privilege
Should be Separated from Privileged Information
Where government secrets can be disentangled from non-sensitive
information, the latter is discoverable. See Ellsberg v. Mitchell, 709 F.2d 51,
57 (D.C. Cir. 1983). AT&T and the government cite the Halkin litigation as
limiting the adjudication of standing, but those cases do not in fact
undermine the court's duty under Ellsberg to preserve nonsensitive
information for litigation here.
In Halkin I, Vietnam war protestors alleged that the government had
intercepted their telephone conversations. Halkin v. Helms, 598 F.2d 1, 3
(D.C. Cir. 1978). The protestors sought discovery about specific wiretaps
from the government, and discovery was denied on the basis of the state
secrets privilege. The information sought would have confirmed the identity
30
of individuals whose communications were intercepted by the NSA, the
content of the disclosures and the methods and technology by which the
communications were acquired. Id. at 4-5. In Halkin I, the court recognized
that "the business of foreign intelligence in this age of computer technology
is more akin to the construction of a mosaic than it is to the management of a
cloak and dagger affair. Thousands of bits of seemingly innocuous
information can be analyzed and fitted into place to reveal with startling
clarity how the unseen whole must operate." Id. at 8.
Both AT&T and the government cite to Halkin v. Helms (Halkin II),
690 F.2d 977 (D.C. Cir. 1982), to support their claim that the plaintiffs'
claims should be dismissed because a demonstration of standing would
implicate state secrets. In Halkin II, the plaintiffs' claims were dismissed
because the only evidence they could produce was the fact that their names
were on government watch lists. Id. Because they could not show that the
individual plaintiffs had been wiretapped simply from the fact that they were
on a watch list, the court determined that the plaintiffs could not adequately
allege standing under Article III.
The data mining dragnet alleged here, however, differs considerably
from the targeted surveillance program in Halkin. Where such a vast
amount of information as here is at issue, the "mosaic" of intelligence
31
gathering is considerably more far-reaching, and also more likely to become
publicly known. Where a "watch list" is the customer list of the largest
telecommunications company in the nation, and the plaintiffs have alleged
facts that indicate that their communications were mishandled, adjudication
of standing is proper.
In any event, both Halkin decisions predate FISA's five-step protocol
for assessing a claim of state secrets privilege Thus the Halkin mosaic
principle should not defeat standing here, where alternatives to dismissal
may protect sensitive information.
CONCLUSION
The judgment below should be affirmed as to justiciability.
Respectfully submitted,
Kathleen M. Sullivan
Andrea L. Manka
David Z. Moskowitz
Melanie F. Wachtell
Constitutional Law Center
Stanford Law School
559 Nathan Abbott Way
Stanford, California 94305-8610
May 2, 2007
32
CERTIFICATE OF COMPLIANCE
I hereby certify, pursuant to Fed. R. App. P. 32(a)(7)(C) and Circuit
Rule 32-1, that the foregoing brief is proportionately spaced, has a typeface
of 14 points, and contains 6,960 words.
May 2, 2007 __________________________
Kathleen M. Sullivan