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Carolyn Jewel; Tash Hepting; Gregory Hicks; Erik Knutzen; Joice Walton, On Behalf of v. National Security Agency; Keith B. Alexander

December 29, 2011

CAROLYN JEWEL; TASH HEPTING; GREGORY HICKS; ERIK KNUTZEN; JOICE WALTON, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS-APPELLANTS,
v.
NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, DIRECTOR, IN HIS OFFICIAL AND PERSONAL CAPACITIES;
MICHAEL V. HAYDEN, IN HIS PERSONAL CAPACITY;
UNITED STATES OF AMERICA; GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, IN HIS OFFICIAL AND PERSONAL CAPACITIES; RICHARD B. CHENEY, IN HIS PERSONAL CAPACITY;
DAVID S. ADDINGTON, IN HIS PERSONAL CAPACITY;
DEPARTMENT OF JUSTICE; ALBERTO R. GONZALES, IN HIS PERSONAL CAPACITY; JOHN D. ASHCROFT, IN HIS PERSONAL CAPACITY;
JOHN M. MCCONNELL, DIRECTOR OF NATIONAL INTELLIGENCE, IN HIS OFFICIAL AND PERSONAL CAPACITIES; JOHN D. NEGROPONTE IN HIS PERSONAL CAPACITY;
MICHAEL B. MUKASEY, ATTORNEY GENERAL; BARACK HUSSEIN OBAMA; ERIC H. HOLDER JR., ATTORNEY GENERAL; DENNIS C. BLAIR,
DEFENDANTS-APPELLEES,
VIRGINIA SHUBERT; NOHA ARAFA; SARAH DRANOFF; HILARY BOTEIN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS, GEORGE W. BUSH; MICHAEL V. HAYDEN; KEITH B. ALEXANDER; ALBERTO R. GONZALES;
JOHN ASHCROFT; UNITED STATES OF AMERICA, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of California Vaughn R. Walker, District Judge, Presiding D.C. Nos.3:08-cv-04373-VRW M:06-cv-01791-VRW D.C. Nos.3:07-cv-00693-v. VRW M:06-cv-01791-VRW

The opinion of the court was delivered by: McKEOWN, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted August 31, 2011-Seattle, Washington

Before: Harry Pregerson, Michael Daly Hawkins, and M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown

OPINION

This case is one of many arising from claims that the federal government, with the assistance of major telecommunications companies, engaged in widespread warrantless eavesdropping in the United States following the September 11, 2001, attacks. At issue in this appeal is whether Carolyn Jewel and other residential telephone customers (collectively "Jewel") have standing to bring their statutory and constitutional claims against the government for what they describe as a communications dragnet of ordinary American citizens.

In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, internet and electronic communications, we conclude that Jewel's claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury. Nor do prudential considerations bar this action. Although there has been considerable debate and legislative activity surrounding the surveillance program, the claims do not raise a political ques- tion nor are they inappropriate for judicial resolution. Finally, we do not impose, as suggested by the government, a heightened standing requirement simply because the case involves government officials in the national security context. We reverse the district court's dismissal on standing grounds and remand for further proceedings. We leave for the district court to consider in the first instance the government's alternative argument that Jewel's claims are foreclosed by the state secrets privilege.

BACKGROUND

I. COMPLAINT

Jewel filed this putative class action "on behalf of [herself] and a class of similarly situated persons": "ordinary Americans who are current or former subscribers to AT&T's telephone and/or Internet services." At this stage, our inquiry focuses on Jewel and the allegations as they pertain to her. Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1021 (9th Cir. 2011). Jewel sued federal government agencies and government officers in their official and personal capacities. She did not name any telecommunications companies as defendants.*fn1

Jewel alleged that the "[c]ommunications of Plaintiffs and class members have been and continue to be illegally acquired by Defendants using surveillance devices attached to AT&T's network." She claimed that these actions violated the First and Fourth Amendments, the constitutional doctrine of separation of powers, and a variety of statutes-the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. §§ 1801 et seq., the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. §§ 2510 et seq., the Stored Communications Act ("SCA"), 18 U.S.C. §§ 2710 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. The complaint requested both equitable and monetary relief.

According to the complaint, on October 4, 2001, President Bush and other government defendants issued a secret presidential order that authorized warrantless surveillance within the United States. Jewel asserted that she was specifically affected because AT&T, in collaboration with the National Security Agency ("NSA"), diverted all of her internet traffic into "SG3 Secure Rooms" in AT&T facilities across the country, including AT&T's Folsom Street facility in San Francisco, "and information of interest [was] transmitted from the equipment in the SG3 Secure Rooms to the NSA based on rules programmed by the NSA." Jewel's complaint focused on AT&T, its San Francisco facility, and the SG3 Secure Rooms.

Jewel further alleged that the governmental defendants operated a "dragnet collection" of communications records by "continuously solicit[ing] and obtain[ing] the disclosure of all information in AT&T's major databases of stored telephone and Internet records." These records "concern[ ] communications to which Plaintiffs and class members were a party." For example, Jewel claims that,

[u]sing [a] shadow network of surveillance devices, Defendants have acquired and continue to acquire the content of a significant portion of phone calls, emails, instant messages, text messages, web communications and other communications, both international and domestic, of practically every American who uses the phone system or the Internet, including Plaintiffs and class ...


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