Hepting v. AT&T Corporation

Tash Hepting and other plaintiffs (collectively, Hepting) (plaintiffs) sued AT&T Corporation and its holding company AT&T, Inc. (collectively, AT&T) (defendants), alleging that AT&T had violated numerous federal statutes, as well as the First and Fourth Amendments, for its collaboration with the National Security Agency (NSA) in tracking domestic and foreign communications and communication records of millions of Americans. Hepting moved for a preliminary injunction seeking to enjoin AT&T’s allegedly illegal activities. Hepting filed under seal a declaration from Mark Klein, a former AT&T technician, accompanied by three documents Klein had obtained that allegedly demonstrated how AT&T had implemented its warrantless surveillance system for the NSA. The United States government moved to intervene as a party defendant and, invoking the state-secrets privilege, filed a motion to dismiss or, in the alternative, a motion for summary judgment. The district court examined whether the material sought to be protected by the privilege was, in fact, secret in light of public statements about the NSA’s surveillance program and the AT&T documents filed by Hepting. Part of the material sought to be protected by the privilege included information bearing on a question of whether AT&T had obtained certification authorizing its assistance to the government concerning alleged monitoring of communication records. Public statements considered included: (1) statements by President George W. Bush and Attorney General Alberto Gonzales that acknowledged the existence of a “terrorist surveillance program” conducted by the NSA and explained that before a communication was intercepted, the government had to have information clearly linking the communication to a terrorist network; (2) a statement by Klein describing the building of a “Worldnet Internet room” in AT&T’s San Francisco facility by a person who had been interviewed by the NSA; and (3) statements by AT&T indicating that it performed classified contracts, that many of its employees had government security clearances, and that it was obligated to aid the government in protecting the public welfare.