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SUMMARY This Document Relates to All Cases Except: ) of VOLUMINOUS EVIDENCE FILED in 23 Al-Haramain Islamic Foundation, Inc

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SUMMARY This Document Relates to All Cases Except: ) of VOLUMINOUS EVIDENCE FILED in 23 Al-Haramain Islamic Foundation, Inc Case M:06-cv-01791-VRW Document 481 Filed 10/16/2008 Page 1 of 66 1 CINDY COHN (CSB No. 145997) HARVEY GROSSMAN [email protected] ADAM SCHWARTZ 2 LEE TIEN (CSB No. 148216) ROGER BALDWIN FOUNDATION OF ACLU KURT OPSAHL (CSB No. 191303) 3 KEVIN S. BANKSTON (CSB No. 217026) 180 North Michigan Avenue CORYNNE MCSHERRY (CSB No. 221504) Suite 2300 4 JAMES S. TYRE (CSB No. 83117) Chicago, IL 60601 ELECTRONIC FRONTIER FOUNDATION Telephone: (312) 201-9740 5 454 Shotwell Street Facsimile: (312) 201-9760 San Francisco, CA 94110 6 Telephone: (415) 436-9333 Counsel For AT&T Class Plaintiffs And Facsimile: (415) 436-9993 7 Co-Lead Coordinating Counsel Counsel For AT&T Class Plaintiffs And 8 Co-Lead Coordinating Counsel [Additional Counsel On Last Page] 9 RICHARD R. WIEBE (CSB No. 121156) LAW OFFICE OF RICHARD R. WIEBE 10 425 California Street, Suite 2025 11 San Francisco, CA 94104 Telephone: (415) 433-3200 12 Facsimile: (415) 433-6382 13 ARAM ANTARAMIAN LAW OFFICE OF ARAM ANTARAMIAN 14 1714 Blake Street 15 Berkeley, CA 94703 Telephone: (510) 841-2369 16 Counsel For AT&T Class Plaintiffs 17 [Additional Counsel On Signature Page] 18 UNITED STATES DISTRICT COURT 19 FOR THE NORTHERN DISTRICT OF CALIFORNIA 20 IN RE NATIONAL SECURITY AGENCY ) MDL Docket No 06-1791 VRW ) 21 TELECOMMUNICATIONS RECORDS LITIGATION, MDL No. 1791 ) PLAINTIFFS’ FEDERAL RULE OF ) 22 ) EVIDENCE SECTION 1006 SUMMARY This Document Relates To All Cases Except: ) OF VOLUMINOUS EVIDENCE FILED IN 23 Al-Haramain Islamic Foundation, Inc. v. Bush, ) SUPPORT OF PLAINTIFFS’ OPPOSITION No. 07-0109; Center for Constitutional Rights v. ) TO MOTION OF THE UNITED STATES 24 Bush, No. 07-1115; Guzzi v. Bush, No. 06- ) SEEKING TO APPLY FISAAA § 802 ) 25 06225; Shubert v. Bush, No. 07-0693; Clayton v. (50 U.S.C. § 1885a) TO DISMISS THESE AT&T Commc’ns of the Southwest, No. 07-1187; ) ACTIONS ) 26 U. S. v. Adams, No. 07-1323; U. S. v. Clayton, ) No. 07-1242; U. S. v. Palermino, No. 07-1326; ) Date: December 2, 2008 27 U. S. v. Rabner, No. 07-1324; U. S. v. Volz, ) Time: 10:00 a.m. No. 07-1396 ) Courtroom: 6, 17th Floor 28 ) Judge: The Hon. Vaughn R. Walker No. M-06-01791-VRW EVID. RULE 1006 SUMMARY ISO PLAINTIFFS’ OPPOSITION TO MOTION OF THE UNITED STATES SEEKING TO APPLY FISAAA § 802 (50 U.S.C. § 1885a) TO DISMISS THESE ACTIONS Case M:06-cv-01791-VRW Document 481 Filed 10/16/2008 Page 2 of 66 1 TABLE OF CONTENTS 2 INTRODUCTION ....................................................................................................................... 1 3 SUMMARY OF VOLUMINOUS WRITINGS PURSUANT TO FEDERAL RULE OF EVIDENCE 1006 ......................................................................................................................... 6 4 I. OVERVIEW OF THE PROGRAM ..................................................................................... 6 5 A. EVIDENCE SHOWING THE PROGRAM ORIGINATED OUTSIDE OF FISA .................................... 7 6 B. EVIDENCE SHOWING HOW THE PROGRAM OPERATES ......................................................... 11 7 1. Wholesale acquisition of communications (including content and non-content). ............ 11 8 2. Automated analysis, or datamining, of content and non-content information.................. 14 9 10 3. No minimization before acquisition, storage, data mining, or analysis by a human agent and inadequate minimization thereafter. ............................................................................... 18 11 II. EVIDENCE OF THE TELECOMMUNICATIONS CARRIERS’ COLLABORATION 12 WITH THE GOVERNMENT PROGRAM.............................................................................. 21 13 A. EVIDENCE OF COMMUNICATIONS SURVEILLANCE............................................................... 25 14 B. EVIDENCE OF CALL RECORDS SURVEILLANCE.................................................................... 26 15 C. EVIDENCE THAT AT&T PARTICIPATED IN THE PROGRAM ................................................... 33 16 1. Evidence of AT&T’s collaboration with the communications acquisition aspect of the Program ............................................................................................................................... 33 17 2. Evidence of AT&T’s collaboration with the call detail records aspect of the Program.... 38 18 D. EVIDENCE THAT VERIZON PARTICIPATED IN THE PROGRAM................................................ 38 19 III. THE EVOLUTION OF THE PROGRAM OVER TIME .............................................. 41 20 A. MARCH 2004 ADMINISTRATION REVOLT OVER ILLEGAL SURVEILLANCE ........................... 41 21 B. 2007 INTERACTIONS WITH FISA COURT ............................................................................ 46 22 C. THE PROGRAM AFTER THE PROTECT AMERICA ACT OF 2007.............................................. 49 23 IV. EVIDENCE PROVIDING CONTEXT FOR GOVERNMENT ASSERTIONS ON THE 24 PROGRAM................................................................................................................................ 50 25 A. THERE IS NO SEPARATE TERRORIST SURVEILLANCE PROGRAM .......................................... 50 26 B. SURVEILLANCE THAT IS LATER MINIMIZED IS STILL SURVEILLANCE ................................... 53 27 C. MISLEADING USE OF THE TERMS “CONTENT,” “COMMUNICATIONS” AND “CONVERSATIONS”. ......................................................................................................................................... 54 28 -ii- No. M-06-01791-VRW EVID. RULE 1006 SUMMARY ISO PLAINTIFFS’ OPPOSITION TO MOTION OF THE UNITED STATES SEEKING TO APPLY FISAAA § 802 (50 U.S.C. § 1885a) TO DISMISS THESE ACTIONS Case M:06-cv-01791-VRW Document 481 Filed 10/16/2008 Page 3 of 66 1 D. THE GOVERNMENT’S ASSERTIONS OF HARM TO NATIONAL SECURITY ARE NOT CREDIBLE. 56 2 V. EVIDENCE OF ATTORNEY GENERAL MUKASEY’S BIAS ON TELECOM IMMUNITY ............................................................................................................................... 58 3 A. EVIDENCE OF THE ATTORNEY GENERAL’S INSTITUTIONAL RESPONSIBILITIES THAT PROVIDE 4 A STRONG MOTIVE TO RULE IN A WAY THAT WOULD AID THE INSTITUTION ........................... 58 5 B. EVIDENCE THAT THE ATTORNEY GENERAL HAS PREJUDGED THIS MATTER ........................ 59 6 CONCLUSION .......................................................................................................................... 61 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iii- No. M-06-01791-VRW EVID. RULE 1006 SUMMARY ISO PLAINTIFFS’ OPPOSITION TO MOTION OF THE UNITED STATES SEEKING TO APPLY FISAAA § 802 (50 U.S.C. § 1885a) TO DISMISS THESE ACTIONS Case M:06-cv-01791-VRW Document 481 Filed 10/16/2008 Page 4 of 66 INTRODUCTION 1 Plaintiffs submit this Summary of Voluminous Evidence pursuant to Federal Rule of 2 Evidence 1006 to assist the Court in its assessment of whether or not there is substantial evidence 3 supporting the Public Certification of the Attorney General of the United States (Case M:06-cv- 4 01791-VRW (“MDL”) Dkt. 469-3) (“Mukasey Certification”) that the telecom defendants are 5 entitled to dismissal of these actions under Section 802. The evidence contained in this voluminous 6 record supports plaintiffs’ Opposition To Motion Of The United States Seeking To Apply FISAAA 7 Section 802 (50 U.S.C. § 1885a) To Dismiss These Actions (“Section 802 Opposition”). Because 8 the record is so large, and because new relevant public domain information continues to come to 9 light, a Summary of Voluminous Evidence is an appropriate submission to assist the Court. See 10 Fed. R. Evid. 1006 (“The contents of voluminous writings, recordings, or photographs which 11 cannot conveniently be examined in court may be presented in the form of a chart, summary, or 12 calculation.”) 13 As this Court is aware, plaintiffs’ allegations primarily challenge two practices: the dragnet 14 acquisition of the communications of millions of Americans, including the named plaintiffs and the 15 class members, and the disclosure to the government of the communications records of millions of 16 Americans, including the named plaintiffs and the class members. See, e.g., Hepting v. AT&T 17 Corp., 439 F.Supp.2d 974, 978 (N.D. Cal. 2006) (listing statutory and constitutional causes of 18 action in Hepting lawsuit). The dragnet allegations focus on “acquisition by an electronic, 19 mechanical, or other surveillance device,” such as the fiber-optic splitters in AT&T’s Folsom 20 Street facility and other facilities that are at the heart of the lawsuits against AT&T, which involve 21 the acquisition of both content and non-content information. The communications records 22 allegations focus on the telecommunications companies’ disclosure of call-detail records to the 23 government. Collectively the warrantless domestic surveillance program involving the dragnet 24 acquisition of communications (including both content and non-content information) by 25 surveillance devices, as well as the disclosure of communications records constitutes the 26 “Program.” 27 28 -1- No. M-06-01791-VRW EVID. RULE 1006 SUMMARY ISO PLAINTIFFS’ OPPOSITION TO MOTION OF THE UNITED STATES SEEKING TO APPLY FISAAA § 802 (50 U.S.C. § 1885a) TO DISMISS THESE ACTIONS Case M:06-cv-01791-VRW Document 481 Filed 10/16/2008 Page 5 of 66 1 This Summary of Voluminous Evidence compiles in one document with supporting 2 exhibits the evidence demonstrating that the defendant telecommunications companies participated 3 in the Program and that their participation does not fall under any of the provisions of
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