Hepting v. AT&T: Challenging Corporate Collusion With the NSA

Document Date: August 15, 2007

Since 2002, telephone companies have been colluding in the president’s domestic spying program, wiretapping communications networks and voluntarily providing the NSA with millions of customers’ calling records. This information has been turned over without customer knowledge or consent, and without any court order, warrant, or other proper legal process.

In 2006, USA Today revealed the telecoms’ participation in the illegal spying program. A number of lawsuits were filed against various telecom companies including the ACLU of Illinois lawsuit Terkel v. AT&T, on behalf of the late author Studs Terkel and other Illinois citizens, and two lawsuits filed by the three California ACLU affiliates, Campbell v. AT&T and Riordan v. Verizon. These cases were all joined together with over 40 others and are now pending before U.S. District Court Judge Vaughn Walker in California. The ACLU of Illinois has been named co-lead counsel in the consolidated cases.

But by the time the consolidated cases came to him, Walker had already ruled on one of those cases, Hepting v. AT&T. Hepting is a class-action lawsuit brought by the Electronic Frontier Foundation that was filed soon after the The New York Times revealed the NSA’s warrantless surveillance program in December 2005. That lawsuit charges that the telecom giant violated customers’ Fourth Amendment rights by giving the NSA unfettered access to its communications and customer data with a warrant. Walker ruled that government could not use the state secrets privilege to block the lawsuit.

The government appealed that decision, and the U.S. Court of Appeals for the 9th Circuit heard oral arguments in August 2007. But before the appeals court could deliver a decision on the appeal, Congress passed the FISA Amendments Act in July 2008, which essentially legalized the NSA’s wiretapping operation. Following the law’s signing, the appeals court declined to rule on Hepting and remanded the case back to district court.

On December 2, 2008, the ACLU and EFF were back before Judge Walker arguing the unconstitutionality of the FISA Amendments Act. A decision is pending.

Logo courtesy of the EFF

> Background: Government Use of the State Secrets Privilege
> Map: The Fight Against Unchecked Surveillance, State by State
> Blog: Government Spying and the Pursuit of Accountability
> Transcript: ACLU’s Gregory T. Nojeim Speaks Before the United States Commission on Civil Rights (3/9/2007)
> From the Electronic Frontier Foundation: Hepting v. AT&T
> Litigation: ACLU v. NSA: The Challenge to Unchecked Government Surveillance

> MCLU Applauds Public Utility’s Demand that Verizon Tell the Truth About Cooperation with NSA’s Spying Program (1/29/2007)
> ACLU Fights Government Legal Maneuvers to Delay Challenges to Datamining (1/25/2007)
> ACLU Throws Support Behind Shareholder Challenge to AT&T on Illegal NSA Spying (1/17/2007)
> ACLU Continues Campaign to End Unlawful Government Spying on Americans (1/9/2007)
> Author Studs Terkel, Other Prominent Chicagoans Join in Challenge to AT&T Sharing of Telephone Records with the National Security Agency (5/22/2006)