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ROSS C. ANDERSON (#0109)
OF COUNSEL, WINDER & COUNSEL, P.C.
460 South 400 East
Salt Lake City, UT 84111
Telephone: (801) 322-2222
Facsimile: (801) 322-2282
randerson@winderfirm.com
Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

MARY JOSEPHINE (JOSIE) VALDEZ;
HOWARD STEPHENSON; DEEDA SEED;
DANIEL DARGER; WILLIAM GRANT
BAGLEY, and THOMAS NELSON
HUCKIN, on behalf of themselves and all
others similarly situated,

COMPLAINT FOR CONSTITUTIONAL,
COMMON LAW, AND STATUTORY
VIOLATIONS, SEEKING DAMAGES,
DECLARATORY, AND INJUNCTIVE
RELIEF

Plaintiffs,

PROPOSED CLASS ACTION

v.

JURY DEMANDED

NATIONAL SECURITY AGENCY;
FEDERAL BUREAU OF
INVESTIGATION; GEORGE W. BUSH, in
his personal capacity; MICHAEL V.
HAYDEN, in his personal capacity;
RICHARD B. CHENEY, in his personal
capacity; DAVID ADDINGTON; DOES #150, inclusive,

2:15-cv-00584-RJS
Case No. _______________
Robert J. Shelby
Judge __________________

Defendants.

COMPLAINT
1.

Plaintiffs, on behalf of themselves and a class of similarly situated persons, bring this action
and, demanding trial by jury, allege upon personal knowledge and belief as to their own
acts, and upon information and belief as to all other matters, as follows:

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PRELIMINARY STATEMENT
2.

Through this case, Plaintiffs challenge gross criminality and misconduct prohibited by
federal surveillance statutes, the Utah Constitution, the United States Constitution, and
federal statutes, in which the National Security Agency (“NSA”) and Federal Bureau of
Investigation (“FBI”) engaged, with the authorization and encouragement, following the
request of Michael V. Hayden (“Hayden”), of then-President George W. Bush (“Bush”),
then-Vice-President Richard B. Cheney (“Cheney”) and Cheney’s attorney, David
Addington (“Addington”), in blatant and knowing violation of the Fourth Amendment to
the United States Constitution and the Foreign Intelligence Surveillance Act (“FISA”),
which was passed by Congress in 1978 to prevent the very sorts of abuses and violations
of privacy at issue in this matter.

3.

Among the unlawful and unconstitutional acts by Bush, Cheney, and Addington, at the
urging of Hayden, were the authorization of the NSA and others in the Executive Branch
to engage in widespread, indiscriminate communications surveillance, interception, and
analysis, without warrants and without probable cause.

4.

Although Bush was President of the United States at the time, although Cheney was VicePresident of the United States at the time, and although Addington was legal counsel to the
Vice-President at the time, they had no legal authority whatsoever to authorize surveillance
that so clearly was in violation of the Fourth Amendment to the United States Constitution
and FISA. In fact, under FISA, every instance of the surveillance purportedly authorized
and encouraged by Bush, Cheney, and Addington, all of which was sought and requested
by Hayden, was a felony.

5.

The expressed views of Bush, Cheney, and Addington that the Executive Branch, and the
President in particular, were not bound by laws passed by Congress because of the national

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security situation at the time, were contrary to the core principles of our constitutional
republic, the rule of law, the constitutional system of checks and balances, and the rights
of people in the United States to privacy and to freedom from unreasonable searches and
seizures. In fact, Bush, Cheney, Addington, Hayden, and other agents of the Executive
Branch were not above the law and, hence, acted completely outside their authority and
outside the Constitution in authorizing wholesale spying by the federal government on
people in the United States.
6.

In mid-December 2005, it was disclosed that then-President Bush, since October 2001, had
authorized and ordered the NSA, in a program known within the NSA as “Stellar Wind”
and within the executive branch as “the President’s Surveillance Program” or simply as
“the Program,” to engage in widespread, warrantless, unconstitutional, felonious
surveillance of email, text, internet, and telephone communications in the United States.
Since then, it has been disclosed that then-Vice-President Cheney and his legal counsel
Addington were instrumental in authorizing and encouraging the illegal and
unconstitutional surveillance, with Addington drafting a secret written authorization for
NSA Director Hayden to keep in his safe.

7.

Bush, Cheney, and Addington well knew that their authorization and encouragement of
widespread, warrantless surveillance of communications in the United States—without any
showing of probable cause to believe a crime had been, or was about to be, committed by
any of the parties to the communications—were unconstitutional and in violation of
applicable federal statutes. Hence, their authorizations and encouragement of the illegal
and unconstitutional surveillance were willful and intentional, and were committed with
criminal intent. Bush demonstrated several times, after he had ordered, authorized, and
encouraged the illegal surveillance, that he knew such surveillance was unlawful and
unconstitutional. For instance, Bush made the following statements about constitutional

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and other legal requirements he knew he had already violated with respect to the
surveillance of communications:
•

On April 19, 2004, Bush deceitfully implied to the American people that his
administration was complying with the warrant requirement of the Constitution and
FISA, as he described a legal requirement for a wiretap as follows:
You see, what that meant is if you got a wiretap by court
order – and, by the way, everything you hear about requires
court order, requires there to be permission from a FISA
court, for example.

•

The next day, April 20, 2004, Bush deceptively led the public to believe that
constitutional requirements for surveillance were being followed, as he recognized
the constitutional and other legal requirements he had secretly, consistently, and
blatantly violated for two and one-half years at that point, stating:
It requires – a wiretap requires – a court order. Nothing has
changed, by the way. When we’re talking about chasing
down terrorists, we’re talking about getting a court order
before we do so. It’s important for our fellow citizens to
understand, when you think Patriot Act, constitutional
guarantees are in place when it comes to doing what is
necessary to protect our homeland because we value the
Constitution.

•

Likewise, on July 20, 2005, Bush admitted to legal standards he knew he had
grossly violated, as follows:
The Patriot Act helps us defeat our enemies while
safeguarding civil liberties for all Americans. The judicial
branch has a strong oversight role in the application of the
Patriot Act. Law enforcement officers need a federal judge’s
permission to wiretap a foreign terrorist’s phone, or to track
his calls, or to search his property. Officers must meet strict
standards to use any of the tools we’re talking about. And
they are fully consistent with the Constitution of the United
States.

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8.

The NSA, in conjunction with the FBI, planned and implemented a mass warrantless
program—for which there was no probable cause, completely outside the Constitution and
outside of any applicable federal statutory laws, including FISA, the Wiretap Act, and the
Stored Communications Act—in which blanket surveillance was attempted and achieved
during a period preceding the commencement of the 2002 Salt Lake Winter Olympic
Games and throughout the period of the Games, from February 8, 2002 (Opening
Ceremony) through February 24 (Closing Ceremony), over everyone within designated
geographical areas, including Salt Lake City, Utah, and the areas including and in the
vicinity of all Olympic venues. That surveillance included the interception and key-word
spotting analysis of the contents of every text message sent and received, every email sent
and received, and information reflecting the time and length of, and telephone numbers
involved in, every telephone conversation involving any person within the areas subjected
to the blanket surveillance. In some instances, people or telephone numbers were targeted
by the NSA and FBI and telephone conversations involving such targeted telephone
numbers were illegally and unconstitutionally recorded and subjected to analysis, without
a warrant and without probable cause.

9.

In light of the practice and philosophy of the NSA to horde everything obtained through
surveillance, Plaintiffs believe that the communications illegally and unconstitutionally
subjected to surveillance, interception, and key-word spotting analysis are presently
unlawfully stored by the NSA, subject to unlawful access at any time in the future.
JURISDICTION AND VENUE

10.

This Court has subject matter jurisdiction over the federal claims pursuant to 28 U.S.C. §
1331 and 5 U.S.C. § 702.

11.

This Court has supplemental jurisdiction over the state claims pursuant to 28 U.S.C. §
1367.

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12.

Defendants have sufficient contacts with this district generally and, in particular, with the
events described herein, that Defendants are subject to the exercise of jurisdiction of this
Court over the person of the Defendants.

13.

Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391 (b) and (e).
PARTIES

14.

Plaintiff Mary Josephina Valdez (“Valdez”), currently a resident of Salt Lake City, resided
in Salt Lake County, Utah, during the 2002 Salt Lake Winter Olympic Games. At the time,
Valdez was employed at the Small Business Administration (“SBA”), with her office in
the Federal Building in Salt Lake City, and was in Salt Lake City to work at the SBA on
many of the days during the Olympic Games. She also attended Olympic-related events in
Salt Lake City during the period of the 2002 Winter Olympic Games. While in Salt Lake
City, she made many telephone calls, both private and business-related, and also
communicated on a regular basis by email. During approximately one week during the
period of the 2002 Winter Olympic Games, Valdez traveled to Puerto Rico and made many
telephone calls to people located in Salt Lake City. While at her home, she engaged in
frequent landline and cellular phone calls to people located in Salt Lake City.

15.

Plaintiff Howard Stephenson (“Stephenson”) is, and during the 2002 Salt Lake Winter
Olympic Games was, a resident of Draper, Utah. At all relevant times he has served as
President of the Utah Taxpayers Association. Stephenson is, and during the 2002 Salt Lake
Winter Olympic Games was, a Utah State Senator in the Utah State Legislature. At all
relevant times, Stephenson frequently spent time in Salt Lake City, including at the Utah
Capitol Building in Salt Lake City, where the Senate meets when it is in session. The Utah
Legislature adjourned for the 2002 Salt Lake Winter Olympic Games, but just prior to the
Games, the Legislature was in session full-time and Stephenson was in attendance.
Whenever Stephenson was at the Utah Capitol building, he used his Blackberry and a

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computer to send email messages to people in and outside of Salt Lake City. He also used
a land-line telephone and cell phone. For many days during the Olympics, Stephenson was
in Salt Lake City, meeting dignitaries from other nations, attending events at nation houses,
and also visiting his office in the Utah Capitol Building. Whenever he was in Salt Lake
City during the 2002 Salt Lake Winter Olympic Games, Stephenson engaged in email
communications, and also engaged in telephone communications utilizing his cell phone
and land-line when there was a land-line telephone available.

During the Opening

Ceremony in Salt Lake City, Stephenson’s children were in attendance and texted or
emailed Stephenson about the ceremony. Stephenson also took the Heber Creeper train
and attended the biathlon Olympic competition at Soldier Hollow, a venue of the 2002 Salt
Lake Winter Olympic Games
16.

Plaintiff Deeda Seed (“Seed”), currently a resident of Salt Lake City, lived in Salt Lake
City during the time period of the 2002 Salt Lake Winter Olympic Games. At that time,
she had both a landline and cell phone, with service provided by AT&T, and frequently
engaged in telephone calls with people in and outside of Salt Lake City. She also engaged
in email communications with people in and outside of Salt Lake City from computers at
her home and her place of employment in Salt Lake City. At the time of the 2002 Winter
Olympic Games, Seed was employed as Special Project Coordinator with the Salt Lake
City Public Library System in Salt Lake City, Utah. Her internet service providers were
Quest and Earthlink.

17.

Daniel Darger (“Darger”) currently resides, and at the time of the 2002 Salt Lake Winter
Olympic Games resided, in Emigration Canyon, Salt Lake County, Utah. At the time of
the 2002 Winter Olympic Games, Darger practiced law, with his law office located in Salt
Lake City. From his office and from other locations in Salt Lake City, Darger had
numerous telephone communications with others, including legally privileged and

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confidential communications with clients, during the 2002 Salt Lake Winter Olympic
Games, both originating and received in Salt Lake City. In addition to his law practice,
Darger was the owner of a business located in Salt Lake City through his entity Iguana,
LC, which was in the business of operating a restaurant located in Salt Lake City. Darger
was also CEO and Chair of the Board of RBD, Inc., dba Dead Goat Saloon, operating a
private blues club located in Salt Lake City. Darger had a land line telephone system in
his office, the service provider of which was AT&T. He also used two cell phones, utilizing
services provided by Verizon and Cricket. At all relevant times, Darger also engaged in
email communications, sometimes from a lap top computer he carried with him, including
confidential communications with clients, originating and received in Salt Lake City.
Darger made and received telephone calls and emails at the locations of all of the
businesses with which he was associated during the 2002 Salt Lake Winter Olympic
Games. Darger attended Olympic-related events, including private parties utilizing The
Dead Goat Saloon during the 2002 Winter Olympic Games, and engaged in telephonic
and/or email communications during and in connection with those events in Salt Lake City.
18.

William Grant Bagley, a prize-winning editor of eight books on the American West and
series editor of the fifteen-volume Arthur H. Clark Company’s documentary history
Kingdom in the West: The Mormons and the American Frontier, currently resides, and
during the 2002 Salt Lake Winter Olympic Games resided, in Salt Lake City, Utah. At that
time, he engaged in many communications by telephone and email from his home and
elsewhere in Salt Lake City, with people located in and outside of Salt Lake City, including
extremely sensitive and confidential communications in connection with a controversial
book Bagley was writing about the Mountain Meadows Massacre, the mass slaughter by
early Mormon settlers of about 120 men, women, and children, most of them traveling
from Arkansas to California.

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19.

Thomas Nelson Huckin (“Huckin”) currently resides, and during the 2002 Salt Lake Winter
Olympic Games resided, in Salt Lake City, Utah. At all relevant times, Huckin was
employed at the University of Utah in Salt Lake City as a Professor of English and Writing
and as Director of the University Writing Program. During the 2002 Salt Lake Winter
Olympic Games, Huckin was a subscriber to telephone service at his home, through AT&T,
and utilized that service and a telephone at his office, also through AT&T, and made and
received numerous calls from Salt Lake City to and from people located in Salt Lake City.
Huckin also communicated while in Salt Lake City through two email accounts, one that
was his private account and another that was his office account at the University of Utah.
Huckin’s email communications were with people both in and outside of Salt Lake City.

20.

During the 2002 Salt Lake Winter Olympic Games, Plaintiffs utilized the services of one
or more telecommunications service providers through which the NSA and FBI engaged
in illegal and unconstitutional surveillance of information that included the length, times,
and telephone numbers involved in each telephonic communication. Plaintiffs also
subscribed to telecommunications services that allowed the sending of emails and, on a
regular basis, sent and received emails while they were in Salt Lake City and near other
Olympic venues, all of which were subjected by the NSA and FBI to illegal and
unconstitutional surveillance, interception, and key-word spotting analysis.

21.

Defendant NSA is an agency under the direction and control of the Department of Defense
charged with collecting, processing, and disseminating foreign signals intelligence. The
NSA has acted far beyond its proper, assigned scope and has been responsible for the
program of widespread illegal and unconstitutional surveillance described herein.

22.

Defendant FBI is an intelligence and security service of the United States, serving also as
the major federal law enforcement organization, under the direction and control of the
Department of Justice. The FBI has a long record of abuses of the Constitution and other

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federal laws, including violations of surveillance prohibitions and limitations. The FBI
worked in conjunction with the NSA in subjecting private communications by text
messages, emails, and telephone to illegal and unconstitutional surveillance, interception,
and key-word spotting analysis.
23.

Defendant Bush was the 43rd President of the United States, who served as President from
2001 to 2009. Bush expressed and acted on the view that, as President following the attacks
on the United States on September 11, 2001, he was above the law, able to ignore and act
in violation of laws passed by Congress and the Constitution. He was the first President in
U.S. history to authorize and/or condone torture of human beings, all of which was
blatantly illegal under domestic and international law, and, knowing he was violating laws
passed by Congress and the Constitution, ordered illegal and unconstitutional surveillance
to be conducted by the NSA, and then deceived the public about it.

24.

Defendant Hayden was Director of the NSA from 1999 to 2005. Hayden requested and
urged that the NSA be permitted to engage in widespread warrantless surveillance of
electronic

communications,

including

text

messages,

emails,

and

telephone

communications. Hayden sought and received written authorization to engage in the
clearly illegal and unconstitutional surveillance and caused the NSA to engage in such
surveillance, including the massive, indiscriminate, warrantless surveillance of the contents
of text messages, emails, and telephone calls originating or received in Salt Lake City and
in the vicinity of other Olympic venues during the 2002 Salt Lake Winter Olympic Games.
25.

Defendant Cheney was Vice-President during both terms of the Bush presidency. Prior to
that, he was a Congressman, a presidential aide to Presidents Nixon and Ford, and Secretary
of Defense during the administration of George H.W. Bush. Cheney has been a consistent
proponent, since his work with the Nixon administration and his tenure in Congress, of the
notion that the President should be above the law, not hampered by laws passed by

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Congress or by the Constitution, when important national security matters are at issue.
Consistent with his notion regarding an imperial, law-breaking presidency, Cheney
authorized, or purported to authorize, the illegal, unconstitutional surveillance,
interception, and analysis of electronic communications by the NSA and was instrumental
in causing the illegal surveillance program to be implemented.
26.

Defendant Addington was legal counsel for Cheney during all times relevant to this matter.
Later, he served as Cheney’s chief of staff. Addington oversaw the authorization of the
broad, widespread, illegal and unconstitutional surveillance program that was implemented
by the NSA. He drafted the written authorization for illegal surveillance by the NSA that
was provided to Hayden.

27.

Does 1-50 are or were agents of the NSA and FBI presently unknown to Plaintiffs who
authorized, oversaw, and/or implemented the illegal surveillance alleged herein, each in
their personal capacities.
CLASS ACTION ALLEGATIONS

28.

Definition of the proposed class: Pursuant to Rule 23(b)(3), Federal Rules of Civil
Procedure, Plaintiffs bring this action on behalf of themselves and a class of similarly
situated persons defined as:
All individuals in the United States who sent or received a phone call, text message,
or email from or to a location within Salt Lake City or within an area including and
adjacent to any other 2002 Salt Lake Winter Olympic Games venue where any of
the defendants were engaged in warrantless surveillance of communications by
telephone, text messaging, or email during the time of December 1, 2001 to
February 24, 2002 (or whenever it is established the warrantless surveillance took
place).

29.

Size of the proposed class: The proposed class is likely composed of several hundred
thousands, if not a million or more, people. Members of the class are so numerous that

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their individual joinder is impracticable. The precise number and addresses of members of
the class are unknown to the Plaintiffs. The precise number of persons in the class and their
identities and addresses may be ascertained from Defendants’ records.
30.

Adequacy of representation by the class representatives: Plaintiffs are adequate
representatives of the class because their interests align with, and do not conflict with, the
interests of the members of the class they seek to represent. Plaintiffs have retained
competent counsel, and Plaintiffs intend to prosecute this action vigorously. Plaintiffs and
their counsel will fairly and adequately protect the interests of the members of the class.

31.

The common questions of law and fact: There is a well-defined community of interest in
the questions of law and fact involved affecting the members of the class. These common
legal and factual questions include:

(a)
Whether Defendants have violated, or caused to have violated, class members’
rights under the First and Fourth Amendments of the United States Constitution, or are currently
doing so.
(b)
Whether Defendants have, or caused to have, violated class members’ rights under
Article 1, § 14 of the Utah Constitution, or are currently doing so.
(c)
Whether Defendants have, or caused to have, subjected class members to electronic
surveillance, or have disclosed or used information obtained by electronic surveillance of the class
members, in violation of 50 U.S.C. § 1809, or are currently doing so.
(c)
Whether Defendants have, or caused to have, intercepted, used or disclosed class
members’ communications in violation of 18 U.S.C. § 2511, or are currently doing so.
(d)
Whether Defendants have, or caused to have, required the disclosure of the contents
of class members’ communications in violation of 18 U.S.C. § 2703(a) or (b), or are currently
doing so.
(e)
Whether Defendants have, or caused to have, required the disclosure of noncontent records or other information pertaining to class members in violation of 18 U.S.C. §
2703(c), or are currently doing so.

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(f)
Whether Defendants have, or caused to have, violated the Administrative
Procedures Act, 5 U.S.C. §§ 701 et seq., or are currently doing so.
(g)
Whether the Defendants have, or caused to have, intercepted class members’
privately communicated messages in violation of Utah Code § 76-9-403, or are currently doing so.
(h)
Whether Plaintiffs and class members are entitled to injunctive, declaratory, and
other equitable relief against Defendants.
(i)
Whether Plaintiffs and class members are entitled to an award of reasonable
attorneys’ fees and costs of this suit.
(j)
Whether Plaintiffs and class members are entitled to an award of actual and
punitive damages.
32.

The typicality of claims or defenses of the class representatives: Plaintiffs’ claims are
typical of the claims of the members of the class because Plaintiffs were users of
telecommunication services and sent or received one or more phone calls, text messages,
or emails from or to a location within Salt Lake City or within a one-mile radius of any
other 2002 Salt Lake Winter Olympic Games venue during the time of December 1, 2001
to February 24, 2002. Plaintiffs and all members of the class have similarly suffered harm
arising from Defendants’ violations of law, as alleged herein.

33.

Nature of the notice to the proposed class: Plaintiffs will provide notice to the class as
directed by the Court, pursuant to Rule 23(c)(2), Federal Rules of Civil Procedure.

34.

Additional matters pertinent to findings as provided by Rule 23(b)(3), Federal Rules of
Civil Procedure: (a) The class members have not demonstrated an interest in individually
controlling the prosecution of separate actions and the statute of limitations is likely going
to run within a few days of the filing of this action. (b) No litigation has been commenced
concerning the controversy that is the subject of this Complaint. (c) It is desirable that the

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litigation concerning the claims in this matter should be in this forum. (d) Managing a
class action will be far simpler, and will achieve far greater justice, than denying class
status and depriving class members of a remedy and accountability for the unconstitutional
and unlawful surveillance of their communications.
35.

Plaintiffs seek certification as a class action of claims for monetary damages and
declaratory, injunctive, and other equitable relief pursuant to 18 U.S.C. § 2520, 18 U.S.C.
§ 2707, 50 U.S.C. § 1810, 5 U.S.C. § 552a, UTAH CODE § 76-9-403, 5 U.S.C. § 1702, the
First and Fourth Amendments to the United States Constitution, and Article 1, § 14 of the
Utah Constitution.

36.

Excluded from the class are the individual Defendants, all who have acted in active concert
and participation with the individual Defendants, and the legal representatives, heirs,
successors, and assigns of the individual Defendants.

37.

Also excluded from the class are any foreign powers, as defined by 50 U.S.C. § 1801(a),
or any agents of foreign powers, as defined by 50 U.S.C. § 1801(b)(1)(A), including
without limitation anyone who knowingly engages in sabotage, international terrorism, or
activities that are in preparation therefor.

38.

This action is brought as a class action and may properly be so maintained pursuant to the
provisions of Rule 23, Federal Rules of Civil Procedure. Plaintiffs reserve the right to
modify the class definition and the class period based on the results of discovery.

39.

This suit may be maintained as a class action pursuant to Rule 23(b)(3), Federal Rules of
Civil Procedure, because all of the above factors of numerosity, common questions of fact
and law, typicality and adequacy are present, because questions of fact and law common

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to class members predominate over any questions affecting only individual members, and
because a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.
Count I
Violation of Fourth Amendment of United States Constitution and
Article 1, § 14 of Utah Constitution – Damages
Named Plaintiffs and Class v. Bush (in his personal capacity), Cheney (in his personal
capacity), Addington (in his personal capacity), Hayden (in his personal capacity),
Does 1-50 (unknown agents of the NSA and FBI who authorized, oversaw, and/or
implemented the illegal surveillance alleged herein, each in their personal capacities).
40.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this Complaint, as if set forth fully herein.

41.

Plaintiffs have a reasonable expectation of privacy in their communications, contents of
communications, and/or records pertaining to their communications transmitted, collected,
or stored by any telecommunications company.

42.

Defendants have directly performed, or aided, abetted, counseled, commanded, induced,
procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the
commission of, the above-described acts of acquisition, interception, surveillance and
analysis of Plaintiffs’ communications, contents of communications, and records
pertaining

to

their

communications

transmitted,

collected,

and/or

stored

by

telecommunication service providers without judicial or other lawful authorization,
probable cause, and/or individualized suspicion, in violation of statutory and constitutional
limitations, and in excess of statutory and constitutional authority.
43.

On information and belief, one or more telecommunication service providers acted as the
agent of Defendants in performing, participating in, enabling, contributing to, facilitating,

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or assisting in the commission of the above-described acts of acquisition, interception,
surveillance and analysis of Plaintiffs’ communications, contents of communications, and
records pertaining to their communications transmitted, collected, and/or stored by the
telecommunication service provider without judicial or other lawful authorization,
probable cause, and/or individualized suspicion.
44.

Clearly established law, including the plain text of the Fourth Amendment, indicated to
any reasonable person that surveillance of the contents of private communications without
warrant or probable cause was a violation of statutory and constitutional rights. A fortiori,
blanket surveillance of the contents of messages of all individuals within large,
geographically targeted areas, without warrant, without probable cause, and without
individualized suspicion, must have been known at all relevant times to have been wholly
unconstitutional and in violation of federal surveillance and privacy statutes.

45.

At all relevant times, Defendants committed, knew of, and/or acquiesced in all of the
above-described acts, and failed to obtain judicial or other lawful authorization and to
conform their conduct to the requirements of the Fourth Amendment of the United States
Constitution and Article 1, § 14 of the Utah Constitution.

46.

By the acts alleged herein, Defendants have violated Plaintiff’s reasonable expectations of
privacy and denied Plaintiffs their right to be free from unreasonable searches and seizures
as guaranteed by the Fourth Amendment of the United States Constitution and Article 1, §
14 of the Utah Constitution.

47.

By the acts alleged herein, Defendants’ conduct has proximately caused significant harm
to Plaintiffs.

48.

Plaintiffs have no other adequate remedy at law for the Count I Defendants’ violation of
Plaintiffs’ rights to be free from unreasonable searches and seizures as guaranteed by the

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Fourth Amendment of the United States Constitution and Article 1, § 14 of the Utah
Constitution.
49.

Plaintiffs seek an award of their actual damages and punitive damages against the Count I
Defendants, and such other or further relief as is proper.
Count II

Violation of Fourth Amendment of United States Constitution and Article 1, § 14 of Utah
Constitution - Equitable relief
Named Plaintiffs and Class v. United States, NSA, and FBI.
50.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this Complaint, as if set forth fully herein.

51.

Plaintiffs have a reasonable expectation of privacy in their communications, contents of
communications, and/or records pertaining to their communications transmitted, collected,
or stored by any telecommunications company.

52.

Defendants have directly performed, or aided, abetted, counseled, commanded, induced,
procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the
commission of, the above-described acts of acquisition, interception, surveillance and
analysis of Plaintiffs’ communications, contents of communications, and records
pertaining

to

their

communications

transmitted,

collected,

and/or

stored

by

telecommunication service providers without judicial or other lawful authorization,
probable cause, and/or individualized suspicion, in violation of statutory and constitutional
limitations, and in excess of statutory and constitutional authority.
53.

On information and belief, one or more telecommunication service providers acted as the
agent of Defendants in performing, participating in, enabling, contributing to, facilitating,
or assisting in the commission of the above-described acts of acquisition, interception,

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surveillance and analysis of Plaintiffs’ communications, contents of communications, and
records pertaining to their communications transmitted, collected, and/or stored by the
telecommunication service provider without judicial or other lawful authorization,
probable cause, and/or individualized suspicion.
54.

Clearly established law, including the plain text of the Fourth Amendment, indicated to
any reasonable person that surveillance of the contents of private communications without
warrant or probable cause was a violation of statutory and constitutional rights. A fortiori,
blanket surveillance of the contents of messages of all individuals within large,
geographically targeted areas, without warrant, without probable cause, and without
individualized suspicion, must have been known at all relevant times to have been wholly
unconstitutional and in violation of federal surveillance and privacy statutes.

55.

At all relevant times, Defendants committed, knew of, and/or acquiesced in all of the
above-described acts, and failed to obtain judicial or other lawful authorization and to
conform their conduct to the requirements of the Fourth Amendment of the United States
Constitution and Article 1, § 14 of the Utah Constitution.

56.

By the acts alleged herein, Defendants have violated Plaintiff’s reasonable expectations of
privacy and denied Plaintiffs their right to be free from unreasonable searches and seizures
as guaranteed by the Fourth Amendment of the United States Constitution and Article 1, §
14 of the Utah Constitution.

57.

On information and belief, the Count II Defendants are now engaging in and will continue
to engage in the above-described and similar violations of Plaintiffs’ and class members’
constitutional rights, and are thereby irreparably harming Plaintiffs and class members.
Plaintiffs and class members have no adequate remedy at law for the Count II Defendants’
continuing unlawful conduct, and the Count II Defendants will continue to violate
Plaintiffs’ and class members’ legal rights unless enjoined and restrained by this Court.

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58.

Plaintiffs seek a declaration by this Court that Defendants have violated Plaintiffs’ rights
and the rights of the class.

59.

The Court should enjoin the Count II Defendants, their agents, successors, and assigns, and
all those in active concert and participation with them, from violating the Plaintiffs’ and
class members’ rights under the Fourth Amendment to the United States Constitution and
Article 1, § 14 of the Utah Constitution; and award such other and further equitable relief
as is proper.
Count III
Violation of First Amendment of the United States Constitution – Damages
Named Plaintiffs and Class v. Bush (in his personal capacity), Cheney (in his personal
capacity), Hayden (in his personal capacity), Addington (in his personal capacity),
Does 1-50 (unknown agents of the NSA and FBI who authorized, oversaw, and/or
implemented the illegal surveillance alleged herein, each in their personal capacities)

60.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this Complaint, as if set forth fully herein.

61.

Plaintiffs used telecommunication service providers to exercise their rights of free speech,
association, and privacy, to speak or receive speech privately and to associate privately.

62.

Defendants have directly performed, or aided, abetted, counseled, commanded, induced,
procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the
commission of, the above-described acts of acquisition, interception, surveillance and
analysis of Plaintiffs’ communications, contents of communications, and records
pertaining

to

their

communications

transmitted,

collected,

and/or

stored

by

telecommunication service providers without judicial or other lawful authorization,
probable cause, and/or individualized suspicion, in violation of statutory and constitutional
limitations, and in excess of statutory and constitutional authority.

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63.

By the acts alleged herein, Defendants’ conduct proximately caused harm to Plaintiffs.

64.

Plaintiffs have no other adequate remedy at law for the Count III Defendants’ violation of
Plaintiffs’ rights to speak, receive speech, and associate privately as guaranteed by the First
Amendment of the United States Constitution.

65.

Defendants’ conduct was done intentionally, with deliberate indifference, or with reckless
disregard of, Plaintiffs’ constitutional rights.

66.

Plaintiffs seek an award of actual damages and punitive damages against the Count III
Defendants, and for such other or further relief as is proper.
Count IV

Violation of First Amendment of the Constitution of the United States – Equitable relief
Named Plaintiffs and Class v. United States, NSA, and FBI.
67.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this Complaint, as if set forth fully herein.

68.

Plaintiffs used telecommunication service providers to exercise their rights of free speech,
association, and privacy, to speak or receive speech privately and to associate privately.

69.

Defendants have directly performed, or aided, abetted, counseled, commanded, induced,
procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the
commission of, the above-described acts of acquisition, interception, surveillance and
analysis of Plaintiffs’ communications, contents of communications, and records
pertaining

to

their

communications

transmitted,

collected,

and/or

stored

by

telecommunication service providers without judicial or other lawful authorization,
probable cause, and/or individualized suspicion, in violation of statutory and constitutional
limitations, and in excess of statutory and constitutional authority.

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70.

By the acts alleged herein, Count IV Defendants’ conduct proximately caused harm to
Plaintiffs.

71.

Count IV Defendants’ conduct was done intentionally, with deliberate indifference, or with
reckless disregard of, Plaintiffs’ constitutional rights.

72.

On information and belief, the Count IV Defendants are now engaging in and will continue
to engage in the above-described or similar violations of Plaintiffs’ and class members’
constitutional rights, and are thereby irreparably harming Plaintiffs and class members.
Plaintiffs and class members have no adequate remedy at law for the Count IV Defendants’
continuing unlawful conduct, and the Count IV Defendants will continue to violate
Plaintiffs’ and class members’ legal rights unless enjoined and restrained by this Court.

73.

Plaintiffs seek that this Court declare that Count IV Defendants have violated their rights
and the rights of the class; enjoin the Count IV Defendants, their agents, successors, and
assigns, and all those in active concert and participation with them from violating the
Plaintiffs’ and class members’ rights under the First Amendment to the United States
Constitution; and award such other and further equitable relief as is proper.
Count V
Violation of FISA (50 U.S.C. § 1809, actionable under 50 U.S.C. § 1810) – Damages
Named Plaintiffs and Class v. United States, FBI, NSA, Bush (in his personal
capacity), Cheney (in his personal capacity), Hayden (in his personal capacity),
Addington (in his personal capacity), Does 1-50 (unknown agents of the NSA and FBI
who authorized, oversaw, and/or implemented the illegal surveillance alleged herein,
each in their personal capacities)

74.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this Complaint, as if set forth fully herein.

75.

In relevant part, 50 U.S.C. § 1809 makes it unlawful to intentionally engage in electronic
surveillance under color of law “except as authorized in this chapter, chapter 119, 121, or

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206 of Title 18 or by any express statutory authorization that is an additional exclusive
means for conducting electronic surveillance under section 1812 of this title.”
76.

Defendants intentionally acquired, or aided, abetted, counseled, commanded, induced,
procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the
commission of such acquisition, by means of a surveillance device, the contents of one or
more wire communications to or from Plaintiffs and class members or other information in
which Plaintiffs or class members have a reasonable expectation of privacy, without the
consent of any party thereto, and such acquisition occurred in the United States.

77.

Defendants have directly performed, or aided, abetted, counseled, commanded, induced,
procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the
commission of, the above-described acts of acquisition, interception, surveillance and
analysis of Plaintiffs’ communications, contents of communications, and records
pertaining

to

their

communications

transmitted,

collected,

and/or

stored

by

telecommunication service providers without judicial or other lawful authorization,
probable cause, and/or individualized suspicion, in violation of statutory and constitutional
limitations, and in excess of statutory and constitutional authority.
78.

By the acts alleged herein, Defendants acting in excess of their statutory authority and in
violation of statutory limitations have intentionally engaged in, or aided, abetted,
counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled,
assisted in, or conspired in the commission of, electronic surveillance (as defined by 50
U.S.C. § 1801(f)) under color of law, not authorized by any statute, to which Plaintiffs and
class members were subjected in violation of 50 U.S.C. § 1809.

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79.

Plaintiffs are entitled to relief under 50 U.S.C. § 1810, which provides civil liability against
any person who subjects another to surveillance in violation of 50 U.S.C. § 1809.

80.

Plaintiffs seek an award of their statutory or actual damages, punitive damages, reasonable
attorney’s fees and other investigation and litigation costs reasonably incurred against the
Defendants, and such other or further relief as is proper.
Count VI

Violation of Wiretap Act (18 U.S.C. § 2511, actionable under 18 U.S.C. § 2520) – Damages
Named Plaintiffs and Class v. United States, NSA, FBI, and Bush (in his personal
capacity), Cheney (in his personal capacity), Hayden (in his personal capacity),
Addington (in his personal capacity), Does 1-50 (unknown agents of the NSA and FBI
who authorized, oversaw, and/or implemented the illegal surveillance alleged herein,
each in their personal capacities)
81.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this Complaint, as if set forth fully herein.

82.

In relevant part, 18 U.S.C. § 2511 makes it unlawful to intentionally intercept, endeavor to
intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral,
or electronic communication except as specifically provided by the Wiretap Act.

83.

By the acts alleged herein, Defendants have intentionally and willfully intercepted,
endeavored to intercept, or procured another person to intercept or endeavor to intercept,
Plaintiffs’ wire or electronic communications in violation of 18 U.S.C. § 2511(1)(a).

84.

Defendants have intentionally and willfully used, or endeavored to use, the contents of
Plaintiffs’ wire or electronic communications, while knowing or having reason to know
that the information was obtained through the interception of wire or electronic
communications in violation of 18 U.S.C. § 2511(1)(d).

85.

Defendants have intentionally and willfully caused, or aided, abetted, counseled,
commanded, induced, procured, encouraged, promoted, instigated, advised, participated

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in, contributed to, facilitated, directed, controlled, assisted in, or conspired to cause
telecommunication service providers’ divulgence of Plaintiffs’ wire or electronic
communications to Defendants while in transmission, in violation of 18 U.S.C. §
2511(3)(a).
86.

Defendants have committed these acts of interception and use of Plaintiffs’
communications directly, or by aiding, abetting, counseling, commanding, inducing,
procuring, encouraging, promoting, instigating, advising, willfully causing, participating
in, enabling, contributing to, facilitating, directing, controlling, assisting in, or conspiring
in their commission.

87.

On information and belief, telecommunication service providers acted as the agents of
Defendants in performing, participating in, enabling, contributing to, facilitating, or
assisting in the commission of these acts of interception, disclosure, divulgence and/or use
of Plaintiffs’ communications.

88.

Defendants did not notify Plaintiffs of the above-described intentional interception,
disclosure, and/or use of their wire or electronic communications, nor did Plaintiffs or class
members consent to such.

89.

Plaintiffs have been and are aggrieved by Defendants’ intentional and willful interception,
disclosure, divulgence and/or use of their wire or electronic communications.

90.

Plaintiffs have therefore been subjected by Defendants to the unlawful interception, and
intentional use of Plaintiff’s wire, oral, and/or electronic communications in violation of
18 U.S.C. § 2511, entitling them to relief against Defendants pursuant to 18 U.S.C. § 2520.

91.

Pursuant to 18 U.S.C. § 2520, which provides a civil action for any person whose wire or
electronic communications have been intercepted, disclosed, divulged or intentionally used
in violation of 18 U.S.C. § 2511, Plaintiffs seek from the Count VI Defendants for each

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Plaintiff their statutory damages or actual damages; punitive damages as appropriate;
reasonable attorney’s fees; litigation costs; and such other and further relief as is proper.
Count VII
Violation of Wiretap Act (18 U.S.C. § 2511, actionable under 18 U.S.C. § 2520) –
Equitable relief
Named Plaintiffs and Class v. United States, NSA, and FBI.
92.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this Complaint, as if set forth fully herein.

93.

In relevant part, 18 U.S.C. § 2511 makes it unlawful to intentionally intercept, endeavor to
intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral,
or electronic communication except as specifically provided by the Wiretap Act.

94.

By the acts alleged herein, Defendants have intentionally and willfully intercepted,
endeavored to intercept, or procured another person to intercept or endeavor to intercept,
Plaintiffs’ wire or electronic communications in violation of 18 U.S.C. § 2511(1)(a).

95.

Defendants have intentionally and willfully used, or endeavored to use, the contents of
Plaintiffs’ wire or electronic communications, while knowing or having reason to know
that the information was obtained through the interception of wire or electronic
communications in violation of 18 U.S.C. § 2511(1)(d).

96.

Defendants have intentionally and willfully caused, or aided, abetted, counseled,
commanded, induced, procured, encouraged, promoted, instigated, advised, participated
in, contributed to, facilitated, directed, controlled, assisted in, or conspired to cause
telecommunication service providers’ divulgence of Plaintiffs’ wire or electronic
communications to Defendants while in transmission, in violation of 18 U.S.C. §
2511(3)(a).

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97.

Defendants have committed these acts of interception and use of Plaintiffs’
communications directly or by aiding, abetting, counseling, commanding, inducing,
procuring, encouraging, promoting, instigating, advising, willfully causing, participating
in, enabling, contributing to, facilitating, directing, controlling, assisting in, or conspiring
in their commission.

98.

On information and belief, telecommunication service providers acted as the agents of
Defendants in performing, participating in, enabling, contributing to, facilitating, or
assisting in the commission of these acts of interception, disclosure, divulgence and/or use
of Plaintiffs’ communications.

99.

Defendants did not notify Plaintiffs of the above-described intentional interception,
disclosure, and/or use of their wire or electronic communications, nor did Plaintiffs or class
members consent to such.

100.

Plaintiffs have been and are aggrieved by Defendants’ intentional and willful interception,
disclosure, divulgence and/or use of their wire or electronic communications.

101.

Plaintiffs have therefore been subjected by Defendants to the unlawful interception, and
intentional use of Plaintiff’s wire, oral, and/or electronic communications in violation of
18 U.S.C. § 2511, entitling them to relief against Defendants pursuant to 18 U.S.C. § 2520.

102.

Pursuant to 18 U.S.C. § 2520, which provides for a civil action for any person whose wire
or electronic communications have been intercepted, disclosed, divulged or intentionally
used in violation of 18 U.S.C. § 2511, pursuant to Larson v. United States, 337 U.S. 682
(1949), and pursuant to 5 U.S.C. § 702, Plaintiffs and class members seek equitable and
declaratory relief against the Count VII Defendants.

103.

Plaintiffs seek that this Court declare that Count VII Defendants have violated their rights
and the rights of the class; enjoin the Count VII Defendants, their agents, successors, and
assigns, and all those in active concert and participation with them from violating the

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Plaintiffs’ and class members’ statutory rights, including their rights under 18 U.S.C. §
2511; and award such other and further equitable relief as is proper.
Count VIII
Violation of Stored Communications Act (18 U.S.C. § 2703, actionable under 18 U.S.C. §
2707) – Damages
Named Plaintiffs and Class v. Bush (in his personal capacity), Cheney (in his personal
capacity), Addington (in his personal capacity), Hayden (in his personal capacity),
Does 1-50 (unknown agents of the NSA and FBI who authorized, oversaw, and
implemented the illegal surveillance alleged herein, each in their personal capacities)
104.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this Complaint, as if set forth fully herein.

105.

In relevant part, 18 U.S.C. § 2703 provides that a “governmental entity may require the
disclosure by a provider of electronic communication service of the contents of a wire or
electronic communication” only pursuant to a warrant for communications stored for one
hundred and eighty days or less and for communications stored longer than one hundred
and eighty days, only pursuant to a warrant or with prior notice and a subpoena or court
order.

106.

Defendants intentionally and willfully required telecommunication service providers, or
aided, abetted, counseled, commanded, induced, procured, encouraged, promoted,
instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated,
directed, controlled, assisted in, or conspired in requiring from telecommunication service
providers, the disclosure to Defendants of the contents of Plaintiffs’ and class members’
communications while in electronic storage by telecommunication service providers’
electronic

communication

service,

and/or

while

carried

or

maintained

by

telecommunication service providers’ remote computing service, in violation of 18 U.S.C.

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§§ 2703(a) and/or (b). In doing so, Defendants have acted in excess of their statutory
authority and in violation of statutory limitations.
107.

On information and belief, one or more telecommunication service providers acted as the
agent of Defendants in performing, participating in, enabling, contributing to, facilitating,
or assisting in the commission of these acts of disclosure of Plaintiffs’ and class members’
communications.

108.

Defendants did not notify Plaintiffs or class members of the disclosure of their
communications, nor did Plaintiffs or class members consent to such.

109.

Plaintiffs and class members have been and are aggrieved by Defendants’ above-described
soliciting and obtaining of disclosure of the contents of communications.

110.

Clearly established law indicated to any reasonable person that requiring a
telecommunication service provider to disclose the content of one of its customer’s
messages required following the procedures of the Stored Communications Act. A fortiori,
requiring a telecommunication service provider to disclose the contents of messages of all
individuals within large, geographically targeted areas, without warrant, without probable
cause, and without individualized suspicion must have been known at all relevant times to
have been wholly unconstitutional and in violation of federal surveillance and privacy
statutes.

111.

Defendants’ actions were patently egregious and unlawful, in flagrant disregard of
Plaintiffs’ statutory and constitutional rights.

112.

Defendants therefore knowingly and willfully violated provisions of the Stored
Communication Act, entitling Plaintiffs to relief under 18 U.S.C. § 2707.

113.

Plaintiffs seek an award of their statutory or actual damages, punitive damages, reasonable
attorney’s fees and other investigation and litigation costs reasonably incurred against the
Count IX Defendants, and such other or further relief as is proper.

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Count IX
Violation of Stored Communications Act (18 U.S.C. § 2703, actionable under 18 U.S.C. §
2707) – Equitable relief
Named Plaintiffs and Class v. United States, NSA, and FBI
114.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this Complaint, as if set forth fully herein.

115.

In relevant part, 18 U.S.C. § 2703 provides that a “governmental entity may require the
disclosure by a provider of electronic communication service of the contents of a wire or
electronic communication” only pursuant to a warrant for communications stored for one
hundred and eighty days or less and for communications stored longer than one hundred
and eighty days, only pursuant to a warrant or with prior notice and a subpoena or court
order.

116.

Defendants intentionally and willfully required telecommunication service providers, or
aided, abetted, counseled, commanded, induced, procured, encouraged, promoted,
instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated,
directed, controlled, assisted in, or conspired in requiring from telecommunication service
providers, the disclosure to Defendants of the contents of Plaintiffs’ and class members’
communications while in electronic storage by telecommunication service providers’
electronic

communication

service,

and/or

while

carried

or

maintained

by

telecommunication service providers’ remote computing service, in violation of 18 U.S.C.
§§ 2703(a) and/or (b). In doing so, Defendants have acted in excess of their statutory
authority and in violation of statutory limitations.
117.

On information and belief, one or more telecommunication service providers acted as the
agent of Defendants in performing, participating in, enabling, contributing to, facilitating,
or assisting in the commission of these acts of disclosure of Plaintiffs’ and class members’
communications.
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118.

Defendants did not notify Plaintiffs or class members of the disclosure of their
communications, nor did Plaintiffs or class members consent to such.

119.

Plaintiffs and class members have been and are aggrieved by Defendants’ above described
soliciting and obtaining of disclosure of the contents of communications.

120.

Clearly established law indicated to any reasonable person that requiring a
telecommunication service provider to disclose the content of one of its customer’s
messages required following the procedures of the Stored Communications Act. A fortiori,
requiring a telecommunication service provider to disclose the contents of messages of all
individuals within large, geographically targeted areas, without warrant, without probable
cause, and without individualized suspicion must have been known at all relevant times to
have been wholly unconstitutional and in violation of federal surveillance and privacy
statutes.

121.

Defendants’ actions were patently egregious and unlawful, in flagrant disregard of
Plaintiffs’ statutory and constitutional rights.

122.

Defendants therefore knowingly and willfully violated provisions of the Stored
Communication Act, entitling Plaintiffs to relief under 18 U.S.C. § 2707.

123.

On information and belief, the Count IX Defendants are now engaging in and will continue
to engage in the above-described or similar acts of requiring disclosure of the contents of
class members’ communications while in electronic storage by telecommunication service
providers’ electronic communication service(s), and/or while carried or maintained by
telecommunication service providers’ remote computing service(s), acting in excess of the
Count IX Defendants’ statutory authority and in violation of statutory limitations, including
18 U.S.C. § 2703(a) and (b), and are thereby irreparably harming Plaintiffs and class
members. Plaintiffs and class members have no adequate remedy at law for the Count IX
Defendants’ continuing unlawful conduct, and the Count IX Defendants will continue to

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violate Plaintiffs’ and class members’ legal rights unless enjoined and restrained by this
Court.
124.

Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieved by
knowing or intentional violation of 18 U.S.C. § 2703, pursuant to Larson v. United States,
337 U.S. 682 (1949), and pursuant to 5 U.S.C. § 702, Plaintiffs and class members seek
equitable and declaratory relief against the Count IX Defendants.
Count X
Violation of Privacy Act (actionable under 5 U.S.C. § 552a) – Damages
Named Plaintiffs and Class v. NSA and FBI.

125.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this Complaint, as if set forth fully herein.

126.

5 U.S.C. § 552a(e) in relevant part states “[e]ach agency that maintains a system of records
shall—(1) maintain in its records only such information about an individual as is relevant
and necessary to accomplish a purpose of the agency required to be accomplished by statute
or by executive order of the President.”

127.

5 U.S.C. § 552a(g)(1) provides in relevant part that:
Whenever any agency . . . (D) fails to comply with any other provision
of this section, or any rule promulgated thereunder, in such a way as
to have an adverse effect on an individual the individual may bring a
civil action against the agency, and the district courts of the United
States shall have jurisdiction in the matters under the provisions of
this subsection.

128.

The

National

Security

Agency,

through

its

website

at

https://www.nsa.gov/about/faqs/about_nsa.shtml, as accessed on August 13, 2015, states:

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NSA/CSS has two interconnected missions: Signals Intelligence
(known as SIGINT) and Information Assurance. Through SIGINT, we
gather information that America's adversaries wish to keep secret.
Through Information Assurance, we protect America's vital national
security information and systems from theft or damage by others. Taken
together, the SIGINT and Information Assurance missions are essential
to a third function: enabling Network Warfare, a military operation.
Through carrying out its missions, NSA/CSS helps save lives, defend
vital networks, and advance our Nation's goals and alliances, while
strictly protecting privacy rights guaranteed by the U.S. Constitution
and laws.
129.

The Federal Bureau of Investigation, through its website at https://www.fbi.gov/aboutus/faqs, as accessed on August 13, 2015, states:
The mission of the FBI is to protect and defend the United States against
terrorist and foreign intelligence threats, to uphold and enforce the
criminal laws of the United States, and to provide leadership and
criminal justice services to federal, state, municipal, and international
agencies and partners. It performs these responsibilities in a way that is
responsive to the needs of the public and faithful to the Constitution of
the United States.

130.

Defendants intentionally and willfully solicited and obtained from telecommunication
service providers, or aided, abetted, counseled, commanded, induced, procured,
encouraged, promoted, instigated, advised, willfully caused, participated in, enabled,
contributed to, facilitated, directed, controlled, assisted in, or conspired in soliciting and
obtaining from telecommunication service providers, the disclosure to Defendants of the
contents of Plaintiffs’ and class members’ communications while in electronic storage by
telecommunication service providers’ electronic communication service, and/or while
carried or maintained by telecommunication service providers’ remote computing service,
in violation of 18 U.S.C. §§ 2703(a) and/or (b). In doing so, Defendants have acted in
excess of their statutory authority and in violation of statutory limitations.

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131.

On information and belief, the NSA and FBI maintain in their records illegally obtained
information about Plaintiffs individually that is neither relevant nor necessary to
accomplish the purpose of the NSA or the FBI.

132.

Plaintiffs seek an award of their actual damages, reasonable attorney’s fees and other
investigation and litigation costs reasonably incurred against the Count X Defendants, and
such other or further relief as is proper.
Count XI
Violation of Communication Abuse (Utah Code § 76-9-403) – Damages
Named Plaintiffs and class v. United States, NSA, FBI, and Bush (in his personal
capacity), Cheney (in his personal capacity), Hayden (in his personal capacity),
Addington (in his personal capacity), Does 1-50 (unknown agents of the NSA and FBI
who authorized, oversaw, and/or implemented the illegal surveillance alleged herein,
each in their personal capacities)

133.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this Complaint, as if set forth fully herein.

134.

Defendants, without authorization by law, intercepted messages that were privately

135.

communicated by Plaintiffs, without consent of the sender or receiver.
Defendants acted intentionally and reprehensibly, in clear violation of Plaintiffs rights.
Defendants’ actions were in egregious violation of Utah Code Ann. §76-9-403, which
provides as follows:
(1) A person commits communication abuse if, except as authorized by law, he: (a)
Intercepts, without the consent of the sender or receiver, a message by
telephone, telegraph, letter, or other means of communicating privately . . . or
(b) Divulges without consent of the sender or receiver the existence or contents
of any such message if the actor knows that the message was illegally
intercepted or if he learned of the message in the course of employment with an
agency engaged in transmitting it.

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136.

Plaintiffs seek an award of their actual damages, punitive damages, reasonable attorney’s
fees and other investigation and litigation costs reasonably incurred against the Count XI
Defendants, and such other or further relief as is proper.
Count XII
Violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. - Declaratory,
Injunctive, and Other Equitable Relief
Named Plaintiffs and Class v. United States, NSA and FBI

137.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this Complaint, as if set forth fully herein.

138.

Defendants’ actions violate the Administrative Procedures Act, 5 U.S.C. § 701 et seq.,
because Defendants’ actions exceed statutory authority and limitations imposed by
Congress through FISA, and through Chapters 119, 121 and 206 of Title 18 of the U.S.
Code (the Wiretap Act, the Stored Communications Act, and the Pen Register Statute,
respectively) and in violation of statutory rights under those laws; are not otherwise in
accordance with law; are contrary to constitutional rights, including the Fourth Amendment
and First Amendment; and are taken without observance of procedures required by law.

139.

Plaintiffs and class members are aggrieved by these violations because, as described
previously in this Complaint, Defendants’ actions have resulted in the interception,
acquisition, disclosure, divulgence and/or use of the contents of their wire and electronic
communications, communications records, and other information in violation of their
constitutional and statutory rights.

140.

Plaintiffs seek nonmonetary relief against the Count XII Defendants, including a
declaration that Defendants have violated their rights and the rights of the class; an
injunction enjoining the Count XII Defendants, their agents, successors, and assigns, and

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all those in active concert and participation with them from violating the Plaintiffs’ and
class members’ rights; and such other and further nonmonetary relief as is proper.
Count XIII
Violation of FISA (50 U.S.C. § 1809, actionable under 50 U.S.C. § 1810) – Equitable Relief
Named Plaintiffs and Class v. United States, FBI, and NSA.
141.

Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this complaint, as if set forth fully herein.

142.

In relevant part, 50 U.S.C. § 1809 makes it unlawful to intentionally engage in electronic
surveillance under color of law “except as authorized in this chapter, chapter 119, 121, or
206 of Title 18 or by any express statutory authorization that is an additional exclusive
means for conducting electronic surveillance under section 1812 of this title.”

143.

Defendants intentionally acquired, or aided, abetted, counseled, commanded, induced,
procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the
commission of, such acquisition, by means of a surveillance device, the contents of one or
more wire communications to or from Plaintiffs and class members or other information in
which Plaintiffs or class members have a reasonable expectation of privacy, without the
consent of any party thereto, and such acquisition occurred in the United States.

144.

Defendants have directly performed, or aided, abetted, counseled, commanded, induced,
procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the
commission of the above-described acts of acquisition, interception, surveillance and/or
analysis of Plaintiffs’ communications, contents of communications, and records
pertaining

to

their

communications

transmitted,

collected,

and/or

stored

by

telecommunication service providers without judicial or other lawful authorization,

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probable cause, and/or individualized suspicion, in violation of statutory and constitutional
limitations, and in excess of statutory and constitutional authority.
145.

By the acts alleged herein, Defendants acting in excess of their statutory authority and in
violation of statutory limitations have intentionally engaged in, or aided, abetted,
counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled,
assisted in, or conspired in the commission of, electronic surveillance (as defined by 50
U.S.C. § 1801(f)) under color of law, not authorized by any statute, to which Plaintiffs and
class members were subjected in violation of 50 U.S.C. § 1809.

146.

On information and belief, the Count XIII Defendants are now engaging in and will
continue to engage in the above-described or similar acts resulting in the electronic
surveillance, disclosure, and/or use of Plaintiffs’ and class members’ wire
communications, acting in excess of the Count XIII Defendants’ statutory authority and in
violation of statutory limitations, including 50 U.S.C. § 1809 and 18 U.S.C. § 2511(2)(f),
and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class
members have no adequate remedy at law for the Count XIII Defendants’ continuing
unlawful conduct, and the Count XIII Defendants will continue to violate Plaintiffs’ and
class members’ legal rights unless enjoined and restrained by this Court.

147.

Pursuant to Larson v. United States, 337 U.S. 682 (1949) and to 5 U.S.C. § 702, Plaintiffs
seek that this Court declare that Defendants have violated their rights and the rights of the
class; enjoin the Count XIII Defendants, their agents, successors, and assigns, and all those
in active concert and participation with them from violating the Plaintiffs’ and class
members’ statutory rights, including their rights under 50 U.S.C. §§ 1801 et seq.; and award
such other and further equitable relief as is proper.

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148.

Plaintiffs are entitled to relief under 50 U.S.C. § 1810, which provides civil liability against
any person who subjects another to surveillance in violation of 50 U.S.C. § 1809.

149.

Plaintiffs seek an award of their statutory or actual damages, punitive damages, reasonable
attorney’s fees and other investigation and litigation costs reasonably incurred against the
Defendants, and such other or further relief as is proper.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the Court:
1. Declare that the program of surveillance as described herein violates Plaintiffs’ and class
members’ rights under the First and Fourth Amendments to the United States
Constitution and Article I, § 14 of the Utah Constitution; their statutory rights, including
their rights under 18 U.S.C. § 2511, 18 U.S.C. § 2703, 50 US.C. § 1809, 5 U.S.C. § 552a,
and the Administrative Procedures Act.
2. Award Plaintiffs and class members equitable relief, including a preliminary and
permanent injunction pursuant to the First and Fourth Amendments to the United States
Constitution and Article I, § 14 of the Utah Constitution, prohibiting Defendants’ continued
warrantless surveillance of communications by text messages, emails, and telephone, and
a preliminary and permanent injunction pursuant to the Fourth Amendment requiring
Defendants to provide to Plaintiffs and members of the class an inventory of their
communications, records, or other information that were seized in violation of the Fourth
Amendment, and further requiring the destruction of all copies of those communications,
records, or other information within the possession, custody, or control of any of the
Defendants.
3. Award Plaintiffs their statutory, actual, and punitive damages to the extent permitted by
law and according to proof.
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4. Award to Plaintiffs their reasonable attorneys’ fees and other costs of suit to the extent
permitted by law.
5. Grant such other and further relief as the Court deems just and proper.
JURY DEMAND
Plaintiffs hereby demand a jury trial of all matters triable by jury.
DATED this 18th day of August, 2015.
WINDER & COUNSEL, P.C.

/s/
Ross C. Anderson
Attorneys for Plaintiffs

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