## Facts

- AT&T customers filed a putative nationwide class action alleging that, after September 11, 2001, the federal government and the NSA conducted warrantless, large-scale surveillance of Americans’ communications with telecommunications-carrier assistance.
- Plaintiffs alleged interception, copying, and analysis of Internet and telephone communications, including both content and non-content metadata.
- Plaintiffs relied in part on publicly described AT&T infrastructure and declarations from a former AT&T technician describing equipment that allegedly copied backbone traffic.
- Plaintiffs asserted statutory claims under FISA, the Wiretap Act, and the Stored Communications Act, and constitutional claims including Fourth Amendment violations.
- After a Ninth Circuit remand directing consideration of the state-secrets privilege, the government sought dismissal or summary judgment on state-secrets and standing grounds; plaintiffs sought partial summary judgment that FISA displaced the common-law state-secrets privilege.

## Issues

1. Whether FISA and related provisions displace or limit the government’s ability to invoke the common-law state-secrets privilege in civil litigation alleging unlawful electronic surveillance.
2. If not displaced, whether the government’s state-secrets assertion required dismissal of the action at the threshold or instead required narrower, evidence-specific exclusion.
3. Whether plaintiffs could establish Article III standing without using privileged information, and whether asserted secrecy required dismissal for inability to prove standing or the merits.

## Decision

- The court denied the government’s dispositive motion insofar as it sought wholesale dismissal based on the state-secrets privilege.
- The court denied plaintiffs’ cross-motion for partial summary judgment insofar as it sought a categorical ruling that FISA eliminates the state-secrets privilege in this setting.
- The court held that FISA supplies specific procedures for handling sensitive national-security information in surveillance-related cases but does not categorically preclude invocation of the state-secrets privilege.
- The court declined to rule that the privilege or standing concerns necessarily barred all surviving “dragnet” surveillance claims at that stage and allowed the case to proceed with further, claim-specific treatment of secrecy and standing.

## Legal Principles

- The state-secrets privilege is an evidentiary privilege that can exclude specific information where disclosure would risk harm to national security; dismissal is appropriate only when litigation cannot fairly proceed without the privileged material.
- Courts must apply the privilege in a tailored manner, assessing it with specificity rather than accepting broad, program-level assertions as automatically dispositive.
- FISA’s statutory scheme, including in camera and ex parte judicial review mechanisms for sensitive materials, is relevant to evaluating how surveillance-related claims may be litigated, but it does not, without clear congressional direction, abolish the common-law state-secrets privilege.
- Standing in surveillance challenges may be alleged through non-privileged, systemic proof of broad collection practices; the mere possibility that privileged confirmation would strengthen proof does not alone require immediate dismissal.

## Conclusion

The district court adopted an intermediate approach: FISA did not categorically eliminate the state-secrets privilege, but the government also was not entitled to end the case through a blanket secrecy assertion; instead, the court required a more particularized, claim- and evidence-focused analysis and permitted the litigation to continue at that stage.


Jewel v. Nat’l Sec. Agency, 965 F. Supp. 2d 1090 (N.D. Cal. 2013)