NSA Can’t Escape Winter Olympics Wiretapping Class Action

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A federal judge has shut down a bid by the NSA to escape accusations of warrantless wiretapping during the 2002 Winter Olympics.

U.S. District Judge Robert J. Shelby issued a memorandum opinion and order on Jan. 10, denying a motion to dismiss brought by defendant National Security Agency.

Over the NSA’s arguments, Judge Shelby determined the plaintiffs’ allegations of warrantless wiretapping met or exceeded the initial requirements for stating a legal cause of action.

The NSA argued in part that the plaintiffs’ allegations are simply implausible. “While not stated in so many words, the NSA’s central argument is that the Plaintiffs’ allegations are fanciful and not worthy of belief,” according to Judge Shelby.

The judge responded that consideration of the plausibility of the plaintiffs’ allegations at this early stage of the litigation would be premature. The plaintiffs have raised well-pled allegations of a redressable injury, the judge said.

Judge Shelby concluded the plaintiffs’ allegations are at this stage entitled to a presumption of truth, making dismissal inappropriate.

Plaintiffs in this warrantless wiretapping class action lawsuit are six persons who were living or working in Salt Lake City, Utah during the 2002 Winter Olympic Games. They allege that the NSA and the FBI eavesdropped on all electronic communications in and around Salt Lake City and at all Olympic venues during the games.

The plaintiffs believe the two agencies engaged in this surveillance activity as part of a broader warrantless wiretapping program ordered by President George W. Bush, Vice President Dick Cheney, NSA Director Michael Hayden, and Cheney’s attorney David Addington. All four individuals are named as co-defendants.

The program was disclosed in 2005, the plaintiffs say. It was then revealed that in October 2001, President Bush authorized and ordered the NSA to commence a program known alternately as “Stellar Wind” or “the President’s Surveillance Program” that consisted of widespread domestic surveillance of electronic communications.

Plaintiffs say it was later disclosed that Cheney and Addington were instrumental in authorizing the program. Addington allegedly drafted a written authorization for the program that Director Hayden kept locked in a safe.

Both defendant agencies continue to unlawfully store copies of all the communications they collected, the plaintiffs claim. They argue the alleged warrantless wiretapping violates their rights under the Fourth Amendment and the Foreign Intelligence Surveillance Act.

The plaintiffs are proposing to represent a Class of all persons in the U.S. who sent or received a phone call, text message or email to or from a location within Salt Lake City or a nearby Olympic Games venue where any defendant conducted warrantless communication surveillance between Dec. 1, 2001 and Feb. 24, 2002.

They are seeking equitable relief including a court injunction prohibiting the defendants from continuing its warrantless surveillance and requiring them to destroy all copies of communications seized in violation of the Fourth Amendment. They also seek an award of actual, statutory and punitive damages, attorneys’ fees and court costs.

The plaintiffs are represented by Ross C. Anderson of Winder & Counsel PC.

The Winter Olympics Warrantless Wiretapping Class Action Lawsuit is Mary Josephine (Josie) Valdez, et al. v. National Security Agency, et al., Case No. 2:15-cv-00584, in the U.S. District Court for the District of Utah.