Focusing public attention on emerging privacy and civil liberties issues

EPIC FOIA Cases

Background

EPIC makes frequent use of the Freedom of Information Act (FOIA) to obtain information from the government about surveillance and privacy policy. Public disclosure of this information improves government oversight and accountability. It also helps ensure that the public is fully informed about the activities of government. EPIC routinely files lawsuits to force disclose of agency records that impact critical privacy interests.

EPIC FOIA Cases

Top News

  • House of Representatives Issues FOIA Request Management Report Card: The U.S. House of Representatives Committee on Oversight and Government Reform issued a "Report Card on Federal Government's Efforts to Track and Manage FOIA Requests." The Report Card assigned letter grades to agencies based upon their "ability and willingness . . . to submit information" to the House Committee about the agencies’ FOIA tracking systems. This information included the requester's name, the date of the request, a description of the records sought by requesters, the date the request was closed, and whether the agency provided responsive records to the request. The Federal Trade Commission was one of the highest scoring agencies, earning an "A+" for its FOIA management. The Department of Justice, the Department of Defense, and the Department of Homeland Security each received a "D" letter grade for their FOIA tracking systems. For more information, see: EPIC: Open Government. (Mar. 20, 2012)
  • EPIC to Argue for Disclosure of Google-NSA Agreement before Federal Appeals Court: EPIC will pursue its Freedom of Information Act request with the National Security Agency in scheduled arguments before the Court of Appeals for the DC Circuit this Tuesday morning. EPIC submitted the FOIA request in February 2010, following a widely reported collaboration between Google and the NSA after the China hack. The agency replied that it could "neither confirm nor deny" the existence of records responsive to EPIC's request. A lower court ruled in favor of the NSA, but EPIC has challenged that opinion, and the federal appeals court will hear the case on March 20, 2012. The case is EPIC v. NSA, No. 11-5233. (Mar. 19, 2012)
  • Open Government Groups Oppose Cyber Security FOIA Exemption: Open government organizations have sent a letter to Senator John McCain, opposing specific provisions in a cybersecurity bill he introduced. The SECURE IT Act would create a new Freedom of Information Act exemptions for "cyber threat information" as well as for all information shared with a cybersecurity center. FOIA exemptions limit public access to government information. The organizations stated, "Unnecessarily wide-ranging exemptions of this type have the potential to harm public safety and the national defense more than they enhance those interests." In a statement for a hearing on the FOIA and critical infrastructure information, EPIC also warned against new FOIA exemptions and said that the National Security Agency has become a "black hole" for public information about cybersecurity. For more information, see EPIC: Cybersecurity. (Mar. 14, 2012)
  • EPIC Urges Senate to Safeguard FOIA for Cybersecurity: In a detailed statement to the Senate for a hearing on the "Freedom of Information Act: Safeguarding Critical Infrastructure and the Public's Right to Know," EPIC said that safeguarding FOIA was critical to ensure government oversight and accountability. EPIC described how the FOIA provides the public important information about safety and security, but also warned that the National Security Agency has become a "black hole" for public information about cyber security. EPIC described several NSA programs, including "Perfect Citizen," Internet wiretapping, and even the NSA's own legal authority which the agency has refused to release to the public. EPIC v. NSA, a challenge to the agency's "neither confirm nor deny" response to an EPIC FOIA request will be heard next week by the DC Circuit Court of Appeals. For more information, see EPIC: Cybersecurity. (Mar. 12, 2012)
  • EPIC Publishes 2012 FOIA Gallery: In celebration of Sunshine Week, EPIC published the EPIC FOIA Gallery: 2012. The gallery highlights key documents obtained by EPIC in the past year, including the Federal Bureau of Investigation's watch list guidelines, records of the Department of Homeland Security's social media monitoring program, Google's first Privacy Compliance Report, records detailing the government's FAST scanning program, records of the FBI's surveillance of Wikileaks supporters, and DHS records detailing the use of body scanners at the U.S. border. EPIC regularly files Freedom of Information Act requests and pursues lawsuits to force disclosure of critical documents that impact privacy. EPIC also publishes the authoritative FOIA litigation manual. For more, see EPIC Open Government and EPIC Bookstore: FOIA. (Mar. 12, 2012)
  • DHS Privacy Office Releases 2011 Data Mining Report: The Department of Homeland Security has released the 2011 Annual Data Mining Report. The report must include all of the Agency's current activities that fall within the legislative definition of "data mining." Among other things, this year's report references the Agency's programs to profile individuals entering or leaving the country to determine who should be subject to "additional screening." A FOIA request by EPIC in 2011 revealed that the FBI's standard for inclusion on the list is "particularized derogatory information," which has never been recognized by a court of law. The report also provides information on Secure Flight and Air Cargo Advanced Screening. For more information, see EPIC: FBI Watch List FOIA and EPIC: DHS Privacy Office. (Mar. 5, 2012)
  • Congress Grills Department of Homeland Security : Members of a House Committee today questioned DHS officials about the agency's monitoring of social networks and media organizations for information that "reflects adversely" on the agency or the federal government. Several members expressed support for EPIC's proposal that DHS suspend the program, warning that this activity violates First Amendment rights. New questions also arose when the DHS witnesses claimed that no other federal agencies were engaged in similar practices. According to many news sources, the FBI wants to monitor social media. The House hearing was called after EPIC obtained nearly 300 pages of documents detailing the Department of Homeland Security's activities. For more information see: EPIC v. Department of Homeland Security: Media Monitoring. (Feb. 16, 2012)
  • EPIC Seeks Public Release of Google's Privacy Report : EPIC has filed a Freedom of Information Act request with the Federal Trade Commission for the Privacy Report that Google was recently required to submit to the agency. The Commission had previously investigated Google after EPIC filed a complaint regarding Google's Buzz product, which transformed private user contacts into publicly available social network data. Last fall the Commission reached a settlement with Google and, as a result, the company is subject to a consent order that requires it to file regular reports with the Commission. EPIC has requested that Google's first report, filed on January 26, 2012, be released to the public. Because of Google's plan to change its business practice on March 1, 2012, EPIC has asked the FTC to expedite the disclosure of the report. For more information see EPIC: In re Google Buzz. (Feb. 1, 2012)
  • EPIC - FOIA Documents Reveal Homeland Security is Monitoring Political Dissent: As the result of EPIC v. DHS, a Freedom of Information Act lawsuit, EPIC has obtained nearly thee hundred pages of documents detailing a Department of Homeland Security's surveillance program. The documents include contracts and statements of work with General Dynamics for 24/7 media and social network monitoring and periodic reports to DHS. The documents reveal that the agency is tracking media stories that "reflect adversely" on DHS or the U.S. government. One tracking report -- "Residents Voice Opposition Over Possible Plan to Bring Guantanamo Detainees to Local Prison-Standish MI" -- summarizes dissent on blogs and social networking cites, quoting commenters. EPIC sent a request for these documents in April 2004 and filed suit against the agency in December. For more information, see EPIC: EPIC v. Department of Homeland Security: Media Monitoring. (Jan. 13, 2012)
  • EPIC Sues DHS Over Covert Surveillance of Facebook and Twitter : EPIC has filed a Freedom of information Act lawsuit against the Department of Homeland Security to force disclosure of the details of the agency's social network monitoring program. In news reports and a Federal Register notice, the DHS has stated that it will routinely monitor the public postings of users on Twitter and Facebook. The agency plans to create fictitious user accounts and scan posts of users for key terms. User data will be stored for five years and shared with other government agencies.The legal authority for the DHS program remains unclear. EPIC filed the lawsuit after the DHS failed to reply to an April 2011 FOIA request. For more information, see EPIC: Social Networking Privacy. (Dec. 20, 2011)
  • Justice Department Revises FOIA Proposal, But Problems Remain: In response to widespread criticism from EPIC and other open government groups, the Department of Justice has agreed to withdraw one of its proposed Freedom of Information Act revisions. The section would have allowed the agency to make misrepresentations about the existence of documents subject to the FOIA. In extensive comments to the Department of Justice, EPIC said that the Justice Department proposal would undermine the FOIA and is contrary to law as well as the views expressed by the President and the Attorney General. But EPIC also pointed to proposed changes that would place new burdens on FOIA requesters, make it more difficult to qualify for educational and news media fee status, allow the agency to terminate FOIA requests, and even destroy records subject to FOIA. For more information see EPIC: Open Government. (Nov. 4, 2011)
  • EPIC to Justice Department: Maintain Strong Open Government Regulations: In extensive comments to the Department of Justice, EPIC has urged the federal agency not to weaken the Freedom of Information Act (FOIA) as it has proposed. The Justice Department is considering regulations that would place new burdens on FOIA requesters, make it more difficult to qualify for educational and news media fee status, and allow agencies to terminate FOIA requests, and even make misrepresentations about the existence of documents and destroy records subject to a FOIA request. EPIC said that the Justice Department proposal would undermine the FOIA, is contrary to law as well as the views expressed by the President and the Attorney General. EPIC has an extensive FOIA practice and has recently uncovered documents regarding the FBI's Watchlist and the Department of Homeland Security's "Minority Report" Pre-crime Detection Program. The Justice Department must now decide whether to adopt the changes it has proposed, withdraw the rule, or make modifications. For more information, see EPIC: Open Government. (Oct. 20, 2011)
  • Documents Obtained by EPIC Reveal Government's "Minority Report" Scanning Program: Through a Freedom of Information Act request, EPIC has obtained documents from the Department of Homeland Security about a secretive "pre-crime" detection program. The "Future Attribute Screening Technology" (FAST) Program gathers "physiological measurements" from subjects, including heart rate, breathing patterns, and thermal activity, to determine "malintent." According to the documents obtained by EPIC, the agency is considering the use of the device at conventions and sporting events, and has already conducted field testing. CNET first reported on the EPIC FOIA request. For more information, see: EPIC: Future Attribute Screening Technology Project. (Oct. 7, 2011)
  • Documents Obtained by EPIC Reveal FBI Watch List Details: EPIC has obtained documents that reveal new details about standards for adding and removing names from the FBI watch list. The documents were obtained as the result of an EPIC Freedom of Information Act request to the Federal Bureau of Investigation. The FBI's standard for inclusion on the list is "particularized derogatory information," which has never been recognized by a court of law. Also, individuals may remain on the FBI watch list even if charges are dropped or a case is dismissed. The New York Times broke the story and posted the documents obtained by EPIC. For more information, see EPIC: FBI Watch List FOIA and EPIC: Open Government. (Sep. 28, 2011)
  • EPIC Asks Court to Require DHS Disclosure of Mobile Body Scanner Documents: EPIC has filed a motion for summary judgment in EPIC v. DHS, No. 1:11-cv-00945-ABJ, a FOIA case against the Department of Homeland Security for information about the planned expansion of the body scanner program. EPIC has asked the court to force the agency to disclose documents containing communications with Rapiscan and other vendors about the deployment of mobile body scanners. EPIC has already obtained hundreds of pages of documents describing how the agency is exploring the use of body scanners on people who travel by train, attend sporting events, enter federal buildings, or travel along public highways. For more information, see: EPIC: Body Scanner Technology and EPIC: FOIA Note #20. (Sep. 22, 2011)
  • DHS Refuses to Disclose Details of Mobile Body Scanner Technology: New documents released by the Department of Homeland Security to EPIC indicate the the agency continues to hide details about body scanners. In November 2010, EPIC filed a Freedom of Information Act request with the agency regarding the deployment of body scanners in surface transit and street-roving vans. In its latest document release the agency supplied several papers that were completely redacted. As a result of the agency's failure to comply with the Freedom of Information Act, EPIC has filed suit to force disclosure of the records. For more information, see: EPIC: Body Scanner Technology and EPIC: FOIA Note #20. (Aug. 17, 2011)
  • Senate Passes Faster FOIA Act: The Senate unanimously approved bipartisan legislation, cosponsored by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX), to improve Freedom of Information Act (FOIA) processing. The Faster FOIA Act will create an advisory panel to examine agency backlogs and provide recommendations to Congress. The bill awaits action by the House of Representatives. EPIC previously testified before the House Oversight Committee about FOIA delays and politicized processing within the Department of Homeland Security. For more information see: EPIC: Open Government and EPIC: Litigation Under the Federal Open Government Laws. (Aug. 2, 2011)
  • EPIC v. NSA: FOIA Suit for Cybersecurity Authority Will Move Forward, though National Security Council Remains a "FOIA-Free Zone": A District of Columbia federal court ordered an EPIC lawsuit against the National Security Agency to proceed, holding that EPIC can "pursue its claim against the NSA for wrongfully withholding an agency record in its possession." EPIC's Freedom of Information Act suit seeks disclosure of National Security Presidential Directive 54 - the document that provides the legal basis for the NSA's cybersecurity activities. The NSA failed to disclose the document in response to EPIC's FOIA request, instead forwarding the request to the National Security Council. The Court held that the NSC is not subject to FOIA, but that the NSA's transfer of EPIC's request does not absolve the agency of its responsibility to respond to EPIC. For more, see: EPIC: EPIC v. NSA. (Jul. 8, 2011)
  • Senate Unanimously Passes Faster FOIA Act: The Senate has unanimously approved bipartisan legislation, sponsored by Senators Leahy (D-VT) and Cornyn (R-TX), that will improve the Freedom of Information Act (FOIA). The Faster FOIA Act will establish an advisory panel to examine agency backlogs in processing FOIA requests and provide recommendations to Congress for legislative and administrative action to enhance agency processing. The bill now moves on to the House of Representatives for consideration. EPIC testified earlier this year in a House Oversight Committee hearing on the need to strengthen FOIA. For more information, see EPIC: Open Government. (Jun. 1, 2011)
  • Faster FOIA Act Moves Forward in Senate: The Senate Judiciary Committee has approved bipartisan legislation, cosponsored by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX), to improve the Freedom of Information Act (FOIA) processing. The Faster FOIA Act will create an advisory panel to examine agency backlogs and provide recommendations to Congress. EPIC recently testified before the House Oversight Committee about FOIA delays and politicized processing within the Department of Homeland Security. For more information see: EPIC: Open Government and EPIC: Litigation Under the Federal Open Government Laws. (Apr. 12, 2011)
  • EPIC: DHS Review of FOIA Requests is "Unlawful": EPIC testified today before the House Oversight Committee hearing "Why Isn't The Department Of Homeland Security Meeting The President's Standard On FOIA?" The hearing examined the DHS's political review of open government requests. The DHS "Awareness" program singled out FOIA requests for additional scrutiny by political appointees based on the subject of the requests and the identities of the requesters. EPIC Senior Counsel John Verdi called the program "uniquely harmful" and "unlawful." He pointed to Supreme Court precedent and the additional delay in FOIA processing. Also testifying at the hearing were the DHS General Counsel, the DHS Chief FOIA Officer, and the DHS Inspector General. For more information, see EPIC: Open Government and EPIC: Litigation under the Federal Open Government Laws 2010. (Mar. 31, 2011)
  • EPIC to Testify at House Oversight Hearing on FOIA: EPIC Senior Counsel John Verdi will testify before the House Oversight Committee on March 31, 2011 regarding Homeland Security’s political review of FOIA requests and the effects of the agency’s policies on requesters. The hearing arises as the AP reports that DHS career staff repeatedly questioned the political review policy. This report also follows an earlier release of 1,000 agency documents revealing the long-standing process of vetting FOIA requests by political appointees. In a previous letter to the Committee, EPIC and a coalition of open government groups wrote that FOIA does not permit agencies to select requests for political scrutiny. For more information, see EPIC: Open Government and EPIC: Litigation under the Federal Open Government Laws 2010. (Mar. 28, 2011)
  • EPIC Publishes 2011 FOIA Gallery: In celebration of Sunshine Week, EPIC published the EPIC FOIA Gallery: 2011. The gallery highlights key documents obtained by EPIC in the past year, including records detailing the privacy risks posed by airport body scanners, agency plans to expand the scanner program to non-airport locations, FBI abuse of surveillance authorities, and the Federal Trade Commission's failure to investigate Google Street View. EPIC regularly files Freedom of Information Act requests and pursues lawsuits to force disclosure of critical documents that impact privacy. EPIC also publishes the authoritative FOIA litigation manual. For more, see EPIC Open Government and EPIC Bookstore: FOIA. (Mar. 14, 2011)
  • Supreme Court Affirms Open Government, Limits Exemptions: In Navy v. Milner, the Supreme Court held that the Freedom of Information Act’s “Exemption 2” is limited to employee relations and human resources issues. The decision overturns previous decisions by lower courts that applied the exemption to broader categories of records, allowing federal agencies to block disclosure of documents to the public. The Court stated that this practice contravened Congress’s intent. The Court emphasized that Congress intended all nine FOIA exemptions to be construed narrowly. EPIC is currently challenging the use of Exemption 2 in its lawsuit to force disclosure of records concerning full body scanners at airport checkpoints. The Court's decision in Navy v. Milner demonstrates that the Department of Homeland Security is improperly withholding information about the scanners from the public. For more information, see EPIC-Milner v. Dept. of Navy, and EPIC: OPEN Government. (Mar. 7, 2011)
  • Supreme Court: No "Personal Privacy" For Corporations in FOIA Cases: In FCC v. AT&T, The Supreme Court held that federal protections for "personal privacy" do not permit corporations to prevent disclosure of government records. AT&T sought to prevent the disclosure of documents the company had submitted to a federal agency, claiming that the corporation's "personal privacy" prevented release of the records pursuant to the Freedom of Information Act. EPIC filed a "friend of the court" brief in the case urging the Justices to reject AT&T's claim. The Court agreed with the FCC, EPIC and other amici, writing, "The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally." EPIC's brief cited the commonly understood meaning of "personal privacy" in the work of legal scholars and technical experts, as well as the use of these terms in an extensive survey of US privacy laws. For more information, see EPIC: FCC v. AT&T. (Mar. 1, 2011)
  • Chairman Issa Subpoenas Homeland Security Officials about FOIA Practices: Rep. Darrell E. Issa (R-CA), Chairman of the House Committee on Oversight and Government Reform, issued subpoenas to two Department of Homeland Security employees for depositions to take place on March 7 and March 8. Rep. Issa has undertaken an investigation of DHS’s policy of submitting FOIA requests to political review. EPIC and a coalition of open government organizations sent Rep. Issa and Ranking Member Elijah Cummings (D-MD) a letter supporting the investigation. The political review policy came to light after the release of over 1,000 agency documents revealed a long-standing process of submitting FOIA requests from watchdog organizations to review by political appointees. EPIC has also recommended that the FOIA Ombudsman undertake an investigation of this practice. For related information see EPIC: Open Government and EPIC: Litigation under the Federal Open Government Laws 2010. (Feb. 25, 2011)
  • In Response to EPIC, Justice Department Offers No Public Justification for Data Retention: In response to an EPIC Freedom of Information Act request, the Department of Justice sent back only heavily redacted documents with no justification for data retention legislation. EPIC filed the request in 2010, seeking the Department's views on he Internet SAFETY Act, which would require internet service providers to retain user records for at least two years. The DOJ publicly supported the Act but has refused to provide a single substantive reason for that support. The Internet SAFETY Act has not yet been reintroduced in the 112th Congress. For more information, see EPIC: Data Retention. (Feb. 18, 2011)
  • EPIC v. NSA FOIA Lawsuit: NSA Will Neither Confirm Nor Deny Communications with Google: In a Freedom of Information Act lawsuit filed by EPIC against the National Security Agency for information about the NSA's relationship with Google, the NSA has replied that "confirming or denying the existence of any such records would reveal information relating to its core functions and activities . . ." EPIC sought the information, including a widely discussed cooperative research agreement between NSA and Google, because the agency's practices would impact the privacy interests of millions of Internet users both in the United States and around the world. The case is EPIC v. NSA, Civ. Action No. 10-1533 (RJL). EPIC has a related release against the NSA concerning the agency's cybersecurity authority. For more information, see EPIC - EPIC v. NSA. (Feb. 18, 2011)
  • EPIC, Coalition Urge Congress to Pursue FOIA Oversight: EPIC and a coalition of over 30 organizations and open government experts sent a letter to Rep. Darrell E. Issa (R-CA), Chairman of the House Committee on Oversight and Government Reform, urging public hearings on the DHS policy of vetting FOIA requests by political appointees. Rep. Issa has undertaken an investigation of this "political review" policy. The coalition also recommended that the Committee support the Office of Government Information Services, the "FOIA Ombudsman," and encourage the Government Accountability Office to conduct investigations of agency FOIA practices. EPIC previously requested an investigation into DHS's FOIA practices. EPIC said that the FOIA does not permit agencies to sect requests for political scrutiny. For related information see EPIC: Open Government and EPIC: Litigation under the Federal Open Government Laws 2010. (Feb. 16, 2011)
  • EPIC Opposes TSA's Secret Evidence in Body Scanner Case: EPIC has opposed an effort by the Transportation Security Administration to provide secret evidence to the court in EPIC's challenge to the the airport body scanner program. The TSA claimed that it can withhold documents that it has designated "Sensitive Security Information" and scientific studies because they are "copyrighted materials." EPIC responded that the TSA failed to establish that the documents are Sensitive Security Information, and also that the TSA cannot withhold materials in a judicial proceeding because they are subject copyright. The argument before the DC Circuit in the case is scheduled for March 10. For more information, see EPIC: EPIC v. DHS: Body Scanners (Suspend the Program) and EPIC: EPIC v. DHS (FOIA). (Feb. 10, 2011)
  • Patriot Act Extension Fails in House Vote: A House vote on extending provisions of the Patriot Act that will lapse on February 28 failed. The three provisions concerned authorizing the FBI’s use of roving wiretaps, granting the government access to “any tangible items” of individuals under surveillance, and allowing the surveillance of individuals and groups not connected to identified terrorist groups. The House bill would have extended these provisions until December. The Senate Judiciary Committee is considering a bill that would extend the expiring provisions to 2013. Senator Patrick Leahy (D-VT) issued a statement explaining that he did not support efforts to extend the provisions that “undercut important oversight and government accountability of these intelligence gathering tools.” EPIC, through the Freedom of Information Act, recently obtained from the Intelligence Oversight Board, internal reports of intelligence law violations by the FBI that do not comply with Attorney General guidelines for oversight. EPIC has in the past urged the Senate Judiciary Committee to require the Attorney General to report to Congress on potentially unlawful investigations. For related information, see EPIC: USA Patriot Act and EPIC: PATRIOT FOIA Litigation. (Feb. 9, 2011)
  • Chairman Issa Investigates "Political Review" Policy at Homeland Security: Rep. Darrell E. Issa (R-CA), chair of the House Committee on Oversight and Government Reform, has issued a letter to Secretary Janet Napolitano demanding that DHS release all documents regarding the agency's policy of vetting FOIA requests through political appointees. Rep. Issa also asked that DHS political appointees appear before the Committee for interviews regarding the policy. Previously, EPIC urged the FOIA Ombudsman to conduct an investigation of the DHS. EPIC said the "political review" policy is contrary to federal law and Supreme Court holdings; the FOIA does not permit agencies to select requests for political scrutiny. For related information see EPIC: Open Government and EPIC: Litigation under the Federal Open Government Laws 2010. (Feb. 2, 2011)
  • DHS Releases FOIA Report, But Questions Remain: The Department of Homeland Security has released the Freedom of Information Act Report for 2010. The report analyzes the processing of FOIA requests made throughout the year by each DHS component, detailing the disposition of each request, response times, and the number of backlogged requests. DHS is under scrutiny for their policy of referring FOIA requests to political appointees before processing. The release of over 1,000 agency documents revealed a persistent agency practice of flagging FOIA requests from EPIC and other watchdog organizations for referral.The FOIA does not permit agencies to select FOIA requests for political scrutiny and the Supreme Court has stated that neither the identity of the FOIA requester nor the reason for the request is relevant to the processing of requests. EPIC has recommended that the FOIA Ombudsman investigate the Department’s policy. For related information see EPIC: Open Government and EPIC: Litigation under the Federal Open Government Laws 2010. (Jan. 24, 2011)
  • EPIC Urges Investigation of White House FOIA Review Policy: In a letter (Appendix 1-6, 7-12, 13-18)sent today to the FOIA Ombudsman, EPIC recommended an investigation of the Department of Homeland Security’s policy of referring FOIA requests to political appointees in the White House. Under the DHS policy, political appointees receive detailed information about the identity of FOIA requesters and the topics of their requests. This policy is contrary to federal law and Supreme Court holdings, as the FOIA does not permit agencies to select FOIA requests for political scrutiny. The release of over 1,000 agency documents reveals a persistent agency practice of flagging FOIA requests from EPIC and other organizations for referral to political appointees. For related information see EPIC: Open Government and EPIC: Litigation under the Federal Open Government Laws 2010. (Dec. 8, 2010)
  • EPIC Challenges DoD FOIA Processing Policies: EPIC filed a request with the FOIA Ombudsman challenging the Department of Defense's unlawful assertion that the DoD has the statutory authority to administratively withdraw a FOIA request without input or consultation from the FOIA requester. DoD made the assertion in response to a FOIA request EPIC had filed seeking documents detailing the agency's agreements with Project Vigilant, a private sector company that monitors Internet Service Providers and provides that information to federal agencies. The FOIA Ombudsman is authorized to review policies and procedures of administrative agencies, review compliance by administrative agencies, and recommend policy changes to Congress and the President. EPIC requested that the FOIA Ombudsman investigate DoD's policies and publish a report of its findings. For related information see Litigation Under the Federal Open Government Laws 2010 and EPIC: Open Government. (Nov. 23, 2010)
  • EPIC Files Suit For Documents Regarding Google/NSA Partnership: Today, EPIC filed a Freedom of Information Act lawsuit against the National Security Agency in the United States District Court in the District of Columbia. The agency failed to respond to EPIC's FOIA request for documents about an "Information Assurance" partnership with Google. EPIC previously appealed to the agency to comply with its legal duty to produce the documents, but he agency failed to respond. EPIC is also seeking the Presidential Directive that grants the NSA authority to conduct electronic surveillance in the United States. For more information, see EPIC: Open Government. (Sep. 13, 2010)
  • Senators Question Safety of Airport Body Scanners, Object to Program Expansion: Three U.S. Senators have objected to the Department of Homeland Security's expansion of the airport body scanner program. In a letter to DHS Secretary Janet Napolitano, Senators Collins (R-ME), Burr (R-NC), and Coburn (R-OK) have asked "why the Department continues to purchase this technology when legitimate concerns about its safety appear to remain unanswered." The Senators noted that "the issue of radiation associated with the backscatter x-ray AIT machines has not been adequately addressed by TSA." They urged the agency's Chief Medical Officer, working with independent experts, to conduct a review of the health effects on travelers and airport personnel. EPIC recently submitted a FOIA request to the DHS for all records of tests conducted by the agency regarding radiation impacts. EPIC has also filed an emergency motion in federal court to suspend the program, pending an thorough review of the airport body scanner program. For more information, see EPIC: Whole Body Imaging Technology and EPIC v. DHS (Suspension of Body Scanner Program). (Aug. 18, 2010)
  • EPIC FOIA - Feds Save Thousands of Body Scan Images: In an open government lawsuit against the United States Marshals Service, EPIC has obtained more than one hundred images of undressed individuals entering federal courthouses. The images, which are routinely captured by the federal agency, prove that body scanning devices store and record images of individuals stripped naked. The 100 images are a small sample of more than 35,000 at issue in the EPIC lawsuit. EPIC has pursued a similar FOIA lawsuit against the Dept. of Homeland Security but the DHS refuses to release the images it has obtained. EPIC has also filed suit to stop the deployment of the machines in US airports. For more information, see EPIC Body Scanners, EPIC - EPIC v. DOJ (Marshall Service FOIA), and EPIC Press Release. (Aug. 4, 2010)
  • EPIC FOIAs NSA for Details of "Perfect Citizen": EPIC has filed a Freedom of Information Act request with the National Security Agency regarding the new secret cybersecurity program known as "Perfect Citizen." According to the Wall Street Journal, the program "would rely on a set of sensors deployed in computer networks for critical infrastructure that would be triggered by unusual activity suggesting an impending cyber attack," although the agency has claimed that there "is no monitoring activity involved, and no sensors are employed in this endeavor" but has refused to release the details of the program. In its request, EPIC has sought contracts, memoranda, and other records relating to "Perfect Citizen." For more information, see EPIC Cybersecurity and Privacy. (Jul. 16, 2010)
  • Supreme Court to Review Freedom of Information Act Case Exempting Agency Documents from Public Disclosure: Today, the Supreme Court agreed to hear Milner v. Department of the Navy a case in which a federal appeals court allowed the Navy to withhold records sought under the Freedom of Information Act. At issue in the case is the scope of Exemption 2 of the FOIA, which permits agencies, in some circumstances, to withhold information requested pursuant to FOIA. The exemption at issue exempts information “related solely to the internal personnel rules and practices of an agency.” Writing in dissent, Judge Fletcher said that the FOIA exemptions "must be narrowly construed." For more information see EPIC: Open Government; EPIC FOIA Manual. (Jun. 28, 2010)
  • FOIA Update - EPIC Forces Disclosure of Report on Obama Passport Breach : EPIC's Freedom of Information Act lawsuit against the State Department, EPIC v. State, has produced a report detailing security breaches of passport data for several Presidential candidates. Federal investigators prepared the report in the wake of March 2008 breaches that exposed Barack Obama, Hillary Clinton, and John McCain's personal information. Previously secret sections state "the Department was ineffective at detecting possible incidents of unauthorized access," and criticized the agency's failure to "provide adequate control or oversight." Portions of the report remain secret - the agency hasn't fully implemented investigators' recommendations. EPIC testified before the Senate in 2008 concerning the security breaches, urging lawmakers to limit employee and contractor access to personal data. For more, see EPIC Passport Privacy and EPIC Open Government. (Jun. 23, 2010)
  • Senate Unanimously Passes Faster FOIA Act: The Senate unanimously passed the Faster FOIA Act of 2010, introduced by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX), that will establish a 16-member commission to determine methods for reducing delays in processing FOIA requests. Government reports reveal substantial delays in disclosing records subject to the open government law. The legislation seeks to improve the processing of FOIA requests. EPIC frequently uses the FOIA to obtain information about government programs that impact privacy rights. For more information, see EPIC: FOIA Litigation Docket, EPIC: FOIA Litigation Manual. (May. 7, 2010)
  • EPIC Demands Release of Classified Answers on Privacy and Internet Standards from Cyber Command Nominee : EPIC has filed a Freedom of Information Act (FOIA) request with the National Security Agency (NSA) seeking the "classified supplement" that Director Lt. Gen. Keith Alexander filed with his answers to questions from the Senate Armed Services Committee regarding his nomination to be the Commander of the newly formed United States Cyber Command. Several of Lt. Gen. Alexander's classified responses were to questions regarding the privacy of Americans' communications, and EPIC's request urges the Agency to make the full responses public. EPIC is currently in litigation with the NSA to obtain the secret policy for NSA surveillance authority. For more information, see EPIC Sues NSA to Force Disclosure of Cybersecurity Authority. (Apr. 19, 2010)
  • Faster FOIA Act Heading for Senate Vote: A bill to improve the speed at which the government processes requests under the Freedom of Information Act (FOIA), called the Faster FOIA Act of 2010, was passed by the Senate Judiciary Committee late last week and has been reported to the full Senate for a vote. The bill was introduced in March by Senators Leahy (D-Vt.) and Cornyn (R-Tx.) and will establish a 16-member commission to conduct a study to determine methods for reducing delays in processing FOIA requests. For more information, see EPIC FOIA Litigation Docket, EPIC FOIA Litigation Manual. (Apr. 19, 2010)
  • EPIC v. Homeland Security: Government has Over 2,000 Photos from Airport Body Scanners: As a result of a Freedom of Information Act lawsuit, EPIC has obtained hundreds of pages of documents from the Department of Homeland Security about the plan to deploy full body scanners in US airports. A letter to EPIC reveals that the government agency possesses about 2,000 body scanner photos from devices that the DHS said earlier "could not store or record images." EPIC has also obtained the most recent device procurement specifications, and several hundred new pages of traveler complaints. For more information, see EPIC: Whole Body Imaging and EPIC: EPIC v. Department of Homeland Security.  (Apr. 16, 2010)
  • Senators Leahy and Cornyn Introduce Bill to Reduce FOIA Delays: Senators Patrick Leahy and John Cornyn introduced the Faster FOIA Act, which would establish a panel to examine agency backlogs in processing FOIA requests. Government reports reveal substantial agency delays in disclosing FOIA records. The bill comes at the beginning of Sunshine Week, a national observance of the importance of open government. EPIC makes frequent use of the FOIA to obtain information about privacy issues. EPIC celebrated Sunshine Week by publishing the EPIC FOIA Gallery: 2010. For more, see EPIC: Open Government and EPIC Bookstore: FOIA. (Mar. 16, 2010)
  • EPIC Publishes 2010 FOIA Gallery: In celebration of Sunshine Week, EPIC published the EPIC FOIA Gallery: 2010. The gallery highlights key documents obtained by EPIC in the past year, including records detailing the privacy risks posed by airport body scanners, fraudulent "parental control" software, and federal agencies' contracts with social networking web sites. EPIC regularly files Freedom of Information Act requests and pursues lawsuits to force disclosure of critical documents that impact privacy. EPIC also publishes the authoritative FOIA litigation manual. For more, see EPIC Open Government and EPIC Bookstore: FOIA. (Mar. 16, 2010)
  • Independent Open Government Audit Finds Mixed Results for Obama Administration: The National Security Archive at George Washington University has released the results of its annual government-wide FOIA audit. The audit tested agency responsiveness to President Obama's new directives on government transparency and openness. The Archive report concluded that less than half of federal agencies have responded to the new open government directives with concrete changes, and only four agencies "show both increases in releases and decreases in denials under the FOIA." Attorney General Eric Holder spoke today about the administration's FOIA record. For more information, see EPIC Open Government. (Mar. 15, 2010)
  • EPIC Seeks Records on Google-NSA Relationship: Today EPIC filed a Freedom of Information Act request with the National Security Agency, seeking records regarding the relationship between Google and the NSA. The press reported that Google and the NSA have entered into a partnership following a recent hacker attack on Google originating from China. The EPIC FOIA request also seeks NSA communications with Google regarding Google's failure to encrypt Gmail and cloud computing services. In March 2009, EPIC filed a complaint with the Federal Trade Commission urging it to investigate the adequacy of Google's cloud computing privacy and security safeguards. Today EPIC also filed a lawsuit against the National Security Agency and the National Security Council, seeking a key document governing national cybersecurity policy. For more information, see EPIC FOIA Litigation and EPIC Cloud Computing. (Feb. 4, 2010)
  • EPIC Sues NSA to Force Disclosure of Cyber Security Authority: EPIC has filed a lawsuit against the National Security Agency and the National Security Council, seeking a key document governing national cybersecurity policy. The document, National Security Presidential Directive 54 grants the NSA broad authority over the security of American computer networks. The agencies violated the Freedom of Information Act by failing to make public the Directive and related records in response to EPIC's request. EPIC's suit asks a federal judge to require the release of the documents. Congress is currently debating cyber security policy. For more information, see EPIC FOIA Litigation, EPIC Critical Infrastructure Protection. (Feb. 4, 2010)
  • Homeland Security Releases Annual FOIA Report: The Department of Homeland Security has released the 2009 Freedom of Information Act Report. The report shows that the Department processed over 160,000 requests in the past year, with 27,182 requests remaining pending. Of the requests processed, 11% were granted in full, 60% were classified as "partial grants/partial denials," and the remaining 29% were denied in full. The overwhelming majority of backlogged requests and appeals are pending at the Customs and Immigration Service. For denied requests with processed appeals, nearly 30% were fully reversed on appeal, and another 32% were reversed in part. EPIC currently has two FOIA cases pending against the Department relating to its use of Body Scanner machines. For more information, see EPIC v. DHS, EPIC FOIA Litigation Docket. (Feb. 1, 2010)
  • Defense Department Pulls Parental Control Software Product Following EPIC Complaint: Documents obtained by EPIC, pursuant to a Freedom of Information Act (FOIA) request, revealed the Defense Department canceled a contract with Echometrix, following an EPIC complaint to the Federal Trade Commission earlier this year. According to the documents obtained by EPIC, the Army and Air Force Exchange Service pulled My Military Sentry, which collects data for marketing purposes, from its online store: “The collection of AAFES customer information (personal or otherwise) for any other purpose than to provide quality customer service is prohibited . . . . Giving our customers the ability to opt out does not address this issue.” For more information, see EPIC: In re Echometrix. (Dec. 4, 2009)
  • EPIC Files Appeal for NSA Policy on Network Surveillance: Today, EPIC filed a Freedom of Information Act appeal, seeking disclosure of NPSD 54, the classified Directive that describes a National Security Agency program to monitor American computer networks. EPIC submitted the original request to shed light on the extent of the federal government's surveillance of civilian computer systems, but the agency refused to disclose the document. EPIC's appeal warns that the NSA’s improper withholding of the Directive "flatly contravenes" the President's policy on open government and "explicit FOIA guidance promulgated by the Attorney General." EPIC further stated, without public disclosure of the Directive, "the government cannot meaningfully make assurances about the adequacy of privacy and civil liberties safeguards." For more information, see EPIC Open Government. (Nov. 24, 2009)
  • EPIC Celebrates International Right to Know Day: Today, EPIC celebrates International Right to Know Day, which was established to raise awareness of every individual's right of access to government-held information. EPIC is speaking at American University's Third Annual International Right-To-Know Day Celebration concerning opportunities to restore US leadership in government transparency. Recently, the Obama Administration announced revisions to the "state secrets" privilege and increased access to White House visitor records. Both initiatives aim to expand disclosure of information. Last week, EPIC filed papers to force the Department of Homeland Security to comply with federal open government law, citing the President's commitment to transparency. For more information, see EPIC Open Government and EPIC FOIA Litigation Manual 2008. (Sep. 28, 2009)
  • EPIC Pursues DHS Official's Public Calendar: EPIC has filed a FOIA appeal with the Department of Homeland Security for the calendar of the Chief Privacy Officer. EPIC submitted the original request to find out why the DHS Privacy Officer could not meet with privacy groups in Washington, DC. The agency turned over many pages from the calendar, but the entries were all blacked out. In the appeal, EPIC said the agency has failed to comply with the open government law and also cited the President's commitment to government transparency concerning the activities of public officials. For more information, see EPIC Open Government. (Sep. 18, 2009)
  • EPIC Forces Disclosure of Government Contracts with Social Media Companies, Privacy Terms Missing: In response to an EPIC Freedom of Information Act Request, the Government Services Administration released several contracts between the federal government and web 2.0 companies, including agreements with Blip.tv, Blist, Google (YouTube), Yahoo (Flickr), and MySpace. EPIC also obtained amendments to agreements with Facebook, Slideshare.net, Vimeo.com, and AddThis.com. The contracts do not address the privacy obligations of social media companies. The GSA letter to EPIC explained that “no specific Web 2.0 guidance currently exists,” but provided EPIC with Training Slides that raise privacy issues. The GSA Agreement with Google actually states that, “to the extent any rules or guidelines exist prohibiting the use of persistent cookies in connection with Provider Content applies to Google, Provider expressly waives those rules or guidelines as they may apply to Google.” Some of the agreements also permit companies to track users of government web sites for advertising purposes. For more information see EPIC Social Network Privacy, EPIC Facebook, and EPIC Cloud Computing. (Aug. 12, 2009)
  • White House Seeks Comments on Web Tracking, EPIC Urges Ban be Maintained on Persistent Identifiers: The Office of Management and Budget is seeking public comments on the use of Web tracking techniques on federal government websites. Government agencies are currently prohibited from using persistent identifiers, such as cookies, except when there is a compelling need. EPIC, in comments to the President's Office of Science & Technology, said that the government should not track users who are seeking online access to public information. EPIC is also pursuing a FOIA request concerning the transfer of personal information collected by federal agencies to private vendors. Comments are due to OMB by Aug. 10, 2009. Suggestions may also be submitted at the OSTP blog. For more information on persistent tracking, see EPIC Cookies. (Jul. 27, 2009)
  • EPIC Endorses Better Approaches on Government Transparency: In response to President Obama's plan to develop a new open government policy, EPIC submitted comments recommending that users are not tracked on government sites; promoting open government; allowing meaningful public participation in government decisions; stopping commercialization of personal data; and the application of Privacy Act to all data collected by the Government. See also EPIC's page on Open Government and consider purchasing EPIC's FOIA litigation manual. (Jun. 3, 2009)
  • White House Seeks User Comments on Government Transparency: The White House is seeking public comments on the open government proposal. President Obama's memorandum on Transparency and Open Government directed the Chief Technology Officer, the Office of Management and Budget, and the General Services Administration to develop these recommendations. The Open Government Directive will instruct executive departments and agencies on specific actions to implement transparency principles. The first phase of the initiative involves an online brainstorming session and comments are due by May 28, 2009. To learn more about transparency and open government, consider purchasing EPIC's FOIA litigation manual. (May. 21, 2009)
  • EPIC Seeks Government Agreements with Social Networking Companies: EPIC submitted a Freedom of Information Act request to the Government Services Administration seeking agency records concerning agreements the GSA negotiated between federal agencies and social networking services, including Flickr, YouTube, Vimeo, Blip.tv, and Facebook. In the FOIA request, EPIC is asking for the public release of the contracts and any legal opinions concerning the application of the Privacy Act of 1974 and Freedom of Information Act to the services that collect information on citizens. For more information see EPIC’s pages Social Networking, Facebook, and Cloud Computing. (Apr. 30, 2009)
  • Senate to Investigate NSA "Overcollection": Senator Dianne Feinstein has announced that the Senate Intelligence Committee will hold a hearing on the National Security Agency's interception of phone calls and private e-mail messages of Americans. Recently, the New York Times reported that the NSA's activities went beyond the legal limits established by the Congress last year. EPIC has a related lawsuit asking a federal court to force the release of memos on the legal authority for domestic surveillance of American citizens. For more information, see EPIC's page on Freedom of Information Act Work on the National Security Agency's Warrantless Surveillance Program. (Apr. 17, 2009)
  • EPIC Demands Disclosure of Documents Detailing "Virtual Strip Search" Airport Scanners: Today, EPIC filed a Freedom of Information Act request demanding disclosure of records detailing airport scanners that take naked pictures of American travelers. Security experts describe the "whole body imaging" scanners as virtual strip searches. The Transportation Security Administration plans to make the scans mandatory at all airport security checkpoints, despite prior assurances that whole body imaging would be optional. EPIC's request seeks documents concerning the agency's ability to store and transmit detailed images of naked U.S. citizens. For more information, see EPIC's Whole Body Imaging page and EPIC's FOIA Litigation Manual. (Apr. 14, 2009)
  • Attorney General Issues New FOIA Guidelines: The Attorney General today set out new Freedom of Information guidelines pursuant to President Obama's memorandum directing all executive branch departments and agencies to maintain a presumption of openness in releasing information requested from them. In the memorandum, the Attorney General strongly encouraged agencies to make discretionary disclosures of information to the fullest extent possible. Rescinding the FOIA Memorandum of October 12, 2001, the Attorney General stated that the Justice Department will defend a FOIA request only if the disclosure would harm an interest protected by a statutory exemption or its disclosure is prohibited by law. The memorandum also directs that each agency is fully accountable for its administration of FOIA and should be mindful of their obligation to work "in a spirit of cooperation." For more information, see EPIC's Open Government page. (Mar. 19, 2009)
  • EPIC v. DOJ - EPIC Urges Court to Require Disclosure of Warrantless Wiretap Memos: EPIC, the ACLU, and the National Security Archive asked a federal court in Washington, DC to order the immediate disclosure of government memos describing the legal basis for the warrantless wiretapping of American citizens by the Bush Administration. The court is currently reviewing the documents, prepared by the Office of Legal Counsel, as part of an EPIC Freedom of Information Act lawsuit. This week, the Attorney General released several related memos, which previously were secret. The new release follows President Obama's recent statement on government transparency. "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails," the President said. For more information, see EPIC v. DOJ. (Mar. 6, 2009)
  • EPIC, Freedom of Information Advocates Endorse President : EPIC joined Freedom of Information advocates from around the world in an Open Letter welcoming "President Obama's Initiative on Transparency." The organizations also supported the President's call for a "clear presumption in favor of disclosure of information." They called on "governments around the world to take similar action to promote transparency and respect for the right of access to information." For more information about open government, see EPIC's Open Government manual. (Jan. 29, 2009)
  • President Obama Issues New Orders on FOIA: In his first 24 hours in Office, President Obama issued a series of Executive Orders. One of the Orders dealt with the Freedom of Information Act (FOIA) activity of federal government agencies. He stated that prior FOIA rules were governed by a "defensible argument" for not disclosing information to the public. The President said that, "Starting today, every agency and department should know that his administration stands on the side, not of those who seek to withhold information, but with those who seek to make it known." In other initiatives President Obama issued a suspension of legal proceedings against detainees being held in Guantanamo Bay. For more information, see EPIC's page on Former Secrets. (Jan. 21, 2009)