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EPIC v. DHS - SOP 303

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  • EPIC to Argue Before DC Circuit for Release of Cell Phone Shutdown Policy: This week EPIC President Marc Rotenberg will argue EPIC v. DHS, No. 14-5013 before the US Court of Appeals for the DC Circuit. At issue is the public release of the policy - "SOP 303" - to shut down cell phone service in the United States. EPIC filed a filed a Freedom of Information Act request for the policy after government officials shut down cell phone service during a peaceful protest at BART subway stations in San Francisco. The government first contended it could not find the document, then located the document, then claimed it was exempt from disclosure. EPIC filed suit against the agency and a federal court ruled in EPIC's favor. On appeal, the government argued the decision should be reversed. EPIC responded that the decision was correct and SOP 303 should be released. The DC Circuit will hear arguments Thursday morning. For more information, see EPIC v. DHS - SOP 303. (Dec. 9, 2014)
  • EPIC Defends FOIA Victory in Federal Appeals Court: EPIC has filed a brief in response to an appeal by the Department of Justice in EPIC v. DHS, concerning the government policy to disrupt cellular networks. EPIC won a major FOIA victory when a federal district court ruled that the DHS could not withhold "SOP 303," a government procedure to shut down cellular phone service. EPIC sought the policy after authorities shut down cell phone service at a peaceful protest in San Francisco. The government argued it did not need to release the document to EPIC because it was a "law enforcement technique" and because it would endanger the physical safety of an individual. The federal court rejected those arguments and ordered that the document be disclosed to EPIC, pending a decision on the appeal. For more details, see EPIC v. DHS—SOP 303. (Jul. 8, 2014)
  • DHS Open Government Report Reveals Increased Backlog and Use of Law Enforcement Exemptions: The Department of Homeland Security has released the 2013 Freedom of Information Act Report detailing the agencies attempts to comply with the federal open government law. The FOIA requires each agency to provide the numbers of requests received and processed, the time taken to respond, the outcome of each request, and other statistics. In 2013, the DHS reported a significant increase in its FOIA backlog, which rose from 28,553 unanswered requests in 2012 to 53,598 unanswered requests in 2013. Of the nine exemptions that an agency can invoke to withhold documents, DHS relied most heavily on exemption 7(C) (law enforcement records that if released would constitute an invasion of personal privacy) and 7(E) (law enforcement records that if released would disclose law enforcement techniques or procedures, which is significant because the DHS is not a law enforcement agency. DHS reported granting about 7% of requests for expedited processing. EPIC has prevailed in several FOIA lawsuits against DHS, and has also worked to reform the agency's FOIA processing practices for other requesters. For more information, see EPIC v. DHS - Body Scanner FOIA Appeal, EPIC v. DHS - Social Media Monitoring, and EPIC v. DHS - SOP 303. (Feb. 21, 2014)

Background

Standard Operating Procedure 303 codifies “a shutdown and restoration process for use by commercial and private wireless networks during national crises.”

On March 9, 2006, the National Communications System (“NCS”) approved SOP 303, however it was never released to the public. This secret document codifies a “shutdown and restoration process for use by commercial and private wireless networks during national crisis.” In a 2006-2007 Report, the President’s National Security Telecommunications Advisory Committee (“NSTAC”) indicated that SOP 303 would be implemented under the coordination of the National Coordinating Center (“NCC”) of the NSTAC, while the decision to shut down service would be made by state Homeland Security Advisors or individuals at DHS. The report indicates that NCC will determine if a shutdown is necessary based on a “series of questions."

On July 3, 2011, a Bay Area Rapid Transit (“BART”) officer in San Francisco shot and killed a homeless man, Charles Hill. The officer alleged later that Hill had attacked him with a knife and that he had acted in self-defense. The death sparked a major protest against BART on July 11, 2011. Though the protests disrupted service at several transit stations, no one was injured. A second protest was planned one month later, but was cut short after BART officials cut off all cellular service inside four transit stations for a period of three hours. This act prevented any individual on the station platform from sending or receiving phone calls, messages, or other data.

The incident with BART has set off a renewed interest in the government’s power to shut down access to the Internet and other communications services. A 2011 Report from the White House asserted that the National Security Council and the Office of Science and Technology Policy have the legal authority to control private communications systems in the United States during times of war or other national emergencies. The Federal Communications Commission plans to implement policies governing the shutdown of communications traffic for the “purpose of ensuring public safety”. Also, on July 6, 2012, the White House approved an Executive Order seeking to ensure the continuity of government communications during a national crisis. As part of the Executive Order, DHS was granted the authority to seize private facilities, when necessary, effectively shutting down or limiting civilian communications.

EPIC's Freedom of Information Act Request and Subsequent Lawsuit

In July 2012, EPIC submitted a FOIA request to DHS for:

  • The full text of Standard Operating Procedure 303;
  • The full text of the pre-determined “series of questions” that determines if a shutdown is necessary;
  • Any executing protocols related to the implementation of Standard Operating Procedure 303, distributed to DHS, other federal agencies, or private companies, including protocols related to oversight of shutdown determinations.

On July 24, 2012, DHS acknowledged receipt of EPIC’s FOIA Request. On August 21, 2012, DHS provided its final response, claiming that the agency was “unable to locate or identify any responsive records.”

On February 27, 2013, EPIC filed EPIC filed a lawsuit under the FOIA in the District Court for the District of Columbia. After filing the complaint, EPIC received a letter from the United States Coast Guard Office of the Chief Administrative Law Judge. Administrative Decision Letter. The letter indicated that “the record fails to demonstrate that the Privacy Office conducted an adequate search for responsive records” and stated that the filed would be remanded for further review.

District Court

On November 12, 2013, the District Court ruled that the DHS improperly withheld SOP 303 and granted EPIC's motion for summary judgment. In a motion for summary judgment, the government claimed it properly withheld SOP 303 under Exemptions 7(E) and 7(F). The court rejected both claims.

In order to withhold a record under Exemption 7, an agency must first satisfy the (b)(7) threshold: the record was "compiled for law enforcement purposes." Next, the agency must satisfy the requirements of one of Exemption 7's subsections. The district court found that the agency met the (b)(7) threshold because "law enforcement" includes crime prevention measures discussed in SOP 303. However, the court rejected the agency's argument that SOP 303 fell under 7(E). Exemption 7(E) permits agencies to withhold records compiled for law enforcement purposes that "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." The court rejected the government's 7(E) claim because if "[7(E)] is given its natural meaning, it cannot encompass the protective measures discussed in SOP 303."

The court also rejected the government's claim under 7(F). Exemption 7(F) permits an agency to withhold records compiled for law enforcement purposes if production "could reasonably be expected to endanger the life or physical safety of any individual." The issue in this case was the scope of the term "any individual." The government claimed that the "any individual" test was satisfied because those endangered are any individuals near a bomb. The court rejected the government's argument stating that "the agency still must identify the individuals at risk with some degree of specificity."

The district court ordered DHS to produce SOP 303 to EPIC within 30 days, but stayed the order for 30 days to allow the agency to file an appeal, or to exempt the record through classification or legislation. DHS appealed the case but did not attempt to withhold the record under another FOIA exemption.

U.S. Court of Appeals for the D.C. Circuit

In June of 2014, DHS filed an appeal challenging the lower court's decision as to Exemption 7(E) and 7(F). EPIC filed a brief in response arguing that the district court's decision was correct. EPIC identified the issue on appeal as:

  • "Whether the Department of Homeland Security's policy for coordinating the 'disruption' of wireless communications networks during a peaceful protest is exempt from disclosure under Exemptions 7(E) or 7(F) of the Freedom of Information Act, 5 U.S.C. ยง 552(b) (2012)."

EPIC President Marc Rotenberg will argue EPIC's case before the D.C. Circuit on December 11, 2014.

Legal Documents

EPIC v. DHS, D.C. Cir. No. 14-5013

EPIC v. DHS, ___ F. Supp. 2d ___ (D.D.C. 2013)

Freedom of Information Act Documents

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