EPIC v. DOJ - Pen Register Reports

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Background

Pen registers and trap and trace ("PR/TT") devices collect metadata from calls coming in to and going out of specific phone lines, respectively. There are two federal statutes governing the application for and the execution of such recording devices, the Electronic Communications Privacy Act ("ECPA") and the Foreign Intelligence Surveillance Act ("FISA"). Under the FISA, pen registers and trap and trace devices can be used "for any investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities."

On June 27, 2013, the Guardian reported that the NSA had received authorization to collect bulk email and Internet metadata using the Pen Register and Trap and Trace provisions of the FISA on July 14, 2004. According to the Guardian, the surveillance program was authorized by Judge Kollar-Kotelly of the Foreign Intelligence Surveillance Court ("FISC"). On November 18, 2013, less than five months after the Guardian's report, the Office of the Director of National Intelligence ("ODNI") released an undated and previously unpublished FISC opinion signed by Judge Kollar-Kotelly. Judge Kollar-Kotelly found that the Pen Register/Trap and Trace povisions allowed the National Security Agency ("NSA") to collect certain redacted categories of bulk Internet and e-mail metadata. Judge Kollar Kotelly found that the government's proposal "satisfie[d] each of the elements of the applicable statutory definition of a 'pen register' or a 'trap and trace.'"

The program allegedly continued until 2011, when it was discontinued for "operational and resource reasons." Senators Ron Wyden and Mark Udall explained:

We are quite familiar with the bulk email records collection program that operated under the USA Patriot Act and has now been confirmed by senior intelligence officials. We were very concerned about this program's impact on Americans' civil liberties and privacy rights, and we spent a significant portion of 2011 pressing intelligence officials to provide evidence of its effectiveness. They were unable to do so, and the program was shut down that year.

There is no evidence that the program has been re-instituted since its cessation in 2011.

The Attorney General is required to make a semiannual report to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate that would include a summary of all uses of pen registers and trap and trace devices obtained under the FISA. The report should include the number of applications granted and the number of applications modified under the FISA, as well as the total number of installations approved and denied under emergency circumstances. These reports have never been made available to the public

EPIC's Freedom of Information Act Request and Subsequent Lawsuit

On October 3, 2013, EPIC submitted a FOIA request to the National Security Division of the Department of Justice asking for:

  • All reports made to the Permanent Select Committee on Intelligence in the House of Representatives and the Select Committee on Intelligence in the Senate, detailing the total number of orders for pen registers or trap and trace devices granted or denied, and detailing the total number of pen registers or trap and trace devices installed pursuant to 50 U.S.C. § 1843;
  • All information provided to the aforementioned committees concerning all uses of pen registers and trap and trace devices;
  • All records used in preparation of the above materials, including statistical data.

DOJ granted EPIC's request for expedited processing but had not processed EPIC's FOIA Request within more than 40 days after it had been received by the Agency. DOJ failed to provide any documents, and EPIC filed a complaint and a motion for a preliminary injunction on December 6, 2013.

Freedom of Information Act Documents

Attorney General Semiannual FISA Pen Register Reports

Semiannual Reports of the Attorney General to Congress Regarding Electronic Surveillance

Foreign Intelligence Surveillance Court Documents

EPIC's Request

Legal Documents

EPIC v. Department of Justice, Case No. 13-01961 (D.D.C. filed December 9, 2013)

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