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EPIC v. DOJ - Pen Register Reports

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  • House Adopts Weakened NSA Reform Bill, Senators Now Look to Improve Privacy and Transparency Protections: The U.S. House of Representatives has voted to adopt a modified USA "FREEDOM" Act. The bill no longer prohibits bulk collection of communications records. Other key provisions were also removed. Senator Leahy said that the bill is "an important step towards reforming" surveillance authorities, but expressed disappointment that the current version "does not include some of the meaningful reforms contained in the original" bill. In 2013 EPIC filed a Petition to the Supreme Court seeking to end bulk collection of telephone call records. EPIC also testified before the House in 2012 that the FISA should not be renewed without adoption of new reporting requirements. For more information, see EPIC: FISA and EPIC: FISA Reform. (May. 23, 2014)
  • House Judiciary Committee to Consider Bill to End Bulk Surveillance, Improve NSA Oversight: The House Judiciary Committee has scheduled a markup of the USA Freedom Act. The proposed "Manager's Amendment", sponsored by James Sensenbrenner (R-WI), would prevent bulk collection of phone records and other business records, and would limit the scope of phone record searches. The bill would also (1) limit the collection of US persons communications by the NSA's PRISM program, (2) require public reports on the use of FISA surveillance, (3) require declassification of significant FISA Court opinions, and (4) create a public advocate at the FISA Court. In 2012, EPIC testified before the House Judiciary Committee on the need for public reports and the declassification of significant FISC opinions. In 2013, EPIC filed a petition with the Supreme Court, alleging that the bulk collection of telephone record was unlawful. For more information, see EPIC: FISA Reform and In re EPIC. (May. 5, 2014)
  • Annual FISA Report Shows Decrease in Surveillance Orders, Questions About Scope Remain: The Department of Justice has published the 2013 FISA Report. The brief report provides summary information about the government's use of the Foreign Intelligence Surveillance Act. In 2012 the Foreign Intelligence Surveillance Court granted 1,789 FISA orders and 212 "Section 215" orders. In 2013, there were 1,588 requests to conduct FISA surveillance, with 34 modifications. The FISC also granted 178 business record orders under Section 215, with 141 modified by the court. The significant number of modified orders indicates that the government's initial applications are too broad. For example, the controversial NSA Metadata program, was authorized by the surveillance court under a modified order. It is possible that in 2013 the court authorized other bulk collection programs. For more information, see EPIC: FISC Orders 1979-2014 and EPIC: FISA Graphs. (May. 1, 2014)
  • EPIC Obtains Secret Attorney General Reports on Electronic Surveillance: As a result of an FOIA lawsuit, EPIC has obtained copies of the Attorney General Reports on the government's electronic surveillance activities. These reports have been submitted to Congress every six months since 2001 but have never before been disclosed to the public. These reports include new details about government collection of telephone and Internet records. The reports include the number of US persons targeted for "Pen Register" surveillance under the Foreign Intelligence Surveillance Act. The reports also contain noncompliance incidents and significant foreign intelligence court opinions, but those details have been withheld by the Justice Department. The documents obtained by EPIC also show that the Justice Department told Congress that the collection of telephone subscriber information would decrease, even after the section 215 bulk collection program began. The case is EPIC v. Dept. of Justice, No. 13-961. For more information, see EPIC v. DOJ - FISA Pen Registers and EPIC: FISA Stats. (Mar. 19, 2014)
  • In FOIA Lawsuit, EPIC Obtains Secret Reports on Data Collection: In a Freedom of Information Act lawsuit, EPIC has obtained reports that detail the number of times the Surveillance Court authorized the use of techniques that gather the telephone numbers and metadata of phone customers and Internet users. The previously secret reports obtained by EPIC cover the period between 2000 and 2013. The reports reveal a dramatic increase in the use of these techniques in 2004 and then a significant reduction in 2008, likely the consequence of a shift to other investigative techniques. The documents show that nearly all applications to the Surveillance Court were approved without modifications. In 2013, EPIC petitioned the Supreme Court to end the bulk telephone record collection program. Former members of the Church Committee and dozens of legal scholars supported the EPIC petition. For more information see: EPIC v. Department of Justice - Pen Register Reports, EPIC: Foreign Intelligence Surveillance Court Orders 1979-2012, and In re EPIC. (Mar. 3, 2014)
  • Federal Communications Commission Seeks Public Comment to Protect Phone Record Privacy: The Federal Communications Commission has invited public comments on a petition requesting the FCC to rule that the sale of consumer phone records to the government is a violation of the federal Communications Act. EPIC joined the petition, which was organized by Public Knowledge. In 2013, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. In 2013 EPIC also wrote to the FCC to explain that Verizon had likely violated the Communications Act when it disclosed telephone records to the NSA. Public comments on the petition are due January 17, 2014 and reply comments are due February 3, 2014. For more information, see EPIC: CPNI (Customer Proprietary Network Information), and EPIC: Foreign Intelligence Surveillance Act. (Jan. 7, 2014)
  • Senate Confirms Judge Wald for Privacy Oversight Board: The Senate confirmed the reappointment of Judge Patricia M. Wald to the Privacy and Civil Liberties Oversight Board. Judge Wald's current term was set to expire next month, but President Obama re-nominated her on March 21, 2013. Last year, EPIC recommended that the Oversight Board, consistent with its mandate, pursue a broad agenda, including (1) suspension of the Fusion Center Program ; (2) limiting closed-circuit television surveillance; (3) eliminating the use of body scanners; (4) establishing privacy regulations for drones; (5) improving Information Sharing Environment (ISE) and Suspicious Activity Reporting (SARS) Standards; and (6) Privacy Act adherence. More recently, EPIC addressed the Board at a workshop on NSA Surveillance. And in response to a public rulemaking, EPIC also provided extensive comments on a proposed rule governing the Board's Freedom of Information Act practices. The Board adopted nearly all of EPIC's recommendations on transparency. For more information, See EPIC: Foreign Intelligence Surveillance Act and EPIC: Open Government. (Dec. 13, 2013)
  • Presidential Task Force to Recommend Changes at NSA : The Review Group on Intelligence and Communications Technologies, established to recommend surveillance reforms, will send a final report to the President this Sunday. According to one news article, the task force will recommend putting a civilian leader in charge of NSA, separating out the code-breaking "Information Assurance Directorate," and splitting the U.S. Cyber Command off into a separate military unit. The Review Group will also recommend new limits on the NSA’s ability to search telephone call records, proposing that telephone records be stored with a third party rather than the NSA. The group will also recommend safeguards for the data of European citizens, and restrictions on the use of National Security Letters. Earlier this year, EPIC filed a petition with the U.S. Supreme Court, supported by legal scholars and former members of the Church Committee, arguing that the NSA bulk collection program was unlawful. For more information, see EPIC: Foreign Intelligence Surveillance Act, EPIC: Foreign Intelligence Surveillance Act Reform, and EPIC: In re EPIC. (Dec. 13, 2013)
  • EPIC Supports Petition Urging FCC to Protect Phone Record Privacy: EPIC has joined a petition to the Federal Communications Commission, organized by Public Knowledge, that asks the FCC to rule that the sale of consumer phone records to the government is a violation of the federal Communications Act. Last month, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. And in June, following the initial Snowden disclosure, EPIC wrote to the FCC to explain that Verizon had likely violated the Communications Act when it disclosed telephone records to the NSA. EPIC has also long supported the FCC's consumer privacy enforcement authority, filing amicus briefs in significant cases, including US West v. FCC and NCTA v. FCC, to defend the agency’s privacy regulations. For more information, see EPIC: CPNI (Customer Proprietary Network Information), EPIC: Foreign Intelligence Surveillance Act. (Dec. 11, 2013)
  • EPIC Asks Federal Court to Require Immediate Release of Government Surveillance Reports: EPIC has filed a Freedom of Information Act lawsuit for the reports that detail the NSA's collection of call record information from US telephone companies. Citing the Department of Justice's failure to comply with EPIC original EPIC's FOIA Request and the urgency to inform the public, EPIC has also filed a motion for a preliminary injunction, asking a federal judge to rule within 20 days on EPIC’s legal claims. EPIC is seeking the reports that the Justice Department has routinely prepared for Congress but never made available to the public. The Foreign Intelligence Surveillance Court, relying on these reports, has approved the bulk, suspicionless collection of Internet and e-mail data, which is now widely debated. For more information, see EPIC: EPIC v. DOJ (Pen Register / Trap and Trace). (Dec. 9, 2013)

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. ยง 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

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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