Wikileaks is “a not-for-profit media organization” whose “goal is to bring important news and information to the public.” Wikileaks states that it “provide[s] an innovative, secure and anonymous way for sources to leak information to our journalists (our electronic drop box).” Wikileaks operates the Internet web site http://www.wikileaks.org.
On November 28, 2010, Wikileaks posted 220 confidential American diplomatic cables on the wikileaks.org web site (“the November release”). The posted cables are a portion of a larger collection of similar cables, numbering approximately 250,000, in Wikileaks’ possession. Wikileaks has provided copies of the cables to news organizations, including The New York Times, The Guardian (UK), Der Spiegel, El Pais, and Le Monde.
At the time of the November release, Wikileaks accepted donations from individual contributors through its website, employing several companies to process the payments. The processing companies included PayPal, Mastercard, and Visa. In the immediate wake of the November release, Wikileaks hosted internet content on servers operated by Amazon.com and routed internet traffic to the site using DNS services provided by EveryDNS pursuant to agreements between Wikileaks and the companies.
After the November release, the U.S. Government opened investigations into Wikileaks. On November 29, 2010, Attorney General Eric Holder said that the DOJ initiated an “active, ongoing criminal investigation” into the Wikileaks release. On December 6, 2010, Attorney General Holder said that he authorized “significant” actions related to the Wikileaks investigation. On November 30, 2010, representatives of the Senate Homeland Security and Governmental Affairs Committee contacted Amazon concerning the company’s hosting of Wikileaks’ content. On December 22, 2010, the Central Intelligence Agency announced that the agency had opened an investigation into Wikileaks and the November release.
After the government opened investigations into Wikileaks, web hosts and payment processors terminated their relationships with Wikileaks. On December 1, 2010, Amazon announced that is had “ceased to host the Wikileaks website.” On December 3, 2010, EveryDNS ceased providing DNS services to Wikileaks. On December 7, 2010, PayPal vice-president Osama Bedier stated that the company suspended Wikileaks’ account following a November 27, 2010 letter from the U.S. State Department. Mastercard and Visa also suspended Wikileaks’ accounts on December 7, 2010.
In the wake of the November release, the U.S. government attempted to identify users who accessed Wikileaks’ documents. The federal government also attempted to restrict access to the documents. On November 30, 2010, a U.S. State Department employee informed the School of International and Public Affairs (SIPA) at Columbia University that SIPA students should not “post links to [the Wikileaks] documents nor make comments on social media sites such as Facebook or through Twitter.” On December 6, 2010, the State Department acknowledged that it had “instructed State Department employees not to access the WikiLeaks site and download posted documents …” On December 14, 2010, the U.S. Air Force barred its personnel from accessing Wikileaks documents.
EPIC’s Freedom of Information Act Request and Subsequent Lawsuit
On June 23, 2011, EPIC submitted a FOIA request to the Criminal and National Security Divisions of the Department of Justice, and to the Federal Bureau of Investigation, asking for:
All records regarding any individuals targeted for surveillance for support for or interest in WikiLeaks;
All records regarding lists of names of individuals who have demonstrated support for or interest in WikiLeaks;
All records of any agency communications with Internet and social media companies including, but not limited to Facebook and Google, regarding lists of individuals who have demonstrated, through advocacy or other means, support for or interest in WikiLeaks; and
All records of any agency communications with financial services companies including, but not limited to Visa, MasterCard, and PayPal, regarding lists of individuals who have demonstrated, through monetary donations or other means, support or interest in WikiLeaks
The FBI and both DOJ divisions failed to provide any documents. EPIC filed Administrative Appeals with the FBI and the National Security Division of the DOJ in September 2011, and with the Criminal Division in October 2011.
On January 25, 2012, EPIC filed a lawsuit against the DOJ and the FBI based on that agencies’ non-responsiveness to EPIC’s request and in order to compel the disclosure of documents related to the government’s identification and surveillance of individuals who have demonstrated support for or interest in Wikileaks.