EPIC v. DOJ – FBI: Wikileaks

Background

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.

Freedom of Information Act Documents

• EPIC’s FOIA Request (June 23, 2011) (pdf)
• EPIC’s Administrative Appeal (August 5, 2011) (pdf)

Legal Documents

U.S. District Court for the District of Columbia — EPIC v. DOJ Criminal Division, et al., No. 12-cv-00127 (D.D.C. filed Jan. 25, 2012)

• Memorandum Opinion (filed Mar. 4, 2015)
• Complaint (filed Jan. 25, 2012)
• Defendants’ Motion for Leave to File Ex Parte, In Camera Exhibits (filed Jan. 31, 2013)
• Plaintiff’s Opposition to Defendants’ Motion for Leave to File Ex Parte, In Camera Exhibits (filed Feb 18, 2013)
• Defendants’ Reply (filed Feb. 28, 2013)
• Defendants’ Motion for Summary Judgment (filed Jan. 31, 2013)
• Plaintiff’s Opposition and Cross-Motion for Summary Judgment (filed Mar. 4, 2013)
• Defendants’ Reply and Opposition to Plaintiff’s Motion for Summary Judgment (filed Apr. 10, 2013)
• Plaintiff’s Combined Reply in Support of Cross-Motion for Summary Judgment and in Support of Motion for In Camera Examination (filed Apr. 24, 2013)
• Defendants’ Supplemental Brief in Response to the Court’s March 17, 2014 Minute order, and in Further Support of Defendants’ Motion for Summary Judgment (filed Apr. 25, 2014)
• Defendants’ Response In Opposition To Plaintiff’s Motion For In Camera Examination Of Withheld Records (filed Apr. 10, 2013)
• Plaintiff’s Combined Reply In Support Of Cross-Motion For Summary Judgment And In Support Of Motion For In Camera Examination (filed Apr. 24, 2013)
• Defendant’s Supplemental Brief In Response To The Court’s March 17, 2014 Minute Order, And In Further Support Of Defendants’ Motion For Summary Judgment (filed Apr. 25, 2014)
• Plaintiff’s Opposition To Defendants’ Sealed Motion For Leave To File Document Under Seal (filed May 9, 2014)
• Plaintiff’s Opposition To Defendants’ Supplemental Brief (filed May 12, 2014)
• Defendants’ Reply To Their Supplemental Brief, And In Further Support Of Defendants’ Motion For Summary Judgment (filed May 19, 2014)
• Defendants’ Reply In Support Of Thier Motion For Leave To File Ex Parte And In Camera A Supplemental Declaration Concerning Withholding Of Investigative Records (filed May 19, 2014)
• Order Granting Defendants’ Motion for Leave to File Declarations in camera and ex parte (filed July 29, 2014)
• Settlement Agreement (filed July 23, 2015)
• Joint Stipulation of Dismissal (filed July 23, 2015)

News Items

• US government still hunting WikiLeaks as Obama targets whistleblowers, The Guardian, Mar. 5, 2015
• Marcy Wheeler, FBI Is Not “Surveilling” WikiLeaks Supporters in Its Never-Ending Investigation; Is It “Collecting” on Them?, Empty Wheel, Mar. 5, 2015
• Justice Department and FBI still pursuing a criminal investigation of WikiLeaks, Raw Story, Mar. 5, 2015
• Philip Dorling, Court reveals FBI still investigating WikiLeaks’ Julian Assange, Sydney Morning Herald, Mar. 5, 2015
• Daily Document: Federal Judge Shields Docs in WikiLeaks Investigation, The National Law Journal, Mar. 4, 2015
• Kevin Gosztola, Judge Decides FBI, Justice Department May Keep Records on Investigation Into WikiLeaks Secret, The Dissenter, Mar. 4, 2014
• Group Says FBI Snoops on Wikileaks Supporters , Courthouse News Service, Jan. 31, 2012.
• DOJ: We Can’t Tell Which Secret Application of Section 215 Prevents Us From Telling You How You’re Surveilled , Empty Wheel, Feb. 1, 2013.