FOIA Cases
EPIC v. DOJ – Pen Register Reports
US District Court for the District of Columbia
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the Guardian’s report, the Office of the Director of National Intelligence (“ODNI”) released an undated and previously unpublished FISC opinion signed by Judge Kollar-Kotelly.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.
The 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. After the DOJ failed to produce any responsive documents, EPIC filed a suit and a motion for a preliminary injunction on December 6, 2013 in the U.S. District Court for the District of Columbia.
The court denied EPIC’s motion for an injunction on February 11, 2014, but ordered the government to proceed with production of records responsive to EPIC’s request. The DOJ began producing responsive records in March 2014, and continued to release documents on a rolling basis through August 2014. Following the DOJ’s production, the parties both filed motions for summary judgment in Fall 2014. During the course of the briefing, the DOJ conceded that the agency had improperly withheld certain portions of the records during the initial release, including aggregate statistical information about FISA applications filed by the agency in the FISC. EPIC also challenged the agency’s assertion of FOIA Exemptions 1 and 7.
The court responded to the summary judgment motions in December 2015 by scheduling a hearing. Following the hearing, the court issued a Memorandum Opinion and Order on February 4, 2016, denying the DOJ’s motion and EPIC’s motion without prejudice, and ordering the government to submit a revised Vaughn Index and supporting declarations by March 11, 2016. Specifically, the court found that the DOJ had not produced sufficient evidence to support the withholding of certain challenged material in the Attorney General Semiannual FISA Pen Register Reports (“SARs”)—-portions of the SARs that “consist of summaries of FISC legal opinions, descriptions of the scope of the FISC’s jurisdiction, and discussions of FISA process improvements—-as well as four Westlaw case printouts attached to Document 68.
EPIC and the DOJ have now filed renewed motions concerning the remaining challenged withholdings, and the agency has informed the court that the Director of National Intelligence is in the process of declassifying additional material that could be relevant to the records in this case.
Freedom of Information Act Documents
As a result of EPIC’s request and lawsuit, the Department of Justice has released hundreds of pages of materials related to the governments FISA applications and FISC proceedings. These materials include Semiannual Reports from the Attorney General concerning FISA authorities and related documents filed by the DOJ in the FISC. More recently, the DOJ has released reprocessed versions of five of the disputed SARs–reports issued between December 2005 and June 2008—-that include a significant amount of new material. These new pages are displayed below with changes highlighted.
One of the key issues raised in EPIC’s lawsuit is the inconsistent and self-contradictory nature of the DOJ’s withholdings under Exemption 1 (which covers “classified” information). Many parts of the pages produced by the agency in November 2014 were redacted by the DOJ and marked as classified, but those same sections were later released in March 2016 without explanation. The DOJ has even gone so far as to redact paragraphs in the March 2016 release and mark them as classified, even though the agency already released those same paragraphs in November 2014. See the example below for a direct comparison.
Slide to compare:

Attorney General Semiannual FISA Pen Register Reports

Semiannual Reports of the Attorney General to Congress Regarding Electronic Surveillance
- April 2001
- December 2001
- April 2002
- December 2002
- September 2003
- December 2003
- September 2004
- December 2004
- June 2005
- December 2005 (updated release Mar. 18, 2016) (further updated release December 21, 2017)
- July 2006 (updated release Mar. 18, 2016) (updated release June 6, 2016) (June 6 Production Letter)
- December 2006 (updated release Mar. 18, 2016) (updated release June 6, 2016)
- June 2007 (updated release Mar. 18, 2016) (updated release June 6, 2016) (further updated release December 21, 2017)
- December 2007
- June 2008 (updated release Mar. 18, 2016)
- December 2008
- June 2009
- December 2009
- June 2010
- December 2010
- June 2011
- December 2011
- June 2012
- December 2012
- June 2013
Foreign Intelligence Surveillance Court Documents
- Application for Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes
- Application for Use of Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes
- Testimony of Alberto R. Gonzales, Attorney General of the United States and Robert S. Mueller, III, Director, Federal Bureau of Investigation, United States Department of Justice, Before the Select Committee on Intelligence, United States Senate (April 27, 2005)
- Exhibit A, Declaration of General Keith B. Alexander, United States Army, Director of the National Security Agency
- Declaration of Lieutenant General Michael V. Hayden, United States Air Force, Director of the National Security Agency
- Declaration of Lieutenant General Keith B. Alexander, United States Army, Director of the National Security Agency in Response to the [REDACTED] Order of the Foreign Intelligence Surveillance Court
- Declaration of Lieutenant General Keith B. Alexander, United States Army, Director of the National Security Agency
- Declaration of [REDACTED] Chief, Special Foreign Intelligence Surveillance Act Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, The National Security Agency (NSA)
- Declaration of [REDACTED] Chief, Special Foreign Intelligence Surveillance Act Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, The National Security Agency (NSA)
- Exhibit A, Declaration of [REDACTED] Chief, Special Foreign Intelligence Surveillance Act Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, The National Security Agency
- · Report of the United States
- Exhibit D
- Letter from David S. Kris, Assistant Attorney General, to the Honorable John D. Bates, Presiding Judge, United States Foreign Intelligence Surveillance Court
- PR/TT Primary Order
- PR/TT Supplemental Order
- PR/TT Primary Order
- PR/TT Memorandum Opinion
- PR/TT Opinion and Order
- PR/TT Supplemental Order
- Application for Use of Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes
- Letter from Deputy Section Chief for Operations, Office of Intelligence, National Security Division, U.S. Department of Justice, to the Honorable John D. Bates, Presiding Judge, United States Foreign Intelligence Surveillance Court
- PR/TT Motion to Unseal
- Government’s Response to the Court’s Order Dated [REDACTED]
- Government’s Response to the Court’s Supplemental Order Entered on [REDACTED] in Docket No. PR/TT [REDACTED] Requesting a Corrective Declaration
- Government’s Response to the Court’s Supplemental Order Entered on [REDACTED] in Docket No. PR/TT [REDACTED]
- Letter from Deputy Section Chief for Operations, Office of Intelligence, National Security Division, U.S. Department of Justice, to the Honorable John D. Bates, Presiding Judge, United States Foreign Intelligence Surveillance Court
- Memorandum of Law and Fact in Support of Application for Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes
- Memorandum of Law and Fact in Support of Application for Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes
- Memorandum of Law in Response to the Court’s [REDACTED] Order Regarding [REDACTED] [REDACTED] Under the Foreign Intelligence Surveillance Act
- Notice of Filing
- Audit of NSA Controls to Comply with the Foreign Intelligence Surveillance Court Order Regarding Pen Register and Trap and Trace Devices [REDACTED]
- Suspension of the Audit of NSA Controls to Comply with the Foreign Intelligence Surveillance Court Order Regarding Pen Register and Trap and Trace Devices [REDACTED]
- Pen Register/Trap and Trace FISA, NSA Review
- Docket No. BR 09-06, Order
- PR/TT Order
- Letter from Acting Section Chief, Oversight Section, National Security Division, U.S. Department of Justice, to the Honorable Reggie B. Walton, United States Foreign Intelligence Surveillance Court re: Preliminary Notice of a Potential Compliance Incident Involving [REDACTED]
- Letter from David S. Kris, Assistant Attorney General, National Security Division, U.S. Department of Justice, to the Honorable John D. Bates, Presiding Judge, United States Foreign Intelligence Surveillance Court
- Supplemental Declaration of [REDACTED] Chief, Special Foreign Intelligence Surveillance Act Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, The National Security Agency (NSA)
- Tab 1 to the Declaration of [REDACTED] Chief, Special Foreign Intelligence Surveillance Act Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, the National Security Agency
- Letter from David S. Kris, Assistant Attorney General, National Security Division, U.S. Department of Justice, to the Honorable John D. Bates, Presiding Judge, United States Foreign Intelligence Surveillance Court
- Verified Memorandum of Law in Response to the Court’s [REDACTED] Supplemental Order
- Verified Memorandum of Law Submitted to the FISC
- Report Regarding the Maintenance and use [REDACTED] in FBI Databases (Nov. 2006)
- Declaration by George J. Tenet, Director of Central Intelligence
EPIC’s Request
- EPIC’s FOIA Request (Oct. 3, 2013) (pdf)
- NSD’s Acknowledgement (Oct. 29, 2013) (pdf)
- NSD’s Further Response Granting Fee Waiver and Expedited Processing (Nov. 5, 2013) (pdf)
- NSD’s Production Letter (Mar. 18, 2016)
Legal Documents
EPIC v. Department of Justice, Case No. 13-01961 (D.D.C. filed December 9, 2013)
- EPIC’s Complaint Against DOJ (Dec. 9, 2013) (pdf)
- EPIC’s Motion for a Preliminary Injunction (Dec. 9, 2013) (pdf)
- DOJ Memorandum in Opposition to EPIC’s Motion for a Preliminary Injunction
- Exhibit 1 – Declaration of Mark A. Bradley
- Exhibit 2 – Order Granting, in Part, Expedited Relief for the Government in EPIC v. DOJ, No. 06cv96-HHK (D.D.C.)
- Exhibit 3 – Order Denying Preliminary Injunction in EPIC v. DOJ, No. 03cv2078-JR (D.D.C.)
- Exhibit 4 – Order Denying Preliminary Injunction in Judicial Watch v. DOJ, No. 00cv1396-JR (D.D.C.)
- Exhibit 5 – Text of Proposed Order
- EPIC Reply Memorandum in Support of Motion for a Preliminary Injunction
- DOJ Answer
- District Court Opinion Denying EPIC’s Motion for a Preliminary Injunction
- Joint Status Report (Mar. 7, 2014)
- Joint Status Report (Mar. 28, 2014)
- Joint Status Report (July 28, 2014)
- Joint Status Report (Aug. 8, 2014)
- DOJ Motion for Summary Judgment
- DOJ Memorandum of Law
- DOJ Index of Exhibits
- Second Declaration of Mark A. Bradley
- DOJ Notice Regarding Ex Parte Submission of Classified Declaration of David M. Hardy
- Declaration of David M. Hardy
- Declaration of David J. Sherman
- Declaration of Martha M. Lutz, Chief of the Litigation Support Unit, CIA
- DOJ Statement of Material Facts as to Which There Is No Genuine Dispute
- Second Declaration of David M. Hardy
- EPIC Opposition and Cross-Motion for Summary Judgment
- Exhibit 1 – Released Portions of Semiannual Attorney General Reports on FISA Surveillance
- EPIC Statement of Material Facts
News Items
- Jenna McLaughlin, In Secret Battle, Surveillance Court Reined in FBI Use of Information Obtained from Phone Calls, The Intercept (July 27, 2016)
- Marcy Wheeler, The FBI PRTT Documents: The Paragraph 31 PCTDD Technique, Emptywheel Blog (Dec. 3, 2014)
- Department of Justice Releases Documents on Pen Registers and Trap and Trace Applications to the FISC, IC on the Record, Mar. 4, 2014.
- Documents Released on U.S. Wiretapping Since Sept. 11 Terrorist Attacks, N.Y. Times, Mar. 3, 2014.
- Guest Post: Square Peg, Round Hole – How the FISC has misapplied FISA to Allow for Bulk Metadata Collection, Just Security, Dec. 2, 2013.
- Obama declassifies secret NSA order, The Hill, Nov. 19, 2013.
- U.S. surveillance architecture includes collection of revealing Internet, phone metadata, Washington Post, June 15, 2013.
- DNI Clapper Declassifies Additional Intelligence Community Documents Regarding Collection Under Section 501 of the Foreign Intelligence Surveillance Act, IContherecord, Nov. 18, 2013 (includes FISC Court Order (pdf) allowing bulk collection).
- NSA collected US email records in bulk for more than two years under Obama, Guardian, June 27, 2013.

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