FOIA Cases

EPIC v. ODNI

Case No. 12-1282

US District Court for the District of Columbia

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Background

ODNI

EPIC has filed a Freedom of Information Act lawsuit against the Office of the Director of National Intelligence (ODNI), seeking documents related to the collection and integration of detailed personal information of US persons from databases at various levels of government. The ODNI is the top intelligence agency in the US, coordinating the activities of agencies including the CIA, the FBI, and the DHS.

NCTC

ODNI operates and maintains the National Counterterrorism Center (NCTC), a facility comprising an integrated network of electronic databases. The NCTC was established in August 2004 by Presidential Executive Order 13354, and codified by the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). On its website, the NCTC describes its mission and purpose as “implement[ing] a key recommendation of the 9/11 Commission: ‘Breaking the older mold of national government organizations, this NCTC should be a center for joint operational planning and joint intelligence, staffed by personnel from the various agencies.'” NCTC serves as the primary organization in the United States that gathers, integrates, and analyzes all counterintelligence information. It gathers this information from “all instruments of national power, including diplomatic, financial, military, intelligence, homeland security, and law enforcement to ensure unity of effort. NCTC ensures effective integration of CT plans and synchronization of operations across more than 20 government departments and agencies engaged in the War on Terror, through a single and truly joint planning process.” The procedures and policies governing the NCTC’s collection, storage, and use of data are outlined in a set of Guidelines (“Guidelines for Access, Retention, Use, and Dissemination by the National Counterterrorism Center (NCTC)”) published by the ODNI. In March 2012, Attorney General Eric Holder approved an updated set of revised Guidelines, which expanded the NCTC’s data collection and storage capabilities. Under the revised guidelines, the detailed personal information that will populate the integrated ODNI databases will be amassed from across the federal government. The data then will be kept for up to five years without the legal safeguards typically in place for personal data held by government agencies.

EPIC’s FOIA Request

On March 22, 2012, the New York Times published an article describing the implementation of the Guidelines. The Times reported that not only would the new guidelines permit the NCTC to copy other agencies’ databases in their entirety, but they also establish a “priority list” of agencies who data the NCTC intends to copy first. After the Guidelines’ publication, EPIC filed several FOIA requests, seeking documents identifying both “priority” databases and any procedural safeguards in place to ensure accuracy and data security.

EPIC requested documents related to (1) the “priority list” of databases discussed in the NTCT Guidelines, (2) data accuracy and security safeguards, (3) agreements and disputes between ODNI and agency heads, and (4) interpretations of key standards used to identify “terrorism information.”

After the ODNI failed to make a timely response to EPIC’s FOIA requests, EPIC filed suit in the Washington, DC District Court. EPIC’s complaint demands that ODNI conduct a reasonable search and promptly disclose responsive records.

FOIA Documents

Litigation Documents

EPIC’s Complaint, August 1, 2012

ODNI’s Answer, October 1, 2012

Joint Status Report and Proposed Schedule, October 15, 2012

Defendant’s Motion for Summary Judgment, May 10, 2013

Plaintiff’s Opposition and Cross-Motion for Summary Judgment, June 14, 2013

Defendant’s Motion to Strike, June 28, 2013

Defendant’s Reply and Opposition to Cross-Motion for Summary Judgment, June 28, 2013

Plaintiff’s Reply, July 12, 2013

Order, October 9, 2013

Memo Opinion, October 9, 2013

Documents Produced

Court’s Opinion, October 9, 2013

Resources

EPIC’s Press Release, August 2, 2012

Congressional Hearing by the Subcommittee on Oversight of Government Management, the Federal Workforce and the District of Columbia: “State of Federal Privacy and Data Security Law: Lagging Behind the Times?”, July 31, 2012

The March 2012 NCTC Guidelines, March 23, 2012

The previous NCTC Guidelines, November 4, 2008

News Reports

Darlene Storm, Is US intelligence so big that counterterrorism is failing? ‘Yes’ say insiders, Computer World (Oct. 7, 2013)

Michael Kelley, The Paradox Of The ‘War on Terror’, Business Insider (Oct. 1, 2013)

Washington’s Blog, “The President’s Private Army“: NSA-CIA Spying is Central to Carrying Out the Obama Administration’s Assassination Program, Global Research (Sep. 29, 2013)

Matt Sledge, National Counterterrorism Center’s ‘Terrorist Information’ Rules Outlined In Document, Huffington Post (Feb. 15, 2013)

Kashmir Hill, The Little Known Spy Agency That Knows Your Flight Plans And Much More, Forbes (Dec. 14, 2012)

Michael Kelley, CONFIRMED: US Counterterrorism Agency Can Amass Data On Any Citizen, Business Insider (Dec. 13, 2012)

Kim Zetter, Attorney General Secretly Granted Gov. Ability to Develop and Store Dossiers on Innocent Americans, Wired (Dec. 13, 2012)

Julia Angwin, U.S. Terrorism Agency to Tap a Vast Database of Citizens , Wall Street Journal (Dec. 13, 2012)

Julia Angwin, The NCTC Controversy: a Timeline, Wall Street Journal Blog (Dec. 12, 2012)

Robert Chesney, Kill Lists, the Disposition Matrix, and the Permanent War: Thoughts on the Post Article, Lawfare (Oct. 24, 2012)

Greg Miller, Plan for hunting terrorists signals U.S. intends to keep adding names to kill lists, Washington Post (Oct. 23, 2012)

Bob Unruh, Setback for secret Big Brother database, World Net Weekly (Oct. 19, 2012)

Michael Kelley, If You Think The Counterterrorism Center’s Disposition Matrix Is Scary, Look What Else They’re Tracking, Business Insider (Mar. 25, 2012)

Charlie Savage, U.S. Relaxes Limits on Use of Data in Terror Analysis, The New York Times (Mar. 22, 2012)

Robert Chesney, The CIA’s Counterterrorism Center as a Combatant Command: Today’s Story in the Post and My Forthcoming Article on the Legal Aspects of Military-Intelligence Convergence, Lawfare (Sep. 2, 2011)

Greg Miller and Julie Tate, CIA shifts focus to killing targets, Washington Post (Sep. 1, 2011)

Dana Priest and William M. Arkin, A hidden world, growing beyond control, Washington Post (Jul. 19, 2010)

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