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April 29, 2003

David M. Hardy, Chief
Record/Information Dissemination Section
Records Management Division
Federal Bureau of Investigation
Department of Justice
935 Pennsylvania Avenue N.W.
Washington, DC 20535-001

RE: Freedom of Information Act Request and Request for Expedited Processing

Dear Mr. Hardy:

This letter constitutes an expedited request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and is submitted on behalf of the Electronic Privacy Information Center ("EPIC").

We are seeking all records, including but not limited to correspondence, memoranda, reports, presentations, and legal opinions, concerning or involving communications between agency officials and representatives of Google Inc. regarding use of Google search technology for law enforcement and intelligence purposes, and particularly the possible use of Google's Gmail service for law enforcement and intelligence investigations.

Request for Expedited Processing

This request warrants expedited processing because it pertains to a matter about which there is an "urgency to inform the public about an actual or alleged federal government activity," and the request is made by "a person primarily engaged in disseminating information." 6 C.F.R. § 5.5(d)(1)(ii).

Google Inc. is the developer of the largest search engine in the world, with an index of more than 4 billion web pages.[1] On April 1, 2004, Google launched a test version of Gmail, "a free search-based web mail service with a storage capacity of up to eight billion bits of information, the equivalent of 500,000 pages of email. Per user."[2] In addition to having immense storage capacity, Gmail is a unique service because it indexes e-mail based on key terms contained within the content of the message. Google has proposed one service that would allow advertisers to target commercial ads to Internet users based on the key terms contained within their private communications. We are interested to know whether any federal agency has considered the use of the Gmail service to further law enforcement investigations or intelligence gathering activities by, for example, targeting advertising to Internet users that could lead to the collection of evidence or intelligence by a federal agency.

In support of our claim for expedited processing, we point to the pending release of the service and the extraordinary media media attention that Gmail has generated. In fact, a Google News search for "Gmail" from April 1, 2004, when Google announced the Gmail test phase to the public, to April 29, 2004 returned 1,570 results (see first page of search results, attached hereto).

In further support of our request for expedited processing is that fact that Gmail is capable of performing precisely the functions for law enforcement and intelligence agencies that have been the subject of Congressional action and widespread public debate. As journalist Stephen H. Wildstrom explained:

A . . . serious privacy concern is raised by the potential for thousands of your messages, perhaps accumulated over years, being stored on Google's servers, where you have little control over them. . . The main federal law covering the privacy of e-mail, the Electronic Communications Privacy Act, is 18 years old and full of flaws. Its protections are loophole-ridden and, in particular, it allows law-enforcement agencies to gain access to your messages on a mail provider's system without your knowledge.[3]

Wildstrom also noted that Gmail's search capability creates a potential invasion of privacy that no other web-based email service presents: "A privacy concern unique to Gmail is that Google could combine information about a huge store of your mail with records of your search activity into a detailed portrait of your life."[4]

Gmail is capable of performing functions which law enforcement and intelligence agencies have pursued before, drawing intense Congressional and media interest. For instance, Gmail's capabilities are similar to what the Defense Advanced Research Projects Agency (DARPA) hoped to create in 2002 when it began developing the Total Information Awareness Program. Joint Staff and Under Secretary of Defense for Acquisition, Logistics and Technology Edward C. "Pete" Aldridge explained that TIA was meant to perform data analysis to "determine links and patterns indicative of terrorist activities[.]"[5] Office of Information Awareness Director Admiral John Poindexter elaborated, "Certain agencies and apologists talk about connecting the dots, but one of the problems is to know which dots to connect. The relevant information extracted from this data must be made available in large-scale repositories with enhanced semantic content for easy analysis to accomplish this task."[6] Congress eventually eliminated funding for the program[7] due in part to concerns about the program's potentially grave impact on individuals' privacy.[8]

Because Gmail combines tremendous storage capacity with search technology, the service could also analyze vast amounts of personal information on every Internet user who subscribes to the Gmail service or corresponds with a subscriber the Gmail service. As one editorial on Gmail has noted, "it won't be long before law enforcement agencies say they, too, want in. If that sounds paranoid, well, it's exactly the argument that defenders of the Pentagon's Orwellian Total Information Awareness program used: "If credit card companies can rifle through your transactions, why not us?"[9]

Further, Gmail performs automated searches of users' e-mail for keywords upon which inferences are made. These inferences are then used to draw specific inference about the activities and interests of particular Internet users. This function is similar to that which the FBI's Internet data interception tool DCS/1000, formerly known as Carnivore, performs. The FBI's tool "is a software-based Internet Protocol (IP) packet sniffer that can select and record a defined subset of the traffic on the network to which it is attached . . . In limited cases, packets can be selected based on their content."[10] Gmail has the capability to perform a similar task for law enforcement or intelligence agencies, eliminating the need actually to install government software at Google for interception purposes.

For these reasons, there is a particular urgency for the public to obtain information about communications that agency officials have had with Google representatives about actual or potential use of Google's search technology and Gmail to pursue law enforcement and intelligence investigations. The government activity at issue here -- cooperating with one of the world's leading private purveyors of search technology for law enforcement and intelligence investigatory purposes -- raises serious privacy issues that will affect a significant portion of the public.

The purpose of EPIC's request is to obtain information directly relevant to the FBI's actual or potential use of Google technology, particularly Gmail, to pursue law enforcement and intelligence investigations. The records requested involve the manner and extent to which the FBI is pursuing or utilizing Google technology for law enforcement and intelligence ends, and clearly meet the standard for expedited processing.

Further, as I explain below in support of our request for "news media" treatment, EPIC is "primarily engaged in disseminating information."

Request for "News Media" Fee Status

EPIC is a non-profit, educational organization that routinely and systematically disseminates information to the public. This is accomplished through several means. First, EPIC maintains a heavily visited web site (www.epic.org) that highlights the "latest news" concerning privacy and civil liberties issues. The site also features scanned images of documents EPIC obtains under the FOIA. Second, EPIC publishes a bi-weekly electronic newsletter that is distributed to over 15,000 readers, many of whom report on technology issues for major news outlets. The newsletter reports on relevant policy developments of a timely nature (hence the bi-weekly publication schedule). It has been published continuously since 1996, and an archive of past issues is available at our web site. Finally, EPIC publishes and distributes printed books that address a broad range of privacy, civil liberties and technology issues. A list of EPIC publications is available at our Web site.

For the foregoing reasons, EPIC clearly fits the definition of "representative of the news media" contained in the FOIA and the Department of Justice regulations. Indeed, the U.S. District Court for the District of Columbia has held that EPIC is a "news media" requester under the FOIA. See Electronic Privacy Information Center v. Department of Defense, 241 F. Supp. 2d 5 (D.D.C. 2003). Based on our status as a "news media" requester, we are entitled to receive the requested records with only duplication fees assessed. Further, because disclosure of this information will "contribute significantly to public understanding of the operations or activities of the government," as described above, any duplication fees should be waived.

Thank you for your consideration of this request. As applicable Department regulations provide, I will anticipate your determination on our request for expedited processing within ten (10) calendar days. Should you have any questions about this request, please feel free to call me at 202-483-1140 ext. 112.

Under penalty of perjury, I hereby affirm that the foregoing is true and correct to the best of my knowledge.

Sincerely,

Marcia Hofmann
Staff Counsel

[1] Google, Google Inc. Company Overview, at http://www.google.com/press/overview.html (last accessed Apr. 27, 2004).

[2] Press Release, Google Inc., Google Gets the Message, Launches Gmail (Apr. 1, 2004) available at http://www.google.com/press/pressrel/gmail.html.

[3] Stephen H. Wildstrom, Google's Gmail is Great -- But Not For Privacy, BusinessWeek Online, April 25, 2004, at http://www.businessweek.com/magazine/
content/04_18/b3881046.htm.

[4] Id.

[5] Department of Defense News Briefing (Nov. 20, 2002); see also Congressional Research Service, Library of Congress, Privacy: Total Information Awareness Programs and Related Information Access, Collection and Protection Laws (March 21, 2003) 2.

[6] John Poindexter, DARPATech 2002 Conference, Anaheim, CA (Aug. 2, 2002).

[7] Department of Defense Appropriations Act, 2004, Pub. L. No. 108-87 § 8131 (2003).

[8] See, e.g., Department of Defense Nominations: Hearing Before the Senate Armed Services Committee, 108th Cong. (2003) (comment of Sen. Carl Levin); Threats to U.S. Security: Hearing Before the Senate Select Intelligence Committee, 108th Cong. (2003) (question of Sen. Ron Wyden).

[9] Editorial, If Google Ogles Your E-Mail, Will Ashcroft Be Far Behind?, San Jose Mercury News, Apr. 15, 2004, at B OP1.

[10] IIT Research Institute, Independent Review of the Carnivore System, Final Report (Dec. 2000) 1.


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