Focusing public attention on emerging privacy and civil liberties issues

EPIC v. DOJ - Warrantless Wiretapping Program

Top News

  • EPIC v. DOJ: No Analysis of PRISM Legality: In a recently concluded Freedom of Information Act lawsuit, EPIC tried to obtain legal analysis concerning the controversial PRISM surveillance program. The Justice Department responded that "no responsive records" exist. An earlier FOIA case brought by EPIC revealed that the Office of Legal Counsel provided advice on the warrantless wiretapping program of President Bush. But apparently no similar memos exist on the legality of the mass collection of Internet traffic by the NSA. For more information, see EPIC v. DOJ (PRISM). (Apr. 11, 2014)
  • Court Denies EPIC Injunction in FOIA Case for Surveillance Reports: A federal judge has denied EPIC's motion for a preliminary injunction that would have required the Department of Justice to complete processing of EPIC's Freedom of Information Act Request for FISA "Pen Register" reports within 20 days. In EPIC v. DOJ, EPIC sought public disclosure of the reports that describe the collection of the bulk Internet metadata from 2004 to 2011. The Justice Department granted EPIC's request for expedited processing in November 2013, but has not yet disclosed any responsive records. After EPIC filed suit and moved for a preliminary injunction, the Justice Department notified EPIC that it intends to complete processing of the reports by February 28, 2014. For more information, see EPIC v. DOJ (FISA Pen Register Reports). (Feb. 11, 2014)
  • EPIC Asks Federal Court to Require Immediate Release of Government Surveillance Reports: EPIC has filed a Freedom of Information Act lawsuit for the reports that detail the NSA's collection of call record information from US telephone companies. Citing the Department of Justice's failure to comply with EPIC original EPIC's FOIA Request and the urgency to inform the public, EPIC has also filed a motion for a preliminary injunction, asking a federal judge to rule within 20 days on EPIC’s legal claims. EPIC is seeking the reports that the Justice Department has routinely prepared for Congress but never made available to the public. The Foreign Intelligence Surveillance Court, relying on these reports, has approved the bulk, suspicionless collection of Internet and e-mail data, which is now widely debated. For more information, see EPIC: EPIC v. DOJ (Pen Register / Trap and Trace). (Dec. 9, 2013)
  • EPIC Files Lawsuit to Determine Legal Authority For PRISM Program: EPIC has filed a Freedom of Information Act lawsuit against the Department of Justice's Office of Legal Counsel for the secret legal analyses that justifies the use of the NSA PRISM program. PRISM is a program that allows the FBI and NSA to collect information - including the contents of internet users' communications - directly from internet service providers, and without a warrant. Through this lawsuit, EPIC seeks to clarify which, if any, legal authority would permit such extensive domestic surveillance of personal activities. The secrecy of these opinions is of increasing concern to Open Government advocates. EPIC, joined by a coalition of FOIA organizations, recently filed an amicus brief in support of a New York Times lawsuit for opinions of the Office of Legal Counsel. For more information, see EPIC v. DOJ - PRISM. (Nov. 25, 2013)
  • EPIC Challenges Secret Statute in Open Government Case: EPIC has opposed the Department of Justice's reliance on secret legal authority in a Freedom of Information Act lawsuit. In EPIC v. DOJ et. al, EPIC is seeking information about government surveillance of individuals who have exercised their First Amendment rights and expressed interest in WikiLeaks, an Internet-based media organization. The Department of Justice has withheld from disclosure certain information responsive to the EPIC request but will not reveal the legal basis for its decision. In opposing the government filing, EPIC said that secret law "poses unique concerns to democratic governance and undermines the purpose of the FOIA." For more information, see EPIC: EPIC v. DOJ (Wikileaks) and EPIC: Open Government. (Feb. 19, 2013)
  • EPIC v. DOJ: Warrantless Wiretapping Memos Disclosed: Pursuant to EPIC v. DOJ, the Justice Deparment has turned over two legal memos concerning the Bush-era warrantless wiretapping program. EPIC sought these memos within hours after the New York Times first reported on the wiretapping program in 2005. The memos, dated November 2, 2001 and May 6, 2004, contain portions of the Bush Administration's justifications for the program, but are heavily redacted. The Obama Administration withheld three other memos in their entirety. For more information, see EPIC: Wiretapping, EPIC: Foreign Intelligence Surveillance Act (FISA), and Lawfare, "DOJ Releases Redacted Version of 2004 Surveillance Opinion." (Mar. 22, 2011)
  • EPIC Files FOIA Suit to Force Disclosure of Body Scanner Radiation Risks: EPIC has filed a Freedom of Information Act lawsuit against the Department of Homeland Security, seeking records concerning radiation emissions and exposure associated with airport full body scanners. The Department recently implemented the scanners as a primary screening mechanism for all airline travelers. In August, many senators questioned the safety of the scanners. In September, Ralph Nader also sent a letter to the Senate expressing concern about radiation exposure. Earlier this year, EPIC requested DHS to release all information about radiation emissions. DHS failed to respond to EPIC's FOIA request and when DHS also failed to reply to EPIC's administrative appeal, EPIC filed a lawsuit in federal court. Earlier EPIC FOIA lawsuits uncovered evidence that body scanners can store and record images and that the Marshals Service had captured more than 35,000 images. For more information see, EPIC v. DHS (Body scanner images) and EPIC v. DOJ (Body scanner images). (Nov. 19, 2010)
  • Inspector Generals Release Report on President's Surveillance Program: The Inspector Generals of the Intelligence Community released a report on the President's Surveillance Program. The report summarizes the unclassified collective results of the reviews. The Program involved the massive, warrantless surveillance of Americans in the United States. The IG Report finds that the absence of effective oversight contributed to the ineffectiveness of the program. In December 2005, EPIC had requested the legal opinions that were prepared to justify the program. The government has refused to produce many key documents, and EPIC sued under the Freedom of Information Act. In March this year, the Attorney General released several related memos, which previously were secret, following President Obama's statement on government transparency. See EPIC FISA, EPIC Surveillance FOIA, EPIC Wiretapping, and EPIC National Security Letters. (Jul. 10, 2009)
  • Senate to Investigate NSA "Overcollection": Senator Dianne Feinstein has announced that the Senate Intelligence Committee will hold a hearing on the National Security Agency's interception of phone calls and private e-mail messages of Americans. Recently, the New York Times reported that the NSA's activities went beyond the legal limits established by the Congress last year. EPIC has a related lawsuit asking a federal court to force the release of memos on the legal authority for domestic surveillance of American citizens. For more information, see EPIC's page on Freedom of Information Act Work on the National Security Agency's Warrantless Surveillance Program. (Apr. 17, 2009)
  • EPIC v. DOJ - EPIC Urges Court to Require Disclosure of Warrantless Wiretap Memos: EPIC, the ACLU, and the National Security Archive asked a federal court in Washington, DC to order the immediate disclosure of government memos describing the legal basis for the warrantless wiretapping of American citizens by the Bush Administration. The court is currently reviewing the documents, prepared by the Office of Legal Counsel, as part of an EPIC Freedom of Information Act lawsuit. This week, the Attorney General released several related memos, which previously were secret. The new release follows President Obama's recent statement on government transparency. "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails," the President said. For more information, see EPIC v. DOJ. (Mar. 6, 2009)
  • In EPIC Case for Wiretap Memos, Federal Judge to Review Justice Department Documents. In EPIC v. DOJ, EPIC, the ACLU, and the National Security Archive are seeking government documents regarding the President's warrantless wiretapping program. Today, a federal court ordered the Department of Justice to provide for inspection copies of legal memos authored by government lawyers. The opinions, prepared by the Office of Legal Counsel, provided the legal basis for the President to wiretap US citizens in the United States without court approval. EPIC began the Freedom of Information Act lawsuit in December 2005, after the New York Times first reported the details of the wiretap program. (Oct. 31)
  • EPIC Urges Court to Assess Government Secrecy Claims in Domestic Surveillance Case. EPIC, in a joint brief (pdf) with the American Civil Liberties Union and the National Security Archive, asked a federal court to order the Department of Justice to produce legal opinions that were prepared to justify the President's domestic surveillance program. The brief renews EPIC's request that a federal judge review the documents held by the agency and determine whether they should be kept from the public. In December 2005, immediately after press reports uncovered the President's surveillance program, EPIC requested the legal opinions that were prepared to justify the program. The government refused to produce many key documents, and EPIC sued under the Freedom of Information Act. (February 6, 2008)
  • EPIC v. DOJ: Court Rejects Secrecy Claims in FOIA Case. A federal district court today ordered (pdf) the Department of Justice to be more forthcoming about the basis for withholding documents concerning the President's domestic surveillance program. In December 2005, immediately following the press report of the program, EPIC requested legal opinions and related documents that were prepared to justify and monitor the warrantless surveillance program. The American Civil Liberties Union and the National Security Archive also submitted FOIA requests. A federal court has now ruled in EPIC v. DOJ (pdf) that the Department of Justice's basis for withholding the documents were "too vague and general," and that the FBI's justifications, in particular, are "wholly inadequate." By October 12, the Department must provide far more detailed information to EPIC and the other plaintiffs. (Sept. 5, 2007)
  • In Court Filing, EPIC Urges Release of Documents Concerning the NSA Surveillance Program In papers (pdf) filed in Washington, DC, today, EPIC, the American Civil Liberties Union, and the National Security Archive urged a federal district court to require the Justice Department to disclose documents about the NSA Domestic Surveillance program. The motion follows the testimony (pdf) of former Deputy Attorney General James Comey before the Senate Judiciary Committee that indicated that top officials at the Department of Justice believed that the program was illegal. EPIC first sought documents regarding the legal basis for the program just hours after the warrantless surveillance program was first reported in the New York Times in December 2005. (March 23, 2007)

Background

In December 2005, the New York Times reported that President Bush secretly issued an executive order in 2002 authorizing the National Security Agency to conduct warrantless surveillance of international telephone and Internet communications on American soil. President Bush acknowledged the existence of the NSA surveillance program and vowed that its activities would continue.

EPIC submitted FOIA requests to the NSA and four Department of Justice components just hours after the existence of the warrantless surveillance program was first reported. Noting the extraordinary public interest in the program - and its potential illegality - EPIC asked the agencies to expedite the processing of the requests.

The DOJ agreed that the requests warranted priority treatment, but has now failed to comply with the FOIA's usual time limit of twenty working days. In January 2006, EPIC filed a lawsuit (pdf) against the DOJ to compel the immediate disclosure of information concerning the NSA surveillance program, and asked (pdf) the federal district court in Washington to issue a preliminary injunction requiring the release of relevant documents within 20 days. EPIC's case has been consolidated with a lawsuit (pdf) filed by the American Civil Liberties Union and National Security Archive concerning the same documents.

On February 16, 2006, U.S. District Judge Henry H. Kennedy ordered (pdf) the DOJ to process and release documents concerning the NSA program within 20 days, or by March 8, 2006. The day before it was required to disclose the documents, the Justice Department asked (pdf) Judge Kennedy for an additional four months to process some of the material responsive to EPIC's request, which Judge Kennedy has allowed (pdf).

Once the DOJ completes its processing of the material, any decision to withhold the requested documents will be subject to judicial review, and Judge Kennedy will have the ability to order "in camera" production of the material and make an independent determination concerning public disclosure.

The NSA has released two internal messages (pdf) in response to EPIC's request, but is withholding all other responsive material. EPIC filed suit (pdf) against the NSA in February 2006, asking a federal court to compel the release of the withheld documents. EPIC later dismissed the case.

Legal Documents

EPIC et al. v. Department of Justice, Civ. Action No. 06-0096 (D.D.C. HHK)

EPIC v. Nation Security Agency, Civ. Action No. 06-0199 (D.D.C. RWR)

Freedom of Information Act Documents

  • In EPIC Open Government Lawsuit, Former Official Concludes that Surveillance Program was Illegal. Documents obtained by EPIC in a Freedom of Information Act lawsuit against the Department of Justice reveal that a former top official in the Justice Department doubted that the domestic surveillace program was allowed under the Authorization for Use of Military Force Resolution. In an e-mail, David S. Kris wrote that the the Justice Department's defense of the program, "had a slightly after-the-fact quality or feeling to them." Other materials released by the Bush Administration (pdfs part 1, part 2, part 3, part 4) include various justifications for the program and transcripts of television appearances by the Attorney General. In a motion filed last night, the Justice Department has asked (pdf) the court for an additional four months to process classified material responsive to EPIC's request. (March 8, 2006)
  • Court Orders Justice Department to Release NSA Surveillance Documents. In response to a Freedom of Information Act lawsuit (pdf) filed by the Electronic Privacy Information Center, a federal judge has ordered (pdf) the Department of Justice to process and release documents related to the Bush Administration's warrantless surveillance program by March 8. It is the first court opinion addressing the controversial domestic spying operation. "President Bush has invited meaningful debate about the warrantless surveillance program," U.S. District Judge Henry H. Kennedy wrote. "That can only occur if DOJ processes [EPIC's] FOIA requests in a timely fashion and releases the information sought." (Feb. 16, 2006)
  • Federal Judge Hears Arguments on EPIC's Request for Documents. On February 10, 2006, U.S. District Judge Henry H. Kennedy heard arguments on EPIC's request (pdf) for an emergency order requiring the Department of Justice to process and release documents concerning the National Security Agency's warrantless surveillance program within 20 days. The documents at issue include Justice Department memoranda addressing the purported legality of the program - material that the Administration has thus far refused to provide to the Senate Judiciary Committee for purposes of congressional oversight. (Feb. 10, 2006)
  • EPIC Files Second Lawsuit for NSA Surveillance Documents. In a Freedom of Information Act complaint (pdf) filed today in federal court, EPIC is seeking the release of National Security Agency documents detailing the Administration's warrantless domestic surveillance program. EPIC filed a similar lawsuit (pdf) last month against the Department of Justice, which has played a key role in authorizing, implementing and overseeing the NSA's warrantless surveillance activities. A hearing in that case is scheduled for February 10. (Feb. 6, 2006)
  • EPIC Sues Justice Department for Domestic Surveillance Documents. Today EPIC filed a Freedom of Information Act lawsuit (pdf) against the Department of Justice, asking a federal court to order the disclosure of information about the Administration's warrantless domestic surveillance program within 20 days. The Justice Department has played a key role in authorizing, implementing and overseeing the National Security Agency's domestic surveillance activities. EPIC argues in its court papers (pdf) that the debate surrounding the program "cannot be based solely upon information that the Administration voluntarily chooses to disseminate." For more information, see EPIC's press release. (Jan. 19, 2006)
  • First NSA Documents on Spy Scandal Released. EPIC has obtained the first Freedom of Information Act documents released by the National Security Agency on its controversial surveillance program. The documents, which are internal messages (pdf) from the agency's director to staff, defend the NSA's warrantless eavesdropping and discourage employees from discussing the issue with the news media. (Jan. 4, 2006)