EPIC v. DOJ - Warrantless Wiretapping Program
- Court Blocks EPIC's Efforts to Obtain "Predictive Analytics Report": A federal court in the District of Columbia has blocked EPIC's efforts to obtain a secret "Predictive Analytics Report" in a FOIA case against the Department of Justice. The court sided with the agency which had withheld the report and asserted the "Presidential communications privilege." Neither the Supreme Court nor the D.C. Circuit has ever permitted a federal agency to invoke that privilege in a FOIA case. EPIC sued the agency in 2017 to obtain records about "risk assessment" tools in the criminal justice system. These techniques are used to set bail, determine criminal sentences, and even contribute to determinations about guilt or innocence. Many criminal justice experts oppose their use. EPIC has pursued several FOIA cases concerning "algorithmic transparency," passenger risk assessment, "future crime" prediction, and proprietary forensic analysis. The case is EPIC v. DOJ (Aug. 14, 2018 D.D.C.). EPIC is considering an appeal. (Aug. 16, 2018)
- EPIC FOIA: Justice Department Admits Algorithmic Sentencing Report Doesn't Exist: The Justice Department, in response to an EPIC FOIA lawsuit, has admitted that the United States Sentencing Commission never produced an evaluation of "risk assessment" tools in criminal sentencing. In 2014, Attorney General Eric Holder expressed concern about bias in criminal sentencing "risk assessments" and called on the Sentencing Commission to study the problem and produce a report. But after EPIC requested that study and sued the DOJ to obtain it, the DOJ conceded that the report was never produced. EPIC did obtain emails confirming the existence of a 2014 DOJ report about "predictive policing" algorithms, but the agency also withheld that report. "Risk assessments" are secret techniques used to set bail, to determine criminal sentences, and even make decisions about guilt or innocence. EPIC has pursued several FOIA cases to promote "algorithmic transparency", including cases on passenger risk assessment, "future crime" prediction, and proprietary forensic analysis. (Dec. 15, 2017)
- EPIC v. DOJ: Court Orders DOJ to Defend Withholding of FISA Reports: A federal court, ruling in an EPIC FOIA lawsuit, has ordered the Department of Justice to defend the agency's refusal to release portions of its Foreign Intelligence Surveillance Act (FISA) reports. The semiannual reports, prepared for Congressional oversight committees, summarize significant FISA Court decisions and include the total number of FISA applications filed by the government and the number of U.S. persons targeted for surveillance. Though the court ruled that the DOJ can withhold some of the material requested by EPIC, the court found multiple "inconsistencies in the redactions that the government must address." Previously, EPIC's FOIA request and lawsuit led to the release of secret documents about the government's use of pen registers to collect records of private communications. (Nov. 7, 2017)
- EPIC Tells Congress US-UK Surveillance Agreement Should be Made Public: EPIC has sent a statement to the House Judiciary Committee for a hearing on "Data Stored Abroad." According to news reports, the United States and the United Kingdom are drafting a secret agreement for transnational access to personal data that would bypass legal and judicial safeguards. In November 2016, EPIC filed a FOIA Request for the draft US-UK agreement. The Justice Department recently informed EPIC that responsive documents had been located and would be referred to the State Department for additional processing. EPIC has long pursued public release of international agreements. In 2016, EPIC obtained the "Umbrella Agreement," concerning the transfer of personal data from the EU to the US, after a successful Freedom of Information Act lawsuit. (Jun. 14, 2017)
- Court Orders DOJ to Justify Withholding of FISA Reports in EPIC FOIA Suit: A federal court in Washington, DC ruled today that the Justice Department's explanation for withholding information about the Foreign Intelligence Surveillance Court was "manifestly insufficient." In EPIC v. Department of Justice, EPIC is seeking release of FISA surveillance reports routinely provided to Congress. The court ordered the government to submit the reports for review, and to provide specific reasons for withholding the material sought by EPIC. For almost 20 years, EPIC has made available information about FISC orders and surveillance reports. As EPIC explained to the court, release of these materials is of the "utmost importance to the public." (Feb. 4, 2016)
- EPIC Seeks Reports on FISA Court Decisions: In a Freedom of Information Act lawsuit against the Department of Justice, EPIC filed a Motion for Summary Judgment on Friday arguing that the agency improperly withheld surveillance reports sought by EPIC. The semiannual reports, prepared for Congressional oversight committees, summarize significant FISA Court decisions and include the total number of FISA applications filed by the government and the number of U.S. persons targeted for surveillance. They are similar to reports that are routinely disclosed to the public. EPIC argued that the "FISA Pen Register" reports should also be disclosed because they describe topics of "utmost importance to the public and are necessary to inform the ongoing debate over current surveillance authorities." EPIC maintains a summary of all the annual FISA statistics published by the Attorney General. For more information, see EPIC v. DOJ: FISA Pen Register Reports and EPIC: FISA Court Orders. (Nov. 24, 2014)
- EPIC (Finally) Obtains Memos on Warrantless Wiretapping Program: More than eight years after filing a Freedom of Information Act request for the legal justification behind the "Warrantless Wiretapping" program of President Bush, EPIC has now obtained a mostly unredacted version of two key memos (OLC54) and (OLC85) by former Justice Department official Jack Goldsmith. EPIC requested these memos just four hours after the New York Times broke the story about the program in December 2005. When the agency failed to release the documents, EPIC filed a lawsuit. The ACLU and the National Security Archive later joined the case. These two Office of Legal Counsel memos offer the fullest justification of the warrantless wiretapping program available to date, arguing that the president has inherent constitutional power to monitor American's communications without a warrant in a time of war. But some parts of the legal analysis, including possibly contrary authority, are still being withheld. The warrantless wiretapping program was part of "Stellar Wind," a broad program of email interception, phone record collection, and data collection undertaken by the NSA without the approval of Congress. For more information see EPIC: EPIC v. DOJ: Warrantless Wiretapping Program. (Sep. 8, 2014)
- Documents Obtained by EPIC Lawsuit Show NSA’s Internet Metadata Program Was Sharply Criticized By FISA Judges While Congressional Oversight Lagged for Years: In a FOIA lawsuit against the Department of Justice, EPIC has obtained many documents about the NSA's Internet Metadata program. These include the Government's original FISA application seeking authorization to collect data from millions of e-mails, as well as declarations from NSA officials describing the program. The documents show that FISA Court Judge John Bates chastised the agency for "long-standing and pervasive violations of the prior [court] orders in this matter.'' The FISA Court first authorized the program in 2004, but the documents obtained by EPIC show that the legal justification was not provided to Congress until 2009. The documents also reveal that the DOJ withheld information about the program in testimony for the Senate Intelligence hearing prior to the reauthorization of the legal authority. The program was shut down in 2011 after a detailed review. For more information, see EPIC v. DOJ (FISA Pen Register) and EPIC: Foreign Intelligence Surveillance Court. (Aug. 12, 2014)
- Federal Appeals Court Releases "Drone Killing" Memo, EPIC Filed Amicus: The Court of Appeals for the Second Circuit today made public the legal analysis justifying the Administration's controversial "targeted killing" drone program. The action follows an earlier ruling by the federal appeals court in New York Times v. Department of Justice. The government had argued that this memo could not be disclosed under the Freedom of Information Act because it was a privileged "deliberative" document. But the plaintiffs explained that the government relied on the analysis to defend the program and that it operated as secret law. EPIC filed an amicus brief, supported by seven open government organization, arguing that under the FOIA such a legal opinion by the Justice Department cannot be a deliberative documents. The federal appeals court agreed, and has now released the opinion to the public. Last week, in EPIC v. NSA the Department of Justice released to EPIC NSPD-54, the President Directive concerning cybersecurity. For more information, see EPIC: New York Times v. DOJ and EPIC v. DOJ - Warrantless Wiretapping Program. (Jun. 23, 2014)
- Appeals Court Orders Release of Classified Legal Analysis, EPIC Filed Amicus Brief: A federal court of appeals has ruled that the Department of Justice must release the legal analysis justifying the controversial "targeted killing" drone program. The government argued in New York Times v. Department of Justice that the analysis should be exempt from release as a privileged communication. But the ACLU and the New York Times, supported by EPIC and other open government organizations, argued that because the government relied on the legal reasoning to justify the drone program it cannot be kept secret. The Second Circuit agreed, ruling that the after "senior Government officials have assured the public" that the program is "lawful and that . . . advice establishes the legal boundaries," it can no longer claim that the document is exempt from FOIA. EPIC has pursued a similar case for more than seven years, seeking the disclosure of the OLC's legal analysis of the Warrantless Wiretapping program. And earlier this year EPIC wrote in the New York Times that if "the Justice Department expects others to follow its advice, the analysis that supports its conclusions should be made public." For more information, see EPIC: New York Times v. DOJ and EPIC: EPIC v. DOJ - Warrantless Wiretapping Program. (Apr. 21, 2014)
- 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)
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.
EPIC et al. v. Department of Justice, Civ. Action No. 06-0096 (D.D.C. HHK)
- DOJ Motion to File Surreply to EPIC's Motion to Amend
- DOJ Surreply to EPIC's Motion to Amend
- EPIC's Reply in Support of Its Motion to Amend
- DOJ's Opposition to EPIC's Motion to Amend
- EPIC's Motion to Amend the Court's Judgment
- Order, March 31, 2014 (pdf)
- Memorandum Opinion, Granting DOJ Motion for Summary Judgment Following In Camera Review, March 31, 2014 (pdf)
- Joint Status Report, February 24, 2014 (pdf)
- EPIC's Reply in Support of Motion for in camera Review (pdf)
- Order Granting In Part, Denying In Part, and Holding In Abeyance In Part the Justice Department's Motion For Summary Judgment (pdf)
- EPIC's Complaint Against the Department of Justice (pdf)
- EPIC's Motion for Preliminary Injunction (pdf)
- Justice Department's Opposition (pdf)
- EPIC's Reply (pdf)
- ACLU and National Security Archive Complaint Against the Department of Justice (pdf)
- Motion to Consolidate by the ACLU and National Security (pdf)
- Order Granting Motion to Consolidate (pdf)
- Judge Kennedy's Order Granting EPIC's Motion for Preliminary Injunction (pdf)
- Justice Department's Answer (pdf)
- Justice Department's Motion for a Partial Stay of the Court's Order of February 16, 2006 (pdf)
- Justice Department's Expedited Motion for Relief From the Court's Order of February 16, 2006 (pdf)
- Plaintiffs' Opposition to Motion for Relief From the Court's Order of February 16, 2006 (pdf)
- Justice Department's Reply in Support of Motion for Relief From the Court's Order of February 16, 2006 (pdf)
- Order Granting in Part and Denying in Part Defendant's Motion for Relief From the Court's Order of February 16, 2006 (pdf)
EPIC v. Nation Security Agency, Civ. Action No. 06-0199 (D.D.C. RWR)
- Memorandum from Jack L. Goldsmith, III, Assistant Attorney General, to the Attorney General RE: Review of the Legality of the STELLAR WIND Program (May 6, 2004)
- Memorandum from Jack L. Goldsmith, III, Assistant Attorney General, to the Attorney General RE: STELLAR WIND - Implications of Hamdi v. Rumsfeld
- NSA Director's Messages to Work Force (pdf), December 16 & 22, 2005
- Documents released by Justice Department Office of Legal Counsel, part 1 (pdf)
- Documents released by Justice Department Office of Legal Counsel, part 2 (pdf)
- Documents released by Justice Department Office of Information and Privacy, part 1 (pdf)
- Documents released by Justice Department Office of Information and Privacy, part 2 (pdf)
- 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)
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