EPIC v. DOJ - Warrantless Wiretapping Program
- D.C. Circuit Reverses District Court Ruling on Unsealing Electronic Surveillance Records: Last week, the D.C. Circuit reversed a lower court decision and ruled that electronic surveillance records in closed federal investigations are subject to public access. Investigative journalist Jason Leopold and the Reporters Committee for Freedom of the Press litigated for years to unseal electronic surveillance records that allow law enforcement to collect different types of electronic information for surveillance, including metadata about a telephone subscriber's activity or cell site location information. The lower court incorrectly determined that administrative burden to providing public access to these seal records was enough to justify the interminable sealing of these records. But the D.C. Circuit reversed the lower court's decision stating "although administrative burden is relevant to how and when documents are released, it does not justify precluding release forever...Production may be time-consuming, but time-consuming is not the same thing as impossible." The D.C. Circuit noted that providing public access to judicial records like the electronic surveillance records at issue "is a fundamental element of the rule of law" and "is the duty and responsibility of the Judicial Branch." EPIC is currently litigating a case against the Department of Justice seeking the public release of information about the agency's collection of cell site location information through "§ 2703(d) orders" and warrants. The case is EPIC v. DOJ, No. 18-1814 (D.D.C.) (Jul. 13, 2020)
- EPIC Obtains DOJ Report on Predictive Policing and AI - “Individual liberty is at stake":
EPIC, through a FOIA request, lawsuit, and negotiated settlement, has obtained a 2014 report from the Department of Justice to former President Obama warning about the dangers of predictive analytics and algorithms in law enforcement. The Justice Department report highlights the risks of "making decisions about sentencing—where individual liberty is at stake in the most fundamental way—based on historical data about other people,” stating that “equal justice demands that sentencing determinations be based primarily on the defendant’s own conduct and criminal history." Even when algorithms "seem neutral, any model is susceptible to importing any biases reflected in the underlying data,” the report Predictive Analytics in Law Enforcement explains. Former U.S. Attorney General Eric Holder has said that "basing sentencing decisions on static factors and immutable characteristics . . . may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society." The case, which was before the D.C. Circuit Court of Appeals, has now settled and EPIC will receive attorneys fees for its work on the matter. The case is EPIC v. DOJ, No. 18-5307 (D.C. Cir.).
- EPIC Pursues Release of Location Tracking Orders: EPIC has moved for summary judgment in EPIC v. DOJ, concerning law enforcement's collection of cell site location data through "§ 2703(d) orders." In Carpenter v. United States, the Supreme Court ruled that these searches were unconstitutional. EPIC filed multiple Freedom of Information Act requests to obtain the government orders issued between 2016 and 2019. However, the DOJ claimed that it "does not track" the information EPIC sought and refused to search for records. EPIC explained to the Court that the DOJ has not satisfied its obligations under the FOIA. EPIC also charged that the agency has engaged in "an unlawful pattern and practice" of refusing to search files even when it could do so. EPIC stated that "This unlawful agency practice impacts EPIC and all other requesters who would seek disclosure of records" at the Department of Justice. The case is EPIC v. DOJ, No, 18-1814 (D.D.C.). (Dec. 17, 2019)
- Senate Report Confirms Russia Interfered in 2016 Election: The Russian government “sought to influence the 2016 U.S. presidential election” as part of a “broader, sophisticated, and ongoing information warfare campaign designed to sow discord in American politics and society,” according to a report from the Senate Intelligence Committee. The bipartisan report confirms earlier findings by the U.S. Intelligence Community, Special Counsel Robert Mueller, and the Intelligence Committee itself. In EPIC v. Department of Justice, EPIC is seeking the disclosure of the complete and unredacted Mueller Report, which would provide further information about Russian election interference. A ruling is expected in the case this month. The book EPIC v. DOJ: The Mueller Report is available for purchase at the EPIC Bookstore. (Oct. 8, 2019)
- EPIC Obtains New Documents in Mueller Case: EPIC has obtained new documents concerning Robert Mueller's investigation into Russian interference in the 2016 election. The records were released in EPIC v. Department of Justice, EPIC's case for the release of the Mueller Report and related documents. The documents consist of previously undisclosed emails between Mueller's office and the Justice Department concerning the Special Counsel's budget. EPIC recently argued in court for the release of the complete and unredacted Mueller Report. A ruling in the case is expected this fall. The book "EPIC v. DOJ: The Mueller Report" is available for purchase at the EPIC Bookstore. (Sep. 19, 2019)
- EPIC Challenges Justice Department's Refusal to Search for Location Tracking Orders: EPIC has filed an amended complaint against the Justice Department, charging that the agency engages in a "pattern and practice" of violating the Freedom of Information Act. Earlier EPIC filed a FOIA lawsuit to compel the DOJ to disclose records about locational surveillance that the Supreme Court ruled was unconstitutional in Carpenter v. United States. EPIC first filed requests in 2017 to obtain copies of government applications to ISPs that require the disclosure of customers communications. After EPIC filed suit in August 2018, the DOJ refused to search for the records and claimed that it "does not track" the surveillance orders. EPIC now alleges that the DOJ has engaged in a pattern and practice that violates the FOIA. Federal agencies are required by law to search for records that are "reasonably described." EPIC wrote "agency's unlawful policy, pattern, and practice of refusing to conduct a search in response to reasonably described FOIA requests such as EPIC's will continue absent intervention by this Court." The case is EPIC v. DOJ, No. 18-1814 (D.D.C.). (Aug. 26, 2019)
- Just Security Publishes Expert Summaries of Mueller Report: Just Security has published a new collection of expert summaries of the Mueller Report. The collection includes two entries by Professor Jennifer Daskal, Chair of the EPIC Board, on Russian hacking operations and Special Counsel's charging decisions under the Foreign Agent Registration Act. In EPIC v. DOJ, EPIC is seeking the complete, unredacted Mueller Report. EPIC recently argued for the full release of the Report before Judge Reggie B. Walton. A ruling in the case is expected this fall. Copies of the Mueller Report obtained by EPIC, related materials, and background on the case are available for purchase at the EPIC Bookstore. (Aug. 20, 2019)
- Court to Hear Arguments in EPIC Case for Release of Complete Mueller Report : EPIC will argue in federal court on Monday for the release of the complete and unredacted Mueller Report. The hearing in EPIC v. Department of Justice is set for 10 a.m. before Judge Reggie B. Walton. In briefs recently filed with the court, EPIC warned that "the nation's ability to fully assess the Report is hindered by the decision of the Justice Department to withhold critical information from the American public." Judge Walton has said that EPIC's case should move "as expeditiously as humanly possible" and ordered the parties to brief the case on an accelerated schedule. Copies of the Mueller Report obtained by EPIC, related materials, and background on the case are available for purchase at the EPIC Bookstore. (Aug. 2, 2019)
- EPIC Files Closing Arguments for Release of Complete Mueller Report: EPIC has filed its closing brief in EPIC v. Department of Justice, EPIC's case for the release of the complete and unredacted Mueller Report. EPIC warned the Court that “details about ongoing vulnerabilities in the US election system remain hidden from public view. The roles of well-known public officials and public figures in an effort by a foreign government to change the outcome of a US Presidential election are still kept behind a shroud of secrecy.” Judge Reggie B. Walton previously said EPIC's case should move "as expeditiously as humanly possible" and ordered the parties to brief the case on an accelerated schedule. A hearing on EPIC's motion is set for August 5. The case is EPIC v. Department of Justice, No. 19-810 (D.D.C.). Copies of the Mueller report obtained by EPIC, related materials, and background on the case are available for purchase at the EPIC Bookstore. EPIC will host a panel discussion on the Mueller Report at Busboys and Poets in Washington, D.C. on Tuesday, July 23. (Jul. 19, 2019)
- CREW Backs EPIC in Case for Release of Full Mueller Report: Citizens for Responsibility and Ethics in Washington has filed an amicus brief in support of EPIC's case for the release of the full Mueller Report. CREW argued that the Justice Department cannot withhold parts of the Report as "deliberative" because the Report explains the Special Counsel's final decisions. "Especially in the context of an investigation into interference with our electoral process by a foreign power and potential links to the sitting President's political campaign, the public interest in disclosure is at an apex once the investigation is complete and the prosecutorial decisions have been made," CREW argued. EPIC recently moved for summary judgment to obtain the full Mueller Report. The case is EPIC v. Department of Justice, No. 19-810 (D.D.C.). Copies of the Mueller Report obtained by EPIC, related materials, and background on the case are available for purchase at the EPIC Bookstore. (Jul. 1, 2019)
- 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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