EPIC v. DOJ - Warrantless Wiretapping Program

Top News

  • EPIC Case for Release of Unredacted Mueller Report Moves Forward: A federal court today ordered the government to explain by June 3 its refusal to release substantial portions of the Mueller Report to EPIC. During a hearing on EPIC v. Department of Justice, Judge Reggie Walton reiterated the need for EPIC's open government case to move quickly and ordered the parties to file briefs over the summer. The court also ordered the government to produce related documents to EPIC about the Special Counsel investigation into Russian interference in the 2016 election. The Department of Justice will disclose a version of the Mueller Report to EPIC by May 6, which will contain additional information about the government's redactions. Hearings are scheduled in EPIC's case for the release of the Mueller Report on July 2 and August 5. EPIC's case for the release of the Mueller Report—the first in the nation—is EPIC v. Department of Justice, No. 19-810 (D.D.C.) (May. 2, 2019)
  • In Court Filing on Mueller Report, EPIC Raises Questions About Redactions, Release of Report: In a court filing today, EPIC raised key questions about the version of the Mueller Report released by the Attorney General, and also about the Justice Department's inconsistent statements regarding the release. EPIC noted the extensive redactions in the report—material is withheld on approximately 178 pages of the 448-page report. EPIC explained that the Attorney General claimed "harm to ongoing matter" as the primary reason for withholding information, but that phrase is nowhere to be found in the Freedom of Information Act. EPIC also highlighted the Attorney General's statement that he gave the Report to the White House Counsel and the President's personal lawyers in advance of the press conference, even though the Justice Department previously told the Court in EPIC v. DOJ that it was not possible to disclose the report to EPIC before today. EPIC's case for the release of the Mueller Report—the first in the nation—is EPIC v. Department of Justice, No. 19-810 (D.D.C.). (Apr. 18, 2019)
  • Mueller Report: Russian Hacking of 2016 Election Much Greater Than Previously Known, Critical Information Still Withheld: An extensively redacted version of the Mueller Report released today reveals that Russian interference in the 2016 presidential election was much greater than previously known. The Special Counsel's investigation found that the "Russian government interfered in the 2016 presidential election in sweeping and systematic fashion." The Report details Russia's hacking of US political organizations and a large-scale social media disinformation campaign. The Report also reveals that Russia breached the computers of election officials in Florida. The Report confirms that members of the Trump family and the Trump presidential campaign enthusiastically retweeted Russian propaganda. But much in the report is still secret. The Attorney General has withheld information on more than 170 pages of the 448 page report. EPIC is currently suing for the public release of the complete Mueller Report in EPIC v. Department of Justice, No. 19-810 (D.D.C.). A hearing is scheduled in federal district court on May 2. (Apr. 18, 2019)
  • After DOJ Concedes Expedited Processing, Court Sets May 2 Deadline for Review of Mueller Report Release: Judge Reggie B. Walton has set a May 2 hearing date to review the release of the Mueller Report and other records sought by EPIC in a Freedom of Information Act lawsuit against the Department of Justice. During an hour-long hearing Tuesday morning, Judge Walton emphasized that the contents of the Mueller Report are an "extremely important subject matter to the nation." Judge Walton said the Justice Department should disclose the records sought by EPIC "as expeditiously as humanly possible," though he declined to set a fixed date for release. Attorney General Barr has said he will release the report by "mid-April, if not sooner." EPIC filed the first lawsuit in the nation for the release of the Special Counsel's report on Russian interference in the 2016 election. As a result of EPIC's lawsuit, the Justice Department agreed to expedite EPIC's FOIA request. EPIC's case is EPIC v. DOJ, No. 19-810 (D.D.C.). #ReleaseTheReport (Apr. 9, 2019)
  • EPIC to Make Final Arguments for Release of Mueller Report: EPIC has filed a reply brief in its case for the the Mueller Report. EPIC explained that the public interest in the report is "overwhelming." EPIC wrote "there is no government document in recent memory that has generated more public interest." EPIC filed the first lawsuit in the nation for the release of the Special Counsel's report on Russian interference in the 2016 election. A court hearing in Washington, DC is scheduled for Tuesday morning at 9:00. EPIC's case is EPIC v. DOJ, No. 19-810 (D.D.C.). Press release. #ReleaseTheReport (Apr. 8, 2019)
  • Breaking: Justice Department Agrees to Expedite EPIC’s Request for Mueller Report: The Department of Justice has agreed to expedite EPIC’s Freedom of Information Act request for the Mueller Report. The DOJ’s concession comes after EPIC sought a preliminary injunction to compel the immediate release of the report. EPIC filed the first lawsuit in the nation for the release of the Mueller Report and related Special Counsel records. In EPIC’s motion for an injunction, EPIC explained that the public "remains in the dark as to the most consequential government investigation in recent history." The EPIC Democracy and Cybersecurity Project has pursued numerous FOIA cases concerning Russian interference with the 2016 election. In EPIC v. FBI (response to Russian cyberattacks), EPIC obtained the FBI victim notification procedures. In EPIC v. ODNI (Russian hacking), EPIC confirmed that Russia engaged in a “multi-pronged” attack against the U.S. elections. In EPIC v. IRS I, EPIC sought the release of President Trump’s tax returns. In EPIC v. IRS II, EPIC is seeking the release of related business returns. And in EPIC v. DHS (election cybersecurity), EPIC obtained documents about election security procedures. The case for the release of the Mueller Report is EPIC v. DOJ, No. 19-810 (D.D.C.). (Apr. 2, 2019)
  • EPIC Seeks Injunction for Expedited Release of Mueller Report: EPIC has filed a motion for a preliminary injunction to secure the expedited release of the Mueller Report and other records concerning Russian interference in the 2016 presidential election. EPIC filed suit against the Department of Justice last week after the agency failed to process EPIC’s Freedom of Information Act request. In the motion for an injunction, EPIC explained that "Few, if any, government documents in the recent history of the United States have commanded more attention than the Mueller Report,” yet the public "remains in the dark as to the most consequential government investigation in recent history." The EPIC Democracy and Cybersecurity Project has pursued multiple FOIA cases concerning Russian interference with the 2016 election, including EPIC v. FBI (response to Russian cyberattacks), EPIC v. ODNI (Russian hacking), EPIC v. IRS I (release of Trump's tax returns), EPIC v. IRS II (release of Trump business tax records), and EPIC v. DHS (election cybersecurity). The case for the release of the Mueller Report is EPIC v. DOJ, No. 19-810 (D.D.C.). (Mar. 29, 2019)
  • EPIC Files First Lawsuit for Special Counsel Report on Russian Election Interference: EPIC has filed a Freedom of Information Act lawsuit to obtain the final report by Special Counsel Robert Mueller concerning Russian interference in the 2016 U.S. presidential election. Attorney General William Barr notified Congress on Friday that the Special Counsel had delivered the final report. In November 2018, EPIC submitted a detailed Freedom of Information Act request to the Department of Justice seeking records about the investigation. The Special Counsel was authorized to conduct an investigation into Russian interference, including "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump." Special Counsel Mueller has since brought criminal charges against 34 individuals and three organizations. EPIC, through its Democracy and Cybersecurity Project, has pursued multiple FOIA cases concerning Russian interference with the 2016 election, including EPIC v. FBI (response to Russian cyberattacks), EPIC v. ODNI (Russian hacking), EPIC v. IRS I (release of Trump's tax returns), EPIC v. IRS II (release of Trump's offers-in-compromise), and EPIC v. DHS (election cybersecurity). The case for the release of the Mueller Report is EPIC v. DOJ, No. 19-810 (D.D.C.) [Exhibits]. (Mar. 22, 2019)
  • 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)
  • 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)

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