EPIC v. DOJ - Pen Register Reports

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Background

Pen registers and trap and trace ("PR/TT") devices collect metadata from calls coming in to and going out of specific phone lines, respectively. There are two federal statutes governing the application for and the execution of such recording devices, the Electronic Communications Privacy Act ("ECPA") and the Foreign Intelligence Surveillance Act ("FISA"). Under the FISA, pen registers and trap and trace devices can be used "for any investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities."

On June 27, 2013, the Guardian reported that the NSA had received authorization to collect bulk email and Internet metadata using the Pen Register and Trap and Trace provisions of the FISA on July 14, 2004. According to the Guardian, the surveillance program was authorized by Judge Kollar-Kotelly of the Foreign Intelligence Surveillance Court ("FISC"). On November 18, 2013, less than five months after the Guardian's report, the Office of the Director of National Intelligence ("ODNI") released an undated and previously unpublished FISC opinion signed by Judge Kollar-Kotelly. Judge Kollar-Kotelly found that the Pen Register/Trap and Trace povisions allowed the National Security Agency ("NSA") to collect certain redacted categories of bulk Internet and e-mail metadata. Judge Kollar Kotelly found that the government's proposal "satisfie[d] each of the elements of the applicable statutory definition of a 'pen register' or a 'trap and trace.'"

The program allegedly continued until 2011, when it was discontinued for "operational and resource reasons." Senators Ron Wyden and Mark Udall explained:

We are quite familiar with the bulk email records collection program that operated under the USA Patriot Act and has now been confirmed by senior intelligence officials. We were very concerned about this program's impact on Americans' civil liberties and privacy rights, and we spent a significant portion of 2011 pressing intelligence officials to provide evidence of its effectiveness. They were unable to do so, and the program was shut down that year.

There is no evidence that the program has been re-instituted since its cessation in 2011.

The Attorney General is required to make a semiannual report to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate that would include a summary of all uses of pen registers and trap and trace devices obtained under the FISA. The report should include the number of applications granted and the number of applications modified under the FISA, as well as the total number of installations approved and denied under emergency circumstances. These reports have never been made available to the public

EPIC's Freedom of Information Act Request and Subsequent Lawsuit

On October 3, 2013, EPIC submitted a FOIA request to the National Security Division of the Department of Justice asking for:

  • All reports made to the Permanent Select Committee on Intelligence in the House of Representatives and the Select Committee on Intelligence in the Senate, detailing the total number of orders for pen registers or trap and trace devices granted or denied, and detailing the total number of pen registers or trap and trace devices installed pursuant to 50 U.S.C. § 1843;
  • All information provided to the aforementioned committees concerning all uses of pen registers and trap and trace devices;
  • All records used in preparation of the above materials, including statistical data.

The DOJ granted EPIC's request for expedited processing but had not processed EPIC's FOIA Request within more than 40 days after it had been received by the Agency. After the DOJ failed to produce any responsive documents, EPIC filed a suit and a motion for a preliminary injunction on December 6, 2013 in the U.S. District Court for the District of Columbia.

The court denied EPIC's motion for an injunction on February 11, 2014, but ordered the government to proceed with production of records responsive to EPIC's request. The DOJ began producing responsive records in March 2014, and continued to release documents on a rolling basis through August 2014. Following the DOJ's production, the parties both filed motions for summary judgment in Fall 2014. During the course of the briefing, the DOJ conceded that the agency had improperly withheld certain portions of the records during the initial release, including aggregate statistical information about FISA applications filed by the agency in the FISC. EPIC also challenged the agency's assertion of FOIA Exemptions 1 and 7.

The court responded to the summary judgment motions in December 2015 by scheduling a hearing. Following the hearing, the court issued a Memorandum Opinion and Order on February 4, 2016, denying the DOJ's motion and EPIC's motion without prejudice, and ordering the government to submit a revised Vaughn Index and supporting declarations by March 11, 2016. Specifically, the court found that the DOJ had not produced sufficient evidence to support the withholding of certain challenged material in the Attorney General Semiannual FISA Pen Register Reports ("SARs")—-portions of the SARs that "consist of summaries of FISC legal opinions, descriptions of the scope of the FISC's jurisdiction, and discussions of FISA process improvements—-as well as four Westlaw case printouts attached to Document 68.

EPIC and the DOJ have now filed renewed motions concerning the remaining challenged withholdings, and the agency has informed the court that the Director of National Intelligence is in the process of declassifying additional material that could be relevant to the records in this case.

Freedom of Information Act Documents

As a result of EPIC's request and lawsuit, the Department of Justice has released hundreds of pages of materials related to the governments FISA applications and FISC proceedings. These materials include Semiannual Reports from the Attorney General concerning FISA authorities and related documents filed by the DOJ in the FISC. More recently, the DOJ has released reprocessed versions of five of the disputed SARs--reports issued between December 2005 and June 2008—-that include a significant amount of new material. These new pages are displayed below with changes highlighted.

One of the key issues raised in EPIC's lawsuit is the inconsistent and self-contradictory nature of the DOJ's withholdings under Exemption 1 (which covers "classified" information). Many parts of the pages produced by the agency in November 2014 were redacted by the DOJ and marked as classified, but those same sections were later released in March 2016 without explanation. The DOJ has even gone so far as to redact paragraphs in the March 2016 release and mark them as classified, even though the agency already released those same paragraphs in November 2014. See the example below for a direct comparison.

Slide to compare:

FOIA request 1

Attorney General Semiannual FISA Pen Register Reports

Semiannual Reports of the Attorney General to Congress Regarding Electronic Surveillance

Foreign Intelligence Surveillance Court Documents

EPIC's Request

Legal Documents

EPIC v. Department of Justice, Case No. 13-01961 (D.D.C. filed December 9, 2013)

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