EPIC v. DOJ - Pen Register Reports

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  • Surveillance Court Ignores Court Ruling, Reauthorizes NSA Bulk Collection Program: The Foreign Intelligence Surveillance Court has reauthorized the collection of domestic telephone records for 180 days. The Surveillance Court ignored the recent decision of the Federal Court of Appeals, which held that the NSA bulk collection program is unlawful. In 2012, EPIC testified before the House Judiciary Committee on the need to reform the Surveillance Court. In 2013, EPIC filed a petition in the Supreme Court, In re EPIC, arguing that the NSA program was unlawful. In 2014, EPIC and a broad coalition urged the President to end the NSA surveillance program. Congress then passed the Freedom Act to end program, but the FISC didn't get the memo. (Jul. 1, 2015)
  • House Passes Surveillance Reform Bill, Deadline Looms for Senate: The House of Representatives has passed the USA Freedom Act of 2015. The bill would end the NSA's controversial domestic telephone record collection program--a program the Second Circuit Court of Appeals recently ruled was unlawful. The Freedom Act would also establish new transparency requirements for the Foreign Intelligence Court, recommended by EPIC in testimony before the House Judiciary Committee in 2012. EPIC also opposed renewal of the NSA's Section 215 orders and petitioned the Supreme Court to suspend the program. The Senate is expected to take up the bill before the June 1 expiration of Section 215 of the Patriot Act. (May. 14, 2015)
  • Federal Appeals Court Strikes Down NSA Bulk Record Collection Program: The Second Circuit Court of Appeals ruled today that the NSA's telephone record collection program exceeds legal authority. The government claimed that it could collect all records under the Section 215 "relevance" standard. But the court rejected that argument and held that "such an expansive concept of 'relevance' is unprecedented and unwarranted." The conclusion mirrors the argument EPIC, and a coalition of technical expert, legal scholars, and former members of the Church Committee made in Petition to the Supreme Court in 2013. EPIC explained in its petition, "It is simply not possible that every phone record in the possession of a telecommunications firm could be relevant to an authorized investigation." The Second Circuit found that Section 215 does not "authorize anything approaching the breadth of the sweeping surveillance at issue here." (May. 7, 2015)
  • Schneier: Over 700 Million People Taking Steps to Avoid NSA Surveillance: Famed technologist and EPIC Advisory Board member Bruce Schneier pushed back against media claims that Edward Snowden's revelations about the NSA have had little impact on Internet users. A recent global survey found that 39% of Internet users who have heard of Snowden have taken steps to protect their online privacy. Some news articles have characterized these users as "merely 39%" and "only 39%." But Schneier did the math and found that Snowden’s impact has been far from insignificant: "706 million people have changed their behavior on the Internet because of what the NSA and GCHQ are doing." A recent Pew survey also indicates that the NSA revelations have had a dramatic impact on Internet users. Last year, EPIC filed a petition to the U.S. Supreme Court to stop the NSA's collection of domestic telephone records, following the release of the "Verizon Order." For more information, see EPIC: In re EPIC, EPIC: Smith v. Obama, and EPIC: Foreign Intelligence Surveillance Act Reform. (Dec. 17, 2014)
  • British Court Upholds Mass Surveillance by UK Spy Agency: The Investigatory Powers Tribunal, which reviews complaints of unlawful surveillance by Britain's intelligence agencies, ruled that mass collection of online communications is legal. The complaint was brought by several privacy rights groups in the UK and focused on GCHQ's electronic surveillance program, TEMPORA, and information the UK spy agency obtained through NSA's PRISM and Upstream programs. The privacy rights groups plan to appeal the decision to the European Court of Human Rights. EPIC previously challenged the NSA's mass surveillance of U.S. phone records in a 2013 petition to the Supreme Court. EPIC's petition argued that the Foreign Intelligence Surveillance Court exceeded its authority when it ordered Verizon to turn over records on all of its customers to the NSA. The EPIC petition was supported by legal scholars and former members of the Church Committee. For more information, see In re EPIC and EPIC: Foreign Intelligence Surveillance Act Reform. (Dec. 8, 2014)
  • Senator Leahy Calls on the President to End Bulk Collection of Phone Records: Today Senator Patrick Leahy (D-VT) urged President Obama to end the dragnet collection of U.S. telephone records under Section 215 of the Patriot Act. The current authorization for the NSA's bulk collection program expires on Friday, December 5, 2014. Senator Leahy's comments follow the recent efforts to pass the USA FREEDOM Act of 2014, which would end the NSA's surveillance program. Senator Leahy said that ending the reauthorization of the program "would not be a substitute for comprehensive surveillance reform legislation - but it would be an important first step." In June EPIC, joined by many organizations, urged the President and Attorney General to end the bulk collection program. And in 2013 EPIC petitioned the Supreme Court, arguing that a special surveillance court exceeded its authority when it ordered Verizon to turn over records on all of its customers to the NSA. For more information, see In re EPIC and EPIC: Foreign Intelligence Surveillance Act Reform. (Dec. 4, 2014)
  • 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)
  • Senate Republicans Block US Surveillance Reform: An effort led by Senator Patrick Leahy (D-VT) to pass the USA FREEDOM Act failed on a narrow procedural vote last night. The FREEDOM Act would have ended the NSA's bulk collection of US telephone records. The bill would also improve oversight and accountability of the Foreign Intelligence Surveillance Act. Last year, EPIC petitioned the Supreme Court to suspend the bulk collection of Americans' telephone records. EPIC's petition was supported by dozens of legal scholars and former members of the Church Committee. EPIC also testified in Congress in support of improved reporting for domestic surveillance activities. For more information, see EPIC: Foreign Intelligence Surveillance Act Reform and In re EPIC. (Nov. 19, 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)
  • Senator Leahy Introduces Bill to End NSA Bulk Record Collection: Today Senator Patrick Leahy (D-VT), joined by Democratic and Republican Senators, introduced legislation to end the NSA's practice of collecting telephone records of Americans. Leahy described the bill as "the most significant reform of government surveillance authorities since Congress passed the USA PATRIOT Act 13 years ago." The USA Freedom Act would require require the government to specify specific "search terms" to obtain telephone record information. The government would have to demonstrate that it has a "reasonable, articulable suspicion" that the search term is associated with a foreign terrorist organization. The bill also requires a comprehensive transparency report for the use of FISA surveillance authorities. However, the bill exempts the FBI from certain reporting requirements. Civil liberties organizations support the bill. EPIC previously filed a Petition for Mandamus with the U.S. Supreme Court, seeking to end the bulk collection of American's phone records. EPIC's petition was supported by legal scholars, technical experts, and former members of the Church Committee. For more information, see In re EPIC and EPIC: FISA Reform. (Jul. 29, 2014)

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.

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. DOJ failed to provide any documents, and EPIC filed a complaint and a motion for a preliminary injunction on December 6, 2013.

Freedom of Information Act Documents

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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