Title: Plaintiff's Opposition To Defendants' Supplemental Brief

Document Date: 2014-05-12

Text: Case 1:12-cv-00127-BJR Document 36 Filed 05/12/14 Page 1 of 11

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)

)

)

)

)

)

) No: 12-cv-00127 (BJR)

)

)

)

)

)

)

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ SUPPLEMENTAL BRIEF

On March 11, 2014, this Court issued a Minute Order directing defendants to “update its
position regarding Plaintiff’s FOIA request, particularly with respect to the government's
invocation of exemption 7(A).” Dkt. Defendants filed a Supplemental Brief on April 25, 2014.
Dkt. 33. Defendants also filed Sealed Motion For Leave To File Document Under Seal. Dkt. 34.

Plaintiff Electronic Privacy Information Center (“EPIC”) hereby opposes Defendants’
Supplemental Brief.

PROCEDURAL BACKGROUND

This lawsuit arises from three Freedom of Information Act requests in which EPIC asked
Defendants for information about the government’s surveillance of individuals who had
demonstrated interest in WikiLeaks, an Internet-based media organization. Compl., Dkt. 1, ^
30-32. On November 1, 2012, the day the government’s Vaughn index was due, EPIC received
three documents summarizing the categories of information withheld by the three government
agencies. Pl. Opp. to Mot. Leave, Dkt. 13, FBI Vaughn, Ex. 1; NSD Vaughn, Ex. 2; CRM
Vaughn, Ex. 3. Although the government characterized these summaries as “Vaughn indices,”

ELECTRONIC PRIVACY
INFORMATION CENTER,

Plaintiff,

v.

US. DEPARTMENT OF JUSTICE
CRIMINAL DIVISION, et al.,

Defendants.

1

Case 1:12-cv-00127-BJR Document 36 Filed 05/12/14 Page 2 of 11

these documents failed to meet the well-established threshold for a sufficient Vaughn filing.
Instead, the government submitted categorical Vaughn indices that did not justify the
withholding on a document-by-document basis but listed generic categories of documents. Id.

Before moving for summary judgment on January 31, 2013, the government moved for
leave to file three declarations ex parte and in camera in connection with its Motion for
Summary Judgment. Defs.’ Mot. Leave, Dkt. 10; Defs.’ Mot. Summ. J., Dkt. 12. Although
public versions of each declaration were also filed, the government explained that the secret
declarations were necessary to properly evaluate its arguments under Exemption 7(A), which is
the primary basis for its withholding. Defs.’ Mot. Summ. J., Dkt. 12, at 8. The government also
stated that the ex parte, in camera filings were necessary to support its withholdings under
Exemptions 3, 6, 7(C), and 7(D). Id. at 4. In its Motion for Summary Judgment, the government
also admitted that “[e]ach component has withheld information pursuant to Exemption 3, but
cannot publicly identify the statute(s) that require(s) nondisclosure or provide further information
about the withheld information.” Id. at 21.

On February 18, 2013, EPIC filed its Opposition to Defendants’ Motion for Leave to File
Ex Parte and In Camera Exhibits. Pl. Opp. to Mot. Leave, Dkt. 13. On March 4, EPIC moved for
the court to review the underlying FOIA documents in camera. Pl.’s Mot. for In Cam. Rev., Dkt.
17. EPIC highlighted the D.C. Circuit’s ruling that where the government’s affidavits “merely
state in conclusory terms that documents are exempt from disclosure, an in camera review is
necessary.” Id.; Quinon v. FBI, 86 F.3d 1222, 1229 (D.C. Cir. 1996). The Parties completed
briefing their Motions for Summary Judgment on April 24, 2013.

Following this court’s Minute Order dated March 11, 2014, the government filed a
Supplemental Memorandum and a Sealed Motion to File a Document Under Seal (“Motion for

2

Case 1:12-cv-00127-BJR Document 36 Filed 05/12/14 Page 3 of 11

Leave”). Defs.’ Supp. Memo., Dkt. 33; Defs.’ Sealed Mot. to File Doc. Under Seal, Dkt. 34. This
Opposition responds to the government’s Supplemental Brief.

ARGUMENT

As EPIC argued in its earlier Cross Motion for Summary Judgment, many of the
documents at issue are not law enforcement records. Instead, they are records detailing
government surveillance of individuals engaged in legitimate First Amendment activities. To the
extent that EPIC’s request encompasses law enforcement records, events have transpired over
the past year that have reduced the force of the government’s claims to withhold these
documents under exemption 7(A) and 7(E). The trial of Chelsea Manning has concluded. Details
of the government’s surveillance of Wikileaks supporters, the focus of EPIC’s request, have been
reported and new documents have been released. Together, these developments diminish the
government’s claims that release of records would interfere with law enforcement proceedings.

I. Many of the Documents EPIC is Seeking are Not Law Enforcement Records

Contrary to the government’s assertion, many of the documents that are responsive to
EPIC’s FOIA Request are simply not law enforcement records and should be fully released. A
fair reading of EPIC’s FOIA request makes clear that many documents fall outside the
exemptions claimed and relate to the surveillance of individuals who are engaging in First
Amendment protected activities.

No legitimate law enforcement purpose can exist to justify withholding records of the
plainly lawful conduct of Wikileaks supporters. Pratt v. Webster, 673 F.2d 408, 420 (D.C. Cir
1982) (finding that the government must be acting in the “function of law enforcement, rather
than merely engaging in a general monitoring of private individuals' activities.”) Indeed, where
government interference with First Amendment rights is most likely illegal, release of records

3

Case 1:12-cv-00127-BJR Document 36 Filed 05/12/14 Page 4 of 11

would best serve both the public and the FOIA itself. NARA v. Favish, 541 U.S. 157, 171-72, 124

S. Ct. 1570, 1580, 158 L. Ed. 2d 319 (2004) (describing the FOIA as “defin[ing] a structural
necessity in a real democracy”). Here, records of the surveillance of individuals interested in
WikiLeaks serve no legitimate law enforcement purpose. They are not connected to the
“unauthorized disclosure of classified information” that the government cites as the purpose of
its investigation. Defs.’ Mot. Summ. J., Dkt. 12, at 9. There is no “criminal conduct,” id. at 9, no
“security risk or violation of federal law,” Campbell, 164 F.3d at 32-33, and no “law violators,”

S. Rep. No. 89-813, at 9, to prosecute. Furthermore, the government has not shown that
disclosure of records about these individuals could reasonably be expected to interfere with
enforcement proceedings. In the absence of a showing of an articulable harm, Exemption 7(A)
does not apply.

II. If Any Responsive Documents are Law Enforcement Records, the Government Still

has not Met its Burden to Justify Withholdings

Even if some subset of the documents sought are law enforcement records, the
government has not met its burden to justify its withholdings. Exemption 7(A) authorizes the
withholding of “records or information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records or information ... could reasonably be
expected to interfere with enforcement proceedings.” Boyd v. CriminalDiv. of U.S. Dep't of
Justice, 475 F.3d 381, 385-86 (D.C. Cir. 2007) citing 5 U.S.C. § 552(b)(7)(A). The government
can meet its burden by demonstrating that release of the requested information would reveal “the
size, scope and direction of [the] investigation” and thereby “allow for the destruction or
alteration of relevant evidence, and the fabrication of fraudulent alibis.” Alyeska Pipeline Serv.
Co. v. U.S. Envtl. Prot. Agency, 856 F.2d 309, 312 (D.C.Cir.1988). The government has not met

4

Case 1:12-cv-00127-BJR Document 36 Filed 05/12/14 Page 5 of 11

that burden here. The government’s brief motion gives EPIC no clear indication of specifically
which documents are being withheld or why they are being withheld.

III. Substantial Events Have Transpired Since the Original Briefing, Which Warrant
Consideration by the Court

Since the original briefing was completed in April 2013, government documents have
been released that have revealed new details about law enforcement data collection, surveillance
methods, and the investigations of Wikileaks supporters and Pfc. Manning.
a. Developments Related to Wikileaks and Wikileaks Supporters
In Defendant’s Supplemental Brief, the DOJ separates its law enforcement proceedings
into two categories: the prosecution of Pfc. Manning and the broader investigation into the
unauthorized disclosure of documents via the Wikileaks website. Defs.’ Supp. Memo. at 6.

Since the court martial proceedings of Pfc. Manning have concluded, the agency should
not be permitted to withhold related documents under 7(A). On July 20, 2013, Pfc. Chelsea
(formerly Bradley) Manning was convicted of several charges related to the Wikileaks
disclosures and on August 21, 2013, she was sentenced to thirty-five years in prison. On April 14,
2014, her sentence was upheld by Army Major General Jeffrey S. Buchanan.1 Though Pfc.
Manning’s case has been appealed further, new facts cannot usually be introduced at the
appellate level. Jones v. Horne, 634 F.3d 588, 603 (D.C. Cir. 2011) (’’Issues and legal theories
presented for the first time on appeal ordinarily will not be heard on appeal”) (citations omitted).
The conclusion of Pfc. Manning’s trial should therefore complete the DOJ’s investigation. In fact,
the DOJ concedes that, at this point, “[t]here may be less risk that disclosure of defendants’
records could jeopardize DoD’s court-martial of Manning.” Defs.’ Supp. Memo. at 9.

1 Victoria Cavaliere, Army General Upholds Manning’s Prison Sentence in Wikileaks Case, Reuters, Apr. 14, 2014,
http://www.reuters.com/article/2014/04/14/us-usa-wikileaks-manning-idUSBREA3D1L720140414

5

Case 1:12-cv-00127-BJR Document 36 Filed 05/12/14 Page 6 of 11

Regarding the broader “investigation into unauthorized disclosure of classified
information that was published on the Wikileaks website,” this description is exactly the kind of
“vague” proceeding that the D.C. Circuit has found fails to justify withholding under Exemption
7(A). In Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Justice, 12-5223,
2014 WL 1284811 (D.C. Cir. Apr. 1, 2014) the D.C. Circuit Court considered the withholding of
documents related to the prosecution of three specific individuals, as well as “all related criminal
investigations.” The court held that because the prosecutions of the individuals had been
completed, the documents regarding investigations of those specific individuals could no longer
be withheld under Exemption 7(A). Id. The court also held that the use of 7(A) to withhold
records related to “all related criminal investigations” was improper because of the “vague nature
of the DOJ's mention of ongoing investigations, especially when coupled with its reliance on
other specifically enumerated proceedings... [and] the passage of time: It has been over 30
months since the DOJ filed its Declaration and many more since the events underlying the
investigation took place.” Id. The same arguments apply here. The DOJ has relied on a similarly
vague, open-ended description of an investigation, which it claims proceeds even after the sole
responsible party, Pfc. Manning, has already been prosecuted and convicted. This kind of vague,
expansive investigation cannot support a withholding under Exemption 7(A). Id. (“In the typical
case, however, the requested records relate to a specific individual or entity that is the subject of
the ongoing investigation, making the likelihood of interference readily apparent”). A substantial
amount of time has also passed since the “events underlying the investigation took place.” Id.

The first document disclosed by Pfc. Manning was published by Wikileaks in February 2010,
more than four years ago.2 Pfc. Manning was convicted nearly a year ago, on July 20, 2013.

2 Greg Mitchell, One Year Ago: The Unmaking of Bradley Manning, The Nation, May 18, 2011,
http://www.thenation.com/blog/160754/one-year-ago-unmaking-bradley-manning

6

Case 1:12-cv-00127-BJR Document 36 Filed 05/12/14 Page 7 of 11

Clearly the passage of time and the conclusion of the criminal trial should weigh against the
application of an exemption intended to shield records related to an actual law enforcement
investigation

The public release of several documents responsive to EPIC’s FOIA request should also
weigh against the application of Exemption 7(A). In EPIC’s Cross Motion for Summary
Judgment, Dkt. No. 16, EPIC described several documents regarding the government’s
investigations and techniques that had been released as of February 2013. Since that time, several
additional documents concerning the investigation of two Wikileaks supporters had been legally
unsealed.3 Smari McCarthy and Herbert Snorrason, two Icelandic freedom of information
activists who supported Wikileaks, were informed of the federal District Court order after the
suppression order was lifted on May 2.4 The subpoenas, which are publicly available, applied to
“certain records and information” relevant to McCarthy and Snorrason’s Gmail addresses,
including physical addresses, other e-mail addresses, telephone connection records, “session
times and durations,” “length of service,” and IP addresses. 5

The government’s failure to renew the suppression order of individuals who expressed
support for Wikileaks substantially undermines its insistence that the records sought by EPIC are
exempt under 7(A). Further, where a FOIA request is made by a third party seeking information
to which the target of the investigation already has access, the government is required to make a
more particularized showing of harm or interference with law enforcement proceedings.
Campbell v. Dep’t of Health & Human Servs., 682 F.2d 256, 265 (D.C. Cir 1982), see also
Goldschmidt v. Dep’t of Agric., 557 F. Supp 274 (D.D.C. 1983) (holding that documents sought

3 Sam Knight, Court Documents Reveal Extent of Federal Investigation Into Wikileaks, The Nation, June 21, 2013,
http://www.thenation.com/article/174933/court-documents-reveal-extent-federal-investigation-wikileaks

4 Id.

5 Id.

7

Case 1:12-cv-00127-BJR Document 36 Filed 05/12/14 Page 8 of 11

were already in the possession of the targets of the investigation and the agency failed to
demonstrate that the disclosure would interfere with law enforcement proceedings). The
government has made no such showing here. DOJ instead relies on a conclusory statement of
harm - that disclosure of documents in this case would “adversely affect the government’s
continuing investigation.” Defs.’ Supp. Memo. at 9.

b. Revelations Regarding Previously Secret Law Enforcement Collection Methods
Since the completion of briefing in this case last year, there have been substantial new
revelations about law enforcement surveillance and data collection methods. These revelations
undercut the agency’s attempts to withhold documents in response to plaintiff’s FOIA request.

The NSA’s specific surveillance of Wikileaks and its supporters has been widely reported
since the earlier briefing in this matter.6 Documents released by federal officials and news
reports have detailed the extraordinary investigative techniques deployed by the National
Security Agency. Among other methods, these documents revealed that the NSA’s bulk
collection of telephone metadata;7 the NSA PRISM program, which allows the agency to
demand that Internet companies, including Google, Facebook, Skype, and Microsoft, turn over
for government analysis all data that matches court-approved search terms;8 a secret rule that

6 One leaked document contains a summary of an internal discussion in which officials from two NSA offices -
including the agency’s general counsel and an arm of its Threat Operations Center - considered designating
WikiLeaks as a “‘malicious foreign actor’ for the purpose of targeting.” Such a designation would allow the group to
be targeted with extensive electronic surveillance - without the need to exclude U.S. persons from surveillance
searches. Another document revealed that American spying partner, UK’s Government Communications
Headquarters, was able to “secretly monitor visitors to a WikiLeaks site,” and “collect the IP addresses of visitors in
real time, as well as the search terms that visitors used to reach the site from search engines like Google.”Julian
Hattem, Spies Targeted Wikileaks, The Hill, Feb. 18, 2014, available at
http://thehill.com/policy/technology/198562-spies-targeted-wikileaks.

7 Office of the Director of National Intelligence, Section 215 of the Foreign Intelligence Surveillance Act (“DNI
Factsheet”), http:// icontherecord.tumblr.com/topics/section-215James Ball, NSA stores metadata of millions of web
users for up to a year, secret files show, The Guardian, Sep. 30, 2013, available at
http://www.theguardian.com/world/2013/sep/30/nsa-americans-metadata-year-documents.

8 Glenn Greenwald, NSA Prism program taps in to user data of Apple, Google and others, The Guardian, Jun. 6,
2013, available at http://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data. See also Office of the
Director of National Intelligence, Keynote Address by General Keith Alexander, Director, National Security Agency,

8

Case 1:12-cv-00127-BJR Document 36 Filed 05/12/14 Page 9 of 11

allowed the NSA to conduct warrantless searches of internet and telephone data and use the data
to track individual Americans' communications using a person’s name or other identifying
information;9 three Foreign Intelligence Surveillance Court documents outlining the NSA's
procedures for minimizing its collection of domestic communications;10 the existence of
XKeyscore, an NSA program that allows analysts to search with no prior authorization through
vast databases containing emails, online chats and the browsing histories of millions of
individuals;11 and, the NSA’s creation of “social graphs” to deduce Americans’ real-world social
connections.12

These recent developments also substantially undercut the government’s reliance on law
enforcement exemptions, particularly Exemption 7(E). Exemption 7(E) protects law enforcement
records if their production “would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law enforcement investigations
or prosecutions if such disclosure would reasonably be expected to risk circumvention of the
law.” 5 U.S.C. § 552(b)(7)(E).

Black Hat USA 2013, http://icontherecord.tumblr.com/post/58054574770/keynote-address-by-general-keith-
alexander.

9 See Office of the Director of National Intelligence, DNI Announces the Release of Additional Documents Related
to Collection Activities Authorized by President George W. Bush Shortly After the Attacks of Sept. 11,
http://icontherecord.tumblr.com/tagged/section-702 (last accessed May 12, 2014). See also James Ball and Spencer
Ackerman, NSA loophole allows warrantless search for US citizens’ emails and phone calls, The Guardian, Aug. 9,
2013, available at http://www.theguardian.com/world/2013/aug/09/nsa-loophole-warrantless-searches-email-calls.

10 Office of the Director of National Intelligence, DNI Clapper Declassifies and Releases Telephone Metadata
Collection Documents, http://icontherecord.tumblr.com/post/57514665466/dni-clapper-declassifies-and-releases-
telephone. See also Glenn Greenwald, NSA collected US email records in bulk for more than two years under
Obama, The Guardian, Jun. 27 2013, available at http://www.theguardian.com/world/2013/jun/27/nsa-data-mining-
authorised-obama (revealing that the NSA stores domestic communications if they contain: foreign intelligence
information; evidence of a crime; threats of serious harm to life or property; or any other information that could aid
the agency's electronic surveillance, which includes encrypted communications).

11 Glenn Greenwald, XKeyscore: NSA tool collects 'nearly everything a user does on the internet', The Guardian, Jul.
31, 2013, available at http://www.theguardian.com/world/2013/jul/31/nsa-top-secret-program-online-data. Office of
the Director of National Intelligence, NSA Press Statement on 30 July 2013,
http://icontherecord.tumblr.com/search/xkeyscore (last accessed May 12, 2014).

12 James Risen and Laura Poitras, N.S.A. Gathers Data on Social Connections of U.S. Citizens, N.Y. Times, Sep. 28,
2013, available at http://www.nytimes.com/2013/09/29/us/nsa-examines-social-networks-of-us-
citizens.html.http://www.nytimes.com/2013/09/29/us/nsa-examines-social-networks-of-us-citizens.html

9

Case 1:12-cv-00127-BJR Document 36 Filed 05/12/14 Page 10 of 11

As EPIC argued in its Cross Motion for Summary Judgment, FOIA disclosure of
techniques that have already been made public cannot aid potential criminals. See Rosenfeld v.
Dep’t of Justice, 57 F.3d 803, 815 (9th Cir. 1995) (finding that Exemption 7(E) “only exempts
investigative techniques not generally known to the public”); Albuquerque Publ’g Co. v. Dep’t of
Justice, 726 F. Supp. 851, 857 (D.D.C. 1989) (ordering release of records “pertaining to
techniques that are commonly described or depicted in movies, popular novels, stories or
magazines, or on television,” including “eavesdropping, wiretapping, and surreptitious tape
recording and photographing”). Thus, any records regarding investigations of specific supporters
whose content has already been revealed, and any documents regarding publicly known
surveillance practices, must be disclosed to EPIC.

IV. Plaintiff’s Position Regarding All Other Exemptions and In Camera Revoew
Has Not Changed

Plaintiff continues to assert all arguments regarding other exemptions - including
Exemptions 1, 3, 5, 6, 7(C), and 7(F), that are contained in Plaintiff’s 2013 Cross Motion for
Summary Judgment. Plaintiff also renews its request for in camera review.

CONCLUSION

For the reasons stated above, and in Plaintiff’s earlier briefing on Summary Judgment,
the Court should grant Plaintiff’s Cross Motion for Summary Judgment and should enter final
judgment in favor of Plaintiff.

Respectfully submitted,

By:

Marc Rotenberg (DC Bar # 422825)

_____/s/_________________________

Ginger P. McCall (DC Bar # 1001104)

Julia Horwitz (DC Bar # 1018561)

ELECTRONIC PRIVACY
INFORMATION CENTER

10

Case 1:12-cv-00127-BJR Document 36 Filed 05/12/14 Page 11 of 11
Dated: May 12, 2014 1718 Connecticut Avenue, N.W., Suite 200 Washington, D.C. 20009 (202) 483-1140 (telephone)

11

e-Highlighter

Click to send permalink to address bar, or right-click to copy permalink.

Un-highlight all Un-highlight selectionu Highlight selectionh