Filed Date: Dec. 14, 2020
Case Ongoing
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On December 14, 2020, the Project for Privacy and Surveillance Accountability, a nonpartisan nonprofit that advocates for privacy from government surveillance, filed this lawsuit in the United States District Court for the District of Columbia. The plaintiff sued the United States Department of Justice, the Office of the Director of National Intelligence, the National Security Agency, the Central Intelligence Agency, and the State Department, under the Freedom of Information Act (FOIA). Represented by private counsel, the plaintiffs sought an order requiring the defendants to conduct searches and produce any and all records responsive to Plaintiff’s FOIA requests, enjoin the defendants from continuing to withhold the records, and grant an award of attorneys’ fees and other litigation costs to the plaintiff. The plaintiff claimed that defendants were obligated to gather and review the requested records, communicate to the plaintiff why they were going to withhold any records, and inform the plaintiff of the appeals process, but the defendants “did not perform any of the required activities by the applicable statutory deadlines.” Instead, they issued Glomar responses, meaning they declined to either confirm or deny whether they had the records the plaintiff wanted because saying whether the records existed would be harmful.
The plaintiff had asked all of the departments and agencies that it sued for records related to surveillance conducted pursuant to the Foreign Intelligence Surveillance Act (FISA). Section 702 of the FISA Amendments Act of 2008, 50 U.S.C. § 1881a, permits the Attorney General and the Director of National Intelligence to conduct foreign intelligence surveillance targeting the communications of non-U.S. persons located abroad. The government need not establish probable cause that the target of electronic surveillance is a foreign power or agent of a foreign power, nor must the government specify the nature and location of the facilities or places that surveillance will occur. Communications of U.S. citizens and residents are frequently collected “incidentally” if those U.S. persons are communicating with or about a targeted foreigner.
Here, the plaintiff asked these agencies about “unmasking”—i.e., when the names of people being surveilled are revealed in intelligence summaries—and “upstreaming”—i.e., when existing intelligence data is searched based on a person’s name. Based on media reports, the plaintiff claimed that members of Congress who sit on intelligence committees frequently have their names revealed in surveillance intelligence summaries, and argued that the prevalence of this “unmasking” might be the result of members of the intelligence community targeting the congresspeople who oversee their agencies. The plaintiff also pointed to evidence that members of the public may have improperly had their names “upstreamed,” which could violate the Fourth Amendment.
The case was assigned to Chief Judge Beryl A. Howell.
On September 1, 2021, the defendants filed a motion for summary judgment. Subsequently, the plaintiff filed a cross-motion for summary judgment on November 10, 2021.
On September 19, 2022, the court granted defendants’ motion for summary judgment and denied the plaintiffs’ motion. The court held that the defendants properly relied on exemptions for their Glomar responses to the FOIA request. First, the requested records were exempt from FOIA because an agency “may refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified.” The court found that providing the requested documents would be harmful because it would indicate whether the relevant members of Congress had been surveilled and identified in intelligence reports, which would reveal information about the operations of the intelligence community. Second, the requested records were exempt because the National Security Act of 1947 prevents information about “intelligence sources and methods” from being disclosed through FOIA. Third, the requested records were exempt because they are related to law enforcement activities and could contain information about law enforcement procedure or about private individuals. The court further held that the defendants did not have to even look for the requested records, because doing so would be pointless if they were not going to provide them. 2022 WL 4365745.
On November 18, 2022, the plaintiff appealed the judgment to the U.S. Court of Appeals for the D.C. Circuit. The case number is 22-5303.
On October 23, 2023, the plaintiff filed its brief in the D.C. Circuit, arguing that the district court erred in allowing the defendants to “to rely on conclusory affidavits to justify shirking their statutory duty to search for responsive records.” The plaintiff also requested that the D.C. Circuit initially hear the case en banc so that the full circuit could overturn its own precedent. A few weeks later, on November 9, the D.C. Circuit denied the petition for initial hearing en banc. 2023 WL 7413945.
As of November 25, 2023, the appeal is pending.
Summary Authors
Venesa Haska (11/25/2023)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/18741266/parties/project-for-privacy-and-surveillance-accountability-inc-v-united-states/
Howell, Beryl Alaine (District of Columbia)
Field, Brian J. (District of Columbia)
Schaerr, Gene C. (District of Columbia)
Simon, Jeremy S. (District of Columbia)
See docket on RECAP: https://www.courtlistener.com/docket/18741266/project-for-privacy-and-surveillance-accountability-inc-v-united-states/
Last updated Jan. 30, 2025, 12:59 p.m.
State / Territory: District of Columbia
Case Type(s):
Special Collection(s):
Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act—Foreign Targeting (702, 703, 704)
Key Dates
Filing Date: Dec. 14, 2020
Case Ongoing: Yes
Plaintiffs
Plaintiff Description:
Project for Privacy and Surveillance Accountability, a nonpartisan nonprofit that advocates for privacy from government surveillance.
Plaintiff Type(s):
Non-profit NON-religious organization
Public Interest Lawyer: No
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Defendants
Office of the Director of National Intelligence (- United States (national) -), Federal
National Security Agency (- United States (national) -), Federal
Central Intelligence Agency (- United States (national) -), Federal
U. S. Department of State (- United States (national) -), Federal
U.S. Department of Justice (- United States (national) -), Federal
Defendant Type(s):
Case Details
Causes of Action:
FOIA (Freedom of Information Act), 5 U.S.C. § 552
Constitutional Clause(s):
Unreasonable search and seizure
Available Documents:
Outcome
Prevailing Party: Defendant
Nature of Relief:
Source of Relief:
Issues