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Competitive Enterprise Institute v. National Security Agency

United States District Court, D. Columbia.

January 13, 2015

COMPETITIVE ENTERPRISE INSTITUTE, et al., Plaintiffs,
v.
NATIONAL SECURITY AGENCY, Defendant

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For COMPETITIVE ENTERPRISE INSTITUTE, ENERGY AND ENVIRONMENT LEGAL INSTITUTE, FREE MARKET ENVIRONMENTAL LAW CLINIC, Plaintiffs: Hans Frank Bader, COMPETITIVE ENTERPRISE INSTITUTE, Washington, DC.

For UNITED STATES NATIONAL SECURITY AGENCY, Defendant: Jacqueline E. Coleman Snead, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.

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MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge.

Over the past several years, Plaintiffs Competitive Enterprise Institute, Energy & Environmental Legal Institute, and Free Market Environmental Law Clinic have filed numerous Freedom of Information Act requests with the Environmental Protection Agency, seeking to obtain information about EPA officials' phone calls, e-mails, and text messages. Apparently dissatisfied with this more traditional approach, Plaintiffs now attempt a novel and inventive gambit to obtain these records -- they demand them from the National Security Agency. After all, doesn't the NSA have everyone's phone, e-mail, and text-message records?

Relying on information leaked in June 2013 about an NSA program that collects vast troves of " metadata" about Americans' phone communications, Plaintiffs submitted FOIA requests to the NSA for records relating to two EPA officials' Verizon Wireless accounts. The NSA, however, issued a so-called " Glomar response" -- i.e., refusing to confirm or deny that it has responsive records -- because it believes that disclosing whether it has records (or not) could compromise national-security efforts. The agency now moves for summary judgment on the ground that it has no further obligations to Plaintiffs under FOIA.

Plaintiffs do not contest that a Glomar response is generally appropriate in an NSA case like this. Instead, their principal argument is that the NSA has waived its right to issue such a response by its previous official acknowledgment that it has the records they seek. Plaintiffs, however, fail to point this Court to anything concrete showing that the NSA has actually admitted this fact. The Court, consequently, will grant the agency's Motion for Summary Judgment.

I. Background

A. FOIA Requests to the EPA

Plaintiffs are non-profit organizations " dedicated to advancing responsible regulation," particularly " economically sustainable environmental policy." Compl., ¶ ¶ 12-14. In pursuit of their missions, each operates a " transparency initiative" that seeks to obtain " public records" about energy and environmental policy. Id. Plaintiffs have, accordingly, filed numerous FOIA requests with the EPA. Among other things, they have sought phone, e-mail, and text-message records for high-ranking EPA officials, including Lisa P. Jackson and Gina McCarthy, the former and current Administrator at the EPA. See, e.g., Compl. in Competitive Enterprise Institute v. EPA, No. 13-779 (D.D.C. dismissed Sept. 13, 2013). They believe that EPA officials have hidden their work by using unofficial methods of communications. See Competitive Enterprise Institute v. EPA, 12 F.Supp.3d 100, 106 (D.D.C. 2014) (CEI I).

In response to some requests, Plaintiffs have received voluminous records for Jackson and McCarthy's communications. See, e.g., id. (noting EPA had produced over 10,000 records in response to request for emails from Jackson's secondary e-mail accounts); Competitive Enterprise Institute v. EPA, No. 13-1532, 67 F.Supp.3d 23, 2014 WL 4359191, at *4 (D.D.C. Sept. 4, 2014) (CEI II) (noting CEI had received a document containing metadata for 5,392 text messages McCarthy sent or received on an EPA-issued device). The EPA's responses to other requests, however,

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have been less to Plaintiffs' liking. For instance, after CEI requested Jackson and McCarthy's text messages, the EPA allegedly informed the organization that it did not have any responsive records and that it may not even have a duty to preserve text messages. See Compl., ¶ ¶ 3-5 in CEI II, 2014 WL 4359191. CEI is currently challenging the EPA's compliance with federal record-keeping laws in another court in this jurisdiction. See id., ¶ 1.

As a result of Plaintiffs' and others' efforts, the EPA has come under significant fire in recent years for its record-keeping practices and transparency. See, e.g., Senate Environment and Public Works Comm., Minority Report, A Call for Sunshine: EPA's FOIA and Federal Records Failures Uncovered (Sept. 9, 2013), available at http://goo.gl/KmtqJT. It has, for instance, been accused of " haphazard[ly]" maintaining federal records and withholding information that could embarrass the agency. Id. at 1. Likely out of concern that the EPA has not responded to their requests adequately and in good faith, Plaintiffs have now trained their sights on a different target.

B. NSA's Metadata Program[1]

Since at least May 2006, the NSA has obtained bulk " telephony metadata" from U.S. telecommunications service providers to use in counterterrorism investigations. See Declaration of Teresa H. Shea, Director of Signals Intelligence, NSA, ¶ 13 in Klayman v. Obama, No. 13-851 (D.D.C. 2013), ECF No. 25-4 (Shea Klayman Decl.); see also In re Application of the Fed. Bureau of Investigation for an Order Requiring the Production of Tangible Things from [Redacted], No. B.R. 06-05, at 2 (F.I.S.C. May 24, 2006). According to the NSA, the " metadata" includes general information about phone calls, such as the numbers of incoming and outgoing calls and the times calls are placed, but it does not include anything about the calls' contents or the parties' identities. See Shea Klayman Decl., ¶ 7. The agency has obtained this data -- at least since 2006 -- pursuant to orders of the Foreign Intelligence Surveillance Court. Id., ¶ 13. That court concluded that the bulk collection of U.S. persons' metadata is permitted under the " business records" provision in Section 215 of the USA Patriot Act. Id., ¶ 14. The FISC orders thus only require companies to turn over whatever metadata they already create and maintain in the regular course of business. Id., ¶ 18.

Once the data is turned over to the government, there are strict limitations on its use. For instance, NSA analysts cannot simply browse the database, but must use " identifiers," such as telephone numbers, to run targeted queries. See id., ¶ ¶ 17, 19. The FISC orders, furthermore, delineate very narrow circumstances under which the NSA can disseminate information derived from this data outside of the agency. See, e.g., Shea Klayman Decl., ¶ 28; Opp., Declaration of Hans Bader, Exh. 2 (Primary Order, In re Application of the [FBI] for an Order Requiring the Production of Tangible Things from [Redacted], No. B.R. 13-80 (F.I.S.C. Apr. 25, 2013)) (FISC Primary Order, April 25, 2013).

While the Section 215 metadata-collection program dates back to 2006, it was concealed from the public for years. Then, in early June 2013, Edward Snowden, a former government contractor,

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leaked an April 25, 2013, FISC Order requiring Verizon Business Network Services to provide the NSA with " telephony metadata" for the following 90 days. See Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon Customers Daily, The Guardian, June 5, 2013, available at www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-court-order; Bader Decl., Exh. 1 (Secondary Order, In re Application of the [FBI] for an Order Requiring the Production of Tangible Things from Verizon Business Network Services, Inc. on Behalf of MCI Communication Services, Inc. d/b/a Verizon Business Services, No. B.R. 13-80 (F.I.S.C. Apr. 25, 2013)) (FISC Secondary Order, April 25, 2013); see also Klayman, 957 F.Supp.2d at 14. In the weeks and months that followed, the government declassified redacted versions of Section 215 FISC orders and some documents about the program. See, e.g., Shawn Turner, DNI Clapper Declassifies and Releases Telephone Metadata Collection Documents (July 31, 2014), available at www.dni.gov/index.php/newsroom/press-releases/191-press-releases-2013/908-dni-clapper-declassifies-and-releases-telephone-metadata-collection-documents.

The leaks and subsequent government disclosures have set off a series of legal challenges. Several courts have already been called upon to address the legality of the NSA's collecting and analyzing U.S. citizens' metadata in bulk. See, e.g., Am. Civil Liberties Union v. Clapper, 959 F.Supp.2d 724 (S.D.N.Y. 2013); Klayman, 957 F.Supp.2d 1; Smith v. Obama, 24 F.Supp.3d 1005, 2014 WL 2506421 (D. Idaho 2014). This case, however, presents an entirely different question -- that is, whether FOIA requires the NSA to disclose the existence (or nonexistence) of metadata records for specific individuals or accounts.

C. The Present Litigation

This case stems from two FOIA requests that Plaintiffs submitted to the NSA following the Snowden leaks. The first, submitted by E& E Legal -- known at the time as the American Tradition Institute -- and Free Market on August 16, 2013, requested:

[C]opies of all metadata (duration and time of the communication, sender and recipient, etc.) from Verizon voice and/or data accounts in NSA's possession for the phone/PDA/text/instant message and/or email account(s) held by Lisa P. Jackson. To properly identify the individual at issue in this matter, one such email account associated with Ms. Jackson's Verizon account and which was used to conduct public business is LisaPJackson@Verizon.net.

Mot., Declaration of David J. Sherman, Exh. E (FOIA Request, Aug. 16, 2013) at 2. The second, submitted by CEI on December 16, 2013, sought:

[C]opies of 1) all text message data, and 2) particularly all metadata (date, duration and time of the communication, sender and recipient, etc.) of text messaging activity using Verizon voice and/or data accounts in NSA's possession for the phone/PDA/text/instant message account(s) associated with the number (202) 596-0247, a number assigned by Verizon to the U.S. Environmental Protection Agency (note: for most or all of the relevant period this account was held in the name of " F. Rusincovith/Eon 8344" but provided over the time period relevant ...

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