U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:16−cv−08936−RMB

CLOSED,ECF

American Civil Liberties Union et al v. National Security Agency et al Assigned to: Judge Richard M. Berman Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 11/17/2016 Date Terminated: 12/11/2017 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

American Civil Liberties Union

represented by Anna Natalia Diakun American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004−2400 (212)−549−2607 Fax: (212)−549−2654 Email: adiakun@aclu.org ATTORNEY TO BE NOTICED

Ashley Marie Gorski American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 284−7305 Email: agorski@aclu.org ATTORNEY TO BE NOTICED

Patrick Christopher Toomey American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 519−7816 Fax: (212) 549−2654 Email: ptoomey@aclu.org ATTORNEY TO BE NOTICED

Plaintiff
American Civil Liberties Union Foundation

represented by Anna Natalia Diakun (See above for address) ATTORNEY TO BE NOTICED

Ashley Marie Gorski (See above for address) ATTORNEY TO BE NOTICED

Patrick Christopher Toomey (See above for address) ATTORNEY TO BE NOTICED

V. Defendant National Security Agency

represented by

Defendant Office of the Director of National Intelligence
Defendant Department Of Justice
Defendant Central Intelligence Agency

David Stuart Jones U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 212−637−2200 Fax: 212−637−2686 Email: david.jones6@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tomoko Onozawa U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212) 637−2721 Fax: (212) 637− 2686 Email: tomoko.onozawa@usdoj.gov ATTORNEY TO BE NOTICED
represented by David Stuart Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tomoko Onozawa (See above for address) ATTORNEY TO BE NOTICED
represented by David Stuart Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tomoko Onozawa (See above for address) ATTORNEY TO BE NOTICED
represented by David Stuart Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tomoko Onozawa (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/17/2016
11/17/2016 11/17/2016

# Docket Text
1 COMPLAINT against Central Intelligence Agency, Department Of Justice, National Security Agency, Office of the Director of National Intelligence. (Filing Fee $ 400.00, Receipt Number 0208−12998133)Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Toomey, Patrick) (Entered: 11/17/2016)
2 CIVIL COVER SHEET filed. (Toomey, Patrick) (Entered: 11/17/2016)
3 FILING ERROR − DEFICIENT PLEADING − PARTY ERROR REQUEST FOR ISSUANCE OF SUMMONS as to United States Attorney for the Southern District of New York, re: 1 Complaint,. Document filed by American Civil Liberties Union,

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11/17/2016 11/18/2016 11/18/2016 11/18/2016 11/18/2016 11/18/2016
11/18/2016
11/18/2016 11/18/2016 11/23/2016
11/28/2016

American Civil Liberties Union Foundation. (Toomey, Patrick) Modified on 11/18/2016 (rch). (Entered: 11/17/2016)
4 REQUEST FOR ISSUANCE OF SUMMONS as to Office of the Director of National Intelligence, re: 1 Complaint,. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 11/17/2016)
5 REQUEST FOR ISSUANCE OF SUMMONS as to National Security Agency, re: 1 Complaint,. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 11/17/2016)
6 REQUEST FOR ISSUANCE OF SUMMONS as to Department of Justice, re: 1 Complaint,. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 11/17/2016)
7 REQUEST FOR ISSUANCE OF SUMMONS as to Central Intelligence Agency, re: 1 Complaint,. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 11/17/2016)
8 FILING ERROR − DEFICIENT PLEADING − PARTY ERROR REQUEST FOR ISSUANCE OF SUMMONS as to Attorney General Loretta Lynch, re: 1 Complaint,. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) Modified on 11/18/2016 (rch). (Entered: 11/17/2016)
9 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Toomey, Patrick) (Entered: 11/17/2016)
10 ELECTRONIC SUMMONS ISSUED as to Office of the Director of National Intelligence. (rch) (Entered: 11/18/2016)
11 ELECTRONIC SUMMONS ISSUED as to National Security Agency. (rch) (Entered: 11/18/2016)
12 ELECTRONIC SUMMONS ISSUED as to Department Of Justice. (rch) (Entered: 11/18/2016)
13 ELECTRONIC SUMMONS ISSUED as to Central Intelligence Agency. (rch) (Entered: 11/18/2016)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney to RE−FILE Document No. 3 Request for Issuance of Summons, 8 Request for Issuance of Summons. The filing is deficient for the following reason(s): defendant listed on summons is not a party on the complaint. Re−file the document using the event type Request for Issuance of Summons found under the event list Service of Process − select the correct filer/filers − and attach the correct summons form PDF. (rch) (Entered: 11/18/2016)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge Richard M. Berman. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (rch) (Entered: 11/18/2016)
Magistrate Judge Andrew J. Peck is so designated. (rch) (Entered: 11/18/2016)
Case Designated ECF. (rch) (Entered: 11/18/2016)
14 INITIAL PRETRIAL CONFERENCE ORDER: Initial Conference set for 12/8/2016 at 09:30 AM in Courtroom 17B, 500 Pearl Street, New York, NY 10007 before Judge Richard M. Berman. (As further set forth in this Order.) (Signed by Judge Richard M. Berman on 11/23/2016) (cf) (Entered: 11/23/2016)
15 LETTER addressed to Judge Richard M. Berman from Patrick Toomey dated November 28, 2016 re: Initial Pretrial Conference Order. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Toomey, Patrick)

11/29/2016 12/09/2016
12/15/2016 12/15/2016 12/15/2016 12/15/2016 12/15/2016 12/15/2016 12/19/2016 12/20/2016
12/21/2016 12/21/2016

(Entered: 11/28/2016)
16 MEMO ENDORSEMENT on re: 15 Letter filed by American Civil Liberties Union, American Civil Liberties Union Foundation. ENDORSEMENT: Motion granted; initial pretrial conference adjourned to Wed., 12/14/16 at 11 am. ( Initial Conference set for 12/14/2016 at 11:00 AM before Judge Richard M. Berman.) (Signed by Judge Richard M. Berman on 11/29/2016) (mro) (Entered: 11/30/2016)
17 ORDER: The conference currently scheduled for Wednesday, December 14, 2016, at 11:00 a.m. is hereby rescheduled to Wednesday, December 21, 2016, at 11:00 a.m. in Courtroom 17B of the Daniel Patrick Moynihan Courthouse at 500 Pearl Street, New York, New York 10007. Initial Conference set for 12/21/2016 at 11:00 AM in Courtroom 17B, 500 Pearl Street, New York, NY 10007 before Judge Richard M. Berman. (Signed by Judge Richard M. Berman on 12/9/2016) (cf) (Entered: 12/09/2016)
18 AFFIDAVIT OF SERVICE. Central Intelligence Agency served on 11/21/2016, answer due 1/20/2017. Service was made by Mail. Document filed by American Civil Liberties Union; American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 12/15/2016)
19 AFFIDAVIT OF SERVICE. Department Of Justice served on 11/21/2016, answer due 1/20/2017. Service was made by Mail. Document filed by American Civil Liberties Union; American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 12/15/2016)
20 AFFIDAVIT OF SERVICE. Office of the Director of National Intelligence served on 11/21/2016, answer due 1/20/2017. Service was made by Mail. Document filed by American Civil Liberties Union; American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 12/15/2016)
21 AFFIDAVIT OF SERVICE. National Security Agency served on 11/21/2016, answer due 1/20/2017. Service was made by Mail. Document filed by American Civil Liberties Union; American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 12/15/2016)
22 AFFIDAVIT OF SERVICE of Summons served on Loretta Lynch, Attorney General of the United States on 11/21/2016. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 12/15/2016)
23 AFFIDAVIT OF SERVICE of Summons served on United States Attorney for the Southern District of New York on 11/22/2016. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (Toomey, Patrick) (Entered: 12/15/2016)
24 NOTICE OF APPEARANCE by David Stuart Jones on behalf of Central Intelligence Agency, Department Of Justice, National Security Agency, Office of the Director of National Intelligence. (Jones, David) (Entered: 12/19/2016)
25 JOINT LETTER MOTION for Extension of Time to File Answer and providing background for conference set for December 21, 2016, at 11:00 a.m. addressed to Judge Richard M. Berman from David S. Jones and Patrick Toomey dated 12/20/2016. Document filed by Central Intelligence Agency, Department Of Justice, National Security Agency, Office of the Director of National Intelligence.(Jones, David) (Entered: 12/20/2016)
26 NOTICE OF APPEARANCE by Tomoko Onozawa on behalf of Central Intelligence Agency, Department Of Justice, National Security Agency, Office of the Director of National Intelligence. (Onozawa, Tomoko) (Entered: 12/21/2016)
27 CASE MANAGEMENT PLAN: Amend the pleadings by February 3, 2017. Consent to Proceed before Magistrate Judge: No. Status of settlement discussions: 1/11/17 @ 9:00 AM. Other: Jan. 11, 2017 for serious case management plan to amend this incomplete plan. (as further set forth in this Order.) Amended Pleadings due by 2/3/2017. Settlement Conference set for 1/11/2017 at 09:00 AM before Judge Richard M. Berman. (Signed by Judge Richard M. Berman on 12/21/2016) (cf) (Entered: 12/21/2016)

12/21/2016 12/23/2016 12/28/2016 01/09/2017 01/11/2017 01/11/2017
01/13/2017 01/24/2017 02/03/2017 02/08/2017
02/14/2017

Minute Entry for proceedings held before Judge Richard M. Berman: Initial Pretrial Conference held on 12/21/2016. Court directs counsel to submit a more definitive case management plan. Preliminary case management plan entered. Next conference is 1/11/17 at 9:00 am. See transcript of proceedings held for a complete record. (Court Reporter Andrew Walker) (CM) (Entered: 12/21/2016)
28 LETTER MOTION for Extension of Time to File Answer addressed to Judge Richard M. Berman from AUSA Tomoko Onozawa dated 12/23/2016. Document filed by Central Intelligence Agency, Department Of Justice, National Security Agency, Office of the Director of National Intelligence.(Onozawa, Tomoko) (Entered: 12/23/2016)
29 ORDER granting 28 Letter Motion for Extension of Time to Answer. Application granted. Central Intelligence Agency answer due 1/13/2017; Department Of Justice answer due 1/13/2017; National Security Agency answer due 1/13/2017; Office of the Director of National Intelligence answer due 1/13/2017 (Signed by Judge Richard M. Berman on 12/28/2016) (cf) (Entered: 12/28/2016)
30 NOTICE OF APPEARANCE by Ashley Marie Gorski on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation. (Gorski, Ashley) (Entered: 01/09/2017)
Minute Entry for proceedings held before Judge Richard M. Berman: Interim Pretrial Conference held on 1/11/2017. Court signs proposed stipulation and order with slight modifications. See transcript of proceedings held for a complete record. (Court Reporter Vincent Bologna) (CM) (Entered: 01/11/2017)
31 STIPULATION AND ORDER SETTING FORTH CASE MANAGEMENT PLAN AND RELATED AGREEMENTS: The parties believe there will be no joinder of additional parties. Amendments to the pleadings are due on or before February 3, 2017. Subject to adherence to Court's rules re: pre−motion letters + conference, if Plaintiffs intend to file a partial motion for summary judgment concerning the Priority Records, the parties shall confer and propose a briefing schedule to the Court on or before May 1, 2017. Oral Argument: Court's preference is for single SJ motion. (As further set forth in this Order.) As Amended, SO ORDERED. ( Amended Pleadings due by 2/3/2017., Motions due by 5/1/2017.) (Signed by Judge Richard M. Berman on 1/11/2017) (cf) (Entered: 01/11/2017)
32 ANSWER to 1 Complaint,. Document filed by Central Intelligence Agency, Department Of Justice, National Security Agency, Office of the Director of National Intelligence.(Onozawa, Tomoko) (Entered: 01/13/2017)
33 NOTICE OF APPEARANCE by Anna Natalia Diakun on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation. (Diakun, Anna) (Entered: 01/24/2017)
34 LETTER addressed to Judge Richard M. Berman from Anna Diakun dated February 3, 2017 re: Case Management Schedule. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Diakun, Anna) (Entered: 02/03/2017)
35 STIPULATION AND ORDER SETTING FORTH ADDITIONAL PROVISIONS REGARDING THE SCOPE OF REQUIRED SEARCHES AND DEADLINES FOR COMPLETION OF CERTAIN SEARCHES FOR AND PROCESSING OF RESPONSIVE RECORDS: IT IS HEREBY STIPULATED, AGREED, AND ORDERED THAT: The January 11 Order shall remain in force except to the extent modified herein. Defendants shall search for, process, and release non−exempt portions, if any, of documents referenced in the "Summary of Notable Section 702 Requirements" that is referenced in paragraph 8 and Exhibit A of the January 11 Order. (As further set forth in this Order.) Paragraph 11 of the January 11 Order is modified by extending to October 13, 2017, from September 22, 2017, the date by which the parties are to propose a briefing schedule to the Court in connection with any contemplated consolidated motion for summary judgment subject to adherence to Court's rules re: pre−motion letters and conference. (Signed by Judge Richard M. Berman on 2/8/2017) (cf) (Entered: 02/08/2017)
36 TRANSCRIPT of Proceedings re: CONFERENCE held on 1/11/2017 before Judge Richard M. Berman. Court Reporter/Transcriber: Vincent Bologna, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court

02/14/2017
02/14/2017
02/14/2017
04/06/2017 04/06/2017 06/01/2017 06/05/2017 10/13/2017 10/18/2017 11/21/2017 11/28/2017

Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/7/2017. Redacted Transcript Deadline set for 3/17/2017. Release of Transcript Restriction set for 5/15/2017.(McGuirk, Kelly) (Entered: 02/14/2017)
37 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 1/11/17 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 02/14/2017)
38 TRANSCRIPT of Proceedings re: CONFERENCE held on 12/21/2016 before Judge Richard M. Berman. Court Reporter/Transcriber: Andrew Walker, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/7/2017. Redacted Transcript Deadline set for 3/17/2017. Release of Transcript Restriction set for 5/15/2017.(McGuirk, Kelly) (Entered: 02/14/2017)
39 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERNECE proceeding held on 12/21/16 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 02/14/2017)
40 CONSENT LETTER MOTION for Extension of Time for release of two of thirteen categories of documents now required to be released by April 11, 2017, addressed to Judge Richard M. Berman from David S. Jones dated April 6, 2017. Document filed by Central Intelligence Agency, Department Of Justice, National Security Agency, Office of the Director of National Intelligence.(Jones, David) (Entered: 04/06/2017)
41 ORDER granting 40 Letter Motion for Extension of Time. Application Granted On Consent. (Signed by Judge Richard M. Berman on 4/6/2017) (cf) (Entered: 04/06/2017)
42 CONSENT LETTER MOTION for Extension of Time of one week for one of a series of court−ordered document releases addressed to Judge Richard M. Berman from David S. Jones dated June 1, 2017. Document filed by Central Intelligence Agency, Department Of Justice, National Security Agency, Office of the Director of National Intelligence.(Jones, David) (Entered: 06/01/2017)
43 ORDER granting 42 Letter Motion for Extension of Time. Final extension to 6/13/17 granted. (Signed by Judge Richard M. Berman on 6/5/2017) (cf) (Entered: 06/05/2017)
44 STATUS REPORT. Document filed by Central Intelligence Agency, Department Of Justice, National Security Agency, Office of the Director of National Intelligence.(Onozawa, Tomoko) (Entered: 10/13/2017)
45 MEMO ENDORSEMENT on re: 44 Status Report filed by Department Of Justice, Office of the Director of National Intelligence, Central Intelligence Agency, National Security Agency. ENDORSEMENT: Application granted. (Signed by Judge Richard M. Berman on 10/18/2017) (clt) (Entered: 10/18/2017)
46 STATUS REPORT. Joint Status Report re Fee Settlement Negotiations Document filed by Central Intelligence Agency, Department Of Justice, National Security Agency, Office of the Director of National Intelligence.(Onozawa, Tomoko) (Entered: 11/21/2017)
47 MEMO ENDORSEMENT on re: 46 Status Report filed by Department Of Justice, Office of the Director of National Intelligence, Central Intelligence Agency, National Security Agency. ENDORSEMENT: Application granted. (Signed by Judge Richard M. Berman on 11/28/2017) (clt) (Entered: 11/28/2017)

11/28/2017 12/04/2017 12/05/2017 12/08/2017 12/11/2017

***DELETED DOCUMENT. Deleted document number 48 Memo Endorsed. The document was incorrectly filed in this case. (js) Modified on 12/4/2017 (js). (Entered: 12/04/2017)
48 STATUS REPORT. Joint Status Report re Fee Settlement Negotiations Document filed by Central Intelligence Agency, Department Of Justice, National Security Agency, Office of the Director of National Intelligence.(Onozawa, Tomoko) (Entered: 12/04/2017)
49 MEMO ENDORSEMENT on re: 48 Status Report filed by Department Of Justice, Office of the Director of National Intelligence, Central Intelligence Agency, National Security Agency. ENDORSEMENT: Application granted. (Signed by Judge Richard M. Berman on 12/5/2017) (cf) (Entered: 12/05/2017)
50 STATUS REPORT. Joint Status Report re Fee Settlement Negotiations Document filed by Central Intelligence Agency, Department Of Justice, National Security Agency, Office of the Director of National Intelligence.(Onozawa, Tomoko) (Entered: 12/08/2017)
51 STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL. IT IS HEREBY STIPULATED AND AGREED, by and between the parties, as follows: Pursuant to 5 U.S.C. § 552(a) (4)(E), as soon as reasonably practicable after the Court has endorsed and docketed this Stipulation and Order, NSA shall pay to Plaintiffs the sum of $11,000, CIA shall pay to Plaintiffs the sum of $6500, NSD shall pay to Plaintiffs the sum of $6500, FBI shall pay to Plaintiffs the sum of $6500, and ODNI shall pay to Plaintiffs the sum of $4500 (collectively, the "Settlement Amounts"). This action is hereby dismissed with prejudice, provided that the Court may retain jurisdiction over any issues that may arise relating to this Stipulation and Order. Clerk to close the case. (Signed by Judge Richard M. Berman on 12/11/2017) (clt) (Entered: 12/12/2017)

 
 Case 1:16-cv-08936-RMB Document 1 Filed 11/17/16 Page 1 of 15

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

AMERICAN CIVIL LIBERTIES UNION and AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs,
v.
NATIONAL SECURITY AGENCY, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, DEPARTMENT OF JUSTICE, and CENTRAL INTELLIGENCE AGENCY,
Defendants.

COMPLAINT FOR INJUNCTIVE RELIEF
Case No._1_:_1_6_-c_v_-_8_9_3_6__ Hon.________________

November 17, 2016

Patrick Toomey Ashley Gorski Hina Shamsi American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 ptoomey@aclu.org

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COMPLAINT FOR INJUNCTIVE RELIEF INTRODUCTION
1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for injunctive and other appropriate relief. Plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation (together, the “ACLU”) seek the immediate processing and timely release of agency records from Defendants National Security Agency (“NSA”), Office of the Director of National Intelligence (“ODNI”), U.S. Department of Justice (“DOJ”), and Central Intelligence Agency (“CIA”).
2. On September 14, 2016, Plaintiffs submitted a FOIA request (the “Request”) to NSA, ODNI, DOJ, and CIA seeking records related to Section 702 of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1881a. The Request seeks information concerning the scope of the government’s warrantless surveillance programs operated under Section 702, as well as related records showing how this surveillance affects Americans.
3. To date, none of the Defendants has released any responsive record. 4. The failure of Defendants to identify and release responsive records is of particular concern because the Request relates to a sweeping surveillance authority that implicates core privacy and free speech rights of Americans. 5. The government relies on Section 702 to engage in the warrantless surveillance of Americans’ international communications. This authority is set to expire in 2017, and Congress has already begun holding hearings about whether it should be reauthorized. However, the public still lacks essential information about the breadth of surveillance under Section 702, the ways in which this surveillance is used, and its impact on American citizens and residents. Timely disclosure of these records is critical to the ongoing public debate about the lawfulness of
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Section 702. Without additional information, the public will be unable to engage in an informed debate concerning Section 702’s potential reauthorization.
6. Plaintiffs now ask the Court for an injunction requiring NSA, ODNI, DOJ, and CIA to process the Request immediately. Plaintiffs also seek an order enjoining Defendants from assessing fees for the processing of the Request.
JURISDICTION AND VENUE 7. The Court has subject-matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B), (a)(6)(E)(iii). The Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 701–706. 8. Venue lies in this district under 5 U.S.C. § 552(a)(4)(B).
PARTIES 9. Plaintiff American Civil Liberties Union is a nationwide non-profit and nonpartisan 501(c)(4) organization with more than 500,000 members dedicated to the constitutional principles of liberty and equality. The American Civil Liberties Union is committed to ensuring that the United States government complies with the Constitution and laws of this country, including its international legal obligations, in matters that affect civil liberties and human rights. The American Civil Liberties Union is also committed to principles of transparency and accountability in government, and seeks to ensure that the American public is informed about the conduct of its government in matters that affect civil liberties and human rights. Obtaining information about governmental activity, analyzing that information, and widely publishing and disseminating it to the press and the public is a critical and substantial component of the American Civil Liberties Union’s work and one of its primary activities. The American Civil
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Liberties Union is incorporated in New York State and has its principal place of business in New York City.
10. Plaintiff American Civil Liberties Union Foundation is a separate 501(c)(3) organization that educates the public about civil liberties and employs lawyers who provide legal representation free of charge in cases involving civil liberties. It is incorporated in New York State and has its principal place of business in New York City.
11. Defendant NSA is an intelligence agency established within the executive branch of the U.S. government and administered through the Department of Defense. The NSA is an agency within the meaning of 5 U.S.C. § 552(f)(1).
12. Defendant ODNI is a department of the executive branch of the U.S. government and is an agency within the meaning of 5 U.S.C. § 552(f)(1).
13. Defendant DOJ is a department of the executive branch of the U.S. government and is an agency within the meaning of 5 U.S.C. § 552(f)(1). The Federal Bureau of Investigation (“FBI”), the National Security Division (“NSD”), the Office of Information Policy (“OIP”), the Office of the Attorney General, the Office of the Deputy Attorney General, and the Office of the Inspector General (“OIG”), from which the ACLU has requested records, are components of DOJ.
14. Defendant CIA is an intelligence agency established within the executive branch of the U.S. government and is an agency within the meaning of 5 U.S.C. § 552(f)(1).
3

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FACTUAL BACKGROUND Section 702 of FISA
15. Congress enacted Section 702 as part of the FISA Amendments Act of 2008 (“FAA”), giving the government broad authority to monitor Americans’ international communications without a warrant. See 50 U.S.C. § 1881a.
16. While Section 702 surveillance is ostensibly “targeted” at foreigners located overseas, the government uses this authority to acquire the phone calls, emails, and other internet communications of Americans who are in contact with its foreign targets.
17. For example, the government may collect Americans’ communications when a U.S. person communicates with family members, friends, business associates, or other contacts abroad whom the government has targeted under Section 702. The government may also collect Americans’ communications when it mistakenly targets a U.S. person for surveillance.
18. The government implements Section 702 through at least two programs: the “PRISM” and “Upstream” programs.
19. Using PRISM surveillance, the government compels electronic communications providers—like Apple, Facebook, and Microsoft—to furnish communications sent to or from a target’s account, such as an email account used by a non-U.S. person located overseas.
20. Through Upstream surveillance, the government intercepts international telephone calls and internet communications as they are routed across major communications networks inside the United States. With respect to internet communications, the government compels providers—like AT&T and Verizon—to search the contents of international traffic in bulk for communications that are to, from, or about the NSA’s targets.
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21. Judicial review of Section 702 surveillance is narrowly circumscribed. Once a year, the government presents a set of certifications to the Foreign Intelligence Surveillance Court (“FISC”), describing at a high level of generality the surveillance the government intends to conduct. Those certifications do not identify the government’s individual targets, nor do they specify the various places and facilities at which its surveillance will be directed. See 50 U.S.C. §§ 1881a(a), 1881a(g).
22. Section 702 surveillance is not predicated on an individualized determination of probable cause or on any suspicion of wrongdoing. More broadly, the FISC does not approve, supervise, or review the government’s interception of individual Americans’ communications.
23. The statute’s safeguards are limited to the requirement that each agency adopt “targeting” and “minimization” procedures, which must be “reasonably designed . . . to minimize the acquisition and retention, and prohibit the dissemination” of U.S. person information. 50 U.S.C. § 1881a(e); id. § 1801(h)(1). These procedures, however, grant the government wide latitude to seize, search, analyze, and use the communications of Americans.
24. Surveillance under Section 702 is conducted on an immense scale: in 2015 alone, the government relied on Section 702 to obtain the communications of 94,368 targets under a single court order.
25. The public, however, still lacks basic information about the breadth of Section 702 surveillance and the policies and procedures that apply to this surveillance. The government has not disclosed, for example, the number of communications involving Americans that are subject to Section 702 surveillance. Nor has the government disclosed many of the rules that set the bounds of this surveillance today, including its current targeting procedures, its current
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minimization procedures, and its complete sets of rules for using Section 702 to investigate or prosecute individual Americans.
26. Section 702 is scheduled to expire in 2017, and Congress has already begun to hold hearings about whether to reauthorize this warrantless surveillance authority.
27. Because disclosures to date leave significant gaps in the public’s understanding of Section 702 surveillance, release of the requested records will provide crucial information about how Section 702 is being used by the government and what safeguards exist to protect Americans’ privacy.
The FOIA Request 28. On September 14, 2016, the ACLU submitted identical FOIA Requests to NSA, ODNI, DOJ (and its components the FBI, NSD, OIP, Office of the Attorney General, Office of the Deputy Attorney General, and OIG), and CIA seeking:
(1) Section 702 targeting and minimization procedures, or amendments thereto, submitted to the FISC on or after January 1, 2015, including the procedures identified, described, or excerpted in the FISC Memorandum Opinion and Order dated November 6, 2015.
(2) Section 702 certifications and any related filings, memoranda, affidavits, or attachments submitted to the FISC on or after January 1, 2015.
(3) The “Summary of Notable Section 702 Requirements” submitted to the FISC, and all documents referenced in or submitted with that summary.
(4) Policies, procedures, or guidance addressing the querying, review, or use of information acquired under Section 702 in investigations, legal proceedings, or administrative actions against United States persons. This request includes, but is not limited to: (a) The policy described by ODNI General Counsel Robert Litt in remarks delivered on February 4, 2015. This request seeks the full records reflecting that policy, and any modification of it, not merely those portions of the records that have already been publicly released.
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(b) The three sets of NSA procedures addressing the use of U.S. person identifiers for queries of communications collected under Section 702, as described in the NSA OIG report dated February 20, 2015.
(5) Amicus briefs submitted to the FISC or FISCR addressing Section 702 surveillance, including but not limited to the brief(s) filed by amicus curiae Amy Jeffress pursuant to FISC orders dated August 13 and September 16, 2015.
(6) Formal or informal FISC submissions by the government addressing Section 702 surveillance and the government’s discovery, Brady, or preservation obligations.
(7) Estimates, charts, studies, or other records reflecting the number of communications filtered, screened, searched, acquired, collected, or retained using Section 702 surveillance for any period beginning on or after January 1, 2013. This request includes estimates that pertain to particular subsets of communications—for instance, those collected via PRISM or Upstream; communications to or from U.S. persons; wholly domestic communications; “about” communications; or multi-communication transactions (“MCTs”).
(8) Inspector General reports addressing Section 702 surveillance that are dated on or after January 1, 2013, and have not previously been publicly released, including but not limited to the NSA Office of the Inspector General report dated October 29, 2013.
(9) The following policies, procedures, and guidance addressing Section 702 surveillance:
(a) The most recent version of the Attorney General guidelines mandated by 50 U.S.C. § 1881a(f).
(b) The FBI Standard Minimization Procedures Policy Implementation Guidelines dated October 31, 2008, or the most recent superseding version of those procedures.
(c) The “NSA internal procedures” referenced or described in the Report to the Intelligence Oversight Board on NSA Activities dated March 4, 2013.
(d) The most recent version of the NSA Standard Operating Procedures for oversight, adjudication, and targeting FAA § 702 functions and training.
(e) The most recent version of the NSA Guidance to Analysts on Obligation to Review Data Under Protect America Act and the FISA Amendments Act.
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Case 1:16-cv-08936-RMB Document 1 Filed 11/17/16 Page 9 of 15
(f) The most recent version of the NSA “FAA 702 Curriculum,” including the training courses titled “FISA Amendments Act (FAA) 702” (also known as “OVSC1203”), “FAA 702 Practical Applications,” “FAA 702 Adjudicator Training,” and “FAA 702 Targeting Adjudication.”
29. Plaintiffs sought expedited processing of the Request on the grounds that there is a “compelling need” for these records because the information requested is urgently needed by an organization primarily engaged in disseminating information in order to inform the public about actual or alleged federal government activity. 5 U.S.C. § 522(a)(6)(E).
30. Plaintiffs sought a waiver of search, review, and reproduction fees on the grounds that disclosure of the requested records is “in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” Id. § 552(a)(4)(A)(iii).
31. Plaintiffs also sought a waiver of search and review fees on the grounds that the ACLU qualifies as a “representative of the news media” and that the records are not sought for commercial use. Id. § 552(a)(4)(A)(ii).
Defendants’ Responses to the Request 32. Despite the urgent public interest surrounding the requested documents, none of the Defendants has released any record in response to the Request. Some of the Defendants have granted the ACLU’s requests for expedited processing and waiver of fees, while others have denied those same requests. 33. Under the statute, Defendants have twenty working days to respond to a request. See 5 U.S.C. § 552(a)(6)(A)(i). If there are “unusual circumstances,” an agency may extend the time limit by no more than ten working days. More than 30 working days have passed since Plaintiffs filed the Request. Thus, these time periods have elapsed.
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Case 1:16-cv-08936-RMB Document 1 Filed 11/17/16 Page 10 of 15
NSA 34. By letter dated September 23, 2016, the NSA acknowledged receipt of the Request and assigned it reference number 85461. The NSA denied Plaintiffs’ request for expedited processing and their request for a fee waiver. The NSA further denied Plaintiffs’ request that Plaintiffs be placed in the “media” fee category, and instead placed Plaintiffs in the “all other” fee category. 35. On October 28, 2016, Plaintiffs timely filed by mail an administrative appeal from the NSA’s denial of the request for expedited processing, the denial of the request for a fee waiver, and the placement of Plaintiffs in the “all other” fee category. NSA received the appeal on October 31, 2016. Plaintiffs’ administrative appeal remains pending. 36. To date, NSA has neither released responsive records nor explained its failure to do so. Plaintiffs have exhausted all administrative remedies because the NSA has failed to comply with the time limit for responding to the Request under FOIA. 37. NSA continues to wrongfully withhold the requested records from Plaintiffs.
Office of the Director of National Intelligence 38. By letter dated September 20, 2016, ODNI acknowledged receipt of the Request and assigned it reference number DF-2016-00314. ODNI denied Plaintiffs’ request for expedited processing and granted their request for a fee waiver. 39. To date, ODNI has neither released responsive records nor explained its failure to do so. Plaintiffs have exhausted all administrative remedies because ODNI has failed to comply with the time limit for responding to the Request under FOIA. 40. ODNI continues to wrongfully withhold the requested records from Plaintiffs.
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Case 1:16-cv-08936-RMB Document 1 Filed 11/17/16 Page 11 of 15
Department of Justice Federal Bureau of Investigation 41. By email dated September 14, 2016, the FBI acknowledged receipt of the Request and stated that the requests for expedited processing and waiver of fees would be addressed after the Request had been assigned a case number. 42. By letter dated September 21, 2016, the FBI assigned the Request FOIPA Request No. 1358220-000. The FBI indicated that it was “searching the indices to [the] Central Records System for the information responsive to this request.” The FBI also informed Plaintiffs that the request for a fee waiver was under consideration, and that if that request were denied, Plaintiffs would be charged applicable duplication fees “[a]s an educational institution, noncommercial scientific institution or representative of the news media requester,” in accordance with 5 U.S.C. § 552(a)(4)(A)(ii)(II). 43. By letter dated September 30, 2016, the FBI granted Plaintiffs’ request for expedited processing. 44. To date, the FBI has neither released responsive records nor explained its failure to do so. Plaintiffs have exhausted all administrative remedies because the FBI has failed to comply with the time limit for responding to the Request under FOIA. 45. The FBI continues to wrongfully withhold the requested records from Plaintiffs.
National Security Division 46. By email dated October 4, 2016, NSD acknowledged receipt of the Request and assigned it reference number FOIA/PA #16-226. NSD granted Plaintiffs’ request for expedited processing and stated that the fee waiver request was under consideration.
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Case 1:16-cv-08936-RMB Document 1 Filed 11/17/16 Page 12 of 15
47. To date, NSD has neither released responsive records nor explained its failure to do so. Plaintiffs have exhausted all administrative remedies because NSD has failed to comply with the time limit for responding to the Request under FOIA.
48. NSD continues to wrongfully withhold the requested records from Plaintiffs. Office of Information Policy, Office of the Attorney General, and Office of the Deputy Attorney General
49. By two emails dated September 22, 2016, the OIP acknowledged receipt of the Request and assigned it two reference numbers: DOJ-2016-005518 (Office of the Attorney General) and DOJ-2016-005536 (Office of the Deputy Attorney General).
50. By letter dated September 23, 2016, OIP, responding on behalf of the Offices of the Attorney General and Deputy Attorney General, granted the request for expedited processing and deferred consideration of the request for a fee waiver. The letter stated that the Request had been assigned to a Government Information Specialist in the Office of Information Policy and that records searches had been initiated in the Offices of the Attorney General and Deputy Attorney General.
51. In the same letter, OIP advised Plaintiffs that “unusual circumstances” would impact the time required to process the Request, and that the office would need more than the ten additional days provided by the statute to respond.
52. To date, OIP, the Office of the Attorney General, and the Office of the Deputy Attorney General have neither released responsive records nor explained their failure to do so. Plaintiffs have exhausted all administrative remedies because OIP, the Office of the Attorney General, and the Office of the Deputy Attorney General have failed to comply with the time limit for responding to the Request under FOIA
11

Case 1:16-cv-08936-RMB Document 1 Filed 11/17/16 Page 13 of 15
53. OIP, the Office of the Attorney General, and the Office of the Deputy Attorney General continue to wrongfully withhold the requested records from Plaintiffs.
Office of the Inspector General 54. By letter dated September 30, 2016, OIG acknowledged receipt of the Request and assigned it control number 16-OIG-289. The letter did not address the request for expedited processing or the request for a fee waiver. 55. By letter dated October 24, 2016, OIG responded to the Request, reporting that it had located no responsive documents. 56. On November 14, 2016, Plaintiffs timely filed by mail an administrative appeal challenging the adequacy of OIG’s search. In addition, to the extent that OIG relied upon the FOIA exclusions in 5 U.S.C. § 552(c) as a basis for withholding responsive documents, Plaintiffs challenged those withholdings. In light of these deficiencies, Plaintiffs requested that OIG be required to conduct a renewed search for the records described in the Request and that OIG be required to release any responsive records wrongfully excluded and withheld on the basis of 5 U.S.C. § 552(c). DOJ received the appeal on November 15, 2016. 57. To date, OIG has not released responsive records nor has DOJ responded to Plaintiffs’ administrative appeal. 58. OIG continues to wrongfully withhold the requested records from Plaintiffs.
Central Intelligence Agency 59. By letter dated September 16, 2016, the CIA acknowledged receipt of the Request and assigned it reference number F-2016-02561. The CIA denied Plaintiffs’ request for expedited processing and granted their request for a fee waiver.
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Case 1:16-cv-08936-RMB Document 1 Filed 11/17/16 Page 14 of 15
60. To date, CIA has neither released responsive records nor explained its failure to do so. Plaintiffs have exhausted all administrative remedies because the CIA has failed to comply with the time limit for responding to the Request under FOIA.
61. CIA continues to wrongfully withhold the requested records from Plaintiffs. CAUSES OF ACTION
62. Defendants’ failure to make a reasonable effort to search for records responsive to the Request violates FOIA, 5 U.S.C. § 552(a)(3), and Defendants’ corresponding regulations.
63. Defendants’ failure to promptly make available the records sought by the Request violates FOIA, 5 U.S.C. § 552(a)(3)(A), (a)(6)(A), and Defendants’ corresponding regulations.
64. Defendants’ failure to process Plaintiffs’ request expeditiously and as soon as practicable violates FOIA, 5 U.S.C. § 552(a)(6)(E), and Defendants’ corresponding regulations.
65. Defendants’ failure to grant Plaintiffs’ request for a waiver of search, review, and duplication fees violates FOIA, 5 U.S.C. § 552(a)(4), (a)(6), and Defendants’ corresponding regulations.
66. Defendants’ failure to grant Plaintiffs’ request for a limitation of fees violates FOIA, 5 U.S.C. § 552(a)(4), (a)(6), and Defendants’ corresponding regulations.
REQUESTED RELIEF WHEREFORE, Plaintiffs respectfully request that this Court:
A. Order Defendants to conduct a thorough search for all responsive records; B. Order Defendants to immediately process and release any responsive records; C. Enjoin Defendants from charging Plaintiffs search, review, or duplication fees for
the processing of the Request;
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Case 1:16-cv-08936-RMB Document 1 Filed 11/17/16 Page 15 of 15
D. Award Plaintiffs their costs and reasonable attorneys ' fees incurred in this action; and
E. Grant such other relief as the Court deems just and proper.
Respectfully submitted,

November 17, 2016

Patri k Toomey Ashley Gorski Hina Shamsi American Civil Liberties mon
Foundation 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax:(212)549-2654 ptoomey@aclu.org

14

 
 Case 1:16-cv-08936-RMB Document 51 Filed 12/11/17 Page 1 of 4
.R
i

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
AMERICAN CIVIL LIBERTIES UNION and AMERICAN CIVIL LIBERTIES UNION FOUNDATION,

.USDCSDNY

DOCUMEN'(

ELECTRONICALLY nLED

DOC#:

·. , I

111 DATE FlLED: l'h/l\

I

Plaintiffs,

No. 16 Civ. 8936 (RMB)

v.
NATIONAL SECURITY AGENCY, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, DEPARTMENT OF JUSTICE, and CENTRAL INTELLIGENCE AGENCY,

STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL

Defendants.

WHEREAS, plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation ("Plaintiffs") brought a Freedom oflnfo1111ation Act ("FOIA") action, on or about November 17, 2016, to compel defendants National Security Agency ("NSA"), Office of the Director of National Intelligence ("ODNI"), Central Intelligence Agency ("CIA"), and Depa1iment of Justice ("DOJ") (specifically, its components the Federal Bureau of Investigation ("FBI"), the National Security Division ("NSD"), the Office of Infonnation Policy, the Office of the Attorney General, the Office of the Deputy Attorney General, and the Office of the Inspector General) (collectively "Defendants") to search for and produce documents responsive to a FOIA request (the "Request") submitted by Plaintiffs on September 14, 2016 [Dkt. No. 1];
WHEREAS, Defendants possessing documents they deemed responsive to the Request produced such documents, or portions thereof, that they detennined to be non~exempt under the FOIA during the pendency of this litigation;

Case 1:16-cv-08936-RMB Document 51 Filed 12/11/17 Page 2 of 4

WHEREAS, the parties agree that the only remaining issue in this matter concerns

Plaintiffs' claim of entitlement to attorney's fees and litigation costs reasonably incurred in this

case pursuant to 5 U.S.C. § 552(a)(4)(E); and

WHEREAS, the parties wish to resolve Plaintiffs' claim for attorney's fees and litigation

costs consensually without further litigation,

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between

the parties, as follows:

1. Pursuant to 5 U.S.C. § 552(a)(4)(E), as soon as reasonably practicable after the

Court has endorsed and docketed this Stipulation and Order, NSA shall pay to Plaintiffs the sum

of $11,000, CIA shall pay to Plaintiffs the sum of $6500, NSD shall pay to Plaintiffs the sum of

$6500, FBI shall pay to Plaintiffs the sum of $6500, and ODNI shall pay to Plaintiffs the sum of

$4500 (collectively, the "Settlement Amounts").

2. Defendants shall make their best effo1t to make payment to Plaintiffs within 90

days following the dismissal of this Action and will submit appropriate requests for payment

within 14 days of the entry of the Stipulation and 9rder.

3.

Plaintiffs agree to accept the Settlement Amounts in f911 satisfaction of any

possible claim, demand or entitlement for attorney's fees and costs Plaintiffs have incuned or

will incur in this action for s_ervices perfonned up to the date of this Stipulation and Order. Any

subsequent claim for attorney's fees and costs in connection with this matter will be limited to a [

claim for fees and/or costs in connection with any future application to enforce the Stipulation

and Order. 4.

Com~ This action is hereby dismissed with prejudice, provided that the

retain jurisdiction over any issues that may arise relating to this Stipulation and Order.

2

Case 1:16-cv-08936-RMB Document 51 Filed 12/11/17 Page 3 of 4
5. Effective upon payment of the Settlement Amounts set forth in Paragraph 1, Plaintiffs release the United States, its agencies, depaitments, officers, employees, servants, and agents, including Defendants, from any claims for attorney's fees, costs, and expenses of any kind, and however denominated, relating to services performed in connection with this instant action, except as set fmth in Paragraph 3.
6. Nothing in this Stipulation and Order shall constitute an admission by United States of America or its agencies, including Defendants, that Plaintiffs or their counsel are eligible for or entitled to attorney's fees and costs under 5 U.S.C. § 552(a)(4)(E) in this action.
7. Nothing in this Stipulation and Order shall constitute an admission by United States of America or its agencies, including Defendants, that Plaintiffs or their counsel would be entitled to attorney's fees and costs under 5 U.S.C. § 552(a)(4)(E) in connection with any subsequent application by Plaintiffs to enforce this Stipulation and Order. Defendants reserve all defenses associated with any such future claim of entitlement to attorney's fees and costs.
8. Nothing in this Stipulation and Order shall constitute an admission by Plaintiffs o ; their counsel that Defendants' searches were adequate or their withholdings were proper under theFOIA.
9. The parties understand and agree that this Stipulation and Order contains the entire agreement between them. No statements, representations, promises, agreements, or negotiations, oral or otherwise, between the parties or their counsel that are not included herein shall be of any force or effect.
10. This stipulation may be executed in counterpaits. Facsimile or PDF signatures shall have the same force and effect as original signatures.
3

Case 1:16-cv-08936-RMB Document 51 Filed 12/11/17 Page 4 of 4

Dated: New York, New York December 8, 2017
AMERICAN CIVIL LIBERTIES UNION FOUNDATION

By:

JQOAA~
~RSKI

PATRICK TOOMEY

ANNADIAKUN

125 Broad Street, 18th Floor

New York, New York 10004

Telephone: (202) 549-2500

Email: agorski@aclu.org

Attorney for Plaint{ffs

Dated: New York, New York December 8, 2017
JOON H. KIM Acting United States Attorney for the Southern District of New York
By:
TOMOKO ONOZAWA Assistant United States Attorneys 86 Chambers Street, Third Floor New York, New York 10007 Telephone: (212) 637-2739/2721 Email: david.jones6@usdoj.gov Attorney for Defendants

tlo +o k sooRDERED. cl~tl

C(w

~~

_-_J_L_ Dated: N=:-ork, New 'fork -"-@-=U~tll\-=------~-=------~'_.__I., 2011 ?~!$
HONORABLE RICHARD M. BERMAN
United States District Judge

4