Case 1:17-cv-00813-TSC Document 1 Filed 05/02/17 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MUSLIM ADVOCATES, P.O. Box 71080 Oakland, CA 94612
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, 245 Murray Lane, SW Washington, DC 20528
Defendant.

) ) ) ) ) Civil Action No. _______________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiff Muslim Advocates, by and through its attorneys, complains against Defendant United States Department of Homeland Security (“DHS” or “Defendant”) as follows:

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INTRODUCTION 1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., for declaratory, injunctive, and other appropriate relief to compel the disclosure and release of documents to Muslim Advocates (“Plaintiff” or “Requestor”). 2. In a FOIA Request letter (“Request”), Requestor sought documents and information relating to the government’s border searches of electronic devices in the possession of persons from the seven Muslim-majority countries covered by President Donald Trump’s January 27, 2017 Executive Order, in addition to its border searches of electronic devices in the possession of persons – including U.S. citizens – whom U.S. Customs and Border Protection (“CBP”) agents perceived to be Muslim. As discussed widely in news reports, these searches – which may include the physical retention of an individual’s electronic devices and demand for their passwords – appear to have dramatically increased following the issuance of the Executive Order.1 3. Despite Requestor timely exhausting its administrative remedies, DHS has failed to comply with its obligation under FOIA to promptly make the requested documents and information available. These documents and information are critical to Requestor understanding the scope of the Executive Order and the extent to which the government implemented – and may continue to implement – its policies in a discriminatory or unconstitutional manner.
JURISDICTION AND VENUE 4. This Court has jurisdiction over this action pursuant to 5 U.S.C. §552(a)(4)(B) and 28 U.S.C. § 1331.
1 See, e.g., Kaveh Waddell, A Stand Against Invasive Phone Searches at the U.S. Border, The Atlantic, Feb. 21, 2017.
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5. Venue is proper in this District pursuant to 5 U.S.C. § 552(a)(4)(B). PARTIES
6. Muslim Advocates is a not-for-profit corporation that works to ensure the civil rights for Americans of all faiths through national legal advocacy, policy engagement, and civic education. Muslim Advocates is a “person” within the meaning of 5 U.S.C. § 551(2).
7. DHS is an “agency” within the meaning of 5 U.S.C. § 552(f)(1). DHS has possession and control over the requested records.
FACTUAL BACKGROUND 8. On January 27, 2017, President Donald Trump issued an executive order, Executive Order 13769 (“Executive Order I”), barring persons from seven Muslim-majority countries – Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen – from entering the United States for 90 days, indefinitely blocking refugees from Syria from entering the United States, and prohibiting all refugees from entering the United States for 120 days. 9. Following the issuance of Executive Order I, numerous publications reported that CBP agents searched the electronic devices of individuals, including U.S. citizens, who were originally from the seven countries covered by Executive Order I, in addition to searching the electronic devices of others who arrived in the United States on international flights and whom CBP agents perceived to be Muslim. These publications further reported that CBP agents demanded travelers’ passwords and potentially seized their electronic devices either physically or through the electronic duplication of their contents. 10. On February 2, 2017, CBP issued a guidance document entitled “Q&A for Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States,” which states: “Keeping America safe and enforcing our nation’s laws in an increasingly digital world
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depends on [the CBP’s] ability to lawfully examine all materials entering the United States.” It also provides that “inspection [of international travelers arriving to the U.S.] may include electronic devices.”
11. On March 6, 2017, President Donald Trump issued another executive order (“Executive Order II”), scheduled to go into effect on March 16, 2017, that replaced Executive Order I and continued to generally bar persons from six Muslim-majority countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen – from entering the United States on new visas for 90 days and reinstated the prohibition on all refugees entering the United States for 120 days.2
12. On March 7, 2017, Requestor submitted the Request to DHS and asked that DHS refer the Request to CBP as appropriate.3 Requestor sought expedited processing pursuant to 5 U.S.C. § 552(a)(6)(e).
13. The Request seeks the following: 1) records created on or after January 24, 2017 related to CBP’s search, review, retention, and dissemination of information located on or accessed through electronic devices in the possession of individuals who are encountered by CBP at the border, functional equivalent of the border, or extended border; and 2) records created on or after February 27, 2017 that pertain to Executive Order II and are otherwise responsive to the first request.
2 These provisions of Executive Order II have been preliminarily enjoined nationwide by the United States District Court for the District of Hawaii at the time of the filing of this Complaint. State of Hawaii, et al. v. Trump, et al., No. 17-00050 DKW-KSC, 2017 WL 1167383 (D. Haw. Mar. 29, 2017); see also Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 1018235 (D. Md. Mar. 16, 2017) (preliminarily enjoining section of Executive Order II imposing 90-day entry ban of persons from six Muslim-majority countries). 3 A copy of the Request is attached as Exhibit A.
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AGENCY RESPONSES AND EXHAUSTION OF ADMINISTRATIVE REMEDIES 14. On March 13, 2017, in a letter sent by email, DHS acknowledged that it had
received the Request on March 13, 2017 and granted Requestor’s request for expedited processing.4
15. In the letter, DHS invoked a 10-day extension beyond the usual 20-day statutory limit to respond to the Request pursuant to 5 U.S.C. § 552(a)(6)(B).
16. With the 10-day extension, DHS was required to respond to the Request by April 24, 2017. See 5 U.S.C. § 552(a)(6).
17. DHS has yet to make available any records responsive to the Request. 18. Because DHS has failed to comply with the FOIA time limit provision, Requestor is deemed to have exhausted its administrative remedies under 5 U.S.C. § 552(a)(6)(C)(i). VIOLATION OF FOIA FOR FAILURE TO PROVIDE A DETERMINATION WITHIN
30 BUSINESS DAYS 19. Plaintiff repeats and re-alleges the allegations of Paragraphs 1 through 18. 20. DHS was obliged to determine whether to comply with the Request within 30 days (excepting Saturday, Sundays, and legal public holidays) – which includes the usual 20-day limit and the 10-day extension – and to immediately notify Requestor of the agency’s determination and the reasons therefor. 21. Defendant’s failure to determine whether to comply with the Request within 30 business days after receiving it violates FOIA, 5 U.S.C. § 552(a)(6)(A),(B), and applicable regulations promulgated thereunder.
4 A copy of DHS’s response is attached as Exhibit B.
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VIOLATION OF FOIA FOR FAILURE TO MAKE RECORDS AVAILABLE 22. Plaintiff repeats and re-alleges the allegations of Paragraphs 1 through 21. 23. Plaintiff has a right under FOIA to obtain the agency records requested on March 7, 2017, and there exists no legal basis for Defendant’s failure to promptly make the requested records available to Plaintiff and the public. 24. Defendant’s failure to promptly make available the records sought by the Request violates 5 U.S.C. § 552(a)(3)(A), and applicable regulations promulgated thereunder.
PRAYER FOR RELIEF WHEREFORE, Plaintiff Muslim Advocates respectfully requests that judgment be entered against Defendant United States Department of Homeland Security and that this Court: A. Declare that Defendant violated FOIA by failing to determine whether to comply with
the Request within 30 business days and by failing to immediately thereafter notify Plaintiff of such determination and the reasons therefor; B. Declare that Defendant violated FOIA by unlawfully withholding the requested records; C. Order Defendant to immediately disclose the requested records to the public and make copies immediately available to Plaintiff; D. Award Plaintiff its reasonable costs and attorneys’ fees; and E. Grant such other and further relief as the Court may deem just and proper.

Dated: May 2, 2017

Respectfully submitted,

By: /s/ Leah J. Tulin

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Leah J. Tulin (D.C. Bar No. 988003) Kelly M. Morrison (application for admission forthcoming) Joshua M. Parker (admission pending) Daniel F. Bousquet (admission pending) JENNER & BLOCK LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001 Telephone: (202) 639-6000 Facsimile: (202) 639-6066 Johnathan Smith (D.C. Bar No. 1029373) Juvaria Khan (pro hac vice application forthcoming) MUSLIM ADVOCATES P.O. Box 71080 Oakland, CA 94612 Telephone: (415) 692-1484 Amir Ali (admission pending) THE RODERICK & SOLANGE MACARTHUR JUSTICE CENTER 718 7th Street NW Washington, DC 20001 Telephone: (202) 869-3434 Attorneys for Plaintiff Muslim Advocates
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Exhibit A

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10 99 NEW YORK AVENUE, NW SUITE 900 WASHINGTO N, DC 2000 1-441 2

c .J E N N E R & B L 0 K LLP

March 7, 20 17

Mary Ellen Callahan Tel +1 202 639 6064 Fax + l 202 66 1 492 1 mecal lahan@j enner.com

Dr. James Y.M.L. Holzer Deputy Chief FO IA O ffi cer The Privacy Office U.S. Department of Homeland Security 245 Murray Lane, SW S T O P-0 6 55 Washington, DC 20528-0655

Re: Freedom of Inform ation Act Request re Border Searches of Electronic Devices

~er~~ Dear Dr.

-

~e-Roderick & Solange MacArthur Justice Center and Muslim Advocates

("Requestors") subm it this letter to The Privacy O ffice at the U.S. Department of Homeland

Securi ty ("OH S") as a request under the Freedom o f information Act ("FO IA"), 5 U.S.C. § 552,

et seq. We ask that thi s request be expedited pursuant to 5 U.S .C. § 552(a)(6)(E) and that we be

granted a fee waiver. We also ask that you refer the requests contained in this Jetter to U.S .

Customs & Border Protecti on ("CB P") as appropriate.

I.

Bac kg ro und

On January 27, 20 17, President Do nald T rump issued an executive order, Executive O rder 13769 ("Executive Order["), barri ng persons from seven M uslim-majority countries Iran, Iraq, Libya, Somali a, Sudan, Syria, and Yemen - from entering the United States fo r 90 days, indefini tely blocking refugees from Syria from entering the United States, and prohibiting all refugees from entering the United States fo r 120 days.1

Numerous publ ications reported that ind ividuals, including U.S. citizens, originally from the seven countries covered by the Executive Order I and with Muslim-sound ing names were having their electronic devices searched and potentially also seized, both physicall y and through the electronic duplicati on of their contents, in airports after arriving in the United States on international flights.2 In its February 2, 2017 Q&A fo r Executive Order 1, the CBP stated that

1 Exec. Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017). 2 See Joshua Kopstein, Travelers Affected By Trump Ban Forced to Unlock Phones, Computers, Vocativ (Jan. 30, 2017, 6:21 PM), http://www.vocativ.com/397897/travelers-affected-by-trump-ban-forced-to-unlock-phonescomputers/; Kaveh Waddell, A Stand Against Invasive Phone Searches at the U.S. Border, The Atlantic (Feb. 21, 2017), https://www. theatlantic.com/ technology/archive/2017/02/ron-wyden-border-searches/517353/; Sophia Cope, Fear Materialized: Border Agents Demand Social Media Dataji-om Americans, Electronic Frontier Foundation (Jan. 25, 2017), https://www.eff.org/deepli nks/2017/0 I/ fea r-materia lized-border-agents-demand-social-media-dataamericans.

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"[kJeeping America safe and enforcing our nation's laws in an increasingly digital world depends on [the CBP's] ability to lawfully examine all materials entering the United States" and that "inspection may include electronic devices."3
On March 6, 2017, President Donald Trump issued another executive order ("Executive Order II") scheduled to go into effect on March 16, 2017 that replaces Executive Order I but again generally bars persons from six Muslim-majority countries - Iran, Libya, Somalia, Sudan, Syria, and Yemen - from entering the United States on new visas for 90 days and reinstates the prohibition on all refugees from entering the United States for 120 days.4

II. Request for Information The Requestors request disclosure of the following records5 that were prepared, received,
transmitted, collected and/or maintained by DHS, and/or the CBP6:
1. Any and all records created on or after January 24, 2017 related to CBP's search, review, retention, and dissemination of information located on or accessed through electronic devices7 in the possession of individuals who are encountered by CBP at the border, functional equivalent of the border, or extended border, including, but not limited to:
a. Records related to CBP's implementation of Executive Order I with respect to CBP's search, review, retention, and dissemination of information located on or accessed through electronic devices possessed by individuals who are encountered by CBP at the border, functional equivalent of the border, or extended border.
b. Records reflecting revisions of, or documents superseding, the August 25, 2009 "Privacy Impact Assessment for the Border Searches of Electronic

3 Customs and Border Patrol, Q&A for Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States (Feb. 2, 2017), https://www.cbp.gov/sites/default/files/assets/documents/2017-Feb/EO-QA-PDFWEB-02.02.2017 .pdf. 4 Executive Order II is available at: https://www.whitehouse.gov/the-press-office/2017/03/06/executive-orderprotecting-nation-foreign-terrorist-entry-united-states. 5 The term "records" includes all records or communications preserved in electronic or written form, including but not limited to correspondence, regulations, directives, documents, data, videotapes, audiotapes, e-mails, faxes, files, guidance, guidelines, standards, evaluations, instructions, analyses, legal and policy memoranda, minutes or notes of meetings and phone calls, memoranda, agreements, notes, orders, policies, procedures, protocols, reports, rules, manuals, technical specifications, text communications between phones or other electronic devices (including, but not limited to, communications sent via SMA or other text, Blackberry Messenger, iMessage, WhatsApp, Signal, Gchat, or Twitter direct message), training materials or studies, including records kept in written form, or electronic format on computers and/or other electronic storage devices, electronic communications and/or videotapes, as well as any reproductions thereof that differ in any way from any other reproduction, such as copies containing marginal notations. 6 The term "CBP" means CBP Headquarters offices, including any divisions, subdivisions or sections therein; CBP field operations offices, including any divisions, subdivisions or sections therein; CBP offices at ports of entry, including any divisions, subdivisions or sections therein; and/or any other CBP organizational structures. 1 The term "electronic devices" includes, but it not limited to, laptop computers, MP3 players, digital cameras, cell phones, and tablet computers.

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Devices" and CBP Directive CD 3340-049, "Border Search of Documents and Electronic Devices Containing Information" (August 20, 2009).
c. Policies, practices, and procedures that went into effect on or after January 24, 2017 regarding criteria for selecting individual travelers whose electronic information will be searched, reviewed, or retained, or will be disseminated to other components of OHS, other government agencies, or persons or entities outside the government.
d. Policies, practices, and procedures that went into effect on or after January 24, 2017 regarding search, review, retention, or dissemination of information located on or accessed through electronic devices, including policies, practices, and procedures regarding:
1. The use of electronic devices to search, review, retain, and/or disseminate information found in email, located on social media, saved in the cloud, or otherwise stored on the internet that is accessible because of passwords stored on the electronic device or because the electronic device is recognized as a device that does not require a password to access such information.
11. The search, review, retention, and dissemination of information that CBP officers have found not to violate the law.
111. The search, review, retention and dissemination of business information.
iv. The protection of confidential information in travelers' possession, such as information covered by trade secrets, attorney-client privilege, health privacy laws, or other legal protections.
e. Policies, practices, and procedures that went into effect on or after January 24, 20 I7 on the questioning of travelers targeted for search of electronic devices, including policies, practices, and procedures regarding:
1. The questioning of travelers targeted for electronic-device search regarding political views, religious practices, and other activities potentially covered by the First Amendment.
11. Responding to such travelers' refusal to answer such questions.

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111. Permitting a traveler targeted for electronic-device search to access legal counsel or invoke a right to remain silent during such questioning.
f. Policies, practices, and procedures that went into effect on or after January 24, 2017 on the information given to travelers targeted for electronic-device search regarding CBP's authority to search, review, retain, and disseminate information stored on or accessed through electronic devices, including policies and procedures about information given related to travelers' rights to refuse to consent to such CBP actions, travelers' rights to access legal counsel before consenting to such CBP actions, travelers' rights to limit the scope of their consent (such as to use of the electronic device to access data not stored on the electronic device itself), and CBP's authority to continue to detain travelers if they deny CBP access.
g. Documents, including the "Blue Paper" described in the Verge's February 12, 2017 article, "A US-Born NASA Scientist was Detained at the Border Until He Unlocked His Phone,"8 given on or after January 27, 2017 to travelers targeted for electronic-device search regarding CBP's authority to search, review, retain, and disseminate information stored on or accessed through electronic devices, travelers' rights to refuse to consent to such CBP actions, travelers' rights to access legal counsel before consenting to such CBP actions, travelers' rights to limit the scope of their consent (such as to use of the electronic device to access data not stored on the electronic device itself), and CBP's authority to continue to detain travelers if they deny CBP access.
h. Policies, practices, and procedures that went into effect on or after January 24, 2017 regarding requesting travelers' passwords to their email accounts, social media accounts, cloud accounts, and other internet-based accounts, such as mobile banking accounts, including information regarding travelers' rights to refuse to provide such passwords, travelers' rights to access legal counsel before providing such passcodes, and CBP's authority to continue to detain travelers if they deny CBP such passwords.
i. Policies, practices, and procedures that went into effect on or after January 24, 2017 regarding providing travelers targeted for electronic-device search access to interpreters, including policies, practices, and procedures regarding the information given to such travelers regarding their rights to access interpreters.

8 Loren Grush, A US-Born NASA Scientist was Detained at the Border Until He Unlocked His Phone, The Verge (Feb. 12, 2017, 12:37 PM) http://www.theverge.com/2017/2/12/14583124/nasa-sidd-bikkannavar-detained-cbpphone-search-trump-travel-ban.

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J. Records reflecting the number of individuals who have had the information stored on or accessed through their electronic devices searched, reviewed, retained, and/or disseminated on or after January 27, 2017.
k. Records reflecting the race, ethnicity, country of origin, citizenship, and gender of individuals who have had the information stored on or accessed through their electronic devices searched, reviewed, retained, and/or disseminated on or after January 27, 2017.
I. Records reflecting the number of foreign nationals denied entry into the United States by CBP for refusing to consent to CBP search, review, retention, and/or dissemination of their electronic devices and/or information stored on or accessed through their electronic devices.
m. Records regarding the retention of electronic devices, or information accessed from or through electronic devices, by CBP on or after January 27, 2017, including the number of documents or electronic devices retained, the length of retention, the reasons for retention, and the ultimate disposition of retained material.
n. Records regarding the dissemination of electronic devices, or information accessed from or through electronic devices, to other components of OHS, other government agencies, or persons or entities outside the government on or after January 27, 2017.
o. Records regarding complaints filed on or after January 27, 2017 by individuals or organizations affected by CBP's policies or practices related to the search, review, retention, or dissemination of travelers' information.
p. E-mail communications among, between, or cc'ing CBP personnel at Headquarters, Office of Field Operations, and/or Office of Intelligence, sent or received on or after January 24, 2017 containing any of the following words or terms: "electronic device," "smartphone," "tablet," "laptop," "password," "e-mail account," "social media," "facebook," "twitter," and "cloud."
2. Any and all records created on or after February 27, 2017 that pertain to Executive Order II and are otherwise responsive to Request 1 above.

III. Application for Expedited Processing
Expedited processing of this request is warranted because: (1) there is an "urgency to inform the public about an actual or alleged Federal Government activity" by organizations, like the MacArthur Justice Center and Muslim Advocates, "primarily engaged in disseminating

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information," 5 U.S.C. § 552(a)(6)(E)(i) & (v)(II); (2) the request concerns "[t]he loss of substantial due process rights," 6 C.F.R. § 5.5(e)(l)(iii); 5 U.S.C. § 552(a)(6)(E)(ii); and (3) the request concerns "[a] matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence," 6 C.F.R. § 5.5(e)(l)(iv); 5 U.S.C. § 552(a)(6)(E)(ii).
Early reports about Executive Order I's implementation have raised serious due process concerns,9 giving rise to "questions about the government's integrity" and an "urgency to inform the public." Given the similarities between Executive Order I and Executive Order II, these serious due process concerns persist. Further, attorneys and other services providers need to understand the relevant policies, procedures, and practices to effectively serve and advise the population of individuals potentially affected by Executive Order II. The requested records seek to inform the public about an urgent issue implicating thousands of individuals' due process rights, namely, CBP's interpretation, implementation, and enforcement of Executive Order I and Executive Order II.
These expediency concerns are heightened by Executive Order II's ten-day delay before it goes into effect. The very moment it is enforced, Executive Order II promises to present some of the same serious due process concerns that Executive Order I presented. Thus, attorneys, other service providers, and the public urgently need these important public documents.
Given the foregoing, the MacArthur Justice Center and Muslim Advocates have satisfied the requirements for expedited processing of this Request.

IV. Application for Waiver or Limitation of Fees

The Requestors request a waiver of document search, review, and duplication fees on the grounds that disclosure of the requested records is in the public interest and because disclosure 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." 5 U.S.C. § 552(a)(4)(A)(iii). The Requestors also request a waiver of search fees on the grounds that the Requestors qualify as "representative[s] of the news media" and the records are not sought for commercial use. 5 U.S.C. § 552(a)(4)(A)(ii)(II).

A. The Request is likely to contribute significantly to public understanding ofthe operations or activities ofthe government and is not primarily in the commercial interest ofthe Requestors.

As discussed above, news accounts underscore the substantial public interest in the records sought through this Request. Given the ongoing and widespread media attention to this issue, the records sought will significantly contribute to public understanding of an issue of profound public importance.

9 See, e.g., Loren Grush, A US-Born NASA Scientist was Detained at the Border Until He Unlocked His Phone, The Verge (Feb. 12, 2017, 12:37 PM), http://www.theverge.com/2017/2/12/14583124/nasa-sidd-bikkannavar-detainedcbp-phone-search-trump-travel-ban.

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The Requestors are not filing this Request to further their commercial interest. Any information disclosed by the Requestors as a result of this FOIA Request will be made available to the public at no cost. Thus, a fee waiver would fulfill Congress's legislative intent in amending the FOIA. See Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) ("Congress amended FOIA to ensure that it be liberally construed in favor of waivers for noncommercial requesters." (internal quotation marks omitted)).

B. The Requestors are representatives ofthe news media and the records are not sought for commercial use.

The Requestors also request a waiver of search fees on the grounds that the Requestors qualify as "representative[s] of the news media" and the records are not sought for commercial use. 5 U.S.C. § 552(a)(4)(A)(ii)(II). The Requestors meet the statutory and regulatory definitions of"representative[s] of the news media" because they gather information, exercise editorial discretion in selecting and organizing documents, and "distribute the resulting work to the public." Nat'! Sec. Archive v. U.S. Dep't ofDefense, 880 F.2d 1381, 1387 (D.C. Cir. 1989). The Requestors are therefore "representative[s] of the news media" for the same reasons they are "primarily engaged in [the] dissemination of information." 5 U.S.C. § 552(a)(4)(A)(ii)(II), (6)(E)(v)(II).

Furthermore, courts have found other organizations whose mission, function, publishing,
and public education activities are similar in kind to the Requestors' to be "representative[s] of
the news media" as well. Requestor Muslim Advocates, for instance, joined with the American
Civil Liberties Union in disseminating the records obtained from the CBP in response to a joint 2010 FOIA request. 10 Additionally, in 2009 requestor Muslim Advocates pursued FOIA litigation against the FBI that resulted in public disclosure of previously withheld information. 11
Cf Judicial Watch, Inc. v. U.S. Dep 't ofJustice, 133 F. Supp. 2d 52, 53-54 (D.D.C. 2000) (finding Judicial Watch, self-described as a "public interest law firm," a news media requester). 12

On account of these factors, fees associated with responding to FOIA requests should be waived for the requestors as "representative[s] of the news media."

***
With respect to the form of production, see 5 U.S.C. § 552(a)(3)(B), the Requestors request that responsive electronic records be provided electronically in their native file format, if possible. Alternatively, Requestors request that the records be provided electronically in a text-

10 See ACLU, Invasive Questioning at the Border (last visited Mar. 2, 2017), https://www.aclu.org/invasivequestioning-border?redirect=free-speech-national-security-racial-justice-religion-belief/invasive-questioning-border. 11 See Muslim Advocates, Press Advisory: U.S. Department ofJustice Continues to Cloak Public Access to Guidelines on FBI Surveillance ofMosques & Communities, (Oct. 15, 2009), https://d3n8a8pro7vhmx.cloudfront.net/muslimadvocates/pages/191/attachments/original/1361200382/l 0-1509_Amended_Complaint_Press_Release.pdf? 1361200382. 12 Courts have found these organizations to be "representative[s] of the news media" even though they engage in litigation and lobbying activities beyond their dissemination of information I public education activities. See, e.g., Judicial Watch, Inc., 133 F. Supp. 2d at 53-54.

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searchable, static-image format (PDF), in the best image qual ity in the agency's possession, and that the records be provided in separate, Bates-stamped files.
Pursuant to applicable statutes and regulations, the Requestors expect a determination regardi ng expedited processing within 10 days. See 5 U.S .C. § 552(a)(6)(E)(ii).
If the Request is denied in whole or in part, the Requestors ask that you justify all de letions by reference to specific FOIA exemptions. The Requestors expect the release of all segregable portions of otherwise exempt material. The Requestors reserve the right to appeal a decision to withhold any in formation or deny a waiver of fees.
Additionally, in order to avoid delays in rece iving records, Requestors request that records be produced seriatim as they become avai lable. Due to the exigent circumstances surrounding this request, Requestors are amenable to narrowing the request if it would accelerate production.
Thank you for your prompt attention to this matter. Please furnish the applicable records to:
Mary Ellen Callahan Jenner & Block LLP 1099 New York Avenue NW Suite 900 Washington, DC 20001
I affi rm that the information provided supporting the request for expedited processing is true and correct to the best of my knowledge and belief. See 5 U.S.C. § 552(a)(6)(E)(vi).
Mary Ellen Callahan

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Exhibit B

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U.S. Department of Homeland Security Washington, DC 20528
Homeland Security
March 13, 2017
SENT VIA E-MAIL TO: MECallahan@jenner.com
Mary Ellen Callahan Jenner&Block LLP 1099 New York Avenue NW Suite 900 Washington, DC 20001
Re: 2017-HQFO-00513
Dear Ms. Callahan:
This letter acknowledges receipt of your March 8, 2017, Freedom of Information Act (FOIA) request to the Department of Homeland Security (DHS), for records that were prepared, received, transmitted, collected and/or maintained by DHS and/or the CBP: any and all records created on or after January 24, 2017 related to CBP's search, reviews, retention, and dissemination of information located on or accessed through electronic devices in the possession of individuals who are encountered by CBP at the border, functional equivalent of the border, or extended border, including, but not limited to: records related to CBP's implementation of Executive Order I with respect to CBP’s search, review, retention, and dissemination of information located on or accessed through electronic devices possessed by individuals who are encountered by CBP at the border, functional equivalent of the border, or extended border; records reflecting revisions of documents superseding the August 25, 2009 "Privacy Impact Assessment for the Border Searches of Electronic Devices'' and CBP Directive CD 3340-049, "Border Search of Documents and Electronic Devices Containing Information" (August 20, 2009). Policies, practices, and procedures that went into effect on or after January 24, 2017 regarding criteria for selecting individual travelers whose electronic information will be searched, reviewed, or retained, or will be disseminated to other components of DHS, other government agencies, or persons or entities outside the government. Policies, practices. and procedures that went into effect on or after January 24, 2017 regarding search, review, retention, or dissemination of information located on or accessed through electronic devices, including policies, practices, and procedures regarding: The use of electronic devices to search, review, retain, and/or disseminate information found in email, located on social media, saved in the cloud, or otherwise stored on the internet that is accessible because of passwords stored on the electronic device or because the electronic device is recognized as a device that does not require a password to access such information. The search, review, retention, and dissemination of information that CBP officers have found not to violate the law. The search, review, retention and dissemination of business information. The protection of confidential information in travelers’ possession such as information covered by trade secrets, attorney-client privilege, health privacy laws, or other legal protections. Policies, practices, and procedures that went into

Case 1:17-cv-00813-TSC Document 1-2 Filed 05/02/17 Page 3 of 3
effect on or after January 24, 2017 on the questioning of travelers targeted for search of electronic devices, including policies, practices, and procedures regarding: The questioning of travelers targeted for electronic search regarding political views, religious practices, and activities potentially covered by the First Amendment. Responding to such travelers' refusal to answer such questions. Permitting a traveler targeted for electronic-device search to access legal counsel or invoke a right to remain silent during such questioning. Policies, practices, and procedures that went into effect on or after January 24, 2017 on the information given lo travelers targeted for electronic-device search regarding CBP's authority to search, review, retain, and disseminate information stored on or accessed through electronic devices, including policies and procedures about information given related lo travelers' rights to refuse to consent to such CBP actions, travelers' rights to access legal counsel before consenting to such CBP actions, travelers rights to limit the scope of their consent (such as to use of the electronic device to access data not stored on the electronic device itself, and CBP's authority to continue to detain travelers if they deny CBP access. Documents, including the "Blue Paper" described in the Verge’s February 12, 2007 article, “A US-Born NASA Scientist was detained at the Border Until He Unlocked His Phone, “given on or after January 27, 2017 to travelers targeted for electricdevice search regarding CBP’s. This office received your request on March 13, 2017.
As it relates to your request for expedited processing and fee waiver, your request is granted.
Due to the increasing number of FOIA requests received by this office, we may encounter some delay in processing your request. Consistent with 6 C.F.R. § 5.5(a) of the DHS FOIA regulations, the Department processes FOIA requests according to their order of receipt. Although DHS’ goal is to respond within 20 business days of receipt of your request, FOIA does permit a 10-day extension of this time period in certain circumstances. As your request seeks documents that will require a thorough and wide-ranging search, DHS will invoke a 10-day extension for your request pursuant to 5 U.S.C. § 552(a)(6)(B). If you would like to narrow the scope of your request, please contact our office. We will make every effort to comply with your request in a timely manner.
We have queried the appropriate component(s) of DHS for responsive records. If any responsive records are located, they will be reviewed for determination of releasability. Please be assured that one of the processors in our office will respond to your request as expeditiously as possible. We appreciate your patience as we proceed with your request.
Your request has been assigned reference number 2017-HQFO-00513. Please refer to this identifier in any future correspondence. To check the status of your FOIA request, you may contact this office at 1-866-431-0486 or 202-343-1743, or you may check the status of your request online at http://www.dhs.gov/foia-status.
Sincerely,
LaEbony Livingston FOIA Program Specialist

Case 1:17-cv-00813-TSC Document 1-3 Filed 05/02/17 Page 1 of 2

JS-44 (Rev. 7/16 DC)
I. (a) PLAINTIFFS

CIVIL COVER SHEET
DEFENDANTS

Muslim Advocates

United States Department of Homeland Security

Oakland, CA (b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF _____________________
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER)
Jenner & Block LLP 1099 New York Ave NW, Suite 900 Washington, D.C. 20001

COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT _____________________ (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED
ATTORNEYS (IF KNOWN)

II. BASIS OF JURISDICTION

(PLACE AN x IN ONE BOX ONLY)

o o 1 U.S. Government

3 Federal Question

Plaintiff

(U.S. Government Not a Party)

o 2 U.S. Government
Defendant

o 4 Diversity
(Indicate Citizenship of Parties in item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN x IN ONE BOX FOR

PLAINTIFF AND ONE BOX FOR DEFENDANT) FOR DIVERSITY CASES ONLY!

PTF DFT

PTF

Citizen of this State

o o o 1

1 Incorporated or Principal Place

4

of Business in This State

o o o Citizen of Another State

2

2 Incorporated and Principal Place

5

Citizen or Subject of a Foreign Country

o3

of Business in Another State
o3 Foreign Nation

o6

DFT
o4
o5
o6

IV. CASE ASSIGNMENT AND NATURE OF SUIT

(Place an X in one category, A-N, that best represents your Cause of Action and one in a corresponding Nature of Suit)

o o A. Antitrust

B. Personal Injury/

o C. Administrative Agency

o D. Temporary Restraining

Malpractice

Review

Order/Preliminary

410 Antitrust

310 Airplane

151 Medicare Act

Injunction

315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Medical Malpractice 365 Product Liability 367 Health Care/Pharmaceutical
Personal Injury Product Liability 368 Asbestos Product Liability

Social Security 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
Other Statutes 891 Agricultural Acts 893 Environmental Matters 890 Other Statutory Actions (If Administrative Agency is Involved)

Any nature of suit from any category may be selected for this category of case assignment.
*(If Antitrust, then A governs)*

o E. General Civil (Other)
Real Property 210 Land Condemnation 220 Foreclosure 230 Rent, Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property
Personal Property 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability

OR

o F. Pro Se General Civil

Bankruptcy 422 Appeal 27 USC 158 423 Withdrawal 28 USC 157
Prisoner Petitions 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Conditions 560 Civil Detainee – Conditions of Confinement
Property Rights 820 Copyrights 830 Patent 840 Trademark
Federal Tax Suits 870 Taxes (US plaintiff or defendant) 871 IRS-Third Party 26 USC 7609

Forfeiture/Penalty 625 Drug Related Seizure of Property 21 USC 881 690 Other
Other Statutes 375 False Claims Act 376 Qui Tam (31 USC 3729(a)) 400 State Reapportionment 430 Banks & Banking 450 Commerce/ICC Rates/etc. 460 Deportation 462 Naturalization Application 465 Other Immigration Actions

470 Racketeer Influenced & Corrupt Organization
480 Consumer Credit 490 Cable/Satellite TV 850 Securities/Commodities/
Exchange 896 Arbitration 899 Administrative Procedure
Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes 890 Other Statutory Actions (if not administrative agency review or Privacy Act)

Case 1:17-cv-00813-TSC Document 1-3 Filed 05/02/17 Page 2 of 2

o G. Habeas Corpus/
2255

o H. Employment
Discrimination

o I. FOIA/Privacy Act

o J. Student Loan

530 Habeas Corpus – General 510 Motion/Vacate Sentence 463 Habeas Corpus – Alien
Detainee

442 Civil Rights – Employment (criteria: race, gender/sex, national origin, discrimination, disability, age, religion, retaliation)

895 Freedom of Information Act 890 Other Statutory Actions
(if Privacy Act)

152 Recovery of Defaulted Student Loan (excluding veterans)

o K. Labor/ERISA
(non-employment)
710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 740 Labor Railway Act 751 Family and Medical
Leave Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act

*(If pro se, select this deck)*
o L. Other Civil Rights
(non-employment)
441 Voting (if not Voting Rights Act)
443 Housing/Accommodations 440 Other Civil Rights 445 Americans w/Disabilities –
Employment 446 Americans w/Disabilities –
Other 448 Education

*(If pro se, select this deck)*
o M. Contract
110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment
& Enforcement of Judgment 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholder’s Suits 190 Other Contracts 195 Contract Product Liability 196 Franchise

o N. Three-Judge
Court
441 Civil Rights – Voting (if Voting Rights Act)

V. ORIGIN
o 1 Original
Proceeding

o 2 Removed
from State Court

o 3 Remanded
from Appellate Court

o 4 Reinstated
or Reopened

o 5 Transferred
from another district (specify)

o 6 Multi-district
Litigation

o 7 Appeal to
District Judge from Mag. Judge

o 8 Multi-district
Litigation – Direct File

VI. CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE.) Freedom of Information Act, 5 U.S.C. s 552

VII. REQUESTED IN COMPLAINT

CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23

DEMAND $ JURY DEMAND:

Check YES only if demanded in complaint

YES

NO ✘

VIII. RELATED CASE(S) IF ANY
DATE: ______M__a_y__2__,_2_0__1_7_______

(See instruction)

YES ✘

NO

If yes, please complete related case form

SIGNATURE OF ATTORNEY OF RECORD ______________________________________/s__/_L_e__a_h__T__u_l_in______

INSTRUCTIONS FOR COMPLETING CIVIL COVER SHEET JS-44 Authority for Civil Cover Sheet

The JS-44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and services of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. Listed below are tips for completing the civil cover sheet. These tips coincide with the Roman Numerals on the cover sheet.

I.

COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF/DEFENDANT (b) County of residence: Use 11001 to indicate plaintiff if resident

of Washington, DC, 88888 if plaintiff is resident of United States but not Washington, DC, and 99999 if plaintiff is outside the United States.

III.

CITIZENSHIP OF PRINCIPAL PARTIES: This section is completed only if diversity of citizenship was selected as the Basis of Jurisdiction

under Section II.

IV.

CASE ASSIGNMENT AND NATURE OF SUIT: The assignment of a judge to your case will depend on the category you select that best

represents the primary cause of action found in your complaint. You may select only one category. You must also select one corresponding

nature of suit found under the category of the case.

VI.

CAUSE OF ACTION: Cite the U.S. Civil Statute under which you are filing and write a brief statement of the primary cause.

VIII.

RELATED CASE(S), IF ANY: If you indicated that there is a related case, you must complete a related case form, which may be obtained from the Clerk’s Office.

Because of the need for accurate and complete information, you should ensure the accuracy of the information provided prior to signing the form.

Case 1:17-cv-00813-TSC Document 1-4 Filed 05/02/17 Page 1 of 2
FOIA SummRQs
1/1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Muslim Advocates )

Plaintiff

)

)

v.

)

United States Department of Homeland Security

)

)

Defendant

)

Civil Action No.

SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)
Office of the General Counsel U.S. Department of Homeland Security 245 Murray Lane, SW Mail Stop 0485 Washington, DC 20528-0485

A lawsuit has been filed against you.

Within 30 days after service of this summons on you (not counting the day you received it) you must

serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of

Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and

address are:

Leah Tulin

Jenner & Block LLP

1099 New York Ave NW

Suite 900

Washington, D.C. 20001

If you fail to respond, judgment by default may be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

ANGELA D. CAESAR, CLERK OF COURT

Date:

Signature of Clerk or Deputy Clerk

Case 1:17-cv-00813-TSC Document 1-4 Filed 05/02/17 Page 2 of 2
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PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

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ZDVUHFHLYHGE\PHRQ(date)

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Case 1:17-cv-00813-TSC Document 1-5 Filed 05/02/17 Page 1 of 2
FOIA SummRQs
1/1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Muslim Advocates )

Plaintiff

)

)

v.

)

United States Department of Homeland Security

)

)

Defendant

)

Civil Action No.

SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)
Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001

A lawsuit has been filed against you.

Within 30 days after service of this summons on you (not counting the day you received it) you must

serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of

Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and

address are:

Leah Tulin

Jenner & Block LLP

1099 New York Ave NW

Suite 900

Washington, D.C. 20001

If you fail to respond, judgment by default may be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

ANGELA D. CAESAR, CLERK OF COURT

Date:

Signature of Clerk or Deputy Clerk

Case 1:17-cv-00813-TSC Document 1-5 Filed 05/02/17 Page 2 of 2
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ZDVUHFHLYHGE\PHRQ(date)

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Case 1:17-cv-00813-TSC Document 1-6 Filed 05/02/17 Page 1 of 2
FOIA SummRQs
1/1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Muslim Advocates )

Plaintiff

)

)

v.

)

United States Department of Homeland Security

)

)

Defendant

)

Civil Action No.

SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)
United States Attorney's Office, District of Columbia Civil Process Clerk 555 4th Street, NW Washington, D.C. 20530

A lawsuit has been filed against you.

Within 30 days after service of this summons on you (not counting the day you received it) you must

serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of

Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and

address are:

Leah Tulin

Jenner & Block LLP

1099 New York Ave NW

Suite 900

Washington, D.C. 20001

If you fail to respond, judgment by default may be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

ANGELA D. CAESAR, CLERK OF COURT

Date:

Signature of Clerk or Deputy Clerk

Case 1:17-cv-00813-TSC Document 1-6 Filed 05/02/17 Page 2 of 2
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PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

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ZDVUHFHLYHGE\PHRQ(date)

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 Case 1:17-cv-00813-TSC Document 15 Filed 07/13/17 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

MUSLIM ADVOCATES,

)

)

Plaintiff, )

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY,

)

)

Defendant. )

____________________________________

)

No. 1:17-cv-00813-TSC

ANSWER

Defendant Department of Homeland Security responds as follows to the numbered

paragraphs of the complaint, ECF No. 1:

1. This paragraph is plaintiff Muslim Advocates’ characterization of this action, to which

no response is required.

2. Admit that plaintiff submitted a request to defendant under the Freedom of

Information Act (FOIA), 5 U.S.C. § 552, by letter dated March 7, 2017, ECF No. 1-1.

Defendant respectfully refers the Court to ECF No. 1-1 for a full and accurate statement of its

contents. The allegations contained in Sentence 2 do not set forth a claim for relief or allege

facts in support of a claim to which a response is required.

3. The allegations contained in Sentence 1 consist of legal conclusions to which no

response is required. Defendant lacks knowledge or information sufficient to form a belief as to

the truth of the allegations contained in Sentence 2.

Case 1:17-cv-00813-TSC Document 15 Filed 07/13/17 Page 2 of 4
4-5. These paragraphs consist of legal conclusions to which no response is required. 6. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Sentence 1. Sentence 2 consists of legal conclusions to which no response is required. 7. Admits Sentence 1. Sentence 2 consists of legal conclusions to which no response is required. 8-11. The allegations contained in these paragraphs do not set forth a claim for relief or allege facts in support of a claim to which a response is required. 12-13. Admit that plaintiff submitted a FOIA request to defendant by letter dated March 7, 2017, ECF No. 1-1. Defendant respectfully refers the Court to ECF No. 1-1 for a full and accurate statement of its contents. 14-15. Admit that defendant acknowledged receipt of plaintiff’s FOIA request by letter dated March 13, 2017, ECF No. 1-2. Defendant respectfully refers the Court to ECF No. 1-2 for a full and accurate statement of its contents. 16. This paragraph consists of legal conclusions to which no response is required. 17. Admits. 18. This paragraph consists of legal conclusions to which no response is required. 19. Repeats and re-alleges the responses to ¶¶ 1-18. 20-21. These paragraphs consist of legal conclusions to which no response is required. 22. Repeats and re-alleges the responses to ¶¶ 1-21. 23-24. These paragraphs consist of legal conclusions to which no response is required.
2

Case 1:17-cv-00813-TSC Document 15 Filed 07/13/17 Page 3 of 4
No response to the prayer is required. To the extent a response is required, denies that plaintiff is entitled to the requested relief or to any relief whatsoever.
Every allegation of the complaint not otherwise responded to is hereby denied. FIRST AFFIRMATIVE DEFENSE
Some or all of the requested records are exempt from production in whole or in part under 5 U.S.C. § 552(b).
SECOND AFFIRMATIVE DEFENSE Plaintiff’s FOIA request fails in certain respects to describe reasonably the records sought and fails in those respects to comply with FOIA or to trigger a search or production obligation.
THIRD AFFIRMATIVE DEFENSE Plaintiff’s FOIA request is not enforceable to the extent it does not permit a reasonable search to be undertaken to identify and locate responsive records. Wherefore, this action should be dismissed, plaintiff should take nothing, and defendant should be awarded its costs and such other relief as may be appropriate.
Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General CHANNING D. PHILIPS United States Attorney ELIZABETH J. SHAPIRO Deputy Director
3

Case 1:17-cv-00813-TSC Document 15 Filed 07/13/17 Page 4 of 4

Dated: July 13, 2017

s/ David M. Glass DAVID M. GLASS, DC Bar 544549 Senior Trial Counsel Department of Justice, Civil Division 20 Massachusetts Ave., N.W., Room 7200 Washington, D.C. 20529 Tel: (202) 514-4469/Fax: (202) 616-8470 E-mail: david.glass@usdoj.gov Attorneys for Defendant

CERTIFICATE OF SERVICE I hereby certify that on July 13, 2017, I served the within answer all counsel of record by filing it with the Court by means of its ECF system.
s/ David M. Glass

4

 
 Case 1:17-cv-00813-TSC Document 18 Filed 08/04/17 Page 1 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

MUSLIM ADVOCATES,

)

)

Plaintiff, )

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY,

)

)

Defendant. )

____________________________________

)

No. 1:17-cv-00813-TSC

JOINT STATUS REPORT

INTRODUCTION

By minute order dated July 18, 2017, the Court directed plaintiff Muslim Advocates and

defendant Department of Homeland Security (DHS) to file a joint status report addressing certain

matters. This document constitutes the parties’ report. The parties propose to file another joint

status report on or before October 4, 2017, advising the Court of the progress they have made, if

any, in resolving the issues identified in this report.

DISCUSSION

Plaintiff seeks an order in this action requiring DHS and U.S. Customs and Border

Protection (CBP), a component of DHS, to comply with a multi-item request under the Freedom

of Information Act (FOIA), 5 U.S.C. § 552, for

(1) records created on or after January 24, 2017 related to CBP’s search, review, retention, and dissemination of information located on or accessed through electronic devices in the possession of individuals who are encountered by CBP at the border, functional equivalent of the border, or extended border; and (2) records created on or after February 27 2017 that pertain to Executive Order II and are otherwise responsive to the first request.

Case 1:17-cv-00813-TSC Document 18 Filed 08/04/17 Page 2 of 11
ECF No. 1 ¶ 13. DHS and CBP have represented that Plaintiff’s request presents them with a
number of issues, identified below. At this time, the parties have not had sufficient opportunity to
confer for Plaintiff to have sufficient information to accept or object to the issues alleged by
DHS and CBP. The parties are prepared to work with one another to try to resolve those issues
in a manner that provides Plaintiff with responsive records without subjecting DHS and CBP to
undue burden.
A. DHS’S ALLEGED ISSUES PERTAINING TO THIS CASE AND RELATED CASE Plaintiff denominated this action at the time of its commencement as an action related to
Knight First Amendment Institute at Columbia University v. DHS, No. 1:17-cv-00548-TSC
(D.D.C.). ECF No. 3. The plaintiff in Knight seeks an order requiring DHS, CBP, and U.S.
Immigration and Customs Enforcement (ICE), another component of DHS, to comply with a
multi-item FOIA request for “records concerning suspicionless searches of individuals’
electronic devices at the nation’s borders.” Knight, ECF No. 10-1 at 1. DHS has completed its searches for records responsive to the request in Knight.1 DHS
believes that the records it has identified as responsive to the request in Knight include the
1 The searches that DHS has completed in Knight cover Items 1, 3, 4, and 5 of the request in that case. Those items seek:
(1) Any document containing statistical information concerning the search, detention, retention, or sharing of electronic devices or information of individuals at the border (or functional equivalent of the border) since FY2012 including, but not limited to, documents reflecting: (a) the number of travelers whose electronic devices or information were searched, detained, retained, or shared; (b) the number or portion of those travelers who are U.S. citizens; (c) the number or portion of those travelers who are lawful permanent residents or green card holders; (d) the number or portion of those travelers by country of origin; (e) the number or portion of those travelers by gender, race, ethnicity, nationality, and/or country of birth; (f) the number or portion of those travelers by port of entry; and (g) the number or portion of those travelers by watchlist, lookout, and/or other selectee status.
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records that Plaintiff seeks from DHS in this case. DHS thus believes that compliance with the
request in this case does not require any searching beyond the searches it has completed in
Knight. At this time, DHS has not indicated the number of documents responsive to Plaintiff’s
request or the anticipated date of release of documents by DHS to Plaintiff.
DHS has represented that its searches in Knight have identified more than 70,000 pages
of responsive records. It further represents that resource constraints with respect to FOIA
requests limit the ability of DHS to process more than 500 pages per month per request or group
of related requests, i.e., to review more than 500 pages per month to determine which portions, if
any, are exempt from release. DHS has thus represented that it will be unable to comply with the
request in Knight and the request in this case without tying up its processing resources for years.
. . . .
(3) Revisions of or documents supplementing or superseding: (a) CBP Directive No. 3340-049, Border Search of Electronic Devices Containing Information (Aug. 20, 2009); or (b) ICE Directive No. 7-6.1, Border Searches of Electronic Devices (Aug. 18, 2009).
(4) The following documents relating to any review of CBP’s or ICE’s polices or practices concerning electronic device searches: (a) any audits, impact assessments, or other reviews of CBP’s or ICE’s policies or practices concerning electronic device searches, including any such reports by the Office for Civil Rights and Civil Liberties, DHS’s OIG, and CBP’s Office of Internal Affairs, Management Inspection Division; (b) any policies, practices, procedures, and/or training materials adopted as a result of any audits, impact assessments, or other reviews of how CBP and ICE conduct electronic device searches; and (c) any documents reflecting annual or semi-annual examinations by CBP or ICE of electronic device searches by port of entry, as adopted in response to the 2011 Impact Assessment.
(5) Documents, including tear sheets and TRIP records, containing or relating to complaints filed by individuals or organizations about CBP’s and/or ICE’s search, review, retention or sharing of the information on travelers’ electronic devices.
Knight, ECF No. 10-1 at 4-6.
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DHS therefore proposes that the parties engage in discussions in Knight and in this case in order to try to narrow substantially the requests in the two cases insofar as they apply to DHS.
Plaintiff disputes DHS’s contention that it is only able to process 500 pages per month per request or group of related requests. Indeed, the same contention was recently rejected in a different case in this court with respect to the FBI’s ability to process records requested through FOIA. See Seavey v. Dep’t of Justice, Case No. 15-1303, ECF No. 67 (D.D.C. July 20, 2017).
Further, although Plaintiff agrees that the request it submitted is, as a general matter, more limited in scope than the request submitted in Knight, Plaintiff does not believe that the topics of its request are completely subsumed within the Knight request. At this time, the parties have not had sufficient opportunity for discussion that would allow Plaintiff to confirm whether documents exist that are responsive to its request but not responsive to the Knight request. Plaintiff believes that DHS’s production in response to its request should be separately identified from production of documents responsive to the Knight request. Plaintiff also believes that Defendant should not delay production in response to its request simply because it must also respond to the Knight request.
The parties are prepared to work together to attempt to resolve these issues and to come up with a schedule for the production of documents responsive to Plaintiff’s request.
B. CBP’S ALLEGED ISSUES CBP represents that it has completed its search for records responsive to the request in this case, except as stated below. Six responsive records comprising 17 pages have been located. The parties have not yet had an opportunity to discuss the specific searches that were conducted to obtain these documents. Plaintiff wishes to confer regarding such searches to determine whether they were adequate in light of Plaintiff’s request.
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The records for which CBP has not conducted searches consist of the following: 1. CBP has not conducted a search for records responsive to Item 2 of the request in this case because CBP considers Item 2 to be duplicative of Item 1.2 Plaintiff states that Item 2 is intended to ensure that the topics provided in Item 1 are not limited in scope to those pertaining to the January 27, 2017 Executive Order, but, rather, also include documents related to the March 6, 2017 Executive Order. Provided that CBP’s search for Item 1 would not exclude any documents pertaining to the March 6, 2017 Executive Order, Plaintiff would be comfortable with CBP’s decision not to conduct a separate search. The parties will confer to ensure that they are in agreement and will attempt to work out any concerns. 2. CBP has not conducted a search for records responsive to Item 1(o) of the request in this case because CBP represents that records regarding complaints are not maintained in a manner that permits a search to be conducted for records specifically involving electronic device searches.3 At this time, Plaintiff has not received sufficient information from CBP to evaluate CBP’s representation. However, Plaintiff agrees to confer with CBP on this issue and, if appropriate, determine whether there is an alternative means of searching for this information that would satisfy Plaintiff’s request. 3. CBP has not conducted a search for records responsive to Item 1(p) of the request in this case because CBP believes that compliance with Item 1(p) would require CBP to conduct a search of the emails of tens of thousands of CBP employees for emails containing any of 10
2 Item 2 seeks: “Any and all records created on or after February 27, 2017 that pertain to Executive Order II [defined in the request letter as the March 6, 2017 Executive Order] and are otherwise responsive to Request 1 above.” ECF No. 1-1 at 5. 3 Item 1(o) seeks: “Records regarding complaints filed on or after January 27, 2017 by individuals or organizations affected by CBP’s policies or practices related to the search, review, retention, or dissemination of travelers’ information.” ECF No. 1-1 at 5.
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common terms and would also require CBP to process and produce the emails it identifies regardless of whether they have anything to do with “CBP’s search, review, retention, and dissemination of information located on or accessed through electronic devices in the possession of individuals who are encountered by CBP at the border, functional equivalent of the border, or extended border,” the ostensible subject of Plaintiff’s interest in this case. 4 ECF No. 1 ¶ 13. CBP does not wish to conduct a resource-prohibitive search and processing of records that will result in the production of records well beyond the subject matter of Plaintiff’s stated interest in this case. It therefore urges Plaintiff to narrow substantially the list of terms and the definition of individuals to be searched under Item 1(p).
Plaintiff has not received any indication from Defendant regarding the number of CBP documents that would be responsive to Plaintiff’s request 1(p). In the event that the search leads to a burdensome number of documents, Plaintiff is amenable to finding ways to narrow the terms or personnel covered by the search in a manner that will satisfy Plaintiff’s request.
4. CBP has not conducted a search for records responsive to Items 1(k), (m), or (n) of the request in this case because Items 1(k), (m), and (n) may be read as seeking the individual incident-level reports for each electronic-device search conducted by CBP since January 27, 2017.5 CBP represents that more than 14,000 such reports exist. CBP does not believe that it
4 Item 1(p) seeks: “E-mail communications among, between, or cc’ing CBP personnel at Headquarters, Office of Field Operations and/or Office of Intelligence, sent or received on or after January 24, 2017 containing any of the following words or terms: ‘electronic device,’ ‘smartphone,’ ‘tablet,’ ‘laptop,’ ‘password,’ ‘e-mail account,’ ‘social media,’ ‘facebook,’ ‘twitter,’ and ‘cloud.’” ECF No. 1-1 at 5. 5 Items 1(k), (m), and (n) seek:
(k) Records reflecting the race, ethnicity, country of origin, citizenship, and gender of individuals who have had the information stored on or accessed through their electronic devices searched, reviewed, retained, and/or disseminated on or after January 27, 2017.
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reasonably can be required to locate and process all of those reports. At this time, Plaintiff does not have sufficient information from CBP that would allow it to evaluate this representation. However, Plaintiff is willing to confer with CBP about whether this portion of the request may pose an undue burden.
CBP believes that a similar issue exists in Knight, though even greater in magnitude. Item 2(b) of the request in Knight seeks the individual incident-level reports for each electronicdevice search conducted by CBP since October 1, 2011.6 CBP has responded in view of the tens of thousands of reports potentially responsive to Item 2(b) by providing the plaintiff in Knight with a sample of responsive reports. See Knight, ECF No. 21 at 4. CBP has provided the sample of responsive reports to the plaintiff in Knight in the hope that the parties can agree on a volume
. . . . (m) Records regarding the retention of electronic devices, or information accessed from or through electronic devices, by CBP on or after January 27, 2017, including the number of documents or electronic devices, retained, the length of retention, the reasons for retention, and the ultimate disposition of retained material. (n) Records regarding the dissemination of electronic devices, or information accessed from or through electronic devices, to other components of DHS, other government agencies, or persons or entities outside the government on or after January 27, 2017. ECF No. 1-1 at 5.
6 Item 2(b) seeks:
Documents relating to each instance since FY2012 in which CBP or ICE searched, detained, retained, or shared an electronic device or the information accessible on it, including, but not limited to . . . all information contained in the TECS system used to record and track electronic device searches, detentions, retentions, and/or sharings. Knight, ECF No. 10-1 at 2.
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of reports that would be reasonable for CBP to identify and process. Preliminary discussions have taken place. CBP has not provided Plaintiff in this case with any sample of responsive reports. CBP urges Plaintiff in this case to join those discussions.
Plaintiff does not have sufficient information to determine whether there are documents other than individual incident reports that would be responsive to requests in 1(k), (m), and (n), and is willing to confer with Defendant to determine whether other such records exist. With respect to individual incident reports, Plaintiff is amenable to discussions regarding how to narrow the number of documents produced and is also amenable to joining the discussions with the Parties in Knight regarding that topic.
C. OTHER MATTERS Unresolved issues will be resolved in this case by motion for summary judgment or other appropriate motion but it is too early to say what motion or motions will be necessary or when they will be filed. DHS does not intend at this time to move for an Open America stay, either on its own behalf or on behalf of CBP. The parties will discuss whether a Vaughn index will be required.
CONCLUSION The parties propose, as stated above, to file another joint status report on or before October 4, 2107, advising the Court of the progress made, if any, toward resolving the issues identified in this report.
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Respectfully submitted,
By: s/ Kelly M. Morrison (by email authorization) Joshua M. Parker, DC Bar 1019515 Emily Chapuis, DC Bar 1017600 Kelly M. Morrison, DC Bar 1046293 JENNER & BLOCK LLP 1099 New York Avenue, N.W., Suite 900 Washington, D.C. 20001 Tel: (202) 637-6380/Fax (202) 639-6066 Email: jparker@jenner.com
Jonathan Smith, DC Bar 1029373 Juvaria Khan, Pro Hac Vice MUSLIM ADVOCATES P.O. Box 71080 Oakland, California 94612 Tel: (415) 692-1484
Sirine Shebaya, DC Bar 1019748 MUSLIM ADVOCATES P.O. Box 66408 Washington, D.C. 20035 Tel: (202) 656-4788
Amir Ali, DC Bar 1019681 THE RODERICK & SOLANGE MACARTHUR JUSTICE CENTER 718 7th Street, N.W. Washington, D.C. 20001 Tel: (202) 869-3434 Attorneys for Plaintiff
CHAD A. READLER Acting Assistant Attorney General
CHANNING D. PHILIPS United States Attorney
ELIZABETH J. SHAPIRO Deputy Director
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Dated: August 4, 2017

s/ David M. Glass DAVID M. GLASS, DC Bar 544549 Senior Trial Counsel Department of Justice, Civil Division 20 Massachusetts Ave., N.W., Room 7200 Washington, D.C. 20529 Tel: (202) 514-4469/Fax: (202) 616-8470 E-mail: david.glass@usdoj.gov Attorneys for Defendant

CERTIFICATE OF SERVICE I hereby certify that on August 4, 2017, I served the within report and proposed order on all counsel of record by filing them with the Court by means of its ECF system.
s/ David M. Glass

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

KNIGHT FIRST AMENDMENT INSTITUTE )

AT COLUMBIA UNIVERSITY,

)

)

Plaintiff, )

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY, et al.,

)

)

Defendants. )

____________________________________

)

No. 1:17-cv-00548-TSC

[PROPOSED] ORDER

It is hereby ordered in view of the joint status report dated August 4, 2017, that the

parties shall file another joint status report not later than October 4, 2017 advising the Court of

the progress made, if any, toward resolving the issues identified in that report.

Dated:

UNITED STATES DISTRICT JUDGE

 
 Case 1:17-cv-00813-TSC Document 20 Filed 10/06/17 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

MUSLIM ADVOCATES,

)

)

Plaintiff, )

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY,

)

)

Defendant. )

____________________________________

)

No. 1:17-cv-00813-TSC

SECOND JOINT STATUS REPORT

INTRODUCTION

Plaintiff Muslim Advocates seeks to compel compliance in this action with Plaintiffs’

request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. ECF No. 1, Prayer ¶ C.

Plaintiff’s request seeks 16 categories of records, maintained by Defendant Department of

Homeland Security (DHS) and its component, U.S. Customs and Border Protection (CBP), that

were “created on or after January 24, 2017 [and are] related to CBP’s search, review, retention,

and dissemination of information located on or accessed through electronic devices in the

possession of individuals who are encountered by CBP at the border, functional equivalent of the

border, or extended border.” Id. ¶ 13; see ECF No. 1-1 at 2-5. Plaintiff’s request also seeks

“records created on or after February 27, 2017 that pertain to [Executive Order No. 13780 of

March 6, 2017] and are otherwise responsive to the first request.” ECF No. 1 ¶ 13.

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The parties were directed by minute order dated August 7, 2017, to “file another joint status report by October 4, 2017 advising the Court of the progress made, if any, toward resolving the issues relating to Plaintiff’s FOIA request.” This document constitutes the parties’ report. Plaintiff’s views and those of CBP and DHS are set forth separately. Plaintiff is concerned about the lack of progress and continuing disputes between the parties, and proposes that the parties be directed to file another joint status report on or before October 31, 2017. DHS proposes on behalf of itself and CBP that the parties be directed to file another joint status report on or before November 20, 2017, 45 days from the date of this report, and at subsequent intervals of 45 days.
DISCUSSION I. PLAINTIFF’S VIEWS
A. Preliminary Issue Regarding The Government’s Obligation To Respond To Plaintiff’s FOIA Requests.
Plaintiff believes a significant, preliminary issue in the parties’ discussions to date has been the Government’s unwillingness to confirm that it will honor and carry out the search queries that the parties have negotiated. Since the start of this litigation, the Government has represented that it is in the process of negotiating FOIA requests submitted by a third party, the Knight Institute (“Knight”), and has refused to honor Plaintiffs’ repeated request to proceed under the terms of Plaintiffs’ own FOIA request, and not a third party’s. Instead, the Government repeatedly states that it will respond to Plaintiff’s FOIA requests only insofar as those requests are subsumed by terms agreed to by the third party, Knight.
Plaintiff has repeatedly informed the Government that Plaintiff submitted distinct FOIA requests, which are different in temporal terms—Plaintiff’s requests cover only a span of months, as opposed to several years—and in the categories of documents sought. Plaintiff’s
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position is that the government should come to the table to negotiate and commit to mutually agreeable terms that satisfy Plaintiffs’ FOIA requests, and not a third party’s. Plaintiff is not aware of any authority that allows Defendants to respond to a FOIA request only insofar as the request is subsumed by or acceptable to third parties who have submitted separate requests that are not the subject of Plaintiff’s negotiations with Defendants.
Notwithstanding Plaintiff’s concerns, the Government’s position has been that (1) DHS will not conduct any searches agreed to with Plaintiff until it has conducted searches agreed to with the third-party Knight Institute; and (2) even the search terms it is presently negotiating with Plaintiff (discussed further below) are contingent upon being accepted by the third-party Knight Institute. The Government previously indicated that the searches it has agreed to with Knight (and which it asserts would be reviewed before any searches agreed to with Plaintiff) may take years to complete. ECF No. 18 at 3. In the meantime, Plaintiff would receive documents only insofar as they happen to be subsumed by search queries that were created without Plaintiff’s involvement and without specific regard to Plaintiff’s request.
Plaintiff believes it is unreasonable for the government to refuse to conduct any search queries targeted to Plaintiff’s requests until the government completes the Knight searches, which will be both under- and over-inclusive of Plaintiff’s requests. Plaintiff has also indicated to the Government that it frustrates the parties’ discussions to suggest that the terms being negotiated may be withdrawn subject to a third party’s discretion. Plaintiff has sought confirmation from the Government that it will honor the terms agreed to by the parties, Muslim Advocates and the Government. To date, the Government has not provided such confirmation.
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B. Status Of Discussions Specific To MA’s FOIA Requests
i. Items (a)-(o)
In the parties’ prior JSR, the government represented for the first time that CBP had
conducted searches for Items (a)-(j), and (l)1 of Plaintiff’s FOIA requests. ECF No. 18 at 4.
Because this search was conducted without any consultation with Plaintiff, on August 11, 2017,
Plaintiff sought further information as to how this search was conducted. On August 18, 2017,
CBP indicated that these documents were located by consulting potentially a single custodian in
CBP’s Office of Field Operations that is in charge of nationwide policies. CBP later produced a
link to a two-page public document and 15 pages, all of which are redacted and several of which
are redacted in their entirety. Plaintiff does not believe the Government’s limited inquiry or the
documents produced are sufficient to satisfy Plaintiff’s Items (a)-(j) and (l), because of, among
1 Items 1(a)-(j), and (l) call for the production of “[r]ecords related to CBP's implementation of Executive Order I with respect to CBP's search, review, retention, and dissemination of information located on or accessed through electronic devices”; “[r]ecords reflecting revisions of, or documents superseding, the August 25, 2009 ‘Privacy Impact Assessment for the Border Searches of Electronic Devices’ and CBP Directive CD 3340-049, ‘Border Search of Documents and Electronic Devices Containing Information’ (August 20, 2009)”; “[p]olicies, practices, and procedures that went into effect on or after January 24, 2017 regarding criteria for selecting individual travelers whose electronic information will be searched, reviewed, or retained, or will be disseminated”; “[p]olicies, practices, and procedures that went into effect on or after January 24, 2017 regarding search, review, retention, or dissemination of information located on or accessed through electronic devices”; “[p]olicies, practices, and procedures that went into effect on or after January 24, 2017 on the questioning of travelers targeted for search of electronic devices, including policies, practices, and procedures”; “[p]olicies, practices, and procedures that went into effect on or after January 24, 2017 on the information given to travelers targeted for electronic-device search regarding CBP's authority to search, review, retain, and disseminate information stored on or accessed through electronic devices”; “[d]ocuments . . . given on or after January 27, 2017 to travelers targeted for electronic-device search regarding CBP's authority to search, review, retain, and disseminate information stored on or accessed through electronic devices, travelers' rights to refuse to consent to such CBP actions, travelers' rights to access legal counsel before consenting to such CBP actions, travelers' rights to limit the scope of their consent, . . . and CBP's authority to continue to detain travelers if they deny CBP access”; “[p]olicies, practices, and procedures that went into effect on or after January 24, 2017 regarding requesting travelers' passwords to their email accounts, social media accounts, cloud accounts, and other internet-based accounts”; “[p]olicies, practices, and procedures that went into effect on or after January 24, 2017 regarding providing travelers targeted for electronic-device search access to interpreters, including policies, practices, and procedures regarding the information given to such travelers regarding their rights to access interpreters”; [r]ecords reflecting the number of individuals who have had the information stored on or accessed through their electronic devices searched, reviewed, retained, and/or disseminated on or after January 27, 2017”; “[r]ecords reflecting the number of foreign nationals denied entry into the United States by CBP for refusing to consent to CBP search, review, retention, and/or dissemination of their electronic devices and/or information stored on or accessed through their electronic devices.”
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other things, the absence of any electronic search by CBP of documents that may be responsive. Plaintiff proposes that the same electronic search query it has proposed that DHS conduct for Items (a) to (o), discussed below, be conducted by CBP.
In the prior JSR, the government represented that CBP had not conducted a search for Items (k), (m) or (n) because they may require a search of incident-level reports, of which 14,000 exist.2 ECF No. 18 at 6-7. Plaintiff is willing to negotiate a resolution that allows CBP to satisfy Items (k), (m) and (n).
In the prior JSR, the Government represented that CBP cannot conduct a search for Item (o) because “records regarding complaints are not maintained in a manner that permits a search to be conducted for records specifically involving electronic device searches.” 3 ECF No. 18 at 5. On October 4, 2017, CBP first advised Plaintiff that CBP does have the ability to conduct a search of its own for records responsive to that item, using single-term searches to search its complaint management system. The Government advised that it had already negotiated and reached agreement to search terms for the complaint management system with Knight, and proposed that Plaintiff accept those search terms. Plaintiff has informed the Government that the search terms created for Knight’s request are unlikely to satisfy Plaintiff’s Item 1(o), and sent additional inquiries to the Government to determine the scope of documents retained in the
2 Items 1(k), (m), and (n) call for the production “[r]ecords reflecting the race, ethnicity, country of origin, citizenship, and gender of individuals who have had the information stored on or accessed through their electronic devices searched, reviewed, retained, and/or disseminated on or after January 27, 2017”; “[r]ecords regarding the retention of electronic devices, or information accessed from or through electronic devices, by CBP on or after January 27, 2017, including the number of documents or electronic devices retained, the length of retention, the reasons for retention, and the ultimate disposition of retained material”; and “[r]ecords regarding the dissemination of electronic devices, or information accessed from or through electronic devices, to other components of DHS, other government agencies, or persons or entities outside the government on or after January 27, 2017.” ECF No. 11 at 5. 3 Item 1(o) calls for “[r]ecords regarding complaints filed on or after January 27, 2017 by individuals or organizations affected by CBP’s policies or practices related to the search, review, retention, or dissemination of travelers’ information.” ECF No. 1-1 at 5.
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complaint management system. Upon obtaining the requested information, Plaintiff proposes to discuss single-term searches of the complaint management system that would be compliant with Item 1(o).
With respect to DHS, the parties have been discussing an electronic search string that would satisfy Items (a)-(o). In the parties’ most recent discussions, DHS proposed the following search string:
[(“search*” or “review*” or “request*” or “collect*” or “seiz*” or “retention” or “retain*” or “duplic*” or “copy”) and (“electronic device” or “smartphone” or “tablet” or “laptop” or “password” or “e-mail account” or “social media” or “facebook” or “twitter” or “cloud”)]. DHS also proposed that it only produce documents after reviewing them and determining that they are “records dealing with the government’s search, review, retention, or sharing of information on travelers’ electronic devices.” Plaintiff has agreed to allow DHS to review and limit documents produced in response to Items 1(a)-(o) to those related to CBP’s search, review, retention, and dissemination of information located on or accessed through electronic devices in the possession of individuals who are encountered by CBP at the border, functional equivalent of the border, or extended border. Moreover, Plaintiff agreed to narrow its proposed search query using the additional terms proposed by the Government, but proposed that the second clause of the query include the following terms to be more comprehensive: “device*” or “laptop*” or “mobile” or “cellular phone” or “cell phone” or “cellphone” or “cell-phone” or “iPhone” or “I phone” or “i-phone” or “tablet” or “i-pad” or “iPad” or “I pad” OR “jump drive” or “thumb drive” or “smartphone” or “smart phone” or “hard drive” or “external drive” or “sd-card” or “Sd card.” DHS has not indicated whether it accepts the counter proposal above. As indicated previously, DHS continues to take the position that even if it agrees to this search, it will not be
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conducted (1) until it completes review of the Knight searches it created without Plaintiff’s
involvement; and (2) unless the third-party Knight Institute also accepts the above search.
Plaintiff believes that DHS’s insistence that it will not run searches targeted to Plaintiff’s
requests until it completes a third-party’s request, and its conditioning of the instant case parties’
negotiations as to Plaintiff’s requests on acceptance by a third party, are unreasonable and have
greatly frustrated the parties’ negotiations.
On October 4, 2017, DHS has advised Plaintiff that it is unlikely to have records responsive to Items 1(j)-(n)4 of Plaintiff’s request and that it thus will defer to CBP for those
portions of the request. DHS also advised that its Office for Civil Rights and Civil Liberties has
conducted a separate search of its complaint system for records responsive to Item 1(o) of Plaintiff’s request. 5 At this time, Plaintiff lacks information to determine whether DHS is likely
to have records responsive to Items 1(j)-(n) and (p), and is willing to discuss a separate search by
the Office of Civil Rights and Civil Liberties to ensure that it is adequate as a response to Item
1(o).
4 Items 1(j)-(n) call for the production of “[r]ecords relating to the number of individuals who have had the information stored on or accessed through their electronic devices searched, reviewed, retained and/or disseminated on or after January 27, 2017”; “[r]ecords reflecting the race, ethnicity, country of origin, citizenship, and gender of individuals who have had the information stored on or accessed through their electronic devices searched, reviewed, retained, and/or disseminated on or after January 27, 2017”; “[r]ecords reflecting the number of foreign nationals denied entry into the United States by CBP for refusing to consent to CBP search, review, retention, and/or dissemination of their electronic devices and/or information stored on or accessed through their electronic devices”; “[r]ecords regarding the retention of electronic devices, or information accessed from or through electronic devices, by CBP on or after January 27, 2017, including the number of documents or electronic devices, retained, the length of retention, the reasons for retention, and the ultimate disposition of retained material”; and “[r]ecords regarding the dissemination of electronic devices, or information accessed from or through electronic devices, to other components of DHS, other government agencies, or persons or entities outside the government on or after January 27, 2017.” ECF No. 1-1 at 5. 5 Item 1(o) calls for the production of “[r]ecords regarding complaints filed on or after January 27, 2017 by individuals or organizations affected by CBP’s policies or practices related to the search, review, retention, or dissemination of travelers’ information.” ECF No. 1-1 at 5.
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ii. Item (p) Item 1(p) calls for the production of “[e]-mail communications among, between, or cc’ing CBP personnel at Headquarters, Office of Field Operations, and/or Office of Intelligence, sent or received on or after January 24, 2017 containing any of the following words or terms: ‘electronic device,’ ‘smartphone,’ ‘tablet,’ ‘laptop,’ ‘password,’ ‘e-mail account,’ ‘social media,’ ‘facebook,’ ‘twitter,’ and ‘cloud.’” ECF No. 1-1 at 5. In the parties’ first joint status report, the Government expressed concern that compliance with Item 1(p) would require CBP to conduct “a resource-prohibitive search and processing of records that [would] result in the production of records well beyond the subject matter of Plaintiff’s stated interest in this case.” ECF No. 18 at 6. Despite Plaintiff’s request, the Government has not indicated the number of documents that would be returned by Plaintiff’s proposed search query or any other basis that led it to conclude the search would be “resourceprohibitive.” Plaintiff nonetheless expressed its “amenab[ility] to finding ways to narrow the terms or personnel covered by the search in a manner that will satisfy Plaintiff’s request.” Id. Based on the Government’s representation that the search query proposed by Plaintiff in Item 1(p) would be too burdensome, the parties have been exchanging proposals for a replacement search query. The Government proposed that Item 1(p) be narrowed by adding an additional clause that requires the presence of the following terms, in addition to the ones that were in Plaintiff’s original request: (“search*” or “review*” or “request*” or “collect*” or “seiz*” or “retention” or “retain*” or “duplic*” or “copy”). The Government further proposed that it would produce all non-exempt portions of any record identified through the above search
8

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that deals with CBP’s search, review, retention, or sharing of information on travelers’ electronic devices.
Plaintiff has agreed to allow CBP to review and limit documents produced in response to Items 1(a)-(o) to those related to CBP’s search, review, retention, and dissemination of information located on or accessed through electronic devices in the possession of individuals who are encountered by CBP at the border, functional equivalent of the border, or extended border. Moreover, based on the government’s representation that 1(p) would be too onerous as originally drafted, Plaintiff indicated it was willing to narrow 1(p) by adding the additional clause proposed by the Government. In order to ensure that the effect of the Government’s proposed additional clause did not unduly sacrifice documents that would have otherwise been captured in its original request, however, Plaintiff proposed that the list of electronic-devicerelated terms be modified to include: “device*” or “laptop*” or “mobile” or “cellular phone” or “cell phone” or “cellphone” or “cell-phone” or “iPhone” or “I phone” or “i-phone” or “tablet” or “i-pad” or “iPad” or “I pad” OR “jump drive” or “thumb drive” or “smartphone” or “smart phone” or “hard drive” or “external drive” or “sd-card” or “Sd card.”
The Government now takes the position that Plaintiff is asking CBP to use search terms in conducting its search that go beyond the search terms listed in Item 1(p). Plaintiff believes that negotiating in the abstract has frustrated the parties’ discussions: When Plaintiff has accepted the Government’s additional clauses that appear to substantially narrow its original proposed query, and counter-proposed modest additional terms, the Government has rejected the counterproposal on the basis that the new terms are not within the original FOIA requests. In order to make the parties’ discussions more productive, Plaintiff requests that the Government provide
9

Case 1:17-cv-00813-TSC Document 20 Filed 10/06/17 Page 10 of 14
information regarding the number of records that would be returned with the original Item 1(p), as well as the proposed modified searches above.
As indicated above, the Government has asserted that it will honor any terms agreed to with respect to 1(p) only insofar as these are also accepted by the third-party Knight Institute. Plaintiff believes that conditioning the parties’ negotiations as to Plaintiff’s requests on acceptance by a third party is unreasonable and has greatly and repeatedly frustrated the parties’ negotiations. II. THE VIEWS OF CBP AND DHS
The following issues exist in this case, from the standpoint of CBP and DHS6: 1. DHS represented in the first joint status report on behalf of CBP that compliance with Item 1(p) of plaintiff’s request would require CBP to conduct “a resource-prohibitive search and processing of records that [would] result in the production of records well beyond the subject matter of Plaintiff’s stated interest in this case.” ECF No. 18 at 6. The parties have been exchanging proposals since the filing of the first joint status report in an attempt to reach agreement on the scope of CBP’s obligation under Item 1(p). CBP cannot agree to plaintiff’s most recent proposal because the proposal asks CBP to use search terms in conducting its search that go beyond the search terms listed in Item 1(p). CBP is prepared to continue discussions with plaintiff to try to reach agreement on the scope of its obligation under Item 1(p).7
6 CBP is a component of DHS, 6 U.S.C. § 211(a), but CBP and DHS maintain separate records and respond separately to FOIA requests. 7 7 Plaintiff advised CBP on October 5, 2017, that the scope of Item 1(p) was limited to records that contain those search terms to which the parties agree and are related to CBP’s search, review, retention, and dissemination of information located on or accessed through electronic devices in the possession of individuals who are encountered by CBP at the border, functional equivalent of the border, or extended border. Plaintiff’s so advising CBP facilitates the efforts of the parties to reach agreement with respect to Item 1(p).
10

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2. DHS represented in the first joint status report on behalf of CBP that CBP could not conduct a search for records responsive to Item 1(o) of plaintiff’s request because records regarding complaints were not maintained by CBP in a manner that permitted a search to be conducted for records specifically involving electronic device searches. ECF No. 18 at 5. Upon further examination undertaken in Knight First Amendment Institute at Columbia University v. DHS, No. 1:17-cv-00548-TSC (D.D.C.), a case related to this one, CBP determined subsequently that it could use single-term searches to search its complaint management system. Because of oversight, it did not so advise plaintiff until October 4, 2017.
The parties have begun discussions to determine the scope of CBP’s obligation under Item 1(o). CBP is prepared to continue those discussions. CBP has never insisted that any agreement that the parties reach with respect to the obligation of CBP under Item 1(o) be contingent upon its acceptance by the plaintiff in Knight.
3. DHS represented in the first joint status report on behalf of CBP that CBP had completed its search for records responsive to Items 1(a)-(j) and (l) of plaintiff’s request and located six responsive records comprising 17 pages. ECF No. 18 at 4. Plaintiff did not advise CBP until October 5, 2017, that it questioned the adequacy of CBP’s search. Plaintiff has proposed that CBP conduct an additional search. CBP will consider plaintiff’s proposal.
4. DHS represented in the first joint status report on behalf of CBP that CBP had not conducted a search for records responsive to Items 1(k), (m), and (n) of plaintiff’s request because Items 1(k), (m), and (n) could be read as seeking the individual incident-level reports for each electronic-device search conducted by CBP since January 27, 2017, and because more than 14,000 of those reports existed as of the date of the first joint status report. ECF No. 18 at 6.
11

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Plaintiff proposes to conduct discussions with respect to the obligation of CBP under Items 1(k), (m), and (n). CBP is prepared to engage in such discussions.
5. DHS expressed the view in the first joint status report that “[its] compliance with the request in this case [did] not require any searching beyond the searches it [had] completed in Knight.” ECF No. 18 at 3. The parties have been exchanging proposals on this topic since the filing of the first joint status report but have been unable to reach agreement about the need for or scope of further searches at this time. DHS advises that it is unlikely to have records responsive to Items 1(j)-(n) and (p) of plaintiffs’ request and that it thus will defer to CBP for those portions of the request. DHS also advises that its Office for Civil Rights and Civil Liberties has conducted a separate search of its complaint system for records responsive to Item 1(o) of plaintiff’s request. DHS further advises that the search it conducted consisted of two separate searches, one using the search string
(“searching” or “reviewing” or “collection” or “seizure” or “sharing” or “retention”) and (“electronic devices” or “communication devices” or “laptop” or “Cellphone” or “i-phone” or Tablet” or “I-pad” or “sd-card” or “Jump drive” or external drive”) and (“border” or “point of entry”) and one using the search string “CBP Directive 3340-049” or “ICE Directive 7-6.1” or “Border Search of Electronic Devices Containing Information” or “Border Searches of Electronic Devices.” The search that DHS conducted thus was not limited to any specific item within the Knight request or the request in this case but instead was targeted towards retrieving potentially responsive records on matters within the contemplation of both requests, i.e., electronic bordersearching and the collection of material from electronic border searches broadly. DHS advises that the above search identified approximately 8,300 records, of which approximately 1,675 are
12

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dated January 24, 2017, and forward. Until DHS has an opportunity to fully review the results of
that search, it advises of its view that a request for additional searches as premature.
Respectfully submitted, By: s/ Amir H. Ali (by email authorization) Amir H. Ali, DC Bar 1019681 THE RODERICK & SOLANGE MACARTHUR JUSTICE CENTER 718 7th Street, N.W. Washington, D.C. 20001 Tel: (202) 869-3434
Joshua M. Parker, DC Bar 1019515 Kelly M. Morrison, DC Bar 1046293 JENNER & BLOCK LLP 1099 New York Avenue, N.W., Suite 900 Washington, D.C. 20001 Tel: (202) 637-6380/Fax (202) 639-6066 Email: jparker@jenner.com
Johnathan Smith, DC Bar 1029373 Sirine Shebaya, DC Bar 1019748 Juvaria Khan, Pro Hac Vice MUSLIM ADVOCATES P.O. Box 66408 Washington, D.C. 20035 Tel: (202) 656-4788 Attorneys for Plaintiff
CHAD A. READLER Acting Assistant Attorney General
JESSIE K. LIU United States Attorney
ELIZABETH J. SHAPIRO Deputy Director
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Case 1:17-cv-00813-TSC Document 20 Filed 10/06/17 Page 14 of 14

Dated: October 6, 2017

s/ David M. Glass DAVID M. GLASS, DC Bar 544549 Senior Trial Counsel Department of Justice, Civil Division 20 Massachusetts Ave., N.W., Room 7200 Washington, D.C. 20529 Tel: (202) 514-4469/Fax: (202) 616-8470 E-mail: david.glass@usdoj.gov Attorneys for Defendant

CERTIFICATE OF SERVICE I hereby certify that on October 6, 2017, I served the within report on all counsel of record by filing it with the Court by means of its ECF system.
s/ David M. Glass

14

 
 Case 1:17-cv-00813-TSC Document 23 Filed 11/03/17 Page 1 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

MUSLIM ADVOCATES,

)

)

Plaintiff, )

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY,

)

)

Defendant. )

____________________________________

)

No. 1:17-cv-00813-TSC

THIRD JOINT STATUS REPORT

INTRODUCTION

Plaintiff Muslim Advocates seeks compliance in this action with its March 7, 2017

request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, for records maintained by

defendant Department of Homeland Security (DHS) and by U.S. Customs and Border Protection

(CBP), a component of DHS. See ECF No. 1 ¶ 1. The records sought by plaintiff consist of 16

categories of records “created on or after January 24, 2017 related to CBP’s search, review,

retention, and dissemination of information located on or accessed through electronic devices in

the possession of individuals who are encountered by CBP at the border, functional equivalent of

the border, or extended border” and “records created on or after February 27, 2017 that pertain to

[Executive Order No. 13780 of March 6, 2017] and are otherwise responsive to the first request.”

Id. ¶ 13; see ECF No. 1-1 at 2-5.

The minute order dated October 12, 2017, directs the parties to “file another joint [status]

report by October 31, 2017, along with a proposed order moving forward with this case.” This

joint status report, the parties’ third, and alternative proposed orders are filed pursuant to that

Case 1:17-cv-00813-TSC Document 23 Filed 11/03/17 Page 2 of 11
order. Plaintiffs’ views and those of DHS and CBP are set forth separately. Plaintiff proposes that the Court order the government to complete its production to Plaintiff by December 15, 2017 and set a briefing schedule for summary judgment in accordance with the dates set forth in Plaintiff’s proposed order. DHS proposes that the parties file another joint status report on or before December 15, 2017, 42 days from the date of this report, and at subsequent intervals of 45 days.
DISCUSSION I. PLAINTIFF’S VIEWS
In the second joint status report, the Government made numerous representations that it would be willing to continue to negotiate terms that satisfy Plaintiff’s FOIA requests. ECF. No. 20, at 10-12. Since the filing of that report, Plaintiff has made numerous efforts to have such negotiations, but the Government has refused to discuss any of the outstanding issues that were raised in the report. The details of Plaintiff’s efforts and the Government’s unwillingness to engage in discussions are described below.
On October 12, 2017, the same day this Court ordered the parties to file another joint status report on October 31, 2017, Plaintiff sent an email to the Government containing eight inquires that had been raised in the parties’ report, and which the Government represented it would be willing to discuss. Among other questions, Plaintiff asked the Government:
• Whether the Government would honor the search terms that it agrees to with Plaintiff, independent of any third party approval (the Government had previously indicated to Plaintiff that any terms agreed upon by the parties would be contingent on approval by a third party to this litigation).
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• Whether the Government maintains the position that that any searches targeted to Plaintiff’s FOIA request would be “premature” because it is currently running searches it negotiated with a third party, devised without Plaintiff’s involvement.
• Whether the Government would run the search query Plaintiff proposed to the Government for Items 1(a) to (o) of Plaintiff’s requests, which was outlined for this Court in the second joint status report. ECF No. 20, at 4-5 (Oct. 6, 2017).
• With respect to Items 1(k), (m), or (n), whether it is possible to run an electronic search of the 14,000 incident-level reports the Government alleges exist, and whether there are any databases, systems, reports or internal policies that relate to the information sought in these Items.
• With respect to Item 1(o), whether CBP’s complaint management system contains documents regarding, but created by CBP prior to or in response to, a complaint.
• With respect to Item 1(p), in light of the Government’s refusal to agree to Plaintiff’s modification of the Government’s narrowed search query proposal, as described in detail in the second joint status report (ECF. No. 20, at 8-10), to specify the number of documents that would be returned by the original 1(p) query proposed by plaintiff as well as each of the modified searches proposed by the Government and Plaintiff. Plaintiff asked the Government to advise Plaintiff whether the government plans to so specify and, if so, when.
On October 13, 2017, the Government responded that it would “use [Plaintiff’s] questions as guidance in preparing a draft of [the Government’s] October status report.” The same day, Plaintiff proposed that parties instead “use the period between status reports to attempt to make progress on the outstanding issues” surrounding Plaintiff’s FOIA requests given the
3

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Government’s failure to (a) respond to several outstanding search proposals and (b) commit to actually conducting the searches Plaintiff and the government agree upon rather than conditioning the search queries on approval by a third party. Plaintiff further requested that the Government let Plaintiff if know if it changed its position, represented to Plaintiff and this Court, that it would be willing to engage in discussions concerning the issues raised in Plaintiff’s October 12, 2017 email.
That same day, October 13, the Government stated by phone that it would “make a proposal.”
The Government never made such a proposal. On October 17, 2017, the Government telephoned Plaintiff to clarify whether the capitalization of “OR” in the search terms proposed by Plaintiff on page 6 of the parties’ second joint status report was intended to have a different meaning from a lowercase “or.” Plaintiff responded the same day that it did not intend the capitalization of “or” to have any different meaning.
On October 24, 2017, Plaintiff emailed the Government to advise that Plaintiff had not yet received a response to any of the questions it had sent on October 12 and asked the Government to advise given that the present joint status report was due a week from that day. The Government answered that it “anticipat[ed] including the answers in our section of the next joint status report” and the “goal” was “to provide [Plaintiff] with [the Government’s] section of the next joint status report by COB” that Friday, October 27, two business days before the third joint status report was due.
The Government did not supply a draft status report on Friday, October 27. Instead, the Government indicated that it would send the Government’s section of the report on Monday, October 30, one day before the status report was due. Upon receiving that information,
4

Case 1:17-cv-00813-TSC Document 23 Filed 11/03/17 Page 5 of 11
Plaintiff’s counsel called Government counsel on Friday, October 27, and requested that the parties at least discuss the Government’s position on the outstanding issues between the parties and raised in Plaintiff’s October 12 email. The Government refused to engage in any discussion, stating that the Government’s views would be reflected in the draft status report it would be providing Plaintiff one day before the report was due to the Court.
The Government has, accordingly, engaged in no negotiations with Plaintiff after the filing of the parties’ second joint status report despite Plaintiff’s repeated efforts to discuss the outstanding issues raised in that report. Instead, as reflected in the Government’s section in this Report, the Government (1) never responds to Plaintiff’s inquiry whether it would even honor search terms negotiated by the parties; (2) simply reiterates its prior position that it would be premature to run any search queries agreed to by the parties until it completes its review of documents returned by a search agreed upon by the Government and a third party without Plaintiff’s involvement; (3) indicates to Plaintiff, for the first time, that “no proposal is currently under consideration,” suggesting that it has rejected, without any discussion, the search terms that Plaintiff proposed in its last email; and (4) continues to assert that certain search queries would be an “undue burden” without providing any indication of the basis for that assertion (such as the number of documents that would be returned).
The Government has refused to engage in negotiations with Plaintiff to facilitate the prompt search for and processing of responsive documents in this case, and the Government has apparently unilaterally abandoned the past six months of negotiations between the parties. In light of these facts and in light of the fact that nearly 8 months have passed since Plaintiff’s request; that, in response, the Government has only produced a link to a two-page public document and 15 pages of redacted documents, several of which were redacted in their entirety;
5

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and that the Government has not asked for an Open America stay, Plaintiff proposes that this Court order the Government to inform Plaintiff of the searches or search queries it has conducted or will be conducting no later than November 10, 2017, to complete the productions it intends to complete on its own accord by the deadline of December 15, 2017 and to produce a draft Vaughn index no later than December 22, 2017. Plaintiff further proposes that the Court order the summary judgment briefing schedule set forth in Plaintiff’s proposed order. II. THE VIEWS OF DHS AND CBP
DHS and CBP provide the following information in response to questions raised by plaintiff:
1. DHS confirms that it considers the search described in the second joint status report, ECF No. 20 at 12, to meet the requirements of this case and that it considers any request for additional searches to be premature until it has an opportunity to review fully the results of that search.
2. DHS confirms that the parties engaged in discussions about a proposal made by DHS on September 11, 2017, concerning the search in this case but that, as of this time, no proposal is currently under consideration.
3. DHS advises that the search conducted by the DHS Office for Civil Rights and Civil Liberties for records responsive to Item 1(o) of plaintiff’s request was a search within Entellitrak for complaint summaries containing the terms “electronics,” “phone,” “laptop,” or “computer.”
4. DHS advises that it is unlikely to have records responsive to Items 1(j)-(n) of plaintiffs’ request because it does not maintain databases of the information encompassed by
6

Case 1:17-cv-00813-TSC Document 23 Filed 11/03/17 Page 7 of 11
Items 1(j)-(n) and because records containing such information, if they exist, would be maintained by CBP.1
5. CBP advises that a search string proposed by plaintiff to identify records responsive to Items 1(a)-(o) of plaintiff’s request appears to assume either that records responsive to Items 1(a)-(o) are contained in a single, searchable database or that CBP may perform a complex electronic search across all databases in which records responsive to Items 1(a)-(o) are reasonably likely to reside; that neither of these assumptions is correct; and that CBP thus cannot use this search string without subjecting itself to undue burden.
6. CBP advises with respect to Items 1(k), (m), and (n) of plaintiff’s request that it is able to query the system that contains incident-level reports to identify reports that contain specific types of information in certain data fields. CBP further advises that the system does not have a search function that permits CBP to conduct general word searches.
7. CBP advises that the individual-incident reports that potentially are responsive to Items 1(k), (m), or (n) of plaintiff’s request are maintained in TECS; that TECS is described in the applicable System of Records Notice, 73 Fed. Reg. 77778 (Dec. 19, 2008); that information regarding border searches of electronic devices performed by CBP is contained in the applicable Privacy Impact Assessment, Border Searches of Electronic Devices (Aug. 25, 2009), available at https://www.dhs.gov/sites/ default/files/publications/privacy_pia_cbp_laptop.pdf; and that policies regarding border searches of electronic devices are contained in CBP Directive No.
1 The DHS Privacy Office handles FOIA requests directed to the following components of DHS: Office of the Secretary, Citizenship and Immigration Services Ombudsman, Domestic Nuclear Detection Office, Office of the Executive Secretary, Office of Intergovernmental Affairs, Management Directorate, Office of Policy, Office of the General Counsel, Office of Health Affairs, Office of Legislative Affairs, Officer of Public Affairs, and Privacy Office. See 6 C.F.R. Pt. 5, Subpt. A, App. 1. All other components of DHS, including CBP, handle FOIA requests separately.
7

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3340-049, Border Search of Electronic Devices Containing Information (Aug. 20, 2009), available at https://www.dhs.gov/ xlibrary/assets/cbp_directive_3340-049.pdf. CBP further advises that the records produced to plaintiff by CBP on September 14, 2017, also contain responsive reports and policies.
8. CBP advises that complaints responsive to Item 1(o) of plaintiff’s request are reasonably expected to be maintained in CBP’s centralized complaint system and that CBP is conducting a search of that system for responsive records. CBP further advises that it will consider whether any additional searches may be appropriate.
9. CBP advises that providing certain requested information concerning the number of hits generated through the use of alternative search strings to identify records responsive to Item 1(p) of plaintiffs’ request would require an estimated 4-6 weeks of search time and that it thus cannot obtain the requested information without subjecting its limited e-discovery resources to undue burden.
Respectfully submitted, By: s/ Amir H. Ali (by email authorization) Amir H. Ali, DC Bar 1019681 THE RODERICK & SOLANGE MACARTHUR JUSTICE CENTER 718 7th Street, N.W. Washington, D.C. 20001 Tel: (202) 869-3434 Joshua M. Parker, DC Bar 1019515 Kelly M. Morrison, DC Bar 1046293 JENNER & BLOCK LLP 1099 New York Avenue, N.W., Suite 900 Washington, D.C. 20001 Tel: (202) 637-6380/Fax (202) 639-6066 Email: jparker@jenner.com
8

Case 1:17-cv-00813-TSC Document 23 Filed 11/03/17 Page 9 of 11

Johnathan Smith, DC Bar 1029373 Sirine Shebaya, DC Bar 1019748 Juvaria Khan, Pro Hac Vice MUSLIM ADVOCATES P.O. Box 66408 Washington, D.C. 20035 Tel: (202) 656-4788 Attorneys for Plaintiff

Dated: November 3, 2017

CHAD A. READLER Acting Assistant Attorney General
JESSIE K. LIU United States Attorney
ELIZABETH J. SHAPIRO Deputy Director
s/ David M. Glass DAVID M. GLASS, DC Bar 544549 Senior Trial Counsel Department of Justice, Civil Division 20 Massachusetts Ave., N.W., Room 7200 Washington, D.C. 20529 Tel: (202) 514-4469/Fax: (202) 616-8470 E-mail: david.glass@usdoj.gov Attorneys for Defendant

CERTIFICATE OF SERVICE I hereby certify that on November 3, 2017, I served the within report on all counsel of record by filing it with the Court by means of its ECF system.
s/ David M. Glass

9

Case 1:17-cv-00813-TSC Document 23 Filed 11/03/17 Page 10 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

MUSLIM ADVOCATES,

)

)

Plaintiff, )

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY,

)

)

Defendant. )

____________________________________

)

No. 1:17-cv-00813-TSC

[PLAINTIFF’S PROPOSED] ORDER

It is hereby ordered in view of the joint status report dated November 3, 2017, that DHS

and CBP inform Plaintiff of the searches or search queries it has conducted or will be conducting

no later than November 10, 2017, complete its productions to Plaintiff no later than December

15, 2017, and shall produce a draft Vaughn Index no later than December 22, 2017. It is further

ordered that parties subsequently file cross-motions for summary judgment pursuant to below

briefing schedule:

• Defendant’s Motion for Summary Judgment shall be due on January 5, 2017;

• Plaintiff’s Cross-Motion for Summary Judgment and Opposition to Defendant’s Motion

shall be due on February 2, 2017; and

• Government’s Reply Brief shall be due on February 22, 2017.

Dated:

UNITED STATES DISTRICT JUDGE

10

Case 1:17-cv-00813-TSC Document 23 Filed 11/03/17 Page 11 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

MUSLIM ADVOCATES,

)

)

Plaintiff, )

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY,

)

)

Defendant. )

____________________________________

)

No. 1:17-cv-00813-TSC

[DEFENDANTS’ PROPOSED] ORDER

It is hereby ordered as follows in view of the joint status report dated November 3, 2017:

1. The parties shall file another joint status report on or before December 15, 2017,

advising the Court of the progress made, if any, toward resolving the unresolved issues in this

case.

2. The parties shall file additional joint status reports at subsequent intervals of 45 days.

Dated:

UNITED STATES DISTRICT JUDGE

11

 
 Case 1:17-cv-00813-TSC Document 26 Filed 01/29/18 Page 1 of 22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

MUSLIM ADVOCATES,

)

)

Plaintiff, )

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY,

)

)

Defendant. )

____________________________________

)

No. 1:17-cv-00813-TSC

FOURTH JOINT STATUS REPORT

A. INTRODUCTION

Plaintiff Muslim Advocates seeks compliance in this action with its March 7, 2017,

request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, for records maintained by

defendant Department of Homeland Security (DHS) and by U.S. Customs and Border Protection

(CBP), a component of DHS. See ECF No. 1 ¶ 1. Plaintiff’s request seeks 16 categories of

records “created on or after January 24, 2017 related to CBP’s search, review, retention, and

dissemination of information located on or accessed through electronic devices in the possession

of individuals who are encountered by CBP at the border, functional equivalent of the border, or

extended border” and “records created on or after February 27, 2017 that pertain to [Executive

Order No. 13780 of March 6, 2017] and are otherwise responsive to the first request.” Id. ¶ 13;

see ECF No. 1-1 at 2-5.

This report sets forth the events that that have occurred in this case since the status

conference of November 28, 2017, and presents the recommendations of the parties concerning

future events in the case. Plaintiff recommends, as discussed below, that the Court convene a

Case 1:17-cv-00813-TSC Document 26 Filed 01/29/18 Page 2 of 22
status conference, or if it deems appropriate, order summary-judgment briefing to accelerate the resolution of the three issues discussed in Section C. As laid out in more detail in Section C, those issues are: (1) Based on its estimated completion date of production, CBP would be processing at a rate of approximately 175 pages per month, a rate Plaintiff believes does not comply with CBP’s statutory obligation to make records “promptly available”; (2) Plaintiff believes CBP can produce more than 250 responsive incident-level reports – the maximum CBP has offered to produce – without being subjected to an undue burden; and (3) DHS has still not provided Plaintiff with an estimate regarding the completion date of its production though it was required by this Court to do so by December 19, 2017.
DHS and CBP believe, for the reasons set forth in Section C, that the positions of Plaintiff with respect to CBP’s processing and production of incident-level reports and DHS’ providing Plaintiff with an estimated completion date for its production of responsive records are unwarranted and that no reason therefore exists for another status conference to be convened or for motions for summary judgment to be filed. They recommend instead that the parties continue their negotiations with a view toward resolving all outstanding issues in this case and that the parties file another joint status report on or before March 15, 2018. B. EVENTS OCCURING SINCE THE STATUS CONFERENCE OF NOVEMBER
28, 2017 1. The parties were directed during the status conference “to engage in meaningful communication, trying to narrow the scope of the searches, trying to reduce the burden on the government but also comply with [Plaintiff’s] responses.” Tr. at 27-28. The government was directed “to provide to [Plaintiff] an estimate regarding its completion date of production . . . [and] inform [Plaintiff] of the searches or search queries it has conducted or will be conducting” by December 19, 2017. Id. at 19, 20. The parties were directed to file a status report on January
2

Case 1:17-cv-00813-TSC Document 26 Filed 01/29/18 Page 3 of 22
19, 2018, “that indicates that everyone’s working in good faith to try and get this case moving.” Id. at 30.
2. DHS and CBP proposed to Plaintiff during a conversation occurring immediately after the status conference that a conference call among counsel take place on December 5, 2017.
3. Seeking “to facilitate a productive discussion” during the proposed conference call, Plaintiff advised DHS and CBP by email dated November 29, 2017, of “where we believe we currently stand with respect to each of the items in our requests for both DHS and CBP.” The discussion in the email was organized under the following headings, each of which referred to one or more items of Plaintiff’s request: “DHS 1(a)-(i),” “DHS 1(o) consumer complaints,” “DHS 1(j)-(n) – incident level reports,” “CBP 1(a)-(j), (l),” “CBP 1(p) – email search,” “CBP 1(k)-(n) (incident level reports),” and “CBP 1(o) consumer complaint.” The discussion under each of these headings chronicled from Plaintiff’s perspective the outstanding proposals that Plaintiff had made to DHS or CBP and the current status of the parties’ negotiations with respect to those proposals. Plaintiff confirmed in the email that the records that it sought from DHS and CBP were “records created on or after January 24, 2017 through the date of the request, March 7, 2017.”
4. The Court directed DHS and CBP by minute order dated November 30, 2017, to “(1) provide Plaintiff with an estimate regarding the completion date of its production and (2) inform Plaintiff of the search queries it has conducted or will conduct by December 19, 2017.” The Court directed the parties by the same minute order to “file another Joint Status Report on January 19, 2018.”
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5. The proposed conference call took place as scheduled on December 5, 2017. Participants in the call included attorneys from DHS and attorneys from CBP. The following events occurred during the call:
a. Plaintiff had proposed to DHS by email dated October 2, 2017, that DHS use the following search string to search for records responsive to Items 1(a)-(i) of the request:
(“search*” or “ review*” or “ request*” or “collect*” or “seiz*” or “retention” or “retain*” or “duplic*” or “ copy”) and (“device*” or “laptop*” or “mobile” or “cellular phone” or “cell phone” or “cellphone” or “cell-phone” or “iPhone” or “I phone” or “i-phone” or “tablet” or “i-pad” or “iPad” or “I pad” or “jump drive” or “ thumb drive” or “smartphone” or “smart phone” or “hard drive” or “external drive” or “sd-card” or “Sd card”). DHS represented during the conference call that many of its emails were likely to end with the phrase “Sent from my iPhone.” Plaintiff responded by agreeing to remove the term “iPhone” from the proposed search string. It also reiterated its willingness to agree upon custodians in the DHS Office of General Counsel, Office of Policy, Office for Civil Rights and Civil Liberties (CRCL), Privacy Office, and Office of Public Affairs whose records would have to be searched for records responsive to Items 1(a)-(i). DHS agreed to take the search string as modified “back to the agency to determine whether [its use] would yield a huge number of results.” Email Parker to Glass (Dec. 6, 2017).
b. DHS had represented in the joint status report dated November 3, 2017, that it had conducted a search within the CRCL for complaint summaries responsive to Item 1(o) of the request containing the terms “electronics,” “phone,” “laptop,” or “computer.” It represented during the conference call that the search would have captured complaint summaries containing the term “cellphone” or other terms in the form “prefix + phone.” Plaintiff proposed that DHS conduct a search within CRCL for complaint summaries containing the terms “facebook,” “twitter,” “password,” “iPad,” “device,” and “cell.” DHS stated that it did not “anticipate any
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problems” conducting such a search but would advise Plaintiff “if that [was] not the case.” Email Parker to Glass (Dec. 6, 2017).
c. DHS had represented in the joint status report dated November 3, 2017, that “it [was] unlikely to have records responsive to Items 1(j)-(n) of [Plaintiff’s] request because it [did] not maintain databases of information encompassed by [those items] and because records containing such information, if they exist[ed], would be maintained by CBP.” ECF No. 23 at 67. Plaintiff responded during the conference call by agreeing not to seek records from DHS responsive to Items 1(j)-(n) in light of those representations.
d. CBP had represented to Plaintiff by email dated August 18, 2017, that “its FOIA office [had] referred Items 1(a)-(j) and (l) to the office within its Office of Field Operations [OFO] that reviews and disseminates nationwide polices regarding border searches of electronic devices” and that “personnel within that office had reviewed those items individually to identify responsive records, if any, based on their responsibility and knowledge of this area of CBP operations and the related polices, practices and procedures.” Plaintiff asked CBP during the conference call to make a referral to the CBP Office of Public Affairs to permit personnel within that office to identify any records of which they might have personal knowledge that were responsive to Item 1(a) of the request, either by itself or as read in the light of Item 2 of the request. It also reserved the right to ask that CBP make similar referrals to other headquarters components of CBP “should future document productions reveal that personnel at Headquarters may hold responsive records apart from the records produced to us in September 2017.” Email Parker to Glass (Dec. 6, 2017). CBP agreed to make the requested referral to the Office of Public Affairs.
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e. CBP had proposed to Plaintiff by email dated September 15, 2017, that it comply with Item 1(p) of the request by searching the email accounts of the Executive Assistant Commissioner and Deputy Executive Assistant Commissioner of OFO and the Assistant Commissioner and Deputy Assistant Commissioner of the CBP Office of Intelligence (OI) “for emails dated on or after January 27, 2017, containing both the terms border search and any of such terms listed in Item 1(p) that the parties may agree to include.” The terms listed in Item 1(p) were “electronic device,” “smartphone,” “tablet,” “laptop,” “password,” “e-mail account,” “social media,” “‘facebook,” “twitter,” and “cloud.” ECF 1-1 at 5.
Plaintiff agreed by email to CBP dated September 16, 2017, to “start with” the email accounts of the Executive Assistant Commissioner and Deputy Executive Assistant Commissioner of OFO and the Assistant Commissioner and Deputy Assistant Commissioner of OI but reserved the right to “ask that searches be conducted in additional accounts” and asked that the search string used to conduct the search consist of the following, assuming that CBP was able to use proximity connectors to conduct the search:
(“search!” or “review!” or “request!” or “collect!” or “seiz!” or retention!” or “retain!” or “duplic!” or “copy”) /30 (any of the terms listed in Item 1(p)) CBP agreed by email dated September 29, 2017, to the search string proposed by Plaintiff but Plaintiff proposed by email dated October 2, 2017, that the following search string be used instead: (“search*” or “ review*” or “ request*” or “collect*” or “seiz*” or “retention” or “retain*” or “duplic*” or “ copy”) /30 (“device*” or “laptop*” or “mobile” or “cellular phone” or “cell phone” or “cellphone” or “cell-phone” or “iPhone” or “I phone” or “i-phone” or “tablet” or “i-pad” or “iPad” or “I pad” or “jump drive” or “ thumb drive” or “smartphone” or “smart phone” or “hard drive” or “external drive” or “sd-card” or “Sd card”)
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Plaintiff confirmed during the conference call that the period covered by Item 1(p) was the period January 24-March 7, 2017. CBP agreed to discuss with its IT personnel the feasibility of using the search string proposed by Plaintiff by email of October 2, 2017, to search the email accounts of the Executive Assistant Commissioner and Deputy Executive Assistant Commissioner of OFO and the Assistant Commissioner and Deputy Assistant Commissioner of OI.
f. CBP represented during the conference call that 3,500 incident-level reports responsive to Items 1(k)-(n) of the request would be captured by a search limited to the period January 27-March 7, 2017. Plaintiff responded by agreeing to send CBP “a proposal for narrowing the incident reports to a smaller subset, which might include limiting the search to a narrower range of dates within the January 27, 2017 to March 7, 2017 time frame.” Email Parker to Glass (Dec. 6, 2017). CBP agreed to consider any such proposal; acknowledged that limiting the search to a narrower range of dates might be one way to reduce the number of incident-level reports that would have to be processed; asked whether Plaintiff would consider a sampling approach to the incident-level reports; and offered to provide Plaintiff with a sample of six reports that already had been processed to help Plaintiff formulate its proposal.
g. CBP had represented in the joint status report dated November 3, 2017, that “complaints responsive to Item 1(o) of [Plaintiff’s] request [were] reasonably expected to be maintained in CBP’s centralized complaint system and that [it] was conducting a search of that system for responsive records.” ECF No. 23 at 8. CBP represented during the conference call that the above search had sought records containing the terms “electronic,” “phone,” “laptop,” “device,” “cell,” “ipad,” or “computer” and that it believed, but was not sure, that the search would not have captured records containing terms in the form “prefix + phone.” Plaintiff
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responded by asking CBP to search the centralized complaint system for records related to incidents occurring during the period January 27-March 7, 2017, containing the terms “smartphone,” “facebook,” “twitter,” “password,” “iphone,” or “cellphone.” CBP agreed to consider the request.
6. CBP provided Plaintiff by email dated December 5, 2017, with the sample of six incident-level reports to which it had referred during the conference call. Four of the reports in the sample were two pages long and two of them were two-and-a-half pages long.
7. Plaintiff “memorialized [its] understanding of what the parties agreed to” during the conference call by email to DHS and CBP dated December 6, 2017.
8. Plaintiff proposed by email to CBP dated December 11, 2017, that the scope of Items 1(k)-(n) be narrowed to include only those incident-level reports concerning incidents occurring during the periods January 27-February 17, 2017, and February 27-March 5, 2017.
9. A second conference call among counsel for both sides took place at the request of DHS on December 18, 2017. Attorneys from DHS participated in the call. The following events occurred during the call:
a. DHS agreed to use the search string (“search*” or “ review*” or “ request*” or “collect*” or “seiz*” or “retention” or “retain*” or “duplic*” or “ copy”) and (“device*” or “laptop*” or “mobile” or “cellular phone” or “cell phone” or “cellphone” or “cell-phone” or “I phone” or “i-phone” or “tablet” or “i-pad” or “iPad” or “I pad” or “jump drive” or “ thumb drive” or “smartphone” or “smart phone” or “hard drive” or “external drive” or “sd-card” or “Sd card”) to search for records responsive to Items 1(a)-(i) of the request; agreed to provide Plaintiff by December 20, 2017, with a list of the custodians whose records it proposed to search; and represented that the search would require approximately three weeks to conduct once agreement had been reached on the list of custodians and an additional two weeks to evaluate the results of
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the search in order to provide an estimated date for the completion of production. It also agreed to conduct a search within CRCL for complaint summaries containing the terms “facebook,” “twitter,” “password,” “iPad,” “device,” and “cell.”
b. Referring to “the Court’s order that the government ‘provide Plaintiff with an estimate regarding the completion date of its production’ by tomorrow,” Plaintiff asked DHS, notwithstanding the above representations, “for an estimated completion date of its searches.” Email Parker to Glass (Dec. 18, 2017). Plaintiff stated that it “did not assent to [DHS’] failing to provide an estimate in accordance with the Court’s order”; that it “remain[ed] hopeful that DHS provides us with an estimate as soon as possible”; and that it “agreed to maintain the current January 19, 2018 status report deadline ordered by the Court.” Id.
10. Plaintiff “memorialized [the] call” by email to DHS dated December 18, 2017. 11. A third conference call among counsel for both sides took place at the request of CBP on December 19, 2017. An attorney from CBP participated in the call. The following events occurred during the call:
a. CBP represented with respect to Items 1(a)-(j) and (l) of the request that it had made the referral to the Office of Public Affairs that Plaintiff had requested but that the referral had not resulted in the identification of any additional responsive records.
b. CBP represented with respect to Item 1(o) of the request that it had searched its centralized complaint system for records containing the terms “device,” “cell,” “phone,” “laptop,” “computer,” “iPad,” “password,” or “electronic”; that the search had captured approximately 11 records for the period covered by Item 1(o); that those records were undergoing review; and that CBP anticipated their production by the end of December 2017. CBP also represented that it had searched the centralized complaint system for records
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containing the terms “electronics,” “iphone,” “cellphone,” “password,” “smartphone,” “facebook,” or “twitter”; that its rough estimate was that the search had captured between 10 and 25 records for the period covered by Item 1(o); that the records still required review; and that it anticipated producing any responsive records by the end of February 2018.
c. CBP represented with respect to Item 1(p) of the request that it had conducted two preliminary searches of the email accounts of the Executive Assistant Commissioner and Deputy Executive Assistant Commissioner of OFO and the Assistant Commissioner and Deputy Assistant Commissioner of OI; that one search had used CBP’s latest proposed search string and one had used Plaintiff’s latest proposed search string; that available information indicated that one search had captured 13,000 records and the other had captured 15,000 records; that it could not confirm whether the searches had used the/30 proximity connector that Plaintiff had proposed but would look into the issue; that it would examine the records captured by the searches to determine whether the number requiring processing could be reduced, perhaps by excluding those that did not deal with border searches of electronic devices; that it would make a proposal to Plaintiff based on its examination of the records; and that it was difficult to estimate how long it would take it to complete its production of records responsive to Item 1(p) in view of the parties’ continued discussions regarding the scope of the search. Plaintiff reiterated that it “would like an estimate of completion date as soon as possible” in view of the provision of the minute order dated November 30, 2017, requiring CBP to “‘provide Plaintiff with an estimate regarding the completion date of its production’ by December 19, 2017.” Email Parker to Glass (Dec. 20, 2017).
d. CBP represented with respect to Items 1(k)-(n) of the request that it had conducted a search for incident-level reports for the periods January 17-February 17, 2017, and
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February 27-March 5, 2017; that it had identified approximately 2,400 reports by doing so; and that the processing of 2,400 reports would be an unduly-burdensome task. Plaintiff disagreed that the processing of 2,400 reports would be an unduly-burdensome task but expressed its willingness to narrow further the periods for which the production of reports would be required. It also asked CBP to indicate the absolute number of reports the processing of which, in its view, would not be unduly burdensome. CBP agreed to consult internally and provide an absolute number.
12. Plaintiff “memorialized [its] understanding of what the parties agreed to” during the conference call by email to CBP dated December 6, 2017. Though disclaiming the need to do so, Plaintiff said in the email that it “would agree to further narrow the date range” of the incident-level reports that it sought pursuant to Items 1(k)-(n) of the request to reports covering incidents occurring during the periods January 27-February 12, 2017 and March 2-5, 2017. Plaintiff also “reiterated [its] hope” in the email “that the government will provide an estimated date for the completion of production as soon as possible.”
13. DHS proposed by email to Plaintiff dated December 20, 2017, that the email accounts of the following individuals be searched for the period January 24-March 7, 2017, for records responsive to Items 1(a)-(i) of the request:
1. Office of General Counsel. Acting General Counsel; Chief of Staff; Associate General Counsel for Litigation; Associate General Counsel of the Operations and Enforcement Law Division (OELD); three Attorney Advisors from OELD.
2. CRCL. Section Chief, Security Intelligence and Information Policy; Senior Advisor, Security Intelligence and Information Policy; Director of Programs; Senior Advisor; Director of Compliance; Deputy Director of Compliance.
3. Privacy Office. Acting Chief Privacy Officer; Senior Director of Privacy Policy.
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4. Office of Policy. Assistant Secretary of Policy; Deputy Assistant Secretary of Policy; Chief of Staff; Screening Coordination Office (all employees); Office of Immigration and Border Security (all employees). DHS also proposed in its email dated December 20, 2017, that the search string used to search the email accounts of the above individuals be the search string that Plaintiff had proposed by email dated October 2, 2017, as modified by Plaintiff during the conference call of December 5, 2017, i.e., (“search*” or “ review*” or “ request*” or “collect*” or “seiz*” or “retention” or “retain*” or “duplic*” or “ copy”) and (“device*” or “laptop*” or “mobile” or “cellular phone” or “cell phone” or “cellphone” or “cell-phone” or “I phone” or “i-phone” or “tablet” or “i-pad” or “iPad” or “I pad” or “jump drive” or “ thumb drive” or “smartphone” or “smart phone” or “hard drive” or “external drive” or “sd-card” or “Sd card”). 14. Plaintiff agreed by email dated December 21, 2017, to the search for records that DHS had proposed in its email to Plaintiff dated December 20, 2017, but asked that the email accounts of the following individuals be searched as well:
1. CRCL. Head of the Antidiscrimination Group. 2. CBP. Chief Counsel. 3. U.S. Immigration and Customs Enforcement (ICE). Principal Legal Advisor. 4. Office of Inspector General (OIG). Inspector General; Deputy Inspector General; OIG Chief of Staff. Plaintiff also reserved the right “to add additional custodians to search should future productions reveal such additional custodians are likely to possess records responsive to our Request.” 15. Twelve records responsive to Item 1(o) of the request were produced to Plaintiff by CBP on December 22, 2017.
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16. DHS agreed by email dated December 28, 2017, to add the Section Chief of the CRCL Anti-Discrimination Group to the list of individuals whose email accounts would be searched for records responsive to Items 1(a)-(i) of the request but represented that its Privacy Office did not process FOIA requests for CBP, ICE, OIG, or any of the other operational components of DHS; that those components were in charge of their own FOIA offices; and that DHS could not search the email accounts of the individuals from CBP, ICE, and OIG that Plaintiff had asked be added to the search list.
17. Plaintiff asked DHS by email dated December 29, 2017, to refer its FOIA request to OIG and to ask OIG to conduct a search of the email accounts of the Inspector General, Deputy Inspector General, and OIG Chief of Staff similar to the searches of the other email accounts that DHS had agreed to conduct.
18. OIG agreed by email dated January 9, 2018, to conduct the search of the email accounts of the Inspector General, Deputy Inspector General, and OIG Chief of Staff that Plaintiff had requested, provided that Plaintiff agreed that “OIG’s conducting the search and producing any responsive records [would] not cause it to be treated as a defendant in this action.” DHS represented in the same email that its Privacy Office had given CRCL a deadline of January 17, 2018, to return to that office any potentially-responsive records captured by conducting a search within CRCL for complaint summaries created during the period January 24-March 7, 2017, containing the terms “facebook,” “twitter,” “password,” “iPad,” “device,” and “cell.”
19. Plaintiff expressed the view by email dated January 10, 2018, that “OIG [was] part of DHS and thus need not be separately named as a defendant” but “agree[d] not to use OIG’s production in this instance to prejudice OIG’s ability to argue that it is separate from DHS down the road.” Plaintiff clarified in the same email that it wanted the search within CRCL for
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complaint summaries containing the terms “facebook,” “twitter,” “password,” “iPad,” “device,” and “cell” to be a search for complaint summaries involving incidents occurring during the period January 24-March 7, 2017, rather than a search for complaint summaries created during that period.
20. A fourth conference call among counsel for both sides took place at the request of CBP on January 11, 2018. Attorneys from CBP participated in the call. The following events occurred during the call:
a. CBP represented with respect to Item 1(p) of the request that the searches of the email accounts of the Executive Assistant Commissioner and Deputy Executive Assistant Commissioner of OFO and the Assistant Commissioner and Deputy Assistant Commissioner of the OI upon which it had reported during the conference call of December 19, 2017, had captured between 13,000 and 15,000 records apiece because the searches appeared to have disregarded the proximity connectors contained in the search strings used to conduct the searches; that it had run the searches again using the search string
(“search*” or “ review*” or “ request*” or “collect*” or “seiz*” or “retention” or “retain*” or “duplic*” or “ copy”) /25 (“device*” or “laptop*” or “mobile” or “cellular phone” or “cell phone” or “cellphone” or “cell-phone” or “iPhone” or “I phone” or “i-phone” or “tablet” or “i-pad” or “iPad” or “I pad” or “jump drive” or “ thumb drive” or “smartphone” or “smart phone” or “hard drive” or “external drive” or “sd-card” or “Sd card”); that it had captured 1,300 records by doing so; that it had not reviewed the records for responsiveness; and that it considered the search to be a reasonable one. Plaintiff asked CBP to run the search again, this time using the proximity connector /30 that Plaintiff had proposed in its emails dated September 16 and October 2, 2017, instead of the proximity connector /25. CBP asked whether Plaintiff would consider a search using the proximity connecter /30 to be one that that met the requirements of Item 1(p) of the request. Plaintiff said that it would, subject to the
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reservation of its right to ask CBP to search the email accounts of additional personnel, if it became apparent that those personnel might have potentially responsive records. CBP agreed to run the search again, this time using the proximity connector /30.
b. CBP represented with respect to Item 1(o) of the request that further review of the search it had conducted within the centralized complaint system for records containing the terms “electronics,” “cellphone,” “password,” “iphone,” “smartphone,” “facebook,” or “twitter” had identified four responsive records for the period covered by Item 1(o) and that it anticipated producing those records by January 26, 2018.
c. CBP represented with respect to Items 1(k)-(n) of the request that it had not looked into the number of incident-level reports that would be returned for the further-narrowed time frame of January 27-February 12 and March 2-5, 2017, that Plaintiff had proposed by email dated December 6, 2017, but that the processing of incident-level reports was a laborious and time-consuming task in view of the sensitive law-enforcement information and personal-privacy information that they contain; that it was prepared to process a maximum of 250 incident-level reports; that it estimated that it would be able to finish processing those reports by September 2018 if it was also required to process 1,300 emails under Item 1(p) of the request; and that processing incident-level reports takes significantly more time than processing emails. Plaintiff reiterated its position that reviewing 2,400 reports would not be unduly burdensome and requested again that CBP consider its proposal of December 20, 2017, to limit the production of incident-level reports under Items 1(k)-(n) of the request to those dealing with incidents occurring during the periods January 27-February 12 and March 2-5, 2017.
21. Plaintiff “memorialized [its] understanding of what the parties agreed to” during the conference call by email to CBP dated January 12, 2018.
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22. OIG reiterated its willingness by email dated January 12, 2018, to conduct the search of the email accounts of the Inspector General, Deputy Inspector General, and OIG Chief of Staff that Plaintiff had proposed but reserved the right to oppose any attempt to treat it as a defendant in this action. OIG represented in reserving that right that it was an independent and objective audit, inspection, and investigative body and was independent of DHS though part of DHS; that it performed oversight of components of DHS by conducting audits investigations, inspections, and other reviews and that it thus made recommendations to improve the programs and operation of DHS; that it administered FOIA as separate entity from DHS; and that FOIA requests for OIG records properly should be addressed to OIG. DHS advised Plaintiff by the same email that the search within CRCL for complaint summaries containing the terms facebook,” “twitter,” “password,” “iPad,” “device,” and “cell” would be a search for summaries describing incidents alleged to have occurred during the period January 24-March 7, 2017, rather than a search for summaries prepared during that period.
23. Confirming that the parties had reached agreement on the searches to be conducted for records responsive to Items 1(a)-(i) of the request, Plaintiff asked DHS and OIG by email dated January 12, 2018, to “provide an estimate regarding the completion date of [their] productions” of such records.
24. Plaintiff moved without opposition on January 19, 2018, for an order extending the deadline for the filing of this report through January 23, 2018, or, in the case of a government shutdown, through January 26, 2018. Granting Plaintiff’s motion by minute order dated January 23, 2018, the Court directed the parties to file this report and a proposed order by January 29, 2018.
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25. DHS and OIG advised Plaintiff by email dated January 24, 2018, that the inclusion

of the term “mobile” in the search string that both were using to conduct the searches of the

email accounts to which the parties had agreed captured large numbers of emails that contained

the term “mobile” in the senders’ signature blocks but did not have anything to do with border

searches of electronic devices and asked whether the term “mobile” might be deleted from the

search string. Plaintiff agreed to the deletion of the term by email dated January 24, 2018.

26. OIG advised Plaintiff by email dated January 29, 2018, that it had completed the

search of email accounts requested by plaintiff and found no responsive records.

27. The four records responsive to Item 1(o) to which CBP had referred during the

January 11 conference call were produced to Plaintiff on January 29, 2018.

C. THE PARTIES’ RECOMMENDATIONS

1.

PLAINTIFF’S RECOMMENDATION

Plaintiff believes, as reflected in the previous section, that the parties have made progress

in our negotiations since the last status conference, particularly in terms of coming to agreements

with DHS and CBP on searches, search terms, and custodians. Nonetheless, there are three areas

where the parties have been unable to come to an agreement. Plaintiff believes it is critically

important that those areas of disagreement be resolved promptly given how long this case has

been pending. Namely:

(1) CBP has estimated that it will take until September 2018 to complete its production

of 4 consumer complaints, up to 1,300 emails, and 250 incident-level reports1. Plaintiff does not

believe processing that volume of records at the rate estimated – which would result in

1 Sample incident reports CBP provided Plaintiff were all either two or two-and-a-half pages long.
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production being completed well over a year after the filing of the Complaint in this case –

complies with CBP’s statutory obligation to make responsive records “promptly available.” 5

U.S.C. § 552(a)(3)(A), (a)(6)(C)(i). Assuming each record is 2 pages, CBP would be processing

at a rate of approximately 175 pages per month.

(2) Plaintiff believes CBP can produce more than 250 responsive incident-level reports –

the maximum CBP has offered to produce – without being subjected to an undue burden. As

described in more detail in the previous section, Plaintiff has repeatedly narrowed the date range

of incident-level reports it seeks and believes that it would not be unduly burdensome for CBP to

review and produce 2,400 incident-level reports (though Plaintiff has proposed to narrow the

date range further which Plaintiff expects would lower that number).

(3) DHS has still not provided Plaintiff with an estimate regarding the completion date of

its production, even though it was required to do so by December 19, 2017 per the Court’s

November 30, 2017 minute order.

In light of the above, Plaintiff proposes that the Court convene another status conference

or, if the Court deems it appropriate, order summary judgment briefing to accelerate the

resolution of these issues.

2.

THE RECOMMENDATIONS OF DHS AND CBP

Plaintiff continues to ignore the relative burden imposed by its request for the incident-

level reports, which contain information pertaining to specific travelers and privileged law-

enforcement techniques. The presence of that information means that the reports will require

painstaking review before any of them can be produced. It also means that coordination with

other agencies may be necessary before certain reports can be produced. Plaintiff also makes

assumptions regarding the amount of material to be produced by CBP – estimating that all of the

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records that CBP may produce will average just two pages in length – but that assumption is based on a small sample of one type of record and ignores the fact that the emails sought by Plaintiff are of varying lengths and include attachments, which can be quite lengthy. Plaintiff’s position with respect to the processing and production of the incident-level reports is therefore unwarranted.
Plaintiff also ignores the efforts that DHS is making at the current time to conduct the complex search to which the parties have recently agreed. That search needs to go forward before meaningful discussions can take place about the number of records that the search is likely to capture and the speed with which any responsive records should be produced. Plaintiff’s position with respect to DHS’ providing it with an estimated completion date for its production of responsive records is therefore unwarranted as well.
No reason therefore exits for another status conference be convened at this time, much less for motions for summary judgment be filed. The better course, in light of the events described in this report, is for the parties to continue their efforts to resolve all outstanding issues. DHS and CBP therefore recommend that the parties continue those efforts and that another joint status report be filed on or before March 15, 2018.
Respectfully submitted, By: s/ Amir H. Ali (by email authorization) Amir H. Ali, DC Bar 1019681 THE RODERICK & SOLANGE MACARTHUR JUSTICE CENTER 718 7th Street, N.W. Washington, D.C. 20001 Tel: (202) 869-3434
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Joshua M. Parker, DC Bar 1019515 Kelly M. Morrison, DC Bar 1046293 JENNER & BLOCK LLP 1099 New York Avenue, N.W., Suite 900 Washington, D.C. 20001 Tel: (202) 637-6380/Fax (202) 639-6066 Email: jparker@jenner.com
Sirine Shebaya, DC Bar 1019748 MUSLIM ADVOCATES P.O. Box 66408 Washington, D.C. 20035 Tel: (202) 656-4788 Attorneys for Plaintiff

Dated: January 29, 2018

CHAD A. READLER Acting Assistant Attorney General
JESSIE K. LIU United States Attorney
ELIZABETH J. SHAPIRO Deputy Director
s/ David M. Glass DAVID M. GLASS, DC Bar 544549 Senior Trial Counsel Department of Justice, Civil Division 20 Massachusetts Ave., N.W., Room 7200 Washington, D.C. 20529 Tel: (202) 514-4469/Fax: (202) 616-8470 E-mail: david.glass@usdoj.gov Attorneys for Defendant

CERTIFICATE OF SERVICE I hereby certify that on January 29, 2018, I served the within report and proposed orders on all counsel of record by filing them with the Court by means of its ECF system.
s/ David M. Glass

20

Case 1:17-cv-00813-TSC Document 26 Filed 01/29/18 Page 21 of 22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

MUSLIM ADVOCATES,

)

)

Plaintiff, )

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY,

)

)

Defendant. )

____________________________________

)

No. 1:17-cv-00813-TSC

[PLAINTIFF’S PROPOSED] ORDER

It is hereby ordered in view of the joint status report dated January 29, 2018, that a Status

Conference be set for February 21, 2018. In addition to the U.S. Attorney defending the action,

counsel from the agency shall also appear at the Status Conference.

Dated:

UNITED STATES DISTRICT JUDGE

Case 1:17-cv-00813-TSC Document 26 Filed 01/29/18 Page 22 of 22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

MUSLIM ADVOCATES,

)

)

Plaintiff, )

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY,

)

)

Defendant. )

____________________________________

)

No. 1:17-cv-00813-TSC

[DEFENDANTS’ PROPOSED] ORDER

It is hereby ordered in view of the joint status report dated January 29, 2018, that the

parties file another joint status report on or before March 15, 2018, advising the Court of the

progress made, if any, toward resolving the unresolved issues in this case.

Dated:

UNITED STATES DISTRICT JUDGE

 
 Create an Alert for This Case on RECAP

TYPE I-FOIA

U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17-cv-00813-TSC

MUSLIM ADVOCATES v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY Assigned to: Judge Tanya S. Chutkan Case: 1:17-cv-00548-TSC Cause: 05:552 Freedom of Information Act

Date Filed: 05/02/2017 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Plaintiff MUSLIM ADVOCATES

represented by Amir H. Ali RODERICK & SOLANGE MACARTHUR JUSTICE CENTER 501 H Street NE Suite 275 Washington, DC 20002 202-869-3434 Email: amir.ali@macarthurjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Lauren Chapuis JENNER & BLOCK LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 (202) 639-6049 Fax: (202) 639-6066 Email: echapuis@jenner.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan Alexander Langlinais JENNER & BLOCK LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412

(203) 637-6333 Email: jalanglinais@jenner.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew W. Callahan MUSLIM ADVOCATES P.O. Box 34440 Washington, DC 20043 (202) 897-2622 Fax: (202) 508-1007 Email: matthew@muslimadvocates.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel F. Bousquet JENNER & BLOCK LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 (202) 639-6063 Fax: (202) 639-6066 Email: dbousquet@jenner.com TERMINATED: 07/11/2017
Johnathan James Smith MUSLIM ADVOCATES P.O. Box 34440 Washington, DC 20043 (202) 897-1897 Fax: (202) 508-1007 Email: johnathan@muslimadvocates.org TERMINATED: 02/01/2019
Joshua Parker JENNER & BLOCK LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 (202) 637-6380 Fax: (202) 639-6066 Email: jparker@jenner.com TERMINATED: 09/24/2018

Juvaria Khan MUSLIM ADVOCATES P.O. Box 34440 Washington, DC 20043 (202) 897-1896 Fax: (202) 508-1007 Email: juvaria@muslimadvocates.org PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly M. Morrison JENNER & BLOCK LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 (202) 639-6031 Fax: (202) 639-6066 Email: kmorrison@jenner.com TERMINATED: 05/02/2018
Leah J. Tulin OFFICE OF THE ATTORNEY GENERAL 200 Saint Paul Place 200 St. Paul Place 20th Floor Baltimore, MD 21202 410-576-6440 Fax: 410-576-7036 Email: ltulin@oag.state.md.us TERMINATED: 06/16/2017
Sirine Shebaya NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW Suite 200 Washington, DC 20007 202-656-4788 Email: sirine@nipnlg.org TERMINATED: 08/16/2019
V.

Defendant
UNITED STATES DEPARTMENT OF HOMELAND SECURITY

represented by David Michael Glass U.S. DEPARTMENT OF JUSTICE Civil Division 1100 L Street, NW Room 12020 Washington, DC 20530 (202) 514-4469 Fax: (202) 616-8470 Email: david.glass@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/02/2017
05/02/2017 05/02/2017 05/02/2017 05/02/2017
05/02/2017 05/03/2017

# Docket Text
1 COMPLAINT against UNITED STATES DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 400 receipt number 00904937021) filed by MUSLIM ADVOCATES. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Civil Cover Sheet, # 4 Summons, # 5 Summons, # 6 Summons)(Tulin, Leah) (Entered: 05/02/2017)
2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by MUSLIM ADVOCATES (Tulin, Leah) (Entered: 05/02/2017)
3 NOTICE OF RELATED CASE by MUSLIM ADVOCATES. Case related to Case No. 17-cv-548-TSC. (Tulin, Leah) (Entered: 05/02/2017)
4 MOTION and Memorandum of Law in Support of Use of P.O. Box in Complaint Address by MUSLIM ADVOCATES (Attachments: # 1 Proposed Order)(Tulin, Leah) (Entered: 05/02/2017)
5 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Juvaria Khan, :Firm- Muslim Advocates, :Address- P.O. Box 71080, Oakland, CA 94612. Phone No. - 646-221-6732. Filing fee $ 100, receipt number 0090-4937095. Fee Status: Fee Paid. by MUSLIM ADVOCATES (Attachments: # 1 Declaration of Juvaria Khan in Support, # 2 Proposed Order)(Tulin, Leah) (Entered: 05/02/2017)
Case Assigned to Judge Tanya S. Chutkan. (jd) (Entered: 05/03/2017)
6 SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Forms)(jd) (Entered: 05/03/2017)

06/07/2017 7 NOTICE of Appearance by Joshua Parker on behalf of MUSLIM ADVOCATES (Parker, Joshua) (Entered: 06/07/2017)

06/09/2017 8 NOTICE of Appearance by Daniel F. Bousquet on behalf of MUSLIM ADVOCATES (Bousquet, Daniel) (Entered: 06/09/2017)

06/14/2017

MINUTE ORDER: Granting 4 Motion to allow Plaintiff to use a P.O. Box in the Complaint caption in lieu of its full residence address. Signed by Judge Tanya S. Chutkan on 6/14/17. (DJS) (Entered: 06/14/2017)

06/14/2017

MINUTE ORDER: Granting 5 Motion for Leave to Appear Pro Hac Vice. Juvaria Khan is hereby admitted pro hac vice to appear in this matter on behalf of Plaintiff. Signed by Judge Tanya S. Chutkan on 6/14/17. (DJS) (Entered: 06/14/2017)

06/16/2017 9 NOTICE of Appearance by Emily Lauren Chapuis on behalf of MUSLIM ADVOCATES (Chapuis, Emily) (Entered: 06/16/2017)

06/16/2017

10 NOTICE OF WITHDRAWAL OF APPEARANCE as to MUSLIM ADVOCATES. Attorney Leah J. Tulin terminated. (Tulin, Leah) (Entered: 06/16/2017)

06/19/2017

11 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 6/13/2017., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/13/2017. ( Answer due for ALL FEDERAL DEFENDANTS by 7/13/2017.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF HOMELAND SECURITY served on 6/19/2017 (Parker, Joshua) (Entered: 06/19/2017)

06/19/2017 12 NOTICE of Appearance by Amir H. Ali on behalf of MUSLIM ADVOCATES (Ali, Amir) (Entered: 06/19/2017)

07/11/2017

13 NOTICE OF WITHDRAWAL OF APPEARANCE as to MUSLIM ADVOCATES. Attorney Daniel F. Bousquet terminated. (Bousquet, Daniel) (Entered: 07/11/2017)

07/13/2017

14 NOTICE of Appearance by David Michael Glass on behalf of UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Glass, David) (Entered: 07/13/2017)

07/13/2017 15 ANSWER to Complaint by UNITED STATES DEPARTMENT OF HOMELAND SECURITY.(Glass, David) (Entered: 07/13/2017)

07/18/2017

MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. The requirements of LCvR 16.3 and Rule 26(f) of the Federal Rules of Civil procedure appear to be inapplicable. IT IS HEREBY ORDERED that the parties shall meet and confer and propose a schedule for proceeding in this matter. The schedule shall address the status of Plaintiff's FOIA request, the anticipated number of documents responsive to Plaintiff's FOIA request, the anticipated date(s) for release of the documents requested by Plaintiff, whether a motion for an Open America stay is likely in this case, whether a Vaughn index will be required in this case, whether and when either party anticipates filing a dispositive motion, and any other pertinent issues. The parties shall file a joint status report that addresses these issues and that contains a proposed schedule and proposed order not later than 8/4/17. Signed by Judge Tanya S. Chutkan on 7/18/17. (DJS) (Entered: 07/18/2017)

07/20/2017

Set/Reset Deadlines: Joint Status Report due by 8/4/2017. (tb) (Entered: 07/20/2017)

07/20/2017 16 NOTICE of Appearance by Kelly M. Morrison on behalf of MUSLIM ADVOCATES (Morrison, Kelly) (Entered: 07/20/2017)

07/21/2017 17 NOTICE of Appearance by Sirine Shebaya on behalf of MUSLIM ADVOCATES (Shebaya, Sirine) (Entered: 07/21/2017)

08/04/2017 18 Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 08/04/2017)

08/07/2017

MINUTE ORDER: Having considered the parties' Joint Status Report 18 , it is hereby ordered that the parties shall file another joint status report by October 4, 2017 advising the Court of the progress made, if any, toward resolving the issues relating to Plaintiff's FOIA request. Signed by Judge Tanya S. Chutkan on 8/7/17. (DJS) (Entered: 08/07/2017)

08/07/2017

Set/Reset Deadlines: Joint Status Report due by 10/4/2017. (tb) (Entered: 08/07/2017)

10/04/2017

19 Unopposed MOTION for Extension of Time to File Second Joint Status Report by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Glass, David) (Entered: 10/04/2017)

10/06/2017

MINUTE ORDER: Granting 19 Motion for Extension of Time to File Joint Status. The parties' Joint Status Report and proposed order shall be filed by 10/6/17. Signed by Judge Tanya S. Chutkan on 10/6/17. (DJS) (Entered: 10/06/2017)

10/06/2017

20 Joint STATUS REPORT (Second) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 10/06/2017)

10/12/2017

MINUTE ORDER: Having considered the parties' Joint Status Report 20 , it is hereby ordered that the parties shall file another joint report by October 31, 2017, along with a proposed order for moving forward with this case. Signed by Judge Tanya S. Chutkan on 10/12/17. (DJS) (Entered: 10/12/2017)

10/13/2017

Set/Reset Deadlines: Joint Status Report due by 10/31/2017. (tb) (Entered: 10/13/2017)

10/13/2017

21 NOTICE OF WITHDRAWAL OF APPEARANCE as to MUSLIM ADVOCATES. Attorney Emily Lauren Chapuis terminated. (Chapuis, Emily) (Entered: 10/13/2017)

10/30/2017 22 Unopposed MOTION for Extension of Time to File Third Joint Status Report by MUSLIM ADVOCATES (Ali, Amir) (Entered: 10/30/2017)

10/31/2017

MINUTE ORDER: Granting 22 Joint Motion for Extension of Time to File Joint Status Report. Joint Status due November 3, 2017. Signed by Judge Tanya S. Chutkan on 10/31/17. (DJS) (Entered: 10/31/2017)

10/31/2017

Set/Reset Deadlines: Joint Status Report due by 11/3/2017. (tb) (Entered: 10/31/2017)

11/03/2017 23 Joint STATUS REPORT (Third) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 11/03/2017)

11/15/2017

MINUTE ORDER: A status conference is hereby set for November 28, 2017 at 11:30 a.m. In addition to the U.S. Attorney defending the action, counsel from the agency shall also appear at the status conference. Signed by Judge Tanya S. Chutkan on 11/15/2017. (lctsc2). (Entered: 11/15/2017)

11/16/2017

Set/Reset Hearings: Status Conference set for 11/28/2017 at 11:30 AM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 11/16/2017)

11/28/2017

Minute Entry for proceedings held before Judge Tanya S. Chutkan: Status Conference held on 11/28/2017. The defendant is to provide plaintiff with an estimate on the completion of production by 12/19/2017. The parties shall file a Joint Status Report that contains both a proposed schedule and proposed order by 1/19/2018. (Court Reporter: Bryan A. Wayne) (jth) (Entered: 11/28/2017)

11/28/2017

24 TRANSCRIPT OF 11/28/17 STATUS HEARING before Judge Tanya S. Chutkan held on November 28, 2017. Page Numbers: 1-32. Date of Issuance: 11/28/17. Court Reporter: Bryan A. Wayne. Transcripts may be ordered via Transcript Order Form at www.dcd.uscourts.gov For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 12/19/2017. Redacted Transcript Deadline set for 12/29/2017. Release of Transcript Restriction set for 2/26/2018.(Wayne, Bryan) (Entered: 11/28/2017)

11/30/2017

MINUTE ORDER: Pursuant to the court's orders at the November 28, 2017 status conference, the government shall (1) provide Plaintiff with an estimate regarding the completion date of its production and (2) inform Plaintiff of the searches or search queries it has conducted or will conduct by December 19, 2017. The parties shall file another Joint Status Report on January 19, 2018. If the Plaintiff still wishes to set a summary judgment briefing schedule at the time of the filing of the January Joint Status Report, Plaintiff should so indicate in the report. Signed by Judge Tanya S. Chutkan on 11/30/2017. (lctsc2). (Entered: 11/30/2017)

01/19/2018

25 Unopposed MOTION for Extension of Time to File Fourth Joint Status Report by MUSLIM ADVOCATES (Morrison, Kelly) (Entered: 01/19/2018)

01/23/2018

MINUTE ORDER: Granting 25 Motion for Extension of Time to File Joint Status Report. The parties shall file a joint report by 1/29/18, along with a PROPOSED ORDER. Signed by Judge Tanya S. Chutkan on 1/23/18. (DJS) (Entered: 01/23/2018)

01/24/2018

Set/Reset Deadlines: Joint Status Report due by 1/29/2018. (tb) (Entered: 01/24/2018)

01/29/2018

26 Joint STATUS REPORT (Fourth) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 01/29/2018)

01/31/2018

MINUTE ORDER: A Status Conference is hereby set for 2/21/18 at 11:00 am in Courtroom 9. Signed by Judge Tanya S. Chutkan on 1/31/18. (DJS) (Entered: 01/31/2018)

02/01/2018

Set/Reset Hearings: Status Conference set for 2/21/2018 at 11:00 AM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 02/01/2018)

02/02/2018

27 ENTERED IN ERROR.....NOTICE of Appearance by Johnathan James Smith on behalf of MUSLIM ADVOCATES (Smith, Johnathan) Modified on 2/5/2018 (znmw). (Entered: 02/02/2018)

02/02/2018 28 NOTICE of Appearance by Johnathan James Smith on behalf of MUSLIM ADVOCATES (Smith, Johnathan) (Entered: 02/02/2018)

02/05/2018

NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry 27 Notice of Appearance was entered in error and refiled with signature as Docket Entry 28 Notice of Appearance. (znmw) (Entered: 02/05/2018)

02/21/2018

Minute Entry: Status Conference held on 2/21/2018 before Judge Tanya S. Chutkan: Defendant U.S. Customs and Border Protection (CBP) is hereby ordered to produce 275 pages per month. Parties are to meet and confer regarding the dates of production for the 1,800 incident-level reports. The government is to determine whether complaints can be searched by incident date, as well as the completion date for the Department of Homeland Security (DHS)'s production. A joint status report is due in 90 days. (Court Reporter Bryan Wayne) (tb) Modified on 2/21/2018 (tb). (Entered: 02/21/2018)

02/26/2018

MINUTE ORDER: The parties shall file a joint status report by 5/21/18 along with a proposed order. Signed by Judge Tanya S. Chutkan on 2/26/18. (DJS) Modified on 2/26/2018 (DJS). (Entered: 02/26/2018)

02/27/2018

Set/Reset Deadlines: Joint Status Report due by 5/21/2018. (tb) (Entered: 02/27/2018)

03/04/2018

29 TRANSCRIPT OF 2/21/18 STATUS HEARING before Judge Tanya S. Chutkan held on February 21, 2018. Page Numbers: 1-23. Date of Issuance: March 4, 2018. Court Reporter: Bryan A. Wayne. Transcripts may be ordered at www.dcd.uscourts.gov. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be

made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 3/25/2018. Redacted Transcript Deadline set for 4/4/2018. Release of Transcript Restriction set for 6/2/2018.(Wayne, Bryan) (Entered: 03/04/2018)

04/18/2018 30 NOTICE of Appearance by Jonathan Alexander Langlinais on behalf of MUSLIM ADVOCATES (Langlinais, Jonathan) (Entered: 04/18/2018)

04/20/2018

31 MOTION to Clarify Order from February 21, 2018 Status Conference and Statement of Points and Authorities in Support by MUSLIM ADVOCATES (Attachments: # 1 Proposed Order)(Morrison, Kelly) (Entered: 04/20/2018)

05/02/2018

32 NOTICE OF WITHDRAWAL OF APPEARANCE as to MUSLIM ADVOCATES. Attorney Kelly M. Morrison terminated. (Morrison, Kelly) (Entered: 05/02/2018)

05/02/2018 33 NOTICE of Appearance by Emily Lauren Chapuis on behalf of MUSLIM ADVOCATES (Chapuis, Emily) (Entered: 05/02/2018)

05/04/2018

34 Memorandum in opposition to re 31 MOTION to Clarify Order from February 21, 2018 Status Conference and Statement of Points and Authorities in Support filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Ex. List, # 2 Ex. A, # 3 Ex. B, # 4 Ex. C, # 5 Ex. D, # 6 Ex. E, # 7 Ex. F, # 8 Ex. G, # 9 Ex. H, # 10 Ex. I, # 11 Ex. J, # 12 Ex. K, # 13 Ex. L, # 14 Ex. M, # 15 Ex. N, # 16 Ex. O, # 17 Ex. P)(Glass, David) (Entered: 05/04/2018)

05/11/2018

35 REPLY to opposition to motion re 31 MOTION to Clarify Order from February 21, 2018 Status Conference and Statement of Points and Authorities in Support filed by MUSLIM ADVOCATES. (Attachments: # 1 Exhibit List, # 2 Exhibit A)(Chapuis, Emily) (Entered: 05/11/2018)

05/14/2018

36 ORDER granting in part and denying in part 31 Plaintiff's Motion to Clarify. Signed by Judge Tanya S. Chutkan on 5/14/2018. (lctsc2). (Entered: 05/14/2018)

05/18/2018 37 Joint STATUS REPORT (Fifth) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 05/18/2018)

07/24/2018 38 Joint STATUS REPORT (Sixth) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 07/24/2018)

07/26/2018

MINUTE ORDER: Having considered the parties' Joint Status Report 38 , it is hereby ordered that the parties shall file another joint

status by September 24, 2018 and every 60 days thereafter. To the extent the report contains a proposed production/briefing schedule, the report shall include a proposed order. Signed by Judge Tanya S. Chutkan on 7/26/18. (DJS) (Entered: 07/26/2018)

07/27/2018

Set/Reset Deadlines: Joint Status Report due by 9/24/2018. (tb) (Entered: 07/27/2018)

08/20/2018 39 NOTICE of Change of Address by Johnathan James Smith (Smith, Johnathan) (Entered: 08/20/2018)

08/20/2018 40 NOTICE of Change of Address by Sirine Shebaya (Shebaya, Sirine) (Entered: 08/20/2018)

08/20/2018 41 NOTICE of Change of Address by Juvaria Khan (Khan, Juvaria) (Entered: 08/20/2018)

09/24/2018

42 NOTICE OF WITHDRAWAL OF APPEARANCE as to MUSLIM ADVOCATES. Attorney Joshua Parker terminated. (Chapuis, Emily) (Entered: 09/24/2018)

09/24/2018

43 Joint STATUS REPORT Seventh by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 09/24/2018)

10/04/2018 44 NOTICE of Change of Address by Amir H. Ali (Attachments: # 1 Exhibit Address Change Request)(Ali, Amir) (Entered: 10/04/2018)

11/20/2018

45 Interim STATUS REPORT (Eighth) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 11/20/2018)

01/21/2019

46 Unopposed MOTION to Stay All Proceedings in Light of Lapse of Appropriations by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Glass, David) (Entered: 01/21/2019)

01/22/2019

MINUTE ORDER: Granting 46 Motion to Stay. All proceedings in this case are STAYED until Congress restores appropriations to the Department of Justice, Department of Homeland Security, and U.S. Customs and Border Protection. All current deadlines in this case are extended commensurate with the duration of the lapse in appropriations. The Defendants shall file a notice advising the court within 14 days after appropriations are restored. Signed by Judge Tanya S. Chutkan on 1/22/19. (DJS) (Entered: 01/22/2019)

01/30/2019

47 NOTICE of Restoration of Appropriations by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Glass, David) (Entered: 01/30/2019)

02/01/2019

48 NOTICE OF WITHDRAWAL OF APPEARANCE as to MUSLIM ADVOCATES. Attorney Johnathan James Smith terminated. (Smith, Johnathan) (Entered: 02/01/2019)

02/26/2019 49 Joint STATUS REPORT (Ninth) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 02/26/2019)

02/27/2019

MINUTE ORDER LIFTING STAY: The stay in this action is hereby lifted. By 4/26/19 the parties shall file another joint report and every 60 days thereafter. To the extent the report contains a proposed production/briefing schedule, the report shall include a proposed order. Signed by Judge Tanya S. Chutkan on 2/27/19. (DJS) (Entered: 02/27/2019)

04/26/2019 50 Joint STATUS REPORT (Tenth) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 04/26/2019)

06/25/2019

51 Joint STATUS REPORT (Eleventh) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 06/25/2019)

07/11/2019

52 NOTICE of Appearance by Matthew W. Callahan on behalf of MUSLIM ADVOCATES (Callahan, Matthew) (Main Document 52 replaced on 7/12/2019) (ztd). (Entered: 07/11/2019)

07/29/2019

53 Unopposed MOTION for Extension of Time to File Joint Status Report by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Glass, David) (Entered: 07/29/2019)

07/30/2019

MINUE ORDER: Granting 53 Unopposed Motion for Extension of Deadlines. Joint status report due September 6, 2019 and every 60 days thereafter. To the extent the report contains a proposed production/briefing schedule, the report shall include a proposed order. Signed by Judge Tanya S. Chutkan on 7/30/19. (DJS) (Entered: 07/30/2019)

08/02/2019

Set/Reset Deadlines: Joint Status Report due by 9/6/2019. (tb) (Entered: 08/02/2019)

08/16/2019

54 NOTICE OF WITHDRAWAL OF APPEARANCE as to MUSLIM ADVOCATES. Attorney Sirine Shebaya terminated. (Shebaya, Sirine) (Entered: 08/16/2019)

09/06/2019

55 Joint STATUS REPORT (Twelfth) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 09/06/2019)

11/05/2019

56 Joint STATUS REPORT (Thirteenth) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 11/05/2019)

01/06/2020

57 Joint STATUS REPORT (Fourteenth) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 01/06/2020)

04/15/2020

MINUTE ORDER: On 7/30/19 this court ordered the parties to file a joint status report by 9/6/19 and every 60 days thereafter. (7/30/19 Min. Order.) The parties filed their last report 57 on 1/6/2020 and advised the court that the defendant took the position it had completed releasing documents several days earlier on 1/3/2020. The parties' next report was due 3/3/2020, but they have not filed a report, sought an extension or filed a notice of dismissal. Accordingly, by 4/24/20 the parties shall file a joint status report and a proposed order or a stipulation of dismissal. The court may dismiss this matter without further notice in the absence of a timely report or notice of dismissal. Signed by Judge Tanya S. Chutkan on 4/15/2020. (DJS) (Entered: 04/15/2020)

04/15/2020

Set/Reset Deadlines: Joint Status Report due by 4/24/2020. (tb) (Entered: 04/15/2020)

04/24/2020

58 Joint STATUS REPORT (Fifteenth) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 04/24/2020)

04/28/2020

MINUTE ORDER: Having considered the parties' joint status report 58 , it is hereby ordered that the parties shall file a joint status report or stipulation of dismissal by than June 24, 2020 and every 30 days thereafter. Signed by Judge Tanya S. Chutkan on 4/28/2020. (DJS) (Entered: 04/28/2020)

04/29/2020

Set/Reset Deadlines: Joint Status Report or Stipulation of Dismissal due by 6/24/2020 (tb) (Entered: 04/29/2020)

06/24/2020

59 Joint STATUS REPORT (Sixteenth) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 06/24/2020)

07/24/2020

60 Joint STATUS REPORT (Seventeenth) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 07/24/2020)

08/24/2020

61 Joint STATUS REPORT (Eighteenth) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 08/24/2020)

09/22/2020

62 Joint STATUS REPORT (Nineteenth) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 09/22/2020)

10/22/2020

63 Joint STATUS REPORT (Twentieth) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 10/22/2020)

11/23/2020

64 Joint STATUS REPORT (Twenty-First) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 11/23/2020)

12/23/2020

65 Joint STATUS REPORT (Twenty-Second) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 12/23/2020)

01/22/2021

66 Joint STATUS REPORT (Twenty-Third) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 01/22/2021)

02/22/2021

67 Joint STATUS REPORT (Twenty-Fourth) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Glass, David) (Entered: 02/22/2021)

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03/02/2021 21:31:54

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Docket Report

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1:17-cv-00813TSC 0.80