CLOSED,TYPE I−FOIA
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:18−cv−00545−CJN

ELECTRONIC PRIVACY INFORMATION CENTER v. U.S. DEPARTMENT OF HOMELAND SECURITY Assigned to: Judge Carl J. Nichols Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 03/08/2018 Date Terminated: 05/13/2020 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

ELECTRONIC PRIVACY INFORMATION CENTER

represented by Alan Jay Butler ELECTRONIC PRIVACY INFORMATION CENTER 1519 New Hampshire Ave, NW Washington, DC 20036 (202) 483−1140 ext 103 Fax: (202) 483−1248 Email: butler@epic.org ATTORNEY TO BE NOTICED

Marc Rotenberg ELECTRONIC PRIVACY INFORMATION CENTER 1519 New Hampshire Avenue, N.W. Washington, DC 20036 (202) 483−1140, ext 106 Fax: (202) 483−1248 Email: rotenberg@epic.org TERMINATED: 04/29/2020 ATTORNEY TO BE NOTICED

Jeramie D. Scott ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW Suite 200 Washington, DC 20009 (202) 483−1140 Fax: (202) 483−1248 Email: jscott@epic.org ATTORNEY TO BE NOTICED

V.
Defendant
U.S. DEPARTMENT OF HOMELAND SECURITY

represented by Johnny Hillary Walker , III U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252−2575 Fax: (202) 252−2599 Email: johnny.walker@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Doris Denise Coles−Huff U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA

555 Fourth Street, NW Washington, DC 20530 (202) 252−2557 Fax: (202) 252−2599 Email: doris.coles@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 03/08/2018
03/08/2018 03/14/2018 03/14/2018 03/14/2018 03/16/2018
03/29/2018 04/11/2018
04/11/2018 04/11/2018 04/27/2018 05/02/2018
05/16/2018 05/21/2018

# Docket Text
1 COMPLAINT against U.S. DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 400 receipt number 0090−5365740) filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Civil Cover Sheet, # 2 Summons U.S. Attorney for the District of Columbia, # 3 Summons Attorney General of the United States, # 4 Summons U.S. Department of Homeland Security)(Scott, Jeramie) (Entered: 03/08/2018)
2 Corporate Disclosure Statement by ELECTRONIC PRIVACY INFORMATION CENTER. (Scott, Jeramie) (Entered: 03/08/2018)
Case Assigned to Judge Ketanji Brown Jackson. (zsb) (Entered: 03/14/2018)
3 SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zsb) (Entered: 03/14/2018)
4 NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 03/14/2018)
5 GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives, and parties and counsel should pay particular attention to the Courts instructions for briefing motions and filing exhibits. Failure to adhere to this Order may, when appropriate, result the imposition of sanctions and/or sua sponte denial of non−conforming motions. Signed by Judge Ketanji Brown Jackson on 3/16/2018. (lckbj1) (Entered: 03/16/2018)
6 NOTICE of Appearance by Johnny Hillary Walker, III on behalf of All Defendants (Walker, Johnny) (Entered: 03/29/2018)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/28/2018. Answer due for ALL FEDERAL DEFENDANTS by 4/27/2018. (Scott, Jeramie) (Entered: 04/11/2018)
8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 03/28/2018. (Scott, Jeramie) (Entered: 04/11/2018)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF HOMELAND SECURITY served on 3/27/2018 (Scott, Jeramie) (Entered: 04/11/2018)
10 ANSWER to Complaint by U.S. DEPARTMENT OF HOMELAND SECURITY.(Walker, Johnny) (Entered: 04/27/2018)
MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall promptly confer and file a joint proposed schedule for briefing or disclosure, on or before 5/16/2018. Signed by Judge Ketanji Brown Jackson on 05/02/2018. (lckbj1) (Entered: 05/02/2018)
11 Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 05/16/2018)
MINUTE ORDER. In light of the representations made in the parties' 11 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report on or before 6/15/2018. Signed by Judge Ketanji Brown Jackson on 05/21/2018. (lckbj1) (Entered: 05/21/2018)

06/15/2018 06/19/2018
07/30/2018 07/31/2018
09/13/2018 09/18/2018
11/13/2018 11/19/2018
12/28/2018 12/28/2018
01/29/2019 01/29/2019
02/08/2019 02/11/2019

12 Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 06/15/2018)
13 MINUTE ORDER. In light of the representations in the parties' 12 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report on or before 7/30/2018, which shall contain a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 06/19/2018. (lckbj1) (Entered: 06/19/2018)
14 Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Walker, Johnny) (Entered: 07/30/2018)
MINUTE ORDER. In light of the representations in the parties' 14 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report on or before 9/13/2018, which shall include a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 7/31/2018. (lckbj1) (Entered: 07/31/2018)
15 Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 09/13/2018)
MINUTE ORDER. In light of the representations in the parties' 15 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report on or before 11/13/2018, which shall include a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 9/18/2018. (lckbj1) (Entered: 09/18/2018)
16 Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 11/13/2018)
MINUTE ORDER. In light of the representations in the parties' 16 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report on or before 1/4/2019, which shall include a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 11/19/2018. (lckbj1) (Entered: 11/19/2018)
17 MOTION to Stay by U.S. DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Coles−Huff, Doris) (Entered: 12/28/2018)
MINUTE ORDER granting 17 Consent Motion to Stay in light of lapse of appropriations. For good cause shown, it is hereby ORDERED that this case is STAYED. Counsel for Defendant shall notify the Court as soon as Congress has appropriated funds; at that point, the Court will enter an order resetting the applicable deadlines, which will be extended day−for−day with the duration of the lapse in appropriations. Signed by Judge Ketanji Brown Jackson on 12/28/2018. (lckbj3) (Entered: 12/28/2018)
18 NOTICE of Restored Funding by U.S. DEPARTMENT OF HOMELAND SECURITY re Order on Motion to Stay, (Walker, Johnny) (Entered: 01/29/2019)
MINUTE ORDER. Defendant has provided notice that that an appropriations act providing funding to the Department of Justice for a three−week period of time was enacted on January 25, 2019 (ECF No. 18 .) Accordingly, it is hereby ORDERED that the stay in this matter is lifted, and that on or before 2/8/2019, the parties shall file a joint status report, which shall include a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 1/29/2019. (lckbj1) (Entered: 01/29/2019)
19 Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Walker, Johnny) (Entered: 02/08/2019)
MINUTE ORDER. In light of the representations in the parties' 19 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report on or before 3/25/2019, which shall include a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 2/11/2019. (lckbj1) (Entered: 02/11/2019)

03/25/2019 04/03/2019
04/08/2019 04/11/2019
05/08/2019 05/08/2019 05/13/2019
06/17/2019 06/24/2019 07/31/2019 08/02/2019
08/02/2019 08/29/2019 09/03/2019 09/03/2019 09/05/2019 09/05/2019 10/29/2019 10/31/2019

20 Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 03/25/2019)
MINUTE ORDER. In light of the representations in the parties' 20 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report on or before 4/8/2019, which shall include a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 4/3/2019. (lckbj1) (Entered: 04/03/2019)
21 Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 04/08/2019)
MINUTE ORDER. In light of the representations in the parties' 21 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report on or before 5/8/2019, which shall include a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 4/11/2019. (lckbj1) (Entered: 04/11/2019)
22 STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Scott, Jeramie) (Entered: 05/08/2019)
23 STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Walker, Johnny) (Entered: 05/08/2019)
24 ORDER requiring DHS Headquarters to complete searches on or before 6/12/2019, and to begin production of responsive records on or before 7/29/2019, and requiring parties to file a joint status report on or before 6/17/2019. Signed by Judge Ketanji Brown Jackson on 5/13/2019. (lckbj1) (Entered: 05/13/2019)
25 Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 06/17/2019)
Case directly reassigned to Judge Carl J. Nichols. Judge Ketanji Brown Jackson is no longer assigned to the case. (ztnr) (Entered: 06/24/2019)
26 Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 07/31/2019)
MINUTE ORDER. In light of the Parties' 26 Joint Status Report, it is hereby ORDERED that the Parties shall submit an additional Joint Status Report by August 30, 2019. Signed by Judge Carl J. Nichols on August 2, 2019. (lccjn1) (Entered: 08/02/2019)
Set/Reset Deadlines: Parties Additional Joint Status Report due by 8/30/2019. (mac) (Entered: 08/02/2019)
27 Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 08/29/2019)
MINUTE ORDER. Upon review of the Parties' 27 Joint Status Report, it is hereby ORDERED that the Parties shall submit a Joint Status Report by October 29, 2019. Signed by Judge Carl J. Nichols on September 3, 2019. (lccjn2) (Entered: 09/03/2019)
Set/Reset Deadlines/Hearings: Joint Status Report due by 10/29/2019. (zcdw) (Entered: 09/05/2019)
28 NOTICE of Appearance by Alan Jay Butler on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Butler, Alan) (Main Document 28 replaced on 9/9/2019) (zjf). (Entered: 09/05/2019)
29 NOTICE of Change of Address by Jeramie D. Scott (Scott, Jeramie) (Entered: 09/05/2019)
30 Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 10/29/2019)
MINUTE ORDER. Upon review of the Parties' 30 Joint Status Report, it is hereby ORDERED that the Parties shall submit a Joint Status Report by November 13, 2019. Signed by Judge Carl J. Nichols on October 31, 2019. (lccjn2) (Entered: 10/31/2019)

10/31/2019 11/13/2019 11/18/2019
11/18/2019 01/13/2020 01/14/2020
01/14/2020 02/03/2020 02/04/2020
02/04/2020 03/02/2020 03/07/2020
03/09/2020 03/09/2020
03/09/2020 04/08/2020 04/09/2020
04/09/2020 04/29/2020
05/08/2020 05/11/2020

Set/Reset Deadlines/Hearings: Joint Status Report due by 11/13/2019. (zcdw) (Entered: 10/31/2019)
31 Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 11/13/2019)
MINUTE ORDER. Upon review of the Parties' 31 Joint Status Report, it is hereby ORDERED that the Parties shall submit a Joint Status Report by January 13, 2020. Signed by Judge Carl J. Nichols on November 18, 2019. (lccjn2) (Entered: 11/18/2019)
Set/Reset Deadlines: Parties Joint Status Report due by 1/13/2020. (mac) (Entered: 11/18/2019)
32 Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 01/13/2020)
MINUTE ORDER. Upon review of the Parties' 32 Joint Status Report, it is hereby ORDERED that the Parties shall submit a Joint Status Report by February 3, 2020. Signed by Judge Carl J. Nichols on January 14, 2020. (lccjn2) (Entered: 01/14/2020)
Set/Reset Deadlines/Hearings: Joint Status Report due by 2/3/2020. (zcdw) (Entered: 01/15/2020)
33 Joint STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Scott, Jeramie) (Entered: 02/03/2020)
MINUTE ORDER. Upon review of the Parties' 33 Joint Status Report, it is hereby ORDERED that the Parties shall file a Joint Status Report by March 2, 2020. Signed by Judge Carl J. Nichols on February 4, 2020. (lccjn2) (Entered: 02/04/2020)
Set/Reset Deadlines/Hearings: Joint Status Report due by 3/2/2020. (zcdw) (Entered: 02/04/2020)
34 Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 03/02/2020)
MINUTE ORDER. Upon review of the Parties' 34 Joint Status Report, it is hereby ORDERED that the Parties shall file a Joint Status Report by March 9, 2020. Signed by Judge Carl J. Nichols on March 7, 2020. (lccjn2) (Entered: 03/07/2020)
35 Joint STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Scott, Jeramie) (Entered: 03/09/2020)
MINUTE ORDER. Upon review of the Parties' 35 Joint Status Report, it is hereby ORDERED that the Parties shall file a Joint Status Report by April 8, 2020. Signed by Judge Carl J. Nichols on March 9, 2020. (lccjn2) (Entered: 03/09/2020)
Set/Reset Deadlines/Hearings: Joint Status Report due by 4/8/2020. (zcdw) (Entered: 03/12/2020)
36 Joint STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Scott, Jeramie) (Entered: 04/08/2020)
MINUTE ORDER. Upon review of the Parties' 36 Joint Status Report, it is hereby ORDERED that the Parties shall file a Joint Status Report by May 8, 2020. Signed by Judge Carl J. Nichols on April 9, 2020. (lccjn2) (Entered: 04/09/2020)
Set/Reset Deadlines/Hearings: Joint status report due by 5/8/2020. (zcdw) (Entered: 04/09/2020)
37 NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Marc Rotenberg terminated. (Scott, Jeramie) (Entered: 04/29/2020)
38 Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 05/08/2020)
MINUTE ORDER. Upon review of the Parties' 38 Joint Status Report, it is hereby ORDERED that the Parties shall file a Joint Status Report by May 15, 2020. Signed by

05/12/2020

Judge Carl J. Nichols on May 11, 2020. (lccjn2) (Entered: 05/11/2020)
39 STIPULATION of Dismissal by U.S. DEPARTMENT OF HOMELAND SECURITY. (Walker, Johnny) (Entered: 05/12/2020)

 
 Case 1:18-cv-00545 Document 1 Filed 03/08/18 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, N.W., Suite 200 Washington, D.C. 20009,
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, Washington, D.C. 20528
Defendant.

Civ. Action No. 18-545

COMPLAINT FOR INJUNCTIVE RELIEF 1.   This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for injunctive and other appropriate relief to secure the release of agency records requested by Plaintiff Electronic Privacy Information Center (“EPIC”) from the U.S. Department of Homeland Security (“DHS”). 2.   EPIC challenges the DHS’s failure to make a timely decision concerning EPIC’s request for records pertaining to the agency’s drone policies and procedures, as well as the agency’s failure to release any responsive records. EPIC seeks injunctive and other appropriate relief.
Jurisdiction and Venue 3.   This Court has both subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 552(a)(6)(E)(iii) and 552(a)(4)(B). This Court has personal jurisdiction over Defendant DHS. 4.   Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B).

1

Case 1:18-cv-00545 Document 1 Filed 03/08/18 Page 2 of 9
Parties 5.   Plaintiff EPIC is a nonprofit organization, incorporated in Washington, D.C., established in 1994 to focus public attention on emerging privacy and civil liberties issues. Central to EPIC’s mission is oversight and analysis of government activities. EPIC’s Advisory Board includes distinguished experts in law, technology, and public policy. EPIC routinely disseminates information to the public through the EPIC website, the EPIC Alert, and various other news organizations. EPIC is a representative of the news media. EPIC v. Dep’t of Def., 241 F. Supp. 2d 5, 15 (D.D.C. 2003). 6.   Defendant DHS is a federal agency within the meaning of the FOIA, 5 U.S.C. § 552(f)(1). Defendant DHS is headquartered in Washington, D.C.
Facts Background 7.   The use of Unmanned Aerial Systems (“UAS” or “drones”) by the federal government for domestic surveillance raises substantial privacy and civil liberties concerns.1 8.   The technical and economic limitations to aerial surveillance in the United States change dramatically with the advancement of drone technology. 9.   At a Congressional oversight hearing in 2013, Senator Dianne Feinstein stated that “the greatest threat to the privacy of Americans is the drone and the use of the drone and the very few regulations that are on [drones] today.”2
1 See EPIC, Spotlight on Surveillance – DRONES: Eyes in the Sky (Oct. 2014), https://epic.org/privacy/surveillance/spotlight/1014/drones.html#_ftnref35; See also EPIC, Domestic Unmanned Aerial Vehicles (UAVs) and Drones, https://epic.org/privacy/drones/. 2 Oversight of the Federal Bureau of Investigation: Hearing before the S. Comm. on the Judiciary, 113th Cong., 55:05 (C-SPAN broadcast Jun. 19, 2013, 55:05), https://www.cspan.org/video/?313425-1/fbi-chief-defends-agency-practices-senate-hearing.
2

Case 1:18-cv-00545 Document 1 Filed 03/08/18 Page 3 of 9
10.   DHS components that deploy drones for domestic surveillance include Customs and
Border Protection, Immigration and Customs Enforcement, the United States Coast Guard, and the United States Secret Service.3
11.   In 2013, records obtained by EPIC under the Freedom of Information Act showed that
the CBP is operating drones in the United States capable of intercepting electronic communications.4
12.   The records obtained by EPIC also indicate that the drones operated by CBP have the capacity to discern humans from other objects on the ground.5
13.   CBP drones have electro-optical/infrared sensors that allow recognition of human targets
on the ground in various environmental conditions and surface search radar that will indicate a moving human target.6 14.   CBP drones can fly at an altitude of 50,000 feet and up to 20 hours.7
15.   The cameras on CBP drones are “capable of providing video at any altitude and allows operators . . . to take small scale aerial video images of buildings, vehicles, and people.”8
16.   CBP has declared that they have the legal authority to conduct surveillance as far as 100 miles from the border.9
3 DHS Science and Technology Directorate, Enabling Unmanned Aircraft Systems (May 3, 2017), https://www.dhs.gov/sites/default/files/publications/Enabling%20UAS.%20Factsheet.pdf. 4 EPIC, EPIC FOIA – US Drones Intercept Electronic Communications and Identify Human Targets, Feb. 28, 2013, https://epic.org/2013/02/epic-foia---us-drones-intercep.html (record available at https://epic.org/privacy/drones/EPIC-2010-Performance-Specs-1.pdf.) 5 Performance Spec for CBP UAV System, Bureau of Customs and Border Patrol, https://epic.org/privacy/drones/EPIC-2005-Performance-Specs-2.pdf. 6 U.S. Customs and Border Protection, FACT SHEET: Unmanned Aircraft System MQ-9 Predator B, https://www.cbp.gov/sites/default/files/documents/FS_2015_UAS_FINAL_0.pdf. 7 Id. 8 U.S. Department of Homeland Security, Privacy Impact Assessment for the Aircraft Systems, 7 (Sept. 9, 2013), https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp-aircraftsystems-20130926.pdf.
3

Case 1:18-cv-00545 Document 1 Filed 03/08/18 Page 4 of 9
17.   A 2015 DHS Inspector General report found the $360 million CBP drone program ineffective.10 “After 8 years, CBP cannot prove that the program is effective . . . . CBP has
invested significant funds in a program that has not achieved the expected results, and it cannot
demonstrate how much the program has improved border security,” the Inspector General Report concluded.11
18.   DHS is currently researching/testing various drone technologies and expects to
implement a network of drones “that will include small, medium, and large-sized [drones] operating cooperatively with one another. . . .”12
19.   In 2017, DHS solicited proposals for drone sensor technology with a surveillance range
of three miles, the ability to track multiple targets persistently, and facial recognition capabilities or other long-range biometric identification capability.13
20.   The DHS is subject to a Presidential Memorandum that requires the production of certain
reports concerning the deployment of drones within the United States.
21.   On February 15, 2015, President Barack Obama issued a Presidential Memorandum (the
“2015 Presidential Memorandum”) concerning the domestic use of drones by the federal government.14
9 See U.S. Customs and Border Patrol, Legal Authority for the Border Patrol (last updated Nov. 13, 2015), https://help.cbp.gov/app/answers/detail/a_id/1084/~/legal-authority-for-the-borderpatrol. 10 Office of Inspector General, Department of Homeland Security, U.S. Customs and Border Protection’s Unmanned Aircraft System Program Does Not Achieve Intended Results or Recognize All Costs of Operations (Dec. 24, 2014), https://www.oig.dhs.gov/assets/Mgmt/2015/OIG_15-17_Dec14.pdf. 11 Id. 12 DHS Science and Technology Directorate, Enabling Unmanned Aircraft Systems (May 3, 2017), https://www.dhs.gov/sites/default/files/publications/Enabling%20UAS.%20Factsheet.pdf. 13 Department of Homeland Security, Small Unmanned Aircraft System (sUAS), Solicitation Number: HSHQDC-16-R-00114 (Mar. 27, 2017) (April 27, 2017 Technical Call Document), https://www.fbo.gov/?s=opportunity&mode=form&tab=core&id=d2baf5dae6ef4c1df0519f83aa4 63b4d&_cview=0.
4

Case 1:18-cv-00545 Document 1 Filed 03/08/18 Page 5 of 9
22.   At the time, President Obama stated “As UAS are integrated into the NAS [National
Airspace], the Federal Government will take steps to ensure that the integration takes into
account not only our economic competitiveness and public safety, but also the privacy, civil rights, and civil liberties concerns these systems may raise.”15 23.   The 2015 Presidential Memorandum required federal agencies using drones in U.S.
airspace to:
•   Create and periodically re-examine “policies and procedures relating to the
collection, use, retention, and dissemination of information obtained by [drones]”;16
•   Institute policies and procedures “that provide meaningful oversight of
individuals” who have access to personally identifiable information collected by drones;17
•   Establish procedures “to receive, investigate, and address, as appropriate, privacy, civil rights, and civil liberties complaints” arising from the use of drones;18 and
•   Publish within one year of the memorandum “information on how to access [the agency’s] publicly available policies and procedures implementing this section.”19
24.   The Presidential Memorandum also required federal agencies that deploy domestic
drones to “make available to the public, on an annual basis, a general summary of the agency's
14 President Barack Obama, Presidential Memorandum: Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems, The White House (Feb. 15, 2015), https://www.whitehouse.gov/the-pressoffice/2015/02/15/presidential-memorandum-promoting-economic-competitiveness-whilesafegua. 15 Id. 16 Id. § 1(a). 17 Id. § 1(c). 18 Id. § 1(b). 19 Id. § 1(e).
5

Case 1:18-cv-00545 Document 1 Filed 03/08/18 Page 6 of 9
UAS operations during the previous fiscal year, to include a brief description of types or categories of missions flown, and the number of times the agency provided assistance to other agencies, or to State, local, tribal, or territorial governments.”20 25.   The DHS has failed to comply with the transparency obligations set out in the 2015 Presidential Memorandum. 26.   The deployment of drones at the border implicates the privacy rights of Americans. The DHS has recognized the significant risks to public safety arising from the domestic deployment of drones.21
EPIC’s FOIA Request 27.   On September 9, 2016, EPIC submitted a FOIA request (“EPIC’s FOIA Request”), as an attachment via e-mail (as it does so routinely), to the DHS Privacy Office. 28.   The DHS Privacy Office replied that it would not process email attachments; EPIC promptly resubmitted the FOIA request via fax on September 9, 2016. 29.   EPIC’s FOIA Request sought records pertaining to DHS’s use of drones, including the reports required by the 2015 Presidential Memorandum Specifically, EPIC sought:
(1)  All policies and procedures concerning the collection, use, retention, and dissemination of information obtained by the DHS using drones/UAS.
(2)  All policies and procedures concerning the training and oversight of individuals who work on DHS drone/UAS programs and/or have access to personally identifiable information collected by the DHS using drones/UAS.
20 Id. § 1(d)(iii). 21 See, e.g., DHS, Unmanned Aircraft Systems: Addressing Critical Infrastructure Security Challenge (Feb. 2017), https://www.dhs.gov/sites/default/files/publications/uas-ci-challengesfact-sheet-508.pdf; DHS Science and Technology Directorate, Countering Unmanned Aircraft Systems (May 3, 2017), https://www.dhs.gov/sites/default/files/publications/Counter%20UAS%20Factsheet.pdf.
6

Case 1:18-cv-00545 Document 1 Filed 03/08/18 Page 7 of 9
(3)  All policies and procedures concerning the DHS’s processing of privacy, civil rights, and civil liberties complaints that arise from the DHS’s use of drones/UAS.
(4)  All annual summaries of DHS drone/UAS operations, publication of which is mandated by the presidential memorandum of February 15, 2015.22
(5)  The status report required by the presidential memorandum of February 15, 2015.23
30.   EPIC sought “News Media” fee status under 5 U.S.C. § 552(4)(A)(ii)(II) and a waiver of all duplication fees under 5 U.S.C. § 552(a)(4)(A)(iii). 31.   EPIC also sought expedited processing under 5 U.S.C. § 552(a)(6)(E)(v)(II). 32.   On February 2, 2017, EPIC called DHS to inquiry about the status of EPIC’s FOIA Request. The agency informed EPIC that its FOIA request had been received and assigned number CBP-OAM-2017-002896.
EPIC’s Constructive Exhaustion of Administrative Remedies 33.   Today is the 544th day since DHS received EPIC’s FOIA Request. 34.   Defendant DHS has failed to make a determination regarding EPIC’s FOIA Request within the time period required by 5 U.S.C. § 552(a)(6)(A)(ii). 35.   EPIC has exhausted all administrative remedies under 5 U.S.C. § 552(a)(6)(C)(i).
Count I Violation of FOIA: Failure to Comply with Statutory Deadlines 36.   Plaintiff asserts and incorporates by reference paragraphs 1–35.
22 President Barack Obama, Presidential Memorandum: Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems, The White House (Feb. 15, 2015), https://www.whitehouse.gov/the-pressoffice/2015/02/15/presidential-memorandum-promoting-economic-competitiveness-whilesafegua. 23 Id. § 1(e).
7

Case 1:18-cv-00545 Document 1 Filed 03/08/18 Page 8 of 9
37.   Defendant DHS has failed to make determination regarding EPIC’s FOIA request for 544 days and has thus violated the deadlines under 5 U.S.C. §§ 552(a)(6)(E)(ii)(I), (a)(6)(A)(ii). 38.   Plaintiff has constructively exhausted all applicable administrative remedies under 5 U.S.C. § 552(a)(6)(C)(i).
Count II Violation of FOIA: Unlawful Withholding of Agency Records 39.   Plaintiff asserts and incorporates by reference paragraphs 1–35. 40.   Defendant DHS has wrongfully withheld agency records requested by Plaintiff. 41.   Plaintiff has exhausted all applicable administrative remedies under 5 U.S.C. § 552(a)(6)(C)(i). 42.   Plaintiff is entitled to injunctive relief with respect to the release and disclosure of the requested records.
Requested Relief WHEREFORE, EPIC requests that this Court:
A.   Order DHS to grant EPIC media status for the purposes of fee assessment; B.   Order DHS to grant EPIC a fee waiver; C.   Order DHS to grant EPIC expedited processing D.   Order DHS to disclose to EPIC all responsive, non-exempt records as expeditiously as
possible; E.   Award EPIC costs and reasonable attorney’s fees incurred in this action; and F.   Grant such other relief as the Court may deem just and proper.
8

Case 1:18-cv-00545 Document 1 Filed 03/08/18 Page 9 of 9

Dated: March 8, 2018

Respectfully Submitted,
Marc Rotenberg, D.C. Bar# 422825 EPIC President and Executive Director
Alan Butler, D. C. Bar# 1012128 EPIC Senior Counsel
/s/ Jeramie D. Scott Jeramie D. Scott, D.C. Bar # 1025909 EPIC National Security Counsel
ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, N.W. Suite 200 Washington, D.C. 20009 (202) 483-1140 (telephone) (202) 483-1248 (facsimile)

9

 
 Case 1:18-cv-00545-CJN Document 22 Filed 05/08/19 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
Defendant.

Civil Action No. 18-0545-KBJ

STATUS REPORT Plaintiff, the Electronic Privacy Information Center (“EPIC”) submits this status report in response to the Court’s minute order dated April 14, 2019 to highlight the Defendant's, the United States Department of Homeland Security ("DHS"), unprecedented delay in completing the agency's search for responsive documents to EPIC's Freedom of Information Act ("FOIA") request. 1. On May 16, 2018, DHS stated that the agency was "in the process of finalizing its search for responsive records…" ECF No. 11. Additionally, DHS stated that the agency "expects to complete its search by or before May 31, 2018 and to process at least 300 pages of potentially responsive records per month starting 45 days after all searches are complete…" ECF No. 11.
2. DHS failed to complete the search by May 31, 2018 and reached out to EPIC to narrow the search and agree on a search protocol. See ECF No. 12.
3. On July 30, 2018, having reached an agreeable search protocol, DHS again stated it would begin processing 300 pages a month once the search was completed. ECF No. 14.

1

Case 1:18-cv-00545-CJN Document 22 Filed 05/08/19 Page 2 of 3
4. On September 13, 2018, DHS once more indicated the agency was still conducting the search and would begin producing documents 45 days after completion of the search. ECF No. 15. 5. On November 13, 2018, DHS stated it was still in the process of completing the search for responsive records and that staff turn-over had provided challenges in completing the search. ECF No. 16. 6. On February 8, 2019, DHS stated it was still in the process of completing the search and that staff turn-over as well as a backlog created by the lapse in appropriations was causing delay in the completion of the search. ECF No. 19. 7. On March 25, 2019, DHS again stated that staff turn-over and a backlog were causing a delay in completing the search. ECF No. 20. 8. On April 8, 2019, DHS stated it "discovered an error with [its] search tasker and is in the process of updating the search and correcting the prior deficiency." DHS also stated that the agency "anticipates being able to provide an estimated document count for potentially responsive documents in 30 days." ECF No. 21. 9. EPIC reached out to Counsel for Defendant on May 6, 2019 and May 8 , 2019 to inquire about any update on the status of processing EPIC's Freedom of Information Act ("FOIA") request. 10. At 4:58 P.M. on May 8, 2019, Counsel for Defendant provided a draft joint status report that stated DHS had no update on the status of the search and did not know when the search would be completed.
2

Case 1:18-cv-00545-CJN Document 22 Filed 05/08/19 Page 3 of 3

12. DHS has had roughly a year to complete the search for responsive documents to EPIC's FOIA request and has failed to do so.

13. Given the failure of DHS to complete this routine task in a timely manner, EPIC request the Court order the agency to complete the search for responsive records in the next 30 days. Additionally, EPIC request the Court order DHS to begin a monthly rolling production of documents 30 days after the completion of the search with each production including the processing of at least 300 pages.

Dated: May 8, 2019

Respectfully submitted,
Marc Rotenberg, D.C. Bar #422825 EPIC President and Executive Director
Alan Butler, D.C. Bar #1012128 EPIC Senior Counsel
_ /s/ Jeramie D. Scott Jeramie D. Scott, D.C. Bar #1025909 EPIC Senior Counsel
ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, N.W., Suite 200 Washington, District of Columbia 20009 Telephone: 202 483 1140 Facsimile: 202 482 1248
Counsel for Plaintiff

3

 
 Case 1:18-cv-00545-CJN Document 23 Filed 05/08/19 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
Defendant.

Civil Action No. 18-0545-KBJ

DEFENDANT’S STATUS REPORT Defendant, the United States Department of Homeland Security (“DHS”), submits this status report in response to the Court’s minute order dated April 3, 2019. Plaintiff declined to join in this report and informed Defendant that it would submit a separate report. 1. On March 8, 2018, EPIC filed a complaint alleging that DHS had not fulfilled its Freedom of Information Act (“FOIA”) request seeking certain categories of records concerning DHS’s use of drones and unmanned aerial systems. ECF No. 1. DHS filed an answer on April 11, 2018. ECF No. 10. The parties filed joint status reports on May 16, 2018, ECF No. 11, June 15, 2018, ECF No. 11, July 30, 2018, ECF No. 14, September 13, 2018, ECF No. 15, November 13, 2018, ECF No. 16, February 8, 2019, ECF No. 19, March 25, 2019, ECF No. 20, and April 8, 2019, ECF No. 21. 2. DHS provides the following status update regarding its response to EPIC’s FOIA request.
a. Department of Homeland Security. On April 1, 2019, DHS produced the status report required by the Presidential Memorandum of February 15, 2015 (part 5 of the FOIA request). DHS is continuing to progress with its search for the remaining items in the FOIA request.

Case 1:18-cv-00545-CJN Document 23 Filed 05/08/19 Page 2 of 4
DHS discovered an error with its original search tasker and is in the process of updating the search and correcting the prior deficiency. In the last status report, DHS stated that it anticipated being able to provide an estimated document count for potentially responsive documents within 30 days. DHS is unable to do so, however, because its search is not yet complete. DHS does not have an estimate for when it will complete its search at this time but will endeavor to provide such estimate to Plaintiff and the Court in the next status report.
b. The DHS Cybersecurity and Infrastructure Security Agency (CISA) (formerly the National Protection and Programs Directorate). On September 28, 2018, CISA made the fourth and final response to EPIC’s FOIA request.
c. United States Secret Service. The U.S. Secret Service completed its processing of responsive records and released records to Plaintiff on July 20, 2018.
d. Federal Emergency Management Agency. FEMA provided a final response to Plaintiff on June 25, 2018.
e. Science and Technology. S&T provided a final response to Plaintiff on February 5, 2019.
f. United States Coast Guard. On October 29, 2018, the Coast Guard provided responsive records to EPIC electronically via the AMRDEC safe-send system. On October 30, 2018, the Coast Guard sent a CD containing the same records to EPIC via the U.S. Postal Service.
g. Immigration and Customs Enforcement. ICE has now confirmed that it has processed all potentially responsive records previously collected and that none is responsive. Since the last status report, however, ICE has tasked one additional office—Policy—with
2

Case 1:18-cv-00545-CJN Document 23 Filed 05/08/19 Page 3 of 4

conducting a search for potentially responsive records. ICE expects that search to be complete on or before May 31, 2019.
h. Customs and Border Protection. CBP initially responded to EPICs request by withholding the single responsive record under Exemption 7(E). CBP has since determined that the document may be released to full and provided it to EPIC on July 13, 2018.
3. Given the ongoing nature of the search by DHS and ICE, Defendant requests that the Court order the parties to file another joint status report in 30 days, on or before June 7, 2019.

Dated: May 8, 2019

Respectfully submitted,
JESSIE K. LIU, D.C. Bar #472845 United States Attorney
DANIEL F. VAN HORN, D.C. Bar #924092 Chief, Civil Division
By: /s/ Johnny Walker JOHNNY H. WALKER, D.C. Bar # 991325 Assistant United States Attorney 555 4th Street, N.W. Washington, District of Columbia 20530 Telephone: 202 252 2575 johnny.walker@usdoj.gov
Counsel for Defendant

3

Case 1:18-cv-00545-CJN Document 23 Filed 05/08/19 Page 4 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
Defendant.

Civil Action No. 18-0545-KBJ

PROPOSED ORDER Upon consideration of the parties’ joint status report dated April 8, 2019, it is hereby ORDERED that the parties shall file another joint status report on or before June 7, 2019. It is SO ORDERED.

Dated:

The Honorable Ketanji Brown Jackson United States District Judge

 
 Case 1:18-cv-00545-CJN Document 24 Filed 05/13/19 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

ELECTRONIC PRIVACY

)

INFORMATION CENTER,

)

)

Plaintiff,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF )

HOMELAND SECURITY,

)

)

Defendant.

)

)

No. 18-cv-0545 (KBJ)

ORDER

Plaintiff Electronic Privacy Information Center (“EPIC”) and defendant United

States Department of Homeland Security (“DHS”) have filed separate reports updating

this Court on the progress, or lack thereof, that DHS Headquarters has made in

searching for records responsive to EPIC’s FOIA request. (See EPIC’s Status Report,

ECF No. 22; Def.’s Status Report, ECF No. 23.) Both parties appear to be in agreement

regarding the essential facts pertaining to DHS’s delay in completing its search efforts,

although they disagree as to next steps. Based on this Court’s consideration of the

representations made in both status reports, it is hereby

ORDERED that, on or before June 12, 2019, DHS Headquarters shall complete

its search for records responsive to EPIC’s FOIA request. It is

FURTHER ORDERED that, on or before July 29, 2019, DHS Headquarters

shall process responsive records at a rate of no fewer than 300 pages per month and

produce non-exempt records to EPIC on a monthly basis, with the first production

occurring. It is

Case 1:18-cv-00545-CJN Document 24 Filed 05/13/19 Page 2 of 2

FURTHER ORDERED that, on or before June 17, 2019, the parties shall file a further joint status report in this matter, which shall contain a proposed schedule for further proceedings, if litigation is going to be necessary.

DATE: May 13, 2019

Ketanji Brown Jackson
KETANJI BROWN JACKSON United States District Judge