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CLOSED,TYPE I-FOIA

U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:18-cv-00797-CKK

ELECTRONIC PRIVACY INFORMATION CENTER Date Filed: 04/09/2018

v. U.S. IMMIGRATION AND CUSTOMS

Date Terminated: 06/23/2020

ENFORCEMENT

Jury Demand: None

Assigned to: Judge Colleen Kollar-Kotelly

Nature of Suit: 895 Freedom of

Cause: 05:552 Freedom of Information Act

Information Act

Jurisdiction: U.S. Government

Defendant

Plaintiff
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

Jeramie D. Scott ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW Suite 200 Washington, DC 20009 (202) 483-1140

V.
Defendant
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT

Fax: (202) 483-1248 Email: jscott@epic.org ATTORNEY TO BE NOTICED
represented by William Chang U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 4th St, NW Washington, DC 20530 (202) 252-2510 Email: william.chang2@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
Joshua L. Rogers U.S. ATTORNEY'S OFFICE 150 Fayetteville St. Raleigh, NC 27601 202-856-4465 Email: joshua.rogers3@usdoj.gov TERMINATED: 11/20/2019

Date Filed

#

04/09/2018 1

Docket Text
COMPLAINT against U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT ( Filing fee $ 400 receipt number 0090-5411794) 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. Immigration and Customs Enforcement)(Scott, Jeramie) (Entered: 04/09/2018)

04/09/2018 04/10/2018 04/16/2018 05/02/2018 05/02/2018
05/02/2018 05/02/2018 05/09/2018 05/23/2018 05/24/2018

Case Assigned to Judge Colleen Kollar-Kotelly. (zmd) (Entered: 04/10/2018)

2 SUMMONS (3) Issued Electronically as to U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent) (zmd) (Entered: 04/10/2018)

ORDER ESTABLISHING PROCEDURES FOR CASES

3

ASSIGNED TO JUDGE COLLEEN KOLLAR-KOTELLY. Signed

by Judge Colleen Kollar-Kotelly on 04/16/18. (DM) (Entered:

04/16/2018)

4 NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 05/02/2018)

5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/25/2018. Answer due for ALL FEDERAL DEFENDANTS by 5/25/2018. (Scott, Jeramie) (Entered: 05/02/2018)

6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 04/24/2018. (Scott, Jeramie) (Entered: 05/02/2018)

7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT served on 4/23/2018 (Scott, Jeramie) (Entered: 05/02/2018)

8 NOTICE of Appearance by Joshua L. Rogers on behalf of U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Rogers, Joshua) (Entered: 05/09/2018)

9 MOTION for Extension of Time to File Answer by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Rogers, Joshua) (Entered: 05/23/2018)

MINUTE ORDER. The Court is in receipt of Defendant's 9 Motion for Extension of Time. Defendant requests an extension of time until June 25, 2018 to file an answer or other response to Plaintiff's Complaint because defense counsel is busy with other matters. This is the first motion for an extension of this deadline. As Defendant

acknowledges, however, this motion was not filed in a timely manner. The Order Establishing Procedures in this case states that "[m]otions for extensions of time must be filed at least four (4) business days prior to the first affected deadline." ECF No. 4 at 3. Defense counsel represents that he has been unable to obtain Plaintiff's position on this motion. By no later than MAY 25, 2018, Plaintiff shall file a notice with the Court indicating whether it consents to this motion. Signed by Judge Colleen Kollar-Kotelly on 5/24/2018. (lcckk3) (Entered: 05/24/2018)

05/24/2018

Set/Reset Deadlines: Plaintiff's notice to the Court due by 5/25/2018. (kt) (Entered: 05/24/2018)

05/25/2018

10 NOTICE of Appearance by Alan Jay Butler on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Butler, Alan) (Entered: 05/25/2018)

05/25/2018

11 Memorandum in opposition to re 9 MOTION for Extension of Time to File Answer filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Butler, Alan) (Entered: 05/25/2018)

05/25/2018 12

REPLY re 9 MOTION for Extension of Time to File Answer filed by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Rogers, Joshua) (Entered: 05/25/2018)

05/30/2018

MINUTE ORDER. The Court is in receipt of Defendant's 9 Motion for Extension of Time. Defendant requests a 31-day extension of time until June 25, 2018 to file an answer or other response to Plaintiff's Complaint because defense counsel is busy with other matters. This is the first motion for an extension of this deadline. As Defendant acknowledges, however, this motion was not filed in a timely manner. The Order Establishing Procedures in this case states that "[m]otions for extensions of time must be filed at least four (4) business days prior to the first affected deadline." ECF No. 4 at 3. Plaintiff opposes Defendant's Motion. Plaintiff argues that Defendant has not set forth adequate grounds for a 31-day extension. Plaintiff would, however, consent to a 14-day extension. Defense counsel has filed a reply to Plaintiff's Opposition, indicating that he also recently underwent an unexpected medical procedure and has been called for jury duty in early June. The Court finds that there are adequate grounds for the requested extension and will GRANT Defendant's Motion NUNC PRO TUNC. Defendant shall respond to Plaintiff's Complaint by no later than JUNE 25, 2018. No further extensions will be granted. Signed by Judge Colleen Kollar-Kotelly on 5/30/2018. (lcckk3) (Entered: 05/30/2018)

05/30/2018 06/21/2018 06/22/2018 06/22/2018 07/12/2018 07/13/2018
07/13/2018 09/12/2018 09/14/2018

Set/Reset Deadlines: Answer to Complaint due by 6/25/2018. (dot) (Entered: 05/31/2018)
13 ANSWER to Complaint by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT.(Rogers, Joshua) (Entered: 06/21/2018)
14 ORDER. The parties shall file a Joint Status Report by no later than JULY 13, 2018. Signed by Judge Colleen Kollar-Kotelly on 6/22/2018. (lcckk3) (Entered: 06/22/2018)
Set/Reset Deadlines: Joint Status Report due by 7/13/2018. (dot) (Entered: 06/22/2018)
15 Joint STATUS REPORT by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Rogers, Joshua) (Entered: 07/12/2018)
MINUTE ORDER. The Court is in receipt of the parties' 15 Joint Status Report. The parties represent that Defendant will begin to produce records to Plaintiff within the next 30 days and will thereafter release records on a rolling monthly basis. The parties will meet and confer to set a production schedule before the next Joint Status Report is filed. The parties are ORDERED to file another Joint Status Report by no later than SEPTEMBER 12, 2018, updating the Court on the status of Defendant's processing of Plaintiff's FOIA request. Signed by Judge Colleen Kollar-Kotelly on 7/13/2018. (lcckk3) (Entered: 07/13/2018)
Set/Reset Deadlines: Joint Status Report due by 9/12/2018, updating the Court on the status of Defendant's processing of Plaintiff's FOIA request. (dot) (Entered: 07/13/2018)
16 Joint STATUS REPORT by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Rogers, Joshua) (Entered: 09/12/2018)
MINUTE ORDER. The Court is in receipt of the parties' 16 Joint Status Report. The parties represent that Defendant has released some documents responsive to Plaintiff's FOIA request. Defendant has also collected additional documents which are potentially responsive. The parties have agreed to a rolling release schedule of three monthly productions, concluding October 31, 2018. The first set of productions was due August 2018, but production was delayed as Defendant was required to consult with a separate federal agency. The records will still be produced by the agreed upon deadline of October 31, 2018. The parties are ORDERED to

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02/01/2019 02/04/2019

file another Joint Status Report by no later than NOVEMBER 14, 2018, updating the Court on the status of Defendant's processing of Plaintiff's FOIA request. The parties are further ORDERED to file additional Joint Status Reports every 60 days thereafter. The parties are also free to file Joint Status Reports between the filing deadlines if issues arise that require the Court's attention. Signed by Judge Colleen Kollar-Kotelly on 09-14-2018. (lcckk3) (Entered: 09/14/2018)
Set/Reset Deadlines: Joint Status Report due by 11/14/2018, updating the Court on the status of Defendant's processing of Plaintiff's FOIA request. (dot) (Entered: 09/19/2018)
17 Joint STATUS REPORT by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Rogers, Joshua) (Entered: 11/13/2018)
18 MOTION to Stay by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Coles-Huff, Doris) (Entered: 01/11/2019)
MINUTE ORDER. The Court is in receipt of Defendant's 18 Motion for Stay of All Proceedings in Light of Lapse of Appropriations. As of December 21, 2018, the appropriations act that had been funding the Department of Justice expired and appropriations lapsed. Absent an appropriation, Department attorneys are prohibited from working, even on a voluntary basis, except in limited circumstances which do not apply to this case. Defendant requests a stay of all proceedings until Congress has restored appropriations to the Department and an extension of all deadlines commensurate with the duration of the lapse in appropriations. Plaintiff consents to the relief requested. Defendant's motion is GRANTED. Defendant is ORDERED to file a status report within seven days of the restoration of appropriations, notifying the Court and the parties and requesting any appropriate extensions. Signed by Judge Colleen Kollar-Kotelly on 1-14-2019. (lcckk3) (Entered: 01/15/2019)
19 NOTICE of Restored Government Funding by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Rogers, Joshua) (Entered: 02/01/2019)
MINUTE ORDER. The Court is in receipt of Defendant's 19 Status Report. On January 15, 2019, the Court issued a stay in this case due to the lapse in appropriations to the Department of Justice. Appropriations have now been restored, so the Court ORDERS the stay lifted. The Court further ORDERS the parties to file a Joint

02/04/2019 03/18/2019 03/19/2019
03/19/2019 04/17/2019 04/23/2019

Status Report on MARCH 18, 2019, updating the Court on the status of Defendant's processing of Plaintiff's FOIA request. The parties are further ORDERED to file additional Joint Status Reports every 60 days thereafter. The parties are also free to file Joint Status Reports between the filing deadlines if issues arise that require the Court's attention. Signed by Judge Colleen Kollar-Kotelly on 2-42019. (lcckk3) (Entered: 02/04/2019)
Set/Reset Deadlines: Joint Status Report due by 3/18/2019. (dot) (Entered: 02/05/2019)
20 Joint STATUS REPORT by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Rogers, Joshua) (Entered: 03/18/2019)
MINUTE ORDER. The Court is in receipt of the parties' 20 Joint Status Report. The parties report that Defendant has produced the responsive records on schedule. However, Plaintiff has identified several issues including the sufficiency of the search and the assertion of Exemptions 4, 5, and 7(E). To give the parties time to confer, the Court ORDERS the parties to submit another status report by APRIL 17, 2019, updating the Court on the status of the issues and proposing a plan for further proceedings. Signed by Judge Colleen Kollar-Kotelly on 3/19/2019. (lcckk3) (Entered: 03/19/2019)
Set/Reset Deadlines: Joint Status Report due by 4/17/2019, updating the Court on the status of the issues and proposing a plan for further proceedings. (dot) (Entered: 03/20/2019)
21 Joint STATUS REPORT by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Rogers, Joshua) (Entered: 04/17/2019)
MINUTE ORDER. The Court is in receipt of the parties' 21 Joint Status Report. Defendant reports that it requires additional time to review its withholdings and resolve or narrow the issues in dispute. Additionally, the parties require additional time to establish a schedule for production of an outstanding record, for releasing details of the agency's search methodology, and for reprocessing information withheld under Exemptions 4, 5 and 7(E). The Court ORDERS the parties to file an additional Joint Status Report on or before MAY 1, 2019, updating the Court on the status of the issues in dispute and proposing a schedule for further proceedings. Signed by Judge Colleen Kollar-Kotelly on 4/23/2019. (lcckk3) (Entered: 04/23/2019)

04/23/2019 05/01/2019 05/02/2019
05/02/2019 06/07/2019 06/07/2019

Set/Reset Deadlines: Joint Status Report due by 5/1/2019, updating the Court on the status of the issues in dispute and proposing a schedule for further proceedings. (dot) (Entered: 04/24/2019)
22 Joint STATUS REPORT by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Rogers, Joshua) (Entered: 05/01/2019)
MINUTE ORDER. The Court is in receipt of the parties' 22 Joint Status Report. Based on the parties' statements, the Court ORDERS Defendant to produce the one outstanding record to Plaintiff by MAY 15, 2019, to provide Plaintiff with details of its search methodology by MAY 15, 2019, and to reprocess the portions of records identified by Plaintiff by MAY 23, 2019. Defendant indicates that these deadlines are likely to work, but Defendant has not been able to confirm with agency counsel due to agency counsel's extended personal leave. If after conferring with agency counsel, it is not possible to meet these deadlines, the parties may apply for an extension. The Court further ORDERS the parties to file by JUNE 7, 2019, a Joint Status Report informing the Court whether or not there are any remaining issues in dispute and proposing steps for going forward. Signed by Judge Colleen KollarKotelly on 5/2/2019. (lcckk3) (Entered: 05/02/2019)
Set/Reset Deadlines: Joint Status Report due by 6/7/2019. (dot) (Entered: 05/03/2019)
23 STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Scott, Jeramie) (Entered: 06/07/2019)
MINUTE ORDER. The Court is in receipt of Plaintiff's 23 Status Report. On May 2, 2019, the Court ordered Defendant to produce the one outstanding record to Plaintiff by MAY 15, 2019, to provide Plaintiff with details of its search methodology by MAY 15, 2019, and to reprocess the portions of records identified by Plaintiff by MAY 23, 2019. In its status report, Plaintiff indicates that Defendant provided the one outstanding record and explained its search methodology by May 15, 2019. However, Plaintiff has not received any further communication from Defendant about the reprocessing of the records. And, when Plaintiff contacted Defendant to confer about the submission of the Joint Status Report due on June 7, 2019, Defendant did not reply. Lacking any response from Defendant, the Court will grant the relief requested by Plaintiff. The Court ORDERS Defendant to complete the reprocessing of Plaintiff's records by JUNE 20, 2019. The Court further ORDERS the parties to submit a Joint Status Report by

06/07/2019 06/10/2019 06/28/2019 07/01/2019
07/01/2019 07/29/2019 07/29/2019

JUNE 28, 2019, informing the Court whether or not there are any remaining issues in dispute and proposing steps for going forward. Signed by Judge Colleen Kollar-Kotelly on 6/7/2019. (lcckk3) (Entered: 06/07/2019)
Set/Reset Deadlines: Joint Status Report due by 6/28/2019, informing the Court whether or not there are any remaining issues in dispute and proposing steps for going forward. (dot) (Entered: 06/12/2019)
24 RESPONSE to Minute Order of 6/7/19 by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Rogers, Joshua) Modified text on 6/11/2019 (ztd). (Entered: 06/10/2019)
25 Joint STATUS REPORT by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Rogers, Joshua) (Entered: 06/28/2019)
MINUTE ORDER. The Court is in receipt of the parties' 25 Joint Status Report. Plaintiff reports that it has agreed to provide a subset of documents that are representative of the issues in dispute so that Defendant can either agree to reprocess and release the documents or provide a more detailed explanation for the withholdings. The Court ORDERS the parties to provide another Joint Status Report by JULY 29, 2019, updating the Court on the status of the issues and providing a proposal for further proceedings. Signed by Judge Colleen Kollar-Kotelly on 7/1/2019. (lcckk3) (Entered: 07/01/2019)
Set/Reset Deadlines: Joint Status Report due by 7/29/2019, updating the Court on the status of the issues and providing a proposal for further proceedings. (dot) (Entered: 07/02/2019)
26 Joint STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Scott, Jeramie) (Entered: 07/29/2019)
MINUTE ORDER. The Court is in receipt of the parties' 26 Joint Status Report. Plaintiff reports that it has agreed to provide a subset of documents that are representative of the issues in dispute so that Defendant can either agree to reprocess and release the documents or provide a more detailed explanation for the withholdings in a Vaughn index. Plaintiff is still in the process of identifying a subset of documents and will provide these documents to Defendant by August 2, 2019. The Court ORDERS the parties to provide another Joint Status Report by AUGUST 20, 2019, updating the Court on the status of the issues and providing a proposal for further proceedings. Signed by Judge Colleen Kollar-Kotelly on 7-292019. (lcckk3) (Entered: 07/29/2019)

07/29/2019 08/20/2019 08/20/2019
08/20/2019 09/05/2019 10/03/2019 10/03/2019
10/03/2019

Set/Reset Deadlines: Joint Status Report due by 8/20/2019, updating the Court on the status of the issues and providing a proposal for further proceedings. (dot) (Entered: 07/30/2019)
27 Joint STATUS REPORT by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Rogers, Joshua) (Entered: 08/20/2019)
MINUTE ORDER. The Court is in receipt of the parties' 27 Joint Status Report. Plaintiff has provided a subset of documents that are representative of the issues in dispute so that Defendant can either agree to reprocess and release the documents or provide a more detailed explanation for the withholdings in a Vaughn index. Defendant has agreed to provide the reprocessed documents and/or a Vaughn index by September 21, 2019. The Court ORDERS the parties to provide another Joint Status Report by OCTOBER 4, 2019, updating the Court on the status of the issues and providing a proposal for further proceedings. Signed by Judge Colleen KollarKotelly on 8-20-2019. (lcckk3) (Entered: 08/20/2019)
Set/Reset Deadlines: Joint Status Report due by 10/4/2019, updating the Court on the status of the issues and providing a proposal for further proceedings. (dot) (Entered: 08/21/2019)
28 NOTICE of Change of Address by Jeramie D. Scott (Scott, Jeramie) (Entered: 09/05/2019)
29 Joint STATUS REPORT by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Rogers, Joshua) (Entered: 10/03/2019)
MINUTE ORDER. The Court is in receipt of the parties' 29 Joint Status Report. Defendant has completed its reprocessing and Vaughn index for the subset of documents Defendant identified as representative of the issues in dispute. Defendant will provide the reprocessed documents and Vaughn index by October 4, 2019. The Court ORDERS the parties to file a further Joint Status Report by NOVEMBER 4, 2019, indicating the status of the issues in dispute and proposing steps for moving forward. Signed by Judge Colleen Kollar-Kotelly on 10-3-2019. (lcckk3) (Entered: 10/03/2019)
Set/Reset Deadlines: Joint Status Report due by 11/4/2019, indicating the status of the issues in dispute and proposing steps for moving forward. (dot) (Entered: 10/04/2019)

11/04/2019 11/05/2019
11/05/2019 11/20/2019 12/04/2019 12/04/2019
12/04/2019 02/04/2020

30 Joint STATUS REPORT by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Rogers, Joshua) (Entered: 11/04/2019)
MINUTE ORDER. The Court is in receipt of the parties' 30 Joint Status Report. Defendant has provided Plaintiff with the updated Vaughn index. However, due to a mailing error, Plaintiff did not receive the 60 pages of reprocessed documents until November 4, 2019. Plaintiff requires additional time to review the reprocessed records and the Vaughn index and to confer with Defendant regarding the extent of any outstanding issues still in dispute. The Court ORDERS the parties to file a further Joint Status Report by DECEMBER 4, 2019, indicating the status of the issues in dispute and proposing steps for moving forward. Signed by Judge Colleen Kollar-Kotelly on 11-5-2019. (lcckk3) (Entered: 11/05/2019)
Set/Reset Deadlines: Joint Status Report due by 12/4/2019, indicating the status of the issues in dispute and proposing steps for moving forward. (dot) (Entered: 11/06/2019)
31 NOTICE OF SUBSTITUTION OF COUNSEL by William J. Chang on behalf of U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT Substituting for attorney joshua rogers (Chang, William) (Entered: 11/20/2019)
32 Joint STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Butler, Alan) (Entered: 12/04/2019)
MINUTE ORDER. The Court is in receipt of the parties' 32 Joint Status Report. Defendant has provided Plaintiff with records responsive to its request, reprocessed records identified by Plaintiff, and a Vaughn index. The parties continue to seek to narrow the issues in dispute. As such, Plaintiff has submitted certain questions to Defendant regarding withholdings. The Court ORDERS the parties to file a further Joint Status Report by FEBRUARY 4, 2020, indicating the status of the issues in dispute and proposing steps for moving forward. Signed by Judge Colleen Kollar-Kotelly on 12-42019. (lcckk3) (Entered: 12/04/2019)
Set/Reset Deadlines: Joint Status Report due by 2/4/2020, indicating the status of the issues in dispute and proposing steps for moving forward. (dot) (Entered: 12/05/2019)
33 Joint STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Scott, Jeramie) (Entered: 02/04/2020)

02/05/2020

MINUTE ORDER. The Court is in receipt of the parties' 33 Joint Status Report. Defendant has provided Plaintiff with records responsive to its request, reprocessed records identified by Plaintiff, and a Vaughn index. The parties report that only one issue remains in dispute concerning the b(7)(E) withholdings of legal considerations for forensic cell phone searches. The parties are attempting to resolve this issue without Court intervention. The Court ORDERS the parties to file a further Joint Status Report by FEBRUARY 18, 2020, indicating the status of the issue in dispute and proposing steps for moving forward. Signed by Judge Colleen Kollar-Kotelly on 2-5-2020. (lcckk3) (Entered: 02/05/2020)

02/05/2020 02/18/2020 02/18/2020
02/18/2020

Set/Reset Deadlines: Joint Status Report due by 2/18/2020, indicating the status of the issue in dispute and proposing steps for moving forward. (dot) (Entered: 02/07/2020)
34 Joint STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Scott, Jeramie) (Entered: 02/18/2020)
MINUTE ORDER. The Court is in receipt of the parties' 34 Joint Status Report. The parties report that there are no outstanding issues concerning the production in dispute. The only outstanding issue is attorneys' fees and costs. The parties request 45 days to discuss a settlement. The Court ORDERS the parties to file a status report by APRIL 3, 2020, indicating how they would like to proceed on the issue of attorneys' fees and costs. If the parties reach a settlement prior to April 3, 2020, they shall immediately notify the Court. Signed by Judge Colleen Kollar-Kotelly on 2-18-2020. (lcckk3) (Entered: 02/18/2020)
Set/Reset Deadlines: Status Report due by 4/3/2020, indicating how they would like to proceed on the issue of attorneys' fees and costs. (zdot) (Entered: 02/19/2020)

04/03/2020 35

Joint STATUS REPORT by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Chang, William) (Entered: 04/03/2020)

04/03/2020

MINUTE ORDER. The Court is in receipt of the parties' 35

Joint Status Report. The parties report that Plaintiff has made an offer to settle the case and Defendant is seeking authority to respond to the offer. The Court ORDERS the parties to file a status report by MAY 3, 2020, indicating how they would like to proceed on the issue of attorneys' fees and costs. If the parties reach a settlement prior to May 3, 2020, they shall immediately notify the

Court. Signed by Judge Colleen Kollar-Kotelly on 4-3-2020. (lcckk3) (Entered: 04/03/2020)

04/03/2020

Set/Reset Deadlines: Joint Status Report due by 5/3/2020, indicating how they would like to proceed on the issue of attorneys' fees and costs. (dot) (Entered: 04/06/2020)

04/29/2020 36

NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Marc Rotenberg terminated. (Scott, Jeramie) (Entered: 04/29/2020)

05/01/2020

37 Joint STATUS REPORT by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Chang, William) (Entered: 05/01/2020)

05/04/2020

MINUTE ORDER. The Court is in receipt of the parties' 37 Joint Status Report. The parties report that Plaintiff has made an offer to settle the case and Defendant is seeking authority to respond to the offer, which has been delayed due to COVID-19. The Court ORDERS the parties to file a status report by JUNE 3, 2020, indicating how they would like to proceed on the issue of attorneys' fees and costs. If the parties reach a settlement prior to June 3, 2020, they shall immediately notify the Court. Signed by Judge Colleen Kollar-Kotelly on 5-4-2020. (lcckk3) (Entered: 05/04/2020)

05/04/2020

Set/Reset Deadlines: Joint Status Report due by 6/3/2020, indicating how they would like to proceed on the issue of attorneys' fees and costs. (dot) (Entered: 05/04/2020)

06/03/2020

38 Joint STATUS REPORT by U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Chang, William) (Entered: 06/03/2020)

06/03/2020

MINUTE ORDER. The Court is in receipt of the parties' 38 Joint Status Report. The parties report that they have reached a settlement in principle. The Court ORDERS that if the parties have not filed a joint stipulation of dismissal by JUNE 24, 2020, the parties to file a status report by JUNE 24, 2020, indicating how they would like to proceed. Signed by Judge Colleen Kollar-Kotelly on 6-3-2020. (lcckk3) (Entered: 06/03/2020)

06/03/2020

Set/Reset : Joint Status Report due if no joint stipulation of dismissal by 6/27/2020, indicating how they would like to proceed. (dot) (Entered: 06/03/2020)

06/23/2020 06/23/2020

39 STIPULATION of Dismissal by ELECTRONIC PRIVACY INFORMATION CENTER. (Scott, Jeramie) (Entered: 06/23/2020)
40 ORDER of Dismissal. Signed by Judge Colleen Kollar-Kotelly on 6-23-2020. (lcckk3) (Entered: 06/23/2020)

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1:18-cv-00797CKK 0.80

 
 Case 1:18-cv-00797-CKK Document 1 Filed 04/09/18 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW Suite 200 Washington, DC 20009,
Plaintiff,
v.
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 500 12th Street SW Washington, DC 20536,
Defendant.

Civ. Action No. 1:18-cv-00797

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, seeking the release of agency records requested by the Plaintiff Electronic Privacy Information Center (“EPIC”) from Defendant Immigration and Customs Enforcement (“ICE”), a component of the U.S. Department of Homeland Security (“DHS”). 2.   EPIC challenges ICE’s failure to make a timely determination to EPIC’s Freedom of Information Act request (“EPIC’s FOIA Request”) for records about ICE’s purchase and use of mobile forensics devices and technology.

	  

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Case 1:18-cv-00797-CKK Document 1 Filed 04/09/18 Page 2 of 7

Jurisdiction and Venue 3.   This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 552, (a)(6)(E)(iii), (a)(4)(B). This Court has personal jurisdiction over Defendant ICE. 4.   Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B).
Parties 5.   Plaintiff EPIC is a nonprofit organization, incorporated in Washington, DC, 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, public policy, and cybersecurity. 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 ICE is a component of the DHS, which is a federal agency within the meaning of 5 U.S.C. § 552(f)(1), and is headquartered in Washington, D.C.
Facts 7.   ICE is one of the largest law enforcement agencies in the United States. 8.   The agency enforces federal border laws and conducts homeland security investigations, operating both at the U.S. border and the interior. 9.   ICE’s law enforcement activities include conducting warrantless electronic device searches “without individualized suspicion.”1

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    1 U.S. Immigration and Customs Enforcement, Directive No. 7-6.1 Border Searches of
Electronic Devices (Aug. 18, 2009),
https://www.dhs.gov/xlibrary/assets/ice_border_search_electronic_devices.pdf.

	  

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10.   DHS has significantly increased the number of electronic device searches at the border, impacting both US citizens and international travelers.2 11.   The electronic device searches conducted by ICE often include inspecting text messages, private emails, contact lists, and photos as well as other personal information.3 12.   Over the last several years, ICE has tested various mobile forensic technologies.4 Additionally, ICE has signed contracts with Cellebrite, a provider of mobile forensic technology.5 13.   Cellebrite sells Universal Forensic Extraction Devices (UFED) that unlock, decrypt, and extract phone data, including “real-time mobile data . . . call logs, contacts, calendar, SMS, MMS, media files, apps data, chats, passwords.”6 14.   According to Cellebrite, the “UFED Cloud Analyzer tool” can extract private information—even without the assistance of the owner—from private cloud based accounts, such as those maintained by Facebook, Gmail, iCloud, Dropbox, and WhatsApp.7

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    2 Masood Farivar, At US Border, Dramatic Spike in Searches of Phones, Electronice Devices,
Voice of America (Oct. 28, 2017), https://www.voanews.com/a/us-border-spike-in-searches-of-
phones-electronic-devices/4090013.html. 3 Charlie Savage and Ron Nixon, Privacy Complaints Mount Over Phones Searches at U.S.
Border Since 2011 (Dec. 22, 2017), https://www.nytimes.com/2017/12/22/us/politics/us-border-
privacy-phone-searches.html. 4 Dept. of Homeland Security, Test Results for Mobile Device Acquistion,
https://www.dhs.gov/publication/mobile-device-acquisition. 5 See Federal Procurement Data System report, available at
https://www.fpds.gov/ezsearch/search.do?q=cellebrite+CONTRACTING_AGENCY_NAME%3
A%22U.S.+IMMIGRATION+AND+CUSTOMS+ENFORCEMENT%22&s=FPDSNG.COM&t
emplateName=1.4.4&indexName=awardfull. 6 Cellebrite Mobile Forensics, Unlock Digital Intelligence: Accelerate Investigations Anywhere,
available at
https://web.archive.org/web/20170614063253/https://www.cellebrite.com/Media/Default/Files/F
orensics/Solution-Briefs/Mobile-Forensics-Solution-Brief.pdf. 7 See Cellebrite, UFED Cloud Analyzer: Unlock cloud-based evidence to solve the case sooner,
https://www.cellebrite.com/en/products/ufed-cloud-analyzer/.

	  

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15.   DHS released a Privacy Impact Assessment (PIA) in 2009 pertaining to border searches by ICE.8 The PIA did not address the privacy implications of retrieving personal data from cloudbased services.9 16.   An ICE directive pertaining to border searches of electronic devices was released in 2009.10 The ICE Directive 7-6.1 did not provide policies or procedures for the retrieval of personal data stored at cloud-based services from personal electronic devices.11 17.   The Directive 7-6.1 asserts that ICE’s policies apply when electronic devices or information from electronic devices is turned over to ICE by CBP.12 18.   ICE’s data retrieval techniques for mobile devices pose significant threats to privacy. These techniques allow ICE to collect a significant amount of personal data directly from electronic devices and cloud-based services without individualized suspicion or warrant authority. Moreover, it remains unclear what the agency does with the personal information it obtains.
EPIC’s FOIA Request 19.   On June 13, 2017, EPIC submitted a FOIA Request to ICE’s Freedom of Information Act Office via email. 20.   EPIC’s FOIA Request sought records pertaining to ICE’s use of mobile forensic devices and technologies. Specifically, EPIC sought:

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    8 Dept. of Homeland Security, Privacy Impact Assessment for the Borders Searches of Electronic
Devices (Aug. 25, 2009),
https://www.dhs.gov/sites/default/files/publications/privacy_pia_cbp_laptop.pdf. 9 See Id. 10 U.S. Immigration and Customs Enforcement, ICE Directive No. 7-6.1 (Aug. 18, 2009),
https://www.dhs.gov/xlibrary/assets/ice_border_search_electronic_devices.pdf. 11 See Id. 12 Id § 6.2.

	  

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(1)  All recent ICE contracts related to purchase of mobile forensics devices and technology, including cloud data analysis13 and decryption. Contract numbers and vendors attached.
(2)  All guidance, training materials, manuals, or other policies and procedures on ICE use of mobile data forensics technology at the border and in the US interior, including the use of cloud analysis and decryption.
(3)  All ICE Privacy Impact Assessments, or other privacy and civil liberties assessments, dated after August 29, 2009 and involving mobile forensic technology, including for decryption and cloud analysis.
21.   EPIC sought “news media” fee status under 5 U.S.C. § 552(a)(4)(A)(ii)(II), and a waiver
of all duplication fees under 5 U.S.C. § 552(a)(4)(A)(iii). EPIC also sought expedited processing
under 5 U.S.C. § 5(a)(6)(E)(v)(II). 22.   In an email dated June 20, 2017, the ICE FOIA Office acknowledge receipt of EPIC’s
FOIA request. Per the email, ICE also granted EPIC’s request for a fee waiver, but denied EPIC’s
request for expedited processing. 23.   On July 17, 2017, EPIC submitted a Freedom of Information Act Appeal regarding the
denial of EPIC’s request for expedited processing. 24.   As of April 9, 2018, ICE has not responded to EPIC’s Freedom of Information Act Appeal
or made a determination on EPIC’s FOIA request.
EPIC’s Constructive Exhaustion of Administrative Remedies 25.   Today is the 300th day since ICE received EPIC’s FOIA Request. 26.   ICE 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). 27.   ICE’s failure to make a determination within the statutory time limit violates the FOIA.

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    13 “Cloud data analysis” includes technology and software which enable access to and copying of
data located on social media, online storage, and other digitally based applications and programs.

	  

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28.   EPIC has constructively 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 32.   Plaintiff asserts and incorporates by reference paragraphs 1-28. 33.   Defendant ICE has failed to make a determination regarding EPIC’s FOIA Request within twenty days, and has thus violated the deadline under 5 U.S.C. § 552 (a)(6)(A)(i) and 6 C.F.R. § 5.5. 34.   Plaintiff has constructively exhausted all applicable administrative remedies with respect to EPIC’s FOIA Request. 5 U.S.C. § 552(a)(6)(C)(i).
Count II Violation of FOIA: Unlawful Withholding of Agency Records 35.   Plaintiff asserts and incorporates by reference paragraphs 1-28. 36.   Defendant has wrongfully withheld agency records requested by Plaintiff. 37.   Plaintiff has constructively exhausted applicable administrative remedies with respect to Defendant’s withholding of the requested records. 38.   EPIC has exhausted the applicable administrative remedies with respect to EPIC’s FOIA Request. 5 U.S.C. § 552(a)(6)(C)(i). 39.   Plaintiff is entitled to injunctive relief with respect to the release and disclosure of the requested records.
Requested Relief WHEREFORE, Plaintiff prays that this Court:
A.   Order Defendant to grant EPIC expedited processing;

	  

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B.   Order Defendant to immediately conduct a reasonable search for all responsive records;
C.   Order Defendant to disclose to EPIC all responsive, non-exempt records as expeditiously as possible;
D.   Order Defendant to produce records sought without the assessment of search fees; 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.

Dated: April 9, 2018

Respectfully submitted,
Marc Rotenberg, D.C. Bar# 422825 EPIC President and Executive Director
Alan Butler, D. C. Bar# 1012128 EPIC Senior Counsel
By: __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)

	  

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