Case3:08-cv-02997-JSW Document1 Filed06/17/08 Page1 of 13

1 David L. Sobel (pro hac vice pending) sobel@eff.org
2 ELECTRONIC FRONTIER FOUNDATION 1875 Connecticut Ave. NW
3 Suite 650 Washington, DC 20009
4 Telephone: (202) 797-9009 x104 Facsimile: (202) 707-9066
5 Kurt Opsahl (SBN 191303)
6 kurt@eff.org Marcia Hofmann (SBN 250087)
7 marcia@eff.org ELECTRONIC FRONTIER FOUNDATION
8 454 Shotwell Street San Francisco, CA 94110
9 Telephone: (415) 436-9333 Facsimile: (415) 436-9993
10 Attorneys for Plaintiff
11 ELECTRONIC FRONTIER FOUNDATION

12

UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

SAN FRANCISCO DIVISION

15

ELECTRONIC FRONTIER FOUNDATION, )

16

)

17

18

v.

Plaintiff,

) COMPLAINT FOR INJUNCTIVE

) )

RELIEF

)

19

OFFICE OF THE DIRECTOR OF NATIONAL

) )

INTELLIGENCE

)

20

)

and

)

21

)

DEPARTMENT OF JUSTICE,

)

22

)

Defendants. )

23

)

24
1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, 25
for injunctive and other appropriate relief. Plaintiff seeks the expedited processing and release of 26
records requested from the Office of the Director of National Intelligence and Department of 27
Justice concerning a lobbying campaign to amend federal surveillance law and ensure that 28

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1 telecommunications companies are not held responsible for their role in warrantless government

2 surveillance activities. There is no dispute that the requested records concern a matter about which

3 there is “[a]n urgency to inform the public about an actual or alleged federal government activity,”

4 and were “made by a person primarily engaged in disseminating information.” 5 U.S.C. §

5 552(a)(6)(E)(v)(II); 32 C.F.R. § 1700.12(c)(2) & 28 C.F.R. § 16.5(d)(1)(ii). Therefore, Plaintiff is

6 statutorily entitled to the expedited treatment it seeks.

7

PARTIES

8

2. Plaintiff Electronic Frontier Foundation (“EFF”) is a not-for-profit corporation

9 established under the laws of the State of California, with offices in San Francisco, California and

10 Washington, DC. EFF is a donor-supported membership organization that works to inform

11 policymakers and the general public about civil liberties issues related to technology, and to act as

12 a defender of those liberties. In support of its mission, EFF uses the FOIA to obtain and

13 disseminate information concerning the activities of federal agencies.

14

3. Defendant Office of the Director of National Intelligence (“ODNI”) is an

15 Independent Establishment of the Executive Branch of the United States Government. ODNI is an

16 “agency” within the meaning of 5 U.S.C. § 552(f)(1).

17

4. Defendant Department of Justice (“DOJ”) is a Department of the Executive Branch

18 of the United States Government. DOJ is an “agency” within the meaning of 5 U.S.C. §552(f)(1).

19 The Office of the Attorney General, Office of Legislative Affairs, Office of Legal Policy, Office of

20 Legal Counsel, and National Security Division are components of Defendant DOJ.

21

JURISDICTION

22

5. This Court has both subject matter jurisdiction over this action and personal

23 jurisdiction over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(C)(i). This Court

24 also has jurisdiction over this action pursuant to 28 U.S.C. § 1331.

25

VENUE AND INTRADISTRICT ASSIGNMENT

26

6. Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. §

27 1391(e).

28

7. Assignment to the San Francisco division is proper pursuant to Local Rule 3-2(c)

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1 and (d) because a substantial portion of the events giving rise to this action occurred in this district

2 and division, where Plaintiff is headquartered.

3

FACTUAL ALLEGATIONS

4

The Administration’s Campaign to Shield Telecommunications Companies

5

From Liability for Their Role in Unlawful Surveillance Activity

6

8. On December 15, 2005, the New York Times reported:

7

Months after the Sept. 11 attacks, President Bush secretly authorized the National

8

Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants

9

ordinarily required for domestic spying, according to government officials.

10

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps

11

thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials

12

said.

James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 13

15, 2005 at A1, available at http://www.nytimes.com/2005/12/16/politics/16program.html. The 14

following day, President Bush confirmed in a radio address that he had authorized a surveillance 15

program to intercept international communications in which one participant was suspected of 16

having a connection to the terrorist organization al Qaeda. President’s Radio Address, Dec. 17, 17

2005, http://www.whitehouse.gov/news/releases/2005/12/20051217.html. 18

9. Shortly thereafter, the New York Times reported that the NSA’s surveillance activity 19

was far more extensive than the operation President Bush had described. According to the Times: 20

21

The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the

22

eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former

23

government officials.

The volume of information harvested from telecommunication data and voice

24

networks, without court-approved warrants, is much larger than the White House

has acknowledged, the officials said. It was collected by tapping directly into some

25

of the American telecommunication system's main arteries, they said.

26

As part of the program approved by President Bush for domestic surveillance

without warrants, the N.S.A. has gained the cooperation of American

27

telecommunications companies to obtain backdoor access to streams of domestic

and international communications, the officials said. 28

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1

2 Eric Lichtblau, Spy Agency Mined Vast Data Trove, N.Y. TIMES, Dec. 24, 2005, available at

3 http://www.nytimes.com/2005/12/24/politics/24spy.html.

4

10. On February 6, 2006, USA Today reported, “[t]he National Security Agency has

5 secured the cooperation of large telecommunications companies, including AT&T, MCI and

6 Sprint, in its efforts to eavesdrop without warrants on international calls by suspected terrorists,

7 according to seven telecommunications executives.” Leslie Cauley and John Diamond, Telecoms

8 Let NSA Spy on Calls, USA TODAY, Feb. 6, 2006, available at

9 http://www.usatoday.com/news/washington/2006-02-05-nsa-telecoms_x.htm.

10

11. Approximately 41 lawsuits have been filed throughout the United States seeking to

11 hold the government and cooperating telecommunications carriers responsible for violating the law

12 and the privacy of individuals through the illegal warrantless spying program. An additional seven

13 suits have arisen from attempts by state public utility commissioners and attorneys general to seek

14 information from telecommunications carriers about their involvement in warrantless surveillance

15 activities. Most of these lawsuits have been consolidated and are currently pending in the United

16 States District Court for the Northern District of California. In re NSA Telecommunications 17 Records Litigation (MDL Docket No. 06-1791 VRW).1

18

12. On August 5, 2007, President Bush signed into law the Protect America Act of

19 2007, legislation that amended the Foreign Intelligence Surveillance Act (“FISA”) to expand the

20 government’s power to intercept overseas communications of Americans without warrants. Pub. L.

21 No. 110-55, 121 Stat. 552. Among other things, the law provided protection for

22 telecommunications companies against future legal liability for participating in certain government

23 surveillance activity.

24

13. In an article published the same day, the New York Times reported:

25

[The Protect American Act] gave the administration greater power to force

telecommunications companies to cooperate with such spying operations. The

26

companies can now be compelled to cooperate by orders from the attorney general

and the director of national intelligence.

27

28 1 Plaintiff is Co-Lead Coordinating Counsel in this litigation.

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1

Democratic Congressional aides said Sunday that some telecommunications

company officials had told Congressional leaders that they were unhappy with that

2

provision in the bill and might challenge the new law in court. The aides said the

telecommunications companies had told lawmakers that they would rather have a

3

court-approved warrant ordering them to comply.

4

In fact, pressure from the telecommunications companies on the Bush

administration has apparently played a major hidden role in the political battle over

5

the surveillance issue over the past few months.

6 James Risen, Bush Signs Law to Widen Reach for Wiretapping, N.Y. TIMES, Aug. 5, 2007,

7 available at http://www.nytimes.com/2007/08/06/washington/06nsa.html. On information and

8 belief, the assertions quoted above are substantially correct.

9

14. Congress included a sunset provision in the Protect America Act stating that the law

10 would expire in February 2008 without further legislative action, which guaranteed further debate

11 over foreign intelligence surveillance law. President Bush indicated that the Administration

12 intended to push for even greater legal immunity for the telecommunications industry:

13

When Congress returns in September the Intelligence committees and leaders in

both parties will need to complete work on the comprehensive reforms requested by

14

Director [of National Intelligence Mike] McConnell, including the important issue

of providing meaningful liability protection to those who are alleged to have

15

assisted our Nation following the attacks of September 11, 2001.

16 Signing Statement, President Bush Commends Congress on Passage of Intelligence Legislation,

17 Aug. 6, 2007, available at http://www.whitehouse.gov/news/releases/ 2007/08/20070805.html.

18

15. In an interview discussing the government’s warrantless surveillance activities

19 published by the El Paso Times on August 22, 2007, Director McConnell stated:

20

[U]nder the president’s program, the terrorist surveillance program, the private

sector had assisted us. Because if you’re going to get access you’ve got to have a

21

partner and they were being sued. Now if you play out the suits at the value they’re

claimed, it would bankrupt these companies. So my position was that we have to

22

provide liability protection to these private sector entities.

23 Chris Roberts, Transcript: Debate on the Foreign Intelligence Surveillance Act, EL PASO TIMES,

24 Aug. 22, 2007, available at http://www.elpasotimes.com/news/ci_6685679.html.

25

16. On information and belief, the assertions quoted in paragraph 15 above are

26 substantially correct.

27

17. According to an article published by Newsweek, “[t]he nation’s biggest

28 telecommunications companies, working closely with the White House, have mounted a secretive

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1 lobbying campaign to get Congress to quickly approve a measure wiping out all private lawsuits

2 against them for assisting the U.S. intelligence community’s warrantless surveillance programs.”

3 Michael Isikoff and Mark Hosenball, Case Dismissed? The Secret Lobbying Campaign Your

4 Phone Company Doesn’t Want You to Know About, NEWSWEEK, Sept. 20, 2007, available at

5 http://www.newsweek.com/id/41142.

6

18. On information and belief, the assertions quoted in paragraph 17 above are

7 substantially correct.

8

19. On information and belief, in 2007 and 2008, lobbyists working on behalf of AT&T,

9 Verizon and/or Sprint/Nextel lobbied DOJ with respect to legislation to amend FISA.

10

20. On information and belief, in 2007 and 2008, lobbyists working on behalf of AT&T,

11 Verizon and/or Sprint/Nextel lobbied ODNI with respect to legislation to amend FISA.

12

21. In February 2008, both DOJ and ODNI contended that the telecommunications

13 companies who faced liability in In re NSA Telecommunications Records Litigation told the

14 government that the companies require immunity from such claims or the companies would not

15 cooperate with future requests for assistance in surveillance.

16

22. In testimony before the Senate Select Committee on Intelligence on February 14,

17 2008, the following exchange occurred between Senator Evan Bayh and Director of National

18 Intelligence Mike McConnell:

19

SENATOR EVAN BAYH: … One of the – the key point that you brought out was

that without the power to compel, without protection or retroactive protection, the

20

carriers which may be involved in this program realize that they are suffering

serious threats to their business livelihood and perhaps even their facilities and

21

personnel if we don’t give them retroactive immunity for the work that they’ve

done. And thus, it is my assumption that general counsels of the carriers would be

22

telling you, you show us a court order or we’re not going to cooperate on anything

which is not covered by a court order. Is that a fair assumption?

23

DIRECTOR McCONNELL: Sir, it fair and I would take it a step further. This has to

24

be willing relationship, partnership, and so where we find ourselves now, even with

a court order, some are saying we’ll take it to court to verify. 25
23. In a February 15, 2008 interview with Jim Angle on Fox News, ODNI Director

26 McConnell said, “The companies are telling us if you can't protect us, the cooperation you need is

27 not going to be there.”

28

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1

24. In a February 17, 2008 interview on Fox News Sunday, ODNI Director McConnell,

2 during a discussion of immunity for the telecommunications carriers, said, “And the private sector,

3 although willingly helped us in the past, are now saying, ‘You can't protect me. Why should I help

4 you?’” During the interview, McConnell clarified that he was referring to “the telecommunications

5 companies that you get some data from.”

6

25. In a February 22, 2008 press conference transcript published on ODNI’s website, a

7 “Senior Administration Official” said, “And sure enough, since the expiration [of the Protect

8 America Act] we’ve been talking to a number of the carriers and they have expressed all these

9 concerns and others.”

10

26. A February 23, 2008 press release from ODNI said, “In addition, although our

11 private partners are cooperating for the time being, they have expressed understandable misgivings

12 about doing so in light of the on-going uncertainty and have indicated that they may well

13 discontinue cooperation if the uncertainty persists.”

14

27. In a February 26, 2008 interview with J.J. Green of WTOP Radio in Washington

15 D.C., Director McConnell said, “This past week, we engaged with some private-sector partners,

16 and they weren’t so sure they were ready to engage with us.”

17

28. On February 26, 2008, in a press conference transcript also posted on ODNI’s web

18 site as well as DOJ’s www.lifeandliberty.gov website, a “Senior Administration Official” said:

19

… I, and colleagues of ours, both in ODNI and DOJ, have been working very

closely with general counsels offices in the various providers, because they've been

20

asking about this looming potential expiration [of the Protect America Act] for some

time and what its implications will be.

21

29. In the February 26, 2008 press conference, the Senior Administration Official also

22 said:

23

Most providers were complying, but as of the time that we sent the letter, not all.

24

And then soon after that -- we've been in intense discussion, back and forth, with a

number of different parties, we achieved full compliance -- just with that, with the

25

compliance with our request to go up on new surveillances under those PAA

directives. However, they've made it very clear that this isn't a permanent situation,

26

and they're concerned about it and they might -- they may well withdraw that

cooperation if the situation doesn't get cleared up with permanent legislation. 27
30. On February 27, 2008, Director McConnell testified before the Senate Armed

28

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1 Services Committee. The following exchange took place:

2

SEN. LEVIN: The -- Senator Inhofe raised the FISA issue. I want to just get some

facts straight on this. As I understand it, last Friday night the last of the private

3

sector partners, the telecom partners, agreed to cooperate with us. Was that true?

4

MR. McCONNELL: We negotiated for six days and came to closure on Friday

night, yes, sir.

5

SEN. LEVIN: And so is it true then that as of last Friday night they agreed to

6

cooperate with us?

7

MR. McCONNELL: They did, sir.

8

SEN. LEVIN: On a voluntary basis?

9

MR. McCONNELL: For the subject matter as a part of the debate, the question is

the uncertainty going forward. Will they do it again or --

10

SEN. LEVIN: But as to what we were asking them to do, they agreed to do it?

11

MR. McCONNELL: Yes, sir.

12

31. Congress is currently considering whether to make additional changes to FISA. The

13 House of Representatives has passed the RESTORE Act of 2007, which would not protect

14 telecommunications companies from civil liability for their role in the government’s warrantless

15 surveillance program. On February 12, 2008, however, the Senate passed its own version of

16 legislation to amend FISA, which purports to require dismissal of any state or federal lawsuit

17 against a carrier for facilitating government surveillance if the Attorney General certifies to the

18 court that the company was assisting in certain intelligence activity authorized by the President.

19 Congress allowed the Protect America Act to expire on February 16, 2008 without reaching an

20 agreement to extend the controversial law. See generally Tim Starks, House Allows FISA Law to

21 Expire, CONGRESSIONAL QUARTERLY, February 17, 2008, available at

22 http://www.cqpolitics.com/wmspage.cfm?docID=weeklyreport-000002672840.

23

32. On February 28, 2008, President Bush urged the House to pass the Senate bill,

24 saying, “Allowing these lawsuits to proceed could make it harder to track the terrorists, because

25 private companies besieged by and fearful of lawsuits would be less willing to help us quickly get

26 the information we need.” He also said, “You cannot expect phone companies to participate if they

27 feel like they're going to be sued.”

28

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1

33. On June 9, 2008, The Hill reported on ongoing negotiations on the FISA bills

2 involving the White House, the Director of National Intelligence, House Majority Leader Steny

3 Hoyer and Senators Kit Bond and John Rockefeller:

4

Bond, with support from the White House and House Republicans, offered a

compromise proposal before Memorial Day, saying that phone companies would

5

have to make their case for immunity before a secret court established by the 1978

FISA. Republicans say immunity is needed so phone companies would continue to

6

cooperate with the government.

7

Democrats responded with their own proposal last week, but spokeswomen for

Hoyer and Rockefeller would not characterize its contents. 8
Manu Raju, FISA Measure Tests Relationship Between Rockefeller and Bond, THE HILL, June 9,

9 2008, available at http://thehill.com/leading-the-news/fisa-measure-tests-relationship-between-

10 rockefeller-and-bond-2008-06-09.html.

11

PLAINTIFF’S FOIA REQUESTS AND REQUESTS FOR EXPEDITED PROCESSING

12 34. In a April 24, 2008 letter sent by facsimile to ODNI, EFF requested under the FOIA

13 all records:

14

A. from December 21, 2007 to the present concerning briefings, discussions, or

15

other exchanges any ODNI official has had with representatives or agents of

telecommunications companies2 concerning amendments to FISA, including

16

any discussion of immunizing telecommunications companies or holding

them otherwise unaccountable for their role in government surveillance

17

activities;

18

B. from December 21, 2007 to the present concerning briefings, discussions, or

19

other communications from any ODNI official to any member of the Senate

or House of Representatives or their staffs3;

20

C. from December 21, 2007 to the present concerning any communications,

21

discussions, or other exchanges regardless of subject that any ODNI official

22 2 The phrase “representatives or agents of telecommunications companies” was defined to include
23 lobbyists and lawyers acting on behalf of such companies. According to Newsweek, these individuals may include, but are not limited to, “powerhouse Republican lobbyists Charlie Black
24 and Wayne Berman (who represent AT&T and Verizon, respectively), former GOP senator and
U.S. ambassador to Germany Dan Coats (a lawyer at King & Spaulding who is representing 25 Sprint), former Democratic Party strategist and one-time assistant secretary of State Tom Donilon
26 (who represents Verizon), former deputy attorney general Jamie Gorelick (whose law firm also represents Verizon) and Brad Berenson, a former assistant White House counsel under President
27 George W. Bush who now represents AT&T.” Mark Hosenball and Michael Isikoff, Case Dismissed?, NEWSWEEK, updated Sept. 26, 2007.
28 3 EFF did not seek communications from members of Congress to ODNI officials.

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1

has had with Charlie Black, Wayne Berman, Dan Coats, Tom Donilon,

Jamie Gorelick or Brad Berenson; and 2

3

D. from January 1, 2007 to the present that are responsive to the categories above, and have not yet been produced in response to previous EFF FOIA

4

requests.

5

35. In letters sent by facsimile on April 24, 2008 to the DOJ Office of the Attorney

6 General, Office of Legislative Affairs, Office of Legal Policy, Office of Legal Counsel, and

7 National Security Division, EFF requested under the FOIA all records:

8

A. from December 21, 2007 to the present concerning briefings, discussions, or other exchanges any [DOJ] official has had with representatives or agents of

9

telecommunications companies4 concerning amendments to FISA, including

any discussion of immunizing telecommunications companies or holding

10

them otherwise unaccountable for their role in government surveillance

activities; 11

B. from December 21, 2007 to the present concerning briefings, discussions, or

12

other communications from any [DOJ] official to any member of the Senate

13

or House of Representatives or their staffs5;

14

C. from December 21, 2007 to the present concerning any communications,

discussions, or other exchanges regardless of subject that any [DOJ] official

15

has had with Charlie Black, Wayne Berman, Dan Coats, Tom Donilon,

Jamie Gorelick or Brad Berenson; and 16

D. from January 1, 2007 to the present that are responsive to the categories

17

above, and have not yet been produced in response to previous EFF FOIA

18

requests.

19

36. In its April 24 letters, EFF formally requested that the processing of each request be

20 expedited because it pertains to information about which there is “[a]n urgency to inform the public

21 about an actual or alleged federal government activity,” and were “made by a person primarily

22 engaged in disseminating information.” 5 U.S.C. § 552(a)(6)(E)(v)(II); 32 C.F.R. § 1700.12(c)(2)

23 & 28 C.F.R. § 16.5(d)(1)(ii).

24

37. By letter dated April 28, 2008, the DOJ National Security Division acknowledged

25 receipt of EFF’s FOIA request, and by letter dated May 2, 2008 informed EFF that its request for

26 expedited processing had been granted.

27 4 The phrase “representatives or agents of telecommunications companies” is defined the same as
noted above. 28 5 EFF did not seek communications from members of Congress to DOJ officials.

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1

38. By letter dated May 2, 2008, the DOJ Office of Information and Privacy

2 acknowledged receipt of EFF’s FOIA requests to the Office of the Attorney General, Office of

3 Legislative Affairs, and Office of Legal Policy, and informed EFF that its requests for expedited

4 processing had been granted.

5

39. By letter dated May 5, 2008, ODNI acknowledged receipt of EFF’s FOIA request,

6 and informed EFF that “In response to part A of your request, ODNI has located no additional

7 responsive records beyond what was located in your two prior FOIA requests.” By letter dated

8 May 16, 2008, ODNI informed EFF that its request for expedited processing had been granted.

9

40. By letter dated May 5, 2008, the DOJ Office of Legal Counsel acknowledged

10 receipt of EFF’s FOIA request and informed EFF that its request for expedited processing had been

11 granted.

12

41. ODNI has replied to part A of EFF’s FOIA request by claiming that the agency had

13 no records responsive to that portion of EFF’s request. On June 10, 2008, EFF administratively

14 appealed ODNI’s response to part A. Collectively, EFF’s April 24 FOIA requests other than part A

15 of the request to ODNI are referred to as the “Unanswered FOIA Requests.”

16

42. Notwithstanding ODNI and DOJ’s purported decisions to expedite the processing of

17 all of EFF’s April 24 FOIA requests, to date, the agencies have not completed the processing of the

18 Unanswered FOIA Requests nor informed EFF of an anticipated date for the completion of the

19 processing of the Unanswered FOIA Requests.

20

43. Not only have ODNI and DOJ failed to expedite the processing of the Unanswered

21 FOIA Requests, they have also exceeded the generally applicable 20-day deadline for the

22 processing of any FOIA request.

23

44. EFF has exhausted all applicable administrative remedies with respect to the

24 Unanswered FOIA Requests.

25

45. Defendants ODNI and DOJ have wrongfully withheld the requested records from

26 EFF.

27

28

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1

CAUSE OF ACTION

2

Violation of the Freedom of Information Act for

Wrongful Withholding of Agency Records 3

4

46. Plaintiff repeats and realleges paragraphs 1-45.

5

47. ODNI and DOJ have wrongfully withheld agency records requested by Plaintiff by

6 failing to comply with the statutory time limit for the processing of the Unanswered FOIA

7 Requests.

8

48. Plaintiff has exhausted the applicable administrative remedies with respect to ODNI

9 and DOJ’s wrongful withholding of the records requested in the Unanswered FOIA Requests.

10

49. Plaintiff is entitled to injunctive relief with respect to the release and disclosure of

11 the requested documents.

12

13

//

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//

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1

Requested Relief

2 WHEREFORE, Plaintiff prays that this Court:

3

A. order Defendants ODNI and DOJ to process immediately the records

4 requested in the Unanswered FOIA Requests in their entirety;
5 B. order Defendants ODNI and DOJ, upon completion of such expedited
6
processing, to disclose such requested records in their entirety and make copies 7

8

available to Plaintiff;

9

C. provide for expeditious proceedings in this action;

10

D. award Plaintiff its costs and reasonable attorneys fees incurred in this action;

11

and

12 E. grant such other relief as the Court may deem just and proper.
13

14

15 DATED: June 17, 2008 16 17 18

David L. Sobel (pro hac vice pending) ELECTRONIC FRONTIER FOUNDATION 1875 Connecticut Ave. NW Suite 650 Washington, DC 20009 Telephone: (202) 797-9009 x104 Facsimile: (202) 707-9066

19

20

21

Kurt Opsahl, Esq.

Marcia Hofmann, Esq.

22

ELECTRONIC FRONTIER FOUNDATION

454 Shotwell Street

23

San Francisco, CA 94110

Telephone: (415) 436-9333

24

Facsimile: (415) 436-9993

25

Attorneys for Plaintiff

ELECTRONIC FRONTIER FOUNDATION

26

27

28

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 Case 3:08-cv-02997-JSW Document 9 Filed 07/11/08 Page 1 of 14

1 David L. Sobel (pro hac vice) sobel@eff.org
2 ELECTRONIC FRONTIER FOUNDATION 1875 Connecticut Ave. NW
3 Suite 650 Washington, DC 20009
4 Telephone: (202) 797-9009 x104 Facsimile: (202) 707-9066
5 Kurt Opsahl (SBN 191303)
6 kurt@eff.org Marcia Hofmann (SBN 250087)
7 marcia@eff.org ELECTRONIC FRONTIER FOUNDATION
8 454 Shotwell Street San Francisco, CA 94110
9 Telephone: (415) 436-9333 Facsimile: (415) 436-9993
10 Attorneys for Plaintiff
11 ELECTRONIC FRONTIER FOUNDATION

12

UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

SAN FRANCISCO DIVISION

15

ELECTRONIC FRONTIER FOUNDATION, ) C 08-02997-JSW

16

)

17

18

v.

Plaintiff,

) FIRST AMENDED COMPLAINT FOR

) )

INJUNCTIVE RELIEF

)

19

OFFICE OF THE DIRECTOR OF NATIONAL

) )

INTELLIGENCE

)

20

)

and

)

21

)

DEPARTMENT OF JUSTICE,

)

22

)

Defendants. )

23

)

24
1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, 25
for injunctive and other appropriate relief. Plaintiff seeks the expedited processing and release of 26
records requested from the Office of the Director of National Intelligence and Department of 27
Justice concerning a lobbying campaign to amend federal surveillance law and ensure that 28

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1 telecommunications companies are not held responsible for their role in warrantless government

2 surveillance activities. There is no dispute that the requested records concern a matter about which

3 there is “[a]n urgency to inform the public about an actual or alleged federal government activity,”

4 and were “made by a person primarily engaged in disseminating information.” 5 U.S.C. §

5 552(a)(6)(E)(v)(II); 32 C.F.R. § 1700.12(c)(2) & 28 C.F.R. § 16.5(d)(1)(ii). Therefore, Plaintiff is

6 statutorily entitled to the expedited treatment it seeks.

7

PARTIES

8

2. Plaintiff Electronic Frontier Foundation (“EFF”) is a not-for-profit corporation

9 established under the laws of the State of California, with offices in San Francisco, California and

10 Washington, DC. EFF is a donor-supported membership organization that works to inform

11 policymakers and the general public about civil liberties issues related to technology, and to act as

12 a defender of those liberties. In support of its mission, EFF uses the FOIA to obtain and

13 disseminate information concerning the activities of federal agencies.

14

3. Defendant Office of the Director of National Intelligence (“ODNI”) is an

15 Independent Establishment of the Executive Branch of the United States Government. ODNI is an

16 “agency” within the meaning of 5 U.S.C. § 552(f)(1).

17

4. Defendant Department of Justice (“DOJ”) is a Department of the Executive Branch

18 of the United States Government. DOJ is an “agency” within the meaning of 5 U.S.C. §552(f)(1).

19 The Office of the Attorney General, Office of Legislative Affairs, Office of Legal Policy, Office of

20 Legal Counsel, and National Security Division are components of Defendant DOJ.

21

JURISDICTION

22

5. This Court has both subject matter jurisdiction over this action and personal

23 jurisdiction over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(C)(i). This Court

24 also has jurisdiction over this action pursuant to 28 U.S.C. § 1331.

25

VENUE AND INTRADISTRICT ASSIGNMENT

26

6. Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. §

27 1391(e).

28

7. Assignment to the San Francisco division is proper pursuant to Local Rule 3-2(c)

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1 and (d) because a substantial portion of the events giving rise to this action occurred in this district

2 and division, where Plaintiff is headquartered.

3

FACTUAL ALLEGATIONS

4

The Administration’s Campaign to Shield Telecommunications Companies

5

From Liability for Their Role in Unlawful Surveillance Activity

6

8. On December 15, 2005, the New York Times reported:

7

Months after the Sept. 11 attacks, President Bush secretly authorized the National

8

Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants

9

ordinarily required for domestic spying, according to government officials.

10

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps

11

thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials

12

said.

James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 13

15, 2005 at A1, available at http://www.nytimes.com/2005/12/16/politics/16program.html. The 14

following day, President Bush confirmed in a radio address that he had authorized a surveillance 15

program to intercept international communications in which one participant was suspected of 16

having a connection to the terrorist organization al Qaeda. President’s Radio Address, Dec. 17, 17

2005, http://www.whitehouse.gov/news/releases/2005/12/20051217.html. 18

9. Shortly thereafter, the New York Times reported that the NSA’s surveillance activity 19

was far more extensive than the operation President Bush had described. According to the Times: 20

21

The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the

22

eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former

23

government officials.

The volume of information harvested from telecommunication data and voice

24

networks, without court-approved warrants, is much larger than the White House

has acknowledged, the officials said. It was collected by tapping directly into some

25

of the American telecommunication system's main arteries, they said.

26

As part of the program approved by President Bush for domestic surveillance

without warrants, the N.S.A. has gained the cooperation of American

27

telecommunications companies to obtain backdoor access to streams of domestic

and international communications, the officials said. 28

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1 Eric Lichtblau, Spy Agency Mined Vast Data Trove, N.Y. TIMES, Dec. 24, 2005, available at

2 http://www.nytimes.com/2005/12/24/politics/24spy.html.

3

10. On February 6, 2006, USA Today reported, “[t]he National Security Agency has

4 secured the cooperation of large telecommunications companies, including AT&T, MCI and

5 Sprint, in its efforts to eavesdrop without warrants on international calls by suspected terrorists,

6 according to seven telecommunications executives.” Leslie Cauley and John Diamond, Telecoms

7 Let NSA Spy on Calls, USA TODAY, Feb. 6, 2006, available at

8 http://www.usatoday.com/news/washington/2006-02-05-nsa-telecoms_x.htm.

9

11. Approximately 41 lawsuits have been filed throughout the United States seeking to

10 hold the government and cooperating telecommunications carriers responsible for violating the law

11 and the privacy of individuals through the illegal warrantless spying program. An additional seven

12 suits have arisen from attempts by state public utility commissioners and attorneys general to seek

13 information from telecommunications carriers about their involvement in warrantless surveillance

14 activities. Most of these lawsuits have been consolidated and are currently pending in the United

15 States District Court for the Northern District of California. In re NSA Telecommunications 16 Records Litigation (MDL Docket No. 06-1791 VRW).1

17

12. On August 5, 2007, President Bush signed into law the Protect America Act of

18 2007, legislation that amended the Foreign Intelligence Surveillance Act (“FISA”) to expand the

19 government’s power to intercept overseas communications of Americans without warrants. Pub.

20 L. No. 110-55, 121 Stat. 552. Among other things, the law provided protection for

21 telecommunications companies against future legal liability for participating in certain government

22 surveillance activity.

23

13. In an article published the same day, the New York Times reported:

24

[The Protect American Act] gave the administration greater power to force

telecommunications companies to cooperate with such spying operations. The

25

companies can now be compelled to cooperate by orders from the attorney general

and the director of national intelligence.

26

Democratic Congressional aides said Sunday that some telecommunications

27

company officials had told Congressional leaders that they were unhappy with that

28 1 Plaintiff is Co-Lead Coordinating Counsel in this litigation.

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1

provision in the bill and might challenge the new law in court. The aides said the

telecommunications companies had told lawmakers that they would rather have a

2

court-approved warrant ordering them to comply.

3

In fact, pressure from the telecommunications companies on the Bush

administration has apparently played a major hidden role in the political battle over

4

the surveillance issue over the past few months.

5 James Risen, Bush Signs Law to Widen Reach for Wiretapping, N.Y. TIMES, Aug. 5, 2007,

6 available at http://www.nytimes.com/2007/08/06/washington/06nsa.html. On information and

7 belief, the assertions quoted above are substantially correct.

8

14. Congress included a sunset provision in the Protect America Act stating that the law

9 would expire in February 2008 without further legislative action, which guaranteed further debate

10 over foreign intelligence surveillance law. President Bush indicated that the Administration

11 intended to push for even greater legal immunity for the telecommunications industry:

12

When Congress returns in September the Intelligence committees and leaders in

both parties will need to complete work on the comprehensive reforms requested by

13

Director [of National Intelligence Mike] McConnell, including the important issue

of providing meaningful liability protection to those who are alleged to have

14

assisted our Nation following the attacks of September 11, 2001.

15 Signing Statement, President Bush Commends Congress on Passage of Intelligence Legislation,

16 Aug. 6, 2007, available at http://www.whitehouse.gov/news/releases/ 2007/08/20070805.html.

17

15. In an interview discussing the government’s warrantless surveillance activities

18 published by the El Paso Times on August 22, 2007, Director McConnell stated:

19

[U]nder the president’s program, the terrorist surveillance program, the private

sector had assisted us. Because if you’re going to get access you’ve got to have a

20

partner and they were being sued. Now if you play out the suits at the value they’re

claimed, it would bankrupt these companies. So my position was that we have to

21

provide liability protection to these private sector entities.

22 Chris Roberts, Transcript: Debate on the Foreign Intelligence Surveillance Act, EL PASO TIMES,

23 Aug. 22, 2007, available at http://www.elpasotimes.com/news/ci_6685679.html.

24

16. On information and belief, the assertions quoted in paragraph 15 above are

25 substantially correct.

26

17. According to an article published by Newsweek, “[t]he nation’s biggest

27 telecommunications companies, working closely with the White House, have mounted a secretive

28 lobbying campaign to get Congress to quickly approve a measure wiping out all private lawsuits

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1 against them for assisting the U.S. intelligence community’s warrantless surveillance programs.”

2 Michael Isikoff and Mark Hosenball, Case Dismissed? The Secret Lobbying Campaign Your

3 Phone Company Doesn’t Want You to Know About, NEWSWEEK, Sept. 20, 2007, available at

4 http://www.newsweek.com/id/41142.

5

18. On information and belief, the assertions quoted in paragraph 17 above are

6 substantially correct.

7

19. On information and belief, in 2007 and 2008, lobbyists working on behalf of AT&T,

8 Verizon and/or Sprint/Nextel lobbied DOJ with respect to legislation to amend FISA.

9

20. On information and belief, in 2007 and 2008, lobbyists working on behalf of AT&T,

10 Verizon and/or Sprint/Nextel lobbied ODNI with respect to legislation to amend FISA.

11

21. In February 2008, both DOJ and ODNI contended that the telecommunications

12 companies who faced liability in In re NSA Telecommunications Records Litigation told the

13 government that the companies require immunity from such claims or the companies would not

14 cooperate with future requests for assistance in surveillance.

15

22. In testimony before the Senate Select Committee on Intelligence on February 14,

16 2008, the following exchange occurred between Senator Evan Bayh and Director of National

17 Intelligence Mike McConnell:

18

SENATOR EVAN BAYH: … One of the – the key point that you brought out was

that without the power to compel, without protection or retroactive protection, the

19

carriers which may be involved in this program realize that they are suffering

serious threats to their business livelihood and perhaps even their facilities and

20

personnel if we don’t give them retroactive immunity for the work that they’ve

done. And thus, it is my assumption that general counsels of the carriers would be

21

telling you, you show us a court order or we’re not going to cooperate on anything

which is not covered by a court order. Is that a fair assumption?

22

DIRECTOR McCONNELL: Sir, it fair and I would take it a step further. This has to

23

be willing relationship, partnership, and so where we find ourselves now, even with

a court order, some are saying we’ll take it to court to verify. 24
23. In a February 15, 2008 interview with Jim Angle on Fox News, ODNI Director

25 McConnell said, “The companies are telling us if you can't protect us, the cooperation you need is

26 not going to be there.”

27 24. In a February 17, 2008 interview on Fox News Sunday, ODNI Director McConnell,

28

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1 during a discussion of immunity for the telecommunications carriers, said, “And the private sector,

2 although willingly helped us in the past, are now saying, ‘You can't protect me. Why should I help

3 you?’” During the interview, McConnell clarified that he was referring to “the telecommunications

4 companies that you get some data from.”

5

25. In a February 22, 2008 press conference transcript published on ODNI’s website, a

6 “Senior Administration Official” said, “And sure enough, since the expiration [of the Protect

7 America Act] we’ve been talking to a number of the carriers and they have expressed all these

8 concerns and others.”

9

26. A February 23, 2008 press release from ODNI said, “In addition, although our

10 private partners are cooperating for the time being, they have expressed understandable misgivings

11 about doing so in light of the on-going uncertainty and have indicated that they may well

12 discontinue cooperation if the uncertainty persists.”

13

27. In a February 26, 2008 interview with J.J. Green of WTOP Radio in Washington

14 D.C., Director McConnell said, “This past week, we engaged with some private-sector partners,

15 and they weren’t so sure they were ready to engage with us.”

16

28. On February 26, 2008, in a press conference transcript also posted on ODNI’s web

17 site as well as DOJ’s www.lifeandliberty.gov website, a “Senior Administration Official” said:

18

… I, and colleagues of ours, both in ODNI and DOJ, have been working very

closely with general counsels offices in the various providers, because they've been

19

asking about this looming potential expiration [of the Protect America Act] for some

time and what its implications will be.

20

29. In the February 26, 2008 press conference, the Senior Administration Official also

21 said:

22

Most providers were complying, but as of the time that we sent the letter, not all.

23

And then soon after that -- we've been in intense discussion, back and forth, with a

number of different parties, we achieved full compliance -- just with that, with the

24

compliance with our request to go up on new surveillances under those PAA

directives. However, they've made it very clear that this isn't a permanent situation,

25

and they're concerned about it and they might -- they may well withdraw that

cooperation if the situation doesn't get cleared up with permanent legislation. 26
30. On February 27, 2008, Director McConnell testified before the Senate Armed

27 Services Committee. The following exchange took place:

28

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1

SEN. LEVIN: The -- Senator Inhofe raised the FISA issue. I want to just get some

facts straight on this. As I understand it, last Friday night the last of the private

2

sector partners, the telecom partners, agreed to cooperate with us. Was that true?

3

MR. McCONNELL: We negotiated for six days and came to closure on Friday

night, yes, sir.

4 SEN. LEVIN: And so is it true then that as of last Friday night they agreed to

5

cooperate with us?

6

MR. McCONNELL: They did, sir.

7

SEN. LEVIN: On a voluntary basis?

8

MR. McCONNELL: For the subject matter as a part of the debate, the question is the uncertainty going forward. Will they do it again or --

9

SEN. LEVIN: But as to what we were asking them to do, they agreed to do it?

10

MR. McCONNELL: Yes, sir.

11

31. Congress is currently considering whether to make additional changes to FISA. The

12 House of Representatives has passed the RESTORE Act of 2007, which would not protect

13 telecommunications companies from civil liability for their role in the government’s warrantless

14 surveillance program. On February 12, 2008, however, the Senate passed its own version of

15 legislation to amend FISA, which purports to require dismissal of any state or federal lawsuit

16 against a carrier for facilitating government surveillance if the Attorney General certifies to the

17 court that the company was assisting in certain intelligence activity authorized by the President.

18 Congress allowed the Protect America Act to expire on February 16, 2008 without reaching an

19 agreement to extend the controversial law. See generally Tim Starks, House Allows FISA Law to

20 Expire, CONGRESSIONAL QUARTERLY, February 17, 2008, available at

21 http://www.cqpolitics.com/wmspage.cfm?docID=weeklyreport-000002672840.

22

32. On February 28, 2008, President Bush urged the House to pass the Senate bill,

23 saying, “Allowing these lawsuits to proceed could make it harder to track the terrorists, because

24 private companies besieged by and fearful of lawsuits would be less willing to help us quickly get

25 the information we need.” He also said, “You cannot expect phone companies to participate if they

26 feel like they're going to be sued.”

27

33. On June 9, 2008, The Hill reported on ongoing negotiations on the FISA bills

28

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FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF

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1 involving the White House, the Director of National Intelligence, House Majority Leader Steny

2 Hoyer and Senators Kit Bond and John Rockefeller:

3

Bond, with support from the White House and House Republicans, offered a

compromise proposal before Memorial Day, saying that phone companies would

4

have to make their case for immunity before a secret court established by the 1978

FISA. Republicans say immunity is needed so phone companies would continue to

5

cooperate with the government.

6

Democrats responded with their own proposal last week, but spokeswomen for

Hoyer and Rockefeller would not characterize its contents.

7 Manu Raju, FISA Measure Tests Relationship Between Rockefeller and Bond, THE HILL, June 9,

8 2008, available at http://thehill.com/leading-the-news/fisa-measure-tests-relationship-between-

9 rockefeller-and-bond-2008-06-09.html.

10

PLAINTIFF’S FOIA REQUESTS AND REQUESTS FOR EXPEDITED PROCESSING

11 34. In a April 24, 2008 letter sent by facsimile to ODNI, EFF requested under the FOIA

12 all records:

13

A. from December 21, 2007 to the present concerning briefings, discussions, or

14

other exchanges any ODNI official has had with representatives or agents of

telecommunications companies2 concerning amendments to FISA, including

15

any discussion of immunizing telecommunications companies or holding

them otherwise unaccountable for their role in government surveillance

16

activities;

17

B. from December 21, 2007 to the present concerning briefings, discussions, or

18

other communications from any ODNI official to any member of the Senate or House of Representatives or their staffs3;

19

C. from December 21, 2007 to the present concerning any communications,

20

discussions, or other exchanges regardless of subject that any ODNI official

has had with Charlie Black, Wayne Berman, Dan Coats, Tom Donilon,

21

Jamie Gorelick or Brad Berenson; and

22 2 The phrase “representatives or agents of telecommunications companies” was defined to include
23 lobbyists and lawyers acting on behalf of such companies. According to Newsweek, these individuals may include, but are not limited to, “powerhouse Republican lobbyists Charlie Black
24 and Wayne Berman (who represent AT&T and Verizon, respectively), former GOP senator and
U.S. ambassador to Germany Dan Coats (a lawyer at King & Spaulding who is representing 25 Sprint), former Democratic Party strategist and one-time assistant secretary of State Tom Donilon
26 (who represents Verizon), former deputy attorney general Jamie Gorelick (whose law firm also represents Verizon) and Brad Berenson, a former assistant White House counsel under President
27 George W. Bush who now represents AT&T.” Mark Hosenball and Michael Isikoff, Case Dismissed?, NEWSWEEK, updated Sept. 26, 2007.
28 3 EFF did not seek communications from members of Congress to ODNI officials.

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1

D. from January 1, 2007 to the present that are responsive to the categories

2

above, and have not yet been produced in response to previous EFF FOIA

3

requests.

35. In letters sent by facsimile on April 24, 2008 to the DOJ Office of the Attorney 4

General, Office of Legislative Affairs, Office of Legal Policy, Office of Legal Counsel, and 5

National Security Division, EFF requested under the FOIA all records: 6

A. from December 21, 2007 to the present concerning briefings, discussions, or

7

other exchanges any [DOJ] official has had with representatives or agents of

telecommunications companies4 concerning amendments to FISA, including

8

any discussion of immunizing telecommunications companies or holding

9

them otherwise unaccountable for their role in government surveillance

activities;

10

B. from December 21, 2007 to the present concerning briefings, discussions, or

11

other communications from any [DOJ] official to any member of the Senate

or House of Representatives or their staffs5;

12

13

C. from December 21, 2007 to the present concerning any communications, discussions, or other exchanges regardless of subject that any [DOJ] official

14

has had with Charlie Black, Wayne Berman, Dan Coats, Tom Donilon,

Jamie Gorelick or Brad Berenson; and

15

D. from January 1, 2007 to the present that are responsive to the categories

16

above, and have not yet been produced in response to previous EFF FOIA

requests. 17

36. In its April 24 letters, EFF formally requested that the processing of each request be 18

expedited because it pertains to information about which there is “[a]n urgency to inform the public 19

about an actual or alleged federal government activity,” and were “made by a person primarily 20

engaged in disseminating information.” 5 U.S.C. § 552(a)(6)(E)(v)(II); 32 C.F.R. § 1700.12(c)(2) 21

& 28 C.F.R. § 16.5(d)(1)(ii). 22

37. By letter dated April 28, 2008, the DOJ National Security Division acknowledged 23

receipt of EFF’s FOIA request, and by letter dated May 2, 2008 informed EFF that its request for 24

expedited processing had been granted. 25

38. By letter dated May 2, 2008, the DOJ Office of Information and Privacy 26

27 4 The phrase “representatives or agents of telecommunications companies” is defined the same as
noted above. 28 5 EFF did not seek communications from members of Congress to DOJ officials.

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FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF

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1 acknowledged receipt of EFF’s FOIA requests to the Office of the Attorney General, Office of

2 Legislative Affairs, and Office of Legal Policy, and informed EFF that its requests for expedited

3 processing had been granted.

4

39. By letter dated May 5, 2008, ODNI acknowledged receipt of EFF’s FOIA request,

5 and informed EFF that “In response to part A of your request, ODNI has located no additional

6 responsive records beyond what was located in your two prior FOIA requests.” By letter dated

7 May 16, 2008, ODNI informed EFF that its request for expedited processing had been granted.

8

40. By letter dated May 5, 2008, the DOJ Office of Legal Counsel acknowledged

9 receipt of EFF’s FOIA request and informed EFF that its request for expedited processing had been

10 granted.

11

41. ODNI responded to part A of EFF’s FOIA request by claiming that the agency has

12 no records responsive to that portion of EFF’s request. By letter dated June 10, 2008, EFF

13 administratively appealed ODNI’s determination on part A. On July 10, 2008, ODNI

14 acknowledged receipt of the appeal, advising EFF that it would “be advised of the determinations

15 made.” To date, EFF has received no determination on the June 10, 2008 appeal.

16

42. Collectively, EFF’s April 24 FOIA requests are referred to as the “Unanswered

17 FOIA Requests.” Notwithstanding ODNI and DOJ’s purported decisions to expedite the

18 processing of all of EFF’s April 24 FOIA requests, to date, the agencies have not completed the

19 processing of the Unanswered FOIA Requests nor agreed to a specific date for the completion of

20 the processing of the Unanswered FOIA Requests.

21

43. Not only have ODNI and DOJ failed to expedite the processing of the Unanswered

22 FOIA Requests, they have also exceeded the generally applicable 20-day deadline for the

23 processing of any FOIA request or appeal.

24

44. EFF has exhausted all applicable administrative remedies with respect to the

25 Unanswered FOIA Requests.

26

45. Defendants ODNI and DOJ have wrongfully withheld the requested records from

27 EFF.

28

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1

CAUSE OF ACTION

2

Violation of the Freedom of Information Act for

Wrongful Withholding of Agency Records 3

4

46. Plaintiff repeats and realleges paragraphs 1-45.

5

47. ODNI and DOJ have wrongfully withheld agency records requested by Plaintiff by

6 failing to comply with the statutory time limit for the processing of the Unanswered FOIA

7 Requests.

8

48. Plaintiff has exhausted the applicable administrative remedies with respect to ODNI

9 and DOJ’s wrongful withholding of the records requested in the Unanswered FOIA Requests.

10

49. Plaintiff is entitled to injunctive relief with respect to the release and disclosure of

11 the requested documents.

12

13

//

14

//

15

16

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18

19

20

21

22

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25

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27

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FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF

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1

Requested Relief

2 WHEREFORE, Plaintiff prays that this Court:

3

A. order Defendants ODNI and DOJ to process immediately the records

4 requested in the Unanswered FOIA Requests in their entirety;
5 B. order Defendants ODNI and DOJ, upon completion of such expedited
6
processing, to disclose such requested records in their entirety and make copies 7

8

available to Plaintiff;

9

C. provide for expeditious proceedings in this action;

10

D. award Plaintiff its costs and reasonable attorneys fees incurred in this action;

11

and

12 E. grant such other relief as the Court may deem just and proper.
13

14

15 DATED: July 11, 2008 16 17 18

David L. Sobel (pro hac vice) ELECTRONIC FRONTIER FOUNDATION 1875 Connecticut Ave. NW Suite 650 Washington, DC 20009 Telephone: (202) 797-9009 x104 Facsimile: (202) 707-9066

19

20

/s/

21

Kurt Opsahl, Esq.

Marcia Hofmann, Esq.

22

ELECTRONIC FRONTIER FOUNDATION

454 Shotwell Street

23

San Francisco, CA 94110

Telephone: (415) 436-9333

24

Facsimile: (415) 436-9993

25

Attorneys for Plaintiff

ELECTRONIC FRONTIER FOUNDATION

26

27

28

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FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF

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1

PROOF OF SERVICE

2

I, Kurt Opsahl, declare:

3

I am employed in the City and County of San Francisco, California by Electronic Frontier

4 Foundation at 454 Shotwell Street, San Francisco, California 94110. I am over the age of eighteen

5 years and am not a party to the within cause.

6

On July 11, 2008, at the above-referenced address, I served the attached FIRST

7 AMENDED COMPLAINT FOR INJUNCTIVE RELIEF on the interested parties in said cause by

8

personal delivery by messenger service of the document(s) above to the person(s) at the

address(es) set forth below:

9

X placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid,

10

in accordance with the firm’s practice of collection and processing correspondence with the

United States Postal Service, which in the normal course of business provides for the deposit

11

of all correspondence and documents with the United States Postal Service on the same day

they are collected and processed for mailing to the person(s) at the address(es) set forth below:

12

Adam D. Kirschner

13

U.S. Department of Justice

Civil Division, Federal Programs Branch

14

20 Massachusetts Ave, NW

Washington, DC 20530

15

facsimile transmission pursuant to Rule 2008 of the California Rules of Court on this date

16

before 5:00 p.m. (PST) of the document(s) listed above from sending facsimile machine

telephone number (415) 436-9993, and which transmission was reported as complete and

17

without error (copy of which is attached), to facsimile number(s) set forth below:

18

consigning the document(s) listed above to an express delivery service for guaranteed delivery

on the next business day to the person(s) at the address(es) set forth below:

19

20

21

I declare under penalty of perjury under the laws of the State of California that the

22 foregoing is true and correct.

23 DATED: July 11, 2008 24

/s/ KURT OPSAHL

25

26

27

28

-14-
FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF

 
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United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9 ELECTRONIC FRONTIER FOUNDATION,

10

Plaintiff,

No. C 08-01023 JSW

11 v.

12 OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE and
13 DEPARTMENT OF JUSTICE,

14

Defendants.

15

ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT /

16

Now before the Court are the parties’ consolidated cross-motions for summary

17 judgment. Having considered the parties’ pleadings, the relevant legal authority, and having

18 had the benefit of oral argument, the Court hereby DENIES Defendants’ motion for summary

19 judgment and GRANTS Plaintiff’s cross-motion for summary judgment.

20

BACKGROUND

21

On August 5, 2007, President Bush signed into law the Protect America Act of 2007,

22 which amended the Foreign Intelligence Surveillance Act (“FISA”) to expand the government’s

23 authority to gather intelligence with the help of domestic communications service providers,

24 and to protect telecommunications companies from future legal liability for their role in the

25 surveillance activity. Pub. L. No. 110-55, 121 Stat. 552.

26

The Protect America Act was set to expire in February 2008 without further

27 congressional action. President Bush indicated that the Administration would push for more

28 extensive, and likely retroactive, legal immunity for the telecommunications companies. The

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United States District Court For the Northern District of California

1 House of Representatives passed the RESTORE Act of 2007, which would not protect

2 telecommunications carriers from civil liability. H.R. 3773 (as passed by House). On February

3 21, 2008, however, the Senate passed a version of legislation to amend FISA, which purports to

4 require dismissal of any state or federal lawsuit against a telecommunications carrier for

5 facilitating government surveillance, if the Attorney General certifies to the court that the

6 company was assisting in certain intelligence activity authorized by the President. H.R. 3773,

7 FISA Amendments Act of 2008 (amendment as agreed to by Senate).

8

This action arises under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.

9 Plaintiff, the non-profit Electronic Frontier Foundation (“Plaintiff” or “EFF”), seeks the

10 production of a number of withheld documents from the Office of the Director of National

11 Intelligence (“ODNI”) and the Department of Justice (“DOJ”) concerning efforts of the

12 agencies and the telecommunication industry to push for changes to federal surveillance law,

13 especially to ensure that telecommunications carriers are not held liable for their participation in

14 recent governmental surveillance efforts.

15

On December 21, 2007, EFF faxed two letter to ODNI and DOJ’s Offices of the

16 Attorney General, Legislative Affairs, Legal Policy, Legal Counsel, and National Security

17 Division, requested under FOIA all records from September 1, 2007 to December 21, 2007

18 concerning “briefing, discussion, or other exchanges” that agency officials

19

have had with 1) members of the Senate or House of Representatives and 2)

representatives or agents of telecommunications companies concerning

20

amendment to FISA, including any discussion of immunizing

telecommunications companies or holding them otherwise unaccountable for

21

their role in government surveillance activities. This request includes, but it not

limited to, all email, appointment calendars, telephone message slips, or other

22

records indicating that such briefings, discussion, or other exchanges took place.

23 (Complaint in 08-01023 JSW at ¶¶ 18-19.)

24

In letters sent by facsimile on April 24, 2008, to the same set of agencies, EFF requested

25 under the FOIA all records:

26

A. from December 21, 2007 to the present concerning briefings, discussions,

or other exchanges any [agency] has had with representatives or agents

27

of telecommunications companies concerning amendments to FISA,

including any discussion of immunizing telecommunications companies

28

or holding them otherwise unaccountable for their role in government

surveillance activities;

2

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United States District Court For the Northern District of California

1

B. from December 21, 2007 to the present concerning briefings, discussions,

or other communications from any [agency] official to any member of the

2

Senate or House of Representatives or their staffs;

C. from December 21, 2007 to the present concerning any communications,

3

discussion, or other exchanges regardless of subject that any [agency]

official has had with Charlie Black, Wayne Berman, Dan Coats, Tom

4

Donilon, Jamie Gorelick or Brad Berenson; and

D. from January 1, 2007 to the present that are responsive to the categories

5

above, and have not yet been produced in response to previous EFF

FOIA requests.

6 (Amended Complaint in 08-02997 JSW at ¶¶ 34-35.)

7

In each of the letters, EFF formally requested that the processing of these requests be

8 expedited because they sought information about which there is an “urgency to inform the

9 public about an actual or alleged [f]ederal [g]overnment activity,” and were “made by a person

10 primarily engaged in disseminating information.” 5 U.S.C. § 552(a)(6)(E)(v)(II), 32 C.F.R. §

11 1700.12(c)(2) and 28 C.F.R. § 16.5(d)(1)(ii).

12

When the agencies failed to respond timely to these expedited requests, EFF filed suit on

13 February 20, 2008 and June 17, 2008, respectively, in the two cases before this Court, seeking

14 the immediate release of all improperly withheld documents. The issues in the two cases are

15 identical, with the requests for similar documents in sequential time periods, and have been

16 coordinated for purposes of resolution of the legal questions presented. Plaintiff contends that

17 complete production is critical because the information requested is directly relevant to

18 understanding the agencies’ roles in lobbying on behalf of telecommunications providers for

19 legislation designed to compel the dismissal of lawsuits against the telecommunications

20 companies, more than 40 of which are currently consolidated and pending before this district.

21 In re NSA Telecommunications Records Litigation (MDL Docket No. 06-1791 VRW).

22

After this Court granted a preliminary injunction requiring disclosure, Defendants

23 produced a number of documents, some with redactions, as well as a Vaughn index and

24 declarations attesting to the exemptions under which the agencies have refused full production.

25 After the start of the new administration under President Obama and his declaration of the

26 importance of transparency in government, Defendants produced a small set of additional

27 documents. Now, upon reviewing the production of released documents and the explanations

28 for Defendants’ withholdings, EFF determined not to challenge the adequacy of the agencies’

3

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United States District Court For the Northern District of California

1 searches or the withholding of any material under Exemptions 1, 2, 3, or 7(E). (See Opp. Br. at

2 8.) EFF does not challenge the withholding of identifying information about any government of

3 private sector individuals with the exception of those involved with telecommunications

4 companies. Therefore, the only disputed materials remaining relate to the unclassified

5 communications between and among executive agencies, Congress, the White House, and

6 telecommunications companies concerning amendments to FISA, and the identities of

7 individuals associated with the carriers within those communications.

8

In their motion for summary judgment, Defendants contend that their withholdings of

9 records between ODNI or DOJ officials and Members of Congress or their staffs concerning

10 amendments to FISA are appropriate pursuant to Exemption 5 as “inter-agency or intra-agency

11 memorandums or letters.” Defendants also argue that the withheld documents form part of the

12 agency’s deliberative process and fall under the presidential communications privilege and the

13 common interests or attorney work product doctrine. Defendants also contend that they have

14 properly withheld identifying information regarding individuals and entities who contacted the

15 government in an effort to protect the telecommunications companies from liability. The Court

16 shall address each argument in turn.

17

ANALYSIS

18 A. Legal Standards Applicable to Motions for Summary Judgment.

19

Summary judgment is proper when the pleadings, discovery, and affidavits show that

20 there is “no genuine issue as to any material fact and that the moving party is entitled to

21 judgment as a matter of law.” Fed. R. Civ. P. 56(c). The party moving for summary judgment

22 bears the burden of identifying those portions of the pleadings, discovery, and affidavits that

23 demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

24 317, 323 (1986). Once the moving party meets its initial burden, the nonmoving party must go

25 beyond the pleadings and, by its own affidavits or discovery, “set forth specific facts showing

26 that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). On an issue for which the

27 opposing party will have the burden of proof at trial, the moving party need only point out “that

28 there is an absence of evidence to support the nonmoving party’s case.” Id. Inferences drawn

4

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United States District Court For the Northern District of California

1 from the facts must be viewed in the light most favorable to the party opposing the motion.

2 Masson v. New Yorker Magazine, 501 U.S. 496, 520 (1991).

3

Summary judgment is the procedural vehicle by which most FOIA cases are resolved.

4 Harrison v. Executive Office for U.S. Attorneys, 377 F. Supp. 2d 141, 145 (D.D.C. 2005). As is

5 mostly the case in this type of proceeding, “there is rarely any factual dispute ... only a legal

6 dispute over how the law is to be applied to the documents at issue.” Schiffer v. FBI, 78 F.3d

7 1405, 1409 (9th Cir. 1996). Ultimately, the threshold issue on a motion for summary judgment

8 is whether the agency’s explanations are “full and specific enough to afford the FOIA requester

9 a meaningful opportunity to contest, and the district court an adequate foundation to review, the

10 soundness of the withholding.” Weiner v. FBI, 943 F.2d 972, 977 (9th Cir. 1991) (citing King

11 v. U.S. Dep’t of Justice, 830 F.2d 210, 218 (D.C. Cir. 1987)).

12 B. Standards Under FOIA.

13

FOIA was enacted to create a “judicially enforceable public right to secure government

14 documents.” EPA v. Mink, 410 U.S. 73, 80 (1973). “The basic purpose of FOIA is to ensure an

15 informed citizenry, vital to the functioning of a democratic society, needed to check against

16 corruption and to hold the governors accountable to the governed.” Hanson v. U.S. Agency for

17 International Development, 372 F.3d 286, 290 (4th Cir. 2004). Accordingly, nearly every

18 document of a federal agency is available to the public unless it falls within one of the Act’s

19 nine enumerated exemptions. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975).

20 Given FOIA’s goal of broad disclosure, the exemptions are “narrowly construed.” FBI v.

21 Abramson, 456 U.S. 615, 636 (1982); see also Assembly of the State of Cal. v. U.S. Dep’t of

22 Commerce, 968 F.2d 916, 920 (9th Cir. 1992) (the exemptions are to be “interpreted

23 narrowly”). The nine exemptions are narrowly construed so as not to frustrate FOIA’s

24 underlying policy of disclosure and non-secrecy. Department of the Interior v. Klamath Water

25 Users Protective Ass’n, 532 U.S. 1, 8 (2001). Moreover, if only a portion of a record is exempt

26 from disclosure, the agency must disclose the non-exempt portion if it is “reasonably

27 segregable.” 5 U.S.C. § 552(b).

28

5

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United States District Court For the Northern District of California

1

Exemption 5 prevents the disclosure of “inter-agency or intra-agency memorandums or

2 letters which would not be available by law to a party other than an agency in litigation with the

3 agency.” 5 U.S.C. § 552(b)(5); see also Sears, Roebuck, 421 U.S. at 148-49 (noting that

4 “Exemption 5 withholds from a member of the public documents which a private party could

5 not discover in litigation with the agency,” and therefore, “it is reasonable to construe

6 Exemption 5 to exempt those documents ... normally privileged in the civil discovery context.”)

7 A document qualifies under Exemption 5 if (1) its source is a government agency, meaning the

8 communication must be “inter-agency or intra-agency” and (2) the document “fall[s] within the

9 ambit of a privilege against discovery under judicial standards that would govern litigation

10 against the agency that holds it.” Klamath, 532 U.S. at 9. Specifically, Exemption 5 has been

11 interpreted to incorporate the attorney-client privilege, the deliberative process privilege, and

12 the presidential communications privilege. See Baker & Hostetler LLP v. U.S. Dep’t of

13 Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006).

14

The district court reviews de novo the agency’s response to a FOIA request, and the

15 agency bears the burden of showing that a FOIA exemption applies to any withheld documents.

16 5 U.S.C. § 552(a)(4)(B). The agency may meet its burden by submitting affidavits,

17 declarations, and Vaughn indices “identifying each document withheld, the statutory exemption

18 claimed, and a particularized explanation of how disclosure of the particular document would

19 damage the interest protected by the claimed exemption.” Weiner, 943 F.2d at 977. Summary

20 judgment may be granted solely based on these materials when they describe “the documents

21 and the justifications for nondisclosure with reasonably specific detail, demonstrate that the

22 information withheld logically falls within the claimed exemption, and are not controverted by

23 either contrary evidence in the record not by evidence of agency bad faith.” Military Audit

24 Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “Specificity is the defining requirement”

25 of these explanatory materials. Wiener, 943 F.2d at 979 (citing King, 830 F.2d at 219).

26 Summary judgment may not be granted if the agency’s justifications are “conclusory, merely

27 reciting statutory language, or ... too vague or sweeping.” King, 830 F.2d at 224.

28

6

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United States District Court For the Northern District of California

1 C. Defendants Have Improperly Withheld Documents Under Exemption 5.

2

The parties agree that the “the bulk of the records at issue in this case consists of

3 confidential email messages exchanged between ODNI or DOJ officials and congressional staff

4 in which the parties to the emails discussed, analyzed and negotiated possible amendments to

5 FISA.” (Opp. Br. at 2; Reply at 2.) The FOIA defines “agency” as “any executive department,

6 military department, Government corporation, Government controlled corporation, or other

7 establishment in the executive branch (including Executive Office of the President), or any

8 independent regulatory agency.” 5 U.S.C. § 552(f). Neither Congress nor private corporations

9 fall within the statutory definition of “agency.” See also Dow Jones & Co. v. Dep’t of Justice,

10 908 F.2d 1006, 1009 (D.C. Cir. 1990) (holding that “Congress simply is not an agency [within

11 the statutory definition].”) In addition, the legislative history of Exemption 5 demonstrates that

12 the term “Executive Office of the President” within the statutory definition of “agency” does

13 not include the “President’s immediate personal staff or units in the Executive Office whose

14 sole function is to advise and assist the President.” H.R. Rep. No. 93-1380, at 232 (1974); see

15 also Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156 (1980)

16 (holding that “FOIA does not render “Executive Office of the President” an agency subject to

17 the Act.”). The Court also finds that Exemption 5 does not extend to communications that have

18 been shared with government bodies or private corporations outside an Executive branch

19 agency because these entities are not considered “agencies” within the meaning of FOIA.

20

Defendants appear to contend that communications between agency officials and non-

21 agency officials where the agency has solicited the communication in an effort to facilitate its

22 own deliberative process, may still fall within the inter-agency or intra-agency exemption. In

23 this regard, Defendants contend that the withheld records meet the threshold requirement of

24 Exemption 5 because they have been received by an agency, to assist it in the performance of its

25 own functions, from a person acting in a governmentally-conferred capacity other than on

26 behalf of another agency – e.g., in a capacity as employee or consultant to the agency, or as

27 employee or officer of another governmental unit (not an agency) that is authorized or required

28 to provide advice to the agency. (See Opp. Br. at 3, citing Klamath, 532 U.S. at 9-10.)

7

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United States District Court For the Northern District of California

1 However, in order for the exemption to apply in these circumstances, the records submitted by

2 outside consultants must serve essentially the same role in an agency’s process of deliberation

3 as documents prepared by agency personnel might have. Klamath, 523 U.S. at 10. However,

4 “the fact about the consultant that is constant in the typical cases is that the consultant does not

5 represent an interest of its own, or the interest of any other client, when it advises the agency

6 that hires it. Its only obligation are to truth and its sense of what good judgment calls for, and in

7 those respects the consultant functions just as an employee would be expected to do.” Id. at 10-

8 11; see also Dow Jones & Co., 908 F.2d at 1009 (“as long as the documents are created for the

9 purpose of aiding the agency’s deliberative process ... they will be deemed intra-agency

10 documents even when created by non-agency personnel”) (emphasis in original); Ryan v. Dep’t

11 of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980) (holding that documents are properly withheld

12 under Exemption 5 where agency records are submitted by outside consultant as part of the

13 agency’s deliberative process and were solicited by the agency). To the extent the withheld

14 materials reflect communications between ODNI and DOJ and members of Congress in an

15 effort to facilitate Congress’ own deliberative process to craft legislation to reform FISA, these

16 communications do not fall under the exemption as there is no evidence that they were used in

17 an effort to aid any agency in its own deliberative process.

18

Similarly, the Court finds that any withheld communications between representatives of

19 the telecommunications companies and government officials also fail to meet the threshold

20 requirement necessary to claim Exemption 5 protection. Here, the telecommunications

21 companies communicated with the government to ensure that Congress would pass legislation

22 to grant them immunity from legal liability for their participation in the surveillance. Those

23 documents are not protected from disclosure because the companies communicated with the

24 government agencies “with their own ... interests in mind,” rather than the agency’s interests.

25 See Klamath, 532 U.S. at 11. The Court finds that the threshold requirement to fall within the

26 ambit of Exemption 5 is not met under these circumstances. The documents do not constitute

27 inter- or intra-agency memorandums or letters under 5 U.S.C. § 552(b)(5). As they fail to meet

28 the threshold burden of demonstrating protection from disclosure, Defendants may not withhold

8

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United States District Court For the Northern District of California

1 those documents from disclosure that were exchanged between ODNI and DOJ officials and

2 congressional staff or those documents regarding communications between representatives of

3 the telecommunications companies and government officials.

4

Although the Court is not persuaded by Defendants’ further arguments on the

5 applicability of the presidential communications privilege, the deliberative process privilege,

6 the common interest privilege, or the attorney work product doctrine, the Court need not

7 address the parties’ remaining contentions regarding privilege because the Court finds that

8 Defendants have failed to meet their burden to establish the threshold requirement for

9 exemption. Because the test for exemption is conjunctive, the Court need not reach the

10 applicability of the specific privileges Defendants have asserted. See, e.g., National Institute of

11 Military Justice v. Dep’t of Defense, 2008 WL 1990366, *1 (D.C. Cir. 2008) (finding that many

12 courts overlook the first step in the exemption analysis); Klamath, 532 U.S. at 9, 12 (holding

13 that “the first condition of Exemption 5 is no less important than the second; the communication

14 must be ‘inter-agency or intra-agency’” and “[t]here is no textual justification for draining the

15 first condition of independent vitality.”)

16 D. Defendants Have Improperly Withheld Information Under Exemption 6.

17

EFF contends that the Defendants improperly withheld records or portions of records

18 reflecting the identities of the carrier employees and their agents pursuant to Exemption 6.

19 Defendants argue that the identities of telecommunications companies’ employees and agents

20 were also withheld pursuant to Exemption 3, which EFF no longer challenges.1 Regardless,

21 Defendants contend that Exemption 6 allows an agency to withhold “personnel and medical

22 files and similar files the disclosure of which would constitute a clearly unwarranted invasion of

23 personal privacy.” 5 U.S.C. § 552(b)(6). The analysis proceeds in two stages: the first stage is

24 fairly minimal and only requires that the information is related to personnel, medical or

25 “similar” information. If so, the Court must determine whether the disclosure would constitute

26 a “a clearly unwarranted invasion of personal privacy” by balancing the public interest in

27

28

1 The Court finds that documents over which Defendants claimed Exemptions 2 or 3,

but not Exemption 5 are no longer at issue here as EFF’s challenge has been abandoned.

9

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1 disclosure against the privacy interests of the individuals. See Washington Post Co. v. U.S.

2 Dep’t of Health and Human Services, 690 F.2d 252, 260 (D.C. Cir. 1982). In performing the

3 balance, courts must keep in mind Congress’ “dominant objective” to provide full disclosure of

4 agency records. Dep’t of the Air Force v. Rose, 425 U.S. 352, 372 (1976).

5

The Court finds that there is some, although not substantial, privacy interest in the

6 withheld documents indicating the identities of the private individuals and entities who

7 communicated with the ODNI and DOJ in connection with the FISA amendments. However, in

8 the balance, the Court finds that the public interest in an informed citizenry weighs in favor of

9 disclosure. There is a strong public interest in disclosure of the identity of the individuals who

10 contacted the government in an effort to expand the government’s authority to gather

11 intelligence and to protect telecommunications companies from legal liability for their role in

12 governmental surveillance activity.

13

CONCLUSION

14

Accordingly, the Court DENIES Defendants’ motion for summary judgment and

15 GRANTS Plaintiff’s cross-motion for summary judgment. The Court orders that the

16 improperly withheld documents shall be disclosed by no later than October 9, 2009.2

17

IT IS SO ORDERED.

18

19 Dated: September 24, 2009 20

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

21

22

23
2 On his first day in office, President Obama issued a memorandum to the heads of all 24 executive branch departments and agencies regarding the breadth of FOIA. Memorandum
for Heads of Executive Departments and Agencies, 74 Fed. Reg. 4683 (Jan. 21, 2009). It 25 provides, in pertinent part: “[a]ll agencies should adopt a presumption in favor of disclosure,
in order to renew their commitment to the principles enshrined in FOIA, and to usher in a 26 new era of open Government. The presumption of disclosure should be applied to all
decision involving FOIA.” Id. In addition, President Obama directed the Attorney General 27 to issue new guidelines governing FOIA, in an effort to reaffirm “the commitment to
accountability and transparency.” Id. The Court finds its holding is consistent with the 28 President’s directive.

10

 
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 ELECTRONIC FRONTIER FOUNDATION,

No. 09-17235

Plaintiff-Appellee,

D.C. Nos.

v.

3:08-cv-01023-JSW

3:08-cv-02997-JSW

OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE;



ORDER

DEPARTMENT OF JUSTICE,

AMENDING

Defendants-Appellants.

OPINION AND

AMENDED



OPINION

Appeal from the United States District Court for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted January 12, 2010—San Francisco, California
Filed February 9, 2010 Amended April 9, 2010
Before: Myron H. Bright,* Michael Daly Hawkins, and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Hawkins

*The Honorable Myron H. Bright, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation.
5357

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5362

EFF v. ODNI

COUNSEL
Douglas N. Letter and Scott McIntosh, United States Department of Justice, Civil Division, Washington, D.C., for the defendants-appellants.
Marcia Hofmann, San Francisco, California, for the plaintiffappellee.
ORDER
The Motion by Appellants to Correct Factual Misstatement in Panel Opinion is GRANTED. The Opinion filed on February 9, 2010, slip op. page 2313, and appearing at 595 F.3d 949 (9th Cir. 2010), is hereby amended as follows:
We delete the sentence on page 962 that currently reads:
On appeal, defendants concede that subsequent to the district court order, the government determined the district court was correct to order disclosure of the documents exchanged between the Executive Branch and Congress, as well as those in which the telecommunications firms were involved in the exchange.
In its place, we substitute the following sentence:

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EFF v. ODNI

5363

After the district court’s disclosure order, the Solicitor General chose not to appeal the Exemption 5 ruling as it pertained to the documents exchanged between the Executive Branch and Congress, as well as those documents in which the telecommunications firms were involved in the exchange.

No petitions for rehearing or petitions for rehearing en banc will be entertained following the filing of this Order.

OPINION
HAWKINS, Circuit Judge:
In the wake of the September 11, 2001 terrorist attacks, the President authorized the National Security Agency (“NSA”) to conduct a warrantless, electronic surveillance program on millions of American telephones. Numerous lawsuits have claimed the program was illegal and unconstitutional, e.g., AlHaramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190, 1192-93 (9th Cir. 2007), including a consolidated action for damages against allegedly cooperating telecommunications providers, see In re NSA Telecomms. Records Litig., 633 F. Supp. 2d 949, 959 (N.D. Cal. 2009); see also U.S. Dep’t of Justice, Office of Inspector Gen., A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records 20-25 (Jan. 2010) (describing three unnamed telecommunications carriers’ cooperation with the FBI). The merits of those claims, however, are not at issue here.
This case concerns the discussions between telecommunications carriers (including their lobbyists and attorneys) and the government, as the carriers sought retroactive liability protection for any participation in the program. This appeal concerns the extent to which the public has the right to infor-

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5364

EFF v. ODNI

mation about those discussions and related lobbying efforts under the Freedom of Information Act (“FOIA”).

I. BACKGROUND

A. Enactment of the Foreign Intelligence Surveillance Act Amendments

Efforts to provide liability protection for the providers began in 2007. In April of that year, as part of a broader discussion of reforming electronic surveillance laws, the Department of Justice (“DOJ”) sent a legislative proposal to Congress, which included a provision creating retroactive immunity for telecommunications providers alleged to have participated in the surveillance activities. In August 2007, Congress enacted the Protect America Act of 2007 (“PAA”), Pub. L. No. 110-55, 121 Stat. 552, a temporary measure, which did not include a liability shield.

Contemporaneously with the PAA debate, news organizations such as The New York Times and Newsweek reported on a “campaign” involving “some of Washington’s most prominent lobbying and law firms”1 to pressure the Bush adminis-

1The Newsweek article included the following:
Among those coordinating the industry’s effort are two wellconnected capital players who both worked for President George H.W. Bush: Verizon general counsel William Barr, who served as attorney general under 41, and AT&T senior executive vice president James Cicconi, who was the elder Bush’s deputy chief of staff.
Working with them are a battery of major D.C. lobbyists and lawyers who are providing “strategic advice” to the companies on the issue, according to sources familiar with the campaign who asked not to be identified talking about it. Among the players, these sources said: powerhouse Republican lobbyists Charlie Black and Wayne Berman (who represent AT&T and Verizon, respectively), former GOP senator and U.S. ambassador to Germany Dan Coats (a lawyer at King & Spaulding who is represent-

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EFF v. ODNI

5365

tration to “quickly approve a measure wiping out all private lawsuits against them for assisting” with the warrantless surveillance program. The news accounts highlighted the providers’ “hidden role in the political battle,” and Newsweek claimed Director of National Intelligence Mike McConnell (“McConnell”) had “raise[d] the stakes,” stating in a recent interview that the lawsuits could “bankrupt these companies.”

Congress designed the PAA as a stopgap, and allowed it to expire on February 16, 2008. One day before the PAA’s expiration, McConnell discussed the need for statutory protection for the carriers, stating in a TV interview, “The companies are telling us if you can’t protect us, the cooperation you need is not going to be there.” On February 23, DOJ and the Office of the Director of National Intelligence (“ODNI”) issued a joint press release noting the “private partners are cooperating for the time being,” but the government also expressed concern because the carriers “have indicated that they may well discontinue cooperation if the uncertainty [over their liability exposure] persists.” News reports claimed AT&T in fact stopped cooperating with the government for six days after the expiration of the PAA. Similar reports indicated Verizon expressed its concerns to the government but did not cease its assistance.

In July 2008, Congress passed, and the President signed, the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (“FISA Amendments Act”), Pub. L. No. 110-261, 122 Stat. 2436, updating FISA on a more permanent basis than did the PAA. As their lobbyists had sought, the legislation included a liability shield for the carriers. Under Title

ing Sprint), former Democratic Party strategist and one-time assistant secretary of State Tom Donilon (who represents Verizon), former deputy attorney general Jamie Gorelick (whose law firm also represents Verizon) and Brad Berenson, a former assistant White House counsel under President George W. Bush who now represents AT&T.

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VIII of the Act, section 802, “Procedures for Implementing Statutory Defenses,” established the immunity procedure.

Specifically, section 802 provided that “a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed,” so long as the Attorney General certified either that a defendant provided assistance pursuant to a number of reasons, such as court order or presidential authorization, see § 802(a)(1)-(4), 122 Stat. at 2468-69, or certified that “the person did not provide the alleged assistance,” id. § 802(a)(5) (emphasis added).

B. EFF’s FOIA Requests

After passage of the PAA but before enactment of the FISA Amendments Act, the Electronic Frontier Foundation (“EFF”) made a FOIA request to ODNI and five DOJ components (together “Defendants” or “the government”),2 seeking all records from September 1, 2007, through December 21, 2007, concerning “briefing, discussions, or other exchanges” agency officials had with 1) members of Congress, and “2) representatives or agents of telecommunications companies concerning amendments to FISA, including any discussion of immunizing telecommunications companies or holding them otherwise unaccountable for their role in government surveillance activities.” Elec. Frontier Found. v. Office of the Dir. of Nat’l Intelligence, 542 F. Supp. 2d 1181, 1184 (N.D. Cal. 2008) (“EFF”).

Some four months later, EFF submitted a second round of FOIA requests to the same agencies seeking “all agency records” concerning briefings, discussions, or other exchanges

2The five DOJ components were the Office of the Attorney General (“OAG”), the Office of Legislative Affairs (“OLA”), the Office of Legal Policy (“OLP”), the Office of Legal Counsel (“OLC”), and DOJ’s National Security Division (“NSD”).

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between the agencies and “representatives or agents of telecommunications companies concerning amendments to FISA,” or shielding the companies from liability as a result of their cooperation with government surveillance activities. This round of FOIA requests also sought information regarding communications from the agencies to members of Congress or their staffs, as well as agency communications, regardless of subject matter, with a number of named, highprofile telecommunications industry employees and lobbyists.3

In both FOIA letters, EFF sought expedited processing of their requests. See 5 U.S.C. § 552(a)(6)(E)(v)(II) (2000), 32 C.F.R. § 1700.12(c)(2) (2007), and 28 C.F.R. § 16.5(d)(1)(ii). When the agencies failed to timely respond, EFF filed two separate actions, which were later consolidated by the district court.

3EFF’s specific FOIA request sought all records:
A. from December 21, 2007 to the present concerning briefs, discussions, or other exchanges, any [agency] official has had with representatives or agents of telecommunications companies concerning amendments to FISA, including any discussion of immunizing telecommunications companies or holding them otherwise unaccountable for their role in government surveillance activities;
B. from December 21, 2007 to the present concerning briefings, discussions, or other communications from any OAG official to any member of the Senate or House of Representatives or their staffs;
C. from December 21, 2007 to the present concerning any communications, discussions, or other exchanges regardless of subject that any [agency] official has had with Charlie Black, Wayne Berman, Dan Coats, Tom Donilon, Jamie Gorelick or Brad Berenson; and
D. from January 1, 2007 to the present that are responsive to the categories above, and have not yet been produced in response to previous EFF FOIA requests.

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C. Procedural History

On April 4, 2008, the district court granted a preliminary injunction requiring ODNI and DOJ to expedite processing of EFF’s December 2007 FOIA requests. EFF, 542 F. Supp. 2d at 1187. The parties negotiated a schedule for processing the June 2008 requests.

In response to the preliminary injunction, ODNI and DOJ released many documents, but withheld others pursuant to a number of FOIA exemptions and privileges. Under Exemption 5 (protecting “inter-agency or intra-agency” documents privileged in civil litigation, 5 U.S.C. § 552(b)(5) (2006)), Defendants withheld email messages and other information exchanged between the agencies and Congress, the agencies and the telecommunications carriers, and the agencies and other parts of the Executive Branch, including the White House.

Defendants also withheld the identities of telecommunications company representatives under Exemption 3 (permitting the withholding of information “specifically exempted from disclosure by statute,” 5 U.S.C. § 552(b)(3)), and Exemption 6 (permitting withholding of certain personnel, medical, and similar files for which disclosure “would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6)).

EFF challenged withholdings related to unclassified communications between and among Executive agencies, Congress, the White House, and telecommunications carriers, concerning amendments to FISA. It also challenged Defendants’ withholding of the identities of individual agents or representatives of the carriers within both the released and withheld communications. The parties each moved for summary judgment, which they agreed to consolidate, and the district court denied the government’s motion, granted EFF’s

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5369

cross-motion, and ordered the government to disclose the contested documents.

After the district court rejected Defendants’ motions for reconsideration and refused a temporary stay pending the Solicitor General’s determination regarding appeal of the disclosure order, Defendants sought the stay in this court. We granted a stay pending appeal to allow the Solicitor General the opportunity to decide which part(s) of the summary judgment order to appeal.

Defendants decided not to appeal the district court order as it pertained to information Defendants exchanged with Congress and with the telecommunications firms, and the government then disclosed the content of all communications between the agencies and Congress and the agencies and telecommunications carriers, though redacted the identities of telecommunications firms and their agents or representatives. This substantial disclosure left only two types of information Defendants continue to withhold.

Under Exemption 5, Defendants are withholding materials claimed to have been circulated solely within the Executive Branch. Defendants also continue to withhold the previously redacted identities of telecommunications firms and their agents or representatives involved in the FISA Amendments Act communications under Exemption 3 and Exemption 6.

II. DISCUSSION

A. Standard of Review under FOIA

[1] FOIA was enacted to create a “judicially enforceable public right to secure” government documents. EPA v. Mink, 410 U.S. 73, 80 (1973); see also U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991) (FOIA “was enacted to facilitate public access to Government documents.”). The statutory scheme provides public access to government information

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“shielded unnecessarily” from the public and establishes a “judicially enforceable public right to secure such information from possibly unwilling official hands.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976) (internal quotation marks omitted). FOIA’s purpose was thus to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (internal quotation marks omitted).

[2] “At the same time, FOIA contemplates that some information may legitimately be kept from the public.” Lahr v. NTSB, 569 F.3d 964, 973 (9th Cir. 2009). The statute contains nine exemptions, pursuant to which the government can withhold information otherwise available for disclosure. See 5 U.S.C. § 552(b)(1)-(9) (2006). “FOIA’s ‘strong presumption in favor of disclosure’ means that an agency that invokes one of the statutory exemptions to justify the withholding of any requested documents or portions of documents bears the burden of demonstrating that the exemption properly applies to the documents.” Lahr, 569 F.3d at 973 (quoting Ray, 502 U.S. at 173). Because of its overarching goal of public disclosure, FOIA “exemptions are to be interpreted narrowly.” Id.

On summary judgment, we employ a two-step standard of review in FOIA cases. Lion Raisins Inc. v. U.S. Dep’t of Agric., 354 F.3d 1072, 1078 (9th Cir. 2004). First, whether, de novo, “an adequate factual basis exists to support the district court’s decisions.” Milner v. U.S. Dep’t of the Navy, 575 F.3d 959, 963 (9th Cir. 2009). If so, “ ‘then we review the district court’s conclusions of fact for clear error, while legal rulings, including its decision that a particular exemption applies, are reviewed de novo.’ ” Id. (quoting Lane v. Dep’t of Interior, 523 F.3d 1128, 1135 (9th Cir. 2008)). The burden rests on the government to justify its decision to exclude disclosures under FOIA. U.S. Dep’t of Justice v. Reporters

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Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (“Reporters Comm.”).

B. Information on Carriers’ and their Agents’ Lobbying Communications

1. FOIA Exemption 3

The government argues it is entitled to withhold the names of the participating carriers and their agents pursuant to FOIA Exemption 3. Due to confusion evident in the parties’ crossmotions for summary judgment, the district court did not squarely address the factual or legal basis of the government’s Exemption 3 argument.

[3] FOIA Exemption 3 allows a responding agency to withhold information “specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3). The government argues two statutes justify its withholdings: First, Section 103(c)(7) of the National Security Act of 1947, obligating the Director of National Intelligence to “protect intelligence sources and methods from unauthorized disclosure,” 50 U.S.C. § 4031(i)(1) (2006); see also CIA v. Sims, 471 U.S. 159, 178-79 (1985); and second, Section 6 of the National Security Agency Act of 1959, which prevents “disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof, or of the names, titles, salaries, or number of persons employed by such agency,” Pub. L. No. 86-36, 73 Stat. 63, codified at 50 U.S.C. § 402 note.

Under these statutes and Exemption 3, the government’s summary judgment brief argued, “ODNI and DOJ withheld information that could reveal whether any particular telecommunications carrier has assisted, or may in the future assist, the government with intelligence activities.” The government claimed disclosure “could deter telecommunications companies from assisting the government in the future,” and disclo-

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sure “provides our adversaries with valuable information about our intelligence sources, methods, and capabilities.”

[4] The government’s argument was predicated on the following inference: Revealing the identity of carriers and their agents working for a carrier liability shield would allow foreign intelligence agents to determine contours of NSA intelligence operations, sources, and methods. In other words, knowledge of which firms were and were not lobbying for liability protection could lead to inferences regarding the firms that participate in the surveillance program. EFF disputes the propriety of this inference. However, because the district court did not address Exemption 3 due to confusion in the parties’ summary judgment briefing, we remand for the district court to address these claims in the first instance. See Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1147 (9th Cir. 2008).

EFF’s motion opposing the government’s summary judgment motion is likely the source of the district court’s confusion. The government relied on the following statement from EFF’s motion in claiming EFF abandoned its objection to the government’s withholding the names of telecommunications firms and agents under Exemption 3: “EFF has decided not to challenge . . . the withholding of any material under Exemptions 1, 2, 3, or 7(E).” The district court, in passing, mentioned this same statement from EFF’s motion in failing to discuss Exemption 3 in its summary judgment ruling.

Although EFF’s statement seems to abandon its Exemption 3 challenge, other language contradicts such a conclusion. For example, the sentence quoted above ended in a footnote, which included the following: “In some cases, the government claims Exemptions 1 and/or 3 in conjunction with Exemptions 5 and/or 6. EFF continues to challenge the Exemption 5 and 6 withholdings to the extent the records can be disclosed without revealing classified information or the government’s intelligence sources and methods.” In the same

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EFF v. ODNI

5373

paragraph with the confusing sentence, EFF went on to claim, “as a result of EFF’s efforts to narrow the scope of the litigation, the only material still at issue relates to unclassified communications between and among executive agencies, Congress, the White House, and telecommunications companies concerning amendments to FISA, and the identities of individual agents or representatives of the carriers within those communications.”

The government’s reply to EFF claimed EFF had “clearly abandoned its challenge of Exemption 3 withholdings,” and the government did not discuss the merits of whether releasing names of telecommunications firms and their agents was adequately withheld under Exemption 3.

EFF countered, claiming the government’s arguments under Exemption 3 were “coextensive” with the Exemption 6 arguments. EFF explained, “[a]s noted in EFF’s opening brief, despite not challenging Exemption 3 directly, ‘EFF continues to challenge the Exemption 5 and 6 withholdings to the extent that records can be disclosed without revealing classified information or the government’s intelligence sources and methods.’ ” It continued, “[t]he identities of the individuals contacting the government would reveal neither classified information nor the government’s intelligence sources and methods.” The parties thus placed the district court in the difficult position of determining, over disputed claims, whether Exemption 3 claims were actually at issue.

The district court seemed to accept the government’s assertion that EFF abandoned its Exemption 3 challenge, but, then, when it found the government could not withhold the same documents under Exemption 6, it ordered them released without considering the documents for which the government also claimed Exemption 3. Assuming the district court found EFF abandoned its Exemption 3 arguments, these would appear to be validly withheld documents under the government’s supposedly unchallenged Exemption 3 claim.

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EFF v. ODNI

A single valid exemption is sufficient to support withholding. See Milner, 575 F.3d at 971 n.8; Painting Indus. of Haw. Mkt. Recovery Fund v. U.S. Dep’t of Air Force, 26 F.3d 1479, 1486 (9th Cir. 1994). Therefore, if the district court found EFF had abandoned its argument against Exemption 3 withholding, the documents the government withheld pursuant to Exemption 3 should not have been ordered released. If the district court found EFF was actually challenging whether releasing the names of telecommunications firms and their agents constituted an unauthorized disclosure of intelligence sources and methods, it should have undertaken that analysis.

[5] Based on the nature of EFF’s challenge, we take the latter position. Because the district court did not review the governments’ arguments pursuant to Exemption 3, we remand for it to conduct the Exemption 3 review. See Pac. Fisheries, Inc., 539 F.3d at 1147. A remand is particularly appropriate because our two-step review of FOIA determinations presupposes the district court has determined a contested issue. See Milner, 575 F.3d at 963; Berman v. CIA, 501 F.3d 1136, 1139-40 (9th Cir. 2007).

The record indicates EFF never conceded its challenge to withholding the names of the carriers and their agents despite its statement it was abandoning its Exemption 3 challenge. Thus, finding EFF did relinquish this challenge, and deciding the issue solely under Exemption 6, would not be an accurate reading of EFF’s arguments as a whole, nor is it reason to reject out-of-hand all challenges to the government’s withholding of the carriers’ and agents’ identities.

The government claims that releasing identities of firms and individuals working for a carrier liability shield will create an inference of the government’s sources of intelligence. Determining whether this claim is meritorious may require factual determinations, and it also may require— though it may not—the reviewing court to view the disputed documents in camera as opposed to simply relying on the

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Vaughn indices currently in the record. Further, our wellestablished procedure for reviewing FOIA exemption determinations is not perfectly applicable where, as here, the district court did not make an actual determination. See Milner, 575 F.3d at 963; Berman, 501 F.3d at 1139-40.

[6] For the foregoing reasons, we vacate and remand the district court’s Exemption 3 analysis, to the extent one exists, for the district court to address whether the government properly withheld telecommunications firms’ and their agents’ identities pursuant to FOIA Exemption 3.

2. FOIA Exemption 6

Defendants also claim they are entitled to withhold the names of the telecommunications carriers and their agents pursuant to Exemption 6 to protect the agents’ personal privacy. Because satisfying a single FOIA exemption is all the government must show to withhold a given piece of information, see Berman, 501 F.3d at 1141 n.2, we must also reach the Exemption 6 issue.

The district court found the “public interest in an informed citizenry” outweighed the carriers’ agents’ “not substantial” privacy interests. For the reasons explained below, we affirm the district court on the Exemption 6 summary judgment grant for EFF.

[7] Exemption 6 removes “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy” from FOIA’s disclosure requirements. 5 U.S.C. § 552(b)(6). In considering whether Exemption 6 applies to a particular request for information, we must consider, first, whether the information is contained in a personnel, medical, or “similar” file, and, second, “whether release of the information would constitute a clearly unwarranted invasion of the person’s privacy.” U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982)

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(finding citizenship status properly withheld under Exemption 6). In conducting this second inquiry, we balance the individual’s privacy interest against “the extent to which FOIA’s central purpose of opening agency action to public scrutiny would be served by disclosure.” U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 491 (1994); see Lahr, 569 F.3d at 973 (A court “must balance the privacy interest protected by the exemptions against the public interest in government openness that would be served by disclosure.”).

The first question is thus whether communications documented in the records in question constitute “similar” information as that contained in personnel and medical files under Exemption 6. As the government points out, EFF does not contest whether the emails are “similar files.” Though this may be a closer question than the government describes, we assume without deciding that the documents at issue here qualify as “similar files.” See Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 33 (D.C. Cir. 2002) (assuming without deciding that the documents in question were similar files because invasion of privacy question was dispositive and more straightforward).

[8] We next consider “whether release of the information would constitute a clearly unwarranted invasion of that person’s privacy.” Wash. Post Co., 456 U.S. at 602. “[T]o determine whether a record is properly withheld, we must balance the privacy interest protected by the exemptions against the public interest in government openness that would be served by disclosure.” Lahr, 569 F.3d at 973.

The district court concluded “that there is some, although not a substantial, privacy interest in the withheld documents indicating the identities of the private individuals and entities who communicated with the ODNI and DOJ in connection with the FISA amendments.” It found, however, “that the public interest in an informed citizenry weighs in favor of disclosure” because “there is a strong public interest in disclo-

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sure of the identity of the individuals who contacted the government . . . to protect telecommunications companies from legal liability for their role in government surveillance activities.” We agree.

[9] Because Exemption 6 cases often involve a dispute over whether to redact a government employee’s name, or a record of an individual in a large government database, there is little authority on the privacy interest under Exemption 6 when a private individual voluntarily seeks to engage with and persuade the government on a policy position. However, as described below, the few cases considering a private party attempting to influence government policy typically find in favor of disclosure, lacking countervailing concerns not present in this case. See, e.g., Alliance for the Wild Rockies v. Dep’t of the Interior, 53 F. Supp. 2d 32, 36-37 (D.D.C. 1999).

Perhaps the most factually analogous case is People for the American Way Foundation v. National Park Service, in which a district court rejected Exemption 6 withholding of the identities of a group urging the National Park Service to alter the video shown at the Lincoln Memorial to remove “photographs and video coverage of demonstrations that occurred at the Lincoln Memorial, including gay rights, pro-choice and antiVietnam War footage.” 503 F. Supp. 2d 284, 288-89 (D.D.C. 2007). Discussing Exemption 6, the court stated, “[w]hen a citizen petitions his government to take some action, courts have generally declined to find the identity of the citizen to be information that raises privacy concerns under exemption 6.” Id. at 305-06 (internal quotation marks omitted).

The cases considering this issue largely reason along the same lines. Although some cases have found little public interest in disclosing the name of a constituent writing to a member of Congress, they recognize the obvious distinction between that and the public’s interest in knowing which politically active groups affect government decision making. See id. (distinguishing constituent letters from more involved

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forms of policy influence). Compare Strout v. U.S. Parole Comm’n, 40 F.3d 136, 139 (6th Cir. 1994) (finding considerable privacy interest in individuals writing to oppose parole request), and Kidd v. Dep’t of Justice, 362 F. Supp. 2d 291, 297 (D.D.C. 2005) (“Providing personal identifying information commonly found in constituent letters [to members of Congress] does not advance the purposes of FOIA and, as such, may be withheld from FOIA requests.”), and Voinche v. FBI, 940 F. Supp. 323, 330 (D.D.C. 1996) (“There is no reason to believe that the public will obtain a better understanding of the workings of various agencies by learning the identities of . . . private citizens who wrote to government officials . . . .”), with Kurzon v. Dep’t of Health & Human Servs., 649 F.2d 65, 69-70 (1st Cir.1981) (rejecting government’s Exemption 6 argument to withhold names of scientists turned down for research funding, holding that although the “protection of professional reputation, even in this strict sense, is not beyond the purview of exemption 6, it is not at its core”), and Lardner v. U.S. Dep’t of Justice, No. Civ.A.030180(JDB), 2005 WL 758267, at *18 (D.D.C. Mar. 31, 2005) (holding public interest in identifying persons influencing presidential pardon power outweighed modest privacy interest), and Judicial Watch of Florida, Inc. v. U.S. Dep’t of Justice, 102 F. Supp. 2d 6, 18 (D.D.C. 2000) (“Depriving the public of knowledge of the writer’s identity would deprive the public of a fact which could suggest that their Justice Department had been steered by political pressure rather than by the relevant facts and law.”), and Alliance for the Wild Rockies, 53 F. Supp. 2d at 36-38 (names and addresses of individuals who submitted comments on proposed rulemaking could not be withheld under Exemption 6 because of public interest in disclosure).

Here, we balance the public interest in obtaining information about the effects of lobbying on government decision making against the privacy concerns of telecommunications industry lobbyists in keeping their names and the nature of their employment activities private. Under Exemption 6, our

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5379

inquiry is primarily concerned with privacy, here that of the carriers’ agents and lobbyists.

[10] There is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence. As the Supreme Court has explained, “[o]fficial information that sheds light on an agency’s performance of its statutory duties” merits disclosure. Reporters Comm., 489 U.S. at 773.

[11] With knowledge of the lobbyists’ identities, the public will be able to determine how the Executive Branch used advice from particular individuals and corporations in reaching its own policy decisions. Such information will allow the public to draw inferences comparing the various agents’ influence in relation to each other and compared to the agents’ or their corporate sponsors’ political activity and contributions to either the President or key members of Congress. In short, we find the public interest in “government openness that would be served by disclosure” of how the government makes decisions potentially shielding firms lobbying (and donating to campaigns) from nine-figure liabilities to be plainly important. See Lahr, 569 F.3d at 973.

[12] The district court also correctly found that lobbyists’ privacy interests in the nature of their employment, should not counterbalance the public’s strong interest. See Sims v. CIA, 642 F.2d 562, 574-75 (D.C. Cir. 1980); People for the Am. Way Found., 503 F. Supp. 2d at 303-07. Putting aside the national security concerns discussed above, as we must under Exemption 6, government acknowledgment of a lobbyist’s lobbying activities does not reveal “sensitive personal information” about the individual rising to a “clearly unwarranted invasion of personal privacy.” Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004); Reed v. NLRB, 927 F.2d 1249, 1251 (D.C. Cir. 1991). “Official information that sheds light on an agency’s performance of its statutory duties falls squarely within [Exemption 6’s] statutory pur-

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EFF v. ODNI

pose.” Reporters Comm., 489 U.S. at 773. Unlike situations in which private citizens find themselves in a large government database because of conduct unrelated to the inquiry underlying the FOIA action, when “[t]he applicant is petitioning the government for the performance of a public act; this is not a situation where he is a third-party who finds himself in government records through no action of his own.” Lardner, 2005 WL 758267 at *17.

[13] With regard to the carriers’ agents’ email addresses, however, the district court did not perform the same careful balancing in which it engaged for the agents’ names. As EFF explained, the public interest in disclosing the identities of the lobbyists’ names is to shed light on which companies and which individuals influence government decision making. We agree with that rationale, but we find no corresponding interest as to the carriers’ agents’ email addresses. Yet we can easily envision possible privacy invasions resulting from public disclosure of the email addresses. EFF provides no argument, and we can think of none, countering our conclusion that the email addresses may add to the risk of privacy invasion with little additional benefit to the public interest. See Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1025 (9th Cir. 2008) (“[I]nformation about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct is not the type of information to which FOIA permits access.”) (internal quotation marks omitted).

[14] Thus the carriers’ agents’ email addresses, when not needed to identify the party communicating with the government, are protected from release by Exemption 6. If, however, a particular email address is the only way to identify the carriers’ agent at issue from the disputed records, such information is not properly withheld under Exemption 6 because this minor privacy interest does not counterbalance the robust interest of citizens’ right to know “what their government is

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EFF v. ODNI

5381

up to.” Reporters Comm., 489 U.S. at 773 (internal quotation marks omitted).

[15] In short, we affirm the district court’s careful balancing of the public interest against the privacy interests of agents for the carriers, finding disclosure of the names of people seeking to influence the agencies’ pursuit of a retroactive carrier shield does not constitute “a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6) (2006). However, we reverse the district court as to the agents’ email addresses—so long as they are not needed to identify the agent—for which there is little public interest in disclosure and at least some privacy interest.

C. Information Excluded Under Exemption 5

The parties also dispute the propriety of the government withholding information, primarily in emails, pursuant to FOIA Exemption 5. Exemption 5 provides that FOIA “does not apply to matters that are . . . inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” Id. § 552(b)(5).

In the district court, the government attempted to withhold communications regarding the FISA Amendments between the Executive Branch, Congress, and the telecommunications firms under Exemption 5. As the district court explained, “the bulk of the records at issue consist[ed] of confidential email messages exchanged between ODNI or DOJ official[s] and congressional staff in which the parties to the emails discussed, analyzed and negotiated possible amendments to FISA.” The district court found the government had improperly withheld documents under Exemption 5 and ordered the disclosure of all disputed documents, including all “documents exchanged between ODNI and DOJ officials and congressional staff or those documents regarding communica-

CasCea: s0e9-31:70283-c5v-020949/079-J/2S0W10 DoPcuamgee:n2t292of 2F6iled 0ID4:/2702/916042P9ageD2k2tEonft2ry6: 32

5382

EFF v. ODNI

tions between representatives of the telecommunications companies and government officials.”

Unlike more thorough district court opinions in complicated FOIA cases specifying groups of documents to disclose according to the government’s Vaughn indices, see, e.g., People for the Am. Way Found., 503 F. Supp. 2d at 297-304 (analyzing each category of withheld documents in detail), the district court here ordered complete disclosure of all disputed documents without focusing on information in the Vaughn indices showing distribution only within the DOJ and ODNI or between the DOJ and the White House.

After the district court’s disclosure order, the Solicitor General chose not to appeal the Exemption 5 ruling as it pertained to the documents exchanged between the Executive Branch and Congress, as well as those documents in which the telecommunications firms were involved in the exchange. See Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). The government thus released these documents per the district court order, redacting information identifying telecommunications firms or their agents pursuant to the Exemption 3 and Exemption 6 issues discussed above. However, the government essentially takes issue with the thoroughness of the district court, noting its broad order includes categories of information from the Vaughn indices circulated only within executive agencies and the White House.

EFF focuses on arguments regarding whether the Executive Office of the President is an “agency,” and how we should address the privilege claims if we find the district court improperly concluded all documents were not inter-branch or intra-branch communications. Presumably EFF focuses on these arguments because, in passing, it concedes the district court erred in finding all documents at issue were not interbranch or intra-branch memorandums or letters. EFF notes, “[t]he government argues, and EFF agrees, that communica-

CasCea: s0e9-31:70283-c5v-020949/079-J/2S0W10 DoPcuamgee:n2t392of 2F6iled 0ID4:/2702/916042P9ageD2k3tEonft2ry6: 32

EFF v. ODNI

5383

tions within DOJ and ODNI or between Executive Branch agencies satisfy the threshold.”

This explanation highlights the district court’s error and demonstrates why remand on Exemption 5 is necessary. While a district court’s broad rejection of an Exemption 5 withholding is not necessarily problematic, its inquiry should be fact-specific, and, as demonstrated below, the absence of a careful review of the record in this case warrants remand.

[16] To qualify for Exemption 5’s protection from disclosure, “a document must . . . satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Klamath, 532 U.S. at 8.

The government primarily challenges the district court’s finding that none of the still-disputed documents are “interagency or intra-agency memorandums or letters.” See 5 U.S.C. § 552(b)(5). In support of its argument, the government partially undertakes the exercise that the district court should have engaged to reach its decision: the government looks to specific entries in the Vaughn indices and declarations, arguing they are inter-agency or intra-agency documents. Specifically, the government points to a number of documents which it convincingly argues the district court improperly found were not inter-agency or intra-agency memorandums or letters.4

4Relying on the declaration of Melanie Ann Pustay, Director of the Office of Information and Privacy (“OIP”), U.S. DOJ, the government cites the following documents:
1. OIP Vaughn Index categories 1, 2, 3, and 9, which are “confidential communications exchanged within the Executive Branch or between offices within the Department of Justice discussing options, forwarding draft language, and exchanging ideas regarding FISA amendments.”

CasCea: s0e9-31:70283-c5v-020949/079-J/2S0W10 DoPcuamgee:n2t492of 2F6iled 0ID4:/2702/916042P9ageD2k4tEonft2ry6: 32

5384

EFF v. ODNI

[17] Examining the Vaughn indices themselves shows the importance of engaging in the admittedly time-consuming analysis not performed here. Nearly all of the characteriza-

2. OIP Vaughn Index category 4, which “contains draft memoranda, notes, and talking points regarding amendments to the FISA.”
3. OIP Vaughn Index categories 3 and 9, which include deliberative emails exchanged within DOJ.
4. OIP Vaughn Index categories 1 and 2, which include deliberative emails exchanged between DOJ and other Executive Branch and White House officials.
Relying on the declaration of Charles Steele, Chief of Staff of DOJ’s National Security Division, the government cites the following document:
1. NSD Vaughn Index groups 2 and 3, which are “communications exchanged within the Executive Branch or offices within the Department of Justice.”
Relying on the declaration of Paul Colborn, Special Counsel in the OLC, the government cites the following documents:
1. OLC Vaughn Index numbers 4, 9, 112, 114, and 115, which “consist of internal Executive Branch e-mail deliberations regarding communications . . . concerning FISA.”
2. OLC Vaughn Index numbers 46 and 74, which are “intra Executive Branch e-mails discussing the substance of communications with counsel for the telecommunications companies sharing a common interest with the United States.”
3. 20 emails, for which the Vaughn Index numbers are not specified, “exchanged between OLC attorneys and other Department of Executive Branch staff.”
Relying on the declaration of John Hackett, Director of the Information Management Office for the ODNI, the government cites the following document:
1. ODNI Vaughn Index category 5, which is an “email chain” ”between ODNI and NSA officials.”
This list may not be entirely exhaustive, but it is a powerful example of documents that, according to the relevant Vaughn index, were exchanged within the Executive Branch or between agencies.

CasCea: s0e9-31:70283-c5v-020949/079-J/2S0W10 DoPcuamgee:n2t592of 2F6iled 0ID4:/2702/916042P9ageD2k5tEonft2ry6: 32

EFF v. ODNI

5385

tions in the government-offered declarations comport with the descriptions in the Vaughn indices of inter-branch or intrabranch communications. Thus, for these emails, the district court should have more closely examined the documents to determine whether they were in fact inter-agency or intraagency memorandums or letters. Including them in a broad disclosure order was error under any standard.

In addition, in at least two instances (OLC Vaughn Index numbers 46 & 74), the plain language of the declaration seems to imply an intra-Executive Branch email when, in fact, the Vaughn Index makes clear the communications at issue were between the Executive Branch and telecommunications company representatives. This highlights the need for a factspecific inquiry under Exemption 5.

Thus the district court’s blanket finding that all of the disputed communications were not inter-branch or intra-branch memorandums or letters eligible for privilege analysis under Exemption 5 is problematic, as is clear from the face of the government’s declarations and Vaughn indices.5 This may have occurred because the documents in question were included with so many other documents exchanged between the Executive Branch and either Congress or the telecommunications carriers, as to which the district court correctly concluded Exemption 5 did not apply.

[18] Accordingly, we remand to the district court on Exemption 5 to examine each contested category of documents to determine whether its actual sender(s) and recipient(s) render it an inter-agency or intra-agency document,

5This is not to say the district court must find all of these documents inter-agency or intra-agency memorandums or letters on remand. However, it should examine the Vaughn indices and declarations, and conduct an in camera examination of the actual documents if necessary, to determine exactly who in the government was transmitting and receiving the information and whether Exemption 5 thus applies (in which case the district court would have to consider if the information was privileged).

CasCea: s0e9-31:70283-c5v-020949/079-J/2S0W10 DoPcuamgee:n2t692of 2F6iled 0ID4:/2702/916042P9ageD2k6tEonft2ry6: 32

5386

EFF v. ODNI

keeping in mind the contours of the doctrine concerning whether the Executive Office of the President and certain other White House components are “agencies” for FOIA purposes. See, e.g., 5 U.S.C. § 552(f)(1) (2006) (“ ‘[A]gency’ as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President.)”); Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980); Judicial Watch Inc., 365 F.3d at 1113-22. For those documents the district court classifies as inter-agency or intra-agency, the district court will then have to consider whether any of the government’s asserted privileges allow withholding. See Klamath, 532 U.S. at 1865.

III. CONCLUSION

[19] We affirm the district court’s grant of summary judgment for EFF as to the release of names and email addresses under FOIA Exemption 6, though we reverse as to email addresses only for which other information identifying the agent at issue is available in the communication. This order may not necessarily result in disclosure of names for which the government also argues withholding pursuant to Exemption 3, because we vacate the district court’s denial of summary judgment for the government and grant of summary judgment for EFF as to FOIA Exemptions 3 and 5, and remand for consideration of these Exemptions consistent with this Opinion.

AFFIRMED in part, REVERSED in part, VACATED and REMANDED in part. Each party shall bear its own costs on appeal.

 
 Case: 3:08-cv-2997 As of: 09/18/2016 08:13 AM PDT 1 of 9
ADRMOP,CLOSED,E−Filing,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:08−cv−02997−JSW

Electronic Frontier Foundation v. Office of the Director of National Intelligence et al Assigned to: Hon. Jeffrey S. White Relate Case Case: 3:08−cv−01023−JSW Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 06/17/2008 Date Terminated: 09/29/2010 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Electronic Frontier Foundation

represented by Kurt Bradford Opsahl Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: kurt@eff.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

David L. Sobel Electronic Frontier Foundation 1875 Connecticut Avenue, N.W. Suite 650 Washington, DC 20009 415−436−9333x202 Fax: 415−436−9993 Email: sobel@eff.org ATTORNEY TO BE NOTICED

Marcia Clare Hofmann Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: marcia@eff.org ATTORNEY TO BE NOTICED

V.
Defendant
Office of the Director of National Intelligence

represented by Adam Kirschner 20 Massachusetts Ave Room 7126 Washington, DC 20530 202−249−0920 Email: adam.kirschner@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Berman U.S. Dept. of Justice, Civil Division 20 Massachusetts Ave., N.W. Room 7204 Washington, DC 20530 202−514−3330 Fax: 202−616−8470 Email: marcia.berman@usdoj.gov

Case: 3:08-cv-2997 As of: 09/18/2016 08:13 AM PDT 2 of 9

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant United States Department of Justice

represented by Adam Kirschner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/17/2008
06/17/2008 06/17/2008
06/17/2008 06/26/2008 07/07/2008 07/08/2008 07/08/2008
07/08/2008 07/08/2008 07/11/2008 07/24/2008 08/15/2008

# Docket Text
1 COMPLAINT; summons issued against Office of the Director of National Intelligence, Department of Justice (Filing fee $ 350, receipt number 34611020333). Filed by Electronic Frontier Foundation. (slh, COURT STAFF) (Filed on 6/17/2008) (slh, COURT STAFF). (Entered: 06/18/2008)
2 Certificate of Interested Entities by Electronic Frontier Foundation. (slh, COURT STAFF) (Filed on 6/17/2008) (Entered: 06/18/2008)
3 ADR SCHEDULING ORDER: Case Management Statement due by 9/17/2008. Case Management Conference set for 9/24/2008 01:30 PM. (Attachments: # 1 EMC Standing Order, # 2 Case Management Standing Order)(slh, COURT STAFF) (Filed on 6/17/2008) (Entered: 06/18/2008)
CASE DESIGNATED for Electronic Filing. (slh, COURT STAFF) (Filed on 6/17/2008) (Entered: 06/18/2008)
4 MOTION of David L. Sobel for leave to appear in Pro Hac Vice (Filing fee $ 210, receipt number 34611020631) filed by Electronic Frontier Foundation. (slh, COURT STAFF) (Filed on 6/26/2008) (Entered: 06/30/2008)
5 ORDER by Judge Edward M. Chen granting 4 Motion for Pro Hac Vice (bpf, COURT STAFF) (Filed on 7/7/2008) (Entered: 07/07/2008)
6 ORDER RELATING CASE.. Signed by Judge Jeffrey S. White on 7/8/08. (jjo, COURT STAFF) (Filed on 7/8/2008) (Entered: 07/08/2008)
7 INITIAL SCHEDULING CONFERENCE ORDER: Case Management Conference set for 9/26/2008 01:30 PM. Case Management Statement due by 9/19/2008.. Signed by Judge Jeffrey S. White on 7/8/08. (jjo, COURT STAFF) (Filed on 7/8/2008) (Entered: 07/08/2008)
Case Reassigned to Judge Hon. Jeffrey S. White. Judge Magistrate Judge Edward M. Chen no longer assigned to the case. (as, COURT STAFF) (Filed on 7/8/2008) (Entered: 07/08/2008)
8 CERTIFICATE OF SERVICE by Electronic Frontier Foundation re 7 Initial Scheduling Scheduling Order (Hofmann, Marcia) (Filed on 7/8/2008) (Entered: 07/08/2008)
9 AMENDED COMPLAINT for Injunctive Relief against Office of the Director of National Intelligence, Department of Justice. Filed byElectronic Frontier Foundation. (Hofmann, Marcia) (Filed on 7/11/2008) (Entered: 07/11/2008)
10 STIPULATION re 9 Amended Complaint to Extend Time to Respond by Office of the Director of National Intelligence, Department of Justice. (Kirschner, Adam) (Filed on 7/24/2008) (Entered: 07/24/2008)
11 ANSWER to Amended Complaint byOffice of the Director of National Intelligence, Department of Justice. (Kirschner, Adam) (Filed on 8/15/2008) (Entered: 08/15/2008)

Case: 3:08-cv-2997 As of: 09/18/2016 08:13 AM PDT 3 of 9

09/11/2008 09/11/2008 09/16/2008 09/16/2008 09/16/2008 09/17/2008 09/24/2008 09/24/2008 10/07/2008 10/08/2008
10/08/2008 11/13/2008 11/19/2008 11/24/2008 12/04/2008 12/05/2008 12/08/2008
12/08/2008 12/09/2008

12 ADR Clerk's Notice Re: Non−Compliance with Court Order (ls7, COURT STAFF) (Filed on 9/11/2008) (Entered: 09/11/2008)
13 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Hofmann, Marcia) (Filed on 9/11/2008) (Entered: 09/11/2008)
14 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Kirschner, Adam) (Filed on 9/16/2008) (Entered: 09/16/2008)
15 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Kirschner, Adam) (Filed on 9/16/2008) (Entered: 09/16/2008)
16 STIPULATION re 7 Initial Scheduling Scheduling Order to Vacate Case Management Conference by Office of the Director of National Intelligence, Department of Justice. (Kirschner, Adam) (Filed on 9/16/2008) (Entered: 09/16/2008)
17 STIPULATION AND ORDER TO VACATE CASE MANAGEMENT CONFERENCE. Signed by Hon. Judge Jeffrey S. White on 9/17/2008. (ls, COURT STAFF) (Filed on 9/17/2008) (Entered: 09/17/2008)
18 STIPULATION to Court Ordered Production Schedule by Electronic Frontier Foundation. (Opsahl, Kurt) (Filed on 9/24/2008) (Entered: 09/24/2008)
19 ORDER GRANTING 18 Stipulation to Court Ordered Production Schedule. Signed by Judge Jeffrey S. White on 9/24/08. (jjo, COURT STAFF) (Filed on 9/24/2008) (Entered: 09/24/2008)
20 STIPULATION re 19 Order by Office of the Director of National Intelligence, Department of Justice. (Attachments: # 1 Affidavit)(Kirschner, Adam) (Filed on 10/7/2008) (Entered: 10/07/2008)
21 ORDER GRANTING STIPULATION FOR COURT ORDER PRODUCTION SCHEDULE AND TO EXTEND TIME TO FILE MOTION FOR SUMMARY JUDGMENT. Signed by Judge Jeffrey S. White on 10/8/08. (jjo, COURT STAFF) (Filed on 10/8/2008) (Entered: 10/08/2008)
Set/Reset Deadlines as to Motion Hearing set for 2/27/2009 09:00 AM. (hdj, COURT STAFF) (Filed on 10/8/2008) (Entered: 10/09/2008)
22 NOTICE of Appearance by Marcia Berman (Berman, Marcia) (Filed on 11/13/2008) (Entered: 11/13/2008)
23 STIPULATION to Extend Time to File Motion for Summary Judgment by Office of the Director of National Intelligence, Department of Justice. (Berman, Marcia) (Filed on 11/19/2008) (Entered: 11/19/2008)
24 ORDER GRANTING (23 in 3:08−cv−02997−JSW) Stipulation to Extend Time to File Motion for Summary Judgment. Signed by Judge Jeffrey S. White on 11/24/08. (jjo, COURT STAFF) (Filed on 11/24/2008) (Entered: 11/24/2008)
25 STIPULATION to Exceed Page Limitation for Motions for Summary Judgment by Office of the Director of National Intelligence, Department of Justice. (Berman, Marcia) (Filed on 12/4/2008) (Entered: 12/04/2008)
26 ORDER DENYING IN PART Stipulation to Exceed Page Limitation. Signed by Judge Jeffrey S. White on December 5, 2008. (jswlc2, COURT STAFF) (Filed on 12/5/2008) (Entered: 12/05/2008)
27 Consent MOTION for Extension of Time to File Motion for Summary Judgment (Administrative Motion) filed by Office of the Director of National Intelligence, Department of Justice. (Attachments: # 1 Stipulation, # 2 Declaration)(Berman, Marcia) (Filed on 12/8/2008) (Entered: 12/08/2008)
Set/Reset Deadlines as to Motion Hearing set for 3/13/2009 09:00 AM. (hdj, COURT STAFF) (Filed on 12/8/2008) (Entered: 12/09/2008)
28 ORDER by Judge Jeffrey S. White GRANTING (27) Motion for Extension of Time to File Motion for Summary Judgment. (jswlc2, COURT STAFF) (Filed on 12/9/2008) (Entered: 12/09/2008)

Case: 3:08-cv-2997 As of: 09/18/2016 08:13 AM PDT 4 of 9

12/10/2008 12/10/2008 12/10/2008 12/10/2008 12/10/2008 12/10/2008 12/10/2008
12/10/2008 12/10/2008 12/10/2008 12/10/2008 12/10/2008 12/10/2008

29 MOTION for Summary Judgment (consolidated) filed by Office of the Director of National Intelligence, Department of Justice. Motion Hearing set for 3/13/2009 09:00 AM in Courtroom 2, 17th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Berman, Marcia) (Filed on 12/10/2008) (Entered: 12/10/2008)
30 Declaration of Kathleen Turner in Support of 29 MOTION for Summary Judgment (consolidated) MOTION for Summary Judgment (consolidated) filed byOffice of the Director of National Intelligence, Department of Justice. (Related document(s) 29 ) (Berman, Marcia) (Filed on 12/10/2008) (Entered: 12/10/2008)
31 Declaration of John F. Hackett in Support of 29 MOTION for Summary Judgment (consolidated) MOTION for Summary Judgment (consolidated) with Vaughn index attached filed byOffice of the Director of National Intelligence, Department of Justice. (Attachments: # 1 Exhibit)(Related document(s) 29 ) (Berman, Marcia) (Filed on 12/10/2008) (Entered: 12/10/2008)
32 Declaration of Paul P. Colborn in Support of 29 MOTION for Summary Judgment (consolidated) MOTION for Summary Judgment (consolidated) filed byOffice of the Director of National Intelligence, Department of Justice. (Attachments: # 1 Exhibit)(Related document(s) 29 ) (Berman, Marcia) (Filed on 12/10/2008) (Entered: 12/10/2008)
33 Declaration of Melanie Ann Pustay in Support of 29 MOTION for Summary Judgment (consolidated) MOTION for Summary Judgment (consolidated) filed byOffice of the Director of National Intelligence, Department of Justice. (Attachments: # 1 Exhibit Part I, # 2 Exhibit Part II)(Related document(s) 29 ) (Berman, Marcia) (Filed on 12/10/2008) (Entered: 12/10/2008)
34 Declaration of Kenneth L. Wainstein in Support of 29 MOTION for Summary Judgment (consolidated) MOTION for Summary Judgment (consolidated) filed byOffice of the Director of National Intelligence, Department of Justice. (Related document(s) 29 ) (Berman, Marcia) (Filed on 12/10/2008) (Entered: 12/10/2008)
35 Declaration of Charles M. Steele in Support of 29 MOTION for Summary Judgment (consolidated) MOTION for Summary Judgment (consolidated) filed byOffice of the Director of National Intelligence, Department of Justice. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E)(Related document(s) 29 ) (Berman, Marcia) (Filed on 12/10/2008) (Entered: 12/10/2008)
36 Declaration of Matthew G. Olsen in Support of 29 MOTION for Summary Judgment (consolidated) MOTION for Summary Judgment (consolidated) filed byOffice of the Director of National Intelligence, Department of Justice. (Related document(s) 29 ) (Berman, Marcia) (Filed on 12/10/2008) (Entered: 12/10/2008)
37 Declaration of James M. Kovakas in Support of 29 MOTION for Summary Judgment (consolidated) MOTION for Summary Judgment (consolidated) filed byOffice of the Director of National Intelligence, Department of Justice. (Related document(s) 29 ) (Berman, Marcia) (Filed on 12/10/2008) (Entered: 12/10/2008)
38 Declaration of Joseph J. Brand in Support of 29 MOTION for Summary Judgment (consolidated) MOTION for Summary Judgment (consolidated) filed byOffice of the Director of National Intelligence, Department of Justice. (Related document(s) 29 ) (Berman, Marcia) (Filed on 12/10/2008) (Entered: 12/10/2008)
39 Declaration of Daniel Meyer in Support of 29 MOTION for Summary Judgment (consolidated) MOTION for Summary Judgment (consolidated) filed byOffice of the Director of National Intelligence, Department of Justice. (Attachments: # 1 Exhibit)(Related document(s) 29 ) (Berman, Marcia) (Filed on 12/10/2008) (Entered: 12/10/2008)
40 Declaration of Carl J. Nichols in Support of 29 MOTION for Summary Judgment (consolidated) MOTION for Summary Judgment (consolidated) filed byOffice of the Director of National Intelligence, Department of Justice. (Related document(s) 29 ) (Berman, Marcia) (Filed on 12/10/2008) (Entered: 12/10/2008)
41 Declaration of David M. Hardy in Support of 29 MOTION for Summary Judgment (consolidated) MOTION for Summary Judgment (consolidated) filed byOffice of the

Case: 3:08-cv-2997 As of: 09/18/2016 08:13 AM PDT 5 of 9

12/10/2008 01/13/2009
01/13/2009
01/13/2009 02/03/2009
02/03/2009 02/03/2009 02/03/2009
02/09/2009 02/09/2009 02/09/2009 02/10/2009 02/10/2009

Director of National Intelligence, Department of Justice. (Attachments: # 1 Exhibit)(Related document(s) 29 ) (Berman, Marcia) (Filed on 12/10/2008) (Entered: 12/10/2008)
42 Declaration of J. Michael McConnell in Support of 29 MOTION for Summary Judgment (consolidated) MOTION for Summary Judgment (consolidated) filed byOffice of the Director of National Intelligence, Department of Justice. (Related document(s) 29 ) (Berman, Marcia) (Filed on 12/10/2008) (Entered: 12/10/2008)
43 MEMORANDUM in Opposition to Defendants' Consolidated Motion for Summary Judgment and Notice of Cross Motion and Cross Motion for Summary Judgment; Memorandum of Points and Authorities in Support of Cross Motion for Summary Judgment filed byElectronic Frontier Foundation. (Hofmann, Marcia) (Filed on 1/13/2009) (Entered: 01/13/2009)
44 Declaration of Marcia Hofmann in Support of 43 Memorandum in Opposition, to Defendant's Motion for Summary Judgment and In Support of Cross Motion for Summary Judgment filed byElectronic Frontier Foundation. (Attachments: # 1 Exhibit 1−5, # 2 Exhibit 6−10, # 3 Exhibit 11−15, # 4 Exhibit 16−18, # 5 Exhibit 19−22)(Related document(s) 43 ) (Hofmann, Marcia) (Filed on 1/13/2009) (Entered: 01/13/2009)
45 Proposed Order re 43 Memorandum in Opposition, by Electronic Frontier Foundation. (Hofmann, Marcia) (Filed on 1/13/2009) (Entered: 01/13/2009)
46 Memorandum in Opposition re 29 MOTION for Summary Judgment (consolidated) MOTION for Summary Judgment (consolidated) Defs' Opposition to Plaintiff's Cross Motion for SJ and Reply in Support of Defs' Consol. Mtn for SJ filed byOffice of the Director of National Intelligence, Department of Justice. (Berman, Marcia) (Filed on 2/3/2009) (Entered: 02/03/2009)
47 Declaration of Paul P. Colborn in Support of 46 Memorandum in Opposition, to Plaintiff's Cross Mtn for SJ and Reply in Support of Defs' Consol. Mtn for SJ filed byOffice of the Director of National Intelligence, Department of Justice. (Related document(s) 46 ) (Berman, Marcia) (Filed on 2/3/2009) (Entered: 02/03/2009)
48 Declaration of John F. Hackett in Support of 46 Memorandum in Opposition, to Plaintiff's Cross Mtn for SJ and Reply in Support of Defs' Consol. Mtn for SJ filed byOffice of the Director of National Intelligence, Department of Justice. (Related document(s) 46 ) (Berman, Marcia) (Filed on 2/3/2009) (Entered: 02/03/2009)
49 Reply Memorandum re 29 MOTION for Summary Judgment (consolidated) MOTION for Summary Judgment (consolidated) Defs' Opposition to Plaintiff's Cross Mtn for SJ and Reply in Support of Defs' Consol. Mtn for SJ filed byOffice of the Director of National Intelligence, Department of Justice. (Berman, Marcia) (Filed on 2/3/2009) (Entered: 02/03/2009)
50 MOTION to Stay Proceedings filed by Electronic Frontier Foundation. (Hofmann, Marcia) (Filed on 2/9/2009) (Entered: 02/09/2009)
51 Declaration of Marcia Hofmann in Support of 50 MOTION to Stay Proceedings filed byElectronic Frontier Foundation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 50 ) (Hofmann, Marcia) (Filed on 2/9/2009) (Entered: 02/09/2009)
52 Proposed Order Granting Motion for Stay of Proceedings by Electronic Frontier Foundation. (Hofmann, Marcia) (Filed on 2/9/2009) (Entered: 02/09/2009)
53 MOTION to Stay Proceedings filed by Electronic Frontier Foundation. Motion Hearing set for 4/3/2009 09:00 AM in Courtroom 2, 17th Floor, San Francisco. (Hofmann, Marcia) (Filed on 2/10/2009) (Entered: 02/10/2009)
54 Declaration of Marcia Hofmann 53 >in Support of Motion to Stay Proceedings filed byElectronic Frontier Foundation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Hofmann, Marcia) (Filed on 2/10/2009) Modified on 2/11/2009 (hdj, COURT STAFF). (Entered: 02/10/2009)

Case: 3:08-cv-2997 As of: 09/18/2016 08:13 AM PDT 6 of 9

02/10/2009 02/11/2009 02/24/2009 03/03/2009 03/03/2009
03/23/2009
04/24/2009 05/12/2009 05/12/2009 05/12/2009
05/12/2009 05/12/2009
06/02/2009 06/02/2009
06/08/2009 08/10/2009

55 Proposed Order by Electronic Frontier Foundation. (Hofmann, Marcia) (Filed on 2/10/2009) (Entered: 02/10/2009)
56 ORDER RE MOTION TO STAY. Signed by Judge Jeffrey S. White on 2/11/09. (jjo, COURT STAFF) (Filed on 2/11/2009) (Entered: 02/11/2009)
57 Memorandum in Opposition re 53 MOTION to Stay Proceedings filed byOffice of the Director of National Intelligence, Department of Justice. (Attachments: # 1 Proposed Order)(Berman, Marcia) (Filed on 2/24/2009) (Entered: 02/24/2009)
58 RESPONSE in Support 53 of Motion for a Stay of Proceedings filed byElectronic Frontier Foundation. (Hofmann, Marcia) (Filed on 3/3/2009) Modified on 3/4/2009 (hdj, COURT STAFF). (Entered: 03/03/2009)
59 Declaration of Marcia Hofmann in Support of 58 Response in Support of Motion for a Stay of Proceedings filed byElectronic Frontier Foundation. (Attachments: # 1 Exhibit 1−4)(Related document(s) 58 ) (Hofmann, Marcia) (Filed on 3/3/2009) (Entered: 03/03/2009)
60 ORDER by Judge Jeffrey S. White dated March 23, 2009 GRANTING (70) Motion to Stay in case 3:08−cv−01023−JSW and GRANTING (53) Motion to Stay in case 3:08−cv−02997−JSW. (jswlc2, COURT STAFF) (Filed on 3/23/2009) (Entered: 03/23/2009)
61 STATUS REPORT Joint Status Report by Office of the Director of National Intelligence, Department of Justice. (Berman, Marcia) (Filed on 4/24/2009) (Entered: 04/24/2009)
62 NOTICE by Office of the Director of National Intelligence, Department of Justice Notice of Filing (Berman, Marcia) (Filed on 5/12/2009) (Entered: 05/12/2009)
63 Declaration of John F. Hackett in Support of 62 Notice (Other) filed byOffice of the Director of National Intelligence, Department of Justice. (Related document(s) 62 ) (Berman, Marcia) (Filed on 5/12/2009) (Entered: 05/12/2009)
64 Declaration of Paul P. Colborn in Support of 62 Notice (Other) filed byOffice of the Director of National Intelligence, Department of Justice. (Attachments: # 1 revsied Vaughn index)(Related document(s) 62 ) (Berman, Marcia) (Filed on 5/12/2009) (Entered: 05/12/2009)
65 Declaration of Melanie Ann Pustay in Support of 62 Notice (Other) filed byOffice of the Director of National Intelligence, Department of Justice. (Related document(s) 62 ) (Berman, Marcia) (Filed on 5/12/2009) (Entered: 05/12/2009)
66 Declaration of Susan Kim in Support of 62 Notice (Other) filed byOffice of the Director of National Intelligence, Department of Justice. (Attachments: # 1 revised Vaughn index)(Related document(s) 62 ) (Berman, Marcia) (Filed on 5/12/2009) (Entered: 05/12/2009)
67 Reply to Opposition to Cross Motion for Summary Judgment filed byElectronic Frontier Foundation. (Hofmann, Marcia) (Filed on 6/2/2009) (Entered: 06/02/2009)
68 Declaration of Marcia Hofmann in Support of 67 Reply to Opposition to Cross Motion for Summary Judgment filed byElectronic Frontier Foundation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D part 1, # 5 Exhibit D part 2, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K)(Related document(s) 67 ) (Hofmann, Marcia) (Filed on 6/2/2009) (Entered: 06/02/2009)
69 CLERKS NOTICE Setting Hearing on Cross−Motions for Summary Judgment on 8/14/2009 at 09:00 AM in Courtroom 11, 19th Floor, San Francisco. (jjo, COURT STAFF) (Filed on 6/8/2009) (Entered: 06/08/2009)
70 ORDER REFERRING Consolidated Cross−Motions for Summary Judgment to a randomly assigned Magistrate Judge for Report and Recommendation. Signed by Judge Jeffrey S. White on 8/10/09. (jjo, COURT STAFF) (Filed on 8/10/2009) (Entered: 08/10/2009)

Case: 3:08-cv-2997 As of: 09/18/2016 08:13 AM PDT 7 of 9

08/17/2009 09/24/2009 09/30/2009
10/02/2009
10/06/2009 10/06/2009 10/06/2009 10/07/2009
10/07/2009 10/08/2009 10/08/2009 10/09/2009

71 ORDER WTIHDRAWING (70 in 3:08−cv−02997−JSW) Order Referring Case to Magistrate Judge for Report and Recommendation and SUGGESTION for Consent. Signed by Judge Jeffrey S. White on August 17, 2009. (jswlc2, COURT STAFF) (Filed on 8/17/2009) (Entered: 08/17/2009)
72 ORDER by Judge Jeffrey S. White in case 3:08−cv−01023−JSW; DENYING (29) Defendants' Motion for Summary Judgment in case 3:08−cv−02997−JSW and GRANTING Plaintiff's Cross−Motion for Summary Judgment. (jswlc2, COURT STAFF) (Filed on 9/24/2009) (Entered: 09/24/2009)
73 MOTION to Stay re 72 Order on Motion for Summary Judgment for 60 days pending appeal determination by Solicitor General filed by Department of Justice, Office of the Director of National Intelligence. Motion Hearing set for 10/7/2009 09:00 AM in Courtroom 2, 17th Floor, San Francisco. (Attachments: # 1 Proposed Order, # 2 Stipulation to Expedite Motion for 60−Day Stay Pending Appeal Determination)(Berman, Marcia) (Filed on 9/30/2009) (Entered: 09/30/2009)
74 ORDER GRANTING Modified Stipulation re (91 in 3:08−cv−01023−JSW) MOTION to Stay re (90) Order on Motion for Summary Judgment for 60 Days Pending Appeal Determination by Solicitor General; MOTION to Stay re (90) Order on Motion for Summary Judgment, (73 in 3:08−cv−02997−JSW) MOTION to Stay re (72) Order on Motion for Summary Judgment for 60 days pending appeal determination by Solicitor General MOTION to Stay re (72) Order on Motion for Summary Judgment. Signed by Judge Jeffrey S. White on October 2, 2009. (jswlc2, COURT STAFF) (Filed on 10/2/2009) (Entered: 10/02/2009)
75 MOTION for Leave to File Motion for Reconsideration and Request that Reconsideration be Granted Without Further Briefing filed by Department of Justice, Office of the Director of National Intelligence. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Proposed Order)(Berman, Marcia) (Filed on 10/6/2009) (Entered: 10/06/2009)
76 Declaration of Susan L. Kim in Support of 75 MOTION for Leave to File Motion for Reconsideration and Request that Reconsideration be Granted Without Further Briefing filed byDepartment of Justice, Office of the Director of National Intelligence. (Attachments: # 1 NSD Second Revised Vaughn Index)(Related document(s) 75 ) (Berman, Marcia) (Filed on 10/6/2009) (Entered: 10/06/2009)
77 Memorandum in Opposition to Motion for a 60 Day Stay Pending Appeal Determination by Solicitor General filed byElectronic Frontier Foundation. (Hofmann, Marcia) (Filed on 10/6/2009) (Entered: 10/06/2009)
78 Reply Memorandum re 73 MOTION to Stay re 72 Order on Motion for Summary Judgment for 60 days pending appeal determination by Solicitor General MOTION to Stay re 72 Order on Motion for Summary Judgment for 60 days pending appeal determination by Solicitor General filed byDepartment of Justice, Office of the Director of National Intelligence. (Berman, Marcia) (Filed on 10/7/2009) (Entered: 10/07/2009)
79 ORDER by Judge Jeffrey S. White DENYING (91) Motion to Stay; DENYING (93) Motion for Leave to File Motion for Reconsideration in case 3:08−cv−01023−JSW; DENYING (73) Motion to Stay; and DENYING (75) Motion for Leave to File Motion for Reconsideration in case 3:08−cv−02997−JSW. (jswlc2, COURT STAFF) (Filed on 10/7/2009) (Entered: 10/07/2009)
80 NOTICE by Department of Justice, Office of the Director of National Intelligence Notice of Appeal (Berman, Marcia) (Filed on 10/8/2009) (Entered: 10/08/2009)
81 NOTICE OF APPEAL as to (79 in 3:08−cv−02997−JSW, 79 in 3:08−cv−02997−JSW, 79 in 3:08−cv−02997−JSW, 79 in 3:08−cv−02997−JSW, 97 in 3:08−cv−01023−JSW, 97 in 3:08−cv−01023−JSW, 97 in 3:08−cv−01023−JSW, 97 in 3:08−cv−01023−JSW) Order on Motion to Stay, Order on Motion for Leave to File by Department of Justice. Filing fee waived. (hdj, COURT STAFF) (Filed on 10/8/2009) (Entered: 10/09/2009)
82 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals by Department of Justice, Office of the Director of National Intelligence re 81 Notice of Appeal, (hdj, COURT STAFF) (Filed on 10/9/2009) (Entered: 10/09/2009)

Case: 3:08-cv-2997 As of: 09/18/2016 08:13 AM PDT 8 of 9

10/09/2009
10/09/2009 10/09/2009 10/13/2009 10/13/2009 10/13/2009 10/19/2009 11/04/2009 02/19/2010 04/20/2010 05/04/2010 05/06/2010 05/14/2010 06/23/2010 06/24/2010
07/14/2010

83 NOTICE by Department of Justice, Office of the Director of National Intelligence Emergency Filing for Stay, Per Direction of Ninth Circuit (Attachments: # 1 Ninth Circuit Stay Order, # 2 Emergency Stay Motion filed in Ninth Cir., # 3 Stay Reply filed in Ninth Cir., # 4 EFF Opposition to Stay Mtn filed in Ninth Cir., # 5 Notice of Appeal)(Berman, Marcia) (Filed on 10/9/2009) (Entered: 10/09/2009)
84 Minute Entry: Telephone Conference (Date Filed: 10/9/2009). (Court Reporter Christine Triska.) (jjo, COURT STAFF) (Date Filed: 10/9/2009) (Entered: 10/09/2009)
85 Memorandum in Opposition to Emergency Filing for Temporary Stay Pending Decision by Solicitor General Regarding Appeal and Immediate Administrative Stay filed byElectronic Frontier Foundation. (Hofmann, Marcia) (Filed on 10/9/2009) (Entered: 10/09/2009)
86 NOTICE by Department of Justice, Office of the Director of National Intelligence Reply in Support of Emergency Filing for Stay Pending Appeal Determination (Berman, Marcia) (Filed on 10/13/2009) (Entered: 10/13/2009)
87 ORDER of USCA as to 81 Notice of Appeal, filed by Department of Justice (hdj, COURT STAFF) (Filed on 10/13/2009) (Entered: 10/13/2009)
88 ORDER re Notice (83 in 3:08−cv−02997−JSW) and Notice (101 in 3:08−cv−01023−JSW) DENYING Emergency Motion for Temporary Stay. Signed by Judge Jeffrey S. White on October 13, 2009. (jswlc2, COURT STAFF) (Filed on 10/13/2009) (Entered: 10/13/2009)
89 ORDER of USCA as to (81 in 3:08−cv−02997−JSW, 99 in 3:08−cv−01023−JSW) Notice of Appeal, filed by Department of Justice (hdj, COURT STAFF) (Filed on 10/19/2009) (Entered: 10/19/2009)
90 ORDER of USCA as to (81 in 3:08−cv−02997−JSW, 99 in 3:08−cv−01023−JSW) Notice of Appeal, filed by Department of Justice (hdj, COURT STAFF) (Filed on 11/4/2009) (Entered: 11/04/2009)
91 OPINION of USCA as to (81 in 3:08−cv−02997−JSW, 99 in 3:08−cv−01023−JSW) Notice of Appeal, filed by Department of Justice (hdj, COURT STAFF) (Filed on 2/19/2010) Modified on 2/19/2010 (hdj, COURT STAFF). (Entered: 02/19/2010)
92 USCA ORDER AMENDING and AMENDED OPINION as to−AFFIRMED in part, REVERSED in part, and REMANDED in part (81 in 3:08−cv−02997−JSW, 99 in 3:08−cv−01023−JSW) Notice of Appeal, filed by Department of Justice. (hdj, COURT STAFF) (Filed on 4/20/2010) (Entered: 04/20/2010)
93 CLERKS NOTICE SETTING A CASE MANAGEMENT CONFERENCE: Case Management Statement due by 6/25/2010. Case Management Conference set for 7/2/2010 01:30 PM in Courtroom 11, 19th Floor, San Francisco. (jjoS, COURT STAFF) (Filed on 5/4/2010) (Entered: 05/04/2010)
94 MANDATE of USCA as to (81 in 3:08−cv−02997−JSW, 99 in 3:08−cv−01023−JSW) Notice of Appeal, filed by Department of Justice (hdj, COURT STAFF) (Filed on 5/6/2010) (Entered: 05/14/2010)
95 CLERKS Letter Spreading Mandate to Counsel (hdj, COURT STAFF) (Filed on 5/14/2010) (Entered: 05/14/2010)
96 STIPULATION to Continue Case Management Conference by Department of Justice, Office of the Director of National Intelligence. (Berman, Marcia) (Filed on 6/23/2010) (Entered: 06/23/2010)
97 ORDER GRANTING (96 in 3:08−cv−02997−JSW) Stipulation to Continue Case Management Conference. Case Management Statement due by 7/16/2010. Case Management Conference set for 7/23/2010 01:30 PM in Courtroom 11, 19th Floor, San Francisco.. Signed by Judge JEFFREY S. WHITE on 6/23/10. (jjo, COURT STAFF) (Filed on 6/24/2010) (Entered: 06/24/2010)
98 STIPULATION (Second) to Continue Case Management Conference by Department of Justice, Office of the Director of National Intelligence. (Berman, Marcia) (Filed on 7/14/2010) (Entered: 07/14/2010)

Case: 3:08-cv-2997 As of: 09/18/2016 08:13 AM PDT 9 of 9

07/15/2010
09/03/2010 09/03/2010 09/29/2010 09/29/2010

99 ORDER GRANTING (98 in 3:08−cv−02997−JSW) Stipulation TO CONTINUE CMC (117 in 3:08−cv−01023−JSW) Stipulation TO CONTINUE CMC. Case Management Statement due by 9/3/2010. Case Management Conference set for 9/10/2010 01:30 PM in Courtroom 11, 19th Floor, San Francisco.. Signed by Judge Jeffrey S. White on 7/15/10. (jjoS, COURT STAFF) (Filed on 7/15/2010) (Entered: 07/15/2010)
100 STIPULATION re 99 Order, Set Deadlines/Hearings,, Stipulation to Vacate Case Management Conference by Department of Justice, Office of the Director of National Intelligence. (Berman, Marcia) (Filed on 9/3/2010) (Entered: 09/03/2010)
101 ORDER GRANTING 100 Stipulation to Vacate Case Management Conference. Signed by Judge Jeffrey S. White on 9/3/10. (jjoS, COURT STAFF) (Filed on 9/3/2010) (Entered: 09/03/2010)
102 STIPULATION of Dismissal by Electronic Frontier Foundation. (Hofmann, Marcia) (Filed on 9/29/2010) (Entered: 09/29/2010)
103 ORDER GRANTING (121 in 3:08−cv−01023−JSW) AND (102 in 3:08−cv−02997−JSW) Stipulation of Dismissal. Signed by Judge JEFFREY S. WHITE on 9/29/10. (jjoS, COURT STAFF) (Filed on 9/29/2010) (Entered: 09/29/2010)