EPIC’s lawsuit for information about pen/trap applications to the FISC

After the Department of Justice (“DOJ”) failed to respond to the Freedom of Information Act (“FOIA”) request that the Electronic Privacy Information Center (“EPIC”) made on October 3,2013 for records pertaining to the government’s pen register and/or trap and trace (“pen/trap”) applications to the FISC, EPIC filed suit in the federal district court for the District of Columbia on December 9. EPIC v. DOJ, Civ. No. 1:13-cv-01961 (D.D.C. filed Dec. 9, 2013). The relief sought was an injunction requiring DOJ to provide timely and complete disclosure of (i) all semi-annual reports that the Attorney General had filed, as required by FISA, with the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence (“the Committees”) detailing the total numbers of pen/trap applications granted or denied by the FISC and pen/trap devices installed by the government, pursuant to 50 U.S.C. Sec. 1843, on an emergency basis and without a prior court order; (ii) all information provided to the Committees on all uses of pen/traps; and (iii) all data, including statistics, used in preparing records (i) and (ii) for the Committees.

a) The documents released on February 28th, 2014

On March 4, 2014, the Office of the Director of National Intelligence issued a press release stating that on February 28, the DOJ had partially responded to EPIC’s FOIA request by declassifying and releasing twenty-four one-page documents that the Attorney General had provided to the Committees from April 2001-June 2013 identifying the numbers of pen/trap applications that the government had filed with the FISC and the numbers that the FISC had authorized during specific time periods.

The reports indicate that from July 1, 2000-December 31,2012, the Government applied for and obtained FISC approval of 1703 pen/trap orders. In issuing these approvals, the FISC required that 64 of the Government’s proposed orders be modified, that two be “substantively modified,” and also issued a supplemental order during the January 1- January 30, 2009 time period. Although there is no indication that any government application was ever denied, the June and December 2010 and June 11, 2011 reports respectively indicate that the Government filed 53 applications for pen/trap orders from July 1–December 31, 2009, 78 applications from January 1- June 30, 2010, and 49 applications from July 1-December 31, 2010, but do not provide (and, in the June 11, 2011 report appear to redact) any information about the rate of approval by the FISC.

Starting in June 2006, the semi-annual reports also cover whether the Attorney General exercised his authority, under 50 U.S.C. Sec. 1843, to approve the installation and use of a pen/trap(s) on an emergency basis without a prior court order. The June and December 2006 and December 2007 reports indicate that during the covered time periods, the Attorney General did not issue any emergency approvals. By contrast, while the Attorney General appears to have approved the emergency installation and use of pen/traps during the time periods covered by the June 2007 report, both reports issued in 2008, 2009, 2010, 2011, and 2012, and the June 2013 report, the number of approvals is redacted from each of the reports.

b) The documents released on August 6th, 2014

On August 11, 2014, the DNI issued a press release stating that on August 6, 2014, the Department of Justice (“DOJ”) had released redacted versions of 38 more documents pertaining to the discontinued NSA program to collect bulk electronic communications metadata through pen register and trap and trace (“PRTT”) orders under FISA Section 402. The documents included FISC filings, orders and opinions, the report of an end-to-end review of the PRTT program by the Executive Branch, a letter from the DOJ to the FISC seeking clarification on the FISC’s authorization to collect metadata, and correspondence from the NSA Inspector General.

c) The documents released on August 21st, 2014

On August 22, 2014, the DNI issued a press release stating that on August 21, the DOJ had released two more documents, consisting of a heavily redacted Declaration by CIA Director George J. Tenet in 2004 in support of an application for a PRTT order to obtain electronic communications metadata and an almost entirely redacted FBI Report to the FISC in 2006 on the maintenance and use of PRTT data in FBI databases.

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