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American Civil Liberties Union Foundation v. U.S. Department of Justice

United States District Court, N.D. California

November 18, 2019

U.S. DEPARTMENT OF JUSTICE, et al., Defendants.




         Plaintiffs American Civil Liberties Union Foundation and American Civil Liberties Union Foundation of Northern California seek information from a number of federal agencies regarding the government's monitoring of social media in various contexts. Plaintiffs sought that information through a Freedom of Information Act request, and the FBI responded with a partial Glomar response with respect to Plaintiffs' request for information related to immigration and transportation contexts. Plaintiffs filed this suit challenging the Glomar response. The FBI filed a Motion for Partial Summary Judgment as to the FBI's Glomar response.


         A. Factual Background

         Plaintiffs American Civil Liberties Union Foundation and American Civil Liberties Union Foundation of Northern California (collectively “Plaintiffs”) bring this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. See Complaint at 2, Docket No. 1. Defendants are the Department of Justice, the Federal Bureau of Investigation, the Department of Homeland Security, U.S. Customs and Border Protection, U.S. Citizenship and Immigration Services, U.S.

         Immigration and Customs Enforcement and the Department of State (collectively “Defendants”). Id. at 1. Plaintiffs seek information about “Defendant federal agencies' surveillance of social media users and speech.” Id. at 2. Plaintiffs contend that Defendants “are taking steps to monitor social media users and their speech, activities, and associations” and that the agencies are pursuing the ability to engage in “programmatic and sustained tracking of U.S. citizens and noncitizens alike.” Id. Plaintiffs further allege that Defendants have specifically “ramped up the monitoring and retention of immigrants' and visa applicants' social media information, including for the purpose of conducting what the Trump administration has called ‘extreme vetting' or ‘visa lifecycle vetting.'” Id.

         In particular, the Complaint alleges that the FBI has “sought information from contractors on a planned automated tool that would enable the FBI to search and monitor information on social media platforms.” Id. at 5. Plaintiffs' contend the FBI has also revealed “that it would acquire social media monitoring software that would give it full access to Twitter data, searchable using customizable filters ‘tailored to operational needs.'” Id. “News reports further indicate that the FBI has established a social media surveillance task force, ” although the “purpose and scope of the task force remain unclear.” Id. at 5-6. The Complaint argues that such surveillance “raises serious free speech and privacy concerns, ” “risks chilling expressive activity, ” and could “lead to the disproportionate targeting of racial and religious minority communities.” Id. It also contends that “[b]asic due process and fairness are also undermined when significant decisions affecting peoples' lives . . . are influenced by secret algorithms that analyze information obtained from social media without necessary context or rules to prevent abuse.” Id. at 6.

         B. Procedural Background

         On May 24, 2018, Plaintiffs submitted a FOIA request to Defendants “seeking the release of records pertaining to the federal government's social media surveillance.” Id. at 2. Plaintiffs sought five categories of records:

(1) social media surveillance-related policies and guidance;
(2) records concerning the purchase or acquisition of social media surveillance technologies;
(3) communications to or from private businesses concerning social media surveillance products;
(4) communications to or from social media platforms concerning surveillance of social media content; and
(5) records concerning the use or incorporation of social media content within systems or programs that make use of algorithms, machine-learning processes, or predictive analytics applications.

Id. at 7.

         The FBI acknowledged receipt of that FOIA request letter on June 8, 2018. Id. at 8. In its response, the FBI invoked Exemption 7(E) of FOIA, codified at 5 U.S.C. §552 (b)(7)(E). The exemption states:

This section does not apply to matters that are . . . records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.

         In particular, the FBI stated: “we neither confirm nor deny the existence of records responsive to your request pursuant to FOIA exemption (b)(7)(E), ” thereby issuing a so-called “Glomar” response to Plaintiff's entire request. Id. In July 2018, Plaintiffs administratively appealed the FBI's response. Id. The FBI denied Plaintiffs' request for expedited processing of the appeal, and on January 17, 2019, Plaintiffs filed suit in federal court (after receiving no further response to the administrative appeal in the intervening period). Id.

         In May 2019, the FBI modified its initial Glomar response, limiting it to only part of Plaintiffs' request. See Joint Case Management Statement from June 5, 2019 (“JCMS”) at 2, Docket No. 21. In particular, the FBI limited its Glomar response to the following portion of Plaintiffs' request:

2. All records created since January 1, 2015[1] concerning the purchase of, acquisition of, subscription to, payment for, or agreement to use any product or service that searches, analyzes, filters, monitors, or collects content available on any social media network, including but not limited to:
a. Records concerning any product or service capable of using social media content in assessing applications for immigration benefits or admission to the United States;
b. Records concerning any product or service capable of using social media content for immigration enforcement purposes; and
c. Records concerning any product or service capable of using social media content for border or transportation screening purposes.

         Defendant's Motion for Partial Summary Judgment (“Mot.”) at 2, Docket No. 31. With respect to these parts of Plaintiffs' request, the FBI “refused to confirm or deny” the existence of responsive records, invoking the protections of FOIA Exemption (7)(E). Id. at 3. Plaintiffs challenge the FBI's refusal and argue that the agency has not “provided a legitimate basis for this assertion under 5 U.S.C. §552 (b)(7)(E).”[2] JCMS at 3. On September 6, 2019, Defendant DOJ filed a Motion for Partial Summary Judgment with Respect to the FBI. See Docket No. 31.


         A. Legal Standard

         Federal Rule of Civil Procedure 56 provides that a “court shall grant summary judgment [to a moving party] if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue of fact is genuine only if there is sufficient evidence for a reasonable jury to find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). “The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party].” Id. at 252. At the summary judgment stage, evidence must be viewed in the light most favorable to the nonmoving party and all justifiable inferences are to be drawn in the nonmovant's favor. See Id. at 255.[3]

         Where a defendant moves for summary judgment based on an affirmative defense (i.e., an issue on which it bears the burden of proof), the defendant must establish “all of the essential elements of the . . . defense to warrant judgment in [its] favor.” Martin v. Alamo Cmty. College Dist., 353 F.3d 409, 412 (5th Cir. 2003) (internal quotation marks omitted; emphasis omitted); see also Clark v. Capital Credit & Collection Servs., 460 F.3d 1162, 1177 (9th Cir. 2006) (noting that a defendant bears the burden of proof at summary judgment with respect to an affirmative defense).

         FOIA is animated by “the fundamental principle of public access to Government documents.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 151 (1989). It is “broadly conceived, ” and “disclosure, not secrecy” is its dominant objective. Id. at 151-52. At the same time, Congress has exempted some information “under clearly delineated statutory language.” Id. at 152 (citing Department of Air Force v. Rose, 425 U.S. 352, 360-61 (1976)). These exemptions are “limited” and “must be narrowly construed.” Rose, 425 U.S. at 361. “Furthermore, ‘the burden is on the agency to sustain its action.'” John Doe Agency, 493 U.S. at 152 (citing 5 U.S.C. § 552(a)(4)(B)). In other words, “[g]iven FOIA's overarching purpose, ‘the strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents.'” Civil Beat Law Ctr. for the Pub. Interest, Inc. v. Centers for Disease Control & Prevention, 929 F.3d 1079, 1084 (9th Cir. 2019) (quoting U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991)).

         The Ninth Circuit has observed that “[g]enerally, FOIA cases should be handled on motions for summary judgment.” Lane v. Dep't of Interior, 523 F.3d 1128, 1134 (9th Cir. 2008) (quoting Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir.1993)); see also Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016) (“Most FOIA cases are resolved by the district court on summary judgment . . . .”). Given the limited nature of discovery typically permitted in FOIA cases, district courts routinely “enter summary judgment on the basis of agency affidavits.” Lane, 523 F.3d at 1134. Reliance on government affidavits is permissible “so long as the affiants are knowledgeable about the information sought and the affidavits are detailed enough to allow the court to make an independent assessment of the government's claim.” Id. at 1135-36 (quoting Lion Raisins, Inc. v. U.S. Dep't of Agric., 354 F.3d 1072, 1079 (9th Cir. 2004)). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Wolf v. C.I.A., 473 F.3d 370, 374-75 (D.C. Cir. 2007).

         With respect to FOIA Exemption (7)(E), “[t]he legislative history of this exemption makes clear that it is to be applied only to techniques and procedures generally unknown to the public.” Dunaway v. Webster, 519 F.Supp. 1059, 1082 (N.D. Cal. 1981); see also Hamdan v. U.S. Dep't of Justice, 797 F.3d 759, 777 (9th Cir. 2015) (“We have held that ‘Exemption 7(E) only exempts investigative techniques not generally known to the public.'” (quoting Rosenfeld v. U.S. Dep't of Justice,57 F.3d 803, 815 (9th Cir.1995))). Thus, Exemption (7)(E) covers “investigative techniques which are ‘so unique as to warrant the exemption.'” Id. at 1083 (citing Ferguson v. Kelley, 448 F.Supp. 919, 926 (N.D. Ill. 1977)). Where “an agency record discusses the application of a publicly known technique to particular facts, the document is not exempt under 7(E). But if a record describes a specific means rather than an application of deploying a ...

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