Case Detail

FOIA Project Annotation: Edward Snowden's revelations about electronic communications metadata collection by the NSA has led to the development of a new theory in FOIA litigationâ€"because the NSA vacuums up all electronic communications it must have data on all sorts of individuals, entities, and even government agencies. The Competitive Enterprise Institute's suit against the NSA to obtain phone, email and text messages for former EPA administrator Lisa Jackson and current EPA administrator Gina McCarthy is perhaps more fully developed than any previous attack, but, nevertheless, has failed to persuade Judge James Boasberg that the NSA waived its right to invoke a Glomar response because of public acknowledgement that the agency had access to such records. CEI had already litigated several cases against the EPA for access to Jackson and McCarthy's communications. But after the EPA told CEI that it did not have text messages for Jackson or McCarthy, CEI decided to request them from NSA. NSA invoked a Glomar response neither confirming nor denying the existence of records under Exemption 1 (national security) and Exemption 3 (other statutes). While CEI agreed that such records would be protected by Exemption 3, it argued that because the government had publicly acknowledged the existence of the NSA's telephony metadata collection program, it had admitted that the NSA had access to all telephone records. Finding CEI had vastly over-interpreted the government's acknowledgments, Boasberg found no support that the NSA had admitted to having telephone records on either Jackson or McCarthy. Dismissing CEI's requests for text messages, he pointed out that the government's public acknowledgments "consistently define 'telephony metadata' as details about phone calls, not texts or e-mails. Particularly, in the national-security context, the Court should not be in the business of guessing whether information about text messages falls under the heading of 'telephony metadata.'" Next, he explained that "while the Court agrees with Plaintiffs' assertion that [the government's documents] show that NSA engages in the 'bulk' collection of telephony metadata, the problem is that 'bulk' does not mean universal. These documents, in other words, in no way suggest that the NSA collects metadata records for all phone customers in the U.S." CEI claimed that statements made by the White House acknowledged the collection of all records. But Boasberg observed that "the white paper, similarly, did not admit to the universal collection of Americans' phone records." Likewise, a district court's finding that there was sufficient evidence to allow a challenge to the NSA surveillance program to go forward was not sufficient to provide acknowledgment that all Verizon wireless records were routinely collected. Boasberg indicated that "while relying on 'strong evidence' may be acceptable in a standing analysis, it does not suffice under the official-acknowledgment doctrine." CEI had also provided media accounts of the program. But Boasberg pointed out that "speculation by the pressâ€"no matter how widespreadâ€"and disclosures in the press from unnamed sources are not sufficient to waive an agency's right to withhold information under FOIA." Boasberg found that regardless of the government acknowledgment of the program, the NSA had shown that disclosure could risk further harm. He noted that "in essence, were the agency required to confirm or deny the existence of records for specific individuals, it would begin to sketch the contours of the program, including, for example, which providers turn over data and whether the data for those providers is complete."
Issues: Determination - Glomar response

Date Filed	Doc #	Docket Text
2014-06-09	1	COMPLAINT by All Plaintiffs against All Defendants ( Filing fee $ 400 receipt number 0090-3741331) filed by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Civil Cover Sheet, # 2 Summons for U.S. Attorney, # 3 Summons for defendant NSA, # 4 Summons for Attorney General)(Bader, Hans) (Entered: 06/09/2014)
2014-06-09		Case Assigned to Judge James E. Boasberg. (kb) (Entered: 06/10/2014)
2014-06-13	2	SUMMONS (3) Issued Electronically as to UNITED STATES NATIONAL SECURITY AGENCY, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Consent Form, # 2 Notice of Consent, # 3 Summons, # 4 Summons)(kb, ) (Entered: 06/13/2014)
2014-07-01	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/17/2014. ( Answer due for ALL FEDERAL DEFENDANTS by 7/17/2014.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES NATIONAL SECURITY AGENCY served on 6/16/2014, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 06/17/2014. (Bader, Hans) (Entered: 07/01/2014)
2014-07-17	4	ANSWER to Complaint by UNITED STATES NATIONAL SECURITY AGENCY.(Coleman Snead, Jacqueline) (Entered: 07/17/2014)
2014-07-18	5	ORDER directing parties to file a joint proposed briefing schedule on or before August 1, 2014. Signed by Judge James E. Boasberg on 7/18/2014. (lcjeb4) (Entered: 07/18/2014)
2014-07-18		Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 8/1/2014. (tg, ) (Entered: 07/18/2014)
2014-08-01	6	RESPONSE re 5 Order filed by UNITED STATES NATIONAL SECURITY AGENCY. (Coleman Snead, Jacqueline) (Entered: 08/01/2014)
2014-08-01		MINUTE ORDER GRANTING Parties' 6 Joint Proposed Briefing Schedule. Defendant shall file its Motion for Summary Judgment on or before September 5, 2014; Plaintiffs shall file their Opposition on or before October 6, 2014; Defendant shall file its Reply on or before October 20, 2014. Signed by Judge James E. Boasberg on 8/1/14. (lcjeb2) (Entered: 08/01/2014)
2014-08-01		Set/Reset Deadlines: Defendant shall file its Motion for Summary Judgment on or before 9/05/2014; Plaintiffs shall file their Opposition on or before 10/06/2014; Defendant shall file its Reply on or before 10/20/2014. (ad) (Entered: 08/01/2014)
2014-09-05	7	MOTION for Summary Judgment by UNITED STATES NATIONAL SECURITY AGENCY (Attachments: # 1 Memorandum in Support, # 2 SOMF, # 3 Sherman Declaration, # 4 Sherman Exhibit A, # 5 Sherman Exhibit B, # 6 Sherman Exhibit C, # 7 Sherman Exhibit D, # 8 Sherman Exhibit E, # 9 Sherman Exhibit F, # 10 Sherman Exhibit G, # 11 Sherman Exhibit H, # 12 Sherman Exhibit I)(Coleman Snead, Jacqueline) (Entered: 09/05/2014)
2014-09-26	8	Consent MOTION for Extension of Time to File Response/Reply as to 7 MOTION for Summary Judgment by COMPETITIVE ENTERPRISE INSTITUTE, ENERGY AND ENVIRONMENT LEGAL INSTITUTE, FREE MARKET ENVIRONMENTAL LAW CLINIC (Attachments: # 1 Text of Proposed Order)(Bader, Hans) (Entered: 09/26/2014)
2014-09-29		MINUTE ORDER GRANTING 8 Motion for Extension of Time. The Court ORDERS that Plaintiffs shall file their Opposition to the motion for summary judgment by October 14, 2014, and Defendant shall file its Reply by October 28, 2014. Signed by Judge James E. Boasberg on 9/29/14. (lcjeb2) (Entered: 09/29/2014)
2014-09-29		Set/Reset Deadlines: Plaintiffs shall file their Opposition to the motion for summary judgment by 10/14/2014, and Defendant shall file its Reply by 10/28/2014. (ad) (Entered: 09/29/2014)
2014-10-14	9	Memorandum in opposition to re 7 MOTION for Summary Judgment filed by COMPETITIVE ENTERPRISE INSTITUTE, ENERGY AND ENVIRONMENT LEGAL INSTITUTE, FREE MARKET ENVIRONMENTAL LAW CLINIC. (Attachments: # 1 Statement of Facts Genuine Issues of Material Fact in Dispute, # 2 Declaration of Hans Bader, # 3 Exhibit 1 to Bader Declaration, # 4 Exhibit 2 to Bader Declaration, # 5 Text of Proposed Order)(Bader, Hans) (Entered: 10/14/2014)
2014-10-28	10	REPLY to opposition to motion re 7 MOTION for Summary Judgment filed by UNITED STATES NATIONAL SECURITY AGENCY. (Attachments: # 1 Declaration Jacqueline Coleman Snead)(Coleman Snead, Jacqueline) (Entered: 10/28/2014)
2014-10-29	11	MOTION for Leave to File Surreply In Opposition to Motion for Summary Judgment by COMPETITIVE ENTERPRISE INSTITUTE, ENERGY AND ENVIRONMENT LEGAL INSTITUTE, FREE MARKET ENVIRONMENTAL LAW CLINIC (Attachments: # 1 Text of Proposed Order)(Bader, Hans) (Entered: 10/29/2014)
2014-10-30	12	Memorandum in opposition to re 11 MOTION for Leave to File Surreply In Opposition to Motion for Summary Judgment filed by UNITED STATES NATIONAL SECURITY AGENCY. (Coleman Snead, Jacqueline) (Entered: 10/30/2014)
2014-11-06		MINUTE ORDER: The Court ORDERS that Plaintiffs' 11 Motion to File Surreply is DENIED. Signed by Judge James E. Boasberg on 11/6/14. (lcjeb2) (Entered: 11/06/2014)
2015-01-13	13	ORDER: The Court ORDERS that: 1) Defendant's 7 Motion for Summary Judgment is GRANTED; and 2) Judgment is ENTERED in favor of Defendant. Signed by Judge James E. Boasberg on 01/13/15. (lcjeb3) (Entered: 01/13/2015)
2015-01-13	14	MEMORANDUM OPINION re 13 Order on Defendant's Motion for Summary Judgment. Signed by Judge James E. Boasberg on 01/13/15. (lcjeb3) (Entered: 01/13/2015)
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