Case Detail

FOIA Project Annotation: Judge Tanya Chutkan has ruled that the FBI properly withheld records concerning the identity of the company that provided the software that allowed the agency to hack into an iPhone belonging to the San Bernardino terrorist and the amount of money the agency paid the company under Exemption 1 (national security), Exemption 3 (other statutes), and Exemption 7(E) (investigative methods and techniques), but the information does not qualify under Exemption 4 (confidential business information). In December 2015, Syed Rizwan Farook and Tashfeen Malik killed 14 people and injured 22 others in an attack on the Inland Regional Center in San Bernardino. Farook and Malik were both killed by the police, but a company-owned iPhone assigned to Farook was discovered. However, the iPhone was password-protected and set to delete its contents after ten failed attempts to enter the correct password. The FBI filed suit against Apple to force it to provide access to the phone. Apple refused to do so, but while the case was ongoing, the FBI announced it had found an alternative way to get into the phone and dropped its suit against Apple. Then-FBI Director James Comey told reporters that the cost of the tool was more than his salary due at the end of his term, about $1.2 million, and that the tool only worked on an iPhone 5C operating on IOS 9 and the FBI had not identified any other phones on which the tool could be used. The Associated Press, USA Today, and Vice News all filed FOIA requests for information about the identity of the third-party company. The FBI initially claimed Exemption 7(A) (interference with ongoing investigation or proceeding). After the media requesters filed suit, the FBI disclosed 100 of 123 responsive pages in full or in part. The plaintiffs challenged only the withholding of the identity of the vendor and the amount paid to the vendor for the tool in question. The FBI argued that disclosure of these two pieces of information could harm national security by providing potential adversaries insight into the resources the agency was willing to commit to such cyber-security needs. Chutkan agreed, noting that "this line of reasoning logically and plausibly demonstrates how the FBI could reasonably expect the release of the vendor's identity to cause identifiable harm to national security. If an adversary were determined to learn more information about the iPhone hacking tool the FBI acquired, it is certainly logical that the release of the name of the company that created the tool could provide insight into the tool's technological design. Adversaries could use this information to enhance their own encryption technologies to better guard against this tool or tools the vendor develops for the FBI in the future." The plaintiffs contended that if the tool was so important to national security it made no sense to allow the company to retain custody of it. Chutkan observed that "but the vendor may continue to possess the tool for any number of reasons related to national security interests, and even if the possibility of an attack on the vendor's system is remote, the FBI has still demonstrated a logically reasonable risk of harm to national security in this respect." The plaintiffs also argued that since Comey had publicly indicated that the tool had limited use, groups trying to evade detection could just use another kind of communication device. However, Chutkan pointed out that "this overlooks the tool's potentially valuable technical capabilities. The FBI may find a way to enhance the tool's capabilities, choose to continue using advanced versions of similar technology in the future, or re-employ the vendor to develop another similar product." The plaintiffs argued that Comey's comments had constituted a public acknowledgment of the cost, particularly in light of the fact that Sen. Diane Feinstein (D-CA) had additionally suggested that the cost was $900,000. Chutkan found Feinstein's comments did not support the plaintiffs' case. She pointed out that "Director Comey did not acknowledge or verify Sen. Feinstein's comment, and Comey's testimony therefore fails the third element of the [public acknowledgment] test, since the information was not made public through an agency's official disclosure." Since the FBI's Exemption 3 claim paralleled its Exemption 1 claim, once Chutkan concluded the information was protected under Exemption 1 it became evident that it was protected by Exemption 3 as well. For essentially the same reasons, Chutkan found the identity of the vendor and the price the agency paid for the tool fell under Exemption 7(E) as well. Although the plaintiffs argued that the tool's value was limited to a certain type of iPhone, Chutkan pointed out that "this overlooks the tool's potential value to the FBI in future iterations of the technology, and Plaintiffs themselves acknowledge that Exemption 7(E) presents a low bar for the agency." Chutkan was sympathetic to the FBI's Exemption 4 claim, but indicated that "since there is no evidence that any actual competition exists over current or future contracts, the FBI has failed to demonstrate that the vendor actually faces competition."
Issues: Exemption 1 - Harm to national security, Exemption 3 - Statutory prohibition of disclosure, Exemption 7(E) - Investigative methods or techniques, Exemption 4 - Confidential business information

Date Filed	Doc #	Docket Text
2016-09-16	1	COMPLAINT against FEDERAL BUREAU OF INVESTIGATION ( Filing fee $ 400 receipt number 0090-4676381) filed by VICE MEDIA LLC, GANNETT SATELLITE INFORMATION NETWORK LLC d/b/a USA TODAY, THE ASSOCIATED PRESS. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Summons as to Federal Bureau of Investigation, # 3 Summons Summons as to United States Attorney's Office, # 4 Summons Summons as to United States Attorney General)(Brown, Jay) (Entered: 09/16/2016)
2016-09-16	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by THE ASSOCIATED PRESS (Brown, Jay) (Entered: 09/16/2016)
2016-09-16	3	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by GANNETT SATELLITE INFORMATION NETWORK LLC d/b/a USA TODAY (Brown, Jay) (Entered: 09/16/2016)
2016-09-16	4	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by VICE MEDIA LLC (Brown, Jay) (Entered: 09/16/2016)
2016-09-16		Case Assigned to Judge Tanya S. Chutkan. (md) (Entered: 09/19/2016)
2016-09-19	5	SUMMONS (3) Issued Electronically as to FEDERAL BUREAU OF INVESTIGATION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Consent Form)(zsb) (Entered: 09/19/2016)
2016-09-30	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. FEDERAL BUREAU OF INVESTIGATION served on 9/23/2016, (Attachments: # 1 Return Receipt)(Brown, Jay) Modified on 9/30/2016 to correct event (zrdj). (Entered: 09/30/2016)
2016-09-30	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 9/23/2016. Answer due for ALL FEDERAL DEFENDANTS by 10/23/2016. (Attachments: # 1 Return Receipt)(Brown, Jay) (Entered: 09/30/2016)
2016-09-30	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 09/23/2016. (Attachments: # 1 Return Receipt)(Brown, Jay) (Entered: 09/30/2016)
2016-10-24	9	NOTICE of Appearance by Joseph Evan Borson on behalf of FEDERAL BUREAU OF INVESTIGATION (Borson, Joseph) (Entered: 10/24/2016)
2016-10-24	10	ANSWER to Complaint by FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Borson, Joseph) (Entered: 10/24/2016)
2016-10-25		MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. The requirements of LCvR 16.3 and Rule 26(f) of the Federal Rules of Civil procedure appear to be inapplicable. IT IS HEREBY ORDERED that the parties shall meet and confer and propose a schedule for proceeding in this matter. The schedule shall address the status of Plaintiff's FOIA request, the anticipated number of documents responsive to Plaintiff's FOIA request, the anticipated date(s) for release of the documents requested by Plaintiff, whether a motion for an Open America stay is likely in this case, whether a Vaughn index will be required in this case, whether and when either party anticipates filing a dispositive motion, and any other pertinent issues. The parties shall file a joint status report that addresses these issues and that contains a proposed schedule and order not later than 11/15/16. Signed by Judge Tanya S. Chutkan on 10/25/16. (DJS) (Entered: 10/25/2016)
2016-10-25		Set/Reset Deadlines: Status Report due by 11/15/2016 (zsm) (Entered: 10/25/2016)
2016-10-26	11	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Jeremy A. Kutner, :Firm- Levine Sullivan Koch & Schulz, LLP, :Address- 321 W. 44th Street, Suite 1000, New York, NY 10036. Phone No. - 212-850-6107. Fax No. - 212-850-6299 Filing fee $ 100, receipt number 0090-4721959. Fee Status: Fee Paid. by ASSOCIATED PRESS, GANNETT SATELLITE INFORMATION NETWORK LLC, VICE MEDIA LLC (Attachments: # 1 Declaration of Jeremy A. Kutner, # 2 Text of Proposed Order)(Brown, Jay) (Entered: 10/26/2016)
2016-10-27		MINUTE ORDER: Granting 11 Motion for Leave to Appear Pro Hac Vice. Attorney JEREMY A. KUTNER is hereby admitted pro hac vice to appear in this matter on behalf of Plaintiffs. Signed by Judge Tanya S. Chutkan on 10/27/16. (DJS) (Entered: 10/27/2016)
2016-10-28	12	NOTICE of Appearance by Jeremy A. Kutner on behalf of ASSOCIATED PRESS, GANNETT SATELLITE INFORMATION NETWORK LLC, VICE MEDIA LLC (Kutner, Jeremy) (Entered: 10/28/2016)
2016-11-15	13	Joint STATUS REPORT by ASSOCIATED PRESS, GANNETT SATELLITE INFORMATION NETWORK LLC, VICE MEDIA LLC. (Brown, Jay) (Entered: 11/15/2016)
2016-11-21		MINUTE ORDER: Having considered the parties' Joint Status Report 13 it is hereby ordered that the parties shall adhere to the following schedule: FBI Completion of Document Review due by January 6, 2017. FBI Motion for Summary Judgment due January 30, 2017. Plaintiffs' Opposition and Combined Cross-Motion due February 20, 2017. FBI Reply and Combined Opposition to Cross-Motion due March 13, 2017. Plaintiffs' Reply due March 27, 2017. Signed by Judge Tanya S. Chutkan on 11/21/16. (DJS) (Entered: 11/21/2016)
2016-11-21		Set/Reset Deadlines: Summary Judgment motions due by 1/30/2017. Response to Motion for Summary Judgment and Cross Motions due by 2/20/2017. Reply to Motion for Summary Judgment and Response to Cross Motions due by 3/13/2017. Reply to Cross Motions due by 3/27/2017. (gdf) (Entered: 11/21/2016)
2017-01-30	14	MOTION for Summary Judgment by FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Memorandum in Support, # 2 Declaration Decl. of David M. Hardy, # 3 Exhibit Exs. A-R of Hardy Decl., # 4 Statement of Facts, # 5 Text of Proposed Order)(Borson, Joseph) (Entered: 01/30/2017)
2017-02-20	15	Cross MOTION for Summary Judgment by ASSOCIATED PRESS, GANNETT SATELLITE INFORMATION NETWORK LLC, VICE MEDIA LLC (Attachments: # 1 Declaration of Jay Ward Brown, # 2 Exhibits A-J to Brown Decl., # 3 Text of Proposed Order)(Brown, Jay) (Entered: 02/20/2017)
2017-02-20	16	Memorandum in opposition to re 14 MOTION for Summary Judgment filed by ASSOCIATED PRESS, GANNETT SATELLITE INFORMATION NETWORK LLC, VICE MEDIA LLC. (Attachments: # 1 Declaration of Jay Ward Brown, # 2 Exhibits A-J to Brown Decl., # 3 Text of Proposed Order)(Brown, Jay) (Entered: 02/20/2017)
2017-03-13	17	Memorandum in opposition to re 15 Cross MOTION for Summary Judgment & Opposition to Defendant's Motion for Summary Judgment filed by FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 Declaration Second Hardy Decl., # 2 Statement of Facts)(Borson, Joseph) (Entered: 03/13/2017)
2017-03-13	18	REPLY to opposition to motion re 14 MOTION for Summary Judgment filed by FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 Declaration Second Hardy Decl)(Borson, Joseph) (Entered: 03/13/2017)
2017-03-27	19	REPLY to opposition to motion re 15 Cross MOTION for Summary Judgment & Opposition to Defendant's Motion for Summary Judgment filed by ASSOCIATED PRESS, GANNETT SATELLITE INFORMATION NETWORK LLC, VICE MEDIA LLC. (Brown, Jay) (Entered: 03/27/2017)
2017-05-12	20	MOTION to Supplement Record re 15 Cross MOTION for Summary Judgment & Opposition to Defendant's Motion for Summary Judgment by ASSOCIATED PRESS, GANNETT SATELLITE INFORMATION NETWORK LLC, VICE MEDIA LLC (Attachments: # 1 Supplemental Decl. of Jay Ward Brown, # 2 Exhibit A to Suppl. Brown Decl., # 3 Text of Proposed Order)(Brown, Jay) (Entered: 05/12/2017)
2017-05-16	21	RESPONSE re 20 MOTION to Supplement Record re 15 Cross MOTION for Summary Judgment & Opposition to Defendant's Motion for Summary Judgment filed by FEDERAL BUREAU OF INVESTIGATION. (Borson, Joseph) (Entered: 05/16/2017)
2017-09-30	22	MEMORANDUM AND OPINION: Re Plaintiffs' Motion 20 to Supplement the Record; Defendant's 14 Motion for Summary Judgment; Plaintiffs' Cross-Motion 15 for Summary Judgment. Signed by Judge Tanya S. Chutkan on 9/30/17. (DJS) (Entered: 09/30/2017)
2017-09-30	23	ORDER: Granting 14 Defendant's Motion for Summary Judgment; Denying 15 Plaintiffs' Motion for Summary Judgment; Granting Plaintiffs' 20 Motion to Supplement the Record. Dismissing this action with prejudice. Signed by Judge Tanya S. Chutkan on 9/30/17. (DJS) (Entered: 09/30/2017)
2017-09-30	24	SUPPLEMENTAL MEMORANDUM to re 15 Cross MOTION for Summary Judgment & Opposition to Defendant's Motion for Summary Judgment , 14 MOTION for Summary Judgment filed by ASSOCIATED PRESS, VICE MEDIA LLC. (Attachments: # 1 Exhibit A)(znmw) Modified filed date on 10/3/2017 (znmw). (Entered: 10/02/2017)
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