EDWARD M. CHEN, United States District Judge.
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.
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
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.
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:
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:
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
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)."
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505. 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, 106 S.Ct. 2505.
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, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989). It is "broadly conceived," and "disclosure, not secrecy" is its dominant objective. Id. at 151-52, 110 S.Ct. 471. At the same time, Congress has exempted some information "under clearly delineated statutory language." Id. at 152, 110 S.Ct. 471 (citing Department of Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). These exemptions are "limited" and "must be narrowly construed." Rose, 425 U.S. at 361, 96 S.Ct. 1592. "Furthermore, the burden is on the agency to sustain its action.'" John Doe Agency, 493 U.S. at 152, 110 S.Ct. 471 (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, 112 S.Ct. 541, 116 L.Ed.2d 526 (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
In addition, the Ninth Circuit has clarified the scope of the exemption. Exemption (7)(E) protects information that "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." 5 U.S.C. § 552(b)(7)(E). The Ninth Circuit has clarified that the phrase "if such disclosure could reasonably be expected to risk circumvention of the law" applies only to the second clause, pertaining to the disclosure of guidelines for law enforcement investigations or prosecutions. Hamdan, 797 F.3d at 778 (citing Allard K. Lowenstein Int'l Human Rights Project v. Dep't of Homeland Security, 626 F.3d 678, 681 (2d Cir. 2010)). A risk of circumvention of the law is not required where the information would disclose techniques and procedures for such investigations or prosecutions. Id.
An agency may "provide a Glomar response, `refus[ing] to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under a FOIA exception.'" Pickard v. Dep't of Justice, 653 F.3d 782, 785-86 (9th Cir. 2011) (quoting Wolf, 473 F.3d at 374). "In determining whether the existence of agency records vel non fits a FOIA exemption, courts apply the general exemption review standards established in non-Glomar cases." Poulsen v. Dep't of Def., 373 F.Supp.3d 1249, 1267 (N.D. Cal. 2019) (citing Wolf, 473 F.3d at 374). District courts "review de novo the agency's use of a FOIA exemption to withhold documents. Yet in conducting de novo review in the context of national security concerns, courts must accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." Wolf v. C.I.A., 473 F.3d at 374 (internal quotations omitted) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C.Cir.1984)); see also Hamdan, 797 F.3d at 770 ("[W]hen dealing with properly classified information in the national security context, we are mindful of our limited institutional expertise on intelligence matters, as compared with the executive branch.").
Exemption 7(E) applies only to investigative techniques that are not generally known to the public. See Rosenfeld, 57 F.3d at 815 (adopting the rule that "Exemption 7(E) only exempts investigative techniques not generally known to the public"). Here, the FBI contends that while it "has acknowledged generally [that] it monitors social media as a law enforcement technique, it has not acknowledged whether it uses tools specifically to analyze social media data in conjunction with immigration records or enforcement procedures, or in the transportation security context." Mot. at 8 (quoting Declaration of Michael Seidel ("Seidel Decl.") ¶ 13, Docket
First, does Exemption 7(E) require "the responding agency's use of a technique" or does it merely focus on "whether a technique or procedure is publicly known"? See Opp. at 15 (emphasis added). In other words, if other federal agencies have disclosed use of social media monitoring in the immigration and transportation contexts, but the FBI has not, does that distinction matter for the purpose of assessing whether the technique is publicly known? Looking first to the text, Exemption 7(E) 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...." 5 U.S.C. § 552(b)(7)(E). As the ACLU points out, the text does not explicitly "refer to the responding agency's use of a technique; instead, the focus of the analysis is on whether a technique or procedure is publicly known." Opp. at 15.
The parties focus on American Civil Liberties Union v. C.I.A., 710 F.3d 422 (D.C. Cir. 2013). In ACLU, the plaintiff filed a FOIA request for CIA records pertaining to the use of drones. Id. at 425. The CIA issued a Glomar response, invoking FOIA Exemptions (b)(1) and (b)(3).
In ACLU, the court acknowledged that other courts had previously "permitted
Thus, ACLU does not suggest that the known use of a technique by one agency creates public knowledge of use by a different agency, unless it is publicly known that the agency's parent agency utilizes that technique. Here, the FBI's parent agency is the Department of Justice, and the ACLU presents no evidence that it is publicly known that the Department of Justice utilizes the social media monitoring techniques in question.
Given the wide array of evidence indicating (1) that other agencies engage in social media monitoring in the immigration and transportation contexts, and (2) that those agencies cooperate, coordinate, and share information with the FBI, the Court also considers whether such evidence makes it possible to impute, for purposes of applying Exemption 7(E), social media monitoring in the immigration and transportation contexts to the FBI. The ACLU presents extensive evidence that the Department of Homeland Security ("DHS"), U.S. Customs and Border Patrol ("CBP"), U.S. Citizenship and Immigration Services ("USCIS"), Immigration and Customs Enforcement ("ICE"), and the Department of State ("DOS") engage in social media monitoring
In addition, the ACLU presents evidence of a high degree of cooperation and information-sharing between the FBI and these entities, which—as demonstrated above— are known to use social media monitoring:
As to "public knowledge," few courts have addressed whether public knowledge of a technique by some agencies' can permit an inference of a partner agency's use of that same technique. There is more guidance from cases analyzing what constitutes "official disclosure." In that context, "[a] strict test applies" and "[c]lassified information that a party seeks to obtain or publish is deemed to have been officially disclosed only if it (1) is as specific as the information previously released, (2) matches the information previously disclosed, and (3) was made public through an official and documented disclosure." Wilson v. C.I.A., 586 F.3d 171, 186 (2d Cir. 2009) (internal quotation marks omitted) (quoting Wolf, 473 F.3d at 378); see also Pickard, 653 F.3d at 787 (construing official disclosure or confirmation as "an intentional, public disclosure made by or at the request of a government officer acting in an authorized capacity by the agency in control of the information at issue").
Within the more exacting context of official disclosure, courts have declined to "infer official disclosure of information ... [from the] release of information by another agency, or even by Congress." Wilson, 586 F.3d at 186 (citing Frugone, 169 F.3d at 774); see also Mobley v. C.I.A., 806 F.3d 568, 583 (D.C. Cir. 2015) ("Disclosure by one federal agency does not waive another agency's right to assert a FOIA exemption."); Nat'l Sec. Counselors v. C.I.A., 898 F.Supp.2d 233, 288-89 (D.D.C. 2012) ("Agency A says that Agency B has records responsive to a FOIA request, but Agency B says it can neither confirm nor deny that it has any such records. If this is what the plaintiff claims, however, that claim fails as a matter of well-established FOIA law. The D.C. Circuit has consistently held that, for purposes of a Glomar response, it `do[es] not deem "official" a disclosure made by someone other than the agency from which the information is being sought.'" (citing Frugone, 169 F.3d at 774)). One case examining the issue within the context of Exemption 7(E) did extend the reasoning of "official disclosure" cases to the "public knowledge" context. See Rosenberg v. U.S. Dep't of Def., 342 F.Supp.3d 62, 95 (D.D.C. 2018) ("Plaintiffs cannot seek disclosure of [one
Even if the FBI's use of social media monitoring in the contexts at issue cannot be imputed from the conduct of other agencies, Exemption 7(E) does not protect disclosures of an application of a known technique to particular facts, as distinguished from disclosure of an unknown law enforcement technique.
In Rosenfeld, the plaintiff sought information from the FBI about its investigation of free speech protest movements on UC Berkeley's campus. Rosenfeld, 57 F.3d at 806. The court denied the FBI's request to withhold under Exemption 7(E) information about the use of pretext phone calls because such a tactic "would leap to the mind of the most simpleminded investigator." Id. at 815.
In Hamdan, by contrast, Plaintiff sought information from multiple federal agencies regarding the role the United States might have played in his detention and torture by the government of the United Arab Emirates. See Hamdan, 797 F.3d at 767-69. The court found that the FBI properly withheld records "related to surveillance and credit searches" under Exemption 7(E). It stated: "It is true that credit searches and surveillance are publicly known law enforcement techniques. But the affidavits say that the records reveal techniques that, if known, could enable criminals to educate themselves about law enforcement methods used to locate and apprehend persons. This implies a specific means of conducting surveillance and credit searches rather than an application." Id. at 777-78 (second emphasis added). The court further contrasted a "means of conducting surveillance" with the example of "satellite surveillance of a particular place," which would be an application of a known technique under Rosenberg [sic]." Id. at 778.
Under Rosenfeld and Hamdan, Exemption 7(E) cannot be used to withhold information about a technique that is generally
Thus, in McCash v. Cent. Intelligence Agency, No. 5:15-CV-02308-EJD, 2017 WL 1047022 (N.D. Cal. Mar. 20, 2017), the court found proper the FBI's withholding of information under Exemption 7(E) because, although the technique was publicly known, "the public does not know how [the technique] works or how it is used in investigations." Id. at *2. The documents sought included "screenshots of searches conducted within [the known law enforcement database] that show categories of information, specific information fields, crossed-out text, and technical details that `would indicate the type of software being utilized and subject it to vulnerability.' One of the printouts also includes handwritten notes that `describe the actions taken by the FBI in searching, the results of the search, and the FBI's analysis of the results.'" Id.
As noted above, in this case, the FBI has issued a Glomar response regarding "All records ... 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:
Mot. at 2. As Mr. Seidel states in his declaration, while the FBI "acknowledged generally [that] it monitors social media as a law enforcement technique,"
Defendant argues with some logical force that denying the Glomar response could disclose the Agency's lack of capability. Mr. Seidel states in his declaration, "[c]onfirming or denying the existence of records showing the FBI applies such techniques specific to immigration enforcement or transportation would itself reveal FBI capabilities, or the lack thereof." Seidel Decl. ¶ 13 (emphasis added). Defendants argue that disclosing that the FBI does not have documents pertaining to the purchase or acquisition of social media surveillance products or services would reveal it does not have the capability to monitor social media, and that this would embolden people with criminal and/or terrorist intentions, enabling them to use (or continue using) social media to plan, execute, and publicize their plans. See Mot. at 8-9; see also Seidel Decl. ¶ 20 ("Confirming the FBI has no responsive records would allow [people] to continue their social media campaigns focused on spreading their violent messages, without fear of further investigative scrutiny while attempting to enter the United States."). However, the language of Exemption 7(E) refers only to disclosure of techniques and procedures, and not to the lack of any such technique or procedure, and the Ninth Circuit has limited the application of "risk of circumvention" of the law under Exemption 7(E) to guidelines, not techniques and procedures. Hence, it is not clear whether Defendant's negative inference argument is cognizable under Exemption 7(E). For purposes of this motion, the Court assumes it is. See, e.g., Am. Civil Liberties Union v. Dep't of Def., No. CV 18-154-M-DWM, 2019 WL 3945845, at *12 (D. Mont. Aug. 21, 2019) (finding that FBI had not justified its Glomar response under Exemption 7(E) because FBI's contention that "admitting a lack of responsive records could indicate the FBI has failed to detect threats" did not "justify how disclosure of the records' existence or nonexistence would cause harm"); cf. Am. Civil Liberties Union v. Office of the Dir. of Nat. Intelligence, No. 10 CIV. 4419 RJS, 2011 WL 5563520, at *7 (S.D.N.Y. Nov. 15, 2011) (denying withholdings under Exemption 1 where Agency relied on "blanket assertion" that "would reveal information about [its] success or lack of success in its collection efforts and about the U.S. Intelligence Community's capabilities, priorities, and activities" (internal quotations omitted)).
Nonetheless, the risk of criminal activity escaping detection thru social media if the FBI were to reveal it has no records is substantially mitigated by two facts. First, it is well known that many related agencies do engage in social media surveillance in the immigration centers and share that information. This lessens the risk that people will be emboldened by the FBI's disclosure to spread criminal or terrorist messages through social media. Second, even if the FBI were to disclose it has no records of purchasing or acquiring products or services used to surveil social media, that does not mean that the FBI has
The exemptions to FOIA are to be narrowly construed, Rose, 425 U.S. at 361, 96 S.Ct. 1592, and the burden of proving their applicability rests with the government. Defendant has not met its burden of justifying the FBI's Glomar response.
For the foregoing reasons, the Court
This order disposes of Docket No. 31.
