University of Michigan Law School
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Case Name ACLU v. NSA NS-NY-0011
Docket / Court 1:13-cv-09198-AT ( S.D.N.Y. )
State/Territory New York
Case Type(s) National Security
Attorney Organization ACLU National (all projects)
Case Summary
Executive Order 12,333 ("EO 12,333") is the foundational source of authority for government agencies, including the National Security Agency ("NSA"), to conduct surveillance of foreigners outside of the United States. Under EO 12,333, intelligence agencies have collected records containing the ... read more >
Executive Order 12,333 ("EO 12,333") is the foundational source of authority for government agencies, including the National Security Agency ("NSA"), to conduct surveillance of foreigners outside of the United States. Under EO 12,333, intelligence agencies have collected records containing the location information of mobile phones.

In May 2013, the American Civil Liberties Union (“ACLU”) and the ACLU Foundation filed Freedom of Information Act (FOIA) requests with the government agencies regarding records that are the subject of this lawsuit. The plaintiffs submitted administrative appeals after denial and receiving no response from the agencies.

In December 2013, ACLU and the ACLU Foundation filed this lawsuit against Central Intelligence Agency, Department of Defense, Department of Justice, Department of State, and NSA in the U.S. District for the Southern District of New York. This is an action under FOIA, seeking the release of records that describe the government's understanding of its surveillance authority under EO 12,333 as well as the rules that regulate the government's acquisition, retention, use, and dissemination of the communications of Americans swept up in that surveillance. The plaintiffs sought injunctive relief.

On October 31, 2014, the ACLU filed a second amended complaint.

On March 16, 2015, the district court (Judge Analisa Torres) issued the Stipulation and Order, which required National Security Division (“NSD”) of the Department of Justice to search and produce identified documents that were currently in effect or created after September 11, 2001. After the completion of the NSD's production of these documents, the parties agreed to continue their discussions regarding whether searches for documents created before September 11, 2001 will be undertaken, including whether conducting such searches would be unduly burdensome to NSD.
See this Order

On February 26, 2016, the defendants filed a motion for partial summary judgment, claiming that each defendant agency satisfied its obligation under FOIA to conduct a reasonable search to discover the requested documents. On April 20, 2016, the plaintiffs filed a cross-motion for partial summary judgment.

On August 18, 2016, the court ordered defendants to complete its review of the materials for responsiveness to the plaintiffs' requests, submit a letter informing the court as to the number of responsive documents found and proposing a date by which the defendants will produce the responsive documents. The court’s decision on the parties' cross-motions for partial summary judgment was held in abeyance pending the defendants' review of these additional materials.

The plaintiffs submitted a letter on September 29, 2016 to request reinstatement of plaintiffs’ cross-motion for partial summary judgment. The defendants also asked the court to reinstate the defendants’ motion for partial summary judgment. The defendants claimed that their searches were adequate, and that many documents which were not turned over were covered by exemptions to FOIA. Exemption 1 protects classified national security documents from disclosure. Exemption 3 protects documents whose disclosure is otherwise statutorily prohibited. Exemption 5 shields privileged communications between or among executive officials (for example, those protected by attorney-client privilege). Finally, Exemption 7 protects law enforcement techniques used in investigations or prosecutions.

On March 27, 2017, the district court (Judge Kimba M. Wood) denied the plaintiffs’ motion and granted in part and denied in part the defendants’ motion. Judge Wood denied the defendants’ motion for summary judgment as to the adequacy of FBI’s, NSD’s, and CIA’s searches. Judge Wood found that the defendants had met their burden regarding Exemption 7 (protecting disclosure of techniques and procedures of law enforcement investigations and prosecutions) and granted their motion. He found that some documents were covered by Exemptions 1, 3, and 5 as well, granting defendants summary judgment as to those documents, while denying them summary judgment as to others.

On August 17, 2017, the court issued an order in response to both parties' motions for partial summary judgment as to remaining contested documents. The court granted the defendants' motion and denied the plaintiffs' motion. The court found that the defendants properly withheld documents under Exemptions 1, 3, or 5. The plaintiffs appealed on October 20.

On May 30th, 2019 the Second Circuit affirmed the lower court's August 2017 decision. Judge Jose A. Cabranes delivered the opinion, holding that because certain OLC documents were not binding law, they were covered by attorney-client privilege and therefore protected by Exemption 5. Furthermore, he added documents created by the intelligence programs were protected by Exemptions 1 and 3. 925 F.3d 576

The agencies' documents released from this FOIA lawsuit are available at the ACLU website.

Susie Choi - 03/31/2017
Virginia Weeks - 03/25/2018
Jack Hibbard - 06/02/2020


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Issues and Causes of Action
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Issues
Content of Injunction
Required disclosure
General
Record-keeping
Records Disclosure
Plaintiff Type
Non-profit NON-religious organization
Causes of Action Freedom of Information Act (FOIA), 5 U.S.C. § 552
Defendant(s) the United States
Plaintiff Description Plaintiff American Civil Liberties Union ("ACLU") is a nationwide, non-profit, nonpartisan 26 U.S.C. § 501(c)(4) organization and Plaintiff American Civil Liberties Union Foundation is a separate 26 U.S.C.§ 501(c)(3) organization that educates the public about civil liberties.
Indexed Lawyer Organizations ACLU National (all projects)
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 2015 - 2015
Filed 2013
Case Ongoing Yes
Case Listing NS-DC-0078 : Electronic Privacy Information Center v. Department of Justice / ACLU v. Department of Justice (D.D.C.)
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Executive Order 12,333 – FOIA Lawsuit Documents
Date: Jul. 5, 2016
By: American Civil Liberties Union
[ Detail ] [ External Link ]

Docket(s)
17-3399-cv (U.S. Court of Appeals)
NS-NY-0011-9001.pdf | Detail
Date: 08/14/2019
Source: PACER [Public Access to Court Electronic Records]
1:13-cv-09198 (S.D.N.Y.)
NS-NY-0011-9000.pdf | Detail
Date: 10/16/2019
Source: PACER [Public Access to Court Electronic Records]
General Documents
CIA IG Activity Assessment: COMPLIANCE with EO 12333 (Aug. 7, 2002)
NS-NY-0011-0007.pdf | Detail
Date: 08/07/2002
Source: ACLU
Complaint for Injunctive Relief [ECF# 1] (2013 WL 6845791)
NS-NY-0011-0001.pdf | WESTLAW | Detail
Date: 12/30/2013
Source: PACER [Public Access to Court Electronic Records]
First Amended Complaint for Injunctive Relief [ECF# 17]
NS-NY-0011-0002.pdf | Detail
Date: 02/18/2014
Source: PACER [Public Access to Court Electronic Records]
Joint Stipulation and Order [ECF# 43] (S.D.N.Y.)
NS-NY-0011-0004.pdf | Detail
Date: 10/30/2014
Source: PACER [Public Access to Court Electronic Records]
Second Amended Complaint for Injunctive Relief [ECF# 44]
NS-NY-0011-0003.pdf | Detail
Date: 10/31/2014
Source: PACER [Public Access to Court Electronic Records]
Stipulation and Order Regarding NSD Document Searches and Production (S.D.N.Y.)
NS-NY-0011-0005.pdf | Detail
Date: 03/16/2015
Memorandum Opinion and Order [ECF# 93] (2017 WL 1155910) (S.D.N.Y.)
NS-NY-0011-0006.pdf | WESTLAW | Detail
Date: 03/27/2017
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 112] (S.D.N.Y.)
NS-NY-0011-0008.pdf | Detail
Date: 08/17/2017
Source: PACER [Public Access to Court Electronic Records]
Opinion [Ct. of App. ECF# 75] (925 F.3d 576)
NS-NY-0011-0009.pdf | WESTLAW| LEXIS | Detail
Date: 05/30/2019
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Cabranes, José Alberto (FISCR, D. Conn., Second Circuit) show/hide docs
NS-NY-0011-0009
Livingston, Debra Ann (Second Circuit) show/hide docs
NS-NY-0011-0009
Schofield, Lorna Gail (S.D.N.Y.) show/hide docs
NS-NY-0011-0009
Torres, Analisa Nadine (S.D.N.Y.) show/hide docs
NS-NY-0011-0004 | NS-NY-0011-0005
Wood, Kimba Maureen (S.D.N.Y.) show/hide docs
NS-NY-0011-0006 | NS-NY-0011-0008 | NS-NY-0011-9000
Plaintiff's Lawyers Abdo, Alex (New York) show/hide docs
NS-NY-0011-0001 | NS-NY-0011-0002 | NS-NY-0011-0003 | NS-NY-0011-0004 | NS-NY-0011-0005 | NS-NY-0011-9000
Bloch-Wehba, Hannah (Connecticut) show/hide docs
NS-NY-0011-0009 | NS-NY-0011-9000
Brady, Sebastian (New York) show/hide docs
NS-NY-0011-0009
Gorski, Ashley (New York) show/hide docs
NS-NY-0011-0003 | NS-NY-0011-0004 | NS-NY-0011-0005 | NS-NY-0011-0009 | NS-NY-0011-9000 | NS-NY-0011-9001
Lee, Diana (New York) show/hide docs
NS-NY-0011-0009
Manes, Jonathan Matthew (New Jersey) show/hide docs
NS-NY-0011-0001 | NS-NY-0011-0002 | NS-NY-0011-0003 | NS-NY-0011-0004 | NS-NY-0011-0005 | NS-NY-0011-9000
Perlin, Paulina (New York) show/hide docs
NS-NY-0011-0009
Schulz, David A (New York) show/hide docs
NS-NY-0011-0001 | NS-NY-0011-0002 | NS-NY-0011-0003 | NS-NY-0011-0004 | NS-NY-0011-0005 | NS-NY-0011-0009 | NS-NY-0011-9000 | NS-NY-0011-9001
Toomey, Patrick Christopher (New York) show/hide docs
NS-NY-0011-0003 | NS-NY-0011-0004 | NS-NY-0011-0005 | NS-NY-0011-0009 | NS-NY-0011-9000 | NS-NY-0011-9001
Defendant's Lawyers Barnea, Jean-David (New York) show/hide docs
NS-NY-0011-0004 | NS-NY-0011-0005 | NS-NY-0011-0009 | NS-NY-0011-9000 | NS-NY-0011-9001
Berman, Geoffrey S. (New York) show/hide docs
NS-NY-0011-0009
Jones, David S (New York) show/hide docs
NS-NY-0011-0004 | NS-NY-0011-0005 | NS-NY-0011-0009 | NS-NY-0011-9000 | NS-NY-0011-9001
Torrance, Benjamin H. (New York) show/hide docs
NS-NY-0011-0009 | NS-NY-0011-9001

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