On April 19, 2016, the Electronic Frontier Foundation, a non-profit organization concerned with technology-related civil liberty issues, filed suit in the United States District Court for the Northern District of California against the United States Department of Justice under the Freedom of Information Act, 5 U.S.C. §552. The case was assigned to Judge Haywood S. Gilliam, Jr.

It was public knowledge that the government had attempted to compel third parties to assist in surveillance activities, such as when the FBI publicly demanded court orders requiring Apple to create a backdoor to the iPhone. The Electronic Frontier Foundation sought to learn about the government’s efforts to obtain non-public court orders. The Foundation had filed a Freedom of Information Act request on March 7, 2016, seeking documents pertaining to requests for the Foreign Intelligence Surveillance Court to compel third parties to provide access to their customers’ encrypted communications or to provide other technical assistance in gaining access to private communications. When the Justice Department withheld the requested documents, the Foundation filed this lawsuit for an injunction requiring the Department to produce all such documents created between 1978 and June 1, 2015.

In the fall of 2016, both parties moved for summary judgment. While these motions were pending, the Justice Department worked to process the original Freedom of Information Act request. A year later, after the parties acknowledged that the scope of their dispute would not be known until the document production process was complete, the court denied both summary judgment motions as moot on September 29, 2017.

On September 25, 2017, January 31, 2018, and August 22, 2018, the Justice Department released a total of 73 documents, out of 79 identified as responsive to the Foundation’s request. The Department claimed that the remaining six documents, opinions written by the Foreign Intelligence Surveillance Court, were classified and exempt from disclosure.

Both parties filed new motions for partial summary judgment in the fall of 2018. The Foundation argued that the Justice Department could not legally withhold the remaining documents: although the six documents were exempt from disclosure under the Freedom of Information Act, they were also subject to Section 402 of the USA FREEDOM Act, which required the declassification of certain opinions of the Foreign Intelligence Surveillance Court.

On March 26, 2019, the court granted summary judgment in favor of the Justice Department. 376 F.Supp.3d 1023. Although Section 402 might require the government to declassify the opinions, that statute created no private right of action to enforce the requirement. The court found that it would be inappropriate to use the Freedom of Information Act to enforce Section 402, and therefore declined to even address whether Section 402 actually required the government to declassify the opinions. It found that the Justice Department had provided sufficiently detailed factual information to support its exemption claims, and that the Foundation had failed to overcome the presumption of good faith to which the Department was entitled.

On April 5, 2019, the parties filed a joint status report, notifying the court that aside from attorneys’ fees, no dispute remained to be resolved. The parties submitted a proposed judgment in favor of the Justice Department as to its responses to the Foundations’s requests. They also requested that the court order the parties to provide a status report, due by May 9, 2019, regarding their efforts to resolve the dispute over attorneys’ fees and costs.

Upon receipt of the status report on May 10, 2019, the court extended the deadline for notifying the court of the status of the parties’ efforts to finalize the agreement concerning attorneys’ fees and costs to June 10, 2019.

On June 10, 2019, the parties submitted a joint status report indicating that the parties finalized their agreement concerning attorneys’ fees and costs and have signed a settlement agreement. The parties jointly agreed to dismiss the case on July 3, 2019.

Lisa Limb - 03/28/2018
Lisa Limb - 04/05/2019
Bogyung Lim - 07/13/2020


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