SOGHOIAN v. DEPARTMENT OF JUSTICE

Filing 24

SURREPLY to re 15 MOTION for Summary Judgment to plaintiff's motion for summary judgment filed by CHRISTOPHER SOGHOIAN. (SOGHOIAN, CHRISTOPHER) Modified link on 6/25/2012 (znmw, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
CHRISTOPHER SOGHOIAN
)
)
Plaintiff,
)
v.
)
No. 11-1080 (ABJ)
)
DEPARTMENT OF JUSTICE
)
ECF
)
Defendant.
)
)
PLAINTIFF’S CONSOLIDATED REPLY AND OPPOSITION TO PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT

Plaintiff Christopher Soghoian, proceeding pro se, respectfully replies to Defendant
United States Department of Justice’s Consolidated Reply (ECF No. 21) in this action
brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as amended.
As noted by Defendant in its Reply, Plaintiff did not challenge and therefore concedes
several issues.1 Plaintiff continues to contest fourteen documents, for which Defendant
did not release all reasonably segregable material.2
Plaintiff continues to dispute Defendant’s claim that it has properly asserted the
challenged FOIA exemptions to withhold material contained in responsive documents,
and that it has disclosed all responsive, nonexempt records to Plaintiff.3

1

The unchallenged issues are: 1. the reasonableness of Defendant’s search for records
responsive to Plaintiff’s FOIA request; 2. Defendant’s withholding of DOJ CRM
Documents 3 and 4 (drafts); Defendant’s release of EOUSA Document 1 (CCIPS
manual) in its entirety and the withholding of EOUSA Document 2 (pen register records);
and Defendant’s assertion of FOIA Exemptions 3, 6, and 7(C) to withhold portions of
DOJ CRM Documents 1-2 and 5-14, and EOUSA Documents 3-4. More specifically,
Plaintiff does not challenge Defendant’s assertion of Exemptions 6 and 7(C) to withhold
portions of DOJ CRM Documents 5-10 and 14 (a USMS-generated document) and
EOUSA Document 4. Plaintiff also does not challenge Defendant’s assertion of
Exemption 3 to withhold EOUSA Document 3 under the Pen Register Statute, 18 U.S.C.
§ 3123(d)(2).
2
Plaintiff challenges the following documents improperly withheld under Exemption 5
and 7(E): DOJ Criminal Division (CRM) Vaughn items 1-2, 5-14; Executive Office for
United States Attorneys (EOUSA) Vaughn items 3 and 4.

ARGUMENT
PLAINTIFF IS ENTITLED TO JUDMENT AS A MATTER OF LAW BECAUSE
THE GOVERNMENT HAS FAILED TO RELEASE ALL NON-EXEMPT
RESPONSIVE MATERIALS

Defendant Has Improperly Withheld Material Under Exemption 5
In passing FOIA, Congress intended to ensure that the government’s
administration of the law comports with the public’s understanding of it. “One of the
principal purposes of the Freedom of Information Act is to eliminate secret law.” Jordan
v. U.S. Dep’t of Justice, 591 F.2d 753, 781 (D.C. Cir. 1978) (Bazelon, J., concurring)
(citations omitted); see also Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854,
869 (D.C. Cir. 1980) (“[T]he public is entitled to know what its government is doing and
why.”); See Cuneo v. Schlesinger, 484 F.2d 1086, 1090 (D.C. Cir. 1973) (secret law
“either create[s] or determine[s] the extent of the substantive rights and liabilities of a
person affected”). ).
The secret law doctrine is meant to open to the public records that guide and
constrain governmental activities that affect individual rights. See N.L.R.B., 421 U.S. at
153. The D.C. Circuit’s decision in Jordan highlights the danger of allowing the
government to conceal these types of records. Jordan concerned a FOIA request for
prosecutorial guidelines and policy manuals that governed a U.S. Attorney’s Office’s
exercise of prosecutorial discretion. Judge Bazelon, concurring in the decision requiring
the disclosure of those guidelines, emphasized that “the settled practices of the
government,” even “if not codified ‘law,’” were “at least as important as any statute to
the individual” affected by such practices. Id.
Particularly in the area of electronic surveillance, where the relevant law is 25
years old, predating social networks, cloud computing, and mobile phones, analysis of the
published statutes does not reveal much, if anything, about the legal process followed by
the government when it engages in surveillance. See generally Kevin Bankston, Only The
DOJ Knows: The Secret Law of Electronic Surveillance, University of San Francisco
Law Review, Vol. 41, p. 589, 2007 (describing three areas in which federal prosecutors
secretly and routinely obtain court authorization for surveillance methods that Congress
did not intend). See also, Magistrate Judge Stephen Wm. Smith, Gagged, Sealed &
3

As Defendant also notes in its Reply, Plaintiff did not file a statement of material facts
not in genuine dispute or a separate statement of disputed issues. Defendant’s Reply at 6.
Plaintiff does not dispute items 1-20 in Defendant’s statement of material facts. Plaintiff
does, however, dispute item 21, which states that “DOJ CRM and EOUSA have released
all reasonably segregable portions of documents to plaintiff in response to its FOIA
request. All redacted information was exempt from disclosure pursuant to a FOIA
exemption or was not reasonably segregable because its release would have revealed the
underlying protected material.” (citations omitted).

Delivered: Reforming ECPA's Secret Docket, Harvard Law & Policy Review Vol. 6,
2012 Forthcoming, available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2071399
(describing electronic surveillance orders as “legible to the phone companies and
electronic service providers who execute them, yet imperceptible to targeted individuals,
the general public, and even other arms of government, including Congress and appellate
courts.”)
In that vein, courts have held that the government cannot invoke Exemption 5 to
suppress legal standards that an agency has in practice adopted or used. See, e.g., Orion
Research, Inc. v. Envtl. Prot. Agency, 615 F.2d 551, 554 (1st Cir. 1980) (Exemption 5
does not apply to “final memoranda that ‘represent policies, statements or interpretations
of law that the agency has actually adopted.’” (citation omitted)); Coastal States Gas
Corp., 617 F.2d at 867 (“[A]n agency will not be permitted to develop a body of ‘secret
law,’ used by it in the discharge of its regulatory duties and in its dealings with the
public, but hidden behind a veil of privilege because it is not designated as ‘formal,’
‘binding,’ or ‘final.’”); Sterling Drug, Inc. v. FTC, 450 F.2d 698, 708 (D.C. Cir. 1971)
(same).
The law of location surveillance is exceedingly complex and in a state of flux,
particularly as magistrate judges around the country are starting to refuse to continue to
permit the government to obtain location data without a warrant. See generally Stephanie
K. Pell and Christopher Soghoian, Can You See Me Now?: Toward Reasonable
Standards for Law Enforcement Access to Location Data that Congress Could Enact,
Berkeley Technology Law Journal, Vol. 27, p. 117, 2012. As such, the legal advice
offered by the Office of Enforcement Operations and the Computer Crime and
Intellectual Property Section carries significant weight, and is not merely advisory.
Whatever these offices recommend, prosecutors and investigators do. As such, their
advice, once presented to prosecutors, is official DOJ policy.
Defendant Has Improperly Withheld Material Under Exemption 7(E)
Defendant argues that the materials withheld under 7(E) have been properly
withheld because even commonly known procedures may be protected from disclosure if
the disclosure could reduce or nullify their effectiveness. Defendant’s Reply at 10.
However, Defendant also acknowledges that the material withheld relates to “legal issues
and strategies pertaining, in part, to obtaining location information for wireless devices in
the course of criminal law enforcement investigations.” Id.
While there are surveillance methods and techniques that the government may
legitimately wish to keep secret, such secrecy should not extend to information relating to
the legal process necessary for the government to use those methods. Thus, as an
illustrative example, it might be reasonable to keep secret the details about the technical
capabilities of particular wireless phone surveillance device used by the government, but
the type of court order necessary for the government to use it to spy on a target should not
be shielded from disclosure under FOIA.
Defendant also claims that the “[d]isclosure of such information would reduce or
nullify the effectiveness of the use of these techniques by law enforcement.” Id.
Defendant has not provided specific facts supporting its claim that disclosure of its legal
theories would nullify the effectiveness of particular surveillance techniques. Nor does it

cite any case law to support its argument that exemption 7(E) permits the government to
keep the public in the dark regarding its interpretation of surveillance laws, rather than
technical details regarding the specific technologies used.
Defendant Has Failed to Release All Reasonably Segregable Material

Plaintiff does not dispute Defendant’s statement that there are two OEO manuals.
Defendant describes these two documents as “one only available to DOJ law enforcement
personnel, and the second, a carefully redacted version, available to the public on-line,
that provides pertinent information without releasing other material whose disclosure
would be harmful to law enforcement.” Defendant’s Reply at 10-11. Plaintiff does,
however, dispute Defendant’s claim that the 2nd OEO manual has been “carefully”
redacted, or that the disclosure of any of the redacted material to the public would be
harmful to law enforcement.
Specifically, Defendant has not provided any information to suggest that the redaction of
the OEO manual was performed following the exemption standards under FOIA. For
example, the legal standard for redaction of information under exemption 7E is not
information if disclosed that would be “harmful to law enforcement”, but rather, that the
disclosure “could reasonably be expected to risk circumvention of the law.” Furthermore,
Defendant has asserted only broad, speculative, and unsupported claims that disclosure of
any of the redacted material to the public would be harmful to law enforcement.
As for the other withheld documents contested by Plaintiff, Defendant has failed to
provide all reasonably segregable potion of those records not covered by the exemptions
to FOIA.4 This court can and should require the Defendant to submit all of the contested
documents for an in camera review, which will undoubtedly prove that Defendant failed
to release all reasonably segregable material.

4

Defendant claims that it withheld a “portion of the slide presentation used by a Criminal
Division Supervisor in lecturing other Department of Justice attorneys.” Defendant’s
Reply at 7. Defendant has provided Plaintiff with the first (title) and last (contact info)
slides from this presentation. All of the useful content has been withheld. The
Defendant’s claim that this material constitutes a “portion” is at best, an exaggeration.

CONCLUSION
WHEREFORE, for the foregoing reasons, and those stated in Plaintiff’s moving papers,
the Court should enter judgment in favor of the Plaintiff and deny Defendant’s motion for
summary judgment.

Respectfully submitted,
_________/s/ ________
CHRISTOPHER SOGHOIAN
1725 Irving St NW
Washington, DC 20010
[phone]
(Pro Se)
Dated: June 22, 2012