Recently, the Second Circuit issued a significant Freedom of Information Act (“FOIA”) decision construing the FOIA exemption covering law enforcement records 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 decision, Knight First Amendment Institute v. U.S. Citizenship & Immigration Services, 2022 WL 1020379 (2d Cir. April 6, 2022)(casetext version here),[1] involved documents redacted for “national security” related purposes, which may well have influenced the outcome.  This post will summarize the decision, and offers a brief commentary.

Statutory Background and the Records at Issue

The Immigration and Naturalization Act (“INA”) bars from the U.S. any alien who “endorses or espouses terrorist activity” or represents a group that does so.  The INA also authorizes the Secretary of State to exclude an alien upon “reasonable ground[s]” for concluding that the alien’s admission “would have potentially serious adverse foreign policy consequences.”  Even under such authority, the Secretary cannot base exclusion upon the alien’s “past, current, or expected beliefs, statements, or associations … [that] would be lawful within the United States,” unless “the Secretary of State personally determines that the alien’s admission would compromise a compelling United States foreign policy interest.” Knight Institute, slip op. at 5-6.

During the 2016 presidential campaign, Donald J. Trump asserted that the United States should subject aliens to “extreme, extreme vetting,” including an “ideological screening test.”  Shortly after taking office President Trump made good on that promise, mandating “development of a uniform baseline for screening and vetting standards and procedures” and processes to “ensur[e] the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility.”  Knight Institute, slip op. at 7 (citing Exec. Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017) and Exec. Order No. 13780, 82 Fed. Reg. 13209, 13215 (March 6, 2017)).

The Knight First Amendment Institute (“the Knight Institute”) sought several categories of records from the State Department, United States Citizenship & Immigration Services (“USCIS”), and Immigration & Customs Enforcement (“ICE”) regarding each agency’s interpretation and implementation the INA “endorse or espouse” and “foreign policy” provisions under the Executive Orders.  After the agencies’ response to the requests and ensuing litigation, three categories of documents remained for the Second Circuit to address.  The first two were: (1) portions of the State Department’s Foreign Affairs Manual (“the FAM”), and (2) various “training slides, manuals, and guides containing questions relating to the Terrorism Related Inadmissibility Grounds” (the “TRIG questions”).  The third category consisted of a single document, an ICE memorandum titled “ICE Ability to Use 212(a)(3)(C) Foreign Policy Charge.”  Knight Institute, slip op. at 8-9. The Second Circuit would ultimately remand the dispute with respect to that document as unripe for its review.

The Foreign Affairs Manual is a “comprehensive” and “authoritative” source documenting “the Department’s organization structures, policies, and procedures that govern the operations of the State Department, the Foreign Service and, when applicable, other federal agencies.”  Knight Institute, slip op. at 10-11.[2] 

The State Department redacted various version of FAM 302.6, entitled “Ineligibilities Based on Terrorism Related Grounds.”  It asserted that unredacted versions would “disclose law enforcement investigation techniques, procedures, and guidelines,” by revealing “interagency cooperation procedures” and guidelines for when spouses and children trigger . . . for further security investigation and [for] how to conduct that process.” The State Department explained that “[d]isclosure of [the documents] . . . risk[ed] circumvention of the law because terrorists . . . could use [them to formulate strategies for] conceal[ing] derogatory information, provid[ing] fraudulent information, or otherwise circumvent[ing] the security checks . . . .”  Knight Institute, slip op. at 11-13.

The State Department made several redactions to one version of FAM 302.14, entitled “Ineligibility Based on Sanctioned Activities,” because the redacted portions [would reveal] “law enforcement investigation techniques, procedures, and guidelines,” include[ing] “guidelines for conducting the security investigation process . . .”  Knight Institute, slip op. at 13-14.

In response to the Knight Institute’s request for records “containing policies, procedures, or guidance regarding the application” of the “endorse or espouse” or the “foreign policy” provisions, USCIS redacted “model or sample questions for immigration officers to use when screening applicants.” The TRIG questions help immigration officers determine, for example, “whether an applicant provides material support for terrorism,” and, if so, whether such support has been provided “under duress.”  The withheld material included “TRIG specific model questions that USCIS immigrations officers should ask” and “follow-up questions that immigration officers should ask when they spot issues.” USCIS asserted that the TRIG questions “reflect specialized methods that USCIS has refined through its decades of enforcing United States immigration laws[,]” and thus were exempt from disclosure under Exemption 7(E).  Knight Institute, slip op. at 17-18.

The District Court’s Resolution of the Issues

The District Court rejected the agencies’ invocation of Exemption 7(E) to justify the agencies’ redaction of the documents and ordered disclosure of the unreadacted documents.  See, Knight First Amendment Institute v. United States Citizenship & Immigration Services. 407 F.Supp.3d 311 (D.D.C. 2019); Knight First Amendment Institute v. United States Citizenship & Immigration Services. 407 F.Supp.3d 334 (D.D.C. 2019).

With respect to the redactions of the Foreign Affairs Manual, the Court concluded that much of the material had not even been compiled for a “law enforcement purpose,” making Exemption 7 irrelevant.  Because the State Department performs both administrative and law enforcement functions, the Court ‘scrutinized with some skepticism the particular purpose claimed for disputed documents.  Moreover, because some of the Foreign Affairs Manual provisions largely parroted the applicable statutory standards, Exemption 7(E) could not justify redacting those portions of the Manual.  Other redacted portions merely described “codified law and policy,” and thus also, in the District Court’s view, lay outside Exemption 7’s purview.  Even when such descriptions included statements regarding the interpretation and application of immigration laws and regulations, those statement were not entitled to protection under Exemption 7(E).  Some of the redactions contain[ed] “interpretive information” that DOS characterized as “guidelines.”  But, the Court said, it was not clear “how explaining to the public what may constitute grounds for inadmissibility—essentially a legal interpretation—may potentially help an individual circumvent the law.” Knight Institute, slip op. at 14-16.

Similarly, the District Court had rejected the agencies’ arguments regarding the TRIG questions.  The District Court did not find anything “special or technical” about the TRIG questions, and, as a consequence, concluded that the questions did not qualify as “law enforcement techniques.”  Moreover, the District Court explained, aliens subjected to TRIG-based questioning would necessarily learn the questions, and could disclose them “to whomever they choose.”  Knight Institute, slip op. at 18-19.

The Second Circuit’s Decision

Judge Nardini, writing for a unanimous Second Circuit panel (including Judges Jacobs and Raggi), began with the basics.  To invoke any of the Exemption 7’s subsections, an agency must establish that the records were “compiled for law enforcement purposes.”  5 U.S.C. § 552(b)(7). Second, to satisfy subsection (E) in particular, the agency must also show that the records either (1) would “disclose techniques and procedures for law enforcement investigations or prosecutions”; or (2) would both “disclose guidelines for law enforcement investigations or prosecutions” and that “such disclosure could reasonably be expected to risk circumvention of the law.”[3] Knight Institute, slip op. at 24-25.

The panel agreed with the District Court that “an agency that performs both administrative and law-enforcement functions” is “subject to an exacting standard when it comes to the threshold requirement of Exemption 7.”  Knight Institute, slip op. at 26 (citing Tax Analysts v. I.R.S., 294 F.3d 71, 77 (D.C. Cir. 2002)).  But, quoting Justice Samuel Alito’s concurrence in Milner v. Department of the Navy, 562 U.S. 562 (2011),[4] the panel noted “that [t]he ordinary understanding of law enforcement includes not just the investigation and prosecution of offenses that have already been committed, but also proactive steps designed to prevent criminal activity and to maintain security.”  Knight Institute, slip op. at 26-27.[5] 

The Knight Institute sought to distinguish materials prepared to assist in applying the law from those prepared to assist in enforcing the law. It argued that the disputed Foreign Affairs Manual sections had been compiled merely to assist State Department officials in “apply[ing] the law,” by making determinations on visa applications, which is “not a sufficient basis to conclude that the information was compiled to enforce the law.”  But the panel disagreed the Knight Institute’s attempt to draw such a clear distinction between applying the law and enforcing it; in its view “[e]nforcing the law always requires a degree of analysis and application.”  Acknowledging that some aspects of adjudication, such a determining whether an individual’s eligibility for admission, “might fall outside the common understanding of ‘law enforcement,’” the panel explained that “[t]he detection and prevention of terrorism are archetypal law-enforcement purposes.”  Knight Institute, slip op. at 27.

The panel then took up the District Court’s assertion that only documents that went beyond describing codified law and policy and “describe proactive steps for preventing criminal activity and maintaining security,” qualify as “compiled for law enforcement purposes.”  In the panel’s view, there was no such requirement; any such requirement would be entirely divorced from the statutory text.  Rather, “[t]he threshold inquiry under Exemption 7 is the reason for which material was compiled.” And, moreover,“the material should be considered as a whole rather than broken into parts and scrutinized in isolation.”  Knight Institute, slip op. at 27-28 (emphasis added).

The panel acknowledged that “an agency’s discrete description of law and policy might not” qualify for protection “in every context.”  But it distinguished a compilation of “a larger series of descriptions” to “provide comprehensive guidance to employees in the field” regarding application and enforcement of “the laws within the agency’s purview.” Such a compilation, in its view, potentially falls within Exemption 7(E)’s ambit. Even if such a document reveals no “‘proactive steps,’” the compilation might provide insight into the agency’s enforcement approach. For example, the compilation “might reveal the agency’s reliance on specific laws,” potentially disclosing reliance upon “certain techniques” or the constraints upon “the implementation of those techniques in the field.”  Knight Institute, slip op. at 28-29.

The panel acknowledged that “records that reflect only descriptions of publicly available statutes are less likely to create a risk of ‘circumvention of the law’ if released.” However, it explained, that argument was irrelevant to the “law enforcement purposes” inquiry.  Such an argument would come into play only later when determining whether a “guideline” could be withheld under subsection (E) even though it had been compiled for law enforcement purposes. Knight Institute, slip op. at 28-29.

In moving on to the application of subsection (E), the panel confronted an immediate problem.  In its view, the risk of anti-circumvention criterion applied only to investigatory and prosecutorial guidelines, not investigatory and prosecutorial techniques and procedures.  That view seemed to require the Court to distinguish “guidelines” from “techniques and procedures.”  Complicating matters, the State Department had initially, in response to the FOIA request, characterized the material as “guidelines.”  Knight Institute, slip op. at 31-32.

In the panel’s view, the State Department’s designation of the document was not dispositive. The panel construed the phrase “techniques or procedures” to encompass both law enforcement methods—the actions that law enforcement personnel take to identify and neutralize bad actors—as well as the triggers for their application.  The Court obviated the need for further elaboration, by concluding that release of the material “could reasonably risk circumvention of the law.”  Releasing instructions to State Department officials regarding how they should identify aliens who may have connections to terrorism, including specific triggers for additional scrutiny, “would allow an individual with actual terrorist ties to better tailor his or her application to avoid detection.”  Knight Institute, slip op. at 33.

With regard to the TRIG questions, the panel explained, there was no requirement that law enforcement techniques be specialized, technical, or “calculated” to qualify for protection under subsection (E). Rather, “the phrase ‘techniques or procedures’ refers simply to ‘how law enforcement officials go about investigating a crime.’”  It noted that in Allard K. Lowenstein Int’l Human Rights Project v. Dep’t of Homeland Security, 626 F.3d 678 (2d Cir. 2010), the Second Circuit had defined law enforcement “technique” to mean “a technical method of accomplishing a desired aim.” Id. at 682.  The Lowenstein Project Court had defined law enforcement “procedure” as “a particular way of doing or of going about the accomplishment of something.” Id.  The panel concluded: “Our analysis is not advanced by adding qualifiers that do not appear in the statute—such as ‘special,’ ‘specialized,’ ‘technical,’[[6]] or ‘calculated’—to modify the terms “techniques or procedures.” Somewhat gratuitously, the panel added: “It is not the province of the courts to add words to statutes that Congress has enacted.”   Knight Institute, slip op. at 37-38.

The Court then engaged in a bit of analogical reasoning.  It noted that previously, in Lowensteing Project, the Second Circuit had held that an Internal Revenue Service (“IRS”) directive to its tax investigators advising them that cash-based business more frequently commit tax evasion, and therefore should be audited with particular care, documented a “‘technique or procedure’ for investigating tax evasion.”  In panel’s view, the TRIG question “are more closely linked to the specific methods employed by government actors than an agency’s generic directive to investigate cash-based businesses.” Knight Institute, slip op. at 38-39.

In short, the Court proclaimed: “We hold that the list of TRIG questions employed to effectuate law enforcement purposes—to identify potential terrorists and keep them from entering the United States—falls squarely within the scope of the statutory phrase ‘techniques or procedures.’”  Knight Institute, slip op. at 39.

The panel explained that “[e]ven if the TRIG questions were ‘guidelines’ rather than ‘techniques or procedures,’” Exemption 7(E) would apply. In particular, USCIS has established that disclosing the TRIG questions would reasonably risk circumvention of the law — “disclosing in advance the specific questions that agents may use to suss out and evaluate connections to terrorism would help those with terrorist ties to tailor their answers to avoid detection.” Knight Institute, slip op. at 39-40 (citing Heartland Alliance Nat’l Immigrant Justice Center. v. Dep’t of Homeland Security, 840 F.3d 419, 421 (7th Cir. 2016) (Exemption 7(E) covered a document listing of lower-level terrorist organizations), and Ibrahim v. Dep’t of State, 311 F. Supp. 3d 134, 143 (D.D.C. 2018) (Exemption 7(E) covers USCIS’s “Refugee Application Assessment”)).

Nor did the TRIG questions lose their protection because they inevitably “become known to applicants when the questions are asked in interviews or mailed to them in Requests for Evidence.”  Such “disclosure” did not satisfy the public domain exception to agency’s powers to withhold documents, as the exception applied only to information that is ‘freely available.’”  Inner City Press/Community on the Move v. Board of Governors of Federal Reserve System, 463 F.3d at 239. 244 (2d Cir. 2006)(quoting U.S. Dep’t of Justice. v. Reporters Committee for Freedom of Press, 489 U.S. 749, 764 (1989)). To prevail on a “prior disclosure” claim, “the requesting party ‘must . . . point[ ] to specific information in the public domain that appears to duplicate that being withheld.’”  Moreover, “information is in the public domain [only] if it is generally available to the public at large, not simply if it happens to be known by select members of the public.”  Knight Institute, slip op. at 41-42.

The panel posited that “an enterprising researcher” could possibly reconstruct the TRIG questions, by identifying a pool of visa applicants, querying them regarding what they were asked, compiling a list of common questions, and then intuiting which of the common questions were designed to identify possible terrorists.  But, the panel noted, the very effort and skill required to do so “itself demonstrates that the information in question is not in the public domain.”  Knight Institute, slip op. at 42-43.

More simply, “the possibility that a savvy law-evader might be able to infer the substance of some withheld documents by carefully observing an agency’s actions does not remove those documents from Exemption 7(E)’s ambit.”  Knight Institute, slip op. at 44.  All the more so when the withheld material does not include a single script but a set of questions to be used “dynamically” by scrambling, adding, removing, or rephrasing the questions in response to the specific situation that agents face. Id. at n.10.

Observations

The panel’s decision seems sound and well-reasoned, though arguably overly textualist.

There is however a basic tension between disclosure of what the government “is up to”[7] and the ability to enforce the law or ensure that the government agencies receive reliable information from those whom they regulate or to whom they provide benefits.  Individuals subject to regulation and applicants for benefits (collectively, stakeholders) are surely entitled to know the law regarding their entitlements.  Indeed, dispersion of suck knowledge is essential for the law to have its intended effect — to enable individuals to conform their behavior to the law,[8] challenge erroneous adverse applications of the law, or provide appropriate information to secure benefits or maintain eligibility for benefits.

At the same time, knowledge of how the government detects unlawful or deceitful conduct by those seeking to violate the law or wrongfully obtain government benefits or forbearance, and the guidelines used to engage in prosecutorial/enforcement discretion, would allow individuals to frustrate regulatory regimes and government programs.  Individuals could tailor their conduct not to comply with requirements, but to avoid government detection of their failure to comply or violate the explicit requirements of laws in ways that do not trigger enforcement.

At the same time, sometimes the law “in action” differs from the law “on the books.” In other words, that law as applied by enforcement official may diverge from the statutes and regulations “on the books.”  This may be viewed as unfortunate, in that it blunts the intended effect of the law.  However, it can sometimes be beneficial, by blunting the harshness of the “law on the books” or simply making it more administrable.  Whether beneficial or unfortunate, the divergence of “the law in action” from “the law on the books” can lead to inequality, as those privy to the “law in action” (i.e.,, the agency’s “working law”),[9] can take advantage of that knowledge to secure favorable treatment, while others not lack such an option.[10]

And in addition, the propriety of the use of certain techniques should, in a democracy, be a legitimate subject of public debate.[11]  For instance, the appropriate uses of government monitoring of social media,[12] government use of undercover operations[13] (inter alia, having agents impersonate journalists),[14] and comprehensive use of Foreign Intelligence Surveillance Act (“FISA”) metadata warrants[15] should be subject to some debate at some level of generality.  Yet the revelation of practices necessary to inform these debates threaten to render those investigative tools less effective in uncovering unlawful or deceptive conduct.

In some ways Knight Institute v. USCIS raises such questions, but in a context unfavorable to advocates for disclosure.  Whether characterized as techniques, guidelines, or procedures, the approaches the agencies sought to keep confidential are designed to prevent terrorists and those that give them aid from entering the country. The severe and sometimes dramatic consequences of facilitating avoidance of government screening presents a particularly unsympathetic case.[16]  Yes, the Knight Foundation certainly has a legitimate concern, that the concern about terrorism might be used as a cover to exclude people who engage in speech and political activities or members of particular ethnic or religious minorities that the particular administration seeks to persecute for its own partisan reasons.  And the Trump Administration’s abusive and cynical use of all sorts of powers, made the Knight Institute’s concern all the more legitimate.  Nevertheless, it seems reasonable for agencies to withhold the type of information and records at issue in Knight v. USCIS.

---

[1] The Knight Institute has uploaded the FOIA Request, the Complaint, and many of the documents filed in the case to its Internet site on the litigation here.

[2] Indeed, given the description of the Foreign Affairs Manual, arguably the State Department must proactively disclose the Manual. 5 U.S.C. §552(a)(1).  Section 552(a)(1) requires each agency to affirmatively disclose: (A) descriptions of its central and field organization and [where and how] the public may obtain information, make submittals or requests, or obtain decisions; (B) statements of the general course and method by which its functions are channeled and determined, . . .; (C) rules of procedure, descriptions of forms . . . and instructions . . .; and (D) substantive rules of general applicability . . ., and statements of general policy or interpretations of general applicability . . ., inter alia.

[3] Perhaps this reading of section 7(E) is correct.  The provision is ambiguous in that the last phrase regarding circumvention could modify the first and second clauses, regarding law enforcement techniques and guidelines, or only the second.  The rule of the last antecedent, embraced by the late Justice Scalia, would comport with the panel’s reading.  See, BRYAN A. GARNER & ANTONIN SCALIA, READING LAW: THE INTERPRETATION OF LEGAL TEXTS (2012).  For a critique of the Garner & Scalia version of the rule, see The Precursors of the Scalia/Garner Canons, LAWnLinguistics (Dec. 3, 2016).  For a discussion of the origins of the rule see The Rule of the Last Antecedent is REALLY Old, LAWnLinguistics (Sept. 25, 2016). Of course, the rule of the last antecedent is not an inexorable command.  See, Payless Shoesource, Inc. v. Travelers Companies, Inc., 585 F.3d 1366 (10th Cir. 2009)(Gorsuch, J.)(rejecting last antecedent rule). 

The D.C. Circuit does not read Exemption 7(E) so precisely, applying the anti-circumvention requirement to “techniques and procedures” as well as “guidelines.”  Mayer Brown LLP v. IRS, 562 F.3d 1190, 1192-93 (D.C. Cir. 2009)(making no distinction between “techniques and procedures” and “guidelines” in terms of the anti-circumvention requirement); Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011)(applying anti-circumvention requirement to “techniques and procedures”).

There is no reason to believe that the need to show a risk of circumvention would fall away simply because the documents involves law enforcement techniques rather than prosecutorial guidelines.  In any event, the foreseeable harm standard codified by the FOIA Improvement Act of 2016, Pub. L. 114–185, §2, 130 Stat. 538 (June 30, 2016), 5 U.S.C. § 552(a)(8)(A)(i)(I), would presumably require the agency to show some harm before withholding a document regarding law enforcement techniques even if the circumvention provision did not modify the law enforcement techniques clause.  Louise Trauma Center LLC v. U.S. Department of Homeland Security, Dkt No. 1:20-cv-01128, slip op. at 14 (D.D.C. April 11, 2022)(anti-circumvention requirement is equivalent to the foreseeable harm requirement in the context of Exemption 7(E)).  In most cases involving potential disclosure of law enforcement techniques and procedures, the only foreseeable harm would be the risk that disclosure of such techniques would allow circumvention (though in some cases it might pose risks of physical danger to law enforcement officials). 

Indeed, given the concerns regarding the employment of law enforcement techniques, and particularly disparate employment of law enforcement techniques, there is all the more reason to avoid interpreting the exemption to provide blanket authorization to withhold information regarding the use of law enforcement techniques.

[4] In Milner v. Department of Navy, 562 U.S. 562 (2011), the Court had rejected the high-2 exemption allowing agencies to withhold documents “related solely to the internal personnel rules and practices of an agency” when the release of such documents would pose a risk of circumvention of the law.  For a discussion of the now-defunct high-2 exemption, see Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C.Cir.1981).

[5] Interestingly, when he was on the D.C. Circuit, Justice Kavanaugh cited the same passage to support a broad interpretation of the term law enforcement purposes.  Public Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary and Water Comm’n, 740 F.3d 195, 198-99, 203 (D.C. Cir. 2014).  

[6] Of course, the term “technical” appears in Lowenstein Project Court’s definition of technique — “a technical method of accomplishing a desired aim.”  The panel commented on this anomaly in a footnote.  It asserted that the term “technical” had been used “parenthetically,” though it is not entirely clear what the panel means by the use of the adjective. 

The panel also asserted that the word “technical” in this context simply means “of or relating to a particular subject,” citing Webster’s Third New International Dictionary (1986). Of course, the panel’s chosen definition is only one of a number of definitions of “technical.”  The primary definition is “having special and usually practical knowledge especially of a mechanical or scientific subject” and “marked by or characteristic of specialization.”  The “of or relating to a particular subject” phrase the panel chose is associated with the following secondary definition “of or relating to a practical subject organized on scientific principles.” Merriam-Webster Online Dictionary (definition of “technical). 

[7] U.S. v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772-73 (1989) (quoting, EPA v. Mink, 410 U.S. 73, 105 (1973)(Douglas, J., dissenting), and Henry Steele Commager, The Defeat of America, THE NEW YORK REVIEW OF BOOKS, Oct. 5, 1972, at 7).

[8] Dirksen v. HHS, 803 F.2d 1456, 1458–1459, 1461–1462 (9th Cir. 1986) (Ferguson, J. dissenting) (the majority’s approach makes “the risk of circumvention . . . indistinguishable from the prospect of enhanced compliance”).

[9] See NLRB v. Sears, Roebuck, & Co. 421 U.S. 132, 152-53 (1975)(using the term “working law”); Electronic Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014)(same); Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980)(“[a] strong theme of our opinions has been that an 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’”).

[10] See, Georgia v. Public.Resource.org, Inc. 140 S.Ct. 1498, 1512-1513 (2020); David Freeman Engstrom, Daniel E. Ho, Catherine M. Sharkey, and Mariano-Florentino Cuéllar, Government by Algorithm: Artificial Intelligence in Federal Administrative Agencies 86-87 (Washington, D.C.: Administrative Conference of the United States, 2020).

[11] See Bernard W. Bell, Secrets & Lies: News Media and Law Enforcement Use of Deception as an Investigative Tool, 59 PITT. L. REV. 749, 755, 799 (1999); Marbury v. Madison and the Madisonian Vision, 72 GEO. WASH. L. REV. 197, 205-06, 217-19 (2003); see generally, American Civil Liberties Union v. Clapper, 785 F.3d 787, 824-25 (2d Cir. 2015)( “[t]he constitutional issues [surrounding the NSA’s bulk metadata collection] . . . are sufficiently daunting to remind us of the primary role that should be played by our elected representatives in deciding, explicitly and after full debate, whether such programs are appropriate and necessary.”). 

The privacy impact assessments required by the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, §208(b) (Dec. 17, 2002)(see legislative background here), and the requirement that they be publicly disclosed, id., can also provide the public with the information necessary to debate the privacy implications of the government’s collection of information.  See EPIC v. Presidential Advisory Committee on Electoral Integrity, 266 F. Supp. 3d 297, 309-10 (D.D.C. 2017), affirmed on other grounds, 878 F.3d 371, 378 (D.C. Cir.2017)(rejecting the EPIC’s “informational” standing argument), cert. denied, 139 S.Ct. 791 (2019).

For a reference to the requirements and the implementation of the privacy impact assessment requirement, see here.

[12] Rachel Levinson-Waldman, Harsha Panduranga, Faiza Patel, Social Media Surveillance by the U.S. Government (Jan. 7, 2020)(Brennan Center for Justice). 

[13] Secrets & Lies, supra note 11; Bernard W. Bell, Theatrical Investigation: White Collar Crime, Undercover Operations, and Privacy, 11 WM & MARY BILL OF RIGHTS J. 151 (2002).

[14] Reporters Committee for Freedom of the Press v. FBI, 3 F.4th 350 (D.C. Cir. 2021).  The case involved efforts to withhold documents related to the FBI’s ultimately unsuccessful attempt to defend its hitherto unknown policy regarding agents impersonating journalist for investigatory purposes.

[15] Edward Snowden’s disclosure of the metadata program in May 2013 prompted significant public debate over the appropriate scope of such government surveillance. In June 2015, Congress passed the USA FREEDOM Act, which effectively ended the National Security Agency’s bulk telephony metadata collection program. Pub. L. No. 114-23, 129 Stat. 268 (codified at 50 U.S.C. § 1861). The Act prohibited further bulk collection of phone records after November 28, 2015.

Three Courts of Appeal have resolved challenges to the legality of the original bulk metadata collection program.  American Civil Liberties Union v. Clapper, 785 F.3d 787 (2d Cir. 2015) (holding metadata program was not statutorily authorized, and avoiding a discussion of the program’s constitutionality); Obama v. Klayman, 800 F.3d 559 (2015)(dismissing challenge to the metadata program on mootness and standing grounds); U.S. v. Moalin, 973 F.3d 977, 994-996 (9th Cir. 2020)(largely adopting the Second Circuit’s view that the metadata program was not statutorily authorized).

[16] The December 2, 2015 shootings in San Bernardino attacks, which left 14 people dead, prompted questioning about the scrutiny of visa applications.  Megan Christie, et al, San Bernardino Attack: Visas, Wives and Terror ABC News (Dec. 9, 2015); see generally, Ben Geman, et al., How a Misleading Story Is Changing Immigration Policy, posted by THE ATLANTIC.  Indeed, candidate Trump adverted to the San Bernardino attack in his call for extreme, extreme vetting. See Read Donald Trump’s Ohio Speech on Immigration and Terrorism, TIME.