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FBI, FOIA, iPhones & Terrorism

On September 30, 2017, Judge Tanya S. Chutkan of the United States District Court for the District of Columbia granted the FBI’s motion for summary judgment in a case brought under the Freedom of Information Act (FOIA) relating to an agreement with a technology vendor who assisted the FBI in unlocking an Apple iPhone 5C used by Syed Farook, one of the perpetrators of a terrorist attack that took place in San Bernardino, California, in December 2015. Plaintiffs, the Associated Press and two other news organizations, each filed FOIA requests seeking the identity of the vendor and the purchase price paid to the vendor.

Judge Chutkan found that the FBI properly invoked FOIA Exemptions 1, 3, and 7(E) with respect to the vendor’s identity. FOIA Exemption 1 protects from disclosure records that are classified pursuant to an Executive Order. FOIA Exemption 2 protects from disclosure information that has been specifically exempted by statute.  FOIA Exemption 7(E) protects from disclosure records or information compiled for law enforcement purposes.

Judge Chutkan agreed with the FBI’s argument that release of the vendor's identity could be reasonably expected to cause harm to national security interests by limiting the FBI's present and future ability to gain access to suspected terrorists' phones. The plaintiffs did not dispute that the records related to the vendor were compiled to further the law enforcement investigation into the San Bernardino terrorist attack. Release of the vendor's identity would risk disclosure of a law enforcement technique and create a reasonably expected risk of circumvention of the law.

The court found application of FOIA Exception 4, which protects "trade secrets and commercial or financial information obtained from a person and privileged or confidential," to be improper with respect to the purchase price for the hacking tool. The FBI failed to demonstrate that the vendor actually faced competition over current or future contracts. Even if the agency’s assertion about potential future competition was sufficient to show actual competition, the court found that disclosure of the purchase price would be unlikely to cause substantial competitive injury to the vendor.

Nonetheless, the court found that the FBI properly invoked FOIA Exceptions 1, 3, and 7(E) with respect to the purchase price. Releasing non-public details like the purchase price could allow potential targets to put together building blocks of information that would result in the degradation of the effectiveness of intelligence gathering tools, which in turn could give rise to the development of countermeasures by hostile entities that could cause circumvention of the law. Although the plaintiffs argued that these risks had already been created by then-FBI Director James Comey’s public comments about the purchase price, these comments did not amount to an official disclosure that compelled the release of the requested information over the FBI’s valid exemption claim.

Lexis subscribers can access the opinion at: AP v. FBI, 2017 U.S. Dist. LEXIS 161516 (D.D.C. Sept. 30, 2017)

Lexis Advance subscribers can find the opinion at:  AP v. FBI, 2017 U.S. Dist. LEXIS 161516 (D.D.C. Sept. 30, 2017)

Author:  Hans Thielman, Lexis-Nexis Case Law Editor

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