A federal judge has determined the government does not have to release records related to its investigation into WikiLeaks. The judge indicated the court was “persuaded” there is a “criminal investigation.” The government had provided “sufficient specificity” as to the investigation’s status and a “sufficient explanation as to why the investigation is of long-term duration.”
The Electronic Privacy Information Center (EPIC) submitted a Freedom of Information Act request for records on “individuals targeted for surveillance” for their support or interest in WikiLeaks. They requested records of any lists of names of people placed on lists for their support or interest in WikiLeaks. They requested records of communications with Internet or social media companies on any lists of individuals who have shown support for WikiLeaks.
The organization also requested records on any communications with financial services companies, including Visa, MasterCard and PayPal, on lists of individuals who have donated money and shown support for WikiLeaks.
When EPIC failed to obtain the records, the organization sued the FBI and the Justice Department’s National Security Division (NSD) and Criminal Division (CRM).
Even though there were records released related to Twitter litigation involving “customer account information” for Chelsea Manning, a WikiLeaks spokesperson, Jacob Appelbaum and WikiLeaks editor-in-chief Julian Assange, EPIC is not entitled to the release of records with “investigatory techniques” similar to techniques in the Twitter litigation. That may “reveal information regarding the scope of this ongoing multi-subject investigation.” [PDF]
The records are exempt from release, according to Judge Barbara Rothstein, because they were related to the “unauthorized release of classified material on the WikiLeaks website.” Such files are “obviously related” to the FBI and CRM’s duties to “enforce criminal laws and to protect against national security threats.”
Defendants FBI and CRM have filed seven declarations in this case, three of which were filed ex parte and in camera. David Hardy from the FBI states that “responsive records are contained in files pertaining to the FBI’s investigation of the disclosure of classified information that was published on the WikiLeaks website.” Similarly, John Cunningham from CRM states that “the responsive records in the possession of the Criminal Division are all part of the Department of Justice’s investigation into the unauthorized disclosure of classified information that resulted in the publication of materials on the WikiLeaks website.” [emphasis added]
Rothstein adds that defendants’ search for documents “has not produced documents” because “there are no surveillance records for individuals, who ‘simply support’ or have interest in WikiLeaks.”