N.Y. Times v. DOJ, No. 22-1539, 2023 WL 7305242 (S.D.N.Y. Nov. 6, 2023) (Rakoff, J.)

N.Y. Times v. DOJ, No. 22-1539, 2023 WL 7305242 (S.D.N.Y. Nov. 6, 2023) (Rakoff, J.)

Re:  Requests for records concerning DOJ and FBI’s use of spyware and other digital surveillance products from Israeli technology company, including product used to surveil encrypted communications on smartphones

Disposition:  Granting defendant’s motion for partial reconsideration of court’s grant in part and denial in part of defendant’s motion for summary judgment and grant in part and denial in part of plaintiff’s motion for summary judgment

• Exemption 7(E) & Litigation Considerations:  The court relates that “[t]o establish that Exemption 7(E) applied, the Government’s prior declaration, submitted in support of its motion for summary judgment, simply stated that disclosure of the redacted information would reveal ‘the specifics of FBI programs, technology capabilities (and means for acquisition of technology), and relationships with foreign partners,’ without any further explanation.”  “The Court’s July 7 Order granted plaintiffs’ motion for summary judgment as to these documents, finding that the ‘Government fail[ed] to give any information showing why or how information in the letter to Israel about the NSO technology would reveal anything about law enforcement techniques or investigations, nor does it explain why “potential issues related to relationships with foreign countries” qualifies for withholding under Exemption 7(E).’”  “In support of its motion for reconsideration, the Government has submitted a supplemental declaration explaining in greater detail the reasons why the FBI believes Exemption 7(E) applies.”  “The new declaration states that disclosure of acquisition information and vendor details would risk circumvention of the law in three ways:  ‘First, disclosure would allow potential targets of investigation to hone in on the possible technologies used by the FBI and create countermeasures for such technologies.’”  “‘Second, revealing the specific vendors could harm the vendors, by exposing them as targets for foreign adversaries, or for hostile non-state actors, such as hacktivist groups who oppose the FBI’s use of surveillance technology, even when legally authorized.’”  “‘Such actions not only damage particular vendors, but also may make other vendors reluctant to do business with the FBI.’”  “‘These potential harms to technology vendors diminish the FBI’s ability to acquire commercial software for law enforcement use.’”  “‘Third, criminals and adversaries may also use this information to target the vendors and technology with malware to penetrate FBI information systems during a technology transfer.’”  The court finds that “[h]ad the government included this level of factual detail in its initial motion, it clearly would have been sufficient to sustain application of Exemption 7(E).”  “The Government is entitled to deference in its judgments about national security, foreign relations and whether disclosure of information will risk circumvention of the law.”  “Plaintiffs argue the names of these vendors, and information about how the FBI acquires software, are not ‘techniques or procedures’ within the meaning of Exemption 7(E).’”  “‘But this takes too cramped a view of the meaning of ‘techniques.’”  “The Second Circuit has indicated the term ‘technique’ encompasses ‘a technical method of accomplishing a desired aim.’”
  
  “Notwithstanding the sufficiency of the Government’s supplemental declaration, the question remains whether the Government has demonstrated that reconsideration is warranted.”  “The Government does not argue there has been any ‘intervening change of controlling law’ or that it has discovered any ‘new evidence’ not available at the time of their prior motion, but instead appears to argue that reconsideration is necessary to prevent ‘manifest injustice.’”  “Applying these principles, the Court concludes that reconsideration is appropriate.”  “As noted, the Government has put forward sufficient evidence that disclosure of this information would present risks to law enforcement efforts and national security.”  “But in reaching this conclusion, the Court makes clear that this ruling should in no way be construed as approving the Government’s failure to effectively support its litigation positions in its summary judgment briefing. In the ordinary case, the Government remains constrained by the same rules of procedure as every other litigant and reconsideration would plainly be inappropriate.”  “Only in light of the broader interests at stake, the deference owed to the Government under FOIA, and the fact that this is only the first time the Government has attempted to correct this deficiency is the Court willing to grant reconsideration.”
   
• Exemption 5, Deliberative Process Privilege:  The court relates that, regarding “a single email chain that pre-dates the decision not to deploy the NSO technology[,]” “[t]he Government withheld this email chain in its entirety under Exemption 5 (deliberative process privilege).”  “The July 7 Order agreed that ‘actual “intermediate approvals” by particular individuals or offices that were made prior to the ultimate decision not to proceed’ fell within the Exemption.”  “However, the Order explained that ‘descriptions of “the specific decision-making process” – as opposed to the views actually expressed during that process – [would not be] covered by Exemption 5.’”  “The Order directed the Government to ‘produce any portions of [this email chain] describing “the specific decision-making process”’ or, if the Government concluded no portion could be segregated, to submit the email chain for in camera review.”  “The Government has submitted the email chain for the Court’s review and urges that the entire document should be withheld because the protected portions of the document are not segregable.”  “Having reviewed the email chain, the Court agrees that the entire document is protected.”  “The email chain contains no substantive information that can be practically segregated from the actual intermediate approvals concerning whether to deploy the NSO technology.”