Case 1:19-cv-02578 Document 1 Filed 08/27/19 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109

Case No.

Plaintiff,
v.
DEPARTMENT OF HOMELAND SECURITY
245 Murray Lane, S.W.
Washington, DC 20528,
Defendant.
COMPLAINT FOR INJUNCTIVE RELIEF
1.

This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,

for injunctive and other appropriate relief. Plaintiff seeks the expedited processing and release of
records that Plaintiff requested from Defendant Department of Homeland Security, and its
components Immigration and Customs Enforcement and Customs and Border Protection,
concerning the agencies’ use of Global Positioning System (“GPS”) tracking devices on vehicles
entering the United States.
PARTIES
2.

Plaintiff Electronic Frontier Foundation (“EFF”) is a not-for-profit corporation

established under the laws of the State of California, with offices in San Francisco, California and
Washington, D.C. EFF is a donor-supported membership organization that works to inform
policymakers and the general public about civil liberties issues related to technology, and to act as
a defender of those liberties. In support of its mission, EFF uses the FOIA to obtain and disseminate
information concerning the activities of federal agencies.
3.

Defendant Department of Homeland Security (“DHS”) is an agency of the

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Executive Branch of the United States Government. DHS is an “agency” within the meaning of 5
U.S.C. § 552(f). Immigration and Customs Enforcement (“ICE”) and Customs and Border
Protection (“CBP”) are components of Defendant DHS.
JURISDICTION AND VENUE
4.

This Court has both subject matter jurisdiction over this action and personal

jurisdiction over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(C)(i). This Court
also has jurisdiction over this action pursuant to 28 U.S.C. § 1331.
5.

Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C.

§ 1391(e).
BACKGROUND
6.

On September 28, 2018, the Department of Justice (“DOJ”) submitted a filing in

United States v. Ignjatov, a criminal case involving the government’s attachment of a GPS tracking
device to defendants’ vehicle at a port of entry without a warrant. No. 5:17-cr-00222-JGB, Dkt.
No. 125 (C.D. Cal. filed Sept. 28, 2018). In the filing, DOJ stated that ICE Homeland Security
Investigations (“HSI”) and CBP both had policies that permitted border agents “to install GPS
trackers on any vehicle at the border without a warrant so long as the GPS monitoring did not
exceed 48 hours.” Id. at *5-6 (internal citations omitted).
7.

DOJ also submitted a declaration from Matthew C. Allen, Assistant Director for

the Domestic Operations Division for ICE HSI. Allen Declaration, Dkt. No. 125-1. In his
declaration, Assistant Director Allen stated that it was “HSI’s policy” to allow a customs officer
to install a GPS tracking device on a vehicle at the border without a warrant or individualized
suspicion. Id. at ¶ 4. Allen further stated that HSI believed its policy was consistent with the
Supreme Court’s decisions in United States v. Jones, 565 U.S. 400 (2012), and United States v.
Flores-Montano, 541 U.S. 149 (2004). Id.
8.

The Ignatov case involved two defendants who entered the United States from

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Canada in a truck on October 20, 2017, and were under investigation for drug trafficking. Dkt. No.
121, at 2 (C.D. Cal. filed Aug. 24, 2018). While at the port of entry in Port Huron, Michigan, an
HSI agent and/or a CBP agent, at the request of the FBI and Los Angeles Police Department
(“LAPD”), placed two GPS tracking devices on the defendants’ truck and trailer. Id. Investigators
then tracked the GPS devices for nearly 48 hours as defendants drove from Michigan to California.
Id. at 2-3.
9.

After their arrest, defendants filed a motion to suppress, asserting that the

government’s warrantless use of GPS tracking devices violated their Fourth Amendment rights.
Dkt. No. 86 (C.D. Cal. filed May 11, 2018).
10.

On August 24, 2018, the court issued an order granting defendants’ motion to

suppress. Dkt. No. 121. The court cited Jones, and held that the government’s warrantless search
was unreasonable. Id. at 9. The court further found that the actions of the FBI and LAPD agents
who requested the warrantless GPS tracking “create[d] a scenario of significant government
misconduct.” Id. at 12.
11.

Several media outlets reported on the filing. 1
EFF’S FOIA REQUESTS
ICE FOIA Request 2019-ICFO-21210

12.

In an email dated November 5, 2018, Plaintiff submitted a request under the FOIA,

5 U.S.C. § 552, to ICE for records pertaining to the agency’s policies and procedures regarding
the use of GPS tracking devices at the U.S. border (“November 5 ICE FOIA”).
13.

The request sought two categories of records: (1) Policies and/or procedures

regarding the use of GPS tracking devices on vehicles crossing the border; and (2) Training
1

See, e.g., Cyrus Farivar, Feds to judge: We still think we can put GPS trackers on cars entering
US, Ars Technica (Oct. 6, 2018), https://arstechnica.com/tech-policy/2018/10/feds-to-judge-westill-think-we-can-put-gps-trackers-on-cars-entering-us/; Tim Cushing, DHS Investigators Argue
the Border Warrant Exception Covers Searches Performed Miles from the Border, TechDirt
(Oct. 11, 2018), https://www.techdirt.com/articles/20181009/10483840803/dhs-investigatorsargue-border-warrant-exception-covers-searches-performed-miles-border.shtml.
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manuals and/or training materials on the use of GPS tracking devices on vehicles crossing the
border.
14.

Plaintiff’s FOIA request sought expedited processing and also formally requested

that it not be charged search or review fees for its request because EFF qualifies as a representative
of the news media pursuant to the FOIA and 28 C.F.R. § 16.10(b)(6). Plaintiff further requested
that it be granted a waiver of all fees related to its request because disclosure of the requested
information is in the public interest within the meaning of 5 U.S.C. § 552(a)(4)(A)(iii) and 28
C.F.R. § 16.10(k)(l).
15.

On November 15, 2018, ICE acknowledged receipt of the request in two separate

letters. One of the letters stated that ICE determined that Plaintiff is a media requester and, as a
result, would not be charged duplication fees for the first 100 pages of responsive documents. The
letter did not make any determination regarding Plaintiff’s request for a waiver of all fees or
expedited processing of the request. The other letter stated that because some of the requested
information was stored by CBP, ICE would also forward the request to CBP.
16.

By letter dated March 11, 2019, ICE sent a final response stating that a search of

ICE HSI produced three pages, but that all three pages would be withheld under Exemption 7(E).
The letter went on to state that “disclosure of certain law enforcement sensitive information
contained within the responsive records could reasonably be expected to risk circumvention of the
law” and that “techniques and procedures at issue are not well known to the public.” The letter did
not provide any description of the withheld information sufficient to allow Plaintiff to determine
whether ICE has properly withheld information under the specific FOIA exemption.
17.

On April 18, 2019, Plaintiff timely filed an administrative appeal challenging ICE’s

withholding of records under Exemption 7(E) and the adequacy of ICE’s search for records. The
appeal argued that ICE had failed to provide details as to why the responsive records risk
circumvention of the law, and further stated that the techniques and procedures of the use of a GPS
tracking device are widely known to the public and have been the focus of the Jones Supreme
Court decision.
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18.

To date, ICE has not responded to Plaintiff’s administrative appeal.

19.

Plaintiff has exhausted all applicable administrative remedies with respect to its

November 5 ICE FOIA.
20.

ICE has wrongfully withheld the requested records from Plaintiff.
CBP FOIA Request CBP-OFO-2019-008804

21.

On November 5, 2018, Plaintiff submitted a request under the FOIA, 5 U.S.C. §

552, to CBP through its online FOIA portal for records pertaining to the agency’s policies and
procedures regarding the use of GPS tracking devices at the U.S. border (“November 5 CBP
FOIA”).
22.

The request sought two categories of records: (1) Policies and/or procedures

regarding the use of GPS tracking devices on vehicles crossing the border; and (2) Training
manuals and/or training materials on the use of GPS tracking devices on vehicles crossing the
border.
23.

Plaintiff’s FOIA request sought expedited processing and also formally requested

that it not be charged search or review fees for its request because EFF qualifies as a representative
of the news media pursuant to the FOIA and 28 C.F.R. § 16.10(b)(6). Plaintiff further requested
that it be granted a waiver of all fees related to its request because disclosure of the requested
information is in the public interest within the meaning of 5 U.S.C. § 552(a)(4)(A)(iii) and 28
C.F.R. § 16.10(k)(l).
24.

By letter on November 7, 2018, CBP acknowledged receipt of the request. The

letter also recognized Plaintiff as a media requester and, as a result, stated CBP would not charge
duplication fees for the first 100 pages of responsive documents. Also on November 7, 2018, CBP
fully granted Plaintiff’s fee waiver request through a determination posted to the online FOIA
portal.
25.

On November 8, 2018, CBP denied Plaintiff’s expedited processing request

through a determination posted to the online FOIA portal.

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26.

To date, CBP has not responded to Plaintiff’s initial request since its November 8,

2018 denial of expedited processing.
27.

Plaintiff has exhausted all applicable administrative remedies with respect to its

November 5 CBP FOIA.
28.

CBP has wrongfully withheld the requested records from Plaintiff.
CAUSES OF ACTION
Count 1
Violation of the Freedom of Information Act for Wrongful
Withholding of Agency Records - November 5 ICE FOIA

29.

Plaintiff repeats and realleges paragraphs 1-28.

30.

Defendant DHS and its component ICE have wrongfully withheld agency records

requested by Plaintiff by failing to disclose records responsive to Plaintiff’s FOIA request.
31.

Plaintiff has exhausted all applicable administrative remedies with respect to

Defendant’s wrongful withholding of the requested records.
32.

Plaintiff is entitled to injunctive relief with respect to the release and disclosure of

the requested documents.
Violation of the Freedom of Information Act for Wrongful Denial
of Requests for a Waiver of All Processing Fees - November 5 ICE FOIA
33.

Plaintiff repeats and realleges paragraphs 1-32.

34.

Defendant DHS and its component ICE have wrongfully denied Plaintiff’s request

for a waiver of all processing fees by failing to comply with the statutory time limit for responding
to Plaintiff’s requests.
35.

Plaintiff has exhausted all applicable administrative remedies with respect to

Defendant’s wrongful denial of Plaintiff’s requests for a waiver of all processing fees.
36.

Plaintiff is entitled to injunctive relief with respect to its requests for a waiver of all

processing fees.

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Count 2
Violation of the Freedom of Information Act for Wrongful
Withholding of Agency Records - November 5 CBP FOIA
37.

Plaintiff repeats and realleges paragraphs 1-36.

38.

Defendant DHS and its component CBP have wrongfully withheld agency records

requested by Plaintiff by failing to comply with the statutory time limit for responding to Plaintiff’s
FOIA request.
39.

Plaintiff has exhausted all applicable administrative remedies with respect to

Defendant’s wrongful withholding of the requested records.
40.

Plaintiff is entitled to injunctive relief with respect to the release and disclosure of

the requested documents.
REQUESTED RELIEF
WHEREFORE, Plaintiff prays that this Court:
1. Order Defendant DHS, and its components ICE and CBP, to process immediately the
requested records in their entirety;
2. Order Defendant DHS, and its components ICE and CBP, upon completion of such
processing, to disclose the requested records in their entirety and make copies available to
Plaintiff;
3. Order Defendant DHS, and its component ICE, to grant Plaintiff’s requests for a
waiver of all processing fees;
4. Provide for expeditious proceedings in this action;
5. Award Plaintiff its costs and reasonable attorneys’ fees incurred in this action; and
6. Grant such relief as the Court may deem just and proper.

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Respectfully submitted,

DATED: August 27, 2019

DAVID L. SOBEL
D.C. Bar No. 360418
Electronic Frontier Foundation
5335 Wisconsin Avenue, N.W.
Suite 640
Washington, D.C. 20015
(202) 246-6180
SAIRA HUSSAIN
JENNIFER LYNCH
(admitted in California)
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
(415) 436-9333
Attorneys for Plaintiff
ELECTRONIC FRONTIER FOUNDATION

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