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Exhibit 4

Exhibit 4

Case3:10-cv-04892-RS Document44 Filed03/30/12 Page1 of 16


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U.S. Department of Homeland Security500 12 th Street , SW, Stop 5009W as h ing ton , D C 20536-5009

September 29, 2011 U.S. Immigrat iona n d C u s t o m sE n f o r c e m e n tMS. JENNIFER LYNCHELECTRONIC FRONTIER FOUNDATION454 SHOTWELL STREETSAN FRANCISCO, CA 94110RE: ICE FOIA Case Num ber 2011FOIA13220Dear Ms. Lynch :This is the final response to your Freedom of Information Act (FOIA) request to Federal Bureau of. Investigations (FBI), dated September 28, 2010. You are seeking all agency records created on orafter January 1, 2001 (including, but not limited to, electronic records) discussing, concerning, orreflecting the following:1. any problems, obstacles or limitations that hamper the FBI's current ability to conductsurveillance on communications systems or networks including, but not limited to, encryptedservices like Blackberry (RIM), social networking sites like Facebook, peer-to-peer messagingservices or Voice over Internet Protocol (VoIP) services like Skype, etc.;2. any comm unications or discussions with the operators of commu nications systems or networks(including, but not limited to, those providing encrypted communications, social networking, andpeer-to-peer messaging services), or with equipment m anufacturers and vendors, concerningtechnical difficulties the FBI has encountered in conducting authorized electronic surveillance;3. any comm unications or discussions concerning technical difficulties the FBI has encountered toobtaining assistance fro m non-US -based operators of communications systems or network, or withequipment manufac turers and vendo rs in the conduct of authorized electronic surveillance;4. any communications or discussions with the operators of comm unications systems or networks, orwith equipment manufa cturers and vendors, concerning developm ent and needs related to electroniccommunications surveillance enabling technology;5. any comm unications or discussions with fo reign government representatives or trade groups abouttrade restrictions or import or export controls related to electronic communications surveillance-enabling technology ;6. any briefings, discussions, or exchanges between FBI officials and memb er of the Senate or houseRepresentative concerning implementing a requirement for electronic comm unications surveillance-enabling technology, including, but not limited to, proposed amendments- to the Comm unicationsAssistance to law Enforcement Act (CALEA).A search of the FBI fo r records responsive to your request produced twe lve (12) pages of docum entsthat originated from U.S. Immigration and Customs Enforcem ent (ICE). The FBI referred thesedocuments to ICE for review and processing under the FO IA.

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http://www.ice.gov/http://www.ice.gov/


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Your request was processed under the FOIA 5 U.S.C. 552. Af ter a review of the records referredby the FBI, I have determined that portions of the documents will be withheld pursuant to Title 5U.S.C. 552Title (b)(6), (b)(7)(C) and (b)(7)(E) of the FOIA as described below.ICE has applied Exemptions 6 and 7(C) to protect from disclosure e-mail addresses as well asthe last four digits of the direct phone numbers of DHS employees and third parties containedwithin the documents.FOIA Exemption 6 exempts from disclosure personnel or medical files and similar files the releaseof which would cause a clearly unw arranted invasion of persona l privacy. This requires a balancingof the pu bli c's right to disclosure against the indiv idua l's right privacy. The types of documentsand/or information that we have withheld may consist of birth certificates, naturalization certificates,driver license, social security numbers, home addresses, dates of birth, or various other documentsand/or inform ation belong ing to a third party that are considered personal. The privacy interests ofthe individuals in the records you have requested outweigh any minimal public interest in disclosureof the inform ation. An y private interest you may have in that inform ation does not factor into theaforementioned balancing test.Exemption 7(C) protects records or inform ation compiled for law enforcem ent purposes that couldreasonably be expected to constitute an unw arranted invasion of person al privacy. This exemp tiontakes particular note of the strong interests of individuals, whether they are suspects, witnesses, orinvestigators, in not being unw arrantab ly associated with alleged crimina l activity. That interestextends to persons who are not only the subjects of the investigation, but those who may have theirprivacy invaded by having their identities and information about them revealed in connection withan investigation . Base d upon the traditional recognition of strong privacy interest in lawenforcem ent records, categorical w ithholding of information that identifies third parties in lawenfor cem ent records is ordinarily appropriate. As such, I have determ ined that the privacy interest inthe identities of individuals in the records you have requested clearly outweigh any minimal publicinterest in disclosure of the inform ation. Please note that any private interest you may have in thatinformation does not factor into this determination. The types of documents and/or information thatwe have withheld could consist of names, addresses, identification numb ers, telephone numbers, faxnumb ers, or various other documents that are considered personal.ICE has applied Exemption 7(E) to protect from disclosure law enforcement systems checks,techniques and/or procedures used during an investigation.Exemption 7(E) protects records com piled for law enforcement purposes, the release of whichwould d isclose techniques and/or procedures for law enforcem ent investigations or prosecutions, orwould disclose guidelines for law enforcement investigations or prosecutions if such disclosurecould reasonably b e expected to risk circumvention of the law. I determ ined that disclosure of lawenforcem ent systems checks, m anuals, checkpoint locations, surveillance techniques couldreason ably be expected to risk circumven tion of the law. Ad ditionally , the techniques andprocedures at issue are not well known to the public.You have the right to appeal our withholding determination. Should you wish to do so, you mustsend your appeal and a copy of this letter, within 60 days of the date of this letter to: U.S.Immigration Customs Enforcement, Office of Principal Legal Advisor, U.S. Department ofHomeland Security, Freedom of Information Office, 500 12 t h Street, SW, Stop 5009, Washington,D.C. 20536-50 09, follow ing the procedures outlined in the DH S regulations at 6 C.F.R. 5.9. You r

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http://www.ice.gov/http://www.ice.gov/


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envelope and letter should be m arked "FOIA A ppeal." Copies of the FOIA and DHS regulations areavailable at www.dhs.gov/foia .Provisions of the FOIA and Privacy A ct allow us to recover part of the cost of complying with yourrequest. In this instance, because the cost is below the $14 minimu m, there is no charge. 1If you need to contact our office about this matter, please refer to FOIA case num ber2011FOIA1322Q. This office can be reached at (202) 732-0600 or (866) 633-1182.

Catrina M. Pavlik-KeenanFOIA OfficerEnclosure(s): 12 pages

6 CFR 5.11(d)(4). www. ice .gov

http://www.dhs.gov/foiahttp://www.dhs.gov/foiahttp://www.ice.gov/http://www.ice.gov/http://www.dhs.gov/foia


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ALL IHF0PHATIOB" COBTIKEDHERE II P IS D N C L A S 3 I T I E 5D ATE 0 5 - 1 3 -2 0 1 1 BY (b) (6 ) , ( b )(7 )c

Electronic Surveillance Capability AssessmentResults

ICE 2011FO IA13220000001(b)(6), (b)(7)c



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1.0 OverviewIn support of the Federal Bureau of Investigation's (FBI) "Going Dark" initiative, the LawEnforcement Executive Forum requested the Law Enforcement Support and InformationManagement (LESIM) Technical Operations Unit (TechOps) collect Information about caseswhere investigations have been negatively impacted by communications carriers' delay inimplementation, interruption partial compliance, or non compliance with a lawful electronicsurveillance order. Also, information was collected about cases where electronic surveillancewas not considered dw to lack of technical capability. This was accomplished by sending anElectronic Surveillance Survey and a Records Request Survey to all Special Agent m Charge(SAC) offices.2.0 Report from SAC OfficesThe followingoffices have reported that investigations have been negatively impacted by one ormore of he above criteria or those listed in the surveys. Where applicable, the redacted surveysare attached. Other results are listed beiow.2.1 SAC AtlantaSee attached survey.22 SAC BuffaloSee attached survey.23 SAC HonoluluThe Airport Office reported delays as long as three tofourmonths in receiving resultsforallsubpoena requests served on T-Mobile and Cricket Communications.Resident Agent in Charge (RAC) Guam reported that wired/wireless communication companieson Guam are not Communications Assistance for Law Enforcement Act of1994 (CALEA)compliant Agents have heard that there has been a cooperative effort by the Federal Bureau ifInvestigation (FBI), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF% DrugEnforcement Agency (DBA),U.S. Marshals and the U.S. Attorneys Office toforcea dialoguewith the companies on Guam (GTAn^Docon&iConnect) oaddress this issue. Agentsbelieve that ICE needs to engage this group and recommend that Marianas Cable Vision (MCV)be added to the list of companies that needs to be CALEA compliant. MCV now offers Voiceover IP phone service.24 SAC MiamiSee attached survey.2.5 SAC New YorkSee attached survey.

- 2 - ICE 2011FOIA13220000002(b)(6), (b)(7)e



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2.6 SAC PhoenixAssistant Special Agent in Charge (ASAC) Yuma repented that a significant number of theirtargets use Mexican Nextel phones.


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IC E 2011FOIA13220000001(b)(6), (b)(7)c



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ELSUR Noncompliance Incident Report Comments Page

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A I L F B I MFORHATIOH COHTAIBEDHEREIN IS URCUSSimoDATE 0 5 - 1 3 - 2 0 B T ( b ) ( 6 ) , ( b ) ( 7 ) c

Electronic Survetitence Caotbility Assessment ResponseSS^b)(6), (b)(7)JtAC/Ft. Plaice18AUgOlt2009

On 26 January 2009,1fexeda Customs Summons to Comcast requesting: "Any and allrecords regarding the name, service and/or billing address; connection records or recordsofsession times and durations; length of service (inclining start date) and types ofservice utilized; telephoneor instrument number (including MAC Address) or othersubscriber number or identity including any temporarily assigned network address; meansand source of payment for such service (including any credit card or bank accountinformation)for he account utilizing IP address (b)(7)e cm 22 January 2009 at 3:18pm Eastern Standard Time."On 6 February 2009, Comcast faxed back aresponse(an apperentform etter, dated 28January 2009) advising their logfileswere, "either incomplete or contained an error"resulting in Comcast's inability to identify the subscriber. On 6 February at 3:16 PM, Ileft a message requesting a call back using the number provided on the response letter. Idid notreceive a call back.On 10 Februaty 2009,1 contacted (b)(6), (b)(7)c , Legal Coordinator, Comcast LigalResponse Center, 856-3246) (b(4)(6), (b)(7)ceviewed the response and advised she could not tell. She stated that inorder to daftmntneifthiac was incompletethe technician who performed die lookup. I request contact with the unidentifiedtechnician who never called m$D)(6), (b)(7Ctated that there was likely a problem Unking theIP address to tbe modem's MAC address. She fluthecstated that when this occurs, the IPaddressand associated modem is disabled, causing the subscriber to contact Comcast toresume service with a new IP adiess, meaning that the same problem shouid not occur inthe She suggested sending another summons with different dates.On 11 February 2009,1foxeda Customs Summons to Comcast requesting: "Any and allrecords regarding the name, service and/or billing address; connection recordsor recordsof session timesand durations; length ofservice (including start dale) and ypesofservice utilized; telephone or instrument number (includingMAC Address) or othersubscriber numberor identity including any temporarily assigned network address,* meansand sourceof paymentforsuch service (Including any credit card or bank accountinformation)for he accounts) utilizing IP address (b)(7)e on thefollowingdatesand times: 26 November2008 at 7:24 am MST, 2 December 2008 at 6:40 am MST, 3December2008 at 6:53 MST, 22 December2008 at 12:48 pm MST, 30 December 2008at 6:11 am MST, 3 January 2009 at 12:06 pm MST, 6 January 2009 at 5:42 am MST, 13January2009from10:24 am MST to 2:40 pm MST, 20 January 2009 at 5:49 am MST,22 January 2009 Horn 3:00 pm EST to 5:30 pm EST."On 17 February 2009, Comcastfexedback a response (dated 13 February 2009) advisingtheir log fileswere, "either incompleteor contained an error" resulting in Comcast'sinability to identify the subscriber. I again contacted (b)(6), (b)(7)c who advised that Iwould need a date after the original summons issued to Concast as tbe subscriber wouldhave been required to call in to register the modem.

IC E 2011FOIA13220000009(b)(6), (b)(7)c



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Electronic Survcilltnce Cacability Atsesiraa* ftespcnseSS fb)(6), (b)(7))(6), (b)(7jhat the subjcct was online at that momentfrom he same IP address andthat I would send an updated summons.On 19 February 2009, a Customs Summonswas faxed to Comcast requesting: "Any andail records regarding the name, service and/or billing address; connection recordsorrecords of session times and durations; lengthof service (Including start date) and typesofservice utilized; telephone or instrument number (including MAC address) or othersubscriber number or identity including any temporarily assigned network address(including current IP address); means and source of paymentforsuch service (includingany credit card or bank account information) for the accounts) utilizing IP address

(b)(7)e from 10 February 2009 at 3:51pm EST to present."On 25 February 2009, Comcastfoxedback a response (dated 20 February 2009)including the subject's subscriber information, but no IP history or logs. I contacted(b)(6), (b teqoesting the IP logstbxe), (b)(7fefend the matter to her supervisor who advisedthat the language in the summons did not include the term "IP history". I directed herattention to the language, "connectionrecordsor records of session times and durations"The supervisor (name unknown) advised that in Comcast's opinion, "connection recordsor records of session imesand durations"did not include IP history. I asked if I neededto send them yet another summons for the IP history.The supervisor advised that in thissingle instance, she would comply with the summons in hand.On 27 Febmary 2009,1received he IP history logfromComcast The log indicated thatthe subject was issued the same IP address, (b)(7)e from 28 August 2008 to 26Febmary2009. The IP log contradicted information provided by the Comcast LegalResponse Center regarding Comcast's ability to identify the subscriber. It does not appearthat the subscriber was ever disconnected andforced o contact Comcast On its face,there does not seem to be a e a s o nforComcast'sfailure o return the informationrequested in the original summons.

ICE 2011FOIA13220000010(b)(6), (b)(7)c



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