00258-foia Request

Electronic

Frontier

Foundation

Pcote"", ",ght, "nct p"'""'\'09 'reed"C' cc "'" Flectcoo"°coC't,ec

January13,2005

Record/Information

Division Investigation

of

Bmeau

W.

N.

Avenue,

Chief

20535-0001

DC McIntyre, Unit Division

A

J.

Washington, Thomas Criminal

FOIAfP

Section

of Justice

Pennsylvania

Department 935

Dissemination

Management

Federal

Records

DELIVERY

Chief

Hardy,

M.

David

OVERNIGHT

VIA FEDERAL EXPRESS

Department

of Justice

Office

of

Infomlation

Director

Deputy

20530-000

DC Ann

Melanie

Pustay,

Washington,

Suite 1127, Keeney Building

and

Department

Privacy

of Justice

Department

Attorneys

States

United

for

Office

Unit

Executive

FOlA/Privacy

Director

Assistant

20530-0001

DC 'Rourke,

0

A.

Marie

Washington,

Suite 570, Flag Building

of Justice

\

INFORMAflON

ACT REQUEST

Act, Foundation

Information

of Frontier

Freedom

the

Electronic

the

under

of

records

behalf

on

agency submitted

is

It

for

Officers:

request ").

("FOIA

a

of Information

constitutes

552

§

.S.C.

U

5

letter

Freedom

This

Dear

OF

FREEDOM

RE:

20530-0001

DC

Washington,

Room 7300,600 E Street,N.W .

("EFF").

454 ShotwellStreet. San Francisco,CA 94110 USA 0

+14154369333

0

+14154369993

0 www.eff.org

0

[email protected]

USA

the

of

wake

the

in

controversy

great

of

matter

a

been

has

surveillance

electronic

The scopeof the federalgovernment'slegal authority and technicalability to conduct

3127.

2

system that affects

18V.S.C.§ 2511(12).

interstate

radio,

wire,

a

by

part

images,

writing,

signals,

signs,

(2001).

107-56

Required

Tools

Appropriate

the

of

disclosure

seeks

therefore

EFF

devices

the

whether

know

to

and

device

pen-trap

a

implicates

which

question,

that

to

answer

an

in

interest

show

to

having

without

web

the

on

reading

I'm

what

see

government

simple

very

public's

the

answer

to

refused

has

DOl

The

URLs

collect

to

authorized

itself

believes

or

collects

it

whether

confirm

not

will

DOl

information")

in

or

whole

in

Providing

by

America

by

public's

the

Yet

devices.

pen-trap

using

routing,

"dialing,

non-content

or

cause,

probable

on

based

order

wiretap

a

requires

which

of

interception

communication,4

electronic

an

of

contenr

the

be

to

")

("URL

Locater

Resource

Unifonn

or

address

web

a

considers

DOl

the

whether

unclear

is

it

example,

For

definitions in the context of Internet communications--whether PATRIOT's amendments--is a mystery to the public.

device,"

trace

or photooptical No.

L.

Pub.

Act,"

privacy.

of

collected

be

the

"Can

question:

were

(4)

and

3127(3)

§

at

definitions

pen-trap

The

order,,).2

("pen-trap

3123

§

under

issued

order

an

for

application")

("pen-trap

3122

§

C.

S.

V.

18

under

application

an

regarding Internet communications

and

of

transfer

1978,

of

Act

Strengthening

protective

cause?"

probable

addressing or signaling information"S ("DRAS

"trap

transmitted

any

means

Terrorism

and

cannot

and

can

that

by PATRIOT

and

photoelectronic

nature

any

Surveillance

Obstruct

adequately

are

used

the most profound constitutional

register"

"pen

electromagnetic,

of

communication'

Uniting

"The

See

I

expanded

of

commerce."

intelligence

and

Intercept

to

of information

definitions

or

2 Records regarding use of pen registers and trap and trace devices authorized under the 50 § 1801et seq.,are outsidethe Intelligence

Foreign

substantially

the

Electronic

'"

4

V.S.C.

in

data,

sounds,

18

used

As

5

types

what

EFF

as

such

advocates

privacy

to

and

public

the

to

unclear

is

it

particular,

In

9/11.

of

wake

the

in

Congress

by

granted

authority

surveillance

expanded

the

using

is

branch

executive

the

how

about

uninfonned

crucially

public

the

left

has

surveillance

electronic

regarding

provisions

PATRIOT

of

interpretation

its

state

publicly

to

("DOJ")

Justice

of

Department

the

of

refusal

The

TRIOT',).I

A

("P

Act

PATRIOT

enforcementagentsusing "pen registers"or "trap andtracedevices"asdefinedby 18 V.S.C.§ 3127(3)and (4) (collectively andalternatively,"pen-trapdevices"),pursuantto mayor may not be gathered by law

§ 216. Yet the DOJ's interpretation of those before or after

pen-traporder basedonly on a certification of relevance. that may be collected with a

Although Internetusersreasonablyexpectthat their online readinghabitsare private,the

rights, is inestimable.

The public has a right to know where the government draws the line between infonnation

V.S.C.

scopeof this request. 3"'Contents', when usedwith respectto any wire, oral, or electroniccommunication, includesany information concerningthe substance,purport, or meaningof that communication." 18V.S.C.§ 2511(8).

or foreign

see 18 V.S.C. §

Federal Bureau of Investigation ("FBI"),

the

DOJ,

the

by

collected

or

prepared

forms,

blank

including

records,

All

following agencyrecords,whetherin whole or in part and whetherin paperor electronic form, and including all recordsin your possessionregardlessof the origin~ting agency: or any U.S. Attorney's

Office in

DOJ's

the

of employee

FBI

or

("CCIPS") DOJ

Section

other

or

Property Attorney

U.S.

Intellectual any

and

by

Crime Division

Criminal

Computer

connectionwith, in preparationfor, or in responseto any inquiry madeto the

time before or after PATRIOT's

enactment,

and includes

any

at

made

inquiries

encompasses

request

This

communications).

"VOW"

regarding the use of pen-trap devices to monitor electronic communications or Internet-based wire communications6 (i.e., "Voice-over-Internet-Protocol" or but is not limited

to

recordsconcerning"prior consultations"with CCIPS made in accordance with the DOJ's U.S. Attorneys' Manual:

that

infonnation

DRAS

constitute

infonnation

of

types

What

a)

particular

Relevant inquiries may include but are not limited to the following:

routing,

dialing,

URLs

"Are

(E.g.,

why?

and

communications,

VOIP

may be collected via a pen-trap device when monitoring electronic or

.S.C.

U

18

by

defined

are

those

as

device,

trace

and

trap

or

register

addressing or signaling infonnation that can be collected using a pen § 3127?")

communications,

and why?!

VOIP

or

electronic

monitoring

when

device

pen-trap

a

via

collected

b) What particulartypesof infonnation constitutecontentthat may not be (E.g.," Are email subject lines 'content' as

providing

of

interstate

or

interstate

foreign

other

in

use

or engaged

person

the

cable,

wire, any

by

(including

of

aid

the

reception

by

of operated

point

or

the

and furnished

transmission

or foreign

18

commerce."

DOJ and FBI employees repeatedly

been

instructed

to

address

(CCIPS)

with

such

.

.htm>

/usao/eousa/foia_reading_room/usam/title9/title9

have

Collecting

of

Division

Consultation

Prior

II Criminal

Capable

the

9-7500,

Orders

of

at at

Trace

Section

AM"} and

Trap available

"

and

Pen

for

("US

Property

Manual

Intellectual

Attorneys'

and

States

Crime

United

.gov


the

affecting

Uniform Resource Locators (URLs), 8

communications origin

of of station)

point switching

for

or communications

Applications

for

facilities

2511(1}.

Computer

See

such

Register

§

the

7

transmission

or operating

communications U.S.C.

a

the

the in

between connection

connection

for

communication'

means any aural transfer made in whole or in part through the

facilities

Wire

'"

of such

of

like

use

6

definedby 18 U.S.C.§ 2511(8)?")

inquiries

to

Intellectual

Property

'content'

should

Section

be

in

the

must

computer

context

3

be

coordinated

(202-514-1026}."

with

Main

and

constitutes

Crime

what

questions

Computer

about

[S]uch

the

questions

to...

Justice

addressed...

"Any

.

CCIPS:

Deputy

or

software

trace

(x)

and

"Is

trap

or

(E.g., register

why?9 pen

and

a

manner

(z)

in

communications,

VOIP

configured

or hardware

(y)

electronic

c) What particulardevicesconstitutepen-trapdevicesin the contextof

by 18 V.S.C. § 3127?")

device, as those are defined

information:

DRAS

or

content

constitute

information

of

types

This requestincludesbut is not limited to inquiries aboutwhetherthe following

. . . .

lines,

addresses,

subject

Email

Email

. URLs, . IP addresses, . Transport

protocols

used,

or

stamps,

date

and

Time

Ports accessed, Communication size in bytes,

the

effective VOIP

or

electronic

regarding

PATRIOT's

after employees

or monitor

to

FBI

before

or devices

DOJ

issued other pen-trap

or

guidance

or

communications,

of

use

Attorneys

directives

U.S.

actual

any

or

to potential

date

All

2.

policy

Any combination of the above

including but not limited to any policy directives or

or

to

DOJ

other

available

or reasonably

Attorneys

U.S.

any "technology

to

issued constitutes

what

guidance

or regarding

directives employees

FBI

All

3:

policy

guidancerelevantto the inquiries cited above.

available

.

at

"Avoiding formerly

Registers

on

and ("CCIPSField

Crime of2001"

Computer Act

CCIPS'

See

CCIPS.

to

inquiries

. such

address

to

instructed

been

have

employees

FBI

and

and

Crime

Computer

the

(202-514-1026)."

to

Relate

context

PATRIOT

That USA

the

in

.

.

contact.

should

in the computer

Authorities

New Enacted

on

Section

Evidence

Guidance

Property

Electronic

"Field

content

constitutes

information

"Agents and prosecutorswith questionsaboutwhethera particular type of

Guidance "), available at DOJ

Pen

.

Intellectual

9

"),

Memo

of

Memorandum Operation

the

2002 Overcollection

in

24,

May 'Content'

of ("Thompson

Devices"

Use

Thompson's

Larry Investigative Trace

and

and

General Trap

and

Collection

Attorney

[a governmentagency]that restrictsthe recordingor decodingof electronicor other impulsesto the dialing, routing, addressing,and signalinginformation

CCIPS' ,.Searching and Seizing Computers and Related Electronic Evidence Issues,"

XXX(C}(1), available at

4

")

514-1026

(202)

at

Section

Property

Intellectual

and

Crime

Computer

("Prosecutors or agents may have questions about whether particular devices constitute pen registers or trap and trace devices, and they should direct any such questions to the

utilized in the processingandtransmittingof wire or electronic communicationsso asnot to includethe contentsof any wire or electronic communications" under 18V.S.C.§ 3121(c).

of

instances

all

and

any

with

connection

in

Office

Attorney's

U.S.

any

All records, including blank forms, prepared or collected by the DOJ, the FBI, or

4,

or

DO]

other

or

of

Attorneys avoidance

U.S.

the

any

on

to policy

issued

FBI

or

guidance

DO]

or regarding

directives

policy

employees

FBI

5

All

"overcollection" ("the collection of 'content' in the useof pen registersor trap and tracedevicesunderchapter206",10i.e., under 18 U.S.C. § 3121 et seq.).

of

FBI

the

use

DOJ,

actual

or

the

by potential

collected

any

or with

prepared connection

forms,

in

blank

Office

including Attorney's

U.S.

records, any

or

6.

All

overcollection and the handling of overcollected content.

§ 3 123(a)(3)(A),

"where

the law

with 18 V.S.C.

accordance

in

prepared

and

collected

records

1.

All

overcollected content, whether for an affirmative investigative purpose or otherwise.11

enforcement

agency

implementing

an ex

parteorder underthis subsection[did so] by installing and using its own pen registeror trap andtracedeviceon a packet-switcheddatanetwork of a provider of electroniccommunicationserviceto the public."

in

collected

or

prepared

records

all

and

present,

the

to

1999

st,

1

January

from

8 All annual reports submitted to Congress as required by 18 V.S.C. § 3126,12

U.S. Attorney's

Office,

whether

before or after PATRIOT's

any

or

FBI,

the

DOJ,

the

by

made

Congress

to

testimony

or

report

other

9..

Any

order to prepare or complete those reports or any future report.

enactment,

pen-

any

regarding

party

any

by

filed

pleadings

legal

and

decisions

court

All

10.

regarding the actual or potential use of pen-trap devices to monitor electronic or VOIP communications,and all recordspreparedor collectedin order to prepare or complete any past or future report or testimony.

trap application seeking or any pen-trap order authorizing the collection of infonnation aboutelectronicor VOIP communications, whether before or after PATRIOT's enactment. This request includes but is not limited to all decisions and pleadings in every case where a pen-trap application sought or a

for

used

be

not

may

content

[overcollected)

that

Memo. Department

this

of

Overco//ection policy

the

is

"[I]t

II

10 Thompson

any affirmative investigative purpose, except in a rare case in order to prevent an immediate danger of death, serious physical injury, or harm to national security." Id. 12"The Attorney General shall annually report to congress on the number of pen register orders and orders for trap and trace devices applied for by law enforcement agencies of the Department of Justice " 18 V.S.C. § 3126.

5

pen-traporder authorizedthe collection of information on a computer network,and everycasewherea private litigant challengedsucha pen-trap order. 13

1. Any agencyrecordscontainingthe following information, for the years1990 to the present: a) The numberof pen-trapordersappliedfor, issued,and/orimplemented, wherelaw enforcementrequestedthe installationor useof its own pentrap deviceto monitor electronicor VOIP communications,whetheron the packet-switcheddatanetwork of a provider of electronic communication service to the public or otherwise. 14

of

number

the

including

target,

surveillance

a

by

visited

URLs

the

collect

b) The numberof pen-trapordersappliedfor, issued,and/or implementedto

a

is

page,



web

while particular

(e.g.,

a

to

ofURLs pointing

portion

URL

complete

specific

those to collect complete URLs, and the number of those to collect only a

reveals only the second-level domain of a particular web site).

c) The numberof pen-trapordersappliedfor, issued,and/orimplementedto collect the IP addresses visited by a surveillancetarget,including the numberof IP addressescollected.

URLs.1S

of

portions

or

URLs

into

translated

readily

be

could

addresses

d) The numberof pen-trapordersappliedfor, issued,and/orimplementedto collect the IP addresses visited by a surveillancetarget,wherethe IP

a

view

to

requests

of

source

the

indicating

information

"tracing

collect

e) The numberof pen-trapordersapplied for, issued,and/orimplementedto

monitored.

were

that

URLs

of

number

the

and

collected,

particular URL",16 including the number of pen-trap orders applied for, issued, and/or implemented for each particular type of tracing information

pen/trapstatute

13"Numerouscourtsacrossthe country haveappliedthe [pre-PATRIOT]

Mag.

re

In

e.g.,

also,

(McMahon,

See 2000)

4,

Feb.

Guidance. Cal.

Field (C.D.

CCIPS 99-2713M

No.

language." Cr.

specific America,

of

telephone States

United

statute's

to communications on computer networks," and "certain private litigants have challenged the application of the pen/trap statute to such electronic communications based on the

J.) (unpublished opinion, available at )

(applying

pre-PATRIOT

~n-trap statute to Internet communications).

4 See 18 § 3123(a)(3)(A). 15Prior consultation with CCIPSis not requiredfor

6

IP

such

if 9-7.500.

at

even USAM

addresses, URLs."

of

(IP)

"applicationsfor pen registerorders

Protocol

16Id.

portions

or

Internet

of

URLs

into

collection translated

authorize readily

be

merely can

would addresses

that

V.S.C.

f) The numberof pen-trapordersappliedfor. issued.and/orimplementedto

of

number

the

monitored.

were

that

addresses

IP

of

number

the

collected.

collect tracing information indicating the sourceof requeststo accessa particular IP address.including the numberof pen-trapordersappliedfor. issued.and/orimplementedfor eachparticulartype of tracing information

affected.

sites

web

or

domains

second-level

of

number

and

site.

the

IP addressesthat hosted more than one second-level domain or web

those

g) The particular types of devices, including hardware and software and collect infonnation

to

devices

pen-trap

as

use

for

Office

Attorney's

U.S.

any

or

FBI,

DOJ,

whether provided by the government or a third-party, approved by the regarding electronic or VOIP communications,

and the

used

was

device

pen-trap

a

where

facilities

of

nature

and

number

The

h)

numberof pen-trapapplicationsthat soughtor pen-trapordersthat authorizedeachparticulartype of device's usefor collection of such information.

would

"facility"

the

telephones,

of

context

the

In

communications.

VOW

pursuant to a pen-trap order to collect infonnation regarding electronic or

monitored

were

communications

monitored. whose

were

that persons

numbers individual

of

telephone nwnber

The

i)

VOW

or

be the particular phone line that was monitored; in the context of the Internet, facilities would include, e.g., particular email addresses,URLs,

as a result of each pen-trap order to collect infonnation regarding electronicor VOIP communications,and the total nwnber of such individuals monitored for each year, including individuals not targeted by an order whose communications were incidentally monitored.

communications,

VOIP

or

electronic

regarding

information

collect

to

pen-trap

order

The numberof individual communicationsmonitoredas a result of each

j)

and the total number of such communications

monitored

monitored.

incidentally

were

communications

whose

order

an

for eachyear,including the communicationsof individuals not targetedby

with

associated

fees

and

media,"

news

the

of

"representative

a

as

qualifies

requester

The

Waiver of Processing Fees

the processing of this request must therefore be "limited to reasonable standard charges

for documentduplication." 5 U.S.C. § 552(a)(4)(A)(ii){II). The requester is a news and

work,

distinct

a

into

materials

raw

turn

to

skills

editorial

it

"uses

and

public"

media organization that "gathers information of potential interest to a segment of the

protection of civil rights and free expression in the digital world. In that role EFF

..,

the

for

advocating

organization,

liberties

civil

member-supported

non-profit)

a

is

EFF

distributes them to an audience." National Security Archive v. Department of Defense, 880 F.2d 1381, 1387 (D.C.Cir. 1989).

publisheseducationaland advocacymaterialsfor its 13,000membersand the public, via a weekly email newsletterand ,one of the most linked-to web sites on the Internet.

the

through

request

FOIA

this

of

result

a

as

disclosed

information

the

disseminate

The recordsrequestedare not soughtfor commercialuse,andthe requesterplansto channels described above.

this

of contribute

to

disclosure likely

is

because seeks

costs

EFF

duplication information

for The

waiver

fee

a

interest.

public

request the

we

in

is

information

Additionally,

Waiver of Duplication Costs

against

fight

the

in

tool

key

a

as

PATRIOT

praised

consistently

has

DOJ

the

Although

significantly to the public understandingof governmentactivity. EFF is a nonprofit 501(c)(3)researchand educationorganizationworking to increasecitizen participationin governanceissues.The requesteris making this requestspecifically to further the public's understandingof the government'suseof its surveillanceauthority within the United States.

Effort while

at

public

the

Balks

inform

Dept. Specifically,

14,2002).

"Justice

adequately

to Clymer,

failed (August

Adam

has Times

e.g.,

DOJ

the

see, York

New

powers,

TRIOT

Powers,"

ofPA

use Antiterror

its Study

to

about

,

terror that does not pose a threat to civil liberties, see, e.g.,

that

cause.

uses

it probable

not

or without

whether

state information

publicly

to

refused

has

content-revealing

other

DOJ or

the URLs

to

justice,"17

collect

to

authority

terrorists

assuringthe public that PATRIOT's expansionof pen-trapauthority to the Internet"has provenaseffective at safeguardingFourth Amendmentvaluesas it hasat bringing

enhancing;

available

PATRIOT privacy-

as

216

4,2003) §

TRIOT

(September

ofPA

Online

That

Claim

Absurd

The

Reason

characterization

Privacy."

DO]'s

Your

(challenging

Increases

Trapped:

"Penned,

Nick

.

Gillespie,

The exactscopeof the DO]' s legal authority andtechnicalability to conductpen-trap surveillanceof Internetcommunicationshasbeena matterof greatpublic controversy sinceevenbeforePATRIOT's passage;newsarticles reflect the strongand continued public interestin the materialsEFF seeksin our request. See,e.g.,

at

);


General

Judiciary,

the

on Attorney

Comm.

11. 2001:

also

See

Assistant

House

after September

Dinh,

the D.

Viet Justice).

of

of

of

Amendment

Constitution

the Department

Policy,

statement

on

and the Fourth

(prepared

Subcomm. (1993)

the

Investigations

Legal

of

28

Before Congo

Office

the

for

108th

Hearing

17Anti- Terrorism

02>

("[S]ection

216

enhancedthe privacy protections in the pen-registerstatute,"a statutewhich provides for "robust

oversight"

of law enforcement

and "ensures

that law enforcement

to collect non-contentinformation aboutterrorists' communications...").

8

will

be able

Less?"

impact

over

Maybe

Or debate

on

Snooping? (reporting

More 2002)

Means

7,

its

including

6,2001)

Law-Enforcement

(December

New PATRIOT,

to

Times

Why objections

Seattle

Wrongs:

and Libertarians,"

"Rights

Civil

libertarians

civil

Worry (discussing

Powers

Kevin

expansion of pen-trap authority to the Internet);

Galvin,

of PATRIOT's

.

Law

"9/11

(September

Cohen,

Times

York

New

Patricia

.

San

Far,"

Too

Goes

Bill

Terror

Say

"Watchdogs

Carrie

Kirby,

expansion of pen-trap authority);

.

Francisco Chronicle (October 25,2001) (noting civil libertarians objections to new surveillance authorities in anti-terror bill, including

the

on

(reporting

Internet

in 21,2001)

Changes (September

Proposed

Over

Times

York

"Concern

New

Carl Surveillance,

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pen-trap authority);

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.

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debateover proposedanti-terrorbill's impact on Internetsurveillance anddiscussingthe Internetpen-trapcontroversy);

Internet

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F.B.I.

By

(discussing

1997)

Plan 11,

(August

Wiretapping Times

York

"Digital-Age New

Opposition,"

John

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Markoff,

System Faces Fire on Hill," The Washington Post (July 25, 2000) (describing controversy over FBI's use of 'Carnivore' to conduct Internet wiretaps and pen-trap surveillance); and

pen-

L

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Nw. (questioning

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many

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materials

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public

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Rev. 607, 639 (2003) (arguing the privacy benefits of PATRIOT's

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pen-trap surveillance in the context of a debate over the

provisionsare setto expire at the end of2005. Both Congressand the public on how PATRIOT powersare currently being usedin orderto fully debatethoseprovisions' renewal,or to advocatefor or againstthe expirationof additionalprovisions.

PATRIOT

by segregable

all

deletions

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need more information

gathered,ratherthan delayingproductionuntil all responsiverecordsare found. EFF is opento negotiatinga modification to this requestwhereproductionof all responsive documentswould be unreasonablyvoluminous.However,EFF reservesthe right to appeala decisionto withhold any information or to deny a waiver of fees. 9

Please also be advised that, by separate letter to Barbara Comstock, Director of Public Affairs for DOJ, we are requesting the expedited processing of this request. Notwithstanding Ms. Comstock’s determination, we look forward to your reply within 20 business days, as the statute requires under Section 552(a)(6)(A)(I). Thank you for your prompt attention to this matter. Please respond to Kevin Bankston, Attorney and Equal Justice Works/Bruce J. Ennis Fellow, Electronic Frontier Foundation, 454 Shotwell Street, San Francisco, CA 94110, telephone (415) 436-9333, ext. 126.

_________________________________ KEVIN S. BANKSTON Attorney and Bruce J. Ennis/Equal Justice Works Fellow Electronic Frontier Foundation cc:

JOSHUA KOLTUN, Counsel for Requester DLA Piper Rudnick Gray Cary US LLP 333 Market Street, Suite 3200 San Francisco, CA 94105-2150 Direct tel. 415-659-7027 Direct fax. 415-659-7327 Main tel. 415-659-7000 Main fax. 415-659-7300

10