Yahoo Affidavit and Ltr to Usms Re Foia Request Email Surveillance 2009
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ST EP"T 0 E &J 0 ATTORNEYS H NSON LLP AT I.AW 1330 ConnecticUt Avellue. NW Washington. DC 20(J36·1795 Mich<lel T. Cershberg 202:42g.6208 Tel 202,429.}oOO fax 202.4l93902 mgershberg@steproe.com steproe.com , ., September J5, 2009 Via Facsimile and Federal Express Mr. William E. Eordley Associate General CounselfFOIPA Officer Office of Genera) COWlSel United States Marshals Service 600 Army Navy Drive Arlington, VA 222024210 Dear Mr. Bordley: Re: Freedom of Information Act Request No. 2009USMS13662 This letter is submitted on behalf of our client, Yahooi Inc. ("'Yahoo!"). and in response to your letter to Yahoo! dated' August 25, 2009, regarding a request for release of information under the 'Freedom of Information Act (HFOIA"). Pursuant to 28 C.P.R. § 16.8(1), Yahoo! submits- this objection to the disclosure of its business information. The information described below is confidential c~mmercial information and therefore covered by Exemption 4 to the FOIA and the Trade Secrets-Act, 18 V.S.c. § 1905. The FOIA request at issue seeks release of information detailing the amount of money paid by the U.S. Marshals Service (HUSMS") to Internet-based service providers to compensate . . .. . - - . for the cos! of ~esP.QI!dlI1gJo la~_~1fQ~·~eltt~lJ,t~:~qll~tSjpU·~QQf.(:ts,_ USMS._has_determinedJhaJ . _._.--_.- --- ---Yahoof's cost reimbursement policy, which is part of the Yahoo! Compliance Guide for Law Enforcement, may be responsive to this request. Yahoo! assumes that the single page included in the Notice to Submitter of Busines$ Infonnarion is the only information submitted by Yahou! to USMS that the.agency is contemplating releasing pursuant to this FOIA request. If this is not the case, please let us know immediately so that we may fonnally object to any additional disclosure. Any other Yahoot submissions that USMS may consider responsive to this FOlA request are also confidential or law enforcement-sensitive and therefore exempt from disclosUIC. Information contained in this letter is customarily kept confidential by Yahoo!. Moreover, release of this letter would likely cause substantial competitive harm to YabOQ! as well as impair the goveinment's ability TO obtain information necessary for making appropriate: decisions with regard 10 future FOIA r~qLlesls. Accordingly, this letter is protected from public WASHINGTON • NEW YORK • CHICAGO • PHOE,\,IX • lOS IINGF.lES • CENTURY CIlY • LONDON • BRUSSELS I . I : I i Mr. WiJJiam E. Bordley September 1'5, 2009 page 2 STEPTOE &JOHNSONLl' release by FOIA Exemption 4 and the Trade Secrets Act. In the event the USMS either receives a request for disclosure of this letter, or otherwise considers making a decision to release it, we .req~est immediate notice of such request or decision, at least ten working days prior to any release. ANALYSIS I. Exemption 4 Applies to Yahoo! '8 Cost Reimbursement Policy Exemption 4 of the FOlA pr91ccts ''trade secrets and commercial or financial information obtained from a person {that is} privileged or confidential" from disclosure under the FOlA.] Thus, in order for infounation in federal agency records to fall within the· second broad CategOl y of Exemption 4, it must be: (1) commercial or financial; (2) obtained from a person; and (3) privileged .or confidential. Yahoo!'s cost reimbursement policy meets all three criteriaA. "Commercial or Financial" . If infonnation reIates to busine.ss or trade, it is "commercial or fmandal." These terms are to be given their "ordinary me.anings.,,2 Therefore, recor~ are commercial a~ long as the . submitter has a "commercial interest" in them. 3 Under this standard, Yahoo~'s cost infor.ination and is clearly "commercial" information. Yahoo! certainly has a commercial interest in its cost and pricing data, which courts have repeatedly found to constitute commercial information. "Unquestionably, information relating to pricing and technical designs constitutes commercial or fmandal information within the meaning of the exemption.,,4 Yaboo!'s cost reimbursement rates are also derived from its labor rates for . the relevant employees, plus overhead. This information is within the scope of Exemption 4.5 J . 5 U.S.C. § 552(b)(4). ..... .. . .~·Pub- Citiz.en Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. CiT. 1983) -- _._._. --.. -----·-TCiliiIg WilSll. PosfCo~ -V:-HHS~-690-F2(r252~2ob·(D:C~Cii~-19-82),-an(1 B(CorTradev~-··-·_- - ..._-- -- - --Commodity Futures Tradine: Cornm'!-~, 627 F.2d 392,403 (D.C. Cil'. 1980» (preventing discJos~e of confidential data [roIl! ;:;Enicaltests). . 3 !d. 4 Landfairv. U.S. Dep't of AmlV, 645 F. Supp. 325, 328 (D.D.C. 1986)~ see also. e.g., . Cortez III Servo Corp. v. NASA, 921 F. Supp. 8 (D.D.C. 1996) (fmding cost data to be confidential commercial infonnation). 5 See McDonnell Douglas Com. v. NASA, 180 F.3d 303 (D.C. Cir. 1999) (preventing release of labor rates and overhead figures under Exemption 4). Mr. William E. BordJey September 15, 2009 page 3 B. STEPTOE &jOHNSONm "Obtained From a Person" The requirement that the information be "obtained from a person" is also met here. The term "person" refers to a wide range of entities, including corporations and other business organizations. 6 As a corporation, Yahoo! is considered a "person." . c. ''Privileged or Confidential" As noted in USMS' August 25 letter, the "confidential" prong of the third requirement L'3 analyzed under two separate standards, either of which is sufficient to satisfy tlle requirements of Exemption 4. First, under the long-s.randing test set forth in National Parks & Conservation Ass'n v. Morton: Commercial or t1nancial maner is "confidential" for plUposes of the exemption if disclosure of the information is likely to have either of the following effects: (I) to impair thc.Govemmenfs ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained. 7 . . Second, in Critical Mass Energy Project: v. NRC, the D.C. Circuit amended the National Parks test for cases in. which the submission to a federal agency is voluntary. Under this test, . informmion is' protected by Exemption 4 if it is voluntary submitted to an agency and it is of a kind that the submitter "customarily" would not disclose to the public. 8 The test was left unchanged in cases of compelled submissions. Specifically, Critical Mass af:fillned the National Parks test ~or "determining the confidentiality of information submitted under compulsion," but was aDnoundrig a categorical rule [or me protection of information provided OJl a voluntary bashl. 9 . _ , Yahoo! submitted its cost rClInbursement policy to .USMS voluntarily and satisfies the Critical Mass standard for determining confidentiality. Moreover, even if USMS were 10 conclude that this infonn~tjon were not submitted voluntarily for pmposes of the Critical Mass test, the infonnatio~ would still satisfy the National Parks standard. Therefore, Yahoo!'s ip:((m:~atio~.is ~~:v~r.t:~ ~y ~?'C:Tl?ptj~l~ 4. .. . , .. _ . ------------_ ... - -~~----- See. e.g., Nadler v. FDIC, 92 F.3d 93, 95 (2nd Cir. 1996) (tenn "person" includes "an individual, partnership, corporation, association, or public Or private organization other than an agency" (quoting defInition in Ad;Ulinistrative Procepure Act,S U.S.C. § 551(2))). 6 7 National Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). 8 Critical Mass Energy Project v. NRC. 975 F.2d 871, 879 (D.C. Cir. 1992) (en bane), cert. denieg, 507 U.S. 984 (1993). . 9Id: Mr. WilliamE. Boniley september ] 5, 2009 page 4 1. STEPTOE &JOHNSONLl.I' Critical 2'vfass St.andard As stated above, in Critical Mass, the D.C. Circuit held that information is '''confidential' for the purpose of Exemption 4 jf it b of a kind that would customarily not be released to the public by the person from whom it was obtained."lo The threshold inquiry under this analysis IS whether information was submitted t.o a government agency voluntarily or whether it was co~pelled. Although the D.C. Circuit did rlot defIne a "voluntary" submission of infonnation, the U.S. Deparlment of Justice has issued policy guidance on this issue. Specifically, the relevant inquires are the foHowing questions: "Did the agency hold tJle legal authority to require that information submission and, if so, did it in fact exercise that authority in obtaining that information?,,11 While goveminent agencies exercise legal authority to collect infomlation in various ways, the "key question l.)Ilder Critical Mass is whether those who choose to participate in the activity have information-submission requirements placed upon them as a lawful condition of their participation in that activity or an ageney;s related administrative process:,12, If a . submitter is under no obligation to provide the information, then it is considered to be submitted voluntarily. The second question in DOl's policy guidance is equally important, however. "Under Critical Mass, it i~ possible that an agency might hold the authority to require submission of . certain information, but not have exercised that authority.... Such unexercised authority, or the mere 'power to compel' certain submissions, does not constitute an enforced 'requirement'which leaves any submission that is made under those circumstances an entirely "voluntary" Oue ,,13 . . . '. Under this standard, Yahoo! $ubmitted its cost reimbursement policy voluntarily. Yahoo! distributes this information to law' enforcement agencies in various ways. It periodically dis?,ibutes this infonnation as part of its "Compliance Guide for Law Enforcement"'(and updates thereto) exclusively to law entities, Licluding various law enforcement agencies on its ma.iling list. It also sends the Compliance Guide to law enforcement agencies thaL are not on its mailing ~-..:.'-=.:..:.' '-=-=-=-=:,-::::,,:,·.l!§L~~t h~~~_requ.-!:.~~~(l~_J;QPY..: - 'Y..ahoQ.L~_so vol~m1AriIy.Q~strJbuteLth~.Q9mpJiaIt~Quide tQJ..'!-w ~~'_'':'':'~_:':''::'' enforcement agencies through the N<1tional Center for Missing and Exploited Children ("NCMEC") and through law enforcement t;raining sessions and conferences. See enclosed 10 Jd. 11 FOIA Update, Vol. XIV, No.2, at 6~7 ("Exemption 4 Under Critical Mass: Step-ByStep Decisionmaking"). . 12 Id. 13 Id. _ Mr. William E. Bordley September 15,2009 page 5 STEPTO E &)OHNSON IV b (,0 Affidavit 0 at '1f 5. Yahoo!' s Compliance Guide for Law Bnforcement, whieh includes the cost reimbm'sement policy, is sent to law enforcement agencies that may deal with Yahoo! to provide advance information about Yahoo!'s policies and a rough guide to cost~ that may be billed to these agencies for Yahoo!'s costs incurred responding to legal process. .. . . I This cost reimbursement policy is not provided to agencies along with Y aboo!' s bills OJ . invoices for responding to legal process. It is not sent as part of, or in relation 10, any transaction with a government agency. Rather, Yahoo! distributes the infonnation on a purely voluntary basis as advance notice and guidance to law enforcement agencies. It is not sent in response to a government mandate or as a condition [0 participating in any activity. USMS does not require Yahoo! to submit such data in order to seek reimbursement for compliance costs, and has not requested the infonnation in this context. USMS simply has hot placed any infonnationsubmission requiremel1t on Yaboo! in any way, and provision of the cost reimbursement polic)' to the USMS was not a condition to participating in any transaction or activity. See Affidavit of t16. Moreover, even ifUSMS possessed the legal authority to compel submission ofYahoo~'s cost reimbursement policy, it did not exercise such authority in this case. U S M _ e . rmation by regulation, subpoena, or any informallllandate. See Affidavit 0 r7. Therefore, this case is similar to Critical Mass itself, in which the D. . lIcua at e unexercised "power to compel" rendered a submission voluntary. 14 . b (P . Since Yahoo!'s cost reimbursement policy was voluntarily submitted, it is protected under Exemption 4 as "confidential" iilfonnation as long as "it is of a kind that would customarily nofbe reI~ased to tlle public by the person from whom it was obtained."lS This standard has uniformly been interpreled to refer to the treatment that the specific submitter affords the information, not the treatment afforded similar infonnation by the industry as a . . whole. J6 Applying this standard, the cosr reimbursement policy must be treated as confidential because Yahoo! does not customarily relea..c;e this information to the public. Yahoo! does not disclose compliance or cost reimbursement data· to the public and has a. policy against doing so. --:~:- -_:::'=':'='_:::==::=:~This-irtfoi'nlatiorns ·provideaoiitside.. .on:he. cOinpany- oilly t<nawenfOi'CCmclitagencies_wjth.-_-=-=·~-_-:..~ '_" '_-'~_'.:"-See Critical Mass, 975 F.2d m 880 ("Nor do we see any reason to interfere with the NRC's exercise of its own discretion in determining how it can best secure lhe infonnation it . , needs."). 14 15 rd. at 879. . 16 See id. at 872, 878-90; see 3}:;0, g., etr. for Auto Safety v. NJITSA, 244 F.3d 144. 148 (D.C. Cir. 2001) (emphasizing that "in assessing customary disclosure, the court will consider how the particular party cusT.omarily treats the infonnation, not how the industry as a whole treats the infonnation"). Mr_ William E. Bordley STEPTOE &JOHNSON.LlP September 15, 2009 page 6 which Yaboo! deals. Yaboo!) s Compliance Guide for Law Enforcement, inclusive of the cost reimbursement policy, is explicitly marked with a warning1hat the information is not to be t CJI. 4. b fp distributed outside law enforcement agencies. See Affidavit 0 Yahoo! receives requests for assistance from many different law enforcement agencies, all of whom rely on Yahoo! 's strict policy of maintaining confidentiality about how it works with law enforcement We believe that th.is policy serves the public interest, and we will continue to abide by it. For these reasons, the information at issue here satisfies the Critical Mass test for confidential infonnation, and is therefore protected from disclosure under Exemption 4 of the FOJA. 2, National Parks Standard The analysis above establishes that Yahoo!'s cost reimbursement policy is "confidential" within the meaning of Exemption 4 under the Critical Mass.test However, ifUSMS were to. determine that the Critical Mass test is inapplicable because the infonnatioll was not voluntarily submitted (and there is no basis fa! such a conclusion), it should still be consid~red confidential information covered by Exemption 4 under the. National Parks tests. As noted' above. the National Parks test is e~pJicitly di~j1lllctive; information will be . . considered confidential'; and therefore within the scope of Exemption 4; if jt satisfies ~i1her one . of test's two parts. The fIrst part is ~'1own as the '·impairment prong," while the second part is known as the "competitive harm prong." Yahoo~' s cost reimbursement policy satisfies both prongs of the test. - . a. Impairment Prong The impairment prong applies 111 situations, such as here, in which disclosure under the .FOIA would lead to the submissio\l of less complete information. Yahoo! provides its cost reimbursement policy, and its entire Cumpliance Guide for Law Enforcement, voluntarily lO law _ . _.e.n.fQ:r::c.ement_agencies,_sueh.as.USMS,.tO..assist.the agencies.in.their planning and. to proYide '" _ _ -_....-- -- _.. .. - ---them 'with a guide- as to p"6feiitialcompfiance'COSIS associatcd witli IDvest1gatioil.- However, -_ - -..,-.-. - - .. Yaboo! is not required to submit this infonnation in order to seek reimbu.rsement for compliance costs. Nor is Yahoo! required to provide detailed information regarding its services and data retention policies to assist law enfor~emen[ with hlternet-based investigations. If Y MOO! kne~ that this type of voluntarily submitted cost and compliance data would be publicly disclosed, it') incentives would change. YalIoo! may conclude that the benefits That eome from providing . educational and training material t.o law enforcement entities, namely that they cm better plan ·how and when to use legal process in Internet investigations appropriately, arc outweighed by the potential for criticism and competitive harm. Mr. William E. Bordley September 15,2009 page 7 hU STEPTOE &)OHNSONIIP Federal courts have recognized that Exemption-4 applies in instance.~ where disclosure of information might encourage parties to be less forthcoming in their submissiom 17 or in order to "foster[] the provision of full and accurate infonnation."~8 These court decisions demonstrate that release -of information such as the cost information would place on Yaboo! a disincentive to the fullest, most detailed compliance-related data. See Affidavit o( J 1_ IIIIIIIrt~8. tJ~ -==- p Therefore, the govennnenf s interest in collecting compliance-related infonnation is bet.t served by protecting Yaboo!' s cost reimbursement data from disclo~UIe.J9 To release this information would impair USMS' ability Lo gather the most complete data possible. In addition, if the USMS were to disclose this cost data, then Intemet·based service providers would doubt the confidentiality of similar data submitted to other federal law enforcement agencies. That would neg3tiveJy affecL the government's ability to collect complete information from a wide range of companies and submissions. b. Competitive Harm Prong Under the "competjtive ~arm prong," it is not necessary to show actual competitive hann. This prong requires only "actual competition and a likelihood of /Substantial competitive injury:. ,,20 To show coJT1pet~tiveharm, the FOIA requires only a reasonable discussion of the !I'See; e.g., FlightSafety Sen's. v. Dep't of Labor. 326 F.3d 607,612 (51b Cir. 2003) (per curiam) (protecting data because disclosure "presents a serious risk that sensitive business information could be attributed to a particular submitting business [and such] attribution would indisputably impair [the agency's] future ability to obtain similar infonnation flom businesses [that) provide it Wlder an explicit undersTanding that such information will be treated confidentially"); Bowen v. FDA. 925 f.2d 1225, 1228 (9th CiT. 1991) (protecting information upon which agencies relied heavily and would be less likely to obtain if businesses feared that jt _ _ _w_ould be m!3-d~J?~1?~~. .__ - 18 Afr. Fund v. Mosbacher, No. 92-289, 1993 WL 183736, at *7 (S.D.N.Y. May 26, 1993) (pr9lecting information submitted with export license applications). 19 See Judicial Watch, Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19,30 (D.D.C. 2000) ("The government has a compelling interest in ensuring that the infonnation it receives is of the highest qUality and reliability, and disclosure of potentially sensitive commercial and fInancial information, even where submissions of infommtion are mandatory, wouldjeop~di7.ethe Bank's ability to rely on such information thar is submitted.',). 20 CNA Financial Corp. v. Donovan, 830 F.2d 1132, 1152 (D.C. Cir. 1987), celt. deT)iec~ 485 U.S. 977 (1988). - Mr. William E. BordJey September 15.. 2009 page 8 STEPTOE &JOHNSONu.p n likelihood and nature of harm that could result from disclosure.: Competitive harm has even been found in cases where some of the infolmation at issue is already publicly available. In one case, the federal district court for the District of Columbia stated that infonnation made available in a different context because of overseas markcting is "different," and that fact "does not 22 diminish {the submitter's} claim of competitive commercial hann from disclosure.n . First, Yahoo! is in direct, actual competition wjth other providers of Jnternet-based services such email and search engines. Yaboo! competes with other providers for users and advertisers. Second, Yahoo! will suffer substantial competitive injury if its cost data and compliance policy infonnation is relf:£lsed. As courts have often held, the release of cost, overhead, and labor rate information (or data from whieh such information may be derived) is 13 likely to cause competitive harm. Moreover, the FOIA request itself demonstrates the requester's own expectation that disclosure of this data will cause injury to Yahoo! and its reputation. -In the FOIA request, Mr. Soghoian refers to his blog, http://paranoia.dubfltc.net. A quick review of this blog indicates that Mr. Soghoian "use[s] this blog to shame the corporations that continue to do harm to user online· privacy.',24 He goes on to describe the intent of FOIA requests like the one at issue here: "Wc need transparency, sunshine, and som~ accountability. If users realized how often their data is disclosed to police, and how often it occurs without a warrant or . . . 'See GC Micro Corn. v. Defense Logistics Agency, 33 F.3d 1109, 11 J5 (9th Cir. 1994) (n {T} he law does not require {agency} to engage in a sophisticated economic analysis of the substanti~ c:=ompetitive harm ... that might result from disclosure"); Pub. Citizen Health Research Group. 704 F.2d at 1291 ("Under the second prong of this test .. _the court need not conduct a sophisticated economic analysis of the likely effects of disclosure."). • ·2) 22 Pub. Citizen Health Research Group v. FDA, 997 F. Supp. 56,66 (D. D.C. 1998), affiJJl1ed in part and reversed in pall Oli other grounds, 185 F.3d 898 (D.C.Cir. 1999); see also Martin Marietta C01p. Y. Dalton, 974 F. Supp. 37, 40 (D.D.C. 1997) (holding that a prior limitccl . release of infonnation does not "lessen the likelihood that {the submitter} might suffer eompetitiv.e.har:m..Jf_i.t_.is_disclosed_agai.l~ ....th.is-time-at--the-behest-ef-aslmowledged·conunercial---- _ . . ----.-.-. .---- adversarIes"i.---- . -- -- .._.----_.-----.-----. . ... . 23 .'0 • - - -_.. • •• - - ---.-- - - _ •• - - _... --- -- - - • •-- ••• See McDonnell Douglas Corp. v. NASA, 180 F.3d 303 (D.C. CiT. J999) (holding thaI. release of labor rates and overhead figures could case competitive harm); Westinghouse EIeclric Corp. v. Schlesinger, 542 "F.2d 1190, 1198 (4P1 Cir, 1976) (affinning decision not to disclose information that would allow competitors to perform cost-price analysis); Canadian Commercil~ Corp. v. U.S. Dep't of the Air FOl~ce, 514 F.3d 37 (D.C. Cir. 2008) (ordering agency not to disclose cost and price data submined in a contract bid because of likelihood of competitive harm). 24 http://paranoia.dubfire.net/(Aug. 17,2009). - . - - - •• - Mr. William E. Eardley September 15, 2009 page 9 STEPTOE &jOHNSONLLP any judicial oversight; many would be shocked. So -- if you work in the privacy, legal or policy department of a major Intemet provider (as I know a few of my readers do), consider this your warning. You either need to come clean voluntarily, or the infonnation will be forced out. ... My fITst avenue of attack will be via a number of FOIA requests [] -- if that fails. I'll have to ramp things up a bit. The currel?-t level of secrecy is simply not acceptable.'t25 It is reasonable to assume from these comments that the infonnat.ion. if disclosed, would be used to "shame" Yaboo! and other companies -- and to "shock" their customers. Therefore, release of Yahoo!'s infonnation is reasonably like.ly to lead to impairment of its reputation for protection of user privacy and security, which is a competitive disadvantage [or technology companies. The Trade Secrets Act Prohibits Disclosure of Yahoo! 7S Cost Data ll. It is well settled that under the Trade Secrete; Act, 18 U.S.c. § 1905, the government may not disclose information that falls within FOIA Exemption 4?6 Thus, "whenever a party succeeds in d~monstrating that materials fall within' Exemption 4, the government is precluded from releasing information by. virtue of the Trade Secrets Act...27 As explained above, the confidential commercial information Yahoo! seeks to protect from disclosure comes within FOIA Ex.emption 4. Consequently, disclosure afthat infonnation by USMS would violate the Trade Secrets Act. ID. Yahoo!'s Cost Reimb~rsementPolicy Is Not Responsive to the FOIA Request Finally, while USMS need nor reach this issue based on the foregoing analysis, y:ahoo I believes that its cost reimbursement policy is not responsive to the FOIA request. The request solicited "infomiation detailing the amolmt of money paid by the U.S. Marshals Service to major providers of Internet based services" and '''price lists' detailing the standard prices for various fonus of surveillance.,,28 The information at issue, however, expressly states that the data are The actual amounm invoiced by 2S . http://paranoia.dubfrre.net/search?updated-max=2009-06-24T15%3A57%3AOO· ----.-_... 04%3AOO&max=resu1ts=:5-(:Tttne-H)~009). .... _-..- .. _.- .. - ...._..._--. . ...-'-.-...--.-.--..-_.-26 See,~, 'McDonnell Douglas Corp. v. U.S. Dep't of the Air Force, 375 F.3d 1182, '1185-86 (D.C. Cir. 2004) ("The Trade Secrets Act ... the scope of which is at least coextensive with Exemption 4, effectively prohibits an agency from releasing infOlmation subject to the exemption." (internal citations omitted)); sec also McDonnell Douglas Corp. v. WidnalI, 57 F.3d 1162, 11~4 (D.C. eir. 1995). 27 Wldnall, 57 F.3d at 1164; accord Canadian Commercial Corp., 514 F.3d at 39. 28 Letter from Christopher Soghoian to U.S. Marshals Service regarding FOIA Request (June 25, 2009). STEPTO E &Jo H r~ SO N LL' Mr. William E. :Bordley September 15,2009 pag~ 10 Yaboo! do not appear in this document. Therefore, these data do not detail the actual amounts USMS paid to Yaboo! for responding to law enforcement requests. Nor does this information constitute a price list or other detailing of standard prices invoiced to USMS. As Yahoo!'s infonnation makes clear. there are no standard prices for these transactions. Moreover, the page number on !.he bonom of the cost reimbursement policy, the Roman numbering of the chapter, and the positioning of the policy on t1;le page, indicate that it is part of a larger document. Were Yahoo!'!,; dala to be disclosed, this implicit infomls6ou would necessalily be disclosed as well. This additional infolmation is not responsive to the FOIA request, however, and its release would be prejudicial to Yahoo!. It would forcseeably lead to an effort to obtain the larger document (that is, Yahoo!'s Compliance Guide for Law Enforcement) either through additional FOIA requests or through oth~r means, something !.hal is inappropriate and beyond the scope of the original narrow request. Accordingly, Yaboo! 's C05t reimbursement poliey is not directly responsive to the ForA request, and should not be disclosed independently of Exemption 4. CONCLUSION , For all the above reasons, release of Yahoo!'s cost reimbursement policy is not pennitt~:d under the FOJA. We appreciate your detailed consideration of the preceding legal analysis. Jf yOll have any questions, please do not hesitate to contact me at '(202) 429-6208. Respcctfi~ny submitted, ~{J~--Michael T~ Gershberg Counsel to Yahoo! Inc_ Enclosure: ' Affidavit of .- bCo Affidavit 0 I, Cio hereby declare as follows: t Yahoo! !nc. ("Yahoo!"), which is a publicly listed U.S. company ea quarter at 1 lrst Avenue, Sunnyvale, California 94089. Yahoo! is a global Internet business and consumer services company offering a comprehensive branded network ofproperties and services such as email, a search engine, and social media sites. 1. t Yahoo! for eleven years. One ofmy current responsibilities as s managing a team ofparalegals and legal assistants who respond p reque or u scriber infolmation. During this time I have beconle familiar with the policies and procedures for the handling of confidential commercial information. o 3. I am providing this affidavit in connection with tbe U.S. Marshals Service's ("USMS") Notice to Submitter of Business Infolmation, sent to Yahoo! on August 25,2009. The infonnation at issue is Yaboo!'s cost reimbursement policy for responding to law enforcement " requests, which is part ofthe Yaboo ~ Compliance Guide for Law Enforcement. 4. Because bfthe potential for competitive harm, Yahoo! has an established business practice of keeping confidential all commercial or financial information of111e type contained in its cost reimbursement policy. This information is not customarily released to the pUblic. In fact, it is only distributed to law enforcement agencies, and Yahoo! has a policy against distributing such information to any party outside of law enforcement. The document containing Yaboo!'s cost" reimbursement policy is' clearly marked as follows:" . This compliance guide is designed to assist Jaw enforcement in understanding Yahoo!'s policies and practices with regard to retention and disclosure of electronic infonnation and to provide answers to frequently asked questions related to subpoenas and other legal process. The policies and procedures in this guide are subject to change without notice, and this document is not meant to be distributed to individuals or organizations that are ·not law enforcement entities~ including YahOD! customers, consumers, or civiJ litigants. (emphasis in original) .. . _. ... .. 5. Yahoo! voluntarily provided its cost reimbursement policy, as part of its Cornpliance Guide, to USMS. Yahoo! periodicallY distributes its Compliance Guide to various law enforcement agencies on its mailing list Yahoo! also voluntarily distributes the guide to law enforcement agencies through the National Center for ::v1issing and Exploited Childr~l1 ("NeMEC") and through Jaw enforcement training sessions and conferences. In each instance, this information if: provided voluntarily and restricted to law enforcement personnel. 6. Yahoo! does not submit its cost reimbursement policy to law enforcement agencies along with its invoices for responding to legal process. The transmission oftbis information does not occur in connection with any transaction with a government agency. Law enforcement agencies do not require Yahoo! to submit such data ill order to seek reimbursement for reporting costs, and to the best ofmy knowledge: USMS has not requested the information in that context. Page 1 of2 '" " 7. Yahoo! does Dot provide its cost reimburSeJ.nent policy to any government agency in response to a request pursuant to any legal authority. In particular, this information has not been submitted to USMS }JU!suant to a statute, regulation, subpoena, or other legal requirement. Nor has the information been submitted pursuant to an infoImal mandate, or as a requirement of, o~ condition to, any activity or interaction. 8. IfUSMS decides or were ordered to disclose Yahoo!'s cost reimbursement policy, it would impair the government's ability to obtain similar information in the future. Yahoo! voluntarily submits this information to USMS and other law enforcement agencies with the reasonable expectation that it will be kept confidential and not released to the public. IfYahoo!'s cost reimbursement policy were disclosed to the public, then Yahoo! might have a disincentive to submit the same or similar cost and compl.iance-related informa~on to USMS or other law enforcement agencies in the future. Such result. would directly impair the govemment's ability to obtain complete and accm-ate infOl1nation, as Yahoo! might decide not to pro,\'ide its entire Compliance Guide to government entities. I declare under penalty ofpeIjury that the foregoing is true and correct. Executed this 14th day of September 2009. e t • • • • • ,• • J.:~~ ;0 i ",' ~., .' Irs' Page 2 of2 t e •••• f~ Commlt;slon" 173?lS9 Notcry PYbIJe • Call'omlQ Santo ClarO coun~ty ~ ~ ~~~~j,2011 • qw'" • 0 ANN MARIE f>H,Ofl GUt ERREZ t·~iR