Veterans Administration Inspector General Demands Whistleblower Documents Submitted To Government Watchdog Group

from the the-First-Amendment-is-no-match-for-our-subpoena-powers dept

Tue, Jun 10th 2014 1:56pm — Tim Cushing

The ongoing investigation on the Veterans Administration's ineptitude and abuse may soon be able to add exposed whistleblowers to its collateral damage. The VA's Inspector General has made the unprecedented move to subpoena documents turned over anonymously to independent, non-profit watchdog group Project On Government Oversight (POGO).

The Department of Veterans Affairs' in-house watchdog has demanded that the Project On Government Oversight turn over all information it has collected related to abuses and mismanagement at VA medical facilities, according to a subpoena delivered to POGO May 30.

The subpoena from the VA Office of Inspector General demands all records POGO has received from current or former VA employees, as well as any other individuals, including veterans. The subpoena asks for records related to "wait times, access to care, and/or patient scheduling issues at the Phoenix, Arizona VA Healthcare System and any other VA medical facility."

While on one hand, the information the IG is seeking is exactly the sort of data it needs to complete its investigation, the larger issue is the subpoena's potential to undermine the confidentiality promised to whistleblowers who submitted documents through POGO's VAOversight.org website. Nearly 700 people have turned over information to POGO's secure dropbox since the site's launch in early May. POGO advised submitters to take steps to maintain their anonymity when submitting (using TOR, not submitting docs from work phones, computers or fax machines, etc.) and all submissions were sent as encrypted messages.

Now, with a simple administrative subpoena -- one that isn't even signed by a judge -- all of this protection is being removed. Anyone who failed to take preventative measures, or might be traced back via other means, can now be exposed by the IG's efforts.

The current administration talks a lot about transparency and the importance of whistleblowers in keeping the government in line, but its actions have completely contradicted its spoken assurances. This administration has prosecuted more whistleblowers than all other administrations combined. Those who may be swept up by the IG's investigation include many who tried to alert the government of the VA's problems through proper channels, but turned to a third party when their grievances went unanswered.

POGO is fighting this subpoena and has sent a letter to the VA Inspector General apprising him of its non-compliance.

Our unwillingness to comply with the subpoena is consistent with our long history of protecting sources who come to our organization. POGO has consistently refused to turn over information and/or records about our sources, investigations, and practices when government agencies, Congress, and parties in civil and administrative cases made such requests, including requests made pursuant to a subpoena. POGO has always taken the position that the First Amendment protects POGO's right to protect the whistleblowers, sources, and insiders who come to us with information or assist in POGO’s investigations.

The letter further points out that there's little reason to believe that the Inspector General doesn't already have access to the sort of information its seeking.

The IG's office has provided no basis to suggest that the information possessed by POGO as a result of its investigation of the VA is not already available to the IG, including through the VA IG "hotline." Accordingly, the administrative subpoena is little more than an invasive fishing expedition.

The IG's subpoena also highlights a quick and dirty way to undermined protective measures. Peter Van Buren at Firedoglake points out that subpoenas like this make extra efforts like encryption completely worthless.

Edward Snowden, along with many others, has said that the best tool right now to defeat the NSA and other government spying is the use of encryption. It is possible that some forms of encryption are not breakable by the NSA. It is likely that breaking other forms of encryption is slow and/or expensive to do on a world wide web-scale. It is a race of course, between how many supercomputing algorithms the NSA can throw at the problem and the cleverness of the people creating new forms of better encryption.

If the government can access documents and information with a simple piece of paper– a subpoena– then all the encryption in the world is pointless.

This is part of the government's interpretation of the Third Party Doctrine, one that has made the Fourth Amendment almost completely useless.

DOJ has turned all that around. It claims now that under the Fourth Amendment, it can subpoena an Internet company such as Facebook and demand they look for and turn over all the records they have about Mr. Anderson. DOJ isn’t searching, per se– they are demanding Facebook do that for them, so no warrant is needed. Worse yet, DOJ believes it can subpoena multiple records, maybe all the records something like Facebook has, with one piece of paper. The same thing applies, DOJ claims, to email. If they came to someone’s home and demanded access to that person’s emails, it would require a specific search warrant. Instead, if DOJ issues a subpoena to say Google, they can potentially vacuum up every Gmail message ever sent.

So, while encryption may stymie the interception of communications, it doesn't do much good when the government arrives with a piece of paper asking for the unencrypted end result of these communications, especially one that is self-issued by the Inspector General with no additional legal scrutiny. POGO encrypted submissions but the IG's subpoena asks for everything its collected in unencrypted form ("fully legible and complete copies of the records"). The assurances given to anonymous whistleblowers by POGO are as meaningless as the assurances given to users of Lavabit's encrypted email service. The government doesn't mind much if you encrypt the "middle," because it can always just ask for stuff at either end.

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Filed Under: administrative subpoena, inspector general, investigations, subpoena, va, veterans administration, watchdogs, whistleblowers
Companies: project on government oversight

28 Comments

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Anonymous Coward, 10 Jun 2014 @ 2:06pm

Cue espionage act charges in 3. 2. 1.
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Anonymous Coward, 10 Jun 2014 @ 2:17pm

"demand they look for and turn over all the records they have about Mr. Anderson."

Well, that's easy. Don't keep records. Seriously. If you're an organization asking for whistleblowers to give you info, scrub everything that even looks like a trail the moment you get the documents.

"with a simple administrative subpoena -- one that isn't even signed by a judge"

I am not a lawyer, so can someone clarify if deleting all of that the moment they get the administrative subpoena would end up with them nailed to a wall? Is that still considered destruction of evidence? What about a big red "delete all logs" button, where if anything even vaguely subpoena looking comes in, you hit the button, then start reading. You didn't KNOW for certain that they wanted the logs. You just hit the button before checking your mail. It happens, right?
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Patrick, 10 Jun 2014 @ 2:22pm

Well I guess the saying that things will get worse before they get better applies more everyday.
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Anonymous Coward, 10 Jun 2014 @ 2:22pm

It claims now that under the Fourth Amendment, it can subpoena an Internet company such as Facebook and demand they look for and turn over all the records they have about Mr. Anderson.

What about Facebooks, and other companies right to protection from unreasonable search. I would read expectation of privacy to mean that while you cannot stop another party from passing on information that you give them, this does not mean that a government can just demand the information. That is there is a difference between a person or company volunteering information, especially if their suspicion is aroused, and a governments demand any and all information held by a third party.
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Patrick, 10 Jun 2014 @ 2:27pm

Re:
Maybe this is where
citizens United could work in our favor.
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MizuRyuu (profile), 10 Jun 2014 @ 2:30pm

Send them completely redacted documents...
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Anonymous Coward, 10 Jun 2014 @ 2:33pm

And I won't be surprised if the IG goes after more of the whistle-blowers rather than fix the problems with Veterans Affaris.
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Anonymous Coward, 10 Jun 2014 @ 2:43pm

Re:
Yep, to the government exposing wrongdoing is the /real/ crime. Since if you didn't then the problem clearly wouldn't have existed. I really wish I was making this up.
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Anonymous Coward, 10 Jun 2014 @ 2:49pm

Re: Re:
Clearly this is the most transparent government. Their motives are completely transparent as are the records pertaining to every citizen they rule.
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Anonymous Coward, 10 Jun 2014 @ 2:50pm

Re: Re:
Oligarchies end up lying to themselves, and what is worse believing the lies. In effect they take on the properties of a belief system, and anything that attacks the beliefs is heresy. That is the problem that broke the USSR, and is likely to take down many advanced countries.
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Anonymous Coward, 10 Jun 2014 @ 3:23pm

so, is it possible he or others he knows are enshrined in what has been going on and is looking to find a way out, or is he just being a proper dick?
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nasch (profile), 10 Jun 2014 @ 3:47pm

Re:
I am not a lawyer, so can someone clarify if deleting all of that the moment they get the administrative subpoena would end up with them nailed to a wall? Is that still considered destruction of evidence?

Yes, I think you could go to jail for that, though IAANAL.

What about a big red "delete all logs" button, where if anything even vaguely subpoena looking comes in, you hit the button, then start reading. You didn't KNOW for certain that they wanted the logs.

I doubt that would fly. Seems like judges don't like people jerking them around like that.
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Anonymous Coward, 10 Jun 2014 @ 4:55pm

From the book The Rules of Revolt by Chris Hedges

[blockquote]The nature of secrecy is manipulation, the hallmark of despotic power. If people believe they are being manipulated they will distrust a movement and refuse to participate. Secrecy is also an admission of fear, which is what the state wants to instill in those who resist. Finally, the huge resources available to the state to employ informants and carry out surveillance mean that most resistant acts planned in secret are not secret to the state.[/blockquote]

This book talks about China and it's fear over the Tienanmen Square protest that started turning into a revolt. If you read that it pretty much applies to what we are seeing in the US with the attempt of quelling any knowledge of wrong doing by the US government. It's dang near textbook applications.

The difference here is that the US has yet to send in the troops and shoot people protesting.
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Anonymous Coward, 10 Jun 2014 @ 4:56pm

Re:
bah, my kingdom for an edit button which most self respecting comment style places have.
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ShadowCaptian (profile), 10 Jun 2014 @ 7:01pm

Re: Shoot the Protesters
The difference here is that the US has yet to send in the troops and shoot people protesting.

Considering that many LEO services are now more heavily armed than the PLA Army was in 1989, why bother the troops? It will be a strictly *POLICE* action...
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nasch (profile), 10 Jun 2014 @ 10:15pm

Re: Re: Shoot the Protesters
It will be a strictly *POLICE* action...

"Police action"... where have I heard that before...
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Anonymous Coward, 11 Jun 2014 @ 2:15am

>its actions have completely contradicted its spoken assurances
just admit that they lie all the time
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Anonymous Coward, 11 Jun 2014 @ 3:46am

Re:
Umm... actually they have at least once. See Kent State for an example. They weren't technically/officially called in for the protest however.
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art guerrilla (profile), 11 Jun 2014 @ 5:09am

Re:
here's the thing:
we KNOW if sauron turns his all-seeing eye on you, YOU WILL BE FUCKED, no matter what...
'legal' schmegal, DOES NOT MATTER any more: Empire will fuck you up, period...
'legality' has NO MEANING in this society any longer, get that through your morality-seeking brain...
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Anonymous Coward, 11 Jun 2014 @ 5:19am

> So, while encryption may stymie the interception of communications, it doesn't do much good when the government arrives with a piece of paper asking for the unencrypted end result of these communications.

Try not to confuse the general concept of encryption with TLS. TLS is just one type. Is it the government's fault that Google has all the means to decrypt your personal communication?
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TimK (profile), 11 Jun 2014 @ 7:05am

Well, the alternative to trying to submit info through email and web drop boxes is quite obvious to me. What better way to protect your anonymity than through the good old US Postal service. Stuff an envelope, put a stamp on it, no return address, and drop it in a mailbox nowhere near your home or work.

Obviously if you are trying to unload 60,000 documents like Snowden that doesn't work, but for info on VA wait times and scheduling issues, it seems like a paper document would be sufficient.
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cubicleslave (profile), 11 Jun 2014 @ 8:44am

Re:
Now that is the best solution I've heard so far. Sometimes old-school analog is the best method for anonymous/not-easily traceable.
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nasch (profile), 11 Jun 2014 @ 9:49am

Re:
Is it the government's fault that Google has all the means to decrypt your personal communication?

What does this have to do with Google? This is an example of person A sending encrypted communication to organization B. B must be able to decrypt it or there's no point in sending it to begin with. Then the government demands that B decrypts the information and hands it over. Google needn't be involved; in fact A could have mailed the info on a thumb drive and it would make no difference.
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Anonymous Coward, 11 Jun 2014 @ 10:51am

Re:
What does this even mean? Are you high? Of course the party intended to receive the data (I.E. Google) will have the ability to decrypt it. Otherwise what is the point of encryption?

Let me try to make it a little simpler for you to understand:

I publish a public key and you use it to encrypt a message and send that message to me. Anybody that intercepts the message in route (I.E. The government) won't be able to read it, but I, as the intended recipient, will be able to decrypt it, that's the whole point.

If the government can then just hand me a piece of paper that says "You must give us the plain text message" it doesn't matter how good my encryption scheme is because the government can just subpoena the information it wants from the message recipient.
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Dirkmaster (profile), 11 Jun 2014 @ 12:20pm

Re:
This
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Anonymous Coward, 12 Jun 2014 @ 8:19pm

Techdirt is one of my go-to websites. But, it hasn't been the Veterans Administration in 25 years. Since 1989, the US Dept. of Veterans Affairs. If you can't get the name right, what possible worth can your analysis be? Sadly, I must re-evaluate worth of your commentary.
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nasch (profile), 13 Jun 2014 @ 7:08am

Since 1989, the US Dept. of Veterans Affairs. If you can't get the name right, what possible worth can your analysis be? Sadly, I must re-evaluate worth of your commentary.

You will run out news sources pretty soon with that kind of standard.
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Anonymous Coward, 13 Jun 2014 @ 11:32am

Re:
"The difference here is that the US has yet to send in the troops and shoot people protesting."

Really? Search "Bonus Army." You've heard of MacArthur, Eisenhower, and Patton? They made their bones shooting at protesting WWI vets in DC.
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