Court Rules Against EFF In DOJ FOIA Lawsuit... But Mainly Because ODNI Already Declassified Most Of It

from the progress dept

Mon, Jul 21st 2014 3:38pm — Mike Masnick

We've joked about how James Clapper and the Office of the Director of National Intelligence (ODNI) like to claim that the various documents they've been declassifying and releasing in the post-Snowden era are decisions they've made out of the goodness of their transparency-loving hearts, when the reality is that much of it is in response to FOIA lawsuits from the EFF. When it comes to Section 702 of the FISA Amendments Act, the part of the law that covers PRISM and (more importantly) the direct "upstream" tapping of the internet backbone via companies like AT&T, EFF had asked for a variety of documents pertaining to how the program was run. After ODNI did everything possible to refuse to provide such documents in any meaningful way, EFF sued.

Following the Snowden revelations, and the sudden "we love transparency*" (*not really) attitude of the ODNI, it started re-reviewing the original redactions and (look at that!) suddenly realized that it didn't actually need to have wasted so much black ink on the originals. EFF continued to push back on certain redactions, and ODNI magically discovered even more wasted black ink. Eventually, huge portions of the various documents that had previously been withheld were revealed. EFF kept pushing, and asked the court to review some of the remaining redactions, just to make sure that ODNI wasn't hiding anything solely out of embarrassment, rather than for legitimate national security purposes. The court got to secretly review the unredacted document, asked some detailed questions of the DOJ, leading to even more redactions falling by the wayside. So, now, finally, after all of that, the judge has basically said that all of the remaining redactions are legitimate, and thus effectively rules "against" the EFF.

However, this is a pretty clear victory for the EFF, considering that during the course of the case it was able to remove many of the original redactions. Of course, this is still problematic, because it highlights how many of those original redactions were clearly improper, and it took this long and convoluted process (and Ed Snowden) before ODNI was willing to reveal these documents concerning a rather key program in how the NSA conducts surveillance.

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Filed Under: doj, eff, foia, odni, section 702
Companies: eff

9 Comments

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Anonymous Coward, 21 Jul 2014 @ 6:18pm

If the shit gets any deeper I'll need boots and a shovel next time I go online. Getting to be the internet just isn't worth the hassle anymore. Never imagined I would long for the sound of a dial-up modem and the problematic recurring disconnects.
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blogs@uslaw.com, 21 Jul 2014 @ 7:26pm

% of original redactions unredacted? Bet the number would make a great headline.
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Whatever (profile), 22 Jul 2014 @ 2:21am

Hmmm
this is a pretty clear victory for the EFF

Only on Techdirt can the EFF lose a case and be the winner. Next we will find out that Mitt Romney really did "win" last time too!
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Anonymous Coward, 22 Jul 2014 @ 4:19am

Re: Hmmm
The concept is called Pyrrhic victory:

A Pyrrhic victory is a victory with such a devastating cost that it is tantamount to defeat. Someone who wins a Pyrrhic victory has been victorious in some way; however, the heavy toll negates any sense of achievement or profit (another term for this would be "hollow victory").[1]
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That One Guy (profile), 22 Jul 2014 @ 4:23am

Re: Hmmm
If, during the course of a lawsuit, one side gets 90% of what they asked for, and the judge tells them that the remaining 10% isn't relevant to their request, and therefor rules against them acquiring it, yeah, even if the final ruling is technically 'against' them, I'd say they won.
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Chris Rhodes (profile), 22 Jul 2014 @ 6:08am

Re: Hmmm
The EFF went to court to get ODNI to stop redacting things that shouldn't have been redacted. The court made ODNI do so.

Seems like a clear win for the EFF to me.
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Whatever (profile), 22 Jul 2014 @ 4:43pm

Re: Re: Hmmm
It's not from anything EFF did. EFF didn't win anything, they got most of it handed to them willingly. In other words, the results would have been the same with or without the lawsuit.

The judge basically ruled against the premise, put in the position to argue the same case again in another circumstance, this loss would surely be highlighted by the opposing council.
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That One Guy (profile), 22 Jul 2014 @ 6:22pm

Re: Re: Re: Hmmm
With a very loose definition of 'willingly'. Without someone pushing, I'm betting most of what's been redacted would still be redacted, because secrecy is the default position for most government agencies.

It's easy to slap 'Classified' on a document, actually reviewing it to see if it deserves to be classified takes time and effort, so is not likely something they'd do without motivation being applied from somewhere.
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Anonymous Coward, 24 Jul 2014 @ 11:24pm

Re: Hmmm
Wow, what an amazing black and white world you live in! The judge dismisses the case after the EFF gets exactly what it wanted, and you say they lost. I'd love to lose like that!
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