Trump Allegedly Wants FBI To Look Into Locking Up Journalists Who Publish Leaks

from the because-of-course-that-would-be-his-solution dept

It's been another busy week for our president. Following on the heels of his revelation that he fired FBI Director James Comey over the ongoing Russian ties investigation (and following on the heels of Trump's tweeted threat about secret recordings of conversations with Comey), the FBI's acting director said the investigation is still ongoing, a special counsel was picked to oversee the investigation, and people close to Comey hinted the FBI might have some recordings of its own that undercut the president's narrative.

President Trump asked the F.B.I. director, James B. Comey, to shut down the federal investigation into Mr. Trump’s former national security adviser, Michael T. Flynn, in an Oval Office meeting in February, according to a memo Mr. Comey wrote shortly after the meeting.

“I hope you can let this go,” the president told Mr. Comey, according to the memo.

It's a record, of sorts, if not an actual recording. And it's done the way the FBI prefers to memorialize things (including testimony and "custodial interviews") -- on paper, rather than with other, less-biased recording devices. And, again, this is hearsay on top of hearsay: unnamed people claiming they read a piece of paper purporting to be a record of a conversation between Comey and the president. Grains of salt and all that, and despite what many are claiming all over the internet, really not a strong indicator of actual instruction, which could be an impeachable offense.

Mr. Comey shared the existence of the memo with senior F.B.I. officials and close associates. The New York Times has not viewed a copy of the memo, which is unclassified, but one of Mr. Comey’s associates read parts of it to a Times reporter.

Buried way, way down in the New York Times story is some more hearsay. This time it's Trump allegedly suggesting something should be done about that pesky press he's always complaining about. But, like the scenario above, it still sounds very much like something President Trump would say in a personal meeting he thought wouldn't be turned into an office memo.

Alone in the Oval Office, Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.

James Comey was no fan of the press, but he did at least defend journalists (sort of) at a recent hearing. He doesn't like seeing leaks published, but pointed out to legislators more interested in shooting the messenger that the person leaking the documents is the criminal, not the press, at least in the eyes of the DOJ.

But the DOJ is no longer the DOJ, so to speak. It's now being run by someone who wants to turn back the clock to the mid-1980s and start the drug war all over again. It's apparently engaged in twisting the law into a Wikileaks-prosecuting pretzel, despite Comey's assurances about messengers not being shot. And the administration has made it clear it's in the business of hunting down leakers, perhaps with the goal of unseating President Obama at the top of the "most whistleblowers prosecuted" list.

At this point, it's all just secondhand (Oval) office chatter. But considering the animosity Trump has shown towards the press and free speech in general, it's worth noting. And it always seems like every Trump denial or assertion has been followed by a leaked document to the contrary, so I'd be surprised if Comey's memo isn't made public within the next few days -- either by being leaked to journalists or presented at the hearings Comey has been asked to attend. This administration's contempt and hatred for the press has been undisguised. Donald Trump may be unable to change the Constitution, but that doesn't mean he and his handpicked agency heads won't spend the next few years making journalists' lives miserable.

Filed Under: donald trump, fbi, free press, free speech, james comey, journalists, leaks

Trump Fires FBI Director Comey

from the you're-fired dept

So... not quite sure what to make of this yet, but according to the NY Times, just a little while ago, Donald Trump fired FBI Director James Comey (of course, just after our podcast came out talking about how Comey seemed to be hopeful the Trump administration would approve his encryption backdoor plans).

“While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the bureau,” Mr. Trump said in a letter dated Tuesday to Mr. Comey.

“It is essential that we find new leadership for the F.B.I. that restores public trust and confidence in its vital law enforcement mission,” Mr. Trump wrote.

The full letter is... even more crazy:

If you can't read that, it says:

Dear Director Comey:

I have received the attached letters from the Attorney General and Deputy Attorney General of the United States recommending your dismissal as the Director of the Federal Bureau of Investigation. I have accepted their recommendation and you are hereby terminated and removed from office, effective immediately.

While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgement of the Department of Justice that you are not able to effectively lead the Bureau.

It is essential that we find new leadership for the FBI that restores public trust and confidence in its vital law enforcement mission.

I wish you the best of luck in your future endeavors.

Donald J. Trump

I'm not sure why it even bothers to mention that Trump himself is not a target of an investigation (or that Comey told him that three times). It's already known that the wider administration is subject to an investigation, and even if you don't believe that such an investigation will turn up anything, it's still happening. At the very least, this should call into question whether or not there can effectively be any investigation into the administration that won't involve meddling by the administration. That alone should be a big concern.

I don't think we've ever said anything particularly supportive of Comey, who we've disagreed with on a large range of issues, but it's difficult to see how this is going to be a good thing. It's already been admitted that the FBI was investigating potential ties between Russia and the administration. Whether or not that investigation had anything at all to do with the firing, there's no way to spin this that looks good.

Yes, the President has the power to fire the head of the FBI... but when that FBI was conducting an independent investigation of the President, any such firing is clearly going to be seen as politically motivated. And, yes, it's important to note that this is NOT entirely unprecedented. President Clinton fired FBI director William Sessions soon after taking office as well, though there wasn't the stench of an FBI investigation into the President going around at the time. If anything, the comparison that seems slightly more apt that people are making is to Archibald Cox, the independent special prosecutor that Richard Nixon fired, leading to the resignations of the Attorney General and Deputy Attorney General (contrast that to today's news, where it was those two roles who recommended this firing...).

Comey was not a particularly good FBI director, and we've covered numerous problems with his leadership. But that doesn't mean that whoever replaces him won't be even worse.

Filed Under: doj, donald trump, fbi, fired, investigation, james comey, jeff sessions

Ahead Of His Senate Hearing, James Comey Pushes His 'Going Dark' Theory

from the same-old-Comey,-same-bad-arguments dept

Ahead of his testimony before the Senate Judiciary Committee on Wednesday, FBI Director James Comey released his planned testimony, which covers a variety of subjects Comey hoped to cover during the hearing. A lot of the talking points were touched on, but Comey spent most of his time fielding questions from pissed-off senators about how much they were disappointed in recent FBI investigations.

The testimony Comey planned to give contains another discussion of the FBI-centric "going dark" issue. According to Comey, device encryption has blocked FBI's searches nearly 50% of the time, preventing it from pulling data from more than 3,000 phones. Comey also says other approaches -- such as using metadata or cellphone forensic software -- won't work. They're too expensive and won't scale. Left unsaid is Comey's desire for legislation or a few precedential court decisions to force manufacturers to compromise their customers' security.

He makes this argument by conflating privacy and security and using this conflation to arrive at a completely wrong conclusion. From Comey's testimony [PDF]:

Some observers have conceived of this challenge as a tradeoff between privacy and security. In our view, the demanding requirements to obtain legal authority to access data—such as by applying to a court for a warrant or a wiretap — necessarily already account for both privacy and security. The FBI is actively engaged with relevant stakeholders, including companies providing technological services, to educate them on the corrosive effects of the Going Dark challenge on both public safety and the rule of law. The FBI thanks the committee members for their engagement on this crucial issue.

Warrants and court orders cover the "privacy" end of the argument, but using court orders (or legislation) to force device makers to build backdoors in users' devices throws security out the window. The balancing act in the encryption debate has never been "privacy vs. security." It's been "security vs. insecurity." Comey's false equation presents privacy and security as two sides to the same coin, yet somehow completely separable in the presence of a court order. Fourth Amendment protections cover the privacy end, but showing up at a device backdoor with a warrant in hand does nothing for anyone's security.

Comey doesn't want a balancing act, despite all his assertions about "adult conversations" and deferring to the "smart people" at tech companies. He wants device owners to sacrifice security in exchange for protections they're already guaranteed by the Fourth Amendment.

Filed Under: backdoors, encryption, fbi, going dark, james comey

James Comey Says Real Journalists Check With The Government Before Publication

from the by-all-means,-let's-allow-the-DOJ-to-decide-who's-a-real-journalist dept

In his testimony yesterday in front of the Senate Judiciary Committee, FBI Director James Comey became the latest government official to speak out against Wikileaks. In doing so -- even though he very carefully worded his answers to Sen. Ben Sasse's softballs -- Comey also made a very dangerous insinuation about what separates "real" journalists from Wikileaks.

From the transcript published at the Washington Post:

SASSE: [T]here is room for reasonable people to disagree about at what point an allegedly journalistic organization crosses a line to become some sort of a tool of foreign intelligence. There are Americans, well-meaning, thoughtful people who think that WikiLeaks might just be a journalistic outfit. Can you explain why that is not your view?

COMEY: Yes and again, I want to be careful that I don't prejudice any future proceeding. It's an important question, because all of us care deeply about the First Amendment and the ability of a free press, to get information about our work and -- and publish it.

To my mind, it crosses a line when it moves from being about trying to educate a public and instead just becomes about intelligence porn, frankly. Just pushing out information about sources and methods without regard to interest, without regard to the First Amendment values that normally underlie press reporting. And simply becomes a conduit for the Russian intelligence services or some other adversary of the United States just to push out information to damage the United States. And I realize, reasonable people as you said, struggle to draw a line…

So, where does the journalistic publishing of leaked documents cross the line into "intelligence porn?" Comey says the difference between real journalists and Wikileaks is real journalists seek input from the government before publishing.

Comey: [T]here's at least a portion and people can argue that maybe this conduct WikiLeaks has engaged in, in the past that's closer to regular newsgathering. But in my view, a huge portion of WikiLeaks's activities has nothing to do with legitimate newsgathering, informing the public, commenting on important public controversies, but is simply about releasing classified information to damage the United States of America. And -- and -- and people sometimes get cynical about journalists.

American journalists do not do that. They will almost always call us before they publish classified information and say, is there anything about this that's going to put lives in danger, that's going to jeopardize government people, military people or -- or innocent civilians anywhere in the world. And then work with us to try and accomplish their important First Amendment goals while safeguarding those interests. This activity I'm talking about, WikiLeaks, involves no such considerations whatsoever. It's what I said to intelligence porn, just push it out in order to damage.

The First Amendment contains no such requirement to run leaked documents past the government first. This can be an ethical decision on the part of the publisher, but the notion that the First Amendment only covers publishing after government input has been sought is a dangerous one. This assertion by Comey also just isn't true. As Trevor Timm pointed out on Twitter, Wikileaks has attempted to contact the US government in the past before publication, but has been ignored.

Furthermore, Comey and Sasse both claim Wikileaks' publications have caused some sort of damage to government employees. They offered unproven assertions it has endangered lives, even though the evidence shows the worst the US government (and its employees) suffered is some embarrassment.

The only mitigating factor was Comey's assertion that the DOJ isn't interested in using espionage laws to prosecute journalists for publishing leaked documents. As he correctly points out, the culpability lies with the person leaking the documents, not the journalists publishing them. Of course, this statement isn't being made in a vacuum. It's being made in the current political climate where the president has expressed an interest in reducing free speech protections. The DOJ itself appears to be working towards prosecuting Julian Assange for publishing leaked documents. All that can really be gathered from Comey's assertions is that the DOJ may not prosecute journalists who run everything past the government before publication.

This delineation between "legitimate" journalism and "intelligence porn" is disturbing. It suggests the government still wants to have the final say on who is or isn't a journalist and punish accordingly. If this had been the attitude since the beginning of this nation, it's doubtful we'd have as many protections as we enjoy today. Rob Graham of Errata Security sums up Comey's statements in a single, unforgettable sentence:

If this were 1776, Comey would of course be going after Thomas Paine, for publishing "revolution porn", and not being a real journalist.

Filed Under: fbi, first amendment, free speech, james comey, journalism, julian assange, news
Companies: wikileaks

At Senate Hearing, Comey Hints At Expanded NSL Powers And Encryption Backdoors

from the now-has-a-president-willing-to-cater-to-his-desires dept

James Comey testified in front of the Senate Judiciary Committee today where he faced an oddly-unified bipartisan group of senators irritated with the FBI (but for different reasons). Most senators took a large amount of the their time during the first round of questions to not actually ask questions, but to express their displeasure with the Clinton email investigation and the ongoing Trump-Russia investigation.

The opening statements varied depending on the party of the senator addressing James Comey. Comey had very few answers about various Trump-related investigations (which are still ongoing), but made the most of his opening statement by dodging the questions and making a sales pitch for the renewal of Section 702 -- the statute permitting the NSA's internet data/communications collection the FBI makes frequent use of.

According to Comey, the 702 collection is essential to national security. Possibly true. But not so essential that concerns about Fourth Amendment violations should be swept aside. This was only one of the sales pitches Comey managed to squeeze in during questioning.

He also touched on a couple of other issues worth noting. Both involve legislation. After pitching a clean Section 702 renewal, Comey spent some time talking around the subject of backdoor 702 searches, noting that "all courts" have found the FBI's secondhand domestic surveillance lawful… without specifying the only court to really reach this conclusion is the FISA Court. And this court also found the NSA had abused its collection repeatedly. This court also approved zero 702 applications in 2016 and the NSA itself has shut down part of its upstream collection because it kept grabbing too many communications from US persons.

This shutdown will affect the FBI's backdoor searches. Comey, of course, didn't refer to them as backdoor searches, but did make it clear the FBI would be ever so pleased if Section 702 was renewed with a minimum of legislator interference.

The FBI's own collection efforts were a concern to Comey as well. Comey continued his misrepresentation of the statutes governing what the FBI can collect with National Security Letters. According to the FBI director, the only thing standing between what the FBI can legally get with NSLs (subscriber info and billing records) and what it wants (a very long list of things, including web history and geolocation data) is a "typo." Not sure which part of the statute contains the typo, but Comey claimed to be able to channel the intent of legislators who passed it back in 1986.

Not that the lack of statutory authority has prevented the FBI from demanding more than it's supposed to get. An NSL published by Yahoo contained a much longer list of requested data than is permissible under the law. Comey expressed his desire to have Congress take another look at the statute and see if it doesn't agree with Comey's assessment.

The other legislative issue near and dear to Comey's heart was addressed a bit more obliquely, but managed to make it clear the current administration would be far more sympathetic to Comey's other backdoor plan. Both Sen. Orin Hatch and Sen. Dianne Feinstein spoke favorably about encryption backdoors. Comey noted the Obama Administration wasn't interested in passing bills containing encryption bans or backdoors, but the new team in the White House has possibly expressed an interest in doing just that.

The Obama administration was not in a position where they were seeking legislation. I don't know yet how President Trump intends to approach this. I know he spoke about it during the campaign, I know he cares about it, but it's premature for me to say.

There were a lot of things that Comey wouldn't say. Many things he wouldn't confirm or deny in an open hearing. But he let us know he's still pushing encryption legislation, even if he's opted for more of a soft sell in recent months.

Generally speaking, the hearing ended up being more about how the FBI plans to continue expanding its power and decreasing civil liberties. Comey wants a clean 702 reauth, even with the NSA shutting down part of the collection because it can't comply with the law otherwise. He wants legislators to hand him greater NSL powers, even though the FBI's history of NSL abuse is well-documented. And he still wants the government to solve his "going dark" problem, even though the problem has been greatly exaggerated and no amount of harder nerding is going to generate a safe, government-only backdoor in encryption.

Filed Under: fbi, going dark, investigation, james comey, section 702, senate judiciary commitee

How A Little Metadata Made It Possible To Find FBI Director James Comey's Secret Twitter Account

from the we-kill-based-on-metadata dept

For a few years now, our intelligence overseers have been insisting that we shouldn't be too concerned about surveillance programs that collect "just metadata" because that doesn't really reveal too much. But, of course, we've shown how "just metadata" can ruin a career diplomat's life, and former NSA/CIA boss Michael Hayden has admitted that the US kills people based on metadata.

Either way, I find it fascinating that reporter Ashley Feinberg needed just a few small bits of innocent metadata from FBI Director James Comey to track down his secret Twitter account. It took her all of four hours or so. Just last night, Comey admitted that he was on Twitter, leading lots of people to go searching for the account since there is no official one. I won't describe all of how Feinberg tracked it down (it involves some pretty excellent sleuthing and is worth reading) but suffice it to say, it's metadata that gives Comey away. The account, @projectexile7, was then almost certainly confirmed as Comey's based on metadata about who was following it, who it was following, and what it liked:

But how to be sure? There is only one person currently following the account: Benjamin Wittes of Lawfare. Wittes is no Twitter neophyte. He is an active user with more than 25,000 followers, and he only follows 1,178 accounts—meaning he is not a subscriber to the “followback” philosophy. If he is following a random egg—and is the only account following it—there is probably a reason.

That reason could be the fact that, as Wittes wrote here, he is a personal friend of James Comey. (We’ve reached out to Wittes for comment but have yet to hear back.)

Project Exile happens to be a federal program that James Comey helped develop when he was a U.S. attorney living in Richmond. And then, of course, there are the follows.

ProjectExile7 follows 27 other accounts, the majority of which are either reporters, news outlets, or official government and law enforcement accounts. The New York Times' Adam Goldman and David Sanger and the Washington Post's Ellen Nakashima and David Ignatius, all of whom have been aggressively covering the FBI investigation into Trump’s contacts with Russian agents, made the list, as did Wittes and former Bush Administration colleague Jack Goldsmith. Donald Trump is on there, too, but @projectexile7 seems to have begun following him relatively recently (its first follow was @nytimes).

There are two outliers: William & Mary News (where Comey attended undergrad) and our colleagues at The Onion (everyone deserves to have fun)

And, yes, I do find it hilarious that Ben Wittes — among the loudest cheerleaders for programs that scoop up metadata — is part of the reason the account was recognized as Comey's.

Go read the full article by Feinberg. Of course, I doubt it will change Comey's views on "just metadata", but it is yet another representation of how powerful a little bit of such data can be in tracking someone down.

Filed Under: ashley feinberg, fbi, james comey, metadata, privacy, secrecy
Companies: instagram, twitter

James Comey's New Idea: An International Encryption Backdoor Partnership

from the let's-all-share-the-pain-equally dept

FBI Director James Comey is still pitching encryption backdoors, despite there being almost no one -- from the Intelligence Community to legislators around the world -- interested in what he's selling. Comey claims to be sitting on a pile of encrypted devices the FBI can't get into, even with help from outside contractors.

His latest backdoor idea was floated at a national security symposium at the University of Texas. Knowing any legislated backdoors might result in US device customers turning to overseas suppliers, Comey thinks he can minimize domestic fiscal damage by getting the rest of the world to fall in line with an idea most foreign governments still find unpalatable, even as they suffer terrorist attacks with a far greater frequency than we do at home. Michael Kan has more details at ComputerWorld:

Speaking on Thursday, Comey suggested that the U.S. might work with other countries on a “framework” for creating legal access to encrypted tech devices.

“I could imagine a community of nations committed to the rule of law developing a set of norms, a framework, for when government access is appropriate,” he said on Thursday.

Comey doesn't say how he plans to set this in motion. He's had no luck on the domestic front, so hoping for an "international framework" to spring into existence is, at best, inordinately hopeful. He directly addressed one of the many concerns device makers have about encryption backdoors, stating he had no desire to "chase innovation" out of the US. But that doesn't mean he's not interested in harming US innovation. He simply believes every country in the partnership should suffer equally.

As always happens when Comey opens his mouth about encryption, plenty of experts in the field are on hand to criticize his comments.

“I don’t think it makes sense,” said Nicholas Weaver, a researcher at the International Computer Science Institute at the University of California Berkeley.

Comey’s idea means that all countries will essentially agree to weaken the security in their vendors’ tech products, Weaver said. However, other countries will balk, fearing that the U.S. might exploit the cooperation for spying purposes.

“Would you still use a U.S. product, even if you know the NSA (National Security Agency) could have the rights to it?” he said.

Most of our allies around the world are still stinging a bit from multiple national security leaks -- some of which have exposed nearly as much intrusiveness of their own security agencies as they have about the NSA's reach and grasp. With the NSA heavily-involved in diverting hardware shipments to implant backdoors, no one's in any hurry to add their country to the list of "buyer beware" electronics.

Even if most of Europe agrees to weaken encryption to make law enforcement easier, there's no preventing non-partner countries from taking advantage of security holes to engage in greater domestic spying and civil rights abuses.

And, as is always the case when Comey opens his mouth about encryption, it's again suggested the nerds of the world are simply not applying themselves when it comes to "safe" backdoors.

[O]n Thursday, Comey said the tech industry can find an approach that creates government access, while keeping malicious actors out.

“I reject the, ‘it’s impossible’ response,” he said. “I just think we haven’t actually tried it.”

Counterpoint from Nate Cardozo of the EFF:

“It’s childish to stomp your foot, and say, ‘nerds you have to try harder,’” Cardozo said.

That's Comey all over: insisting he's right despite nearly no one else in the world agreeing with him. The phones he can't get into are apparently viewed as a personal insult -- a middle finger from device makers to the feds. He claims device makers shouldn't "decide how [their customers] live" by providing default encryption. He feels it should be left up to customers whether or not they want that level of security.

He makes this claim while pitching backdoors that remove that choice, allowing the FBI to tell Americans how to live: less securely, because criminals and terrorism. Again, classic Comey -- who handles every discussion of encryption like a child. He's not guileless, not by far. But he so deeply believes in the inherent "rightness" of his arguments that he's unable to see their inconsistency and incoherence. Or worse, he does... but just doesn't care.

Filed Under: backdoors, encryption, fbi, going dark, james comey

DOJ Argues For iPhone Hack Secrecy By Contradicting Statements Made By The DOJ

from the one-body,-multiple-mouths,-ears-unconfirmed dept

The DOJ is still fighting a lawsuit over the iPhone exploit the FBI purchased to access the (worthless) contents of a phone used by a participant in the San Bernardino shooting. FBI director James Comey and the DOJ made comments at the time stating a couple of things:

1. The phone crack was expensive.

Specifically, Comey said that buying the exploit from this group cost the FBI "more than I will make in the remainder of this job, which is seven years and four months, for sure." Comey makes $185,100 per year at his job, implying that buying the exploit cost at least $1.3 million or so.

2. The phone crack only applied to a small subset of iPhones.

A DOJ spokesperson says... the crack only applied to iPhone 5C devices.

These statements are being wielded against the DOJ by the new agencies bringing this FOIA lawsuit. The DOJ isn't happy seeing the FBI director's words (along with its own) being used to undermine its arguments: namely, that almost nothing about the iPhone exploit can be revealed without ripping holes in the national security fabric or nullifying the FBI's intelligence-gathering techniques.

In its latest filing [PDF] in the lawsuit, the DOJ seemingly contradicts itself while arguing against revealing the contractor's name or even the amount paid for the iPhone crack. (h/t Brad Heath)

Plaintiffs remaining objection is unavailing. They claim that the iPhone tool itself is of no current value. See Opp’n at 15-16 (“Acceptance of the FBI’s argument would also require this Court to ignore that the FBI has been exceedingly public about the fact that the tool applies only to a specific model of phone (the iPhone 5c) running a specific, and already outdated, operating system (iOS9). Were adversaries on the hunt for actually effective countermeasures, they need only to heed [Director] Comey’s public statement and simply use a different kind of phone, or a different operating system.”) (citation omitted). But this argument is unvarnished speculation about the efficacy of this intelligence tool – and this Circuit has made exceedingly clear that such speculation cannot defeat an agency’s summary judgment claim.

Someone's assertions are wrong. Either the DOJ was lying when it said it would only work on certain iPhones, or it's lying now to protect its secrecy by implying the purchased exploit is usable on other iPhones.

The DOJ clarified last spring the exploit affected any iPhone 5c and wasn't limited to those running iOS9. But even if that clarification is applied to its arguments in this lawsuit, this paragraph stills points to someone at the DOJ being dishonest. The counterargument that people wishing to prevent the FBI from accessing their phone's contents could just switch to a newer iPhone still applies. And that's the part the DOJ is calling "unvarnished speculation."

Of course, the plaintiffs are in the unfortunate position of having little more than unvarnished speculation to work with. Some documents pertaining to the purchased iPhone crack have been released, but have been almost completely redacted, save for some standard contractual language of no informational value. The DOJ is leveraging information it doesn't want to release to argue against being forced to release it. That's certainly convenient for the DOJ, as are any of its intelligence gathering arguments, which grant it the power to dispel questions about over-redaction without having to explain its side of the issue.

Thus, while the identity of the vendor may not itself be an intelligence source or method, see Opp’n at 18, releasing that information leads “logically or plausibly” to information about the intelligence source or method, see Judicial Watch, 715 F.3d at 941, and is thus exempt from disclosure under Exemption 3. That is particularly true in light of the “considerable deference” owed to the FBI in this context. Leopold, 106 F. Supp. 3d at 58; see also Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003) (“[W]e have consistently deferred to executive affidavits predicting harm to the national security, and have found it unwise to undertake searching judicial review.”). Accordingly, the FBI has appropriately applied Exemption 3 to these two pieces of information.

A version of this argument just helped the DOJ keep its journalist-surveilling secrets hidden from journalists (it possibly surveilled) in another FOIA lawsuit. Chances are, the court will side with the FBI and its national security assertions. Unfortunately, the DOJ's contradictory statements aren't on trial here -- just its broad assertions about national security and intelligence-collecting methods, both of which appear to be so easily compromised it can't even let the country know how much it paid to crack a single iPhone.

Filed Under: contradictions, doj, fbi, hack, iphone, james comey

Why Did The FBI Say It Couldn't Release Documents To 'FOIA Terrorist' Jason Leopold That It Released To Me Months Earlier?

from the hmmm dept

What's up, FBI? Back in early 2015, when the FBI and (specifically) Director James Comey ramped up their silly "going dark" moral panic about how strong encryption was making us less safe, I sent a Freedom of Information Act (FOIA) request to the FBI for all of the FBI's internal talking points about "going dark" or other views on encryption. My main reason for this was really to see if I might uncover some of the reasoning for why the FBI had quietly deleted a page on its website that encouraged people to encrypt their phones. It took until May of last year, but the FBI finally delivered me a stack of talking points, mostly focused on talking point lists and speeches given by Comey. I never wrote about it because the talking points alone weren't even that interesting.

In fact, I'd almost totally forgotten about that entire request. But then, a few weeks ago, right here on this site, Tim Cushing wrote about the latest escapades of Jason Leopold, the reporter whose use of FOIA requests is so prolific that he's been dubbed a "FOIA terrorist" by the DOJ. It turns out that Leopold had made a similar request to the FBI... and was told that while they had found 487 responsive records, they were giving him a grand total of 0 of them, because they were all subject to restrictions on release. In that article, Cushing, rightly explains why this is ridiculous. The whole point of "talking points" is to share them with the public. There is simply no FOIA exemption that allows for blocking them.

But this was even more bizarre to me for the simple fact that the FBI had already sent me many of those documents. I didn't add up all the pages sent to me, but I can tell it's probably closer to about 100 pages than 487, so clearly the FBI is likely lying to me as well in terms of how many "responsive" documents there really were, but I'm confused as to why the FBI couldn't release these kinds of documents to Leopold.

I mean, just imagine the chaos that would have occurred if the FBI had obeyed the law and given Leopold such talking points as:

Thank goodness that didn't happen. Either way, I'm embedding all the files the FBI released to me below, just in case Leopold finds them more useful than I did -- such as using them as potentially useful evidence in the lawsuit he should file against the FBI for not releasing these same documents to him.

Filed Under: encryption, fbi, foia, going dark, james comey, jason leopold, talking points

FBI Says It Has 487 Pages Of James Comey Talking Points, Refuses To Release Any Of Them

from the 'but-here's-a-CD-full-of-nothing-for-you' dept

Well, we can already see what government agency will be the next recipient of a Jason Leopold FOIA lawsuit.

Leopold had requested FBI Director James Comey's talking points for a variety of subjects, including "going dark," the terrorist attacks in Paris, the "Ferguson Effect," and encryption. The FBI responded with two things, both of which add up to nothing.

The letter Leopold received noted that the FBI had found 487 pages responsive to his request. Of those, the agency will be releasing a grand total of zero pages. All 487 have been withheld under FOIA exemptions b(5) through b(7)(E).

Despite not releasing a single page, the FBI still utilized some taxpayer pocket change to mail Leopold a CD containing nothing more than its rejection. Leopold notes he'll be using it as a coaster.

The exemptions cited are bogus. "Talking points" aren't deliberative documents, interagency memos, or documents containing sensitive personal information [b(5), b(6)]. Neither are they documents that might expose law enforcement sources or investigative techniques [b7(D) and 7(E)].

They are exactly what the name says they are: points to be used when discussing these issues in Congressional hearings or during press conferences. They are indicative of the public stances the FBI takes on certain issues. There's nothing secret about them, or at least there shouldn't be.

But the FBI is treating Comey's talking points like they're confidential documents that could result in the exposure of its sources and techniques. If Comey's talking points do actually include this information, that's pretty irresponsible. These are used to make public statements and they certainly shouldn't include sensitive information not meant for the public domain.

And there's 487 pages of them, which means Comey has had plenty to talk about. The eventual release of these documents post-lawsuit should be entertaining and informative. Considering Comey has taken public stances privately opposed by other FBI officials and has made of habit of bypassing agency norms when delivering statements, it would be interesting to see if his past statements have periodically veered away from the agency's prepared talking points.

This response is a typical one for the FBI, which frequently returns an upraised middle finger to the requester in lieu of the documents requested. It's just how it opens FOIA negotiations. From there, requesters are expected to begin the appeals process or, in the case of FOIA enthusiast Jason Leopold, file yet another FOIA lawsuit that's 90% boilerplate and 10% "this is SPECIFICALLY how [US Government Agency X] has dicked me around this time."

Filed Under: fbi, foia, going dark, james comey, jason leopold, talking points