Report: Devin Nunes' Aide Going Around Leaking Ukraine Call Whistleblower's Name

from the proper-channels dept

We've been highlighting lately how the situation with the whistleblower, who first tried to ring the alarm bells about President Trump's now confirmed quid pro quo call with Ukraine to dig up dirt on a political opponent, showed why the "official channels" are useless for whistleblowers. Some suggested that we were premature in making that claim. However, since then, we've seen the President himself repeatedly try to attack the whistleblower while repeatedly demanding that the whistleblower be revealed. Now come reports that a staffer for Rep. Devin Nunes is going around revealing the name of the whistleblower:

A top aide to Rep. Devin Nunes has been providing conservative politicians and journalists with information—and misinformation—about the anonymous whistleblower who triggered the biggest crisis of Donald Trump’s presidency, two knowledgeable sources tell The Daily Beast.

Derek Harvey, who works for Nunes, the ranking Republican on the House intelligence committee, has provided notes for House Republicans identifying the whistleblower’s name ahead of the high-profile depositions of Trump administration appointees and civil servants in the impeachment inquiry. The purpose of the notes, one source said, is to get the whistleblower’s name into the record of the proceedings, which committee chairman Adam Schiff has pledged to eventually release. In other words: it’s an attempt to out the anonymous official who helped trigger the impeachment inquiry.

Nunes, of course, has a bit of a history pushing mis- and dis-information in support of President Trump, so this seems par for the course. In the Daily Beast link above, one of the lawyers for the whistleblower, Mark Zaid, notes that revealing the name only serves to put the whistleblower in danger and seems to aim to "deter future whistleblowers from coming forward."

So, once again, it highlights exactly what we've been saying. Even in this case, where the whistleblower tried to use the "proper channels," everything is designed to go against the whistleblower, starting with the failure to turn over the complaint to Congress, as required by the law. The fact that a Nunes staffer is now apparently putting that whistleblower "at risk of harm" (according to Zaid) highlights just how ill-prepared our government is to deal with whistleblowers at a time when we need more, not fewer, whistleblowers.

Filed Under: cia, derek harvey, devin nunes, leaks, proper channels, ukraine, whistleblower

DOJ And DNI's Attempt To Bury Whistleblower Report Yet Another Indication Of The Official Channels' Uselessness

from the when-in-doubt-leak-it-out dept

The official channels don't work. That's the message Snowden sent -- one that was countered by multiple high-level government officials who'd never had the whistle blown on them.

Government entities protect their own. Whistleblowers who attempt to bring things through the proper channels are deterred almost every step of the way. The few times they manage to get their reports to someone who might actually be able to do something about it -- like Congressional oversight or the various Inspector General offices -- those affected by the report will do everything they can to silence it.

The New York Times discusses what happened when the whistleblower report about President Trump's phone call to the president of Ukraine was routed through the official channels. The whistleblower (who the NYT questionably outed as a CIA officer) used a third party to bring the complaint to the CIA's counsel. The CIA's top lawyer needed to find out whether the allegations about the content of the phone call were accurate. So, she called the White House to get the transcript of the call.

You can see where this is going. The New York Times fills in the details, showing why doing things the way the government wants you to do them seldom results in blown whistles. (This is taken from the NYT's podcast transcript, which is why it doesn't read like a NYT article.)

[I]t turns out that the lawyers in the White House have apparently also heard rumblings about the July 25 call. They don’t know how serious it is, but there are a series of calls on the week of August 5 between the C.I.A.‘s lawyers and the White House lawyers. And they’re trying to figure out what’s going on. And very quickly, they learn that a number of people within the White House have concerns about this July 25 call.

The White House took it seriously as well. Seriously enough to start trying to track down the whistleblower. The whistleblower decided to take his complaint directly to the Intelligence Community's Inspector General since it appeared the White House was more interested in silencing the whistleblower than addressing the complaint.

The IG's office started questioning people, alerting even more members of the administration about the severity of the complaint. And once the CIA's counsel arrived at the conclusion that this was a serious allegation, the CIA's legal office informed the Director of National Intelligence. The DNI then decided to contact the DOJ, since the normal process involves bringing it directly to the President -- something that's not really an option when the complaint involves the president.

[B]ecause the Department of Justice has gotten a heads up about this through the C.I.A. complaint, when this official more formal, supposedly independent whistle-blower complaint arrives, the people inside the Department of Justice, they know what they’re going to do. And what they’re going to do is basically say, there’s nothing to see here, this ends here.

If the CIA officer had solely utilized the proper channels, the CIA's office would have brought it to the administration's attention and the administration would have buried it. Utilizing the Inspector General helped prevent this burial from happening, but even the DNI's office stood in the way of the report being brought to Congress, at least temporarily.

Nothing about this works well, if at all, if there's enough people in power interested in making a report disappear. This one managed to make its way to the public due to actions taken by the House Oversight Committee. Without the public being informed a whistleblower report containing serious allegations was being hidden from it by the DNI, the DNI and DOJ would have swept it under the rug. And then the administration would have gone after the whistleblower, much like Trump has threatened to do already.

Just because this report ultimately ended up being made public does not mean the official channels work. That the House Intelligence Committee decided to do something rather than nothing when approached by the IC Inspector General is an anomaly, not the usual course of action. If the entity committing the alleged misconduct has enough power, the whole thing can be made to go away, along with the whistleblower and their career. And, in this case, there's still the question of whether it would have been done at all (Rep. Adam Schiff's decision to call public attention to the report) if it wasn't politically expedient. Stopped clocks are right twice a day. The official channels for whistleblowing need to be right a lot more often before they'll even approach that rhetorical low bar.

Filed Under: cia, inspector general, intelligence community, leaks, oversight, proper channels, whistleblowers

DOJ Decides To Help Publicize Snowden's Memoir By Suing Him For Failing To Run His Book By The CIA And NSA First

from the thanks-for-the-publicity dept

As you've probably heard, Ed Snowden just came out with his memoir, entitled Permanent Record. I haven't yet had a chance to read it, but it looks fascinating. Snowden obviously can't do the usual book tour for this kind of thing, but he has been doing a fresh round of very interesting interviews about his current situation -- including saying that he'd be willing to come home to the US and stand trial if only the US actually allowed a public interest defense for Espionage Act claims. As we've pointed out for years, one of the (many) problems with the Espionage Act is that it literally does not allow a defendant to explain why they leaked certain information, and assumes that it is equally nefarious to sell secrets to foreign enemies as it is to blow the whistle by informing the press of unconstitutional surveillance.

Still, the DOJ decided to help boost sales of Snowden's book by suing him for all of the proceeds, over violation of the contract he held with both the CIA and the NSA. The lawsuit is fairly straightforward. Anyone who works in the intelligence community signs a lifetime contract that forbids publishing any manuscript or speech related to their work, without first getting "pre-publication" review.

The government takes this very seriously (in fact, too seriously). Indeed, just recently there was another controversy about pre-publication review regarding a memoir and TV show by former CIA officer Amaryllis Fox. And, for reasons like these, it seems that -- purely on a legal basis -- Snowden and his publisher have a high likelihood of losing the lawsuit (in part because the law is against him here, and in part because he's unlikely to be in a position to contest it from Russia -- a point we'll discuss more below).

That said, pre-publication review is a hugely sketchy process. Earlier this year, a bunch of former intelligence officials actually sued the government, arguing that the requirement is unconstitutional. That case is still making its way through the courts, with the government pushing for it to be dismissed. However, there are other recent stories about what a bullshit process pre-publication review tends to be. It involves multiple different contracts with unclear definitions and unclear requirements. Recent revelations have also shown that the feds often use the process to purposefully delay books that will reflect poorly on the government, while speeding through ones that support the government's position, or are coming from high-profile former officials.

The ACLU, which is defending Snowden (and also involved in the other pre-publication lawsuit mentioned above) quickly put out a statement claiming that the book doesn't reveal any new secrets and didn't need to go through review:

"This book contains no government secrets that have not been previously published by respected news organizations. Had Mr. Snowden believed that the government would review his book in good faith, he would have submitted it for review. But the government continues to insist that facts that are known and discussed throughout the world are still somehow classified.

“Mr. Snowden wrote this book to continue a global conversation about mass surveillance and free societies that his actions helped inspire. He hopes that today’s lawsuit by the United States government will bring the book to the attention of more readers throughout the world.”

Snowden, for his part, seems to have had a bit of fun about the whole situation on Twitter, pointing out how it's helping to attract more attention to the book:

Oh, and also this:

Though, the framing of this as being about the government "not wanting" people to read the book is not entirely fair. They are not suing to stop the publication, which would be a much tougher task. They're suing for the money -- and as much as I disagree with the government on this, given the current state of the law, it's totally understandable why it feels the need to. Without this lawsuit, lots of others who are going through, or intend to go through, pre-publication review will point to the Snowden situation and say "but what about that guy?"

Anyway, as noted, the government likely does have a strong case, even as bullshit as the pre-publication rules are. And, so, perhaps this means that the Treasury will get a bit of money that should end up with Snowden or his publisher. But, if the goal (as Snowden has insisted) was merely to continue the conversation and get his story out there, well, the DOJ just ended up promoting the book quite a bit. Similar situations in history have, not surprisingly, driven up demand for books:

But, if the DOJ is collecting the revenue on the other end, perhaps it doesn't care?

There is one other element here that seems worth mentioning. Up at the top, we pointed out that Snowden says he'd come back to face trial if he was allowed to present a public interest defense for his whistleblowing. The fact that the government still refuses to allow this also makes it nearly impossible for Snowden to even fight this lawsuit, because the government will quickly argue that he's a "fugitive" and thus not able to be represented in court (as it did with Kim Dotcom). That seems to highlight the wider fallout of the over-aggressive nature of the Espionage Act, and the inability to use a public interest defense. It makes it that much more difficult for someone like Snowden to defend his own 1st Amendment rights. And that seems unfortunate.

Either way, while I can understand why the DOJ is doing this, and recognize that it's likely to win, that doesn't mean that it's the right move or a good thing overall.

Filed Under: cia, doj, ed snowden, nsa, permanent record, pre-publication review

The CIA Wants To Make It Easier To Jail Journalists And No One In Congress Is Stopping It From Happening

from the CIA-wondering-why-we-just-can't-go-back-to-zero-accountability dept

The CIA is pushing for an expansion of a 37-year-old law that would deter journalists from covering national security issues or reporting on leaked documents. Thanks to a disillusioned CIA case officer's actions in 1975, there are currently a few limits to what can or can't be reported about covert operatives working overseas.

In 1975, Philip Agee published a memoir about his years with the CIA. Attached to his memoir -- which detailed his growing discontentment with the CIA's clandestine support of overseas dictators -- was a list of 250 CIA agents or informants. In response to this disclosure, Congress passed the Intelligence Identities Protection Act (IIPA), which criminalized disclosing the identity of covert intelligence agents.

The IIPA did what it could to protect journalists by limiting the definition of "covert agent" to agents serving overseas and then only those who were currently working overseas when the disclosure occurred. It also required the government to show proof the person making the disclosure was "engaged in a pattern of activities intended to identify and expose" covert agents. The law was amended in 1999 to expand the coverage to include covert agents working overseas within five years of the disclosure.

Now, the CIA is seeking to strip these protections from the IIPA. The agency wants the "overseas" requirement removed, allowing it (and other intelligence agencies) to designate whoever they want as "protected" by the IIPA in perpetuity. The removal of the overseas requirement eliminates the five-year period. Disclosing identities years after the fact will now be a criminal act.

The CIA has its reasons, as Trevor Timm reports. But they're the worst reasons.

Under the proposed law, any journalist who, say, revealed the names of “covert” CIA officers that had engaged in torture or ordered drone strikes on civilians would now be subject to prosecution — even if the newsworthy actions occurred years or decades prior or the officer in question has always been located in the United States.

In fact, the CIA explicitly referenced the revelations of the agency’s Bush-era torture program in its argument to Congress for IIPA expansion. The New York Times’s Charlie Savage obtained the CIA’s private memo in which it lobbied members of Congress. Under the memo’s “justification” section, the CIA wrote:

"Particularly with the lengths organizations such as WikiLeaks are willing to go to obtain and release sensitive national security information, as well as incidents related to past Agency programs, such as the RDI investigation, the original congressional reasoning mentioned above for a narrow definition of ‘covert agent’ no longer remains valid."

RDI is the CIA's preferred term for its torture program. It stands for "Rendition, Detention and Interrogation." If the law is amended, the scope of its coverage expands, and the public gains nothing from it. Issues like drone strikes and torture programs need all the sunlight they can get. The CIA -- and other intelligence agencies -- would prefer the general public not know what's being done in their name with their tax dollars.

Unfortunately, someone who has stood up for the press for years is allowing this amendment -- attached to the 2020 budget bill -- to move forward. Rep. Adam Schiff -- the co-founder of the Congressional Caucus for Freedom of the Press -- has done nothing to push back against this expansion of the IIPA.

Here, Schiff has a direct means to protect journalists from what’s sure to be a clear and present danger: He could refuse to insert the provision the CIA has requested into the intelligence bill. Instead, at least so far, he’s done the complete opposite.

As Timm points out, Schiff may be big on press freedom, but he's even bigger on surveillance state boosterism.

Sadly, when you take a good look at his record, Schiff has always favored the secrecy of intelligence agencies over journalists’ rights. Just a few weeks ago, he pushed Democrats to vote down a bill that would cut funding for one of the NSA’s controversial surveillance programs that collect Americans’ data without warrants.

If this amendment becomes law, reporting on covert activities will be something only criminals do. It will make it that much easier to punish journalists for printing facts. This comes at a time when the presidential administration has expressed open hostility towards journalists and the act of journalism and the Commander-in-Chief has called for the return of torture programs. Schiff -- like all of our representatives -- has a duty to protect the public from self-serving laws that encourage government misbehavior. Like far too many others, he's apparently convinced the security of the nation is more important than the people residing in it.

Filed Under: 1st amendment, adam schiff, cia, covert agents, free speech, iipa, journalism

Accused CIA Leaker Files Complaint Against The Government Seeking $50 Billion In Damages

from the good-points-terribly-made dept

Some CIA phone hacking tools made their way into the wild back in 2017. It didn't take long for the DOJ to find a suspect to charge. Joshua Schulte, a former NSA and CIA operative, was hit with a long list of charges, including espionage, child porn possession, and (at least momentarily) copyright infringement -- the last one on the list being the result of feds discovering a bunch of pirated movies and music on Schulte's server.

As this prosecution has slowly moved forward, it has gotten wilder. The DOJ claimed Schulte was continuing to leak classified info, even after being jailed while awaiting his trial. According to the DOJ's filing, Schulte was using a number of smuggled-in phones to smuggle out classified documents turned over to him by the DOJ in response to discovery requests. The government's filing also made mention of "significant encryption" stymieing its attempts to break into Schulte's contraband phone but left the definition of that term open to discussion.

Marcy Wheeler (of Emptywheel) was the first to come across Josh Schulte's latest filing in his case. And it's… something. Schulte has been openly critical of his incarceration and the US prison-industrial complex generally. Now, he's attempting to nail down the specifics by filing a complaint [PDF] against the US government for depriving him of a number of his rights and demanding, in a Dr. Evil-esque move, 50 BILLION DOLLARS.

The 88-page [!] complaint opens with Schulte's handwritten claim the government has ended a career headed for Bill Gates/Jeff Bezos-level personal fortune. The "Relief" section says:

Section 6: Monetary damages associated with illegal Federal Terrorist actions including torture and the loss of income (p. 65-69)

Total loss of income: $50,000,347,000
Total punitive damages: 5,359,270,693

Among the "illegal Federal Terrorist actions" leading to this $55 billion prayer for relief are a long list of things the government routinely subjects prisoners to, including solitary confinement, 24/7 exposure to bright lights, prison library bans, prison commissary bans, television-viewing bans, shackling, use of certain criminal charges (child porn possession) to leverage plea deals on other charges (espionage), a lack of access to hot water, indefinite pre-trial detention, and so on.

Schulte isn't wrong. A lot of what happens in federal prisons is inhumane. Whether or not it's worth $55 billion is up to the court and I'm pretty sure this complaint will be greeted with a swift dismissal. Construed liberally, it alleges a host of Constitutional violations that could meet the bar needed to move forward. On the other hand, it demands the good faith exception to the Fourth Amendment be declared unconstitutional, along with plea deals, mandatory minimum sentences, and the Classified Information Procedures Act. As a bonus, it asks for the "disbandment of the Fascist Police State including the FBI."

At best, this all seems unlikely to find a judge willing to entertain while presiding over Schulte's criminal trial. Many of Schulte's complaints are legitimate, but they're also things courts have not found to violate anyone's rights while they're incarcerated. Limited contact, extortionate phone call rates, constant surveillance, vetted mail, etc. are part of the prison experience. Many agree these things go above what's needed to keep prisons secure, but few courts (or legislators) are doing anything about it.

But along with the legitimate complaints about prison life, there's other stuff. It's not just the $50 billion Schulte thinks he could have earned if he hadn't been arrested and jailed. It's his comparing his experience to Jews during the Holocaust and insisting that his Second Amendment rights are being violated because they won't let him have a gun in jail.

But perhaps the nadir of the complaint is Schulte claiming possessing child porn is a "victimless crime."

The plaintiff was charged with a non-violent, victimless crime and subject to the presumption of detention. Even though the plaintiff has never been charged before with ANY crime and had worked for the government at the Central Intelligence Agency, the government knowingly lied and claimed the plaintiff was a danger to society.

Schulte's underlying point is solid -- that the government hasn't properly demonstrated why he should not be released to await his trial -- but it's made so badly it almost manages to negate itself.

If you can make your way past some of the heated -- but not helpful -- language, you'll find a depressing depiction of everyday prison life. It makes no difference to the government whether or not it's secured a conviction. If it can, it will lock you up until you finally are able to defend yourself against its charges. Until then, your life is over. It belongs to the government and it is willing to treat the presumptively-innocent just as terribly as it treats the guilty.

Filed Under: cia, joshua schulte, leaker, leaks, nsa, prison conditions

Julian Assange Arrested On Behalf Of The US, For Trying To Help Manning Crack CIA Password

from the cfaa-and-conspiracy dept

Julian Assange has been arrested in the UK on behalf of the US, as Ecuador has finally tired of their overstaying asylumed house guest. We're about to see quite a major legal battle, first in the UK and then almost certainly in the US, about Assange. The current charges seem narrowly focused on a CFAA-based "conspiracy" between Assange and Manning to try to hack a CIA computer, but if they expand to other Wikileaks activities, there should be concerns over press freedom issues.

I am no fan of Julian Assange or Wikileaks. However, for years I've made it clear that prosecuting him for publishing leaked documents would be a huge mistake by the US. The DOJ spent years trying to come up with an excuse to charge Assange, but kept realizing they had no case, because while he may have had malicious intent, none of his public actions in releasing documents were any different -- legally speaking -- than what any investigative journalism outlet did in releasing obtained documents. The Supreme Court has made it clear that publishing classified documents is protected by the First Amendment. If he went beyond just releasing documents, as the indictment alleges, it becomes a lot trickier -- but there's a fine line here.

It's been clear in the last year or so, that despite years of not finding anything, the DOJ was finally moving ahead with plans to charge him. As we noted last year, everyone who believes in a free press should be concerned about what this might mean for press freedoms in the US as the case proceeds. And that's true, even if the specific charges right now are limited to actions that are unrelated to the publishing of the documents.

A few minutes ago, the DOJ released a fairly barebones 7-page indictment, alleging he was in a conspiracy with Chelsea Manning to hack into government computers to obtain documents. From the indictment, the charges are separate from releasing the documents that everyone knows Manning provided to Assange, and specifically revolve around Manning and Assange apparently working together to try to hack the CIA after Manning had finished handing over all of the documents we already know about. The indictment claims (and I kid you not) that Manning "used special software, namely a Linux operating system... to obtain the portion of the password provided to Assange." What was obtained apparently was a hashed password to a CIA computer system, that Assange was allegedly going to try to crack, in order to enable Manning to get more info out of the CIA.

If all of this is true, then it certainly could go beyond issues related to press freedoms. It's one thing to receive classified documents and publish them. It is a different issue altogether to work with a source and participate in trying to hack a government system. There is no evidence that Assange was ever actually successful in cracking the password, but he's facing CFAA and conspiracy charges here that may have more staying power. If the indictment is accurate and there's evidence to back it up, then Assange could potentially be in (and this is the legal term) deep shit.

But so much of what Assange did, even if we might disagree with his reasons for doing it, is little different than what many media organizations do. What will be necessary is watching closely how the case against Assange advances and changes (it is unlikely that these will be the only charges against Assange). If it is narrowly limited to the actions described in the current indictment, the dangers to press freedoms may be limited. However, if it strays beyond that into some of the other, more journalistic efforts of Assange, it could still represent a huge attack on a free press. Given our current President's near daily attacks on the free press, with repeated announcements that he'd like to change the laws to harm them, going after Assange legally (which may seem a bit ironic, given all the accusations that Assange's leaks in 2016 were designed to help Trump get elected), might be the best way to actually achieve that goal.

Filed Under: cfaa, chelsea manning, cia, conspiracy, doj, hacking, julian assange, passwords

Gov't Says Accused CIA Hacking Tools Leaker Leaking Even More Classified Info From Behind Bars

from the I-guess-he's-just-on-a-roll... dept

The DOJ is still waiting for accused Vault 7 leaker Joshua Shulte's trial to begin, but that's not stopping it from adding to the long list of charges he already faces. The former NSA/CIA operative's house was raided last year by the feds who were looking for evidence of Shulte's leak of CIA hacking tools to Wikileaks. It found some of that, but also found 10,000 child porn images in the 5+ terabytes of data seized.

The child porn alone will likely see Shulte put away for a long time if the prosecution can secure a conviction. Leaking top secret tools isn't likely to be greeted with a wrist slap -- not with the forever War on Leakers still in progress. For some reason, the government felt compelled to add copyright infringement to the list of charges after discovering a few pieces of pirated content on Shulte's personal server.

Shulte -- who is locked up in a New York detention facility until he goes to trial -- must figure he has nothing to lose. That's one conclusion that can be drawn from the latest set of charges being brought by the DOJ. (via Slashdot)

According to new court documents filed late Wednesday, October 31, US prosecutors plan to file three new charges against Joshua Schulte for allegedly leaking more classified data while in detention at the New York Metropolitan Correctional Center (MCC).

The filing [PDF] is quite the read. According to the allegations, Shulte had access to multiple smuggled cellphones and was using them to disseminate classified info to "third parties" outside the prison walls. It appears the info Shulte smuggled out of the prison came from classified documents released to him as part of his pre-trial discovery. The DOJ has now stripped him of access to classified documents, restricting him to unclassified info released by the FBI.

A flurry of paperwork and a search of Shulte's housing unit turned up a number of things, including a new form of encryption.

In or about early October 2018, the Government learned that Schulte was using one or more smuggled contraband cellphones to communicate clandestinely with third parties outside of the MCC. The Government and the FBI immediately commenced an investigation into Schulte’s conduct at the MCC. That investigation involved, among other things, the execution of six search warrants and the issuance of dozens of grand jury subpoenas and pen register orders. Pursuant to this legal process, in the weeks following the Government’s discovery of Schulte’s conduct at the MCC, the FBI has searched, among other things, the housing unit at the MCC in which Schulte was detained; multiple contraband cellphones (including at least one cellphone used by Schulte that is protected with significant encryption); approximately 13 email and social media accounts (including encrypted email accounts); and other electronic devices.

Given the FBI's recent history, it probably should be more careful when it discusses encryption. A few years of "going dark" narrative was upended by the agency itself, which revealed it could not competently count physical devices in its possession. The ever-inflating number of impenetrable devices was suddenly, and embarrassingly, converted to an asterisk on multiple FBI/DOJ webpages with footnotes stating an updated number would be provided at the agency's convenience.

Now, there's this: a DOJ prosecutor relaying the FBI's message about "significant" encryption -- whatever the hell that is -- to the federal judge presiding over the case. What makes this particular encryption "significant" isn't explained, but it does seem to make this encryption appear far more nefarious than the regular, insignificant encryption used by citizens not currently under federal indictment.

Three more charges are headed Shulte's way, all of them related to unlawful disclosure of classified documents. This isn't charge stacking -- not if the government's allegations are true -- but it could definitely nudge Shulte towards a plea deal that will save the DOJ a lot of time, energy, and arguments over presenting sensitive information in open court.

Then again, Shulte appears to be anything but cooperative. Leaking classified documents directly under the fed's nose while in supervised detention is a bold move that bears a lot of resemblance to a middle finger extended in the direction of the government. This may end up being a very fun trial to watch.

Filed Under: cia, doj, encryption, hacking tools, joshua schulte, leaks, vault 7
Companies: wikileaks

Judge Says FOIA Isn't Battleship; Requesters Don't Need To Score Direct Hits To Obtain Documents

from the nine-page-judicial-eyeroll dept

Government agencies will eventually follow the letter of FOIA law. It usually takes a lawsuit to push things forward, but even losing in court seldom prompts above-and-beyond service from the government. The spirit of the law is ignored in favor of obfuscation, foot-dragging, and blatant antipathy.

Certainly the government shouldn't be expected to compose FOIA requesters requests for them if they send vaguely-worded requests. On the other hand, the government shouldn't demand specificity from requesters who don't know what documents an agency has on hand or how the search will be conducted.

The CIA once told a requester he needed to know exactly which parties were involved in communications about the agency's FOIA portal outage -- information that could only be gleaned from the emails the CIA was refusing to look for until it had more information. This is the normal level of being dicked around that requesters can expect when dealing with our more reticent public agencies.

"Vagueness" was the CIA's excuse to not perform its FOIA duties. The DHS, on the other hand, has decided specificity in requests can also be used against requesters. A FOIA lawsuit filed by the Government Accountability Project contends the agency did a deliberately lousy job searching for records related to border phone searches and ideological assessments performed by border security personnel.

The federal judge agrees. The opinion [PDF] notes the DHS has turned the FOIA process into a game -- one requesters aren't likely to win. [h/t Mike Scarcella]

This Freedom of Information Act case is reminiscent of the classic board game Battleship, where players array a fleet of plastic warships on a secret grid and alternate directing “shots” at the opponent’s vessels by calling out precise coordinates. A shot hits its mark only if an enemy vessel is situated on a specified target.

Plaintiff Government Accountability Project (“GAP”) asked for any records in the Department of Homeland Security’s (“DHS”) possession that related to “ideological tests” and “searches of cellphones” at the U.S. border. The agency obliged in a manner consistent with the rules of Battleship. It canvassed its electronic records for direct hits, looking only for records that contained the verbatim language GAP used in its request. For the first search, it used the terms “ideological tests” and “border”; for the second, it used the keywords “search” and “cellphone.” After the searches yielded zero responsive documents, GAP complained that DHS unreasonably omitted additional search terms that quite likely would have generated a more robust return. Because FOIA requests do not operate like a game of Battleship—and for other more technical reasons that follow—the Court agrees and will order the agency to conduct its search anew.

Somehow the DHS failed to come up with any responsive emails related to border cellphone searches or ideological tests -- both items heavily-discussed in the news and in Congress. While the DHS did manage to find 965 megabytes of responsive records for "search" and "cellphone," its staffers decided none of the 807 documents were actually responsive to GAP's request.

GAP argued the DHS's searches were deliberately structured to steer around responsive documents. The court again agrees, pointing out it's the government's duty to help requesters obtain the documents they seek, not be deliberately obtuse.

[T]hough a “requester must reasonably describe the records sought, an agency also has a duty to construe a FOIA request liberally.” Nation Magazine, 71 F.3d at 890. And ultimately, it is the agency’s burden to show “beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild, 641 F.3d at 514 (quotation omitted).

The court addresses the DHS's seemingly-deliberate obtuseness in a footnote, pointing out things its FOIA response team likely knows, but chooses not to deploy to reduce the number of documents it has to hand over.

The Court appreciates DHS’s concern that searches for commonly-used words like “cell,” “phone,” and “test” may return too many records for the agency to digest. But that concern dictates using more sophisticated search techniques, including additional filtering keywords or Boolean operators and connectors, to winnow the results to a manageable level.

Doing simple things like these -- which anyone in an FOIA position should know how to do -- would produce responsive documents far more frequently than restricting the first search to "ideological test," which likely omitted documents containing both of these words but not in that specific order. The same goes for the second request, which requires uses of variations of "cellphone" to capture relevant documents. It appears the DHS had no interest in fulfilling this request or the spirit of the law -- something made doubly clear by the fact that the DHS did not even start searching for records until it was sued… five months after receiving the request.

FOIA law serves the public. It is not in place to serve the government agencies that are supposed to be serving the public. The only reason the law exists is because agencies will never be proactively transparent. They need to be forced to be transparent, and even then, they do what they can to avoid the responsibilities placed on them by this legislation. More decisions along this line will dissuade bad faith search efforts. But when legal fees are awarded, it's taxpayers who ultimately pay the price for malfeasance committed by agencies they fund with even more of their tax dollars. So the effect will be present, but the buffer zone of other people's money will definitely mute the effects.

Filed Under: battleship, cia, dhs, direct hit, exact, foia

CIA Game Now In Production: Last Chance To Order

from the and-off-we-go dept

Pre-order your copy of CIA: Collect It All today »

It's been a while since we've mentioned our version of the CIA's internal training card game, that we Kickstarted back in April. For those who backed it, you've been receiving all the various updates on it -- including allowing everyone to download the rulebook. And now the game is officially in production -- which also means this may be your last chance to purchase a physical copy. While we're printing up some extra copies beyond what's already been ordered, at this point we're only doing this one printing of the game, and that'll be it. You can still pre-order the game here, and as we get closer to selling out the initial run we'll turn it off.

If you don't recall, this project grew out of the CIA telling the world about some of the internal training card and board games it had developed, leading to some FOIA requests that revealed the heavily redacted details of some of these games. We picked one of them -- which the CIA calls Collection Deck -- and turned it into our own game, entitled: CIA: Collect It All. It's a fast paced card game, in which players take on the role of CIA analysts, trying to collect enough information, using a variety of different spycraft techniques, to deal with various crises. Of course, as with the real world, other forces seek to get in the way and block the analysts from collecting all of the information they need.

For our version of the game, we had to fill in a whole bunch of redacted cards, completely redo the design, and add in some other fun aspects to the game -- including an entirely different "storytelling" variant which allows you to use the same cards for a very different kind of game (still based on the CIA).

After completing the redesign, filling in all of the redacted bits, adding new rules, rewriting the entire rulebook from scratch and more, we finally received our first prototype, and have approved it going into full production. We've initially ordered more than we sold via Kickstarter, but not a huge amount, so if you want a physical copy, it makes sense to put your order in soon.

Filed Under: card games, cia, collect it all, collection deck