James Clapper's Office Declassifies Another Set Of Fully-Redacted Pages

from the also-jabs-public-in-eyes-with-godawful-scans dept

The ODNI continues to comply with court orders from FOIA lawsuits but its compliance is in letter only. Declassifying documents the way the ODNI does isn't helping further the debate on privacy vs. security or making the government's arguments for surveillance dragnets any more clear.

Two more documents were released late Friday, with one of them being more about what it doesn't include than what it does and the other potentially leading to irreversible eye damage.

First up, the FBI's report on the maintenance and use of [REDACTED] databases. About the only thing surviving the redaction knife is a few footnotes which indicate this document has something to do with the pen register/trap and trace bastardization that turned a targeted surveillance technique with a low legal barrier to entry into a broad, untargeted dragnet with a low legal barrier to entry. (PDF link.)

But this is how most of the "declassified" report looks.

Right-margin barely large enough to contain the exemptions.


The unexpected use of black in a sea of white redactions.


All of the above is in addition to several pages that were withheld in their entirety, without even being given the chance to be redacted into uselessness.

What remains is mainly footnotes. One supplies a description of PR/TT surveillance pulled directly from the US code. One references CALEA (Communications Assistance for Law Enforcement Act). One footnote points out that the FBI is not allowed to "affirmatively search" content gathered incidentally by this program, unless, of course, (truck-sized loophole ahead) it needs to "prevent harm to national security."

In total, the document is of zero value to anyone anywhere. No information was freed, nor will it be -- not if intelligence officials have the final say for redactions. The redactions can be challenged, but that's in EPIC's hands.

The second document, a declaration in support of the PR/TT program by CIA director George Tenet, contains more readable info… but just barely. There's a lot of redactions in here as well but the main struggle is reading the remaining text which looks like it was rolled off a myopic, 75-year-old mimeograph. (PDF link.)

Most of Tenet's declaration revolves around threats the CIA was tracking, none of which are allowed past the censor, despite it being a decade later. The name Al-Qaeda appears every so often, and there's hints of a discussion revolving around surveillance tactics and government actions related to the 9/11 attacks, but most of this information is withheld as well.

Interestingly, Tenet notes that the CIA (and other agencies) have picked up signals that signal a "US strike" in the "next four months," possibly in conjunction with the 2004 elections. It also cautions that being too effective may be accelerating terrorists' attack plans, with detainments and other factors possibly causing terrorism leaders to believe their operations are compromised.

Tenet declares all the redacted surveillance programs to have been essential in disrupting terrorists' plans and/or possibly pushing attack timetables forward, noting that the PR/TT has been invaluable in lots of things that are completely redacted. In conclusion, please give the NSA/FBI PR/TT dragnet privileges.

So much for transparency. Even a discontinued surveillance program is subject to page after page of complete redaction, including documents discussing threats over a decade old whose attacks and plans were either thwarted or never came to fruition. The word "declassify" generally is taken to mean a release of information previously withheld, but in the ODNI's hands, all it means is the release of as little as possible.

Filed Under: declassify, foia, james clapper, nsa, odni, surveillance

White House Going With 'Security By Obscurity' As Excuse For Refusing To Release Healthcare.gov Security Details

from the hackers! dept

These days, in the computer security world, it's pretty well known that if you're relying on security by obscurity, you're not being secure. Somehow that message has not reached the techies working on Healthcare.gov. I guess it shouldn't be much of a surprise, given what a disaster the rollout of that site was, but everyone was claiming that the whole thing was under control these days, since real techies had been brought in to fix things. In fact, everyone was so happy with Mikey Dickerson's miraculous saving of the program that the White House set up a special US Digital Service for him to lead, allowing him to save other US government projects from near certain disaster.

But when the Associated Press filed a Freedom of Information Act request to find out how Healthcare.gov was handing its security it got rejected because, according to the White House, it might teach hackers how to break into the system:

In denying access to the documents, including what's known as a site security plan, Medicare told the AP that disclosing them could violate health-privacy laws because it might give hackers enough information to break into the service.

"We concluded that releasing this information would potentially cause an unwarranted risk to consumers' private information," CMS spokesman Aaron Albright said in a statement.

Of course, that suggests that merely revealing the security steps the site has taken will reveal massive vulnerabilities -- and, as most people with even the slightest bit of technological knowledge know, if that's the case, then it's likely the site has already been compromised. If revealing the security setup for the site will leave it open to being hacked, we should probably assume the site was hacked a long, long time ago. If they're deploying security right, merely telling the world what they're doing wouldn't increase the risk. The fact that they're afraid it will suggests that the security plan is dangerously weak.

Filed Under: foia, healthcare.gov, security, security by obscurity
Companies: associated press

Specially-Designated 'FOIA Denial Officers' Are Handling The Dept. Of Education's Rejected Requests

from the we've-got-some-bad-news-and-some-bad-news dept

While you would think this position exists at multiple agencies (NSA, FBI, CIA, the NYPD), it's never been captured in stark black-and-white. Morgan Smith, reporter for the Texas Tribune, recently tweeted out a photo of a rejected FOIA request. A rejected FOIA is not necessarily newsworthy. But it is when it's been rejected by someone bearing the unlikely title of "FOIA Denial Officer."

Here's to transparency in job titles! #foia pic.twitter.com/x3nxnDL29a

— Morgan Smith (@MorganSmith) August 12, 2014

Taylor D. August, of the Dept. of Education's Office for Civil Rights, is also a FOIA Denial Officer. Considering the government's general antipathy towards transparency, you'd think several agencies would have a full-time request denier on staff. But while many agencies spend more time stonewalling and denying requests, only the Dept. of Education actually has designated employees on hand solely to reject requests.

A look at the DOE's FOIA FAQ gives us the first clue:

10. Who has the authority in ED to withhold documents (in part/whole)?

The FOIA Officers, the Office of Inspector General and the Regional FOIA Denial Officers have the authority to withhold documents.

It appears this agency is extremely well-equipped to handle numerous rejections. Three tiers of rejection are available to requesters, running all the way up to the OIG. There's no reason given as to why the DOE would need regional "denial officers," but this position traces back to 2006.

In a section titled (of all things) "Customer Service," the DOE details its FOIA response automation, which routes through the Office for Civil Rights. Citing the "significant number" of requests it receives (at that point averaging around 900 per year), the agency detailed its efforts to keep up with the paperwork.

To further customer service with respect to FOIA and Privacy Act requests, OCR has been a significant participant in the Department’s initiative to automate case management under these laws. Executive Order 13392, “Improving Agency Disclosure of Information,” issued on Dec. 14, 2005, emphasizes the need for more efficient and effective processing of FOIA and Privacy Act requests.

What most of us would believe was an order intended to increase the release of responsive documents, the DOE read it as an indication it wasn't rejecting requests efficiently enough.

In addition, in FY 2006, consistent with Executive Order 13392, OCR established new FOIA procedures, including delegation to the 12 OCR office directors of the authority of FOIA denial officers. This allows FOIA requests to be processed in a more efficient and timely manner, and establishes clear accountability for FOIA processing.

As of 2006, the DOE had 12 more officials dedicated solely to rejecting FOIA requests than all other government agencies combined. (Unofficial numbers obviously impossible to obtain, much less verify, but the term "FOIA denial officer" produces search results that indicate only the DOE has such a position.)

More details on the "Denial Officers" can be found in the agency's FOIA policies and procedures (embedded below.) Here's the definition of the term:

Denial Officers. The FOIA Officers, the Secretary's Regional Representatives, or officials designated by them (Regional FOIA Review Officers), and the Office of Inspector General (OIG) who are authorized to withhold records, in whole or in part, that fall within one (1) or more of the nine (9) exemptions or three (3) exclusions of the FOIA.

Initial determinations are made by regular FOIA officers who look for possible withholding exemptions and consider fee waivers. This is handled regionally and requests possibly eligible for rejection are passed on to one of the 12 regional denial officers.

In each instance in which it is recommended that record(s) or portion(s) thereof be withheld, carefully separate materials to be withheld from those to be released, redact (e.g., remove) all exempt information from the records, and forward a copy of the redacted materials, along with an unredacted version for comparison, to the appropriate denial official. Indicate where in the records the redactions occur and why the relevant exemption(s) apply;

In each instance where "no responsive records" are located, forward (a) a memorandum to the appropriate denial official describing with particularity what records (both electronic and hard copy) were searched, search times (differentiating between computer search times and manual searches since there is a different fee rate assessed for each of these searches), and who conducted the search, and stating that the search results were negative together with (b) a draft denial letter to the requestor to be signed by a FOIA Officer;

Denial officers will always be the be the bearer of bad news.

If the denial official agrees with the recommendation to deny the request, the denial official notifies the requestor in writing of the decision to withhold the information, in whole or in part, and informs the requestor of his/her appeal rights.

However, the denial officer isn't solely limited to writing rejection letters. He or she can also push back.

If the denial official disagrees with the recommendation to deny the request, he/she notifies the FOIA Coordinator and the PO Action Office and directs the FOIA Coordinator to provide the records to the requestor.

At which point, the requester receives the responsive documents thanks to a denial officer, but from someone whose title is less resolutely negative. As much fun as it might be to press the REJECT button, denial officers will never know the joy of making a requester happy. It's a thankless job with a brusque title… unless you're the sort of person who enjoys doling out rejection or simply takes pride in your work, no matter what that work might mean.

It seems odd that the DOE would stand alone in its creation of a FOIA Denial Officer. So many government agencies are more than happy to reject request after request (and appeal after appeal), but none have been so brutally honest as to create a position solely for this purpose. The DOE's system may actually be more streamlined than those at comparable agencies, but only the DOE has the strength of character to let requesters know that a fully and specifically trained expert is behind their request's rejection.

Filed Under: accountability, department of education, foia, foia denial officers, taylor august, transparency

State Treasurer Cites Anomalous Kidnapping Case, Office Distraction In Denying Newspaper Access To State Pension Fund Records

from the because-DANGER-and-also-office-gossip dept

In the supposed interest of safety (among other things), Rhode Island's state treasurer is seeking to keep management contracts a secret -- but only for a select group of managers. Here's the impetus:

Citing the case of Eddie Lampert, an investor who was abducted in 2003 by ransom-seeking kidnappers, the letter to Assistant Rhode Island Attorney General Michael Field from Raimondo’s office further argued that disclosing too much information about financial fees and compensation could endanger the lives of hedge fund managers.

Notice that it's only hedge fund management Rhode Island treasurer Gina Raimondo is concerned about. Although upper level management in other industries is likely compensated at rates attractive to ransom-seeking kidnappers, Raimondo just wants this select few to be exempt from public disclosure. This is for several reasons, but mostly this reason:

Raimondo is a Democrat who founded one of the financial firms that manages Rhode Island pension money.

Raimondo's letter, in addition to raising ridiculous kidnapping fears (the thing that happened ONE TIME, more than a decade ago), also claims that publicizing hedge fund managers' compensation makes it hard to get any work done around the office.

"Fund managers keep this information confidential to help preserve the productivity of their staff and to minimize attention around their own compensation..."

These reasons were all cited in the state's refusal to disclose details of hedge fund management contracts to Rhode Island's largest newspaper, the Providence Journal. Not covered in the refusal letter was Raimondo's involvement in steering billions of dollars of state pensions into funds with higher risks and higher fees, or that Raimondo's firm, Point Judith, receives a cut of the $7.7 billion at stake.

Of course, the spokesperson for the treasurer's office claimed the office was all about transparency.

“Rhode Island has become a national leader in disclosing management and performance fees paid to all investment managers, including hedge funds, private equity, equity and fixed income managers." The state has disclosed the total fees paid to financial managers while merely withholding the management contracts, the treasurer's office maintains.

Her office also maintains that Raimondo has done everything possible to insure her position avoids any conflicts of interest. And yet, her office tells journalists it won't be releasing public records about state pensions. If I were a government official foisting some sort of new surveillance on the public, I would say this lack of openness indicates Raimondo has something to hide. But I'm not one of those people. Instead, I'm just more than a little cynical which, oddly enough, brings me to the same conclusion.

It's hardly surprising that a government official would try to use fear (kidnapping!) as an excuse to keep public records away from the public. This tactic informs nearly every FOIA request refusal from our nation's investigative and intelligence agencies. This misdirection is used to excuse all sorts of misconduct from law enforcement officers. This is also used to ensure backroom deals stay hidden in the back room. If Raimondo has truly "taken all recommended steps" to avoid conflicts of interest, then she should have no problem turning over these contracts. But she's gone the other way, surprising no one and further widening the distance between her office and the public it's supposed to be serving.

Filed Under: eddie lampert, foia, gina raimondo, public records, rhode island, state treasurer

Judge Gives DOJ Until The End Of The Month To Submit Declassified Opinion Containing FISA Court's Justifications For The Section 215 Program

from the surveillance-state-sausage-making dept

It appears the government will finally be releasing the FISA court's thought process justifying the mass harvesting of Americans' metadata from fully-immunized telcos under the Section 215 program (now 501). An earlier court order from FISA judge Dennis Saylor discussing the potential release of this court opinion described it thusly:

The government has identified the Opinion issued in Docket Number BR 13-25 on February 19, 2013, as one that "contain[s] analysis by this Court evaluating the meaning, scope, and/or constitutionality" of Section 215 of the USA PATRIOT Act, codified as amended at 50 U.S.C. § 1861.

Whether it will be instructive and enlightening (rather than stuffed full of Third Party Doctrine bullshit and circular "it's legal because it's legal" reasoning) remains to be seen. But the last two words of that previous sentence are something at least: it will "be seen." And, apparently, with a minimum of redactions.

For the reasons stated herein, the Court is directing the government to prepare and declassify a redacted version of the opinion issued by the Foreign Intelligence Surveillance Court (FISC) in Docket Number BR-25 on February 19, 2013.

The ACLU (and others) have pushed for a release of this particular FISC opinion for more than a year now. The court doesn't even attempt to address the First Amendment implications of withholding the opinion from the public because there are plenty of other angles justifying its release. The court notes that the release would serve the public's interest as recent disclosures (both authorized and unauthorized) have brought the Section 215 program into the court of public opinion (as well as actual federal courtrooms).

While the FISA court may have arrived at this conclusion based on ongoing events, the government arrived somewhere completely different.

After appropriations had been reinstated and a timetable for declassification review had been set, the government advised that, “[a]fter careful review of the [February 19, 2013] Opinion by senior intelligence officials and the U.S. Department of Justice, the Executive Branch has determined that the Opinion should be withheld in full and a public version of the Opinion cannot be provided.”

The FISA court asked for the combined brain power of the DOJ, Executive Branch and an unspecified number of "senior intelligence officials" to explain their thought process and got a lot of unintelligible mumbles and floor-staring in return.

Noting that “the government has provided no explanation of this conclusion,” the Court ordered the government to submit “a detailed explanation of its conclusion that the Opinion is classified in full and cannot be made public, even in a redacted form.”

Duly chastened, the brain trust resorted to one of its favorites: making this info public would jeopardize ongoing investigations. But it conceded that the opinion could still be declassified if a sufficient amount of black ink is spilled. The FISC pressed harder, asking for narrower redactions that removed only the targets in question, rather than the accompanying language that would clarify the court's stance on the bulk collection issue. Surprisingly, despite its lack of practice with operating anything narrowly-defined or targeted, the government managed to come up with a redacted version that satisfied the unexpectedly demanding FISA court.

[T]he Court notes that releasing the February 19, 2013 Opinion pursuant to the Second Redaction Proposal achieves the basic objective sought by the movants: disclosure of the Court’s legal reasoning, to the extent that it can reasonably be segregated from properly classified facts. There is an inherent risk that the end product of such an exercise “may confuse or obscure, rather than illuminate, the decision[ ] in question.” In re Motion for Release of Court Records, 526 F. Supp.2d at 495. On balance, however, the Court is satisfied that publication of the February 19, 2013 Opinion in conformance with the Second Redaction Proposal would enhance, rather than detract from, public understanding of the Court’s reasoning as to the legal issues presented.

Well, I guess we'll see what it looks like when we get it. August 29th is deadline for the submission of a formally declassified version of the (supposedly) narrowly-redacted opinion. The FISA court then needs to give it a quick once-over before publishing it "immediately" to its website. I don't expect to see it any sooner than the end of this month, but we'll be taking a good look at it when it finally arrives.

Filed Under: bulk data collection, bulk phone records, doj, fisa court, fisc, foia, justification, legal justification, nsa, section 215

San Jose Police Dept. Spends Two Years Denying Any Interest In Drones Before Apologizing And Handing Over Documents

from the sorry-about-all-that-lying dept

The San Jose Police Department has spent more than two years denying it has a drone in its possession, having returned no responsive documents to MuckRock during its 2012 and 2013 "drone census" document requests. The drone the SJPD pretended to not have in its possession (until just recently) may have not been acquired until early 2014, but its grant application was actually submitted sometime prior to November 30, 2012. But this is how the SJPD responded during previous requests.

On December 17, 2012, an analyst within the SJPD Research and Development Unit specifically responded that the department had no records regarding research into drones or plans to use unmanned aerial vehicles.

In October 2013, SJPD swatted away a second request for records.

“Our Department does not use aerial drones, remotely piloted vehicles (RPVs), remotely piloted aircraft (RPAs), unmanned aerials (UAs), unmanned aerial vehicles (UAVs), and/or unmanned aerial systems (UASs), nor does our Fiscal Unit have any records related to these items,” wrote Monique Villarreal, an R&D analyst in the SJPD chief’s office, on October 16, 2013.

Unfortunately for the SJPD, its drone-acquisition activities were generating paperwork elsewhere -- documents it couldn't hide, like city council meeting minutes in which funding for an unmanned aerial vehicle was discussed.

Now, the SJPD has turned over all of its drone documents, along with an apology for hiding this information from the public.

In hindsight, SJPD should have done a better job of communicating the purpose and acquisition of the UAS device to our community. The community should have the opportunity to provide feedback, ask questions, and express their concerns before we move forward with this project. To this end, we will first develop a community outreach plan before we take steps to deploy the UAS.

Following the completion of the community outreach efforts, the Department will then develop the policy and procedures that will provide an appropriate and practical framework to guide our operation of the UAS. At the same time, we will continue to research legal implications and Federal Aviation Administration requirements for the operation a UAS by SJPD.

We are confident that this technology can improve certain police operational efficiencies and help enhance public and officer safety in specific critical incidents. However, SJPD will not use the UAS until these outreach and procedural steps have been completed and approved.

This might be of some comfort going forward, but what the SJPD claims was just a failure to communicate was actually a more proactive effort to keep this information out of the public's hands.

The drone documents that came bundled with an apology also contain assertions by the department that its new toy doesn't fall under the FAA's (very vague) regulatory policies. For one, the department doesn't consider its unmanned aerial vehicle to be a "drone." Despite its use by a law enforcement agency, the SJPD -- citing an "advisory" issued in 1981 by the Dept. of Transportation -- claims its UAV is completely indistinguishable from a hobbyist's. But its decision to go with a hobbyist-style "drone" doesn't make it automatically exempt from FAA regulation.

[T]he FAA has long made clear that all government agencies require authorization to operate an unmanned aerial vehicle in domestic airspace, regardless of the particular body type or where the unit was purchased. Hobby UAVs that weigh less than 55 pounds and fly under 400 feet are exempt from licensing requirements, but hobbyist rules do not apply to governmental applications.

This assertion also contradicts other memos released by the department, which state that the drone must remain shelved until its compliance with FAA regulations is determined.

The SJPD says the drone will have a very specific use -- to act as eyes for its bomb squad. If that's true, there's no reason it should have kept its plans a secret for two years. A large percentage of the public would be on board with narrowly prescribed usage. Mission creep is always going to be an issue, but being open with the public (and asking for its opinion) is one of the best ways to prevent abuse of new surveillance technology. Having to be forced into openness isn't exactly encouraging, but at least the SJPD will have more eyes on it going forward.

Filed Under: drones, foia, san jose

DC Circuit Court Tells District Officials They Can No Longer Hide From FOIA Requests By Using Personal Email Accounts

from the seriously,-stop-being-assholes-about-this dept

With the FOIA process increasingly being routed through courtrooms, it's refreshing to see a court stand up and tell public officials to stop trying to find ways to be less transparent. The DC circuit court recently issued a ruling that shuts down a potential opacity loophole for public officials: the use of personal email accounts.

City officials who conduct public business on personal email accounts must turn their personal emails over in response to a Freedom of Information Act request, according to a recent, first-of-its-kind ruling in D.C. Superior Court.

The July 9 order by Judge Stewart Nash brings the District into line with the majority of states that have addressed the issue, signaling an emerging trend in favor of government transparency—if not an end to efforts to work around disclosure laws.

The district's attorneys tried to argue that the neighborhood advisory commission's emails (at least those routed in and out of Commissioner Dianne Barnes' personal account) were exempt from FOIA requests because the account used wasn't a district-owned account, but the judge wasn't buying it.

"This argument requires the Court to ignore Ms. Barnes’s position as Commissioner of the ANC," the judge wrote. "To the extent that Ms. Barnes is acting in her capacity as Commissioner of the ANC, then communications made or received by her would be communications of the ANC, irrespective of whether such communications were associated with her personal e-mail account."

Public officials (like former New York City mayor Mike Bloomberg) have tried to keep certain communications out of the hands of the public by using personal devices and email accounts. To a certain extent, this has worked. But many states have established policies in order to close this loophole, basically stating that it doesn't matter where the communication originates but what the subject matter is.

As that view has been challenged, states have increasingly found that the content, not the ownership of the device or account, is the determining factor of whether a communication about public business is subject to FOIA disclosure laws, according to the peer-reviewed journal Communication Law and Policy.

Which is as it should be. The Freedom of Information law was created to help the public hold their representatives and public servants accountable, as well as to provide insight to the how and why of government activity. Routing around this by using personal devices cuts the public out of the loop. A government that often argues "nothing to hide" means "nothing to fear" certainly seems to be doing a lot of hiding, leading directly to people questioning what exactly it has to fear. Considering these are people in seats of power, these deliberate attempts to hide public communications is, at the very least, misconduct, if not actual cowardice.

Judge Nash's earlier verbal order for the district to turn over the requested emails was ignored. Now, it's in writing. Without a doubt, the district will challenge this ruling before it hands over anything, forcing a member of the public to spend even more money and time suing the government into compliance with its own statutes and laws.

Filed Under: emails, foia, freedom of information, government officials, personal email accounts, stewart nash, transparency

CIA Tells FOIA Requester That He Needs To Know Everything About The Emails He's Requesting Before He Can Request Them

from the using-the-rarely-seen-tautology-exemption dept

More FOIA-related nonsense, this time from the CIA. Michael Morisy, co-founder of MuckRock, sent a request for internal emails discussing (rather ironically) the fact that the CIA's "FOIA Portal" seems to suffer from extended periods of downtime.

This is a request under the Freedom of Information Act. I hereby request the following records:

A copy of emails sent to or from the CIA's FOIA office regarding the FOIA Portal's Technical Issues.

According to the CIA's current FOIA website: "FOIA requests cannot currently be made online due to technical issues. Requests can still be submitted via the US Postal Service and facsimile."

http://www.foia.cia.gov/

Please also include any attachments to these emails.

Given the agency's disdain for the FOIA process (second only to the NYPD), I'm sure this sort of outage is viewed as a feature, not a bug. But whatever internal musings the CIA had about its FOIA portal issues will apparently be staying internal for the time being.

The CIA rejected Morisy's request in full, basically stating that searching for emails is hard work and that the requester could have at least bothered to know exactly who was talking about the portal issues and exactly when they were doing it before making the request.

The FOIA requires requesters to "reasonably describe" the information they seek so that professional employees familiar with the subject matter can locate responsive information with a reasonable amount of effort. Commonly this equates to a requirement that the documents must be locatable through the indexing of our various systems. Extremely broad or vague requests or requests requiring research do not satisfy this requirement. We require requesters seeking any form of "electronic communications" such as emails, to provide the specific "to" and "from" recipients, time frame and subject. We note that you have provided the subject only. Therefore, we must decline your request.

Obviously, a FOIA requester isn't going to know these sorts of specifics beforehand, hence THE REQUEST FOR INFORMATION. As MuckRock's JPat Brown points out, Twitter user Mythosopher had perhaps the best response to this refusal...

You can't see any emails or know who sent or received them. But you must request the exact email and who sent and received it.

... along with this graphic:


The CIA has pretty much ensured many requests will be found too cumbersome to comply with. It used 2013's brief sequester as an excuse to shut down its office in charge of declassifying historical documents and fold it in with the FOIA department's steady stream of extension requests and denials. And the CIA joins an ever-lengthening list of federal agencies completely mystified by internal email systems. Oddly, this same government expects the US public to trust that agencies like the FBI, CIA, NSA and countless law enforcement entities will be able to find the needles in your personal email haystacks -- obtained in bulk with FISA court orders, NSLs or old-fashioned open-ended, non-specific warrants.

The CIA itself has already raided internal networks to root out Senate staffers and whistleblowers, but no one heard anyone complain about the lack of specifics making the job too tough to do. It's only when the public asks to dip into the government's business that these agencies suddenly start acting like the impossible is being demanded.

Filed Under: cia, foia, secrecy, transparency

FISA Court Judges Keep Buying Verizon Stock; Wonder What They Know...

from the foia-ftw dept

Lee Fang, over at Vice, has quite a revelation based on some FOIA requests. It seems that the various judges on the FISA Court who keep approving the NSA's requests for bulk data from the telcos... also seem to keep buying Verizon stock.

On May 28 last year, Judge James Zagel, a FISA Court member since 2008, purchased stock in Verizon. In June of this year, Zagel signed off on a government request to the FISA Court to renew the ongoing metadata collection program.

He's not the only one. We filed a request to the courts for the personal finance statements for all of the FISA Court judges. About a month ago, federal judges began turning in their disclosures, which cover the calendar year of 2013. The disclosures show that FISA Court Judge Susan Wright purchased Verizon stock valued at $15,000 or less on October 22. FISA Court Judge Dennis Saylor has owned Verizon stock, and last year collected a dividend of less than $1,000. The precise amount and value of each investment is unclear—like many government ethics disclosures, including those for federal lawmakers, investments amounts are revealed within certain ranges of value.

While this may not be a true sign of corruption, it at least raises some basic ethics questions. As Fang notes, ethics rules say that judges need to recuse themselves from cases where they have a financial stake in the outcome. But, it's not as clear cut, since the telcos aren't actually parties to the cases brought by the DOJ to the FISA Court (there are no other parties, generally, it's just the government). And even if there isn't anything fishy here, just the appearance of a potential bias seems problematic.

"I think prudence would suggest that a FISA judge would not acquire investments in these telecommunication stocks," says Professor William G. Ross, an expert on judicial ethics at Samford University's Cumberland School of Law in Alabama. "I'm not saying there is a conflict of interest, which my impression says there's probably not," Ross says, adding, "this is between what's improper and what's prudent."

And, indeed, there definitely appears to be a conflict of interest here. As you may recall, it's been reported that the telcos were given over $100 million for "volunteering" to hand over customer records. While that may be peanuts overall to a major telco's bottom line, it's not nothing.

Filed Under: conflict of interest, ethics, fisa court, fisc, foia, section 215, surveillance
Companies: verizon

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

from the progress dept

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.

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