Judge Says The FBI Can't Keep Refusing To Confirm Or Deny The Existence Of Social Media Monitoring Documents

from the that-thing-we're-all-doing...-we-can't-really-say-we're-doing-it dept

The ACLU is one step closer to obtaining documents detailing the FBI's use of social media monitoring tools. The FBI replied to the ACLU's FOIA request with a Glomar and a denial.

First, it neither confirmed nor denied it had responsive records. Then it said even if it did have some, it still wouldn't release them. According to the FBI, releasing documents about the government's well-known use of social media monitoring software would somehow allow criminals to take a peek at super-secret law enforcement tools. It made these assertions despite the fact it publicly secured contracts for social media monitoring tools.

The ACLU sued. And now, it's obtained at least a partial victory. The court says it's not quite accurate to say the DOJ has already publicly acknowledged use of social media monitoring tools. Citing the ACLU's victory in an FOIA lawsuit over drone strike documents, the court points out the bar to clear first is whether it can be said the DOJ -- not the FBI -- has made it clear it's in the social media monitoring business. From the decision [PDF]:

[ACLU v. CIA] does not suggest that the known use of a technique by one agency creates public knowledge of use by a different agency, unless it is publicly known that the agency’s parent agency utilizes that technique. Here, the FBI’s parent agency is the Department of Justice, and the ACLU presents no evidence that it is publicly known that the Department of Justice utilizes the social media monitoring techniques in question.

But that's not the end of the discussion. The FBI works with several other federal agencies and the documents requested would cover any secondhand use of monitoring tools. So, is it public knowledge other federal agencies engage in social media monitoring?

Given the wide array of evidence indicating (1) that other agencies engage in social media monitoring in the immigration and transportation contexts, and (2) that those agencies cooperate, coordinate, and share information with the FBI, the Court also considers whether such evidence makes it possible to impute, for purposes of applying Exemption 7(E), social media monitoring in the immigration and transportation contexts to the FBI. The ACLU presents extensive evidence that the Department of Homeland Security (“DHS”), U.S. Customs and Border Patrol (“CBP”), U.S. Citizenship and Immigration Services (“USCIS”), Immigration and Customs Enforcement (“ICE”), and the Department of State (“DOS”) engage in social media monitoring.

Following this are six straight pages detailing these agencies and their monitoring programs, all of which have previously been discussed publicly. But that still isn't enough.

[T]he Court finds that the weight of authority suggests that the ACLU cannot seek disclosure of the FBI’s policies based on other agencies having disclosed their own policies, together with acknowledgement that they share information with the FBI.

If this seems to be going the government's way, it actually isn't. The Glomar and the attached exemption don't pair as well as the government would like. The Glomar, at least, is a step too far in the direction of unjustified opacity.

The problem for Defendants is that disclosure of social media surveillance—a well known general technique—would not reveal the specific means of surveillance. Denying a Glomar response would only reveal in general the application of a known technique by the FBI to immigration- or transportation-related investigations. Merely requiring the FBI to answer whether there are documents of the kind requested would not, at this juncture, require the disclosure of those documents which might reveal specific tools and techniques utilized by the FBI.

The government then argued denying a Glomar might expose the FBI's lack of social media monitoring. The court says the FBI can't have its Glomar and its FOIA exemption if it wants to make that argument.

[T]he language of Exemption 7(E) refers only to disclosure of techniques and procedures, and not to the lack of any such technique or procedure, and the Ninth Circuit has limited the application of “risk of circumvention” of the law under Exemption 7(E) to guidelines, not techniques and procedures. Hence, it is not clear whether Defendant’s negative inference argument is cognizable under Exemption 7(E).

In the end, it's the level of perceived harm that gives the ACLU a shot at obtaining these records. The FBI and DOJ claim any release of info would result in criminal mayhem due to criminals suddenly being made aware of the existence of social media monitoring programs. The court says that's just not going to happen.

[T]he risk of criminal activity escaping detection thru social media if the FBI were to reveal it has no records is substantially mitigated by two facts. First, it is well known that many related agencies do engage in social media surveillance in the immigration centers and share that information. This lessens the risk that people will be emboldened by the FBI’s disclosure to spread criminal or terrorist messages through social media. Second, even if the FBI were to disclose it has no records of purchasing or acquiring products or services used to surveil social media, that does not mean that the FBI has no such tools at its disposal, as it could have developed such tools internally.

This kills the FBI's Glomar. It will now have to at least confirm or deny it has records relevant to the ACLU's request. And once it's done that, it can start arguing about whether or not it can use Exemption 7(e) to keep them out of the ACLU's hands. Given the previous paragraph, it's difficult to see how the FBI can possibly justify a refusal to release any of the documents it may (or may not lol) have on hand. Social media monitoring efforts are well-known in the public and private sectors. If the FBI is doing something new and interesting with this, it might have a point. But if it's just doing the same thing other agencies are doing, it really can't justify rejecting this request.

Filed Under: doj, fbi, foia, glomar, social media monitoring, transparency

NY Court Tells NYPD It Can't Hide Surveillance Of Protesters Behind A Glomar Response

from the prying-the-lid-off-the-public-records-jar dept

Another lawsuit over the NYPD's surveillance of First Amendment-protected activities continues. Records requests by Black Lives Matter offshoot Millions March detailing surveillance methods used by the NYPD against protesters have been met with the usual opacity by the PD. It has done what it always does in cases like these: throw FOIL exemptions around and stonewall the hell out the request. The PD has also added a few Glomar responses to the mix, refusing to confirm or deny the existence of sought records.

Fortunately, the judge presiding over the case -- Arlene Bluth -- isn't in a charitable mood. Greeted with the NYPD's incessant opacity, the judge has called bullshit -- repeatedly -- over the course of a 14-page ruling [PDF]. The plaintiffs are seeking records related to the NYPD's use of surveillance tech targeting cellphones. It is well known the NYPD owns and has access to Stingray devices. What these records would show is the use of Stingrays in an untargeted manner -- either to gather cellphone identifiers indiscriminately or simply to disrupt phone service during protests by funneling all phones in the area into the NYPD's cell tower spoofer.

The NYPD has given the plaintiffs a Glomar response -- a term that derives from national security efforts at the federal level. There are a few good reasons why a Glomar might be deployed, but none of them fit the NYPD's blanket refusal to confirm or deny existence of these records.

Although this affidavit provides ample reasons why a FOIL request for counter-terrorism information might merit a Glomar response, it does not provide any explanation for how it applies to this case. This proceeding concerns respondent's alleged efforts to interfere with the cell phones of protesters and Miller fails to address why a Glomar response should be available in the context of protestors. Miller does not claim that these protestors were affiliated with the terrorists he lists in his affidavit, that these protestors engaged in behavior that might be connected to terrorism or that there might be terrorists hidden among the protesters. In fact, Miller does not allege that these protesters engaged in any terrorism-related behavior whatsoever.

The NYPD also claimed the Glomar response was valid because -- and let me see if I can get this straight -- the described deployment of cell tower spoofers against protesters would violate the law. I don't know how the NYPD imagined this stunted, malformed argument might work in court, but I'm sure it didn't think it would only further undercut its Glomar response. Here's the court's response to whatever the hell this assertion is:

Miller appears to insinuate that deliberately using technology to interfere with protestors' cellphones would violate the law. If that were the case then, of course, respondent should be able to deny that records exist because respondent, according to respondent, cannot interfere with a lawful protest. Revealing that the NYPD follows the law would not provide aid or comfort to terrorists.

That's if the NYPD is following the law. If it isn't…

Of course, if respondent is using technology on protestors and, by its own account, violating the law, then it cannot hide exposure of that fact through a Glomar response.

Even if deployment was lawful and not targeting protesters but still managed to disrupt their service, the NYPD still can't use a Glomar response. The court points out that other exemptions exist that might cover the content of these documents, but even that would need far more justification than the NYPD has provided to this point.

For all its claims of disrupted investigations and comforted terrorists, the NYPD cannot convince the court that records detailing cellphone disruption during protests fits any of the exemptions and/or blanket neither deny/confirm responses the NYPD has provided.

The Court recognizes that respondent does not have to disclose how it conducts criminal investigations. But this is not about a criminal investigation or a counterintelligence operation. It arises from reports of protestors who claim that their cellphones are suddenly unable to function while in the middle of a protest. That possibility, that respondent is interfering with protestors' ability to communicate with each other, is a serious concern ripe for the use of FOIL.

The NYPD is offering nothing more in defense of its opacity than "trust us." The court asks, "Why should we?"

Ultimately, respondent wants petitioners and this Court to simply trust respondent that it is not violating the law by interfering with a constitutionally-protected protest. But that notion is anathema to FOIL. FOIL is intended to shed sunlight on government actions. The very notion of a Glomar response (declining to confirm or deny the existence of records) contradicts the purpose of disclosure under FOIL.

The ruling also pokes holes in another transparency dodge: the "trade secrets" exemption the NYPD offered up more than a year after its original Glomar response. Not only does the court say it's a bit too late to adding additional exemptions to the mix, but the trade secrets exemption argument is a non-starter to begin with.

If the prices and the product features are trade secrets, then every single contract a governmental agency enters into would be exempt from FOIL. Every contract contains information about pricing and, where a product is purchased, the contract presumably also has details about the product. It may lay out what the product is for, what its capabilities are and how it can be used. These are not trade secrets…

After letting the NYPD know it needs to either confirm or deny existence of the Glomared records (and letting it know it will be on the hook for the plaintiffs' legal fees), the court again drills this point home: unjustified invocations of national security concerns are not acceptable.

Terrorism-related concerns cannot be used to justify the use of a Glomar response in every FOIL context. The petitioners here are protestors, engaging in First-Amendment protected activity. The only connection between protestors and terrorists appears to be that both groups use cell phones. But terrorists and protestors and, for that matter, New York City residents use cell phones and computers and social media and a variety of other technologies. A Glomar response cannot be used in every instance in which a terrorist might use the same technology as a protestor or a New York City resident.

[...]

To embrace the use of Glomar response here would shut off all public inquiry and require respondent to hold itself accountable. That notion runs counter to the very purpose of freedom of information statutes. [...] FOIL is not about blind trust -- it is about holding government officials accountable. That principle is fundamental to a democratic society and cannot be set aside so easily.

The NYPD can't be happy it's been told it isn't a law unto itself. But it's probably going to take a lot more rulings like this to make minute inroads into its culture of opacity.

Filed Under: foil, freedom of information, glomar, nypd, transparency

Judge Says Trump 'Witch Hunt' Tweets Can't Beat DOJ's Glomar Response On FBI Investigation Documents

from the official-statements-v.-rambling-discourse dept

A federal court has decided public statements -- including a handful of tweets -- from President Trump aren't enough to undercut the DOJ's Glomar response about the existence of investigation documents. The James Madison Project, along with journalist Josh Gerstein, have been seeking documents confirming (or denying) President Trump himself has been or is currently the target of a DOJ investigation. (h/t Mike Scarcella)

The DOJ has refused to answer the question or provide documents asserting anything one way or the other. Instead, it has told the plaintiffs it can neither confirm nor deny these documents exist. The DOJ is using FOIA Exemption 7(a) to support its Glomar, which covers documents whose release could "reasonably be expected to interfere with law enforcement proceedings."

One would think the use of any FOIA exemption would indicate sought documents exist. But the DOJ continues to insist it can't even verify the existence (or nonexistence) of these documents without undermining an investigation it is or isn't engaged in.

The plaintiffs argue the DOJ cannot continue to express itself in the form of a Glomar -- not after President Trump himself appears to have confirmed he's a target of an FBI investigation. The court notes it's not impossible for government officials to undercut Glomar responses with public statements, but what the plaintiffs have gathered as evidence isn't enough to overcome the exemption. From the opinion [PDF]:

Plaintiffs base their case solely on statements made by President Trump, including some of his early morning tweets. Plaintiffs invite the Court to conclude that responsive records exist based on the President’s summaries of conversations he had with the former FBI director as well as a number of vague, and sometimes hostile, comments made on social media concerning the investigation.

In addition to Trump's strange insistence that former FBI Director James Comey told him "three times" he wasn't under investigation (in his letter to Comey informing him he'd been fired), the plaintiffs point to a television interview where Trump reiterated his "three times" claim, and a number of tweets about "witch hunts" issued by the president.

The court notes there's a lack of specificity in Trump's public statements. Trump's claims he was told multiple times he was not under investigation doesn't necessarily indicate the DOJ or FBI hold records containing this information. Trump supposedly received this info from Comey three times in three different personal conversations with the FBI director -- none of which required official documentation.

The tweets are, unfortunately, not very precise either. As the court points out, "rambling" emissions during early morning hours are hardly hard proof the FBI/DOJ have records pertaining to investigations/non-investigations of President Donald Trump. The court makes it pretty clear Trump's tweets should not be read as official statements confirming the existence of anything.

As stated before, an official acknowledgment cannot be based on “public speculation, no matter how widespread.” Here again, plaintiffs admit that President Trump’s exclamations were sparked by information disseminated by the press, rather than government documents, so those tweets cannot constitute an official acknowledgment.

Plaintiffs argue that the problem is cured in this situation because the President’s tweets officially acknowledged the “authenticity” of the leaked questions. That is quite a stretch. The President complains that it was “disgraceful that the questions concerning the Russian Witch Hunt were leaked to the media.” Other than the use of the phrase “the questions” (emphasis added), the tweet does not confirm or even imply that the published list is accurate. The Court is reluctant to place so much emphasis on the President’s choice of a single article in a rambling set of comments issued at 4:00 in the morning.

[...]

The second and third tweets in the series are even further from official acknowledgments than the first. None of the impassioned but disjointed references to a “Witch Hunt,” “setup & trap,” “collusion,” or “obstruction” matches the FOIA request. And the fact that the President is vociferously attacking the investigators makes the proposition that he was speaking on their behalf in this instance somewhat dubious.

And so it goes for the rest of the President's public statements, made during interviews with television shows and websites. The statements made are vague and tend not to confirm existence of documents. Most of what the President has said about the investigation the DOJ can neither confirm nor deny has been "impassioned but disjointed." The court says the plaintiffs need far more than imprecise ramblings to prevail and grants the DOJ's motion to dismiss the case.

Precision matters when you're going up against the government in a FOIA case. Interpretations of imprecise statements tends to end up weighing in the favor of non-disclosure, despite the FOIA's statutory presumption of transparency. A public official rambling on about witch hunts at 4 a.m. probably shouldn't be treated as a trustworthy source of inside information -- especially when that official routinely inverts the Glomar by confirming and denying ("I'm not under investigation," "WITCH HUNT!") an investigation exists.

Filed Under: donald trump, fbi, foia, glomar, investigation, transparency

Appeals Court Tells DOJ To Drop The Glomar And Hand Over Records About Prosecutorial Misconduct To Requester

from the after-the-fact-and-after-the-injustice dept

A man convicted for fraud makes his second appearance in the Fourth Circuit Appeals Court. The first was an attempt to have his sentence vacated via complaints of prosecutorial misconduct. Gregory Bartko not only discovered a government witness had perjured himself, but during his trial, the prosecution routinely delayed its production of evidence -- something the district court noticed. It didn't result in a new trial, but it did bring judicial hellfire down on the heads of the prosecution team.

The Fourth Circuit's 2013 decision doesn't pull punches.

A cursory review of this Court’s opinions reveals recent consideration of at least three cases involving discovery abuse by government counsel in this district. [...] And this case, which confronts us with three alleged constitutional violations—two instances of withholding discoverable evidence and one choice to leave uncorrected a witness’s false testimony—only adds to the list.

[...]

Mistakes happen. Flawless trials are desirable but rarely attainable. Nevertheless, the frequency of the “flubs” committed by this office raises questions regarding whether the errors are fairly characterized as unintentional…

[Quoting an earlier case involving the same prosecutor's office] “This is a repeat offense by the government. The order is entered by the court requiring disclosure by a certain date, and the government simply ignores it. And their explanation for ignoring it is, ‘I missed it. So what. There’s no prejudice.’ And it just happens again and again.”

Moreover, the government’s responses to queries regarding its practices are less than satisfactory. For example, in this case, when asked at oral argument about its failure to correct Scott Hollenbeck’s testimonial misstatement regarding promises he had received, the government suggested that at the time Hollenbeck made the misstatement, trial counsel had no recollection of the promises made to him. But as Judge Keenan aptly noted, such an idea “just strains credulity.” [...] And here, when we gave counsel an opportunity to correct her farfetched assertion, she refused. Faced with such behavior, we must conclude that this office is uninterested in placating concerns about its practices.

In this case, the multiple prosecutorial "errors" failed to undermine the case against Bartko, resulting in the government getting away with multiple due process violations. The court notes this is the government acting in bad faith and rolling the dice that the presented case will survive its misconduct.

Remedies elude defendants because discovery violations ultimately prove immaterial to the verdict. But that is not the true problem. The problem is that the government appears to be betting on the probability that reams of condemning evidence will shield defendants’ convictions on appeal such that at the trial stage, it can permissibly withhold discoverable materials and ignore false testimony.

The court noted the violations may have been "harmless" in the context of this specific case, but they are far from harmless in terms of due process. The appeals court asked the DOJ's Office of Professional Responsibility to investigate the US Attorney's office in North Carolina -- especially prosecutor Clay Wheeler's [ed: oh, the irony available at that link] -- repeated flouting of discovery rules and orders.

Five years later, Bartko is receiving his second opinion from the Fourth Circuit Court of Appeals -- this time pertaining to the DOJ's repeated refusal to hand over documents, specifically those related to the OPR's investigation of the prosecutor's office involved in his criminal case. The DOJ handed over a few documents listing Bartko as the "complainant," but for everything related to the court-requested investigation it gave him a Glomar.

The court is about as impressed with the OPR's arguments as it was with prosecutor Clay Wheeler and the US Attorney's Office during its last discussion with Bartko. From the opinion [PDF]:

Because Exemption 7(C) shields from disclosure “records or information compiled for law enforcement purposes” that “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C), to invoke Glomar, OPR had to make a threshold showing that the FOIA request seeks records “compiled for law enforcement purposes.” OPR also bore the burden of making an across-the-board showing that the privacy interest the government asserts categorically outweighs any public interest.

[...]

In defense of its sweeping Glomar response, OPR offered only a bare-bones declaration that “[t]he records requested by [Bartko] from OPR consist of complaints or allegations of misconduct which, if they exist, would have been compiled as part of OPR’s investigations of Department of Justice attorneys who are alleged to have committed specific acts of professional misconduct which, if proved, could result in civil or criminal penalties.” J.A. 207. That is not even in the ballpark.

Not only that, but the OPR's own statements on its investigatory process made it clear most cases are closed quickly due to lack of evidence and those that survive are shopped out to other offices to handle reprimands, etc. As the court notes, this disconnects OPR from its firmly-held illusion that it possesses "law enforcement" info.

[The] description of OPR’s review process reveals just how attenuated its “law enforcement” function is. For starters, most matters do not even result in an investigation, making a finding of law-enforcement-triggering misconduct implausible in the vast majority of cases. That summary treatment seems to have been what was accorded to the Fourth Circuit’s referral in Wheeler’s case because there is no record evidence or attestations from OPR indicating that they interviewed witnesses or requested additional documents for review.

The OPR also claimed any release of investigation records would violate prosecutor Clay Wheeler's privacy. The court says there's a slim possibility that might be true, but the DOJ has provided no reason for it to believe these assertions.

Much like its vaporous justification for claiming that the requested documents constituted law-enforcement records, OPR just sweepingly asserted that the disclosure of any record regarding any allegation of misconduct would be an unwarranted invasion of Wheeler’s privacy. OPR ignores altogether its obligation to specifically identify the privacy interest at stake, which can vary based on many factors, including frequency, nature, and severity of the allegations.

Not only that, but there's more than Wheeler's privacy interest at stake. The public also has a right to know about government misconduct -- an interest the DOJ apparently believes doesn't exist.

OPR also made no apparent effort to weigh any privacy interest against the countervailing public interest in the disclosure of information concerning allegations of government attorneys’ misconduct. OPR cannot issue a blanket proclamation that a loss of privacy would be “unwarranted” without considering whether there is a public interest that might well warrant it.

This puts Bartko in line for some disclosure, roughly five years after he asked for it. Unfortunately, it appears from what little he has received, the prosecutor who engaged in misconduct was allowed to resign and avoid an OPR investigation. But what he will finally obtain should show how often that office engaged in behavior bad enough to warrant official court notice. And that's something of interest to everyone, not just the person whose case suffered directly from this abuse of due process.

Filed Under: 4th circuit, doj, glomar, public records

NY Appeals Court Gives NYPD Even More Opacity By Upholding Its 'Glomar' Powers

from the sure,-there's-nothing-in-the-law-that-supports-this,-but-whatever dept

Three years after a lower court decided the NYPD could deliver Glomar responses to records requesters, the state's appeals court has handed down its agreement. Apparently the NYPD can -- without being a federal agency or one charged with pursuing terrorists in foreign countries -- refuse to confirm or deny the existence of documents, something previously only granted to federal agencies.

The case stems from federal intervention, however. The records sought pertain to the NYPD's now-disbanded Demographics Unit. As its name suggests, the Demographics Unit focused on one demographic: New York City Muslims. They were being placed under surveillance while they engaged in First Amendment-protected activities. This unit was created by a former CIA officer and routinely shared information with federal agencies like the FBI… right up until federal agencies realized the NYPD's routine rights violations made the shared info too toxic to touch, must less to use in prosecutions.

C.J. Ciarmella sums up the majority's opinion for Reason.

In a lawsuit brought by two Muslim men seeking NYPD surveillance records on themselves under New York's Freedom of Information Law (FOIL), the state Court of Appeals said the department can invoke the so-called "Glomar response" made famous by the CIA—that is, it can refuse to say whether or not the records exist. Chief Judge Janet DiFiore, in a majority opinion joined by three of her colleagues, accepted the NYPD's argument that disclosing whether or not such records exist would compromise its counterterrorism operations. FOIL, DiFiore writes, "was never designed to compel a law enforcement agency to disclose inherently confidential, investigatory information of this nature."

This is a dangerous decision [PDF], one that will make an agency already belligerently indifferent to its obligations to the public even more secretive. The NYPD is not a national security agency, so its reliance on a national security-related response granted solely to federal agencies is misplaced. Or it was misplaced. Now it's perfectly fine for the NYPD to act like its the CIA or NSA, despite the fact its investigations and prosecutions are all routed through normal courts, rather than the FISA variety. The dissent (there are two dissenting opinions] points out that denying the NYPD the Glomar response does not mean it has to reveal sensitive information to requesters. But the NYPD has little to offer in support of its supposed "need" for a national security exemption previously utilized only by federal agencies.

The majority’s reliance on federal Glomar doctrine is misplaced. Yes, FOIL was structurally modeled on FOIA. However, as the dissent explains, the Glomar doctrine arises not from FOIA’s law enforcement exemption, but from FOIA’s exemption of documents “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy,” which has no analog in FOIL. The Constitution arrogates national defense and foreign policy to the federal government; the NYPD is not searching for a lost Soviet submarine or worried about the foreign policy consequences thereof. Both the majority and dissent tar their FOIL analysis by referring to the NYPD’s response as a “Glomar” response.

[...]

Those foreign-policy insecurities have no place in New York State’s excellent unified court system. Our government features neither a unitary executive tasked with the national defense nor an elaborate system of classified information to which courts routinely defer. Most CIA endeavors will never see the light of day, let alone that of a courthouse; the destiny of every successful NYPD investigation is to appear before a judge.

The dissent also calls out the majority for its extreme deference to the NYPD's national security hand-waving. There's nothing the NYPD does that is so far beyond the comprehension of the court that it is not qualified to even discuss the underlying issues in FOIL lawsuits.

Regardless of federal courts’ competence to evaluate foreign countries’ changing political climates, we are not similarly handicapped in judging the soundness of FOIL exemptions based on police, privacy, or other justifications. Our courts are fully capable of scrutinizing an agency’s “response on a case-by-case basis to ensure it is warranted under the particular circumstances presented” (majority op. at 16).

As it stands now, the NYPD has been given a gift of federal-level secrecy -- one with zero state-level statutory basis. The NYPD can, in essence, do more than the state's public records law permits. Its national security claims will rarely be challenged successfully because FOIL requesters (who often become FOIL lawsuit plaintiffs) will be hard-pressed to assert standing when they can even prove the requested documents exist.

Filed Under: foia, foil, glomar, neither confirm nor deny, nypd, transparency

Trump, Nunes Accidentally Undo DOJ's Efforts To Keep Surveillance Docs Under Wraps

from the helluva-an-effort-there,-Trumpy dept

The government's antipathy towards FOIA requesters is well-documented. Our last president declared his White House to be the Openest Place on Earth. This was followed by a clampdown on FOIA responses, huge increases in withheld documents, and a war on whistleblowers. The Trump Administration has made no such promises. Good thing, too, as the uncontrollable mouth running the country would make these promises impossible to keep. We're living in a halcyon era of unprecedented, if inadvertent, government transparency. Whatever multitudinous leakers won't provide, the president will hand over himself via Twitter or televised interviews.

Late last year, Trump handed plaintiffs in two FOIA lawsuits a gift when he undercut an FBI Glomar response ("neither confirm nor deny") by confirming FBI investigations (and FISA court involvement) in domestic surveillance. Trump has done it again, thanks to approving the release of the Nunes memo. Again, FOIA requesters seeking information about FBI domestic surveillance have been handed a gift by the Commander in Chief, as Politico reports.

During a hearing on a bid by BuzzFeed to get more information about how a so-called dossier compiled by a former British spy was handled, U.S. District Court Judge Amit Mehta grew frustrated with a Justice Department lawyer who argued that Trump’s declassification order did not alter the contours of the legal dispute.

Mehta said the government would normally be entitled to deference in asserting the need to keep its investigative work under wraps, but perhaps no longer with respect to the dossier.

“This isn’t the ordinary case,” Mehta told a Justice Department lawyer, Anjali Motgi. “I don’t know of any time the president has declassified the fact of a counterintelligence investigation. That’s going to be a hard sell given what the president has done. … This is a new frontier and it has an impact.”

The DOJ tried to argue that Trump's declassification of the memo wasn't an endorsement of its contents. The judge found this assertion literally incredible, saying she found it impossible to believe the DOJ and the White House disagreed about the factual basis of the released memo. If the DOJ can't find a way to push this argument past the judge, Buzzfeed will likely gain access to documents it might need to defend itself from a libel lawsuit brought by someone mentioned in the Steele dossier. If nothing else, the declassification of the memo shows there's substantial public interest in the contents of the dossier, which would buttress Buzzfeed's claims that publishing it (without verifying the contents first) was "fair reporting" on government activities.

The DOJ, however, continues to insist the sought documents, even if released, change nothing for Buzzfeed. But to make this argument it has to sell its first argument -- that the facts disclosed by the Nunes memo are not actually facts. The DOJ will get to make this argument in person, behind closed doors with the judge, where it will argue that releasing documents to Buzzfeed would harm its ongoing investigation.

On top of this turn of events, the Nunes memo's release has also forced the DOJ to change its opacity stance in other FOIA lawsuits.

In one of those FOIA cases on Wednesday, government lawyers notified the court that the president’s declassification actions forced them to withdraw a refuse-to-confirm-or-deny response issued on requests that USA Today reporter Brad Heath and the pro-transparency James Madison Project made for surveillance warrants on Trump associates.

The DOJ may end up having to release documents it doesn't want to release, thanks to the president and legislators aligned with Nunes. All it can do right now is buy time. And it will be an indefinite amount of time, apparently.

“Given recent events, and the possibility of additional declassifications by the president,” the lawyers wrote, “the government is unable at this time to propose a timetable to conduct this review.”

The Forever War on Transparency continues, but it's being frustrated by self-serving acts of openness by the White House. I guess we're the beneficiaries of accidental largesse, although it may be outweighed by other damaging White House acts and policies. However, someone writing about issues like these should never wish to live in uninteresting times, so the remainder of the Trump presidency should provide plenty of transparency yin/yang moments like these, where the government's natural affinity for opacity is undone by the Commander in Chief's proclivity for outing company secrets whenever it seems it might serve his singular narrative.

Filed Under: amit mehta, devin nunes, disclassified, doj, donald trump, foia, glomar, steele dossier, surveillance, transparency
Companies: buzzfeed

Judge Tells CIA It Can't Hand Classified Info To Journalists And Pretend The Info Hasn't Been Made Public

from the release-to-one-is-still-release-to-all,-legally-speaking dept

The CIA is spectacularly terrible at responding to FOIA requests. It's so bad it's highly possible the perceived ineptness is deliberate. The CIA simply does not want to release documents. If it can't find enough FOIA exemptions to throw at the requester, it gets creative.

A FOIA request for emails pertaining to the repeated and extended downtime suffered by the (irony!) CIA's FOIA request portal was met with demands for more specifics from the requester. The CIA wanted things the requester would only know after receiving the emails he requested, like senders, recipients, and email subject lines.

The CIA sat on another records request for six years before sending a letter to the requester telling him the request would be closed if he did not respond. To be fair, the agency had provided him a response of sorts five years earlier: a copy of his own FOIA request, claiming it was the only document the agency could locate containing the phrase "records system."

In yet another example of CIA deviousness, the agency told a requester the documents requested would take 28 years and over $100,000 to compile. Then it went even further. During the resulting FOIA lawsuit, the DOJ claimed the job was simply too impossible to undertake. Less than 2 months after MuckRock's successful lawsuit, the entire database went live at the CIA's website -- more than 27 years ahead of schedule.

This is the CIA's antipathy towards the FOIA process on display. It takes a lawsuit to get it to produce documents. And what we have here is more CIA recalcitrance being undercut by an FOIA lawsuit.

Journalist Adam Johnson sued the agency early last year for its refusal to produce correspondence between the CIA's Office of Public Affairs and prominent journalists. Johnson did receive copies of these emails, but the CIA redacted the emails they had sent to journalists. (The journalists' response were left unredacted.) Since the emails obviously weren't redacted when they were sent to journalists, Johnson challenged the redactions in court.

The government argued it had a right to disclose classified information to journalists. And it certainly can. The CIA can waive classification if it so desires. But what it can't do is claim it has never released this classified info to the public -- not if it's handing it out to journalists.

Daniel Novak is representing the journalist in his FOIA lawsuit. And he reports the judge is no more impressed by the CIA's arguments than his client is. The decision [PDF] is redacted but some very nice bench slaps have been left untouched... like this one, which sums up the ridiculousness of the CIA's arguments.

CIA voluntarily disclosed to outsiders information that it had a perfect right to keep private. There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including "trusted reporters," for any purpose, including the protection of CIA sources and methods that might otherwise be outed. The fact that the reporters might not have printed what was disclosed to them has no logical or legal impact on the waiver analysis, because the only fact relevant to waiver analysis is: Did the CIA do something that worked a waiver of a right it otherwise had? The answer: CIA voluntarily disclosed what it had no obligation to disclose (and, indeed, had a statutory obligation not to disclose). In the real world, disclosure to some who are unauthorized operates as a waiver of the right to keep information private as to anyone else.

The government cited 1981's Phillippi case -- the one that saddled us with the infamous "Glomar response" -- in support of its assertions that it did not waive classification when it disclosed classified info to certain journalists. The court says that case doesn't discuss the CIA's apparently voluntary decision to feed classified info to the press, which is explicitly a waiver. Unlike the Glomar/Phillippi case, the CIA's own press office divulged classified info to members of the public. The court says the government can't have it both ways: it can't hand classified info to one journalist then tell another it can't disclose info it already made public (even if in a very limited fashion).

Contrary to the Government's suggestion, Phillippi does not announce that limited disclosure of information that the CIA is not supposed to disclose can never operate as a waiver. It does not authorize the Government to distinguish between "trusted journalists" and other journalists. It simply does not address either the facts facing this court or the legal implication of those facts at all.

If harm comes from further public disclosure following the relinquishment of the documents to Johnson, well, that's the CIA's fault.

The Government's effort to focus the Court's attention on the very real danger to [redacted] only underscores the lack of wisdom of CIA's risky (and apparently discontinued) selective disclosure program.

The opinion also contains this pointed footnote, appended to discussion of the CIA's assertion it can hand over classified info to journalists and still pretend the info hasn't been made public.

I suppose it is possible that the Government does not consider members of the press to be part of "the public." I do.

The few remaining redactions the CIA handed to Johnson haven't been unredacted yet. The bulk of emails have been uncensored as a result of this lawsuit. There are a few the court is still holding back on, but it's a very small percentage of the total. Those may see the unredacted light of day, though. While the court is giving the CIA one more attempt to submit a credible argument in favor of continued redaction, the presiding judge clearly isn't impressed with the efforts the agency has made so far.

Filed Under: cia, foia, glomar, leaks, transparency

Trump Tweet About Surveillance Undercuts FBI's Glomar Responses In FOIA Lawsuits

from the Make-Petitioning-Grievances-Great-Again-Also dept

There's no precedent for the volatility of our current president. That seems to be working out just fine for many, many plaintiffs engaged in lawsuits against the government. Attorney Brad Moss, currently suing the FBI over denied FOIA requests related domestic surveillance of Trump administration personnel, just had a 276-character gift dropped in his lap by the Commander-in-Chief.

The House of Representatives seeks contempt citations(?) against the JusticeDepartment and the FBI for withholding key documents and an FBI witness which could shed light on surveillance of associates of Donald Trump. Big stuff. Deep State. Give this information NOW! @FoxNews

The key here is the contempt citations and "shedding light on surveillance" of Donald Trump's associates. These are exactly the records Brad Moss is seeking. Moss jumped on the tweet, letting the president know he'd just performed an invaluable, if inadvertent, service on behalf of his clients.

OMG, are you stupid? You just blew apart two different cases your DOJ is defending against me. I’m going to take you apart, Mr. President.

Moss (and Mark Zaid) -- representing the Brad Heath (in one case) and Propublica (in the other) -- filed complaints when the FBI refused to produce documents pertaining to alleged FISA-approved surveillance (the Heath case) and the Christopher Steele dossier (Propublica case). In support of the FOIA requests, the plaintiffs cited plenty of public comments by officials and representatives, including House Oversight member Devin Nunes, who apparently was troubled that the surveillance apparatus he loves was being used against members of his own party.

The deadline for response came and went in both cases, prompting lawsuits. According to the amended complaint [PDF] filed in the Brad Heath case, the FBI suddenly felt the overwhelming urge to provide a (non) answer when hit with a lawsuit.

Approximately six hours after the initiation of this litigation, the FBI issued a response to the Requesters. In that response, the FBI stated that it could not confirm or deny the existence of responsive records, as doing so would trigger harm to national security interests under Exemptions (b)(1) and (b)(3).

Moss set some sort of FOIA litigation land speed record filing a Notice of Supplemental Information [PDF] based on the still-warm Trump tweet. The filing quotes Trump's tweet before explaining what the president was apparently referencing.

For context, this tweet by the President appears to be in reference to a news report aired on Fox News this evening. http://video.foxnews.com/v/5662667184001/ ?#sp=show-clips (last accessed November 29, 2017). In the news report, Fox News anchor Bret Baier announces that investigators for the House of Representatives have recommended the issuance of contempt citations against the Department of Justice (“DOJ”) and Federal Bureau of Investigation (“FBI”). The basis for the contempt citations concerns pending subpoenas served upon DOJ and FBI by the House Permanent Select Committee on Intelligence and that seek, among other things, “efforts to corroborate information provided by Mr. Steele” that were memorialized in the Steele Dossier. http://i2.cdn.turner.com/cnn/2017/images/09/06/nunesletter.pdf (last accessed November 29, 2017). In the Fox News report, reporter James Rosen notes the separate issue that allegations from the Steele Dossier were purportedly relied upon in some fashion as the factual justification to secure surveillance warrants targeting associates of President Trump. http://video.foxnews.com/v/5662667184001/?#sp=show-clips (last accessed November 29, 2017)

Trump's tweet -- based on Fox News reports -- makes it pretty clear the FBI has some files on surveillance targeting Trump associates. I'm sure DOJ counsel will be filing something shortly contesting Trump's assertions and/or claiming Trump's tweets aren't "official" administration statements. It shouldn't matter. The tweet and the underlying reports will force the FBI to give up its Glomar and take a side.

The President’s tweet this evening is a rather clear and concrete official acknowledgment of the existence of records responsive to the Plaintiffs’ FOIA requests. The President specifically and definitively stated that the “key documents” he is publicly ordering the FBI and DOJ to release to Congressional investigators “could shed light on surveillance of associates of Donald Trump.” This is more than sufficient to nullify at least in part, as a matter of law, the appropriateness of the Glomar responses categorically invoked by the DOJ in this present case.

This isn't the first time a Trump tweet has contradicted legal arguments made by his own administration. It certainly won't be the last. A house divided against itself cannot stand, but it does make for entertaining litigation.

Filed Under: brad heath, brad moss, donald trump, fbi, foia, glomar, tweets

NSA Cites New 'Security Concerns' In Preemptive Refusal To Even Search For Contractor Documents

from the 'don't-even-bother-asking,'-they-explained dept

We've become accustomed to the NSA's infamous Glomar responses. The agency is fond of telling FOIA requesters that it's not saying it has the sought-after documents on hand, but it's also not not saying that either. It's the public records Schrödinger's box, where requested documents lie in a dual state of existence and nonexistence, supposedly because any hint either way would rend the national security fabric in twain.

Brendan O'Connor of Gizmodo reports that a January 17th response to his FOIA request contains some new additions to the NSA's usual Glomar.

The notoriously secretive National Security Agency is raising “security concerns” to justify an apparent new policy of pre-emptively denying Freedom of Information Act requests about the agency’s contractors.

The policy was cited by John R. Chapman, the agency’s chief FOIA public liaison officer, in a letter to Gizmodo on January 17, 2017, three days before Donald Trump’s inauguration. In explaining that the agency had declined to even conduct a search for records about a company called SCL Group, Chapman wrote, “Please be advised that due to changing security concerns, this is now our standard response to all requests where we reasonably believe acquisition records are being sought on a contract or contract-related activity.”

The NSA is building its own wall, apparently: one that will stand between FOIA requesters and documents related to government contractors in its employ. The NSA simply isn't going to respond to these requests. And if it's already decided it's not going to respond, then it's not going to be wasting time searching for records it has zero intention of producing.

But the non-response response to Gizmodo's FOIA request goes even further than a pre-emptive denial. It also contains language instructing empty-handed requesters not to jump to conclusions about the documents the NSA won't search for or release. From the FOIA non-response [PDF]:

The NSA/CSS FOIA office has not conducted any sort of search to determine whether or not records exist.

Obviously, if the NSA is unwilling to discuss the existence/nonexistence of documents it won't be searching for, it's not going to explain what sort of "changing security concerns" have prompted this new state of denial. Perhaps the agency feels there might be some reining in of transparency under the new administration. Or maybe the FOIA office has received new instructions on handling certain FOIA requests. If so, those instructions haven't been made public and, according to FOIA experts, this kind of denial is a first for No Such Agency.

“This sounds like a non-Glomar Glomar response,” Bradley Moss, deputy executive director for The James Madison Project, told Gizmodo, using a nickname for the notorious practice of national security and law enforcement agencies refusing to confirm or deny the existence of records. There are existing reasons to categorically deny a request, and even to refuse to conduct a search, Moss said, but he’s never seen such a response justified in this way.

“They’re clamping down across the board,” Moss said. “There is clearly a determined and deliberate attempt to plug any gap” that might allow the public to see how the national security apparatus actually works.

As Gizmodo points out, the NSA issued a 22-page guidebook to its FOIA office that addressed requests for contract info specifically. And nothing in it points to blanket denials and preemptive refusals to even search for records.

Gizmodo is seeking information about the SCL Group whose subsidiary, Cambridge Analytica, has had a hand in both the Trump presidential campaign and the UK's Brexit push. It could be that this attempted peek into SCL contracts raised red flags with the incoming administration. Those might be the "security concerns" hinted at in the NSA's response. If so, the blanket denial may be in place to prevent requesters from drawing conclusions about certain denied documents. If no one can have anything contract-related, then no one can draw inferences from their particular denial.

If this is the new status quo, then the departing administration is as much to blame as anyone. Obama talked a lot about government transparency, but year after year, his administration set new records in FOIA denials and deployed exemptions. This looks to be more of the same, only without the empty promises of greater accountability.

Filed Under: foia, glomar, nsa, security concerns

BlackBerry Offers Glomar, 'Bad Guys Got Caught,' In Non-Comment On Canadian Law Enforcement's Full Access To Encrypted Messages

from the 'in-conclusion,-Blackberry-is-a-land-of-contrasts' dept

BlackBerry has finally responded to Motherboard's story on the Royal Canadian Mounted Police's apparent full access to encrypted communications -- something that hinted the RCMP may have been given BlackBerry messaging's "Golden Key." Sort of. It's mostly an indirect Glomar followed by a statement that confirms something people already know.

BlackBerry still has not commented directly to Motherboard or VICE News on the specifics of the investigation, but CEO John Chen published a blog post on Monday addressing the report in broad strokes… very broad strokes.

[...]

“Regarding BlackBerry’s assistance,” Chen wrote instead, “I can reaffirm that we stood by our lawful access principles. Furthermore, at no point was BlackBerry’s BES server involved.”

BES is BlackBerry Enterprise Server -- the only option available where customers can lock BlackBerry out of access to communications. With BES, encryption keys are set by users, which means BlackBerry can no longer decrypt messages using its global PIN encryption key. Notably, this option is only available to corporate or government customers. Everyone else gets vanilla encryption, which can be decrypted by BlackBerry for law enforcement. Or, as appears to be the case in Canada, the key can be handed out to law enforcement agencies, allowing them to decrypt at will… because there's only one encryption key for all non-BES users.

According to BlackBerry CEO John Chen, the ends justify the means he pointedly won't be discussing in detail.

We have long been clear in our stance that tech companies as good corporate citizens should comply with reasonable lawful access requests.

[...]

This very belief was put to the test in an old case that recently resurfaced in the news, which speculated on and challenged BlackBerry’s corporate and ethical principles. In the end, the case resulted in a major criminal organization being dismantled.

BlackBerry continues to play both sides of the equation, providing "regular" users with less secure communications while claiming to be the "gold standard" in encrypted communications -- a privilege it only extends to some of its customers, unlike Apple or Google, which provide encryption to all of their customers.

The company has nothing to offer customers in the way of assurances, but it does seem to be going out of its way to soothe the nerves of law enforcement officials frustrated by smartphone encryption. It may make a big deal about its fight against Pakistan and its demands for access (Chen highlights this in his blog post), but it seems less than likely to go to bat for a majority of its users when faced with overreach by more "acceptable" governments.

Filed Under: backdoor, blackberry, canada, encryption, glomar, john chen, key, rcmp
Companies: blackberry