Tag Archives: EFF

Has OLC Written Memos Authorizing Illegal Wiretapping Again?

By:  Friday April 26, 2013 11:41 am

Yesterday, CNet reported that, as part of an expanding cybersecurity effort, DOJ has immunized telecoms for violating wiretap laws.

The secret legal authorization from the Justice Department originally applied to a cybersecurity pilot project in which the military monitored defense contractors’ Internet links. Since then, however, the program has been expanded by President Obama to cover all critical infrastructure sectors including energy, healthcare, and finance starting June 12.

“The Justice Department is helping private companies evade federal wiretap laws,” said Marc Rotenberg, executive director of the Electronic Privacy Information Center, which obtained over 1,000 pages of internal government documents and provided them to CNET this week. “Alarm bells should be going off.”

Those documents show the National Security Agency and the Defense Department were deeply involved in pressing for the secret legal authorization, with NSA director Keith Alexander participating in some of the discussions personally. Despite initial reservations, including from industry participants, Justice Department attorneys eventually signed off on the project.

The Justice Department agreed to grant legal immunity to the participating network providers in the form of what participants in the confidential discussions refer to as “2511 letters,” a reference to the Wiretap Act codified at 18 USC 2511 in the federal statute books.

One of Obama’s first acts as leader of the Democratic party was to cave on immunity for telecoms that accepted Attorney General notes in lieu of warrants under Dick Cheney’s illegal wiretap program.

Those notes may be very similar to what they’re getting in this case, which may explain why the telecoms are squeamish about relying on AG notes again.

In CNet’s article, Paul Rosenzweig (also a Lawfare contributor) likens these notes to the torture memos.

Paul Rosenzweig, a former Homeland Security official and founder of Red Branch Consulting, compared the NSA and DOD asking the Justice Department for 2511 letters to the CIA asking the Justice Department for the so-called torture memos a decade ago. (They were written by Justice Department official John Yoo, who reached the controversial conclusion that waterboarding was not torture.)

“If you think of it poorly, it’s a CYA function,” Rosenzweig says. “If you think well of it, it’s an effort to secure advance authorization for an action that may not be clearly legal.”

But remember, before DOJ wrote those notes for Cheney’s program, they got John Yoo to write a series of OLC memos authorizing the practice.

Which reminded me of the January 8, 2010 memo OLC wrote to authorize telecoms to “voluntarily” hand over records on international calls with no legal process. The memo reinterpreted a different part of 18 USC 2511 than this one, one limited to foreign communications.

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

But it still authorized a very novel reading of the statute.

And yet here DOJ is, making an even more novel reading either of statute or prosecutorial function.

Did OLC authorize this reading too?


Why Won’t the FAA Tell EFF Who’s Flying the Drones in US Airspace?

By:  Thursday January 12, 2012 8:34 am

According to this October 2010 report, these are all the locations at which someone–DOD, DHS, and NASA are publicly admitted users; “Other Government Agencies” (spooks) are always included in the discussion though not detailed–got waivers from the Federal Aviation Administration since 2008 to operate drones outside of restricted airspace. And we know they’ve been active since then, doing things like helping to arrest Sovereign Citizens who had stolen 6 cows.

Last April, the Electronic Frontier Foundation FOIAed to find out who was operating these drones.

(1) any active certificates or authorizations issued by the FAA for any type of drone or unmanned aircract (UA), including public UAs and private UAs, and all corresponding agency records;

(2) any expired certificates or authorizations issued by the FAA for any type of drone or UA, including public UAs and private UAs, and all corresponding agency records;

(3) any applications for UA certificates or authorizations that were denied by the FAA, and all corresponding agency records.

But thus far, the agency has refused to fulfill the FOIA request. On Tuesday, EFF sued to get those records.

Kudos to the EFF for suing to get these records. But FAA’s silence thus far really raises questions about what kind of drone surveillance they’ve already got us under.


In Jewel Decision, Article III Uses Article I to Rebut Article II

By:  Thursday December 29, 2011 4:03 pm

The 9th Circuit just released its decisions in two warrantless wiretap suits: Jewel, which claimed that the dragnet collection of communications from the Folsom Street AT&T facility violated FISA, Electronic Communication Privacy Act, and the Stored Communications Act; and Hepting, which argued that the FISA Amendments Act–which grated the telecoms retroactive immunity for their illegal wiretapping–was unconstitutional. Both opinions were authored by Margaret McKeown.

The Hepting decision is a slam dunk win for the telecoms. While there are some interesting–and perhaps dubious moves–in the decision, the Circuit completely upheld Vaughn Walker’s District Court ruling that the retroactive immunity granted to the telecoms was constitutional.

But that huge win for the telecoms relies on the Circuit’s observation that Congress has the authority to pass laws regarding surveillance. And that’s what gets the government in trouble in Jewel. The Circuit based its decision that Carolyn Jewel had standing to sue the government for collecting her communications on that same principle–that Congress could and had passed laws that regulate surveillance–including the private right of action for claims of illegal surveillance.

Both the ECPA and the FISA prohibit electronic interception of communications absent compliance with statutory procedures. The SCA likewise prohibits the government from obtaining certain communication records. Each statute explicitly creates a private right of action for claims of illegal surveillance.

McKeown’s opinion then uses the authority of Congress to dismiss the notion that this question–whether the Executive could be punished for its illegal surveillance of Jewel–should be thrown back in Congress’ lap. Congress has already weighed in on the issue, McKeown points out, both in the underlying statutes (providing for a judicial avenue of relief), and in the FAA (granting immunity to the telecoms but not the government).

After labeling Jewel’s claim as an effort “to redress alleged malfeasance by the executive branch,” the district court stated that “the political process, rather than the judicial process,” may be the appropriate avenue. There is little doubt that Jewel challenges conduct that strikes at the heart of a major public controversy involving national security and surveillance. And we understand the government’s concern that national security issues require sensitivity. That being said, although the claims arise from political conduct and in a context that has been highly politicized, they present straightforward claims of statutory and constitutional rights, not political questions. See Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 230 (1986).

The district court’s suggestion that Congress rather than the courts is the preferred forum ignores two important points: To begin, Congress already addressed the issue and spelled out a private right of action in the FISA, ECPA and SCA. Continue reading →


ODNI’s Response on Intelligence Oversight Board Shows Lack of Intelligence

By:  Friday November 11, 2011 7:38 am

In September, I wrote about EFF’s efforts to find out whether Obama had an Intelligence Oversight Board–the board that’s supposed to provide some outside review over potential problems and abuses in the intelligence community.

ODNI has finally responded to EFF’s FOIA lawsuit.

And the results show a distinct lack of intelligence. Meaning, they’re kind of dumb.

There are three documents:

  • Biographies of David Boren, Chuck Hagel, and Lester Lyles, labeled “IOB Member,” “IOB Chair,” and “IOB Member,” respectively.
  • An email (presumably from a press person at the White House) informing the then PIAB General Counsel Homer Pointer that “the announcement” of seven new members of the PIAB–including Lyles–”had been made.” A notation in the corner lists “IOB Members: Hagel (Chair), Boren, Miles.”
  • An ODNI email discussing who, outside that office, should be invited to the DNI Holiday Reception, basically consisting of a list of PIAB members and staffers with “(Also IOB Co-Chair)” noted next to both Hagel and Boren’s names, and “(IOB member)” next to Lyles’.

Maybe I’m just being persnickety, but that appears to suggest ODNI doesn’t know whether David Boren is a Co-Chair of IOB, or just its third member.

And note that the name of the person who puts together James Clapper’s Holiday Party is a secret. Cause the terrorists will win if they know who sets up our intelligence community holiday parties, I guess.

Frankly, maybe the big question is not who the members of IOB are, but who the staffers are, because it appears that between December 2009 and October 2010, IOB got new staffers, seemingly replacing Homer Pointer (who had gone on the record several times complaining about the non-existent IOB) with Ray Heddings (who had worked at the Defense Threat Reduction Agency) as Counsel.

So while at one level, these three documents may tell us nothing. At another, they make me wonder whether the Administration’s solution to rising questions about the IOB was simply to replace the guy, internally, who actually cared?


Two of Obama’s Independent Intelligence Advisors Have Supported Oversight in Past; Why Not Now?

By:  Wednesday September 28, 2011 4:55 pm

I’ve written recently about Obama’s refusal to appoint anyone to the Privacy and Civil Liberties Oversight Board, which is supposed to ensure the government protects privacy while laying out a dragnet to catch terrorists, most recently when Thomas Kean and Lee Hamilton issued their 10-year report card on the 9/11 Commission’s recommendations. And I wrote about Bush’s efforts to bypass the intelligence oversight that is supposed to be exercised by the Intelligence Oversight Board by simply eliminating the part of the Presidential Foreign Intelligence Advisory Board that did that oversight, the IOB.

But it seems Obama has ensured–as he has with PCLOB–that IOB can’t do its job. Or at least that’s the appearance from the government’s stone-walling on information about the board.

The Electronic Frontier Foundation has been trying to see whether Obama has fulfilled his promise to restore the IOB to functionality by FOIAing who is on it and what they’ve been doing (and whether they’ve been ignoring the National Security Letters the Army has been sending out).Thus far, the government has denied their FOIA.

The IOB is supposed to alert the president and attorney general when it spots behavior that is unlawful or contrary to executive order. However, in his nearly three years in office, President Obama has not yet announced any appointments to the IOB. EFF’s suit comes after the ODNI refused to respond to a Freedom of Information Act (FOIA) request for membership, vacancies, and other information about the IOB made earlier this year.

“The IOB has a critically important mission – civilian oversight of America’s intelligence activities. The board exists to make sure government agencies are not overstepping their authority and abusing citizens’ rights,” said EFF Open Government Legal Fellow Mark Rumold. “History has shown that intelligence agencies overseeing their own behavior is like the fox guarding the henhouse. If the IOB is ineffective, impaired, or short-staffed, that’s information Americans need to know.”

So now they’re suing to get that information.

But there’s something else weird about Obama’s stone-walling here. Here’s the list of people Obama has appointed to the President’s Intelligence Advisory Board, the board that oversees the IOB.

  • Chuck Hagel (10/28/2009)
  • David Boren (10/28/2009)
  • Roel Campos (12/23/2009)
  • Lee Hamilton (12/23/2009)
  • Rita Hauser (12/23/2009)
  • Paul Kaminski (12/23/2009)
  • Ellen Laipson (12/23/2009)
  • Les Lyles (12/23/2009)
  • Jami Miscik (12/23/2009)
  • Richard Danzig (12/1/2010)
  • Daniel Meltzer (12/1/2010)
  • Thomas Wheeler (4/17/2011)
  • Mona Sutphen (9/6/2011)
  • Phillip Zelikow (9/6/2011)

You know, Lee Hamilton, the 9/11 Commission Chair who just weeks ago was nagging the Administration that, “there should be a board within the executive branch to oversee adherence to the [privacy] guidelines we recommend and the commitment the government makes to defend our civil liberties.” And Phillip Zelikow, who wasn’t involved in the anniversary nagging, but who was involved in the original recommendation? (FWIW, Chuck Hagel voted for PCLOB as part of the larger counterterrorism reform package of which it was a part.)

These men obviously think (or at least used to think) our intelligence community needs some oversight. I realize PCLOB isn’t the same thing as IOB (as originally conceived and even as statutorily defined PCLOB was supposed to be stronger in some ways than IOB, though it was targeted at privacy, not intelligence violations). So why not push for oversight designated to be a part of the board on which they serve?

Seven years ago, Hamilton and Zelikow signed off on the this language:

[W]hile protecting our homeland, Americans should be mindful of threats to vital personal and civil liberties. This balancing is no easy task, but we must constantly strive to keep it right.

This shift of power and authority to the government calls for an enhanced system of checks and balances to protect the precious liberties that are vital to our way of life.

Right now, even as Hamilton and Zelikow serve as Obama’s handpicked independent intelligence advisors, the checks and balances on our intelligence system are actually worse than when they signed off on those words. They may not be able to do anything about EFF’s FOIA to learn what has become of the IOB. But it’d be nice if they used their advisory position to implement checks and balances more generally on the intelligence community.


Have WSJ and Al Jazeera Already Ceded the Espionage Debate?

By:  Wednesday June 8, 2011 4:33 am

EFF has a report on the terms of service WSJ and AJ offer leakers using their WikiLeaks competitor sites. I had already heard that WSJ offered almost no technical security (which EFF describes), but it turns out neither offer much in the way of confidentiality guarantees.

Despite promising anonymity, security and confidentiality, [Al Jazeera Transparency Unit] can “share personally identifiable information in response to a law enforcement agency’s request, or where we believe it is necessary.” [WSJ's] SafeHouse’s terms of service reserve the right “to disclose any information about you to law enforcement authorities” without notice, then goes even further, reserving the right to disclose information to any “requesting third party,” not only to comply with the law but also to “protect the property or rights of Dow Jones or any affiliated companies” or to “safeguard the interests of others.” As one commentator put it bluntly, this is “insanely broad.” Neither SafeHouse or AJTU bother telling users how they determine when they’ll disclose information, or who’s in charge of the decision.

[snip]

By uploading to SafeHouse, you represent that your actions “will not violate any law, or the rights of any person.” By uploading to AJTU, you represent that you “have the full legal right, power and authority” to give them ownership of the material, and that the material doesn’t “infringe upon or violate the right of privacy or right of publicity of, or constitute a libel or slander against, or violate any common law or any other right of, any person or entity.”

[snip]

SafeHouse offers users three upload options: standard, anonymous, and confidential. The “standard” SafeHouse upload “makes no representations regarding confidentiality.” Neither does the “anonymous” upload which, as Appelbaum pointed out, couldn’t technically provide it anyway. For “confidential” submissions, a user must first send the WSJ a confidentiality request. The request itself, unsurprisingly, is neither confidential nor anonymous. And until the individual user works out a specific agreement with the paper, nothing is confidential.

Similarly, AJTU makes clear that “AJTU has no obligation to maintain the confidentiality of any information, in whatever form, contained in any submission.” Worse, AJTU’s website by default plants a trackable cookie on your web browser which allows them “to provide restricted information to third parties.” So much for anonymity!

I’m fascinated by this not just because they obviously won’t provide a real alternative to WL, but because of what they say about the evolving gatekeeper relationship of news outlets.

Keep in mind that both these outlets make curious candidates for a WL competitor.

For its part, WSJ would be unable to sustain its unique market position if it routinely offered corporate whistleblowers–particularly from the finance industry–a way to leak confidentially. Its demand that leakers represent that they have not violated the rights of any person, its warning that it might share information on leakers with requesting third parties, and its intent to safeguard the interests of others all sounds like WSJ is more interested in its corporate advertisers and the security of their information than protecting whistleblowers. Indeed, you might even say this is more of an ambivalent information service WSJ offers, potentially luring (say) Bank of America leakers who might otherwise leak to WL, possibly for stories, but possibly also to share with BoA.

Then there’s al Jazeera. Particularly since it is not US-based, and given its tie with the Qatari government, one would assume that they such a site would be closely monitored. The US has a long history of persecution of AJ, including imprisoning and killing journalists. Perhaps it’s not surprising how few protections it offers.

And all that’s before you consider the fact that the US government is trying to prosecute WL for espionage. Murdoch is in the middle of a spying scandal in the UK; AJ journalists have been treated, unfairly, as terrorists. That makes both somewhat vulnerable. And the USG has declared an entity that publishes anonymous leakers to be spy organizations, not something either WSJ or AJ need.

Which is why I find it so interesting that these two outlets, while claiming to do the same thing as WL did, fall so far short of attempting to offer true anonymity to their sources. Here, the protection accorded leakers is actually less than a traditional journalist would offer. It’s as if they’re ceding the US government argument that anonymous leaks are so much worse than the leaks from the powerful so often featured in outlets like WSJ.

Or perhaps they’re just trying to reinforce their traditional gatekeeper role while attempting to undercut the competition?

Updated for syntax and to fix WSJ/Murdoch conflation.


FBI Still Inventing New Ways to Surveil People with No Oversight

By:  Saturday February 12, 2011 12:38 pm

Maris Taylor has an important update on the OLC exigent letter opinion. Last year, DOJ’s now-retired Inspector General Glenn Fine released a report revealing how the FBI had used exigent letters to get call data information from telecoms with no oversight. Ryan Singel noted a reference to an OLC opinion that basically melted away the problems created by use of these exigent letters (see pages 264-266 of the report).

On January 8, 2010, the OLC issued its opinion, concluding that the ECPA “would not forbid electronic communications service providers [three lines redacted]281 In short, the OLC agreed with the FBI that under certain circumstances [~2 words redacted] allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency.

Taylor FOIAed the opinion.

And while DOJ refused to release the opinion, they did apparently reveal enough in their letter explaining their refusal to make it clear that the FBI maintains that it does not need any kind of court review to get telephone records of calls made from the US to other countries.

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

[snip]

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

EFF’s Kevin Bankston provides some context.

“This is the answer to a mystery that has puzzled us for more than a year now,” said Kevin Bankston, a senior staff attorney and expert on electronic surveillance and national security laws for the nonprofit Electronic Frontier Foundation.

“Now, 30 years later, the FBI has looked at this provision again and decided that it is an enormous loophole that allows them to ask for, and the phone companies to hand over, records related to international or foreign communications,” he said. “Apparently, they’ve decided that this provision means that your international communications are a privacy-free zone and that they can get records of those communications without any legal process.”

Now, I’m trying to get some clarification as to precisely what language DOJ used (see update below). But the revelation is interesting for two reasons.

As I argued last year, the opinion probably serves to clean up a lot of the illegal stuff done under the Bush Administration. I think it likely that this includes Cheney’s illegal wiretap program. If I’m right, then this claim would be particularly interesting not least because of all the discussions about US to international calls during the debate around FISA Amendments Act.

Then of course there’s the even bigger worry. When Fine released his report, the FBI assured him that it wouldn’t actually use this opinion. “No, Dad, I have no intention of taking the Porsche out for a spin, so don’t worry about leaving the keys here.”

But the fact that DOJ seems to be doubling down on this claim sort of suggests they are relying on the opinion.

Also, I can’t help but note about the timing of this FOIA response: Conveniently for DOJ, they didn’t respond to McClatchy until after Russ Feingold and Glenn Fine, the two people most likely to throw a fit about this, were out of the way.

Update: Via email, Kevin Bankston told me this is the clause the government is using to find its loophole: 18 USC 2511(2)(f).

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.


Government Continues to Avoid Court Rulings on Domestic Surveillance

By:  Monday April 19, 2010 10:46 am

Three significant pieces of news, taken together, show that the Courts continue to chip away at Bush-and-now-Obama’s domestic surveillance programs.

FISA Court Encourages Government to Stop Collecting Some Metadata

First, and potentially most importantly, the FISA Court, after learning more about what the collection of telecom metadata entailed, raised some concerns with the government, leading them to voluntarily stop collecting it.

The Foreign Intelligence Surveillance Court, which grants orders to U.S. spy agencies to monitor U.S. citizens and residents in terrorism and espionage cases, recently “got a little bit more of an understanding” about the NSA’s collection of the data, said one official, who spoke on the condition of anonymity because such matters are classified.

The data under discussion are records associated with various kinds of communication, but not their content. Examples of this “metadata” include the origin, destination and path of an e-mail; the phone numbers called from a particular telephone; and the Internet address of someone making an Internet phone call. It was not clear what kind of data had provoked the court’s concern.

[snip]

The NSA voluntarily stopped gathering the data in December or January rather than wait to be told to do so, the officials said. The agency had been collecting it with court permission for several years, officials said.

Curiously, Adam Schiff is quoted in the story specifically addressing VOIP.

Al-Haramain Agrees to Vaughn Walker’s Judgment

Next, on Friday, al-Haramain responded to Vaughn Walker’s tidy judgment on FISA–which I have argued was crafted to be rather tempting to the government–by basically accepting his judgment and backing off any further constitutional claims associated with the suit. In their proposed judgment, al-Haramain basically:

  • Asks for the $61,200 in damages defined by the statute ($20,400 for each of three plaintiffs, which comes from $100/day for each day of violation)
  • Asks for $550,800 total in punitive damages ($183,600 for each of three plaintiffs)
  • Asks for legal fees (bmaz estimates these might run to around $3,375,000)
  • Dismisses all other constitutional claims and claims against Robert Mueller as an individual
  • Requests a declaration that “the defendants’ warrantless electronic surveillance of plaintiffs was unlawful as a violation of FISA”
  • Requests an order that the government purge all information illegally collected (except that which would be exculpatory)

In short, al-Haramain is basically saying, “gosh what a nifty solution you’ve crafted, Judge Walker. Let’s see what Eric Holder thinks of it.”

Now, the government might have some complaint about the particular description of its illegal wiretapping. And I’m betting they’re going to have operational troubles with purging the illegally collected information, particularly if it means purging a lot of poisoned fruit along with it. But I still do think the government will try to find a way to accept Walker’s nifty solution.

Government Backs Down in Request to Access Stored Emails without Warrant

Finally, in another case in Denver, the government backed down a request that Yahoo turn over the stored emails of one of its customers without a warrant. Yahoo, EFF, and a bunch of other privacy advocates had made a stink, and rather than face an adverse judgment, the government backed down.

In the face of stiff resistance from Yahoo! and a coalition of privacy groups, Internet companies and industry coalitions led by EFF, the U.S. government today backed down from its request that a federal magistrate judge in Denver compel Yahoo! to turn over the contents of a Yahoo! email user’s email account without the government first obtaining a search warrant based on probable cause.

The EFF-led coalition filed an amicus brief this Tuesday in support of Yahoo!’s opposition to the government’s motion, agreeing with Yahoo! that the government’s warrantless seizure of an email account would violate both federal privacy law and the Fourth Amendment to the Constitution. In response, the Government today filed a brief claiming that it no longer had an investigative need for the demanded emails and withdrawing the government’s motion.

As EFF points out, the government has repeatedly backed down when challenged on this type of collection and related collection.

This is not the first time the government has evaded court rulings in this area. Most notably, although many federal magistrate judges and district courts have ruled that the government may not conduct real-time cellphone tracking without a warrant, the government has never appealed any of those decisions to a Circuit Court of Appeals, thereby preventing the appeals courts from ruling on the issue. Similarly, a federal magistrate judge in New York, Magistrate Judge Michael H. Dolinger, has twice invited EFF to brief the court on applications by the government to obtain private electronic communications without a warrant, and in each case, the government withdrew its application rather than risk a ruling against it (in one case the government went so far as to file a brief anticipating EFF’s opposition before finally dropping the case).

Which I think illustrates the common theme here. While we don’t yet know what the Obama Administration will do in the case of al-Haramain, in the two other cases, they have backed off of surveillance activities to avoid any adverse ruling from Courts. That’s partly a testament to their discomfort with their own legal position with regards to these activities. But it’s also an indication that they’d rather continue their programs in some lesser form than risk having a Court declare the whole program unconstitutional.

If I’m right about all this, it means the government is balancing facing an Appeals Court on FISA and State Secrets, versus paying less then $4 million to close the chapter on Bush’s most egregious form of domestic surveillance while still protecting executive programs that engage in similar collection.


9th Circuit to Jeffrey White: Get Back to Work on EFF FOIA

By:  Tuesday February 9, 2010 4:15 pm

The 9th Circuit wrote a really fascinating opinion in the EFF FOIA. The Circuit was dealing with three questions regarding EFF’s FOIA of the documents pertaining to telecom lobbying leading up to the passage of PAA and FAA. Those three questions are:

  • Whether FOIA Exemption 3 (protection of sources and methods) applies
  • Whether FOIA Exemption 6 (privacy) applies to contractors who lobby
  • Whether FOIA Exemption 5 (intra- and inter-agency communications) applies

While there’s a lot of nuance in this decision (and it’ll take a review of the actual Vaughn Indices to see what will definitely get released), the most exciting part of this ruling is the Circuit Court’s ruling that the government can’t protect the identities of the telecoms that lobbied for a Get Out of Jail Free Card, just because they needed one.

FOIA Exemption 3: Remand because EFF Was Confused

As to the question of whether the names of the telecoms should be protected as sources and methods and/or as a functional part of NSA, the Circuit didn’t decide. Rather, it argued there was confusion regarding whether or not EFF had ceded this issue, and as a result, District Court Judge White had not addressed the issue of whether this should be protected.

Under these statutes and Exemption 3, the government’s summary judgment brief argued, “ODNI and DOJ withheld information that could reveal whether any particular telecommunications carrier has assisted, or may in the future assist, the government with intelligence activities.” The government claimed disclosure “could deter telecommunications companies from assisting the government in the future,” and disclosure “provides our adversaries with valuable information about our intelligence sources, methods, and capabilities.”

[4] The government’s argument was predicated on the following inference: Revealing the identity of carriers and their agents working for a carrier liability shield would allow foreign intelligence agents to determine contours of NSA intelligence operations, sources, and methods. In other words, knowledge of which firms were and were not lobbying for liability protection could lead to inferences regarding the firms that participate in the surveillance program. EFF disputes the propriety of this inference. However, because the district court did not address Exemption 3 due to confusion in the parties’ summary judgment briefing, we remand for the district court to address these claims in the first instance.

This decision says nothing about whether White will rule in EFF’s favor or not. But heck, I’ll take that second bite at this apple.

FOIA Exemption 6: The Public has a Compelling Interest

This decision is, by far, the most interesting part of the opinion to me. Mind you, the Circuit was not determining whether or not contractors’ identities could be protected. Rather, it was determining whether lobbyists’ identities could be protected, even if it would be easy to assume those lobbyists were in fact contractors.

And the Circuit Court said that, whatever privacy protection the lobbyist-contractors might have, the public’s interest in knowing who was lobbying for legislation was more important.

We next consider “whether release of the information would constitute a clearly unwarranted invasion of that person’s privacy.” Wash. Post Co., 456 U.S. at 602. “[T]o determine whether a record is properly withheld, we must balance the privacy interest protected by the exemptions against the public interest in government openness that would be served by disclosure.” Lahr, 569 F.3d at 973.

The district court concluded “that there is some, although not a substantial, privacy interest in the withheld documents indicating the identities of the private individuals and entities who communicated with the ODNI and DOJ in connection with the FISA amendments.” It found, however, “that the public interest in an informed citizenry weighs in favor of disclosure” because “there is a strong public interest in disclosure of the identity of the individuals who contacted the government . . . to protect telecommunications companies from legal liability for their role in government surveillance activities.” We agree.

[snip]

[10] There is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence. As the Supreme Court has explained, “[o]fficial information that sheds light on an agency’s performance of its statutory duties” merits disclosure. Reporters Comm., 489 U.S. at 773.

[11] With knowledge of the lobbyists’ identities, the public will be able to determine how the Executive Branch used advice from particular individuals and corporations in reaching its own policy decisions. Such information will allow the public to draw inferences comparing the various agents’ influence in relation to each other and compared to the agents’ or their corporate sponsors’ political activity and contributions to either the President or key members of Congress. In short, we find the public interest in “government openness that would be served by disclosure” of how the government makes decisions potentially shielding firms lobbying (and donating to campaigns) from nine-figure liabilities to be plainly important.

As a sop to the government–which was trying to hide all this information–the Circuit Court ruled that the government did not have to make the email addresses for the individuals involved public.

Big whoop. We won’t be able to email the executives who got their Get Out of Jail Free Card. I plan on emailing Ed Whitacre–former CEO of AT&T when they were doing this lobbying and currently CEO of GM–at his new GM email, anyway.

FOIA Exemption 5: The Government Cheated

In general, the Court found that White had too broadly claimed that the documents in question did not qualify for Exemption 5, agreeing that the government had shown that much of this was intra- or inter-agency communication. For those materials, the Court said the government would then have to go back and claim some privilege (such as deliberative privilege) to keep the documents hidden.

But the Court’s more general ruling was that White hadn’t looked closely enough at the Vaughn Index (and that he might have to look at the documents themselves). To justify that point, the Court cites this very amusing example.

Examining the Vaughn indices themselves shows the importance of engaging in the admittedly time-consuming analysis not performed here. Nearly all of the characterizations in the government-offered declarations comport with the descriptions in the Vaughn indices of inter-branch or intrabranch communications. Thus, for these emails, the district court should have more closely examined the documents to determine whether they were in fact inter-agency or intraagency memorandums or letters. Including them in a broad disclosure order was error under any standard.

In addition, in at least two instances (OLC Vaughn Index numbers 46 & 74), the plain language of the declaration seems to imply an intra-Executive Branch email when, in fact, the Vaughn Index makes clear the communications at issue were between the Executive Branch and telecommunications company representatives. This highlights the need for a fact specific inquiry under Exemption 5.

That is, to justify its ruling that Judge White needs to go back and look more closely at the Vaughn index and individual documents, the Court agrees that most of the documents are claimed to be intra- or inter-agency documents. But then points to an example where the government claimed emails between the Executive Branch and telecoms was intra- or inter-agency.

Busted.

Now, before any of these get released, I think the District Court will need to sort which exemptions were claimed for which documents. But the big takeaway, to me, is that the Circuit Court has ruled that the government can’t keep the identities of lobbyists hidden, even if those lobbyists were lobbying for telecoms that had helped the government break the law.


DOJ Set To Shuck And Jive Judge White In EFF FOIA Case

By:  Friday October 16, 2009 1:02 am

Just two days ago we were discussing the status of EFF v. ODNI, the FOIA case in NDCA where disclosure is being sought of documents evidencing the telecom lobbying on immunity for corporate participation in Bush’s surveillance program. As you will recall, Judge White had denied the various stay attempts put forth by the government (and one they had not even made yet) and ordered disclosure on or before 4 pm PST today, October 16.

Josh Gerstein at Politico, who has done an excellent job following this case, has some news of what the government plans to do:

The Obama administration may be on the verge of a major concession in a long-running legal battle over records about so-called telecom immunity.

An email obtained by POLITICO shows that the Obama Administration is preparing for the possible release of some details of the Bush Administration’s lobbying for legislation giving telecommunications companies immunity from lawsuits over their involvement in warrantless domestic wiretapping.

But even if they do release those details, the administration may press on with a legal battle to keep secret the identities of the companies involved in the program.

And what will the government be oh so graciously disclosing? A lot of stuff that, while responsive to the FOIA request, is certainly not responsive to the core of the request.

“The Executive Branch will be providing to the Electronic Frontier Foundation in its FOIA suit a large number of e-mail communications between House staffers and Executive branch employees regarding the legislation involving immunity to telecommunications companies enacted as part of the [revised Foreign Intelligence Surveillance Act] legislation last year,” Nathan wrote.

In short, they are not going to disclose the identities of the telecom companies and their employees which sought immunity. And, predictably, the government relies on the well worn claptrap that:

Disclosure of such information would assist our adversaries in drawing inferences about whether certain telecommunications companies may or may not have assisted the government in intelligence-gathering activities,

But the court has already expressed its position on this argument: Continue reading →