Obama's Transparency Promise: We're Still Waiting Legal Analysis by David L. Sobel
April 19th, 2009 When President Obama – in one of his first official acts – committed his new administration to an "unprecedented" level of transparency, EFF applauded the change in policy. Likewise, when Attorney General Holder, at the President's direction, issued new guidelines liberalizing agency implementation of the Freedom of Information Act (FOIA), we welcomed it as a "particularly promising development." But we also noted that it remained to be seen whether reality would match the rhetoric as the new policy was applied, particularly in the context of pending lawsuits – several of which EFF is pursuing – that challenge Bush-era decisions to withhold requested information. Unfortunately, the early indicators are not encouraging. Last week, the Justice Department told a federal judge (PDF) in Washington that the FBI – despite the new Holder FOIA guidelines – will not be altering its previous decision to withhold a substantial amount of information concerning its massive Investigative Data Warehouse (IDW), which the Bureau describes as "the FBI’s single largest repository of operational and intelligence information." The database contains hundreds of millions of records and has been characterized as an "uber-Google." The FBI's refusal in the IDW case to release even one additional word under the Obama administration's highly-touted transparency policy is troubling for several reasons. First, Attorney General Holder expressly directed that the new FOIA guidelines "should be taken into account and applied" in pending lawsuits, and the judge in the IDW case had ordered the Bureau to say "whether [its] position has changed" in light of the new Obama policy. So the FBI is clearly and unequivocally saying that the Holder guidelines don't change a thing. Second, the reasons the FBI has cited (PDF) for withholding much of the disputed information are precisely the ones that the Justice Department claims are particularly appropriate for agencies to forego in favor of "discretionary releases." Thus, the FBI continues to rely upon the so-called "low-2" exemption to withhold material deemed to be "routine matters of merely internal interest," despite the fact that DOJ's Office of Information Policy (OIP) has recently issued guidance on the new policy directing that where the "low-2" exemption might technically apply, "discretionary release should be the general rule." Even more significantly, the Bureau extensively invokes Exemption 5 to withhold material under the "deliberative process privilege," despite OIP's determination that "[t]here is no doubt that records protected by Exemption 5 hold the greatest promise for increased discretionary release under the Attorney General's Guidelines." It is truly remarkable that, in the face of the stated policy encouraging "discretionary releases" of requested information, the FBI has now seen fit to continue to withhold every single word it withheld prior to the new administration's purported change in direction. Finally, it is worth noting that the FBI’s announcement of "no change" in the IDW case came just days before the Obama administration's high-profile release of the so-called "torture memos." While the administration deserves praise for that decision, and the American Civil Liberties Union should be thanked for its long and persistent fight to gain the release of that material, the torture memos appear to be a special case. The President himself recognized that "exceptional circumstances surround these memos and require their release" and noted that "the interrogation techniques described in these memos have already been widely reported." So the release of that material was not part of the routine, systemic "presumption of openness" that the President and Attorney General have promised; rather, it was an exceptional decision made at the highest levels of the government in the face of enormous public pressure and in recognition of the fact that most of the details are already known. The FBI's failure to change course in the IDW case is not the only situation in which EFF has found that the administration's actions are not yet living up to its pro-transparency rhetoric. We have clearly noted our disappointment in finding that the Obama administration has adopted the Bush policy with respect to the state secrets privilege in the context of illegal wiretapping. And the White House has not even bothered to respond to EFF's formal requests for information concerning the use of cookies (PDF) at whitehouse.gov and the policies governing records created on White House BlackBerries and similar devices (PDF). For an administration that promised on Day One that it was "committed to creating an unprecedented level of openness in Government," the early track record leaves a great deal to be desired. It's now time to start delivering on that promise. http://www.eff.org/deeplinks/2009/04/obamas-transparency- a.. Which Congressman Was Wiretapped? New reports that the NSA spied on a Congressman has people wondering which one it might be. a.. Goldman Sachs v. Blogger Goldman Sachs is trying to silence a blogger that has criticized the bank. a.. Lessons From the Privacy Trail A new book examines academic work on questions of privacy and identity in a networked society. a.. Mashup the FTC DRM Testimony Blogger Chris Soghoian provides clips of some hilarious testimony at the FTC's DRM hearings, and is inviting the public to create mashups. a.. Government Agencies Make Friends With Web 2.0 The General Services Administration has made agreements with new media companies to ease government use of social networking sites. a.. Statebook It's like Facebook, but for the government. ======= Why Did The NSA--And Not The FBI--Conduct The Wiretap Which Snagged Harman? By Brian Beutler April 21, 2009 Sunday's bombshell article by Jeff Stein--and the New York Times' helpful follow up piece--open up so many new lines of inquiry it's hard to know where to begin. But a few things definitely stuck out at us. One question we had is why, according to Stein's story, did the NSA (and not the FBI) conduct the wiretaps? (Yesterday afternoon a couple reports emerged indicating that perhaps the FBI, and not the NSA had done the surveillance, but the Times story seems to confirm what Stein wrote). Why the curiosity? Well, for one thing, at the time Harman's conversation was supposedly recorded, the FBI had long been investigating the conduct of AIPAC officials under suspicion of passing on classified information and the Harman conversation allegedly involves an attempt to obstruct the DOJ's case. Harman has strenuously denied any wrongdoing, but assuming the taps were conducted in conjunction with the AIPAC investigation, this was certainly the FBI's bailiwick, and, for that matter, the FBI has real investigative capability whereas the NSA, though equipped with robust interception capability, does not. NSA furthermore is almost largely in the business of foreign intelligence surveillance, so why would they become involved? One benign possibility is that the NSA was surveilling this agent for completely separate reasons. But Electronic Frontier Foundation's Kevin Bankston cautions that there "has been a greater level of cooperation since 9/11," so there's no reason to assume the NSA wasn't involved from the outset. I asked FBI spokesman Richard Kolko if he'd describe, in generic terms, the level of interagency co-operation between the NSA and the FBI and the circumstances under which such co-operation would occur. Kolko said he was aware that my inquiry was pursuant to this still-emerging story and refused to comment. (At his behest, I've passed the inquiry along to the Department of Justice.) A former FBI source who declined to speak on the record suggested that perhaps the NSA's involvement stems back to the origins of this controversy. As my colleague Zack Roth noted yesterday, in May 2005, former Defense Intelligence Agency analyst Larry Franklin was taken into custody by federal agents after a months-long investigation revealed he had handed over secret U.S. national security information to Israeli agents. That may be key, because, according to the source, for the most part, the NSA's investigative capability is limited to inquiries into their own people--and as a Defense Department agency, that would include Pentagon officials. But, of course, the Harman conversation supposedly took place in October 2005, several months after Franklin had already been indicted, and around the same time as Franklin pleaded guilty. And that raises the question: if the NSA was involved because of Franklin (still a big if), why were they still involved after his specific case was all but wrapped up? I'll pass along any more information as I learn it--the explanation may prove interesting. http://tpmmuckraker.talkingpointsmemo.com/2009/04/why_did_the_nsa--and_not_the_fbi--conduct_the_wire.php ==== Congress Ponders Cybersecurity Power Grab from the no-cybersecurity-licenses-please dept Apr 20th 2009 by Timothy Lee There was a lot of attention paid last week to a new "cybersecurity" bill that would drastically expand the government's power over the Internet. The two provisions that have probably attracted the most attention are the parts that would allow the president to "declare a cybersecurity emergency" and then seize control of "any compromised Federal government or United States critical infrastructure information system or network." Perhaps even more troubling, the EFF notes a section that states that the government "shall have access to all relevant data concerning (critical infrastructure) networks without regard to any provision of law, regulation, rule, or policy restricting such access." Read literally, this language would seem to give the government the power to override the privacy protections in such laws as the Electronic Communications Privacy Act and the Foreign Intelligence Surveillance Act. Thankfully, Congress can't override the Fourth Amendment by statute, but this language poses a real threat to Fourth Amendment rights. One clause that I haven't seen get the attention it deserves is the provision that would require a federal license, based on criteria determined by the Secretary of Commerce, to provide cybersecurity services to any federal agency or any "information system or network" the president chooses to designate as "critical infrastructure." It's hard to overstate how bad an idea this is. Cybersecurity is a complex and fast-moving field. There's no reason to think the Department of Commerce has any special expertise in certifying security professionals. Indeed, security experts tend to be a contrarian bunch, and it seems likely that some of the best cybersecurity professionals will refuse to participate. Therefore, it's a monumentally bad idea to ban the government from soliciting security advice from people who haven't jumped through the requisite government hoops. Even worse, the proposal leaves the definition of "critical infrastructure" to the president's discretion, potentially allowing him to designate virtually any privately-owned network or server as "critical infrastructure," thereby limiting the freedom of private firms to choose cybersecurity providers. When thinking about cyber-security, it's important to keep in mind that an open network like the Internet is never going to be perfectly secure. Providers of genuinely critical infrastructure like power grids and financial networks should avoid connecting it to the Internet at all. Moreover, the most significant security threats on the Internet, including botnets and viruses, are already illegal under federal law. If Congress is going to pass cybersecurity legislation this session (and it probably shouldn't) it should focus on providing federal law enforcement officials with the resources to enforce the cyber-security laws we already have (and getting the government's own house in order), not give the government sweeping and totally unnecessary new powers that are likely to be abused. http://www.techdirt.com/articles/20090403/1346154383.shtml ====== In Warrantless Wiretapping Case, Obama DOJ's New Arguments Are Worse Than Bush's Commentary by Tim Jones April 7th, 2009 We had hoped this would go differently. Friday evening, in a motion to dismiss Jewel v. NSA, EFF's litigation against the National Security Agency for the warrantless wiretapping of countless Americans, the Obama Administration's made two deeply troubling arguments. First, they argued, exactly as the Bush Administration did on countless occasions, that the state secrets privilege requires the court to dismiss the issue out of hand. They argue that simply allowing the case to continue "would cause exceptionally grave harm to national security." As in the past, this is a blatant ploy to dismiss the litigation without allowing the courts to consider the evidence. It's an especially disappointing argument to hear from the Obama Administration. As a candidate, Senator Obama lamented that the Bush Administration "invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of civil court." He was right then, and we're dismayed that he and his team seem to have forgotten. Sad as that is, it's the Department Of Justice's second argument that is the most pernicious. The DOJ claims that the U.S. Government is completely immune from litigation for illegal spying — that the Government can never be sued for surveillance that violates federal privacy statutes. This is a radical assertion that is utterly unprecedented. No one — not the White House, not the Justice Department, not any member of Congress, and not the Bush Administration — has ever interpreted the law this way. Previously, the Bush Administration has argued that the U.S. possesses "sovereign immunity" from suit for conducting electronic surveillance that violates the Foreign Intelligence Surveillance Act (FISA). However, FISA is only one of several laws that restrict the government's ability to wiretap. The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes. Again, the gulf between Candidate Obama and President Obama is striking. As a candidate, Obama ran promising a new era of government transparency and accountability, an end to the Bush DOJ's radical theories of executive power, and reform of the PATRIOT Act. But, this week, Obama's own Department Of Justice has argued that, under the PATRIOT Act, the government shall be entirely unaccountable for surveilling Americans in violation of its own laws. This isn't change we can believe in. This is change for the worse. For further reading, we suggest Salon.com's Glenn Greenwald and The Atlantic's Marc Ambinder. Related Issues: NSA Spying Related Cases: Jewel v. NSA http://www.eff.org/deeplinks/2009/04/obama-doj-worse-than-bush
