This article, written by senior staff attorney Jennifer Lynch, was originally published by the Electronic Frontier Foundation.
Sunshine Week is often a time for transparency advocates to collectively lament about government secrecy and institutional resistance to accountability. But the week of advocacy is also an opportunity to highlight how, through patience and a lot of court motions, organizations such as the Electronic Frontier Foundation can pry important documents from agencies that would rather operate in the shadows.
The Electronic Frontier Foundation recently won favorable rulings in two hard-fought Freedom of Information Act cases involving reports of intelligence agency misconduct and agency attempts to mandate backdoors into Internet communications. In light of recent revelations about illegal National Security Agency and FBI surveillance, the records produced in these cases could not be more timely.
EFF V. CIA: Reports Of Intelligence Agency Misconduct
In EFF v. CIA, first filed in 2009, EFF sought reports of illegal intelligence activities submitted to the Intelligence Oversight Board. A judge has since ordered the government to release previously withheld documents about agency misconduct or come up with new arguments to justify the secrecy. Because of the government’s requests for deadline extensions, the records are now due March 21.
These reports were prepared by the FBI, the Department of Defense, the Office of the Director of National Intelligence and the Department of Homeland Security. This latest ruling may result in the further disclosure of significant government misconduct. The reports EFF obtained so far under FOIA have revealed:
- The Army issued national security letters for phone records to a communications provider — even though the FBI is the only agency with statutory authority to issue these NSLs;
- Various branches of the military illegally surveilled U.S. groups from Planned Parenthood to a white supremacist group called the National Alliance to an anti-war group called Alaskans for Peace and Justice;
- DHS improperly investigated the Nation of Islam and collected intelligence about a nonviolent Muslim conference in Georgia, including details about conference speakers who were Americans;
- The Army illegally investigated attendees at conference on Islamic law at the University of Texas Law School;
- The NSA admitted that, as of late 2007, it lacked processes and procedures for timely reporting of intelligence oversight violations;
- The FBI may have committed upward of 40,000 intelligence violations between late 2001 and 2010, including improperly issuing NSLs for images, education records, and hotel and financial records and monitoring young children’s calls for five days.
These records have helped Congress and the courts to understand the scope of Federal intelligence agency misconduct. However, the agencies continue to withhold hundreds of documents from the public.
The court agreed with EFF that the agencies failed to justify their withholdings. The court said the government’s arguments were “clearly inadequate” and that the agencies’ “generalized assertions and boilerplate fall far short of the detail required to demonstrate that information was properly withheld under FOIA.”
By their nature, these reports detail illegal activities that, according to executive order and statute, may not be classified or withheld under FOIA. Given this, and given the fact that EFF requested these records more than five years ago, it is hoping the government will do the right thing and release them.
EFF v. DOJ: Expansion Of Electronic Surveillance Laws
A court has also ordered the Department of Justice to hand over documents in EFF’s FOIA lawsuit to obtain information that the government may be using to justify an expansion of a law that aids Federal wiretapping.
In EFF v. DOJ, filed in 2010, EFF sued the DOJ, the FBI and the Drug Enforcement Administration to get information on problems that hamper electronic surveillance and could justify or undermine the Barack Obama Administration’s calls for expanded surveillance powers.
Over the past few years, Federal agencies have been pushing Congress to expand the Communications Assistance for Law Enforcement Act (CALEA) to require communications service providers from Google to Skype to Facebook to Sony to build surveillance-ready “backdoors” into their systems. However, other than a couple extremely vague anecdotes, the agencies have failed to provide any evidence that that their investigations have been thwarted without such a fix. In EFF’s FOIA requests, it sought this very information.
As discussed in detail here, the government withheld a significant amount of material, claiming it was “outside the scope” of EFF’s FOIA request. The government also argued it was entitled to withhold names of Internet service providers that had helped it conduct surveillance, because it would hurt these companies’ bottom line if their customers knew they were working with the government. The court agreed with EFF that both of these arguments lacked merit and ordered the government to release records. It’s a great win and reinforces important case law for FOIA requesters in the 9th Circuit.
These Opinions Are Good For The Public, But They Aren’t Enough
The opinions in these cases show that courts continue to be concerned that the government is withholding more information from the public than it is entitled to. And they both reinforce important precedent for FOIA requesters.
However, the cases also reinforce the belief that the current system of government transparency is broken. In EFF v. CIA, EFF submitted its first requests for records in 2008. Once EFF filed its motion for summary judgment in the case, it took the court more than a year and a half to rule on the motion. It has now been more than five years since EFF filed that request, and the government continues to withhold a majority of the records.
The second case, EFF v. DOJ, isn’t much better. In that case, EFF filed its requests in 2010 and then waited nearly a year for the government to finish processing records that were then either withheld in full or produced but almost completely blacked out. EFF went through two rounds of summary judgment briefing — a year apart — on the same documents and issues before the court finally ruled in its favor — a full six months after EFF argued the motion. And EFF is still waiting for records.
As EFF has stated before, given the failings of the standard transparency process, there has to be room and support for whistle-blowers to act alongside the FOIA process. These insiders can expose government hypocrisy and illegal activities without the public having to rely on tenacious lawyers — and wait many years — to learn about these activities.
EFF is currently negotiating with the government about the release of final records in these cases and will post those records on its site when it receives them.