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

from the progress dept

We’ve joked about how James Clapper and the Office of the Director of National Intelligence (ODNI) like to claim that the various documents they’ve been declassifying and releasing in the post-Snowden era are decisions they’ve made out of the goodness of their transparency-loving hearts, when the reality is that much of it is in response to FOIA lawsuits from the EFF. When it comes to Section 702 of the FISA Amendments Act, the part of the law that covers PRISM and (more importantly) the direct “upstream” tapping of the internet backbone via companies like AT&T, EFF had asked for a variety of documents pertaining to how the program was run. After ODNI did everything possible to refuse to provide such documents in any meaningful way, EFF sued.

Following the Snowden revelations, and the sudden “we love transparency*” (*not really) attitude of the ODNI, it started re-reviewing the original redactions and (look at that!) suddenly realized that it didn’t actually need to have wasted so much black ink on the originals. EFF continued to push back on certain redactions, and ODNI magically discovered even more wasted black ink. Eventually, huge portions of the various documents that had previously been withheld were revealed. EFF kept pushing, and asked the court to review some of the remaining redactions, just to make sure that ODNI wasn’t hiding anything solely out of embarrassment, rather than for legitimate national security purposes. The court got to secretly review the unredacted document, asked some detailed questions of the DOJ, leading to even more redactions falling by the wayside. So, now, finally, after all of that, the judge has basically said that all of the remaining redactions are legitimate, and thus effectively rules “against” the EFF.

However, this is a pretty clear victory for the EFF, considering that during the course of the case it was able to remove many of the original redactions. Of course, this is still problematic, because it highlights how many of those original redactions were clearly improper, and it took this long and convoluted process (and Ed Snowden) before ODNI was willing to reveal these documents concerning a rather key program in how the NSA conducts surveillance.

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Comments on “Court Rules Against EFF In DOJ FOIA Lawsuit… But Mainly Because ODNI Already Declassified Most Of It”

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Whatever (profile) says:

Re: Re: Hmmm

It’s not from anything EFF did. EFF didn’t win anything, they got most of it handed to them willingly. In other words, the results would have been the same with or without the lawsuit.

The judge basically ruled against the premise, put in the position to argue the same case again in another circumstance, this loss would surely be highlighted by the opposing council.

That One Guy (profile) says:

Re: Re: Re: Hmmm

With a very loose definition of ‘willingly’. Without someone pushing, I’m betting most of what’s been redacted would still be redacted, because secrecy is the default position for most government agencies.

It’s easy to slap ‘Classified’ on a document, actually reviewing it to see if it deserves to be classified takes time and effort, so is not likely something they’d do without motivation being applied from somewhere.

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