FBI Sues To Block Disclosure Of Surveillance Cameras Locations Because It Would Violate The Privacy Of Those Surveilled

from the we-don't-negotiate-with-(FOIA)-terrorists dept

Another injunction request has been filed in response to a Phil Mocek public records request pertaining to Seattle’s power utility. This time, Mocek and MuckRock (through which Mocek’s requests have been routed) are not named as defendants. It’s only the city of Seattle and its public utility (Seattle City Light) being named as defendants, but Mocek’s public records request is specified in the federal court filing [PDF]. (h/t Mike Scarcella)

This time, the plaintiff isn’t a multinational corporation. It’s the Federal Bureau of Investigation. The nexus for the FBI’s attempt to block further disclosures to Mocek (and other requesters like local new station KIRO) is its remora-esque relationship with Seattle’s public utility. After a long paragraph utilizing terms like “tradecraft,” “concealments,” and “advanced electronic surveillance,” we finally get to the real reason the FBI wants the court to keep the city of Seattle from handing out any more public utility documents to requesters.

Among other types of video surveillance techniques and methods, the FBI may lawfully install a video camera on an existing utility structure, such as a power pole (“pole camera”), in furtherance of an authorized investigation, when use of the method is reasonably likely to achieve investigative objectives.

The FBI then goes on to argue that despite the cameras being attached to publicly-owned property, they’re still sensitive and secret — unlike countless other cameras serving pretty much the same purpose.

The FBI’s use of surveillance cameras must be distinguished from that of any other state or federal law enforcement agency on two principal grounds. First, in light of the FBI’s unique law enforcement and national security missions, there are particular sensitivities attached to the FBI’s use of surveillance equipment and the tradecraft associated with that use. Second, unlike the use of surveillance cameras by other entities, such as state and local governments or private businesses, which may operate video surveillance cameras in public locations to deter crime or promote public safety generally, the FBI utilizes surveillance cameras only in furtherance of an authorized investigation of a particular subject(s).

It also restyles its anti-FOIA “mosaic” theory into something a bit more relatable.

Disclosure of even minor details about them may cause jeopardy to important federal interests because, much like a jigsaw puzzle, each detail may aid adversaries in piecing together information about the capabilities, limitations, and circumstances of equipment’s use, and would allow law enforcement subjects, or national security adversaries, to accumulate information and draw conclusions about the FBI’s use of this technology, in order to evade effective, lawful investigation by the FBI.

If the location of these cameras were disclosed, suspects would seek to avoid being recorded by them. This is a logical argument. But it’s followed by one that’s much harder to accept at face value. The FBI claims — engage your paradox-absorbing crumple zones now — that disclosing the location of the cameras would result in the violation of privacy of suspects the FBI alread has cameras aimed at.

Because of their close proximity to the subjects of surveillance, unauthorized disclosure of the locations of current or previously installed pole cameras can reasonably be expected to constitute an unwarranted invasion of privacy for those persons under investigation who have not yet been charged.

The FBI can watch anyone 24/7, but if a citizen works their way backward from a camera’s location to speculate on who might be the target, that person’s privacy will have been invaded.

But this sort of math has a low probability of arriving at the correct conclusion. Hence, the FBI also points out that location disclosure would violate the privacy of everyone in the general vicinity.

It can also reasonably be expected to constitute an unwarranted invasion of the privacy of innocent third parties not under investigation but geographically near the current or past location of the camera, who may falsely be assumed to be the subject of an FBI investigation.

Because the FBI doesn’t want Seattle City of Light employees removing its concealed cameras, it has shared the locations of its extra eyeballs with the utility. But the FBI wants the city to withhold more than just the location of FBI cameras. It wants everything related to the FBI blocked from release in order to prevent jigsaw assembly by public records recipients. The city, so far, has refused to do so and appears to be challenging the FBI’s secrecy demands.

In January 2016, the City informally notified the U.S. Attorney’s Office that, following the City’s release of the partially redacted FBI information to KIRO, City Light had received a second PRA request from Phil Mocek, challenging the City’s withholding of the redacted information. Shortly thereafter, the City formally notified the FBI of this request by letter. In the same notice, the City also stated that it did not intend to withhold any of the confidential and sensitive information which it had redacted in connection with the earlier request, and that it would release all FBI information at issue unless the FBI obtained an injunction prohibiting such release.

The city did agree to give the FBI time to seek an injunction. This may look like deference, but it could very well be that the city is hoping to have the court more clearly define the limits of public records disclosure exemptions. If this moves far enough ahead, the FBI will be forced to justify its demands for the redaction of all information related to its use of city property to conduct surveillance.

As a result of previous “unauthorized” disclosures, the FBI has stopped sharing the locations of its cameras with the city’s light utility. The theoretical destruction of its cameras by utility employees is the basis for the FBI’s “we’ve already been injured by records releases” claim. The FBI then goes on to claim that challenging federal agency demands for secrecy isn’t in the public’s interest.

[T]he absence of communications with City Light has placed FBI equipment at risk of inadvertently being removed or destroyed by City Light personnel. Such lack of coordination and communication between state and federal government entities is contrary to effective law enforcement and otherwise contrary to public interest in good government.

All the FBI wants is the complete control of any public records request response that might somehow involve it.

On the Fifth cause of action, for an Declaratory Judgment that any similar Protected Information the FBI has shared in the past or may in the future share with the City or City Light for law enforcement purposes is:

a. exempt under the PRA;

b. subject to the federal law enforcement privilege;

c. subject to a federal common law duty of confidentiality;

d. subject to a common law property interest; and

e. that the Protected Information may not be disclosed by the City for any other secondary purpose, without the express permission of the FBI.

The FBI, it would appear, wants the federal court system to put its weight behind an ad hoc non-disclosure agreement, a la the Stingray-related demands it places on every law enforcement agency that acquires this surveillance tech.

It’s looking to have federal FOIA exemptions (along with some made-up stuff like “duty of confidentiality”) override local public records statutes even as it’s using city property as tripods for its cameras. Rather than try to have it all, it could simply cut the city out of the loop (as it’s doing now) and run the risk of losing a few cameras. Instead, it’s seeking to make the city of Seattle a wholly subservient “partner” in its surveillance efforts.

A judge has already granted a temporary injunction. If it’s made permanent, it will give the FBI final say on public records responses in Seattle — and presumably elsewhere in the same federal district.

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Comments on “FBI Sues To Block Disclosure Of Surveillance Cameras Locations Because It Would Violate The Privacy Of Those Surveilled”

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28 Comments
Anonymous Coward says:

“Because It Would Violate The Privacy Of Those Surveilled”. Seriously? That’s a complete lie. The reason they don’t want to disclose is because it would reveal their surveillance and reveal to those people under surveillance.

There should be a law that requires law enforcement to inform a suspect that he or she is under surveillance. Whether they have a warrant for the surveillance or not.

Anonymous Coward says:

Re: Re:

I’m not so sure it’s a lie, more like a convenient truth.

Remember, people are under surveillance because there is no proof they are wrongdoers.
By revealing the locations people will make conclusions about their neighbors. Even if it turns out the subject is innocent the fact they were surveiled can damage relations with their neighbors.

Imagine a Muslim enjoys the hobby of R/C airplanes and his neighbors find out the FBI put a camera on the utility pole in front of his home. Suddenly this law abiding citizen finds none of his neighbors want to associate with him. Meanwhile the subject of the investigation moves to a new home.

YAAC says:

Third party doctrine?

I have no problem with this unwinding of the third party doctrine. The FBI/DOJ has now admitted that you should be able to take steps to secure your business records.

But I’m sure if a member of the public had advised city light and power that they did not want their records released because umm privacy they would not receive a kind letter when the FBI came knocking for the info.

Anon says:

No different...

This is the same argument as the distinction between a human stakeout and a GPS attached to a car. In fact, way back in the 80’s IIRC the Reagan administration tried to make a distinction between information that was public, and information that when fully collated, should be classified.

there’s a huge difference, for example, between knowing Joe works for the FBI, or getting a complete list of FBI employees and job titles for the entire USA.

The same applies to digital hoovering – there’s a huge distinction between surveilling someone in person, versus mechanically collecting every scrap of data available with an unblinking eye. The first might be observation, but the latter is an invasion of privacy – ironically, the very “Big Brother” that Orwell warned of in his “1984”.

Plus, as peeping Tom laws also determine, there’s a difference between incidentally observing something happening in a private place through an open curtain, and standing outside the window looking in for hours. That will get you a “peeping Tom” conviction.

The FBI should expect no less of a standard. If they want to collect unremitting data on a certain person or locale, they should convince a judge why such an invasion of privacy is necessary.

Anonymous Coward says:

Law enforcement in this country has simply spiraled out of control so much that they have become corrupted, just like the courts with their rubber-stamping of warrants without notifying the defendant so their attorneys can contest the warrants.

When you hobble the justice system so that attorneys for defendants don’t have the ability to defend themselves then our court system just becomes a jester’s court where defendants have no legal rights.

Didn’t the criminal justice system work this way back in the 1700’s and 1800’s where most defendants weren’t given access to an attorney to defend them in court?

We might as well go back to the system where you were accused and the judge sentenced you at their own discretion.

Coyne Tibbets (profile) says:

Variable concern for privacy

I’ve noticed before that FBI has a variable concern for privacy. If a person did something bad and exposing private details would make the FBI look good, who cares about privacy? OTOH, if exposure of a person’s private life would make the FBI look bad, all of a sudden the FBI develops a furrowed brow concern for personal privacy.

This takes that to a whole new level: surveillance cameras in your toilet, shower, and bedroom reduce your privacy to zero…no concerns about that; bet they play those videos in court. But tell anyone at all where the camera was placed? That would be a TERRIBLE breach of personal privacy, what’s wrong with you?

Anonymous Coward says:

I find this a hoot for another reason. They are now supposedly concerned over cameras in public areas being a privacy violation.

Pray tell, where is this same concern when it comes to cell phones? They are not just getting the one under surveillance but everyone else in the vicinity that isn’t under surveillance. Yet suspiciously it’s only cameras that matter.

M. Alan Thomas II (profile) says:

I fully believe in mosaic theory. To quote the FBI, adjusted for subject:

Disclosure of even metadata about my communications may cause jeopardy to important privacy interests because, much like a jigsaw puzzle, each detail may aid the government in piecing together information about the content and circumstances of my communications and would allow law enforcement, or national security agencies, to accumulate information and draw conclusions about my life in order to violate my privacy.

That One Guy (profile) says:

Re: One rule for me, another for thee

Yeah, that won’t do you much good because government agencies only believe that it applies when it comes to their actions, they are perfectly fine with turning right around and defending scooping up a whole slew of minor bits of information by claiming that each individual piece is harmless enough, so what possible reason could anyone have to object?

Mason Wheeler (profile) says:

But this sort of math has a low probability of arriving at the correct conclusion. Hence, the FBI also points out that location disclosure would violate the privacy of everyone in the general vicinity.

That actually makes perfect sense. I mean, if the FBI was investigating my next-door neighbor, I certainly wouldn’t want someone looking at the data, jumping to the wrong conclusion, and thinking the Feds were trying to bust me!

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