Legal Issues

by Mike Masnick

Filed Under:
doj, eff, foia, odni, section 702


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.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Anonymous Coward, Jul 21st, 2014 @ 6:18pm

    If the shit gets any deeper I'll need boots and a shovel next time I go online. Getting to be the internet just isn't worth the hassle anymore. Never imagined I would long for the sound of a dial-up modem and the problematic recurring disconnects.

    reply to this | link to this | view in thread ]

  2. identicon, Jul 21st, 2014 @ 7:26pm

    % of original redactions unredacted? Bet the number would make a great headline.

    reply to this | link to this | view in thread ]

  3. This comment has been flagged by the community. Click here to show it
    Whatever (profile), Jul 22nd, 2014 @ 2:21am


    this is a pretty clear victory for the EFF

    Only on Techdirt can the EFF lose a case and be the winner. Next we will find out that Mitt Romney really did "win" last time too!

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, Jul 22nd, 2014 @ 4:19am

    Re: Hmmm

    The concept is called Pyrrhic victory:

    A Pyrrhic victory is a victory with such a devastating cost that it is tantamount to defeat. Someone who wins a Pyrrhic victory has been victorious in some way; however, the heavy toll negates any sense of achievement or profit (another term for this would be "hollow victory").[1]

    reply to this | link to this | view in thread ]

  5. icon
    That One Guy (profile), Jul 22nd, 2014 @ 4:23am

    Re: Hmmm

    If, during the course of a lawsuit, one side gets 90% of what they asked for, and the judge tells them that the remaining 10% isn't relevant to their request, and therefor rules against them acquiring it, yeah, even if the final ruling is technically 'against' them, I'd say they won.

    reply to this | link to this | view in thread ]

  6. icon
    Chris Rhodes (profile), Jul 22nd, 2014 @ 6:08am

    Re: Hmmm

    The EFF went to court to get ODNI to stop redacting things that shouldn't have been redacted. The court made ODNI do so.

    Seems like a clear win for the EFF to me.

    reply to this | link to this | view in thread ]

  7. icon
    Whatever (profile), Jul 22nd, 2014 @ 4:43pm

    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.

    reply to this | link to this | view in thread ]

  8. icon
    That One Guy (profile), Jul 22nd, 2014 @ 6:22pm

    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.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, Jul 24th, 2014 @ 11:24pm

    Re: Hmmm

    Wow, what an amazing black and white world you live in! The judge dismisses the case after the EFF gets exactly what it wanted, and you say they lost. I'd love to lose like that!

    reply to this | link to this | view in thread ]

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