Legal Issues

by Tim Cushing


Filed Under:
fbi, foia, guidelines, nsl

Companies:
eff



EFF Sues FBI Over Withheld NSL Guideline Documents

from the we're-sorry,-we-thought-you-understood-the-'s'-stood-for-'secret dept

The EFF has been instrumental in assisting ISPs in their fights against National Security Letters and their accompanying gag orders. To date, thanks to the a change in the law (in response to an NSL lawsuit by the EFF and the implementation of the USA Freedom Act) and entities like the EFF applying pressure, the public is finally getting a chance to see what's contained in these warrantless demands for subscriber info.

Hopefully, the new avenues available to ISPs to challenge gag orders will result in a steady stream of released NSLs. More importantly, maybe the forced transparency will result in the FBI dialing back its use of NSLs -- something it does thousands of times a year and, worse, a way to route around FISA Court rejections.

But the FBI isn't ready to give up its NSL-related secrecy yet. According to the FBI, it instituted new rules for NSLs in 2015, partly in response to the USA Freedom Act. These new rules went into effect in 2016. The problem is we have to take the FBI's word for it. It says it's exercising more oversight and control, but the policy change itself is still hiding somewhere at the back of its filing cabinets.

This is one of several documents the EFF is seeking. The FBI isn't interested in handing these over, so it's decided to issue its standard "no documents here" shrug. Unfortunately for the FBI, the EFF knows its way around an FOIA lawsuit.

Following a ruling in EFF’s lawsuit that NSL gags are unconstitutional, Congress enacted reforms in 2015 that require the bureau to review NSLs to determine whether the gag orders are still necessary, and terminate those that are not. The FBI established procedures under which a record keeping system generates reminders—when an NSL investigation closes or reaches the three-year anniversary of its initiation—that the gag order should be reviewed for possible termination.

EFF sent a FOIA request to the FBI in September seeking records about the number of NSLs reviewed under these procedures, the number of reminders generated, the number of termination notices sent to NSL recipients, and how long it takes for a review to begin after a reminder is generated. In March the FBI said it had no such records. In a complaint filed today in San Francisco, EFF asked a court to order the FBI to disclose the requested records.

It is impossible to believe the FBI has no responsive records. If this is truly the case, the FBI never implemented the new NSL guidelines it claimed it did, much less write them up. And that only explains the alleged lack of paperwork for one of the EFF's requests. In order to take the FBI's entire non-response at face value, one is forced to assume the FBI has no new guidelines for NSL gag order reviews and/or is operating under the old review standards, which were pretty much nonexistent.

What's likely the case is the FBI has performed a deliberately inadequate search of the database least likely to hold the requested documents. The FBI maintains several data silos -- something that forces FOIA requesters to know the intricacies of the agency's multiple search methods if they hope to lay their hands on FBI documents.

Hopefully the court will smack the FBI around for its refusal to perform a thorough search and order the agency to turn over this information to the EFF. The government will probably put up a bit of fight, as a ruling in the EFF's favor would both expose its new NSL guidelines to the public (potentially making it much easier to trigger a review) and the labyrinthine underpinnings of its document search systems.


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  • icon
    orbitalinsertion (profile), 12 Jun 2017 @ 12:51pm

    Maybe the ISPs will assist the EFF then with its fight for net neutrality.

    Gakk. I think i broke something inside me.

    he FBI established procedures under which a record keeping system generates reminders—when an NSL investigation closes or reaches the three-year anniversary of its initiation—that the gag order should be reviewed for possible termination.

    This is the sort of thing which should automatically terminate unless they can provide a very good reason, per case, that it should be extended, for how long, and why.

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

    • icon
      Roger Strong (profile), 12 Jun 2017 @ 1:10pm

      Re:

      Gakk. I think i broke something inside me.

      Already broken. I read the headline as "EFF Sues FBI Over Withheld Norwegian as a Second Language Guideline Documents"

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

  • icon
    Ninja (profile), 12 Jun 2017 @ 1:24pm

    When they are resisting that much to make the *guidelines* available to the public one has to wonder how hideous the *implementation* of the thing is.

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

  • icon
    ECA (profile), 12 Jun 2017 @ 1:34pm

    I love the ideas..

    That WE CANT KNOW THE LAWS..
    WE cant know if we are doing right/wrong or just being WATCHED incase we do, do something BAD..

    Its nice to know an Agency is DOING SOMETHING, and still we dont know WHAT..Being TOLD we have to pay for this info is bad enough, let alone OLD information BURIED for years..
    Being told that it CANT be done is fun also, seeing an agency ADMIT they dont know what they are doing..and cant Organize much of anything.. Then we get the idea that it CANT be computerized/digitized onto Current media, its ALL on paper??
    ARNT we as a discerning PEOPLE supposed to have SOME IDEA of what our country is DOING?? insted of consipacy??

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

  • icon
    William Braunfeld (profile), 12 Jun 2017 @ 3:49pm

    The documents were located...

    ...in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying "Beware of the Leopard."

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

  • identicon
    Carlie Coats, 12 Jun 2017 @ 4:09pm

    Why shouldn't...

    Why should this not be immediate cause for impeachment of the relevant FBI officials?

    Do we have a cooperative Congressman?

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

    • icon
      Bergman (profile), 17 Jun 2017 @ 2:55pm

      Re: Why shouldn't...

      It meets every legal test for criminal contempt of court. The court could simply order the head of the FBI to be taken into custody until he or the next official down the chain of command complies with the court order.

      And the court could keep jailing FBI officials until the entire bureau is behind bars or someone there remembers the oath they swore. In theory, they could remain imprisoned for the rest of their lives, if enough of them disobeyed the court order long enough.

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

  • icon
    stderric (profile), 12 Jun 2017 @ 6:14pm

    EFF: We ask the court to order the FBI to disclose the requested records.

    FBI: Who the fuck are you anyway EFF!? Why are you stirring up so much trouble and who pays you!?

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

  • identicon
    Anonymous Coward, 12 Jun 2017 @ 7:29pm

    Can guidelines on NSLs be subject to a NSL?

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

  • icon
    That One Guy (profile), 12 Jun 2017 @ 11:16pm

    "No responsive document" = "Rules, what rules?"

    Yeah, if they claim to have put the rules into place in 2016, but are stonewalling actually providing evidence that they are following them, then the two options that I see is that they lied or are just trying to get rid of the EFF as a general 'You can have those records only if you're willing to pay, and pay dearly for them' policy.

    Given how many other agencies seem to stonewall as a default response, it's hard to know which is more likely really, but neither are very good options for the general public.

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

  • identicon
    Annonymouse, 13 Jun 2017 @ 6:27am

    With so much prepaid accommodation available at the state and federal levels I don't see why each and everyone is encouraged to avail themselves of such largesse..

    15 to 20 years sounds good as a start

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

  • icon
    Wolfie0827 (profile), 13 Jun 2017 @ 10:58am

    FBI FOIA Standards

    Why kid ourselves. We all know the FBI's procedure for handling FIOA amounts to the person whose desk the FOIA request lands on searches their desk and if any document on or in their desk matches, everything except the words "and, or, and of" are redacted and the document(s) are sent to the requester.

    If no documents are found in the individuals desk then the "No documents found" letter is sent.

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


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