Anthony Silva, the mayor of Stockton, California, recently went to China for a mayor's conference. On his return to San Francisco airport he was detained by Homeland Security, and then had his two laptops and his mobile phone confiscated. They refused to show him any sort of warrant (of course) and then refused to let him leave until he agreed to hand over his password:
“A few minutes later, DHS agents confiscated all my electronic devices including my personal cell phone. Unfortunately, they were not willing or able to produce a search warrant or any court documents suggesting they had a legal right to take my property. In addition, they were persistent about requiring my passwords for all devices,” Silva said.
Silva was not allowed to leave the airport until he gave his passwords to the agents, which the mayor’s personal attorney, Mark Reichel, claimed is illegal.
The mayor said the agents told him confiscating property from travelers at the airport was “in fact routine and not unusual,” and promised to return the items within a few days.
To some extent what the DHS told him is true. It's not that unusual, but it's not that common either. But forcing him to turn over the passwords is unusual, and not standard practice. Besides, courts have been growing increasingly less impressed with Homeland Security's willingness to ignore the Constitution at the border.
The feds, of course, refuse to say anything, saying they cannot confirm or deny anything. Silva first claimed that he's "happy to cooperate and comply with these inspection procedures if they are in fact routine and legal," but pretty quickly notes how ridiculous all of this is:
"I think the American people should be extremely concerned about their personal rights and privacy," he said. "As I was being searched at the airport, there was a Latino couple to my left, and an Asian couple to my right also being aggressively searched. I briefly had to remind myself that this was not North Korea or Nazi Germany. This is the land of the Free."
from the there's-a-reason-the-CBP-is-rarely-the-'moving'-party-in-FOIA-lawsui dept
Customs and Border Patrol, like many government agencies involved with law enforcement and/or security, isn't all that thrilled that Joe Citizen can demand access to its records. When not dragging its feet on requests, the agency actively thwarts FOIA requests, albeit using more than the normal "so sue us" non-response.
The DHS's Inspector General found that over a three-year period (2011-13), the CBP "mishandled" 23,000 FOIA requests. "Mishandled" is a misnomer. The agency improperly closed 11,000 requests. The other 12,000 requests were stashed in boxes and forgotten, never making their way into the CBP's FOIA response system.
A class action lawsuit has been brought against the agency for its "pattern and practice of failing to respond to FOIA requests within the statutory timeline." The plaintiffs are five immigration attorneys and thirteen non-citizens, the latter of which have found it difficult to remain in the country legally thanks to the CBP's unwillingness to turn over documents pertaining to their immigration status. (via Courthouse New Service)
The order notes that the CBP does not challenge the assertion that it doesn't respond in a timely fashion. But, as the plaintiffs point out, this is a problem that the CBP doesn't seem to be interested in solving. As it stands now, it's unlikely the CBP will get its FOIA act together. At least not in the near future. Or possibly ever.
CBP does not seriously dispute that it has failed to respond to plaintiffs’ FOIA requests within the statutory timelines. See, e.g., Dkt. No. 29 at 2 n.1. Plaintiffs also allege that CBP’s FOIA backlog -- the number of requests that have gone unanswered past the statutory deadline -- has swelled over the last few years and will require almost 10 years to zero out at the current pace.
While the CBP doesn't dispute the accusations of consistently tardy responses, it does make the dubious assertion that a pattern of late (or nonexistent) responses just isn't an actionable injury in the context of a class action suit.
The government says that the case should be dismissed because an agency’s failure to meet the response deadline is not an actionable violation of FOIA. Dkt. No. 26 at 4. That argument is wholly at odds with the statute and cases construing it. FOIA’s intended purpose is to assure timely public access to governmental information and records. As Congress stated, “‘[i]nformation is often useful only if it is timely. Thus, excessive delay by the agency in its response is often tantamount to denial.’” Gilmore v. U.S. Dep’t of Energy. The denial of access to government records in a timely fashion is precisely the harm FOIA is intended to prevent.
If the people the law is supposed to serve are going to be granted an opportunity to seek redress for their grievances, than you'd better believe FOIA-related foot dragging is actionable -- no matter how much the CBP wishes that weren't the case.
The government grudgingly acknowledges that “[s]ome Northern District of California decisions have recognized claims for delay in responding to FOIA requests” -- which of course overlooks the decisions outside this District that reach the same conclusion -- but urges the Court to discount them because they pre-date the District of Columbia Circuit opinion in CREW. In the government’s view, CREW undercuts these cases because it holds that the failure to meet FOIA’s deadlines has no legal consequence other than “an agency’s forfeiture of the exhaustion of administrative remedies defense.”
The CBP could not be more wrong, says Judge James Donato.
This argument is tantamount to a willful misreading of CREW. The case says nothing at all about the vitality of a FOIA claim based on a violation of the response deadline. The sole “question presented” in CREW “concerns when a FOIA requester must exhaust administrative appeal remedies before filing suit.” CREW held that when an agency fails to respond to a FOIA request within the statutory timeline, it cannot invoke an administrative exhaustion argument to keep cases out of court.
The government also argues the plaintiffs have no standing because their accusations require "specific allegations of future harm." Again, Judge Donato points out the error in its thinking.
Once again, CBP’s position is bereft of support. It does not cite a single case holding that specific allegations of futurity are essential to a pattern and practice claim or standing under FOIA. To the contrary, several cases have allowed pattern and practice claims for unreasonable delay -- and recognized a plaintiff’s standing to bring them -- “even where the plaintiff’s FOIA request had already been resolved.” Gilmore, 33 F. Supp. 2d at 1186 (and cases cited therein).
In Payne itself, the case on which CBP hangs its hat, the court sustained a claim for undue delay despite the fact that the agency had released the specific documents that prompted the lawsuit. And even if allegations of future harm were required, plaintiffs have stated enough facts to infer it here. Plaintiffs include several immigration attorneys, some of whom have practiced for decades, who “regularly file” FOIA requests on behalf of their clients. It is more than plausible to infer that they will continue to make regular FOIA requests for the CBP documents that are critical for their work, and continue to experience improper delays.
The plaintiffs haven't actually been handed a win here, but rather survived a motion to dismiss from the government. But the court's reading of the government's arguments here show it's not too impressed with the CBP's excuses for its miserable track record on FOIA responses.
The most disheartening aspect of this lawsuit, however, is contained in the plaintiffs' complaint. The CBP's delaying tactics have generated a 10-year backlog of unanswered requests. That backlog will only continue to grow as more and more people avail themselves of FOIA tools provided by the government. The government has opened up the process and made it more accessible, but has yet to fix the bottlenecks in the system -- recalcitrant agencies and/or those that are simply understaffed. The problem will continue, as will the lawsuits, for the foreseeable future, no matter the outcome of this particular case.
Last week, we posted the story of how the Kilton Public Library in Lebanon, New Hampshire, had been pressured to turn off its Tor relay after the Department of Homeland Security (DHS) had reached out to the local police department to express concern over the library's decision, and freaking out because "criminals can use Tor." After being approached by the police, the library agreed to shut down the relay, while setting up a meeting to discuss if the library should turn it back on. Apparently, last week's press attention helped bring out lots of folks who very strongly supported turning Tor back on.
Boston librarian Alison Macrina, who runs the Library Freedom Project and helped the library set up Tor in the first place, was tweeting up a storm last night, and it sounded like a lot of people showed up to make it clear that (1) the DHS could go pound sand and (2) the library should turn its Tor node back on:
Multiple people apparently spoke about how this is absolutely the kind of project that libraries should support, and that protecting anonymous browsing was an important thing to have in the world. And, in the end, success:
Since Edward Snowden exposed the extent of online surveillance by the U.S. government, there has been a surge of initiatives to protect users' privacy.
But it hasn't taken long for one of these efforts — a project to equip local libraries with technology supporting anonymous Internet surfing — to run up against opposition from law enforcement.
In July, the Kilton Public Library in Lebanon, New Hampshire, was the first library in the country to become part of the anonymous Web surfing service Tor. The library allowed Tor users around the world to bounce their Internet traffic through the library, thus masking users' locations.
Soon after state authorities received an email about it from an agent at the Department of Homeland Security.
"The Department of Homeland Security got in touch with our police department," said Sean Fleming, the library director of the Lebanon Public Libraries.
After a meeting at which local police and city officials discussed how Tor could be exploited by criminals, the library pulled the plug on the project.
"Right now we're on pause," said Fleming. "We really weren't anticipating that there would be any controversy at all."
He said that the library board of trustees will vote on whether to turn the service back on at its meeting on Sept. 15.
Used in repressive regimes by dissidents and journalists, Tor is considered a crucial tool for freedom of expression and counts the State Department among its top donors. But Tor has been a thorn in the side of law enforcement; National Security Agency documents made public by Snowden have revealed the agency's frustration that it could only identify a "very small fraction" of Tor users.
The idea to install Tor services in libraries emerged from Boston librarian Alison Macrina's Library Freedom Project, which aims to teach libraries how to "protect patrons' rights to explore new ideas, no matter how controversial or subversive, unfettered by the pernicious effects of online surveillance." (The Library Freedom Project is funded by Knight Foundation, which also provides funding to ProPublica.)
After Macrina conducted a privacy training session at the Kilton library in May, she talked to the librarian about also setting up a Tor relay, the mechanism by which users across the Internet can hide their identity.
A special agent in a Boston DHS office forwarded the article to the New Hampshire police, who forwarded it to a sergeant at the Lebanon Police Department.
DHS spokesman Shawn Neudauer said the agent was simply providing "visibility/situational awareness," and did not have any direct contact with the Lebanon police or library. "The use of a Tor browser is not, in [or] of itself, illegal and there are legitimate purposes for its use," Neudauer said, "However, the protections that Tor offers can be attractive to criminal enterprises or actors and HSI [Homeland Security Investigations] will continue to pursue those individuals who seek to use the anonymizing technology to further their illicit activity."
When the DHS inquiry was brought to his attention, Lt. Matthew Isham of the Lebanon Police Department was concerned. "For all the good that a Tor may allow as far as speech, there is also the criminal side that would take advantage of that as well," Isham said. "We felt we needed to make the city aware of it."
Deputy City Manager Paula Maville said that when she learned about Tor at the meeting with the police and the librarians, she was concerned about the service's association with criminal activities such as pornography and drug trafficking. "That is a concern from a public relations perspective and we wanted to get those concerns on the table," she said.
Faced with police and city concerns, library director Fleming agreed to turn off the Tor relay temporarily until the board could reconsider. "We need to find out what the community thinks," he said. "The only groups that have been represented so far are the police department and city hall."
Fleming said that he is now realizing the downside of being the first test site for the Tor initiative.
"There are other libraries that I've heard that are interested in participating but nobody else wanted to be first," he said. "We're lonesome right now."
Intercept reporter Jenna McLaughlin alerts us to a rather stunning security mistake by a Customs and Border Patrol (CBP) agent, as outlined in some DHS released "incident reports" concerning "cloud data breaches." The very first one involves the CBP agent forwarding all of his email to a personal account, but messing up the configuration, so that it actually forwarded to someone else's Gmail account (someone with a similar name) -- and this mistake was only noticed when this "civilian" responded to an email he had received via this forwarding, and the response was sent to a wider mailing list of Homeland Security employees:
If you can't see that, here's what it says:
CBP reports that one (1) CBP user had an auto-forwarding rule setup to have emails sent externally to a civilian's personal Gmail account. There is a possibility that sensitive information to include Personally Identifiable Information (Pll) has been accidently sent out due to this rule. The incident was discovered when a civilian responded to a CBP user's email to a distribution list of other CBP/DHS users. The CBP user noticed the civilian's Gmail address and reported it to the FTO who then reported the incident to the CBP CSIRC. Upon investigation and confirmation from EaaS, one (1) CBP Border Patrol Agent who was on the email distribution list had an auto-forwarding rule setup within their Exchange account to a non-CBP/DHS user's personal Gmail account. The name of the Border Patrol Agent and the civilian are very similar, but it was determined that the Border Patrol Agent misconfigured the rule by using the civilian's personal Gmail address instead of his own. Technical remediation will include working with the EaaS team to implement a rule to disable the auto-forwarding rule and only allow it when requests are made to the Exchange team. The incident has been reported to the CBP Privacy Office and Joint Intake Center for action (assisting the user to have all government emails removed and confirmed).
It seems rather stunning that CBP/DHS didn't already have such a rule in place. Then again, this is Customs and Border Patrol, who has something of a history of not really giving a fuck because they can get away with doing whatever they want and no one ever does anything about it.
Later in the same report, it is revealed that this auto-forwarding from inside DHS to private accounts happened somewhat frequently. An investigation just a month after the incident above showed 771 such rules set in DHS staffers Exchange systems:
If you can't read that, it says:
DHS SOC reports that a total of 771 rules are configured in Exchange to auto-forward emails external to DHS. DHS SOC requested and received a list of 771 automated email forwarding rules created by DHS Email as a Service (EaaS) users. Auto-forwarding or redirecting of DHS email to address outside of the .gov or .mil domain is prohibited and shall not be used per DHS 4300A policy, section 5.4.6.i and poses a high risk of accidental disclosure of Pll, SBU, FOUO, LES, or classified data. The incident has been reported to the Joint Intake Center (JIC). Affected Components (CBP, FEMA, DHS HQ, and DC2) are asked to identify and remediate the rules.
Not sure about to you, but this doesn't make me feel much safer about DHS at all. And, remember, DHS is one of the government bodies currently looking to manage the government's cybersecurity efforts -- and they're considered the better option given just how little people trust the NSA or the FBI (the two other main contenders).
FBI. DEA. NSA. CIA. DHS. TSA. All these acronyms (and more) participate in activities that can (and do) have negative effects on Americans' civil liberties. But that's OK, says the government, because we have oversight. This assertion just simply isn't true. The Snowden leaks proved what oversight existed was beholden to the NSA and frequently put itself between the agency and legislators on the outside of the inner circle in order to keep its secrets protected.
Elsewhere, the entities charged with providing oversight for government agencies -- the various Inspector General's offices -- were finding themselves unable to pursue their duties because the agencies they watched refused to cooperate with their investigations. Michael Horowitz, the DOJ Inspector General, frequently expressed his displeasure with the DEA and FBI, both of which refused to provide him with the documents he was seeking.
Over at the CIA, Inspector General David Buckley performed his investigation of the alleged hacking of Senate staffers' computers. He found the allegations to be true. The CIA responded by discrediting his report and performing its own internal audit, which naturally found the agency to be blameless and the Senate at fault for supposedly abusing its access to CIA documents. Buckley retired. The CIA has yet to replace him.
As if things couldn't get any worse, the Office of Legal Counsel decided the best route for effective oversight was to hand over control to the agencies being overseen. On July 20th, it issued a decision that said Inspectors General needed to seek permission from the agencies under their purview for access to sensitive documents. If the agencies turned them down, too bad. They'd just have to do without.
The IGs -- representing 72 government agencies -- have sent a letter to Congress asking them to overturn the OLC's decision. (via Unredacted)
Despite the unequivocal language of Section 6(a) of the IG Act, the OLC opinion concludes that it does not entitle the DOJ-IG to obtain independent access to grand jury, wiretap, and credit information in the DOJ’s possession that is necessary for the DOJ-IG to perform its work. Indeed, the OLC opinion concludes that such records cannot be obtained by the DOJ-IG pursuant to the IG Act, and can only be obtained in certain – but not all – circumstances through provisions in the specific laws related to those records. Further, the opinion provides that only the Department of Justice itself decides whether access by the DOJ-IG is warranted – placing the agency that the DOJ-IG oversees in the position of deciding whether to grant the Inspector General access to information necessary to conduct effective and independent oversight. Requiring an Inspector General to obtain permission from agency staff in order to access agency information turns the principle of independent oversight that is enshrined in the IG Act on its head.
The OLC opinion’s restrictive reading of the IG Act represents a potentially serious challenge to the authority of every Inspector General and our collective ability to conduct our work thoroughly, independently, and in a timely manner. Our concern is that, as a result of the OLC opinion, agencies other than DOJ may likewise withhold crucial records from their Inspectors General, adversely impacting their work. Even absent this opinion, agencies such as the Peace Corps and the U.S. Chemical Safety and Hazard Investigation Board (CSB) have restricted or denied their OIGs access to agency records on claims of common law privileges or assertions that other laws prohibit access. Similarly, the Department of Commerce denied its Inspector General (Commerce-IG) access to agency records that were needed for the Commerce-IG to complete an audit of agency operations because agency counsel had concluded, based on guidance that agency counsel said came from OLC, that it might be a violation of another federal statute to make the records available to its Inspector General. As a result, the Commerce-IG could not complete its audit.
In other words, things were already bad. Now, they're impossible. These agencies were already doing everything they could to thwart their oversight. Now, the OLC has given them permission to stonewall every single investigation that requires the access to "sensitive" agency documents -- which would be a great majority of them.
The letter goes on to point out that the OLC's decision creates a smokescreen that will have serious repercussions for years to come.
Without timely and unfettered access to all necessary information, Inspectors General cannot ensure that all government programs and operations are subject to exacting and independent scrutiny. Refusing, restricting, or delaying an Inspector General's independent access may lead to incomplete, inaccurate, or significantly delayed findings and recommendations, which in turn may prevent the agency from promptly correcting serious problems and pursuing recoveries that benefit taxpayers, and deprive Congress of timely information regarding the agency's activities. It also may impede or otherwise inhibit investigations and prosecutions related to agency programs and operations.
The OLC's decision is astounding, and should be undone as swiftly as possible. There's a lot of room for abuse in many agencies, and one of the only things acting as a check against this are the IGs. The assurances that there is sufficient oversight are hollow. There was very little oversight to begin with. With this determination in place, there's almost none. The denied access can likely be challenged, but time is often of the essence, and weeks or months of discussion over the release of documents can put a lot of space between badly-behaving agencies and whatever scandal they're attempting to ride out.
The OLC had decided government agencies shouldn't be accountable to the public, and its excuse is "security." It's being left up to agencies to decide what information is too "sensitive" to share with their overseers. And it will be evidence of screwups, quasi-legal activities and other abuses of power that receive this label first.
The authorization to share cyber threat indicators and defensive measures with “any other
entity or the Federal Government,” “notwithstanding any other provision of law” could
sweep away important privacy protections, particularly the provisions in the Stored
Communications Act limiting the disclosure of the content of electronic communications
to the government by certain providers. (This concern is heightened by the expansive
definitions of cyber threat indicators and defensive measures in the bill. Unlike the
President’s proposal, the Senate bill includes “any other attribute of a cybersecurity
threat” within its definition of cyber threat indicator and authorizes entities to employ
This has led to some surprise among people who don't follow this that closely, that "even Homeland Security" doesn't like the bill. But that's really ignoring history and what this fight has always been about. Going back many, many years we've been highlighting that the truth behind all of these "cybersecurity" bills is that it's little more than a bureaucratic turf war over who gets to control the purse strings for the massive, multi-billion dollar budget that will be lavished on government contractors for "cybersecurity solutions." That the bill might also boost surveillance capabilities is little more than a nice side benefit.
The key players in this turf war? The NSA and Homeland Security (with the Justice Department occasionally waving its hand frantically in the corner shouting "don't forget us!"). From the beginning, one of the key questions people have asked is "who gets the data?" Obviously, "none of the above" is probably the best answer, but of the remaining options, Homeland Security tends to be the least worst option out of a list of three really bad options. And, so far, the White House has repeatedly pushed to put DHS in charge, giving it more power over the budget. However, CISA does not put DHS in charge.
So that is why DHS is complaining. Yes, the "privacy" concerns are there, but DHS's true concern is that it's not DHS running the show (and controlling the budget). Reread the DHS letter with this as background, and it appears a lot more understandable:
The Administration has consistently maintained that a civilian entity, rather than a
military or intelligence agency, should lead the sharing of cyber threat indicators and
defensive measures with the private sector. The National Cybersecurity Protection Act of
2014 recognized the NCCIC to be responsible for coordinating the sharing of information
related to cybersecurity risks and to be the federal civilian interface for multi-directional
and cross-sector sharing of information about cybersecurity risks and warnings. The
NCCIC has representatives from the private sector and other federal entities involved in
cyber information sharing, from those with whom we have an agreement and share
consistently, to those that passively receive information from the center.
Equally important, if cyber threat indicators are distributed amongst multiple agencies
rather than initially provided through one entity, the complexity–for both government and
businesses–and inefficiency of any information sharing program will markedly increase;
developing a single, comprehensive picture of the range of cyber threats faced daily will
become more difficult. This will limit the ability of DHS to connect the dots and
proactively recognize emerging risks and help private and public organizations
implement effective mitigations to reduce the likelihood of damaging incidents.
DHS recommends limiting the provision in the Cybersecurity Information Sharing Act
regarding authorization to share information, notwithstanding any other provision of law,
to sharing through the DHS capability housed in the NCCIC. This would not preclude
sharing with any federal entity (indeed, DHS maintains an obligation to share rapidly
with federal partners independent of any legislation), and it would further incentivize
sharing through the NCCIC.
There's a lot more like that in the letter as well.
Don't get me wrong. Having DHS come out against CISA and speaking out about the privacy concerns the bill raises is great. But don't think that DHS is against these kinds of "information sharing" bills at all. It is not. It just wants to make sure that it's the queen bee when it comes to who's in charge of cybersecurity information... and, with it, who gets to control the budget.
from the where-'due-process'-is-commonly-abbreviated-as-'GFY' dept
Asset forfeiture: drop the charges, keep the property. I guess the person behind Saeki Co., Ltd. should feel appreciative he actually was graced with charges, rather than just had his purchased vehicles seized and spirited away with a mumbled explanation and some dodgy paperwork.
Saeki Co. bought several luxury vehicles from a place called Texas Motors (which, oddly enough, is located in Florida) with the intent to sell them for a significant markup to wealthy Japanese citizens. This is possibly illegal, but not because of any explicit export ban. The only reason it verges on illegal is because resellers like Saeki ever-so-lightly tread on the toes of major manufacturers and their authorized dealers who do the same thing.
The crackdown was driven largely by agents with the Secret Service and the Department of Homeland Security, who questioned whether these small export companies were violating federal law by using straw buyers — people paid small sums to buy cars — to conceal that the vehicles were being bought by people who had no intention of keeping them and were using cash from other people to make the acquisitions. Federal authorities have argued that using straw buyers is a deceptive practice that potentially deprives American consumers of a chance to buy the luxury cars and limits the ability of automakers to keep tight control over sales to domestic dealers and to foreign countries.
It's not so much the American public losing a few opportunities to buy a luxury vehicle as it is the other thing: tight control of sales. The American public can't get many laws written in its favor, but large industries certainly can. This initial thrust led to lots and lots of partnerships with local law enforcement agencies conveniently located near shipping docks. And this led to lots and lots of luxury vehicles ending up in the hands of law enforcement.
Then, the government stopped the crackdown. It claimed to be making an effort to more tightly focus its forfeiture efforts as a result of Eric Holder's reform initiative. The appearance of being an errand boy for corporate interests certainly didn't help. Cases were dropped and charges dismissed. But the vehicles remained in the government's hands.
One person in Saeki Co.'s position spent two years fighting for the return of a seized vehicle and $125,000 in cash. This followed about a dozen similar settlements, most occuring after a legal battle with the agency(ies) holding the vehicles. In other cases, the prevailing parties still have yet to be fully recompensed. And others are still being prosecuted for violating a law the federal government isn't entirely clear on and has lost an interest in enforcing.
Saeki Co.'s story is the worst of the potential situations. It had eight vehicles worth nearly $900,000 seized at the Long Beach Seaport by customs agents. This happened January 3, 2013. Two months later, customs agents seized another of its vehicles (worth over $100,000) in Seattle. Two-and-a-half years later, the feds have abandoned everything about the case but Saeki's vehicles. And it simply doesn't want to talk about the seized property.
Despite the Government’s change in policy, Plaintiff has not received administrative relief from CBP nor any communication from the Government justifying its seizure of Plaintiff’s vehicles.
Other than the fact that it won't be bringing criminal charges.
In or about early 2014, Assistant United States Attorney David Lazarus advised Plaintiff’s counsel that the federal grand jury investigation undertaken in the Middle District of Florida had concluded without any criminal charge lodged against Plaintiff or any of its agents.
So, no criminal activity but the government still wants to keep the cars -- which were seized under a vague "felony interference of a business model" law.
Plaintiff’s vehicles were seized by CBP not because of any wrongdoing by Plaintiff, but because of an ill-conceived program by the Government to support a vehicle export monopoly at the expense of the Constitutional rights of Plaintiff and other vehicle exporters.
As the complaint points out, the government's unwillingness to respond to the plaintiff is swiftly rendering the vehicles worthless. Overseas purchasers willing to pay above US domestic retail for luxury vehicles are most likely going to want this year's model, not something that's been sitting around a government warehouse for almost three years. (And that's not taking into consideration the possibility the vehicles may have racked up miles as government agents' "work vehicles" or the occasional "drive it like you seized it" joyride.)
Then there's the simple fact that a newly-purchased vehicle starts leaking resale value the instant a purchaser drives it off the lot.
Using the generally accepted average vehicle depreciation rate of 20% in the first model year and 15% in subsequent years, the value of Plaintiff’s property has decreased in value by approximately $375,891.00 since their seizure. This measure increases every day that the Government fails to return the seized vehicles to Plaintiff.
Much of the filing details "conversations" with the government about the return of the vehicles, most of which went something like this.
SAEKI CO.: So, there's no criminal charges? This means we can have our cars back, right? GOV'T:
The lawsuit repeatedly makes claims about Saeki Co. being deprived of due process. Which it has been. But civil asset forfeiture isn't about due process. These statutes provide -- from the very start -- a way for the government to bypass the protections due process affords to citizens. The cases themselves indicate that clearly. It's not the government versus any named individual or company. It's the government against the seized property itself, which cannot advocate in its own defense and can only be spoken for if the government grants the request.
So, while the company is absolutely right about being deprived of this right, in terms of asset forfeiture, this right simply does not exist. This lawsuit may force a response from the government, but it's a step it doesn't consider to be "appropriate" in terms of disputing seizures.
What Saeki does have going for it is the government's ambivalence towards the "law" it claimed Saeki broke. If nothing else, a judge will be asking the government a few tough questions about how its ongoing non-prosecution has managed to tie up not-guilty vehicles for the better part of three years. Given the racket that asset forfeiture is, that's about the best that can be hoped for.
from the you-can't-make-something-work-better-just-by-rearranging-broken-parts dept
Update: In writing this post the original link to Alex Howard's piece at Huffington Post, which makes up the majority of quotes here somehow slipped. We apologize to Alex for the error..
The Department of Homeland Security (DHS) is looking to revamp its FOIA system, which is not only suffering from the over-redaction common to intelligence/security agencies, but also from a massive backlog of unfulfilled requests. As befits an agency that often can't tell the First Amendment from a terrorist threat, the effort is going badly.
First off, the DHS recently debuted its mostly-nonfunctioning FOIA request app, which would probably have added to its backlog if only it worked. But it's a move in the right direction -- greater transparency -- even if in practice, it's pretty much the equivalent of tripping over something and calling it "forward progress."
A November 2014 report from the General Accountability Office found the DHS duplicates efforts when processing FOIA requests. Holzer acknowledged the issue in a memorandum that said different departments of the DHS are using FOIA software that fails to meet federal standards.
The Holzer quoted here is the current senior director of FOIA operations at the DHS, James Holzer. Under his direction, the DHS has moved ever so slightly towards the "responsive agency" ideal. But every small step forward continues to be undermined by the agency's desire to keep its documents to itself. It currently has the greatest number of partially-filled requests of any government agency.
Part of this is due to the fact that the agency receives more requests than any other agency. And part of this is due to the government talking big about transparency, but refusing to put federal money where its mouth is.
According to the Department of Justice's annual report, there were 3,838 full-time FOIA staff members in 2014. In 2011, there were 4,396.
But part of this is due to Holzer himself, who has erected fee barriers to further distance requesters from the documents they seek.
Holzer wrote a 2014 letter that MuckRock, which provides a FOIA request and hosting service, was "not a member of the news media," though it featured journalists like Michael Morisy and Shawn Musgrave publishing journalism on matters of public interest, like domestic drone programs.
According to Holzer, MuckRock is a "commercial" entity -- apparently basing his determination solely on the fact that MuckRock has a website and internet users visit it to view FOIA documents.
Making documents available on MuckRock's website, even at no charge, drives traffic to the website and furthers its commercial purposes.
On top of all this, the DHS has also been found to censor FOIA responses for purely political reasons and has occasionally handled its massive backlog of unanswered requests by tossing thousands of them into file boxes and forgetting about them.
So, given this background, it's a little disheartening to hear that Holzer is being promoted to a position that will give him even more control over the government's end of the FOIA process.
This week, Archivist of the United States David Ferriero announced that James Holzer would be the new director of the Office of Government Information Services at the U.S. National Archives, beginning on August 9.
"Dr. Holzer’s experience administering FOIA and his demonstrated commitment to transparency will benefit OGIS, the National Archives, and the American public," said Ferriero.
Well, "commitment to transparency" means only as much as the administration itself is committed to transparency -- which isn't much. The promotion of an insider like Holzer to this post means FOIA requesters should expect little more than the status quo for the duration of his tenure. The government isn't imaginative enough to explore the areas outside its confines while filling an open FOIA oversight slot. This is the sort of job that shouldn't be left to a company man, as HuffPo's Alexander Howard points out.
It's hard to find a positive interpretation of the fact that a FOIA officer from DHS has been appointed ombudsman. FOIA requesters will need a strong advocate to arbitrate disputes and push for their requests to be addressed. A candidate from the nonprofit, academic or media worlds would be much more likely to do that than a DHS staffer.
The FOIA program will never approach the ideals of the law as long as it continues to be overseen only by government officials. Their interests are at odds with the public's in most cases. It's yet another area of government that would be better served by an advocate for the public, drawn from the public.
These days, Laura Poitras is known as the Oscar-winning director of the Ed Snowden documentary CITIZENFOUR, and with it, one of the reporters who helped break Snowden's story in the first place. Pre-Snowden, she was a not-as-widely-known-but-still-celebrated documentary filmmaker, who also got some attention after her future colleague Glenn Greenwald wrote an article about how she was detained at the border every time she flew into the country (which was frequently, as she had made a documentary, My Country, My Country, concerning the Iraq War, along with The Oath, which reported on two Yemenis who had worked with Osama bin Laden). As Greenwald wrote back in 2012:
But Poitras’ work has been hampered, and continues to be hampered, by the constant harassment, invasive searches, and intimidation tactics to which she is routinely subjected whenever she re-enters her own country. Since the 2006 release of “My Country, My Country,” Poitras has left and re-entered the U.S. roughly 40 times. Virtually every time during that six-year-period that she has returned to the U.S., her plane has been met by DHS agents who stand at the airplane door or tarmac and inspect the passports of every de-planing passenger until they find her (on the handful of occasions where they did not meet her at the plane, agents were called when she arrived at immigration). Each time, they detain her, and then interrogate her at length about where she went and with whom she met or spoke. They have exhibited a particular interest in finding out for whom she works.
She has had her laptop, camera and cellphone seized, and not returned for weeks, with the contents presumably copied. On several occasions, her reporter’s notebooks were seized and their contents copied, even as she objected that doing so would invade her journalist-source relationship. Her credit cards and receipts have been copied on numerous occasions. In many instances, DHS agents also detain and interrogate her in the foreign airport before her return, on one trip telling her that she would be barred from boarding her flight back home, only to let her board at the last minute. When she arrived at JFK Airport on Thanksgiving weekend of 2010, she was told by one DHS agent — after she asserted her privileges as a journalist to refuse to answer questions about the individuals with whom she met on her trip — that he “finds it very suspicious that you’re not willing to help your country by answering our questions.” They sometimes keep her detained for three to four hours (all while telling her that she will be released more quickly if she answers all their questions and consents to full searches).
It wasn't only at the border that she was subject to such searches. Often, even when flying domestically within the US, she was called out for further scrutiny and searches.
After Greenwald's article, a bunch of documentary filmmakers signed a petition protesting the treatment of Poitras, and between the press coverage and the petition, the harassment of Poitras suddenly stopped.
After this, she filed some FOIA requests to find out why she had been supposedly given a high threat rating in the DHS database, causing such detentions. Not surprisingly, the government refused to reveal any such information. And that brings us to the latest, where Poitras, with help from the EFF, has now sued the US government (specifically the Departments of Homeland Security and Justice) to get them to reveal why she was considered a threat.
As the filing itself explains, Poitras filed FOIA requests with basically every part of the government that might have information on her detentions, and basically got nothing in response from any of them, either by mostly ignoring the requests or rejecting them.
As the lawsuit also notes, Poitras took detailed records of her detentions (when she could -- in at least one instance she was denied the use of a pen to take notes after being told she might use it as a weapon). And the lawsuit includes some detailed descriptions. Here's just a snippet from a much longer list.
On or around August 22, 2006, while traveling from Sarajevo, the capital of
Bosnia and Herzegovina, to John F. Kennedy International Airport (“JFK”) in New York City
after attending the Sarajevo Film Festival, Plaintiff was paged to security while transiting
through the Vienna International Airport in Vienna, Austria. Plaintiff was thereafter taken into a
van and driven to a security inspection area. All of Plaintiff’s bags were searched and xrayed.
The head of airport security at the Vienna International Airport told Plaintiff that her
“Threat Score” was 400 out of 400 points. Plaintiff was eventually allowed to board a plane to
the United States. Upon her arrival at JFK, CBP agents again met her at the gate. Plaintiff was
thereafter escorted to a holding room, where she was detained and questioned for roughly two (2)
hours, and where her bags were searched for a second time, before being allowed to enter the
On or around November 26, 2006, while traveling from
Paris, France to Newark
on her way home from a vacation, Plaintiff was met by boarder agents upon her arrival at
Newark. She was detained and questioned for 30 minutes.
On or around December 17, 2006, while traveling from Dubai, United Arab
Emirates to JFK after attending the Dubai Film Festival, Plaintiff was met by border agents upon
her arrival at JFK. She was again detained and questioned before being allowed entry into the
United States. The CBP agents asked Plaintiff when she had last been to Atlanta, Georgia and
told her that she had a criminal record, despite that she had never been arrested.
Unfortunately, the courts have been pretty deferential to the government concerning things like the "no fly" list and the terrorist database, which means this lawsuit might be a long shot. However, one hopes that a judge will see both the clear ridiculousness of the treatment and the rather obvious fact that it was designed to intimidate Poitras and chill her First Amendment rights, and consider forcing the government into releasing these documents.