by Mike Masnick
Thu, Aug 27th 2015 8:22am
by Tim Cushing
Mon, Aug 10th 2015 9:36am
from the go-[REDACT]-yourself dept
Joe Patrice at Above the Law has snagged a rather humorous opinion issued by Judge Charles Breyer. Breyer had the [mis]fortune of presiding over a long-running dispute between Hewlett-Packard and its shareholders. Running almost three years and involving more than 400 filings, a settlement had finally been reached and it looked as though Breyer could put this one in the rearview mirror.
Unfortunately for him, Hewlett-Packard still had some unfinished business. It wanted to have a number of documents sealed, despite the fact that the documents in question were already heavily-redacted and likely contained very little of use to anyone other than the parties involved in this case. Eight motions in total were filed by HP during the waning days of the legal battle. All eight have been denied by Judge Breyers… because [REDACTED].
The order, which looks more like an FBI FOIA response than an entry on a district court docket, doesn't completely prevent HP from requesting the sealing of documents, even if the explanation for Breyer's refusal leaves almost everything to its lawyers' imaginations. There's a footnote on the final page that provides a few curt instructions for HP to follow if it wishes to have any documents locked away from the public's eye.
No motion for reconsideration will be entertained unless HP identifies within three days "a limited amount of exceptionally sensitive information that truly deserves protection" under the "compelling reasons" standard of Kamakana v. City and Cty. of Honolulu [...] outlined by page and line number and including "specific factual findings" for each. See O'Connor v. Uber Technologies, Inc. In light of the "public interest in understanding the judicial process" as it relates to the settlement of these claims, the Court will not countenance arguments that public filing would put HP at a competitive or legal disadvantage.HP seems to like its black ink. Judge Breyer just gave them a taste of their own redaction. This certainly won't stop HP from making another attempt to seal submitted exhibits, but at least it gives the company a succinct depiction of Breyer's thoughts on its multiple motions.
by Tim Cushing
Tue, Nov 4th 2014 9:17am
from the reading-between-the-deletions dept
The court's decision was actually delivered on Sept. 30th, but its conclusion and order have spent the last month under seal while the government applied its redactions. An accompanying memo from the presiding judge [pdf link] notes that the court isn't buying all the government's redaction arguments.
I disagree with the Government's redaction of the bulk of the first full paragraph and the second and third paragraphs on page 9, which as drafted by this court contain not a whit of classified material (the Government does not suggest otherwise), and which I do not believe would tend to reveal any classified information. In order to preserve that issue for appellate review, I will release on the public docket the opinion with all the Government's proposed redactions today, along with this cover note indicating my conclusion about this material. Should the Second Circuit agree with the Government that the material was properly redacted, nothing will be lost; should it agree with my view that nothing the Government has redacted on page 9 should be redacted, it will so indicate.Indeed, page 9 of the order [pdf link] leaves almost everything to the imagination, retaining only a single sentence that really makes you wish the court hadn't deferred to the government's judgement.
The issue raised by the Government's objection to disclosure is potentially fascinating and incredibly complicated.The rest of the document is the government's proprietary blend of abysmal scanning and heavy redactions. After some discussion about documents the government has already released and information revealed by government officials' own statements, the court drills deeper into the DOJ's redaction justifications. Of course, we can't actually read the government's reasoning or the court's reactions because the government has final cut approval. The DOJ's broad redactions remove a majority of the last 14 pages, leaving behind tantalizing sentences like:
The Government's blithe assertion to the contrary, these waiver issues are not so easily resolvedand:
if that be true, I see no reason why I am even going through this exercise.The court orders the government to release the contested documents (legal opinions from the DOJ's Office of Legal Counsel) discussed in the order (the remaining documents related to the FOIA requests will likely be discussed next year), noting there is "no just reason for delay" considering both the public's interest in these memos, as well as the fact that it has been more than three years since the documents were requested.
So, another long-running FOIA lawsuit is showing a little return on investment. Unfortunately, the government's lengthy redactions prevent the public from seeing what arguments it's using in defense of its FOIA stiffarm, as well as keeping it from drawing any legal insight from the court's response.
by Mike Masnick
Fri, Feb 7th 2014 8:50am
from the sickening dept
And, that whole incident is discussed in the ruling, but we have no idea what it says. Because the entire section is redacted. At the beginning of the filing, Judge Alsup notes about this incident that: "the snafu was the result of government error, albeit corrected quickly, as will be outlined at the end of the findings of fact." Then you jump to the section about "The Citizen Daughter" and you get a brief recap, noting that Ibrahim's daughter, Raihan Binti Mustafa Kamal, a US citizen, was blocked from getting on her flight to the US in Kuala Lumpur. And then you turn the page and get this:
by Mike Masnick
Tue, Dec 10th 2013 5:43am
Feds To FISC: Of Course We Don't Have To Share Our Full Legal Filings With Companies Suing Us Over NSA Transparency
from the because dept
The DOJ has now filed its response, which basically says "we've revealed enough."
The Government's public brief meets and exceeds the requirements of Rule 7(j). The rule clearly provides that submissions to the Court "which may include classified information" will be reviewed by the Court "ex parte and in camera" and that adversarial parties will receive only "an unclassified or redacted version" which "clearly articulate[s] the government's legal arguments." Rule of Procedure 7(j). Not only does the Government's public brief "clearly articulate the government's legal arguments," the legal arguments are fully disclosed. The redacted information contains no additional legal arguments, no case citations, and no discussion of statutory or other law.Of course, that raises other questions. If the redacted portions (which are fairly large) don't raise legal arguments, then what are they doing?
The government also argues that the executive branch gets the right to determine what to redact and the court should defer to the government on such things:
... this Court does not independently review Executive Branch classification decisions.... Executive Branch classification decisions are entitled to "the utmost deference"... and that such deference is especially appropriate where the Executive Branch bases its classification decision, as here, on a review of all pertinent information, including whether disclosure of the data in the manner proposed by the companies would risk filling out the mosaic of information available to our adversaries in their efforts to assess and avoid our surveillance capabilities.And so we're back to the "mosaic theory," in which the feds argue they can redact stuff out of a fear that a bunch of random info can be put together by bad people to figure out more than the feds want to reveal. But... that makes no sense here. The companies are asking at this point that their own lawyers be able to see the arguments, not necessarily that the details be made public. The court could easily seal the filings from the public while letting the companies' lawyers see it.
by Tim Cushing
Thu, Oct 31st 2013 9:32am
from the could-have-sworn-the-word-'information'-was-in-there-somewhere... dept
Verizon has learned plenty from its close relationship with government intelligence agencies. Its recent response to a FOIL (Freedom of Information Law) request in New York is almost completely composed of black ink. Full pages, three hundred of them, are redacted, with little more than headers and descriptions remaining.
As Elise Ackerman points out at Forbes, this might be a violation of the state's Freedom of Information law.
As the court ruled in a 1996 case known as Gould versus the New York City Police Department, the Freedom of Information Law imposes a broad duty on government to make records available. All government records are thus “presumptively open for public inspection” unless they fall into specific exemptions which must be “narrowly construed.”The documents are currently under review to see if the redacted information falls under protections governing trade secrets. It might. A large part of what's being sought here is information that many other telcos and wireless providers would find very interesting.
The ruling continues: “In keeping with these settled principles, blanket exemptions for particular types of documents are inimical to the Freedom of Information Law’s policy of open government. Instead, to invoke one of the exemptions of section 87(2), the agency must articulate ‘particularized and specific justification’ for not disclosing requested documents.”
In September, a group of consumer advocates interceded in a proceeding Verizon had initiated with the New York Public Service Commission to shut down its traditional network, known as the “wireline” network. The advocates were interested in reviewing documents Verizon had filed with the commission about its wireline and wireless build-outs.Verizon has redacted almost everything requested. While its claims that this information would be extremely beneficial to its competitors are undoubtedly true, that's likely not the only motivation.
Under the state Freedom of Information Law, advocates requested that Verizon provide information about the actual costs and expenses associated with the repair, upkeep and maintenance of the traditional wireline network on the resort community of Fire Island. Among other things, advocates also wanted to know the location of any planned or active offering of Verizon’s wireless Voice Link service in other parts of New York.
Ever since Hurricane Sandy, Verizon has been extremely reluctant to restore services to prior levels. Karl Bode at DSLreports has collected story after story detailing Verizon's efforts to dodge the demands of its paying customers.
Verizon has slowly been expanding the number of Sandy victims they're informing will never see their DSL lines repaired. Fire Island, New York residents who lost service during Sandy haven't had broadband service since last October, and only recently were told that these lines simply won't be repaired…Before capitulating in September and offering FIOS service on Fire Island (where the most service was lost), Verizon used the damage caused by Hurricane Sandy as an out to switch users to the wireless service it (along with AT&T) would rather be selling anyway -- one with both data and voice caps.
Instead of power-outage-resilient copper voice and DSL lines, users are pushed toward Verizon's Voice Link, which offers voice service over Verizon's wireless network -- but no data connectivity of any kind.
Understandably, New York residents would like to know just how much it's costing Verizon to roll out FIOS, as well as how much it's receiving in insurance payouts compared to the cost of restoring service to its previous levels. Unfortunately, it seriously looks as though these groups will never get the answers they're seeking.
But it's not just costs and insurance details that Verizon's redacting. It's also other, less sensitive, information.
Among other documents, Verizon claimed as a “trade secret” a list of Voice Link deployments, a Voice Link leader’s guide and a document about overcoming customers’ objections to Voice Link and responding to requests to return to copper.While this may be proprietary information, there's nothing in those documents that couldn't be disseminated with a small amount of redaction. But Verizon is in no hurry to make this info public, considering it would reveal the same talking points it deployed against those behind the FOIL request.
Richard Brodsky, the lawyer representing the many groups seeking this information, claims the data requested is vital to verifying Verizon's statements concerning its decision to not repair existing copper lines.
“We believe that Verizon has substantially misstated the economic realities of both the wireline and the wireless service in order to make the wireline service seem economically damaged,” Brodsky said. “And we believe that the wireless service that they want to substitute does not give telephone consumers what they are legally required to get and what they expect.” Specifically, Brodsky said, Voice Link, which continues to be offered to customers in parts of New York and New Jersey, is voice-only, when many customers need both voice and data services.That Verizon has a vested interest in pushing people to a service that's cheaper to build out and maintain won't have any bearing on the commission's consideration of its "trade secrets" claim. Unfortunately, in order to prevent FOI laws from becoming tools for corporations to acquire information from their rivals, the commission will probably have to side with Verizon. Verizon knows this and has been busy using the "trade secret" clause as leverage to press the state to allow it to provide even less information in response to requests than it already does.
As it stands now, Verizon will probably be able to walk away from this request with its "trade secrets" intact, much to the detriment of those who suspect the service provider is simply exploiting Hurricane Sandy to push preferred services on customers who have no choice in the matter. This allows the company to both maximize its profits by routing existing customers to a higher margin (and lower utility) service and drastically cut its outlays by allowing it to walk away from repairing damaged lines.
Tue, Aug 27th 2013 12:41pm
from the that's-not-transparency dept
In response, the spy agency held a rare conference call for the press maintaining that the violations are "not willful" and "not malicious."
It's difficult to fully evaluate the NSA's track record, since the agency has been so tight-lipped on the topic.
What information about rule violations has the agency itself released? Take a look:
That is the publicly released version of a semiannual report from the administration to Congress describing NSA violations of rules surrounding the FISA Amendments Act. The act is one of the key laws governing NSA surveillance, including now-famous programs like Prism.
As an oversight measure, the law requires the attorney general to submit semiannual reports to the congressional intelligence and judiciary committees.
The section with the redactions above is titled "Statistical Data Relating to Compliance Incidents."
One of the only unredacted portions reads, "The value of statistical information in assessing compliance in situations such as this is unclear. A single incident, for example, may have broad ramifications. Multiple incidents may increase the incident count, but may be deemed of very limited significance."
The document, dated May 2010, was released after the ACLU filed a freedom of information lawsuit.
As the Post noted, members of Congress can read the unredacted version of the semiannual reports, but only in a special secure room. They cannot take notes or publicly discuss what they read.
A few days later, the Obama Administration declassified the most recent version of the semiannual report to Congress and posted it online. The document includes some information about rates of "compliance incidents" but is also heavily redacted.
by Tim Cushing
Thu, Jan 17th 2013 1:16pm
Justice Department 'Complies' With FOIA Request For GPS Tracking Memos; Hands ACLU 111 Fully Redacted Pages
from the the-answer-is-none;-none-more-black dept
The ACLU filed a FOIA request last July in hopes of receiving some insight into the FBI's tracking of US citizens via GPS devices. Two months later, it filed a lawsuit against the FBI, forcing the issue. At long last, the FBI has responded... with 111 pages of black ink.
Two key memos outlining the Justice Department's views about when Americans can be surreptitiously tracked with GPS technology are being kept secret by the department despite a Freedom of Information Act lawsuit filed by the ACLU to force their release. The FBI’s general counsel discussed the existence of the two memos publicly last year, yet the Justice Department is refusing to release them without huge redactions.
The word "see" is obviously some sort of joke because there's absolutely nothing to "see" here, unless you consider To, From and Subject fields to be the "smoking gun." Oh, and this one paragraph that leads into 56 straight pages of black ink.
In United States v. Jones, 132 S. Ct. 945 (2012), the Supreme Court affirmed the suppression of location data generated by a GPS tracking device surreptitiously affixed to a car without court authorization and monitored continuously over a 28-day period.Yep, that's the power of the FOIA. All the black ink (or blank pages) you could possibly want, delivered months after they're requested. The redactions on these two documents obviously goes far beyond simply protecting sensitive information that might jeopardize ongoing investigations. This is nothing more than the DOJ covering up unconstitutional practices.
The Justice Department's unfortunate decision leaves Americans with no clear understanding of when we will be subjected to tracking — possibly for months at a time — or whether the government will first get a warrant. This is yet another example of secret surveillance policies — like the Justice Department's secret opinions about the Patriot Act's Section 215 — that simply should not exist in a democratic society.The ACLU is asking the court to order the DOJ to release these memos in full. The Fourth Amendment's reasonable expectation of privacy is undermined by these secret memos, which limit knowledge of law enforcement tracking efforts solely to the executive branch.
The implications of these withheld documents go even further than discussing GPS tracking. FBI General Counsel Andrew Weissman's explanation of the second memo ("Guidance Regarding the Application of United States v. Jones to Additional Investigative Techniques") leaves the door open for tracking via other technology.
[The] second memoranda [sic] is going to be about guidance about what this means for other types of techniques, beyond GPS, because there's no reason to think that this is going to just end with GPS and some of that is going to be very much a judgment call.It's already common knowledge that law enforcement agencies are using cell phone tracking. As the ACLU points out, wireless carriers already receive 1.5 million requests for data every year, most of which is used for location tracking. Additional technology, such as drones or license plate readers, make endless surveillance a logistic reality, and all without a warrant.
A fully-redacted document doesn't seem to indicate that the FBI is operating within the constraints of United States v. Jones. It signals the very opposite and provides us with another example of how government agencies, when faced with constitutional limitations, are more than happy to simply "interpret" their way around them -- and keep these interpretations out of public view, perhaps indefinitely. It's extremely hypocritical for the FBI and DOJ to sit in a position of law enforcement when they clearly believe abiding by the law is optional.
by Mike Masnick
Mon, Jan 14th 2013 7:26am
from the but-not-completely dept
The Government has provided copies of the opinions and the filings by the Government to this Committee, and the Government will continue to inform the Committee about developments in this manner.It's ridiculous to continue arguing -- as Senator Dianne Feinstein has done repeatedly -- that there is no secret law here. She's being deliberately misleading, confusing "the law" with "the legislation." The legislation is the text as written by the legislature, but "the law" includes specific rulings by courts on the legislation. The legislation may be public, but the law is not when the rather important interpretations of the legislation remain completely redacted.
by Mike Masnick
Tue, Oct 9th 2012 9:28am
ICE Reluctantly Releases A Small Number Of Heavily Redacted Domain Seizure Docs, Holds The Rest Hostage
from the but-of-course dept
In the meantime, however, we have 100 mostly useless documents that appear to just show the warrants that US Magistrate Judge Alan Kay approved on the morning of November 23rd, 2011. Of course, these are completely redacted, so you don't even know what domains they're referring to. In going through the documents, the only thing of interest that I spotted was that the judge time stamped each warrant signature, and many of them are mere minutes from one another -- at least raising some questions concerning how carefully the judge reviewed each individual case before granting the warrant that allowed the feds to then seize and shut down those sites. Considering that we already have two known cases -- Dajaz1 and Rojadirecta -- in which it later came out that the government did not have the necessary evidence, and where the feds were embarrassingly forced to hand back the domains and drop legal proceedings, it seems that a judge should be expected to at least spend some time understanding why it is he's signing off on an order to take down speech.
Either way, it really does seem like these documents being the first 100 released was, perhaps, done on purpose, to make sure the released documents don't actually get at what Swartz actually requested, which was:
- Any guidelines or protocols for ICE agents about the procedures for seizing domains
- Any communications between ICE and other government agencies with regard to the seized domains
- Any communications between ICE and intellectual property owners requesting domains be seized or discussing seized domains
- Any court filings requesting authorization to seize domains
- Any internal emails mentioning the seized sites
- Any legal memos mentioning the seized sites