from the nothing-in-here-you-haven't-not-seen-before dept
As the result of an FOIA lawsuit brought by the Associated Press, USA Today, and Vice, the FBI has finally released documents about the one-time iPhone exploit/hack it purchased from an unknown foreign vendor. Well, more accurately, the FBI released a bunch of paper with nearly nothing left unredacted, as USA Today's Brad Heath pointed out multiple times on Twitter.
Among the things the FBI withheld are the non-disclosure agreement it signed with the company, the vendor's clear air and water certification, the date it was given approval to purchase the exploit, and pretty much anything else the FBI felt it could cover with white space and variations of the letter "b."
Friday's data release included dozens of pages of contracting boilerplate but no information about the source of the exploit or its cost. The FBI indicated in the records that both of those details are classified. FBI Director James Comey intimated during a public forum last year that the price was more than $1 million.
The documents did show that after the FBI’s clash with Apple became public, at least three other companies expressed interest in cracking the phone, even though none of them had by that point started developing a tool that would have allowed them to do so.
The last part shows there's no shortage of "smart people" willing to help solve James Comey's encryption problems, even if these solutions might only work one time and be far more expensive than the precedential court decisions and/or favorable legislation Comey is seeking.
In all fairness to the FBI, the public received about as much useful information from this document release as the FBI received from its pricey, one-time phone cracking. A long list of FOIA exemptions were used to justify even boilerplate like clean air/water compliance, which is par for the course when the FBI feels its methods and techniques might be made public.
If these redactions are challenged, the FBI is going to have a fun time explaining why it couldn't even release the price of the exploit, much less large chunks of the standard contractual language it deploys when working with private companies -- whether they're cracking open iPhones or supplying toner cartridges.
The FBI/DOJ had no problem rushing out claims last week that Omar Mateen, the guy who killed 49 people in a rampage at a club in Orlando last weekend, had "pledged allegiance" to ISIS. James Comey delivered remarks that said as much last Monday:
It is also not entirely clear at this point just what terrorist group he aspired to support; although, he made clear his affinity, at the time of the attack, for ISIL, and generally, leading up to the attack, for radical Islamist groups. He made 911 calls from the club, during the attack, at about 2:30 in the morning, Sunday morning. There were three different calls. He called and he hung up. He called again and spoke briefly with the dispatcher, and then he hung up, and then the dispatcher called him back again and they spoke briefly. There were three total calls.
During the calls he said he was doing this for the leader of ISIL, who he named and pledged loyalty to, but he also appeared to claim solidarity with the perpetrators of the Boston Marathon bombing, and solidarity with a Florida man who died as a suicide bomber in Syria for al Nusra Front, a group in conflict with Islamic State. The bombers at the Boston Marathon and the suicide bomber from Florida were not inspired by ISIL, which adds a little bit to the confusion about his motives.
By now, it's pretty clear that the link to terrorism is basically non-existent, and that he fits the profile of a "typical mass shooter" rather than someone doing this for ISIS or any other terrorist reasons. As Marcy Wheeler points out, this also may explain why even though the FBI had checked out Mateen twice, including using the FBI's infamous "confidential informants" who often push people to join them in made up terrorist plots, they decided he wasn't a threat. It appears that Mateen didn't give any indication that he was really into aligning himself with ISIS or any other terrorist group, and Wheeler wonders if the FBI cared that he might do other damage, since they're so focused just on terrorism these days.
Instead, it appears, the FBI assessed Mateen for one and only one thing: whether his bogus claims of ties to terrorist organizations were real. There have been a slew of articles, such as this one or this one, wondering why the FBI didn’t “identify” Mateen as a “real” terrorist in its two investigations of him. But it appears the FBI was assessing only whether he was likely to commit violence because of–and with the support of–an Islamic terrorist group. It appears they weren’t assessing whether he was, like the overwhelming majority of men who commit mass shootings in this country, really screwed up, expressing it in violent ways, and seeking attention with such actions.
It is true that Islamic extremists want to attack this country. It is also true that far, far more Americans die when men carry out mass killings because they’re fucked up and begging for attention. If you’re Muslim, the easiest way to get attention right now is to say that word, “ISIS,” because it’s a guarantee law enforcement and politicians will give that killing more due then they might give the next disturbed mass shooter.
Of course, now that the DOJ seems to be realizing that this wasn't based on any connection to middle east groups, it seems to want to bury the issue. Attorney General Loretta Lynch has declared that when the transcript of Mateen's 911 calls are released, they're going to redact his claims to be doing it for ISIS for [reasons].
Yes, I’ll be going to Orlando on Tuesday to continue my briefings in the case. Actually though what we are announcing tomorrow is that the F.B.I. is releasing a partial transcript of the killer’s calls with law enforcement from inside the club. These are the calls with the Orlando P.D. negotiating team who were trying to ascertain who he was, where he was, and why he was doing this, all the while the rescue operations were continuing. That’ll be coming out tomorrow and I’ll be headed to Orlando on Tuesday.
Including the hostage negotiation part of this?
Yes. It will be primarily a partial transcript of his calls with the hostage negotiators.
You say partial. What’s being left out?
Well, what we’re not going to do is further proclaim this individual’s pledges of allegiance to terrorist groups and further his propaganda.
So we’re not going to hear him talk about those things?
We will hear him talk about some of those things, but we’re not going to hear him make his ascertains of allegiance and that. This will not be audio. This will be a printed transcript. But it will begin to capture the back and forth between him and the negotiators. We’re trying to get as much information about this investigation out as possible. As you know, because the killer is dead, we have a bit more leeway there. And so we will be producing that information tomorrow.
Marcy Wheeler again points out how absolutely ridiculous this is, including the idea that releasing such statements would "re-victimize" people. That makes absolutely no sense:
If releasing these claims of affiliation would “revictimize” the victims, then releasing them in the first place served to victimize them. So the much better approach would be the release the full transcripts and admit the Department fucked up, both in its assessment of a potential mass killer, and in rushing to blame ISIS in the first place. Not to mention that this will just feed conspiracy theories.
If DOJ fucked up — and the claim this could revictimize people is tacit admission it seriously fucked up — then admit that and make it right. Pay the political consequences of admitting that our obsessive focus on terrorism has distracted us from the more general, and therefore more lethal, problem with mass killings. Don’t try to pretend there’s a good reason for suppressing the very same claims you made a big deal of a week ago.
If DOJ now believes the claims served to do nothing more than give Mateen’s rampage more attention — and it was a key part of generating that attention — then it needs to come clean.
And, of course, as everyone knows, redacting such information is only calling more attention to it, and almost certainly feeding into the typical plot lines of conspiracy theorists. Why not just release the full transcripts (as required under Florida's public records laws) and with it a full explanation for why the claims of being associated with various groups (many of which are in conflict with each other) make no sense. That is, why not try to calm down the kneejerk reaction the DOJ set off in the first place?
This week is Sunshine Week, and the good folks over at FOIA site Muckrock.com have encouraged us to repost this wonderful/horrifying post on the worst FOIA redactions. You can also view the original MuckRock's FOIA redaction hall of shame over at their site.
If you only have a hammer, then every problem looks like a nail — and as we've learned over the years from many an overenthusiastic FOIA officer, if you only have a Sharpie, then every document looks classified. As part of our Sunshine Week coverage, we put together a list of the most ridiculous redactions we've (un)seen.
And this one, a horrifying short story in its own right.
B(6), the Beyoncé Exemption
In 2013, there was controversy abounded when The Times of London alleged that Beyoncé's perfect rendition of the "Star Spangled Banner" during Obama's second inauguration was the work of lip-syncing. Unperturbed, MuckRock's founder Michael Morisy seized on this as an opportunity to use FOIA to release those tracks, providing public-domain Bey for all. Sadly, his efforts were thwarted by a combination of FOIA not working that way, and of all things, John Williams. Yes, that John Williams.
Adding insult to injury (a phrase that will come up more than once in this article), Michael's follow-up request for the processing notes on his request included a very notable omission.
Well, apparently there's a inter-departmental competition on wasted ink, because earlier this year, fellow DOJ component the federal Bureau of Prisons responded to Beryl Lipton's request for contracts with nearly 150 functionally blank pages ... and to add insult to injury (see?), each page was rendered in an inexplicably hideous shade of bureaucratic yellow.
Adding additional insult to the already insulted injury, this was a physical release, so each of those pages had to be scanned in manually.
The CIA's Redaction Game Goes Meta
While we wrote about this just last week, we're only now grasping the implications - the CIA spent over a year on John Kirsch's request regarding JFK assassination researcher Mary Ferrell, and their final response was just a copy of his original request, with the very dead Ferrell's social security number scratched out.
Which means the CIA have achieved the impossible and managed to release less information through FOIA than we had to begin with. Begrudging respect, that's taking "less is more" to the next level.
The DEA's Pretty Sure You're Okay with
Back in 2014, CJ Ciaramella received training slides from the DEA regarding the sinister-sounding, and ultimately, sinister-being practice of "parallel construction," which encourages agents to hide evidence chains obtained from covert surveillance techniques, particularly the ethically ambiguous ones. To that end, the instructor differentiates between methods that Americans are chill with and ones that they are decidedly less chill with. Number one among chill-with methods is .
While the fact that this method is so acceptable you don't even need to know its name might raise some eyebrows, this next slide should assuage all your lingering legal doubts.
See? Nothing to worry about.
Somehow, what was left in the slides manages to be even less comforting that what was taken out - including some not-at-all-inappropriate Dirty Harry trivia to make sure folks are paying attention.
The IRS's Mission: Incredible Waste of Time and Money
Last year, Alex Richardson filed several requests to the IRS regarding their embattled Whistleblower's Officer, which has been charitably described as "intentionally undermined." Seeing as the agency had already gone far enough to break out the "neither confirm nor deny" denial on the subject, we didn't get our hopes up ... which is why we were caught off-guard when a CD of "responsive documents" arrived in the mail.
Even more enticingly, the CD was encrypted, with a note that further instructions would come in the mail. Cue strings.
Sure enough, a day later those instructions came, and even though they were a tad on the underwhelming side (the passcode turned out to be "FOIAis" and the tracking number) we were eager to get our hands on the obviously valuable information contained therein, which turned out to be ... six completely redacted pages.
At least one staff member self-destructed in 30 seconds.
Finally, to add iInsult to iInjury, the encryption program only works on Windows - so Apple users can't even access the nothing they've got.
The NYPD's Pigpen Exemption
Not all redactions are intentional - after Shawn Musgrave successfully fought the NYPD's claim that he hadn't "reasonably described" the very specific form he had requested by using the very specific form number, they relented and handed over a copy. Although, apparently, first they rubbed a diarrhetic squid over it...
...and then they handed over a copy. Significantly more legible was the cover letter that came with the release, demanding a $1.25 for copying fees. Insult, injury, etcetera.
In a rare FOIA-ry Tale ending, Shawn pushed back on grounds that, well, he was kinda actually hoping to read the thing, and the NYPD coughed up a clean copy. As for our calimari friend, looks like they were adopted by the FCC.
The Sobering, Staggering Conclusion
Five years ago, before everyone and their libertarian uncle were up in arms about bulk data collection, Jason Smathers requested talking points from the NSA. Nearly two years later, this request produced perhaps the pinnacle of the FOIA officer's art form - "These are sobering findings."
Often imitated ...
...but never duplicated, we keep the original copy above the MuckRock coffee machine as a daily reminder that sunlight isn't just the best disinfectant...
...but it's a pretty decent check on self-importance, too.
Michael Morisy -- founder of FOIA clearinghouse MuckRock -- has been waiting since February of 2012 for the FBI to hand over information on its GPS tracking devices. Specifically, Morisy was looking for information on any devices it deactivated/recollected after the Supreme Court (US v. Jones) declared the warrantless, long-term tracking of individuals could amount to a Fourth Amendment violation.
The decision didn't explicitly state GPS tracking devices now needed to be accompanied by warrants, but it was enough that the FBI began shutting down its 3,000 devices. (It turned most of them back on a month later after securing the proper paperwork. Only 250 or so were permanently switched off. And, of course, the FBI grumbled about having to obtain warrants for devices it had already deployed, because the Fourth Amendment doesn't do anything but slow down law enforcement.)
Any lists or logs of sites or locations where the FBI has or had GPS units positioned for monitoring or surveillance purposes. If revealing the exact locations is exempt, please redact exempt information and release cities and states where devices are located.
If multiple years of logs are kept, pleas release all logs or lists created since 2005, focusing on the most recent or up to date logs or lists.
The pullback of the GPS Surveillance Program was acknowledged by FBI General Counsel Andrew Weissmann recently. If there is a list, tally or log of GPS devices being deactivated in the wake Supreme Court Ruling U.S. v. Jones, that list, tally or log may be substituted instead of searching for older records.
1,393 days later, the FBI has finally fulfilled his request in full. While it did spring some stuff loose in April, the remaining disputed documents were finally released 3 years, 9 months and 24 days after Morisy requested them.
And what was turned over to him in the final, long-delayed batch were twoPDFs containing nothing more than a long list of pages the FBI isn't going to be releasing.
In total, ten printed pages containing lists of pages being withheld -- 509 pages in total the FBI has decided it doesn't have to release.
What was released earlier in the year is similarly useless. There's nothing about the GPS units. Almost everything contained in those documents pertains to GPS device training. And even in those, nearly nothing made its way past the FBI's redaction unit.
Still, there are a few hints as to what the FBI thought it had to do to mitigate Fourth Amendment concerns when deploying GPS tracking devices.
Follow this one simple [redacted] trick to avoid having your evidence thrown out!
[In hindsight, the "No supression" note was a bit too optimistic...]
Combine these two items for simple deployment, neither of which is a warrant.
This is the FOIA process. Anyone can play, but the government still holds the cards and deals from the bottom of the deck. Even the long-delayed, fully-withheld documents don't appear to be the information Morisy specifically asked for. One is titled "Manufacturer Materials." The other, "FBI Policy Section 2." Nothing returned in response to this request actually appears to be "responsive" in the traditional sense of the word. And it took the FBI most of four years to finally complete its (possibly purposeful) botching of Morisy's request.
We've already discussed how Nicholas Merrill can finallyreveal the ridiculous and almost certainly unconstitutional National Security Letter (NSL) he received 11 years ago while operating a small ISP, Calyx Internet Access. However, with that revelation also came the unredacted version of the judge's ruling back in October. When we wrote about the October ruling we had mocked many of the obviously ridiculous redactions -- including this somewhat iconic redacted footnote:
The Court notes that the Leahy Letter does not reveal the "180 day" time period in which the FBI sought order and shipping information from Merrill. The Perdue Declaration argues that if this 180-day period is revealed, then "potential terrorists" could manipulate orders to avoid having those orders fall within the 180 day period.... The Court is not persuaded. A "potential terrorist" does not know when, if ever, the FBI will issue a related NSL. The 180-day period clearly relates to the date Merill received the NSL, and it is hard to imagine any person outside of the FBI having the knowledge about when an NSL might be issued, and changing their behavior as a result.
Many of the other redactions just involve hiding what kind of information is currently being redacted, even as the judge wondered why such information was being redacted. For example, we originally highlighted this section:
And in the unredacted portion, we see that basically the government insisted on redacting the fact that the NSL asked for "subscriber day/evening telephone numbers" and the judge can't figure out why the FBI thinks this needs to be secret.
Elsewhere, the redactions get even more direct in hiding the judge totally mocking the DOJ's arguments. Take this section for example:
We now see it was the judge mocking the ridiculousness of these redactions:
If you can't see that, it's the judge pointing out the ridiculousness of the FBI already allowing the public to know it can collect records of an "address" and a "telephone number" but not "addresses" and "telephone numbers" (i.e., the plural versions). As the judge noted, but was originally redacted:
... a potential target of an investigation, even a dim-witted one, would almost certainly be able to determine, simply by running through the alphabet, that "telephone number█" could only be "telephone numbers." Redactions that defy common sense -- such as concealing a single letter at the end of a word -- diminish the force of the Government's claim to "good reason" to keep information under seal, and undermine its argument that disclosures of the currently-redacted information in the Attachment can be linked to a substantial risk of an enumerated harm.
The judge also mocks the ridiculous fact that because the FBI is no longer using NSLs to obtain cell-tower location info, that because it might at some point in the future use it, such info should be redacted:
Here's the unredacted version:
Later in the document, the judge was even forced to redact the phrase "sophisticated foreign adversaries" in noting that such people would already know that the FBI could collect such information.
It was pretty clear back in October the redactions were ridiculous (as was the whole gag order in the first place), and now it's been confirmed.
Five years ago, we wrote about a pretty big victory against National Security Letters (NSLs), which the government has long used to get around the 4th Amendment, demanding information from companies, complete with a perpetual gag order. In 2007, an anonymous ISP owner fought back, speaking out against the whole gag order thing, but not even being able to say what ISP he was associated with, because of that gag order. In 2010, Nicholas Merrill, of Calyx Internet Access, was finally able to admit that he was the one fighting the gag order -- after reaching an agreement with the government (and that was after a number of trips back and forth between the district and appeals courts). Now, five years later, a federal court has finally ruled that the gag order, which was issued back in 2004, should be lifted, because the government has no "good reason" for keeping it in place and keeping the gag order would violate the First Amendment. You can read the redacted order here, which is an interesting read. Basically, a permanent gag order doesn't really fit with that whole First Amendment thing we have here in the US -- but the court prefers to focus on whether or not there's any reason to keep the order in place now.
There's a lot of procedural history here (which explains why it took this long for a ruling, but...). It turns out that in 2014, Merrill and the DOJ reached a further "agreement" that allowed Merrill to talk more about the NSL, but said he could still not discuss an attachment that explained what kinds of records the government sought. This latest part of the lawsuit is about that last remaining part of the gag order. And the court is not impressed by it at all.
Here, the Government has not demonstrated a good
reason to expect that public disclosure of the parts of the
Attachment that remain confidential would risk one of these
enumerated harms; nor has the Government provided the Court
with some basis to assure itself that the link between
disclosure and risk of harm is substantial. The
Government's justifications might constitute "good" reasons
if the information contained in the Attachment that is
still redacted were not, at least in substance even if not
in the precise form, already disclosed by government
divisions and agencies, and thus known to the public. Here,
publicly-available government documents provide
substantially similar information as that set forth in the
Attachment. For that reason, the Court is not persuaded
that it matters that these other documents were not
disclosed by the FBI itself rather than by other government
agencies, and that they would hold significant weight for a
potential target of a national security investigation in
ascertaining whether the FBI would gather such information
through an NSL. The documents referred to were prepared and
published by various government divisions discussing the
FBI' s authority to issue NSLs, the types of materials the
FBI seeks, and how to draft NSL requests.
Indeed, one of these documents is a publicly-available
Department of Justice Office of Legal Education manual that
provides a sample attachment that encapsulates much of the
redacted-information in the Attachment here in dispute....
The Government contends that if the parts of
the Attachment that remain secret are disclosed, potential
targets could change their behavior to evade law
enforcement. But those targets can already learn, based on
publicly available infonnation, that the FBI could obtain
such information through NSLs.
In the end, the court says the gag order makes no sense.
... the Court finds that the Government has not
demonstrated a good reason to believe that potential
targets of national security investigations will change
their behavior to evade detection, or that disclosure of
the Attachment in its entirety would create a substantial
risk of one of the statutorily enumerated harms.
And then there's the whole First Amendment thing. The court notes that if it accepted the DOJ's arguments, the First Amendment would have an issue with that:
If the Court were to find instead that the Government
has met its burden of showing a good reason for nondisclosure
here, could Merrill ever overcome such a
showing? Under the Government's reasoning, the Court sees
only two such hypothetical circumstances in which Merrill
could prevail: a world in which no threat of terrorism
exists, or a world in which the FBI, acting on its own
accord and its own time, decides to disclose the contents
of the Attachment. Such a result implicates serious issues,
both with respect to the First Amendment and accountability
of the government to the people. As Judge Cardamone warned
in his concurrence in Doe v. Gonzales, "a ban on speech and
a shroud of secrecy in perpetuity are antithetical to
democratic concepts and do not fit comfortably with the
fundamental rights guaranteed American citizens," and such
unending secrecy could "serve as a cover for possible
official misconduct and/or incompetence."
But the court, unfortunately, refuses to take things one step further, in saying that the gag order itself violated his First Amendment rights. Instead, it focuses just one whether or not the government still has a "good reason" to keep the gag order in place. Saying that it no longer does, it says it has no need to address the more constitutional question of whether or not the gag order itself violated Merrill's rights.
Also, somewhat amusingly, because the court is ordering the DOJ to lift the gag order, but because it's technically still in place, you get some odd redactions in the ruling, where the government is pointing out why certain things should not be redacted... but they still are, likely because the gag order is still in place, even as the court has ordered it lifted. There are a lot of these kinds of examples, but here's a shorter one:
And another longer one:
Oh, and then there's this glorious footnote:
The court is not persuaded, but everything is blacked out anyway. Because that's how these things work. In fact, Merrill remains gagged for 90 days, and only after that can he actually reveal what the FBI asked for 11 years ago.
We already wrote a long and detailed post about the DOJ gagging Google for over four years, preventing it from telling Jacob Appelbaum about the government's §2703(d) Order for his Gmail info (a §2703(d) order is like a subpoena, but with less privacy protections -- which is why the government is a fan). The gag was finally allowed to be lifted on April 1st of this year, despite most of the key moments happening in the early months of 2011. However, as part of the agreement to finally unseal this document, the DOJ apparently required parts of it to be redacted. Perhaps that's understandable, but some of the redactions are so ridiculous as to be laughable -- starting mainly with trying to make sure that every judge and every DOJ employee in the documents is hidden away. Throughout the document, you see examples like this:
Of course, amusingly, sometimes they redact the phone numbers, and sometimes they don't. So I'm sure that's useful.
And, really, what sort of court system do we have when the judges get to have their names redacted:
And, of course, there are plenty of pages like the following:
But the truly hilarious redactions come elsewhere. For example, despite being mentioned throughout the document without redactions, the name "Wikileaks" is redacted when mentioned in the headlines of stories and URLs.
I mean... really. The redactions of those URLs? What's that about? Does anyone honestly think that people can't find those articles? For what it's worth:
And there's an exhibit with the first of those two "tweets" redacted again:
Yeah, that's Wikileaks' Twitter account, which is kinda obvious from the background and all. But here you go:
The second one -- despite the claim in the document -- does not actually appear to be a tweet at all. However, it was stated by another of the individuals who the DOJ targeted with the Twitter Order, Rop Gonggrijp -- not on his Twitter account, but rather in a blog post about being targeted.
They even want Wikipedia redacted. I wish I were joking.
And that one even tries -- but sometimes fails to redact each mention of Wikileaks even in the references and links at the end. I mean, really:
All of this should raise plenty of questions. Beyond just the ridiculousness of the original gag order, it now appears that the DOJ is abusing the redaction process for no good reason at all. In some cases, it's clearly to avoid having any of the DOJ team or the judges criticized publicly -- because what kind of democracy or due process is there if we have transparency. In other cases, it just seems... to be for no reason whatsoever except "because we can." That's not how the judicial system is supposed to work. We have public courts for a reason.
There's nearly 5,000 pages of "material" here, most of which contains only some intriguing words and phrases surrounded by page after page of redactions.
Want to know [REDACTED]'s thoughts on the possible legal implications of Triggerfish? Just close your eyes and allow your imagination to run free.
Here's a quick reference guide that allows FBI agents to quickly match up their chosen "technique" with the appropriate legal standard and process.
That's not to say there's nothing of interest left intact. A few pages explain the FBI's legal rationale for IMSI catcher deployment -- including the fact that the Patriot Act expanded the reach of pen register orders to include not just numbers dialed, but also the location of the phone itself. This allows the FBI and other law enforcement agencies to route around one of CALEA's (Communications Assistance for Law Enforcement Act) few limitations related to pen register orders: that service providers not be required to hand over subscriber location info.
In passing CALEA in 1994, Congress required providers to isolate and provide to the government certain information relating to telephone communications. At the same time that it created these obligations, it created an exception: carriers shall not provide law enforcement with "any information that may disclose the physical location of the subscriber" in response to a pen/trap order… By its very terms, this prohibition applies only to information collected by a provider and not to information collected directly by law enforcement authorities. Thus, CALEA does not bar the use of pen/trap orders to authorize the use of cell phone tracking devices used to locate targeted cell phones.
But, for the most part, it's 5000 pages of this:
And this (from a document titled "Stingray for Dummies"):
"It does not seem credible to me that they can't release more of those kinds of records," [ACLU attorney Nate] Wessler told me. "Information about ongoing investigations, highly technical details of the devices, how they're put together, those kinds of things, redact them, fair enough. Information about whether they have to get a warrant or not, how they purge or do not purge bystanders data. They're clearly talking about those things."
"There's no conceivable reason why they shouldn't tell the public what their Fourth Amendment rights are protecting when they use these," he added. "The documents are not without value, but what the FBI has released is not adequate."
If nothing else, the documents have given a small, narrow glimpse behind the FBI's veil of secrecy -- as well as some more insight into its Stingray-related legal maneuvering. The FBI has managed to turn a pen register order -- something previously used to collect dialed numbers -- into something that can be deployed to locate an individual, or at least their cellphone. Unsurprisingly, this legal theory traces back to the Patriot Act, one of the largest expansions of intelligence and law enforcement powers ever produced by the US government.
The Seattle Police Department is taking the unconventional step of bringing a programmer who bombarded it with public records requests in-house. Chief Operating Officer Mike Wagers has led efforts to hire 24-year-old self-taught programmer Tim Clemans—initially, at least, on a three-month trial basis to work on redaction and disclosure of data.
He'll make $22.60 an hour and start on May 6. If all goes well, Clemans will stay on as a full-time staffer.
Fortunately, some reconsideration of the issue resulted in the PD attempting to make transparency and technology its ally, rather than its enemy. It has started its own YouTube channel and uploads body cam footage frequently. It held a hackathon to address the issue of en masse redaction -- something no other police force seems to have considered when facing the same nexus between accountability and privacy. Most have simply opted to withhold the footage from 99.9% of the public.
But not the Seattle PD. Not only did it host a hackathon, but it hired Clemans, despite his admittedly vexatious FOIA request and despite him having posted dash-cam footage of an incident where he was hassled by one of Seattle's finest.
The police department is hiring Clemans despite a tense March 27 encounter with Officer Jason Bender at Westlake Center. Clemans said he was filming police that day and pointed his camera at the officer during a benign interaction with two young men—one black and one white. "My filming just demonstrates what the police are doing," he said when asked why he was filming them in particular. "Both the good and bad."
But, he said, Bender was annoyed at being filmed. A dash-cam video (obtained by Clemans and posted on his YouTube account, of course!) only recorded garbled audio of a lengthy argument that ensued. Bender, who identifies himself as a member of the department's Crisis Intervention Team, asks Clemans pointedly, "Do you videotape criminals? No, you don't. You know why? Because the criminals are not"—but here the audio becomes difficult to make out. "Enjoy your safety that's provided to you."
It should be noted that Seattle has been much more proactive in considering the concerns of its citizens, rather than in deferring to whatever law enforcement officials say is best for everybody. The mayor's office evicted the Seattle PD's two drones, citing the need to "focus" on "community building," rather than simply keeping an eye on as much of the community as technologically possible. (The drones ended up with the LAPD, which shares none of these concerns.)
The good news is that Clemans is viewed as someone who can help the Seattle PD reach its goals. He'll be working on more auto-redaction solutions -- targeting the removal of personally-identifiable information on citizens from police documents. His auto-redaction work for body cam footage is still being fine-tuned. Most of what's been uploaded to date is blurry and unintelligible, but this recently-uploaded video tries a new approach -- one that's visually striking, even if it's still mostly useless as a tool of accountability.
Considering how most law enforcement agencies value their privacy over that of the general public's, it's kind of nice to see an agency take a much more balanced approach to this sort of situation. Body cameras are headed towards being as ubiquitous as dash-cams, so there will need to be processes in place to prevent privacy violations. While most have opted at this point for maximum obfuscation, the Seattle PD actually seems to want to be ahead of the transparency curve.
District Court Judge James Boasberg ruled against a journalist on Tuesday who had tried to uncover the classified documents — known as the Panetta Review, because they was completed under orders from former agency Director Leon Panetta — under the Freedom of Information Act (FOIA).
The CIA had used “sound” reasoning in keeping the documents secret, Boasberg decided in a 19-page judgment, preventing it from making its way to the public.
The journalist in question is every secretive agency's side-thorn, Jason Leopold, who sued the CIA one day after it passed the response deadline. And now this attempt to pry more torture-related documents out of the CIA's hands has hit a dead end. Judge Boasberg agreed that the overbroad exemptions cited are (unsurprisingly) broad enough to cover the CIA's assertion that the 40 memos comprising the Panetta Review must be withheld in full.
In the end, requiring disclosure of the Reviews would cause the sort of harm that the deliberative-process privilege was designed to prevent – i.e., inhibiting frank and open communications among agency personnel… Had the SRT known that the Reviews could become public, its members would likely have been tempted to highlight only the information that would paint the agency’s prior actions in a positive light and to avoid calling attention to information that could have embarrassed the agency or its officials. Protecting the agency’s withholdings in this case is thus consistent with the purposes of this exemption…
The Court, in sum, concludes that the Reviews are properly withheld under Exemption 5’s deliberative-process privilege. It further agrees that they may be withheld in full. While FOIA requires agencies to release “[a]ny reasonably segregable portion of a record,” 5 U.S.C. § 552(b), it is clear that there are no such portions here. As the agency attests, and as the preceding discussion makes clear, “[t]he entire documents are pre-decisional, deliberative drafts . . . .” Lutz Decl., ¶ 26. Because “the selection of which facts to include [wa]s part and parcel of the deliberative assessment,” no portions can be severed without exposing the deliberative process itself.
Two interesting things to note about the Panetta Review and this particular case.
First, the CIA seems to be bolstering its FOIA exemption b(5) claims by designating documents as "draft" or "deliberative," no matter what their actual purpose is. In its supporting declaration filed in this lawsuit, it deployed circular reasoning declaring drafts and deliberative documents are drafts and deliberative documents because they are clearly marked as such by the CIA.
In a court filing last month as part of a Freedom of Information Act lawsuit, a C.I.A. officer said that the review had been stopped abruptly in 2010, had not covered all of the documents the agency had given to the committee and “had not been formally reviewed or relied upon by the C.I.A.’s senior leadership.”
“Each document is stamped ‘DELIBERATIVE PROCESS PRIVILEGED DOCUMENT’ at the top of every page, and most of the documents are marked ‘DRAFT’ on every page as well,” wrote the C.I.A. officer, Martha M. Lutz.
The CIA's internal document designations seem to bear some resemblance to the NYPD's use of its "SECRET" stamp -- which is deployed arbitrarily and without oversight to declare certain documents out of the reach of Freedom of Information Law (FOIL) requests. If the CIA feels exemption b(5) gives it the best chance to keep documents out of the hands of journalists like Jason Leopold. it can slap these designations on as many papers as possible and mention its predetermination in FOIA lawsuit declarations.
Second, Boasberg's refusal to challenge even a single exemption assertion by the CIA isn't particularly good news, considering his recent appointment to the FISA court. While he has pushed back on government secrecy in the past, he's also been just as likely to grant its wishes. Considering he's replacing FISA Judge Reggie Walton -- one of the few FISA judges to openly question surveillance tactics and hold the NSA accountable for its abuses -- this latest decision seems to indicate his appointment is a downgrade in terms of government accountability.