FOI Advocate Blog

The NFOIC open government blog is a compendium of original concepts and analysis as well as ideas, edited excerpts and materials from a variety of sources. When the information comes from another source, we will attribute it and provide a link. The blog relies on the accuracy and integrity of the original sources cited; we will correct errors and inaccuracies when we become aware of them.

For Advocate posts prior to July, 2011, visit http://foiadvocate.blogspot.com/.
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October 14, 2013 8:42 AM

From Reporters Committee for Freedom of the Press: The Reporters Committee for Freedom of the Press, joined by 36 other news media organizations, filed public comments calling on the president’s Review Group on Intelligence and Communications Technologies to more carefully balance the secrecy sometimes required in national security investigations with the public’s right to know what its government is doing.

In response to a call from the Review Group to comment on how government can utilize technology to protect national security while protecting privacy and civil liberties, the Reporters Committee-led media coalition made several suggestions, including increased transparency in the Foreign Intelligence Surveillance Court (the FISA court) and the creation of a media advocate to oversee public interests in the secret court.

“We urge this Review Group to embrace a more transparent FISA process and help ensure that the FISA court does not interfere with protected newsgathering to the point that innocent and necessary communications with reporters are stifled,” the Reporters Committee letter stated. “The government needs to more vigorously protect the free flow of information and openness in the judicial process to ensure that its efforts to combat terrorism do not end up swallowing the nation’s commitment to First Amendment values.”

[...]

Joining the Reporters Committee on the Review Group letter were: ABC, Inc.; Advance Publications, Inc.; Allbritton Communications Company; ALM Media, LLC; American Society of News Editors; The Associated Press; Atlantic Media, Inc.; Bloomberg L.P.; Cable News Network, Inc.; California Newspaper Publishers Association; Courthouse News Service; Dow Jones & Company, Inc.; The E.W. Scripps Company; First Amendment Coalition; Fox News Network LLC; Gannett Co., Inc.; Hearst Corporation; Investigative Reporters and Editors; Investigative Reporting Workshop at American University; Journal Communications, Inc.; The McClatchy Company; Media Consortium; National Press Photographers Association; National Public Radio, Inc.; The New York Times Company; The New Yorker; Newspaper Association of America; North Jersey Media Group Inc.; POLITICO LLC; Radio Television Digital News Association; Reporters Without Borders; Reuters America LLC; The Seattle Times Company; Society of Professional Journalists; Tribune Company; and The Washington Post.

Visit Reporters Committee for Freedom of the Press for more. Please also see an article from Poynter here.

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September 26, 2013 7:41 AM

From The New Republic:  Last week, with little fanfare, the Foreign Intelligence Surveillance Court (FISA) released a previously secret opinion upholding the National Security Agency’s mass surveillance of telephone metadata. The opinion, which deserves more attention than it has received, is a cavalier piece of work. Judge Claire Eagan fails even to consider, let alone to rebut, the strong arguments suggesting that the NSA programs violates both the U.S. Constitution and section 215 of the Patriot Act, the statutory provision the government has invoked to authorize it.

The Electronic Privacy Information Center (EPIC) has asked the Supreme Court to conduct an independent review of the legality of the NSA surveillance program, and Justice Antonin Scalia said yesterday that he expects the Court to eventually hear a version of the case. But because the Court may be unlikely, for technical reasons, to rule squarely on the merits, congressional reform of the FISA court is now more urgent than ever.

Continue >>

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September 20, 2013 8:36 AM

From USA TodayThe Justice Department's internal ethics watchdog says it never investigated repeated complaints by federal judges that the government had misled them about the NSA's secret surveillance of Americans' phone calls and Internet communications.

Two judges on the court that oversees the spying programs separately rebuked federal officials in top-secret court orders for misrepresenting how the NSA was harvesting and analyzing communication records. In a sharply worded 2009 order, one of the judges, Reggie Walton, went so far as to suggest that he could hold national security officials in contempt or refer their conduct to outside investigators.

The Justice Department's Office of Professional Responsibility routinely probes judges' allegations that the department's lawyers may have violated ethics rules that prohibit attorneys from misleading courts. Still, OPR said in response to a Freedom of Information Act request by USA TODAY that it had no record of ever having investigated — or even being made aware of — the scathing and, at the time, classified, critiques from the Foreign Intelligence Surveillance Court between 2009 and 2011.

Those opinions were sufficiently critical that OPR should have reviewed the situation, even if only to assure the department that its lawyers were not to blame, former OPR attorney Leslie Griffin said. "There's enough in the opinions that it should trigger some level of inquiry," she said.

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September 12, 2013 7:57 AM

From The Guardian: The National Security Agency routinely shares raw intelligence data with Israel without first sifting it to remove information about US citizens, a top-secret document provided to the Guardian by whistleblower Edward Snowden reveals.

Details of the intelligence-sharing agreement are laid out in a memorandum of understanding between the NSA and its Israeli counterpart that shows the US government handed over intercepted communications likely to contain phone calls and emails of American citizens. The agreement places no legally binding limits on the use of the data by the Israelis.

• Secret deal places no legal limits on use of data by Israelis
• Only official US government communications protected
• Agency insists it complies with rules governing privacy
Read the NSA and Israel's 'memorandum of understanding'

Visit The Guardian for more.

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September 12, 2013 6:46 AM

From TalkingPointsMemo: Solicitor General Donald Verrilli and Sen. Diane Feinstein have put federal prosecutors in quite a bind after they made public comments about the use of secret NSA surveillance in terrorism investigations.

Now defense attorneys in a Florida case are turning the words of those top officials against prosecutors, urging a federal court to force the federal government to disclose whether it obtained evidence against their client through a 2008 amendment to the Foreign Intelligence Surveillance Act, known as FAA, which has been at the center of the Edward Snowden leaks.

In a Tuesday filing (see below), attorneys for Raees Alam Qazi — who was charged with planning to blow up a bomb in New York City last December — argued that federal prosecutors were obligated to disclose to them if secret surveillance had been used in the investigation.

“This lack of candor is deeply troubling because it continues a pattern of cases in which government prosecutors have failed to provide notice of FAA surveillance to criminal defendants,” the defense attorneys wrote. “Because of this lack of notice, the warrantless surveillance program has never been subjected to judicial review in any public courtroom.”

But the real conundrum for prosecutors: The defense is using the words of the top government attorney in the country and one of its foremost senators to make its case.

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September 6, 2013 8:56 AM

From ABC News:  The Justice Department is declassifying portions of some secret court orders concerning the government's authority to seize records under the Patriot Act.

The department revealed its decision to declassify the Foreign Intelligence Surveillance Court opinions in a filing with the federal court in the Northern District of California Wednesday. The government says it will provide hundreds of pages of documents to the Electronic Frontier Foundation, an Internet civil liberties group that had filed a lawsuit under the Freedom of Information Act.

The release of the records is in response to an order issued by a federal judge in California. In its filing, the Justice Department said it was "broadly construing" that order and is declassifying a larger set of documents than the ruling required.

The Justice Department said it would provide the document to the foundation by Tuesday.

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September 5, 2013 12:10 PM

From Electronic Frontier Foundation: In a major victory in one of EFF's Freedom of Information Act (FOIA) lawsuits, the Justice Department conceded yesterday that it will release hundreds of documents, including FISA court opinions, related to the government’s secret interpretation of Section 215 of the Patriot Act, the law the NSA has relied upon for years to mass collect the phone records of millions of innocent Americans.

In a court filing, the Justice Department, responding to a judge’s order, said that they would make public a host of material that will “total hundreds of pages” by next week, including: [O]rders and opinions of the FISC issued from January 1, 2004, to June 6, 2011, that contain a significant legal interpretation of the government’s authority or use of its authority under Section 215; and responsive “significant documents, procedures, or legal analyses incorporated into FISC opinions or orders and treated as binding by the Department of Justice or the National Security Agency.”

While the government finally released a white paper detailing its expansive (and unconstitutional) interpretation of Section 215 last month, more important FISA court opinions adopting at least part of that interpretation have remained secret. The results of EFF’s FOIA lawsuit will finally lift the veil on the dubious legal underpinnings of NSA’s domestic phone surveillance program.

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August 16, 2013 11:18 AM

From the Washington Post:  The chief judge of the Foreign Intelligence Surveillance Court said the court lacks the tools to independently verify how often the government’s surveillance breaks the court’s rules that aim to protect Americans’ privacy. Without taking drastic steps, it also cannot check the veracity of the government’s assertions that the violations its staff members report are unintentional mistakes.

“The FISC is forced to rely upon the accuracy of the information that is provided to the Court,” its chief, U.S. District Judge Reggie B. Walton, said in a written statement to The Washington Post ...

Walton’s comments came in response to internal government records obtained by The Post showing that National Security Agency staff members in Washington overstepped their authority on spy programs thousands of times per year.

Get the rest here.

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June 7, 2013 7:16 AM

From The Guardian:  The National Security Agency has obtained direct access to the systems of Google, Facebook, Apple and other US internet giants, according to a top secret document obtained by the Guardian.

The NSA access is part of a previously undisclosed program called PRISM, which allows officials to collect material including search history, the content of emails, file transfers and live chats, the document says.

The Guardian has verified the authenticity of the document, a 41-slide PowerPoint presentation – classified as top secret with no distribution to foreign allies – which was apparently used to train intelligence operatives on the capabilities of the program. The document claims "collection directly from the servers" of major US service providers.

Although the presentation claims the program is run with the assistance of the companies, all those who responded to a Guardian request for comment on Thursday denied knowledge of any such program.

 

June 6, 2013 1:49 PM

In the following statement issued today, NFOIC and its allies in the OpenTheGovernment.org coalition expressed outrage and demanded more answers regarding the FISA-court authorized data mining of Verizon customers' phone records.

Please see the full statement and additional links below.

Time for Answers on Domestic Spying Program

WASHINGTON, June 6, 2013 – The recent news that the Foreign Intelligence Surveillance Court (FISC) ordered Verizon to turn over to the National Security Agency the mass collection of telephone call logs generated by millions of Verizon customers likely comes as a shock for many Americans. While officials within all three branches of our government signed off on or were briefed on the program, the public has been left completely in the dark about the scope and the extent of the government’s domestic spying.

The leaked FISC order posted by The Guardian and follow-on reporting improves public understanding of the program by making at least a few facts clear: the amount of data collected from Verizon was massive, and could be part of a regular collection process; the Executive branch believes its actions are legally justified; at least some, if not all, Members of Congress were briefed on the program; and the Foreign Intelligence Surveillance Court signed off on the data collection.

What the leaked document does not tell us, however, is anything about the full scope of the government’s secret domestic surveillance program, including just how many people may be caught up in the dragnet and how long it has been going on. While it apparently is based on Section 215 of the PATRIOT ACT, the federal government has continually refused to release the Department of Justice’s legal interpretation of that provision, which allows the government to obtain “tangible things.” In the absence of any explanation of the legal authority behind the program or its scope, we must assume this order is only the tip of the iceberg.

“This revelation is the latest in a growing body of revelations that show how the federal government’s excessive secrecy leads to a culture of unaccountability that permits such abuses of authority to occur,” said Patrice McDermott, Executive Director of OpenTheGovernment.org.

Just like secret laws, secret programs like this one are fundamentally at odds with our democracy. In order to restore trust in the government, and enable the public to have a meaningful voice in shaping public policies, we call on the President to provide the public with a description of the full scope of the program, and the DOJ’s legal rationale for it.

Visit OpenTheGovernment.org for this and more.

Also see additional articles and background here.

 

January 14, 2013 9:52 AM

From Electronic Frontier Foundation:

As 2012 came to a close, Congress reauthorized the FISA Amendments Act (FAA) for another 5 years. Yes, the same FAA under which the government conducted unconstitutional surveillance; the same FAA for which the government refuses to estimate the number of Americans who have been spied on; and yes, the same FAA that has been interpreted in substantial ways within secret court opinions. 
 
However, in the debate leading up to the reauthorization, Senator Jeff Merkley sponsored a straightforward amendment, with bipartisan support, that would have provided the public with a greater understanding of the FAA and the government’s interpretations of the law. ...
 
The amendment was a measured nudge towards greater transparency: it would have required the government to either declassify Foreign Intelligence Surveillance Court (FISC) opinions, or provide unclassified summaries of those opinions; or, even failing that, just give a progress report on the status of trying to declassify FISC opinions. Despite outspoken advocates for FAA reform like Senators Merkley, Wyden, Udall, and Paul, the Senate voted down the Merkley Amendment, 54-37.

 

December 28, 2012 12:41 PM

From Huffingtonpost:

The U.S. Senate renewed the warrantless wiretapping program begun during the George W. Bush administration by a 73 to 23 vote on Friday, sending the FISA Amendments Act to President Barack Obama's desk for his signature.

The vote marked a symbolic next step for the wiretapping program, which collects Americans' communications with foreign intelligence targets abroad. Four years ago, in the midst of the 2008 Democratic presidential primary, an identical version of the bill was the subject of a highly contentious debate in the Senate. Obama and others argued then that Bush's program went too far in violating Americans' privacy. This year, with a supportive Obama in the Oval Office and the media focus on the fiscal cliff, the bill was renewed with much less attention.

[…]

After voting down reform three reform amendments on Thursday, the Senate continued debate on the spy bill on Friday morning. Sen. Ron Wyden (D-Ore.) offered an amendment meant to force the National Security Agency and the Central Intelligence Agency to reveal how frequently they have collected Americans' communications as part of their efforts to amass intelligence on foreign targets. Even an estimate would suffice, Wyden has argued -- but the spy agencies have rebuffed his efforts to get a general number, claiming it is not possible.

Reaction from Glenn Greenwald:

Democrats Jeff Merkley and Ron Wyden of Oregon along with Kentucky GOP Senator Rand Paul - each attempted to attach amendments to the law simply to provide some modest amounts of transparency and oversight to ensure that the government's warrantless eavesdropping powers were constrained and checked from abuse.

Just consider how modest these amendments were. Along with Democratic Sen. Mark Udall of Colorado, Sen. Wyden has spent two years warning Americans that the government's eavesdropping powers are being interpreted (by secret court decisions and the Executive Branch) far more broadly than they would ever suspect, and that, as a result, these eavesdropping powers are being applied far more invasively and extensively than is commonly understood.

... Merkley's amendment would compel the public release of secret judicial rulings from the FISA court which purport to interpret the scope of the eavesdropping law on the ground that "secret law is inconsistent with democratic governance"; the Obama administration has refused to release a single such opinion even though the court, "on at least one occasion", found that the government was violating the Fourth Amendment in how it was using the law to eavesdrop on Americans.

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