Entries Tagged "FOIA"

Page 2 of 4

The Dangers of Secret Law

Last week, the Department of Justice released 18 new FISC opinions related to Section 702 as part of an EFF FOIA lawsuit. (Of course, they don’t mention EFF or the lawsuit. They make it sound as if it was their idea.)

There’s probably a lot in these opinions. In one Kafkaesque ruling, a defendant was denied access to the previous court rulings that were used by the court to decide against it:

…in 2014, the Foreign Intelligence Surveillance Court (FISC) rejected a service provider’s request to obtain other FISC opinions that government attorneys had cited and relied on in court filings seeking to compel the provider’s cooperation.

[…]

The provider’s request came up amid legal briefing by both it and the DOJ concerning its challenge to a 702 order. After the DOJ cited two earlier FISC opinions that were not public at the time—one from 2014 and another from 2008­—the provider asked the court for access to those rulings.

The provider argued that without being able to review the previous FISC rulings, it could not fully understand the court’s earlier decisions, much less effectively respond to DOJ’s argument. The provider also argued that because attorneys with Top Secret security clearances represented it, they could review the rulings without posing a risk to national security.

The court disagreed in several respects. It found that the court’s rules and Section 702 prohibited the documents release. It also rejected the provider’s claim that the Constitution’s Due Process Clause entitled it to the documents.

This kind of government secrecy is toxic to democracy. National security is important, but we will not survive if we become a country of secret court orders based on secret interpretations of secret law.

Posted on June 21, 2017 at 6:12 AM • View Comments

1981 US Document on Encryption Policy

This was newly released under FOIA at my request: Victor C. Williams, Jr., Donn B. Parker, and Charles C. Wood, “Impacts of Federal Policy Options for Nonmilitary Cryptography,” NTIA-CR-81-10, National Telecommunications and Information Administration, US. Department of Commerce, June 1981. It argues that cryptography is an important enabling technology. At this point, it’s only of historical value.

Posted on March 23, 2016 at 6:20 AM • View Comments

Secret Information Is More Trusted

This is an interesting, if slightly disturbing, result:

In one experiment, we had subjects read two government policy papers from 1995, one from the State Department and the other from the National Security Council, concerning United States intervention to stop the sale of fighter jets between foreign countries.

The documents, both of which were real papers released through the Freedom of Information Act, argued different sides of the issue. Depending on random assignment, one was described as having been previously classified, the other as being always public. Most people in the study thought that whichever document had been “classified” contained more accurate and well-reasoned information than the public document.

In another experiment, people read a real government memo from 1978 written by members of the National Security Council about the sale of fighter jets to Taiwan; we then explained that the council used the information to make decisions. Again, depending on random assignment, some people were told that the document had been secret and for exclusive use by the council, and that it had been recently declassified under the Freedom of Information Act. Others were told that the document had always been public.

As we expected, people who thought the information was secret deemed it more useful, important and accurate than did those who thought it was public. And people judged the National Security Council’s actions based on the information as more prudent and wise when they believed the document had been secret.

[…]

Our study helps explain the public’s support for government intelligence gathering. A recent poll by the Pew Research Center for the People and the Press reported that a majority of Americans thought it was acceptable for the N.S.A. to track Americans’ phone activity to investigate terrorism. Some frustrated commentators have concluded that Americans have much less respect for their own privacy than they should.

But our research suggests another conclusion: the secret nature of the program itself may lead the public to assume that the information it gathers is valuable, without even examining what that information is or how it might be used.

Original paper abstract; the full paper is behind a paywall.

Posted on July 26, 2013 at 6:25 AM • View Comments

State Department Redacts Wikileaks Cables

The ACLU filed a FOIA request for a bunch of cables that Wikileaks had already released complete versions of. This is what happened:

The agency released redacted versions of 11 and withheld the other 12 in full.

The five excerpts below show the government’s selective and self-serving decisions to withhold information. Because the leaked versions of these cables have already been widely distributed, the redacted releases provide unique insight into the government’s selective decisions to hide information from the American public.

Click on the link to see what was redacted.

EDITED TO ADD (3/2): Commentary:

The Freedom of Information Act provides exceptions for a number of classes of information, but the State Department’s declassification decisions appear to be based not on the criteria specified in the statute, but rather on whether the documents embarrass the US or portray the US in a negative light.

Posted on March 1, 2012 at 1:32 PM • View Comments

1 2 3 4

Sidebar photo of Bruce Schneier by Joe MacInnis.