The federal government has not justified its excessive secrecy about the massive telephone surveillance program known as Hemisphere, a court ruled in an EFF Freedom of Information Act (FOIA) lawsuit on Thursday.
As a result, the federal government must submit roughly 260 pages of previously withheld or heavily redacted records to the court so that it can review them and decide whether to make more information about Hemisphere public.
Hemisphere is a partnership between AT&T and federal, state, and local law enforcement agencies that allows police almost real-time access to telephone call detail records. The program is both extremely controversial—AT&T requires police to hide its use from the public—and appears to violate our First and Fourth Amendment rights.
Although the government disclosed some records in response to EFF’s FOIA request about Hemisphere, it claimed many documents could be withheld under FOIA’s exemptions for evidentiary privileges and law enforcement records.
Magistrate Judge Maria-Elena James of the United States District Court for the Northern District of California found many of the exemption claims to be unfounded.
For example, the court ruled that several records did not qualify for protection under FOIA’s Exemption 5. The exemption allows agencies to protect documents that, among other things, contain attorney-client communications or would disclose internal agency deliberations. To withhold records under Exemption 5, an agency must first show that the documents were not shared outside the federal government.
The court ruled, however, that the government had failed to show that the disputed documents were kept within the federal government after EFF demonstrated that many of them appeared to have been given to state and local law enforcement.
The court also ruled that even though the government showed other documents were eligible for protection under Exemption 5, it had failed to provide enough information to justify withholding the record. Judge James wrote:
“The Court is not asking the Government to make a herculean effort, merely something beyond regurgitation of the elements."
Next, the court rejected the government’s claims that disclosing the records would interfere with ongoing or future law enforcement investigations under Exemption 7(A). Agreeing with EFF, the Judge James ruled:
“None of the Government’s evidence suggest that exposing these documents would interfere with law enforcement proceedings.”
The court also rejected claims that the names of telecommunications companies involved in Hemisphere could be withheld on grounds that they were confidential law enforcement informants:
“Whatever ‘express expectation’ of confidentiality these private companies may have, the Government has provided no indication it ever told these companies their names would be held in confidence."
Finally, the court questioned the validity of the government’s claim that disclosing the records would hamper law enforcement’s use of purportedly secret techniques, procedures and guidelines. Although the court did not order release of those records, which were withheld under Exemption 7(E), it acknowledged that the government’s claims were undercut by public information describing how Hemisphere works. “EFF persuasively cites numerous articles and other resources describing the publicly known facts about Hemisphere,” the court wrote. The government, however, did not show how the withheld information was either secret or went beyond the publicly known facts, the court ruled.
As a result of the government’s failure to show that the information could be withheld, the court ordered it to produce unredacted copies of all the disputed documents so the court can scrutinize its claims directly.
Given EFF’s and AT&T shareholders' concerns about Hemisphere, we are pleased with the court’s decision and hope that it will ultimately order the disclosure of even more records.