March 16, 2012 | By Trevor Timm

Sunshine Week: EFF's Current Freedom of Information Act Lawsuits

In honor of Sunshine Week, yesterday we reviewed what EFF’s Freedom of Information Act requests revealed in the past year. Today, we’ll take a look at the FOIA lawsuits we filed last year and the information we hope the suits will provide.

Secret Interpretation and Use of the Patriot Act

On the 10th anniversary of the Patriot Act, EFF sued the Justice Department for its refusal to release information concerning the controversial provision of the PATRIOT Act known as Section 215. In early 2011, multiple Senators warned that the FBI believed Section 215 allowed them “unfettered” access to innocent Americans’ private data, like “a cellphone company’s phone records” in bulk form. "When the American people find out about how their government has secretly interpreted the Patriot Act,” said Wyden on the Senate floor in May, “they are going to be stunned and they are going to be angry.” Unfortunately, the Senators could not give further details since the Justice Department interpretation was classified.

After receiving no response to our FOIA request, EFF (and the ACLU in a separate case) sued the Justice Department demanding the release of DOJ’s secret interpretation and information concerning how the federal government is using Section 215. The DOJ released their first batch of documents in the case yesterday, and as the ACLU noted, the DOJ has confirmed they in fact do have a secret interpretation of the law. EFF will have more on the document release shortly. 

Drones

Last month, Congress passed a bill allowing the FAA to authorize more domestic drone flights in the United States. The agency estimated a staggering 30,000 drones could be flying in around the United States by 2020.

EFF staff attorney Jennifer Lynch explained the capabilities of surveillance drones in January:

Drones are capable of highly advanced and almost constant surveillance, and they can amass large amounts of data. They carry various types of equipment including live-feed video cameras, infrared cameras, heat sensors, and radar. Some newer drones carry super high resolution “gigapixel” cameras that can “track people and vehicles from altitudes above 20,000 feet[,] . . . [can] monitor up to 65 enemies of the State simultaneously[, and] . . . can see targets from almost 25 miles down range.” Predator drones can eavesdrop on electronic transmissions, and one drone unveiled at DEFCON last year can crack Wi-Fi networks and intercept text messages and cell phone conversations—without the knowledge or help of either the communications provider or the customer. Drones are also designed to carry weapons, and some have suggested that drones carrying weapons such as tasers and bean bag guns could be used domestically.

Yet before Congress passed the law, the FAA had already been authorizing drone flights for a variety of law enforcement agencies. The FAA refused to make any information available to the public about who specifically has obtained these authorizations or for what purposes. On January 10, EFF sued the Department of Transportation and FAA for the information.

The use of surveillance drones could dramatically alter the legal and technical landscape for privacy in the United States, and the FAA should not be permitted to shield from the public information concerning the use of drones within our borders. The FAA should be required to follow the law and release this information immediately.

Secret Surveillance Memo

In May 2011, EFF filed a lawsuit against the Justice Department to demand the release of a secret legal memo used to justify FBI access to Americans' telephone records without any legal process or oversight.

As we stated at the time, “A report released last year by the DOJ's own Inspector General revealed how the FBI, in defending its past violations of the Electronic Communications Privacy Act (ECPA), had come up with a new legal argument to justify secret, unchecked access to private telephone records. According to the report, the DOJ's Office of the Legal Counsel (OLC) had issued a legal opinion agreeing with the FBI's theory.”

EFF suspects that the FBI and OLC wrongly concluded that, when conducting national security investigations, government officials are free to obtain records of Americans' communications without legal process, despite clear federal privacy laws to the contrary. EFF is litigating the case so the public knows and understands how the DOJ has interpreted federal surveillance and privacy laws. 

FBI’s Plan to Expand Federal Surveillance Laws

In early 2011, EFF received documents in response to a 2-year old FOIA request for information on the FBI’s "Going Dark" program, an initiative to increase the FBI's authority over electronic surveillance. The documents—the first ones we received from a lawsuit filed in 2010—detail a fully-formed and well-coordinated plan to expand existing surveillance laws and develop new ones. But these documents represent only a small fraction of the documents we expect to receive in response to this and a more recent FOIA request.

However, the lawsuit is not over. EFF is currently in the middle of summary judgment briefing in this FOIA lawsuit, where we will be arguing that the government is improperly withholding information from almost 3,000 pages of records that could explain to the American public how the FBI, DOJ and DEA have been pushing to expand federal electronic surveillance laws over the last few years.

We first heard about the FBI’s Going Dark program in 2009, when the agency’s Congressional budget request included an additional $9 million to fund the program (on top of the $233.9 million it already received). Late last year, the New York Times linked the program to a plan to expand federal surveillance laws like the Communications Assistance to Law Enforcement Act (CALEA). We issued FOIA requests to the FBI in 2009 for information on Going Dark and in 2010 for information on the agency’s plans to update CALEA.


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