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Government Withholds Records on Need for Expanded Surveillance Law

October 28, 2010

Government Withholds Records on Need for Expanded Surveillance Law

White House Pushes for New Powers, Yet Feds Won't Release Data to Justify Changes

San Francisco - The Electronic Frontier Foundation (EFF) filed suit against three agencies of the Department of Justice (DOJ) today, demanding records about problems or limitations that hamper electronic surveillance and potentially justify or undermine the Administration's new calls for expanded surveillance powers.

The issue has been in the headlines for more than a month, kicked off by a New York Times report that the government was seeking to require "back doors" in all communications systems -- from email and webmail to Skype, Facebook and even Xboxes -- to ease its ability to spy on Americans. The head of the FBI publicly claimed that these "back doors" are needed because advances in technology are eroding agents' ability to intercept information. EFF filed a Freedom of Information Act (FOIA) request with the Federal Bureau of Investigation (FBI), the Drug Enforcement Agency (DEA), and the DOJ Criminal Division to see if that claim is backed up by specific incidents where these agencies encountered obstacles in conducting electronic surveillance.

"The sweeping changes the government is proposing, to require 'back doors' into all private communications technologies, would have enormous privacy and security ramifications for American Internet users," said EFF Staff Attorney Jennifer Lynch. "Any meaningful debate must be based on the information we're seeking in the FOIA requests, so the government's failure to comply in a timely manner is troubling."

EFF also requested records on communications that DOJ agencies had with technology companies, trade organizations and Congress about potential expansion of surveillance laws. The FBI has already agreed that the records should be disclosed quickly due to the urgency to inform the public about this issue. However, neither it nor the other DOJ agencies released documents within the time limit set by Congress to respond to a FOIA request, forcing today's lawsuit.

"A mandate requiring an easy-to-open 'back door' to electronic communications is an idea that was proposed and rejected over fifteen years ago because it would be ineffective, cause security vulnerabilities, and hurt American business -- on top of the damage it would do to Americans' privacy and free speech rights," said EFF Legal Director Cindy Cohn. "Any attempt to require the same mandate today should start with a concrete and realistic evaluation of how often the government investigations are stymied by the lack of a 'back door.' Anything less than that is asking the public to blindly rubber stamp a flawed plan at a very high cost to Americans and American business."

For the full complaint:
https://www.eff.org/files/filenode/surveillancereco/calea_foia_complaint-FINAL.pdf

For more on expanding surveillance law:
https://www.eff.org/deeplinks/2010/10/eight-epic-failures-regulating-cryptography

Contact:

Jennifer Lynch
Staff Attorney
Electronic Frontier Foundation
jlynch@eff.org

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