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Gonzalo San Gil, PhD.

Appeals Court Tells Government It Must Extend Educational Institution FOIA Fee Price Br... - 0 views

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    "The perennial FOIA Reform Masquerade Ball is again under way, with legislators attempting to dodge blustery requests to "cut in" by administration officials and similarly-motivated federal agencies. The dance usually ends with Congressional committee chairmen yanking needles from records and booting everyone out of the dancehall. Meanwhile, limited headway is being made in another branch of the government, far from the muffled protests of overwhelming majorities who have been shouted down by parties of one. The DC Appeals Court has just ruled that the government must extend its FOIA fee discounts to students at educational institutions, rather than just to instructors and administration. "
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    "The perennial FOIA Reform Masquerade Ball is again under way, with legislators attempting to dodge blustery requests to "cut in" by administration officials and similarly-motivated federal agencies. The dance usually ends with Congressional committee chairmen yanking needles from records and booting everyone out of the dancehall. Meanwhile, limited headway is being made in another branch of the government, far from the muffled protests of overwhelming majorities who have been shouted down by parties of one. The DC Appeals Court has just ruled that the government must extend its FOIA fee discounts to students at educational institutions, rather than just to instructors and administration. "
Paul Merrell

FBI's secret method of unlocking iPhone may never reach Apple | Reuters - 0 views

  • The FBI may be allowed to withhold information about how it broke into an iPhone belonging to a gunman in the December San Bernardino shootings, despite a U.S. government policy of disclosing technology security flaws discovered by federal agencies. Under the U.S. vulnerabilities equities process, the government is supposed to err in favor of disclosing security issues so companies can devise fixes to protect data. The policy has exceptions for law enforcement, and there are no hard rules about when and how it must be applied.Apple Inc has said it would like the government to share how it cracked the iPhone security protections. But the Federal Bureau of Investigation, which has been frustrated by its inability to access data on encrypted phones belonging to criminal suspects, might prefer to keep secret the technique it used to gain access to gunman Syed Farook's phone. The referee is likely to be a White House group formed during the Obama administration to review computer security flaws discovered by federal agencies and decide whether they should be disclosed.
  • Stewart Baker, former general counsel of the NSA and now a lawyer with Steptoe & Johnson, said the review process could be complicated if the cracking method is considered proprietary by the third party that assisted the FBI.Several security researchers have pointed to the Israel-based mobile forensics firm Cellebrite as the likely third party that helped the FBI. That company has repeatedly declined comment.
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    The article is wide of the mark, based on analysis of Executive Branch policy rather than the governing law such as the Freedom of Information Act. And I still find it somewhat ludicrous that a third party with knowledge of the defect could succeed in convincing a court that knowledge of a defect in a company's product is trade-secret proprietary information. "Your honor, my client has discovered a way to break into Mr. Tim Cook's house without a key to his house. That is a valuable trade secret that this Court must keep Mr. Cook from learning." Pow! The Computer Fraud and Abuse Act makes it a crime to access a computer that can connect to the Internet by exploiting a software bug. 
Paul Merrell

EFF Pries More Information on Zero Days from the Government's Grasp | Electronic Fronti... - 0 views

  • Until just last week, the U.S. government kept up the charade that its use of a stockpile of security vulnerabilities for hacking was a closely held secret.1 In fact, in response to EFF’s FOIA suit to get access to the official U.S. policy on zero days, the government redacted every single reference to “offensive” use of vulnerabilities. To add insult to injury, the government’s claim was that even admitting to offensive use would cause damage to national security. Now, in the face of EFF’s brief marshaling overwhelming evidence to the contrary, the charade is over. In response to EFF’s motion for summary judgment, the government has disclosed a new version of the Vulnerabilities Equities Process, minus many of the worst redactions. First and foremost, it now admits that the “discovery of vulnerabilities in commercial information technology may present competing ‘equities’ for the [government’s] offensive and defensive mission.” That might seem painfully obvious—a flaw or backdoor in a Juniper router is dangerous for anyone running a network, whether that network is in the U.S. or Iran. But the government’s failure to adequately weigh these “competing equities” was so severe that in 2013 a group of experts appointed by President Obama recommended that the policy favor disclosure “in almost all instances for widely used code.” [.pdf].
  • The newly disclosed version of the Vulnerabilities Equities Process (VEP) also officially confirms what everyone already knew: the use of zero days isn’t confined to the spies. Rather, the policy states that the “law enforcement community may want to use information pertaining to a vulnerability for similar offensive or defensive purposes but for the ultimate end of law enforcement.” Similarly it explains that “counterintelligence equities can be defensive, offensive, and/or law enforcement-related” and may “also have prosecutorial responsibilities.” Given that the government is currently prosecuting users for committing crimes over Tor hidden services, and that it identified these individuals using vulnerabilities called a “Network Investigative Technique”, this too doesn’t exactly come as a shocker. Just a few weeks ago, the government swore that even acknowledging the mere fact that it uses vulnerabilities offensively “could be expected to cause serious damage to the national security.” That’s a standard move in FOIA cases involving classified information, even though the government unnecessarily classifies documents at an astounding rate. In this case, the government relented only after nearly a year and a half of litigation by EFF. The government would be well advised to stop relying on such weak secrecy claims—it only risks undermining its own credibility.
  • The new version of the VEP also reveals significantly more information about the general process the government follows when a vulnerability is identified. In a nutshell, an agency that discovers a zero day is responsible for invoking the VEP, which then provides for centralized coordination and weighing of equities among all affected agencies. Along with a declaration from an official at the Office of the Director of National Intelligence, this new information provides more background on the reasons why the government decided to develop an overarching zero day policy in the first place: it “recognized that not all organizations see the entire picture of vulnerabilities, and each organization may have its own equities and concerns regarding the prioritization of patches and fixes, as well as its own distinct mission obligations.” We now know the VEP was finalized in February 2010, but the government apparently failed to implement it in any substantial way, prompting the presidential review group’s recommendation to prioritize disclosure over offensive hacking. We’re glad to have forced a little more transparency on this important issue, but the government is still foolishly holding on to a few last redactions, including refusing to name which agencies participate in the VEP. That’s just not supportable, and we’ll be in court next month to argue that the names of these agencies must be disclosed. 
Paul Merrell

Most Agencies Falling Short on Mandate for Online Records - 1 views

  • Nearly 20 years after Congress passed the Electronic Freedom of Information Act Amendments (E-FOIA), only 40 percent of agencies have followed the law's instruction for systematic posting of records released through FOIA in their electronic reading rooms, according to a new FOIA Audit released today by the National Security Archive at www.nsarchive.org to mark Sunshine Week. The Archive team audited all federal agencies with Chief FOIA Officers as well as agency components that handle more than 500 FOIA requests a year — 165 federal offices in all — and found only 67 with online libraries populated with significant numbers of released FOIA documents and regularly updated.
  • Congress called on agencies to embrace disclosure and the digital era nearly two decades ago, with the passage of the 1996 "E-FOIA" amendments. The law mandated that agencies post key sets of records online, provide citizens with detailed guidance on making FOIA requests, and use new information technology to post online proactively records of significant public interest, including those already processed in response to FOIA requests and "likely to become the subject of subsequent requests." Congress believed then, and openness advocates know now, that this kind of proactive disclosure, publishing online the results of FOIA requests as well as agency records that might be requested in the future, is the only tenable solution to FOIA backlogs and delays. Thus the National Security Archive chose to focus on the e-reading rooms of agencies in its latest audit. Even though the majority of federal agencies have not yet embraced proactive disclosure of their FOIA releases, the Archive E-FOIA Audit did find that some real "E-Stars" exist within the federal government, serving as examples to lagging agencies that technology can be harnessed to create state-of-the art FOIA platforms. Unfortunately, our audit also found "E-Delinquents" whose abysmal web performance recalls the teletype era.
  • E-Delinquents include the Office of Science and Technology Policy at the White House, which, despite being mandated to advise the President on technology policy, does not embrace 21st century practices by posting any frequently requested records online. Another E-Delinquent, the Drug Enforcement Administration, insults its website's viewers by claiming that it "does not maintain records appropriate for FOIA Library at this time."
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  • THE E-DELINQUENTS: WORST OVERALL AGENCIES In alphabetical order
  • The federal government has made some progress moving into the digital era. The National Security Archive's last E-FOIA Audit in 2007, " File Not Found," reported that only one in five federal agencies had put online all of the specific requirements mentioned in the E-FOIA amendments, such as guidance on making requests, contact information, and processing regulations. The new E-FOIA Audit finds the number of agencies that have checked those boxes is now much higher — 100 out of 165 — though many (66 in 165) have posted just the bare minimum, especially when posting FOIA responses. An additional 33 agencies even now do not post these types of records at all, clearly thwarting the law's intent.
  • The FOIAonline Members (Department of Commerce, Environmental Protection Agency, Federal Labor Relations Authority, Merit Systems Protection Board, National Archives and Records Administration, Pension Benefit Guaranty Corporation, Department of the Navy, General Services Administration, Small Business Administration, U.S. Citizenship and Immigration Services, and Federal Communications Commission) won their "E-Star" by making past requests and releases searchable via FOIAonline. FOIAonline also allows users to submit their FOIA requests digitally.
  • "The presumption of openness requires the presumption of posting," said Archive director Tom Blanton. "For the new generation, if it's not online, it does not exist." The National Security Archive has conducted fourteen FOIA Audits since 2002. Modeled after the California Sunshine Survey and subsequent state "FOI Audits," the Archive's FOIA Audits use open-government laws to test whether or not agencies are obeying those same laws. Recommendations from previous Archive FOIA Audits have led directly to laws and executive orders which have: set explicit customer service guidelines, mandated FOIA backlog reduction, assigned individualized FOIA tracking numbers, forced agencies to report the average number of days needed to process requests, and revealed the (often embarrassing) ages of the oldest pending FOIA requests. The surveys include:
  • Key Findings
  • Excuses Agencies Give for Poor E-Performance
  • Justice Department guidance undermines the statute. Currently, the FOIA stipulates that documents "likely to become the subject of subsequent requests" must be posted by agencies somewhere in their electronic reading rooms. The Department of Justice's Office of Information Policy defines these records as "frequently requested records… or those which have been released three or more times to FOIA requesters." Of course, it is time-consuming for agencies to develop a system that keeps track of how often a record has been released, which is in part why agencies rarely do so and are often in breach of the law. Troublingly, both the current House and Senate FOIA bills include language that codifies the instructions from the Department of Justice. The National Security Archive believes the addition of this "three or more times" language actually harms the intent of the Freedom of Information Act as it will give agencies an easy excuse ("not requested three times yet!") not to proactively post documents that agency FOIA offices have already spent time, money, and energy processing. We have formally suggested alternate language requiring that agencies generally post "all records, regardless of form or format that have been released in response to a FOIA request."
  • Disabilities Compliance. Despite the E-FOIA Act, many government agencies do not embrace the idea of posting their FOIA responses online. The most common reason agencies give is that it is difficult to post documents in a format that complies with the Americans with Disabilities Act, also referred to as being "508 compliant," and the 1998 Amendments to the Rehabilitation Act that require federal agencies "to make their electronic and information technology (EIT) accessible to people with disabilities." E-Star agencies, however, have proven that 508 compliance is no barrier when the agency has a will to post. All documents posted on FOIAonline are 508 compliant, as are the documents posted by the Department of Defense and the Department of State. In fact, every document created electronically by the US government after 1998 should already be 508 compliant. Even old paper records that are scanned to be processed through FOIA can be made 508 compliant with just a few clicks in Adobe Acrobat, according to this Department of Homeland Security guide (essentially OCRing the text, and including information about where non-textual fields appear). Even if agencies are insistent it is too difficult to OCR older documents that were scanned from paper, they cannot use that excuse with digital records.
  • Privacy. Another commonly articulated concern about posting FOIA releases online is that doing so could inadvertently disclose private information from "first person" FOIA requests. This is a valid concern, and this subset of FOIA requests should not be posted online. (The Justice Department identified "first party" requester rights in 1989. Essentially agencies cannot use the b(6) privacy exemption to redact information if a person requests it for him or herself. An example of a "first person" FOIA would be a person's request for his own immigration file.) Cost and Waste of Resources. There is also a belief that there is little public interest in the majority of FOIA requests processed, and hence it is a waste of resources to post them. This thinking runs counter to the governing principle of the Freedom of Information Act: that government information belongs to US citizens, not US agencies. As such, the reason that a person requests information is immaterial as the agency processes the request; the "interest factor" of a document should also be immaterial when an agency is required to post it online. Some think that posting FOIA releases online is not cost effective. In fact, the opposite is true. It's not cost effective to spend tens (or hundreds) of person hours to search for, review, and redact FOIA requests only to mail it to the requester and have them slip it into their desk drawer and forget about it. That is a waste of resources. The released document should be posted online for any interested party to utilize. This will only become easier as FOIA processing systems evolve to automatically post the documents they track. The State Department earned its "E-Star" status demonstrating this very principle, and spent no new funds and did not hire contractors to build its Electronic Reading Room, instead it built a self-sustaining platform that will save the agency time and money going forward.
Paul Merrell

The Government's Secret Plan to Shut Off Cellphones and the Internet, Explained | Conne... - 1 views

  • This month, the United States District Court for the District of Columbia ruled that the Department of Homeland Security must make its plan to shut off the Internet and cellphone communications available to the American public. You, of course, may now be thinking: What plan?! Though President Barack Obama swiftly disapproved of ousted Egyptian President Hosni Mubarak turning off the Internet in his country (to quell widespread civil disobedience) in 2011, the US government has the authority to do the same sort of thing, under a plan that was devised during the George W. Bush administration. Many details of the government’s controversial “kill switch” authority have been classified, such as the conditions under which it can be implemented and how the switch can be used. But thanks to a Freedom of Information Act lawsuit filed by the Electronic Privacy Information Center (EPIC), DHS has to reveal those details by December 12 — or mount an appeal. (The smart betting is on an appeal, since DHS has fought to release this information so far.) Yet here’s what we do know about the government’s “kill switch” plan:
  • What are the constitutional problems? Civil liberties advocates argue that kill switches violate the First Amendment and pose a problem because they aren’t subject to rigorous judicial and congressional oversight. “There is no court in the loop at all, at any stage in the SOP 303 process,” according to the Center for Democracy and Technology. ”The executive branch, untethered by the checks and balances of court oversight, clear instruction from Congress, or transparency to the public, is free to act as it will and in secret.” David Jacobs of EPIC says, “Cutting off communications imposes a prior restraint on speech, so the First Amendment imposes the strictest of limitations…We don’t know how DHS thinks [the kill switch] is consistent with the First Amendment.” He adds, “Such a policy, unbounded by clear rules and oversight, just invites abuse.”
Paul Merrell

EPIC - EPIC Prevails in FOIA Case About "Internet Kill Switch" - 0 views

  • In a Freedom of Information Act case brought by EPIC against the Department of Homeland Security, a federal court has ruled that the DHS may not withhold the agency's plan to deactivate wireless communications networks in a crisis. EPIC had sought "Standard Operating Procedure 303," also known as the "internet Kill Switch," to determine whether the agency's plan could adversely impact free speech or public safety. EPIC filed the FOIA lawsuit in 2012 after the the technique was used by police in San Francisco to shut down cell service for protesters at a BART station, who had gathered peacefully to object to police practices. The federal court determined that the agency wrongly claimed that it could withhold SOP 303 as a "technique for law enforcement investigations or prosecutions." The phrase, the court explained, "refers only to acts by law enforcement after or during the prevention of a crime, not crime prevention techniques." The court repeatedly emphasized that FOIA exemptions are to be read narrowly. For more information, see EPIC: EPIC v. DHS (SOP 303) and EPIC: FOIA.
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    Talk about a prior restraint of speech! The link at the bottom of the quoted portion takes you to a page with the relevant court records.
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