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"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:

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 E-DELINQUENTS: WORST OVERALL AGENCIES In alphabetical order

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.

The FCC's comment system makes no attempt to verify submitters' identities, and allows bulk uploads so that groups collecting signatures for letters and petitions can get them on the docket easily. It was like that even before Pai took over as chair, but the fraud became far more pervasive in the proceeding that led to the repeal of net neutrality rules. Pai's FCC did not remove any fraudulent comments from the record. Democratic FCC Commissioner Jessica Rosenworcel called for a delay in the net neutrality repeal vote because of the fraud, but the Republican majority pushed the vote through as scheduled last month. New York Attorney General Eric Schneiderman has been investigating the comment fraud and says the FCC has stonewalled the investigation by refusing to provide evidence. Schneiderman is also leading a lawsuit to reverse the FCC's net neutrality repeal, and the comment fraud could play a role in the case. "We understand that the FCC's rulemaking process requires it to address all comments it receives, regardless of who submits them," Congressional Democrats said in their letter requesting a GAO investigation. "However, we do not believe any outside parties should be permitted to generate any comments to any federal governmental entity using information it knows to be false, such as the identities of those submitting the comments."

BlueHost refused to help the International Middle East Media Center (IMEMC)  during a Denial of Service DoS attack. Asked for help, BlueHost reportedly said that they should deal with the issue themselves, which was impossible without BlueHost’s cooperation. The news agency’s website was down for days because BlueHost reportedly just shut down IMEMC’s server and told the editor-in-chief, Saed Bannoura to “go somewhere else”. The question is whether “transparency” can be the privilege of major corporations or whether there is need for legislation that forces all corporations to provide detailed information that enables media and other internet users to pursue real or alleged malware threats, cyber attacks and so forth, criminally and legally. That is, also when the alleged or real threat involves major corporations.

Despite the use of the word “now” in that first sentence, however, the FBI has yet to do any such thing. It has not announced any such change, nor explained how it will implement it, or when. Media inquiries were greeted with stalling and, finally, a no comment — ostensibly on advice of legal counsel. “There is pending litigation that deals with a lot of the same questions you’re asking, out of the Ninth Circuit,” FBI spokesman Chris Allen told me. “So for now, we’ll just have to decline to comment.” FBI lawyers are working on a court filing for that case, and “it will address” the new policy, he said. He would not say when to expect it.

There is indeed a significant case currently before the federal appeals court in San Francisco. Oral arguments were in October. A decision could come any time. But in that case, the Electronic Frontier Foundation (EFF), which is representing two unnamed communications companies that received NSLs, is calling for the entire NSL statute to be thrown out as unconstitutional — not for a tweak to the gag. And it has a March 2013 district court ruling in its favor. “The gag is a prior restraint under the First Amendment, and prior restraints have to meet an extremely high burden,” said Andrew Crocker, a legal fellow at EFF. That means going to court and meeting the burden of proof — not just signing a letter. Or as the Cato Institute’s Julian Sanchez put it, “To have such a low bar for denying persons or companies the right to speak about government orders they have been served with is anathema. And it is not very good for accountability.”

In a separate case, a wide range of media companies (including First Look Media, the non-profit digital media venture that produces The Intercept) are supporting a lawsuit filed by Twitter, demanding the right to say specifically how many NSLs it has received. But simply releasing companies from a gag doesn’t assure the kind of accountability that privacy advocates are saying is required by the Constitution. “What the public has to remember is a NSL is asking for your information, but it’s not asking it from you,” said Michael German, a former FBI agent who is now a fellow with the Brennan Center for Justice. “The vast majority of these things go to the very large telecommunications and financial companies who have a large stake in maintaining a good relationship with the government because they’re heavily regulated entities.”

So, German said, “the number of NSLs that would be exposed as a result of the release of the gag order is probably very few. The person whose records are being obtained is the one who should receive some notification.” A time limit on gags going forward also raises the question of whether past gag orders will now be withdrawn. “Obviously there are at this point literally hundreds of thousands of National Security Letters that are more than three years old,” said Sanchez. Individual review is therefore unlikely, but there ought to be some recourse, he said. And the further back you go, “it becomes increasingly implausible that a significant percentage of those are going to entail some dire national security risk.” The NSL program has a troubled history. The absolute secrecy of the program and resulting lack of accountability led to systemic abuse as documented by repeated inspector-general investigations, including improperly authorized NSLs, factual misstatements in the NSLs, improper requests under NSL statutes, requests for information based on First Amendment protected activity, “after-the-fact” blanket NSLs to “cover” illegal requests, and hundreds of NSLs for “community of interest” or “calling circle” information without any determination that the telephone numbers were relevant to authorized national security investigations.

Obama’s own hand-selected “Review Group on Intelligence and Communications Technologies” recommended in December 2013 that NSLs should only be issued after judicial review — just like warrants — and that any gag should end within 180 days barring judicial re-approval. But FBI director James Comey objected to the idea, calling NSLs “a very important tool that is essential to the work we do.” His argument evidently prevailed with Obama.

NSLs have managed to stay largely under the American public’s radar. But, Crocker says, “pretty much every time I bring it up and give the thumbnail, people are shocked. Then you go into how many are issued every year, and they go crazy.” Want to send me your old NSL and see if we can set a new precedent? Here’s how to reach me. And here’s how to leak to me.

Security experts say hackers, sophisticated criminal gangs and nations under sanctions also could use this tracking technology, which operates in a legal gray area. It is illegal in many countries to track people without their consent or a court order, but there is no clear international legal standard for secretly tracking people in other countries, nor is there a global entity with the authority to police potential abuses.

tracking systems that access carrier location databases are unusual in their ability to allow virtually any government to track people across borders, with any type of cellular phone, across a wide range of carriers — without the carriers even knowing. These systems also can be used in tandem with other technologies that, when the general location of a person is already known, can intercept calls and Internet traffic, activate microphones, and access contact lists, photos and other documents. Companies that make and sell surveillance technology seek to limit public information about their systems’ capabilities and client lists, typically marketing their technology directly to law enforcement and intelligence services through international conferences that are closed to journalists and other members of the public.

Yet marketing documents obtained by The Washington Post show that companies are offering powerful systems that are designed to evade detection while plotting movements of surveillance targets on computerized maps. The documents claim system success rates of more than 70 percent. A 24-page marketing brochure for SkyLock, a cellular tracking system sold by Verint, a maker of analytics systems based in Melville, N.Y., carries the subtitle “Locate. Track. Manipulate.” The document, dated January 2013 and labeled “Commercially Confidential,” says the system offers government agencies “a cost-effective, new approach to obtaining global location information concerning known targets.”

(Privacy International has collected several marketing brochures on cellular surveillance systems, including one that refers briefly to SkyLock, and posted them on its Web site. The 24-page SkyLock brochure and other material was independently provided to The Post by people concerned that such systems are being abused.)

Verint, which also has substantial operations in Israel, declined to comment for this story. It says in the marketing brochure that it does not use SkyLock against U.S. or Israeli phones, which could violate national laws. But several similar systems, marketed in recent years by companies based in Switzerland, Ukraine and elsewhere, likely are free of such limitations.

The tracking technology takes advantage of the lax security of SS7, a global network that cellular carriers use to communicate with one another when directing calls, texts and Internet data. The system was built decades ago, when only a few large carriers controlled the bulk of global phone traffic. Now thousands of companies use SS7 to provide services to billions of phones and other mobile devices, security experts say. All of these companies have access to the network and can send queries to other companies on the SS7 system, making the entire network more vulnerable to exploitation. Any one of these companies could share its access with others, including makers of surveillance systems.

Companies that market SS7 tracking systems recommend using them in tandem with “IMSI catchers,” increasingly common surveillance devices that use cellular signals collected directly from the air to intercept calls and Internet traffic, send fake texts, install spyware on a phone, and determine precise locations. IMSI catchers — also known by one popular trade name, StingRay — can home in on somebody a mile or two away but are useless if a target’s general location is not known. SS7 tracking systems solve that problem by locating the general area of a target so that IMSI catchers can be deployed effectively. (The term “IMSI” refers to a unique identifying code on a cellular phone.)

Verint can install SkyLock on the networks of cellular carriers if they are cooperative — something that telecommunications experts say is common in countries where carriers have close relationships with their national governments. Verint also has its own “worldwide SS7 hubs” that “are spread in various locations around the world,” says the brochure. It does not list prices for the services, though it says that Verint charges more for the ability to track targets in many far-flung countries, as opposed to only a few nearby ones. Among the most appealing features of the system, the brochure says, is its ability to sidestep the cellular operators that sometimes protect their users’ personal information by refusing government requests or insisting on formal court orders before releasing information.

Another company, Defentek, markets a similar system called Infiltrator Global Real-Time Tracking System on its Web site, claiming to “locate and track any phone number in the world.” The site adds: “It is a strategic solution that infiltrates and is undetected and unknown by the network, carrier, or the target.”

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Meanwhile, none of the four major wireless carriers have been willing to confirm any business relationship with LocationSmart, but all claim to be investigating the problem after the week of bad press. That this actually results in substantive changes to the nation's cavalier treatment of private user data is a wager few would be likely to make.

One more thing: For now, our system will only let you email your own representatives. A lot of people dislike this. We do, too. In an age of increasing polarization, party discipline means that congressional leaders must be accountable to citizens outside their districts. But the unfortunate truth is that Congress typically won't bother reading messages from non-constituents — that's why those zip code requirements exist in the first place. Until that changes, we don't want our users to waste their time. So that's it. If it seems simple, it's because it is. But we think that unbreaking how Congress connects to the Internet is important. You should be able to send a call to action in a tweet, easily forward a listserv message to your representative and interact with your government using the tools you use to interact with everyone else.

Also revealed in today’s report is the number of times the government has queried the controversial phone records database it created by collecting the phone records of every subscriber from U.S. providers. According to the report, the government used 423 “selectors” to search its massive phone records database, which includes records going back to at least 2006 when the program began. A search involves querying a specific phone number or device ID that appears in the database. The government has long maintained that its collection of phone records isn’t a violation of its authority, since it only views the records of specific individuals targeted in an investigation. But such searches, even if targeted at phone numbers used by foreigners, would include calls made to and from Americans as well as calls exchanged with people two or three hops out from the targeted number.

In its report, the government indicated that the 423 selectors involved just 248 “known or presumed” Americans whose information was collected by the agency in the database. But Opsahl says that both of these numbers are deceptive given what we know about the database and how it’s been used. “We know it’s affecting millions of people,” he points out. But “then we have estimated numbers of affected people [that are just] in the three digits. That requires some effort [on the government's part] to find a way to do the definition of the number [in such a way] to make it as small as possible.”

One additional figure today’s report covers is the number of National Security Letters the government issued last year to businesses to obtain data on accountholders and users—19,212. NSLs are written demands from the FBI that compel internet service providers, credit companies, financial institutions and others to hand over confidential records about their customers, such as subscriber information, phone numbers and e-mail addresses, websites visited, and more. These letters are a powerful tool because they do not require court approval, and they come with a built-in gag order, preventing recipients from disclosing to anyone that they have received an NSL. An FBI agent looking into a possible anti-terrorism case can self-issue an NSL to a credit bureau, ISP, or phone company with only the sign-off of the Special Agent in Charge of their office. The FBI has merely to assert that the information is “relevant” to an investigation into international terrorism or clandestine intelligence activities.

The FBI has issued hundreds of thousands of NSLs over the years and has been reprimanded for abusing them. Last year a federal judge ruled that the use of NSLs is unconstitutional, due to the gag order that accompanies them, and ordered the government to stop using them. Her ruling, however, was stayed pending the government’s appeal.

According to the government’s report today, the 19,000 NSLs issued last year involved more than 38,000 requests for information.

The US intelligence community’s broadest surveillance authorities are enshrined in Executive Order 12333, which primarily covers the interception of electronic communications overseas. The Order authorizes the collection, retention, and dissemination of “foreign intelligence” information, which includes information “relating to the capabilities, intentions or activities of foreign powers, organizations or persons.” In other words, so long as they are operating outside the US, intelligence agencies are authorized to collect information about any foreign person — and, of course, any Americans with whom they communicate. The NSA has conceded that EO 12333 is the basis of most of its surveillance. While public information about these programs is limited, a few highlights give a sense of the breadth of EO 12333 operations: The NSA gathers information about every cell phone call made to, from, and within the Bahamas, Mexico, Kenya, the Philippines, and Afghanistan, and possibly other countries. A joint US-UK program tapped into the cables connecting internal Yahoo and Google networks to gather e-mail address books and contact lists from their customers. Another US-UK collaboration collected images from video chats among Yahoo users and possibly other webcam services. The NSA collects both the content and metadata of hundreds of millions of text messages from around the world. By tapping into the cables that connect global networks, the NSA has created a database of the location of hundreds of millions of mobile phones outside the US.

Given its scope, EO 12333 is clearly critical to those seeking serious surveillance reform. The path to reform is, however, less clear. There is no sunset provision that requires action by Congress and creates an opportunity for exposing privacy risks. Even in the unlikely event that Congress was inclined to intervene, it would have to address questions about the extent of its constitutional authority to regulate overseas surveillance. To the best of my knowledge, there is no litigation challenging EO 12333 and the government doesn’t give notice to criminal defendants when it uses evidence derived from surveillance under the order, so the likelihood of a court ruling is slim. The Privacy and Civil Liberties Oversight Board is currently reviewing two programs under EO 12333, but it is anticipated that much of its report will be classified (although it has promised a less detailed unclassified version as well). While the short-term outlook for additional surveillance reform is challenging, from a longer-term perspective, the distinctions that our law makes between Americans and non-Americans and between domestic and foreign collection cannot stand indefinitely. If the Fourth Amendment is to meaningfully protect Americans’ privacy, the courts and Congress must come to grips with this reality.