In response to a Freedom of Information Act request from PPSA about classification procedures, the State Department reported that based on a representative sampling, only a tiny number of documents were improperly or overly classified. This seemed to us a mind-boggling response given the mountains of documents stamped classified every day at Foggy Bottom. Now, PPSA has obtained data from across the government to show the State Department’s response was misleading.
At a 2015 open house presentation by the National Archives and Records Administration, a graphic produced by the Information Security Oversight Office showed that nearly 100 million items are classified each year by the federal government. An Obama-era law and executive order provide the means for people within the agencies to challenge a classification decision without fear of retribution.
So how is that working out?
Of these 100 million decisions, only a minuscule fraction is challenged — in one year, much less than 1% of 1%. The graph demonstrates the extent to which the government continues to hide much of its operations from the American people.
The Project for Privacy and Surveillance Accountability today filed a Freedom of Information Act (FOIA) lawsuit against the Office of the Director of National Intelligence (ODNI) over the refusal of the government to turn over records concerning U.S. intelligence community purchases of the private digital data of American citizens.
The government’s stonewalling continues well past its failure to meet any of the deadlines required by the FOIA statute. It also flies in the face of a pledge made by Director of National Intelligence Avril Haines (1:17:05 mark) in her Senate confirmation hearings on Jan. 19, 2021. When Sen. Ron Wyden, (D-OR) asked about informing the American people about purchases of their data, Haines responded:
“I would seek to try to publicize, essentially, a framework that helps people understand the circumstances under which we do that and the legal basis that we do that under.”
Haines further promised to provide transparency “so people have an understanding of the guidelines under which the intelligence community operates.”
In response, PPSA requested “all agency records created, altered, sent, or received in preparation for any public disclosure, as contemplated by Director Haines,” including:
The government acknowledged receiving PPSA’s initial FOIA request on June 2, 2021. PPSA inquired about the lack of a substantive response more than one year later. On June 23, 2022, ODNI responded: “we cannot speculat[e] on a specific response date.”
More than thirty business days later, after the ODNI failed to indicate whether it will fully comply with the FOIA request, PPSA decided to file suit.
“This is a golden opportunity for Director Haines to demonstrate that the intelligence community will live up to her promise to provide at least some transparency,” said Gene Schaerr, PPSA general counsel. “As Avril Haines herself stated, the American people deserve to know the circumstances in which the intelligence community purchases our personal data and the legal basis for doing so.
“Director Haines promises to ‘publicize’ that legal basis. I hope she does, instead of allowing her office to continue to stonewall.”
ACLU FOIA Lawsuit: Department of Homeland Security Collects 15 Billion Cellphone Locations Every Day
The American Civil Liberties Union performed an invaluable service for the American people today by releasing records from Department of Homeland Security agencies that demonstrate the sweep of the government’s routine violation of the Fourth Amendment by purchasing Americans’ personal data from data brokers.
The ACLU’s Freedom of Information Act lawsuit against DHS agencies includes Customs and Border Protection, Immigration and Customs Enforcement, the U.S. Secret Service, and the U.S. Coast Guard. This lawsuit is ongoing, but these first disclosures are eyepopping.
The ACLU lawsuit reveals:
“ACLU’s findings should concern every American with a cellphone,” said Bob Goodlatte, former Chair of the House Judiciary Committee and now Senior Policy Advisor to PPSA. “ACLU’s determined effort to expose the scale of government intrusion into our privacy is a monumental public service. With the House and Senate now holding hearings into these practices, Congress has every reason to require warrants to intrude into our digital lives by passing the Fourth Amendment Is Not for Sale Act.”
Bob Goodlatte will testify on the government’s practice of buying Americans’ personal data tomorrow before the House Judiciary Committee.
The Project for Privacy and Surveillance Accountability today announced the filing of a lawsuit in federal court against the National Security Agency, the Central Intelligence Agency, the U.S. Department of Justice, and the Office of the Director of National Intelligence, to compel the release of documents pertaining to the possible purchasing of the personal information of more than 100 current and former Members of the House and Senate Judiciary Committees from private data brokers.
The lawsuit, filed in the United States District Court for the District of Columbia, seeks records relating to data purchases of these current and former lawmakers that include Jerrold Nadler, Chairman of the House Judiciary Committee, Ranking Member Jim Jordan, Sen. Dick Durbin, Chairman of the Senate Judiciary Committee and Ranking Member Sen. Chuck Grassley. The list includes many leading lights of both parties, from current Vice President Kamala Harris to Florida Gov. Ron DeSantis, both former Members of Congress.
These government agencies responded over the summer 2021 to PPSA’s FOIA request with Glomar responses, a judicially invented doctrine that neither confirms nor denies that such records exist.
At the time, Gene Schaerr, PPSA general counsel, responded: “The government doesn’t want to even entertain our question. What do they have to hide?”
He added: “This troubling refusal gives all the more reason for Congress to pass the Fourth Amendment Is Not for Sale Act, which would ban such surveillance from purchased data. If Vice President Harris and Gov. DeSantis are potentially having their rights violated, imagine how little protection you and I have.”
PPSA Files Freedom of Information Act Request on Secret Surveillance of Guardian Reporter, Project Veritas
The Project for Privacy and Surveillance Accountability today announced the filing of a Freedom of Information Act (FOIA) request seeking documents from U.S. government agencies regarding secret subpoenas issued on the phone records of Stephanie Kirchgaessner, U.S.-based investigative reporter for The Guardian, as well as warrants and subpoenas issued to Microsoft and the email accounts it provides to the activist journalists of Project Veritas.
The Washington, D.C., based Kirchgaessner has long irritated officialdom with her disclosures on stories ranging from the sinister misuses of Pegasus surveillance technology to stories involving surveillance overreach in the United States. James O’Keefe of Project Veritas suffered a pre-dawn raid on his home and confiscation of his cellphone when Department of Justice officials were seeking to track down the chain of custody in the missing diary of Ashley Biden, the president’s daughter. Late last year, federal Judge Analisa Torres was forced to order the Department of Justice to stop the extraction and review of the contents of O’Keefe’s phone, much of which involved stories having nothing to do with the Biden diary.
“There have been many recent reports that agencies under administrations of both parties are using secret subpoenas and warrants to surveil the phone and email records of journalists,” said Gene Schaerr, PPSA general counsel. “Investigators are getting far too comfortable in fishing through the records of journalists. This practice chills free expression and threatens to criminalize customary journalistic practice.”
The Project for Privacy and Surveillance Accountability today announced the filing of a Freedom of Information Act (FOIA) request seeking records with information about any decisions, orders, or opinions issued by Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISCR), the court that reviews FISC opinions. PPSA’s FOIA also includes a request for agency records describing which government officials have access to such opinions.
PPSA directed its request to the Drug Enforcement Administration, the Federal Bureau of Investigation, and several offices within the Department of Justice – the National Security Division, the Office of Legal Policy, and the Office of Privacy and Civil Liberties.
Thanks to the Snowden revelations, we know the FISC court since 9/11 has issued secret legal opinions that have resulted in allowing the National Security Agency to engage in bulk surveillance of Americans. Many in Congress were outraged by the revelations of this domestic surveillance, which flew directly in the face of assurances made by the then-Director of National Intelligence, James Clapper, and other intelligence officials.
In response, when Congress passed the USA FREEDOM Act in 2015, it required the government to review FISC opinions for declassification. The government interpreted this as a mandate to only disclose opinions after June 2015. The government then vets any disclosures by officials in the executive branch, without judicial oversight.
“The very idea of secret law – which can affect the free expression and privacy of millions of Americans – is not compatible with the basics of American democracy,” said Gene Schaerr, PPSA general counsel. “These secret precedents and opinions are corrosive to the operations of a free society. It’s time for the government to come clean.”
Court Sets Sept. 15 for Oral Arguments in Appeal
Oral arguments in a federal lawsuit against six government agencies over their stonewalling about “unmasking” and surveillance of the 2016 presidential campaign and transition has been set for September 15.
The general counsel of the Project for Privacy and Surveillance Accountability had filed the appeal in January before the U.S. Court of Appeals for the D.C. Circuit. The lawsuit is challenging the refusal of the agencies to respond to its Freedom of Information Act (FOIA) requests seeking information on the surveillance of campaign and transition officials in the 2016 election.
The FOIA requests filed with the Department of Justice, the FBI, CIA, National Security Agency, Department of State and the Office of the Director of National Intelligence sought records regarding the unmasking and “upstreaming,” or the interception of internet communications, of people, including Members of Congress, who were affiliated with the Trump campaign and transition.
The agencies responded by issuing “Glomar” responses that refuse to confirm or deny the existence of such records.
Gene Schaerr, PPSA general counsel, who filed the appeal, said: “We ask the court to understand that judicial doctrine is being distorted into a cover-up of alarming misbehavior by the U.S. intelligence community. Americans deserve to know if our government has used its sweeping surveillance authority under the Foreign Intelligence Surveillance Act as a political weapon wielded against the campaign and presidential transition team of an opposing party.
“However you feel about the candidate in question, Donald Trump, what was done to him in 2016 can be done by an administration of either party in a future election,” Schaerr said.
Done Either to Hide an Embarrassment or to Politicize Official Actions
A record produced by the Office of the Director of National Intelligence (ODNI) in response to a 2020 Freedom of Information Act (FOIA) request by PPSA indicates that the White House in 2018 had directed the ODNI to classify an action to prevent embarrassment or stop disclosure of something official that had been done for political purposes.
This is the tantalizing glimpse into one of two heavily redacted ODNI records produced by that agency in response to a FOIA request filed by PPSA seeking documents from a wide range of agencies that contain references to Executive Order 13526. That order, issued by President Obama, was meant to streamline government classification of documents.
The action at the heart of this memo is redacted. But the fact that ODNI disclosed this record in response to a FOIA request about challenges to classification decisions strongly suggests that the action did involve classification. Under EO 13526, officials are forbidden from classifying documents to prevent embarrassment or to hide an error. The redacted, partially declassified Top Secret document sent by an investigative analyst to the Assistant Inspector General for Investigations at ODNI confirms that a confidential complaint had centered around an act intended to “prevent embarrassment and for political purposes.”
The Inspector General of the Intelligence Community decided not to conduct its own investigation, purportedly because this matter fell outside of its purview to investigate “waste, fraud and abuse.” It did refer the complaint to two ODNI offices, the Office of Civil Liberties, Privacy, and Transparency, and the Office of Analytic Integrity and Standards Group.
Civil libertarians and journalists should dig into the remaining questions: Who in the White House issued this request? What was the act itself and what was the classification meant to hide? And finally, what was the ultimate disposition of this investigation?
PPSA will report any new revelations in our inquiry.