< Fighting for Information from DHS


Friday, December 06, 2013

BOB GARFIELD:  Back in 2011, authorities in San Francisco shut down cell phone service in the vicinity of subway stations, following demonstrations there over a police shooting. Authorities had learned that protesters were planning to coordinate another wave of demonstrations using the Internet and text messages. It was the first documented use by American authorities of the so-called “Internet kill switch,” drawing comparisons to Hosni Mubarak's response to demonstrators in Egypt Tahrir Square earlier that same year.


Questions arose as to how and when the government can do this and under whose authority, questions that soon may be answered, thanks to the Electronic Privacy Information Center, or EPIC, which filed a lawsuit demanding that the notoriously opaque Department of Homeland Security release documents explaining the policy over the Internet kill switch. EPIC’s Julia Horwitz says that while investigating the kill switch, the group found reference in government documents to Homeland Security and something called Standard Operating Procedure 303. So they filed a freedom of information request to learn more about that.

JULIA HORWITZ:  We had an initial response which was simply, we've received your request, thank you. And then we received a more substantive response that said the DHS had conducted a search and that there were no responsive records, effectively telling us that they didn't have anything in their system that was related to SOP 303. And we thought that sounded not right.

BOB GARFIELD:  Because [LAUGHS] you had seen reference in other federal records to this very set of documents, so you were pretty sure that they existed. When you file a, a lawsuit to get a FOIA response that is otherwise not forthcoming, I understand there is a – you know, a limited number of grounds for filing that suit. Which one did you use?

JULIA HORWITZ:  We used insufficiency of search, which means the agency did not look for the documents in a manner that is lawful, according to the FOIA.

BOB GARFIELD:  Is there a category for they’re lying, they know they have it and they’re not passing it along, for reasons best known to them?

JULIA HORWITZ:  That’s sort of encompassed in insufficiency of search, but there's no lying provision in the FOIA. So we filed suit, and with the first big brief that the government needed to turn in, they decided also to respond to our FOIA appeal. The  response was a hugely redacted version of SOP 303, and it was accompanied by this letter that said, on your suggestion, we did another search for records related to SOP 303 and ta-da, it turns out we have them. However, due to these exemptions that we're asserting, almost all of it is blacked out.

BOB GARFIELD:  [LAUGHS] Okay. And then, if I understand it correctly, they also went to the court and said, since we've complied with the request, can we just have this case thrown out?

JULIA HORWITZ:  And so, we said, no, giving us pages of blacked- out documents doesn't mean that the agency has meaningfully responded to our request.


We'd like to continue to pursue this case in court. And then in November, just a couple of weeks ago, we got this opinion from the court that said, nope, EPIC was right all along. All of that blacked-out information does not mean that the agency responded to the request.

BOB GARFIELD:  So when you get a document back that is almost entirely redacted, how do you demonstrate to a court that you had the right to what you can't see?

JULIA HORWITZ:  The burden is on the agency to demonstrate that information shouldn't be public. The thing that we have to convince the court is that the agency didn't prove to us that it had the right to redact as much information as it did.

BOB GARFIELD:  So the court agreed with you, and they said that DHS must comply with your request. Where does that stand?

JULIA HORWITZ:  The court decided to give the government 30 days to prepare an appeal, if it wanted to, but then the agency has to disclose SOP 303. We’re waiting for the clock to run on that little grace period and, after that, we anticipate having a sheaf of documents that explain every detail about this operating procedure.

BOB GARFIELD:  Now, on the show we’ve done quite a bit of reporting about just how maddeningly opaque DHS can be and how unresponsive it can be to requests for what would seem, on the face of it, routine information. I wonder if that's your experience, as well, relative to the other government agencies that EPIC does business with or tries [LAUGHS] to do business with?

JULIA HORWITZ:  Generally, our experience has been that when we submit a FOIA request to DHS, we don’t get a response. And when we submit an appeal before filing a lawsuit, we still don't get a response. So typically, our interactions with DHS have been FOIA lawsuits.

BOB GARFIELD:  And if there is a pattern of noncompliance, is there any way to go beyond the particulars of a single request and have the courts compel the agency to pull back the curtain, to do what the law provides, instead of systematically obstructing the public from getting the information to which it’s entitled?

JULIA HORWITZ:  The courts can say, in individual cases, I wish that you would do better but there's no sort of mechanism for the court to be able to say that broadly. But Congress can put pressure on the agencies to do a better job.

BOB GARFIELD:  Just curious, have you ever submitted - as an organization, submitted a FOIA request and gotten what you were asking for in the time the law allots?

JULIA HORWITZ:  No, we have not, not at DHS.

BOB GARFIELD:  Uh, Julia, thank you very much.

JULIA HORWITZ:  Thank you.

BOB GARFIELD:  Julia Horwitz is coordinator of the Open Government Program for the Electronic Privacy Information Center.

t;line-height:200%;font-family: "Courier New"'>  Alan Rusbridger is editor of The Guardian



Julia Horwitz

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