Category: Government Secrecy

Cato Debate on Surveillance

Today brings news that the “Electronic Privacy Information Center [has] filed a request under the Freedom of Information Act for documents related to any agreement between Google and the NSA” on cybersecurity and related matters. The controversy over the request reminds me of an excellent recent debate on the digital surveillance state at Cato Unbound. Glenn Greenwald leads off by documenting an array of intrusive surveillance practices:

[T]he Bush administration . . . ordered the National Security Agency to eavesdrop on American citizens without the warrants required by law and without any external oversight at all. Despite the fact that the 30-year-old FISA law made every such act of warrantless eavesdropping a felony, “punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both,” and despite the fact that all three federal judges who ruled on the program’s legality concluded that it was illegal, there was no accountability of any kind. . . .

[Medical] “files” are maintained through a 2005 law which, the Government claims, authorizes it to monitor and record all prescription drug use by all citizens via so-called “Prescription Drug Monitoring Programs.” And there is a slew of other under-discussed surveillance programs whereby the U.S. government stores vast data on our private activities: everything from every domestic telephone call we make to “risk assessment” records based on our travel activities. A bipartisan group of Senators is currently promoting mandated “biometric ID cards” for every American as a purported solution to illegal immigration.

Paul Rosenzweig responds that there are several programs internal to federal agencies designed to protect privacy, including DHS’s “statutorily required Privacy Officer” and “Officer for Civil Rights and Civil Liberties.” Julian Sanchez insists that, regardless of these formal protections, the overall architecture of communications and data storage has enabled a quantum leap in surveillance:
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Rethinking Net Neutrality after the Verizon/Google Framework

There has been a lot of insightful commentary on the new Verizon/Google framework proposal; Marvin Ammori’s post is a good place to start. Here are my “two cents” on the larger implications of this move from business cooperation to lobbying alliance.

1) The companies’ CEOs have stated that, in their view, “A provider that offers a broadband Internet access service complying with [basic net neutrality] principles” should be able to “offer any other additional or differentiated services” free of net neutrality regulation. The key question here is the quality and cost of the “broadband Internet access service complying with [net neutrality] principles,” as compared with the “additional services” that can be offered without net neutrality. In the best case scenario, most people use the compliant service for most traffic, and run “additional services” on top of it in order to access special content/apps. Unfortunately, I think it’s far more likely that the net-neutrality-compliant service will gradually decline in quality, so that it’s vestigial (like public broadcasting) or a poor program for poor people (ala Medicaid).
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The Decline of Media Studies (and Privacy) in a Search Engine Society

I often hear statements like “I’m the top Google result for my name!” or “Kiwi is the top search result for shoe polish!” Truth is, there’s no such thing. You can know the top results that you see, and you can survey what others see, but only the search engine knows what everybody is seeing in response to a query. Evgeny Morozov worries about this trend:

There is a danger that we will become even less well-informed, as the web becomes both more personalised and more social. Concerns that the internet traps users in unchallenging information ghettos are not new, stretching back to 2001 and the US legal scholar Cass Sunstein’s book Republic.com. Sunstein argues that, when compared to older media, the internet allows users to seek out opinions and news with which they already agree, creating online news ghettos in which the views of right and left rarely mix.

What is surprising, however, is that today’s technology companies seem to use that book as a to-do-list. Google, for example, has been pushing to provide personalised search results to its users, meaning that two people searching for the same term may now get different results, altered according to what they have clicked on before. In December 2009, Google tweaked its rules in such a way that even users who are not signed into Google—thus denying the search giant access to their previous search history—will see their results personalised too. Facebook is not far behind.

Admittedly, these developments are helpful to individuals—how could anyone use Facebook without hiding Farmville? But they counsel extreme epistemological modesty for anyone who would write about the effects of search engines on the public sphere. Alex Halavais notes in his book Search Engine Society that, “[i]n the process of ranking results, search engines effectively create winners and losers on the web as a whole.” But we have little idea who exactly those winners and losers are at the level of granularity that search engines can operate at.
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Go FOIA yourself…you might be surprised

I have a love/hate relationship with FOIA. I need it and can’t live without it. For those who do original primary research, it’s an essential tool. But it is also painfully slow, hit or miss, unpredictable, and frustrating.

It also turns out that FOIA research may make you the subject of FBI scrutiny. The FBI approaches disclosure of information (predictably) like a security agency.

Author and attorney Alexander Charns wrote a very interesting book entitled Cloak and Gavel (1992), which concerned the history of the Supreme Court and its interactions with the FBI. Pursuant to one of his FOIA requests seeking historical records about Hoover abuses of power, the FBI inadvertently released to him an internal FBI memorandum that described him, his research, and the type of information he was provided.  Apparently, such memoranda on FOIA requesters are not uncommon. They are called “high visibility memoranda” and are created by the FBI FOIA section to “anticipate and minimize negative publicity resulting from FOIA releases.” A former student who recently worked with FOIA shared that she too was aware of similar memoranda maintained by the government. Apparently this practice continues.

Laying aside any question about the FBI’s authority to prepare such memoranda (perhaps based on Google research or other Internet-based information), does the FBI appreciate how the maintenance of memoranda about FOIA requesters plays with the public? I won’t hold out great hopes for more information transparency from the Obama administration, but perhaps it could at least get the FBI to lay off on the domestic FOIA surveillance?

Update (3-29-2010): This article just ran today in the Boston Globe’s online edition on the subject of the FBI, the release of documents held in the FBI’s “Special File Room,” and their availability through a volunteer group called governmentattic.org. H/T Michael Ravnitzky

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What Do We Gain From Transparency? Or Metrics for Open Government

The folks at CITP and many others are quite excited about open government. One specific project, RECAP, looks to open access to court cases. The briefs and opinions of federal courts would be available to the public. Although I tend to laud this effort, I have also started to press on exactly why such access is a good thing. The standard techno-libertarian more information is a good thing model is most unsatisfying and does not provide enough guidance for my taste. I tend to agree that increased access to knowledge can have beneficial effects and that openness is a solid guiding star in many areas of policy. Still, once one gets into a specific context, I fear that the general assertions fall short. The recent open government conference that CITP hosted at Princeton lead me to try and state why access to court documents is desired. Here are the three goals that I think capture the reasons to support the idea.

1. Insofar as ignorance of the law is no defense, one needs access to the the law as rules. Providing the public with free access to court documents, especially opinions, allows the public to have the potential to investigate, understand, use, and challenge the law as it may see fit.

2. Another area that I believe few, if any, have offered, is that in addition to knowing the law, one needs to know how to use it. In other words, one needs to know how the law works. As law students and young associates quickly discover, the format and style in which one presents a legal argument matters. Providing access to briefs fulfills an instructional role. Lawyers do not re-invent wheels. They borrow briefs and exemplars from colleagues and now can even get briefs for some cases off of Westlaw. As a general matter, improving writing entails reading good writing. In addition, pro se and really anyone appearing before a court, can benefit from seeing how others argued a point. In addition, details such as how to organize a brief, state jurisdiction, and matter. My guess is that the more a brief looks professional, the more credence it is given. Thus, a second reason to open access to court documents is to provide the public with the tools it needs understand how the courts work and to use the law.

3. Open access to court documents also permits the public to take on a watchdog function. When anyone uses the system, as they are allowed to do, to bring several suits (e.g., file sharing suits), or use the system to push around smaller competitors, or use the system to pester large corporations with frivolous or greenmail suits, or any other practice that may be suspect, open access to court documents would enable the public to police the system. More obviously, such access would reduce the potential for corruption in the courts as well.

There are, of course, potential downsides to opening access to court documents. Privacy problems loom large. The practical obscurity that perhaps balanced the watchdog aspect with privacy problems would diminish if not vanish. Thus, I offer the above metrics in part to argue that one might be able to achieve the goals without sacrificing privacy. In short, completely full access to court documents that starts to harm privacy does not seem necessary to achieve the goals set forth above. Yet, it seems that if we have a system that hampers the public’s ability to engage with the court system on these three levels, we seem to have an impoverished idea of what access to the court means and the power it could have.

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The SeaWorld Killer Whale Death Video and the Right to Privacy

Jessica Bennett at Newsweek brought my attention to a story about the family of the killer whale trainer (Dawn Brancheau) who was killed while training the whale at SeaWorld:

Brancheau’s family announced this week that they would seek an injunction to protect the release of the death imagery, captured by SeaWorld’s surveillance cameras on Feb. 24. And though the video has not yet been publicly released, it’s presently in the hands of the Florida Orange County Sheriff’s Office, which is investigating the woman’s death.

According to FoxNews:

The Orange County Sheriff’s Office, who now has the video, has received several calls from sources trying to obtain copies of the video, the Orlando Sentinel reported.Once the Orange County Sheriff’s Office concludes its investigation, the material would become public under Florida law. . . .

Brancheau’s family said through a spokesman that public airing of the killing would only worsen their grief.They could seek a court injunction to stop the release, at least temporarily. The family has been consulting the lawyer who represented Dale Earnhardt’s widow in a court fight over his autopsy photos.

I believe that the Brancheau family has a good case.  They want to prevent the sad events that happened to the family of Nikki Catsouras, whose gruesome accident death photos started appearing all over the Internet.  In that case, the court held that the family could bring common law privacy claims against the police department for improperly leaking the photographs.

In this instance, the video might be required to be disclosed by public records law, so tort privacy claims would likely not be available against the government if they conflicted with state disclosure obligations or against others who disseminated the video post-disclosure (due to First Amendment protection).

Thus, the family’s redress could come in two possible forms: (1) a provision of the public record law that would not allow for the disclosure of the video; or (2) a constitutional right to information privacy challenge.

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Open Government Update: GPO and CITP’s FedThread Project

The Federal Register has moved to an XML format. That has allowed Princeton’s Center For Information Technology Policy to be on the move once more. The new project is called FedThread. As the site puts it now that the Federal Register is in XML, “citizens [can] create new services that in turn provide value back to government. Kudos to the Government Printing Office, National Archives and Records Administration, and Office of Science and Technology Policy for making this all possible.”

What does this mean for the public? Through FedThread people can more easily track issues regarding “rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents” as they are posted to the Federal Register website (weekdays except for government holidays). So today’s documents include material about the Delaware River Basin Commission, Department of Education, Federal Communication Commission, Department of Health and Human Services, and the National Science Foundation proceedings. Actions regarding postesecondary education, rulemaking at the FCC, and pandemic influenza vaccines are apparently on the table. Go to this link for today’s full list.

In other words, rejoice, wonk and non-wonk, for you may can now see what your government is doing. In fact FedThread offers some rather great features including:

* collaborative annotation: Attach a note to any paragraph of the Federal Register; start a conversation.
* advanced search: Search the Federal Register (back to 2000) on full text, by date, agency, and other fields.
* customized feeds: Turn any search into an RSS or email feed, which will send you any new items that match the search query.

As I understand it, one can set up a search and receive updates about the topic. Policy makers, academics, and engaged citizens should take advantage of these features. It should allow one to see how the law is evolving and take action much more quickly than before.

One point for those who may confuse making a note with a comment. FedThread is not affiliated with the U.S. government. Notes appear on the FedThread site but are not part of the Federal Register. Formal comments must follow the proper procedures related to commenting on whatever particular topic upon which one wishes to comment. In addition, the notes are just that, notes of those who wnat to share their views about a topic. It should open debate and discussion, but as with many areas of the Web, one will have to sort between useful and irrelevant notes.

I am sure I will learn more from my colleagues here at CITP as the project moves forward. For now, I hope people enjoy the offering.

For those interested in “some of the driving principles behind the project,” this paper Government Data and the Invisible Hand is a good place to start. Last, I want to call out the people involved in building this project. Joe Calandrino, Ari Feldman, Harlan Yu, and Bill Zeller developed it. Calvin Lee at Princeton’s Student Design Agency handled the graphic design. Prof. Ed Felten and Stephen Schultze led the project. You can contact FedThread at info@fedthread.org.

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The Public and Private Goods Produced By Litigation

Eugene Volokh (among many others) recently posted the opinions in Klein v. Amtrak, the now famous EDPA unpublication case involving a settlement that led to the vacating of eight defense-unfriendly district court opinions.  Although commentators across the web seemed surprised, in my experience the practice of asking a judge to vacate an opinion that produced a settlement is fairly common – this particular instance is only a small variant on the ordinary case.  But Klein provides the opportunity to reflect on some of the unexpected benefits that we get from our ridiculous court system.

The obvious one is that judicial opinions are the public good that the parties prompt society to buy.  The price we would pay for any kind of litigation reform would be fewer public decisions, and thus more uncertainty of the kind that unpublication like Klein promotes. The Third Circuit in particular was known for years for having very thin law  – indeed, the late Chief Judge Eddie Becker of the Circuit famously led a one-man crusade against the dearth of law by writing copious dicta.  The certainty that we get from having opinions strongly suggests that we should resist private attempts to keep the law secret – and should be similarly skeptical of the courts’ unwillingness to free PACER. Here, it appears merely that Judge Stengel asked WL and LEXIS to remove his opinions from his databases.  Thus, like 80% of all substantive orders, they are on the docket, but aren’t available to the general public.

There’s an additional private benefit that accompanies litigation which is less illuminated by Klein: the parties get to communicate with one another.  Given a regulatory regime that prohibits competitor contact, litigation can be the best way for companies to talk to one another (through discovery and signalling about which positions to take).  That litigation-mediated-communication is one reason why some companies might prefer to continue to fight in the public system, rather than in commercial arbitration, where their ability to get discovery may be limited.  Again, this isn’t to say that all lawsuits are worth the time and expense that the public invests in settling them, but it does suggest that litigation reform needs to account for these substantial litigation spillovers.

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CJRA Records Before 1998?

Though open government is a priority of the administration, the court system is taking a decidedly different, slower, path.  Here’s one example.  I’d like to collect the CJRA Reports from the Southern District of New York from 1992-1998, when Judge Sotomayor was sitting on that bench. Those Reports would tell us how many motions “pending” Judge Sotomayor had at six month intervals — i.e., how efficient & quick she was in dispensing justice.  Unlike reversal rates, measures of activism based on hierarchical standards,  and citation studies, CJRA motion  statistics would shed light on Judge Sotomayor’s time as a district court judge, and also have the virtue of being easy to translate for the public.  Some judges allow motions to sit on their dockets. Others don’t.  (Discounting for the first year or two on the bench, as many new judges are given a biased set of cases by their colleagues – the dogs of the other judges’ dockets.)

Unfortunately, PACER records CJRA information from 1998 onward, and I can’t seem to figure out where (online or off) the old reports are housed.

Any ideas?

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Terrorist Watchlist, Troubling Flaws Revealed

Last week, I wrote about how crude algorithms in the name-matching “No Fly” system produce an outsize number of false positives as a matter of deliberate policy.  We are willing to tolerate additional delays so that we can stop terrorists from flying.  Yesterday, the DOJ’s Office of the Inspector General issued a report that seriously calls into question the bargain that we have struck with regard to the “No Fly” system.  The report explains that the FBI (the agency amassing the list that is then matched to travelers’ names) has incorrectly kept 24,000 names on the terrorist watch list on the basis of outdated and irrelevant information, while “missing people with genuine ties to terrorism who s120px-021101-n-0780f-0041hould have been on the list.”  According to the report, these mistakes not only posed a risk to national security due to the failure to flag actual terrorist suspects, but also created unnecessary delays and detentions for innocent travelers.  A fact of great concern: the Inspector General sampled 216 FBI terrorism investigations and found that in 15% of them, a total of 35 subjects were not referred to the list even though they should have been.

During a talk that I gave last week for Princeton University’s Center on Information Technology Policy, Ed Felten (who served on TSA’s Secure Flight Study Group where he studied the No-Fly mechanism) explained that there are two aspects to the no-fly list, one that puts names on the list and the other that checks airline reservations against the list.  The two parts operate separately from each other.  The FBI heads up the first part, putting names on the list through a secret process that seemingly requires that people on the list be a sufficiently serious threat to aviation security.  The other part is the one that I wrote about last week: a data-matching system that checks travelers’ names against the list.  Because the matching algorithm requires only an approximate match (because flight reservations so often have misspelled names), we have many false positives so that we can sweep within the system the right match, i.e., the terrorist suspect, along with many innocent others.

So here is the rub: we are willing to live with so many false positives because we trust those amassing the list to ensure that it is accurate and complete.  In other words, it worth all of those false positives if indeed they serve the greater good.  Yes, we will endure the delay and perhaps inability to fly if indeed our names are akin to someone’s who is correctly suspected to be a terrorist.  But preventing innocent individuals from flying, or subjecting them to questioning, based on matches with other innocent people’s names while failing to do enough homework so that you let real terrorist subjects board airplanes with no hassle?  Really?  This report suggests reconsidering having a “No Fly” system in its current form at all.

Thanks to Wikimedia Commons for the picture