Freedom of Information Act Rundown: Stingray Surveillance and FERPA abuse
CJ Ciaramella
June 9, 2014
This post is adapted from CJ Ciaramella's weekly FOIA newsletter, which you can subscribe to here.
STINGRAYS
Last week I mentioned a new, crowd-funded project by MuckRock to collect nationwide data on law enforcement surveillance of cell phones, particularly the use of "stingray" tracking technology. The stingray tech mimics cell phone towers, allowing police to log all devices within range and even tap into calls. Are law enforcement orgs abusing the technology? Well, we don't know yet, and the feds aren't making it any easier.
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On Tuesday, the ACLU filed an emergency motion to preserve records after the U.S. Marshals Service seized documents on stingray tech from local Florida police in Sarasota, just hours before the documents were due to be released in response to a FOIA request.
Reason reports: "According to the ACLU, 'a few hours before that appointment, an assistant city attorney sent an email canceling the meeting on the basis that the U.S. Marshals Service was claiming the records as their own and instructing the local cops not to release them. Their explanation: the Marshals Service had deputized the local officer, and therefore the records were actually the property of the federal government.'
"The feds then physically removed the records to an unknown location. ACLU officials soon found that the records were also no longer in the possession of the county court which had authorized use of the technology, nor are there any docket entries acknowledging their existence, even though the law requires that such information be kept. The feds apparently made a clean sweep of the information sought by the civil liberties group."
Meanwhile, the Wall Street Journal reports on the rise in sealed court orders for electronic surveillance: "Across the U.S., thousands of similar law-enforcement requests for electronic monitoring are likewise locked away from public view, even after the investigations that spawned them have ended. In most cases, they stay sealed indefinitely—unlike nearly all other aspects of American judicial proceedings."
"Requests for location data on phones and vehicles, in particular, increased in the federal courts that provided long-term data. In one of the busiest districts, the Southern District of Florida, requests for cellphone location data and other electronic tracking more than quadrupled in the past decade, according to a Journal analysis."
Shawn Musgrave at MuckRock has submitted new FOIA requests in response to the seizure, which I'm sure will be promptly processed and reveal nothing suspicious.
LAWSUITS
FBI investigated Michael Hastings' reporting on Bergdahl: VICE has the scoop on how the FBI's investigation into Taliban captive Bowe Bergdahl—you might have heard his name in the news this week—included Rolling Stone reporter Michael Hastings' in-depth report, which the FBI labeled "controversial." The heavily redacted files were released after a protracted legal battle by investigative journalist Jason Leopold and MIT grad student Ryan Shapiro. "The FBI file—as well as a Department of Justice document released in response to Leopold and Shapiro’s lawsuit — suggests that Hastings and Farwell’s reporting got swept up into an 'international terrorist investigation' into Bergdahl’s disappearance," VICE writes.
Shield Law: Following the Supreme Court's denial of certiorari to NYT reporter James Risen, press organizations have started the push to get a federal shield law bill to the floor of the Senate. My report over at the Free Beacon.
DOJ reports FOIA backlog reduction: This week the Department of Justice's Office of Information Policy released a Most Excellent and Tragic History of Improving Timeliness and Reducing FOIA Backlogs, Part the Fifth:
"With regard to request backlogs, fifty-five agencies reported that they were either able to reduce the number of requests in their backlog at the end of Fiscal Year 2013 or they had no backlog to reduce. Additionally, four agencies reported no change in their request backlog, and twelve agencies reported a slight increase of up to five backlogged requests. Twenty-eight agencies experienced a backlog increase of more than five requests. Notably, however, seventy-three agencies were able to maintain a small request backlog of 100 requests or less, with twenty-nine of these agencies reporting no backlog at all."
Or, as USA Today's Brad Heath summed it up: "Nation's top law enforcement agency boasts government is closer than ever to complying with the law."
Last week, I shared a bizarre letter to the Electronic Privacy Information Center (EPIC) from the TSA trying to close out a four-year-old FOIA request with no explanation. As EPIC's Ginger McCall noted, the TSA may be trying to game its FOIA backlogs. I haven't had time to dig through the numbers yet, but if anyone finds any funny business, please do email me.
FOIA Modernization: The website for the FOIA Advisory Committee is up, and its first meeting is scheduled for June 24.
Shame on the University of Oregon: Last week I highlighted a particularly ham-fisted set of redactions by the University of Oregon on records regarding alleged sexual assaults by three of its basketball players. Now the Register-Guard reports that one of the redacted documents was an email from Eugene city mayor Kitty Piercy. Here's the email from a public official that the U of O deemed exempt from disclosure:
“There can be no circumstance when an intoxicated female is actually giving consent for what equates to gang rape. I worry that the girl is not getting the support she needs. She is being judged by everyone. I worry about the expected and unacceptable behaviors of all students in this matter, and particularly young males who can feel they are in an alter universe. I worry about all their lives."
The U of O administration claims it could not release the email because it referred to the student victim, and is therefore exempt under the Family Education Rights and Privacy Act (FERPA), a federal law which protects students' education records from release.
However, universities often use comically broad definitions of the law to block release of public records. As R-G reporter Josephine Woolington notes, the Society of Professional Journalists has said that FERPA “has been twisted beyond recognition, keeping school lunch menus, graduation honors and athletic travel records secret." Even the original sponsor of the law, former U.S. Senator James Buckley, says the law needs to be revisited. The Student Press Law Center runs a blog, FERPA Fact, which highlights asinine applications of the law by universities.
Redaction of the Week: Courtesy of reporter Kate Martin, a helpful response to a request for phone records.
STATE NEWS:
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