March 14, 2005 | Freedom of Information Actions

It's spring out here in San Francisco, and that makes it a good time for Sunshine Week, an effort by the American Society of Newspaper Editors to bring attention to Freedom of Information laws and problems.

SSN pal Noah Shachtman of Defense Tech fame has a good round-up post to introduce you to the project.

There's also a good AP story by Martha Mendoza story about Seth Rosenfeld, an outstanding investigative reporter for the San Francisco Chronicle (yes, they have a few good reporters, including the ever-entertaining Steve Rubenstein). Rosenfeld's claim to fame besides his great, recent work on Hoover's FBI involvement in trying to crush the Free Speech movement at the University of California, Berkeley (see this post), is that he is the author of the longest pending Freedom of Information Act request.

He's still waiting for the FBI to turn over documents he first requested in 1981.

Five judges have already ordered the documents released (he's gotten a lot of them, but not all of them).

I know a little of Rosenfeld's pain. I love the Freedom of Information Act in theory, and though I have no institutional support (read no lawyer), I often try to get information from the government using FOIAs. Mostly, I've had little luck, though many FOIA officers do try their best.

On July 8 2003, I asked DARPA -- the research arm of the Pentagon known for creating both ARPANET (one of the precursors to the Internet) and the Total Information Awareness system.

I had found that the Total Information Awareness program was looking to hire a company to provide TIA with a fake world of information -- a world of records of persons buying things, calling each other, emailing, going to the doctor and joining organizations. The idea was to create a testbed world that would test whether TIA could actually pick out the hints of a terrorist plot within a whirlwind world of data.

I actually thought the idea was pretty cool and was interested in how big the world was and what activities were included. I later found references to this testbed in interviews with Admiral John Poindexter, who originally headed up the program until he was ousted under pressure in August 2003.

Poindexter referred to the testbed as "Vanilla World."

I asked for contracts, for all documents related to the testing of TIA components and for assessments of the efficacy of TIA, among other things.

I got nothing and nothing and nothing.

Finally, I began bugging the fine people in the DoD's FOIA office, who began pressuring DARPA to search for records.

DARPA's response was to impugn my journalism and stonewall.

Finally, 18 months after I first requested documents, DARPA provided me with three documents.

One was a copy of DARPA's report to Congress in 2003 on the Total Information Awareness program. That public document came out in May 20, 2003 and my story on it for Wired News is here.

That report used to be on DARPA's website, but it has since removed the page. Find it here (.pdf) at GlobalSecurity.org.

The second document was a three-page boilerplate explanation of the Information Science and Technology Study Group (ISAT), a group established in 1987 to provide DARPA with an "independent assessment of the state of advanced information science and technology as it relates to DoD issues."

That group produced the third document I got: Security with Privacy : ISAT 2002 Study. The group concluded that the key technologies to introducing a base level of privacy into a data-mining system involves selective revelation (e.g. your data mining program might tell you it found some potential bad guys but you need to get your supervisor or a judge's permission to see the person's name), strong auditing procedures and some privacy rules.

Oh yeah, and this document (.pdf) was originally turned over to the Electronic Privacy Information Center on December 17, 2002, in response to their FOIA and lawsuit. (Find all their TIA FOIA documents here.)

This is what DARPA claims to be the extent of their records on the testing of Total Information Awareness, despite a statement in the report to Congress that it had tested part of TIA on information gleaned from Guantanamo Bay interrogations.

I guess that means that DARPA researchers never wrote a report about testing, never emailed one another about their tests, and never held a meeting that involved anyone taking notes or sending out an email to schedule the meeting.

Which would mean that Total Information Awareness had no information awareness about its own system.

Of course, that's an absurd notion.

DARPA is simply acting in bad faith and abusing the Freedom of Information Act. So now I have to sue them to get them to act in accordance with law.

But there's no penalty really for their actions. If I sue and win, my attorneys-to-be-named-later would get legal fees. If I sue them myself and win, I get no fees for my troubles. No one there gets a reprimand, no one goes down a pay rank -- instead, its far more likely, that person gets a pat on the back for defending their agency from the press and the public.

Unfortunately, this is all to common.

Lee Tien of the Electronic Frontier Foundation has tried to disabuse me of the notion that FOIAs have any force. Instead, Lee has told me over and over, you have to treat FOIAs simply as notice of intent to sue.

Honestly, I hate that notion. I'm a proceduralist and a believer in fairness. I truly do hope and believe that government employees strive to follow the law and act in the public interest. Yeah, I know that's very "Mr. Smith Goes to Washington," but I like to try to keep my cynicism at a minimum.

Thankfully, there's some new legislation (S. 394, known as the OPEN Government Act (.pdf)) introduced by Senators John Cornyn (R-Texas) and Patrick Leahy (D-Vermont) that would speed up the processing of FOIAs and even penalize agencies for not moving fast enough. The bill's other merits include allowing bloggers and writers for smaller Internet publications to get fee waivers and creating an Office of Government Information Services that would audit agencies compliance with FOIA procedures.

Even better, that office would offer an arbitration service requesters could use, instead of getting a lawyer and going to court, to force agencies to release documents or to contest overly broad use of exemptions.

That would be a nice alternative to finding a lawyer to sue the cynical, self-interested folks (and she knows who she is) at DARPA who pretend to follow the law, but do not.

(All that kvetching aside, I also just got this very morning some cool DVDs via an unrelated FOIA request from the Department of the Interior. If there's anything cool in there, I'll post it here.)

Posted by Ryan Singel at March 14, 2005 10:52 AM

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