Even when the Central Intelligence Agency possesses a releasable document in a softcopy format, the Agency typically refuses to release the softcopy version in response to Freedom of Information Act requests, and insists on providing a hardcopy version of the document instead.

A federal judge said last week that that may be a violation of law.

The issue arose in a FOIA lawsuit seeking electronic copies of 419 articles from the in-house CIA journal Studies in Intelligence. The lawsuit was brought by Jeffrey Scudder, an information technology specialist who has worked in the intelligence community for 23 years.

Mr. Scudder told the court that he has detailed knowledge of CIA information systems and capabilities. In his FOIA requests, he was able to inform the CIA FOIA staff “as to where within the [CIA] computer systems the electronically stored documents [that he is requesting] are located.”

However, CIA refused to release the documents in the requested electronic format. Instead, the Agency proposed to print them out and to release them only in hard copy, ostensibly for security reasons. But this practice may be inconsistent with the requirements of the FOIA.

“Congress anticipated that recalcitrant agencies would resist being responsive to requesters’ format choices,” wrote Judge Beryl A. Howell of the DC District Court last week, and so Congress required agencies to make “reasonable efforts” to accommodate requesters’ preferences.

“Where, as here, an agency asserts nearly twenty years after the passage of the E-FOIA Amendments that it cannot provide any electronic formats because of a lengthy process the agency has created, a court is required by the FOIA to evaluate that process to determine if it meets the statutorily mandated ‘reasonable efforts’ standard.”

“The defendant [CIA] avers that if it were ordered to honor the plaintiff’s [FOIA] request [for soft copy records], it would have to print the existing electronic documents to paper and then rescan them into electronic documents so that they may be reproduced and released on removable media,” Judge Howell summarized.

In fact, she wrote in her March 12 opinion, “Under this Rube-Goldbergian process, the same document, even if unclassified, must be printed from the defendant’s classified system in paper form at least twice…, and rescanned into the same classified system at least twice….”

Not only that, but CIA would charge the requester extra for its trouble. “As a result of this process, the defendant [CIA] asserts that the cost of electronic production to the plaintiff would be higher than that of producing the records in paper format, since the defendant would incur all of the costs associated with the paper production as well as the additional costs of re-scanning the printed responsive records, and the cost of any removable media provided to the plaintiff.”

But all of that is ridiculous, said Mr. Scudder, who contended that CIA is attempting to “frustrate [the] core purpose [of the FOIA] through administrative gimmicks designed to impose unreasonable financial burdens upon requesters.”

“The only reason CIA does not produce electronic versions of documents responsive to FOIA requests is that they choose not to do so,” said attorney Mark S. Zaid, who represents Mr. Scudder. “There is no technical reason to prevent it.”

Crucially, Judge Howell determined that “A FOIA request for records in an existing format should not be frustrated due to the agency’s decision to adopt a production process that nonetheless renders release in that format highly burdensome.”

Judge Howell found that CIA’s understanding of its legal obligations and of the role of the Court was “incorrect” in various respects, and she concluded that several of its factual assertions were materially disputed.

“The plaintiff [Mr. Scudder] has, for example, alleged that he has personally used the defendant’s classified system to create a PDF file, something the defendant has stated is impossible,” Judge Howell noted.

In view of the unresolved factual disputes, and considering that “both parties allege bad faith on the part of the other,” Judge Howell refused to grant summary judgment to either side.

Instead, she granted Mr. Scudder’s motion for discovery, and the case will proceed to trial.

While the substance of the case concerns CIA’s information and FOIA practices, the Department of Justice that made its own independent decision to defend CIA’s handling of the Scudder FOIA request.  The skeptical comments voiced by Judge Howell may be understood as an implicit criticism of that Justice Department decision.

This week is Sunshine Week, an annual celebration of open government values. As it happens, however, the federal government is closed today due to snow.

Digitally-based virtual worlds and online games such as Second Life and World of Warcraft represent a qualitatively new phenomenon that could have profound impacts on culture, politics and national security, according to a newly disclosed report  (large pdf) prepared in 2008 for the Office of the Director of National Intelligence.

“This technology has the potential to be an agent for transformational change in our society, our economy, and our efforts to safeguard the homeland,” the report stated. “If virtual world technology enters the mainstream, criminals and US adversaries will find a way to exploit this technology for illegal and errant behavior.”

The study was conducted as part of the 2008 ODNI SHARP (Summer Hard Problem) program and was just released under the Freedom of Information Act in redacted (and partially illegible) form. Though sponsored by ODNI, it was prepared by a mix of governmental and non-governmental authors and does not necessarily represent the views of the U.S. intelligence community. See “3D Cyberspace Spillover: Where Virtual Worlds Get Real,” July 2008.

Around the same time (2007-2009), U.S. intelligence personnel were actually exploring online games and gathering information on their users, according to classified documents released by Edward Snowden and reported in the New York Times last month.  See “Spies Infiltrate a Fantasy Realm of Online Games” by Mark Mazzetti and Justin Elliott, New York Times, December 9, 2013.

The authors of the ODNI-sponsored report acknowledged that the empirical basis for their inquiry was thin.

“Much of the information in the public domain about the alleged terrorist exploitation of virtual worlds has been speculative rather than based upon substantive evidence. Although there is reliable information available concerning extremist and terrorist exploitation of the internet, for example Web 1.0, the same cannot be said of virtual world or Web 2.0.”

“As of this report, there is little evidence that militant Islamist and jihadist groups have begun extensively exploiting the opportunities presented by virtual worlds.”

“However, given that the more sophisticated groups of this type, including al-Qa’ida, have exploited the internet in very refined ways, they will likely soon seek to exploit newer virtual world technologies for recruiting, raising and transferring funds, training new recruits, conducting reconnaissance and surveillance, and planning attacks by using virtual representations of prospective targets.”

Fancifully, the authors envision the creation of a virtual Usama bin Ladin carrying out his mission for centuries to come.

“Imagine that jihadist supporters create a detailed avatar of Usama bin Ladin and use his many voice recordings to animate the avatar for up-close virtual reality experiences that could be used to preach, convert, recruit, and propagate dogma to the media.”

“The Bin Ladin avatar could preach and issue new fatwas for hundreds of years to come, as the fidelity of his likeness would be entirely believable and animated in new ways to keep him current and fresh.” (p. 72)

The report includes various incidental observations of interest. It notes, for example, that “In many ways, South Korea is the world leader in adopting new technologies” including online games.

But it also reaches far afield, including references to Barbie Girls (“a quickly growing virtual world,” though now closed) and Club Penguin (“over 12 million active users,” now over 200 million, but most of whom are probably under ten years old) (p. 82).

“The growing number of global users, in conjunction with ongoing technological changes, will likely increase the difficulty that the Intelligence Community (IC) will encounter in its efforts to monitor the virtual realm,” said the study, which was classified at the Confidential level. “Accordingly, outreach programs that enlist users as educated observers and reporters will be required to survey current and emerging systems more effectively.”

DC District Judge Ellen Segal Huvelle yesterday ordered the Obama Administration to release a copy of an unclassified presidential directive, and she said the attempt to withhold it represented an improper exercise of “secret law.”

The Obama White House has a “limitless” view of its authority to withhold presidential communications from the public, she wrote, but that view is wrong.

“The government appears to adopt the cavalier attitude that the President should be permitted to convey orders throughout the Executive Branch without public oversight– to engage in what is in effect governance by ‘secret law’,” Judge Huvelle wrote in her December 17 opinion.

“The Court finds equally troubling the government’s complementary suggestion that ‘effective’ governance requires that a President’s substantive and non-classified directives to Executive Branch agencies remain concealed from public scrutiny,” she wrote.

Judge Huvelle ordered the Administration to provide the directive to the non-profit Center for Effective Government, which had filed suit under the Freedom of Information Act for its release.

The directive in question, Presidential Policy Directive (PPD) 6, “is a widely-publicized, non-classified Presidential Policy Directive on issues of foreign aid and development that has been distributed broadly within the Executive Branch and used by recipient agencies to guide decision-making,” the Judge noted. “Even though issued as a directive, the PPD-6 carries the force of law as policy guidance to be implemented by recipient agencies, and it is the functional equivalent of an Executive Order.”

“Never before has a court had to consider whether the [presidential communications] privilege protects from disclosure under FOIA a final, non-classified, presidential directive.”

The Center for Effective Government had argued that “PPD-6 is not protected by the presidential communications privilege because it was not made in the course of making decisions, but instead is the final decision itself….”

In response, the government contended that PPD-6 “is protected by the privilege because, regardless of how widely the document has been distributed within the Executive Branch, it originated with the President….”

Significantly, Judge Huvelle insisted on examining the document herself in camera instead of simply relying on the Administration’s characterization of the document.  Having done so, she found that it “is not ‘revelatory of the President’s deliberations’ such that its public disclosure would undermine future decision-making.”

She criticized the government for “the unbounded nature” of its claim. “In the government’s view, it can shield from disclosure under FOIA any presidential communication, even those — like the PPD-6 — that carry the force of law, simply because the communication originated with the President…. The Court rejects the government’s limitless approach….”

Several significant points emerge from this episode.

First, President Obama’s declared commitment to “creating an unprecedented level of openness in Government” has not been internalized even by the President’s own staff. This latest case of “unbounded” secrecy cannot be blamed on the CIA or an overzealous Justice Department attorney. It is entirely an Obama White House production, based on a White House policy choice.

Second, and relatedly, it has proved to be an error to expect the executive branch to unilaterally impose transparency on itself. To do so is to ignore, or to wish away, the Administration’s own conflicting interests in secrecy and disclosure.  Instead, it is the role of the other branches of government to check the executive and to compel appropriate disclosure.

But that does not happen spontaneously either. In this case, it required a Freedom of Information Act lawsuit to be brought by the Center for Effective Government, which was superbly represented by attorneys Julie Murray and Adina Rosenbaum of Public Citizen.

An official Fact Sheet on PPD-6 (which has not yet been released) is available here.

The Electronic Privacy Information Center is currently pursuing release of another presidential directive, the Bush Administration’s NSPD-54 on cyber security. In October, Judge Beryl Howell unexpectedly ruled that that directive was exempt from disclosure because, she said, it was not an “agency record” that would be subject to the FOIA.  Her opinion came as a surprise and was not persuasive to everyone. In a footnote in yesterday’s ruling, Judge Huvelle said that the arguments over the two directives were sufficiently distinguishable that “this Court need not decide if it will follow Judge Howell’s rationale”– suggesting that if pressed, she might not have done so.  Yesterday, EPIC filed a notice of its intent to appeal the decision.

Coincidentally, the Department of Defense yesterday renewed until January 2015 its guidance implementing Presidential Policy Directive 19 on Protecting Whistleblowers with Access to Classified Information.

(Related stories: Politico, Miami Herald).

Update: The Center for Effective Government issued a statement here.

The National Reconnaissance Office, which builds and operates U.S. intelligence satellites, has just released the unclassified portions of its FY 2014 Congressional Budget Justification, a detailed account of its budget request for the current year.

Although more than 90% of the 534-page document (dated April 2013) was withheld from public release under the Freedom of Information Act, some substantive material was approved for public disclosure, providing a rare glimpse of agency operations, future plans and self-perceptions.  Some examples:

*    NRO says it recently achieved an “88 percent reduction in collection-to-analyst dissemination timelines,” facilitating the rapid dissemination of time-sensitive data.

*    The 2014 budget request “represents the biggest restructure of the NRO portfolio in a decade.”

*    The NRO research agenda includes “patterns of life.” This refers to the “ability to take advantage of massive data sets, multiple data sources, and high-speed machine processing to identify patterns without a priori knowledge or pattern definition… to detect, characterize, and identify elusive targets.”

*    Other research objectives include development of technologies for “collecting previously unknown or unobservable phenomena and improving collection of known phenomena; providing persistent surveillance; reducing satellite vulnerability; … innovative adaptation of video game and IT technologies…” and more.

*    “A primary responsibility of the NRO is ensuring that the entire NRO [satellite] constellation is replenished efficiently and in time to guarantee mission success.”

*    The NRO’s implementation of the Intelligence Community Information Technology Enterprise (IC ITE), an effort to establish a common IC-wide IT architecture, is discussed at some length. “The DNI’s IC ITE architecture paves the way for a fundamental shift toward operating as an IC Enterprise that uses common, secure, shared capabilities and services.”

*    With respect to security, NRO employs “automated insider threat detection tools, analyzes collected data in conjunction with disparate data sources to produce investigative leads, [and] performs assessments to rule out malicious activity occurring on NRO networks.”  NRO counterintelligence activities “concentrate on insider threat, traditional, and asymmetric methodologies.”

The National Reconnaissance Office has an annual budget of approximately $10 billion ($10.4 billion in FY 2012), according to classified budget documents obtained by the Washington Post. It employs around 975 people.

“I am proud to report that all of our major system acquisition programs are green– meeting or beating all performance, costs and schedule goals,” said Betty Sapp, director of the National Reconnaissance Office, at a March 2013 hearing. “Additionally, for the fourth year in a row, the NRO received a clean audit opinion on our financial statements,” an unprecedented feat in the U.S. intelligence community, which has largely eluded financial accountability.

“Over the coming years, the NRO will incorporate revolutionary new technologies into our architecture that will provide enhanced support to the warfighter while also improving the resiliency of our systems,” Director Sapp testified.

 

The Central Intelligence Agency tried to make “inappropriate” use of an exemption from the Freedom of Information Act to withhold information that was not subject to the exemption, a federal court ruled last month.

In a significant interpretation of the Central Intelligence Agency Act, Judge Beryl A. Howell narrowed the permissible scope of records that CIA may withhold under Section 403g of the Act.  That section allows CIA to exempt from release information concerning “the organization, functions, names, official titles, salaries, or numbers of personnel employed by” the Agency.

But in a 163 page opinion in response to a lawsuit brought by the non-profit National Security Counselors, Judge Howell ruled on August 15 that CIA was interpreting this provision in a manner that was “inappropriately broad” (discussed at pp. 99-122).

Instead of just withholding information about CIA organization and personnel, she concluded, the Agency was also wrongly attempting to withhold “information that relates to” CIA organization and personnel– which is almost everything the Agency does.

“The Court holds that the CIA may not invoke [50 USC] 403g to withhold information merely because that information may be used by CIA personnel to carry out their responsibilities or functions,” Judge Howell wrote. “The CIA Act does not protect all information about CIA functions generally… The CIA may only invoke 50 USC 403g to withhold information under the FOIA if it would reveal the specific categories of personnel-related information enumerated in the statute.”

If that seems like a common-sense conclusion, it is also a rare judicial setback for the CIA, and a reversal of the more familiar expansion of national security secrecy authority.

“This really is something pretty remarkable,” said Harry Hammitt of Access Reports, which monitors FOIA policy. “Judge Howell has narrowed the interpretation of the statute dramatically.”