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Day 2: Tuesday December
ASAP '01 page 9 Tues. 11 Dec
Steve Garfinkel, ISOO, ex-GC for NARA
Presidential Records Act flaws now apparent.
Experienced in reverse FOIA suits. Now oversees most of declassification
program across govt. Now under NSC policy guidance, formerly direction.
Scott Armstrong converted NSC into a non agency. Also chair of IWG
looking at Japan war crimes & other matters -- result of annoying little
statutes mandating particular subject declassification -- gets in way of
overall effort. Public Interest Declassification Bd, from Act of
2000 -- chair but no members appointed by president & Congress.
Access professionals only made by accident.
Within a few years, individual staff in agencies est a profile of being
pro or con openness -- staff, not agency's info were reason for profile.
Reno and Ashcroft memos are all but meaningless -- access professionals
make the difference. Leaving government most proud of having protected
classified info -- but could only do it with a credible declassification
program. Achieved over past 7 years -- hundreds of millions of pages
that tell the story of our nation.
French intelligence officer argued no French government would declassification
because would gain nothing and be criticized. But another Fr official
was also considering declassification program., admired openness of USA.
NObody brags about secret government -- most secretive are those non-democracies.
ASAP '01 page 10
Frank Reeder, Reeder group
Peter Swire, GWU visitor,
many pubs on google.com. Ohio State regularly.
Privacy and Security after September 11. Frank Reeder was one
of drafters of privacy act of 1974.
Privacy and greater security tools. 1970 Fair Credit Reporting
1974 PA -- and rise of mainframes with all private data gathered. in
giant databases. Needed development of policy.
Second wave of privacy late 1990s. Modern desktop like f mainframes,
with Net giving instant, free instant and global transfers of data -- for
individuals. HOw to respond? High interest in privacy -- WSJ
poll found 29% rated erosion of personal privacy as top fear 2000.
Clinton administration work: 1999-2000.
Clinton Adman: * legal protect for medical privacy -- rule established
at HHS, imp because medical is 13% of economy. Financial privacy
protection; kids online privacy act.
* self-regulation of internet privacy, rise from 14% to 88% without
* Government as a model of good practices, privacy policies on most
web sites; summer 2000 OMB policies on cookies on Fed web site -- need
top level approval for cookies.
Security issues: keeping out hackers, but also better security can
threaten privacy -- e.g. Fed Intrusion Detection Net (Fidnet), e.g. Carnivore.
9/99 Clinton administration allowed strong encryption needed for mil &
e-commerce. Helps privacy & security.
Wiretaps & surveillance:
Wiretaps: 920s Olmstead ct said no privacy because only toughing wire
outside on street.
1960s Sup Ct Katz decision: in phone booth w closed door, police not
permitted to attach bug , reasonable expect of privacy.
1968 Title III of Omnibus crime act -- strict rules fr content, reported
to Congress, more than probable cause.
1970s Church committee and FISA. CIA out of domestic spying,
secret wiretaps in US. Secret wiretaps but only for intelligence
1984 ECPA e-communications privacy act
John Podesta in senate
* some protection for e-mail [rare then]
* some protection for who called info, pen registers, trap & trace
(who calls you)
2000 administration proposal, headed 15 agency White House Working
Legislation proposed June 2000 S.3083
Hearings and markup in HR Judiciary
* update telephone language, e-mail and web like phones; ID new obstacles
to law enforcement; sense of responsibility -- assure privacy but also
USA Patriot act based partly on this, a week after September 11.
* no longer wiretap a device, process also.
* roving taps allowed, follows person. But can you follow person
into a public library, trapping all persons in that library?
* problem: less suppression remedy for e-mail and web use
* emergency order exceptions, can trace hacker before going to judge.
ANy "affecting nat sec interest" -- v. broad.
* Nationwide trap & Trace because e-mail may bounce via 6 Cos and
needs one order only now. AT&T in old days was sole provider so easier
until breakup. Problem: one late night order from remote judge then
* Updating scope of data
- no longer to/from phone numbers only but any routing info but not
content. Problem? URLs may be included.
Computer trespasser exception
* OLD: ISP monitors own system, gives evidence of yesterday's attack
but could not invite law enforcement in control room to watch in real time.
* problem for DOD and many hack attacks, and for small system owners
who need help.
* NEW: law enforcement can surf behind target person; system owner
consents; lawful investigation; reasonably believes .
* Problems: no hearing on this in Congress, no time limit, no reporting
requirement, FBI can ask system op to invite them in., Limited suppression
remedy if exceed law.
Solution was crafted badly -- will return as issue.
Walls down between CIA & FBI
OLD: DOJ lawyers policed transfers of info between intelligence and
NEW: all the walls are down. Computers being shared.
Terrorism is both domestic & foreign -- risk of separating data.
-- Internet is across borders now.
FISA wiretaps NOW only need "significant purpose", not "primary purpose"
of foreign intelligence.
Foreign intelligence, secret grand jury testimony can now go to CIA,
no re-use limits.
* history of abuses in 1960s.
* risks surveillance of domestic , growth
ASAP '01 page 11 Swire continued
NOW less tolerance for hackers, cyber sec , greater tolerance for surveillance.
Greater surveillance, info gathering, info sharing.
Moral suasion for more surveillance by citizens.
Good data handling more imp.
Better audit trails now.
When systems upgraded, privacy and sec upgraded.
Patriot has 4 year sunset
Need hearings on new forms of accountability.
Peter P. Swire
Some privacy worries now relabelled sec worries -- e.g. using credit
cards over Net.
ID theft was privacy now sec issue -- terrorist might use our ID instead
of a thief.
Reeder: Attorney General argued withholding of detainees names
and of gun owners on grounds of privacy -- surprising argument. Swire
-- consent could be offered for release.
Historically arrest records are public.
Terrorist not defined, security not defined. Minor embezzlement
included in terrorism owing to rush.
Carnivore: laptop taken by FBI to ISP; lower level judicial scrutiny
for saving to/from info for a person passing via e-mail. Court ordered
only. But Carnivore can be set to trap all content on net -- needs
higher level scrutiny.
2000 email treated same as others.
Computer trespasser approach but not legislation proposal was NEW.
Voice mail under old law unlike e-mail was not more than phone cal -- needed
super warrant - now voice mail like e-mail., easily obtained.
Reeder: OLD laws driven by target's expectations of privacy --
but now need education of citizens about new tech.
Patriot Act was not new but pulled out of word processors. Luck
is when prep meet soppy. Increases likelihood of rational policy
-- when crisis hits, too late and silly policy results.
ASAP '01 page 12
David Rosenbloom, book, Building a Legislative Centered PA -- on Administrative
Procedures Act, 1946 1946 & legislation reorganization act & others.
PANEL ON FOIA USERS:
Mark Zaid, James Madison Project, DIr.,
since 1993 after law school.
Mark Tapscott, Heritage Foundation Center
for Media & Policy.
publicizes FOIA for users. Survey of FOIA officers 5 agencies logs,
1st 6 mos of 2001, results show journalists 5th most frequent users., after
liberal groups. Declined over years. Few users were major news
& broadcast . Becoming a rare tool for press. Republican
government depends on transparency. Decline in # of invest journalists
Could not account for intermediaries requesting for journalists.
Believe press usually request directly. Study does not also check
number of downloads by media from web sites & readings rooms.
Zaid: NSA putting up UFO info on web site to reduce large number of
Aron Pilhofer, Ron Nixon Investigative
Reporters & editors.
IRE has listserv. Based at U MO but this op is in DC. Ron
ex Roanoke times;
Uses of FOIA:
Collect 30+ government databases clean them and re-sell to media.
Samantha Powers, Bystanders to Genocide, Atlantic Monthly, September
Hartford Courant, Hundreds of Radioactive Devices Missing (NRC)
Seattle Times Story on uniformed Consent, deaths in cancer trials.
USA Today Toxic Exposure Kept Secret, Poisoned Workers, declassification
documents on NRC programs.
TRAC, Transactional Records -- David Burnham, ex NYT, Syracuse U base.
International Terrorism referrals for Prosecution Declined by reason, table
of data., since 1989 site.
Barlett & Steele, Time magazine (ex Philadelphia Enquirer) Big
Money Who Gets Hurt (political finance).
David Kidwell, Hundreds of Felons Cast Votes Illegally. Miami
Herald. Found 44 felons voted illegally, mostly for Democrats.
Newsday NY, Danger on the Lists -- got disciplinary records on doctors
from NY State, some HMO web site info, some drug abusers etc. Filed
lawsuit for the records.
AP wire -- No Gun Ri massacre in Korean war, declassification documents.
One source was tainted but rest of witnesses held up & won Pulitzer
Nat Sec price:
EPA, Army Corps removed data from web sites.
--see EFF web site tracking losses from government web sites.
CNN examined FAA records in web site (now removed) on sec violations
at the airports used by hijackers.
Boston Globe Bridge Decay from FHA web site, now removed.
Some media will contract with agency to not exp;lore down to few records
(e.g. on school records) but only aggregate scores.
Zaid litigated the only expedited processing case under EFOIA.
Reports do not include requests for expedited, only results. CIa
never, NSA a few times, some agencies now take requests via e-mail and
fax, much better than mail recently [we have heard 27 truckloads of mail
for DOD waiting irradiation].
Ron -- FOIA is last resort because guaranteed slow.
Some papers do put primary documents sourced in paper up on web --
e.g. Wash Post. Interviews also posted after a story printed.
Not all examples were actually using FOIA -- some used faster means.
Other surveys of media use of FOIA -- POYNTER Institute in FL has survey
of uses of FOIA by Journalists. .
Reporters Committee has new report on comparative state data on FOIA.
ASAP '01 page 13
E-Government: what it ought to be
Theresa Amato, Citizen Works.
Bob Carlitz, Info Renaissance,
ex physicist, worked on internetting schools project.
Internet enabled citizenship
* Internet is enabling technology, redefines citizenship.
- Connections, speed, interactivity
connections are scalable & inter operable.
Universal act via Telecoms act 1996, but competition has not worked
so well, local exchange carriers going out of business and baby bells are
amalgamting. Digital divide remains even though PCs cheaper.
Inter eroperability: open standards, open source -- cannot predict
which Co will survive.
Speed: fiber to the home, neighborhood nets, smart buildings.
Interactivity: citizens & government, communities of interest.
Access to tools: open modeling (e.g. environmental) and expert systems.
Characteristics of Net: Transparency of continuous e-record, w background
education materials, necessary tools to find use & understand info
Target is audience is anyone, anywhere, anytime. (For government
Services = e-Government
* access, convenience & economy
Practice = e-Governance
* functioning of government, educated public, informed citizen involvement.
Continuous e-record includes scoping of issues, FACA meetings, notice
& comment rulemaking, enforcement; active notification and recruitment;
online dialogues; rebuttal comment periods. In notice & comment
rule making, most comments come in on last day -- should have rebuttal
Online dialogues: active notification; background education materials,
moderated asynchronous discussion; interaction among stake holders; online
communities of interest; comment structured to simplify analysis; online
archive of public input.
* new mechanism: online dialogues.
* Opportunities & barriers
Universal access; software advances; net improvements; citizen involvement;
education materials' responsiveness; new face externally; uneven infrastructure;
proprietary systems; last mile; agency burden; authoritative access; compartmented;
ASAP '01 page 14
E-Government and records management.
Mike Miller: NARA.gov (see web site)
Web submissions change the way you process and work, creating new kinds
of documents. Need to think about how long you keep records.
Government Paperwork Elimination Act -- core business for NARA, should
result in better records. New records include certificates of trustworthy
submissions -- incl. algorithms must migrate eventually to new systems.
Risk management includes keeping auditing info on each document, and guidance
of the time of each incoming comment over time. GPEA guidance is
on web site. e-signatures choices: keep code or keep note of validated.
Need to set lifetime for disposal of new records ahead of time.
NARA will not spec single system of records management.
It is a record until proven otherwise.
Tony Frater, OMB OIRA, e-government
solutions. Mark Foremena recently (June) came to OMB for e-government,
bold new vision -- he says can't have a digital democracy until we have
e-government. Need to streamline processes to serve missions, markets
based get most efficient agency to serve, citizen centered, simplified
& unified. 4 segments in citizens side: citizens, bus,
Called G2c (government to citizen, etc.)
One stop shops, single points of entry for citizens.
Businesses -- communicate in their lang, reduce burden.
Intergovernment -- help reduce reporting requirements, ID redundant
International Efficiency & effectiveness IEE -- private bus has
gone through rev and we can steal concepts e.g. financial management.
Simplify & unify mantra. in task force, found 487 lines of government
business, avg. 19 agencies each -- too much redundancy. (Like Hoover
COmmission in restructuring interest). REduce burdens by applying
for services and serving benefits online. COnsolidate databases,
reduce stovepipes, online instead of data warehouse. COntrast Thomas.loc
with speed to searching CD music on web.
Improving knowledge management.
Internal Barriers to transformational challenge. Who's accountable
to process, data, sec & privacy, relation with citizens, delivery channel.
Miller: online dialogs can be preserved by summary
Touzin Dingell bill?
Blueprint for America, rest releasable w presidential budget in Feb.
Patrice McDermott: Fed Computer week.
OMB web press releases
NARA suggesting take snapshot for archives of their web sites twice
yearly plus whenever a major makeover. ALso need policies, possibly
records of visitors numbers.
CIO web site has much stuff on this.
Miller: 36M email messages from Clinton White House -- shows
ASAP '01 page 15
What is/What you say it is.
Miriam Nisbet, mod;
Executive Order on implementing PRA has cussed uproar, but unknown
how much change it makes is unknown.
Scott Nelson, Public Citizen Lit Group
formerly on lawsuits on Nixon presidential papers. When political
or ideology imposes: New Bush Executive Order at odds w law, 1978 for presidential
& VP records beginning w Reagan: property of fed government, access
after leaving office by law, not choice of presidential, sent to archivist
for 5 years, then under FOIA but under 12 years can blanket close records
on nat sec, appointments, trade secretary, confidential communications
on advice to presidential or between advisers. (P)(5) restriction.
FOIA b5 does not apply to PRA -- but under 12 years for advising.
After that, cannot withhold -- but presidential can still make constitutional
claim of privilege.
RR & Bush left 1989, so 12 years expiring now. RR lib had
opened 12 M pages to public -- but some withheld under P5 till Jan 20,
2001. Still not avail, NARA notified presidential Bush and presidential
RR intended to release 68K pp. of records. Withheld under FOIA b5,
Executive Order 13233 of W Bush is response. When NARA releases
any under PRA, former presidential gets at least 90 days to review, then
current presidential gets unlimited review, can invoke constitutional grounds
to withhold, w current presidential presumed to concur. Families
of former presidential may veto access indefinitely, also attorney-client
common law privilege, and state secrets privilege which was thought to
apply only to current pres. Protests only moved up signing of Executive
Ari Fleischer defended on grounds of national security.
But nat sec doesn't justify former presidential veto -- and ignores
prior review by declassification officials at NARA & agencies!
Executive Order does not limit claims of privilege.
Executive Order makes dramatic substantive changes, not just procedures.
Nixon v GSA Supreme Court established standing of former presidential
to assert exec privacy -- but a far step now to say assertion is conclusive.
Ignores subsequent decisions in cts that claims of exec privacy are limited
and reviewable. E.g. Public Citizen v Burr. US Ct of Apps for
DC rejected government's position out of hand. 2 RR appointees joined
decision. AHA, NS Archive, Reporters Committee have filed suit to
enjoin NARA from implementation order.
Tim Edgar, Legislative Counsel for ACLU
since May 2001, ex private practice. On Ashcroft memo.
Would not be in ct if Bush had followed Reno memo. Criticizing
government is not aiding and comforting enemy. Secrecy creates phantoms
(ghosts) about arrests of detainees -- info withheld on charges etc.
ACLU requested basic info on detainees and charges -- but stonewalled.
Wrong response was release of names of detainees would be illegal -- but
names of individuals in immigration cases -- and case themselves -- are
presumptively open by reg.
Defense no 2 was also wrong -- that release of names would help al
Qaeda. Defense no.3 was privacy of innocent individuals who had been
swept up and released.
Should follow Reno standards, instead. Look for specific harm
from release -- or must release. Or use privacy grounds.
FOIA lawsuit was filed last Wed.
Joe O'Connell, IBB (VOA, radio Marti),
VOA chartered 1976 for accurate & objective news -- though government
agency. John Chancellor said intersection of journalism & diplomacy.
Parent body is Broadcasting Bd of Governments, outside government, bipartisan,
sec State is ex-officio, appointed by Senate, survive change of admin.
Clash between State Department & VOA: more than usual. Afghani
mullah Omar interview issue -- has long broadcast into Afghan in two local
languages -- 80% listen to VOA there, many listen daily. unusually
high by world standards. BBC also reaches there. VOA wanted
local reaction to Bush speech to Congress. Omar agreed to speak next
morning. [Time difference.] Did not give open mike to Omar,
but did include his voice with alternative views plus a commentary from
a professor, in 3 min package. State department still argued giving
platform to terrorism. VOA rejected State's call -- independent Journalism.
Many angry citizens called in to claim traitorous act. VOA argues
must be credible to persuasive in Middle East.
Sen. Feingold in hearings last week asked detainee if publicity about
name would have helped him -- said yes -- i.e. may not cause harm.
Dan Metcalfe, DOJ, open mike
Environmental worst case scenarios were made avail only to local people
around the plants -- by statutory compromise. Taken off webs.
About 2 years ago?
Navy department has only 11% of space left in Pentagon, records destroyed
in fire. Request was for analysis of data submitted from outside
- but analysis was destroyed. Records do not have to be recreated.
Metcalfe: Miriam when at DOJ fought John Lennon FBI records case
on appeal singing let it be -- to 9th circuit avocado circuit.
[Will Ferroggiaro deals with international FOIA developments.]