Feds Refuse to Release Public Comments on NSA Reform — Citing Privacy

[Ichingcarpenter]

The Obama administration has received 28 proposals from corporations with ideas for managing the NSA’s massive database of U.S. phone call metadata. But don’t expect to see the proposals anytime soon. The government says it won’t release a word.

At issue is President Obama’s most significant NSA reform: his plan to take the trillion-plus records continuously gathered on American’s phone calls out of the NSA’s hands and give it to a third-party, and making it accessible to the government only through an order from a secret tribunal.

The plan, based on a recommendation from an NSA reform panel Obama commissioned, would put a trove of information about American citizens at arm’s length from the government, while maintaining the functionality of a program that came to light amid leaks by NSA whistleblower Edward Snowden.

snip

The RFI informs those responding to “ensure that the submitted material has been approved for public release,” which, naturally, led WIRED to believe that the material would be released to the public. Two weeks ago we asked Clapper’s office for submissions received under the RFI. We were told to file a Freedom of Information Act request. We did so.

We got our response Wednesday: A blanket denial. (.pdf) Jennifer Hudson, the ODNI chief FOIA officer, wrote WIRED saying the agency located 28 documents “responsive to your request,” but:

Upon review, ODNI has determined the material should be withheld in its entirety in accordance with FOIA exemptions (b)(4) and (b)(6). Exemption (b)(4) applies to confidential proprietary information involving trade secrets and commercial data obtained from a company which, if released, would result in competitive hard to the company. Exemption (b)(6) applies to information which, if released, would constitute a clearly unwarranted invasion of personal privacy of individuals.


http://www.wired.com/threatlevel/2014/02/metadata-reform/

[bemildred]

1. So I guess the public response was not supportive? nt

[Ichingcarpenter]

2. Orwellian isn't it?

public now means private

[bemildred]

4. And private means secret.

Basically, pretty much everything should be kept from the public, who knows what they will do? The public is not to be trusted, that is very clear.

[Ichingcarpenter]

6. And Secrecy keeps the public safe

from the bad guys.

I think we are on to something.

[Egalitarian Thug]

3. Is there a minimum IQ below which irony becomes imperceptible?

I can;t decide if it's monumental arrogance or just inconceivable ignorance. Either way, chalk up another Big Win for the Goldman-Sachs administration.

[bemildred]

5. I think any pretext will do, really.

Not really trying to make sense, just stonewalling.

[JDPriestly]

7. A secret court -- handpicked by our conservative top justice.

Withholding information about how and thus whether the NSA will be actually be distanced from the raw data?

No. This secret program is not about espionage on foreign hostile interests. This secret program is about espionage on the American people, on voters.

It violates the Constitution. It potentially could and will interfere with our birthright of a fair trial in which we can confront our accusers.

Worse, it removes the function of control of the information from the government which is subject to the Bill of Rights into the private sphere which is not necessarily subject to the Bill of Rights or the Freedom of Information Act, etc.

It continues to put a small, unelected clique that has seized power in our government in charge of information that locates within their reach information that could destroy individuals and companies -- and with no oversight by the people of the US. This is sad because Congress should be taking charge of the oversight, but has seeded the committees within itself that are supposed to perform that oversight with people who may be subject to blackmail or too corrupt to carry out their oversight duties.

Fact is, the nearly blanket surveillance of the communications of Americans is a violation of the Constitution. There is no way to fix this under our Constitution. The collection of data needs to be limited. And there should be no secret courts. Congress has the power to create the courts it wants, but secret courts are incompatible with democracy. They might fit with the game-plan in a Soviet state but not in America.

[zeemike]

20. Bingo.

It is just a shell game, and they play it on us all the time.

[blackspade]

8. WTF?

That FOIA response is word salad.

[msanthrope]

18. No--it's actually one of the easier exemptions to understand. B4 exisists to protect company/trade

secrets.

For example, if the government investigates McDonalds for price-fixing ketchup, and in their wide-sweeping investigation of the setting of commodities prices they obtain the recipe for ketchup from McDonald's suppliers, chances are it will be in a document that can then be discovered through a FOIA request.

Burger King can then FOIA the recipe for ketchup that McDonald's suppliers gave to the government. See how that would be unfair? B4 protects that information.

Here, you have companies submitting proposals to the government. These proposals outline how their companies would design a system to collect data points. The proposals themselves would have to contain very detailed information in order for the government to judge how effective they would be...

B4 exists to protect these companies intellectual property. It would not be fair for another person to FOIA what they have developed. Further--the government would not get proposals if they could not protect the proprietary information contained within.

BUT--the way I read the law, Wired could appeal, and ask not for design information---but performance information. So, maybe they should make a more specific request, and then appeal.

[blackspade]

21. I understand the B4 exemption just fine.

Your example is also an easily rectified issue in that context with simple redacting of the 'recipe.'

The part you seem to be missing in this story is this:

To that end, on Feb. 12, James Clapper, who heads the Office of the Director of National Intelligence (ODNI), closed a week-long process in which he urged U.S. companies to provide “information about existing commercially available capabilities” to house and protect telephone metadata while allowing NSA access via court orders.

That is to say, there is no design or development element to the RFI. They want off the shelf capabilities that are currently in commercial use. While the coding of specific systems may be proprietary, the capabilities are not, as they are 'commercially available' and already in use in the public sphere.

So, why are the companies that submitted responses not named? How does that warrant a B4 exemption?
The B6 exception is even more troubling. How is a response to a Federal RFI going to "constitute a clearly unwarranted invasion of personal privacy of individuals?" This was a public RFI after all. why are the respondents being shielded?

As for the potential appeal, the last part was rich: "Please be specific about the reasons for the appeal"
Without any information as to the reasoning beyond the word salad that is this paragraph:

Upon review, ODNI has determined the material should be withheld in its entirety in accordance with FOIA exemptions (b)(4) and (b)(6). Exemption (b)(4) applies to confidential proprietary information involving trade secrets and commercial data obtained from a company which, if released, would result in competitive harm to the company. Exemption (b)(6) applies to information which, if released, would constitute a clearly unwarranted invasion of personal privacy of individuals.

there is not much to argue due to lack of any information in the FOIA response.

[msanthrope]

24. To answer your points--

Simple redaction of the recipe itself would be 'easy,' but what if McDonalds argued that information regarding a particular supplier would reveal the secret ingredient in the ketchup, and thus, the trade secret would be revealed? So, a simple redaction has become more complex.

As to your second point, I don't think you can claim there is no design or development element merely because they are "commercially available" capabilities. Commercially available to whom? You and me? Or commercially available to governments and their agencies? You say coding would be proprietary, and maybe that is a factor.

As for the second exemption, I'd like the government to be more responsive on that point. I get a whiff of bullshit there, but heck, let's make them make their case.

Wired should appeal to ODNI, and eventually, get it in the courts. I suspect that what Clapper is trying to do is buy time, and for that, he deserves to be taken to court.

[blackspade]

25. A reasoned response.

Thanks.

On my second point, I don't agree based on my previous experience in government contracting.
That said, those are legit questions in response. That is what should have been better articulated in the FOIA response.

I agree with you that this is a delaying tactic.

[Enthusiast]

9. They hate us for our freedumb.

[Solly Mack]

10. Glad they cleared that up.

Snort

[OnyxCollie]

11. HAHAHAHAHAHAHAHAHAHAHAHAHAHA!

[BelgianMadCow]

12. Where's the "not the onion" part of the headline when it's needed??

zomg!

This headline is simply hilarious.

[hobbit709]

13. Some people wouldn't recognize irony if it bit them on the ass.

[Octafish]

14. ''That's some catch, that Catch-22.''

Rather than adding a third party to hold the information, why not just give it to the People?

So far, the only ones to have benefited are the Ownership Class -- the rich represented by the Carlyle Group -- and the ones they decide to reward rather than blackmail in Washington.

[Larry Ogg]

15. Translation: Let's conceal our psychopathic behavior in a deeper darker hole.

Not deep enough!

How about: Let's put lipstick on a pig and demonize anyone who calls it a pig.

[msanthrope]

16. Wired could appeal this--but they'd have to deal with not just the US, but the 28 companies who

would then file cross actions to protect their trade secrets....

Now, Wired would be in the DC Circuit court of Appeals, which does not use a broad definition of "trade secret" like you would find the Restatement of Torts, but, rather, the standard embodied in Public Citizen Health Research Group v. FDA, 704 F.2d 1280 (D.C. Cir. 1983). I still don't think they'd get much regarding actual design, but they could get information about performance. And that would be worth trying.

[woo me with science]

17. ...

They thought they were free

[Autumn]

19. Their concern for privacy really touches me.

[blackspade]

22. That irony is painful....

[woo me with science]

23. War is Peace.