CIA Not Disclosing Unclassified Info to Fed Transparency Site, Snowden Left the NSA “Bread Crumbs” to Help Determine Which Documents He Copied, and More: FRINFORMSUM 8/14/2014

“Oversight Needed to Address Underreporting and Inconsistencies on Federal Award Website.”

A recent Government Accountability Office (GAO) data transparency report revealed that the CIA is one of four agencies that does not disclose contracting data on its unclassified programs to the federal transparency site, USAspending.gov, although there is no guidance that clearly exempts the agencies from doing so. The CIA in particular refuses to disclose the information on the grounds that its unclassified programs support its classified ones, and that “reporting on the former inexorably leads to insights about the latter.” This reasoning is commonly known as the “mosaic effect,” and is regularly used to deny FOIA requests. The GAO report cautions, “Without clear OMB guidance to define the type of appropriated funds exempt from reporting or how to report information on unclassified awards that raise concerns related to intelligence operations, it is unclear whether justifications from each of the four agencies for not reporting its contracts are appropriate.”

One of 38 documents declassified thanks to an Electronic Privacy Information Center (EPIC) FOIA request reveals a former surveillance court judge’s criticism of a now defunct National Security Agency (NSA) surveillance program. The Wall Street Journal reported that former Foreign Intelligence Surveillance Court (FISC) judge John Bates, who now sits on the United States District Court for the District of Columbia, rebuked “the NSA’s ability to manage its own top-secret electronic surveillance of Internet metadata—a program the NSA scrapped after a 2011 review found it wasn’t fulfilling its mission.” Bates criticized the program, which had trouble collecting the “to” and “from” information from emails, for repeated “long-standing and pervasive violations of the prior [court] orders in this matter,” and chided NSA staff for its “widespread ignorance of the rules.” Bates, however, ultimately reauthorized the program.

A federal judge in California recently ruled that the government does not need to disclose FISC orders on which phone companies the government requests customer records from. The ruling came in response to an Electronic Frontier Foundation (EFF) lawsuit, which argued both that “the government had already declassified hundreds of pages of other documents discussing data collection under the U.S. Patriot Act,” and “statements by people affiliated with the government, including a former member of a technology review panel who said ‘telephone companies like Sprint, Verizon, and AT&T’ were required to turn over records to the NSA, justified the disclosures.” Judge Yvonne Gonzalez Rogers, however, ruled that releasing such information could “provide a roadmap” for those eager to evade surveillance, and that “Official confirmation of the existence of or general information about an intelligence program does not eliminate the dangers to national security of compelling disclosure of the program’s details.”

Edward Snowdens latest Wired cover. Photo: Platon/Wired

In a recent Wired interview, former NSA contractor Edward Snowden revealed to the original NSA chronicler James Bamford that he left the NSA “bread crumbs” that could have helped the agency determine which files he copied, and which he merely “touched.” Snowden claims to have done this to show the agency he was acting alone and to help it “minimize the national security risks created by the documents’ public release.” Snowden and his lawyer believe the government’s continued insistence that he copied as many as 1.7 million documents “is a sign that the agency has either purposely inflated the size of his leak or lacks the forensic skills to see the clues he left for its auditors.”

The Washington Post obtained copies of reports indicating both systemic abuse of the US Patent and Trademark Office’s award-winning telework program, and that the Patent Office’s attempt to conceal the damning findings from the Commerce Department Inspector General (IG). The Patent Office employs roughly 8,3000 patent examiners, about half of whom work from home, and began an internal investigation after receiving a whistleblower complaint that many examiners were lying about their hours and receiving bonuses for work they never completed (as experts in their field, patent examiner salaries are near the top of the federal payscale). The Patent Office’s internal investigation determined that oversight for the program was “completely ineffective” and raises “‘fundamental issues’ with the business model of the patent office.” The version of the report provided to the Commerce Department IG, however, was “far less conclusive, saying that managers who were interviewed held ‘inconsistent’ views on whether examiners were gaming the system.”

Harris Corporation has filed an official complaint with the GAO to protest the FBI’s $500 million no-bid award to Motorola Solutions, which controls an estimated 80 per cent of the emergency communications equipment market, to upgrade the bureau’s aging radio network. Harris Corp. specifically complained that the FBI’s claim that Motorola’s software was proprietary and prevented it from interacting with other systems was untrue. Last month House Democrats asked the Department of Homeland Security’s Inspector General to investigate McClatchy’s allegations that “Motorola’s contracting tactics have led state and local governments to squander millions of dollars on the company’s pricey two-way emergency radio systems.”

The Wall Street Journal reported last week that the Defense Intelligence Agency (DIA) is increasingly relying on “open source” information on social media for intelligence gathering. Despite risks of violating Americans’ privacy rights, “For the past 18 months, the U.S. has invested heavily in ways to collect and examine social-media postings on Facebook, Twitter and overseas regional networks as a source of overseas intelligence,” with outgoing DIA chief Lt. Gen. Michael Flynn calling social media a new form of signals intelligence.

Texas Tribune reporter Morgan Smith recently posted a picture on Twitter of a response she received to a FOIA request submitted to the Department of Education. The FOIA request was denied, and re-routed to the Department of Justice’s Office of Information Policy, by the Department’s Dallas Civil Rights Field Office’s “FOIA Denial Officer,” Taylor D. August.

FOIA Denial Officer indeed.

To celebrate his 90th birthday, the National Security Archive and the Memorial Society in Moscow recently posted online an extensive collection of formerly secret Soviet and US documents on human rights legend and distinguished physicist, Yuri Orlov. The newly posted documents include the first English-language translation of his historic 1956 speech at his physics institute in Moscow, his 1976 founding of the Moscow Helsinki Group, and detailed KGB, Communist Party Central Committee, and Politburo documents. Read the entire Yuri Orlov File here.

In honor of Mr. Orlov’s achievements, this week’s #tbt document pick is an English translation of a Top Secret January 5, 1977, memo from then KGB chief (and later General Secretary of the Party) Yuri Andropov to CC CPSU, “On Measures for Stopping Hostile Activities of the So-called Group for Assistance of Implementation of the Helsinki Agreements in the USSR.” Visit the Archive to read more files on the Helsinki Group.

Finally this week, time is short to express your support for the FOIA Improvement Act. Check out our helpful posting on background information on the bill, and the ways you can help.

Happy FOIA-ing!