The FBI Deserves the Bad Week it’s Having: FRINFORMSUM 3/3/2016

A screenshot of the FBI’s now-deleted encryption advice.

TechDirt user Mike Masnick noticed last year that the FBI took down its recommended safety tips for protecting cell phones – which included advising that people encrypt their phones. Masnick filed a FOIA request to find out why the page had been deleted, and was told that no records were found responsive to his request – an unlikely scenario considering the current encryption debate.

The FBI’s FOIA search process is convoluted by design, and a 2015 FOIA lawsuit seeking FBI records related to the 1995 Oklahoma City bombing helped shed light on the lengths requesters need to go to for the FBI to perform an adequate search. Testimony in the 2015 suit showed “that reporters and members of the public who send FOIA requests to the FBI might not know that there are a myriad of different records ‘systems’ that they need to specify in order for a comprehensive search to take place.” These systems include the Automated Case Support system (ACS), which searches the FBI’s Central Records System. The ACS itself is split into three parts: the Investigative Case Management system (ICM), the Electronic Case File (ECF), and the Universal Index (UNI). Because the FBI routinely acts in bad faith when responding to FOIA requests and does not search the majority of its records systems unless specifically asked, FOIA requests to the FBI should include language requesting the bureau search all components of the ACS: the ICM, the ECF, and the UNI.  (See here for additional information on the extent to which agencies MUST search all records systems reasonably believed to contain responsive documents in order to satisfy the requirements of the FOIA.)

The FBI did abandon its worrisome requirement that FOIA requesters upload a government-issued photo ID when filling out requests on the agency’s new FOIA portal that is currently being tested. The FBI’s blog post announcing the change did not, however, rescind initial reports that the portal limits requesters to making one request a day.

Don’t blame the President for making this face in 2009 after then-FBI director Mueller gave him this hat as a gift. AFP PHOTO / Saul LOEB

The FBI bungled unlocking the iPhone of one of the San Bernadino shooters and then tried to pin the problem on Apple and use the situation as a justification to weaken encryption. While FBI director James Comey has been arguing for months against strong encryption and is taking Apple to court in several cases to unlock encrypted iPhones, during a Tuesday hearing before the House Judiciary Committee Comey admitted that the buerau –against Apple’s initial advice—ordered one of the shooters employers, San Bernadino County, to change the phone’s iCloud password after the shooting. The FBI told the County to change the password even though Apple suggested other means of accessing the phone; changing the iCloud password not only locked the bureau out, it eliminated other ways into the phone.

Trevor Timm’s recent op-ed in the Guardian sums up Congress’ growing frustration with the FBI over its ask for encryption backdoors, an issue the bureau has said it wants Congress and the courts to weigh in on. Timm notes, “One judiciary member questioned how the FBI managed to mess up so badly during the San Bernardino investigation and reset the shooter’s password, which is what kicked this whole controversy and court case in motion in the first place. And if the case was such an emergency, why did they wait 50 days to go to court? Another member questioned what happens when China inevitably asks for the same extraordinary powers the FBI is demanding now. Others questioned whether the FBI had really used all the resources available to break into the phone without Apple’s help. For example, why hasn’t the FBI attempted to get the NSA’s help to get into the phone, since hacking is their job?”

During the grilling Comey said that “Of course” the FBI would try to unlock other encrypted phones if it wins the San Bernadino case. A Monday ruling in New York in a separate case, however, makes an FBI victory seem less likely. Judge James Orenstein in New York’s Eastern District denied the government’s request that Apple extract data from an iPhone in a drug case, saying that “the government was inflating its authority” by citing 1789’s All Writs Act to force Apple to extract data from an iPhone. The Act “broadly says that courts can require actions to comply with their orders when not covered by existing law” and the government is also citing it in the San Bernadino case. The Judge wrote that the government’s interpretation of the Act “is so expansive as to cast doubt on its constitutionality if adopted”.

On Monday the Office of the Director of National Intelligence (ODNI) published a 22-page 2002 letter written by the DOJ’s Office of Legal Counsel’s John Yoo on the legality of the National Security Agency’s mass surveillance practices. The New York Times reports that, “The letter explained to Colleen Kollar-Kotelly, who at that time was the new chief judge of the Foreign Intelligence Surveillance Court, why the Justice Department considered the program lawful even though, as Mr. Yoo acknowledged, it clashed with wiretapping laws laid out in the Foreign Intelligence Surveillance Act.” ODNI posted the letter on its Tumblr, IC on the Record, an account that was set up in an attempt to rebrand itself after the Edward Snowden leaks to provide “Direct access to factual information related to the lawful foreign surveillance activities of the U.S. Intelligence Community”.

While ODNI is making some steps to be more transparent, it is undercutting those efforts elsewhere. ODNI recently proposed a plan to charge requesters up to $72 per hour to review Mandatory Declassification Review (MDR) requests, even if no information is found or if all of the information that is found must be withheld. The plan is out of step both with the Obama administration’s National Action Plan (NAP) transparency commitments and other agencies’ reasonable fee structures, and will go into effect by April 26, 2016, “unless adverse comment is received by March 28, 2016.”

(L to R) Vice President George H. W. Bush, President Ronald Reagan and President Mikhail Gorbachev during the Governor’s Island summit, December 1988. (Credit: Ronald Reagan Presidential Library)

To mark the 85th birthday of the Soviet Union’s first and last president, Mikhail Gorbachev, the Archive posted a collection of previously classified Western assessments of him.  The documents show that conservative British politicians were ahead of the curve predicting great things for rising Soviet star Gorbachev in 1984 and 1985, but the CIA soon caught on, describing the new Soviet leader only three months into his tenure as “the new broom”. Another fascinating document in the collection is an April 1991 CIA memo declaring that “The Gorbachev era is effectively over” – an eerie resemblance to the actual coup that would come in August 1991.

The Gerald Ford White House significantly altered the final report of the supposedly independent 1975 Rockefeller Commission investigating CIA domestic activities, over the objections of senior Commission staff, according to internal White House and Commission documents that were recently posted by the Archive. The changes included removal of an entire 86-page section on CIA assassination plots and numerous edits to the report by then-Deputy White House Chief of Staff Richard Cheney. The Archive’s posting includes:

• The entire suppressed section on assassination attempts
• Cheney’s handwritten marginal notes
• Staff memos warning of the fallout of deleting the controversial section
• White House strategies for presenting the edited report to the public

The documents show that the leadership of the presidentially appointed commission deliberately curtailed the investigation and ceded its independence to White House political operatives.

There is a real-life sequel to Hollywood’s Oscar-nominated Bridge Of Spies – James Donovan’s secret mission to Cuba to negotiate a massive prisoner release with Fidel Castro. The story – and the trust that developed between Donovan and Castro – is told in Peter Kornbluh’s book, Back Channel to Cuba. The documents show that in the aftermath of the Cuban missile crisis, Donovan engaged Castro in discussions on improving U.S. relations with Cuba and predicted that, eventually, “an accommodation of views could be worked out.”

Did you miss any of the Archive’s postings this week – from Gorbachev to the Rockefeller Commission to James Donovan’s secret mission to Cuba ? If so then sign up for the Archive’s mailing list to stay up to date with all of our exciting work.

The British Cabinet Office continues to hide all but the first page of this key report on the danger during Able Archer 83.

This week’s #tbt pick is chosen with good news from the UK’s Independent Commission on FOI in mind. The Commission’s recent report examines the last 10 years of FOIA in the UK and does not call for the severe restrictions that had initially seemed likely, although proposed changes to the appeals process remain a concern. Today’s #tbt pick is a British report entitled “The Detection of Soviet Preparations for War Against NATO” that was the first comprehensive report that warned that a November 1983 nuclear release exercise called Able Archer 83 could have spooked the Soviets into a preemptive nuclear attack against the West. Unfortunately for the public, last year the British Cabinet Office and Information Commissioner successfully argued to withhold the key 32-year-old historic document about one of the most important nuclear episodes in our history without a review.

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Happy FOIA-ing!