Court Rejects Government’s Secrecy Claims in EFF’s Hemisphere Suit
Victory! Court Rejects Government’s Secrecy Claims in
EFF’s Hemisphere Suit
DECEMBER 22, 2016 | BY AARON MACKEY
The federal government has not justified its excessive
secrecy about the massive telephone surveillance program known as Hemisphere, a
court ruled in an EFF Freedom of Information Act (FOIA) lawsuit on Thursday.
As a result, the federal government must submit roughly
260 pages of previously withheld or heavily redacted records to the court so
that it can review them and decide whether to make more information about
Hemisphere public.
Hemisphere is a partnership between AT&T and federal,
state, and local law enforcement agencies that allows police almost real-time
access to telephone call detail records. The program is both extremely
controversial—AT&T requires police to hide its use from the public—and
appears to violate our First and Fourth Amendment rights.
Although the government disclosed some records in
response to EFF’s FOIA request about Hemisphere, it claimed many documents
could be withheld under FOIA’s exemptions for evidentiary privileges and law
enforcement records.
Magistrate Judge Maria-Elena James of the United States
District Court for the Northern District of California found many of the
exemption claims to be unfounded.
For example, the court ruled that several records did not
qualify for protection under FOIA’s Exemption 5. The exemption allows agencies
to protect documents that, among other things, contain attorney-client
communications or would disclose internal agency deliberations. To withhold
records under Exemption 5, an agency must first show that the documents were
not shared outside the federal government.
The court ruled, however, that the government had failed
to show that the disputed documents were kept within the federal government
after EFF demonstrated that many of them appeared to have been given to state
and local law enforcement.
The court also ruled that even though the government
showed other documents were eligible for protection under Exemption 5, it had
failed to provide enough information to justify withholding the record. Judge
James wrote:
“The Court is not asking the Government to make a
herculean effort, merely something beyond regurgitation of the elements."
Next, the court rejected the government’s claims that
disclosing the records would interfere with ongoing or future law enforcement
investigations under Exemption 7(A). Agreeing with EFF, the Judge James ruled:
“None of the Government’s evidence suggest that exposing
these documents would interfere with law enforcement proceedings.”
The court also rejected claims that the names of
telecommunications companies involved in Hemisphere could be withheld on
grounds that they were confidential law enforcement informants:
“Whatever ‘express expectation’ of confidentiality these
private companies may have, the Government has provided no indication it ever
told these companies their names would be held in confidence."
Finally, the court questioned the validity of the
government’s claim that disclosing the records would hamper law enforcement’s
use of purportedly secret techniques, procedures and guidelines. Although the
court did not order release of those records, which were withheld under
Exemption 7(E), it acknowledged that the government’s claims were undercut by
public information describing how Hemisphere works. “EFF persuasively cites
numerous articles and other resources describing the publicly known facts about
Hemisphere,” the court wrote. The government, however, did not show how the
withheld information was either secret or went beyond the publicly known facts,
the court ruled.
As a result of the government’s failure to show that the
information could be withheld, the court ordered it to produce unredacted
copies of all the disputed documents so the court can scrutinize its claims
directly.
Given EFF’s and AT&T shareholders' concerns about
Hemisphere, we are pleased with the court’s decision and hope that it will
ultimately order the disclosure of even more records.
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