Problems with Privacy Shield records and NSA mass surveillance

[Rachael]

Hi, Privacy and FOI Activists,

The Privacy Shield agreement allows data transfers from the EU and 
Switzerland to the US. There are currently two court cases at the EU 
Court of Justice challenging the agreement. Privacy Shield may be 
illegal under EU law, because the agreement still allows NSA mass 
surveillance.

Back in mid-April 2017, I sent a formal request to the US government to 
declassify PPD-28 (Presidential Policy Directive-28), which was signed 
by former US President, Obama. The US government has refused to confirm 
the receipt of the declassification request and has refused to say 
whether the request is being processed. The full PPD-28 (including its 
classified annex) is part of the Privacy Shield agreement by reference. 
The US government is claiming (...lying...) that the PPD-28 limits NSA 
mass surveillance, even though part of this PPD-28 document is still 
classified.

The US government is refusing to accept declassification requests for 
Obama's records (including PPD-28) until January 20, 2022. This action 
by the US government may be illegal, but it would be difficult to fight 
the US government in court on this issue.

I may have run out of options to appeal the US government's actions in 
the US. I would like to know if there are any government agencies, 
political parties, private organizations, or individuals in the EU and 
Switzerland who I can contact and complain about the US government's 
behavior. If you have any suggestions or recommendations, please email 
me at ractack at mail.com

I am also looking for volunteers to file public records requests in the 
EU and Switzerland for Privacy Shield documents. If you are interested, 
also email ractack at mail.com

Regards,

Rachael Tackett


Attached below is a discussion from another listserv about the legal 
difficulties of trying to get PPD-28 declassified.


On 06/29/2017 04:34 PM, Kel McClanahan, Esq. wrote:
> Related to Patrice's observation that the OPL doesn't actually exist 
> yet, that's actually the reason they apply the delay to MDR requests, 
> saying that they need the 6 years to get everything sorted and 
> catalogued and figure out what they're going to do with the info.  So 
> it's not just them saying "not gonna do it" and sitting around; they 
> have a legitimate logistics argument to support it.  NARA IG isn't 
> going to do anything because they're not actually breaking any rules, 
> and Congress, well, Congress is a bit of a wild card when it comes to 
> transparency, especially lately. Ask for reform and you might get it, 
> and it might be worse than it already is.
>
> Honestly, if you want to make a case about this to Congress/IG/etc., 
> you're best off waiting a little while to remove their ability to say 
> "we're still building it and hiring people and couldn't possibly do 
> anything."  Put another way, while you might find a sympathetic ear in 
> a couple years, you're definitely not going to find one now, and 
> drawing attention to this now when their argument is strongest may 
> hurt your ability to make it later when circumstances are more 
> favorable to you.  That's just my personal opinion, though, and others 
> may disagree.
>
> On 6/29/2017 4:24 PM, Rachael wrote:
>>
>> Yes, I see necessity to prevent creating bad case law. What are the 
>> options to put pressure on NARA besides the courts?
>>
>> Complaint to NARA OIG and then OIG council? Complaining to members of 
>> Congress and get a GAO investigation? Any other options?
>>
>>
>> On 06/29/2017 04:21 PM, Kel McClanahan, Esq. wrote:
>>> Presidential records are exempt from disclosure until 6 years after 
>>> the end of the President's term, which would be 1/20/23.  It's in 
>>> the PRA, as interpreted by ISOO.  I had this argument with the Bush 
>>> Library a while back.  Now, could you sue them under the APA for 
>>> applying the statutory embargo for FOIA and PRA to MDR requests?  
>>> Maybe, but it'd be a hell of a fight and would probably create some 
>>> horrible case law, so unless you desperately need some Presidential 
>>> record urgently and damn the consequences for the rest of the 
>>> requester community, I'd advise against it.
>>>
>>> On 6/29/2017 4:13 PM, Rachael wrote:
>>>> RE Ken McClanahan, Esq. - is there a link where OPL (Obama 
>>>> Presidential Library) states that it doesn't have to accept MDR 
>>>> requests until 1/20/23 and what their legal reasoning may be?
>>>>
>>>> EO 13526 (the executive order governing the MDR process) states, 
>>>> "...However, the Archivist shall have the authority to review, 
>>>> downgrade, and declassify papers or records of former President and 
>>>> Vice Presidents under the control of the Archivist pursuant to 44 
>>>> U.S.C 2107, 2111, 2111 note, or 2203..." Section 2203 actually 
>>>> obligates the Archivist to process and publicly release 
>>>> presidential records as rapidly as is legally possible.
>>>>
>>>> Under the PRA (Presidential Records Act), the former president can 
>>>> restrict access to certain records for up to 12 years (44 USC 2204 
>>>> a). If the restricted access category no longer applies (for 
>>>> example if a record is declassified), then there may be no excuse 
>>>> to withhold the record (44 US 2204 (b)(1)(A)(ii)).
>>>>
>>>> I just don't understand how the OPL believes it doesn't have to 
>>>> accept MDR requests nor comply with the PRA.
>>>>
>>>> Please correct me if I am wrong on any of this.
>>>>
>>>> On 06/29/2017 03:21 PM, Kel McClanahan, Esq. wrote:
>>>>> The OPL does not have to accept MDR requests until 1/20/23, and I 
>>>>> am not surprised they did not acknowledge yours.
>>>>>
>>>>> On 6/29/2017 2:47 PM, Patrice McDermott wrote:
>>>>>> The OPL, as such, does not yet exist.  You should check with Presidential Records at NARA.
>>>>>>
>>>>>> Patrice
>>>>>>
>>>>>> -----Original Message-----
>>>>>> From: State and Local Freedom of Information Issues [mailto:FOI-L at LISTSERV.SYR.EDU] On Behalf Of Rachael
>>>>>> Sent: Thursday, June 29, 2017 2:42 PM
>>>>>> To:FOI-L at LISTSERV.SYR.EDU
>>>>>> Subject: Help, What if agency doesn't confirm receipt of MDR request?
>>>>>>
>>>>>> Dear FOI Listserve,
>>>>>>
>>>>>> Firstly, the Obama Presidential Library refused to provide me with an email address to send an MDR request to (which violates US regulations).
>>>>>> I sent an MDR request to the Obama Presidential Library's general email address back in April 2017. I sent a follow up email about a week later asking for confirmation of receipt. So far, I have not gotten any response.
>>>>>>
>>>>>> Since the Obama Presidential Library refuses to acknowledge receipt of my MDR request, can I interpret this as a denial to process my MDR request and start the appeals process? Or do I have to wait the full year before I can start the appeals process?
>>>>>>
>>>>>> Any citation of the US statutes or CFR would be very helpful.
>>>>>>
>>>>>> Thank you,
>>>>>>
>>>>>> Rachael Tackett, currently frustrated MDR requester :(
>>>>>
>>>>>
>>>>> ---
>>>>> This electronic mail (email) transmission is meant solely for the 
>>>>> person(s) to whom it is addressed.  It contains confidential 
>>>>> information that may also be legally privileged.  Any copying, 
>>>>> dissemination or distribution of the contents of this email by 
>>>>> anyone other than the addressee or his or her agent for such 
>>>>> purposes is strictly prohibited.  If you have received this email 
>>>>> in error, please notify me immediately by telephone or email and 
>>>>> purge the original and all copies thereof.  Thank you.
>>>>>
>>>>> Kel McClanahan, Esq.
>>>>> Executive Director
>>>>> National Security Counselors
>>>>>
>>>>> "As a general rule, the most successful man in life is the man who 
>>>>> has the best information."
>>>>> Benjamin Disraeli, 1880
>>>>>
>>>>> "Quis custodiet ipsos custodes?" ("Who will watch the watchers?")
>>>>> Juvenal, Satire VI
>>>>>
>>>>
>>>
>>>
>>> ---
>>> This electronic mail (email) transmission is meant solely for the 
>>> person(s) to whom it is addressed.  It contains confidential 
>>> information that may also be legally privileged.  Any copying, 
>>> dissemination or distribution of the contents of this email by 
>>> anyone other than the addressee or his or her agent for such 
>>> purposes is strictly prohibited.  If you have received this email in 
>>> error, please notify me immediately by telephone or email and purge 
>>> the original and all copies thereof.  Thank you.
>>>
>>> Kel McClanahan, Esq.
>>> Executive Director
>>> National Security Counselors
>>>
>>> "As a general rule, the most successful man in life is the man who 
>>> has the best information."
>>> Benjamin Disraeli, 1880
>>>
>>> "Quis custodiet ipsos custodes?" ("Who will watch the watchers?")
>>> Juvenal, Satire VI
>>>
>>
>
>
> ---
> This electronic mail (email) transmission is meant solely for the 
> person(s) to whom it is addressed.  It contains confidential 
> information that may also be legally privileged.  Any copying, 
> dissemination or distribution of the contents of this email by anyone 
> other than the addressee or his or her agent for such purposes is 
> strictly prohibited.  If you have received this email in error, please 
> notify me immediately by telephone or email and purge the original and 
> all copies thereof.  Thank you.
>
> Kel McClanahan, Esq.
> Executive Director
> National Security Counselors
>
> "As a general rule, the most successful man in life is the man who has 
> the best information."
> Benjamin Disraeli, 1880
>
> "Quis custodiet ipsos custodes?" ("Who will watch the watchers?")
> Juvenal, Satire VI
>

-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: text/html
Size: 17487 bytes
Desc: not available
URL: <http://lists.cpunks.org/pipermail/cypherpunks/attachments/20170629/3ba10f7b/attachment.txt>