Cypherpunks FOIAs [was Re: The Cypherpunk's 1995 Archive has been forged, and what are we going to do about it? (was:Re: Could someone add news of Cypherpunks Archive...]

Sun Nov 24 14:04:09 PST 2019

    On Friday, November 22, 2019, 09:14:30 PM PST, coderman <coderman at protonmail.com> wrote:  

 >note that prior requests for cypherpunks (not those years) returned unsuccessful results from DoJ and NSA:

>DoJ -> No Responsive Documents
https://www.muckrock.com/foi/united-states-of-america-10/cypherpunks-67284/

>NSA -> Glomar
https://www.muckrock.com/foi/united-states-of-america-10/cypherpunks-67282/

Notice that the exception called "Glomar" refers to the non-release of information that would tend to show that a specific person or persons were under some sort of criminal investigation.  From:   https://www.justice.gov/oip/blog/foia-update-oip-guidance-privacy-glomarization

"All federal agencies realize that the processing of third-party requests under the Freedom of Information Act -- requests for records on other named individuals -- can involve sensitive personal privacy considerations. But when such requests are made to a federal law enforcement agency, or to any agency which maintains investigatory files, the special privacy consideration involved can call for the careful utilization of a special FOIA response.

"Specifically, a FOIA request seeking records which would indicate that a particular political figure, prominent businessman or even just an ordinary citizen has been the subject of a law enforcement investigation may require an agency to flatly refuse to confirm or deny whether such records exist. Such an extraordinary response can be justified only when the confirmation or denial of the existence of responsive records would, in and of itself, reveal exempt information. See FOIA Update, Spring 1983, at 5. This response, colloquially known as a "Glomar denial" or "Glomarization," was first judicially recognized in the national security context, see Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) (raising issue of whether CIA could refuse to confirm or deny its ties to Howard Hughes' submarine retrieval ship, the Glomar Explorer), but it surely is applicable elsewhere.
>STIGMATIZING CONNOTATION
The application of "Glomarization" in the privacy context is appropriate because disclosure of the mere fact that an individual is mentioned in an agency's law enforcement files carries a stigmatizing connotation, one certainly cognizable under FOIA Exemption 7(C), 5 U.S.C. § 552(b)(7)(C).See, e.g., Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 865 (D.C. Cir. 1981) ("The disclosure of [the fact that specific individuals were the subjects of a criminal investigation] would produce the unwarranted result of placing the named individuals in the position of having to defend their conduct in the public forum outside of the procedural protections normally afforded the accused in criminal proceedings."); Baez v. Department of Justice, 647 F.2d 1328, 1338 (D.C. Cir. 1980) ("There can be no clearer example an unwarranted invasion of personal privacy than to release to the public that another individual was the subject of an FBI investigation."); see also Miller v. Bell, 661 F.2d 623, 631 32 (7th Cir. 1981) (identities of individuals merely mentioned in law enforcement records protected), cert. denied sub nom. Miller v. Webster, 456 U.S. 960 (1982); Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977) (same).

"Indeed, only through the consistent application of this masked response to third-party requests, regardless of whether responsive records do actually exist, can the privacy of those who are in fact mentioned in law enforcement files be protected. For example, if an agency provided a "no records" response to its first nine requests for third-party investigatory files, it could not then respond to the tenth request -- where records in fact do exist by "refusing to confirm or deny" without, in effect, disclosing the very fact sought to be protected. See, e.g., Antonelli v. FBI, 721 F.2d 615, 616-19 (7th Cir. 1983), cert. denied, 104 S. Ct. 2399 (1984); Rushford v. Civiletti, 485 F. Supp. 477, 478-80 (D.D.C. 1980), aff'd mem. sub nom. Rushford v. Smith, 656 F.2d 900 (D.C. Cir. 1981); see also Gardels v. CIA, 689 F.2d 1100, 1104-06 (D.C. Cir. 1982) (operation of "Glomarization" in national security context).
"COGNIZABLE PRIVACY INTERESTAnalytically, though, use of the "Glomarization" approach under Exemption 7(C) is justified only when it is determined that there is a cognizable privacy interest at stake and that there is insufficient public interest in disclosure to outweigh it. See, e.g., Common Cause v. National Archives & Records Service, 628 F.2d 179, 184-86 (D.C. Cir. 1980) (balancing required by Exemption 7(C) even for identities of uncharged subjects of law enforcement investigation). In this regard, it should be remembered that there are three circumstances in which the fact that an individual is mentioned in a law enforcement file does not give rise to a privacy interest cognizable under Exemption 7(C).[end of long quote]
Jim Bell's comments:Arguably, there is no "privacy interest" in an email posted on the Cypherpunks email list:   Anybody who posted an email knew that it was going to a public list, and that hundreds or even thousands of subscribers could not merely read and archive it, but also copy it to just about anywhere.  So, the Government cannot now claim that it can refuse to disclose this copied information on the basis that it was intended to be 'secret'. As for this one, rejected due to "Glomarization",   https://www.muckrock.com/foi/united-states-of-america-10/cypherpunks-67282/   I do not know in which court district this FOIA was filed, but that recent case out of the Northern District of California might have made this challengable.   https://www.techdirt.com/articles/20191119/13132743414/judge-says-fbi-cant-keep-refusing-to-confirm-deny-existence-social-media-monitoring-documents.shtml   Quote from that article:
"Following this are six straight pages detailing these agencies and their monitoring programs, all of which have previously been discussed publicly. But that still isn't enough.

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Twitter Kills Another Social Media Monitoring Service's Connection To It...

Twitter has cut off another social media "surveillance" company from using its API. To date, the platform has fo...
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[T]he Court finds that the weight of authority suggests that the ACLU cannot seek disclosure of the FBI’s policies based on other agencies having disclosed their own policies, together with acknowledgement that they share information with the FBI.

"If this seems to be going the government's way, it actually isn't. The Glomar and the attached exemption don't pair as well as the government would like. The Glomar, at least, is a step too far in the direction of unjustified opacity.

The problem for Defendants is that disclosure of social media surveillance—a well known general technique—would not reveal the specific means of surveillance. Denying a Glomar response would only reveal in general the application of a known technique by the FBI to immigration- or transportation-related investigations. Merely requiring the FBI to answer whether there are documents of the kind requested would not, at this juncture, require the disclosure of those documents which might reveal specific tools and techniques utilized by the FBI.

"The government then argued denying a Glomar might expose the FBI's lack of social media monitoring. The court says the FBI can't have its Glomar and its FOIA exemption if it wants to make that argument.

[T]he language of Exemption 7(E) refers only to disclosure of techniques and procedures, and not to the lack of any such technique or procedure, and the Ninth Circuit has limited the application of “risk of circumvention” of the law under Exemption 7(E) to guidelines, not techniques and procedures. Hence, it is not clear whether Defendant’s negative inference argument is cognizable under Exemption 7(E).
[end of quote]

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