Judge Orders FBI to Speed Up Tracking Info Release

(CN) - The FBI can't delay releasing information on its controversial cellphone-tracking technology, a federal judge ruled, nixing concerns over the size and sensitivity of the request.

The Washington-based Electronic Privacy Information Center, or EPIC, claims that federal agents have been using StingRay technology to locate, interfere with and intercept communications through cellphones and other wireless technology since at least 1995.

StingRay's existence first came to light during the case against hacker Daniel David Rigmaiden, who was arrested for identity theft and other charges in 2008, EPIC contends.

During discovery in that case, Rigmaiden demanded that prosecutors disclose how agents found him, and a supervising agent allegedly alluded to the StingRay in court documents.

EPIC filed a Freedom of Information Act request to glean more information about the technology in February 2012, but the search languished for months until the group sued in April.

"The FBI finally issued the request to relevant offices on May 23, 2012," U.S. District Judge Colleen Kollar-Kotelly summarized Friday. "As of July 30, 2012, the FBI had gathered approximately 25,000 potentially responsive pages, although an initial assessment revealed a number of duplicate records within the 25,000 pages. ... The FBI estimates that approximately 25% of the responsive pages will be subject to classification/declassification review."

In the case of Open America v. Watergate Special Prosecution Force, the D.C. Circuit court held that federal agencies should be entitled to more time when they are "deluged with a volume of requests for information vastly in excess of that anticipated by Congress."

But Congress later revised FOIA to make clear that "exceptional circumstances" did not include "predictable agency workload."

"The bottom line is that the FBI failed to show that it is 'deluged with [a] volume of requests ... vastly in excess of that anticipated by Congress,'" Kollar-Kotelly wrote. "The number of FOIA/Privacy Act requests received by the FBI increased from 17,755 in FY 2011 to 19,599 through the first eleven months of FY 2012... In its motion, the FBI did not provide the number of requests received in fiscal years prior to 2010, but the publicly available data reported by the Department of Justice indicates that the number of FOIA requests received by the FBI dropped by over 25% between FY 2008 (17,241 requests) and FY 2012 (12,783 requests)." (Parentheses in original.)

The FBI failed to impress the judge by protesting the growing number of complicated FOIA requests that flood its offices.

"Admittedly, the number of requests involving more than 8,000 pages has increased since FY 2007, but today those requests still constitute less than three percent of all pending requests," the 12-page opinion states.

Kollar-Kotelly also declined to let the FBI justify its delays by pointing to the amount of classified information in the StingRay documents. She appeared to doubt the agency's claim that it works hard to reduce its FOIA backlog.

"The FBI points to the restructuring of its FOIA processing division as evidence of its commitment to reducing the backlog," she wrote. "While admirable, the numbers belie any claim that the FBI's progress in reducing its backlog has been 'reasonable.' Assuming the FBI received 1,781 additional FOIA/Privacy Act requests in September 2012 (the average for the eleven months prior), between FY 2011 and FY 2012, the number of FOIA/Privacy Act requests received by the FBI increased by 20%, yet the backlog of requests at the end of each year increased by nearly 220%. ... Using the publicly available data, the number of FOIA requests received by the FBI increased by 15% in FY 2012, but the backlog of requests increased by 65%. For broader context, consider that the FBI backlog of FOIA requests increased by 55% between FY 2008 (1476 pending requests) and FY 2012 (2296 pending requests), despite a 27% decrease in new FOIA requests. The FBI's efforts to increase the efficiency of its system for processing FOIA requests is certainly commendable, but on this record the court cannot find that these efforts have led to 'reasonable progress' in reducing the agency's backlog." (Emphasis and parentheses in original.)

The FBI must produce all responsive, nonexempt documents by Aug. 1, and it must indicate how many of pages will be subject to classification-declassification review by the end of May.

StingRay has also factored into the identity-theft prosecution of Daniel Rigmaiden. In a new amicus brief filed on Rigmaiden's behalf in that case, the American Civil Liberties Union says that the evidence uncovered by the StingRay should be suppressed.

"The government cannot obtain judicial approval for a search using sophisticated, uniquely invasive technology that it never explained to the magistrate," the amicus brief states.

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