U.S. Jammers in Middle East May Come to Light

     SAN FRANCISCO (CN) – A federal judge may shine a light on foreign dictatorships that have imported illegal surveillance and jamming technology from the United States.
     Events from the so-called Arab Spring show that Middle Eastern dictators have used Western technology to quash uprisings, the Electronic Frontier Foundation (EFF), a nonprofit digital watchdog group, has said.
     To understand how and why despots get access to U.S. surveillance and filtering devices, the EFF has been filing Freedom of Information Act requests with the Department of Commerce for years regarding the licensing of these technologies outside the United States.
     The group says that the agency admitted in a separate FOIA response that it had granted licenses for the export of “surreptitious listening” devices – unavailable to the public in the U.S. – to Syria, Jordan, Gabon, Lebanon, United Arab Emirates, Afghanistan, Iraq and Mexico.
     Last May, EFF sent an information request to the Commerce Department’s Bureau of Information and Security, asking for all agency records created from 2006 to the present that detail the export of surveillance and jamming technology. Specifically, the group said it asked for a list of granted and denied licenses and all agency policies concerning technology “primarily useful for the surreptitious interception of wire, oral or electronic communications.”
     Though the bureau released two pages of records, it refused to disclose the license applications under an exemption for materials that are withheld under statute.
     U.S. District Judge Thelton Henderson disagreed last week, however, that the Commerce Department can rely on the Export Administration Act to justify its exemption since the statute expired in 2001.
     He also declined to find that President Barack Obama extended the act with an executive order that continued “the national emergency with respect to export control regulations.”
     “Commerce has not shown that there is a statute within the scope of Exemption 3,” Henderson wrote. “Executive Order 13222 is not a statute; it is an order by the President that the export control system be continued in effect ‘[t]o the extent permitted by law.’ Since the President lacks the power to unilaterally amend acts of Congress, Executive Order 13222 may not be interpreted as extending the Export Administration Act’s August 20, 2001, expiration date.”
     Executive authority under the International Emergency Economic Powers Act – permitting the president to regulate exports to foreign countries in times of national emergency – additionally falls outside the scope of the FOIA exemption, according to the ruling. Furthermore, Congress understood the last time it extended the act that, after it expired, “Commerce would not be able to rely on Exemption 3 to withhold information protected from disclosure,” Henderson wrote.
     The judge stopped short of ordering full disclosure, however, noting that the Commerce Department must further explain whether it can apply Exemptions 4 and 5, which permit the withholding of trade secrets and internal memorandum, respectively.
     “In such cases, courts ‘require that when an agency seeks to withhold information it must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply,'” Henderson wrote, citing 1977’s Mead Data Center Inc. v. Dept. of Air Force. “This is typically accomplished through a ‘Vaughn index,’ a document that identifies each item of information withheld and the corresponding FOIA exemption claimed, and provides a ‘particularized explanation’ of how disclosure of the information or document withheld would ‘damage the interest protected by the claimed exemption'” as detailed in Vaughn v. Rosen.
     Henderson continued: “Commerce has not provided a Vaughn index in this case. Instead, it relies on two declarations to justify withholding the requested information under Exemptions 4 and 5, the first from Eilen Albanese, the BIS official who spearheaded the search for records responsive to EFF’s request, and the second from Paul Freedenberg, the chairman of a trade association of exporters of controlled goods. These declarations do not provide enough detail about the nature of the information contained in the withheld documents and Commerce’s rationale for withholding them to permit EFF or the court to assess Commerce’s arguments under Exemptions 4 and 5.”
     The judge ordered the Commerce Department to reprocess EFF’s FOIA request and provide a Vaughn index. Finding that the agency’s search for records satisfied its legal obligations, he also rejected EFF’s contention that export control categories added after its FOIA request should have also been searched and addressed.
     “While agencies should work with FOIA requesters to define the parameters of their requests, FOIA requesters must phrase their requests with sufficient particularity to enable the agency conducting the search to determine what records are being requested,” Henderson wrote. “Litigation is not an appropriate forum for expanding the scope of a FOIA request or hashing out the scope of an ambiguous one.”
     Henderson gave the Commerce Department until Aug. 9 to reprocess EFF’s FOIA request and provide the court with details on compliance.

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