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Wednesday, May 29, 2024 | Back issues
Courthouse News Service Courthouse News Service

Watchdog May Get More on Encryption Program

SAN FRANCISCO (CN) - A federal judge ordered another review of secret files about an FBI program that would require encryption protocols among all communication services.

The FBI adopted the Going Dark program to expand the Communications Assistance for Law Enforcement Act (CALEA), according to the Electronic Frontier Foundation. It requires "all services that enable communications - including encrypted e-mail transmitters, social networking websites, and 'peer to peer' messaging services - to be technically capable of complying with wiretap orders, including being able to intercept and unscramble encrypted messages," according to a summary of the group's claims compiled by U.S. District Judge Richard Seeborg.

In a 2009 request under the Freedom of Information Act, the EFF asked the FBI to divulge "all records that describe the Going Dark Program", including all privacy assessments prepared for the program and all Systems of Records Notices that discuss the program.

It made a second request in September 2010 directed to the FBI, the Drug Enforcement Administration and the Criminal Division of the Justice Department.

This request sought documents concerning limitations that hamper the DOJ's ability to conduct surveillance on communication networks including encrypted services like BlackBerry, social-networking sites like Facebook, and peer-to-peer messaging services including Skype. It also sought access to any discussions the DOJ has had with operators of such services concerning its issues and how technology could be developed to allow the government to conduct the surveillance in the future.

Another target of the request concerned technical difficulties the DOJ has had obtaining assistance from foreign-based operators of communications systems or networks, as well as communications with foreign governments or trade groups about trade or import-and-export restrictions related to electronic communications, surveillance-enabling technology.

The EFF also requested any briefings or discussions between DOJ officials and members of Congress about proposed amendments to CALEA or other ways to require surveillance-enabling technology in electronic communications.

After initially identifying 8,425 pages as potentially responsive, the Justice Department released one page in full and six partially redacted pages. It withheld 51 pages in full. The DEA, which identified 1,036 pages of potentially responsive records, released 179 pages in full and 63 pages in part. It withheld 794 pages in full. The FBI released 707 pages in full or part, of 2,662 responsive pages.

Each agency said that the withheld materials either fell outside the date ranges specified in the requests or was otherwise not responsive.

On Tuesday, Judge Seeborg ordered them to "conduct a further review of the materials previously withheld as non-responsive."

"In conducting such review, the presumption should be that information located on the same page, or in close proximity to undisputedly responsive material is likely to qualify as information that in 'any sense sheds light on, amplifies, or enlarges upon' the plainly responsive material, and that it should therefore be produced, absent an applicable exemption," he wrote. "That said, there is no presumption that all materials initially identified as 'potentially responsive' must necessarily be produced."

The judge also ordered the FBI to create a new version of its Vaughn index. This file, which takes its name from the 1973 case Vaughn v. Rosen, identifies each document withheld, states the statutory exemption claimed, and explains how disclosure would damage the interests protected by the claimed exemption.

The EFF said it had difficulty with the FBI's current index because of the large number of different documents included in each summary, and the fact that it had claimed multiple exemptions.

While the 171-page supporting declaration purportedly explains the justifications for all the claimed exemptions, it does not identify documents by Bates numbers or otherwise, further exacerbating the problem, according to the ruling.

"The existing index is insufficient to provide an adequate foundation for review of the soundness of exemption claims," Seeborg wrote.

He ordered the FBI to product a revised index "as promptly as practical, making a good faith effort to address the issues raised by the EFF."

The parties must meet within 15 days of the dated order to negotiate a time table for the FBI to complete its revised index, after which they should submit a status report.

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