Tuesday, November 15, 2016

Sunshine laws, whistleblowers and Wikileaks

In a past life, I used the Freedom of Information Act (FOIA, enacted 1966) and the Privacy Act of 1974 (PA) to gather documents from the federal government. FOIA can be found in the United States Code (USC), Title 5 at section 552, or in shorthand, 5 USC 552. The PA can be found 5 USC 552a. I learned how to do this from a good friend of mine and never forgot the skills to do it.

After a year or so of practice with the feds, I began to figure how to apply the same skills to the states that I lived in. All states have laws that are analogous to the FOIA and PA and they can be used to request documents, often for free. I have filed more than 300 such requests and I don't think I ever lost an appeal. With knowledge of these laws, we can use them to learn how our government works and how determinations about us are made in ways we probably didn't learn in school. All of these laws are known as Sunshine Laws.

Sunshine laws came about first at the federal level with the passing of the Administrative Procedure Act (APA) in 1946. The APA was passed to give people a reliable means of accessing records of meetings where regulations are discussed and adopted. The APA gives ordinary citizens insight into the decision making process of federal agencies. Most states have an APA of their own, too.

So why am I sharing this with you now? Because I want to put Wikileaks into a broader context. The email scandal that dogged Hillary Clinton throughout the 2016 election did not start with Wikileaks. The email scandal came about because of a FOIA lawsuit filed by Judicial Watch, a conservative government watchdog organization. They brought the lawsuit because certain records created by Hillary Clinton could not be accessed and retrieved in normal State Department records. During the lawsuit, it was "discovered" that Hillary Clinton was using a private email address, on a private domain, on a private server in the basement of her home. Why did she do this? To circumvent the FOIA.

Why would she want to circumvent the FOIA? Accountability. Hillary thinks she's above the law and that laws are for little people. We can see it in the way she behaves and the kid gloves that James Comey has used to treat the investigation of her email practices as Secretary of State. For many people, that entire fiasco has been described in a very general nature, as if somehow, this doesn't really affect us personally, but it does and it can.

Let's imagine that you have been placed on the no-fly list by the department of Homeland Security. You'd like to appeal that decision, so to prepare yourself, you make a few very well placed requests under the Freedom of Information Act and the Privacy Act. The meat of your requests? Documents that show how the determination was made to put you on the no-fly list. You're not a terrorist, not even close, but somehow, you got on the list.

As you correspond with the government, you discover that the decision making process should leave a paper trail, but there is none. It is discovered that the entire process was conducted via email on private servers on private domains with private addresses. You discover that the decision making process was recorded in a place that is not authorized by law.

The Privacy Act requires that documents about individuals be maintained in a system of records as defined by the Act. A system of records is a well defined location for the documents to be maintained, the description includes the location of the records, the media used to maintain them and the identify of the officer responsible for maintenance. This system of records must be published in the Federal Register, the same publication where all other regulations are published, so that we know where to find documents about us. If the records of the determination are not in the system of records, you have a violation of the Privacy Act, and potentially, the Federal Records Act.

The procedure for requesting records is fairly easy to follow. You write a request for records concerning you under penalty of perjury to affirm that you are who you say you are. You identify the documents you are seeking and address the request to the officer responsible for maintenance of the records. The agency has a time limit of 10 business days to respond to the request. I usually give them 30 days to respond by mail.

If the agency does not respond to the request in a timely manner, then the requester can assume that the request has been denied and appeal the determination. If the appeal is denied, then the requester can sue in federal court for relief. These are administrative remedies and they must be exhausted before proceeding to court. These administrative remedies apply to both the PA and the FOIA.

As you can see, the Sunshine Laws, particularly the FOIA, are near and dear to my heart. They are required for a functioning democracy. Anyone who intentionally runs afoul of these laws has failed to demonstrate an interest in democracy.

Sometimes an agency receives a request for politically sensitive information. We could call this information "hot". In response to such a request, the agency may stall and delay. The agency may intentionally deny an appeal. If the requester is determined, he may file suit in court for records.

Sometimes, an employee of agency clearly sees something wrong. You know, like Edward Snowden. Instead of following the usual process for disclosure, he goes outside the law to share that information with fellow citizens, to warn them of a potential conspiracy to harm the people. He may feel it is his civic duty to blow the whistle.

There is pressure in politics and whistleblowers serve an important purpose: to relieve that pressure. When that pressure is relieved, we can have a conversation with the government about how to work together. You know, because we're stronger together, right?

Unfortunately, the Obama Administration has been the most punitive prosecutor of whistleblowers this nation has ever seen. The Obama administration utterly fails to see any social value in whistleblowers and would happily sentence them to a life of incarceration. In this context, it is clear they are not working for the common man. They are working for the 1%.

Now it turns out that the entire Obama Administration is flouting the law. They too, are using private email to conduct official business. Just in case anyone forgot, the Bush Administration did the same thing and "lost" 22 million emails. I guess accountability and transparency only applies to the governed, not the governing.

Will we be treated to the same behavior with the Trump Administration? Will Judicial Watch use the same level of scrutiny on Trump's team as they did for Hillary or even Obama? Will the ACLU step in to apply the same level of scrutiny to either administration? Well, I should hope so. They wrote more than a few good books on how to use the FOIA like this one.

When people don't feel safe blowing the whistle, they go to organizations like the International Consortium of Investigative Journalists or Wikileaks. They find places to dump their documents anonymously to raise awareness that the government that claims to represent them doesn't respect the same people they claim to represent. They seek to expose conspiracies and that exposure has an interesting effect.

As Julian Assange noted in his essay, Conspiracy As Governance, conspiracies require trust in order to function. They require trust in the methods of communication in order to perform collaborative cognition. If you cut the cord, then you slow the cognition down, because now the process must route around the damage. If you compromise the trust of the channels that carry the information used by the conspirators, then they have to find new channels to pass that information between themselves. Do that enough, and the conspiracy can no longer process information and fails to function.

If government officials are not using the means provided to them by law to keep their records, then they are not willing to be held accountable. They are engaged in a conspiracy, not democracy. It doesn't matter if their intentions are good. What matters is whether or not they would be tempted or even willing to work against the people they are supposed to serve given enough privacy to do it.
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