ODNI Says Whistleblowers Comparable “Insider Threats” to Spies and Murderers, Suggests Anyone who Damages Agency Reputation Should Be Considered a Threat: FRINFORMSUM 11/19/2015

Somewhat contradictory slides from ODNI.

Exonerated whistleblower Thomas Drake – who helped shed light on the National Security Agency’s mass domestic surveillance practices in 2005 and who the government was forced to drop all 10 espionage-related charges against after he rejected a series of plea deals – is, according to the Office of the Director of National Intelligence’s National Insider Threat Task Force, a comparable threat to Ft. Hood and Navy Yard shooters Nidal Hasan and Aaron Alexis, respectively. The astounding leap was made earlier this week during a webinar entitled “Simple Steps and Guidance to Secure Classified Networks” and PowerPoint presentation given by ODNI official Patricia Larsen. The slide immediately preceding Drake’s un-ironically lists “Exonerated innocent individuals” as one of the many successes of the government’s insider threat programs.

The PowerPoint also lists Drake’s fellow whistleblower Edward Snowden as another dangerous insider threat. Earlier this week CIA director John Brennan lamented the constraints placed on spy agencies after Snowden’s leaks shed more light on the NSA’s bulk surveillance, and suggested that the leaks made it more difficult for law enforcement and intelligence agencies to detect and prevent the Paris attacks. Brennan’s comments were remarkably callous considering, among other things, that the perpetrators were already known to law enforcement, that indications are that their cell phones were unencrypted, that “the most consequential” restraint placed on spy agencies post-Snowden – terminating the bulk collection of the NSA’s phone data – hasn’t gone into effect yet, and “Nothing has changed since that revelation to restrict the NSA’s ability to sweep up communications exclusively among foreigners, as was apparently the case for the plot in France.” Brennan’s agenda-pushing comments were not, however, surprising, considering the spy chief is the same man who lied to the Senate Intelligence Committee about spying on Senate staff investigating the CIA’s torture program after accusing the Senate staff of inappropriately accessing CIA documents, and then cleared all senior agency officials of any wrongdoing.

Larsen also troublingly claimed during the insider threat webinar “that any employees and contractors who damage an entity’s reputation, be it government or business, by exposing inside information should be considered insider threats, as they ‘would be in the business world.’” The implication here is a chilling one to whistleblowers trying to shed light on agency wrongdoing. Other targets of the ODNI presentation include “anonymous dropbox services used by news organizations, like SecureDrop at the Washington Post, New Yorker, The Guardian, The Intercept and Gawker.”

Secret Service Director Joseph Clancy on whistleblowers: “You gotta, uh, let them go.” (Photo: Andrew Harnik/AP)

The House Oversight Committee is asking Secret Service head Joseph Clancy to explain why his agency “appears to be trying to identify whistleblowers” while vowing to fix the problems the whistleblowers exposed. In a letter co-signed by Jason Chaffetz (R-Utah) and Elijah Cummings (D-Md.) the Committee reiterated that “Secret Service personnel — like all federal employees — have a constitutional right to communicate with Congress under the First Amendment, and it is against the law to deny or interfere with an employee’s right to furnish information to Congress”. Chaffetz called the Secret Service’s investigation to discover the whistleblower “highly inappropriate”, while Clancy defended the agency’s position, saying “Everyone knows whistleblowers perform an important function,” going on to say, “You gotta, uh, let them go.”

Video recoding of the FOIA Advisory Committee’s latest meeting, which was held on October 20, is still unavailable online. The unexplained delay makes it harder for stakeholders – with no way of knowing what was said at the meeting until a transcript of it was posted today, a month after the meeting has held – to promote the Committee’s efforts to improve and modernize FOIA administration. The Obama administration’s second Open Government National Action Plan expressly called the committee a FOIA Modernization Advisory Committee, making the Committee’s decision not to continue to take full advantage of inexpensive live-streaming devices that were used for its first few meetings sadly ironic. It is unclear why this practice of live-streaming the meetings was abandoned in favor of posting footage and transcripts (weeks? months?) later, although one theory is that 508 compliance requirements — making government documents as accessible to those with disabilities as those without — factored in the delay (which, if true, would further call into question the Committee’s commitment to its mandate to utilize technology to modernize FOIA). What is clear, however, is that the open government community would be better served having its own representatives recording the next meeting to help ensure we have prompt (real time) access to what is going on at these public meetings. The Office of Government Information Services, OGIS, the FOIA ombuds that provides funding and administrative support for the Committee, has said that the video will be posted soon, but offered no firm dates. Unredacted will post an assessment of the meeting as soon as the video is available. Any open government interns volunteer to stream the next meeting on their iPhone?

Adam Marshall of Reporters Committee for the Freedom of the Press has published an excellent rundown of the “release to one, release to all” pilot program for FOIA-released records, which seven agencies are taking part in. The Archive’s Nate Jones notes that the results of the pilot program three months in allay concerns from journalists that they would get “scooped” if agencies posted their FOIA requested-records to them and the public at the same time, noting that the documents are hidden in plain sight. USA Today’s Brad Heath also said he hasn’t noticed an impact on his journalistic abilities, but said before you can “release to one, release to all, you have to release to one.”

The Supreme Court will not hear New Hampshire Right to Life v. Department of Health and Human Services, No. 14-1273, a case seeking Planned Parenthood records sent to HHS for grant money “as well as internal HHS documents describing its plan to go ahead with the grants” under the FOIA. SCOTUS’s decision means that the United States Court of Appeals for the First Circuit’s decision, that the documents were protected by FOIA’s Exemption 4 concerning records containing “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” stands. Justices Clarence Thomas and Antonin Scalia “dissented, saying disagreements in the lower courts over the scope of the open records law, the Freedom of Information Act, warranted Supreme Court review.” The plaintiff also asked the Court to clarify Exemption 5, “which exempts from disclosure intra-agency memos or letters which would not be available if sought in a civil case in federal court. The dissenters did not discuss that challenge.”

A report released this week by the Department of Justice found that black Americans are twice as likely “to experience non­fatal force or the threat of force from police” (the study defines non-fatal use of force as anything from shouting, cursing, to using tazers or pointing a gun). While interesting and timely on its own, data-journalists may be especially interested to know that the report was based entirely on data collected by the Bureau of Justice Statistics’ Police-Public Contact Survey (PPCS). The Bureau of Justice Statistics is a component of the DOJ whose website houses a wealth of data on courts, crimes, and law enforcement and is worth a visit by data-hounds.

The U.S. Citizenship and Immigration Service (USCIS) has one electronic form to show for its four-year, $3.1 billion effort “to replace its antiquated approach to managing immigration with a system of digitized records, online applications and a full suite of nearly 100 electronic forms.” The Washington Post reported that the program was mismanaged from the outset, and that as early as 2012 officials at USCIS’ parent agency, the Department of Homeland Security (DHS), “were aware that the project was riddled with hundreds of critical software and other defects. But the agency nonetheless began to roll it out, in part because of pressure from Obama administration officials who considered it vital for their plans to overhaul the nation’s immigration policies, according to the internal documents and interviews.”

The number of secrecy orders in effect at the end of fiscal year 2015 is 5,579 – the most in a decade. Most of these orders, which are placed on patent applications if the government believes that “granting the patent and publishing it would be ‘detrimental’ to national security,” are renewals of previously granted secrecy orders. Steven Aftergood noted that a FOIA request to the US Patent and Trademark Office showed that there were only “95 new secrecy orders imposed last year, while 36 prior orders were rescinded.” Three of the newly rescinded orders have been identified thanks to a FOIA request sent to the USPTO; these are:

“Patent Number 9057604: Point-ahead laser pointer-tracker systems with wavefront correction in both transmit and receive directions. Filed in April 1989, the patent application was finally granted in June 2015.

Patent Number 9115993: Fused PM fiber single-polarization resonator. It was filed in August 1990 and granted in August 2015.

Patent Number 9181140: Solid propellant bonding agents and methods for their use. It was filed in December 1993 and granted in November 2015.”

This week’s #tbt document pick is a 2001 posting on President Richard Nixon’s decision to halt the US biological warfare program, a posting that includes the official history of the Army’s activities in the US biological weapons program.

U.S. Army Activity in the U.S. Biological Warfare Programs (Volumes I and II), U.S. Department of the Army, February 24, 1977.

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Happy FOIA-ing!