Skip to content
Sign up free
News

Department of Homeland Security Tries to Dodge Freedom of Information Act

Department of Homeland Security Tries to Dodge Freedom of Information Act

By Terri Harel

3-minute read

us-department-of-homeland-security-office

A court ordered the Department of Homeland Security on Tuesday to follow through with a request from the Electronic Privacy Information Center, which asked for papers regarding a cybersecurity pilot program via a Freedom of Information Act (FOIA) request back in July of 2011.

The Department of Justice additionally requested the ability to “claw back” documents that they determine, at a later time, to have breached their classification or jeopardize the program in any way. The court denied this request.

Judge Gladys Kessler noted the DHS did not take EPIC’s original request seriously and it wasn’t until the Center filed a lawsuit against the government agency in March of last year that they began to process any documents.

The program in question is a joint effort by the Department of Homeland Security and National Security Agency to prevent cyber attacks on government contractors and their ISPs. ­The program has yet to be given a public name, but the NSA partnered with AT&T, Verizon, and CenturyLink (all ISPs) to intercept defense contractors' communications.

The NSA denies any “direct” monitoring of the networks, but the Department of Justice has expressed concern about, once again, the legality and ethics of such monitoring. It also appears that such activity necessitates scanning all information, which could, hypothetically, then be translated, surveyed, and assessed.

The one-of-a-kind program would include surveillance of the contractors’ e-mail correspondence and other traffic, according to The Washington Post’s original report on the pilot program in 2011. The topic has since all but disappeared from discussion.

EPIC filed their request for documents no more than a month after the Washington Post story was published, and has been engaged in a court battle for the information ever since. The DHS acknowledged the request in August 2011, but on one point they could not acquiesce: “Any privacy impact assessment performed as part of the development of the new NSA pilot program.” To this, “the DHS determined they could not locate or identify any responsive records.”

Apparently, this was because the “pilot program belongs to another agency.” The DHS referred the request to the appropriate agency, which sits under the DHS, called the National Protection and Programs Directorate (NPPD).  EPIC was not contacted until January 23, 2012, by phone, with no official response ever transmitted to the center.

The DHS continued to request more time to begin handing over information to EPIC, including one 16-month delay.

Now, almost a year and a half later, EPIC has yet to receive a single page of documentation for review. Interestingly, only last week, the 2013 National Defense Authorize Act (NDAA) was signed into law. This year’s budget includes a provision that distinctly calls out defense contractors’ obligation to hand over to the government any cybersecurity threats, breaches, and all subsequent relevant information regarding such activity.

Sure, cybersecurity is an important branch of national security, but the concern lies within the deployment of such technologies into general domestic web traffic. In 2011, James X. Dempsey, a public policy expert at the Center for Democracy and Technology, which tracks civil liberties, notes, “We wouldn’t want this  to become a backdoor form of surveillance.”

The protective order attempted by the DHS is, according to the director of EPIC’s open government program, in blatant violation of FOIA and contrary to the law which makes public information about government activity available. A slow erosion of government transparency is more dangerous than a sudden 180, for it is such subversion of civil liberties that leaves them lost for good.

Tags: News

Adhere to the IVN etiquette

By posting a comment, you agree to adhere to our etiquette rules: No partisan attacks, no personal attacks, substantiate your sources, no self-promotion.

Get IVN’s Free Weekly Newsletter:Get IVN’s Free Newsletter

Get IVN’s Free Weekly Newsletter:Get IVN’s Free Newsletter

Nonpartisan Issues. Diverse Perspectives.

Check your inbox and click the link to confirm.

Republish this article

Republishing guidelines

Republish IVN articles for free. Independent Voter News articles may be republished online or in print under a Creative Commons BY-NC-ND 4.0 license, on these terms:

  1. Credit the author and IVN. Keep the byline ("By Author Name, Independent Voter News") and the attribution note at the end, which links to the original.
  2. Keep the meaning. You may update time and place references and apply your house style. You may trim for length, as long as the cuts don't change the meaning or misrepresent the author. Keep the headline. Mark any additions as your own (for example "Additional reporting by ...").
  3. Translations are welcome. Translate faithfully, add "Translated from English by [your outlet]", and tell us at editor@ivn.us.
  4. Keep the links, including the link to the original article.
  5. Keep the tracking image. The HTML includes a 1-pixel image that counts readers on your page. It collects no personal information.
  6. Photos and illustrations. Images credited to IVN may be used with this article only. Images credited to others (AP, Getty, Unsplash, Wikimedia and so on) stay under their owners' terms. Secure the rights or switch "Include images" off.
  7. Don't sell it. You can't sell our articles or sell ads specifically against them. Your normal site advertising is fine.
  8. No implied endorsement. Don't suggest that IVN or the author endorses you, your candidates or your causes, or that donations to you support IVN.
  9. Keep labels. Opinion or analysis pieces keep that label.
  10. Point search engines to the original. Set the canonical URL of your copy to the original IVN article (the HTML we give you includes the tag).
  11. No bulk or automated republishing, and don't submit our articles to aggregators (Apple News, Google News, MSN) as your own.
  12. Corrections and removals. Update your copy when we correct it, and remove it promptly if we ask. We'll contact you at the email you give us.
  13. Questions or print republication: editor@ivn.us.

IVN staff: fill in who you're inviting above, then create the invite.

Preparing the article

Department of Homeland Security Tries to Dodge Freedom of Information Act

Choose a format
  • HTML
  • Email HTML
  • Markdown
  • Formatted (.docx)
  • Plain text
  • WordPress blocks
  • PDF
Choose a platform

Photos credited to others need their owners' permission.

To for

Republishing somewhere else? Questions? editor@ivn.us