ASAP '01 page 9 Tues. 11 Dec

Steve Garfinkel, ISOO, ex-GC for NARA & GSA
Presidential Records Act flaws now apparent.
Experienced in reverse FOIA suits.  Now oversees most of declassification program across govt.  Now under NSC policy guidance, formerly direction.  Scott Armstrong converted NSC into a non agency.  Also chair of IWG looking at Japan war crimes & other matters -- result of annoying little statutes mandating particular subject declassification -- gets in way of overall effort.  Public Interest Declassification Bd, from Act of 2000 -- chair but no members appointed by president & Congress. 
Access professionals only made by accident. 
Within a few years, individual staff in agencies est a profile of being pro or con openness -- staff, not agency's info were reason for profile. 
Reno and Ashcroft memos are all but meaningless -- access professionals make the difference.  Leaving government most proud of having protected classified info -- but could only do it with a credible declassification program.  Achieved over past 7 years -- hundreds of millions of pages that tell the story of our nation. 
French intelligence officer argued no French government would declassification because would gain nothing and be criticized.  But another Fr official was also considering declassification program., admired openness of USA. 
NObody brags about secret government -- most secretive are those non-democracies.

ASAP '01 page 10 

Privacy II
Frank Reeder, Reeder group

Peter Swire, GWU visitor, many pubs on google.com.  Ohio State regularly. 
Privacy and Security after September 11.  Frank Reeder was one of drafters of privacy act of 1974.

Privacy and greater security tools.  1970 Fair Credit Reporting act
1974 PA -- and rise of mainframes with all private data gathered. in giant databases.  Needed development of policy.
Second wave of privacy late 1990s.  Modern desktop like f mainframes, with Net giving instant, free instant and global transfers of data -- for individuals.  HOw to respond?  High interest in privacy -- WSJ poll found 29% rated erosion of personal privacy as top fear 2000. 

Clinton administration work: 1999-2000. 
Clinton Adman: * legal protect for medical privacy -- rule established at HHS, imp because medical is 13% of economy.  Financial privacy protection; kids online privacy act.
* self-regulation of internet privacy, rise from 14% to 88% without legislation.
* Government as a model of good practices, privacy policies on most web sites; summer 2000 OMB policies on cookies on Fed web site -- need top level approval for cookies.
Security issues: keeping out hackers, but also better security can threaten privacy -- e.g. Fed Intrusion Detection Net (Fidnet), e.g. Carnivore.  9/99 Clinton administration allowed strong encryption needed for mil & e-commerce.  Helps privacy & security. 

Wiretaps & surveillance:
Wiretaps: 920s Olmstead ct said no privacy because only toughing wire outside on street. 
1960s Sup Ct Katz decision: in phone booth w closed door, police not permitted to attach bug , reasonable expect of privacy. 
1968 Title III of Omnibus crime act -- strict rules fr content, reported to Congress, more than probable cause.
1970s Church committee and FISA.  CIA out of domestic spying, secret wiretaps in US.  Secret wiretaps but only for intelligence primarily. 

1984 ECPA e-communications privacy act
John Podesta in senate
* some protection for e-mail [rare then]
* some protection for who called info, pen registers, trap & trace (who calls you)

2000 administration proposal, headed 15 agency White House Working Group
Legislation proposed June 2000 S.3083
Hearings and markup in HR Judiciary
* update telephone language, e-mail and web like phones; ID new obstacles to law enforcement; sense of responsibility -- assure privacy but also law enforcement.
USA Patriot act based partly on this, a week after September 11.
Provisions
* no longer wiretap a device, process also.
* roving taps allowed, follows person.  But can you follow person into a public library, trapping all persons in that library?
* problem: less suppression remedy for e-mail and web use
* emergency order exceptions, can trace hacker before going to judge.  ANy "affecting nat sec interest" -- v. broad.
* Nationwide trap & Trace because e-mail may bounce via 6 Cos and needs one order only now. AT&T in old days was sole provider so easier until breakup.  Problem: one late night order from remote judge then served nationwide.
* Updating scope of data
- no longer to/from phone numbers only but any routing info but not content.  Problem?  URLs may be included.

Computer trespasser exception
* OLD: ISP monitors own system, gives evidence of yesterday's attack but could not invite law enforcement in control room to watch in real time.
* problem for DOD and many hack attacks, and for small system owners who need help.
* NEW: law enforcement can surf behind target person; system owner consents; lawful investigation; reasonably believes .
* Problems: no hearing on this in Congress, no time limit, no reporting requirement, FBI can ask system op to invite them in., Limited suppression remedy if exceed law. 
Solution was crafted badly -- will return as issue. 

Walls down between CIA & FBI
OLD: DOJ lawyers policed transfers of info between intelligence and law enforcement.
NEW: all the walls are down.  Computers being shared.
Terrorism is both domestic & foreign -- risk of separating data. 
-- Internet is across borders now.
FISA wiretaps NOW only need "significant purpose", not "primary purpose" of foreign intelligence.
Foreign intelligence, secret grand jury testimony can now go to CIA, no re-use limits. 

CONCERNS
* history of abuses in 1960s.
* risks surveillance of domestic , growth

ASAP '01 page 11 Swire continued
Going forward:
NOW less tolerance for hackers, cyber sec , greater tolerance for surveillance.
Greater surveillance, info gathering, info sharing.
Moral suasion for more surveillance by citizens.
Good data handling more imp.
Better audit trails now.
When systems upgraded, privacy and sec upgraded.
Patriot has 4 year sunset
Need hearings on new forms of accountability. 

Peter P. Swire
301 213-9587
pswire@law.gwu.edu
www.osu.edu/units/law/swire.htm

Some privacy worries now relabelled sec worries -- e.g. using credit cards over Net.
ID theft was privacy now sec issue -- terrorist might use our ID instead of a thief.
Question Time:
Reeder: Attorney General argued withholding of detainees names and of gun owners on grounds of privacy -- surprising argument.  Swire -- consent could be offered for release.
Historically arrest records are public. 
Terrorist not defined, security not defined.  Minor embezzlement included in terrorism owing to rush. 

Carnivore: laptop taken by FBI to ISP; lower level judicial scrutiny for saving to/from info for a person passing via e-mail.  Court ordered only.  But Carnivore can be set to trap all content on net -- needs higher level scrutiny. 

NEW 2001??
2000 email treated same as others.
Computer trespasser approach but not legislation proposal was NEW.  Voice mail under old law unlike e-mail was not more than phone cal -- needed super warrant - now voice mail like e-mail., easily obtained.

Reeder: OLD laws driven by target's expectations of privacy -- but now need education of citizens about new tech.
Patriot Act was not new but pulled out of word processors.  Luck is when prep meet soppy.  Increases likelihood of rational policy -- when crisis hits, too late and silly policy results.

ASAP '01 page 12 
David Rosenbloom, book, Building a Legislative Centered PA -- on Administrative Procedures Act, 1946 1946 & legislation reorganization act & others.

PANEL ON FOIA USERS:
Mark Zaid, James Madison Project, DIr., moderator.  Litigator since 1993 after law school.

Mark Tapscott, Heritage Foundation Center for Media & Policy. publicizes FOIA for users.  Survey of FOIA officers 5 agencies logs, 1st 6 mos of 2001, results show journalists 5th most frequent users., after liberal groups.  Declined over years.  Few users were major news & broadcast .  Becoming a rare tool for press.  Republican government depends on transparency.  Decline in # of invest journalists is problem.
Could not account for intermediaries requesting for journalists.  Believe press usually request directly.  Study does not also check number of downloads by media from web sites & readings rooms. 
Zaid: NSA putting up UFO info on web site to reduce large number of requests.

Aron Pilhofer, Ron Nixon Investigative Reporters & editors.
IRE has listserv.  Based at U MO but this op is in DC.  Ron ex Roanoke times; 
Uses of FOIA:
Collect 30+ government databases clean them and re-sell to media. 
Samantha Powers, Bystanders to Genocide, Atlantic Monthly, September '01.
Hartford Courant, Hundreds of Radioactive Devices Missing (NRC)
Seattle Times Story on uniformed Consent, deaths in cancer trials. 
USA Today Toxic Exposure Kept Secret, Poisoned Workers, declassification documents on NRC programs.
TRAC, Transactional Records -- David Burnham, ex NYT, Syracuse U base.  International Terrorism referrals for Prosecution Declined by reason, table of data., since 1989 site. 
Barlett & Steele, Time magazine (ex Philadelphia Enquirer) Big Money Who Gets Hurt (political finance). 
David Kidwell, Hundreds of Felons Cast Votes Illegally.  Miami Herald.  Found 44 felons voted illegally, mostly for Democrats.
Newsday NY, Danger on the Lists -- got disciplinary records on doctors from NY State, some HMO web site info, some drug abusers etc.  Filed lawsuit for the records.
AP wire -- No Gun Ri massacre in Korean war, declassification documents.  One source was tainted but rest of witnesses held up & won Pulitzer prize. 

Nat Sec price:
EPA, Army Corps removed data from web sites.
--see EFF web site tracking losses from government web sites.
CNN examined FAA records in web site (now removed) on sec violations at the airports used by hijackers.
Boston Globe Bridge Decay from FHA web site, now removed. 

Some media will contract with agency to not exp;lore down to few records (e.g. on school records)  but only aggregate scores. 
Zaid litigated the only expedited processing case under EFOIA.  Reports do not include requests for expedited, only results.  CIa never, NSA a few times, some agencies now take requests via e-mail and fax, much better than mail recently [we have heard 27 truckloads of mail for DOD waiting irradiation]. 
Ron -- FOIA is last resort because guaranteed slow. 
Some papers do put primary documents sourced in paper up on web -- e.g. Wash Post.  Interviews also posted after a story printed. 
Not all examples were actually using FOIA -- some used faster means.
Other surveys of media use of FOIA -- POYNTER Institute in FL has survey of uses of FOIA by Journalists.  .

Reporters Committee has new report on comparative state data on FOIA.

ASAP '01 page 13

E-Government: what it ought to be
Theresa Amato, Citizen Works.

Bob Carlitz, Info Renaissance, ex physicist, worked on internetting schools project.
Internet enabled citizenship
* Internet is enabling technology, redefines citizenship.
- Connections, speed, interactivity
connections are scalable & inter operable.
Universal act via Telecoms act 1996, but competition has not worked so well, local exchange carriers going out of business and baby bells are amalgamting.  Digital divide remains even though PCs cheaper.
Inter eroperability: open standards, open source -- cannot predict which Co will survive.
Speed: fiber to the home, neighborhood nets, smart buildings.
Interactivity: citizens & government, communities of interest.
Access to tools: open modeling (e.g. environmental) and expert systems.
Characteristics of Net: Transparency of continuous e-record, w background education materials, necessary tools to find use & understand info .
Target is audience is anyone, anywhere, anytime.  (For government web sites.)
Services = e-Government
* access, convenience & economy
Practice = e-Governance
* functioning of government, educated public, informed citizen involvement.
Continuous e-record includes scoping of issues, FACA meetings, notice & comment rulemaking, enforcement; active notification and recruitment; online dialogues; rebuttal comment periods.  In notice & comment rule making, most comments come in on last day -- should have rebuttal period..
Online dialogues: active notification; background education materials, moderated asynchronous discussion; interaction among stake holders; online communities of interest; comment structured to simplify analysis; online archive of public input. 
* e-rulemaking.

* new mechanism: online dialogues.

* Opportunities & barriers
Universal access; software advances; net improvements; citizen involvement; education materials' responsiveness; new face externally; uneven infrastructure; proprietary systems; last mile; agency burden; authoritative access; compartmented; internal change.
 

ASAP '01 page 14

E-Government and records management.
Mike Miller: NARA.gov (see web site)
Web submissions change the way you process and work, creating new kinds of documents.  Need to think about how long you keep records. 
Government Paperwork Elimination Act -- core business for NARA, should result in better records.  New records include certificates of trustworthy submissions -- incl. algorithms must migrate eventually to new systems.  Risk management includes keeping auditing info on each document, and guidance of the time of each incoming comment over time.  GPEA guidance is on web site.  e-signatures choices: keep code or keep note of validated.
Need to set lifetime for disposal of new records ahead of time. 
NARA will not spec single system of records management.
It is a record until proven otherwise.

Tony Frater, OMB OIRA, e-government solutions.  Mark Foremena recently (June) came to OMB for e-government, bold new vision -- he says can't have a digital democracy until we have e-government.  Need to streamline processes to serve missions, markets based get most efficient agency to serve, citizen centered, simplified & unified.   4 segments in citizens side: citizens, bus, 
Called G2c (government to citizen, etc.)
One stop shops, single points of entry for citizens.
Businesses -- communicate in their lang, reduce burden.
Intergovernment -- help reduce reporting requirements, ID redundant overlapping mission.
International Efficiency & effectiveness IEE -- private bus has gone through rev and we can steal concepts e.g. financial management. 
Simplify & unify mantra. in task force, found 487 lines of government business, avg. 19 agencies each -- too much redundancy.  (Like Hoover COmmission in restructuring interest).  REduce burdens by applying for services and serving benefits online.  COnsolidate databases, reduce stovepipes, online instead of data warehouse.  COntrast Thomas.loc with speed to searching CD music on web.
Improving knowledge management.
Internal Barriers to transformational challenge.  Who's accountable to process, data, sec & privacy, relation with citizens, delivery channel.

Question Time:
Miller: online dialogs can be preserved by summary
Touzin Dingell bill?
Blueprint for America, rest releasable w presidential budget in Feb. 

Patrice McDermott: Fed Computer week.
OMB web press releases
NARA suggesting take snapshot for archives of their web sites twice yearly plus whenever a major makeover.  ALso need policies, possibly records of visitors numbers.
CIO web site has much stuff on this.
michael.miller@nara.gov
for questions. 

Miller: 36M email messages from Clinton White House -- shows scale. 

ASAP '01 page 15 

What is/What you say it is. 
Miriam Nisbet, mod;
Executive Order on implementing PRA has cussed uproar, but unknown how much change it makes is unknown.
Scott Nelson, Public Citizen Lit Group
formerly on lawsuits on Nixon presidential papers.  When political or ideology imposes: New Bush Executive Order at odds w law, 1978 for presidential & VP records beginning w Reagan: property of fed government, access after leaving office by law, not choice of presidential, sent to archivist for 5 years, then under FOIA but under 12 years can blanket close records on nat sec, appointments, trade secretary, confidential communications on advice to presidential or between advisers.  (P)(5) restriction.  FOIA b5 does not apply to PRA -- but under 12 years for advising.   After that, cannot withhold -- but presidential can still make constitutional claim of privilege.
RR & Bush left 1989, so 12 years expiring now.  RR lib had opened 12 M pages to public -- but some withheld under P5 till Jan 20, 2001.  Still not avail, NARA notified presidential Bush and presidential RR intended to release 68K pp. of records.  Withheld under FOIA b5, dubious grounds.
Executive Order 13233 of W Bush is response.  When NARA releases any under PRA, former presidential gets at least 90 days to review, then current presidential gets unlimited review, can invoke constitutional grounds to withhold, w current presidential presumed to concur.  Families of former presidential may veto access indefinitely, also attorney-client common law privilege, and state secrets privilege which was thought to apply only to current pres.  Protests only moved up signing of Executive Order. 
Ari Fleischer defended on grounds of national security.
But nat sec doesn't justify former presidential veto -- and ignores prior review by declassification officials at NARA & agencies!
Executive Order does not limit claims of privilege.
Executive Order makes dramatic substantive changes, not just procedures.
Nixon v GSA Supreme Court established standing of former presidential to assert exec privacy -- but a far step now to say assertion is conclusive.  Ignores subsequent decisions in cts that claims of exec privacy are limited and reviewable.  E.g. Public Citizen v Burr.  US Ct of Apps for DC rejected government's position out of hand.  2 RR appointees joined decision.  AHA, NS Archive, Reporters Committee have filed suit to enjoin NARA from implementation order. 

Tim Edgar, Legislative Counsel for ACLU since May 2001, ex private practice.  On Ashcroft memo.
Would not be in ct if Bush had followed Reno memo.  Criticizing government is not aiding and comforting enemy.  Secrecy creates phantoms (ghosts) about arrests of detainees -- info withheld on charges etc.  ACLU requested basic info on detainees and charges -- but stonewalled. Wrong response was release of names of detainees would be illegal -- but names of individuals in immigration cases -- and case themselves -- are presumptively open by reg.
Defense no 2 was also wrong -- that release of names would help al Qaeda.  Defense no.3 was privacy of innocent individuals who had been swept up and released. 
Should follow Reno standards, instead.  Look for specific harm from release -- or must release.  Or use privacy grounds. 
FOIA lawsuit was filed last Wed.

Joe O'Connell, IBB (VOA, radio Marti), ex USIA. 
VOA chartered 1976 for accurate & objective news -- though government agency. John Chancellor said intersection of journalism & diplomacy.  Parent body is Broadcasting Bd of Governments, outside government, bipartisan, sec State is ex-officio, appointed by Senate, survive change of admin. 
Clash between State Department & VOA: more than usual.  Afghani mullah Omar interview issue -- has long broadcast into Afghan in two local languages -- 80% listen to VOA there, many listen daily.  unusually high by world standards.  BBC also reaches there.  VOA wanted local reaction to Bush speech to Congress.  Omar agreed to speak next morning.  [Time difference.]  Did not give open mike to Omar, but did include his voice with alternative views plus a commentary from a professor, in 3 min package.  State department still argued giving platform to terrorism.  VOA rejected State's call -- independent Journalism.  Many angry citizens called in to claim traitorous act.  VOA argues must be credible to persuasive in Middle East. 
Question Time:
Sen. Feingold in hearings last week asked detainee if publicity about name would have helped him -- said yes -- i.e. may not cause harm.

Dan Metcalfe, DOJ, open mike
Environmental worst case scenarios were made avail only to local people around the plants -- by statutory compromise.   Taken off webs.  About 2 years ago?

Question Time:
Navy department has only 11% of space left in Pentagon, records destroyed in fire.  Request was for analysis of data submitted from outside - but analysis was destroyed.  Records do not have to be recreated. 

Metcalfe: Miriam when at DOJ fought John Lennon FBI records case on appeal singing let it be -- to 9th circuit avocado circuit.

[Will Ferroggiaro deals with international FOIA developments.]