DHS seeks “claw back” agreement for FOIA’d documents

Tangled in a federal trial, the Department of Homeland Security (DHS) is doing all it can to keep controversial documents from the hands of advocacy group Electronic Privacy Information Center (EPIC).  On January 7, 2013, in arguments before court, the DOJ advocated for a protective order and a “claw back” agreement, blocking EPIC from revealing any of the DHS’s FOIA’d information.  Hungry for their long-awaited documents, EPIC challenged this argument by stating the protective order was contradictory to FOIA Law.  But to fully understand EPIC’s frustration and persistence, one must go back to July of 2011.

In order to defend the nation and its secrets against the ever-evolving technological world, the National Security Agency (NSA) partnered with Internet Service Providers (ISPs) to deploy new strategies for scanning emails and other forms of digital traffic.  The goal was to thwart cyber-attacks by identifying malicious programs that have slipped into the data streams that flow to the nation’s defense firms. This project required NSA and ISPs to filter domestic Web traffic, which threw a red flag for privacy activists.  The DOJ was concerned that the program would run afoul of privacy laws that forbade government surveillance of private internet traffic.

In July of 2011, EPIC submitted a FOIA request to DHS asking for all contracts and communications with defense contracting firms Lockheed, CSC, SAIC, Northop, AT&T, Verizon, and CenturyLink, or ISP regarding the new NSA Program, as well as other memos or related records.  Months passed and on March 1, as a result of DHS non-responsiveness, EPIC filed a lawsuit to aid the disclosure of the monitoring program documents.

DHS stated that they would only release the documents if EPIC agreed to the protective order, restricting them from sharing technically “public” information.  Gladys Kessler, the federal judge ruling the DHS vs. EPIC case, stated that “it doesn’t do the plaintiffs any good if they can’t freely share the documents at large.”  Judge Kessler also noticed that the time taken to transport documents back and forth between federal agencies has tripled.  Appalled with this length of time, Judge Kessler eventually ruled in favor of the plaintiff, EPIC.  DHS is required to produce all non-exempt documents by April 15, 2013.

Some sources think that the new NSA and DHS program has something to do with their attendance at Defcon, an annual hacker convention.  Computer hacking skills are in high demand in the government as the world progresses into a more and more technology-driven world.   Nowadays, conflicts take place on a cyber-battlefield and “it’s cyber-warriors we’re looking for…,” said Richard George, technical director of NSA’s Information Assurance Directorate.  “We need the best and brightest….”

Should the DHS have the power to attach a protective order to FOIA’d information or does this violate the FOIA ?