TLJ News from May 6-10, 2007

9th Circuit Rules in Wiretap Case

5/10. The U.S. Court of Appeals (9thCir) issued its opinion [25 pages in PDF] in Whitaker v. Garcetti, a 42 U.S.C. § 1983 case against former Los Angeles County District Attorney Gil Garcetti, the County of Los Angeles, the City of Los Angeles, and other law enforcement persons.

In policy debates in Washington DC regarding government abuse of national security letters, Section 215 orders, and TSP orders, and other warrantless intercepts, advocates of privacy and civil liberties often argue for something similar to Article III wiretap procedure. Such procedure would include a warrant requirement, issued by judges, upon a finding of probable cause based upon sworn statements of law enforcement officers, subsequent disclosure to prosecuted parties, and opportunity to challenge the warrants and the admissibility of the evidence obtained thereby.

The discussion of the law in the present case pertains only to § 1983, standing to bring § 1983 actions, qualified immunity of government officials in § 1983 actions, and application of the defense created by Heck v. Humphrey, 512 U.S. 477.

However, the underlying facts of the present case, as related in the Court of Appeals' opinion and the District Court's opinion, suggest that reliance upon Article III procedure to protect privacy and civil liberties can be overrated or misplaced.

In the present case, law enforcement officers may have submitted falsified warrant applications. The issuing judge of the Superior Court may have exercised lax review and oversight. The Court allowed extraordinarily long durations of 11 and 22 months. The Court allowed exceedingly broad surveillance. One warrant covered 30 lines and resulted in the interception of "over 30,000 conversations". The other covered 22 lines and resulted in the interception of "dozens of thousands of conversations".

Moreover, while drug related charges were eventually brought, and these charges grew out of evidence of drug trafficking obtained by the wiretaps, no one identified in the warrant applications or supporting affidavits was charged. In addition, the intercepts extended to attorney client communications of Jack Whitaker, the lead plaintiff. He too was neither identified in the application or supporting affidavits, or charged.

Also, the use of the wiretaps was not disclosed to either the charged persons or to Whitaker and other persons not charged. The police used an evidence laundering scheme to evade disclosure requirements. One police unit obtained the warrants, conducted the wiretaps, and obtained evidence of crimes. Then it provided certain information about the suspects to a second police unit, but without disclosing the existence of the wiretaps. The second unit was instructed to investigate, to obtain purportedly independent probable cause. It did so, and eventually made arrests. The second unit did not disclose the existence of the first unit's wiretaps. Evidence obtained from the wiretaps was used to obtain evidence that was used to obtain convictions, without prior disclosure to the defendants.

The District Court granted summary judgment to the plaintiffs' on some of their § 1983 claims, and granted summary judgment to the defendants on others. The Court of Appeals reversed all portions of the summary judgment in favor of the plaintiffs except for Whitaker's claim that the wiretap that intercepted his telephone call was obtained using a falsified warrant application. None of the claims related to evidence laundering survive.

This case is Jack Whitacker, et al. v. Gil Garcetti, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 05-55629 and 05-55690, appeals from the U.S. District Court for the Central District of California, D.C. No. CV-99-08196-WJR, Judge William Rea presiding.

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5/10. The House amended and approved HR 2082, the intelligence authorization bill. The vote on final approval was 225-197. See, Roll Call No. 341. Almost all of the Democrats voted yes. Almost all of the Republicans voted no. Final approval was early on May 11, but still part of the legislative session of May 10.

5/10. The House amended and approved HR 2206, the supplemental appropriations bill for FY 2007. The vote on final approval was 221-205. See, Roll Call No. 333. Almost all of the Democrats voted yes. Almost all of the Republicans voted no. It contains the following language for the Federal Bureau of Investigation (FBI) and its use of National Security Letters: "For an additional amount for `Salaries and Expenses´, $268,000,000, of which $258,000,000 is to remain available until September 30, 2008 and $10,000,000 is to remain available until expended to implement corrective actions in response to the findings and recommendations in the Department of Justice Office of Inspector General report entitled, `A Review of the Federal Bureau of Investigation's Use of National Security Letters´, of which $500,000 shall be transferred to and merged with `Department of Justice, Office of the Inspector General´." This bill also contains additional funding for "International Broadcasting Operations".

5/10. The U.S. Court of Appeals (7thCir) issued its opinion [12 pages in PDF] in US v. Genendo Pharmaceutical, a case regarding seizure by the U.S. of prescription drugs imported into the U.S. for repackaging and distribution by Genendo that were intended for sale in other countries. The Court of Appeals affirmed the District Court's seizure and condemnation of the drugs, and its permanent injunction barring further importation. The case involves interpretation of the Federal Food, Drug, and Cosmetic Act. This case is USA v. Genendo Pharmaceutical NV, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 05-4608, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 03 C 6495.

5/10. The U.S. Court of Appeals (6thCir) issued its opinion [PDF] in J.B.D.L. Corporation v. Wyeth-Ayerst Laboratories, a class action brought under Section 2 of the Sherman Act by pharmaceutical wholesalers and retailers against Wyeth-Ayerst in connection with its to protect its market share in the oral estrogen replacement therapy market through the use of contractual agreements with third party payer entities. The Court of Appeals affirmed the District Court's summary judgment for Wyeth-Ayerst. This case is J.B.D.L. Corporation, et al. v. Wyeth-Ayerst Laboratories, Inc., U.S. Court of Appeals for the 6th Circuit, App. Ct. Nos. 05-3860 and 05-3988, appeals from the U.S. District Court for the Southern District of Ohio at Cincinnati, D.C. Nos. 01-0070 and 03-00781.

CO and USPTO Hold Roundtable on Proposed WIPO Broadcast Treaty

5/9. The Copyright Office (CO) and the U.S. Patent and Trademark Office (USPTO) jointly held a public roundtable discussion regarding the World Intellectual Property Organization's (WIPO) Standing Committee on Copyright and Related Rights (SCCR) negotiations on a proposed Treaty on the Protection of the Rights of Broadcasting Organizations.

The CO and USPTO are tasked with representing the U.S. position in WIPO negotiations. This roundtable, like other fora, demonstrate that there is no common position. Rather, broadcasters seek a treaty that would require the U.S. to legislate an intellectual property like right, with strict liability, and without exceptions, such as fair use, while many other effected sectors oppose a treaty altogether, or seek a treaty that would merely require the U.S. to create a signal theft like remedy, with a mental state requirement, and defenses.

These is no consensus on fair use as a defense, including a mental state requirement, banning circumvention, or secondary liability of carriers, equipment makers, and internet companies.

Representatives of sports leagues, libraries, technology companies, and telecommunications carriers either opposed or criticized the treaty. Representatives of broadcasters advocated a broadcast treaty.

See, full story.

Opponents of WIPO Broadcast Treaty Release Joint Statement

5/9. Critics of the proposed World Intellectual Property Organization's (WIPO) broadcast treaty released a document [PDF] on May 9, 2007, titled "Statement Concerning the WIPO Treaty Provided by Certain Information Technology, Consumer Electronics and Telecommunications Industry Representatives, Public Interest Organizations, and Creative Community Representatives".

The entities that joined in the statement include three industry sectors: carriers, electronics makers, and libraries. The carriers include the CTIA, US Telecom, AT&T and Verizon. The consumer electronics makers include the AMD, Consumer Electronics Association (CEA), Dell, HP, Intel, Panasonic, and Tivo. The library groups include the American Library Association (ALA), the American Association of Law Libraries, and others.

Numerous trade and advocacy groups also joined in the statement, including the Center for Democracy and Technology (CDT), Computer and Communications Industry Association (CCIA), Electronic Frontier Foundation, Home Recording Rights Coalition (HRRC), and Media Access Project (MAP), and Public Knowledge (PK).

Finally, Google, which owns YouTube, joined in the statement. Users' posting of broadcast content on YouTube is one reason that broadcasters now seek a broadcast treaty, and implementing legislation in the U.S.

The WIPO released its latest draft treaty [10 pages in PDF] on May 1, 2007. The WIPO titled this draft "non-paper", and backdated it to April 20, 2007.

The joint statement requests that the U.S. delegation to the WIPO negotiations support a "narrow, signal theft-oriented vision for the treaty, and to oppose the Nonpaper treaty draft in its current form."

It states that "We continue to believe that an approach to signal piracy that focuses on infringement of an intellectual property right is deeply problematic. A better approach is to focus on prohibiting particular actions, done for particular purposes, by identifiable actors (i.e., the ``theft´´ model)." (Parentheses in original.)

It also states that "The rights-based approach creates the specter of direct and secondary infringement liability risks for telecommunications intermediaries, network service providers, device manufacturers and end users of broadcast and cablecast content."

The statement also criticizes the proposed treaty's section that prohibits circumvention of technology protect measures. It states that "The Non-paper's call for global legal rules that would regulate the `making available´ of `devices capable of decrypting an encrypted broadcast´ would presumably require wholesale regulation of general purpose computers and other devices, and have significant harmful consequences for the technology industry generally."

3rd Circuit Holds Interconnection Actions Must First Be Brought in the State PUC

5/9. The U.S. Court of Appeals (3rdCir) issued its opinion [29 pages in PDF] in Core Communications v. Verizon, a case regarding the proper procedure of adjudicating disputes regarding interconnection agreements between carriers. The Court of Appeals held that the state public utility commissions that approve these interconnection agreements "are given the first crack at interpreting and enforcing" these agreements. See, full story.

Bush Reiterates Support for Doha Round, Free Trade Agreements, and Open Investment Policies

5/9. The White House press office released a statement of President Bush. He said that "We will work aggressively to conclude the World Trade Organization's Doha Development Agenda negotiations and to secure congressional approval of the free trade agreements with Colombia, Panama, Peru, and South Korea."

He also said that "The United States unequivocally supports international investment in this country and is equally committed to securing fair, equitable, and nondiscriminatory treatment for U.S. investors abroad. Both inbound and outbound investment benefit our country by stimulating growth, creating jobs, enhancing productivity, and fostering competitiveness that allows our companies and their workers to prosper at home and in international markets."

Bush said that "open economies that empower individuals, generate economic opportunity and prosperity for all, and provide the foundation for a free society".

See also, second statement titled "Open Economies Policy Statement". Neither statement references intellectual property related trade issues.

On May 8, 2007, U.S. Trade Representative Susan Schwab gave a speech [14 pages in PDF] in Washington DC to the Business Council regarding trade and Doha negotiations.

She said that "President Bush has made it clear the United States is ready to do its part -- whether on market access or on trade-distorting subsidies." She added that "market access is the key to success".

She also said that "we have a perception problem. Demagogues and protectionists can take isolated points of data and selected anecdotes about job losses to stoke fear and anxiety. Three centuries ago Thomas Hobbes proclaimed life ``nasty, brutish and short.´´ Today, we have Lou Dobbs presenting life as unfair, isolationist, and doomed." She said that "The protectionists are wrong."

4th Circuit Rules in ECPA and CFAA Case

5/9. The U.S. Court of Appeals (4thCir) issued its opinion [PDF] in Expert Business Systems v. BI4CE, a civil action brought under the Electronic Communications Privacy Act (ECPA), which is codified at 18 U.S.C. §§ 2510-2521, and the Computer Fraud and Abuse Act (CFAA), which is codified at 18 U.S.C. § 1030.

However, this appeal involves no significant ECPA or CFAA issues. The District Court ruled against the plaintiffs on summary judgment, and the Court of Appeals affirmed.

Expert Business Systems, Inc. (EBS) and BI4CE, Inc., are two small information technology businesses. They entered into an agreement to develop a web enabled version of EBS's proprietary software. The business relationship later deteriorated, and EBS filed a complaint against BI4CE in U.S. District Court (DMd) alleging violation of the ECPA and CFAA and various state law claims.

EBS alleged that BI4CE intercepted and disclosed two e-mail communications of EBS in violation of the ECPA, and remotely accessed EBS's computers without authorization, and caused damage, in violation of the CFAA. The Court of Appeals concluded that there were no genuine issues of material fact with respect to either federal claim. The evidence showed that a program was installed, at EBS's request, that enabled EBS to remotely access BI4CE's server, and not vice versa. It similarly found no interception of e-mail.

The Court of Appeals opinion does not state whether or not the plaintiffs added the federal ECPA and CFAA claims to what was essentially a state law commercial dispute in order to obtain federal jurisdiction over the state law claims. The tactic exists. Whatever the case, after ruling for BI4CE on the federal claims, the District Court declined to exercise jurisdiction over the remaining state law claims, which it dismissed.

EBS brought the present appeal. The Court of Appeals affirmed in full in an "unpublished per curiam opinion" of Judges Michael, Motz, and King.

This case is Expert Business Systems LLC and David Esau v. BI4CE, Inc. and Christopher Chodnicki, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 06-1265, an appeal from the U.S. District Court for the District of Maryland, at Baltimore, D.C. No. 1:04-cv-00600-AMD, Judge Andre Davis presiding.

People and Appointments

5/9. The Senate confirmed Debra Ann Livingston to be a Judge of the U.S. Court of Appeals for the 2nd Circuit by a vote of 90-0. See, Roll Call No. 158.

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5/9. The House amended and approved HR 1684, a bill to authorize appropriations for the Department of Homeland Security (DHS) for FY 2008. The vote on final approval was 296-126. See, Roll Call No. 318.

5/9. David Rehr, head of the National Association of Broadcasters (NAB), sent a letter [PDF] to Senators and Representatives opposing proposals to end terrestrial radio broadcasters' exemption from the music performance right. He called the proposals a "performance tax". Rep. Howard Berman (D-CA), the Chairman of the House Judiciary Committee's (HJC) Subcommittee on Court, the Internet and Intellectual Property often advocates such a change to copyright law at public events, but has not yet introduced a bill. Rehr wrote that "Radio has prospered with the use of recorded music, and record labels and performers have benefited from airplay and other promotional activities of local broadcasters. From this free airplay, the recording industry enjoys increased popularity, visibility and record sales. Performers also benefit from radio airplay and on-air interviews, often timed to coincide with concert appearances in the radio stations’ service areas."

FTC and DOJ Release Report Regarding Real Estate Industry and Internet

5/8. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) released a joint report [78 pages in PDF] titled "Competition in the Real Estate Brokerage Industry". The report discusses the real estate brokerage industry, and how internet technologies have increased competition, and provided more information to consumers. However, it finds that state laws and regulations impede further competition.

The report states that "the Internet has surpassed the yard sign as the most important marketing tool to reach consumers". (Footnote omitted.)

The report finds that "real estate agents and brokers are changing the way they operate and are increasingly incorporating the Internet into their business models in a variety of ways, such as offering potential buyers the option to view full, detailed multiple listing services (``MLSs´´) online, using websites to gather ``lead´´ information on potential customers, and using the Internet to match home buyers and sellers."

However, the report also finds that "there are some indications that consumers are not enjoying all of the possible benefits of competition in the real estate brokerage industry. A number of developments have raised competitive concerns, particularly laws and regulations in some states that limit consumer choice of real estate brokerage service offerings and that prohibit rebates to consumers, anticompetitive agreements among brokers, and industry practices that impede competition. These practices can lead to substantial consumer harm through reduced choice of real estate brokerage services, higher fees, and limitations on the ability to access information about real estate listings."

It concludes that "although the real estate industry has undergone a number of substantial changes in recent years -- in particular as a result of technological advances such as the Internet -- competition in the industry has been hindered as a result of actions taken by some real estate brokers, acting through MLSs and NAR, state legislatures, and real estate commissions. In addition, consumers likely would benefit significantly from additional knowledge about the range of options available in brokerage services and fees."

The report recommends that agencies "should continue to monitor the cooperative conduct of private associations of real estate brokers, and bring enforcement actions in appropriate circumstances".

The report also recommends that "State legislators and industry regulators should consider repealing existing laws, rules and regulations, such as minimum-service and anti-rebate provisions, that limit choice and reduce the ability of new brokerage models (e.g., fee-for-service brokers, discount full-service brokers, virtual office website brokers, and broker referral networks) to compete and that do not appear to provide any consumer benefits that would justify such restrictions." (Parentheses in original.)

The report also recommends a further study, and consumer education.

See also, DOJ release and substantially identical FTC release.

9th Circuit Submits Section 332 Question to California Supreme Court

5/8. The U.S. Court of Appeals (9thCir) issued an order [8 pages in PDF] in Sprint v. Palos Verdes Estates, a Section 332 action by a wireless service provider against a local government.  The order submits a question of state law to the Supreme Court of California.

The City of Palos Verdes Estates denied Sprint PCS Assets LLC's applications to construct two wireless facilities in public rights of way in the city. Sprint filed a complaint in U.S. District Court (CDCal) alleging violation of 47 U.S.C. § 332(c)(7)(B)(iii). The District Court granted summary judgment to Sprint. The city brought the present appeal.

In this order the Court of Appeals requests the Supreme Court of California to answer the following question of California state law: "Do California Public Utilities Code §§ 7901 and 7901.1 permit public entities to regulate the placement of telephone equipment in public rights of way on aesthetic grounds?"

The Court of Appeals added that "the question we pose is worthy of decision because it arises frequently in Telecommunications Act cases, its decision may be dispositive in this case, it is not answered by any opinions of the Supreme Court of California or the California Courts of Appeal, and it is currently pending in another case before the Supreme Court of California."

This case is Sprint PCS Assets LLC v. City of Palos Verdes Estates, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 05-56106, an appeal from the U.S. District Court for the Central District of California, D.C. No. 03-00825-AHS.

Martin Addresses Cable Convention

5/8. Federal Communications Commission (FCC) Chairman Kevin Martin gave a speech [PDF] at the National Cable & Telecommunications Association (NCTA) convention in Las Vegas, Nevada, on May 7, 2007.

He joked about recent criticism of him in the cable industry, and praised the cable industry's infrastructure investment, and expansion into broadband and voice services. He then discussed voice competition, video competition, a la carte, multicasting, the DTV transition, the set top box integration ban, and network neutrality regulation.

Kevin MartinMartin (at right) said that "your entry into the phone market benefits consumers, and I will support regulatory action to promote that entry and the competition it enables."

He continued that "cable operators are not always the new entrants. So consistent with my commitment to fostering a competitive marketplace and consumer choice, I have and will continue to side with the new entrants trying to break into the market where you are the traditional incumbent. My push to streamline the franchise reform process for new entrants was not intended as an attack on cable. Rather, it was promoting new entry in the video market in the same manner as I supported your entry into the phone market."

He also said that he is in agreement with the cable industry on "net neutrality". He said that "Lots of people would like the Commission to impose regulation in this area. I have consistently resisted." He said that "regulation in this area would be premature", "network providers need to be able to recoup the costs for upgrading their infrastructure", and that net neutrality regulation could slow down broadband deployment and adoption.

Martin discussed the July 1, 2007, deadline of the set top box integration ban.

He also reiterated his support for a la carte regime for cable. And, he argued that there is no First Amendment violation in mandating an a la carte regime.

He then defended the FCC's multicasting rules. He said that "Broadcasters said they could not sustain a business based on advertiser-supported multicasted channels unless they knew the channels would be carried on the cable and satellite systems. Your industry opposed mandatory carriage, saying consumers should be able to pick and choose the channels they want, not have programming forced upon them. But if that is really your belief, then it should hold true whether we are talking about broadcast channels or your own cable programming channels. You can't have it both ways."

Martin concluded that "if you advocate subjecting broadcast channels to consumer choice then why shouldn't cable channels be similarly subject to free market choices as well."

Kyle McSlarrowKyle McSlarrow (at left), head of the NCTA, responded in a speech on May 8. He said that "If one assumes that the video marketplace is one of intense competition, then the only sensible policy outcome is one where the government gets out of the way and let’s the free market flourish. I think that marketplace is competitive ... and every cable operator knows that they are in a competitive fire fight with satellite distributors and now telephone companies."

"So", said McSlarrow, "it is puzzling that Chairman Martin does not take the same approach to the video marketplace. I was struck by his discussion of mandated a la carte and mandated multicast carriage. There are many reasons why neither of those ideas benefits consumers."

He continued, "But just as a matter of logical consistency, think about what those ideas represent: A la carte is a form of government enforced unbundling of what is known as the expanded basic tier. Mandated multicast carriage produces exactly the opposite result. It forces the bundling of broadcast programming that apparently couldn't gain carriage in a free market."

"You can't have it both ways. You can’t insist that every channel must be sold separately, and then require that other programming must be added to the expanded basic tier", said McSlarrow.

People and Appointments

Lisa Zaina5/8. Lisa Zaina (at right) joined the CTIA Wireless Association as Assistant VP for State Regulatory Affairs, effective June 4, 2007. She was previously Executive Director of the Independent Telephone and Telecommunications Alliance (ITTA). Before that, she was CEO of the Universal Service Administration Company (USAC). Before that, she was a legal advisor for wireline competition issues to Federal Communications Commission (FCC) Commissioner Jonathan Adelstein. Before that, she was VP for Industry and Regulatory Affairs and Corporate Secretary of Shenandoah Telecommunications Company (Shentel) in Edinburg, Virginia. Before that, she worked for Wallman Strategic Consulting. Before that, she worked at the FCC, as Senior Counsel and Deputy Bureau Chief of the Common Carrier Bureau. She has also worked for the Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTCO), and the National Association of Regulatory Utility Commissioners (NARUC). See, CTIA release.

5/8. Margaret Peterlin was named Deputy Director of the U.S. Patent and Trademark Office (USPTO) and Deputy Under Secretary of Commerce for Intellectual Property. She was previously Counsel for Legal Policy and National Security Advisor for former House Speaker Denny Hastert (R-IL). Before that, she was General Counsel for former House Majority Leader Richard Armey (R-TX). See, USPTO release.

5/8. The Senate confirmed Frederick Kapala to be a Judge of the U.S. District Court for the Northern District of Illinois by a vote of 91-0. See, Roll Call No. 153.

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5/8. The Government Accountability Office (GAO) released a report [27 pages in PDF] titled "Information Technology: VA and DOD Are Making Progress in Sharing Medical Information, but Are Far from Comprehensive Electronic Medical Records". It finds that the Veteran's Administration (VA) and the Department of Defense (DOD) "have been pursuing ways to share data in their health information systems and create comprehensive electronic medical records since 1998". The report finds that the VA and DOD "have faced considerable challenges, leading to repeated changes in the focus of their initiatives and target dates".

5/8. The Office of the U.S. Trade Representative (OUSTR) announced in a release that the U.S. "intends to contribute $940,000 for trade-related technical assistance (TRTA) to the World Trade Organization (WTO). This latest contribution would bring total U.S. contributions to WTO TRTA for the Doha Development Agenda to almost $7 million since the launch of negotiations in November 2001".

5/8. The Department of Homeland Security (DHS) published a notice in the Federal Register that requests applications for membership on the DHS's Homeland Security Information Network Advisory Council
(HSINAC). The deadline to submit applications is June 22, 2007. See, Federal Register, May 8, 2007, Vol. 72, No. 88, at Page 26138.

District Court Rules Against EFF on Electronic Surveillance FOIA Request

5/7. The U.S. District Court (DC) issued an opinion [pages in PDF] in EFF v. DOJ, a Freedom of Information Act (FOIA) case involving the Department of Justice's (DOJ) failure to provide access to records regarding certain electronic surveillance technologies used by the DOJ's Federal Bureau of Investigation (FBI). The District Court stayed the action until May 9, 2008, and indicated it might issue a further stay.

The request pertains to the FBI's DCS-3000 and Red Hook. A March 6, 2006, report of the DOJ's Inspector General contains the following reference to DCS-3000:

"System DCS-3000. The FBI has spent nearly $10 million on this system. The FBI developed the system as an interim solution to intercept personal communications services delivered via emerging digital technologies being used by wireless carriers in advance of any CALEA solutions being deployed. Law enforcement continues to utilize this technology as carriers continue to introduce new features and services."

The same DOJ/IG report also contains the following reference to Red Hook:

"Red Hook. The FBI has spent over $1.5 million to develop a system to collect voice and data calls and then process and display the intercepted information in the absence of a CALEA solution."

CALEA is an acronym for the Communications Assistance for Law Enforcement Act. It is codified at 47 U.S.C. § 1001, et seq. It has also been expanded by a series of orders of the Federal Communications Commission (FCC).

The District Court held that "The instant action shall be stayed for one year -- until May 9, 2008, with the possibility of a further extension of the stay."

The FOIA, which is codified at 5 U.S.C. § 552, requires the government to respond to FOIA requests within 20 government working days, with the possibility for a 10 day extension.

It provides "Each agency, upon any request for records ... determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor ... In unusual circumstances ... the time limits ... may be extended by written notice to the person making such request setting forth the unusual circumstances for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten working days ..." See, 5 U.S.C. § 552(a)(6).

The EFF submitted its request for records on August 11, 2006. It requested "all agency records (including, but not limited to, electronic records) concerning electronic surveillance systems known as DCS-3000 and Red Hook", including FBI reports to the Congress on the FBI's use of these systems. (Parentheses in original.)

The EFF filed a complaint [5 pages PDF] in U.S. District Court (DC) on October 3, 2006, alleging violation of the FOIA.

The DOJ had sought a stay of 27 months, through May of 2009. The gist of its argument for delay is that it is too busy, and that it handles FOIA requests on a first in first out basis.

The FOIA also provides an exemption for "records or information compiled for law enforcement purposes but only to the extent that the production of such law enforcement records or information ... would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law ..." See, 5 U.S.C. § 552(b)(7)(E). This may provide the DOJ with grounds for further delay and withholding, after its exhausts its busyness delays.

Government agencies, and the DOJ in particular, frequently violate their statutory obligations under the FOIA. Federal courts frequently decline to enforce the FOIA. Moreover, the EFF, and the Electronic Privacy Information Center (EPIC), which previously employed the attorneys who now make up the EFF's FOIA team, have litigated their FOIA cases in the U.S. District Court (DC), which is hostile to the FOIA and FOIA plaintiffs.

This case is Electronic Frontier Foundation v. Department of Justice, U.S. District Court for the District of Columbia, D.C. No. 06-1708 (CKK), Judge Colleen Kotelly presiding.

This case is separate from another case, also brought by the EFF against the DOJ in the U.S. District Court (DC) in October of 2006 under the FOIA, concerning the FBI's program titled "Investigative Data Warehouse" (IDW). See, EFF's October 17, 2006, IDW complaint [PDF] and story titled "EFF Sues DOJ for Failure to Respond to FOIA Request for Records About FBI's Investigative Data Warehouse" in TLJ Daily E-Mail Alert No. 1,471, October 18, 2006.

Go to News from May 1-5, 2007.