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Sunlight: The Best of Disinfectants

The Freedom of Information Act
and the Privacy Act

Guest editorial by Jim Kerr, paralegal

The Freedom of Information Act ("FOIA") is an act of Congress codified in 5 USC, section 552. This Act allows for the full or partial disclosure of previously unreleased information and documents controlled by the Federal Government. The Act defines agency records subject to disclosure, outlines mandatory disclosure procedures and grants nine exemptions to the statute.

President Lyndon B. Johnson signed it into law on July 4, 1966 despite his misgivings. I am at a loss to explain why Johnson would sign any such legislation. Yet the man did tamper with election results the "honest" way: he stuffed the ballot boxes without resort to chads and did not involve DIEBOLD, makers of tamper-friendly voting machines. Nonetheless, Johnson, being no idiot, surely knew that this Act would shed light on the seditious acts of government officials. Curious.

Indeed, the Act itself, found in the Statutes at Large, 80 Stat. 383 stated:

"Except as otherwise required by statute, matters of official record shall be made available, in accordance with published rule, to persons properly and directly concerned, except information held confidential for good cause found."

These provisions were refined further with the Privacy Act of 1974, codified in 5 USC Section 552a which has been in effect since September 27, 1975. The Privacy Act is essentially an omnibus "code of fair information practices" that attempts to regulate the collection, maintenance, use and dissemination of personal information by federal executive branch agencies. These amendments to the FOIA regulate government control of documents which concern individual citizens. It gives one "(1) the right to see records about [one]self, subject to the Privacy Act's exemptions, (2) the right to amend that record if it is inaccurate, irrelevant, untimely, or incomplete, and (3) the right to sue the government for violations of the statute including permitting others to see [one's] records unless specifically permitted by the Act.” See Your Right to Federal Records: Questions and Answers on the Freedom of Information Act and the Privacy Act. Electronic Privacy Information Center, 1992.

The American Inquisition: Federalism Gone Amok

Modern inquisitorial methodology has changed quite a lot since the time of the Spanish Inquisition. "Heresy" laws are directed at persons, either individually or in groups, who hold or espouse beliefs that run contrary to the regime that holds the reigns of governmental power. Today, "heretics" are oftentimes referred to as "dissidents" or in the U.S., as "domestic terrorists," even when only engaging in political speech which the First Amendment was designed to protect.

Today's Inquisition is generally less harsh and goes mostly unnoticed by the majority of We the People. The current regime usually doesn't burn heretics at the stake anymore (yet there was Waco where many dissidents and their children were consumed by fire) but many of the current punishments are nonetheless equally fatal. And as time goes on, the wrath of the New World Order crowd is felt by increasing numbers worldwide. Unlike the days of old, inquisitorial intrusiveness is today even more pervasive, even in what once was the "Land of the Free and Home of the Brave." So, "Big Brother" is of concern to any of us that have eyes to see and ears to hear. As such, America may well be the last great hope for the restoration of liberty.

With regard to one aspect of the current Inquisition, We the People are beginning to become aware of and take exception to the snooping of federal government agencies into our private communications by the National Security Agency ("NSA") - among other federal agencies. The U.S. Constitution, the supreme law of the land, prohibits such snooping without a proper court order. This is the law. Yet federal government employees take many liberties these days, never mind the Constitution. They say it is necessary for our security.

Personally, I feel less secure than ever when driving my car and especially when I am at an airport. Indeed, Ben Franklin wisely said "Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety." I agree wholeheartedly; and I am not alone. Liberty-oriented organizations and web sites would not even exist if this were not the case. Wherefore, I think many Americans will actively resist the federal government's efforts to eliminate our First Amendment right to privacy and the concomitant chilling effect upon our political speech.

Interestingly, the efforts of the New World Order crowd to undermine our liberties are too ambitious and hurried at this time and will therefore likely fail. Why the hurry? The frantic efforts to quickly disarm We the People alone is very telling. Indeed, theirs is a house of cards, and they know this.

Here we will discuss one aspect of a viable means to resist the Federal Government’s diabolical efforts in this regard. Let us shed light on this problem, for as Supreme Court Brandeis said, "Sunlight is said to be the best of disinfectants." The Freedom of Information and Privacy Acts are useful tools in this regard.

The Utah facility: Flagship of the Inquisitor General?

The Utah Data Center, code-named Bumblehive, is the first "Intelligence Community Comprehensive National Cyber-security Initiative" (IC CNCI) data center designed to perfect the Intelligence Community's efforts to accumulate and effectively use the sea of information it collects upon all varieties of communications around the world and in this country, including our phone conversations and e-mails. NSA is the executive agent for the Office of the Director of National Intelligence (ODNI) and will be the lead agency at the center.

In 2008, Congress granted virtual legal immunity (never mind our Constitution’s guarantees) to telecom companies cooperating with the present federal executive regime in its inquisitorial efforts. Inquisitors General and their minions are generously afforded great latitude in their endeavors.

The steady rise in available computer power and the development of novel computer platforms will enable NSA [Inquisitor] General Keith B. Alexander to easily turn the huge volume of incoming data into an asset to be exploited for "the good of the nation." The storage capacity of the nearly completed Utah Data Center will be measured in "yottabytes." The prefix yotta means 1024 in the International System of Units. Therefore one yottabyte is one septillion bytes − that's one trillion terabytes, or one quadrillion gigabytes − and the UDC will handle multiple yottabytes! This capability will allow the monitoring (and undoubtedly permanent storage) of millions of American phone calls, emails and other communications every day.

One report states:

Under construction by contractors with top-secret clearances, the blandly named Utah Data Center is being built for the National Security Agency. A project of immense secrecy, it is the final piece in a complex puzzle assembled over the past decade. Its purpose: to intercept, decipher, analyze, and store vast swaths of the world's communications as they zap down from satellites and zip through the underground and undersea cables of international, foreign, and domestic networks. The heavily fortified $2 billion center should be up and running in September 2013. Flowing through its servers and routers and stored in near-bottomless databases will be all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails - parking receipts, travel itineraries, bookstore purchases, and other digital "pocket litter." It is, in some measure, the realization of the "total information awareness" program created during the first term of the Bush administration - an effort that was killed by Congress in 2003 after it caused an outcry over its potential for invading Americans' privacy.

But "this is more than just a data center," says one senior intelligence official who until recently was involved with the program. The upshot, according to this official: "Everybody's a target; everybody with communication is a target."

I shall be most interested to see what kinds of information the Federal Government accumulates on me via the Privacy Act. And the good news is: This is easily done under existing law.

The Freedom of Information Act states in the first subsection:

(a) Each agency shall make available to the public information as follows:
(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public --
(A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;
(B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;

The National Security Agency has complied with these requirements and has posted this information on the Internet. (Click here for the NSA's Privacy Act submission page.)

While submissions may be made in other ways (e.g., e-mail), it seems prudent to send FOI/PA requests by certified mail (return receipt requested) so the requestor can have verification that the intended recipient received it. That way, the agency, required to respond in 30 days, can't deny having received it since the "green card" (the return receipt) is prima facie evidence that they did indeed receive it.

If my FOI/PA request is denied, the NSA is required tell me why. The acceptable reasons are enumerated in subsection (b).

The law requires the agency to tell us why certain items are denied, which makes administrative appeal, if necessary, more viable. For instance, if you ask for the GS rating of an IRS Revenue Officer (IRS Revenue Officers have to be GS-9 or higher to issue 668-A "levies") and the Disclosure Offices say that the request constitutes an "unwarranted invasion of privacy" or "could reasonably be expected to endanger the life or physical safety of any individual…" clearly, such excuses are ridiculous, so you know they are hiding something which in itself is useful information. So, off to administrative appeals; and if that is denied, you can then go to the federal court in your district.

Yes, the NSA may be getting a lot of Privacy Act Requests what with all the increased surveillance of We the People the federal government has engaged in these days. And not just to see what kind of dossier they are keeping on you. For instance, if you are in litigation and need phone records, but your phone company doesn't have them: chances are the NSA does!

Nonetheless, NSA should be discouraged from unlawfully accumulating a lot of information upon us with impunity; and FOI/PA may be just the vehicle to do this. Indeed, as Supreme Court Justice Brandeis said, "Sunlight is said to be the best of disinfectants."