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CPSR and EPIC FOIA Cases:
Current Status

by David Sobel
EPIC

CPSR News Volume 13, Number 2: Summer 1995

Electronic Privacy Information Center v. National Security Council, C.A. No. 95-0461 (D.D.C.). In this case, we seek the disclosure of a secret Presidential directive establishing the Security Policy Board and documents discussing the Board's activities. This new entity has been assigned responsibility for developing government-wide policies on information security. In the spirit of the Computer Security Act, EPIC believes that the development of such policies should be open and subject to public scrutiny.

Electronic Privacy Information Center v. FBI, C.A. No. 94-1720 (D.D.C.). This lawsuit seeks the release of two FBI internal surveys cited by Director Louis Freeh in support of wiretap legislation enacted by the 103d Congress. The case was filed several days after the legislation was introduced and highlighted the fact that the Bureau never documented the need for enhanced wiretapping capabilities. The pendency of the case was noted in numerous articles concerning the controversial legislation. The FBI initially sought to delay proceedings in the case for five years. This request was denied by Judge Charles Richey in a strongly worded opinion. The judge recently upheld the Bureau's refusal to disclose the surveys, a decision we are reviewing for purposes of appeal.

Computer Professionals for Social Responsibility v. FBI, C.A. No. 92-2117 (D.D.C.). In this case, we sought disclosure of early FBI documents concerning the Bureau's "Digital Telephony Proposal" - an attempt to require communications providers to guarantee that their systems can be wiretapped. After initially seeking to withhold a large amount of relevant material, the FBI reversed itself after we opposed the withholding in court. Among other things, the released documents indicated that the Bureau's claimed need for this legislation is highly exaggerated.

Issues to be litigated will include the propriety of NSA's classification of the Clipper algorithm on national security grounds.

Computer Professionals for Social Responsibility v. National Security Agency, C.A. No. 93-1074 (D.D.C.). This lawsuit seeks the disclosure of key documents concerning the controversial Clipper Chip encryption initiative. The court has ordered the National Security Agency and the National Security Council to complete their processing of these documents by the middle of 1995. Issues to be litigated will include the propriety of NSA's classification of the Clipper algorithm on national security grounds.

Computer Professionals for Social Responsibility v. National Institute of Standards and Technology, C.A. No. 920972 (D.D.C.) (appeal pending). The district court, in a brief opinion, upheld the government's refusal to disclose all documents concerning the development of the Digital Signature Standard (DSS), a cryptographic technique for authenticating electronic communications developed by NSA. An appeal of this ruling is now pending in the U.S. Court of Appeals. A large number of documents were released as a result of this litigation. This material provides a comprehensive view of the relationship between NSA and NIST in the development of cryptographic standards under the Computer Security Act of 1987.

Computer Professionals for Social Responsibility v. United States Secret Service, C.A. No. 93-0231 (D.D.C.) (appeal pending). This case seeks information concerning a controversial Secret Service raid on a public meeting of young people affiliated with "2600 Magazine." The case raises significant issues of free speech and assembly, privacy and government accountability. Judge Louis Oberdorfer ruled in our favor in July 1994, ordering the Secret Service to release the vast majority of withheld documents. The court's decision, which has been widely discussed within the FOIA community, raises important issues concerning the disclosure of "law enforcement" records. The government has appealed this ruling to the U.S. Court of Appeals.

State ex rel. Beacon Journal Publishing Co. v. City of Akron, No. 932012 (Supreme Court of Ohio). EPIC staff, on behalf of Computer Professionals for Social Responsibility, joined with the Public Citizen Litigation Group in filing a "friend of the court" brief in this case. Our brief highlighted the privacy implications of Social Security number (SSN) disclosures and argued in support of the City of Akron's decision to withhold the numbers from a local newspaper. The brief urged the Ohio Supreme Court to follow the lead of the U.S. Court of Appeals for the Fourth Circuit in the case of Greidinger v. Davis, where Virginia's practice of requiring SSNs for voter registration purposes was held unconstitutional. EPIC staff had similarly participated in the Greidinger litigation as friends of the court.

On October 26, 1994, the court issued an opinion upholding the privacy of SSNs, adopting our argument and citing Greidinger. Coming a year after the Greidinger decision, the City of Akron case is part of a trend toward judicial recognition of the privacy implications of SSNs. EPIC will continue to participate in related litigation in an attempt to establish a body of caselaw protecting the confidentiality of SSNs and other personal information.

Other pending FOIA requests concern the following issues:

• Collaboration between the Defense Department and the U.S. Postal Service to establish a key- management infrastructure for the security and authentication of civilian electronic communications.
• FCC implementation of the Communications Assistance to Law Enforcement ActÑalso known as the FBI digital telephony wiretap bill.
• The Drug Enforcement Administration's collection and use of commercial databases in furtherance of its investigative activities. (EPIC's recent analysis of a similar Internal Revenue Service proposal led to the abandonment of the initiative.)

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