If you're the Federal Bureau of Investigation (FBI), tasked with rapidly uncovering plots involving terrorism and cybercrime, you want access to as much intelligence as you can get your hands on. After all, your successes are rarely rewarded with a ticker-tape parade, but when you fail, well, there's lots of career-ending blame and congressional testimony to go around.
The problem, of course, is that the FBI's mission and the tools it uses to accomplish it often collide with the privacy protections guaranteed to Americans by the Fourth Amendment. We know, for instance, that the FBI has engaged in questionable, if not downright illegal, practices in furtherance of its broadly defined mission statement to "uphold the Constitution of the United States".
And as most woke Americans know, the Bureau's past is littered with crimes and misdeeds, the most egregious of which arguably occurred in the Civil Rights era.
But new technologies, including the internet itself, have given the FBI plenty of new opportunities to skirt the law (which it does with a licence through the use of confidential informants several thousand times a year anyway).
And while there are FBI agents out there doing a lot of good — catching child predators, methamphetamine dealers and even more child predators — there's ample reason to be suspicious of the ways in which it surveils suspects today, particularly since innocent American citizens are routinely caught up in the mix.
One of the chief ways of holding the Bureau accountable has long been the use of the Freedom of Information Act, or FOIA, a decades-old federal law that journalists and researchers increasingly rely on by to pry loose government secrets. It allows any American — and even non-citizens — to request access to US government records that may not be automatically available to the public.
In a 1978 case, the Supreme Court explained: "The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." That sounds pretty good, huh?
Through a lawsuit filed this week, FOIA researchers are hoping to uncover information about a shadowy FBI program known only as "Gravestone." Not much is known about the initiative, except that it may have been unintentionally disclosed. It would at least be nice to know who thought Gravestone was a good name for a secret government operation.
In an exclusive published on Thursday, Slate reporter April Glaser wrote that information about Gravestone was uncovered by FOIA researcher Ryan Shapiro on the government's data.gov web portal. But only the program's name and a brief description were available.
As Glaser wrote:
"Gravestone is a system consisting of an IP based camera, routers, firewalls, and a workstation to review surveillance video," the Department of Justice website read. "The system provides Video Surveillance data to FBI Field Offices and is used by case agents." An IP-based camera is the technical term for a surveillance camera that's connected to a network. The routers and firewalls may help provide a secure way to deliver information from the cameras to whatever workstation the FBI has set up to review the footage.
It's intriguing, and, given the FBI's history, the researchers who uncovered the program and captured some screenshots before it was removed from the DOJ's website are naturally curious about exactly what kind of video surveillance data is being conducted using Gravestone. In March, Shapiro filed a FOIA letter requesting information about the program — including a privacy-impact study, which, as Glaser notes, is a DOJ requirement for programs involving new technologies — but the agency failed to respond within 20 business days, the deadline mandated by US federal law.
As of this writing, around eight months have gone by and the Bureau has yet to provide an answer.
"The democratic process cannot meaningfully function without an informed citizenry, and such a citizenry is impossible without broad public access to information about the operations of government," Shapiro tells Gizmodo.
A PhD candidate at the Massachusetts Institute of Technology (MIT), Shapiro is a renowned expert in using FOIA to pry loose once-secret government documents. Within the ranks of the Justice Department, he's known as a "prolific requester" of government records, though the FBI just calls him "vexsome."
— Ryan Shapiro (@_rshapiro) March 9, 2017
Sharpio's systematic use of FOIA for investigating the federal government's targeting of environmental activists — many of whom have been labelled "domestic terrorists" — even led the FBI to consider his work a "threat to national security."
While the government is generally fine with releasing small batches of records, even if they require heavy redactions, the pages requested by Shapiro eventually numbered in the hundreds of thousands; the government then argued that, combined, the records had a "mosaic effect" that could, theoretically, reveal national security secrets. (There is no limit on the number of documents one person can request under the law.)
In combating government agencies who fail to relinquish records under the FOIA statute, Shapiro frequently partners with Jeffrey Light, an attorney widely recognised as the top expert in transparency lawsuits targeting, in particular, the Federal Bureau of Investigation, one of the more combative agencies when it comes to records requests. (Recommended reading: "How a video game about sheep exposes the FBI's broken FOIA system.")
"The first thing to know about dealing with the FBI for FOIA work is that the Bureau is simply not operating in good faith," says Shapiro, who has never been one to shy away from accusing the FBI of employing deceptive tactics to keep even the most benign documents out of the public's grasp. He's even accused the FBI of intentionally limiting the effectiveness of its FOIA officers by continuing to use decrepit, antiquated technologies.
And that's actually not uncommon. The National Security Agency (NSA) temporarily stopped processing record requests a few years ago because, it said, a fax machine was broken at the Office of the Secretary of Defence. (No, seriously.)
"While FOIA with some agencies can be akin to a protracted business meeting or an attempt to get customer support from a telecom over a holiday weekend, FOIA with the FBI is a street fight," Shapiro tells Gizmodo. The Bureau does nearly everything it can to prevent the release of records, he says, which results in an "outrageous state of affairs in which the leading federal law enforcement agency in the country is in routine and flagrant violation of federal law."
To be clear, anytime a federal agency doesn't abide by the time limits for releasing records imposed under FOIA, it is breaking the law. Gizmodo has numerous outstanding FOIA requests that both the DOJ and FBI have not responded to within the statutory 20 days. Shapiro says his group has roughly two dozen lawsuits currently in play as a result of federal agencies failing to properly respond to FOIA requests.
At the start of the Trump administration, Shapiro — along with Light and author/activist Sarahjane Blum — launched a nonprofit known today as Property of the People, the sole mission of which is to enforce transparency by, essentially, suing the shit out of government agencies that fail to properly respond to FOIA requests. (Its overall goal is to actually improve the system.)
Under the Property of the People umbrella, Shapiro and his cohorts conduct Operation 45, a transparency project that specifically targets the Trump White House.
Among Operation 45's various achievements, the group has exposed the FBI's earliest known use of remote-installation anti-encryption malware; the FBI's "anti-communist crusade" against Nelson Mandela; and details about the CIA's efforts to spy on the US Senate while it was investigating the CIA's torture program.
"The Freedom of Information Act is one of the most underappreciated elements of the entire American experiment," Shapiro says. "The notion that the records of government are the property of the people, and all we need to do to get them is to ask, is radically democratic. But FOIA is broken."
"One of the core causes of FOIA's brokenness is that there are essentially no penalties for noncompliance," Shapiro adds. "So despite FOIA being federal law, if an agency doesn't want to comply with the Freedom of Information Act, it often simply refuses to do so."
Asked if he was ever concerned that the FBI labelled his FOIA research methodologies a threat to national security, Shapiro replies: "It's the best compliment I've ever received."
(Disclosure: Shapiro advised me on best FOIA practices last year, and I donated $US50 ($65) to his nonprofit prior to my employment with Gizmodo. Gizmodo is also currently in the middle of a lawsuit against the FBI for access to records concerning Fox News founder Roger Ailes, who died this year amid multiple sexual-harassment allegations.)