Sunshine Week: Today marks the start of Sunshine Week, a national initiative led by the American Society of Newspaper Editors and funded by a grant from
Sunshine Week: Today marks the start of Sunshine Week, a national initiative led by the American Society of Newspaper Editors and funded by a grant from the John S. and James L. Knight Foundation of Miami to open a dialogue about the importance of open government and freedom of information. Participants include print, broadcast and online news media, civic groups, non-profits, schools and others interested in the public's right to know. For more information, see http://www.sunshineweek.org.
Digital sunshine pours fourth from an office near Washington D.C.'s Dupont Circle.

Or that's the idea, at least, behind the Electronic Frontier Foundation's FOIA Litigation for Accountable Government Project. Created last year, it exists solely to ask — and then sue — the government to release records on high-tech programs affecting Americans' privacy.

For the uninitiated, FOIA stands for Freedom of Information Act: It's the federal law providing for disclosure of government records. Newspapers, nonprofits and attorneys regularly use it to access public records of all kinds, but few are dedicated solely to using it to probe the shadowy areas where cutting-edge technology might infringe upon civil liberties.

Technology's constant evolution makes it "all the more important that we be aggressive and establish our right to get information as soon as possible," FLAG Project Director David Sobel said — wait any longer and "the information is likely to be obsolete by the time we get it.

"And when it comes to the government's capacity to engage in invasive conduct, I'm still surprised at what we find." Since October, EFF's FLAG project has sued the Homeland Security Department for records on its Automated Targeting System, which creates and assigns risk assessments for individual travelers, and sued the Defense Department for records on its program monitoring soldiers' blogs.

In these few months, it also has sued the Justice Department three times: for information on its Internet and telephone monitoring systems; for information on its massive database of Americans' personal information; and most recently for the secret Foreign Intelligence Surveillance Act Court orders that supposedly authorize the National Security Agency's domestic warrantless wiretapping program.

"That's sort of a perfect example for the need for the work we're doing: You'd think a federal court order that supposedly resolves one of the most controversial policy issues debated in the last few years would be on the public record, or at least parts of it," Sobel said. "The chief judge of the FISA Court ... indicated that she didn't have any objection to making it public, but it's the Justice Department's call."

Pursuit of the FISA Court orders also typifies the comprehensive way that EFF can approach issues, Sobel said.

The Electronic Frontier Foundation was founded in 1990 to deal with emerging high-tech issues of free speech, privacy, innovation, and consumer rights. It has fought for online file-sharing rights; defended bloggers and webmasters against censorship; sued over electronic voting discrepancies; and so on.

So while some of the two dozen staffers at EFF's main office in San Francisco pursue a massive lawsuit it filed against AT&T in January 2006 — accusing the telecom giant of violating the law and customers' privacy by collaborating with the National Security Agency to wiretap and data-mine Americans' communications — the FLAG Project's separate FOIA lawsuit against the Justice Department now approaches the same issue from the public sector.

It's this kind of synergy that attracted Sobel and his FLAG Project cohort, Marcia Hofmann, to leave the Electronic Privacy Information Center — which Sobel had cofounded in 1994 — and join EFF last year.

"Shining some light on government activities that raise significant privacy and civil liberties issues is obviously more than a full-time job for just the two of us involved in this project," he said. "We have to pick and choose where we direct our limited resources; there is so much going on that does warrant investigation."

"The FLAG Project's work earns kudos from other civil libertarians. It's fair to say we're all a little freer when EFF is doing its job, and we all know more about what our government is up to because of them," said Timothy Sparapani, the American Civil Liberties Union's legislative counsel on privacy issues in Washington, D.C.

"And David has been doing cutting-edge work for as long as he's been working.... He's an internationally recognized expert in this area."

"EFF recognized as early as anybody else, and stood shoulder to shoulder with my litigators here, that the current administration's distortion of the state-secrets doctrine and the dramatic, geometric expansion of the number of classified documents has really been unprecedented," Sparapani said. "EFF was one of the first groups to recognize the effect that this would have on public discourse and oversight."

Georgetown University Law School professor David Vladeck, an expert in open government law, also praised the FLAG Project.

"They're using FOIA in a way that I think is the best example of why we need a strong FOIA," he said. "These are good cases that ought to be filed — I wish I were more optimistic about their ability to prevail given the tenor of the way FOIA is being construed on national security issues by the courts."

Sobel said for now the FLAG Project still is striving to clear many of the initial hurdles that have to be overcome when one uses the Freedom of Information Act.

For example, in its case against the Homeland Security Department, it's now fighting for its right to special, faster consideration of its claim. The FOIA allows expedited processing when the request is made by a person or group primarily engaged in disseminating information to the public and when there's an urgent need for the public to know. Homeland Security claims the FLAG Project isn't primarily engaged in disseminating information to the public; a judge eventually will decide.

"These are the kinds of fights that you have to engage in order to pry anything out of an agency that doesn't want to disclose it. They will fight you on every point," he said. "It's a sad commentary that the process is so difficult that there needs to be a specialized litigation project to make use of the law."

But Sobel said he's cautiously hopeful that the new, Democrat-dominated Congress is going to step into these areas more than was true in the past, that we can have more of a collaborative relationship with some of the committees.

In fact, groups like Sobel's might be getting a leg up from Congress even now.

Rep. William Clay, D-Mo.; Rep. Todd Platts, R-Pa.; and House Oversight and Government Reform Committee Chairman Henry Waxman, D-Los Angeles, on Monday introduced a bill that provides some real enforcement measures to encourage agencies to respond to FOIA requests promptly and to err on the side of disclosure, instead of secrecy, Clay spokesman Steven Englehardt said.

Among other things, Clay's bill would:

-Create a National Information Advocate within the National Archives to be an ombudsman who helps FOIA requesters navigate the bureaucracy.

-Make it easier for requesters to collect legal fees from the government. Agencies sued for information now can stall for months, running up requesters' legal bills, and then hand over information just before a court hears the matter, sticking the requester with the bills. The improved law would make the government foot the bill if the requester substantially prevails in getting the records with or without a court order.

-Strengthen reporting requirements, making it easier to see whether agencies are complying with FOIA requests.

The Subcommittee on Information Policy, Census and National Archives — which Clay chairs — approved this bill on a voice vote Tuesday, and it was approved Thursday by Waxman's full Oversight and Government Reform Committee; staffers hope to have it on the House floor sometime this week.

Meanwhile, Sobel said he's hoping the lawsuits already filed will soon move past issues such as timing and fees and begin to bear fruit. He said it's been his experience that most records produced for FOIA requests reveal information that begets more requests, a slow-moving but never-ending chain of government transparency.

And every new technological marvel presents the potential for a new probe as well, he said.

"Shortly before the new Windows Vista operating system was released, it was reported that the NSA had some involvement in its development," Sobel said. "We made a request to NSA for information as to its role in the development of Vista, so that's a pending request that could become a lawsuit at some point if the agency is not forthcoming."