Remember when your mom said that asking the wrong questions would put you on someone's list?

Feb 13, 2011

As a child of the Cold War era I'd always been curious about politics and how things worked. My mom (and grandmother, for that matter) always warned me that asking those kinds of questions would mean that my name would wind up on a list someplace. They were never clear on what sort of list that was, or what effect being on one might have. The context was never a good one and it lead to no shortage of arguments, that was for sure. Those arguments mysteriously stopped when, in one of my high school civics classes (it's important to note that we weren't actually offered history until our senior year, but three full years of civics was mandatory for graduation) required us to file FOIA requests with a government agency and write a term paper on the topic we inquired about using the documents received as our primary sources. For what it's worth I picked the Bureau of Alcohol, Tobacco, and Firearms for my paper and got some very interesting stuff back about the seige of the Branch Davidian compound of Waco, Texas in 1993. Unfortunately, most of the stuff I got in the mail twenty years ago has been either lost or thrown away - moving twice being the equivalent of approximately one house fire after all.

I'd completely forgotten about that stuff until a few days ago, when I came across a a particular article in the New York Times. For years, the EFF has been making FOIA requests of the US government, analyzing what they get back, and blogging about things they'd uncovered; they even wrote a how-to about how to go about making effective FOIA requests on your own as part of their Bloggers' Legal Guide. It wasn't that surprising that after a while some of their requests were going through an extra layer of review before being answered; the way FOIA works, all requests have to go through at least one layer of review to determine whether or not the release of the information in question might result in a security breach. There are a couple of ways to make it less likely that any information will be found, such as monkeying with search terms to make them overly exclusive (resulting in no matches), requiring too many people to look at them (thus increasing the probability that the request will be denied), or making search terms so broad that millions of pages could match, which would make getting the documents too expensive for anyone less wealthy than an average corporation. Remember: any sufficiently advanced bureaucracy is indistinguishable from malice.

Representative Darrel Issa of California, who happens to chair the House Committee on Oversight and Government Reform, recently requested that approximately 180 federal agencies make available to him the names of everyone who made FOIA requests of them, the dates the requests were received, and descriptions of the kinds of information they were after. Issa also asked for copies of any correspondence between the agency and the requestor in the event that requests had taken longer than 45 days to clear. The information he's asking for covers a number of years between 2005 and the present day. Issa's office says that they are trying to gauge the responsiveness of those agencies to requests filed, and seeing as how more than a half million are filed every year, there is some logic to that. On the other hand, journalists and privacy advocates are expressing concern over this. Agencies keep logs of what people request - that sort of bookkeeping is expected and the information is essential when it comes time to determine what civil servants and contractors are spending all their time on. However, one person asking so many different agencies for details about who is asking for what and when might lead to a chilling effect, in which people may refrain from exercising their rights out of fear of reprcussions down the road. In fact, John Verdi (senior legal counsel for the EFF) came right out and said that this could be used to determine who is making the biggest nuisance of themselves.

Frankly, I don't know what to make of this. My gut reaction is to cry foul because one highly-placed person is trying to get his hands on what several hundred thousand people are asking about every year. Having a decentralized system is both a blessing and a curse depending on which side of the fence you're standing on - if you're part of the crowd (which is entirely your right) it's the former, but if you're looking for something specific it's the latter. Given how little privacy we really have these days I'm perfectly willing to trade off a pain in the ass for someone else so I can worry less about catching flak for exercising my rights as a US citizen to do something which is specifically legal (I'm also willing to put up with quite a bit of inconvenience to maintain my privacy, but that's for a different post). While I don't think that anyone will be paid a visit by Men In Black for filing a FOIA, it is entirely possible that it will make people reconsider exercising their rights, especially their right to know what's going on. These days, we're not finding out what's going on from the government, we're finding it out for ourselves, and I think that's making some people worried because it reverses the order of things that they're accustomed to.