[Infowarrior] - Has the FBI ever heard of Google?

Wed Sep 13 15:53:30 EDT 2006

Has the FBI ever heard of Google?

By Eric J. Sinrod
http://news.com.com/Has+the+FBI+ever+heard+of+Google/2010-1028_3-6115295.htm
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Story last modified Wed Sep 13 11:22:10 PDT 2006

When it comes to the federal government's rationale for not producing
information to answer inquiries citing the Freedom of Information Act, the
recent case of Davis v. Department of Justice falls under the "you gotta be
kidding" category.

So, let's dig in a bit. The case centered around four audiotapes recorded
more than 25 years ago as part of an FBI investigation in Louisiana. An
author, who is the plaintiff in the case, sought release of the tapes under
the Freedom of Information Act, or FOIA, as it's more generally known. There
were two apparent speakers on the tapes. One was a "prominent individual"
who was the subject of the FBI investigation. The other was an undercover
informant.

The Freedom of Information Act requires the federal government to produce
information upon request with respect to its activities unless the requested
information falls within one or more exemptions explicitly provided in the
statute.
The agency also took the position that it could not conclude whether the
speakers were alive or dead by referencing a Social Security database.

One exemption allows law enforcement to refuse to release records if that
could reasonably be expected to constitute an unwarranted invasion of
personal privacy. Under relevant case law, an agency deciding whether a
particular release of information constitutes an unwarranted invasion of
privacy must balance the privacy interest at stake against the public
interest in disclosure.

The FBI withheld production of the requested tapes, arguing that it had not
been able to determine whether the speakers on the tapes were still living,
and thus were entitled to have their privacy protected. FOIA case law holds
that a person no longer has the same privacy rights upon his or her death.

In its judgment, the federal appellate court in Washington, D.C., determined
that the sole issue on appeal in the case was whether the FBI had undertaken
"reasonable steps" to determine whether the speakers are now dead. In that
case, the court said, even the privacy interests weighing against release
would be diminished.

The FBI could not figure out whether the speakers were over 100 years
old--and thus presumed dead under FBI practice--because neither had
mentioned their birth dates during conversations that were recorded
surreptitiously.

The agency also took the position that it could not conclude whether the
speakers were alive or dead by referencing a Social Security database. The
reason? The speakers did not state their Social Security numbers during the
recorded conversations.

Furthermore, the FBI failed to search its own files for the speakers' birth
dates or Social Security numbers, simply because that is not its standard
practice.

Finally, the FBI did not try any other methods of finding out if the
speakers were alive or dead, such as conducting Google searches.
The appellate court not surprisingly determined that the FBI had not made
reasonable efforts to ascertain whether the two speakers, on whose behalf it
invoked a FOIA privacy exemption, were alive. What's more, the court said it
had serious questions as to whether the FBI provided a reasonable response
to the request.

The case was remanded back to the trial court. The government bears the
burden of invoking exemptions when refusing to produce information pursuant
to FOIA requests. Hopefully the trial court will order the FBI to do proper
due diligence in this case, consistent with the appellate court ruling.

The words of the appellate court ring oh so true:

"Why, in short, doesn't the FBI just Google the two names? Surely, in the
Internet age, a 'reasonable alternative' for finding out whether a prominent
person is dead is to use Google (or any other search engine), to find a
report of that person's death."