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Archives for September 2013

09/5/2013

FOIA Requesters Misled by Military to Waive Appeal Rights

UPDATE: We added clarification that our numbers concerning SOCOM’s FOIA appeals were taken from FOIA.gov

At least two military offices have been found to use a puzzling FOIA request form that may be an attempt to get requesters to give up their rights to appeal FOIA decisions.

The request forms, which are included below, appear on the FOIA web sites of the U.S. Army Special Operations Command (SOCOM) and the U.S. Navy’s Space and Naval Warfare Systems Command(SPAWAR).   In both forms, the offices ask requesters to agree to accept “a releasable copy” of the requested records; however, they fail to expressly inform requesters that electing this option may legally prevent them from appealing if the agency withholds any records.

If requesters do not agree in advance to accept “releasable” records, the forms indicate that their request will be “referred to the appropriate reviewing authority for a final review and release determination.”  This is precisely the procedure that the Department of Defense’s FOIA regulations already require.  Specifically, all Department of Defense FOIA requests must be reviewed by a designated “Initial Denial Authority,” and all decisions to withhold requested records must be explained in sufficient detail so as to allow requesters to decide whether to appeal.

Making matters worse, SOCOM’s version of the FOIA request form implies that the referral procedure described above will dramatically increase the time needed to process the request, noting that “it could take a year” for a decision — essentially coercing the FOIA requester to select the “releasable” records option if they want to receive the production in a timely manner.  As a result SOCOM’s form has effectively minimized FOIA appeals.  During fiscal years 2008 to 2012, SOCOM adjudicated 933 FOIA requests, yet it received zero administrative appeals according to FOIA.gov. Do the zero administrative appeals accurately reflect that in fact there were no appeals by requesters during this four year period regardless of whether they accepted the “releasable” records option, or are these statistics the result of virtually all 933 FOIA requesters abdicating their rights to appeal?

Notably, these forms do not conform to the FOIA request template recommended by the Department of Defense’s main FOIA office.   Nor are they even consistent with sample request letters provided by the FOIA offices of the Department of the Navy or the Department of the Army.  In the words of Victor Hugo, no army can withstand the strength of an idea whose time has come.  It is time for these forms to go.

SOCOM FOIA Request Form

Socom

SPAWAR FOIA Request Form

SPAWAR

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09/5/2013

National Law Journal: Group Wants Justices to Lift Limits on Political Giving

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09/5/2013

Liability Alert Letter to the General Counsel of Covered California regarding Enroll America

Cause of Action sent a letter to Covered California, California’s state health exchange, to alert them of liabilities under federal and state laws and guidelines. Enroll America will be a liaison to state health exchanges across the country, such as Covered California, who manage the sale of health insurance policies.

“The risk of spending federal money in wasteful, fraudulent or abusive ways as they fund outreach activities to enroll the uninsured should put state exchanges on high alert,” said Dan Epstein. “Covered California creates a one-stop insurance marketplace, while conducting outreach similar to that of Enroll America, and we want these exchanges to be aware of the numerous laws and regulations that could present multiple liabilities for them as enrollment begins.”

Liability Alert Letter to the General Counsel of Covered California regarding Enroll America

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09/4/2013

Statement: Cause of Action on Proposed Advertising Campaign for Affordable Care Act

Yesterday, Senator Rubio asked HHS Secretary Sebelius to cancel $8.7 million in planned advertisement buys made through the Centers for Medicare & Medicaid Services (CMS) to promote the Patient Protection and Affordable Care Act using taxpayer dollars.

Dan Epstein, executive director of Cause of Action, offered this response to the possible misuse of federal dollars through efforts to promote the Patient Protection and Affordable Care Act:

“HHS must take seriously the concerns that have arisen about use of taxpayer money for advertising campaigns promoting the Patient Protection and Affordable Care Act. We are already troubled by the fact that HHS has spent nearly $60 million in taxpayer funds to contract with huge PR companies to promote the implementation of the new law, while Secretary Sebelius has simultaneously asked executives from pharmaceutical and insurance companies to support Enroll America, an organization that has spent ‘at least seven figures’ on paid advertising.  Cause of Action’s warning about the high risk of misuse of taxpayer dollars has recently been expressed through letters to state health exchanges and we will continue to monitor any wasteful spending or abuse of federal funds as the law goes into effect.”

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09/4/2013

What to Do about Data Security? A Discussion of the FTC’s LabMD & Wyndham Cases

What to Do about Data Security? A Discussion of the FTC’s LabMD & Wyndham Cases

Over the last decade, the Federal Trade Commission has settled nearly four dozen cases alleging that a failure to have “reasonable” data security constitutes an unfair or deceptive trade practice. The FTC has established no clear data security standards, and no court has ever ever ruled on the FTC’s assertions, but two pending litigations may finally finally allow the courts to rule on the legal validity of what the FTC calls its “common law of settlements” — and whether the agency can continue bringing such data security enforcement actions.

Join TechFreedom and Cause of Action for a livestreamed luncheon discussion on September 12 about these two cases and what they might mean for the future of consumer protection and competition regulation. We’ll hear from Mike Daugherty, founder of LabMD, a small cancer diagnostic lab based in Atlanta. Represented by Cause of Action, a non-profit dedicated to government transparency and accountability, LabMD is defending against the FTC complaint, which focuses on the fact that, in 2007, a government-funded surveillance program was able to access a file containing patient information on LabMD’s network through the Limewire filesharing program. Mike will preview his new book, The Devil Inside the Beltway: The Shocking Exposé of the US Government’s Surveillance and Overreach into Cybersecurity, Medicine and Small Business, due out September 17. (Hint: the “devil” is a broader regulatory mentality.)

Our panel of legal experts will discuss the unique aspects of the LabMD case, especially the FTC’s decision not to prosecute filesharing services like Limewire for unfair trade practices in configuring their software to trick users into sharing files unintentionally — a decision the FTC eventually reversed, but not until it finally brought an enforcement action against Frostwire in 2011 for the same unfair practice. The panel will also discuss the larger legal issues raised by the LabMD case, the FTC’s pending litigation with Wyndham Hotels, and other recent cases settled by the FTC. Is the FTC’s approach consistent with the rule of law? Could it be? Does it actually protect consumers? What should the courts and Congress do?

Space is limited so RSVP now if you plan to attend in person. A livestream of the event will be availablehere. You can follow the conversation on Twitter on the #LabMD hashtag.

When: 
Thursday, September 12, 2013
12 p.m. (registration and coffee opens at 11:45, event and livestream at 12:15)

Where:
100 Maryland Ave NE
Washington D.C. 20002

Questions? 
Email contact@techfreedom.org.

Read TechFreedom’s amicus brief in the recent Wyndham and POM Wonderful cases for more legal analysis of how the FTC’s extra-legal regulations.

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