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02/3/2017

CoA Institute Investigates EPA Employees Using Electronic Messaging Apps to Thwart Transparency

Washington D.C. – Cause of Action Institute (“CoA Institute”) has filed a Freedom of Information Act (“FOIA”) request after recent media reports identified a number of career EPA employees possibly using an encrypted electronic messaging app called “Signal” to communicate about work-related issues, including how to prevent political appointees from “undermin[ing] their agency’s mission to protect public health and the environment” or “delet[ing] valuable scientific data.”

“It appears that some employees at the EPA may be using encrypted apps on their phones to avoid transparency laws in an effort to conceal their communications from internal and external oversight,” said CoA Assistant Vice President Henry Kerner. “Under the Federal Records Act, the EPA has a legal obligation to preserve all records made by employees working on official government business.  This obligation is all the more important if EPA employees are using personal cellular devices or private accounts for such purposes.  These messages must also be made available under the Freedom of Information Act.  Agency leadership, Congress, and the public have a right to know if federal employees are using encrypted electronic messages to evade transparency.”

It is unknown whether these employees discuss work related issues on Signal using their EPA-issued or personal devices. Under the Federal Records Act, the EPA has a legal obligation to preserve records evidencing employees working on government business, no matter the medium of their communication. CoA Institute is submitting this Freedom of Information Act request and notifying Acting Administrator McCabe of her obligation under the Federal Records Act to ensure that all work-related Signal messages are retained or retrieved by the EPA.

The full FOIA can be found here.

 

 

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02/1/2017

Read Mark Steyn’s Comments on CoA Institute’s Amicus Curiae Brief

Last week, Cause of Action Institute filed an amicus curiae brief on behalf of Dr. Judith A. Curry. Read Mark Steyn’s rundown of the brief here.

The brief itself can be found here.

February 28, 2017 Update:

Today, the District of Columbia Court of Appeals ordered Michael Mann to file a response to the Competitive Enterprise Institute’s petition for rehearing en banc.  This is a good sign that the court is taking the petition seriously and digging into the issues.  We hope that they grant the petition and overturn the panel.

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01/31/2017

Cause of Action Institute Files Motion to Dismiss FTC’s Baseless Data Security Charges Against D-Link Systems Inc.

WASHINGTON – Cause of Action Institute (“CoA Institute”) on behalf of D-Link Systems, Inc. today filed in the U.S. District Court for Northern California a Motion to Dismiss the baseless charges brought by the Federal Trade Commission (“FTC”) regarding the company’s security practices for consumer routers and IP cameras.

In an eleventh-hour attempt to expand its own authority to regulate the Internet of Things (“IoT”) before the new administration took office, the FTC in early January filed a complaint against D-Link Systems. The complaint makes vague and unsubstantiated allegations, without asserting a single data breach of any product sold by D-Link Systems in the U.S. Instead, the FTC speculates that consumers were placed “at risk,” to be hacked, but fails to allege, as it must, that consumers suffered or are likely to suffer actual substantial injuries. D-Link Systems stands behind its products and maintains a robust range of procedures to address potential security vulnerabilities.

“This is a case of politicized government overreach without justification or any evidence of consumer injury,” said Patrick Massari, assistant vice president, CoA Institute. “In fact, to her credit, Acting Chairwoman Ohlhausen voted not to bring this case and has spoken out against the agency filing other lawsuits ‘on the eve of a new presidential administration’ that are based on a flawed legal theory and lack economic and evidentiary support.

“This case should be dismissed now. Congress did not delegate to FTC the authority to regulate data security for IoT companies, and therefore FTC’s putative regulation is beyond its legal power. Moreover, the FTC fails in its Complaint to plead the basic elements of proof necessary for a Section 5 ‘unfairness’ violation. The FTC’s action sets a dangerous precedent, whereby the federal government could subject liability to any company that makes an internet-connected product. The FTC’s lawsuit violates D-Link Systems’ due process rights, and will no doubt have a chilling effect on innovation. For these reasons we have urged the Court to dismiss this Complaint in its entirety.”

The FTC has no authority under Section 5(n) of the FTC Act to declare unlawful an act or practice “on the grounds that such act or practice is unfair unless the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.” As D-Link Systems Inc.’s Motion to Dismiss points out, the FTC’s Complaint pleads legal conclusions couched as hypothetical, speculative factual allegations.  FTC’s “deception” allegations should also be dismissed for failure to meet the heightened pleading standards set by Federal Rule of Civil Procedure 9(b), which requires such claims to be pled with particularity.

Read the full Motion to Dismiss here Exhibits can be found here

About Cause of Action Institute:  Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

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01/31/2017

January Newsletter

Cause of Action Institute published its January newsletter today. You can read the newsletter here and subscribe to the newsletter here. The January newsletter highlights:

  • We will represent D-Link Systems, Inc. in its defense against recent unwarranted and baseless charges brought by the Federal Trade Commission regarding the company’s security practices for consumer routers and IP cameras;
  • we sued the Bureau of Land Management (BLM) to obtain access to records about the agency’s acquisition of land in Arizona, Nevada, and New Mexico. Americans deserve to understand how and why BLM wants to increase its control over land that could otherwise be used for private or state purposes; and
  • the D.C. Circuit Court of Appeals has overturned a ruling by the District Court in a lawsuit Cause of Action Institute filed against Secretary of State John Kerry and U.S. Archivist David Ferriero seeking to enforce their duties under the Federal Records Act as they relate to retrieval of Hillary Clinton’s emails.
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01/25/2017

CoA Institute files Amicus Brief on Behalf of Dr. Judith Curry in Support of Rigorous and Open Debate on Climate Science

Washington, D.C. – Jan. 25, 2017 – Cause of Action Institute (“CoA Institute”) today filed an amicus curiae brief on behalf of prominent climate scientist Dr. Judith A. Curry in support of a petition for rehearing in the Competitive Enterprise Institute v. Michael Mann lawsuit in the D.C. Court of Appeals.  The brief argues that Dr. Mann has transgressed the basic norms of scientific behavior and First Amendment principles by trying to use the court system to silence critics of his methodological approach to climate science.

“Scientists should not use the court system to silence people who are critical of their work.  Public exposure of a scientist’s methodologies and an openness to defend those methodologies is at the very core of scientific progress,” said Dr. Judith Curry.  “The court needs to know how far Dr. Mann has strayed from the core philosophy of science with this lawsuit.”

“Dr. Curry has been the repeated victim of Dr. Mann’s efforts to silence and harass her for criticizing his work.  She finds it hypocritical that Dr. Mann is trying to use the court system to silence his critics while engaging in similar behavior toward other scientists,” said CoA Institute Acting President John Vecchione.  “We are proud to have had the opportunity to help Dr. Curry express her staunch support for the First Amendment and her belief in the importance of maintaining a rigorous and open debate about climate science.”

The amicus brief is available here.  The brief was accompanied by a motion seeking the court’s leave to file.

About Cause of Action Institute
Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org

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01/25/2017

CoA Institute Sues BLM for Shielding Information on Expansion of Federal Lands

Washington, D.C. – Cause of Action Institute (“CoA Institute”) today sued the Bureau of Land Management (“BLM”) to obtain access to records about the agency’s acquisition of land in Arizona, Nevada, and New Mexico.  Last year, the BLM asked Congress for nearly $90 million for new purchases, even though the agency already is responsible for about 250 million acres of federally-owned land.  Americans deserve to understand how and why the BLM wants to increase its control over land that could otherwise be used for private or state purposes.

To shed light on the BLM’s land deals and ensure that the agency is responsibly managing its resources, CoA Institute submitted a Freedom of Information Act (“FOIA”) request on August 10, 2016 seeking purchase agreements, appraisals, and related communications.  Nearly six months later, the agency has failed to issue a final determination on CoA Institute’s request or produce responsive records as required by FOIA.

CoA Institute Assistant Vice President Lee Steven: “When the Bureau of Land Management buys private land to add to the hundreds of millions of acres the federal government already owns, Americans have a right to know why. According to the Congressional Research Service, the federal government owns almost half the land of 11 western states and more than 60 percent of Alaska. The last thing these states need is more federal control of their land.”

The full complaint can be found here.

Exhibits in the complaint can be found here.

CoA Institute is a non-profit strategic oversight group committed to ensuring that government decision-making is open, honest, and fair.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

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01/13/2017

CoA Institute Supports Strong Due Process on College Campuses

In a letter today to Senator Lamar Alexander, Chairman of the Committee on Health, Education, Labor & Pensions, Cause of Action Institute (“CoA Institute”) expressed its support for the mission of the Foundation for Individual Rights in Education (“FIRE”) to “defend and sustain individual rights at America’s colleges and universities.”

FIRE’s wide-ranging mission seeks to preserve the individual liberties vital to a just and free society, specifically by protecting freedom of speech, legal equality, due process, religious liberty and sanctity of conscience on America’s college campuses.

The letter states:

“Critics of FIRE’s advocacy for sufficient due process protections for all students—both accusers and accused—fail to acknowledge traditional notions of justice. Justice is not served if adjudications are overwhelmingly stacked against the accused due to their inability to defend themselves from false accusations.  FIRE merely fights for the adoption of due process protections Americans often take for granted in other proceedings: “the right to the active participation of counsel; the right to see the evidence in one’s case and to meaningfully question witnesses; and the right to an impartial tribunal, among others.”

Read the full letter HERE.

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