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03/23/2017

CoA Institute Uncovers EPA Investigation into Employees’ Use of Encrypted Messaging App

Hours after filing a lawsuit demanding that the Environmental Protection Agency (“EPA”) disclose records about its employees’ use of an encrypted messaging application, Cause of Action Institute (“CoA Institute”) received a letter from the EPA’s Office of General Counsel acknowledging that there is an “open law enforcement” investigation looking into the matter.

The EPA indicated that records created or received by its employees on “Signal,” and records concerning efforts “to retrieve, recover, or retain” those messages, were “part of one or more open law enforcement file(s).” The agency claimed such records were exempt from disclosure under the Freedom of Information Act (“FOIA”) because they were compiled for “law enforcement purposes” and their disclosure “could reasonably be expected to interfere with ongoing enforcement proceedings.”  Further, the EPA stated that it could not find any records reflecting “permission, clearance, or approval” for the use of the encrypted messaging app.

Cause of Action Institute Assistant Vice President Henry Kerner: “The EPA’s response to our lawsuit is unsurprising, but still deeply disturbing.  The unauthorized use of an encrypted messaging app by a government employee is inappropriate, and the EPA appears to agree that its employees might have broken the law.  Although we are pleased to learn that the agency is examining potential wrongdoing, we will continue to fight for the disclosure of records responsive to our FOIA request because we do not agree that the law prohibits the disclosure of the Signal messages.  It will be up to the courts to decide.”

Even though the EPA purports to have provided a final response to CoA Institute’s FOIA request, the recently filed lawsuit will continue. CoA Institute disputes the sufficiency of the EPA’s determination, which suggests that a search for potentially responsive records was never carried out. In addition, we disagree with the agency’s reliance on FOIA Exemption 7(a).

The EPA’s letter can be found here

 

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03/22/2017

Report Finds Threat of IRS Targeting Continues Today

Washington D.C. – Cause of Action Institute (“CoA Institute”) today released a staff report titled, “Sensitive Case Reports: A Hidden Cause of the IRS Targeting Scandal,” outlining how seven years after the IRS targeting scandal began, the rule that enabled this inexcusable behavior remains in place.

IRS targeting during the Obama administration involved invasive questioning and years-long delays in the processing of applications by non-profit organizations for tax-exempt status, and focused disproportionately on right-leaning groups, especially those with “Tea Party” in their name. The policy that enabled this targeting is an internal rule that singles out applications from any group interested in issues that might garner attention from either the media or Congress. In such cases, the merits of the application are ignored as IRS employees develop “Sensitive Case Reports” for consideration by those above them in the IRS hierarchy.  In the targeting scandal, the existence of this rule allowed partisan concerns to overtake the process, leading to the unfair treatment of groups holding political viewpoints at odds with the Obama administration.

The report explains that unless and until that rule is removed from the internal manual used by all IRS employees, targeting of political opponents will remain a very real threat. Fortunately, removing the offending provisions is a simple process that can be started at any time and completed without the need for new legislation.

The full report can be accessed HERE

In Case You Missed It…

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‘Media Attention’ and IRS Abuse
A simple rule fix could end partisan targeting tomorrow.

By John J. Vecchione | March 21, 2017

The Internal Revenue Service’s targeting of Americans for their political views may have ended with the Obama administration—or even with its exposure in 2013. But it could easily recur. Even now, an internal IRS rule singles out applicants for nonprofit status who might be tied to anything newsworthy.

The genesis of the targeting scandal was Section 7.29.3 of the Internal Revenue Manual. As noted in a report my organization is issuing Wednesday, this manual dictates how IRS employees handle everything from customer service to criminal investigations… Read More

 

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

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03/22/2017

Lawsuit Demands Records on EPA Employees’ Use of Encrypted Messaging App

Washington, D.C. – Cause of Action Institute (“CoA Institute”) has filed a lawsuit in the U.S. District Court for the District of Columbia after the Environmental Protection Agency (“EPA”) failed to disclose records about its employees’ use of an encrypted messaging application, “Signal,” to discuss the Trump administration’s expected changes to the agency’s policy agenda.

The lawsuit follows a February 2, 2017 Freedom of Information Act (“FOIA”) request, which sought all records of Signal communications created or received by EPA officials, as well as records concerning the EPA’s efforts, if any, to retriever, recover, or retain such work-related correspondence in accordance with federal records management laws.

Cause of Action Institute Assistant Vice President Henry Kerner: “Career employees at the EPA appear to be using Signal to avoid transparency laws and vital oversight by the Executive Branch, Congress, and the public.  Communications on this encrypted application, however, which relate to agency business must still be preserved under the Federal Records Act and be made available for disclosure under the FOIA.  Taxpayers have a right to know if the EPA’s leadership is meeting its record preservation obligations.”

According to media reports, at least a dozen EPA career employees have been using Signal to communicate about work-related issues, including how to prevent President Trump’s political appointees from “undermin[ing] their agency’s mission to protect public health and the environment” or “delet[ing] valuable scientific data.”  CoA Institute’s investigation into this matter has been widely discussed in the press, along with Congress’s request for the EPA’s watchdog to independently investigate the matter.  To date, the EPA has failed to issue a timely determination on CoA Institute’s FOIA request, let alone produce any responsive records.

The full complaint can be found here.

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

 

 

 

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03/20/2017

A Warrantless Phone Search, A Dangerous Precedent

Washington D.C. – Cause of Action Institute (“CoA Institute”) today filed an amicus curiae brief in support of Defendant Hamza Kolsuz who in February, 2016 was arrested at a Virginia airport attempting to board a plane bound for Istanbul, Turkey.

At the time of his arrest, U.S. Department of Homeland Security (“DHS”) Customs and Border Patrol (“CBP”) officers seized Mr. Kolsuz’s iPhone and subsequently ordered a month-long, warrantless forensic search, resulting in nearly 900 pages of detailed information, including Mr. Kolsuz’s internet-browsing history, text messages, emails, and various geographic locations he had visited. Under a 2014 Supreme Court case, any search of a cellphone seized during an arrest requires a warrant.  

While Mr. Kolsuz filed a legal motion to suppress the evidence obtained without a warrant, the presiding judge ruled that the search constituted a border search, and was therefore legal under a narrow exception to the Fourth Amendment. Mr. Kolsuz was found guilty and sentenced to thirty months in prison.

We believe the District Court erred in allowing the evidence. Our brief urges the court to reverse the previous decision and grant Mr. Kolsuz a new trial.  While in certain circumstances, a border search may be conducted without a warrant, in this instance the governmental interests that justify this exception were not in play because neither Mr. Kolsuz nor his phone were crossing any border after his arrest. 

The brief states:

At the time of the search, neither Mr. Kolsuz nor his smartphone were in the process of crossing any border. The Government was not furthering any interest in prohibiting the entry or exit of contraband, enforcing currency control, levying duties or tariffs, or excluding travelers without the property documentation to enter the country…

The privacy interests inherent in electronic devices are so high as to require a minimum of probable cause to justify their search.  Any less protection will continue to chill First Amendment protections, harm business interests, and violate the Fourth Amendment rights of Americans to be free from unreasonable search and seizure.

Federal customs agencies have essentially turned what was supposed to be a narrow exception to the Fourth Amendment’s warrant requirement into a loophole to search anyone’s cellphone or laptop without any reasonable suspicion or probable cause to suspect them of a crime.  Under current DHS “guidance,” anyone who travels internationally can be detained, asked to grant a customs agent access to their cellphone or laptop (including their social media accounts, email, and other remotely-stored information), and even face seizure of their device for off-site searching if they refuse to consent to the search.  News reports have detailed the recounts of many Americans who have been subjected to this policy.  DHS searched 5,000 electronic devices in February of this year alone.  

In addition to the troubling implications under the Fourth Amendment’s right to privacy, the brief outlines how electronic devices are such a commonplace tool that modern business would be unable to function without them.  Journalists and legal organizations rely on smartphones, tablets, and laptops to communicate with sources around the world, store research and contact information, draft and publish news articles, and film or photograph live events, and upload stories to social media.  Similarly, lawyers routinely utilize laptops and smartphones as repositories of attorney-client communications and work product documents. Businesses also need such devices to perform proprietary work, transmit documents detailing trade secrets, and remotely access company information.   

The courts have carefully crafted legal balancing tests that recognize the need to protect certain information, like journalist sources, attorney-client privileged information, and confidential trade secrets, by allowing the government to access such privileged information only when certain compelling justifications exist. In this regard, the current DHS “policy” purporting to allow the agency unfettered access to information at the border does not only contravene the privacy rights of individuals, but also disrupts other carefully-created judicial safeguards that protect the information of businesses, journalists, and lawyers’ clients, from disclosure.

The brief was filed on behalf of Cause of Action Institute, along with the Committee for Justice, a nonprofit organization dedicated to promoting the rule of law, and Floor64 Inc. that publishes the online news site, Techdirt.com. Techdirt’s journalists routinely depend on the ability to protect its sources and private information.

The full brief is available here

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

 

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03/14/2017

CoA Institute Files Lawsuit for ObamaCare Records

Washington, D.C. – Cause of Action Institute (“CoA Institute”) filed a lawsuit in the U.S. District Court for the District of Columbia after the Department of Health and Human Services (“HHS”) failed to disclose records about the potential misuse of taxpayer information to market the Affordable Care Act (“ACA”), as well as records on the funding of two controversial ACA programs.

The lawsuit follows three Freedom of Information Act (“FOIA”) requests to HHS and its subsidiary agency, the Centers for Medicare and Medicaid Services (“CMS”), seeking records relating to obligations under the transitional reinsurance program and the risk corridors program, as well as attempts to market ObamaCare to individuals who declined coverage by using information obtained from individual federal tax returns. The agencies failed to produce any responsive records well past the applicable FOIA time limits.

Cause of Action Institute President and CEO John Vecchione: “It appears that senior Obama administration officials acted against taxpayers’ interests and disregarded the law to make ObamaCare appear more successful. Under the law, Americans’ tax information may be used to determine eligibility for subsidies, but not to market ObamaCare to individuals who have already declined to enroll. Disclosures of taxpayer information by the IRS raises serious privacy concerns. As Congress continues its efforts to repeal and replace the ACA, it’s more important than ever for HHS to be transparent and forthcoming about ObamaCare’s failures and missteps in implementation.”

Background

Taxpayer Information: To boost enrollment in ACA programs, it appears the Obama administration attempted to market the ACA to individuals who declined coverage by using information obtained from individual tax returns. A fact sheet released by CMS highlights its plan to “conduct outreach to individuals and families who paid the fee for being uninsured, or claimed an exemption from that fee, for 2015.” Under the ACA, however, tax information may only be used to determine ACA subsidy eligibility; it may not be used to market the ACA to individuals who have already declined to enroll. Taxpayer information disclosures by the IRS to an unknown number of individuals at CMS and throughout the government raises serious legal and privacy concerns.

Risk Corridors: Since its enactment, the ACA has faced considerable funding issues. The risk corridors program was supposed to collect payments from insurers with lower than expected losses and redirect the money to subsidize insurers with higher than expected losses. Because of low enrollment and monetary shortfalls, a CMS memorandum announced that funding for the risk corridors program would not be available to insurers in 2015. The memorandum, however, appears to invite insurers to sue CMS and then settle with the Department of Justice (“DOJ”) to obtain funding, which would constitute an end-run of a provision enacted by Congress in 2014 to prevent shifting funds into the risk corridors program and a violation of DOJ guidance regarding “backdoor bailouts.” Obtaining risk corridor funding through the DOJ Judgment Fund would be an illegal misuse of appropriated taxpayer money.

Reinsurance Program: Section 1341 of the ACA requires the HHS to return payments to taxpayers under the transitional reinsurance program. Under this program HHS collects reinsurance contributions from health insurance providers and third party administrators on behalf of group health plans. In 2014, HHS was supposed to collect $10 billion in payments to health insurers who enroll high-risk individuals and an additional $2 billion in contributions to be deposited directly to the U.S. Treasury. Unfortunately for taxpayers, it appears when HHS collected less money than required by the ACA, the agency violated the law by allocating all funding to health insurers, depriving taxpayers of billions of dollars.

The full complaint can be found here

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

 

 

 

 

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03/13/2017

Government Obligated to Recover Colin Powell’s Emails

Washington, DC – Cause of Action Institute (“CoA Institute”) today filed its opposition to the government’s motion to dismiss a lawsuit to compel Secretary of State Rex Tillerson and U.S. Archivist David Ferriero to fulfill their statutory obligations to recover former Secretary of State Colin Powell’s work-related email records from a personal account hosted by AOL, Inc.  CoA Institute filed the lawsuit in October 2016 after then-Secretary John Kerry and Archivist Ferriero both failed to act on a CoA Institute Federal Records Act (“FRA”) notice and Freedom of Information Act (“FOIA”) request.

Cause of Action Institute President and CEO John Vecchione: “The law requires an agency or the Archivist to initiate action through the Attorney General to recover unlawfully removed records, especially when initial remedial efforts have failed.  This is a mandatory obligation that cannot be sidestepped.  Whether AOL no longer has Secretary Powell’s email records in its systems is unproven.  More importantly, the government cannot point to any evidence that more intensive, forensic recovery methods—like those employed in the case of Secretary Clinton—might lead to the recovery of these important and historically-vital State Department records.”

In September 2016, the House Oversight & Government Reform Committee held a hearing at which then-Under Secretary of State Patrick Kennedy testified that the State Department had undertaken minimal efforts to retrieve Powell’s work-related email.  After learning that Powell no longer had access to his AOL account or its contents, the State Department merely asked that Powell contact AOL to see if anything could be retrieved.  Despite a request from the National Archives and Records Administration (“NARA”) to contact AOL directly, the State Department never did so.

The government now argues the case should be dismissed because CoA Institute cannot show that involving the Attorney General will result in the recovery of Powell’s email.  That argument is faulty on both the law and the facts.  As to the law, the government confuses the nature of an agency head’s non-discretionary obligation under the FRA, which requires it to initiate action through the Attorney General to recover unlawfully removed records.  This requirement is all the more important when an agency’s or the Archivist’s remedial recovery efforts have proven fruitless.

Though the State Department and NARA exerted minimal effort to recover Powell’s email records, they failed.  Moreover, the government has yet to prove that the Attorney General could not achieve that recovery.  Many State Department officials believed that federal records that had been deleted from Secretary Hillary Clinton’s private email server were unrecoverable, for example, but the FBI retrieved many of those records using forensic techniques.  The same could be done here, assuming AOL cannot in fact access or recover Powell’s records through less intensive means.

Although the government argues that Powell’s email records are no longer in AOL’s system, that allegation depends on unreliable hearsay.  The State Department relies on the representations of Powell’s secretary, but an email uncovered by CoA Institute through FOIA shows that this representative received only vague details about an apparent phone conservation between someone at AOL and a staff member of the House Oversight Committee, during the course of which the unnamed AOL employee indicated that AOL no longer had Powell’s email.  The details of the phone call, the exact content of the representations made, and the reasons for why AOL reached the conclusion it did are all unclear, but even assuming the truth of the claim, it does not speak to the ability of the government to recover Powell’s email through other means.

Cause of Action Institute’s opposition brief can be accessed HERE.

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03/6/2017

John Vecchione Named President and CEO of Cause of Action Institute

Washington D.C. – John Vecchione has been tapped as the new President and CEO of Cause of Action Institute (“CoA Institute”), a non-profit government watchdog group and public interest law firm based in Washington, D.C.  Mr. Vecchione first joined CoA Institute as Vice President in March, 2016, bringing more than two decades of extensive litigation experience as both a trial lawyer and appellate advocate.

“As President of Cause of Action Institute, I will continue to advocate for a more transparent and accountable government free from waste, fraud, abuse, and cronyism,” Vecchione said. “It is an honor to lead a dedicated, talented team of attorneys here at CoA Institute who are committed to advancing the ideals of a free and open society. In our organization’s short five-year history, we have represented numerous individuals whose livelihoods have been threatened by federal government overreach, and pressed to know how the Government is making decisions.  CoA Institute was founded to promote individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity. These goals have never been more important.”

dsc06987Mr. Vecchione earned his J.D. from Georgetown University Law Center in Washington, D.C., and his Bachelor’s Degree from Hamilton College in Clinton, N.Y. He has tried cases and argued appeals across the country in private practice and is a member of the bars of the State of New York, the District of Columbia, and the Commonwealth of Virginia, as well as the Supreme Court of the United States and many federal courts. Mr. Vecchione’s cases have been reported in scores of published opinions. He has published numerous op-eds advancing the freedom agenda and constitutional order in the Wall Street Journal, the Washington Times and many other forums.

John Vecchione’s full biography is available here

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