close X

Search Results for: XP Technology

CoAI to President Trump: Appoint Commissioners to FTC

July 13, 2017 by

Letter urges swift action to break deadlock, free U.S. businesses from unwarranted, abusive enforcement actions

Washington, D.C. – Cause of Action Institute (“CoA Institute”) sent a letter to President Trump, imploring him to move quickly to appoint one or more commissioners to fill current vacancies at the Federal Trade Commission (“FTC”). The letter suggests that just one additional commissioner could break deadlock to halt the agency’s pattern and practice of regulatory overreach and rein in recent unconstitutional enforcement actions that harm the economy and the rule of law.

The letter states that although the FTC’s acting chair, Maureen Ohlhausen, “has done a commendable job of addressing the excesses and lawlessness that plagued the agency, the acting chair cannot fully right the ship unless and until you appoint one or more commissioners who share her commitment to advancing economic liberty and believe that responsible businesses should have the freedom to succeed, unfettered by rogue regulators chasing chimerical harms.”

The letter states:

“The acting chair’s ability to promote competition and protect the free market and consumers from overregulation and overreach is hamstrung by the current gridlock on the Commission. Although Congress intended for the Commission to be an independent, bipartisan, five-member administrative body, there are currently only two commissioners: Acting Chair Ohlhausen, a Republican, and Commissioner Terrell McSweeney, a Democrat.

“Because a majority of commissioners must vote to approve most Commission actions, and because only one of the two current commissioners shares the administration’s commitment to cutting bureaucratic red tape to grow the economy, the Commission is hopelessly deadlocked on important policy issues affecting the entire private economy, such as the FTC’s controversial efforts to regulate data security, technology, and privacy for all U.S. businesses citing its authority under Section 5 of the FTC Act to prohibit ‘unfair’ or ‘deceptive’ business practices.”

The letter highlights several controversial “midnight” enforcement actions initiated just before the Trump administration began, that were undertaken in the absence of proven consumer harm. For instance, as the acting chair explained in her dissent from one such “midnight” enforcement action:

“[I]n the Commission’s 2-1 decision to sue Qualcomm, I face an extraordinary situation: an enforcement action based on a flawed legal theory (including a standalone Section 5 count) that lacks economic and evidentiary support, that was brought on the eve of a new presidential administration, and that, by its mere issuance, will undermine U.S. intellectual property rights in Asia and worldwide. These extreme circumstances compel me to voice my objections.”

The letter concludes, “[T]he acting chair should not be the lone (and thus powerless) voice of reason and sound economic policy on the Commission. For these reasons, we respectfully ask that you expeditiously appoint one or more Commissioners to the FTC at your earliest convenience to assist the Acting Chair in furtherance of this Administration’s efforts to reduce regulatory burdens and improve Americans’ liberty to create.”

The letter was signed by John J. Vecchione, president and CEO of CoA Institute. The full letter is available here

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

Filed Under: Press Release, Media Tagged With: , ,

What is the Antiquities Act? Short Answer: Depends Who You Ask (Part 2)

May 16, 2017 by

We recently began our series of blog posts examining the history, purpose, and limitations of the Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”). Today we continue discussing how the Act fits within the variety of other frameworks for protecting and using public lands. So what is the Antiquities Act?

In contrast to the Act’s ambiguous status, as discussed yesterday, the land management plans that arise from statutory schemes, and which are managed by the administrative agencies, are both comprehensive and detailed. The United States federal government owns approximately 640 million acres of land.[1] Of that, just over 610 million acres, or 95% of federally owned lands, are under the control of one of the four main federal land management agencies: The Bureau of Land Management (“BLM”), the Fish and Wildlife Service, the National Park Service, or, the Forest Service. The first three of these agencies are part of the Department of Interior (“DOI”), while the last is part of the Department of Agriculture. Federal public lands are administered subject to “a myriad of individual agency mandates to manage particular lands and particular resources” overlapped by “general environmental statutes.”[2] In addition, these agencies hold full or co-management responsibilities for all the national monuments.

The map below shows the extent of federally held lands in the United States:

Source: U.S. Geological Survey

Established in 1905, the Forest Service is the oldest of the four major federal land management agencies, and the only one to officially predate the passage of the Antiquities Act. Its mission is “to sustain the health, diversity, and productivity of the Nation’s forests and grasslands to meet the needs of present and future generations.” The National Park Service followed over a decade later in 1916 and has a dual mission to preserve natural and cultural resources and provide such for the enjoyment of the public. The BLM, founded in 1946, is charged with the “stewardship of our public lands” and its management of such lands is “based upon the principles of multiple use and sustained yield of our Nation’s resources within the framework of environmental responsibility and scientific technology.” In 1966, Fish & Wildlife was the last of these agencies to be established and was tasked with “working with others to conserve, protect, and enhance fish, wildlife, plants, and their habitats for the continuing benefit of the American people.”

Read together, the missions of these federal public lands management agencies are to work collaboratively with numerous stakeholders to conserve and protect the nation’s natural and cultural resources with an eye towards multiple use and sustainable processes, as well as public access. The Antiquities Act is at odds with these major public lands management agencies to the extent that designations are made at the sole discretion of the President without consideration of existing land management, historic preservation, and/or environmental protection plans, and without any need for public input.

In addition to the laws providing for historic preservation, there are no less than twenty federal laws providing for the designation, protection, and management of environmentally sensitive areas located on public lands.[3] Many of those laws, such as the Federal Land Policy and Management Act of 1976 (“FLPMA”) and the National Environmental Policy Act (“NEPA”), require both public input and environmental assessments as part of their planning processes, which the Antiquities Act does not.

Although NEPA and FLPMA may be included in the final management plans for individual monuments, there is no affirmative requirement under the Antiquities Act to provide for environmental protections on the declared parcels. Curiously, some proponents of using the Antiquities Act have supported this aspect of the law because, in their view, bypassing congressional consensus or environmental review is a quicker and easier way to gain land protections. This perceived expediency and ease of using the Antiquities Act is no replacement for open and transparent discourse, particularly considering existing comprehensive historic preservation, land management, and environmental statutory and regulatory schemes that have established mechanisms for public and congressional oversight and input.

Given the hybrid nature the Antiquities Act and the sometimes arbitrary nature of its use, any reforms, if made, should consider existing statutory and regulatory frameworks for historic preservation, public lands management, and environmental protection, as well as methods for strengthening transparency and government accountability in decision-making.

Our series will continue next week with an overview of the environmental and fishery management laws that relate to marine or other water-based federal territories.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.
Kara E. McKenna is a Counsel at Cause of Action Institute. You can follow her on Twitter @Kara_McK

 

a[1] Cong. Research Serv., Federal Land Ownership: Overview and Data (Mar. 3, 2017).

[2] Marla Mansfield, A Primer of Public Land Law, 68 Wash. L. Rev. 801, 802 (1993).

[3] See e.g., Organic Act of 1897; Transfer Act of 1905; National Park Service Organic Act; Fish and Wildlife Act of 1956; Archaeological Recovery Act of 1960; Multiple-Use Sustained-Yield Act of 1960; Wilderness Act of 1964; National Wildlife Refuge System Administration Act of 1966; The National Historic Preservation Act; Wild and Scenic Rivers Act; National Trails System Act of 1968; Mining and Minerals Policy Act of 1970; Endangered Species Act of 1973; The Wild and Free-Roaming Horses and Burros Act of 1971; National Forest Management Act of 1977; Surface Mining Control and Reclamation Act of 1977; Archaeological Resources Protection Act of 1979; Fish and Wildlife Conservation Act of 1980; Federal Cave Resources Protection Act of 1988; National Landscape Conservation System.

Filed Under: Blog, Media Tagged With: , , ,

The Proof is in the Metadata: Recent Developments in CEI v. OSTP

March 20, 2017 by

Last summer, in Competitive Enterprise Institute v. Office of Science & Technology Policy, 827 F.3d 145 (D.C. Cir. 2016) (“CEI v. OSTP”), the D.C. Circuit reached an important decision concerning an agency’s obligation to search private email accounts maintained by government officials for records responsive to a Freedom of Information Act (“FOIA”) request. The court determined that if an official “possesses what would otherwise be agency records [e.g., work-related email], the records do not lose their agency character just because the official . . . takes them out the door [e.g., to a private account][.]” Id. at 149. Thus, if a personal email account may contain agency records, the agency cannot categorically refuse to conduct a search of that private account.

This past week, however, the district court on remand appeared to dampen the impact of the D.C. Circuit’s ruling. Judge Gladys Kessler determined that OSTP had met its burden under the FOIA and did not have to conduct a search of former Director John Holdren’s personal email account, the contents of which had been saved on a thumb drive last December under court order. OSTP successfully argued that any agency records on Holdren’s non-governmental account would be duplicative of records already on OSTP servers. The agency pointed to a policy that required Holdren to forward work-related email to his official account or to copy that account on work-related correspondence. OSTP also attested that Holdren obeyed this policy on “approximately 4,500 occasions” and was otherwise entitled to a presumption of compliance “absent evidence to the contrary.” CEI could not rebut the presumption.

The district court’s decision, particularly on the heels of Sunshine Week, is disappointing. First, although a requester admittedly cannot rely on speculation to prove wrongdoing, once a requester has proven that a non-governmental system contains agency records, the agency should not be allowed to forego a search of that system simply because it claims to possess “duplicative” records elsewhere. It is difficult enough to demonstrate that an agency official is violating the spirit, if not the law, of transparent government by using personal email for work-related purposes. The existence and usage of a parallel personal account should be enough, in most cases, to rebut any presumption of compliance with preservation rules. Of course, OSTP may have given sufficient evidence of Holdren’s compliance in this case—an affidavit indicated that he forwarded or copied his official email account approximately 4,500 times—but courts should remain skeptical that all agency records have been forwarded when atypical means of conducting government business are at issue. One need only consider the ongoing saga of former Secretary of State Hillary Clinton’s private email accounts, where additional State Department records were uncovered even after she had averred that all such records had been turned over, to understand why this should be the case.

Second, assuming OSTP had copies of all agency records from Holdren’s personal account, it is not clear that these copies would actually be “duplicative.” For example, CEI argued that it sought Holdren’s email in “electronic format” along with any “metadata.” On this theory, copied or forwarded email records on OSTP’s servers may not, in fact, be “duplicative” because they may not include all original metadata. Judge Kessler found this line of argument unpersuasive and held that the metadata in Holdren’s personal email would “not in itself make each email unique as compared to the forwarded reproduction[.]” This conclusion is wrong and sets a dangerous precedent.

Metadata includes various types of information about an electronic document that are not usually visible, but reflect important characteristics concerning the document’s origin, alteration, or usage. It includes “substantive metadata,” such as tracked changes in Microsoft Word; “system metadata,” which is created by a computer system, such as the information contained in a file’s properties; and “embedded metadata,” such as hyperlink details or Excel formulae. See Aguilar v. Immigration & Customs Enf’t, 255 F.R.D. 350, 354–55 (S.D.N.Y. 2008) (discussing different types of metadata).

Numerous state courts have ruled that metadata forms an integral part of an electronic record and is subject to disclosure under state-based Freedom of Information regimes. No federal court has settled the question for the FOIA, but it seems appropriate to adopt a similar default presumption that metadata must be disclosed so long as it forms an integral part of an electronic record and is readily reproducible. A requester should not even need to specifically request integral metadata.

There may not be a one-size-fits-all approach to distinguishing different types of metadata and which form an integral part of a record. The best approach would take into account an agency’s storage practices and the type of electronic records at issue—Does the agency store email in a hard-copy format or electronically? Are electronic copies kept in native or near-native format? What sort of metadata is preserved in those formats? It would also consider an agency’s ability to readily reproduce metadata—Are email records readily releasable as PDF or MSG files? Finally, it would look to whether a requester has specified that he wants an agency to produce (rather than merely search for) records in a form that includes metadata. See, e.g., Citizens for Responsibility & Ethics in Washington v. Department of Education, 905 F. Supp. 2d 161, 171–72 (D.D.C. 2012) (“CREW did not request that DoEd produce its records in electronic format . . . DoEd thus had no obligation to produce the documents in any particular format.”) (internal citation omitted).

This proposed approach under the FOIA is supported by the treatment of metadata in other legal contexts. Under implementing regulations for the Federal Records Act, for example, “electronic record” is defined as “both record content and associated metadata that the agency determines is required to meet agency business needs.” 36 C.F.R. § 1220.18. “Metadata,” in turn, “consists of preserved contextual information describing the history, tracking, and/or management of an electronic document.” Id. When it comes to email records, some metadata can form an integral part of the electronic record. See id. § 1236.22(a). In the civil discovery context, when metadata exists as part of a document’s native format, it should be produced to an opponent. If a party seeks discovery of additional metadata, a court will typically grant it so long as the metadata is reasonably accessible and potentially relevant to the dispute at hand.

From the outset of its case, CEI argued that it sought agency records that were stored on Holdren’s personal email account in an electronic format. Metadata integral to those records (viz., sender, recipient, and “BCC” recipient information, etc.) might not have carried over in toto to the copies on OSTP’s servers. Such information could be instructive, as any litigator or investigative journalist would attest, and might even explain why Holdren was using a personal email account for official government business in the first place. The district court considered OSTP’s “duplicative” email records “functionally equivalent” to the originals on Holdren’s private account. That much is true when considering the visible content of the email. But that’s only half of the story. Metadata lurks beneath, and without the original integral metadata, any copies of Holdren’s email on OSTP’s servers are incomplete and not duplicative.

Ryan Mulvey is counsel at Cause of Action Institute.

Filed Under: Blog, Media Tagged With: , , , , ,

CoA Institute Seeks Email Records of Former Secretary of State Colin Powell

October 13, 2016 by

Washington, DC – Cause of Action Institute (CoA Institute) has sent Federal Records Act (FRA) notices to Secretary of State John Kerry and Archivist of the United States David Ferriero urging them to fulfill their statutory obligations to recover former Secretary of State Colin Powell’s work-related email records from a private email service provider.

Last month, at a House Oversight & Government Reform Committee hearing about Freedom of Information Act (FOIA) compliance at the State Department, Under Secretary of State Patrick Kennedy testified that his agency had undertaken only minimal efforts to retrieve work-related emails created or received by Secretary Powell on his private AOL email account.  Upon learning that Secretary Powell no longer had access to this account, the State Department merely requested that he contact his email provider to see if any records were still recoverable.  Secretary Powell never responded to that request, and the State Department took no further action, despite a request from NARA to contact AOL directly.  Under Secretary Kennedy justified State Department inaction by claiming that the agency lacks legal authority to take further action to recover agency records from Secretary Powell’s email service provider.

Cause of Action Institute Vice President John Vecchione: “The position that the State Department has no legal authority to take direct action to recover Secretary Powell’s work-related emails is absurd and should not be left unchallenged. American taxpayers have a substantial interest in ensuring that federal records are properly saved, archived, and available to the public through FOIA.  The State Department and NARA must live up to statutory obligations designed to keep the government accountable and transparent, and to preserve a written record of the federal government for future generations.”

The State Department’s position is not supported by federal law.  Not only do the email records in question belong to the State Department—as recently confirmed by the D.C. Circuit in Competitive Enterprise Institute v. White House Office of Science & Technology Policy—but the FRA gives the Secretary of State (as well as the Archivist of the United States) the authority, acting through the U.S. Attorney General, to take necessary legal action to recover alienated records.  The right to initiate action through the Attorney General is a mandatory obligation—in other words, the Secretary and the Archivist are required to initiate actions to recover Secretary Powell’s work-related email.

CoA Institute’s letters include FOIA requests for copies of all of Secretary Powell’s email, as well records concerning what efforts, if any, the State Department and NARA have (or have not) taken to retrieve these records that ultimately belong to the American public—records that would reveal the diplomatic activities of the Bush administration during politically contentious years.

Click here to view the letter to Secretary John Kerry

Click here to view the letter to ARCHIVIST David Ferriero

Filed Under: Press Release, Media

Weekly Rundown 12-4-2015

December 4, 2015 by

Cause of Action in the News:

SC Magazine – FTC to appeal LabMD dismissal ruling

The Federal Trade Commission has decided to appeal Chief Administrative Law Judge Michael Chappel’s ruling to dismiss the case against LabMD.  Cause of Action Executive Director Dan Epstein responded to the appeal, saying “Every unbiased decision-maker who has reviewed this case, including the FTC’s own Chief Administrative Law Judge, the U.S. House of Representatives Oversight & Government Reform Committee, and a U.S. District Court Judge, has found FTC’s claims against LabMD to be baseless, and its conduct inexplicable and even an ’embarrassment.’”

Politico – For their second act, Keystone killers tackle Exxon

Together with the Competitive Enterprise Institute, Cause of Action has filed a complaint with the IRS against the Institute of Global Environment and Society.  The founder of IGES was one of the first to demand that those opposed to his point of view be charged with federal racketeering. Our complaint charges the founder, Jadagish Shukla, of using government given funds for personal gain. The institute is currently being investigated by the House Science, Space, and Technology Committee Chairman Rep. Lamar Smith.

Daily Caller – Congress To Protect Worst Bureaucratic Outrage You’ve Never Heard About

The Email Privacy Act has gained steam in the House with bipartisan backing.  The act would protect internet providers from administrative subpoenas, which don’t require a judge’s approval before they are acted upon.  Cause of Action Executive Director Dan Epstein said that “Administrative subpoenas – which are compulsory requests for information – issued by an unelected bureaucrat – not a judge or jury – and which forces individuals and businesses to provide information that will be used against them in a civil enforcement or criminal referral action – are one of the greatest threats to American liberty today, largely because there has been no judicial or legislative attempt to limit their scope or power.”

In Other News:

Washington Examiner – State Dept. to overhaul email system to prevent Clinton repeat

In an attempt to prevent another Hillary Clinton email scandal the State Department has sent out a request for information on a new email management system to be put into place by the end of next year.  They are looking for a new system that will keep work and personal emails separate automatically.  It will also automatically save all official emails.  A federal watchdog determined that of the over 1 billion emails sent fewer than 65,000 were printed and saved.

Forbes – EPA Wants To Water Down Gasoline Supply With More Ethanol

The Environmental Protection Agency has decided to increase the amount of ethanol added to gasoline.  This decision comes with bipartisan opposition consisting of “environmentalists, oil companies, legislators (Republican and Democrat) and various industry groups who collectively want the RFS standard eliminated.”  The National Council of Chain Restaurants says that this new mandate will raise the price of food $3.2 billion a year.

Money Morning – What Happened to Government Transparency? All We See Is Illegal Stonewalling

Over the past five years, at least 20 inspectors general investigations have been obstructed in an affront to transparency. To make matters worse, the Department of Justice Office of Legal Counsel in July determined that the intended reading of “all records” does not in fact include “all records.”  Instead, a record deemed to contain “confidential” information can now be retained from the IG’s scope of investigation by the agency.  A New York University professor says that inspectors general have become “defanged” and that “[t]his is by far the most aggressive assault on the inspector general concept since the beginning.”

Filed Under: News, Media

The FTC Is Appealing Its Loss In The LabMD Case. Here’s What You Need To Know.

November 25, 2015 by

Yesterday, the FTC appealed the decision by its Chief Administrative Law Judge to dismiss the agency’s case against LabMD. 

The ALJ ruled “historically, liability for unfair conduct has been imposed only upon proof of actual consumer harm” and that the “record in this case contains no evidence that any consumer…has suffered any harm as a result of Respondent’s alleged failure to employ ‘reasonable’ data security for its computer networks.” Yet the agency continues on, notwithstanding the fact that it has destroyed LabMD, an innovative and effective cancer detection laboratory, apparently only to punish the company’s CEO, Michael Daugherty, for speaking out, and to intimidate anyone else who might dare stand up against the agency.

Every unbiased decision-maker who has reviewed this case, including the FTC’s own Chief Administrative Law Judge, the U.S. House of Representatives Oversight & Government Reform Committee, and a U.S. District Court Judge, has found FTC’s claims against LabMD to be baseless, and its conduct inexplicable and an “embarrassment” to the government.  

Complaint counsel’s appeal of the ALJ’s decision will not be to an independent court, but to the Commission – the very body that decided to sue LabMD in the first place. It is worth noting that one Commissioner has “voluntarily” recused herself because she prejudged the outcome of the case, and the facts suggest other Commissioners also may have conflicts of interest that prevent a fair and level hearing of the matter. This is not a fair fight. 

As former FTC Commissioner Joshua Wright said earlier this year, “in 100 percent of cases where the administrative law judge ruled in favor of the FTC staff, the Commission affirmed liability; and in 100 percent of the cases in which the administrative law judge ruled found no liability, the Commission reversed. This is a strong sign of an unhealthy and biased institutional process…Even bank robbery prosecutions have less predictable outcomes than administrative adjudication at the FTC.”

Nevertheless, Cause of Action looks forward to contesting the FTC’s appeal.  

Ultimately, there will be no vindication for FTC, no matter what the Commission might do, because the agency cannot run and hide from the facts of this case. Thanks to the ALJ, the truth is out. The FTC’s reputation has been severely stained by its cronyism with Tiversa, its abusive overreaching and out-of-control power grab, and its inexplicable decision to waste millions of taxpayer dollars to crush a good and innovative business providing critical, even life-saving, services to doctors and patients.  Based on the facts, Congress and the American people have ample reason to doubt the FTC’s judgment, competence and technical expertise to regulate data security, and there is nothing the Commission can do to make those facts disappear.

Filed Under: Blog, Media Tagged With: , ,

Weekly Rundown 11-20-2015

November 20, 2015 by

Cause of Action in the News:

Wall Street Journal – Hounded Out of Business by Regulators (The company LabMD finally won its six-year battle with the FTC, but vindication came too late.)

Cause of Action Executive Director Dan Epstein writes about LabMD’s six-year fight against the Federal Trade Commission. As he notes, “[s]ometimes winning is still losing,” and though we ultimately won, LabMD was forced to close in 2014 due to the “reputational damage and expense of a six-year federal investigation.”  Mr. Epstein points out, “winning against the federal government should never require losing so much.”

Law360 – FTC Loses LabMD Data Security Suit

Cause of Action has won a major victory over the Federal Trade Commission, handing out their first loss in a cybersecurity case. Cause of Action Executive Director Dan Epstein praised the ruling, saying “[t]his ruling confirms what our client, LabMD, has said all along, which is that the Federal Trade Commission’s case is meritless.”  Further, it “puts return address on bureaucratic abuses of power, and proves that sometimes the good guys win.”

National Review – Opening Brief Filed in Moonlight Fire Appeal

Cause of Action has filed an amicus brief in United States v. Sierra Pacific Industries, Inc., better known as the “Moonlight Fire” case.  The court had decided that the government only has a responsibility to find the truth and reveal the facts in criminal cases, not in civil cases, even when over $1 billion in fines and threats of financial ruin are on the line.  Cause of Action’s brief discusses how the government should always speak the truth, present all evidence (even evidence in favor of the defendant), and avoid financial bias.

Daily Caller – EXCLUSIVE: Top Hillary Aide Failed To Comply With State Dept ‘Separation Agreement’

Former Secretary of State Hillary Clinton’s top aide Huma Abedin may have set herself up for a lawsuit.  A “separation agreement” form was signed by Ms. Abedin, meaning that she should have turned over all work related documents after leaving the State Department. Instead, Ms. Abedin failed to turn over any documents and retained them on Mrs. Clinton’s private email server for over two years.

In Other News:

Fox News – Dem senator says EPA power plant regs based on failed Canadian project

Senator Joe Manchin of West Virginia has spoken out against the Environmental Protection Agency’s Clean Power Plan.  He says forcing manufacturing plants that use coal to use an unproven technology to meet the high standards of the Clean Power Plan makes “no sense.”  Sen. Manchin said  “We’ve based our plans on what we should be doing in America to provide the energy people depend upon on a failed operation in Canada, and it’ll be another year or two years before they prove whether it can be done or not.”

NY Post – Hillary is ‘often confused,’ says trusted aide Huma in fresh emails

The latest batch of released Hillary Clinton emails reveal that top aide Huma Abedin made sure to let State Department staff know that Mrs. Clinton was “often confused” about her schedule.  In an email to another staffer, Mrs. Abedin emphasized that the staffer should go over the schedule with the former Secretary of State, saying “Very imp to do that. She’s often confused.”

Filed Under: Media, News