Published on January 15th, 2020
Written by Daniel Grinberg
Given the egregious human rights abuses of the US Immigration and Customs Enforcement (ICE) that have come to light, it is vital for the American public and global publics to be more fully aware of the strategies and scope of the agency’s actions. One significant mechanism for extracting such sensitive information is the Freedom of Information Act (FOIA), the federal right-to-know law that went into effect in the United States in 1967. This act and its subsequent amendments outline the conditions under which federal agencies are required to disclose records to requesters. Emphasizing the potent stakes of this legislation, journalist Patty Jane has observed, “If nobody practices our right to freely access government records via FOIA, shade will fall upon government operations. More and more government decisions will be made in secret. . . . If nobody exercises her right to view public records, public officials will soon forget how accountable to us they truly are.”1 Indeed, since its inception, individuals, journalists, advocacy organizations, and other invested parties have employed the law to better comprehend opaque practices and uncover state abuses.2
However, by filing my own requests, I only confirmed the limits of FOIA as a resource and a recourse. In an attempt to grasp some sense of the scale of the agency’s surveillance apparatuses and the technologies and infrastructures that support it, working with the GMTaC Lab, I filed five targeted requests beginning in August 2019. The information that these requests solicited from ICE were: a list and/or map of all publicly owned and privately owned telecom towers in the US used by ICE, including their GPS coordinates/locations; memos of understanding or contracts between ICE and the tower owners; a listing of all telecom, radio, internet, mobile phone, and lawful interception equipment owned or used by ICE agents and subcontracts with communication equipment providers, and any contracts between ICE and private prison groups GEO Group and CoreCivic. Additionally, I asked the National Telecommunications and Information Administration (NTIA) to provide records related to radio spectrum allocations dedicated to ICE from 2016-present. As of this writing, in January 2020, the agencies have not disclosed any documents. Despite the putative deadline of twenty business days to issue a response, one request still remains in the bureaucratic purgatory of “pending.” The other requests were denied, as were as the follow-up requests and appeals I subsequently filed.
As a researcher of FOIA and national security, I was not surprised by the lack of disclosure.3 Indeed, it was the result I had expected. While some more functionary agencies do routinely turn over records, the FOIA offices of national security branches like the Department of Defense (DoD) and Central Intelligence Agency (CIA) notoriously maintain much lower rates of disclosure. They stymie record releases with a variety of techniques, including slowing down response times and, as FOIA activist and scholar Ryan Shapiro has asserted about the Federal Bureau of Investigation (FBI), maintaining deliberately faulty search databases.4 Most frequently though, FOIA officers overzealously apply exemption 7(e), which withholds records that would “disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.”5 In my case, four of the requests received such 7(e) exemptions. The other, which sought a listing of all telecom, radio, internet, mobile phone, and lawful interception equipment, was denied because the officer claimed to find no responsive records.
Despite the predictability of this obfuscation, the ramifications of such denials are troubling. Most evidently, the fact that national security agencies such as ICE have extensive leeway to act covertly both domestically and globally set the groundwork for unchecked abuses to fester. As one conspicuous example, the rigorous control of sensitive information throughout the Global War on Terror further enabled the perpetuation of black sites and indefinite detention, detainee torture, drone strikes of civilian sites, and many other systematic broaches of human rights. To put it another way, by refusing to publicly reveal its technological infrastructures of surveillance, ICE is instead strengthening its present infrastructures of violence and violation. While the release of some records could certainly harm national security, exemption 7(e) and other techniques of denial are too often used to cover up state abuses and prevent meaningful reforms. This seriously defangs the efficacy of FOIA as a meaningful check on power and delimits interventions that scholars, journalists, activists, and other parties can make.
Moreover, the lagging temporalities of FOIA affirm the difficulty of disclosing time-sensitive records. For each of my requests, ICE officers acknowledged the required response deadline but extended it. In multiple response letters, the agency stated, “Due to the increasing number of FOIA requests received by this office, we may encounter some delay. . . As your request seeks numerous documents that will necessitate a thorough and wide-ranging search, ICE will invoke a 10-day extension for your request, as allowed by Title 5 U.S.C. § 552(a)(6)(B). . . .We will make every effort to comply with your request in a timely manner.”6 Each of the responses arrived weeks or months after the 10-day extension and several requested clarifications or more specific requests. I also opted to appeal the denials, which restarted the deadline. Frustratingly but predictably, the limited revelations of ICE abuses that did gain widespread coverage and the growing public demand for information about the agency’s questionable practices only created logjams that drew out or prevented the further disclosure of records.
Even while noting these troubling realities, it remains important to fight for FOIA as one potential means of public knowledge production.7 When officers deny requests on seemingly dubious or overly broad terms, filing an appeal is an easy but worthwhile challenge to the culture of opacity. When these appeals fail, as they did in my case, FOIA experts then advise a lawsuit as the next course of action.8 However, these lawsuits can also last years and further elongate the already unpredictable and protracted timelines of disclosure. In addition, as agency practices rapidly change and implement advanced technologies, lengthy delays become a substantial hindrance to understanding current strategies and exposing contemporaneous abuses.
In light of my own request denials, I turned to extant archives that other requesters had extracted through FOIA and circulated digitally.9 By posting these disclosures publicly, these requesters can expand the reach of their accessibility and utility. One such resource is MuckRock, which posts both disclosed records (if any) and the series of correspondences between requesters and FOIA offices. This transparency of the FOIA process can help offer future requesters opportunities to ascertain which records are already available and which request strategies may prove more effective. Another useful resource in this case is the National Immigrant Justice Center’s (NIJC) Immigration Detention Transparency and Human Rights Project. As the NIJC’s website describes, a FOIA lawsuit that lasted three years ultimately culminated “in 2015 in the most comprehensive public release to date of Department of Homeland Security (DHS) immigration detention center contracts and inspections. The thousands of pages of documents provide an unprecedented look into a failed system that lacks accountability, shields DHS from public scrutiny, and allows local governments and private prison companies to brazenly maximize profits at the expense of basic human rights.”10 To further augment the impact of these documents, the NIJC has released reports on topics such as deaths in detention and fiscal mismanagement based on the records it received.11
Such archives simultaneously attest to the enduring power of FOIA, but also affirm the unfortunate necessity of litigation as a secondary recourse and the prolonged temporalities of information release. They also highlight some of the process’s central paradoxes and contradictions. FOIA is a system that is easy to navigate and seems to require little technical aptitude, but is also complex and often necessitates bureaucratic and legal skills. It is both a tool for enhancing public knowledge and too often, in the case of agencies like ICE, an instrument for slowing, frustrating, and denying the revelation of secret abuses.
1 Patty Jane, “Why FOIA Matters More Than Ever,” Medium, July 7, 2016, https://medium.com/@pattyjane/why-foia-matters-more-than-ever-7441e358e0d5.
2 For a fuller accounting of the potentialities and complexities of FOIA in a U.S. context, see Troubling Transparency: The History and Future of Freedom of Information, edited by David E. Pozen and Michael Schudson, New York: Columbia University Press, 2018.
3 Daniel Grinberg, Partial Disclosures: Documentary Media and the Freedom of Information Act, 2018, University of California, Santa Barbara, PhD dissertation.
4 Davey Alba, “The FBI’s Using Lousy Software to Derail FOIA Requests, Suit Claims,” WIRED, July 25, 2016, https://www.wired.com/2016/07/fbis-using-lousy-software-derail-foia-requests-suit-claims/.
5 For further official discussion of the nuances of the much-debated 7(e) exemption, see the “Freedom of Information Act Guide, May 2004,” Department of Justice, 2004, https://www.justice.gov/oip/foia-guide-2004-edition-exemption-7e.
6 Private correspondences with author, 2018.
7 This is not to discount the crucial activist work being done beyond the framework of state bureaucracy and more generally, outside of the confines of liberal democracy ideals. Relying on the ideal of governmental cooperation to countering governmental abuses is a privilege not often extended to the precarious groups most at risk of targeting.
8 The challenges and affordances of taking legal recourse are potently explored in Assia Boundaoui’s 2018 documentary, The Feeling of Being Watched. In that film, Boundaoui and her pro bono lawyer, Christina Abraham, use judicial intervention to compel the FBI to finally turn over documents about the agency’s surveillance of a Muslim community in Bridgeview, Illinois.
9 In addition to the digital archives that advocacy organizations and individual FOIA archivists create, the E-FOIA Act Amendments of 1996 required federal agencies and departments to create official electronic reading rooms. Each agency and department is tasked with posting records that are considered to be public interest, but does not have specific guidelines outlining which records must be included in the official digital archives.
10 Immigration Detention Transparency and Human Rights Project, National Immigrant Justice Center, last updated 2018, https://immigrantjustice.org/issues/transparencyandhumanrights.
11 These reports and others can be found at the Immigration Detention Transparency and Human Rights Project, https://immigrantjustice.org/issues/transparencyandhumanrights.
Daniel Grinberg is an independent scholar whose research focuses on public records, surveillance, and contemporary warfare. He received his PhD in Film and Media Studies from the University of California, Santa Barbara in 2018. His scholarship has appeared in journals such as Media, Culture & Society; Journal of Cinema and Media Studies; Media, War & Conflict; and Jump Cut. In December 2019, he co-edited a Queer Surveillance issue of Surveillance & Society with Gary Kafer.