From: gnu (John Gilmore)
Date: Thu, 29 Jul 93 01:17:02 PDT
To: tien@toad.com
Subject: NSA FOIA hearing in SF -- Monday 2 August, 10AM
Message-ID: <9307290816.AA02311@toad.com>
MIME-Version: 1.0
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My Freedom of Information case against the NSA continues to grind on.
This is the case where I found two manuscripts by William Friedman in
public libraries and got them formally declassified (they were never
properly classified).  The one that got national press coverage.

At this point, the case has been resolved except for the issue of
whether NSA has to follow the Freedom of Information Act with regard
to time limits.  The Act states that requests will be answered within
ten days, with exceptionally hard requests getting another ten days.
NSA doesn't even send you a postcard back within ten days; they often
take several months.  I have a FOIA request that's been in there more
than a year now and hasn't been answered.

The last courtroom action involved NSA's lawyer and my lawyer
presenting oral arguments about whether the lawsuit could be amended
to invoke the First Amendment, and whether the case should be thrown
out of court (`summary judgement').  After the hearing, Judge
Henderson decided that we couldn't bring in the First Amendment, since
NSA had made the question `moot' by declassifying the documents I
wanted to publish.  But he also decided that our case had merit with
respect to time limits, so it would not be thrown out of court.  He
also decided that our requests for documents from NSA should be
honored.

Since then, NSA has filed a second motion asking that the case be
thrown out, and has also gotten a temporary stop in the clock for
giving us documents.  Their reasoning on throwing the case out is very
interesting.  They claim that since I have all the documents I'm going
to get from my original FOIA request, the question of whether they
responded in a timely fashion is `moot'.  My lawyer, Lee Tien
(tien@toad.com or tien@well.sf.ca.us), wrote an excellent response in
which he shows six ways from Sunday that they can't throw this out.
Since it takes much longer to push such a case through the courts than
it takes NSA to eventually respond, they would NEVER have to confront
the issue, if this was how the courts worked.  (Often NSA uses this as
yet another delaying tactic: they simply don't respond, or deny having
any records, and force you to take them to court to get ANYTHING --
which then takes forever.  This is part of what we want to help change
by making them follow the time limits in the law -- we'd like to see
them penalized for withholding documents that they later reveal when
forced to.)

The upcoming hearing should include oral arguments on these points.
The judge probably won't decide anything right there and then.

	Judge Henderson's courtroom
	19th floor
	Federal Building
	450 Golden Gate Avenue (a few blocks off Van Ness Avenue)
	San Francisco, CA
	Monday, 2 August, 1993, 10AM

I know 10AM on a Monday is early for many cypherpunks to be seen at
the Federal Building, but a show of solidarity would be heartening.
It helps to convince the judge -- and the government lawyers -- that
the public really cares about the outcome of the case.  Also, you get
to see and talk with a real live lawyer for the NSA!  (I'm not sure
who will show up -- last time it was Jack Martin, who actually works
for the Dept. of Justice, defending the NSA.)

	John Gilmore

PS: Some early NSA documents in the case are available on ftp.eff.org in
pub/crypto.  I'll add a draft version of Lee's recent filing under
pub/crypto/Plaintiff/930718-statement-opposing-dismissal.  It's
all in Legalbol, so it's sort of like reading a paper on cryptography
-- you have to read between the lines until you get used to the terms
and ideas.  I recommend reading Defendant/declaration-of-michael-smith
for some info on the internal workings of the NSA FOIA process.  We
haven't scanned in the NSA's recent documents yet, nor put up most of
our own (they're on Lee's Mac, and Macs are congenitally unable to
produce ASCII text, it seems).