APRIL 14, 2017
Deep State Watch – JW Sues EPA for Records from Encrypted App
We Warn 11 States to Clean Voter Registration Lists or Face a Lawsuit
JW Sues the ATF for Records on AR-15 Ammo ‘Armor-Piercing’ Ban
Gorsuch Confirmation a Victory for Constitutional Government
The administrative deep state – the legions of unelected, entrenched bureaucrats in Washington – thinks it doesn’t have to answer to an elected president, the rule of law, or the American people. We are now seeking to uncover the truth about the particularly notorious fifth column in the Environmental Protection Agency (EPA).
We just filed a Freedom of Information Act (FOIA) lawsuit for communications sent or received by EPA officials who may have used the cell phone encryption application “Signal” to thwart government oversight and transparency. We filed the suit in the United States District Court for the District of Columbia (Judicial Watch v. Environmental Protection Agency (No. 1:17-cv-00533)).
- The lawsuit was filed after the EPA failed to respond to our February request for:Any and all work-related communications sent to or from the following EPA officials using the app known as “Signal,” for the period February 3, 2016, to the present:
- Administrator (or Acting);
- Deputy Administrator (or Acting);
- Assistant Administrator (or Acting), Office of Air and Radiation;
- Assistant Administrator (or Acting), Office of Chemical Safety and Pollution Prevention;
- Assistant Administrator (or Acting), Office of Enforcement and Compliance Assurance;
- Assistant Administrator (or Acting), Office of Land and Emergency Management;
- Assistant Administrator (or Acting), Office of International and Tribal Affairs; and
- Chief Financial Officer (or Acting).
2. Any and all records requesting or approving the use of the messaging app known as “Signal” by any EPA personnel for official business. The time frame for the requested records is July 1, 2014, to the present.
You can see that there’s no getting around that we want – government records from the secrecy app.
The use of Signal by EPA officials to prevent government oversight was reported in a February 2, 2017, Politico article entitled “Federal workers turn to encryption to thwart Trump.”
According to the article:
Whether inside the Environmental Protection Agency, within the Foreign Service, on the edges of the Labor Department or beyond, employees are using new technology … to organize letters, talk strategy, or contact media outlets and other groups to express their dissent.
Fearing for their jobs, the employees began communicating incognito using the app Signal shortly after Trump’s inauguration.
[T]he goal is to “create a network across the agency” of people who will raise red flags if Trump’s appointees do anything unlawful.
This lawsuit could expose how the anti-Trump “deep state” embedded in EPA is working to undermine the rule of law. Let’s hope the Trump administration enforces FOIA and turns over these records. Given EPA’s checkered history on records retention and transparency, it is disturbing to see reports that career civil servants and appointed officials may now be attempting to use high-tech blocking devices to circumvent the Federal Records Act and the Freedom of Information Act altogether.
Signal has long been touted within the high-tech community as an encryption device particularly effective for blocking government access to smartphone messaging. In a 2015 article titled “Signal Keeps Your I-Phone Calls and Texts Safe from Government Oversight,” TechCrunch.com advised: “Don’t want someone else handing your text messages, pictures, videos or phone conversations over to the government? There’s an app for that. An iOS app called Signal is a project out of Open Whisper Systems, a not-for-profit collective of hackers dedicated to making it harder for prying government eyes to get ahold of your information.”
The use of private encryption software such as Signal by federal officials and employees not only may make it difficult for their work to be overseen; it also may make it impossible for federal agencies to fulfill their record-keeping and transparency obligations under the Federal Records and Freedom of Information Acts. The Federal Records Act requires federal employees to preserve all records of work-related communications on government servers, even if such communications occur over non-government emails, phones or text messages. The records must be forwarded on to the agency for preservation and archiving, and the records are subject to release under the Freedom of Information Act, unless specifically exempted.
The Environmental Protection Agency has a history of employees’ failing to preserve records and using private emails to conduct agency business or conducting official business through non-official communication channels:
- According to a September 20, 2016, report put out by the Energy and Environment Legal Institute, which was based upon emails obtained under FOIA: “Moving select correspondence about EPA-related business to non-official email accounts was an understood, deliberate and widespread practice in the Obama EPA.”
- According to a December 21, 2016, Inspector General Report, the EPA’s “mobile device-management processes do not prevent employees from changing the device’s configuration settings for retaining text messages on all government-issued mobile devices.” Apparently, at least one EPA employee set his phone to delete messages automatically after 30 days.
- Although excluded from the body of the IG report, the Inspector General reportedly told the chairman of the House Committee on Science, Space and Technology, Lamar Smith, who requested the IG investigation, that EPA officials archived only 86 text messages out of 3.1 million messages sent and received by agency employees in 2015.
- Chairman Smith originally requested the IG report in November 2014 after it was revealed that high-ranking EPA officials, including then-EPA Administrator Gina McCarthy, may have deleted texts to hide official business.
The tech publication Wired covered the new challenges to transparency well:
Judicial Watch, for its part, acknowledges that it may be tough to dig up deleted Signal communications. But another element of its FOIA request asks for any EPA information about whether it has approved Signal for use by agency staffers. “They can’t use these apps to thwart the Federal Records Act just because they don’t like Donald Trump,” says Judicial Watch president Tom Fitton. “This serves also as an educational moment for any government employees, that using the app to conduct government business to ensure the deletion of records is against the law, and against record-keeping policies in almost every agency.”
Fitton hopes the lawsuit will at least compel the EPA to prevent employees from installing Signal or similar apps on government-issued phones. “The agency is obligated to ensure their employees are following the rules so that records subject to FOIA are preserved,” he says. “If they’re not doing that, they could be answerable to the courts.”
The issue is now before the courts, so stay tuned.
We’re already hearing rumblings in the press about the mid-term elections in less than two years. These important elections should be free and fair. The first step is cleaning up the notoriously inflated voter registration rolls.
In that regard, JW has stepped up to the plate, sending notice-of-violation letters threatening to sue counties in 11 states where the number of registered voters exceeds the number of voting-age citizens, as calculated by the U.S. Census Bureau’s 2011-2015 American Community Survey.
We note in the letters that this is “strong circumstantial evidence that these … counties are not conducting reasonable voter registration record maintenance as mandated under the [National Voter Registration Act] NVRA.” Both the federal NVRA and the Help America Vote Act require states to take reasonable steps to maintain accurate voting rolls.
The 11 states are: Alabama, Florida, Georgia, Illinois, Iowa, Kentucky, Maryland, New Jersey, New York, North Carolina and Tennessee. (More warning letters may be sent out to additional states.) The states have 90 days after receiving the letters to address the problem and provide us with documentation showing that they have conducted a “statewide effort to conduct a program that reasonably ensures the lists of eligible voters are accurate.” We informed the states that should they fail to take action to correct violations of Section 8 of the NVRA within 90 days, we would file suit.
Section 8 of the NVRA requires states to make a reasonable effort to remove the names of ineligible voters from official lists due to “the death of the registrant” or “a change in the residence of the registrant,” and requires states to ensure noncitizens are not registered to vote.
Based on our review of Election Assistance Commission (EAC) data, the more recent U.S. Census Bureau American Community Survey and the states’ voter registration records, Judicial Watch found the following counties have more total registered voters than citizens over 18 eligible to vote:
- Alabama: Choctaw, Conecuh, Greene, Hale, Lowndes, Macon, Marengo, Perry, Washington, Wilcox.
- Florida: Clay, Flagler, Okaloosa, Osceola, Santa Rosa, St. Johns.
- Georgia: Bryan, Columbia, DeKalb, Fayette, Forsyth, Fulton, Lee, Marion, McIntosh, Oconee.
- Illinois: Alexander, Bureau, Cass, Clark, Crawford, DuPage, Franklin, Grundy, Hardin, Henderson, Jefferson, Jersey, Massac, McHenry, Mercer, Monroe, Pulaski, Rock Island, Sangamon, Scott, Union, Wabash, Washington, White.
- Iowa: Scott, Johnson.
- Kentucky: Anderson, Bath, Boone, Breathitt, Caldwell, Carlisle, Cumberland, Fulton, Gallatin, Greenup, Hancock, Henry, Jefferson, Jessamine, Kenton, Livingston, Magoffin, McCracken, Menifee, Mercer, Monroe, Oldham, Powell, Russell, Scott, Spencer, Trigg, Trimble, Wolfe, Woodford.
- Maryland: Montgomery.
- New Jersey: Essex, Somerset.
- New York: Nassau.
- North Carolina: Buncombe, Camden, Chatham, Cherokee, Clay, Dare, Durham, Guilford, Madison, Mecklenburg, New Hanover, Orange, Union, Watauga, Yancey.
- Tennessee: Williamson.
In our notice-of-violation letters, we warn that the failure to maintain accurate, up-to-date voter registration lists “required by federal law and by the expectations of [state] citizens” will “undermine public confidence in the electoral process.”
We asked the states to “conduct or implement a systematic, uniform, nondiscriminatory program to remove from the list of eligible voters the names of persons who have become ineligible to vote by reason of a change of residence, death or a disqualifying criminal conviction.” The states are also asked to remove from voter registration lists “noncitizens who have registered to vote unlawfully.”
As part of our commitment to enforcement of election integrity laws, we struck a legal victory for clean voter rolls in Indiana, forcing the state to clean up its voter registration lists and overhaul its list-maintenance procedures. We also recently filed an amicus curiae brief in the U.S. Supreme Court in support of our existing agreement with Ohio to ensure that its voter rolls are up-to-date. This case is still pending before the high court.
Robert Popper, director of Judicial Watch’s Election Integrity Project, is lead attorney on this case. Popper was formerly deputy chief of the Voting Section of the Civil Rights Division of the Justice Department.
He well knows that dirty election rolls mean dirty elections.
To be clear: these 11 states face possible Judicial Watch lawsuits to compel them to follow the law and take reasonable steps to clean up their voting rolls of dead, moved, and non-citizen voters.
The Obama administration schemed to institute gun control through the back door. One of its favorite tactics was to go after not guns but ammunition.
This week we announced that we have filed a Freedom of Information Act (FOIA) lawsuit against the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), a component of the Department of Justice, seeking records of communications related to a proposed reclassification that would effectively ban certain types of AR-15 ammunition as armor-piercing. We filed the suit in the U.S. District Court for the District of Columbia (Judicial Watch v. U.S. Department of Justice (No. 1:17-cv-00600)).
The ATF is reportedly reconsidering its February 2015 proposal to revise the 2014 Regulation Guide regarding the reclassification of certain ammunition. But in March 2015, more than 200 members of Congress wrote to former ATF Director Todd Jones expressing their “serious concern” that the proposal might violate the Second Amendment by restricting ammunition that had been primarily used for “sporting purposes.” The letter asserts the ATF’s move “does not comport with the letter or spirit of the law and will interfere with Second Amendment rights by disrupting the market for ammunition that law abiding Americans use for sporting and other legitimate purposes.”
JW filed the lawsuit after the agency failed to respond to our March 9, 2015, FOIA request seeking information on the ammo ban effort:
- All records of communications, including emails, to or from employees or officials of the ATF related to the decision to revise the ATF 2014 Regulation Guide to no longer exempt 5.56 mm. SS109 and M855 (i.e., “green tip” AR-15) ammunition from the definition of “armor-piercing” ammunition.
The precise statutory definition of “armor-piercing ammunition” can be found in 18 U.S.C §921(a)(17).
This is yet another example of how Obama wantonly used the “pen and the phone” to undermine the constitutional rights of all Americans, as opposed to upholding the rule of law. The Obama ATF simply ignored our request on their ammo ban. Let’s hope the Trump administration finally brings transparency to this out-of-control agency.
Some good news – Neil Gorsuch is now officially an associate justice of the Supreme Court of the United States. This is a great victory for constitutional government. We expect that Justice Gorsuch will continue Justice Scalia’s legacy and become a leading voice against politicized decision-making on the Supreme Court.
It is shameful that the Left blew up the confirmation process in the U.S. Senate in order to protect their efforts to legislate through the courts. The good news is that it may be easier to confirm Supreme Court justices who will apply the U.S. Constitution as written and intended by our Founding Fathers.
Credit goes out to you Judicial Watch supporters who made your views known to the U.S. Senate. Also, we applaud President Trump in keeping his promises to nominate constitutionalist nominees such as Justice Gorsuch. And, kudos also to Majority Leader Mitch McConnell (R-KY), who remained steadfast in the face of unrelenting left-wing attacks to prevent a constitutional conservative from being appointed to the Supreme Court.
I’m hearing that we should expect another retirement this summer, so we may be called to battle again soon!
In the meantime, please accept my sincerest wishes for a joyful Easter (or Happy Passover)!