Transcripts For CSPAN3 Government Transparency 20141103

Defends outcoursing, he doubled down. Im proud of it. David perdue, hes not for you. In her campaign plan, Michelle Nunn admits shes too liberal and her foundation gave money linked to terrorists so nunn needed to fool george ans to win. She attacks perdue with add checkers called mostly false. David perdue spent his career creating thousands of jobs. David perdue will glincrease th economy and bring jobs to washington. Recent polls list this race as a toss up. You can race georgia debates at time online at cspan. Org. Earlier this month, legal scholars and open government advocates held a discussion on Government Transparency and reviewed Current Court cases on the nsas warrantless surveillance program. Held by the bar association, this is an hour and 35 minutes. Good afternoon and welcome. We appreciate you taking the time to be with us today. Im jim oreilly from Cincinnati Ohio and with me are distinguished presenters who will be each giving their own perspective on privacy and information law. Ive been in this field since 1972 when the field was so obscure and so few people cared about it that when i proposed a book in 1976, the four largers publishers said, nobody is ever going to care about privacy and nobody is ever going to care about freedom of information. The book is still going strong in its fourth edition. Its still a very significant item. But whats occurred in the last year and athe background for todays topical discussion about developments, whats happened could be boiled down to two words. Ed snowden. This morning at 4 15 as i was driving to the airport in cincinnati to fly here for this presentation, i was listening to the bbc, British Broadcasting Organization and bbc had on a discussion about privacy. To quote specifically, they said, whats changed now is the development of big data for spooky uses. Big data for spooky uses in the ed snowden era. Rather than trying to create our own topic. Thats about it. Well be talking about big data. Whos listening to it. Whos generating it . Whos mon etizing that big data . What the significance is for individual privacy. Back in 1972 when nobody cared and the freedom of information act is one obscure piece of legislation that was never going to go anywhere. The world has changed to ea dramatic extent to now the International Awareness of u. S. National Security Agency listening and the consequences of that privacy issue is being felt around the world. So im very pleased to join with us today here at the american bar associations Administrative Law section, annual conference of Administrative Law. Im pleased to introduce our first presenter who is the chair of government information privacy. Bernard bell. Bernie. [ applause ] thank you. Good afternoon. I wont be talking so much about big data for spooky uses but data for use by you and me. All right. So ill be talking about Public Information and access to public dock uument documents. Focusing on a few other ancillary matters and one of my copresenters will be dealing with the Public Information side of this. So i want to there have been a number of cases decided this year. There are too many to summarize in a talk to theres a rather extensive summary of many of the cases that were decided this year and decided in this era. I will concentrate on a few cases. Let me start with the definition of Agency Records because only Agency Records are subject to foya. This year there have been two notable cases on that subject. Course of action versus National Archives and Records Administration and story county. Story county which is on page ten of the materials, that involved records a local sheriff generated as a board member of the First Responders Network Authority or first net. The u. S. District court in iowa held that the records were federal records and enjoined county officials from releasing them under a state Public Records act. It is responsible for the aspects of the nation wide Public Safety broadband network. First nets governing board consists of three cabinet level officials and 12 members appointed by the secretary of commerce. Sheriff storiy county sheriff Paul Fitzgerald was one of those 12 appointees. Add to this that first nets organic statute actually exempted them from foya. Fitzgerald received and sent emails regarding first net business from a story county email account. The court found that fitzgerald was a federal official for some purposes and that the messages recording first net were federal records and it didnt matter if fitzgerald had been appointed to the first net board due to his status as a local elected official. The court also rejected story countys argument that fitzgerald receipt of emails from first county officials to a story county email address constituted a third party and thursday a voluntary waiver of foya exclusion or exemption. The second case involving Agency Records deals with actually the National Archives administration. This is cause of action versus National Archives administration. Here the d. C. Circuit held that records of legislative commissions that are transferred to the National Archives are not Agency Records for foya purposes. The legislative commission here was the financial crisis inquiry commission. Rather than relying on the standard factor tax analyst control tests that generally decides the Agency Record cases, the panel held that the transfer of records from an exempt entity, mainly any sort of allege la allege legislative era. The court said that they do not use it in any way and thus any control of such documents consists solely on cataloging them and preserving them, not a micro warehouse. The d. C. Circuit says that this makes the tax analyst cases inapplicable after all of that test was designed really to distinguish Agency Records from personal materials within an employees possession. The court said that the tax analyst case is really divorced from foyas key objective which is revealing to the public how federal agencies operate and the fcic records or the Mission Records dont expose the operations of the arc yihives t the nerra of public scrutiny. I want to move on to the exemptions. Im going to focus on two of the exemptions. Exemption five and six. Exemption five, exemption disclosure documents that quote would be available by law to a party in litigation and encompasses several privileges including the president Communications Privilege otherwise known as executive privilege. Theres a case dealing with executive privilege summarized at the beginning of page 13 of the materials. There, a d. C. District judge concluded that the privilege did not protect from disclosure president oer balmoer ba obamas global development. President ial directives serve as forthal notification to agency heads in the field of National Security general requiring that agencies take some form of followup action. Pbd 6 calls for the elevation of development as a core pillar of American Power and provides specific policy guidance on implementing it. The judge concluded that pbd 6 is a nonclassified districtive that has been distributed broadly within the branch and has been distributed to decide decision making. In the judges view as policy guidance to be implemented by agencies, pbd 6 has the force of law and is the functional equivalent to executive order. The judge reasoned that the availability of the president ials privilege ensured confidentiality and here found no such need particularly given that pbd 6 does not involve a uniquely president ial duty which is a little bit odd reasoning. The court went onto say that based on the reading of the document, the judge found it was forward looking and didnt reveal the president s deliberative process. In short, the judge concluded that the president s ability to communicat communicate his final decisions privately is not implicated. There are other cases involving the deliberative process privilege but i will leave those to be covered by the materials and given the shortness of our time. I want to move onto exemption six. Exemption six alolows agencies width hold records which disclosu disclosure, there are two cases that i want to focus on. The Union Leader Case and a case called gillman. So first union leader versus the u. S. Department of Homeland Security. The summary of which starts on page 22 of the materials. The First Circuit held that the names of aliens with criminal records arrested in an immigration and Customs Enforcement or i. C. E. Sweep could be held pursuant to exemptions 6 and 7 c. The First Circuit panel held that aliens had a cognizable that no individual has a reasonable expectation of privacy of arrest by government. Convictions and arrests are matters of Public Record and also given that union leader, was not seeking to actually contact the arrestees. The court found that there was a substantial counter vailant puck li Public Interest in disclosure and noted that one of the arrestees had remained in New Hampshire till 2011 after being removed from the country in 1998 after being convicted of trespassing in 1993. The union leader could point to evidence that ice had contacted negligent in handling its removal duties. It concluded disclosure of redacted names would help investigate arrests potentially bringing to light for ices apparent torpor for removing these aliens. Gillman versus u. S. Department of Homeland Security. Summary of which begins on page 25. In that case, a District Court ordered the release of names of landowners whose property would be acquired for the border fence sup ra separating the United States from mexico. A law professor sought the names and addresses of landowners who would potentially be affected by the border wall as well as correspondence with government officials and their context with landowners. A law professor was researching the legal, historical property, environmental and indigenous impacts with the border wall. It was held under exemption 6 and also under other exemptions that i think harry will talk about. The judge concluded that noncommercial individual landowners had privacy reasons. First, disclosure might disclose landowners to unwanted media contact. Secondly, some of the emails between government officials would actually potentially reveal the owners valuation of their land and possibly the landowners financial situation. Third, some of the documents which actually reveal some specific statements by some of the land owners on their views regarding the border fence. However the judge found quote a great Public Benefit to learning the social impact of the governments construction of fall. Sh she agreed with plaintiffs that revealing the identities of landowners might shed light on the impact of the wall and the placement of the wall on indigenous communities and lower income minority communities. That is often an issue when youre talking about imminent dome inn issues. The survey actually these cases and essentially concluded that if the requester can show that theres really some substantial Public Interest in disclosing the information then generally, the case will come out in favor of width Holding Information on privacy grounds and where a persons Financial Information might be implicated such as when the governments deal with receipt of government benefits or value of property and acreage. I want to move onto reverse foya litigation which i suppose is a lot less frequent than foya litigation but theres an interesting d. C. Circuit dpras thissier. Drewowitz versus usda beginning on page 34. They are as you know apa suits seeking to enjoin a Government Agency from releasing documents that foya exempts from disclosure. So in jurovitz. D. C. Circuit held that the usda had not acted arbitrarily and capriciously in releasing information that dog breeders had submitted regarding their Gross Revenue and business volume. Now all animal dealers must complete a form 7003 which asks for the number of animal purchases and sales during a given year and Gross Revenue from activities. We saw copies of these forms, 7003s for all missouri dog breeders. The usda agreed to provide the information. The dog breeders put a sought claiming those documents should have been held in regard to exemption 4 and 6. With respect to 4, they noted the usda had reasonably concluded that the request of information was unlikely to cause competitive harm. The data on the form was too imprecise and stale for competitors to determine prices with particular breeds. With respect to exemption six, the usda had found a n nonnegligible features and whether the department was fulfilling its statutory obligation to charge reasonable and equitable fees and allow the public to properly assess whether fees were being charged in accordance with these regulations. The court found that the usdas balancing in favor of release was reasonable. Interestingly, the court also that Public Interest in disclosudisclose 7003 information can only exist in propriety. The court acknowledged in 2004 that such a showing might be required when a foya requester seek document thats would intrude on some privacy interest but said said in this case, in a reverse foya case, the plaintiff must show that the government was arbitrarily capricious in completing that balance. Let me talk about a couple of cases involving government information combination of government information. Anni acquisition. The first was this Corporation Versus hooper in which the Supreme Court legally construed the scope of protection offered by a statute that confirmed immunity on airlines for reporting suspicious behavior. Through the aviation and transportation security act, immunizes airplane employees from liability from reporting suspicious activity from tsa agents from lawsuit as long as their reports are not false. Now the u. S. Court versus sullen which congress clearly referenced in the atsa standards, the court held that even reckless statements can give rise to liability only if material false. Materially false statements are one that would have a different affect on the mind of the reader or listener from that which the truth would have produced. For purposes of a tsa immunity, courts must consider the affect of the alleged false statement on tsas behavior. Thus, a false hood thats material for a tsa purposes only if a reasonable Security Officer would consider it important in deciding upon the appropriate response to the supposed threat. Just so you know a little bit about what the case is about. Statements that the plaintiff who was scheduled to fly on a commercial aircraft was an unstable pilot in the first flight deck officer program who had been terminate that had day by his airline and expression of concern about whether the plaintiff was armed were not entirely accurate but were not the courts said materially false. The next and actually final case that ill address is a case that the judge court is hearing on this term that was decided on federal circuit and interpreted the whistle blower protection agent. The whistle blower protection agent or wpa prohibits agencies from taking adverse action against an employee on the basis of quote, any disclosure of information by an employee which the employee reasonably believes evidence of substantial and specific danger to Public Health or safety. Here is the keywords if such disclosure is not specifically prohibited by law. So the First Circuit holds that held that mcclain, the whistle blowers disclosure was specifically prohibited by law and thus not protected because it violated regulations issues under the aviation and transp t transportation security act, atsa which directs the secretary of transportation to quote, prescribe regulations prohibiting disclosure of information if the secretary decides disclosing the information would among other things be detrimental to transportation safety. Mcclain was an air martial and he leaked a text kacanceling ai martial meetings to las vegas even though at the time the department of Homeland Security was concerned about a potential hijacking. Substantively when mcclain actually leaked Something Else an a fellow fibbigured out his identity, the department discovered he had leak the first information about the las vegas missions and they fired him for disclosing sensitive information. The federal circuit concluded in the absence of any contrary argument from the parties that to follow through the wtsa prohibited provision, it must be by statute not provision. The court noted that the atsa itself nearly empowers the regulati them to associate with disclosing information, it doesnt do so directly. It does direct the secretary to give direction pursuant to specific criteria. Only information that would be dim detrimental disclosure that clearly falls under the wpas specifically prohibited by law provision and on the other poll, statutes in which Congress Delegates legislative authority to an Administrative Agency without circumscribing the agencys discretion. The court concluded that given the clarity of the statutory language in the wpa and legislative wpa specificity requirement were not sufficient to consider it a statute falling within the specifically prohibited by law provisa. Thats a round up of the highlights. Obviously there are more cases discussed in the materials. If we have time after all of the presentations, hopefully we will have a discussion encompassing some of the cases. Thank you. [ applause ] thank you. Id like to ask the cspan editor to please clip out the circumstancision line. We dont want bernies students to be reading that. The other half of this subject is presented by harry hammitt. I have to personally commend harry. Hes one of those heroes in the freedom of information act who has been there, done that, written about it. As editor there for almost 30 years, we are the hardy perennials here on the news letter side. Were honored to have with us harry hammitt, the editor of news access reports. Harry. [ applause ] thank you, jim. I want to start where jims first remarks about the snowden case began. There were a couple of cases this year im not going to describe them but youll see how this all fits in, a number of people who decided to sue the national Security Agency on the theory that since they collected everything they must have records on these individuals so there were several suits that ive read. Ip thi i suspect that theres probably dozens of suits on this issue. Generally speaking the one person, a guy named glen carter was from kan atcanada, it was c from his litigation that the nsa must have records on him because they have records on anybody. I thought it was an considering asiede as far as the snowden issue is concerned. What i will do is talk about procedural issues and exempt up with exemption issues as well. The first case i want to talk is a District Court case from oklahoma. All of these cases are in the summary youve been provided with. This is a case many which 13 state generals had filed suit against the epa for records pertaining to the agencys nondiscretionary duties to take action under the clean air act. The Agency Responded to the attorney generals request for fee waiver by saying no, you cant have a fee waiver and your request is too vague and were not going to answer to it because its too vague. One of the requirements under foya, is that an Agency Request has to be specific enough that somebody who is reasonably familiar with the records would be auble to understand what records youre talking about. Frequently agencies are faced with requests that are often too vague. So this come as any surprise. What the District Court said was that discussions with any interested organization or other organizations concerning the scope and application of the epa administers nondiscretionary duty to take certain actions under the clear air act was too vague. The term actions was not defined in a way that would be limited and a professional epa employee would be left to guess what kind of actions the administer has the ability to perform. What seems look a very comical way of dealing with these issues is that the parties get together and thrash without a request that was narrow enough and understandable enough so that they could respond to it. This is a common problem that affects both sides of the equation. Requesteters often times really dont know about what the agencys records are like. They tend to make broad requests that seem to fall under the agencys jurisdiction. So often times requesters are making broad requests and then agencies are then faces with what the agency actually wants. We talked about this and it was ultimately codified was for the agency to come back to the requestester and s ee eer and s understand what youre asking for or this is too complex and time consuming. If youre willing to narrow the request here are some suggestions question handle the request for expeditiously for you. The trade off is the it becomes more manage and the bone thrown to the requester is that they will respond to it more expeditiously. That often times doesnt happen in practice but thats kind of where the statute is supposed to be. I have a friend who is a l litigator in the national Security Agency at the moment. He has been fighting with the cia on several occasions as to whether he had records with tthe way too complicated to possibly deal with and of course they didnt bother to ask the requester how hed like to narrow it. I will say at least one case the agency won that argument so thats not necessarily a losing argument in any means. Is actually brought by alans administration. What epic was asking for the department of defense the department of justices National Security division had reports that they submitted to Congress Pursuant to the foreign intelligence agent summarizing registers and trap and trace devices. Epic asked for expedited processing and athe agency gave them expedited processing and also a few waiver but then nothing more happen sod epic filed suit. What happened wanted as for them to issue an injunction requiring them to respond within 21 days of the order. The judge looked at the affect of the case that we discussed last year in which i will talk about a little bit more again. A case called crew which is citizens for responsibility and ethics in washington. A Public Interest group here in wau washington. In that case, the d. C. Circuit ruled that an agency has to make a determination on what its going to do with the request within 20 working days. What a germation ruof specifici of how its going to be handled and also the requesters right to appeal if they so desire. Crew had sued the fec when it felt that the fecs termation was not adequate enough and indeed the d. C. Circuit said their determination with a not adequate enough. What the crew got as a result of 21 working days was that they got an opportunity to go to court. Thats called a construction of remedies. The plaintiff has the right to go to court after 20 working days. But its not clear that they have much other remedy. Anyways, judge brown whats her name brown jackson, crth crew case said that once you responded in time, you had to go to court. That was it. Epic argued largely because they had won this on similar situation in 2006 there was that the agency was being violated by not responding on time and that gave them permission in having the case processed. Jackson basically said, well, now that the crew case exists, crew versus fec, basically, the only remedy you have is to go to court. Hopefully you can get the court to be more amenable to your argument but you dont get to force the agency to answer or to respond any more quickly. Basically under the expediting processing provision, the only thing you actually get is to be moved into a separate cue, a faster cue, and the agency has to respond just as quickly as practicable. Thats the language in the statute. Judge jackson said thats, you know, its about it. The next case i will come back to this later on because bernie wanted me to talk about this law enforment exemption. Gillman was a law professor at the university of texas and wanted to get information about the Homeland Securitys assessment of how to construct the fence and this and that. One of the things she had agreed to do was to extent the email thats were being put together to respond to another piece of litigation again by the organization crew. She had agreed that because much of this review work had already been done that she would accept that as responsive to a request. Well, one of the things that the crew had agreed to do in its separate litigation was to not go after any email attachments that were part of the interviews and gillman said no, i want these attachments. Brown said again youre restricted by the agreementment that you said by you. This is a strategic decision made by plaintiffs to get records that they know they can get quickly and wait for other records. Gillman who was probably an experienced foya litigator basically got stuck on the situation of having to accept something that she probably didnt want to accept in the short run. The other case i wanted to talk about because theres been some interesting decisions in the last year, year and a half on whats known as exemption three. It is a provision statute that meets the criteria of exemption three to be considered as prohibitory and to provide confidentiality in their own right. They are applied through exemption 3 of the frktsoya in case, this is a case called argas media versus the debt of agriculture. The argas leader which is the newspaper in sioux falls, south dakota, had asked for information on food stamp redemptions. Indeed the statute protects redemption data when it comes directly from a retailer. Unfortunately and the District Court said, okay. Well, this information is basically of that nature and i believe that this exemption applied appropriately. Unfortunately when the case got to the 8th circuit, they said that the exemption applied only to the redemption todays world, this information is aggregated and collected by the agriculture department, through thirdparty processors, and through a debit card that food stamp recipients use. And so, the eighth circuit essentially said, let me see the statute makes clear that only information obtained under this provision, which is submitted by a retailer, is exempted. When the statute says obtained, it means obtained, not can be obtained as the District Court reasoned. So, because the information had not been retained not been obtained from the proper party, the eighth circuit ruled that the exemption didnt apply. The other when i mentioned exempti exemption, there isnt that much litigation under exemption three. And oftentimes exemption three statutes exist in many ways to serve the interest of various institutional interests, but also various commercial and business interests to provide a more concrete sort of confidentiality for certain types of records, because they basically you specify what the record is. And it fits the into the exemption, then its exempt. And so i mean oftentimes i think businesses in particular like exempted three statute to the extent more than the business exemption. Because they think its got more regularity once they understand what the parameters are. But there have been several instances, as i say in the past year, one exemption three statute thats been litigated up and down, and now has come back to be relitigated is the export Administration Act which basically says that you cant get information about the export of munitions, and the problem with that statute is that it expired probably 15 years ago. And nevertheless the d. C. Circuit has ruled in the interim that no matter whether its expired or not its still legitimate because of the way its been continued to be implemented through executive orders and whatnot. But a judge in california said no, now were six, six to eight years further down the line. There still has not been any move in congress to reauthorize this statute. So the statute cant use this statute as an exemption three statute. The other two statutes i thought were really kind of interesting. I think one statute let me back up a little bit. At the beginning of president obamas administration, an incident in which there was a case that was accepted by the Supreme Court having to deal with disclosure of the detainee photos from iraq and afghanistan to prevent the case. To prevent the case basically from going to the Supreme Court, the Obama Administration and democrats and Senate Democrats put together a exemption three statute that allowed the Defense Department to certify that these records should be exempt and that, indeed, they would be exempt. The quid pro quo for passing that was to pass a little piece of legislation thats known as the open foia act. Which basically states that you cant have an exemption three statute that an exemption three statute isnt valid unless it actually cites to the freedom of information act. So recently unusual exemption three statutes that has been recognized is a statute that Congress Passed during the Bush Administration to protect to prohibit the bureau of alcohol, tobacco and firearms from releasing any gun trace information. And is a statute, basically, it doesnt it doesnt provide an exemption it doesnt describe the documents per se, as much as it says you cant spend any funds on dealing with this. Well this exemption was cited by the atf quite recently in a case against a prisoner, and the judge ruled that because that statute no longer doesnt cite to the foia, which it was required to now, it wasnt it wasnt a valid exemption three statute any longer. So he didnt order disclosure of the records, but basically told the agency that they would have to scramble for better justification than that one. The other statute that has a name thats so long i cant even pronounce but its the statute that i just mentioned, came up to prohibit disclosure of the detainees photos, and one of its one of its downstream provisions was that the Defense Department can continue to withhold these records if every three years it certifies that theres a security reason that outweighs the Public Interest in protecting them. Well the judge in new york decided, after reviewing the affidavits that the Defense Department, secretary of defense leon panetta had given, that they basically didnt do anything more than refer back to the case in 2006. And that they really werent adequate to meet the agencys burden. So he shot down that use of that b3 exemption, as well. Again he said well, you know, this really is pretty sensitive material and im going to let the government come up with a, you know, with some other defense. That we can but you know, you cant this isnt a slam dunk as far as the exemption three is concerned. So i thought those were several rather interesting cases. As far as exemptions three was concerned. The case that kind of got my vote as the absolute worst case of the year is a case called such a mouthful im going to read it, its called Public Employees for environmental responsibility versus United States Section International boundary and water commission, u. S. Mexico. This is a case that the d. C. Circuit decided in the beginning of in january of this year. The case, peer had made a request to the water commission, International Boundary and water commission, for some records, and the agency had withheld some records that dealt with assessments of two dams. The agencys jurisdiction is basically the Rio Grande River and i guess its immediate tributaries. And they had reports on two dams on the vulnerabilities of two dams, and then they had what are known as flood inundation plans, which are basically plans that project scenarios of what might happen to downsteam populations if something happened to a dam. And they had withheld both these, and peer sued in District Court and the District Court upheld the governments claims completely. When it got to the d. C. Circuit. Peer argued in part that these records were not that this was not a its a u. S. Section, was not a Law Enforcement agency that could take could make could claim the records were exempt under the Law Enforcement exemption. Im sorry. Judge brett cavanaugh, who wrote the opinion for the court, said that you didnt really have to show that an agency had a Law Enforcement function but just had to show that a record was created for Law Enforcement purposes, and then what cavanaugh and the court today was it glommed on to justice associate Justice Samuel alitos concurrence in the case milner versus department of navy, which was about exemption two, and the risk of circumvengs prong of exemption two and in that case the court decided that that language did not comport with the statutory language of exemption two, and that that provision that had basically Court Created provision that basically existed for nearly 30 years. Was no longer any good. So alito, out of the goodness of his heart, decided to sketch out a scenario under which the government could claim that all these records were Law Enforcement records. Basically, basically the argument he made was that any records that deal with Security Issues are clearly, you know, created to be used for Law Enforcement purposes. And if any record fits into that category, then, you know, then it then down the line it can be used for it can be claimed as an exemption. He also said that even earlier Supreme Court decision which a case called John Doe John doe Corporation Versus john doe agency, in which the Supreme Court decided that a audit that had been conducted by the defense contracting aud itting agency, just plain vanilla audit, that would that was more or less publicly available when it was created, qualified as a law exemption record after it became part of a fbi investigation of the contractor. And the argument was that the statute said no it has to be to be covered by exemption 7, has to be created for Law Enforcement purposes, and the court agreed that no, it can also be compiled for Law Enforcement purposes. So the court as i said with alitos concurrence basically said oh, okay, anything can be anything thats compiled for Law Enforcement purposes qualifies, and so all of this information qualifies. And i mean this is kind of like, you know, as i say, im kind of just in my mind, just talking about disaster waiting to be happen because i think this expands the the category of Law Enforcement records to such an extent that you know, almost anything that pertains in any way to security or resource management, or anything could possibly be Law Enforcement. And so, you know, we now have we now have this case on the books, fortunately, at least, nobody hardly has used it. But the other case i wanted to mention quickly, again, was the gilman case. Bernie had asked me to talk. The Homeland Security and us with held some records of its analysis of where the fence ought to be built in texas under exemption 7e which covers investigative methods and techniques. And gilman said well, you know, much of this stuff is really Public Information. Its about the observable geography of the border and whatnot, and its not about methods and techniques. And what howe said was that let me see. The discussion of publicly available information itself reveals what information customs and Border Protection considers when analyzing vulnerabilities at the border. And this analysis itself is not publicly known, and may risk circumvision of the law. So she essentially said that even if the agency was using information that could be categorized as Public Information the fact that it was analyzing the Public Information along with nonPublic Information in such a way made it made it so that it was it did fight under exemption 7e. So with that i will conclude, and take things up later. Thank you. For those watching on cspan the critical factor here was asked the agency specifically for what you want, recognize the agency has many incentives not to honor your freedom of information requests. If you are really bored and its late at night and you are watching cspan switch over to the cable channel thats running monty python and the holy grail. And there in monty python and the holy grail the ogre at the chasm of death asks the poor traveler, what is your name . What is your quest . What is the capital of asyria. And of course you can answer the first two but you cant answer the third, you wind up in the chasm of death. Similarly the agency has its ways of dealing with foia requests that it doesnt really want to honor. With that bit of cinematic metaphor we now are proud to have with you alan butler. Alan is one of the leading thinkers in this field with the Electronic Privacy Information Center. As i mentioned at the very start of my introduction, the bbc Radio Program this morning spoke of big data for spooky uses in the era of ed snowden. We are about to go into the subject of big data, who in the private sector is gathering your big data. Who in the Public Sector is listening to you and informing big data about you. And all those issues that the Electronic Privacy Information Center has on its agenda. Alan butler. Thank you. So thats a lot to cover in a brief amount of time. But i will im going to focus today my talk on developments in the last year in issues of nsa surveillance and transparency and oversight related to nsa surveillan surveillance. Just to give a brief background on what we are talking about here, you have heard about a number of different programs likely over the last year, if youve been following these nsa stories, and ill just give sort of a quick overview so we have some sort of common terminology and framing here. So there is really a number of different authorities that the nsa has used that we have learned about over the last year. The first one is section 215 of the patriot act, which is codified at section 1861 of title 50 of the foreign Intelligence Surveillance act. And this is the whats known as the Business Records provision. This is the provision that we heard about most moat gli last year with the initial snowden leaks and subsequent discussions and disclosures. The provision that was relied upon by the nsa and the fbi to acquire all telephone call detail records on an ongoing basis, both local, domestic, and foreign records. So this is a provision that was enacted as i said in the initial patriot act and subsequent amendments that provides for the authority to obtain Business Records for tangible things that are relevant to an Ongoing International terrorism investigation. When this provision was initially enacted it was sort of there was a bit of backlash because people saw it as Library Records provision. People thought it was all about it was going to be used to get Peoples Library reading records. And in fact, there was a subsequent amendment that specifically limited the use of this provision to obtain information on a u. S. Person based on their First Amendment protected activities. So everyone is all focused on Library Records and no one really knew that this provision was being used to collect records in bulk. And to put some sort of concrete details on what that means, the primary order from the foreign Intelligence Surveillance board, procedurally what happens here is the fbi files an application with the foreign Intelligence Surveillance board. Which is a panel of federal judges appointed by the chief justices of the Supreme Court, and that panel sort of sits in wait for applications from the National Security division of the department of justice. And they review those applications in secret in an ex parte session sort of similar to warrant magistrate judge warrant decisions. So the court there, we found out last year, and weve subsequently found out, issued an order to Verizon Business network services, which is a subsidiary of verizon former mci business network, asking for all call detail records and defining what is included in a call detail record. But basically phone routing information. Call time, numbers dialed to and from, duration of the call, identifying information about the phones, et cetera. So theyre asking for verizon to produce that information on an ongoing basis for all calls that it processes. Thats what we mean by bulk collection. So 215 in this case is not about a specific record, a specific investigation. Its being used by the department of justice and the fbi to collect all call records available in the United States. We know from public statements by officials that these orders werent just issued to verizon. They were also issued to at t and sprint, the three major telephone providers in the United States. The whole theory behind this program was that in order to find whats needed in a investigation the fbi and nsa had to get the haystack. They literally had to collect all the telephone call records they could in order to subject them to querying and analysis which means taking a phone number and querying to find out what are all the numbers that phone number is called in the last five years and what are all the numbers that phone number has called in the last five years, et cetera. So each of those referred to as a hop. So that section 215. Then we learned about programs that have been referred to as prism which is actually a program authorized under section 702 of the fisa Amendment Act of 2008 which is also codified in 2015. And this is a program wherein the attorney general and the director of the National Intelligence go to the fisa board on an annual basis and apply for the authority to issue what they call directives to Internet Service providers. What this means is they go to the fisa court and they say we have a program we would like to implement to acquire communications that we reasonably believe are Foreign Communications from Service Providers in the United States, and we would like to, for the next year, implement that program with certain what they call minimization procedures, meaning procedures used to process the data the communications once its collected. So the Court Approves this program, and then the, basically the fbi can issue these directives to Service Providers like google and skype and microsoft, et cetera. And say, we have the authority to obtain this communication that we believe is foreign and related to our investigations. Please give it to us. So we found out last year that they had been doing this through direct access to these Internet Service providers and theres been a series of sort of developing stories about that. Two other fisa provisions that weve learned about over the last year have been discussed are the National Security letter provisions, and the pen register provisions. These are both provisions that are that exist in multiple places in the code. Some there are both National Security title 50 versions, and regular criminal versions title 18 of both of these provisions. The idea is with the National Security letter, its subpoena issued by the fbi to a business for certain information relevant to investigations. Because of the subpoena there is no oversight and because its a National Security subpoena theyre usually attached with a gag order requiring that the provider not disclose any information about that order. And the pen register provisions governs the use of technologies that obtain routing information about communications so traditionally with phones that have been call record information. Numbers dialed to and from but now with Internet Communications it could mean a whole variety of other information, including information about, you know, what servers are communicating with each other, what sorts of communications are being passed between servers. Email, routing information and the like. And specifically with the pen Register Program we learned that up until 2011, the government was using the pen register authority under the foreign Intelligence Surveillance act under title 50 to collect an inbulk Communications Records about basically communications routing information about entire sets of emails related to investigations into terrorist organizations, and this included email routing information about domestic emails within the United States. And then finally there is another area of surveillance that we are beginning to hear more about which is surveillance conducted pursuant to executive order 123333. When you hear about 12333 basically whats happening is the fisa governs electronic surveillance. Thats defined in the statute, and basically what that means is that the fisa governs surveillance activity that takes place within the United States. Under certain definitions. Right . There are surveillance activity thats taking place outside the United States, both in other countries, and surveillance that takes place at facilities, for example, where transatlantic cables connect, and where Internet Communications are routed through the United States and other countries. And those activities are not directly regulated by the fisa, and so they are governed by an executive order that was issued by president reagan in the 80s, and provides for certain limitations on Intelligence Community activities. So basically anything thats outside of fisa is governed by 12333. So with that background ill mention just really quickly that building on what harry said, that there have been a couple of a number of cases challenging it the 215 bulk call detail records programs. These cases specifically, the main cases have been brought by three different organizations, one here in washington, d. C. The aclu in the Second Circuit and one is being litigated by eff and other groups in the ninth circuit. All these cases arise from basically the same background which is the entities bringing this suit either individual or an organization like the aclu are all verizon customers. Right . So its not purely the case that theyre arguing that the nsa collects everything so they must have collected our call communications. Theyre actually saying, the nsa, we know the nsa collected verizon communications, because we have this order to remember visine. Were verizon customers. Theyre our Communications Records, again, have been not content, have been collected, and they allege both statutory and constitutional violations. So in the statutory realm, in the aclu case for example, they allege that section 215 itself does not authorize the nsa to collect in bulk call detail records from u. S. Companies. The basic argument there is the statute requires that a record be relevant to an Ongoing Investigation and their argument is basically that all records cannot be relevant, otherwise relevance has no meaning. The arguments we have seen in briefing from the government, and in opinions that have been released from the fisa court, on the other side, is essentially an argue umtd of necessity. Where the government says we have a need to collect all these records, because in order to get again in order to get the needles we need the haystack. Which is not really an argument about relevance so much as it is an argument about necessity, and its not clear, you know, again, why it is the case that necessity should be sufficient where the statute says relevance. So thats an ongoing issue. And then the second issue thats being briefed is whether the collection of all of this, these domestic phone records, without any reasonable suspicion or probable cause, violates the Fourth Amendment. And the main response from the government, and president of the fisa Court Opinions in those cases is that basically call detail records are not protected by the Fourth Amendment, because of smith versus maryland, a case from 1979. So the ongoing issue there especially now postthe Supreme Courts most recent decision in riley versus california, is whether smith versus maryland is still applicable to modern Telecommunications Networks in 2014. And that will be an interesting issue to watch Going Forward. And all these cases are pending. The clayman case here in d. C. Will be heard in a few weeks. And the smith v. Obama case will be heard a few weeks after that in december. The aclu v. Clapper case already had oral argument. So those cases will be very interesting to watch, and many sort of people who read the tea leaves predict that that issue will end up at the Supreme Court within the next two years. But well see. Im going to talk about a few more developments in national more developments in National Security law and transparency over the last few years but well they fall into four different categories. The first is transparency in this area, new releases that were learning about. The second has to do with the president s reaction to the leaks and his decision on how to change the programs Going Forward. The third is about congress reaction, and where Congress Stands on these reform questions. And the fourth is about new the biggest new issue Going Forward which is 12333. First on declassification and transparency regarding these types of surveillance. Theres been a few really Significant Developments here. The first Significant Development to highlight is the fisa court which existed for many, many years, since the late 1970s, and has heard for a long time only applications for individual surveillance based on reasonable suspicion that individuals were foreign actors, or agents of foreign governments, was really a niche area that most people didnt Pay Attention to, until much more recently and especially over the last year. But now amazingly the fisa court has a public facing website and a public docket. So the fisa court has a public docket and theyre releasing information about public cases, and the dockets actually got 200 entries now and those are only entries that are, you know, dated after 2013. And in addition to that, were also getting on an ongoing basis, troves of historical fisa Court Opinions that have been with held for years and years on classification grounds that are now being declassified by the director of National Intelligence. Theres really too many to go over in this short forum, but, most importantly, ill highlight a few things that have been declassified over the last year. The most one of the most important things thats been declassified with the original fisa Court Opinion authorizing the internet met today data program. This was an opinion issued in 2004 and this is really the seed opinion for all of this bulk collection. Because what essentially happened, and a related point another thing thats been rereleased this year in a case that my organization brought, is the memorandum of office of Legal Counsel written by jack go goldsmith and others that preceded the metadata opinion. So this was the analysis that said basically, this internet Metadata Program is legal if the fisa court and then they subsequently sought approval from the fisa court. And what really happened in terms of the time line is that this these programs were in development in ongoing since 2001 basically right after 9 11, but they were conducted within the Bush White House in and within the nsa in secret for a number of years. And then there was sort of a revolt within the white house and the department of justice over authorization of these programs, and they were subsequently transitioned over to the fisa court under the pen register provision in 2004, and then in 2006, they applied for the First Business record call metadata order from the fisa court. And that fisa Court Granted that application without even writing a written opinion, we now know. They didnt really write a written opinion because the department of justice basically pointed at the 2004 opinion and said, well this opinion about internet metadata under this other provision of the law is exactly like what were applying for under the 215 program. So thats a really important historical document, and sort of sets the framing and the context for this debate over the legality of the program again under the statute and also constitutionally. Another thing that is relevant to the transparency issue is that the director of National Intelligence also has a public web site where publishes declassified documents. Interestingly enough its a tumbler page. Its called i. C. On the record and its actually an interesting resource for declassified documents in this context. And theres a lot of Historical Information up there now, and theyre continuing to public more and more information there as well. Weve also had public reports issued by the privacy and Civil Liberties oversight board. One report finding that the 215 Metadata Program was, in fact, illegal. And that it was also ineffective, and in a report by the president s review group that was specially appointed last year to review intelligence programs that made a similar finding about effectiveness and made other significant recommendations. So theres been a lot of reporting going on. And a lot of transparency there. Theres also been a battle between Internet Service providers that are subject to these authorities, and the government, over what they can release in their annual transparency reports. So a number of Internet Service providers, including google, and yahoo and the like actually went to the fisa court and brought their own declaratory suit seeking the permission of the court to release the aggregate numbers of their of the fisa orders that they had received, and the government sort of responded, and they had a litigation and they actually settled out of court in that case with a new sort of set of rules and principles that those companies can follow that allow them basically to report in bands of zero to 500, 500 to 1,000, et cetera, how many requests theyre receiving. More recently in the last few weeks twitter brought suit in federal District Court seeking to disclose more information to that. Twitter is not subject to that Consent Order and they want actually to be able to release even more information in their annual transparency reports. So then moving to the president s speech, there was a president gave a major speech on nsa surveillance last this year in january on the 17th. And he really addressed two issues in that speech. The first was he made a pledge to end the suspicionless Bulk Collection Program as we know it. And they began to implement that program with certain selfimposed restrictions within the first few months, basically they went the dodge went back to the fisa court and they said okay we still want authority to collect all telephone records from verizon, at t and sprint, but were only going to query those records when we show the court when we bring the Court Evidence that we have a reasonable, articulable suspicion that the number that were using to query the records is related to International Terrorism in an investigation. So they selfimposed some restrictions. But they refused to stop collecting in bulk until Congress Passed a new bill that ill talk about in a minute that would sort of change their regime that they would operate under. The other thing the president announced is that he would impose new restrictions on Foreign Communications data that he had collected. And that that proposal was summarized in president ial policy directive 28 that he published and released. In fact, pursuant to that president ial policy directive one of the first orders was for the Intelligence Community, via the coordination of the direct irof National Intelligence to develop new procedures for the handling of the data that they acquire, and that report, the first report by the dni, on that process was actually just released this morning. So now theres a new report there in the dni is sort of focused its inquiry on, you know, next steps for the Intelligence Community agencies on how theyre going to modify their procedures and what new rules will apply. One thing that ill sort of mention, big picture about ppd 28 is that the efforts of the administration and the director of National Intelligence here are entirely focused on minimization rules and restrictions on the use of data that theyve already collected. Its the administrations position that with respect to data, Communications Data acquired outside the United States, not on specified individualized persons, that they basically dont want any restrictions on collection. So theyre focusing all of their energy on talking about restrictions on the use of that data. How that data might be minimized, or sort of processed after its already been collected. But they dont want to accept any restrictions on their ability to collect that data. So moving on to whats happening in congress right now, originally following the snowden disclosures, there were kind of two bills that were competing bills that were developed in the house and senate coming from different sides. One coming from Intelligence Community proponents, and the other coming from liberals and other antisurveillance sort of members, and now what weve had is a kind of combination of groups. Weve had a kind of a coalesced unity behind one bill that has two versions, one in the house and the senate, called the usa freedom pact which is actually backed by the administration and the dni, as well. And that bill has gone through several rounds of revisions that have been significant in but in a lot of sort of detailed ways, but what we have now is a version of that bill thats pending in the senate, and its, you know, probably unlikely that it will be passed this year but its certainly a possibility. And more interestingly, i think from a strategic perspective, is if it doesnt pass this year, next year is actually when the 215 authority sun sets. And so there will be sort of forced decision there from congress as to whether to extend that authority or not. And that will sort of raise additional points about these authorities. Just to give a brief outline are the bill, again, theres a lot of detailed provisions in it. But the basic structure of the bill is that theres certain substantive changes to the rules of section 215, section 702, and the National Security letter provisions, and those changes specifically are within section 215 to kind of codify. New nonbulk call detail records provision that would basically allow the government to, rather than collect from the Telephone Companies all records and then query them themselves, they would actually have the government go to a Telephone Company and ask for queried records from the Telephone Company. They would basically say here is a number for a seed, please give us all the contacts, basically the first two hops of data from this seed, and so the government that way would not be collecting everything and then querying it itself, it would be having the phone company, or Telecommunications Company do the querying, and then deliver the results to that. And theres other certain other limitations on section 702 in the National Security letter provisions and theres also new reporting requirements, new requirements of inspector generals reports and transparency reports that would and that would require the government to account for things like the number of queries theyre submitting, and also provide deskiptive the accounts of how theyre limiting their querying of that analysis and that data. And finally theres a provision for the creation of a special advocate, or amicus at the fisa court. And the idea here is that there would be either a dedicated individual within the federal government, or a panel of experts, attorneys, that would be available to provide arguments on the other side of fisa applications, where significant interpretation of the law is concerned. Soond the most current iteration of this proposal has basically the fisa court agreeing on a panel of clear expert attorneys and the fisa court making the decision when to bring those attorneys in for briefing if theres a significant question of law. So i think that the current proposal as congress is considering it has certain strengths and weaknesses. So, the primary strength is that it would fix the narrow problem of the bulk collection of phone records in the sense that it has a provision within the law that clearly says, the government cannot collect all telephone records in bulk in the way that its been doing and instead it has to go through this new system where the phone Company Delivers query results to them. Another strength is that it would require the declassification the ongoing declassification of signifies is aCourt Opinions. The classification of those opinions in the past i think is a huge root of the problem that weve seen where theres really this disconnect between the Intelligence Community and congress and the public in terms of what they think the law is. And how that law develops. And then finally another strength would be the addition of adversarial briefing and advocacy at the fisa court itself through an amicus panel and special advocate. But i do think there are significant weaknesses to the proposal as its currently articulated. It doesnt limit what they call back door searches within section 702, when to basically ar till late what that means. Section 702 is a program of what you might call bulky collection in which theyre certainly not collecting every electronic communication that ever gets transited abroad but they are collecting large categories of communications. Its not all its not narrowly tailored to a single email address or a single term. And once they collect that information, which they have to target to communications they believe to be foreign, theyre going to necessarily acquire communications that are purely domestic, and the communications of u. S. United states persons and the question is once they have that data in a database, who can search it and how can they search it . What can they search it for . Specifically the back door search question is can they search that information once theyve already collected it, for the name, or seed of a u. S. Person . Can they take the u. S. Persons email address, and search the 702 database for communications of that person once theyve already collected them . And if so, do they have to have a warrant, do they have to have reasonable suspicion so that a law does not address that. It also doesnt address bulk collection under section 215 of records that arent call records. So for example theres pretty strong theory that the government is collecting Financial Data in bulk. And if theyre collecting Financial Data in bulk, that would not be covered by the provisions in the current version of the bill that govern collection of call detail records. And also i think the transparency versions are somewhat limited in terms of how the reporting would actually be accomplished, and theres specifically the fbi, which is one of the major actors on the domestic side of this is almost completely exempted from the transparency requirements. And finally i think looking forward, the looming issue and the issue that theyve been considering and others have been discussing is the issue of surveillance under executive order 12333. This is surveillance that has for the most part fallen outside of the traditional oversight mechanisms that have been in place for fisa, and as a result its surveillance that the public and i think most members of Congress Know very little about. Now theres been statements made by a former state Department Official john tye who is an active whistleblower in this area who said that the way that eo 12333 is being used by the federal government by in certain circumstances but he thinks violates the Fourth Amendment specifically what hes implying is that theres a great deal of Data Communications data thats collected outside of the United States, but that involves communications of u. S. Persons. And this is easy to understand when we think about the nature of internet and Telecommunications Networks. Internet communications transit the globe in many different ways. They transit the globe when you know a u. S. Person sends an email to outside the United States. They likely transit the globe even if we send it within the United States, depending on how the packets are routed. And also, the companies that provide these services, like google and yahoo have servers outside the United States and for redundancy purposes, many times theyre transferring that data back and forth over the border. And so, a great deal of Domestic Communications are sort of subject to collection outside of the United States, out beyond the rules of the fisa, and when those communications are collected again we ask the same questions that we do about 702. Who can access them . What are the minimization rules . And who can search them . And sort of who oversees that process . So thats really going to be the question going the main questions Going Forward in that area. And with that i can turn it over and have some questions. [ applause ] thank you, alan. A quick administrative point. As you head out when youre ready to go for the break, please pick up the thumb drive which has the documents, to which bernie and harry made reference. If you didnt pick up the printed versions, the thumb drives are available at the registration desk. Secondly, this is a cle program, and so we have evaluation sheets also available on the materials. So please consider rating our presenters. And im very pleased with the presenters, and the quality of the excellent work that theyve done. Now its your turn. Unfortunately we have only about five minutes. So i welcome your questions. Please. And keep confidential your identities so we dont know who is asking the questions. I have a question for mr. Butler about the usa freedom act that would impose some limits on surveillance. And collection and monitoring. One, are there time limits on record retention . Yes, so traditionally the time limit has been five years. I believe that the u. S. Current version of the usa freedom act retains that fiveyear period. And another question is do both the house and Senate Versions of this legislation now agree that there should be a amicus panel or special advocate . This is something that was contested by u. S. District court judge john bates who at one time was chief judge of the fisa court. Right, so the house version, to clarify a bit of the procedural posture, the house version has passed out of the House Judiciary Committee and was passed by the full house. And the Senate Version is different. And is, i believe, being considered by the senate Judiciary Committee or might have passed out of the Judiciary Committee. Regardless it has not passed the full senate. Both versions, i believe, have amicus panel at this point. But youre correct that judge bates has been sort of an outspoken advocate and somewhat contentiously hes written in his voice as the administrator of in the Administrative Office of the executive courts hes spoken sort of for the judiciary on this question and its not clear that hes actually been authorized to do that. And other judges have written about that. But thats somewhat next question. I have a question on foia. I have a vague recollection that obama either made a statement or issued an executive order that foia during his administration should be more generously interpreted, more broadly interpreted visavis how it was being handled under bush and there was more denials of foia requests. In your sense do you think that has come to pass or not . The 2009 document which shes referring to was issued soon after the inauguration of president obama. We call it the holder memo, but it was attorney general holder who was replacing or basically vacating what the george w. Bush administrations attorneys had. So the holder memo in january or february of 2009 was extremely supportive of Public Disclosure and theres a wide spectrum of opinion of how effective that was. Dogs bark and cows moo and administrators dont like to disclose things, regardless who is at the top of the agency. From my perspective as a viewer, the holder memo has not been implemented. But i am encouraging our colleagues for comments. Bernie . I dont have any strong feelings about it, but i think it would be hard to be more conservative as far as providing documents on the Bush Administration. So my sense is that the administration is a little bit more willing to provide documents that they would have an argument for withholding under foia. I certainly dont have any kind of empirical evidence to support that. Harry . I think this is a perfect example of the saying, he talks a talk but doesnt walk the walk. The Obama Administration i would say that the holder memo which implements a memo that came out under obamas signature i dont think is an executive order, but this administration has said some of the best stuff about foia, that any administration in memory has said. But when push came to shove, they have been performed much better than the other administrations. I think a lot of people thought that this administration was going to be considerably more open. It just hasnt been. And actually theres legislation that has passed the house and is currently being dickered with in the senate, and probably will not pass during this congress, but one of its features would be a amendment changes in exemption 5 in the delivery process privilege, largely because thats considered in the foia community to be one of the most abusive exemptions used in government. And that has not been the abuses have not been any better under the Obama Administration. So, you know, basically its been id say a lot of people would say this is more talk than action. The talk has been extremely elegant. Certainly, make your own judgment. When you read the holder memo, its significantly open. When you sit in ohio and work as i do on issues involving the natural gas fracking and you look at it and say, why wont the army corps of engineers tell us what they have been doing to support the drilling under the lakes . They released one memo that has one line that says let us know how our engineers can help you, exxon, find more gas under our lakes. And the bomb trains, that is the 100, whatever the right word is, utilitysized rail cars full of material coming from the shale in north dakota. Its coming through the rail lines. I have been an elected official in a community with css. We are trying to find out whats in the bomb trains and how many of them are there. Bomb train is my word. Not theirs. How many are coming and when are they coming . And the answer is, we cant find out. And its damn frustrating for the local elected official not to be able to get this information. Ill spare you my grief and turn to alan. Alan . I think as a foia litigator and requester, weve certainly not experienced a wealth of additional transparency under this administration. And i think partially whats happened is theres been a pivot by the Obama Administration away from foia, towards open data endeavors. Right . So theyve done a lot in terms of creating new portals. For foia, and portals for data. Gov and sort of opening Government Data sets. But they havent been doing much to improve the foia process for requesters or litigators. And i also they that there was a disconnect between also between how foia is handled lets say by ojis and department of justice versus how foia is handled by litigators in the civil branch and weve seen some really extreme claims by government lawyers in the civil branch that i dont think even the department of justice, ojis, would support. It really has been remarkable the gap between what the Obama Administration has said on paper and what they are allowing their staff people to do. We have time for one more question. Anyone who would like to ask a question . Please . Well thank you very much on behalf of the committee. We would encourage you if youre not a member, join the section Administrative Law and regulatory practice. Please join the committee on government information privacy. Because this is really relevant stuff. This is very, very significant Administrative Law. We need your brains, and your wisdom. Thank you very much and have a good afternoon. [ applause ]. Throughout campaign 2014, cspan has brought you more than 130 candidate debates from across the country in races that will determine control of the next congress. And this tuesday night watch cspans live Election Night coverage. To see who wins, who loses, and which party will control the house and senate. Our coverage begins at 8 00 p. M. Eastern with the results and analysis. Youll also see candidate victory and concession speeches, in some of the most closely watched senate races across the country. Throughout the night, and into the morning, we want to hear from you. With your calls, facebook comments, and tweets. Campaign 2014 Election Night coverage on cspan. Alaskas democratic senator mark begich is running for reelection against republican challenger dan sullivan. Heres a look at some recent campaign ads. Im megan sullivan. Youve seen a lot of ads attacking my family so i wanted you to know the facts. Alaska has been my familys home for generations. My dad is teaching my sisters and me to handle a rifle, fish, and be strong, independent, honest women. Weve learned a lot about sacrifice from his service in afghanistan. And were all proud of his work to protect alaskan women from domestic violence. Dad will be a great senator for alaska. Im dan sullivan, and i approve this message. When were young, our father loved to bring us here. To this spot. When things seem impossible, i try to do what he would have done. Like when i took on obama to open up drilling in the arctic. I also took him on to protect our gun rights and exempt alaska schools from no child left behind. Im fighting like hell to fix the Health Care Law so it works for alaska. Im mark begich, i