Government Demands Whistleblower Organization’s Encrypted Files

Originally posted at Firedoglake.

For those people who still do not believe we have crossed a terrible line into a Post-Constitutional state, here’s another chance to repent before we all go to hell.

The Department of Veterans Affairs’ (VA) in-house watchdog has demanded that the Project On Government Oversight (POGO) turn over all information it has collected related to abuses and mismanagement at VA medical facilities, according to a subpoena delivered to POGO May 30.

The VA is part of the federal government. POGO is a private non-profit group.

The subpoena from the VA Office of Inspector General demands all records POGO has received from current or former VA employees, as well as any other individuals, including veterans. The subpoena asks for records related to “wait times, access to care, and/or patient scheduling issues at the Phoenix, Arizona VA Healthcare System and any other VA medical facility.”

POGO refused to provide the records, most of which have come from confidential tips submitted through VAOversight.org.

Background

The Project On Government Oversight has for 33 years helped government whistleblowers. They are scrupulously non-partisan and very dedicated to exposing waste, fraud and mismanagement in Washington. They’re part of the reason we know that the Department of Defense wasted billions on things like a $7,600 coffee maker and a $436 hammer. They are very active in trying to bring some modicum of transparency to what the NSA is doing.

The Veteran’s Affairs disaster is well-known. In short, the VA, which should be helping returning service members with their health problems, instead has been hiding their impossible wait times for appointments. They got caught for some of what they did already, but to ferret out more, POGO set up an online drop-box where people could submit tips and blow the whistle anonymously. Much of the information POGO received– which could very likely help veterans– has been submitted by persons from inside the VA. After all, who knows more about what the government is really doing (or not doing) than those who work inside? Sadly, those same workers also know that today, blowing the whistle is considered a Crime Against the State, and they do not wish to go to prison simply for informing the American people what the People’s Government is up to.

Drop Box

As a way of helping those who wish to pass on information that may help our veterans, POGO created an online drop box. This is the equivalent of an email Inbox, except it is secure. POGO advises “To maximize your security and anonymity, you should consider using the Tor Browser Bundle for all of your electronic correspondence with POGO. You should never use a government or contractor phone, fax, or computer to contact POGO. The information you submit from this page will be sent to POGO in an encrypted message.”

Some VA employees who contacted POGO and requested confidentiality said they feared retaliation if their names were divulged. Some of the employees told POGO that they had already filed reports with the VA. You know, through channels.

Encryption still pretty much works. And the government knows that. That’s why, instead of trying to decrypt the VA whistleblowers’ messages to POGO, the VA has simply demanded them from POGO, unencrypted, via subpoena.

Subpoena

A subpoena is an order to do something, most typically to produce a document or appear in court.

Wait a second. How can the Veteran’s Administration be able to “legally” demand documents from a private, non-governmental entity like POGO anyway? The VA’s Inspector General, whose real job is supposedly to inspect the VA and root out waste, fraud and mismanagement, has subpoena powers that are supposed to be used for that purpose.

All other federal Inspectors General have the same power. So does Congress. These subpoenas have the titular power of law. They have the same power that a real court has to demand documents be produced. These sorts of subpoenas are authorized within the agency itself, and do not require probable cause or a court’s approval. They are considered administrative acts and occur with no outside oversight.

That said, subpoena power was never intended as a blunt tool to chase down whistleblowers even as the organization they’re blowing the whistle on fails in its mission. You’d think that the VA Inspector General has gone rogue here. But that’s not true. This is 2014 and we’re in Post-Constitutional America.

Subpoenas and the Old Fourth Amendment

The Department of Justice created a novel interpretation of the Fourth Amendment that currently allows it to access millions of records on Americans without search warrants. To clarify, a warrant is court permission to search and seize something. A warrant must be specific– enter Mr. Anderson’s home and look for drugs. Warrants are not free-hunting licenses (with exceptions) and cannot be general in nature, such as search everyone around 93rd Street for whatever illegal things they might have laying around.

DOJ has turned all that around. It claims now that under the Fourth Amendment, it can subpoena an Internet company such as Facebook and demand they look for and turn over all the records they have about Mr. Anderson. DOJ isn’t searching, per se– they are demanding Facebook do that for them, so no warrant is needed. Worse yet, DOJ believes it can subpoena multiple records, maybe all the records something like Facebook has, with one piece of paper. The same thing applies, DOJ claims, to email. If they came to someone’s home and demanded access to that person’s emails, it would require a specific search warrant. Instead, if DOJ issues a subpoena to say Google, they can potentially vacuum up every Gmail message ever sent.

The Department has continued this practice even after a federal appeals court in 2010 ruled that warrantless access to e-mail violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act also makes clear agents do not need warrants to access email in bulk when pulled directly from Google, Yahoo, Microsoft and others.

Snowden was Wrong

Edward Snowden, along with many others, has said that the best tool right now to defeat the NSA and other government spying is the use of encryption. It is possible that some forms of encryption are not breakable by the NSA. It is likely that breaking other forms of encryption is slow and/or expensive to do on a world wide web-scale. It is a race of course, between how many supercomputing algorithms the NSA can throw at the problem and the cleverness of the people creating new forms of better encryption.

If the government can access documents and information with a simple piece of paper– a subpoena– then all the encryption in the world is pointless.

POGO says they’ll fight, and that their people are willing to go to jail instead of releasing any documents. Let’s believe them. But the possibility of the government getting the documents is likely enough to scare off would-be whistleblowers from submitting anything new. And not every whistleblower organization has the guts and the resources of POGO to fight back.

The race for privacy may now be over, and the government is laughing at you still running around the track while they cut across the grass to the finish line. Suckers.