DOJ Clipper documents scheduled for summer release under FOIA

[gnu]

As you know, there has been much debate about the Clipper Chip 
initiative, but relatively little hard information.  John Gilmore, 
member of the board of directors of the Electronic Frontier 
Foundation, filed FOIA requests to numerous government 
agencies last April after the Clipper plan was announced.  In 
June 1993, he filed a FOIA lawsuit against the Justice Department 
("DOJ") and the Federal Bureau of Investigation ("FBI").
Gilmore v. FBI, et al, C-93-2117, U.S. District Judge Charles
Legge, Northern District of California.

As a result of this lawsuit, the Justice Department has agreed to a 
staggered release of some documents about Clipper and Digital 
Telephony.  The Justice Department and Gilmore signed a joint 
stipulation and agreement on Friday, April 29, 1994, in which the 
Justice Department and several other federal agencies agreed to 
release documents over the next several months:

          a)     DOJ's Office of Information and Privacy ("OIP") will
transmit all documents recovered in its search for responsive
documents that it has identified as requiring referrals or
consultations to the appropriate agencies or DOJ components by
May 31, 1994.  OIP will complete processing of all documents that
it has identified as not requiring referrals or consultations to
other agencies or DOJ components by June 20, 1994.

          b)     DOJ's Justice Management Division ("JMD") will
complete processing of all documents recovered in its search for
responsive documents, excluding documents which have been
referred for processing to other agencies, by July 30, 1994.

          c)     The Office of Management and Budget ("OMB") will
respond to all DOJ consultation requests which OMB had received
as of April 20, 1994 by May 20, 1994.

          d)    The National Security Agency ("NSA") will respond to
all DOJ consultation requests which it had received as of April
20, 1994 by July 18, 1994.  NSA will complete processing of all
documents which had been referred to it by DOJ as of April 20,
1994 for direct response to plaintiff by July 18, 1994.

          e)     The National Security Council ("NSC") will respond to
all DOJ consultation requests which NBC had received as of April
20, 1994 by July 29, 1994.

          f)     The Department of Commerce and National Institute of
Standards and Technology (collectively "Commerce") will respond
to all DOJ consultation requests which Commerce had received as
of April 20, 1994 by August 7, 1994.  Commerce will complete
processing of all documents which had been referred to it by DOJ
as of April 20, 1994 for direct response to plaintiff by August
7,  1994.

The documents being processed by the NSC include the Presidential Review
Directive and Presidential Decision Directive which started the Clipper
initiative.  We have been informed that NSC is processing the two
final versions as well as 68 draft versions. 

We have also been informed that documents produced in the course
of the OMB legislative clearance process for the Digital Telephony
Bill are being processed.  This should provide insight into how the
government decided to proceed with this bill.

We have also been informed that there are approximately 25 
documents produced in the course of the government's solicitation
of industry views on Clipper. 

Obviously, we do not know how much useful information will be
released.  It is probable that the documents will be heavily redacted.
Given the recent directives from the President and the Attorney General
that all possible discretionary disclosures of information should be made,
we hope, optimistically, that these disclosures will prove illuminating.

Unfortunately, the FBI is not a party to this agreement.  We are in
the process of attempting to obtain the release of about 3000 pages
of FBI records.  FBI has told the Court that it will be approximately
2 years and 8 months before it will even begin processing Gilmore's
request, and that actual processing will take about a year, if not more.
We believe that this delay is unlawful and cannot be countenanced. 

The FBI offered to complete its processing a year from when we sign an
agreement; we believe they should process these documents in a maximum
of six months (which would be a year and a half from our original FOIA
request).  Note that this processing time only includes their initial
response to us; they will undoubtedly withhold many documents and
parts of documents which we will contest the withholding of.  This
will take additional time, probably years.  Because we and the FBI
have been unable to agree, we have presented this controversy to the
Court, and Judge Legge will decide what deadlines to impose on the
FBI.

The agreement mentioned above does not include NSA except to the
extent that NSA is reviewing documents submitted to it by the
Department of Justice.  We also filed a FOIA request with NSA for all
of its documents on Clipper, and have received no response after a
year.  We have an existing lawsuit against NSA's pattern and practice
of delay in responding to FOIA requests.  Depending on how that suit
develops, we will take some kind of legal action to force them to
respond.

Lee Tien (Attorney for John Gilmore) and John Gilmore
tien@well.sf.ca.us			 gnu@toad.com

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