PENTAGON SAYS ALL OF GOOGLE’S WORK ON DRONES IS
EXEMPT FROM THE FREEDOM OF INFORMATION ACT
March 25 2019, 2:54 p.m.
Illustration: Soohee Cho/The Intercept
IN SEPTEMBER 2017, Aileen
Black wrote an email to her colleagues at Google. Black, who led sales to the
U.S. government, worried that details of the company’s work to help the
military guide lethal drones would become public through the Freedom of
Information Act. “We will call tomorrow to reinforce the need to keep Google
under the radar,” Black wrote.
According to a
Pentagon memo signed last year, however, no one at Google needed worry: All
5,000 pages of documents about Google’s work on the drone effort, known as
Project Maven, are barred from public disclosure, because they constitute
“critical infrastructure security information.”
One government
transparency advocate said the memo is part of a recent wave of federal
decisions that keep sensitive documents secret on that same
basis — thus allowing agencies to quickly deny document
requests.
“It is the path of least resistance that enables the agency to
avoid detailed review of records.”
It’s been a full
year since the first reports of Google’s work on Project Maven,
and the public still knows precious little beyond the basic gist of the story:
that Maven would use artificial intelligence to help pick out drone targets
faster and more easily, and that Google backed out of its Maven contract amid
staff outcry. (Maven is now linked to defense startup Anduril Industries.)
Black’s email was obtained and partially published by The
Intercept last year.
Was Google’s
work for the Pentagon really not intended to be used for lethal purposes, as
the company later claimed ? What exactly were Project Maven’s “38 classes of
objects that represent the kinds of things the [Pentagon] needs to detect,” as
cited by the Defense Department in a news release? And how accurate is Project
Maven? In other words, what is its rate of false positives?
Neither the
Pentagon nor Google is known for its dedication to institutional
transparency, and so it’s not surprising that these questions remain open.
Luckily, there’s a federal law designed to force the government to divulge
information in the public interest, even when a given agency would rather keep
its secrets. The Freedom of Information Act is a vital tool for journalism, watchdog
groups, academics, and anyone else hoping to bring news to the public about
what its government is doing in its name. But the government says Project
Maven is immune.
In response to a
Freedom of Information Act request I filed more than a year ago, seeking
documents related to Project Maven’s use of Google technology, the Defense
Department said that it had discovered 5,000 pages of relevant material — and
that every single page was exempt from disclosure. Some of the pages included
trade secrets, sensitive internal deliberations, and private personal
information about some individuals, the department said. Such information
can be withheld under the act. But it said all of the material could be kept
private under “Exemption 3” of the act, which allows the government to withhold
records under a grab bag of other federal statutes.
The Pentagon
specifically cited a law permitting government agencies to block the disclosure
of records that pertain to “critical infrastructure security information.” This
designation requires an official explanation from the Pentagon, which The
Intercept received and is publishing below. The memo, signed by Defense
Department Acting Chief Management Officer Lisa Hershman, makes the argument
that Project Maven is so sensitive that disclosing essentially any facts about
it could cause death and destruction. It is dated December 2018, nine months
after I made my request.
“Although there
is value in the public release of this information,” wrote Hershman, “because
the risk of harm that would reasonably result from its disclosure is extremely
significant, I have determined that the public interest does not outweigh its
protection. Therefore, it should be exempt from disclosure.” Hershman claimed
that releasing “information about Project Maven, individually or in the
aggregate, would enable an adversary to identify capabilities and
vulnerabilities in the Department’s approach to artificial intelligence
development and implementation” and that “this would further provide an
adversary with the information necessary to disrupt, destroy, or damage DoD,
technology, military operations, facilities, and endanger the lives of
personnel.”
If this sounds
like an extreme set of consequences for releasing details of software research,
that perhaps helps explain why “critical infrastructure security information”
is largely defined by law as applying not to
code but to real-world property, “including information regarding the securing
and safeguarding of explosives, hazardous chemicals, or pipelines” and
“explosives safety information (including storage and handling), and other
site-specific information on or relating to installation security.” The
argument that there could be disastrous, unintended consequences from
publicizing too much information about the inner workings of a toxic chemical
storage facility is plausible. The idea that the same could be caused by
documents describing software development, even military software, strains
credulity.
According to
Steven Aftergood, director of the Federation of American Scientists Project on
Government Secrecy, the FOIA request denial is “a disappointing move” by
the Defense Department. Aftergood added that it’s “doubtful that there is
really nothing about Project Maven in your request that could be released”
among those 5,000 pages. The “blanket use of the [critical infrastructure
information] exemption represents a continuing temptation for agencies since it
can be a ‘simple,’ expeditious way to close out FOIA cases,” he said. “In a
way, it is the path of least resistance that enables the agency to avoid
time-consuming, expensive, and detailed review of records.”
Kay Murray, The Intercept’s deputy general
counsel, said the blanket denial of the request appears unjustified under
FOIA’s expansive disclosure language and policy. “Project Maven is undeniably
of interest to the public,” Murray said. “We are exploring all options to gain
access to the information about the program that under FOIA can and should be
disclosed.”
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