11-18-25 - 9am - Protective Redaction Techniques and Pseudonym & FOIA

Episode Transcript

Speaker 1 (00:00):
I'm out doing my kennels right now, and my dogs
say hello because they do not want to hear a
Kamela kettle.

Speaker 2 (00:06):
Have a great day.

Speaker 3 (00:08):
Wow, you don't know how close you were. That talkback
was just left a few minutes.

Speaker 4 (00:14):
Oh really, maybe we should remind this audience that if
we don't get talkbacks at the beginning of an hour,
that there will be the Kamala cackle. There is punishment, Yes,
there is punishment.

Speaker 2 (00:26):
So we we're bene have little dictators, is what we are.

Speaker 4 (00:29):
We hold up our end of the bargain. You just
have That's right, but I do. I did enjoy the dogs.
How many dogs do you think there were there? Weren't
that kennel right there? There had to be that. I'm
guessing eight to ten dogs.

Speaker 3 (00:41):
I think I heard three, so I don't know how
many more there were, but you know, yeah, yeah.

Speaker 2 (00:47):
And I wonder if those were all her dogs? Does
she mean, like, does she have a kennel runs a
kennel right? Or were those all her dogs?

Speaker 1 (00:54):
You know?

Speaker 2 (00:55):
One time I had we had three Saint Renards.

Speaker 3 (00:58):
What's the proper number of dogs? How many dogs are
too many dogs?

Speaker 4 (01:02):
Three Saint Bernards are too many dogs. Yeah, two, two's okay.
Two Liamburgers were okay. Three Saint Bernard's was over the top. Yeah,
it was a little difficult. Now, don't get me wrong.
If they were fine and they attracted a lot of attention,
but it was like.

Speaker 3 (01:18):
Uh, textas Texas, Mike or Michael at three three one
oh three see one zero very good, very good. It
just doesn't sound right, it doesn't feel right. Three three
one oh three, Mike or Michael, And let us know
how many dogs are?

Speaker 4 (01:33):
Too many dogs? What's the area code where we're sitting
right now? What what's the area code for? You know,
an area code?

Speaker 1 (01:40):
What?

Speaker 2 (01:41):
What's the area code for what? What?

Speaker 4 (01:43):
What's the primary first area code for Colorado? Three three? Nope,
it's three zero three seven two oh three zero three
seven two zero seven seven?

Speaker 2 (01:52):
What you got that one? Right? Got that one? Right?

Speaker 4 (01:55):
K zero is as I recall, you're a lousy speller, right,
very much so, Uh spell the word uh specific?

Speaker 3 (02:07):
Oh goodness specific s P E C I F I
C very good.

Speaker 2 (02:12):
Real. Yeah, that's absolutely correct.

Speaker 4 (02:15):
But let's say this would be easier for people to
picture speedial the word federal.

Speaker 2 (02:22):
Oh uh f E D E R A L. Yeah, yeah,
two for two.

Speaker 4 (02:27):
But you could have spelled f E D E R
l E federal, or you could have in place of
the A, you could have put a little tendall or something,
a symbol, a dollar sign something, or maybe instead of
an A, you could have put the at sign.

Speaker 2 (02:44):
Sure. Yeah, yeah, as the kids do these days.

Speaker 4 (02:46):
Yeah, as all the kids do, and also as federal
bureaucrats do.

Speaker 2 (02:51):
Wait, but yes, yes.

Speaker 4 (02:53):
When I first went to d C as the general
counsel at FEMA, I yea. I sat down with all
the lawyers and and we had you know, it's like
a giant law firm. Every agency and department has like
a giant law firm. And there are lawyers that deal
with program issues. There are lawyers that deal with legislative issues.
There are lawyers that deal with the CODA federal regulations,

(03:16):
you know, and all the regulations and policies and rules.

Speaker 2 (03:18):
There.

Speaker 4 (03:19):
There are lawyers that deal with nothing but Freedom of
Information Act requests. So you have, oh, then you have
civil cases, you have criminal cases. You have lawyers that
deal with these inspector general So it's like a giant
law firm and you have all these different specialties in it.
And one of the ones that caught my attention at
the very beginning as I sat down. You know, because

(03:40):
when you first go, as I've explained earlier, when you
first show up, it's you're there as a consultant until
your nomination. You know, depending on whether you're going through
a Senate confirmation or just a presidential appointment, you really
get hired as a consultant initially, so you can at
least dig in and start trying to figure out what's
going on. So my first meeting with this with this

(04:00):
Batchel lawyers, and by the way, I'm not really quite
sure what you would call a batch of lawyers, a
herd of lawyers, a gaggle of lawyers. I'm not sure
you know, pain of lawyer. Careful, careful, what pain in
the of lawyers could be?

Speaker 2 (04:17):
Could be? Yeah, but you know, hemorrhoid of lawyers.

Speaker 4 (04:20):
You can there, you go, that's it, Yes, a hemorrhoid
of lawyers, that's what that's what you call it.

Speaker 2 (04:25):
Gaggle of lawyers.

Speaker 4 (04:27):
And I'm going through in there, each explaining to me,
you know, like well, one person for each of the
divisions would explained to me what they were doing. And
I get to the Freedom of Information Division, and they're
talking to me about, you know, their procedures and what
they do. And I ask a very simple question, what's
the backlog? What the backlog? I'm responding to requests for

(04:50):
information from?

Speaker 3 (04:51):
No?

Speaker 4 (04:51):
Because remember DHS did not exist at the time, there
was only FEMA, So what what what are what is
the backlog? What is the backlaw? And I don't remember
the number, but it was astonishing. I don't know, say
a thousand, So out of out of two thousand requests,
you're a thousand behind. What's the oldest? Well, maybe maybe

(05:15):
nine months, Maybe might be a year that there there
might be one in there a year. Well, don't you know.
Can't you explain to me what number the number is
and what the backlog? No, well, we'd have to go
look at that. Well don't you think you would have
wanted to explain to the General Council exactly?

Speaker 2 (05:34):
You know? How many?

Speaker 1 (05:36):
You know?

Speaker 4 (05:36):
Give me some stats, Give me some stats about how
many do you get? How long does it take you
to respond? What's your average? What's the longest, what's the shortest,
What is the greatest number that come from say Congress,
or come from citizens, or come from another department or
just some from N G O or whatever. They couldn't
They couldn't tell me squat about it. Why do I

(05:57):
talk about the spelling because a single letter s E
d E r at sign l amber sign. You can
put an amber sand in there too, But the app
the apt symbol that can hide a scandal. For example,
take Eco health. You remember Ego Health, the ones that

(06:20):
were doing the game of function study over in Muhan.
Change that to ec tendall health. You will tendle this
little wiggly line sometimes used for approximate, or change the
word anderson A N D E R s E N
to ender s dollar sign in.

Speaker 2 (06:42):
And then you know what happens.

Speaker 4 (06:45):
The email or the document that should surface in response
to a Freedom of Information act that quietly disappears from
the search results because you're doing a word search. You're
looking for the word federal f d e r a L.
But someone decided to be really clever and in their

(07:07):
email put fd R at sign L. There's a name
for that. It is the protective reduction technique. It is
the practice of using pseudonyms or a deliberate misspelling, or
some sort of creative abbreviation, so that you and I

(07:30):
are kept in the dark about public business technically public,
but practically invisible.

Speaker 2 (07:36):
Yeah, this is what they really do. This is what
bureaucrats know.

Speaker 4 (07:40):
This is why I say that they're technically or generally overpaid,
and we could do with that. A lot of them
and the ones that are there, are you generally doing
things that are meant to design to keep you in
the dark about what's really happening. At the federal level,
Congress needs to outlaw that practice. They need to make
it illegal. In fact, I would go so far as
to make a crime subject to removal from your position

(08:03):
if you engage in that activity. Now, I know that
a guy like Dragen would last about a week because
he would say, you know, when he sends me emails,
I have to I have a person at home that
actually use I have a I have a Google machine
or an AI machine or something that I use to
interpret Dragon's emails for me because he can't spell worth

(08:24):
But this.

Speaker 3 (08:24):
Is even worse than just bad spelling. If they're putting
the AT symbol or dollar signs in or you know,
the hashtag pound symbol what that that's even worse. Yeah,
I agree, with you that should be punished. If I'm
just a bad speller, may you yell at me first,
But all these other guys that are putting I'm thinking.

Speaker 4 (08:41):
About on the end of the person who's making the
follier request. So I'm looking for these keywords. So again,
let's go back to federal. So you have you'd have
to put in every possible iteration you can think of
with the word federal in order to do it, which
most people are not going to do because you who
would think that, who would ever think that the federal
government might be trying to hide something from you? I

(09:04):
know that, I know that most people out there listening
in radio land right now. I know is that the
is that the universal symbol.

Speaker 2 (09:12):
For the shockface? Got it all right?

Speaker 3 (09:15):
Now?

Speaker 2 (09:15):
I want you to imagine the problem.

Speaker 4 (09:17):
So an ordinary citizen, you suspects that some powerful government
official has intervened in a case. They've intervened in some
sort of case. So you file a four your request
for all emails that mention Jonathan M.

Speaker 2 (09:31):
Roberts.

Speaker 4 (09:32):
So the agency, you know, very carefully and dutifully searches
its servers for that string of characters that spells Jonathan M.
Initial M period Roberts. You might leave out the period
sometimes too. You might just and you might just look
for Jonathan Roberts. You might look for Jonathan capital M
no period Roberts or Jonathan capital M period Roberts, no records,

(09:57):
no records. In reality, the key emails refer to Jonathan
spelled with an E N M Roberts. Now, Hugh and
I might infer that this is the same man if
you're looking at it, But a search engine doesn't do that.
By simply changing two letters, the agency has created the
appearance of transparency. Oh, we looked, researched, and here's what

(10:21):
we got back. We didn't get anything, while preserving secrecy.
Where it matters the most, the record does exist. But
for all practical purposes, the record does not exist. Protective
redaction is not traditional redaction. You know when an agency
You've seen these documents online somewhere where an agency might

(10:41):
block out someone's full name, or they might block out
their social Security number, or they black out their the
domain for their email address or something that's personal that
is not subject to a Freedom of Information Act request.
But this practice of protective redaction keeps the name visible

(11:03):
to any reader who already knows what to look for,
yet invisible to an algorithm that powers for your searches,
or that powers court e discovery tools, and for that matter,
even the endusing systems of the National Archives. So instead
of withholding the official just misspells, instead of redacting the

(11:25):
official abbreviates, you might as well just shred the file.
The result is the same as a shredded file, only
it's actually harder to prove what brings all this up
recent investigations of the National Institutes of Health. Remember the
good old NIH and COVID and the shutdowns. I know

(11:45):
you'd like to forget about it, but I'm here. I'm
here to irritate you and to continue to remind you
of things that you want to forget about, like the
shutdowns and how and how we all, like a bunch of.

Speaker 2 (11:54):
Sheep, just said, ooh, we're scared of this virus. Oh
my gosh, we better sit down and you know, go
to the restaurant.

Speaker 4 (12:01):
You go walk through the restaurant because the virus is,
you know, up there, so wear a mask as you
walk through the restaurant. But the virus doesn't know when
you sit down. So when you sit down to ed
it's okay to take your mask off, Kimney Chris. I
remember watching people in restaurants who would keep their mask
on and look, I'm nosy. I know I'm nosy, but
I couldn't stop watching them. They lift their mask up

(12:23):
and put a bite of food in their mouth with
the mask back down and show it, and I thought, Wow,
you're really some kind of stupid, You're really some kind
of paranoid, and you're also some kind of person that
you're precisely the kind of citizen that an all powerful,
trannical government would love to have. Just do whatever we
tell you to do. Emails at the National Institutes of

(12:45):
Health from David Morin's, who's a longtime advisor top Brandthony
Fauci shows him brigging that he had learned from their
fo you lady here how to make emails disappear after
I'm foyied, but before the search starts. He did that,
describing how he deleted messages and then rated sensitive discussions
to personal accounts. There's a House oversight memo, and subsequent

(13:08):
reporting reveals that Greg Fucker's, Falci's former chief of staff
at the National Institutes of Allergies infectious diseases. The NIAID
repeatedly wrote ec tendal health instead of ecal health. That
alter the spelling of key scientists' names, such as Christian

(13:29):
Andersen and not Christian like with the C, but Christian
with a K, in ways that would predictably and purposely
defeat keyword searches. Now, the experts in open government describe
that pattern that they've discovered now as shocking disregard for
your right of access and quite frankly, a pattern and

(13:51):
practice of avoiding Freedom of Information Act requests.

Speaker 2 (13:56):
HM, and we're.

Speaker 4 (13:58):
Supposed to be shocked by this. Now, I want you
to understand these are not isolated lapses in spelling. These
are adversarial misspellings. To borrow a term from the machine
learning literature, from the artificial intelligence literature. These are adversarial
misspellings designed to exploit the brittle way that computers match text.

(14:22):
They literally look for a literal match. Now, legal technologists
have warned that technology assisted to review and discovery. For example,
for lawyers, when they're doing discovery, that by discovery, I
mean they're doing there, you know, there's they get they
get a they get a batch of documents and the

(14:44):
documents come in two forms. They come in a box,
so that you know, some poor little paralegal can digt
through the boxes and see what's in there. They also
come as electronic files, and so as a lawyers searching
for the evidence searching through evidence, the same thing happens
law firms. So the legal technologists are also warning us

(15:04):
now that technology assisted review in discovery as you're doing
the research, can also be gained by carefully introducing typos
or code words that cause the algorithms to misclassify documents
or to miss them entirely. Computer scientists to study. Think
about this, your computer scientists, and this is your specialty,

(15:26):
studying adversarial text permutations. They have found that very small
semantics preserving changes in spelling can actually degrade the performance
of text classifiers, which is exactly what full you search
tools and document review platforms are designed to do. So,
bureaucrats who adopt protective reduction, they are not innocent victims

(15:50):
of those vulnerabilities. They are indeed the adversaries. My point
being the government is your adversary. Now, the practice has
another form, probably more familiar, the use of full blown
pseudonyms by senior officials undertaking public business. James Comy eventually

(16:11):
admitted that the dot at former bu that's an account
on X it used the display name Ryan hold Neber
was actually James Comy, and it was his habit to

(16:31):
use that pseudonym to post on X so people would
know that it was him.

Speaker 2 (16:39):
It makes me.

Speaker 4 (16:39):
Let me just stop hearing a parenthetical. You know, my
wife's gotten into a habit of and I don't blame her,
but it drives me crazy sometimes. Did you see this
video of such and such and such on Facebook.

Speaker 2 (16:53):
Or X or whatever?

Speaker 4 (16:54):
Like, No, why do you think it's real? They'll show
it to me. Let me look at it. Now, that's
not And so you have to start. You know, for
those of you that are new to me, but my
other audience knows that. I talk about how you have
to be a discerning consumer of news. Well, now not
only do you have to be a discerning consumer of news,

(17:16):
you have to be a discerning consumer of info, whatever
you might see on any of these platforms. So now
let's talk about James Comy and what he was doing.

Speaker 1 (17:28):
Hey, Michael, I'm just wondering what the current gooper count is.
Did you lose any goopers that couldn't find you on
the new K zero A, and were you able to
gain any goobers from the old K zero A group
that found your new show. Anyway, I just want to

(17:48):
let everybody know it's a okay on K zero A.

Speaker 2 (17:54):
Yeah.

Speaker 4 (17:54):
In fact, we found so many new ones that were
now like a clown car and we're all just ten
there because we only had twelve plus the alternate and
now it's it's like up to thirty four at an alternate.
So it's really kind of Crampton here. But you know what,
I just wish some of you would bathe because the
tar really kind of stinks.

Speaker 2 (18:14):
Way you need to lay off the onions and eggs, yes, please.

Speaker 4 (18:18):
And then goober number nine one sixty nine caught me.
You caught me, yep. I kept saying tendall, not till
till tilled. Yes, that's the little squiggly symbol you were
thinking of tender Actually, you know what, I don't know
what I was thinking, but when I when I read it,

(18:39):
the first thing I thought of was I used to
represent a state trooper whose last name was Tendall. Oh, okay, yes,
represent him in a federal court case. So I don't
know what was good. Look, I've only had about a
third of my diet coke this morning, so just back off. Yeah,
we're not awake yet, that's right. Just back off. Back

(19:00):
to the story about now, about James Coomy, when you
in internal communications commy would slip in deliberate misspellings of
politically sensitive names, using Weener into Wiser, or Clinton into Clinton,
and Abidin as an Abidin into Abdeen. That's a pattern

(19:25):
that mirrored the logic of what I'm referring to as
protective redaction. That was his way of keeping te key
terms from being easily discovered through a full year request
or an open records request or even legal discovery in
a lawsuit. Now, I don't think there's anything inherently wrong
with an FBI director lurking online if you want to

(19:49):
use a fake account because you want to. In fact,
some people might actually have a fake account for the
very purpose of lurking online. I don't want maybe people
to know that I'm online, but when I do, I
use my real at Michael Brown USA on X which,

(20:09):
by the way, you should be following me on X
at Michael Brown USA.

Speaker 2 (20:14):
So I don't think it's inherently wrong.

Speaker 4 (20:17):
For example, I was always given the opportunity that if
I wanted to have a private email address, it would
it would still be a dot gov address, but instead
of you know, Michael Brown at DHS dot gov, it
might be Boso at DHS dot gov, which obviously be
very appropriate. But I chose not to do that simply

(20:37):
because those would still be subject to foil you and
I didn't want to get into a laxadaisical attitude about,
oh I'm emailing on a government server, I still need
to pay attention to what I'm saying, So I just
didn't do it. Although lots of lots of For example,
it's fairly typical of a Cabinet secretary to have, let's say,

(21:00):
to Liza dot Rice at white House dot gov. But
also she might have something that would be like a
football fan at white House dot gov, so that she
could email back and forth if she just didn't want to,
you know, she wanted to. She just wanted it not
to be uh in in that official capacity, even though

(21:22):
it's still discoverable under FOYA. So don't get me wrong,
I'm not I'm not bitching about the fact that that
James Comy is using a pseudonym to work online. But
I am if he's using that to avoid a foy
your request, because the public cannot foil you a pseudonym,

(21:43):
And if you subpoena a fake name in a civil suit,
well that would be an absurdity. Yet that is exactly
how James Comy chose to speak into the public square.
Joe Biden's use of aliases when he was vice president
is more troubling because he appears to have done it
and spilled directly into the realm of official communications.

Speaker 2 (22:03):
The National Archives has told us.

Speaker 4 (22:06):
That Biden, while serving as vice president, used accounts tied
to the names Robin Ware, Robert L. Peters Jrbware, including
a PCI dot gov email address under the Peter's identity
Van House. Republicans and Public Interests litigants had pointed out

(22:27):
that some of the emails to or friend those accounts
actually involved foreign policy calls, briefings for President Obama at
the time, or topics where Biden's family business interests overlapped
with his official duties, obviously Ukraine. Whatever you think about
those allegations, a basic point should be uncontroversial. When the

(22:48):
vice president of the United States corresponds about public business,
the emails should be under his own legal name and
accounts that are easily traceable to that office. Nor is
this purely the advice mitt Romney now perhaps most famous
as Pierre Delecto. That was his It was his fate name,

(23:10):
Pierre Delecto, probably more famous as Pierre Delecto than as
the twenty twelve nominee. He admitted that he maintained a
secret ex account with that alias for years, and he
used it to monitor and sometimes respond to political commentary. Now,
defenders of Romney would say that he used it mostly
to lurk, not to conduct government business. And I don't

(23:32):
know that may or may I'll be true. I just
don't know. But the bipartisan nature of alias culture is
precisely my point, because when that is left unchecked and
nobody is watching, that both parties will continue to normalize
the idea that elect officials can live a second, unaccountable

(23:53):
life online, a step away from a subpoena, a step
removed from a foyer request, and ordinary schmucks like you
and me and our ability to see what they're or
our representatives are saying and doing becomes pretty much worthless
h don't forget that what you see or what you're

(24:19):
told does not exist may indeed not be the truth.

Speaker 1 (24:24):
It speaks volumes. When they have to manipulate spellings of
names to avoid a FOIA request definitely means they're hiding something.

Speaker 4 (24:35):
And I want to make certain that people that all
you goobers understand that if and I use Condoleeza Rice
as an example, and I don't know whether Condoleezer had
Rice had a separate alias or not, but sometimes that's
a good way to keep your inbox clean of spam,
because if you understand the naming protocol for government websites

(24:59):
or government emailedge dresses, it's pretty easy to start spamming,
say the Secretary of Agriculture. So if the Secretary of
Agriculture wants to use an alias but conduct official business
using the alias among their federal employees or the White
House or someone, I don't have a problem with that
as long as they stick to government business. And if

(25:21):
there's a Foyer request, the foiler lawyers know that they
should also look for you know, Cornfield at you know
dot gov, at agg dot gov, whatever whatever the alias is.
But Congress can and Congress should close this stupid productive
reduction loophole by defining protection of protective reduction as a

(25:47):
distinct form of personnel misconduct. You could draft a statute
very very concisely, very precisely, it would make it unlawful
for anybody that's covered by FOYA to conduc public business
under an undisclosed pseudonym or in a least account, whether
that's email, a message.

Speaker 2 (26:06):
App, or social media.

Speaker 4 (26:08):
And there could be some narrow enumerated exceptions for say,
undercover or obviously classified operations. And second, they should prohibit
deliberate distortion of identifying information such as names of persons, entities,
or key organizations in any record that is reasonably likely

(26:29):
to be subject to fool you state open records laws
or for that matter, legal discovery. Where the purpose of
a misspelling you know, the accident you know again. I
use Dragons as an example as a lousy speller. He's
if he were working for the government, I can absolutely
see him misspelling a word, although truthfully well for example,

(26:53):
pseudonym no ain't gonna even come close to spelling that one.

Speaker 2 (26:57):
But if you if you need to start a try no.

Speaker 3 (27:01):
Sense with a P not ans like it sounds Okay,
that's about it, And.

Speaker 2 (27:05):
Could you get the first three letters?

Speaker 4 (27:07):
Do you think a ps PS is beyond that?

Speaker 2 (27:12):
You don't whether it's or UD actually the oh well see,
there you go. But my point, my point was going
to be this.

Speaker 4 (27:20):
I think a lot of common words that that's a
very good one to use as an example of contrary
to what I'm about to say, and that is that
most of these platforms and software programs we use do
autocorrect and we'll even start to spell out the word like.
It drives me nuts on text messages where you start

(27:42):
to type something and automatically starts to fill in. No,
that's not what I wanted to say, but there there
can be exceptions where people honestly make a mistake.

Speaker 3 (27:52):
When I try and do text message, even autocorrect us
and I don't know what what you're saying, but just.

Speaker 4 (27:57):
Deliberate distortion of information has got to stop, and there
should be real consequences for it. There's including say an
evidentiary presumption against an agency that engages in protective reduction,
and then maybe personal sanctions for officials who systematically use
protective reduction. And if you take my approach that I

(28:22):
think respects the technological reality that we live in and
the constitutional limits. I'm not trying to micromanage search algorithms
and mandate that every PDF or or that every email
or anything else be perfectly you know, optical character recognition
OCR indexed. It wouldn't criminalize honest typos or translation errors.

(28:46):
Intent and pattern matter, and the examples I've given you
here of Comy and Fauci and his minions was a
pattern of intentional misdirection, of intentional hiding of what's in
the emails. Now, if I'd ever discovered when I was

(29:09):
the General Counsel, or for that matter, even when I
was the under Secretary, that people had engaged in that
kind of behavior, I would have filed complaints against them.
I would have taken personnel action against them for doing so,
because I had a real bogaboo about Foya. Not only
did going back to the very beginning of the program,
not only did I demand that the Officer General Counsel

(29:29):
catch up on those by bringing in some contractors to
speed up the process and get the backlog cleared out,
but then I put in our requirement. I forget what
it was, but you had ninety days to respond and
if you couldn't respond to ninety days, you had to
give the request or a very specific reason why I
was taking longer than ninety days to respond to a
Follyer request. And you think about that was twenty years ago.

(29:52):
Actually it was more than twenty years ago, because it
was two thousand and one when we officially took office.
So today there's no excuse for it, and this purposely
misspelling to hide things, and there's precedent for this kind
of legislation. Foyer itself has been amended repeatedly, often in

(30:14):
response to creative evasions that the agencies end up. Bureaucracy
engages in to clarify that electronic records are covered, that
delays and fee games are unacceptable, that court should review
claims of exemptionis de novo meaning for the first time
on their own, they can review these. And we have
FOYA advisory councils. They of all sorts of things going

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on state. But the deeper principle here is public access,
and public access should mean exactly that