[Rightscon 2025 Taipei] FOIA on Surveillance

Documenting law enforcement agencies’ use of advanced technologies through freedom of information requests and more

Law enforcement agencies (LEA) globally and their proxies are increasingly using advanced technologies such as biometric surveillance, profiling, and automated decision-making. However, limited government disclosure impedes media reporting and other transparency mechanisms, enhances chilling effects and hinders civil society from mobilizing action.

This session aims to bring together journalists, activists, experts and lawyers from various jurisdictions, including those in the Majority World, to share experiences and develop best practices for using Freedom of Information (FOI) and other investigative methods to scrutinize LEA technology use, support civil society mobilization and to inform litigation and accountability initiatives. As highlighted by the Human Rights Committee, FOI requests are a vital tool for accessing such information. FOI is crucial for monitoring LEA’ secretive use of advanced technologies and help link fragments of information surfacing elsewhere, such as via leaks and through the courts. However, the robustness and accessibility of FOI vary by jurisdiction. In some countries, civil society actively utilizes FOI systems, fueling advocacy against the government’s use of technologies.

In contrast, in places like Japan, FOI use remains nascent partly due to complexities and broad exemptions, enabling LEA to reject requests citing national security concerns. Some countries even lack FOI systems. This session aims to facilitate cross-learning of participants’ experiences in using FOI and other investigative methods to bring transparency to LEA technologies uses; share effective practice; develop the desired FOI standards and processes; and formulate advocacy strategies to introduce or improve FOI law and the way it can be used.

Host institution: International Justice Clinic at the University of California, Irvine School of Law; Open Net (Korea); University of Southampton, Department of Sociology, Social Policy and Criminology

KS’s comments: Much surveillance is by nature conducted covertly by the state, and when Italian Hacking Team’s website was hacked and their client list was revealed Wikileaks, showing the strategic surveillance agency of Korea, National Intelligence Service (NIS) which had its history of information/violence campaign in favor of the military junta, people wondered whether the Hacking Team’s RCS was used for legitimate purpose. However, FOIA request on NIS is ineffective because the law creating NIS classifies any information about NIS operation as confidential and therefore such information is exempt from FOIA obligation by the “other statutes” exemption. Open Net therefore made an app that detects the traces of RCS on Android phones but the importance of FOIA was dearly appreciated.

Another source of transparency is due process. When the access to identity data was rampant in Korea, Open Net ran Ask Your Telco campaign where people make requests to the telcos whether their identity data was accessed by law enforcement.

Remarks from the meeting participants:

• Philippines:  FOIA in form of executive order – limited to requesting from executive agencies Journalists using FOIA but government selective and delaying – “Red-tagged” victims charged with possession of explosives detained 6 years without clear information on the charges — FOIA request to Philippines Army on circumstances of arrest –rejected as “top secrets” → appealed but  the criminal trial will go on without that info needed. Even production order non-complied.
• Hong Kong – no FOIA but only Code of Access to Info (only discretionary) –legislated before hand-over in 1997. 2015 data scientist set up ACCESSINFO.hk –  people uploaded requests and 150 agencies in Hong Kong responded. Moved to server to US org. Still not blocked in HK. Now $ frozen by Trump →  off China’s sanction list. Agencies are still responding. Huge info on immigration detention. 
• Korea – FOIA strong.  AI job interviews on 13 public agencies –  FOIA request to investigate data protection violation – exemption claimed – trade secrets, fairness of proceedings. “Not exists” because contractors run the business.
• Taiwan – need to check health authorities’ excessive access to contact tracing, digital geo-fencing data on quarantined person – FOIA request but informally filled. pilots whose license plates were geo-fenced for quarantining purposes. 
• UK information tribunal – specialized forum for filling or appealing 
• Indonesia – used FOIA to use for transparency on candidates but data protection rights are claimed by candidates to hamper FOIA responses.
• US – Investigating the use of spyware by government actors in the U.S. and the broader ecosystem, including issues related to export licensing.
• US – Investigating the U.S. Department of Homeland Security’s use of AI, particularly in surveillance contexts such as emotion recognition systems. There are concerns about how the recent presidential transition might impact FOIA systems and agency responsiveness.
• Philippines: The FOIA system was introduced in 2014. Prior to that, a participant was investigating the use of law enforcement technologies, partly with information supplied by Privacy International’s network. Even after 2014, the FOIA system remains primarily governed by the executive branch. Moreover, law enforcement use of surveillance technologies is highly sensitive, which limits the effectiveness of FOIA requests in surveillance-related investigations. There is little optimism that FOIA will be an effective tool for investigations in the Philippines in the near future. National security carveouts and the misuse of data protection laws continue to undermine access to information and freedom of expression, especially in the context of surveillance.
• Investigative journalists in Asia, including those in Kashmir, face significant challenges. Although Thailand has a FOIA system, it remains largely anecdotal and underutilized.
• Jordan: Investigative journalists in Georgia face oppression. While Georgia has a FOIA system, using a real name in FOIA requests can attract unwanted government attention, potentially leading to increased surveillance and retaliation. This makes the FOIA system an impractical tool for journalists in the country.
• U.S.: Some databases host procurement (for example, those at C4ADS) and export licensing data, which can provide insights into the procurement of surveillance technologies in countries where FOIA is not an option. For example, public information on export licensing in Switzerland has shed light on surveillance procurement in other countries, including those where access to information is much more limited. 
• U.S.: Considering using FOIA requests to complement efforts for algorithmic transparency and audit processes. International coordination on FOIA crafting and usage could strengthen domestic efforts. Under the first Trump administration, there was a marked increase in outright denials of document production and higher costs for litigation.