Nice Systems/CYBERBIT Cyber and Intelligence: marketing materials, flyers, brochures (US Army Intelligence and Security Command (INSCOM))

Christopher Bing filed this request with the US Army Intelligence and Security Command (INSCOM) of the United States of America.
Multi Request Nice Systems/CYBERBIT Cyber and Intelligence: marketing materials, flyers, brochures
Submitted June 1, 2020
Due June 29, 2020
Est. Completion None
Status
Awaiting Response

From: Christopher Bing

Subject: Freedom of Information Act Request: Nice Systems/CYBERBIT Cyber and Intelligence: marketing materials, flyers, brochures (US Army Intelligence and Security Command (INSCOM))

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To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

Product brochures, Powerpoint presentations, flyers and other promotional business documents about defense and technology company Nice Systems Ltd. -- also known as "NICE" or "NICE's Cyber and Intelligence division" or "CYBERBIT LTD" or "CYBERBIT" or "Elbit Systems Ltd." -- describing products and/or services relating to offensive cybersecurity, surveillance, electronic warfare, virtual operations, artificial intelligence, and machine learning. The focus of the requests involves product documents that may carry terminology/keywords/descriptions such as: Computer Network Operations (CNO), Computer Network Exploitation (CNE), Computer Network Attacks (CNA), cyber intelligence and signals intelligence (SIGINT). NICE is an Israeli/American technology contractor that sells surveillance and internet monitoring capabilities. The firm has offices around the world, including in the United States, but it is primarily managed from Israel. NICE is known for producing high-tech products for national security and law enforcement agencies to help them conduct surveillance against threats, including terrorism and criminal entities. NICE' cyber and intelligence division was acquired by Elbit Systems Ltd., via a subsidiary called CYBERBIT, in 2015; meaning that references to NICE's technology may carry that name as well, especially more recently.

This FOIA seeks any materials produced by the contractor to explain/sell/market their cyber intelligence capabilities/offerings to the U.S. government between the years 2014 and 2020 (or the current date of review). Such material would be likely held/controlled by the appropriate business contracting office within the agency and/or other divisions that make purchase/contracting decisions. NICE/Elbit have tried to sell their products to various different US security organizations in the past.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Christopher Bing

From: US Army Intelligence and Security Command (INSCOM)

Subject: Final Response To Your FOIA Request (UNCLASSIFIED)

Email

CLASSIFICATION: UNCLASSIFIED

Good morning,

Attached, please find our final response to your FOIA request.

Thank you.

Very respectfully,

Daniel W. Anderson

Administrative and Intelligence Analyst

U.S. Army Intelligence and Security Command (INSCOM)

Freedom of Information Act (FOIA) / Privacy Act (PA) Office

CLASSIFICATION: UNCLASSIFIED

From: Christopher Bing

Subject: RE: Freedom of Information Act Request: Nice Systems/CYBERBIT Cyber and Intelligence: marketing materials, flyers, brochures (US Army Intelligence and Security Command (INSCOM))

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Hello,
I am appealing the FOIA decision.
I would like to remind the office that a document does not need to be created by the agency to be considered a federal record that should be searched for and reviewed in response to FOIA - it merely needs to be a document that the agency is in possession of. Here is the actual citation: "Records include all books, papers, maps, photographs, machine-readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of the data in them (44 U.S.C. 3301)."
Furthermore, to the extent that any materials may be withheld pursuant to FOIA's exemption #4, an agency cannot withhold records simply because they fall within the scope of an exemption. Rather, the agency/office must also show that it "reasonably foresees that disclosure would harm an interest protected by an exemption" or that disclosure is prohibited by law. More on the scope of exemption 4 can be found here: https://foia.wiki/wiki/Exemption_4. While, the Argus-Leader SCOTUS case was a blow to the expansiveness of the exemption, there have been some more favorable recent circuit court rulings reinforcing that agency's need to pass the foreseeable harm standard. Additional reference: https://unredacted.com/2020/01/13/unredacted-ukraine-emails-show-foia-exemption-5-abuse-court-rules-contractor-diversity-data-cant-be-hidden-by-exemption-4-and-more-frinformsum-1-13-2020/
Look forward to hearing back from you. Thank you for your help in processing this request. It is greatly appreciated. \
If you have any questions, give me a call or shoot me an email.
-Chris Bing
Reuters reporter
202-510-0174
christopher.bing@tr.com