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US Court of Appeals, DC Circuit, Upholds NSA Disclosure Exemption

The United States Court of Appeals for the District of Columbia Circuit affirmed in May 2012 the U.S. District Court’s D.C. District judgment for the National Security Administration (NSA) after the NSA issued a Glomar response stating that under Freedom of Information Act (FOIA) Exemption 3 and National Security Agency Act (NSAA) Section 6 it could neither confirm nor deny the existence of any responsive records to the Electronic Privacy Information Center (EPIC) request seeking disclosure of any communications between NSA and Google, Inc., regarding encryption and cyber security. EPIC’s FOIA request arose out of a January 2010 cyber-attack on Google that targeted the Gmail accounts of Chinese Human Rights activists. Google at that time changed Gmail’s privacy settings to automatically encrypt all traffic to and from its servers.

EPIC filed suit in district court challenging NSA’s Glomar response. The parties cross-moved for summary judgment, with NSA submitting in support of its motion a company executive’s declaration addressing the issue in general terms without referencing any secure information. Such a declaration is de riguer for Glomar issues, and must effectually be “logical and plausible” without confirming or denying the existence of the records in question, but justifying the concepts surrounding such records if they did in fact exist. The district court acknowledged the merit of the declaration and concurred.

EPIC claimed its request sought some records that were not covered by Exemption 3 of FOIA and Section 6 of NSAA – unsolicited communication from Google. The court held that the declaration was sufficient to cover that instance, that one of NSA’s primary cryptologic missions was Information Assistance (protecting government information systems) and that the government depends largely on commercial technology for its information systems.

The declaration further stated that whether or not there are records of communication between Google and NSA could disclose the existence and extent of threat perceived by the government, and in either case it termed an activity and therefore covered by Exemption 3. The court accepted that reasoning.

Finally, EPIC argued that search and classification by Vaughn index would yield parts of records that do not need security coverage. The court disagreed, noting that to bring to light a part of a record confirms the record itself. See: Electronic Privacy Information Center v. National Sec. Agency, 678 F.3d 926 (DC Cir. 2012).

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Related legal case

Electronic Privacy Information Center v. National Sec. Agency