NSA: Responding to Your FOIA Would Help 'Our Adversaries' 

Here’s what I got when I asked the NSA if they’re collecting my metadata

Shortly after the Guardian and Washington Post published their Verizon and PRISM stories, I filed a freedom of information request with the NSA seeking any personal data the agency has about me. I didn't expect an answer, but yesterday I received a letter signed by Pamela Phillips, the Chief FOIA Officer at the agency (which really freaked out my wife when she picked up our mail).

The letter, a denial, includes what is known as a Glomar response -- neither a confirmation nor a denial that the agency has my metadata. It also warns that any response would help "our adversaries":

 

 Any positive or negative response on a request-by-request basis would allow our adversaries to accumulate information and draw conclusions about the NSA's technical capabilities, sources, and methods.

Our adversaries are likely to evaluate all public responses related to these programs.

Were we to provide positive or negative responses to requests such as yours, our adversaries' compilation of the information provided would reasonably be expected to cause exceptionally grave damage to the national security."

The letter helpfully states that there are "no assessable fees for the request."

NATIONAL AGENCV

CENTRAL SECURITY SERVICE FORT GEORGE G. MEADE, MARYLAND 20755-soon

FOIA Case: 2

21 June 2013

Mr. Jeffrei A. Larson

Dear Mr. Larson:

This responds to your Freedom of Information Act (FOIA) request submitted via the Internet on 13 June 2013, which was received by this oifice on 14 June 2013, for all records this Agency maintains on you. Your letter has been assigned case Number --. Please refer to this case number when contacting us about your request. For purposes of this request and based on the information you provided in your letter, you are considered an "all other" requester. There are no assessable fees {or this request. Your request has been processed under the provisions of the FOIA.

You may be aware that one of the missions is to collect, process, and disseminate communications or signals intelligence information for intelligence and counter intelligence purposes and to support military operations. NSA is authorized to engage in these activities in order to prevent and protect against terrorist attacks, the proliferation of Weapons of mass destruction, intelligence activities directed against the United States, international criminal dnig activities, and other hostile activities directed against the United States. The roles and responsibilities that NSA exercises are delineated in Executive Order 12333, as amended.

As you may be also be aware, there has been considerable speculation about two NSA intelligence programs in the press /media. Under sec. 215 of the USA PATRIOT Act, as authorized by the Foreign lntelligence Surveillance Court NSA may acquire telephone metadata, such as the telephone numbers dialed and length of Calls, but not the content of call or the names of the Communicants. Under Sec. 702 of the FISA Amendments Act, NSA may acquire the communication of non- U.S. persons located abroad for foreign intelligence purposes such as counterterrorism and counterprolitcration. This program is also authorized by the FISC. Under the FISC--authorized Sec. 215 authority, NSA cannot review any metaclata unless strict requirements are met, the data may be queried only when there is a reasonable suspicion, based on specific facts, that a phone number is associated with a foreign terrorist organization. Likewise, under Sec. 702, there are strict controls established by the FISC to ensure that there is no targeting of any U.S. persons communications and FISC-approved minimizations procedures to ensure the protection of any information oonceming U.S. persons that may have been incidentally acquired.

Although these two programs have been publicly acknowledged, details about them remain classified and/or protected from release by statutes to prevent harm to the national security of the United States. To the extent that your request seeks any nietadata/call detail records on you and/or any telephone numbers provided in your request, or seeks intelligence intorniation on you, we cannot acknowledge the existence or nonexistence of such rnetadata or call detail records pertaining to the telephone numbers you provided or based on your name. Any positive or negative response on a request--by--request basis would allow our adversaries to accumulate information and draw conclusions about NSA's technical Capabilities, sources, and methods. our adversaries are likely to evaluate all public responses related to these programs. were we to provide positive or negative responses to requests such as yours, our adversaries' compilation of the information provided would reasonably be expected to cause exceptionally grave damage to the national security.

Thereiore, your request is denied because the iact or the existence or non-eidstence of responsive records is a currently and properly classified matter in accordance with Executive order 13526, as set forth in subparagraph of section 1.4. Thus, your request is denied pursuant to the first exemption or the FOIA, which provides that the FOIA does not apply to matters that are specifically authorized under Criteria established by an Executive Order to be kept secret in the interest of national defense or foreign relations and are properly classified pursuant to such Executive Order.

Moreover, the third exemption of the FOIA provides for the withholding of information specifically protected from disclosure by statute. Thus, your request is also denied because the {act of the existence or i-ion--existenee of the information is exempted trom disclosure pursuant to the third exemption. The specific statutes applicable in this case are: Title 13 U.S. code 798; Title 50 us code 3o24(i) [formerly 'h'tle so U.S. code and section 6, Public Law 86--36 (50 u.s. code 3605, formerly 50 US. Code 402 gm].

The Initial Denial Authority for iniormation is the Associate Director for Policy and Records, David J. sherman. As your request is being denied, you are hereby advised of this Agency's appeal procedures. Any person denied access to inionnation may file an appeal to the Freedom of lntontnatiori Act Appeal Authority. The appeal must be postmarlted no later than 60 calendar days of the date of the initial denial letter. The appeal shall be in writing addressed to the FOIA Appeal Authority iDJ4l, National security Agency, 9800 savage Road STE 5243, Fort George G. Meade, MD 20755-6248. The appeal shall reference the adverse determination and shall contain, in surricient detail and particularity, the grounds upon which the requester believes that the deren-nination is unwarranted. The FOIA Appeal Authority will endeavor to respond to the appeal within 20 working days after receipt, absent any unusual circumstances.

If we have misinterpreted your request and you have been affiliated with the NSA in some way as an employee, applicant, or visitor and are looking for records related to those activities, you may submit a signed Privacy Act request to seek that type of information. If you provide a Social Security number, it will assist us with the search for responsive records. The authorities for collecting this information and the use of the requested information is set forth in the Privacy Act Statement provided below.

Sincerely,

PAMELA N. PHILLIPS

It also contains a paragraph about the ways in which the Foreign Intelligence Surveillance Court (FISC) has authorized the NSA to "acquire telephone metadata, such as the telephone numbers dialed and length of calls, but not the content of [sic] call or the names of the communicants." The court was created in 1978, as we recently laid out in our surveillance timeline.

The letter also mentions section 215 of the Patriot Act, which the government has cited to justify phone metadata collection.

So where does this leave me? According to Aaron Mackey, a staff attorney at the Reporter's Committee for Freedom of the Press, "If you wanted to see those records you would have to file a lawsuit."

I reached out the NSA, to ask among other things, how many other requests about metadata they've received. They didn't immediately respond.

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