Court allows NSA and Google to keep their ties secret
Friday’s decision out of US Circuit Court of Appeals for the District of Columbia Circuit reinforced a lower court’s earlier ruling that the NSA does not have to submit to Freedom of Information Act requests for materials involving any relationship that the federal agency has with the Google search engine and its related entities, such as Gmail.
The Electronic Privacy Information Center, or EPIC, took the matters to the appeals court after their February 2010 FOIA requests were ignored by the federal agency. Last July, EPIC brought the NSA to US District Court to demand for evidence, to which Judge Richard Leon opted to side with the government’s security team. On their part, EPIC had insisted that the NSA’s refusal to acknowledge if any ties even existed between the agency and Google was insufficient, and that the NSA should be forced to at least acknowledge any relationship between the two before fighting off the FOIA requests.
In legal fields, the NSA’s claim that they could not confirm nor deny any existence of ties is called a Glomar response. EPIC argued that that would not suffice as far as even remotely fulfilling their requests.
“The Glomar response is appropriate where ‘to confirm or deny the existence of records … would cause harm cognizable under a FOIA exception,” EPIC argued earlier this year. On the contrary, however, EPIC claims, “The NSA has failed to meet this standard and has failed to perform the segregability analysis required by statute to determine whether non-exempt records may be released.”
“Without first conducting the search, not even the agency can know whether there is a factual basis for its legal position. The decision of the District Court should be reversed and the case remanded with an order requiring the agency to conduct the search for responsive records,” EPIC’s attorney said in a statement earlier this year.
Now this week in Washington, an appeals judge has upheld the last courtroom ruling and the NSA will continue to be spared from responding to any FOIA requests. Explaining the 3-0 ruling, Judge Janice Rogers Brown writes that even acknowledging that a relationship exists between the government and Google “might reveal whether the NSA investigated the threat,” or “deemed the threat a concern to the security of the U.S. government.”
EPIC originally became interested in any connection between the two after the Gmail accounts of Chinese human rights activists were hacked in January 2010. At the time, Google responded and it was later reported in both the Wall Street Journal and Washington Post that Google contacted the NSA.
In this week’s decision, the justices quote a past Post article in which NSA Director Mike McConnell said a collaboration between his agency and private companies like Google was “inevitable.”
Even still, the NSA will not go on the record to say what role, if any, they have had with Google. The appeals court agrees, however, that saying anything about any involvement would be bad for the US.
“[A]ny information pertaining to the relationship between Google and NSA would reveal protected information about NSA’s implementation of its Information Assurance mission,” explains the appeals ruling. “The existence of a relationship or communications between the NSA and any private company certainly constitutes an ‘activity’ of the agency subject to protection under Section 6. Whether the relationship — or any communications pertaining to the relationship — were initiated by Google or NSA is irrelevant to our analysis. Even if EPIC is correct that NSA possesses records revealing information only about Google, those records, if maintained by the agency, are evidence of some type of interaction between the two entities, and thus still constitute an NSA ‘activity’ undertaken as part of its Information Assurance mission, a primary ‘function’ of the NSA.”