NSA Can Neither Confirm Nor Deny Anything Without Causing 'Exceptionally Grave Damage' To National Security

from the schrodinger's-metadata dept/http://www.techdirt.com/articles/20130625/20133123621/nsa-vs-foia-request-we-can-neither-confirm-deny-anything-without-causing-exceptionally-grave-damage-to-national-security.shtml

When you find out your own government is harvesting your phone metadata and internet activity, what do you do? If you're Jeff Larson at ProPublica, you file a FOIA request in hopes of getting the NSA to cough up some of the info it's collected on you.

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).

Yes, Larson received three pages of unredacted excuses and explanations as to why the NSA would not be letting him in on what it had gathered, as well as some circuitous explanations as to why it was unable to confirm the existence of the data he requested.

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." "Reasonably be expected to cause exceptionally grave damage to the national security..." That's a beauty, as is the entire paragraph. Instead of "Yes, we have some stuff but we can't let you look at it," or "No, we don't have your stuff, but thanks for asking," we get "We can neither confirm nor deny we have your stuff because a simple yes or no would give terrorists the upper hand." Alternately: "Sorry we can't be more specific. Can I offer you some fear instead?" Fortunately, as Larson notes, he won't be charged a fee for this non-answer to his request.

The NSA's FOIA responder takes a little time to imply that the media possibly has all the facts wrong.

As you may be also be aware, there has been considerable speculation about two NSA intelligence programs in the press /media.

If by "considerable speculation," she means "actual document leaks," then we're on the right track. Yes, there's been plenty of speculation but there are several exposed documents that give this speculation a solid starting point. The non-confirmation/non-denial continues, spilling onto the next page after a brief respite where the NSA rolls out the talking points and proclaims everything to be firmly above-board.

Therefore, your request is denied because the fact or the existence or non-existence 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.

The NSA: so secure even non-existing records are classified.

The response letter explains the other reasons everything's remains under wraps. Larson is welcome to file an appeal but the lengthy list of exemptions included in this response gives the indication that actually doing so would be a waste of everyone's time. This leaves Larson with only one legitimate option, the same option the ACLU and EFF find themselves pursuing with increasing frequency.

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."

That's the way it goes in the surveillance state. Information doesn't want to be free. It wants to be litigated.