Thursday, July 18, 2013

NSA denies my FOIA request

I sent a Freedom of Information Act (FOIA) request asking for my phone metadata. I just got the rejection, which I append to the blog post below.

The first thing to notice about the rejection letter is how it includes their talking-points defending the program, highlighting their "strict controls to ensure that no U.S. person is targeted".

The second thing to notice is that this is a form letter sent to everyone who FOIAed their phone number. But I ask for metadata associated with my IMEI, not my phone number. It's a lesser known bit of metadata that was highlighted in Snowden's Verizon warrant. Obviously, they barely read my request.

Lastly, the denial is due to concerns over "national security". This is nonsense, of course. As the marketing points at the top demonstrate, their bigger concern is what citizens think about the program, not what the adversaries know about it.

If anybody knows the next step to appeal this rejection, please add a comment below. I've got until September 11 to appeal this.
   This responds to your Freedom of Information Act (FOIA) request submitted via the Internet on 26 June 2013, which was received by this office on 27 June 2013 for all information on you. Your letter has been assigned Case Number 71695. 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 for this request. Your request has been processed under the provisions of the FOIA.
    You may be aware that one of the NSA/CSS missions is to collect, process, and disseminate communications or signals intelligence information for intelligence and counter intelligence purposes. 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 drug 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 Intelligence Surveillance Court ("FISC"), NSA may acquire telephone metadata, such as the telephone numbers dialed and length of calls, but not the content of calls or the names of the communicants. Under Sec. 702 of the FISA, with appropriate authorization, NSA may target non-U.S. persons reasonably believed to be located outside the United States for foreign intelligence purposes. Under the FISC-authorized Sec. 215 authority, NSA cannot review any metadata unless strict requirements are met, i.e., 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 approved by the FISC to help ensure that no U.S. person is targeted and FISC-approved minimizations procedures to ensure the protection of any information concerning U.S. persons that may be 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 metadata/call detail records on you and/or any telephone numbers provided in your request, or seeks intelligence information on you, we cannot acknowledge the existence or non-existence of such metadata 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. 
    Therefore, your request is denied because the fact of 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 (c) of Section 1.4. Thus, your request is denied pursuant to the first exemption of 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 fact of the existence or non-existence of the information is exempted from disclosure pursuant to the third exemption. The specific statutes applicable in this case are: Title 18 U.S. Code 798; Title 50 U.S. Code 3024(i) (formerly Title 50 U.S. Code 403-1(i)); and Section 6, Public Law 86-36 (50 U.S. Code 3605, formerly 50 U.S. Code 402 note). 
    The Initial Denial Authority for NSA information 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 information may file an appeal to the NSA/CSS Freedom of Information Act Appeal Authority. The appeal must be postmarked no later than 60 calendar days of the date of the initial denial letter. The appeal shall be in writing addressed to the NSA/CSS FOIA Appeal Authority (DJ4), National Security Agency, 9800 Savage Road STE 6248, Fort George G. Meade, MD 20755-6248. The appeal shall reference the adverse determination and shall contain, in sufficient detail and particularity, the grounds upon which the requester believes that the determination is unwarranted. The NSA/CSS 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
Chief FOIA/PA Office



Update: Other recipients of this same form letter:
Case Number 72150 http://www.theatlanticwire.com/politics/2013/07/nsa-couldnt-answer-our-foia-request-because-it-couldnt-figure-out-our-address/67746/
Case Number 72812 http://www.dailydot.com/politics/foia-request-nsa-prism-metadata-kevin-collier/
Case Number 73751 http://blog.erratasec.com/2013/08/nsa-foia-fail-is-fail.html
Case Number 73723 http://imgur.com/a/2qvnP
Case Number ????? http://www.propublica.org/article/nsa-responding-to-this-foia-would-help-our-adversaries




9 comments:

Baneki Privacy Labs said...

Would these folks be able to help out with the appeal?

http://www.cultureghost.net/viewtopic.php?f=23&t=229

Also, how about automating the process for submitting these requests... so we can flood the NSA with demands that they disclose what spying they've been doing on us? They may deny them all, but we'll raise a hell of a ruckus along the way.

Good on 'ya :-)

Anonymous said...

It's almost like they *knew* you were coming!

kurt wismer said...

"As the marketing points at the top demonstrate, their bigger concern is what citizens think about the program, not what the adversaries know about it."

citizens are one of their adversaries. in fact they're just about the only adversary that come close to being able to pose an existential threat to the program.

Anonymous said...

I'm not an expert but you may be able to gain some traction on appeal because the DNI has declassified some information and issued a press release at http://www.dni.gov/index.php/newsroom/press-releases/191-press-releases-2013/868-dni-statement-on-recent-unauthorized-disclosures-of-classified-information

And here is a great FOIA resource with information on the appeals process http://www.gwu.edu/~nsarchiv/nsa/foia/foia_guide.html

Good luck

Michael Wales said...

You need to file an Administrative Appeal with the same agency. I found the URL easily by googling "NSA FOIA Administrative Appeal" - on my phone now and paste isn't cooperating.

Surprisingly, my AFSC (read: job) while in the Air Force was a combination of paperwork (like FOIA requests) and being a computer nerd. I'm glad they finally realigned all those careers; and that I had supervisors that new it was a waste to not have me on a computer.

Anonymous said...

"If we have misinterpreted your request..."

Well they have misinterpreted your request, now, haven't they?

Anonymous said...

I got a similar letter from the NSA, so it most likely is a form letter. Im sure its NSA policy to deny all FOIA requests "politely" with the hopes of making any release of data as difficult as possible. The reasoning behind creating these road blocks by the NSA is to limit any knowledge that the American public has about the operations of the NSA. This may seem un-American but Im sure they will argue its in the best interest of America's security, which in reality means its in the best interest of the people currently running America and for companies currently profiting from doing business with America.

Anonymous said...

I got a similar letter from the NSA, so it most likely is a form letter. Im sure its NSA policy to deny all FOIA requests "politely" with the hopes of making any release of data as difficult as possible. The reasoning behind creating these road blocks by the NSA is to limit any knowledge that the American public has about the operations of the NSA. This may seem un-American but Im sure they will argue its in the best interest of America's security, which in reality means its in the best interest of the people currently running America and for companies currently profiting from doing business with America.

Anonymous said...

I'm in the very same situation, my deadline is the beginning of october. As a foreigner I'm not used to american habits and authorities like the NSA and I'd like to know how a FOIA appeal may look like (and in good english, which is not my first language). Any help is appreciated!