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

from the schrodinger's-metadata dept

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.


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    Ninja (profile), Jun 26th, 2013 @ 6:00am

    Well, knowing how deeply the US spies on their citizens sure would give even more weapons for China and other censorship regimes to criticize the US...

     

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    Lord Binky, Jun 26th, 2013 @ 6:39am

    It's awfully honest of them if you accept that THEIR adversaries are all the American citizens they are collecting data on.

     

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    Anonymous Coward, Jun 26th, 2013 @ 6:41am

    Think some of your formatting got messed up Tim, the end of the second quote runs into your analysis.

     

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    Anonymous Coward, Jun 26th, 2013 @ 6:53am

    People need to start seeing through the bullshit, back them into a corner, put a hand to their throats and start asking questions.

    This is talk of someone that tasted power and doesn't want to let go. You need to make them let go. NOW.

    Unless you don't value your freedom. In which case, carry on.

     

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      Anonymous Coward, Jun 26th, 2013 @ 8:03am

      Re:

      Forget making them let go. Destroying the organization completely would be the best option. They are like a gangrenous limb, in need of amputation to save a life (of freedom in this case). Dissolve them and watch the spooks end up in the unemployment line. Plus it would be karmariffic to make /them/ an example for a change.

       

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        Anonymous Coward, Jun 26th, 2013 @ 8:35am

        Re: Re:

        We can't get rid of them anymore than we can get rid of the IRS. The unemployment numbers would shoot up and make whatever administration did the act look like they weren't worried about the economy and the unemployment rate.

         

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    art guerrilla (profile), Jun 26th, 2013 @ 6:56am

    how much you wanna bet...

    ...that filing an FOIA request is taken as a reason to consider you a 'domestic terrorist', similar to how using encryption automatically makes you 'suspect' ? ? ?

    scumbags, its OUR gummint, its OUR bureaucracy, its OUR bidness, its OUR papers and effects they are producing...

    ...or are they ? ? ?

    unless/until the scales fall from the sheeples eyes, and realize this has little-to-nothing to do with keeping US safe, and EVERYTHING to do with keeping THEIR nefarious -if not TRULY traitorous- 'safe' from prying eyes...

    art guerrilla
    aka ann archy
    eof

     

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    Anonymous Coward, Jun 26th, 2013 @ 6:59am

    apart from the answer being 'EVERYONE, EVERYWHERE' is there officially anyone, anywhere that are officially 'adversaries' of the USA (or any of the supposed allies, as well)??

     

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      Anonymous Coward, Jun 26th, 2013 @ 9:13am

      Re:

      No. There's no official adversary. That's not a secret. As quoted by Senators participating in Paul's filibuster, Kerry puts it plainly, "That's not how we do that, nobody wants to vote for war."

       

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      Anonymous, Jun 26th, 2013 @ 10:11am

      Re:

      North Korea, for one, the war never ended, it was only a ceasefire, and now they're banging around again.

      The fact of the matter is that the primary "adversaries" of the US government right now is any American citizen that doesn't pipe down and do as he, or she, is told.

       

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    drewdad (profile), Jun 26th, 2013 @ 7:06am

    This is a normal response for anyone who knows security

    If a stranger comes up and asks me if I live locally, I don't answer yes or no, I ask in return, "why do you ask."

    When I set up a firewall, I set it up in stealth mode where it doesn't respond at all unless it's traffic I've authorized.

    So this response is actually appropriate from the point of view of the NSA.

     

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      Niall (profile), Jun 26th, 2013 @ 7:16am

      Re: This is a normal response for anyone who knows security

      Yes, but a FOIA is an 'authorised' channel, or should be.

       

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        drewdad (profile), Jun 26th, 2013 @ 7:43am

        Re: Re: This is a normal response for anyone who knows security

        I don't necessarily disagree; I'm just saying that it's not an entirely inappropriate response.

        Personally, I'm tired of the "ZOMG! Terrorism!" response any time a citizen is concerned about their privacy and freedoms.

         

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    Anonymous Coward, Jun 26th, 2013 @ 7:20am

    The only people we know have the capabilities to monitor ALL public information is the NSA. They also say releasing this to the public will help our adversaries.
    Anyone else here see the obvious conclusion? The NSA is our adversary.

     

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    Anonymous Coward, Jun 26th, 2013 @ 7:25am

    What would happen if somehow, the vast majority of Americans refused to pay taxes next year until the administration was replaced with leaders who would actually stand by their oath to uphold the constitution? Would that be a good nonviolent way for us to get our rights back? They can't throw everyone in jail.

     

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      Anonymous Coward, Jun 26th, 2013 @ 9:07am

      Re:

      No, they'd just cherry-pick a few "undesirable" people to be examples, and prosecute the shit out of them. That way anyone who doesn't want their life destroyed and isn't in a position where they can risk it would capitulate. And the government would win again.

       

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    Crusty the ex-Clown, Jun 26th, 2013 @ 8:00am

    Wait...

    So did the NSA track HSBC as they laundered all that money for drug cartels and terrorist groups? Did they watch as major banks rigged LIBOR? If huge scandals like these occur under their noses they appear to be either incompetent or complicit. One hopes the former but fears the latter. It's clearly time for Congress and the press to exert oversight on these programs.

     

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      Edward Teach, Jun 26th, 2013 @ 8:13am

      Re: Wait...

      Exactly. The data also doesn't get used to confirm innocence.

      The high classification makes the data useless for anything except determining guilt by association. It can't be used to discover mere lawbreaking, as that would reveal that they're snooping. It can't be used to place a suspect elsewhere than at the scene of the crime, that would reveal that they're snooping.

      There's no use for this data other than guilt by association: putting people on "No Fly" lists whose contents are secret, tool. Putting people on "special search and interrogation lists", whose contents are, again, secret. Determining whose email accounts to get National Security Letters to examine in detail, which have a built-in gag order, and so, are secret.

      Secret dragnet collection of information is useless expect for pogroms and guilt by association. It must cease.

       

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        Michael, Jun 26th, 2013 @ 8:42am

        Re: Re: Wait...

        Secret dragnet collection of information is useless expect for pogroms and guilt by association.

        and extortion.

         

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    Michael, Jun 26th, 2013 @ 8:20am

    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

    If that is all it takes to cause "exceptionally grave damage to the national security", the terrorists are going to win. Is our national security infrastructure that bad?

     

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    TheLastCzarnian (profile), Jun 26th, 2013 @ 8:48am

    Dear Congresspeople...

    A really good law would be one to ban the government from treating entites as "enemies" or "advesaries" unless Congress has declaired war on them.

    We can't have government agencies deciding who to fight and how to fight them without congressional oversight, and we certainly can't prosecute someone for "aiding the enemy" when we haven't publicly and lawfuly defined them as an enemy.

     

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      TaCktiX (profile), Jun 26th, 2013 @ 1:08pm

      Re: Dear Congresspeople...

      The problem with that is that the last time war was declared by the US Congress was WWII. Korea, Vietnam, the first Gulf War, Kosovo, all those other operations were done purely under the auspice of the executive branch without Congress declaring war.

      Congress doesn't want to declare war, and the executive branch would prefer to be able to "lead the way" rather than let Congress exercise their check against executive power. Sadly, this is another way that our nation has fallen short of what the Constitution set in place.

       

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    Thebes, Jun 26th, 2013 @ 8:51am

    What has happened here is that the NSA, CIA, and FBI have, over time, formed a sort of "shadow government" which coerces the intelligence committees and executive branch. This has been going on since at least Hoover.
    It is probable that the CIA took out Kennedy for threatening to "scatter their ashes in the wind", at least we know that many CIA operatives were photographed on site that day.
    NOW, the NSA has metadata AND content (this via another program, not PRISM, compartmentalized deniability) for all phone calls in America. They know what Obomba said to whoever on whatever date and can "go back in time" to look it up even if it was never previously analyzed. The NSA's officers are blackmailing the legitimate aspects of the US Federal Government as well as Mainstream Media.

     

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    Anonymous Coward, Jun 26th, 2013 @ 9:04am

    It is high time to start rolling back all these permissions to spy. The cost of this "protection" is too high.

    Obama has shown his true colors. What he says and what he does are two different things. I would suspect from the about face, he's been blackmailed by the security apparatus. Stazi it is we now see the face of. Nor do I think he is the only one. Most likely the majority of the congress critters, if not all, are under the same umbrella of threat which explains why the security apparatus gets what it wants.

     

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    The Real Michael, Jun 26th, 2013 @ 9:05am

    "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."

    By snooping on our communications and data, then storing it in their facilities, isn't that putting our security at much greater risk than had they not? This is why the framers of the Constitution put the 4th Amendment in place, to protect against government overreach.

    Now I'm hearing people calling Snowden a double-agent and an intentional distraction by the government from what's going on in Syria. I thought it was the other way around, but these days the truth is hard to come by.

     

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    Uriel-238 (profile), Jun 26th, 2013 @ 11:51am

    Probably a housecat.

    If they named their mascot National Security these statements would make much more sense.

     

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    Murray (profile), Jun 26th, 2013 @ 1:11pm

    A lawsuit to see the records? You've got to be kidding.

    "If you wanted to see those records you would have to file a lawsuit."

    The lawsuit would be heard by a secret court, in which you would not be allowed to attend, with a ruling that would not be communicated to you for security reasons. After all, allowing you to participate in such a lawsuit to know the results would reasonably be expected to cause exceptionally grave damage to the national security.

     

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    Anonymous Coward, Jun 26th, 2013 @ 2:04pm

    NSA: We can't divulge that information without causing grave harm to national security.

    Democracy: We can't have you invading everyones lifes in secret without causing grave harm to freedom.

    Public: Fight! Fight! Fight!

    Cats: There is something wrong with humans.

     

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    Unfortunate Adversary, Jun 26th, 2013 @ 2:08pm

    I have apparently been classified as an adversary. It is the american people. Want to know what they do when you are classified as an adversary? They put child porn in front of your face. REPEATEDLY. They torture you with DEW weapons. They drug you. They kill your friends. They accuse you of the WORST imaginable acts that HAVE NO BASIS IN FACT.

    They bait you. They plant evidence. They try to twist your humanity out of you and then try to blame you for being twisted. If you do your very best to hold onto your humanity, they just lie about you in the media. I probably won't be alive much longer, but think about this when you hear about "our adversaries".

    They are your neighbors. They are your friends. They may be your family. Our real adversaries are the ones intentionally twisting us and killing us. Want to know what kind of twisted monster would kill children? The twisted monsters in Washington.

    They encourage immigration instead of giving the jobs to willing americans. They lock up the innocent instead of putting them to work. They weaken us and blame us for being weak.

    This is why we should have voted for Ron Paul.

     

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      Anonymous Coward, Jun 26th, 2013 @ 2:13pm

      Re:

      People have to have questions about TWA 800 and 9/11. Do you think those killings were an accident? They filled the buildings with people they intended to be victims and then pulled a false flag attack. EVERY TIME there is a media story where the victim is pilloried before the trial it is another set up/false flag. EVERY TIME.

      We are ruled by monsters and psychopaths.

       

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    Anonymous Coward, Jun 26th, 2013 @ 3:07pm

    Beach Boys - Kokomo
    Aruba, Jamaica ooo I was denied and now Bermuda, Bahama come on TSA Key Largo, Montego baby why can't I fly to Jamaica

     

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    relghuar, Jul 3rd, 2013 @ 3:27am

    ...exceptionally grave damage to the national security...

    Well, they've already done exceptionally grave damage to the national reputation, so I can see how they would try to avoid damaging anything else...

     

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