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Top NSA officials struggled over surge in Foia requests, emails reveal Top NSA officials struggled over surge in Foia requests, emails reveal
(3 months later)
National Security Agency officials wrestled for weeks with how to respond to an unprecedented surge in open records requests from members of the public in the wake of the first mass surveillance revelations from Edward Snowden almost a year ago.National Security Agency officials wrestled for weeks with how to respond to an unprecedented surge in open records requests from members of the public in the wake of the first mass surveillance revelations from Edward Snowden almost a year ago.
Newly released NSA emails, obtained by the Guardian under a Freedom of Information Act (Foia) request filed last November, reveal that top officials discussed how to fend off journalists, advocacy groups and individuals who flooded the agency with more than 1,000 requests between 5 June and 25 June last year for classified data related to the former contractor’s disclosures.Newly released NSA emails, obtained by the Guardian under a Freedom of Information Act (Foia) request filed last November, reveal that top officials discussed how to fend off journalists, advocacy groups and individuals who flooded the agency with more than 1,000 requests between 5 June and 25 June last year for classified data related to the former contractor’s disclosures.
The Guardian published the first Snowden story, revealing a secret court order that allowed the NSA the phone records of millions of US citizens, on 5 June. The following day, details of the Prism program were revealed by the Guardian and the Washington Post.The Guardian published the first Snowden story, revealing a secret court order that allowed the NSA the phone records of millions of US citizens, on 5 June. The following day, details of the Prism program were revealed by the Guardian and the Washington Post.
The NSA is one of the few US government agencies virtually exempt from open records laws because its activities are considered properly classified under a presidential executive order and many Foia exemptions. The NSA is one of the few US government agencies virtually exempt from open records laws because its activities are considered properly classified under a presidential executive order and many Foia exemptions.
But since details about the NSA’s vast surveillance activities were no longer a secret thanks to Snowden's disclosures, the agency didn’t know how to respond to requesters.But since details about the NSA’s vast surveillance activities were no longer a secret thanks to Snowden's disclosures, the agency didn’t know how to respond to requesters.
Internal discussions took place between a newly formed media leaks taskforce, NSA’s public affairs office, the office of general counsel, the policy and records division and the Foia office.Internal discussions took place between a newly formed media leaks taskforce, NSA’s public affairs office, the office of general counsel, the policy and records division and the Foia office.
Pamela Phillips, the NSA’s Foia chief, suggested in one email that the agency could “buy more time for processing” if “a paper or sheet of unclassified facts” about the metadata and the data mining program, Prism, was released to requesters.Pamela Phillips, the NSA’s Foia chief, suggested in one email that the agency could “buy more time for processing” if “a paper or sheet of unclassified facts” about the metadata and the data mining program, Prism, was released to requesters.
“Having a paper or sheet of unclassified facts that could be provided to the public may make it easier to respond, because we could provide that with initial responses, and then either indicate that all other details are still classified (or have to be reviewed),” Phillips wrote on 11 June 2013. “It may buy more time for processing if requesters get something up front.”“Having a paper or sheet of unclassified facts that could be provided to the public may make it easier to respond, because we could provide that with initial responses, and then either indicate that all other details are still classified (or have to be reviewed),” Phillips wrote on 11 June 2013. “It may buy more time for processing if requesters get something up front.”
The NSA emails specifically deal with the agency’s response to post-Snowden document requests. There are some discussions between NSA officials about transparency, particularly president Barack Obama’s “direction regarding transparency in government”.The NSA emails specifically deal with the agency’s response to post-Snowden document requests. There are some discussions between NSA officials about transparency, particularly president Barack Obama’s “direction regarding transparency in government”.
But, ironically, the internal communications the agency turned over to the Guardian are heavily redacted and are marked “top secret”or “secret”. Phillips said in a letter included with the documents that it would “cause exceptionally grave damage to national security” if the information were disclosed.But, ironically, the internal communications the agency turned over to the Guardian are heavily redacted and are marked “top secret”or “secret”. Phillips said in a letter included with the documents that it would “cause exceptionally grave damage to national security” if the information were disclosed.
Still, the emails leave no doubt that Snowden prompted thousands to use open records laws to push the NSA to shine even more light on the controversial surveillance programs he exposed, an achievement that the agency continues to confront to this day.Still, the emails leave no doubt that Snowden prompted thousands to use open records laws to push the NSA to shine even more light on the controversial surveillance programs he exposed, an achievement that the agency continues to confront to this day.
“We have received over 5,200 requests since 6 June 2013," Phillips said in a recent interview. "We received just over 800 requests for the same period last year. For the one-year period from June 2012 through May 2013, we received an average of 83 requests per month. Since June 2013, we’ve received an average of 521 requests per month.”“We have received over 5,200 requests since 6 June 2013," Phillips said in a recent interview. "We received just over 800 requests for the same period last year. For the one-year period from June 2012 through May 2013, we received an average of 83 requests per month. Since June 2013, we’ve received an average of 521 requests per month.”
In a 25 June 2013 email, David Sherman, the associate director for policy and records, advised the media leaks task force and nearly a dozen NSA officials whose names are redacted that the “the overwhelming majority” of records requests the NSA had received were “from individuals seeking records the NSA allegedly holds on them”.In a 25 June 2013 email, David Sherman, the associate director for policy and records, advised the media leaks task force and nearly a dozen NSA officials whose names are redacted that the “the overwhelming majority” of records requests the NSA had received were “from individuals seeking records the NSA allegedly holds on them”.
He said there was “at least one website facilitating individual requests accounting for half the total. By way of example [redacted].”He said there was “at least one website facilitating individual requests accounting for half the total. By way of example [redacted].”
The NSA refused to entertain requests from private citizens about whether the agency stored their metadata. The emails provide a rare look inside the development of a “neither confirm nor deny” policy, known as a “Glomar response”, and the back and forth discussions that took place at the highest levels of the agency.The NSA refused to entertain requests from private citizens about whether the agency stored their metadata. The emails provide a rare look inside the development of a “neither confirm nor deny” policy, known as a “Glomar response”, and the back and forth discussions that took place at the highest levels of the agency.
“[Redacted] has pieced together some language on the recent press coverage that would allow us to make a reasonable response to individuals who are seeking information on themselves (either broadly stated as ‘all records on me,’ or more narrowly focused to information regarding their phone number, metadata, or phone calls,” Phillips wrote on 14 June to Sherman and other NSA officials.“[Redacted] has pieced together some language on the recent press coverage that would allow us to make a reasonable response to individuals who are seeking information on themselves (either broadly stated as ‘all records on me,’ or more narrowly focused to information regarding their phone number, metadata, or phone calls,” Phillips wrote on 14 June to Sherman and other NSA officials.
“It still ends up being a Glomar response, but more focused on the programs at hand. It is consistent with how we’ve always treated requests from US persons for NSA information (other than Privacy Act information).”“It still ends up being a Glomar response, but more focused on the programs at hand. It is consistent with how we’ve always treated requests from US persons for NSA information (other than Privacy Act information).”
On 17 June, Phillips sent an email asking: “What do we need to do to have this officially blessed so that I can provide this to my folks to start responding to the requests?”On 17 June, Phillips sent an email asking: “What do we need to do to have this officially blessed so that I can provide this to my folks to start responding to the requests?”
Two days later, the NSA sent out about 300 of the Glomar letters to requesters that highlighted the legality of the surveillance programs at issue.Two days later, the NSA sent out about 300 of the Glomar letters to requesters that highlighted the legality of the surveillance programs at issue.
“Thanks for your reviews and assistance so that we can begin to work down the volume of requests we’ve received over the past week and a half,” Phillips wrote in an email sent to a dozen NSA officials, a majority of whose names are redacted.“Thanks for your reviews and assistance so that we can begin to work down the volume of requests we’ve received over the past week and a half,” Phillips wrote in an email sent to a dozen NSA officials, a majority of whose names are redacted.
Sherman sent an email to Phillips and several other officials congratulating her office and the office of general counsel for “doing an absolutely super job under difficult and rapidly changing conditions”.Sherman sent an email to Phillips and several other officials congratulating her office and the office of general counsel for “doing an absolutely super job under difficult and rapidly changing conditions”.
“It’s confirming every day why NSA’s Foia program is called out as best-in-class,” Sherman added in the email with the subject line, 'Media Leaks: Strategic Guidance Needed on Engaging Foia Requesters.' “I’m the new guy and the amateur at all this, but for what it is worth I am extraordinarily proud and glad that I was offered the opportunity to be here with you at this time and see what is exceptional public service, in the true sense of the words, in action.”“It’s confirming every day why NSA’s Foia program is called out as best-in-class,” Sherman added in the email with the subject line, 'Media Leaks: Strategic Guidance Needed on Engaging Foia Requesters.' “I’m the new guy and the amateur at all this, but for what it is worth I am extraordinarily proud and glad that I was offered the opportunity to be here with you at this time and see what is exceptional public service, in the true sense of the words, in action.”
Phillips shared the email with her staff the next day.Phillips shared the email with her staff the next day.
“Thought you’d like to see Dave’s vote of confidence for the entire Foia/PA staff! Dave and I and OGC met with [head of media leaks task force] Rick Ledgett yesterday afternoon to go over the Glomar process, and he was totally comfortable with it after the meeting, as well as everything else the Foia Office is doing,” she wrote.“Thought you’d like to see Dave’s vote of confidence for the entire Foia/PA staff! Dave and I and OGC met with [head of media leaks task force] Rick Ledgett yesterday afternoon to go over the Glomar process, and he was totally comfortable with it after the meeting, as well as everything else the Foia Office is doing,” she wrote.
Sherman advised the Foia office staff as well as the media leaks task force that journalists were a different breed, however, and the agency would need to come up with an alternative strategy to deal with media requests that, according to the NSA, were so “broad as to be impossible to respond to”.Sherman advised the Foia office staff as well as the media leaks task force that journalists were a different breed, however, and the agency would need to come up with an alternative strategy to deal with media requests that, according to the NSA, were so “broad as to be impossible to respond to”.
“In the current context, the alternative of being portrayed in the media as unresponsive seems to carry too much risk,” he said.“In the current context, the alternative of being portrayed in the media as unresponsive seems to carry too much risk,” he said.
He suggested that NSA Foia officials attempt to “negotiate” with the media and help them “focus” their requests so the NSA could meet “their needs … consistent with [the NSA’s] obligation to protect classified information”.He suggested that NSA Foia officials attempt to “negotiate” with the media and help them “focus” their requests so the NSA could meet “their needs … consistent with [the NSA’s] obligation to protect classified information”.
The “negotiations” included personal phone calls to the journalists, according to the emails.The “negotiations” included personal phone calls to the journalists, according to the emails.
Patrice McDermott of transparency organization OpenTheGovernment, who is due to testify in Congress on Thursday about the continued withholding of material despite Obama's transparency order, said a line in one of the NSA emails was concerning. In Phillips advises other NSA officials that the agency "can deny all classified and all FOUO [for official use only]" Foia requests on the Prism and metadata programs and "the rest we have to process."Patrice McDermott of transparency organization OpenTheGovernment, who is due to testify in Congress on Thursday about the continued withholding of material despite Obama's transparency order, said a line in one of the NSA emails was concerning. In Phillips advises other NSA officials that the agency "can deny all classified and all FOUO [for official use only]" Foia requests on the Prism and metadata programs and "the rest we have to process."
McDermott told the Guardian that Obama's order “was clearly intended to stop the use of markings such as FOUO and to end the use of even accepted [controlled unclassified information] markings as automatic grounds for withholding information sought through Foia” hasn't yet been implemented. Agencies such as the NSA “are using the delay to inappropriately withhold information”.McDermott told the Guardian that Obama's order “was clearly intended to stop the use of markings such as FOUO and to end the use of even accepted [controlled unclassified information] markings as automatic grounds for withholding information sought through Foia” hasn't yet been implemented. Agencies such as the NSA “are using the delay to inappropriately withhold information”.
"There is no Foia exemption for FOUO or other such made-up 'agency policies,' but that has not stopped them from invoking it as a reason to deny records," McDermott said."There is no Foia exemption for FOUO or other such made-up 'agency policies,' but that has not stopped them from invoking it as a reason to deny records," McDermott said.
Nate Jones, the Foia coordinator for George Washington University's National Security Archive, said the public should not be fooled by the NSA's attempts to portray the agency as being genuinely concerned with transparency.Nate Jones, the Foia coordinator for George Washington University's National Security Archive, said the public should not be fooled by the NSA's attempts to portray the agency as being genuinely concerned with transparency.
“For those who believe the public has the right to know what information the NSA is allowed to collect the conclusion drawn in this case is that the Snowden leaks worked and the Freedom of Information Act did not,” he said.“For those who believe the public has the right to know what information the NSA is allowed to collect the conclusion drawn in this case is that the Snowden leaks worked and the Freedom of Information Act did not,” he said.