A federal appeals court has ruled that the government can go dark – essentially conceal all of its information – regarding communications or operations involving the National Security Agency and Google Inc.
The issue arose following a January 2010 cyber attack on Google that the court said primarily targeted Gmail accounts of Chinese human rights activists.
At the time, Google confirmed it was “working with the relevant U.S. authorities” on the problem and the Wall Street Journal and the Washington Post both reported that Google had contacted the National Security Agency “immediately following the attack.”
Further, NSA Director Mike McConnell then told the Washington Post that collaboration between NSA and private companies like Google was “inevitable,” according to the court.
The case arose, then, when the Electronic Privacy Information Center sought additional details of the agreement and cooperation between the NSA and Google.
The federal government refused, and when EPIC filed a Freedom of Information Act Request the agency said it would neither confirm nor deny the existence of any such information.
That decision now has been endorsed by Judges Janice Brown, Brett Kavanaugh and Doug Ginsburg of the U.S. Court of Appeals in Washington.
That ruling said a federal agency may “refuse to confirm or deny the existence or nonexistence of responsive records if the particular FOIA exemption at issue would itself preclude the acknowledgment of such documents.”
The ruling continued, “An agency may issue a Glomar response [refuse to admit or deny existence of documents] when ‘to answer the FOIA inquiry would cause harm cognizable under’ an applicable statutory exemption. The agency must demonstrate that acknowledging the mere existence of responsive records would disclose exempt information.”
The judges said, “NSA need not make a specific showing of potential harm to national security in order to justify withholding information under Section 6, because ‘Congress has already, in enacting the statute, decided that disclosure of NSA activities is potentially harmful.’
“EPIC claims its request seeks some records that are not covered by [exemptions], specifically, unsolicited communications from Google to NSA, which would fall within the second category of information described in the request,” the court said.
But the court said if “NSA disclosed whether there are (or are not) records of a partnership or communications between Google and NSA regarding Google’s security, that disclosure might reveal whether NSA investigated the threat, deemed the threat a concern to the security of U.S. government information systems, or took any measures in response to the threat.
“As such, any information pertaining to the relationship between Google and NSA would reveal protected information about NSA’s implementation of its Information Assurance mission. The existence of a relationship or communications between the NSA and any private company certainly constitutes an ‘activity’ of the agency subject to protection…”
The judges continued, “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…”
EPIC, which still has pending other challenges to the secrecy of the NSA, including questions over Internet wiretapping and the NSA’s own legal authority, did not announce immediately whether the decision would be appealed.
The lower court’s decision had come from U.S. District Judge Richard Leon.
He said, “The NSA need not disclose ‘the organization or any function of the National Security Agency, [or] any information with respect to the activities thereof.’”
“Once the agency, through affidavits, has created ‘as complete a public record as is possible’ and explained ‘in as much detail as is possible the basis for its claim,’ … ‘the court is not to conduct a detailed inquiry to decide whether it agrees with the agency’s opinions,’” he said.
His conclusion was that whether Google is spying for the NSA or not, Americans have no right to know.