Wondering if the US government’s shadowy security agents are working behind the scenes with the biggest entity on the Internet? Don’t hold your breath waiting — one advocacy group has to take Uncle Sam to court for an answer.
The Electronic Privacy Information Center, or EPIC, is suing the United States National Security Agency to find out the truth behind any partnership between the NSA and Google, the Silicon Valley giants behind the Web’s most popular search engine and a laundry list of other online applications and services. EPIC has been asking for information on an alleged alliance since 2010, but with the NSA refusing to submit to Freedom of Information Act requests, the US District Court of Appeals will hear arguments later this month that the advocacy group hopes will mean that they will soon learn the truth regarding whether or not the two are in cahoots.
In February 2010, DC-based non-profit group EPIC filed a FOIA request with the NSA as reports were unearthed suggesting that the government’s security group was hammering out a deal with Google on the topic of cybersecurity. EPIC was curious at the time about any correspondence between the parties that could concrete rumors of a relationship and filed the necessary paperwork to obtain materials. Although the NSA responded that March, the agency did so by saying that they could neither confirm nor deny any partnership between the two. For failing to disclose information pursuant with the FOIA request, EPIC took NSA to US District Court last July, only for US District Judge Richard Leon to stand with the government and further reject EPIC’s requests.
More than two years after filing their first FOIA request, EPIC and the NSA will face off again this month when the US Court of Appeals for the DC Circuit will hear arguments on March 20. EPIC is hoping to have Judge Leon’s 2011 decision overruled, in turn approving the non-profit’s motion for summary judgment.
Although the last court ruling granted the NSA the motion for summary judgment that has kept them from having to disclose any documents, EPIC now says that the NSA cannot be entitled to summary judgment when it neglected to even search for the materials requested. “Without first conducting the search, not even the agency can know whether there is a factual basis for its legal position. The decision of the District Court should be reversed and the case remanded with an order requiring the agency to conduct the search for responsive records,” writes EPIC.
EPIC’s attorneys drafted and published their oral arguments in January and will present them before a three-person panel of appeals judges later this month. It will be then in a DC court that they will argue that the NSA is required to conduct a search for responsive agency records before the agency can flatly opine they can neither confirm or deny any partnership, an explanation referred to in legal circles as a Glomar response. Following the initial request from 2010, the NASA invoked Exemption 3 of the Freedom of Information Act to defer acknowledging any assistance — or lack thereof — of NSA records pertinent to the request. EPIC was quick to fire back, however, filing an administrative appeal that May stating that the NSA had failed to provide evidence that the materials in question warranted a response on par with what the agency provided.
In explaining their case now, EPIC’s attorneys write that “The Glomar response is appropriate where ‘to confirm or deny the existence of records … would cause harm cognizable under a FOIA exception.’” On the contrary, argues EPIC, “The NSA has failed to meet this standard and has failed to perform the segregability analysis required by statute to determine whether non-exempt records may be released.”
“The NSA asserted Glomar, a narrow doctrine for a special category for records, without ever searching for any responsive records within the agency’s possession, without ever attempting to identify materials that could be disclosed, without even creating a record that would allow appellant or the court to evaluate the agency’s position on an agency activity that is widely report in the national media, acknowledged by the former director of the agency, and impacts the interests of millions of Internet users. The agency’s position is contrary to FOIA and prevailing case law,” adds EPIC.
Over their lack of cooperation and assistance in the inquiry, EPIC charges that “While the agency may choose to assert several statutory exemptions if it wishes to withheld records in its possession, acknowledging the existence of unsolicited third-party e-mails sent to the NSA does not reveal any information about the NSA’s functions and activities. Moreover, if records in possession of the agency reveal activities that fall outside of the agency’s proper functions and activities, these too would be subject to disclosure under the FOIA.”
In appealing, EPIC quotes US President Barack Obama, who announced on his first full day in office that FOIA requests “should be administrated with a clear presumption: in the face of doubt, openness prevails.” Although Obama campaigned with the promise of creating an administration more transparent than any other in history, watchdog groups such as EPIC continue to be locked out of FOIA request and whistleblowers, including PFC Bradley Manning and WikiLeak’s Julian Assange, are prosecuted and shunned by the federal government.
EPIC also argues that the NSA has been responsive to FOIA requests in the past, which adds to the intrigue over a possible government-Google alliance. “This Court has never granted the broad authority that the NSA seeks in this case, to issue a Glomar response without conducting a search for responsive records, particularly when the agency itself has put so much information about the subject matter of the request in the public record,” claims EPIC.
Calling into question any conspiring between the search engine giants and the government, EPIC adds, “Google provides cloud-based services to consumers, not critical infrastructure services to the government.”
Despite an array of violations identified by the Securities and Exchanges Commission, Google has repeatedly been left off the hook by the federal government with merely a slap on the wrist. Earlier this month, Megaupload founder Kim Dotcom attacked the partnership between Silicon Valley’s private sector and the US federal government for allowing Google to walk over copyright infringement charges while the alleged file-sharing kingpin could end up behind bars for life for similar crimes.
“I'm not Google. I don't have 50 billion dollars in my account and right now I've not a penny on my account. All my lawyers currently are basically working without a penny and they are all still on board and all still doing their job because what they see here is unfair, is unreasonable and is not justice,” Dotcom told New Zealand’s 3news, adding he felt the persecution was “political.”