The National Security Agency, facing a Freedom of Information Act (FOIA) request and lawsuit from PPSA, reversed its position and promised to search for records regarding its possible surveillance of 48 current and former Members of Congress with oversight responsibility over U.S. intelligence agencies.
In December, PPSA filed suit against the NSA and with five other departments and agencies, seeking these records. Almost fifty lawmakers were listed in the lawsuit, including now-Vice President Kamala Harris, Sen. Marco Rubio, Sen. Dianne Feinstein, Sen. Tom Cotton, Rep. Adam Schiff and Rep. Devin Nunes.
The lawsuit followed a Freedom of Information Act (FOIA) request in October, 2020, seeking records on the “unmasking” of identities of these 48 Members and former Members of Congress in communications, as well as the use of their identities as search terms in internet traffic, a practice called “upstreaming.”
The NSA had previously rejected PPSA’s request in an earlier filing. In a communication with PPSA, NSA wrote: “[P]lease be advised that NSA collects and provides intelligence derived from foreign communications to policymakers, military commanders, and law enforcement officials. We do this to help these individuals protect the security of the United States, its allies, and their citizens from threats such as terrorism, weapons of mass destruction, foreign espionage, international organized crime, and other hostile activities.”
NSA denied the request because “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.”
In December, 2020, PPSA filed a lawsuit challenging the rejection. This week, PPSA received the following letter from an officer at NSA: “I have determined the FOIA Officer’s processing of your request was inadequate, and I am granting your appeal.”
NSA: “I have determined the FOIA Officer’s processing of your request was inadequate, and I am granting your appeal.”
The NSA should now reveal whether these Members of Congress have been subjected to either of the two intelligence practices under the Foreign Intelligence Surveillance Act (FISA), Section 702, which allows foreign surveillance but forbids spying on “U.S. persons” located inside the United States.
With unmasking, approximately twenty employees of the NSA have the authority to internally reveal the identities of Americans caught up in the surveillance of foreign communications. Unmasking results in the naming of an American in intelligence summaries.
Upstreaming, like unmasking, is subject to minimization procedures, meant to restrict the use of information about a U.S. person to a tight circle of recipients with a need to know.
PPSA will report our findings on possible government surveillance of Members of Congress with intelligence oversight authority as soon as we obtain them.
PPSA has also filed similar lawsuits against the Department of Justice and FBI, the Office of Director of National Intelligence, the Central Intelligence Agency and the Department of State.
Here is the list of 48 current and former members of committees with intelligence oversight responsibility including in PPSA’s suits and inquiries: