 The Project for Privacy and Surveillance Accountability (PPSA) filed an appeal today challenging a blanket refusal by the FBI to reveal if it has surveilled anyone on a bipartisan list of 48 Members of Congress with oversight responsibility of intelligence agencies. Members included in this request range from Rep. Adam Schiff and Sen. Kamala Harris to Rep. Devin Nunes and Sen. Marco Rubio. In a Freedom of Information Act (FOIA) filing dated January 27, 2020, PPSA specifically asked if current and past senators and House members have been “unmasked” – or had their identities revealed to the FBI from conversations with foreigners targeted for surveillance. PPSA also asked if these same individuals have had their names “upstreamed” – their identifies confirmed from communications gleaned from cables and switches that comprise the backbone of the internet. “None of the explanations offered by the FBI for withholding this information hold water,” said Erik Jaffe, PPSA president. “We understand this is a sensitive topic, and we would accept necessary redactions of names and other identifying information if they are needed for reasons of security or privacy. But by refusing to reveal anything, the FBI leaves a shadow that is suggestive of something large and potentially sinister.” The FBI rationalized its non-response response to PPSA’s request based on exemptions in FOIA law. “None of these claimed exemptions justify withholding responsive documents,” Jaffe said. “It is clear the agency’s blanket denial demonstrates a refusal to conduct an adequate search for responsive records.” For example, the FBI cited FOIA Exemption 1 concerning materials specifically exempted by an executive order. The FBI did not, however, cite any executive order it purports to rely upon. It also ignored a D.C. Circuit requirement that an agency “must provide detailed and specific information demonstrating that material withheld is logically within the domain of the exemption claimed.” The FBI cannot use national security concerns as an excuse to avoid revealing political targeting. “The agency’s refusal even to search for responsive documents, especially in light of its failure to show that disclosure would risk damage to national security, has no benign interpretation,” Jaffe said. “The FBI cannot use legitimate but generic national security concerns as an excuse to avoid revealing specific political targeting by an intelligence agency.” Another claimed exemption, FOIA Exemption 3, allows agency non-disclosure when the documents in question are specifically exempted from disclosure by a statute. But the statute the FBI cites, 50 U.S.C. § 3024(i)(1), instructs the Director of National Intelligence to prepare “intelligence products in such a way that source information is removed to allow for dissemination … in declassified form to the extent practicable.” “If the ODNI says there’s not a problem with disclosure, how can the FBI say that there is?” “This is not really a debatable point,” Jaffe said. He pointed to a May 25, 2020 letter from then Acting Director of National Intelligence, Richard Grenell to Sen. Mark Warner stating that “the decision to declassify the names of individuals who sought to unmask the identity of General Flynn poses absolutely no risk of compromise of either sources or methods.” “If the Office of Director of National Intelligence says there’s not a problem with such disclosures, how can the FBI say that there is a problem here?” Jaffe asked. Concerning privacy issues in Exemptions 6 and 7(C), Jaffe said, “the FBI’s reasoning is risible.” “Our requests concern elected public officials who either hold or held nationally prominent positions both as members of the United States legislative branch and as members of committees that had oversight on intelligence,” Jaffe said. “I am sure that when they read this, many current and former Members will be clamoring for answers.” PPSA has filed FOIA requests with the FBI, CIA, NSA, ODNI, the Department of Justice and State Department to provide all documents, reports, memoranda, or communications regarding the unmasking―including all unmasking requests―and/or upstreaming of any person listed below from January 1, 2008 to January 15, 2020. These Members Are:
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