PPSA Appeals NSA’s Refusal to Respond on Potential Surveillance of Members of House and Senate Judiciary Committees

The Project for Privacy and Surveillance Accountability on Thursday appealed the National Security Agency’s blanket refusal to produce records on the possible purchase of personal information of members of the House and Senate judiciary committees from Jan. 1, 2008, to July 26, 2021.
 
“The agency is no doubt concerned about the potential for political embarrassment if it becomes widely known that Members of Congress were themselves subject to surveillance,” Gene Schaerr, PPSA’s general counsel, wrote in this filing. “But political concerns do not become national security concerns simply because they are held by the NSA.”
 
The request covers any exchange between the U.S. Intelligence Community and telecoms, data brokers and other private-sector third parties for the personal information of these Members of Congress.
 
This administrative appeal follows parallel appeals by PPSA with the CIA and Office of the Director of National Intelligence. All three have responded with a “Glomar” denial, which neither confirms nor denies the existence of the records being sought. PPSA awaits a response on another such FOIA request before various components of the Department of Justice.
 
NSA had issued a denial on Aug. 20, 2021, a few days after receiving the original Freedom of Information Act (FOIA) request from PPSA. “The agency’s cursory denial, made mere days after receiving the request, demonstrates its failure to conduct an adequate search for responsive records,” Schaerr wrote.
 
PPSA also took issue with the two legal exemptions NSA cited for withholding documents. NSA cited FOIA Exemption 1, which allows it to withhold documents in the interest of national defense or foreign policy.
 
PPSA responded that many of “the individuals listed in the request are no longer members of congressional judiciary committees, several no longer hold any public office at all, and some are dead.” At the very least, in many such cases, there is no justification for maintaining classification.
 
The NSA also cited Exemption 3, which permits non-disclosure when the documents in question are specifically exempted from disclosure by statute. PPSA responded that “the NSA Act cannot justify the NSA’s categorial Glomar response because that statute, at best, authorizes withholding merely portions or sub-categories of responsive records.”
 
PPSA suggested that if NSA holds to these exemptions, it should still use its authority to issue a waiver to release this data. Otherwise, refusing to answer such a troubling question only highlights concerns about a surveilled democracy at the heart of PPSA’s request. To do otherwise, “potential agency misconduct puts a shadow on the NSA and other involved agencies.”
 
The worst outcome for NSA, PPSA’s filing suggests, would be adversarial litigation forcing the agency to come clean.
 
“Those troubling violations of separation-of-powers may well have been intended to serve the Executive Branch’s own institutional purposes rather than legitimate national security interests,” Schaerr wrote.