NSA, Google Cyberattack Records To Remain Sealed, Court Rules
May 14, 2012

NSA, Google Cyberattack Records To Remain Sealed, Court Rules

Federal officials are not required to disclose National Security Agency (NSA) records related to a 2010 cyberattack on Google users in China under the Freedom of Information Act, an appeals court ruled on Friday.

The original request for communications records of discussions between the NSA and the Mountain View, California-based tech company was made by the Electronic Privacy Information Center (EPIC), a privacy advocacy and civil liberties organization. However, the agency said that they could never confirm or deny the existence of any such records, issuing what is known as a 'Glomar' response, CNN's Bill Mears said.

The NSA asserts that disclosing any information related to the hackings could make American government information systems vulnerable to attacks, added Virginia Mayo of the Associated Press (AP). Last year, a federal court judge sided with the security organization, and now a three-judge panel with the Washington DC Court of Appeals has upheld that previous verdict, she added.

"The existence of a relationship or communications between the NSA and any private company certainly constitutes an 'activity' of the agency subject to protection" from public disclosure, Judge Janice Rogers Brown said, according to Mears. "Moreover, if private entities knew that any of their attempts to reach out to NSA could be made public through a FOIA request, they might hesitate or decline to contact the agency, thereby hindering its Information Assurance mission."

In addressing the 'Glomar' response, Brown wrote that the key issue was whether or not acknowledging either the existence or nonexistence of the sought-after documents would reveal secret NSA activities, Mayo said. Conversely, EPIC had insisted that some of the records they had requested, including unsolicited communications sent from Google to the security agency, were not covered under exemptions claimed by NSA officials.

"In reviewing an agency's Glomar response, this court exercises caution when the information requested" directly involves national security, Brown added, according to the AP. "NSA need not make a specific showing of potential harm to national security in order to justify withholding information" in such cases, she wrote in her decision.