Whatever relationship Google and the National Security Agency have, the U.S. Justice Department says the public doesn't have a right to know about it.
The U.S. Court of Appeals for the D.C. Circuit today picked up a dispute between the NSA and the Electronic Privacy Information Center, the Washington-based civil liberties advocate and research center.
The privacy group wants the security agency to disclose any communication with Google, especially concerning the decision to encrypt Gmail. EPIC filed a public records request in 2010. A lower court judge sided with the NSA, which refused to reveal any collaboration between Google.
EPIC’s attorney, Marc Rotenberg, said in the appeals court today that his organization isn’t interested in exposing protected NSA activity or challenging the legality of any partnership between a private company and the security agency.
“We’re not only asking about communications between Google and the NSA,” Rotenberg said. “We’re also asking about communications regarding decisions to encrypt or not encrypt Gmail.”
Those activities, he insisted, are apart from any agreement between Google and the NSA and are noted on a public NSA Web site. The agency, Rotenberg said, publicly encourages Google mail users to use encryption. The public records spat centers around Google's reported agreement with the NSA following a cyber attack in 2010.
Justice Department attorney Catherine Hancock said disclosing any communication between the NSA and Google would reveal whether the government has a partnership with Google. DOJ also said it cannot disclose any information that could reveal potential areas of concern for the U.S. government about computer systems.
The NSA refused to search its systems for any records responsive to EPIC’s request. Instead, the NSA filed a declaration asserting its authority, under federal law, to hold any records secret from the public.
The NSA, relying on the so-called “Glomar” doctrine, declined to either confirm or deny the existence of any records about the NSA’s collaboration with Google. Rotenberg said in court: “That’s a very broad assertion of Glomar that this court has never accepted.”
EPIC, Rotenberg told the appeals court, is not seeking information about any activity that is integrally related to a function of the NSA. He argued that there’s a disconnect between the organization’s public records request and the content of the NSA declaration submitted in response to it.
There is no reference in the records request to a function related to the NSA’s mission, Rotenberg said. The NSA declaration, he said, “speaks repeatedly” to the agency’s function to secure computer systems. He said in court that the existence of those documents could conceivably be withheld from the public.
But EPIC’s request, he argued, targets information outside of the NSA’s mission.
D.C. Circuit Judge Douglas Ginsburg, who heard the case with Judges Brett Kavanaugh and Janice Rogers Brown, asked whether certain information in any communication between Google and the NSA can be redacted before it is released to the public.
Hancock said blacking out information doesn’t reach the government’s bigger-picture concern about keeping secret any collaboration between Google and the NSA. Releasing any document that EPIC wants would tend to confirm the existence of such a public-private agreement, she said.
Ginsburg seemed skeptical, telling Hancock about the DOJ refusal to redact: “You haven’t consulted the documents. It might be possible. It might not.”
The judge said he doesn’t know how DOJ can “categorically” determine, without looking at the records, that any documents would reveal protected activities of the NSA.
DOJ lawyers said in court papers that the security agency regularly monitors vulnerabilities in commercial technology because of the government's reliance on private companies for word processing systems and email software.
The NSA, said Hancock, may rely on or may encourage private reporting from companies such as Google. Exposing any such communication, she said in court, could harm the government.
“If that information were subject to disclosure under FOIA, that would hinder that part of NSA’s functions and activities,” Hancock said in court.
Brown asked Hancock about matters the NSA has put on the public record, creating the appearance of a contradictory position in the litigation.
The NSA has publicly disclosed information about the protection of e-mail. But that disclosure, Hancock said in court, is very limited.
She insisted that the earlier public disclosure, in which the NSA encourages Gmail users to encrypt electronic communication, does not mean the agency has given up its right to hold onto more detailed information.
The appeals court did not immediately rule this morning.