Snooping in the Dark: Court Rules NSA Spying Not Broad Enough for FOIA

The United States District Court for the District of Columbia today ruled that based on national security concerns, the National Security Agency (NSA) does not have to disclose even the existence of documents related to the phone calls, emails and text messages of certain EPA officials, in response to a Competitive Enterprise Institute (CEI) lawsuit. Judge James E. Boasberg stated in his ruling that the government had not officially acknowledged its collection of such materials.  

CEI attorney Hans Bader, lead counsel on the case, stated:  “We believe that today’s ruling does nothing to protect intelligence methods but does much to protect EPA’s practice of evading public scrutiny. This ruling conflicts with rulings by other judges, such as William Pauley, finding the “government acknowledged” the collection of such metadata. Those rulings indicate that there is no national security rationale for refusing to admit these EPA documents exist, when they obviously do.”

CEI General Counsel Sam Kazman stated: “At first glance, there’s a silver lining in this decision—namely, it suggests that the NSA isn’t spying on all of us.  This is because Judge Boasberg found no public acknowledgement by the NSA that its monitoring is that broad.  On the other hand, the ruling leaves open the possibility that the NSA simply hasn’t admitted that it’s snooping on everyone.”

The court ruling did note that, as a result of the efforts of the plaintiffs and others, “EPA has come under significant fire in recent years for its record-keeping practices and transparency.”  According to Mr. Kazman, “in our experience, EPA keeps confusing transparency with invisibility”.

In 2013, it was revealed that the NSA’s data-collection programs would have captured and preserved federal records including EPA officials’ electronic paper trail.  In response, CEI requested the “metadata” (including time of the communication, duration, sender and recipient) from McCarthy’s communications made by phone, email and text message.

The plaintiffs have not yet made any decision on whether to appeal the ruling.