Want A File From The NSA? You Can Ask, But You Might Not Get It

By Emily Siner

Published November 23, 2013 at 12:45 PM CST

Protesters march on Oct. 26 to demand that the Congress investigate the National Security Agency's mass surveillance programs. Legally, the NSA can respond to many records requests from citizens with a non-committal answer.

Since former National Security Agency contractor Edward Snowden leaked classified information about the agency's intelligence-gathering activities last summer, the NSA has been bombarded with requests for its records.

USA Today this week said the agency received more than 2,500 requests for records from July to September, compared to about 250 from January to March.

"The largest percentage of requests being received is from individuals wanting to know if NSA has collected their information as part of its intelligence mission," Pamela Phillips, the NSA's public liaison officer, tells NPR.

Under the Freedom of Information Act, known as FOIA, anyone may ask for information like budgets, internal memos from government agencies or information collected about themselves.

Just because you ask, however, does not mean you shall receive.

It is very hard, if not impossible, to force NSA to disclose information.

"We understand that American citizens might expect NSA to disclose whether it has records on them," Phillips says. "Were we to confirm or deny the existence of intelligence records in response to any one individual ... we would need to do the same for all individuals making similar requests" — like terrorists, she says.

It's perfectly legal for agencies to deny requests for classified records or not even say whether they have them, says Steven Aftergood, a government secrecy expert at the Federation of American Scientists.

He says the silence could mean the agency has determined that the disclosure would cause damage to national security. And "signals intelligence" — like information on e-mail or phone surveillance — is considered among the most sensitive.

A Productive Response

In fact, he says, it's difficult to get any information from the NSA. Not only is a huge bulk of agency work classified — and therefore exempt from FOIA requests — but the NSA also allowed to exclude information pertaining to the functions and activities of the organization, "which is almost everything," Aftergood says.

"It is very hard, if not impossible, to force NSA to disclose information," he says.

So will the NSA actually agree to hand over anything? It turns out there are some success stories. There's no comprehensive list, but here are some recent examples:

NSA talking points on its mass surveillance program: Jason Leopold, an investigative reporter for Al Jazeera America, requested these talking points in June. About four months later, the NSA handed over 27 pages of them. The agency did not send the documents used to prepare the talking points, which was part of the request — saying they required additional review.

Internal organization charts and staff directories: Intelligence historian Matthew Aid says he's garnered these, along with thousands of other documents. "I have literally 71 boxes of documents sitting in my apartment," he says.

A multi-volume history of the NSA during the Cold War: The National Security Archive, a nonprofit that advocates greater government transparency, requested the study in 2006, and the NSA has been releasing parts of it since 2008. The history revealed, for example, that Muhammad Ali and the Rev. Martin Luther King Jr. were monitored by the NSA in the 1960s.

Documents from a cyber-security program monitoring Internet traffic: After several years and a lawsuit, the Electronic Privacy Information Center (EPIC) received material on a 2008 directive that gave the NSA "broad authority" over the security of U.S. computer networks.

NSA training documents and court opinions: Earlier this week, in response to a request by the ACLU and Electronic Frontier Foundation, the Director of National Intelligence released about 1,000 pages of documents. The material included Foreign Intelligence Surveillance Court opinions concerning the NSA's bulk collection of email and phone metadata.

A list of what records have been requested: "Sometimes I file a request for the agency's FOIA logs, and I'll get those," Leopold says. But if any of the requested records were classified, the NSA would black them out.

The NSA also releases declassified material — millions of pages of documents each year, Aftergood says. But these are most often historical documents that are no longer deemed sensitive. And that process might take decades.

Relatively Transparent

But as some of the NSA's recent disclosures show, the declassification process is speeding up. The agency has been under enormous pressure now to become more transparent, says Marc Rotenberg, EPIC's executive director.

And even though there's so much secrecy, the NSA was already relatively responsive to the demand for transparency. It maintains a section of its own website for declassified material and collaborates with a Tumblr run by the Office of the Director of National Intelligence.

"You go into it knowing that the NSA is a highly secretive agency. Its programs are highly classified," Leopold, with Al Jazeera America, says. "They still respond far better than agencies such as the FBI, the CIA."

Aid, the intelligence historian, agrees. "NSA, since 9/11, has been the only branch of the intelligence community that hasn't told me to go shut up and sit in the corner," he says. "You can always ask them for anything — just don't be surprised if they say no."