The US Court of Appeals for the District of Columbia Circuit [official website] on Friday rejected [opinion, PDF] a Freedom of Information Act (FOIA) [official website] request arising out of 2010 cyber attack on Google [JURIST news archive] targeting Gmail accounts of Chinese human rights activists. The Electronic Privacy Information Center (EPIC) [advocacy website] sought any communications between the National Security Agency (NSA) [official website] and Google concerning cybersecurity in 2010, but the NSA responded by issuing a Glomar response [DOI backgrounder], in which it neither confirms nor denies the existence of any responsive records, under Exemption 3 of FOIA and Section 6 of the National Security Agency Act (NSAA) [text]. The district court granted summary judgment for NSA. The main question the court of appeals focused on was whether the withheld material would reveal "the organization or any function" of the NSA. The court held that disclosing the NSA's relationship with Google would disclose information about the agency's organization concerning cybersecurity and information assurance. Thus, such activity would be protected under Section 6 of the NSAA. Circuit Judge Brown also expressed the concern that by allowing information between a private entity and the agency to go public, the former would be declined to work with the agency in the future hindering its mission of information assurance.
Friday's ruling is not the first time a court allowed the NSA neither to confirm nor deny the existence of requested documents under the FOIA concerning the agency's activities. In 2010, the US Court of Appeals for the Second Circuit [official website] held [JURIST report] that the NSA and the Department of Justice (DOJ) [official website] are not required to confirm or deny the existence of electronic surveillance records under the FOIA. The warrantless surveillance program has been criticized since its adoption during Bush administration in 2005. A former US Department of Justice Office of Legal Counsel [official website] lawyer defended [JURIST report] the program against a report [JURIST report] and criticism that it is in violation of the Foreign Intelligence Surveillance Act (FISA) [text] claiming that FISA contributed to the government's failure to prevent the 9/11 attacks.