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########## ########## ########## |
########## ########## ########## | GILMORE VS. THE NSA
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######## ######## ######## |
######## ######## ######## | THE CRYPTO ANARCHIST MANIFESTO
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########## #### #### | 2nd PIONEER AWARDS DEADLINE LOOMS
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=====================================================================
EFFector Online December 11, 1992 Issue 4.00
A Publication of the Electronic Frontier Foundation
ISSN 1062-9424
=====================================================================
ACCESSING THE NSA
JOHN GILMORE FILES SUIT WITH THE NATIONAL SECURITY AGENCY
At the beginning of July 1992, John Gilmore filed a FOIA request
with NSA asking for access to parts of cryptologic treatises
written by NSA personnel: Military Cryptanalysis, Parts III
and IV, by William Friedman (WF-3/4); and Military
Cryptanalytics, Parts III-VI, by William Friedman and
Lambros Callimahos (LC3-6).
Parts I and II of each of these treatises had already been
declassified and published. At the time of the request, it
was not definitely known whether the parts requested by
Gilmore had been re-classified.
Under the FOIA, agencies are required to communicate
responses to requesters within statutorily prescribed time
periods. Failure to comply with the time limits for response
constitutes a denial of the request, giving the requester the
right to appeal.
When NSA violated the first applicable time period,
Gilmore filed an administrative appeal with the NSA's FOIA
appeals authority. There is also a time limit for response
to such appeals. After this time limit passed without a
response from the NSA's appeals authority, Gilmore filed
a complaint in federal court in the Northern District of
California on Sept. 4, 1992, as permitted by the FOIA.
Gilmore's complaint alleged three claims: First, that the
NSA improperly withheld these documents from him, and
had no legal basis for withholding; second, that the NSA's
failure to comply with the FOIA time limits constituted a
form of improper withholding; and third, that the NSA in
general engages in an illegal pattern or practice of routinely
violating the FOIA time limits, which should be declared
illegal and enjoined.
In the period between the initial FOIA request to NSA, and
the filing of the complaint in federal court, Gilmore obtained
copies of two of the withheld documents: Military
Cryptanalysis Parts III and IV, by Friedman. These copies
were discovered in libraries accessible to the general
public and were provided by these libraries without any
kind of restriction. Gilmore intended to get expert opinion
on the national security risk posed by disclosure of these
documents. He also reasoned that their very availability
in such libraries demonstrated that there could be no legal
basis for withholding them from a FOIA requester.
At the time the documents were obtained, Gilmore had not
received any indication from NSA that the documents were
classified. It was therefore possible that the documents
were not, in fact, classified. In addition, FOIA requests for
documents generally trigger agency declassification review.
Thus, even if the documents were in fact classified at the
time of the request, it was possible that NSA would decide
that they should no longer be classified, and release them
to Gilmore.
After the complaint was filed, Gilmore not only served the
complaint upon NSA, he also served a number of discovery
requests upon NSA, seeking to discover information about
both the history of these documents and about NSA's FOIA
processing procedures.
In early October, after NSA had received the complaint and
the discovery requests, NSA finally sent its responses to
the FOIA request. NSA informed Gilmore that the documents
were not going to be released to him. NSA said that it had
located WF-3/4 and LC-3, but that LC-4/5/6 had never been
completed because of the death of Lambros Callimahos.
First, NSA asserted that the three documents which did
exist were classified. WF-3/4 were classified CONFIDENTIAL,
the lowest level of classification under Executive Order
12,356 governing classified information. LC-3 was
classified SECRET, the middle level of classification.
Under the FOIA, an agency may withhold documents if they
are properly classified for reasons of national security.
Second, NSA asserted that the documents could also be
withheld under a different exemption in the FOIA. Under the
(b)(3) exemption, documents may be withheld if there exists
a statute which authorizes an agency to withhold them. NSA
pointed to several statutes which arguably covered this
material. One of these statutes, 18 U.S.C. Section 798,
makes it a federal crime knowingly to disclose classified
cryptologic or communications intelligence information to
unauthorized persons.
At this point, it became clear to Gilmore that there was a
problem. He now knew for a fact that the documents he had
were classified (WF-3/4) and that it would be a crime for
him to disseminate them. He could no longer continue with
his plan of showing them to other persons for fear of
criminal prosecution. He also feared that should NSA ever
discover that he possessed them, he would be subjected to
search and seizure and the copies confiscated. (Note that
although the First Amendment Privacy Protection Act
generally protects the press against search and seizure
for materials intended for publication where the crime
involves mere possession or dissemination of information,
it does not apply to any materials covered by the espionage
statutes, of which 18 U.S.C. Section 798 is one.)
NSA did not, however, know that he had them. Gilmore
decided that the best course of action was to submit copies
of WF-3/4 to the federal district court under seal. By so
doing, he would ensure that at least these copies would be
kept out of the NSA's hands, since it was unlikely that a federal
judge would relinquish possession of documents material to
pending litigation. Thus, on November 12, Gilmore made an
ex parte application to file these documents under seal with
Judge Thelton Henderson, the federal judge hearing his case.
Gilmore also concurrently filed a motion for leave to amend
his original complaint in order to address the constitutional
and other issues arising from his possession of the documents
and the criminality of disseminating documents found in
libraries open to the general public.
It is important to realize that the criminal statute at issue
here does not recognize improper classification as a defense.
Under existing law, the government need only show that the
documents were classified by the government, and that they
are cryptologic- or communications-intelligence-related. It
remains unclear precisely what the specific requirement
under the statute is, i.e., whether "knowingly" means actual
knowledge of classification, or merely some reason to know.
(That same day, NSA filed two motions of its own:
a motion for a protective order blocking Gilmore's discovery
requests, and a motion for summary judgment asking the
court to dispose of the case on the ground that NSA was
entitled to judgment as a matter of law. In support of its
summary judgment motion, NSA filed a sworn declaration
by Michael Smith, Chief of Policy, explaining why the
documents should be withheld, and why NSA's FOIA
processing procedures were not illegal.)
NSA was served with papers indicating that WF-3/4 had been
received by the district court. This was the first time that
NSA knew that Gilmore possessed the documents. They
reacted strongly. John Martin, the Justice Department lawyer
representing NSA, asked that Gilmore surrender his copies to
NSA, saying that NSA was very upset and might send its own
agents or FBI agents to get the copies from Gilmore. He also
wanted to know whe