A federal appeals court on Friday upheld the National Security Agency’s decision to withhold from the public documents confirming or denying any relationship it has with Google concerning encryption and cybersecurity. That’s despite the fact that Google itself admitted it turned to “U.S. authorities,” which obviously includes the NSA, after the search giant’s Chinese operation was deeply hacked. Former NSA chief Mike McConnell told the Washington Post that collaboration between the NSA and private companies like Google was “inevitable.”
The Electronic Privacy Information Center, invoking the Freedom of Information Act, had sought such documents following the January 2010 cyberattack on Google that targeted the Gmail accounts of Chinese human rights activists. The attack was among the considerations that prompted Google to consider abandoning China, and Google announced that it was “working with the relevant U.S. authorities.”
The Wall Street Journal and the Washington Post followed up, saying Google had contacted the NSA following the attack.
EPIC sought documents seeking to know what type of collaboration there was between Google and the NSA and, among other things, records of communication between the NSA and Google concerning Google’s e-mail service Gmail.
In response, the NSA invoked a so-called “Glomar” response, in which the agency neither confirmed nor denied the existence of records on the topic at all. EPIC sued and lost in the lower courts.
On appeal, the U.S. Circuit Court of Appeals for the District of Columbia Circuit sided with the NSA’s conclusion that admitting the existence of relevant documents would harm national security (.pdf).
Judge Janice Rogers Brown, in a 3-0 opinion, sided with the government’s contention that acknowledging any records “might reveal whether the NSA investigated the threat,” or “deemed the threat a concern to the security of the U.S. government.”
If we removed all the legalese, the appellate court upheld the government’s often-said contention that, “if we told you, we’d have to kill you.”