Government Transparency Doesn't Pierce the NSA

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The surveillance war rages on.

Last week, the NSA apologized for lying to the American people about its surveillance tactics. Now, the agency won’t reveal whose information they harbor, even if a citizen asks for their own information. It would seem government transparency doesn’t apply to the NSA.

The Freedom of Information Act (FOIA) gives Americans the right to request information previously unreleased from the federal government. Enacted in 1966, it laid out the foundation of government transparency in relation to its citizens.

President Obama’s Memorandum on Transparency and Open Government further bolstered the FOIA by claiming his administration’s intent to “establish a system of transparency, public participation, and collaboration.” The memorandum does not provide any binding laws on this policy.

That’s where the FOIA comes in. Any person, citizen or not, can formally request documents and information from the government as long the documents meet certain requirements. Documents that are exempt (read: classified) from being distributed include:

  • Documents stored in the “interest of national security”
  • Documents compiled for law enforcement purposes that, if released, would interfere with investigation proceedings or reveals a classified source
  • Documents outlining classified financial information
  • Any document that interferes with another’s personal privacy

Why, then, is the National Security Agency exempt from this entire process? The justification comes from another document signed by the President: Executive Order 13526.

The order explicitly states an updated list of information eligible for classification, including “intelligence activities (including covert action), intelligence sources or methods, or cryptology.”

Therein lies the dilemma: the NSA collected millions of Americans’ information in a secretive manner. Therefore, all of our personal information is classified and cannot be distributed back to us.

Indeed, the NSA is absent from the list of agencies from which information can be requested. The files can remain in a classified state for up to 10 years, unless deemed exceedingly sensitive, in which case the duration is extended to 25 years.

In some ways, this is a relief. At least the NSA will not provide personal information to other civilians.

However, the truly disquieting implication of this ordeal is inherent in the fact that there currently are no laws in place requiring the NSA to tell someone if they are storing their information. Not only are citizens not privy to any information, they aren’t even allowed to know if they are under surveillance.

An initiative to curb the mounting surveillance concerns has presented itself in an emergency petition to the Supreme Court. The Electronic Privacy Information Center is currently attempting to appeal to the court to discontinue the NSA’s domestic phone surveillance program, arguing the secret court that approved the program did not have sufficient justification to allow the allocation of millions of phone records.

The program was approved in the Foreign Intelligence Surveillance Court, a legal body enacted to monitor perceived foreign intelligence within domestic boundaries (read: sleeper cells and domestic terrorists).

So let’s recap: the NSA is working under covert justification to store (or not store) millions of gigabytes of information under an act that was approved by a secret court designed to stave off foreign intelligence. Obama’s transparency is beginning to look opaque.

Justified or not, the citizenry has a pertinent question to answer: How long can we sweep our concerns under the rug and live in a state of banality toward these issues?