Case Spotlight: Seeking Metadata from the NSA

EPA Administrator Gina McCarthy (left) in 2013 as she is sworn in by Deputy Administrator Bob Perciasepe, while former Administrator Carol Browner holds the Bible.

Three nonprofit organizations are suing the National Security Agency in an attempt to get it to release the metadata associated with records they say were inappropriately destroyed by another agency.

They believe the NSA has the records because of revelations in 2013 that the agency was collecting the data associated with millions of Verizon email and text messaging accounts.

The complainants – the Competitive Enterprise Institute (CEI), the Energy & Environment Legal Institute and the Free Market Environmental Law Clinic – filed suit on June 8 after the NSA issued a Glomar response neither confirming nor denying the existence of the records.

One of the complainants, CEI, originally sought email and text messages directly from the Environmental Protection Agency that were sent and received from Verizon accounts EPA provided to Administrator Gina McCarthy, as well as the private Verizon account of her predecessor, Lisa Jackson. The EPA at first denied CEI’s fee-waiver request, which became the subject of another FOIA lawsuit, and later said that the emails had been destroyed because the messages sent from the accounts were personal. But the lawsuit contends that the accounts were used to correspond with EPA staff and lobbying interests such as the Sierra Club and Siemens Corp., making the correspondence subject to FOIA.

The lawsuit against the EPA and the subsequent suit against the NSA are among the more than 5,000 that can be found using the FOIA Project’s free Case Search tool.

Christopher Horner, a senior fellow at the Competitive Enterprise Institute, said the 2013 revelation that a FISA court judge had ordered Verizon to provide data from its customers to the NSA provided an opening for CEI and the other complainants to continue to pursue the records.

“Fortunately,” the complaint against NSA states, “in the course of its data collection programs, NSA captured and preserved these federal records. Although NSA refuses to process the requests at issue in this matter on the basis that confirming or denying the existence of this information and the relevant collection program would pose a threat to national security, it has already acknowledged the program’s existence, which is of great public interest. Similarly, in the past two years EPA’s electronic correspondence and recordkeeping (‘transparency’) practices have become the subject of great controversy and public, congressional and media interest.”

The lawsuit seeks the metadata on the messages, which includes the time and location the messages were sent, as well as who sent each message and to whom. That’s exactly the information the NSA is thought to have collected from Verizon. (The story was first reported by The Guardian, and soon after by The New York Times).

In its answer to the suit, the NSA denies most of the allegations, or states that it has no knowledge of them, which is standard practice. However, it does “admit that it has publicly acknowledged the existence of the Section 215 Program,” which is a provision of the Patriot Act under which some enhanced surveillance activities have been justified.

The Justice Department lawyers handling the case declined to comment, referring questions to DOJ’s Public Affairs Office, which said it did not comment on pending litigation.

The suit was filed the U.S. District Court for the District of Columbia and has been assigned to Judge James E. Boasberg.