NSA Responds to Petition to Conduct Rulemaking on Domestic Surveillance

Back in June I signed on to EPIC‘s request to the NSA (formally a ‘petition’ under 5 U.S.C. § 553(e)). Here is the text:

Dear General Alexander and Secretary Hagel:

The undersigned individuals and organizations, concerned about the rule of law and the protection of Constitutional freedoms, hereby petition the National Security Agency to conduct a public rulemaking on the agency’s monitoring and collection of communications traffic within the United States. 5 U.S.C. § 553(e).

We believe that the NSA’s collection of domestic communications contravenes the First and Fourth Amendments to the United States Constitution, and violates several federal privacy laws, including the Privacy Act of 1974, and the Foreign Intelligence Surveillance Act of 1978 as amended.

The NSA’s collection of solely domestic communications, which has been acknowledged by the President, the Director of National Intelligence, and the Chair and Ranking Member of the Senate Select Committee on Intelligence, also constitutes a legislative rule that “substantively affects the public to a degree sufficient to implicate the policy interests animating notice-and-comment rulemaking” under the Administrative Procedure Act. EPIC v. DHS, 653 F.3d 1, 6 (D.C. Cir. 2011). Accordingly, the NSA’s collection of domestic communications, absent the opportunity for public comment, is unlawful.

We hereby petition the National Security Agency, a component of the Department of Defense, for relief. We ask the NSA to immediately suspend collection of solely domestic communications pending the completion of a public rulemaking as required by law.

We intend to renew our request each week until we receive your response.

The NSA Responded. No prizes for guessing what they said:

Re: EPIC Petition for NSA to Conduct a Public Rulemaking Dear Mr. Rotenberg:

On behalf of the Director, National Security Agency/Chief, Central Security Service (NSA/CSS), I am responding to your organization’s August 9, 2013 petition for rulemaking on what you refer to as the “monitoring and collection of communications traffic within the United States” by NSA. As a general matter, any NSA activities involving the collection of communications that may meet the description set forth in your letter, if any, would not constitute Agency actions that are subject to the notice-and-comment requirements of the Administrative Procedures Act, such as the issuance, amendment, or repeal of rules or regulations.

The U.S. Department of Defense and the National Security Agency operate in accordance with the Constitution and laws of the United States, under the direction of the President, and will continue to work within the confines of the law and the oversight of both the U.S. Congress and the Judiciary.

I would expect that a core part of the NSA’s legal argument is that their activities are covered by 5 U.S.C. § 553(a)(1)’s exemption for “a military or foreign affairs function of the United States”. But can that exemption really apply to domestic spying? To illegal domestic surveillance? Are they really prepared to argue that with a straight face?

There are also interesting questions of whether the agency is acting ultra vires, in excess of its statutory authority (and whether we know exactly what those authorities are). If so, can it be reasonable for the agency to reject a petition designed to open a process in which the agency must justify its actions, one in which if it cannot justify them then it be subjected to judicial review?

The answers to those questions engage three of my main interest: civil liberties, technologies of freedom, and Administrative Law. Watch this space.

Note: Although I am on the EPIC Advisory Board, I am speaking solely for myself here.

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