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: