Request for NSA Records relating to Colin Gerard Gallagher

Colin Gallagher filed this request with the National Security Agency of the United States of America.
Tracking # 4165
Status
Rejected

Communications

From: National Security Agency

The request has been rejected, with the agency stating that it can neither confirm nor deny the existence of the requested documents.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on June 1, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

From: Colin Gallagher

From: Colin G. Gallagher
167 Pebble Place
Marina CA 93933

August 19, 2015

To: NSA / CSS FOIA / PA Appeal Authority (DJ4)
National Security Agency
9800 Savage Road STE 6248
Fort George G. Meade MD 20755-6248

Re.: Appeal of National Security Agency decision on FOIA Case 81402

Dear National Security Agency Administrator(s),

Recently I received a letter from the NSA, dated 26 June 2015 on the matter of the FOIA Case 81402, responding to my FOIA request which sought in part, "NSA records pertaining to myself, Colin Gerard Gallagher, which would have been collected by the NSA under programs authorized by Sections 206 and 215 of the USA PATRIOT Act, and Section 6001(a) of the IRTPA, aforementioned programs and sections which are now expired as of the date of this request (June 1, 2015) (...) Records sought by this request include, but would not be limited to any NSA records collected on my person as a result of use of Sections 206 or 215 of the USA PATRIOT Act, or Section 6001(a) of the IRTPA, from Oct. 26, 2001 to the date of expiration and sunset of those Sections on midnight May 31st 2015."

The letter from the NSA contained a "Glomar response." In short, this means that the agency has chosen not to acknowledge the existence or non-existence of the information that I requested (refer to my June 1 request). On this point, the subject matter relating to the material I have requested is already a matter of public disclosure, and thus arguably can be disclosed via this FOIA request. For example, it is well known and reported that FISA court order(s) are used in order to perform state business, and is not a secret. It is a matter of public record. Part of my FOIA request is "- FISA court order(s) or FISA court documents which name Colin Gerard Gallagher (my person)." Similarly, "Documentation of roving wiretaps which would include my person," a portion of my request which refers to "roving wiretaps," refers to the techniques which are public, and in no way are secret; any information which would be released about use of "roving wiretaps" on my person would be based, in part, on something that is already a matter of full public knowledge as roving wiretaps were originally authorized publicly under amendments made to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the "Wiretap Statute") in 1988 by the Electronic Communications Privacy Act, and was later expanded by section 604 of the Intelligence Authorization Act for Fiscal Year 1999; and on May 26, 2011, the U.S. Senate voted to extend the provisions of the 2001 USA PATRIOT Act to search business records and allow for roving wiretaps. The roving wiretap provision of the Patriot Act briefly expired on Jun 1, 2015, but was restored the next day by enactment of the USA Freedom Act.

This brings me to one of my final points in this appeal, and that is the matter of the timing of my FOIA request. As you know, I submitted my FOIA request on June 1, 2015, at the very time when the programs authorized by Sections 206 and 215 (including the roving wiretap provision) of the USA PATRIOT Act, and Section 6001(a) of the IRTPA, expired.

Effectively, what this meant was that during that brief window of opportunity, there was no longer any legal authority for the programs to continue (with the exception of investigations that began, or potential alleged offenses that took place, before the sunset date), but I could file a FOIA request about what was happening within them. And I did. Therefore, I have appealed the NSA's determination, because the cessation of legal authority for these programs (for however brief a period), coupled with the public disclosure that has already occurred regarding various elements of the information which I have sought via my FOIA request, justifies the appeal. The prior decision should be overturned and information I have requested should be given to me at the earliest possible opportunity.

Furthermore, the Glomar response sent to me stated in part, "The existence or non-existence of responsive records is a currently and properly classified matter in accordance with Executive Order 13526 (...) Subparagraph (c)...Section 1.4." That section of the Executive Order reads:
"Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following:"
"intelligence activities (including covert action), intelligence sources or methods, or cryptology;"

It is highly questionable that any information which would potentially result from my FOIA request would merit classification, and it the original decision is inadequate, particularly in light of the:
- public disclosure of the techniques which I have requested information or records about in a manner which concerns my person (as mentioned above in this appeal)
- the sunset of legal authority of the programs mentioned in this appeal and in the FOIA request (Case 81402) and the timing of the submittal of my request
- The failure of the agency to respond timely to the FOIA request (Case 81402), as the response was not sent within the time required by law
- Dubious use of Exemption 3
As amended, Exemption 3 allows the withholding of information prohibited
from disclosure by another statute only if one of two disjunctive requirements are
met: the statute either "(A) requires that the matters be withheld from the public in
such a manner as to leave no discretion on the issue, or (B) establishes particular
criteria for withholding or refers to particular types of matters to be withheld." A
statute thus falls within the exemption's coverage if it satisfies any one of its
disjunctive requirements.
I believe that there has been a failure to establish appropriate criteria for withholding and thus, if the agency if it feels justified in partial disclosure and partial withholding, should describe more particularly (see (B) above) what criteria will be used or what particular matters will be withheld.

I trust that upon reconsideration, you will reverse the decision denying me access to this material and grant my original request. I expect to receive your decision within 20 business days, as is required by statute.

Respectfully,

Colin Gallagher

From: Colin Gallagher

From: Colin G. Gallagher
167 Pebble Place
Marina CA 93933

September 17, 2015

To: NSA / CSS FOIA / PA Appeal Authority (DJ4)
National Security Agency
9800 Savage Road STE 6248
Fort George G. Meade MD 20755-6248

Re.: Following Up on Appeal of National Security Agency decision on FOIA Case 81402

Dear National Security Agency Administrator(s),

My appeal of your decision was due by August 25, 2015 and was timely filed with your office (I had sent my appeal on August 19, 2015, and it would seem that your office was in receipt of it by August 21, 2015). However, it has now been nearly a month and I have not heard back from your office regarding my appeal. This message is sent to you due to my concern that the agency may have adopted a policy which will limit its own ability to respond meaningfully to my Freedom of Information Act request (and at this point, to my appeal). Please reply to acknowledge this concern and to let me know what you will do in response to this issue.

I am concerned about this due to a statement from ODNI which reads as follows:
(source: http://icontherecord.tumblr.com/post/125179645313/statement-by-the-odni-on-retention-of-data)
"Statement by the ODNI on Retention of Data Collected Under Section 215 of the USA PATRIOT Act

July 27, 2015

On June 29, 2015, the Foreign Intelligence Surveillance Court approved the Government’s application to resume the Section 215 bulk telephony metadata program pursuant to the USA FREEDOM Act’s 180-day transition provision. As part of our effort to transition to the new authority, we have evaluated whether NSA should maintain access to the historical metadata after the conclusion of that 180-day period.

NSA has determined that analytic access to that historical metadata collected under Section 215 (any data collected before November 29, 2015) will cease on November 29, 2015. However, solely for data integrity purposes to verify the records produced under the new targeted production authorized by the USA FREEDOM Act, NSA will allow technical personnel to continue to have access to the historical metadata for an additional three months.

Separately, NSA remains under a continuing legal obligation to preserve its bulk 215 telephony metadata collection until civil litigation regarding the program is resolved, or the relevant courts relieve NSA of such obligations. The telephony metadata preserved solely because of preservation obligations in pending civil litigation will not be used or accessed for any other purpose, and, as soon as possible, NSA will destroy the Section 215 bulk telephony metadata upon expiration of its litigation preservation obligations."

As you know, my Freedom of Information Act Request included, but was not limited to, a request for:

- any NSA records collected on my person as a result of use of Sections...215 of the USA PATRIOT Act...from Oct. 26, 2001 to the date of expiration and sunset of those Sections on midnight May 31st 2015...
...
- Any Section 215 records which have been collected and held which refer to my person...
- Any documents the NSA retained under the aforementioned... (expired) provisions which named my person and/ or other persons in contact with me due to my cryptocurrency use in general or interest in bitcoin and / or decentralization...
- my Marina metadata application summary the NSA holds for my person..

As you can see, any action which would reduce your staff's analytic access to that historical metadata collected under Section 215 (any data collected before November 29, 2015) would be problematic, because at least a portion of this data is what I have requested in my Freedom of Information Act (FOIA) request ~ which is currently pending appeal due to your initial denial. Therefore, I must request that you place in abeyance any orders or direction you are giving to staff which would restrict them from having analytic access to historical metadata collected under Section 215 (any data collected before November 29, 2015), until such time that you have produced the records I have requested as required under FOIA.

Presumably you should preserve data resulting from bulk 215 telephony metadata collection that has been requested under Freedom of Information Act Requests until you have responded fully to all pending requests as well as any pending civil litigation regarding the program.

Please respond to this message as promptly as possible. A response by October 15, 2015 is requested, but your response is needed to this message and to my appeal by no later than November 15, 2015, as under current policy, NSA has determined that analytic access to that historical metadata collected under Section 215 (any data collected before November 29, 2015) will cease on November 29, 2015 ~ thus time is of the essence.

Respectfully,

Colin Gallagher

From: Colin Gallagher

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

This is a request for NSA records pertaining to myself, Colin Gerard Gallagher, which would have been collected by the NSA under programs authorized by Sections 206 and 215 of the USA PATRIOT Act, and Section 6001(a) of the IRTPA, aforementioned programs and sections which are now expired as of the date of this request (June 1, 2015). (Grandfather clauses permit them to remain effective
with respect to investigations that began, or potential alleged offenses that took place, before the sunset
date.)
Records sought by this request include, but would not be limited to any NSA records collected on my person as a result of use of Sections 206 or 215 of the USA PATRIOT Act, or Section 6001(a) of the IRTPA, from Oct. 26, 2001 to the date of expiration and sunset of those Sections on midnight May 31st 2015, to include the following information:
- FISA court order(s) or FISA court documents which name Colin Gerard Gallagher (my person)
- Documentation of roving wiretaps which would include my person and such phones or devices pertaining to my person
- Per Section 206 and "other persons," in the context of § 105(c)(2)(B) of FISA, I am also requesting any records resulting from Section 206 which refer to my person (either as a target or not), which direct “other persons” to assist with electronic surveillance where “the Court" found, "based on specific facts provided in the application, that the actions of the target ... may have" had "the effect of thwarting the identification of a specified person.”
- Any Section 215 records which have been collected and held which refer to my person.
- Any documents the NSA retained under the aforementioned three (expired) provisions which named my person and/ or other persons in contact with me due to my cryptocurrency use in general or interest in bitcoin and / or decentralization.
- Any documentation the NSA retained which established records of my contact with foreign persons.
- Any nondisclosure orders that are records of the NSA (or copies of records from another agency which have thus far been retained by the NSA) which mention my person, that prohibited the recipients from disclosing that the FBI sought or obtained any tangible things pursuant to a FISA order.
- The target summary that the NSA holds on my person, including:
a) my Marina metadata application summary the NSA holds for my person, and
b) my PRISM application summary
Thank you for your attention to this request.
Respectfully,
Colin Gerard Gallagher
167 Pebble Place
Marina CA 93933

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Colin Gallagher

From: National Security Agency

A letter stating that the request appeal has been received and is being processed.

From: National Security Agency

The request has been rejected by the agency.

From: Colin Gallagher

From: Colin G. Gallagher
871 ALICE ST APT 6
MONTEREY CA 93940

March 3, 2017

To: National Security Agency
Office of Policy and Records, FOIA/PA Appeals
9800 Savage Road, Suite 6248
Fort George G. Meade MD 20755-6248

Re.: Case 81402 / Appeal: 4165

Dear NSA Office of Policy and Records / FOIA/PA Appeals staff,

This is to advise you that effective as of Jan. 1, 2017, my address has changed.

My previous address was: Colin G. Gallagher, 167 Pebble Place, Marina CA 93933

My new address (as of Jan. 1, 2017) is:

Colin G. Gallagher
871 ALICE ST APT 6
MONTEREY CA 93940

Please make a note of it.

I look forward to your answer to my appeal.

Respectfully,

Colin Gallagher

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