FOIA: Cellular Encryption

[gnu (John Gilmore)]

November 23, 1993

Chief, Office of Policy
National Security Agency/Central Security Service
Fort George Meade, MD  20755-6000
ATTN:  FOIA request

Reference:  CELLULAR ENCRYPTION

Dear Sir or Madam:

This is a request under the Freedom of Information Act [5 
U.S.C. � 552(a)] on behalf of my client, Mr. John Gilmore.  

I write to request a copy of all agency records or portions 
thereof, in electronic or other form, which pertain, relate, or refer to 
encryption for cellular telephone communications.  This request 
includes, but is not limited to records about:  a standard known as 
the Cellular Message Encryption Algorithm ("CMEA"); NSA's 
involvement in the development of CMEA; NSA's assessment of 
the strengths, weaknesses, and technical features of CMEA; 
standards or technologies other than CMEA considered for cellular 
telephone communications encryption contacts, conversations, 
meetings or communications of any sort involving NSA employees 
and persons not employed by NSA regarding cellular telephone 
communications encryption.  

Mr. Gilmore is informed and believes that NSA employees 
have been involved in meetings with persons not employed by 
NSA, including persons outside of the U.S. government, about the 
CMEA standard, and he specifically asks that you disclose all 
agency records of any or all such meetings.

As you know, the FOIA provides that an agency must make 
an initial determination of whether to comply with a FOIA request 
within ten working days of receiving the request.  Your own 
regulations provide that �[t]he Chief, Office of Policy, shall notify 
the requester of his determination within 10 working days of his 
receipt of the request.�  [32 C.F.R. � 299.4(b)].  

If the records that you possess were originated or classified 
by another organization, I ask that your organization declassify 
them (if needed) and release them to me, as provided in the FOIA, 
within the statutory time limits.  If there is a conflict between the 
statutory time limits and some regulation or policy that requires 
you refer the records, the statutory requirement takes precedence 
over any Executive-branch regulation, policy or practice.  As you 
know, the FOIA provides that no more than an additional 10 
working days be taken for such consultation.  5 U.S.C. � 
552(a)(6)(B).  If you do refer documents to any other agency, and 
they are not provided within the time limits, we intend to litigate on 
this point.

We also remind you that the long-standing rule that the 
FOIA "makes no distinction between records maintained in manual 
and computer storage systems," Yeager v. D.E.A., 678 F.2d 315, 
321 (D.C.Cir. 1982), has recently been amplified in Armstrong v. 
E.O.P., No 93-5002 (D.C. Cir., Aug. 13, 1993).  Any paper print-
outs of electronic records, such as e-mail, must include all 
information in the electronic record.  Assuming that there would be 
no loss of releasable information, such as written comments made 
on paper print-outs, we therefore ask you to release all responsive 
electronic records in electronic, i.e., machine-readable, form.

As you know, the FOIA provides that even if some 
requested material is properly exempted from mandatory 
disclosure, all segregable portions must be released.  [5 U.S.C. � 
552(b)]  If any or all material covered by this request is withheld, 
please inform me of the specific exemptions that are being claimed, 
and mark all deletions to indicate the exemption(s) being claimed 
to authorize each individual withholding.  If the (b)(3) exemption is 
claimed, please indicate the relevant withholding statute(s).

In addition, I ask that your agency exercise its discretion to 
release information that may be technically exempt.  As you know, 
the Attorney General on October 4, 1993, directed that agencies 
should administer the FOIA under a presumption of disclosure, and 
that information which need not be withheld should not be.

Please do not delay processing because of uncertainty about 
the request.  I have reasonably described the records sought.  If you 
have any questions regarding this request, please telephone me at 
the above number, and we can discuss your questions.  

I also request that fees be waived because Mr. Gilmore is 
deemed a media requester by your agency for FOIA purposes.   
Should there be any problem in this regard, Mr. Gilmore promises 
to pay up to $1000 in fees, and you should therefore begin 
processing of this request without fee-related delays.  

As provided under the FOIA, I will expect a reply within ten 
(10) working days.  

Sincerely,



Lee Tien
Attorney at Law
On behalf of Mr. 
John Gilmore