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Electronic Frontier Foundation Sues NSA, Director of National Intelligence

EFF says that the agencies have failed to provide documents requested under the Freedom of Information Act.

The Electronic Frontier Foundation (EFF) has filed a Freedom of Information Act (FOIA) lawsuit against the NSA and the Office of the Director of National Intelligence (ODNI) for failing to deliver on requests for documents about how intelligence agencies decide whether or not to disclose zero-day security flaws.

The request was filed after Bloomberg News, citing "two people familiar with the matter," reported April 11 that the NSA secretly exploited the Heartbleed bug themselves for at least two years before the public knew about the vulnerability.

April 28, Michael Daniel, special assistant to the President and the cybersecurity coordinator stated in a blog post that the NSA had no prior knowledge of Heartbleed and further stated that they have developed an "interagency process for deciding when to share vulnerabilities," called the Vulnerability Equities Process.

As Daniel described:

"This interagency process helps ensure that all of the pros and cons are properly considered and weighed. While there are no hard and fast rules, here are a few things I want to know when an agency proposes temporarily withholding knowledge of a vulnerability:

  • How much is the vulnerable system used in the core internet infrastructure, in other critical infrastructure systems, in the U.S. economy, and/or in national security systems?
  • Does the vulnerability, if left unpatched, impose significant risk?
  • How much harm could an adversary nation or criminal group do with knowledge of this vulnerability?
  • How likely is it that we would know if someone else was exploiting it?
  • How badly do we need the intelligence we think we can get from exploiting the vulnerability?
  • Are there other ways we can get it?
  • Could we utilize the vulnerability for a short period of time before we disclose it?
  • How likely is it that someone else will discover the vulnerability?
  • Can the vulnerability be patched or otherwise mitigated?"

EFF wants to know more. The FOIA request filed May 6 asks for "all records, including electronic records, concerning or reflecting: the development or implementation of the 'Vulnerabilities Equity Process' and... the ‘principles’ that guide the agency 'decision-making process for vulnerability disclosure' in the process described in the White House blog post."

"It's hard to speculate on what they have or don't have," but the messaging from the government implies that documents formally outlining the process and records describing how it has been implemented exist, says EFF Legal Fellow Andrew Crocker. Although some of the information might be classified and therefore redacted from the disclosed documents, it is possible that these records could include prior decisions on what zero-day vulnerabilities were disclosed, when, he says.

EFF formally asked that the processing of the request be expedited. ODNI granted that request; NSA rejected it. Under the law, agencies have 20 days to respond to a regular FOIA request, and fewer if that request is expedited. Crocker says that in practice those deadlines are rarely met. EFF filed the lawsuit July 1 -- nearly two months later -- alleging that these organizations are in violation of FOIA for failure to expedite processing and wrongful withholding of agency records.

"We as a country, as a public, have engaged in a particularly intense debate about the scope of intelligence gathering-techniques," Crocker says. He says that the debate has resulted in greater transparency, but that zero-day vulnerability disclosure remains "a particularly not very well-understood area of what the intelligence agencies do."

The agencies being sued have 30 days (from July 1) to respond to the lawsuit.

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