STUART M. GERSON Assistant Attorney General JOHN A. MENDEZ United States Attorney STEPHEN L. SCHIRLE Chief, Civil Division MARY BETH UITTI Assistant United States Attorney (415) 556-6181 ELIZABETH A. PUGH JOHN S. MARTIN Attorneys, Department of Justice Civil Division Room 1024 901 E Street N.W. Washington, D.C. 20530 (202)616-0179 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA John C. Gilmore, ) Plaintiff ) Civil Action No. C-92-3646 ) TEH vs . ) National Security ) Agency, ) Defendant. ) DEFENDANT'S STATEMENT OF MATERIAL FACTS NOT IN DISPUTE In support of defendant's Motion for Summary Judgment, and in accordance with Local Rule 220(7), defendant states the following material facts as to which there is no genuine dispute: l. By letter dated June 27, 1992, plaintiff made a request under the Freedom of Information Act ("FOIA") for parts of two cryptanalytic treatises which are in the possession of defendant the National Security Agency ("NSA"). See Declaration of Michael A. Smith ("Smith Decl.") at paragraph 9, which defendant hereby incorporates by reference. 2. Plaintiff's FOIA request sought parts III and IV of Military Cryptanalysis and parts III, IV, V, and VI of Military Cryptanalytics. Smith Decl. at paragraph 9. 3. Plaintiff's FOIA request was denied by letter dated October 2, 1992, on the grounds that the treatises are both properly classified and therefore exempt from disclosure pursuant to 5 U.S.C. ¤ 552(b)(1), and that they are protected by statute and therefore exempt from disclosure pursuant to 5 U.S.C. ¤ 552 (b)(3). Smith Decl. at paragraph 21; Letter from Michael A. Smith to Lee Tien, October 2, 1992. 4. Military Cryptanalysis was written by William Friedman, a pioneer in modern cryptology, and published between 1938 and 1941. Smith Decl. at paragraph 9. 5. Military Cryptanalysis describes sophisticated cryptographic and cryptanalytic techniques developed by Friedman and numerous other cryptologists. Smith Decl. at paragraph 9. 6. Parts I and II of Military Cryptanalysis have been declassified and are currently available to the public. Smith Decl. at paragraph 9. 7. Parts III and IV of Military Cryptanalysis remain classified "confidential" pursuant to Executive Order 12356. Smith Decl. at paragraph 9. 8. Military Cryptanalytics was published between 1956 and 1977. Smith Decl. at paragraph 9. 9. Military Cryptanalytics was principally authored by Lambros Callimahos but contains monographs prepared by a number of other NSA cryptanalysts, and therefore contains much of the collective cryptanalytical knowledge of NSA. Smith Decl. at paragraph 9. 10. Military Cryptanalytics updates and expands on Friedman's work, incorporating numerous person-years of NSA cryptanalytic experience. Smith Decl. at paragraph 9. 11. Parts I and II of Military Cryptanalytics, written in 1956 and 1959 respectively, have been declassified since 1984. 12. Part III of Militarv Cryptanalytics is classified 13. Parts IV, V, and VI of Military Cryptanalytics were never completed due to Callimahos's death. Smith Decl. at paragraph 9. 14. Despite their age, the cryptographic systems described in both works are still perceived as secure, and consequently they are currently in use in parts of the world today. Smith Decl. at paragraph 11. 15. All of the records which remain classified have been reviewed by proper classification authorities to ensure that classification remains appropriate. Smith Decl. at paragraph 10. 16. Exemption 1 of the FOIA, 5 U.S.C. ¤ 552 (b)(l), exempts from disclosure matters that are properly classified in the interest of national security pursuant to Executive Order. 17. Exemption 3 of the FOIA, 5 U.S.C. ¤ 552 (b)(3), exempts from disclosure matters that are "specifically exempted from disclosure by statute." 18. Public law 86-36, 50 U.S.C. ¤ 402 note, protects against the disclosure of "any function, of [NSA]. . .[or] the activities thereof..." 19. 18 ¤ 798 criminalizes the willful disclosure of classified information "concerning the communication intelligence activities of the United States." 20. 50 U.S.C. ¤ 403 (d)(3) protects against the unauthorized disclosure of "intelligence services and methods." 21. Plaintiff's FOIA request was processed in accordance with NSA's two track first-in-first out system, as expeditiously as permitted by NSA's backlog and resources. Respectfully submitted, STUART M. GERSON Assistant Attorney General JOHN A. MENDEZ United States Attorney STEPHEN L. SCHIRLE MARY BETH UITTI Assistant United States Attorney (signed) ELIZABETH A. PUGH (signed) JOHN S. MARTIN Attorneys, Department of Justice Civil Division Room 1024 901 E Street N.W. Washington, D.C. 20530 (202)616-0179 Of Counsel: Alison Jameson National Security Agency Fort Meade, Maryland 20755