NSA TESTIMONY ON THE SOCKOWITZ FILES

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER

Plaintiff

V.

DEPARTMENT OF COMMERCE

Defendants.

 Civil Action No. 95-2228 RMU



                DECLARATION OF JON GOLDSMITH.

JON A. GOLDSMITH, hereby declares and states:

     1. I am the Chief of External Affairs and Policy for the
National Security Agency (NSA). I have served in this position
since January 1994. I have served in the NSA for twenty eight
years.  Prior to my current assignment, I held various senior and
supervisory positions including positions as Deputy Director of
policy and as Chief of Operations for several significant
overseas programs and missions. As Chief of External Affairs and
Policy, I am a TOP SECRET classification authority pursuant to
Executive Order 12958, Section 1.4. I am responsible for the
processing of all requests made pursuant to the Freedom of
Information Act (FOIA), 5 USC 552, for NSA records and for
responding to interagency FOIA referrals received from other
federal agencies concerning NSA records. Through the exercise of
my official duties, I have become familiar with the referral by
the Department of Commerce of the documents at issue in this
case: A STUDY OF THE INTERNATIONAL MARKET FOR

COMPUTER SOFTWARE WITH ENCRYPTION (hereafter the "STUDY"), a
document authorized jointly by the Department of Commerce and
NSA. The statements herein are based upon my personal
knowledge, upon my personal review of information available to
me in my official capacity, and upon advice of counsel.  This
declaration is submitted to fulfill NSA's responsibility to
provide Plaintiff and the Court with a Vaughn index as directed
by the Court's orders of April 4, 1996.

      2. This Declaration and Vaughn index, incorporated herein,
explain and describe the Freedom of information Act (FOIA)
exemptions applied by NSA to the withheld portions of NSA
contributions to the STUDY. In order to provide the necessary
context for that discussion, I will first describe NSA's origin
and mission, and the sensitivity and importance of the
information contained in the withheld portion of the STUDY
sought by the Plaintiff's FOIA request.

                  ORIGIN AND MISSION OF NSA

     3. The NSA was established by Presidential Directive in
October 1952 as a separately organized agency within the
Department of Defense.  NSA is under the direction, authority,
and control of the Secretary of Defense, who was designated by
the President as Executive Agent of the United States Government
for conducting communications security activities (now expanded
to information systems security activities) and signals
intelligence activities of the United States.  See Executive
Order 12333, section 11.12(b).

      4. NSAs signals intelligence mission is to obtain
information from foreign electromagnetic signals and to provide
reports derived from such information or data, frequently on a
rapid-response basis, to military commanders, national policy
makers and the intelligence community of the United States
government. A primary signals intelligence mission of the NSA is
to intercept, communications of foreign governments in order to
obtain foreign intelligence information necessary to the
national defense, national security, or the conduct of the
foreign affairs of the United States. The signals intelligence
collection mission of the NSA provides national policy maker and
the intelligence community with highly reliable foreign
intelligence information.  Information obtained from intercepted
foreign communications is called communications intelligence
(hereinafter "COMINT").  NSA's COMINT efforts constitute part of
the core functions and activities of the Agency.

      5. Many foreign intelligence targets use encryption in an
effort to ensure their communications remain secret from
everyone except the intended recipient.  "Encryption" is the
process of transforming the original text of a message into a
text that is not understandable, thereby ensuring the contents
of the text remain secret.  It is an inherent part of NSA's
mission, to provide technology and techniques both to make
encryption codes to protect the security of certain U.S.
communications and computer systems to unmask the codes other
nations use to protect their communications.  A fundamental tenet
of NSA's mission is that any vulnerabilities of foreign
communications and the extent of analytic successes are matter
which must be maintained in the strictest secrecy because of the
fragility of the ability to exploit foreign communications.
Disclosure of such information could result in foreign
governments taking countermeasures and the United States being
denied valuable intelligence information.  Given its mission,
NSA has necessarily been the government agency to develop the
greatest technical expertise in the field of encryption. For
this reason, NSA was called upon to help research and write the
STUDY which a 1994 Presidential Review Directive ((PRD/NSC-48)
directed to be conducted.

    6. In developing its portion of the STUDY, NSA sought and
received, information from the Department of State, the CIA and
from foreign sources. Some of the information NSA acquired from
these sources is classified or otherwise protected information.
Those portions, along with the classified or otherwise protected
NSA originated information, are identified below in the Vaughn
index sections of this declaration.  The Vaughn index is divided
into two parts.  Part I identifies and describes the particular
Freedom of Information (FOIA) exemptions being relied upon to
withhold certain information from the NSA portion of the STUDY.
Part II addresses the the subject matter of the redacted
information (section by section) and the FOIA exemption(s)
applicable to each. Part II will reference (rather than restate)
the descriptions of the applicable FOIA exemptions found in Part
I. Careful consideration was given to segregating information
that could be released and withholding only that information
that required protection. Thus, only those portions of NSA's
contribution of the STUDY, which NSA continues to withhold on
behalf of itself and the CIA, are identified and described in
the Vaughn index below.

         PART I: DESCRIPTION OF APPLICABLE EXEMPTIONS

      7. Section 552 (b) (l) of the Freedom of information Act
(FOIA). 5 U.S.C. 552 (b) (l) (noted as "(b) (1)") provides that
the FOIA does not apply to matters that are specifically
authorized under criteria established by an Executive Order to
be kept secret in the interest of national defense or foreign
policy and are in fact properly classified pursuant to such
Executive Order. The current Executive Order which which
establishes such criteria is Executive Order 12598.  Information
withheld is currently and property classified in accordance with
Executive Order ("E.O") 12958.  The information meets the
criteria for classification as set forth in subparagraphs (b),
(c) , and (g) of section 1.5 of that E.O.  Subparagraph (b)
relates to foreign government information; subparagraph (c)
relates to intelligence activities (including special
activities), intelligence sources or methods or cryptology;
subparagraph (d) relates to foreign relations or foreign
activities of the United States, including confidential sources;
and, subparagraph (g) relates to vulnerabilities or capabilities
of systems, installations, projects or plans relating to the
national security.

     8. Sections 552 (b) (2) of FOIA, 5 USC 552 (b) (2) (noted
as "(b) (2)) exempts from disclosure information that relates
solely to the internal personnel rules and practices of an
agency. This exemption has been held to apply to substantive
internal practices and procedures ("high (b) (2)").

       9. Section 552 (b) (3) of FOIA, 5 USC 552 (b) (3) (noted
as "(b) (3)") - provides that the FOIA does not apply to matters
that are specifically exempted from disclosure by statute,
provided that such statute (1) requires that the matters be
withheld from the public in such a manner as to leave no
discretion on the issue. (2) establishes particular criteria for
withholding or (3) refers to particular types of matters to be
withheld. NSAs functions and activities are protected from
public disclosure by several statutes. Congress has passed these
statutes to protect the fragile nature of NSA's COMINT efforts
and other activities including, but not limited to, the
existence and depth of signals intelligence related analytical
successes, weaknesses and exploitation techniques. Throughout
Part II of the Vaughn index, there are entries noting the
applicability of the (b) (8) exemption with respect to one or
more of the following three statutes:

   a.  Section 6. The National Security Act of 1959, Public Law
86-36 codified at 50 USC 402 noted (noted as "86-36") provides
that no law shall be construed to require the disclosure of any
function of the NSA or any information with respect to the
activities of the NSA.

    b. 18 U.8.C 6 798 (a) (noted as "798") prohibits the
disclosure to unauthorized persons of, among other things,
classified information concerning the the communication
intelligence activities of the United States or any foreign
government.

    c. 50 USC 403-3(c)(5) (noted as "403").  This statute
relates to the protection of intelligence sources and methods.

        PART II: INDEX OF SPECIFIC PARAGRAPHS WITHHELD

From the Document "A STUDY OF THE INTERNATIONAL MARKET FOR
COMPUTER SOFTWARE WITH ENCRYPTION," Dated July 1995

      Page ES-3 last paragraph, last two sentences:

Analysis of cryptographic quality. Both sentences are protected
in their entirety pursuant to exemption (b) (1) (E. O. 12958
Section 1 .5 (c)), exemptions (b) (2) and (b) (3). (Applicable
statutes, 86-36, 798, and 403).

      Page II-2, 3rd full paragraph, last sentence:

References the views of NSA on the export control process and is
protected in its entirety pursuant to exemption (b) (1) (E. O,
12958, Section 1.5 (c), and (g)), exemptions (b) (2) and (b)
(3). (Applicable statutes 88-36 and 403).

      Page II-8, 2nd full paragraph, last sentence:

This sentence refers to international export controls and is
protected in its entirety pursuant to exemption (b) (1) (EO
12958, Sections 1.5 (b), (c), and (g)).  (Applicable statutes
86-36 and 403).

      Page II-10, 4th paragraph, 5th sentence:

References foreign government positions on encryption software
and is protected in its entirety pursuant to exemption (b) (1)
(EO 12958, Section 1.5 (b)).

      Page II-11, 5th full paragraph, sentences 3 & 4:

References the Australian government's position on export
control and are protected in their entirety pursuant to
exemption (b) (1) (EO 12958, Section 1.5 (b) and (d)).

      Page II-12, 1st paragraph, sentences 5, 6 and 7:

References the Defence Signals Directorate's (DSD) position on
cryptographic equipment and are protected in their entirety
pursuant to exemption (b) (1) (EO 12958, Section 1.5 (b)).

      Page II-13, 4th paragraph:

References to Canada's export policy and is protected in its
entirety pursuant to exemption (b) (1) (EO 12958, Section 1.5
(b)).

      Page II-14, 3rd paragraph:

Refers to export controls between the United States and Canada
and is protected in its entirety pursuant to exemption (b) (1)
(EO 12958, Section 1.5 (b) and (d)).

      Page II-14, 3rd paragraph:

Refers to Denmark's export licensing process and the associated
administrative matters and are protected in their entirety
pursuant to exemption (b) (1) (EO 12958, Section 1.5 (b)).

      Page II-15, 3rd full paragraph:

Refers to Denmark's domestic use of cryptographic products and
is protected in its entirety pursuant to exemption (b) (1) (EO
12958, Section 1.5 (b) and (d)).

      Page II-16, 2nd full paragraph:

References and unpublished declaration of the Council (No.12)
and is protected in its entirety pursuant to exemption (b) (1)
(EO 12958, Section 1.5 (b) and (d)).

      Page II-18, 5th full paragraph, 4th sentence and the
remainder of the paragraph which continues on Page II-19:

References that Bundesnachrichtendienst (BND) position on export
of products and is protected in its entirety pursuant to
exemption (b) (1) (EO 12958, Section 1.5 (b) and (d)).

      Page II-19, 3rd full paragraph:

Refers to Germany's export control policy and is protected in
its is protected in its entirety pursuant to exemption (b) (1)
(EO 12958, Section 1.5 (c) and (d), and exemption (b) (3).
(Applicable statute 403).  (This information was supplied by the
CIA)

      Page II-21, 1st full paragraph:

Refers to the export of cryptographic equipment from Israel and
is protected in its entirety pursuant to exemption (b) (1) (EO
12958, Section 1.5 (b)).

      Page II-21, 2nd full paragraph, 4th sentence:

Refers to Israel's export policy and is protected in its
entirety pursuant to exemption (b) (1) (EO 12958, Section 1.5
(b)).

      Page II-21, 4th full paragraph which continues on Page
II-22:

References discussions between Italian officials and members of
the National Security Authority regarding Law Number 222 of
February 27, 1992 and is protected in its entirety pursuant to
exemption (b) (1) (EO 12958, Section 1.5 (b)).

      Page II-22, 1st full paragraph, sentence 5:

Refers to security software and is protected in its entirety
pursuant to exemption (b) (1) (EO 12958, Section 1.5 (b)).

      Page II-23, rollover paragraph, sentences 1-4 on page
II-23:

Refers to approval authority of export licenses pertaining to
encryption products and is protected in its entirety pursuant to
exemption (b) (1) (EO 12958, Section 1.5 (b)).

      Page II-23, 4th full paragraph, 2nd sentence which
continues on Page II-24 and the remainder of the paragraph:

Refers to export of software from the Netherlands and is
protected in its entirety pursuant to exemption (b) (1) (EO
12958, Section 1.5 (b)).

      Page II-24, 1st full paragraph:

Refers to the export of software from the Netherlands and is
protected in its entirety pursuant to exemption (b) (1) (EO
12958, Section 1.5 (b)).

      Page II-24, 3rd full paragraph, sentences 1-5:

Reference a proposed Netherlands Telecommunications Service Act
in 1993.  The first sentence of this paragraph was supplied by
the CIA and is protected in its entirety pursuant to exemption
(b)(3).  (Applicable statute 403).  Sentences 2-5 are protected
in their entirety by exemption (b) (1) (EO 12958, Sections 1.5
(b) and (c)) and exemption (b) (3). (Applicable statute 403).

      Page II-24, 4th full paragraph:

Refers to the Netherlands domestic use of encryption and is
protected in its entirety pursuant to exemption (b) (1) (EO
12958, Section 1.5 (b)).

      Page II-25, 4th paragraph, sentences 3-6:

Reference export control for encryption equipment from Norway
and are protected in its entirety pursuant to exemption (b) (1)
(EO 12958, Section 1.5 (b)).

      Page II-26, 1st full paragraph:

Refers to the domestic use of encryption in Norway and is
protected in its entirety pursuant to exemption (b) (1) (EO
12958, Section 1.5 (b)).   Page II-28, 5th paragraph:

     Page II-28, 5th paragraph.

References the Spanish government policies regarding export,
import and domestic use of cryptographic products and is
protected in its entirety pursuant to exemption (b) (1) (EO
12958, Section 1.5 (b)).

      Page II-29, 1st paragraph:

References the export of cryptographic equipment from Spain and
is protected in its entirety pursuant to exemption (b) (1) (EO
12958, Section 1.5 (b)).

      Page II-29, 4th paragraph:

Refers to the domestic use of cryptographic equipment and is
protected in its entirety pursuant to exemption (b) (1) (EO
12958, Section 1.5 (b)).

      Page II-29, 5th paragraph, last two sentences:

References the public use of cryptography and is protected in
its entirety pursuant to exemption (b) (1) (EO 12958, Section
1.5 (b)).

      Page II-30, 3rd paragraph, last sentence:

Refers to the domestic use of cryptography in Sweden and is
protected in its entirety pursuant to exemption (b) (1) (EO
12958, Section 1.5 (b)).

      Page II-32, 2nd paragraph:

Refers to the domestic use of cryptography in the United Kingdom
and is protected in its entirety pursuant to exemption (b) (1)
(EO 12958, Section 1.5 (b)).

      Page IV-3, 1st paragraph, sentences 2-5, 8 and 9:

Refers to the cryptographic effectiveness of DES algorithms and
are protected in its entirety pursuant to exemption (b) (1) (EO
12958, Section 1.5 (g)), and exemptions (b) (2) and (b) (3),
(Applicable statute is 86-36).

     Page B-1 - B-5, Column - "How Contacted/Comments" portions
of each entry except page B-3, 4th entry:

Refers to internal NSA documents control numbers, project name,
and the associated dates and is protected in its entirety pursuant
to exemption (b) (1) (EO 12958, Section 1.5 (g)), and exemptions
(b) (3), (Applicable statute is 86-36).

     Page B-3, Column - "Software Outlets/Computer Stores", 4th
entry:  

Refers to a internal NSA document control number and project
name and is protected in its entirety pursuant to exemption (b)
(1) (EO 12958, Section 1.5 (g)), and exemptions (b) (3),
(Applicable statute is 86-36).

     10. I cannot describe in more detail the withheld
information in an unclassified declaration because further
description would defeat protection afforded the information
under Executive Order 12598 and the statutory protections
described above.  I am prepared to more fully describe, in a
classified declaration for the Court in camera, exparte review,
the withheld information and the damage to the national security
of the United States that would likely occur if the records were
disclosed,

    11. I declare under penalty of perjury that the facts set forth
are true and correct to the best of my knowledge and belief.
Executed pursuant to 28 USC 1746.

Jon A. Goldsmith
Chief of External Affairs and Policy
Executed this 14th day of June 1996


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