Updated: 10:00 am Friday Pacific
Has the dam of silence broken at NSA?
In the space of a day we’ve learned that the NSA collects call logs on every phone call in the U.S. that runs via Verizon (and probably every other carrier) and that NSA taps into the servers of at least nine major Internet companies to monitor email, audio and video chats, photos and logs. That’s real content folks, not just metadata.
Keep in mind that these stories — in each case based on top secret information shared by a whistleblower — broke the same week as the Bradley Manning court martial for leaking less inflammatory information. Unlike the NSA leaks, Manning shared nothing that was classified as top secret.
And these stories broke after journalists learned just how determined the Administration is to track down leaks, given its investigation of the Associated Press.
The response to the two stories is as different as day from night.
“There is nothing new in this program,” Sen. Dianne Feinstein (D-CA) asserted Thursday while defending a sweeping collection of American telephone records.
She’s right, to a point.
Back in 2005, after George Bush breezed into a second term, the New York Times published a bombshell: our government was monitoring communications within the United States without first obtaining a warrant from the Foreign Intelligence Surveillance Court. The Times had sat on the story for more than a year, at the request of the Bush Administration.
Then in August 2006, a judge ruled that those warrantless wiretaps were illegal.
The defendants “are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program in any way, including, but not limited to, conducting warrantless wiretaps of telephone and Internet communications, in contravention of the Foreign Intelligence Surveillance Act and Title III,” she wrote.
She declared that the program “violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III.”
Her ruling went on to say that “the president of the United States … has undisputedly violated the Fourth in failing to procure judicial orders.”
The wiretapping stopped.
But collecting call logs did not.
And Congress rewrote the law.
Obama: “I came in with a healthy skepticism about these programs… But my assessment…was that they help us prevent terrorist attacks.”
— Carlos Lozada (@CarlosLozadaWP) June 7, 2013
The response to the second story — about a government hose tapping into internet communication at nine major U.S. companies since 2007 — has been denial and side-stepping.
Those companies participating in PRISM, the code name for the project, in order of acquiescence, according to the NSA slides published by The Washington Post and The Guardian:
Conspicuous by its absence: Twitter.
On deck, according to the news reports: DropBox.
All companies that responded to press inquiries denied giving the government access to their servers. Doesn’t mean it’s not happening, though. Do you really think “top secret” decisions are shared with media spokesmen? And back in 2006, the telecos were full of denial, too.
Companies are permitted by US securities law (15 U.S.C. 78m(b)(3)(A)) to refrain from properly accounting for their use of assets in matters involving national security, when properly authorized by an agency or department head acting under authorization by the President. (cite)
But this week we learned that Google will no longer allow “going off the record” for chats. In other words, you can no longer “hide” a chat from Google’s servers. Moreover, Google is no longer supporting Off-the-Record (OTR) encryption.
In reality, OTR is a “critical component of secure online communication.” When two users are using OTR, no one except them has access to the contents of their communications, including their service provider.
The Director of National Intelligence, James R. Clapper, did not deny the two news reports but said that they contained “numerous inaccuracies.”
Information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats.
The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans.
Legacy of Watergate and 9-11
History lesson: Congress passed FISA (Foreign Intelligence Surveillance Act) in 1978 in response to abuses of power in the Nixon Administration. Originally, the law was designed to constrain the executive branch.
But NPR makes the point that the current expansion of executive branch power is almost 12 years old. And although it may have had a steroid boost under a Republican President, that momentum has persisted under a Democrat.
Judge Roger Vinson authorized the NSA to seize the phone records under a provision in the USA Patriot Act, which passed shortly after the Sept. 11, 2001, attacks and vastly expanded the government’s ability to collect information on Americans.
In 2007, Congress rolled over and even provided retroactive immunity to telecos involved in the wiretaps. From Harper’s:
The Bush Administration sought an amendment of FISA to overcome roadblocks that the FISA court threw in its way. It put its case to Congress in secret and sent its national intelligence czar to negotiate a deal. When he concluded an agreement, Bush rejected it. The White House replied with threats, essentially stating that as soon as another terrorist attack occurs, we will pin the blame on Democrats in Congress because of their failure to amend FISA to give us what we want.
And now this.
Will there finally be fallout?
Attorney General Eric Holder was already slated to testify before the Senate on Thursday. Sen. Mark Kirk (R-IL) asked, “Can you assure us no members of the Capitol building were monitored?”
Holder replied that he couldn’t answer in an open forum.
Sen. Kirk’s response: “I think the correct answer is ‘we stayed within our lane and we did not spy on members of Congress’.”
Not the American people. Congress.
There are a few (too few) dissidents inside the Beltway.
— Ron Wyden (@RonWyden) June 6, 2013
In a media statement linked in the tweet, Sen Wyden (D-OR) elaborates:
Furthermore, [the American people] have a right to know whether the program that has been described is actually of value in preventing attacks. Based on several years of oversight, I believe that its value and effectiveness remain unclear.
Sen. Mark Udall (D-CO) told the Denver Post that he “did everything in my power to bring attention” to the program “short of leaking classified information.”
Sen. Udall, however, was concerned only about transparency not the nuts-and-bolts of the program.
There are legions of warnings about secrecy as well as the dangers inherent in meshing corporate and government interests. From a 2011 ACLU report (pdf):
Nearly every entity commissioned to study classification policy over the last sixty years, from the Coolidge Committee in 1956 through the Moynihan Commission in 1997, has reached the same conclusion: the federal government classifies far too much information, which damages national security and destroys government accountability and informed public debate.
Will citizens demand a repeal of The Patriot Act, a rollback of FISA power, privacy laws that treat electronic communication with the same privacy constraints as a wired-line telephone call?
I fear the answer is “no” unless the famed media echo chamber takes on this battle and someone can frame it in a way that a non-technical person can understand the danger.
Until then, I leave you with Franklin (circa February 1775):
They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.
Added explanation that companies can legally misrepresent the truth when under Presidential directive at 11:08 pm Pacific Thursday; added Obama quote (tweet) at 10:00 am Pacific Friday