The Edward Snowden Affair (26 page)

The media quickly wondered whether Kucherena was attempting to impart something to the American exile by handing him Dostoevsky’s 1866 classic. It is the tale of Rodion Raskolnikov, a lowly dropout living in squalor in St. Petersburg. He kills a pawn broker who financially and emotionally preyed upon those around her. He justifies his decision using Utilitarian reasoning: The malevolence of the murder is counterbalanced by the world no longer having to suffer the pawn broker’s existence and her money going to charity. The largest portion of the novel deals with Raskolnikov mentally contending with the consequences of his actions. Snowden’s attorney obviously saw real-life parallels in his client.

In Kucherena’s words, he had given Snowden a copy of the Russian attorney’s favorite writer, Chekhov, for “dessert.”
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Chekhov is known for his short stories and plays. Though sometimes comical, they are by no means light reading. His characters are often morally ambiguous and frustratingly human. Chekhov’s work could only be considered dessert because the portions are smaller than Dostoevsky’s 200,000-word main course.By comparison, this text is a little over 110,000 words.

Conservative in its interpretation and novelistic in its presentation, Karamzin’s history of Russia was the true literary compensation for Dostoevsky. Kucherena had only provided Snowden with an abridgment of the 12-volume collection. Within a few days, Snowden had devoured Dostoevsky and, after surveying Karamzin, asked for the historian’s complete oeuvre.
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Apparently Snowden expected to remain at Sheremetyevo for a long time.

As the world awaited Snowden’s fate, former NSA director Michael Hayden presented an op-ed piece to CNN on July 24.
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In lieu of the preceding, documented reports, he audaciously claims the location of communicants is not tracked and recorded. Hayden states, “No data mining engines or complex logarithmic tools are launched to scour the data for abstract patterns.” Even though
Der Spiegel
had granted the world greater insight into the inner workings of XKeyscore only four days before, Snowden had indirectly spoken of the program’s ability to do just that. He had told Appelbaum, “An analyst will get a daily (or scheduled, based on exfiltration summary) report on what changed on the system, PCAPS of leftover data that wasn’t understood by the automated dissectors, and so forth.” The former NSA director then contradicts himself by announcing the data which the NSA hasn’t collected “lies fallow until the NSA can put a question to it based on a predicate related to terrorism and only terrorism.” Interestingly, though the media attempted to discredit Snowden’s credentials by labeling him a “low-level contract consultant,”
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Hayden reports that the ability to draw up this concise data is only granted to “a little more than 20 people in the NSA.” There are over 1,000 NSA employees and contractors that hold the same position Snowden did.
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Hayden tells his readers NSA surveillance is “not about targeting Americans” but “[ … ] who in America deserve[s] to be targeted.”

Following the tradition started by his congressional counterparts, Hayden attempts to legitimize the various American surveillance programs by reminding his audience the programs were court approved. He flippantly observes, “After all, the Supreme Court had determined decades earlier (Smith v. Maryland, 1979) that metadata carried no expectations of privacy.” He goes on to quote Steve Bradbury, former head of the Justice Department’s Office of Legal Counsel, “At least 14 federal judges have approved the NSA’s acquisition of this data every 90 days since 2006 under the business records provision of the Foreign Intelligence Surveillance Act (FISA).” Hayden, like many of his political peers since June 5, assumed his audience hadn’t grown tired of the fallacy that an action’s justifiability is determined by its ability to win a majority vote, the best historic example being American slave laws.

On July 31, the U.S. government set out to rectify some of the damage its reputation had incurred. In Washington, Clapper—20 years ahead of schedule—declassified the first half of the previously leaked FISC order demanding telecommunication providers turn over metadata records. He also disclosed two letters, dated 2009 and 2011, addressed to various intelligence committee members concerning the use of bulk surveillance.
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Clapper was trying to absolve himself of responsibility by releasing the letters and incriminating members of Congress. They ask congressional heads of intelligence to inform their peers that information pertaining to government surveillance was available for review for a limited time. There is no evidence the messages were forwarded, as witnessed on June 11 at the close of an emergency congressional briefing after the first disclosures had premiered. Leaving the meeting, Representative Bill Pascrell stated, “There was a letter that we were supposed to have received in 2011 but I can’t find it and most of my friends in Congress did not receive this either.”
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Clapper had declassified the documents amid a Senate Judiciary Committee hearing which established that only one terror plot, not 54 as had been previously reported, were foiled using current surveillance methods. During the proceedings, Senator Charles Grassley reprimanded General Clapper for having lied to Congress in the March 2013 hearing when he unequivocally answered “No sir” to the question “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Grassley declared, “Nothing can excuse this kind of behavior from a senior administration official of any administration, especially on matters of such grave importance.”
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While Clapper sat before Congress, the person who famously queried, “Why can’t we collect all the signals all the time?” tried appeasing a younger crowd. NSA Director Keith Alexander was the keynote speaker at Black Hat USA 2013 in Las Vegas. Black Hat is a yearly IT security convention. Alexander assumed his techie audience wouldn’t be familiar with Freud and attempted to convince the attendees that NSA analysts play the same role as civilian IT technicians. He was met by jeers and demands for him to read the United States Constitution.
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Somewhat surprisingly since Snowden’s fate could hang in the balance, the same day Greenwald presented “XKeyscore: NSA tool collects ‘nearly everything a user does on the internet.’”
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Greenwald does nothing short of put the first nail in the surveillance debate’s coffin.

It begins, “A top secret National Security Agency program allows analysts to search with no prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals.” Greenwald dubiously adds, “according to documents provided by whistleblower Edward Snowden.” The documentation includes 32 PowerPoint training slides. The NSA accomplishes this by using, in the agency’s terms, its “widest reaching” tool for surveillance, XKeyscore. Greenwald reports that the program’s capabilities are much more expansive than had been previously revealed. They include the ability to search by “name, telephone number, IP address, keywords, [ … ]” and even the type of browser used. The results of the query are staggering. XKeyscore can produce “every email address seen in a session by both username and domain,” “every phone number seen in a session (e.g., address book entries or signature block [automatic signatures placed at the bottom of a email])” and “webmail and chat activity, [ … ] username, buddylist, machine specific cookies [which house IP logs] etc.” XKeyscore’s reach is near absolute.

The program “searches [the] bodies of emails, webpages and documents,” including the “To, From, CC, BCC lines” as well as ‘Contact Us’ pages on websites.” By utilizing a tool called “Presenter,” an analyst can freely read Facebook chats or private messages. This is as simple as entering a user’s Facebook name and listing a date range for the desired online conversations. An analyst can even investigate what terms have been entered into a search engine and the locations a person has explored using Google Maps. In the NSA’s assessment, XKeyscore allows access to “nearly everything a typical user does on the internet.” The slides boast of “provid[ing] real-time target activity” which alerts analysts to new online activity conducted by a target. Analysts are told to be on the lookout for people “searching the web for suspicious stuff.” After “suspicious stuff” is detected, XKeyscore is used to reveal who has visited a particular website by accessing the website’s IP cookie address catalog. One training prompt dauntingly asks for XKeyscore to “Show me all the exploitable machines in country X.”

As an example of the program’s prowess, when an analyst queries a person’s email, XKeyscore brings up everything that has been collected, and the analyst can then pick which emails to read. The available information includes “communications that transit the United States and communications that terminate in the United States.” In other words, the surveillance tool gathers any communications that travel through American networks. Accompanying documentation shows XKeyscore is positioned in Washington State, Texas and the upper northeast, presumably New York.

In order to retroactively access this data, the NSA must record and index the World Wide Web’s “raw unselected bulk traffic” flow. Poitras would later add that it does this using “DeepDive” buffer technology. This slows down Internet connections so data captures can be made more easily.
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The classified slides relay that up to two billion records are added daily. During one month in 2008, XKeyscore had vacuumed up nearly 42 billion live, full-take records. By 2012, an average of 150 bits of data for every Internet user in America was stored in the NSA’s 30-day buffer. Confirming Snowden’s previous
Der Spiegel
statement, XKeyscore has “customizable storage times.”

Targeting takes places using templated forms that permit an analyst to select justification from a simple dropdown menu. Analysts are allowed to pick from several choices, including “Phone number country code indicates person is located outside the U.S.,” “Phone number is registered in a country other than the U.S.” and the easiest alibi for an inquiry, “In direct contact w/tgt [target] overseas, no info to show proposed tgt in U.S.” As Greenwald makes clear, after an analyst hits “send,” the NSA employee does not have to wait for an FISC order or even in-house clearance before proceeding with the investigation. The only time a request is reviewed is after the fact should an audit take place. But, as Snowden informed his journalistic team in Hong Kong, “It’s very rare to be questioned on our searches and even when we are, it’s usually along the lines of ‘Let’s bulk up the justification.’” Using typical linguistic ambiguity, the NSA’s official statement regarding Greenwald’s report was, “Every search by an NSA analyst is [my emphasis] fully auditable,” not that searches were regularly audited in much the same manner a person can take a walk every day not necessitating the individual actually does.

The documentation substantiates Greenwald’s June 20 warrantless data acquisition exposé as well as
The Guardian
’s July 11 Microsoft encryption report. Just as American citizen Bob’s foreign telephone is cause for an investigation, XKeyscore analysts are told to be mindful of “someone who is using encryption.” An example prompt also tells the program, “Show me all the VPN [virtual private network] startups in country X, and give me the data so I can decrypt and discover the users.” A VPN is often used for security purposes and grants the user the theoretical safety of a private network while permitting data to travel freely over the Internet. VPN’s are frequently utilized by corporate personnel to keep confidential business information out of a competitor’s grasp.

XKeyscore also validates one of the whistleblower’s most controversial statements. On June 9, Snowden told the world, “Not all analysts have the ability to target everything, but I, sitting at my desk, certainly had the authorities to wiretap anyone from you or your accountant, to a federal judge, to even the President if I had a personal e-mail.” A week before Greenwald’s XKeyscore article premiered, Hayden stated in his op-ed, “To be sure, Snowden was reaching for dramatic effect, but if his words were true, he would have been violating not only the laws of the United States, he would also have been violating the laws of physics. He had neither the authority nor the ability to do what he has claimed he could do.” Nine days after Snowden had made his dubious announcement, Alexander met with members of Congress to discuss the NSA’s surveillance programs. When asked the leaning question by Chairman of the House Intelligence Committee Mike Rogers, “So the technology does not exist for any individual or group of individuals at the NSA to flip a switch, to listen to American’s phone calls or read their emails?” Alexander replied, “That is correct.”
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This is the same senator who, on October 3 during the 2013 Cybersecurity Summit, joked with Hayden about placing Snowden on an assassination list.
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Pundits had focused upon what they considered the highly dubious claim by Snowden. Now they had proof. However, in the last line of his live June 17 chat, Snowden substantiated why he would need a letter to spy on the president, “The US Person / foreigner distinction is not a reasonable substitute for individualized suspicion, and is only applied to improve support for the program. This is the precise reason that NSA provides Congress with a special immunity to its surveillance.”
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Obviously, a warrant is required to spy upon anyone in the White House or Capitol Hill because the intelligence community considers such data “in-house.” Everyone else is fair game.

Though it was known Germany had been given XKeyscore, the classified certification listed at the bottom of each slide grants the other Four Eyes permission to view the contents of the PowerPoint presentation. It is less obvious but nonetheless apparent that XKeyscore’s point-and-click dropdown menu was created for convenience and expediency but serves a greater internal purpose. Its design subtly imparts to analysts that nothing is legally amiss in what they are doing. The ease and speed to proceed with an investigation in lieu of a court order implies an analyst’s activities are being automatically processed and therefore are lawful and freely permitted. (Staff morale is perhaps the reason the PowerPoint pauses to announce “300 terrorists captured using intelligence generated from XKEYSCORE.”) Yet the choices an analyst is given to validate an inquiry are so broad, when placed alongside the grossly nondescript justification “suspicious stuff” being cause for alarm, almost any reason that can be articulated complies with NSA policy. For example, because terrorists want knowledge of the inner workings of the NSA, after criminal justice major Bob clicks on nsa.gov while researching a class project, he is a legitimate target once the analyst chooses XKeyscore’s option of “no info to show proposed tgt in U.S.” Under NSA policy, since Bob is now a target, all of Bob’s Facebook friends and email contacts (first hop) and subsequently his friend’s friends (second hop) are under surveillance.