The Edward Snowden Affair (9 page)

In 2006
USA Today
picked up where Risen and Lichtblau had left off five months prior.
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It questioned American telecoms’ role in wiretapping. Shortly after 9/11, then-President George W. Bush signed a top secret executive order permitting the NSA to wiretap without a warrant. His administration later justified the directive by arguing the process of obtaining warrants was too time-consuming. As a result of the
Times
article, the FISC ruled in 2007 that warrants must be obtained if an NSA-desired communication passes through an American network. The Bush administration bought itself time by rebutting with a stopgap that permitted the NSA to continue wiretapping. The stopgap expired in 2008. By then everything was in place. Five years later it would be revealed that the U.S. government had merely placated the public. It had restricted one clandestine order, thereby insinuating wiretapping had come to an end shortly thereafter, all while gradually implementing a covert clone directive. As with the executive order, the public wasn’t privy to these machinations because they had taken place behind closed doors before being classified as top secret.

The NSA’s power underwent a paradigm shift after 9/11. It was granted access to information which it did not have legal right to act upon. Before, the NSA’s domestic domain was restricted to American embassies and missions. (The FBI deals with domestic issues, while the CIA contends with foreign matters of security.) After 9/11, it was allowed to eavesdrop upon foreigners, then permitted to involve itself in communications between foreigners and Americans, all before obtaining the carte blanche ability to wiretap anyone.

The irony is that in 1975 the NSA was subject to a congressional investigation. The inquiry revealed that the agency had been intercepting domestic communications without a warrant since its creation in 1952. The NSA was found guilty of abusing its power after spying on peaceful antiwar protests and civil rights activists.
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The Foreign Intelligence Surveillance Act (FISA) was chartered in 1978 as a result. The representative secret court which was created to uphold the FISA laws and prohibit warrantless wiretapping was now rubberstamping one order after another. Americans had been watched by the NSA for almost 60 years.
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Greenwald’s report is pithy. Aside from publishing the top secret four-page order alongside the story, he bluntly contrasts blanket collection to what most would consider sensible surveillance terms: an individual who is targeted due to reasonable suspicion. The FISC order does not require probable cause before search and seizure, thereby violating Americans’ Fourth Amendment rights. Greenwald makes sure to raise even more eyebrows by noting that the law expressly forbids the telecom provider from publicly acknowledging the government directive or, in other words, Verizon was under a gag order, “It is further ordered that no person shall disclose to any other person that the FBI or NSA has sought or obtained tangible things under this Order [ … ].” (Greenwald nevertheless sardonically reports Verizon refused to comment.) He continues to hit hard by outlining the linguistic dexterity involved in the controversial legislation. The data being collected is labeled “metadata” instead of “communications” because individual warrants must be issued before “communications” can be confiscated.

Greenwald soundly establishes that the NSA wasn’t acting alone and Congress was privy to and implicated in the surveillance dragnet. He tells the tale of two senators, Ron Wyden and Mark Udall, both members of the Intelligence Committee, and their two-year history of cryptically alluding to the government’s current surveillance policies and practices. Despite being unable to openly discuss the covert directive, it was nonetheless admitted that the American public would be “stunned” if it were made aware of the “secret legal interpretations” which had led to current spying tactics. Perhaps intentionally, Greenwald fails to comment upon the paradox involved in a domestic surveillance directive coming from a court which oversees foreign intelligence. Though the order explicitly states that Verizon calls which originate and end in a foreign land are exempt, it shrewdly includes the clause “[telecommunications] between the United States and abroad” so the court’s authority is applicable.

Greenwald’s ruse worked. From daybreak on Thursday until approximately 6:00 that evening, the world was consumed by
The Guardian
’s claims. Capitol Hill, Verizon and privacy advocates frantically responded.

Dianne Feinstein, chair of the Senate Intelligence Committee and Vice Chair Saxby Chambliss defended the order. The former contended the directive was a product of the FISC and was therefore lawful. The latter freely admitted the order had been consistently renewed for seven years but dubiously added, “Every member of the United States Senate has been advised of this.” (Five days later, as they left a congressional briefing concerning the headline surveillance, Representative Elijah Cummings sardonically stated, “We learned a lot [ … ],” and his peer, Bill Pascrell said, “People should know what&s going on in their name but we need to start with Congress knowing what the heck is going on.”)
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Feinstein interjected that Second (sic) Amendment concerns had been humored on the Senate floor during related discussions. Chambliss ironically implied popular consent by observing that in all its years of operation, no citizen had filed a complaint about the top secret order.
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The White House assured Americans their conversations were not being recorded. The government as a whole rested upon the defense that metadata is cast into the public domain and also shared with one’s service provider. As such, metadata cannot be considered private. Instead of quelling concerns, this line of reasoning placed the privacy of calls’ contents into immediate question.

Verizon preoccupied itself with redirecting the blame. The company rebutted that its hand had been forced by law. What took time for the press to relay was however true, telecommunication companies had lobbied for impunity after the 2006 AT&T et al. uproar resulted in numerous civil lawsuits.
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Providers agreed to comply if they were indemnified. In other words, they agreed to turn over all data if the government would take the public relations and legal fall should the public ever find out. Technically the threat of a lawsuit should have been greater from the federal government. Section 222 of The Communications Act of 1934 forbids telephone companies from issuing the exact same information the intelligence community was now demanding be turned over: numbers engaged, duration and transmission routes. The fine is $130,000 per day per violation.
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The U.S. government viewed this as fair and lawful for 62 years. Large segments of the legislation were appealed or amended with the Telecommunications Act of 1996.
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The collection of “aggregate information” or bulk data collection became fair game once the federal government saw the opportunities emerging that technology now provided. Not only was the fear of the government’s monetary penalties no longer a concern, but the communication providers wanted to provide the service. The NSA could not expect the businesses to provide the labor, material and time-intensive information for free. Taxpayers were unknowingly paying their government to spy on them. When the White House was questioned about this, it justified its actions on financial grounds: The agreement shielded telecommunication providers from bankruptcy.
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In essence, because the government had already fallen under strict scrutiny for wiretapping, it had the telephone companies do it for them. However, to evade lawsuits the providers required the government to “force” them to hand over the information. This method of data extraction was a lot less expensive than if the intelligence community purchased the records outright. Verizon charges $775 per tap the first month and $500 each additional month. AT&T’s fee is $325 for a single activation followed by a $10 per day, per line fee.
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With 249 million American cell phone subscribers, the government had no choice if it wanted the data.

Privacy advocates feared social network analysis. They acknowledged the retrieved information did not include the contents of a conversation or users’ names. They claimed it didn’t because there was no need. A subscriber’s identity could be gleaned by cross-referring telephone numbers with consumer data. Another concern was when signal strength and receiving tower location is placed alongside duration, a location and time stamp is logged. It can be determined whether a caller is engaging someone at a strip club for an hour twice a week or five minutes for the first time in 10 years. The NSA could therefore track where an individual goes, how frequently and at what times. A profile of a telephone user’s habits quickly forms and reveals if a person is a homebody, traveler, sports nut, barfly, health enthusiast, psychiatric client or churchgoer.
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Beautifully orchestrated in its understatement, the brevity of Greenwald’s article served other purposes. It preoccupied Washington and permitted him to direct his time and energy to a bigger, more revelatory editorial. What Snowden might not have informed Greenwald was that the Verizon disclosure also left the U.S. government scratching its head.

If Snowden was already a suspect after not returning to work the previous day, this tossed a monkey wrench in the intelligence community’s theories of who its mole might be. The directive’s storage had no relevance to Snowden’s job with BAH. Technically there was no method or manner by which he could have accessed the form. Washington fretted over the implications. The crippling possibility of multiple persons
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or a very skilled hacker now existed since the
Post
had sought government comment on its PRISM documentation. Only after Snowden went public was the U.S. government able to breathe a little easier. Once American intelligence knew the identity of its leaks, it could reverse engineer how the FISC order had been obtained. Though Snowden had no direct access to the document while employed as an infrastructure analyst, the NSA naively waved it in front of him during his BAH training. Knowing the location of the data he needed, Snowden proceeded to find a way to get it.
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As the U.S. government’s chaotic day was finally coming to a close, right when many Americans were preparing to get off work and others were sitting down to dinner, Gellman and Greenwald got on either side of the lid and opened Pandora’s Box. At 5:43,
The Washington Post
released “U.S. intelligence mining data from nine U.S. Internet companies in broad secret program.”
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Twenty minutes later
The Guardian
seconded the
Post
’s documented claims with “NSA Prism program taps in to user data of Apple, Google and others.”
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If Washington believed a whistle had been blown the day before, it was about to realize the previous day’s revelation was a toot by comparison.

While the non-Verizon subscriber could issue a cursory glance at Greenwald’s June 5 headline and walk away without realizing the article’s implications, only a minuscule percentage of readers were immune to the bookend PRISM articles.

The
Post
editorial opens by capsizing any reassurances the government wasn’t just listening in on America, but watching its every move. Gellman reports that the NSA and FBI are extracting audio, video, photographs, emails, documents and connection logs from the central servers of nine major Internet companies: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple (listed in the order of entry into the spy program with Dropbox “coming soon”). The popular email service Hotmail is owned by Microsoft, as is Skype. Due to their “exponential growth,” Facebook and Skype are frequent hosts to NSA spying. Facebook’s favoritism is due to its “extensive search and surveillance capabilities against the variety of online social networking services.” The irony would soon be apparent that U.S. citizens were making it even easier for the government to spy on them because nearly every American was freely volunteering their personal information through one or more of these companies’ websites.

The program used to collect the data is called Planning Tool for Resource Integration, Synchronization, and Management or “PRISM” and has been in operation since 2007. It is so effective that it is the “most prolific contributor to the President’s Daily Brief.” PRISM data was included in the president’s memo an average of four times a day during 2012. One in seven intelligence reports contain PRISM information.

Admittedly, though the NSA has a constant data stream from its nine current providers, it does not review everything. Analysts use search terms to pull up desired information. Occasionally when filling a search request, PRISM gathers “incidental” data an analyst doesn’t want and shouldn’t see. As a PRISM training slide instructs, when this happens the analyst is to report the error. Yet if the NSA technician fails to do so, the omission is “nothing to worry about.”

What is considered of interest to an analyst has mind-numbing implications. When a person is cited as a target of suspicion, the NSA starts “contact chaining” at a minimal distance of “two hops.” For example, Bob is an American foreign exchange student spending a semester abroad at the University of Oxford in England. He wants feedback on his paper comparing suicide bombers in Iraq to acts of domestic terror in the United States. He sends it to his Harvard advisor for review. The essay includes the keywords “al Qaeda,” “White House,” “jihad,” “bomb,” “Iraq,” “Koran” and “Obama administration.” This throws up a red flag, and the NSA designates Bob as a person of interest. Intelligence will then investigate anyone found in his email account or whom he has “friended” on Facebook. This is the “first hop.” The NSA then proceeds to the second hop. It looks into anyone electronically associated with the people now under the radar after the first hop. In other words, Mary has emailed Bob and Susan has “friended” Mary. Even though Bob has never met and does not know Susan, she is now being investigated by the NSA. (Six days after Gellman’s article debuted, NSA Deputy Director John Inglis informed Congress that analysts were permitted three hops.)
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Scientific studies of social networks show at three hops, roughly half the American population can be permissibly surveilled. For Facebook and Twitter account holders, the likelihood is greatly increased. The average degree of separation between random users is only 4.74
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and 3.43
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respectively. Statistically, someone utilizing Facebook has an 84 percent chance of being “targeted by association.” A person posting on Twitter runs an 87 percent risk. Before 9/11, the Justice Department had deemed American contact chaining illegal.
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