Civil liberties groups and privacy rights advocates may be left disappointed if they are waiting for lawmakers or the federal government to take action after the recent disclosure of vast data collection systems being run by US intelligence services.
Since the existence of two separate operations devoted to spying on the phone calls and web history of American citizens were leaked to the press there has been a largely bipartisan rush to defend the need for such programs and blowback against the alleged leaker and the newspapers that publicized what had been classified secrets. There have been few calls from lawmakers to enact reforms of the government’s anti-terror intelligence system despite the breathtaking scope of the Obama administration’s snooping.
It was last week that Britain’s Guardian newspaper first revealed that the FBI and National Security Agency were using top secret court orders to collect data on every phone call placed within and from the United States by Verizon customers, and likely every other mobile and landline telephone network in the country, These government agencies have been able to amass information such as which numbers are called and for how long on virtually every citizen, although the administration has stressed that contents of calls are not analyzed.
Even more shocking was a report compiled by the Washington Post just days later that detailed the existence of an even more intrusive effort by the government to collect and store large amounts of information on the communication activity of Americans.
Code named PRISM, this operation targeted the servers of major internet providers and web-based communication companies. Tech giants like Apple and Facebook were compelled by the NSA and FBI to give them unlimited and on-demand access to vast swaths of sensitive data ranging from photos and messages to basic web searches.
Considered the “first of its kind,” PRISM is the latest incarnation of President George W. Bush’s sullied warrantless wiretap program that were eventually ruled unconstitutional and largely abandoned before President Obama took office. Working with Congress, the outgoing Bush administration and subsequently the newly elected Obama administration crafted a series of compromises that sought to revive data-mining and domestic surveillance with more pronounced legal justifications.
What the Obama security apparatus has constructed is technically legal — with secret court orders processed to give agencies seeking to collect data carte blanche authority — but far more extensive, reaching into every aspect of Americans’ lives and the modern communication system used by nearly every citizen.
The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track foreign targets, according to a top-secret document obtained by The Washington Post.
The program, code-named PRISM, has not been made public until now. It may be the first of its kind. The NSA prides itself on stealing secrets and breaking codes, and it is accustomed to corporate partnerships that help it divert data traffic or sidestep barriers. But there has never been a Google or Facebook before, and it is unlikely that there are richer troves of valuable intelligence than the ones in Silicon Valley.
Equally unusual is the way the NSA extracts what it wants, according to the document: “Collection directly from the servers of these U.S. Service Providers: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple.”
Congress obliged with the Protect America Act in 2007 and the FISA Amendments Act of 2008, which immunized private companies that cooperated voluntarily with U.S. intelligence collection. PRISM recruited its first partner, Microsoft, and began six years of rapidly growing data collection beneath the surface of a roiling national debate on surveillance and privacy. Late last year, when critics in Congress sought changes in the FISA Amendments Act, the only lawmakers who knew about PRISM were bound by oaths of office to hold their tongues.
Details of the program remain hazy. While PRISM is officially designed to perform surveillance on foreign targets who may be communicating with individuals inside the US, there is only a loose set of guidelines meant to keep agents in check. Data collectors are required to make what is essentially a 50-50 calculation of their target’s “foreignness” before demanding companies hand over data, but “incidental” mining of domestic communications is unavoidable.
Analysts who use the system from a Web portal at Fort Meade, Md., key in “selectors,” or search terms, that are designed to produce at least 51 percent confidence in a target’s “foreignness.” That is not a very stringent test. Training materials obtained by The Post instruct new analysts to make quarterly reports of any accidental collection of U.S. content, but add that “it’s nothing to worry about.”
Even when the system works just as advertised, with no American singled out for targeting, the NSA routinely collects a great deal of American content. That is described as “incidental,” and it is inherent in contact chaining, one of the basic tools of the trade. To collect on a suspected spy or foreign terrorist means, at minimum, that everyone in the suspect’s inbox or outbox is swept in. Intelligence analysts are typically taught to chain through contacts two “hops” out from their target, which increases “incidental collection” exponentially. The same math explains the aphorism, from the John Guare play, that no one is more than “six degrees of separation” from any other person.
Already frustrated by a series of tussles with the media and congressional Republicans over “scandals” of a vatying degree of legitimacy, the White House has been particularly aggressive in fighting back against the press and other critics of counterterrorism surveillance.
President Obama has denied that the collection of phone records and electronic communications is as extensive of commonplace as media reports in dictate and that members of Congress had been repeatedly kept abreast of developments and legal justification for all spy programs.
Despite only being revealed through illegal leaks provided by a whistle-blower, PRISM and the NSA’s blanket phone surveillance operation “are not secret,” President Obama said in remarks shortly after the duakl Guardian and Post stories broke.
“The programs are secret in the sense that they are classified. They are not secret, in that every member of Congress has been briefed,” he said during a speech in San Jose, Calif. “These are programs that have been authored by large bipartisan majorities repeatedly since 2006.”
“Your duly elected representatives have consistently been informed,” he said.
In response to a question after his speech, Obama defended the programs as essential to combating terrorist threats. “They may identify potential leads with respect to folks who might engage in terrorism,” he said.
He also argued that some have overstated the impact of the programs. “Some of the hype we’ve been hearing over the past day or so — nobody has listened to the content of people’s phone calls,” he said.
“I welcome this debate and I think it’s healthy for our democracy,” he continued. “I think it’s a sign of maturity, because probably five years ago, six years ago, we might not have been having this debate.”
Public anger and media skepticism has steadily grown over the broad expansion of government spying powers that have taken place largely behind closed doors. One new public poll finds that nearly 60 percent of Americans oppose comprehensive collection on phone records or communication data if they target ordinary citizens and not only “terrorist” suspects.
But most lawmakers on Capitol Hill are rejecting the concerns of their constituents and have done so for years, rubber-stamping requests for greater spying powers by both the Bush and Obama administrations that eventually led to the creation of the government phone and internet data-mining activities revealed this week.
President Obama is correct when he claims that Congress was fully aware of the nature, if not the specific details, of domestic surveillance protocols run by the FBI and NSA. White House officials released documents that show 22 meetings with members of Congress concerning the legislation used as justification for data collection targeting ordinary Americans.
The White House held 22 Hill briefings over 14 months on the law that national security officials cite in defending a secret surveillance program that collects information from Internet use and telephone calls, according to a senior administration official.
Since October 2011, there have been 22 briefings to lawmakers on Section 702 of the Foreign Intelligence Act Surveillance Act (FISA) Amendments Act, the official said via an email. That legislation allows the Director of National Intelligence and the Justice Department to collect information on people in the United States who aren’t citizens for as long as one year.
Democrats and Republicans in Congress not only had long-standing knowledge of mass data-mining and spying on internet communications performed by the government, they played the biggest role in the creation of laws and guidelines that led to the explosion in domestic spying in the decade following the 9/11 attacks.
It was in the emotional response upon learning the intelligence failures leading up to the worst terror incident on US soil that prompted a rapid and unprecedented response from Congress that granted vast powers to the government and its security apparatus. One congressional repoort singled out the National Security Agency for a “cautious” approach that did not “aggressively” target modern communications — like cell phones and the internet – for surveillance.
On December 20, 2002, a Senate Intelligence Committee that included Sen. Ron Wyden, D-Ore., today one of the most vociferous critics of the so-called “surveillance state,” came to the following conclusion in its official report on the mistakes that led to 9/11: The National Security Agency had harmed U.S. counterterrorism efforts that might have prevented that terrible day because of the agency’s “failure to address modern communications technology aggressively.”
The report, a joint effort of the Senate committee and the House Permanent Select Committee on Intelligence, blamed “NSA’s cautious approach to any collection of intelligence relating to activities in the United States, and insufficient collaboration between NSA and the FBI regarding the potential for terrorist attacks within the United States.”
The Senate-House report said the NSA simply could not keep up with the explosion of information technology. “Only a tiny fraction” of the NSA’s 650 million daily intercepts worldwide “are actually ever reviewed by humans, and much of what is collected gets lost in the deluge of data,” the report said.
There were exceptions to the largely supportive or even indifferent reaction to what were, at the time, classified briefings on secret surveillance programs.
Oregon Sen. Ron Wyden raised concerns more than one year ago when he directly challenged the president’s Director of National Intelligence about the possibility that sensitive data was being compiled on ordinary citizens through programs designed for counterterrorism. DNI James Clapper’s emphatic denial of the existence of secret snooping programs is now the subject of great debate over whether he lied to Congress, but it failed to generate any alarms at the time.
In March, at an open congressional hearing, Sen. Ron Wyden (D-Ore.) asked Director of National Intelligence James Clapper a simple question: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper said the NSA does no such thing. We’ve now seen pretty obvious evidence to the contrary.
When NBC’s Andrea Mitchell asked Clapper over the weekend about the exchange, he said the question was “not answerable necessarily by a simple yes or no,” so he “responded in what I thought was the most truthful, or least untruthful, manner by saying, ‘No.’ “
Little has changed since Wyden’s question in May of 2012. While a handful of liberal Democrats, libertarian Republicans and civil liberties groups express outrage, more typical was the strong defense of domestic spying programs offered by lawmakers on both sides.
Members of Congress on both the left and right rushed not to excoriate the president for legally questionable snooping, but to vigorously defend the necessity of unprecedented surveillance against Americans by their own government, insisting that “protecting America” meant that such data collection was justifiable.
Lawmakers rushed to defend the National Security Agency’s surveillance of millions of Americans’ phone records on Thursday, saying the move was justified in the face of terrorist threats.
“We should just calm down and understand this is not something that is brand new,” said Senate Majority Leader Harry Reid (D-Nev.). “It’s been going on for some seven years. And we’ve tried often to try to make it better, and we’ll continue to do that.”
“It is lawful. It has been briefed to Congress,” Senate Intelligence Chair Dianne Feinstein (D-Ca.) at an impromptu press conference in Washington, saying that the seized records are “just metadata” with “no content of a communication involved.”
“I read intelligence carefully. And I know that people are trying to get to us,” Feinstein said. “This is the reason we keep TSA doing what it’s doing. This the reason the FBI now has 10,000 people doing intelligence on counterterrorism. This is the reason for the national counterterrorism center that’s been set up in the time we’ve been active.”
“And it’s to ferret this out before it happens,” she added. “It’s called protecting America.”
“An individual has nothing to worry about … they have to prove to a judge that there’s probable cause that you’re involved in terrorism,” Sen. Lindsey Graham (R-S.C.) said. “If we don’t do it, we’re crazy.”
The chairman of the House Intelligence Committee went further, claiming that the NSA phone-monitoring operation had been used directly to disrupt and prevent terrorist attacks in the United States.
Republican Rep. Mike Rogers said that the government’s access to every phone record in the country had stopped at least one terror attack on American soil “within the last few years.”
“Within the last few years, this program was used to stop a terrorist attack in the United States,” Rep. Mike Rogers (R-Mich.) said during a press conference. “We know that. It’s important. It fills in a little seam that we have, and it’s used to make sure that there is not an international nexus to any terrorism event that they may believe is ongoing in the United States.”
Acquiescence from Congress has not deterred advocates for privacy rights from taking significant action to shut down the government’s surveillance culture and hold the Obama administration accountable for what they claim are “chilling” unconstitutional excesses.
On Tuesday, officials with the American Civil Liberties Union announced a lawsuit against the federal government over the collection of nationwide phone records that they say goes beyond even what the highly controversial “Patriot Act” allows under law.
In its lawsuit, the ACLU said an NSA program that harvests phone calls violates the rights of all Americans.
“The program goes far beyond even the permissive limits set by the Patriot Act and represents a gross infringement of the freedom of association and the right to privacy,” said Jameel Jaffer, the ACLU’s deputy legal director.
In its lawsuit — which deals just with the phone call program — the ACLU said that the NSA collection system violates rights of free speech and privacy. The ACLU noted it is a customer of Verizon Business Network Services, the recipient of a secret court order published by The Guardian last week. The order requires Verizon to turn over all phone call details, including who places them, who receives them and when and where they are made.
“The crux of the government’s justification for the program is the chilling logic that it can collect everyone’s data now and ask questions later,” said Alex Abdo, a staff attorney for the ACLU’s National Security Project.