Kevin Drum

Yet More Reporting on NSA's Surveillance Programs

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| Sat Jun. 15, 2013 10:08 PM PDT

I can't keep up with all the new reporting on NSA surveillance programs tonight. Here are two more. First, Mark Hosenball of Reuters reports that although NSA collects metadata for every phone call made, it makes only modest use of them:

Millions of phone records were collected in 2012, but the paper says U.S. authorities only looked in detail at the records linked to fewer than 300 phone numbers.

A person familiar with details of the program said the figure of fewer than 300 numbers applied to the entire mass of raw telephone "metadata" collected last year by the NSA from U.S. carriers — not just to Verizon, which is the only telephone company identified in a document disclosed by Snowden as providing such data to the NSA.

Is this true? Is this figure only for searches that began with a U.S. phone number, or for all searches of any kind? I don't know, but I'm passing it along. Take it with a grain of salt for now.

Next up is an AP story that describes how the PRISM program works. Prior to 2007, it reports, tech companies responded to warrants manually. But after the passage of the Protect America Act, NSA decided it wanted to streamline things:

Though the companies didn't know it, the passage of the Protect America Act gave birth to a top-secret NSA program, officially called US-98XN.

It was known as Prism....What the NSA called Prism, the companies knew as a streamlined system that automated and simplified the "Hoovering" from years earlier, the former assistant general counsel said. The companies, he said, wanted to reduce their workload. The government wanted the data in a structured, consistent format that was easy to search.

....Under Prism, the delivery process varied by company. Google, for instance, says it makes secure file transfers. Others use contractors or have set up stand-alone systems. Some have set up user interfaces making it easier for the government, according to a security expert familiar with the process.

Every company involved denied the most sensational assertion in the Prism documents: that the NSA pulled data "directly from the servers" of Microsoft, Yahoo, Google, Facebook, AOL and more.

Technology experts and a former government official say that phrasing, taken from a PowerPoint slide describing the program, was likely meant to differentiate Prism's neatly organized, company-provided data from the unstructured information snatched out of the Internet's major pipelines.

How accurate is this? It sounds about right to me, but reporting on this is reaching a fever pitch, so our understanding might change in the near future. Apparently the government is also preparing an unclassified white paper about all this, so we'll have that to chew over before long. Stay tuned.

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How Much Email Metadata Does NSA Collect?

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| Sat Jun. 15, 2013 9:30 PM PDT

In Barton Gellman's big NSA surveillance piece, he says it wasn't bulk collection of telephone metadata that caused the dramatic showdown in John Ashcroft's hospital room in 2004. (Metadata consists of records about phone calls—time, location, and participants—not the contents of the calls themselves.) Everyone was fine with that. It was collection of internet metadata for email, chat, Skype, and so forth that caused the showdown. In the end, the program was shut down, but then a few months later it was started back up under the oversight of the FISA court.

So it's still cruising along, right? I'd guess so, but then there's this at the tail end of Gellman's article:

As for bulk collection of Internet metadata, the question that triggered the crisis of 2004, another official said the NSA is no longer doing it. When pressed on that question, he said he was speaking only of collections under authority of the surveillance court.

“I’m not going to say we’re not collecting any Internet metadata,” he added. “We’re not using this program and these kinds of accesses to collect Internet metadata in bulk.”

That's clear as mud, isn't it? Gellman also describes NSA's initial contention after 9/11 that it could collect bulk internet metadata because, legally, it didn't "acquire" the information merely by putting it in a database. It only "acquired" it when an analyst actually retrieved it for some reason. So as long as analysts only retrieved records they were legally entitled to, everything was kosher:

Goldsmith and Comey did not buy that argument, and a high-ranking U.S. intelligence official said the NSA does not rely on it today. As soon as surveillance data “touches us, we’ve got it, whatever verbs you choose to use,” the official said in an interview. “We’re not saying there’s a magic formula that lets us have it without having it.”

Taken together, these two officials are suggesting that NSA no longer collects internet metadata in bulk. It collects only data it's legally allowed to have in the first place, presumably based on a Section 702 warrant. But that's still a helluva lot. One of the documents released by Edward Snowden suggests that it amounts to over 1 trillion records per year.

Washington Post Provides New History of NSA Surveillance Programs

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| Sat Jun. 15, 2013 7:02 PM PDT

Barton Gellman has a big piece in the Washington Post today about NSA's codenamed surveillance programs that draws on "a classified NSA history of STELLARWIND and interviews with high-ranking intelligence officials." STELLARWIND, an umbrella name for the original Bush-era program that collected phone and internet data, was succeeded by four separate programs:

Two of the four collection programs, one each for telephony and the Internet, process trillions of “metadata” records for storage and analysis in systems called MAINWAY and MARINA, respectively. Metadata includes highly revealing information about the times, places, devices and participants in electronic communication, but not its contents. The bulk collection of telephone call records from Verizon Business Services, disclosed this month by the British newspaper the Guardian, is one source of raw intelligence for MAINWAY.

The other two types of collection, which operate on a much smaller scale, are aimed at content. One of them intercepts telephone calls and routes the spoken words to a system called NUCLEON.

For Internet content, the most important source collection is the PRISM project reported on June 6 by The Washington Post and the Guardian. It draws from data held by Google, Yahoo, Microsoft and other Silicon Valley giants, collectively the richest depositories of personal information in history.

....The Post has learned that similar orders have been renewed every three months for other large U.S. phone companies, including Bell South and AT&T, since May 24, 2006. On that day, the surveillance court made a fundamental shift in its approach to Section 215 of the Patriot Act, which permits the FBI to compel production of “business records” that are relevant to a particular terrorism investigation and to share those in some circumstances with the NSA. Henceforth, the court ruled, it would define the relevant business records as the entirety of a telephone company’s call database.

Gellman also tells us for the first time what it was that caused the famous 2004 showdown in John Ashcroft's hospital room:

Telephone metadata was not the issue that sparked a rebellion at the Justice Department, first by Jack Goldsmith of the Office of Legal Counsel and then by Comey, who was acting attorney general because John D. Ashcroft was in intensive care with acute gallstone pancreatitis. It was Internet metadata.

At Bush’s direction, in orders prepared by David Addington, the counsel to Vice President Richard B. Cheney, the NSA had been siphoning e-mail metadata and technical records of Skype calls from data links owned by AT&T, Sprint and MCI, which later merged with Verizon.

For reasons unspecified in the report, Goldsmith and Comey became convinced that Bush had no lawful authority to do that.

In other words, it wasn't the collection of telephone records that upset Comey, it was the collection of email, chat, Skype and other internet communications records. There's more at the link about the showdown over the data collection programs, as well as the secret policies and legal opinions that govern exactly what NSA can and can't do.

Can NSA Analysts Listen to Your Phone Calls?

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| Sat Jun. 15, 2013 6:17 PM PDT

Declan McCullagh at CNET draws our attention today to testimony from FBI director Robert Mueller at a House Judiciary hearing on Thursday:

Mueller initially sought to downplay concerns about NSA surveillance by claiming that, to listen to a phone call, the government would need to seek "a special, a particularized order from the FISA court directed at that particular phone of that particular individual."

Is information about that procedure "classified in any way?" Nadler asked.

"I don't think so," Mueller replied. "Then I can say the following," Nadler said. "We heard precisely the opposite at the briefing the other day. We heard precisely that you could get the specific information from that telephone simply based on an analyst deciding that...In other words, what you just said is incorrect. So there's a conflict."

Nadler was unavailable for comment, and this is apparently the sum total of the information we have. It's not clear precisely what "information from that telephone" means, or whether this applies to all calls or only to non-U.S. calls. It's also possible that Nadler was confusing the ability of an analyst to get subscriber information for a phone number with the ability to listen to the call itself. Another possibility is that this applies only to phone content that's already been acquired by warrant and is currently in NSA's database. Or perhaps it applies to real-time wiretapping, but only if an analyst concludes that the target is a non-U.S. person already covered by a "programmatic" (i.e., broad-based) Section 702 warrant.

Alternatively, it could be that NSA analysts have the ability to listen in on phone calls on their own say so. We won't know for sure until Nadler or someone else clears this up. Stay tuned.

NOTE: For more, check out Julian Sanchez's Twitter feed, which provided much of the background for this post.

UPDATE: Sanchez now has a more detailed blog post about all this. It's worth a read.

NSA Apparently Surveils About 0.01 Percent of Foreign Facebook Accounts

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| Sat Jun. 15, 2013 9:03 AM PDT

Tech companies, under pressure from foreign users who want to know if their accounts are routinely under surveillance by U.S. intelligence agencies, have been begging the federal government to allow them to release general figures on how many FISA requests they get. The feds haven't allowed them to do that yet, but they have allowed them to release a bit of information:

Over the last six months of 2012, Facebook said, it had received as many as 10,000 requests from local, state and federal agencies, which impacted as many as 19,000 accounts. Facebook has 1.1 billion accounts worldwide. Microsoft said that it received between 6,000 and 7,000 similar requests, affecting as many as 32,000 accounts.

The companies said some of the requests were for terrorism investigations. But others were from a local sheriff asking for data to locate a missing child or from federal marshals tracking fugitives. From these statements, it was impossible to ascertain the scale of the FISA requests made by the National Security Agency.

....That the company would rush to release a figure that gives the public little idea of the scale of the FISA requests is a sign of the pressure it has been under since the PRISM program was made public.

I'm not surprised at all that Facebook and Microsoft rushed to release this information. Their motivation is simple: they want to demonstrate that they aren't providing NSA with broad access to every foreign account holder in their systems, and even this partial release pretty much does that. In Facebook's case, they get requests covering about 38,000 accounts per year, which suggests that FISA warrants cover maybe 30,000 accounts or so, most of them foreign. At a rough guess, Facebook has about 900 million non-U.S. accounts, of which perhaps half are truly active. This means that NSA surveils about .01 percent of their active foreign accounts each year. There's obviously some guesswork in this estimate, but I think it gets us in the right ballpark.

The fact that Facebook and others have begged the government to allow them to release more detailed information is a clue all by itself that the number of surveilled accounts isn't huge. If they were handing over data on millions of accounts, they wouldn't be eager for the world to know it.

However, it's worth noting that Google hasn't yet made this partial information public, saying that they wanted to wait until they could release more detailed breakdowns. This might be genuine on their part, or it could suggest that the raw number of warrants served to Google is more dramatic than it is for Facebook or Microsoft. After all, Gmail might be a lot more interesting to NSA than a Facebook timeline. We'll have to wait and see.

Friday Cat Blogging - 14 June 2013

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| Fri Jun. 14, 2013 12:11 PM PDT

Today's catblogging photo shows Domino in pretty much the same place as last week. But a small change in position and camera focal length makes all the difference.

I wish I could have gotten a better version of this. But even though I was 20 feet away and Domino's back was to me, as soon as she heard the shutter button she immediately turned and trotted over to see me. I suppose I was lucky even to get one picture. She can be a real catblogging pain sometimes.

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Today's Chin Scratcher: Why Are People So Distrustful of Big Government?

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| Fri Jun. 14, 2013 12:02 PM PDT

In his column today, Charles Krauthammer summarizes a talking point about the NSA's spying programs that's already getting a lot of air time on the right:

The object is not to abolish these vital programs. It’s to fix them. Not exactly easy to do amid the current state of national agitation — provoked largely because such intrusive programs require a measure of trust in government, and this administration has forfeited that trust amid an unfolding series of scandals and a basic problem with truth-telling.

To summarize: People are groundlessly suspicious of vital panopticonish surveillance programs, and this is all due to Barack Obama's weaselly ways, not to the Republican Party's relentless 30-year campaign to destroy the public's faith in domestic programs of all sorts, mock the very idea that government accomplishes anything useful, and pander to the black-helicopter conspiracy theories of the Glenn Beck crowd.

Sorry Charlie, that's not going to fly. If you spend decades inventing scandals out of whole cloth and insisting that big government is a menace to liberty, don't be surprised when it turns out that an awful lot of people no longer have any trust in government. You reap what you sow.

Is the U.S. Actively Trying to Prolong the Syrian Civil War?

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| Fri Jun. 14, 2013 10:28 AM PDT

Why is President Obama escalating U.S. involvement in the Syrian civil war? Dan Drezner offers this take, which he's been murmuring about occasionally for the past year:

[Obama's goal] is to ensnare Iran and Hezbollah into a protracted, resource-draining civil war, with as minimal costs as possible. This is exactly what the last two years have accomplished.... at an appalling toll in lives lost.

This policy doesn't require any course correction... so long as rebels are holding their own or winning. A faltering Assad simply forces Iran et al into doubling down and committing even more resources....For the low, low price of aiding and arming the rebels, the U.S. preoccupies all of its adversaries in the Middle East.

....Now let's be clear: to describe this as "morally questionable" would be an understatement. It's a policy that makes me very uncomfortable... until one considers the alternatives. What it's not, however, is a return to liberal hawkery.

In a nutshell, the idea here is that we want both sides to be evenly matched so the fighting continues as long as possible. That will weaken pretty much everyone we hate: Assad, Hezbollah, Iran, and the Al Qaeda groups among the rebels. As long as these folks continue killing each other, we're happy.

Is it a sign of terminal naiveté that I find myself unable to believe that this is conscious Obama administration policy? Or has Drezner simply been watching too much Game of Thrones?

Partisan Hypocrisy and NSA Surveillance

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| Fri Jun. 14, 2013 9:06 AM PDT

One of the hot themes of the day is calling out hypocrisy on the NSA spying story: Republicans used to love it when Bush was in charge, but now it's an assault on our freedoms when Obama is in charge. Democrats are the same in reverse. Dave Weigel writes about this here, Michael Gerson warns his fellow Republicans about it here, and Glenn Greenwald berates Democrats about it here. Plus, of course, we can back this up with hard numbers from that infamous Pew poll earlier this week showing that Republican and Democratic attitudes have swapped sides over the past few years.

As it happens, I think this narrative is being exaggerated a bit as the media enters feeding frenzy stage. Still, there's plainly something to it. So what about me? Have my views changed? I'd probably have to dig pretty deeply into my archives to know for sure, but for what it's worth, here's my position as best as I can reconstruct it:

  • My basic view hasn't changed: I didn't like this stuff back in 2005 and I don't like it now. I doubt very much that the benefit is substantial enough to justify the rather obvious potential for abuse.
  • At the same time, I never viewed NSA's surveillance programs as self-evidently worthless. My best guess is that they provide genuinely useful information and probably really do help detect/prevent terrorist activity.
  • What's more, part of my objection to the program in 2005 was that it involved warrantless surveillance. Like it or not, that's changed. Congress essentially gave its blessing to the program in 2008 and, as Glenn Greenwald confirmed last week, it's now done under the aegis of warrants lawfully issued to telcos (for the phone record program) and tech companies (for the PRISM program).
  • On a personal note, I'll confess that it's hard to sustain a feeling of outrage over this. We had a huge fight about all this stuff five years ago and we lost. Now everyone is supposedly shocked, shocked that NSA is hoovering up huge amounts of private data. Well, of course they are. We lost.
  • But despite my personal fatigue over this—something I won't pretend to be proud of—I'm glad that Edward Snowden has put these programs back in the spotlight. It gives better folks than me a second bite at the apple of public opinion.

On another note, Glenn Greenwald keeps promising that there are more blockbusters to come that are even more blockbusterish than what he's revealed so far. Given that, it's probably wise for everyone to hold off on any final judgments for now. Let's wait a bit and see what he has for us.

Bank Robbery Suspect Wants NSA Phone Records to Prove His Innocence

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| Fri Jun. 14, 2013 8:04 AM PDT

This is genuinely fascinating. A guy named Terrance Brown is on trial in Florida for allegedly masterminding the robbery of a Brinks armored truck. Prosecutors have used phone records to track the movements of one of Brown's codefendants, but guess what? They don't have phone data for Brown himself because his carrier apparently didn't keep it.

You can see where this is going, right? Here's the LA Times:

On Sunday, after federal officials acknowledged the NSA trove, Brown's attorney, Marshall Dore Louis, filed a midtrial motion asking the NSA to turn over Brown's phone records. "The records are material and favorable to Mr. Brown's defense," Louis wrote, adding that the request was "not intended as a general fishing expedition."

Everyone quoted in the article expects the federal government to fight back like crazed weasels against this order, and I don't doubt that they're right. They'll probably win, too. But it would certainly be an intriguing case for the Supreme Court to decide, wouldn't it?

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