Glenn Greenwald, the blogger-polemicist turned Guardian columnist, finally got his walk in the sun, when a disgruntled hacker type named Edward Snoweden pilfered top secret files from … one of his several (?) top secret clearance NSA contractor jobs and leaked them to Greenwald and the Washington Post. Greenwald’s victory lap across our television screens, from friendly interview to friendly interview (except the one where he lectured the CNN anchor for not being solicitous enough), has been impressive. He finally has given Obama disappointees, emoprogs and civil libertarians of the left and right something to wrap their “Obama is just like Bush” mantra around (expressed with more subtlety by Gary Younge here) while also giving us all an opportunity to laugh dryly at CNET. And he has triggered The National Conversation on national security and the war on terror that the president tried and failed to do in May, when his national security reset speech was greeted with snickers of skepticism and contempt from the ranks of emoprogdom, because drones.
Well the breathless coverage of Snowden has settled into variations on this face –> x_O, due to Snowden having shifted gears from warning that any given IT guy at an NSA contractor has the “authorities” to email-tap the president, expose all our CIA assets, and listen to your calls to grandma, to telling the Chinese and the Russians on us. So maybe “hero” not so much… And now he’s charged with theft of government property and two violations of espionage laws: unlawful distribution of classified material to an unauthorized source, and unlawful dissemination of classified information about communications intelligence (the charges not being quite the Government Sanctioned Hit he darkly warned of… but it’s setting up an extradition drama with Hong Kong anywyay.)
INTERESTING READ: NBC’s justice correspondent Pete Williams explains why Edward Snowden does not qualify as a whistleblower
Which brings us back to Mr. Greenwald, who from his undisclosed location, continues to act as Snowden’s chief promoter and hype man … I mean “journalist” … conducting live web chats!… and otherwise working hard to weave Snowden into a mythic hero of old. (I’m thinking a Gandalf beard might help. Greenwald should have Snowden get working on that…)
Bob Cesca summed up the problems with Glenn’s initial reporting, which continue to taint his present course of self/Snowden-promotion, in a piece from June 12 that’s well worth reading, including Greenwald’s error on whether the feds had “direct access” to Google, Facebook and other servers (they didn’t), why more technical details weren’t released by Greenwald and the Guardian, and whether Snowden’s leaked documents came from pre-Booz Allen jobs, or whether he took the Booz job with the intention of leaking. (Cesca asks another great question, namely: why Snowden chose to leak to an agenda reporter like Greenwald, who is a self-admitted “tech noob” rather than to an outlet like Wired, where the reporters presumably would have had a greater understanding of the technical aspects of what he was releasing… all good questions.
Well now, we’re finally getting some clarification from the Guardian, which seems to have given Greenwald a minder — reporter James Ball. Together, they’ve posted a rather clarifying new piece, in which they reveal that no, the govmint isn’t grabbing “everyone’s” phonecalls after all, and if they do sweep up Americans in their bulk data collection, they need a warrant to use it, or they have to destroy it. Ahem…
From The Guardian which I have to say does an impressive job of trying to retain the ominousness of their now diminished reportage:
The Guardian is publishing in full two documents submitted to the secret Foreign Intelligence Surveillance Court (known as the Fisa court), signed by Attorney General Eric Holder and stamped 29 July 2009. They detail the procedures the NSA is required to follow to target “non-US persons” under its foreign intelligence powers and what the agency does to minimize data collected on US citizens and residents in the course of that surveillance.
The documents show that even under authorities governing the collection of foreign intelligence from foreign targets, US communications can still be collected, retained and used.
The procedures cover only part of the NSA’s surveillance of domestic US communications. The bulk collection of domestic call records, as first revealed by the Guardian earlier this month, takes place under rolling court orders issued on the basis of a legal interpretation of a different authority, section 215 of the Patriot Act.
The Fisa court’s oversight role has been referenced many times by Barack Obama and senior intelligence officials as they have sought to reassure the public about surveillance, but the procedures approved by the court have never before been publicly disclosed.
Uh huh .. “can,” “but”… may or may not but hey you never know! … please proceed, Guardian …
The top secret documents published today detail the circumstances in which data collected on US persons under the foreign intelligence authority must be destroyed, extensive steps analysts must take to try to check targets are outside the US, and reveals how US call records are used to help remove US citizens and residents from data collection.
However, alongside those provisions, the Fisa court-approved policies allow the NSA to:
• Keep data that could potentially contain details of US persons for up to five years;
• Retain and make use of “inadvertently acquired” domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity;
• Preserve “foreign intelligence information” contained within attorney-client communications;
• Access the content of communications gathered from “U.S. based machine[s]” or phone numbers in order to establish if targets are located in the US, for the purposes of ceasing further surveillance.
Hm. And they’re doing all of that without warrants? Um, no. They’re not. More Greenwald:
Section 702 of the Fisa Amendments Act (FAA), which was renewed for five years last December, is the authority under which the NSA is allowed to collect large-scale data, including foreign communications and also communications between the US and other countries, provided the target is overseas.
FAA warrants are issued by the Fisa court for up to 12 months at a time, and authorise the collection of bulk information – some of which can include communications of US citizens, or people inside the US. To intentionally target either of those groups requires an individual warrant.
Wait. So the NSA DOES target people who are overseas? And sometimes in doing so, domestic calls get swept up in the bulk collection? But if that happens, the NSA would need to obtain an individual warrant to look into that U.S. person??? And … and … the collection of U.S. phone data IS incidental to the NSA’s only job: which is the collection of foreign communications intelligence? Well damn. And I was all ready to make a NObama sign…
Anyway, let’s keep going. Glenn: what are those circumstances in which the phone data of U.S. persons gets retained by the govmint?
NSA minimization procedures signed by Holder in 2009 set out that once a target is confirmed to be within the US, interception must stop immediately.
However, these circumstances do not apply to large-scale data where the NSA claims it is unable to filter US communications from non-US ones.
The NSA is empowered to retain data for up to five years and the policy states “communications which may be retained include electronic communications acquired because of limitations on the NSA’s ability to filter communications”.
Even if upon examination a communication is found to be domestic – entirely within the US – the NSA can appeal to its director to keep what it has found if it contains “significant foreign intelligence information”, “evidence of a crime”, “technical data base information” (such as encrypted communications), or “information pertaining to a threat of serious harm to life or property”.
Domestic communications containing none of the above must be destroyed. Communications in which one party was outside the US, but the other is a US-person, are permitted for retention under FAA rules.
The minimization procedure adds that these can be disseminated to other agencies or friendly governments if the US person is anonymised, or including the US person’s identity under certain criteria.
A separate section of the same document notes that as soon as any intercepted communications are determined to have been between someone under US criminal indictment and their attorney, surveillance must stop. However, the material collected can be retained, if it is useful, though in a segregated database:
“The relevant portion of the communication containing that conversation will be segregated and the National Security Division of the Department of Justice will be notified so that appropriate procedures may be established to protect such communications from review or use in any criminal prosecution, while preserving foreign intelligence information contained therein,” the document states.
OK, let’s break that down, shall we?
The NSA is only permitted to collect the communications data of non-U.S. persons.
If a U.S. person is believed to be on one end of the call, and that’s confirmed, the U.S. person’s phone data must be destroyed, unless the U.S. communication contains evidence of a crime, evidence of a threat, or encryption that indicates evidence of the foregoing.
And in that instance, the NSA would have to obtain an INDIVIDUAL WARRANT to look into that U.S. person’s communications.
If a U.S. person is at one end of a foreign call and it turns out that American is under criminal indictment and the call is with their attorney, the surveillance of that communication must stop immediately, and the information can be used to develop national security info, but cannot be used against the American in court.
In other words, the NSA is not listening to all of our phone calls (which we already knew because what Glenn initially uncovered were three-month warrants compelling phone companies to turn over bulk metadata under a court order, which they did through a Dropbox type third party server, NOT by giving the govmint “direct access” to their servers, as Greenwald erroneously reported and the Guardian only later corrected. What this all turns out to be are the worst case scenarios spun by a very disgruntled IT guy, who mainly proved that very disgruntled IT guys have access to your metadata, and to lots of national security information too, even if they’re not read into, and don’t really know all that much about, the programs being administered at the NSA.
It seems to me that the Guardian is trying to save face with these later stories, showing more documents but attaching them to much more carefully edited articles. The current piece has the fragrance of Legal Department on it — and clearly the Guardian decided to put in all the factual caveats that take the sizzle out of the narrative, while allowing Glenn to keep in his “coulds” and “mays” and “mights” — as to what the government might be able to possibly do with American phone data it inadvertently sweeps up in the bulk collection of foreign communications intelligence — the sweeping up and analysis of foreign communications being the sole purpose, you see, of the NSA…
Bob Cesca? Your witness:
An alternate headline for Greenwald’s new article could be, “Shit Happens But There Are Numerous Bureaucratic Procedures To Prevent Shit From Happening.” In other words, based on Document #1, a U.S. person’s data might be accidentally collected when it shouldn’t have been, but when it is, it’s killed. And we have no idea how often this happens.
Sure there are holes and glitches that absolutely need to be addressed, and there’s certainly the potential for abuse somewhere along the line. But the same could be said about any institution — governmental, corporate or otherwise. As we’ve seen with TSA, for example, sometimes people are patted-down who shouldn’t be, leading to unnecessary invasions of privacy. The system isn’t perfect, but until it’s repaired, there appear to be procedures for minimizing any potential hiccups.
So what began two weeks ago as a story about the NSA following your every keystroke as you type it has been shaved down to accidental data collection and no targeting of citizens without a warrant.
BTW, besides Cesca, the best person to read on this stuff is Kurt Eichenwald, who not only debunked much of the Greenwaldian panic with this and other great posts, he wrote about PRISM like, years ago. I just downloaded his book 500 Days, and can’t wait to read it. In fact, in many ways, the latest Greenwald/Guardian story is just a less compelling rewrite of Eichenwald’s June 14 piece, only without the Vanity Fair journo’s technical expertise. Go figure.