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The New I Con: “Total Number of Orders and Targets”

The I Con people, in another attempt to feign transparency, have announced they will release “new” numbers.

Consistent with this directive and in the interest of increased transparency, the DNI has determined, with the concurrence of the IC, that going forward the IC will publicly release, on an annual basis, aggregate information concerning compulsory legal process under certain national security authorities.

Specifically, for each of the following categories of national security authorities, the IC will release the total number of orders issued during the prior twelve-month period, and the number of targets affected by these orders:

  • FISA orders based on probable cause ( Titles I and III of FISA, and sections 703 and 704).
  • Section 702 of FISA
  • FISA Business Records (Title V of FISA).
  • FISA Pen Register/Trap and Trace ( Title IV of FISA)
  • National Security Letters issued pursuant to 12 U.S.C. § 3414(a)(5), 15 U.S.C. §§ 1681u(a) and (b), 15 U.S.C. § 1681v, and 18 U.S.C. § 2709.

Only, this is, as I Con transparency always is, less than meets the eye.

To start with, the I Cons already release much of this due to statutory requirements. It releases the number of FISA orders on probable cause (and the number rejected), the number of business records, and the National Security letters, as well as the number of US persons included in those NSLs.

If I understand this correctly, the only thing new they’ll add to this information is the number of people “targeted” under the Section 215. In other words, they’ll tell us they’ve used fewer than 300 selectors in the previous year to conduct up-to three hop link analysis which in reality mean thousands or even millions might be affected (to say nothing of the hundreds of millions whose communications might be affected by virtue of being collected). But they won’t tell us how many people got included in those two or three hops.

Furthermore, in the absence of knowing what else they’re using Section 215 for, the meaning of these numbers will be hidden — as it already was when the government told us (last year) it had submitted 212 Section 215 applications, without telling us several of those applications collected every American’s phone records.

The same is true of the Pen Register/Trap and Trace provision. The government has told us they’re no longer using it to collect the Internet metadata of all Americans. But what are they using it to do? Are they (in one theory posited since the Snowden leaks started) using it to collect key information from Internet providers? Given the precedents hidden at the FISA Court, we’re best served to assume there is some exotic use like this, meaning any number they show us could represent a privacy threat far bigger than the number might indicate.

Then, finally, there’s Section 702, which will be new information. The October 3, 2011 John Bates opinion tells the NSA collects 250 million communications a year under Section 702; the August 2013 Compliance Assessment seems to support (though it redacts the numbers) the NSA targeting 63,000 to 73,000 selectors on any given day. In other words, those numbers are big. But that doesn’t tell us, at all, how many US persons get sucked up along with the targeted selectors. That number is one the NSA refuses to even collect, though Ron Wyden has asked them for it. Usually, when the NSA refuses to count something, it is because doing so would demonstrate how politically (and potentially, Constitutionally) untenable it is.

Moreover, the government doesn’t, apparently plan to release the number Google and Yahoo would like it to release, numbers which likely show how much more enthusiastic the well-lubricated telecoms are about providing this material than the less-well lubricated Internet providers. That is, the government isn’t going to (or hasn’t yet agreed to) provide numbers that show corporations have some leeway on how much of our data they turn over to the government.

So, ultimately, this seems to be about providing two or three new numbers, in addition to what the government is legally obliged to provide, yet without providing any numbers on how many Americans get sucked into this dragnet.

They will provide the “total number of orders and targets.” But they’re not going to provide the information we actually want to know.

The Google/Yahoo Problem: Fruit of the Poison MCT?

OK, this will be my last post (at least today) to attempt to understand why some Internet providers incurred so many costs associated with the response to the FISA Court’s October 3, 2011 decision that the government had improperly collected US person data as part of Multiple Communication Transactions.

For the moment, I’m going to bracket the question of whether Google and Yahoo are included in upstream providers (though I think it more likely for Google than Yahoo). Footnote 3 in the October 3 opinion seems to distinguish upstream collection from collection from Internet service providers. Though note the entirely redacted sentence in that footnote that may modify that easy distinction.

But let’s consider how the violative data might be used. We know from the conference call the I Cons had the other day (you can listen along here) that this is primarily about getting email inboxes.

An intelligence official who would not be identified publicly described the problem to reporters during a conference call on Wednesday.

“If you have a webmail email account, like Gmail or Hotmail, you know that if you open up your email program, you will get a screenshot of some number of emails that are sitting in your inbox, the official said.

“Those are all transmitted across the internet as one communication. For technological reasons, the NSA was not capable of breaking those down, and still is not capable, of breaking those down into their individual [email] components.”

If one of those emails contained a reference to a foreign person believed to be outside the US – in the subject line, the sender or the recipient, for instance – then the NSA would collect the entire screenshot “that’s popping up on your screen at the time,” the official continued.

Now, whether or not this collection comes from the telecoms or the Internet companies themselves, it effectively serves as an index of Internet communications deemed interesting based on the participants or because the email talks about an approved selector.

But it may be that this upstream collection serves primarily to identify which content the government wants to collect.

In his November 30, 2011 opinion, Bates emphasized (see page 10) the limits on what analysts could do with properly segregated upstream MCTs in the future.

An analyst seeking to use (e.g., in a FISA application, in an intelligence report, or in a Section 702 targeting decision) a discrete communication within an Internet transaction that contains multiple discrete communications must document each of the determinations. [my emphasis]

Then, the September 25, 2012 opinion describes how, using threats that he would declare the previous collection a crime under 1809(a)(2), which prohibits the “disclosure” of any information collected illegally, Judge John Bates got the government purge that previous collection and any reports generated from it.

The government informed the Court in October 2011 that although the amended NSA procedures do not by their terms apply to information acquired before October 31, NSA would apply portions of the procedures to the past upstream collection, including certain limitations on the use or disclosure of such information.

That effort, according to Bates, did not begin until “late in 2011.”

But here’s the thing: the government would have “disclosed” this information to email providers if it had used any of the violative MCTs to target emails in their custody — the Section 702 targeting decisions Bates was explicitly concerned about.

So presumably, once Bates made it clear he considered 1809 violations real problems in November 2011, the government would have had to modify any certifications authorizing collection on email addresses identified through the violative upstream collection (regardless of source).

I don’t yet understand why, in adjusting to a series of modified certifications, the providers would incur millions of dollars of costs. But I think expunging poison fruit targeting orders from the certifications would have taken some time and multiple changed certifications.

Update: Footnote 24 in the October 3, 2011 opinion provides more clarity on whether PRISM collection includes MCTs; it doesn’t.

In addition to its upstream collection, NSA acquires discrete Internet communications from Internet service providers such as [redacted] Aug. 16 Submission at 2; Aug. 30 Submission at 11; see also Sept. 7 2011 Hearing Tr. at 75-77. NSA refers to this non-upstream collection as its “PRISM collection.” Aug. 30 Submission at 11. The Court understands that NSA does not acquire Internet transactions” through its PRISM collection. See Aug Submission at 1.

Upstream Internet Collection and Minimization Procedures

new-prism-slide-001-460x345As I noted in this post, the Guardian’s report on the aftermath of the October 3, 2011 FISA Court decision seemed to suggest that Google and Yahoo content was collected as upstream collection, not from their servers.

Changes made in the minimization procedures seem to support that.

In section 3(c), which covers Destruction of Raw Data, the old procedures treat all communications the same:

Communications and other information … will be reviewed for retention in accordance with the standards set forth in these procedures.

But the new minimization procedures have to break out that section into two categories to comply with the new restrictions imposed by the FISA Court. There’s the category of data that will be treated under the old rules:

Telephony communications, Internet communications acquired by or with the assistance of the Federal Bureau of Investigation from Internet Service Providers, and other discrete forms of information…

And then there’s the category that will be subjected to the new rules:

Internet transactions acquired through NSA’s upstream collection techniques …

Now, this doesn’t confirm that Google and Yahoo are providing “upstream” data, but if they’re not, it means the only data they’re providing to the NSA is done through FBI requests (perhaps parallel to FBI’s Section 215 request for telephone metadata that gets promptly delivered to the NSA; this could refer to the old Pen Register/Trap and Trace Internet collection, but October 31, 2011 is awfully late in 2011 for eliminating that collection and if it is, why is it still in the minimization procedures?). Except all the discussions surrounding PRISM suggests that data is turned over directly to the NSA, which would mean it is considered upstream collection.

One more note: the old procedures have a phrase in this section and section 3(b)(1) that suggests NSA knew they were collecting US person data back in 2009 when the procedures were written.

The communications that may be retained include electronic communications acquired because of limitations on NSA’s ability to filter communications.

That sentence is removed from the new procedures, suggesting this “limitations on NSA’s ability to filter communications” collection is precisely the Internet transaction collection at issue. And the only reason they’d have to specifically allow themselves to retain it before (since all foreign person data can be retained) is if they knew it included US person data.

Update: Correction: The sentence above gets translated to, “The Internet transactions that may be retained include those that were acquired because of limitations on NSA’s ability to filter communications.” So it is in there.

But the November 30, 2011 FISC opinion (see footnote 6) makes it clear that this is–and was–US person data.

The Court understands this sentence to refer only to Internet transactions that contain wholly domestic communications but that are not recognized as such by NSA.

So if that language was in minimization procedures going back to at least 2009, doesn’t that mean the government knew it was collecting that US person data?

Update: Note that footnote 24 of the October 3, 2011 opinion seems to make it clear that the Internet collection is not upstream at all, and doesn’t include MCTs.

In addition to its upstream collection, NSA acquires discrete Internet communications from Internet service providers such as [redacted] Aug. 16 Submission at 2; Aug. 30 Submission at 11; see also Sept. 7 2011 Hearing Tr. at 75-77. NSA refers to this non-upstream collection as its “PRISM collection.” Aug. 30 Submission at 11. The Court understands that NSA does not acquire Internet transactions” through its PRISM collection. See Aug Submission at 1.

Why Would PRISM Providers Need to Pay Millions for New Certificates on Upstream Collection?

new-prism-slide-001-460x345The Guardian has a story that rebuts the happy tales about quick compliance being told about the October 3, 2011 and subsequent FISA Court opinions. Rather than implementing a quick fix to the Constitutional violations John Bates identified, the government actually had to extend some of the certifications multiple times, resulting in millions of dollars of additional costs. It cites a newsletter detailing the extension.

Last year’s problems resulted in multiple extensions in the Certifications’ expiration dates which cost millions of dollars for PRISM providers to implement each successive extension — costs covered by Special Source Operations.

The problem may have only affected Yahoo and Google, as an earlier newsletter — issued sometime before October 2 and October 6, 2011 — suggested they were the only ones that had not already been issued new (as opposed to extended) certificates. Moreover, Guardian’s queries suggested that Yahoo did need an extension, Facebook didn’t, and Google (and Microsoft) didn’t want to talk about it.

A Yahoo spokesperson said: “Federal law requires the US government to reimburse providers for costs incurred to respond to compulsory legal process imposed by the government. We have requested reimbursement consistent with this law.”

Asked about the reimbursement of costs relating to compliance with Fisa court certifications, Facebook responded by saying it had “never received any compensation in connection with responding to a government data request”.

Google did not answer any of the specific questions put to it, and provided only a general statement denying it had joined Prism or any other surveillance program. It added: “We await the US government’s response to our petition to publish more national security request data, which will show that our compliance with American national security laws falls far short of the wild claims still being made in the press today.”

Microsoft declined to give a response on the record.

Here’s the larger question. PRISM is downstream collection, as the slide above makes clear, collection directly from a company’s servers. The problems addressed in the FISC opinion had to do with upstream collection.

We have always talked about upstream collection in terms of telecoms collecting data directly from switches.

But this all suggests that Google and Yahoo provide upstream data, as well.

I’ll have more to say about what this probably means in a follow-up. But for the moment, just consider that it suggests at least Google and Yahoo — both email providers — may be providing upstream data in addition to whatever downstream collection they turn over.

Update: See this post, in which I suggest that Google and Yahoo had problems not because of their own upstream collection (if either does any), but because certifications to them included targeting orders based on violated MCT collection that had to be purged out of the system.

Update: Softened verb in last sentence — perhaps they aren’t. But I suspect they are.

Update: Footnote 24 makes a pretty clear distinction between the upstream and PRISM collection.

In addition to its upstream collection, NSA acquires discrete Internet communications from Internet service providers such as [redacted] Aug. 16 Submission at 2; Aug. 30 Submission at 11; see also Sept. 7 2011 Hearing Tr. at 75-77. NSA refers to this non-upstream collection as its “PRISM collection.” Aug. 30 Submission at 11. The Court understands that NSA does not acquire Internet transactions” through its PRISM collection. See Aug Submission at 1.

The Shell Game: What is Microsoft Doing?

[graphic: Google Finance]

[graphic: Google Finance]

What is this so-called tech company doing?

Microsoft sees itself as going head-to-head with Apple and Google. The 10-year chart above comparing Microsoft, Apple, and Google stock tells us this has been a delusional perception.

It also sees itself in competition with IBM. Yet IBM surpassed it in market value two years ago, even after nearly a decade of ubiquity across personal computers in the U.S. and in much of the world. (IBM is included in that chart above, too.)

One might expect a sea change to improve performance, but is the shell game shuffling of Microsoft executives really designed to deliver results to the bottom line?

Tech and business sector folks are asking as well what is going on in Redmond; even the executive assignments seemed off-kilter. One keen analysis by former Microsoft employee Ben Thompson picked apart the company’s reorganization announcement last Thursday — coincidentally the same day the Guardian published a report that Microsoft had “collaborated closely” with the National Security Agency — noting that the restructuring doesn’t make sense.

The new organization pulls everything related to Windows 8 under a single leader, from desktop to mobile devices using the same operating system, migrating to a functional structure from a divisional structure. There are several flaws in this strategy Thompson notes, but a key problem is accountability.

To tech industry analysts, the new functional structure makes it difficult to follow a trail of failure in design and implementation for any single product under this functional umbrella.

To business analysts, the lack of accountability means outcomes of successful products hide failed products under the functional umbrella, diluting overall traceability of financial performance.

But something altogether different might be happening beneath the umbrella of Windows 8.

There’s only one product now, regardless of device — one ring to rule them all. It’s reasonable to expect that every single desktop, netbook, tablet, cellphone running on Windows 8 will now substantially be the same software.

Which means going forward there’s only one application they need to allow the NSA to access for a multitude of devices.

We’ve already learned from a Microsoft spokesman that the company informs the NSA about bugs or holes in its applications BEFORE it notifies the public.

It’s been reported for years about numerous backdoors and holes built intentionally and unintentionally into Microsoft’s operating systems, from Windows 98 forward, used by the NSA and other law enforcement entities.

Now Skype has likewise been compromised after Microsoft’s acquisition of the communications application and infrastructure for the purposes of gathering content and eavesdropping by the NSA, included in the PRISM program.

Given these backdoors, holes, and bugs, Microsoft’s Patch Tuesday — in addition to its product registration methodology requiring online validation of equipment — certainly look very different when one considers each opportunity Microsoft uses to reach out and touch business and private computers for security enhancements and product key validations.

Why shouldn’t anyone believe that the true purpose of Microsoft’s reorganization is to serve the NSA’s needs?

Tech magazine The Verge noted with the promotion of Terry Myerson to lead Windows — it’s said Myerson “crumples under the spotlight and is ungenerous with the press” — Microsoft doesn’t appear eager to answer questions about Windows.

As ComputerworldUK’s Glyn Moody asked with regard to collaboration with the NSA, “How can any company ever trust Microsoft again?”

If a company can’t trust them, why should the public?

The capper, existing outside Microsoft’s Windows 8 product: Xbox One’s Kinect feature is always on, in order to sense possible commands in the area where Kinect is installed.

ACLU’s senior policy analyst Chris Sogohian tweeted last Thursday, “… who in their right mind would trust an always-on Microsoft-controlled Xbox camera in their living room?”

One might wonder how often the question of trust will be raised before serious change is made with regard to Microsoft’s relationship with the NSA. With political strategist Mark Penn handling marketing for the corporation and Steve Ballmer still at the helm as CEO, don’t hold your breath.

Why Would You Segregate the FISA Orders, But Not the Directives?

The FBI, according to Eli Lake, thinks someone besides Edward Snowden may be responsible for leaking the Section 215 order to Verizon ordering them to turn over the metadata on all their American customers’ calls. They claim to think so because digital copies of such orders exist in only two places: computers at the FISA Court and FBI’s National Security Division that are segregated from the Internet. (Note: where Lake says “warrant” in this passage, he means “order.”)

Those who receive the warrant—the first of its kind to be publicly disclosed—are not allowed “to disclose to any other person” except to carry out its terms or receive legal advice about it, and any person seeing it for those reasons is also legally bound not to disclose the order. The officials say phone companies like Verizon are not allowed to store a digital copy of the warrant, and that the documents are not accessible on most NSA internal classified computer networks or on the Joint Worldwide Intelligence Communications System, the top-secret internet used by the U.S. intelligence community.

The warrants reside on two computer systems affiliated with the Foreign Intelligence Surveillance Court and the National Security Division of the Department of Justice. Both systems are physically separated from other government-wide computer networks and employ sophisticated encryption technology, the officials said. Even lawmakers and staff lawyers on the House and Senate intelligence committees can only view the warrants in the presence of Justice Department attorneys, and are prohibited from taking notes on the documents.

Now, when the order first leaked, I actually suspected the leaker might be in this general vicinity. If that’s right, then I also suspect the FBI is interested in finding this person because he or she would be reacting to the FBI’s own wrong-doing on another matter. Heck, the FBI could conduct a manhunt in this general vicinity just for fun to make sure their own wrong-doing doesn’t get exposed.

Such is the beauty of secret counterintelligence investigations.

That said, Lake’s reporting is an example of something I suggested in the first day of this leak: we’re going to learn more about how the NSA works from leaks about the investigation of it than from the leaks themselves.

And this story provides a lot of evidence that the government guards its generalized surveillance plans more jealously than it guards it particularized surveillance targets. (See this post for a description of the difference between orders and directives specifying targets.)

Consider what kinds of documents the FISA Court produces:

  • Standing Section 215 orders such as the Verizon one in question
  • Particularized Section 215 orders; an example might be an order for credit card companies and Big Box stores to turn over details on all purchases of pressure cookers in the country
  • FISA Amendments Act orders generally mapping out the FAA collection (we don’t know how detailed they are; they might describe collection programs at the “al Qaeda” and “Chinese hacker” level, or might be slightly more specific, but are necessarily pretty general)
  • Particularized FISA warrants, targeted at individual US persons (though most of this spying, Marc Ambinder and others have claimed, is conducted by the FBI under Title III)

Aside from those particularized warrants naming US persons, FISA Court doesn’t, however, produce (or even oversee) lists of the great bulk of people who are being spied on. Those are the directives NSA analysts draw up on their own, without court supervision. Those directives presumably have to be shared with the service providers in some form, though all the reporting on it suggests they don’t see much of it. But, Lake’s remainder that Google’s list of surveillance targets had been hacked by China to identify which of its agents in the US we had identified and were surveilling makes it clear they do get the list in some form.

In April, CIO.com quoted Microsoft’s Dave Aucsmith, the senior director of the company’s Institute for Advanced Technology in Governments, saying a 2009 hack of major U.S. Internet companies was a Chinese plot to learn the targets of email and electronic surveillance by the U.S. government. In May, the Washington Post reported Chinese hackers had accessed a Google database that gave it access to years’ worth of federal U.S. surveillance records of counter-intelligence targets.

But the prior hack makes obvious something that has been apparent since the Verizon order leaked: China doesn’t have much use for information that shows NSA is compiling a database of all calls made in the US. It does, however, have a great use for the list of its spies we’ve identified.

What this report seems to suggest, among other things (including that the Congressional committees don’t have enough scrutiny over these orders because they’re not allowed to keep their own copy of them), is that details on the particularized spying is more widely dispersed, in part because it has to be. Someone’s got to implement that particularized spying, after all, and that requires communication that traverses multiple servers.

But the generalized stuff — the stuff the FISA Court actually oversees — is locked up in a vault like the family jewels.

You might ask yourself why the government would go to greater lengths to lock up the generalized stuff — the stuff that makes it clear the government is spying on Americans — and not the particularized stuff that has far more value for our adversaries.

Update: After the hearing today, Keith Alexander said Snowden is the source of the order, and he got it during training at Fort Meade.

Alexander told reporters after a House Intelligence Committee hearing that the man who’s acknowledged being the source of the recent leaks, Booz Allen Hamilton information technology specialist Edward Snowden, had access to the Foreign Intelligence Surveillance Court order and related materials during an orientation at NSA.

“The FISA warrant was on a web server that he had access to as an analyst coming into the Threat Operations Center,” Alexander said. “It was in a special classified section that as he was getting his training he went to.”

Which suggests the leaking about someone in the FISA Court may, as I thought, be an effort to impugn people in the vicinity of the court the FBI would like to shut up.

Telecoms Versus the Toobz: The Source of the Legal Troubles

In this important piece on overbroad surveillance programs under Presidents Bush and Obama, the WaPo reveals that the program James Comey almost resigned over in 2004 involved sucking Internet metadata off telecom switches owned by the telecoms.

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.

This leads me to wonder whether legal leverage from the Internet providers — rather than any squeamishness about the law itself — caused the conflict.

Remember, in the fight over retroactive immunity in 2008, the industry group for the Internet providers — including Microsoft, Yahoo, and Google — argued against retroactive immunity.

The Computer & Communications Industry Association (CCIA) strongly opposes S. 2248, the “FISA Amendments Act of 2007,” as passed by the Senate on February 12, 2008. CCIA believes that this bill should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact.

Given the WaPo’s report, this amounts to a demand that Congress allow the Internet companies to hold the telecoms accountable for helping the government seize their data.

As well they should have been able to. To a degree, these companies compete, and in the name of helping the government, the telecoms were helping themselves to Internet suppliers crown jewels.

Microsoft and Google versus AT&T and Verizon. Now that would have been an amusing lawsuit to watch. And probably a lot bigger worry for the people who use all of them to spy on us peons than we peons actually are.

Google Begs for Transparency

However annoying Googe’s recent software changes have been, it is true that they have been more aggressive about protecting privacy than most other companies. They fought a broad subpoena from DOJ for URLs and search returns in 2006. And it is often speculated they were the company that challenged and appealed a 2007 Protect America Act order. Moreover, their transparency reports really do provide at least a hint of how much data the government demands from it.

So I am encouraged by Google’s request to publish how much spying the government asks it to do.

We therefore ask you to help make it possible for Google to publish in our Transparency Report aggregate numbers of national security requests, including FISA disclosures—in terms of both the number we receive and their scope. Google’s numbers would clearly show that our compliance with these requests falls far short of the claims being made. Google has nothing to hide.

Google appreciates that you authorized the recent disclosure of general numbers for national security letters. There have been no adverse consequences arising from their publication, and in fact more companies are receiving your approval to do so as a result of Google’s initiative. Transparency here will likewise serve the public interest without harming national security.

Google is going to get hammered internationally if its customers aren’t reassured about this program. Moreover, Google likely is in a position to show that it is less enthusiastic about government spying than its competitors (cough, Microsoft). It it starts publishing this information, other providers will likely match its efforts, creating a market for at least some privacy protection.

The big corporations pushing from one side and the civil libertarians have managed to beat SOPA/PIPA and similar efforts. Perhaps that coalition can provide some check on government spying.

Truck-sized Holes: Journalists Challenged by Technology Blindness

[photo: liebeslakritze via Flickr]

[photo: liebeslakritze via Flickr]

Note: The following piece was written just before news broke about Booz Allen Hamilton employee Edward Snowden. With this in mind, let’s look at the reporting we’ve see up to this point; problems with reporting to date may remain even with the new disclosures.

ZDNet bemoaned the failure of journalism in the wake of disclosures this past week regarding the National Security Administration’s surveillance program; they took issue in particular with the Washington Post’s June 7 report. The challenge to journalists at WaPo and other outlets, particularly those who do not have a strong grasp of information technology, can be seen in the reporting around access to social media systems.

Some outlets focused on “direct access.” Others reported on “access,” but were not clear about direct or indirect access.

Yet more reporting focused on awareness of the program and authorization or lack thereof on the part of the largest social media firms cited on the leaked NSA slides.

Journalists are not asking what “access” means in order to clarify what each corporation understands direct and indirect access to mean with regard to their systems.

Does “direct access” mean someone physically camped out on site within reach of the data center?

Does “direct access” mean someone with global administrative rights and capability offsite of the data center? Some might call this remote access, but without clarification, what is the truth?

I don’t know about you but I can drive a Mack truck through the gap between these two questions.

So which “direct access” have the social media firms not permitted? Which “direct access” has been taken without authorization of corporate management? ZDNet focuses carefully on authorization, noting the changes in Washington Post’s story with regard to “knowingly participated,” changed later to read “whose cooperation is essential PRISM operations.”

This begs the same questions with regard to any other form of access which is not direct. Note carefully that a key NSA slide is entitled, “Dates when PRISM Collection Began For Each Provider.” It doesn’t actually say “gained access,” direct or otherwise. Read more

Once Upon a Time the PRISM Companies Fought Retroactive Immunity

Screen shot 2013-06-09 at 8.30.08 AMSince the disclosure of the PRISM program, I have thought about a letter the industry group for some of the biggest and earliest PRISM participants — Google, Microsoft, and Yahoo — wrote to then House Judiciary Chair John Conyers during the 2008 debate on FISA Amendments Act. (The screen capture reflects a partial list of members from 2009.)

Remarkably, the letter strongly condemned the effort to grant companies that had broke the law under Bush’s illegal wiretap program immunity.

The Computer & Communications Industry Association (CCIA) strongly opposes S. 2248, the “FISA Amendments Act of 2007,” as passed by the Senate on February 12, 2008. CCIA believes that this bill should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact.

CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information. This also conflates the separate questions of blanket retroactive immunity for violations of law, and prospective immunity, the latter of which we strongly support.

Therefore, CCIA urges you to reject S. 2248. America will be safer if the lines are bright. The perpetual promise of bestowing amnesty for any and all misdeeds committed in the name of security will condemn us to the uncertainty and dubious legalities of the past. Let that not be our future as well. [my emphasis]

Microsoft, Yahoo, and Google all joined PRISM within a year of the date of the February 29, 2008 letter (Microsoft had joined almost six months before, Google would join in January 2009).

Screen shot 2013-06-07 at 11.08.29 AMClearly, the demand that the companies that broke the law not receive retroactive immunity suggests none of the members had done so. It further suggests that those companies that did break the law — the telecoms, at a minimum — had done something the email providers wanted them held accountable for. This suggests, though doesn’t prove, that before PRISM, the government may have accessed emails from these providers by taking packets from telecom switches, rather than obtaining the data from the providers themselves.

Google had also fought a DOJ subpoena in 2006 for a million URLs and search terms, purportedly in the name of hunting child pornographers.

And those of us who follow this subject have always speculated (with some support from sources) that the plaintiff in a 2007 FISA Court challenge to a Protect America Act (the precursor to FISA Amendments Act) was an email provider.

All of those details suggest, at the very least, that email providers (unlike telecoms, which we know were voluntarily giving over data shortly after 9/11) fought government efforts to access their data.

But it also suggests that the email providers may have treated PRISM as a less worse alternative than the government accessing their data via other means (which is a threat the government used to get banks to turn over SWIFT data, too).

It seems likely the way the government “negotiates” getting data companies to willingly turn over their data is to steal it first.