Government spying scandal expands to include pretty much everyone, everywhere

There are probably a handful of mountain men living completely off the grid, never making phone calls or using email, who the government isn’t spying on. Other than that, it looks like it’s just about everyone.

The Wall Street Journal confirms that government seizure of telephone records was not limited to Verizon – they’ve done the same thing with AT&T and Sprint.  That means all three of the top phone companies have been mined for data on the telephone activity of just about every American citizen.

And it’s not just phone calls.  The Journal notes that credit card transactions are also being watched.  And the Washington Post introduces us to the open-ended Internet mega-surveillance program called PRISM… which, unlike the phone “metadata” harvesting, does include the actual content of online communications.

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.???

The intelligence officer who spilled the beans on PRISM to the Post said “they quite literally can watch your ideas form as you type.”  Wow.  By lunchtime on a typical Friday, that means they’re watching my ideas form faster than I am.

Like the other hyper-surveillance programs we’ve been learning about, PRISM started under President Bush, but exploded in the Obama years:

PRISM was launched from the ashes of President George W. Bush???s secret program of warrantless domestic surveillance in 2007, after news media disclosures, lawsuits and the Foreign Intelligence Surveillance Court forced the president to look for new authority.

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.

The court-approved program is focused on foreign communications traffic, which often flows through U.S. servers even when sent from one overseas location to another. Between 2004 and 2007, Bush administration lawyers persuaded federal FISA judges to issue surveillance orders in a fundamentally new form. Until then the government had to show probable cause that a particular ???target??? and ???facility??? were both connected to terrorism or espionage.

In four new orders, which remain classified, the court defined massive data sets as ???facilities??? and agreed to certify periodically that the government had reasonable procedures in place to minimize collection of ???U.S. persons??? data without a warrant.

In a statement issue late Thursday, Director of National Intelligence James R. Clapper said ???information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats. The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans.???

Clapper added that there were numerous inaccuracies in reports about PRISM by The Post and the Guardian newspaper, but he did not specify any.

Clapper, by the way, is clearly guilty of lying to Congress, which before the coming of Barack Obama was considered a crime.  From Fox News:

Reports that the Obama administration has been collecting the phone records of millions of Verizon customers in the U.S. could contradict statements made by top officials who previously claimed the government was not holding data on Americans.

Director of National Intelligence James Clapper was asked at a March hearing whether the National Security Agency collects any data on millions of Americans.

“No sir … not wittingly,” Clapper responded, acknowledging there are cases “where inadvertently, perhaps” the data could be collected.

NSA Director Gen. Keith Alexander also told Fox News last year that the agency does not “hold data on U.S. citizens.”

I guess it all depends on the meaning of words like “no” and “not wittingly.”  For added fun with verbiage, the White House Principal Deputy Press Secretary slipped up and referred to FISA as the Federal Intelligence Surveillance Act yesterday, while attempting to justify the Verizon phone snoop.  The “F” is supposed to stand for “Foreign,” which is an important clue to its intended purpose.  That’s an interesting Freudian slip.

All of the big Internet companies – including Facebook, Google, Apple, Microsoft, and Yahoo – have denied participating in the PRISM program, which would seem to strongly contradict the story given to the Washington Post.  However, the denials seem a bit… precise.  Facebook, Apple, and Yahoo specifically denied providing government organizations with “direct access” to their servers.  Google said it “does not have a backdoor for the government to access private data.”  But there are ways the PRISM program could operate without “direct access” or “back doors” into servers.

Another very specific denial came from a senior administration official quoted by Fox News, who said all this data mining is authorized by a law that “does not allow the targeting of any U.S. citizen or any person located in the United States.”  As Fox observers, it’s not clear what he means by “targeting.”

The slide show describing PRISM that was leaked to the Washington Post suggests that some of this surveillance is a natural outgrowth of the interconnected Internet universe, where people who have no special intelligence training or legal powers can mine huge amounts of data about each other by performing simple web searches.  Furthermore, the social media engines we’ve come to know and love have some very powerful “surveillance” features built right into them:

According to the slides, there has been ???continued exponential growth in tasking to Facebook and Skype.”

“With a few clicks and an affirmation that the subject is believed to be engaged in terrorism, espionage or nuclear proliferation, an analyst obtains full access to Facebook???s ‘extensive search and surveillance capabilities against the variety of online social networking services,'” the Washington Post reports.

Skype can reportedly be monitored for audio when one end of a call is a conventional telephone and also can be monitored for video, chat and file transfers when users connect just by a computer. Google services that can be monitored include Gmail, voice and video chat, Google Drive files, and search terms.

Among those struggling to grasp the open-ended nature of this surveillance operation is Rep. Jim Sensenbrenner (R-WI), author of the Patriot Act, who says this is all going far beyond anything he envisioned:

“This is a big deal, a really big deal,” Sensenbrenner told Fox News, adding that such a broad seizure was “never the intent” of the law. He floated the possibility of amending the Patriot Act before its 2015 expiration to stop this.

In a separate statement, he called the program “excessive and un-American.”

The Republican lawmaker also fired off a letter to Attorney General Eric Holder — who would not comment on the program when asked about it Thursday — explaining why he thinks the records collection goes astray of the law. He noted that the key section of the law that allows the government to obtain business records requires the information to be relevant to an authorized investigation.

How could the phone records of so many innocent Americans be relevant to an authorized investigation?” he asked in the letter.

He said the order “could not have been drafted more broadly,” and said he does not think it’s “consistent” with the law’s requirements.

The program also has Congressional defenders on both sides of the aisle:

Rep. Mike Rogers, R-Mich., chairman of the House intelligence committee, said the effort is not “data mining,” and has helped quash a terrorist attack on U.S. soil in the past few years. He would not elaborate.

The leaders of the Senate intelligence committee also defended the program, saying it is “nothing new.” Republican Georgia Sen. Saxby Chambliss said it’s been going on for seven years.

Chairwoman Sen. Dianne Feinstein, D-Calif., said these orders are actually renewed every three months through the court. She said the records are there for investigators to access if there is suspicion of terrorist activity.

“The threat from terrorism remains very real and these lawful intelligence activities must continue, with the careful oversight of the executive, legislative and judicial branches of government,” Feinstein and Chambliss said in a joint statement.

Some of President Obama’s most loyal defenders have been having trouble swallowing these revelations, which run strongly counter to his campaign promises, and the image he strives to project as a critic of Bush-era counter-terrorism policy.  He voted “no” on extending the wiretap provisions of the Patriot Act when he was in the Senate, but developed a rather different opinion of them once he reached the White House.  The most charitable explanation for this would be Obama realizing how foolish his previous rhetoric was, as soon as he started getting those White House intelligence briefings.  But the members of his personality cult aren’t getting those briefings, and they’re not reacting well to their first good look at the surveillance Death Star.

For example, the New York Times published a heartbroken editorial about “President Obama’s Dragnet” on Thursday:

Within hours of the disclosure that federal authorities routinely collect data on phone calls Americans make, regardless of whether they have any bearing on a counterterrorism investigation, the Obama administration issued the same platitude it has offered every time President Obama has been caught overreaching in the use of his powers: Terrorists are a real menace and you should just trust us to deal with them because we have internal mechanisms (that we are not going to tell you about) to make sure we do not violate your rights.

Those reassurances have never been persuasive ??? whether on secret warrants to scoop up a news agency???s phone records or secret orders to kill an American suspected of terrorism ??? especially coming from a president who once promised transparency and accountability.

The administration has now lost all credibility. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it. That is one reason we have long argued that the Patriot Act, enacted in the heat of fear after the Sept. 11, 2001, attacks by members of Congress who mostly had not even read it, was reckless in its assignment of unnecessary and overbroad surveillance powers.

Ouch!  That’s going to leave a mark!  The New York Times loves Obama with all of its far-Left heart, but now he’s gone too far, and it has to hurt him.  Call it “Fifty Shades of Grey Lady.”

But don’t send the Times editors any tri-corner hats just yet, because upon reflection they decided they had been far too harsh.  Maybe they were worried about getting the Tea Party treatment from Obama’s IRS.  In any event, they stealth-edited the editorial to read “The administration has now lost all credibility on this issue.”  Sure, Obama lies and obfuscates constantly on just about everything, but his loving and supportive friends at the New York Times are still willing to extend him “credibility” on lots of other stuff.  They’re just cutting up his Surveillance State MasterCard.

Is Barack Obama’s sleep ever troubled by dreams of what he’d be going through right now if he was a Republican, and had to face a relentless adversarial media wolf pack, instead of lapdogs?

The rest of America will spend the next few days coming to terms with the extend to which they’ve been kept under surveillance.  Most of us had no idea it was anything this broad.   We support efforts to combat terrorism, and understand that intelligence gathering is a vital part of that effort, but we assume there’s a substantial set of due-process checks and balances against the effort.  We assume privacy is our default right, to be violated only with very good reasons, after specific allegations against us as individuals have been reviewed by the court system.

The recent drone-strike controversy proceeded along similar lines.  A hefty portion of the American public has no serious problem with dispatching drones to vaporize terrorists, but they want the process controlled by courts, or at least a long chain of officials who can all be held accountable for their decisions, not a few incredibly powerful people filling out secret kill lists… especially when the theater of operations potentially shifts to American citizens and American soil.

We are deep believers in the principle of innocent until proven guilty.  Part of that ethic involves the review of clear charges, and the accountability of those who bring them.  It’s obviously impractical to notify any target of law-enforcement surveillance that he’s under suspicion and will henceforth be monitored – you can’t catch any criminals that way.  But we do expect that specific charges have been reviewed by well-trained people before the State begins monitoring us.  Civil libertarians have always been very queasy about the concept of warrantless wiretaps, but even there, we expect government agents to have thought long and hard before taking reasonable actions.  When we learn that everyone ‘s data is being scanned, this expectation is not met.

And we’re dealing with an Administration that has repeatedly demonstrated it cannot be trusted with sensitive information.  It has a long history of abusing its power for political purposes.  Even the most generous defense offered by its apologist supposes that officials throughout the Administration are “spontaneously” deciding to carry out these abuses on their own, without coordination.  In other words, the bureaucracy is riddled with people who abuse their authority, and has no effective measures in place to detect or stop them.

We also know that American agencies have been targeted for sustained cyber-attack by hackers from foreign powers like China.  Are we absolutely certain the data they’re collecting about us can’t fall into the wrong hands?

Update: The question about Chinese hackers remains open, but it looks like the NSA has been voluntarily sharing its data harvest with British intelligence.

Update: As suspected, those denials from all the tech companies turned out to be carefully worded evasions.  According to the New York Timesthey’ve all walked back their denials and admitted they were part of the PRISM program, although it was technically true that they weren’t giving the government “direct access” or a “back door” into their systems.   Instead, “the companies were essentially asked to erect a locked mailbox and give the government the key.”  Apparently only Twitter refused to hand its users’ information over to the government.