The NSA, Edward Snowden, and Surveillance
An overview of the NSA surveillance program leaked to the media by Edward Snowden
by Beth Rowen
One of the biggest and most far-reaching stories of 2013 broke in early June and continued to make headlines—and raise eyebrows—for the remainder of the year. On June 5, the British newspaper the Guardian published the first of many stories by Glenn Greenwald about the top-secret surveillance activities of the National Security Agency. Reports of the leaks, many of which were published simultaneously by the Washington Post, revealed that the NSA has secretly collected information from U.S. citizens without their consent, gathering data about their phone calls, internet use, instant messaging, and email activity.
Leaks Reveal Scope of NSA's Program
On June 9, Edward Snowden, a former CIA employee, admitted that he was the source of the NSA leaks. The Snowden leaks divulged that the NSA collects meta data about virtually every phone call made in the U.S., amounting to billions of calls. Meta data includes the phone numbers of the caller and recipient and the duration of the call; it does not include recordings of the actual conversations. Major phone companies, including Verizon, AT&T, and Sprint Nextel, have complied with court orders to turn over these records to the NSA.
The leaks also uncovered details about PRISM, a secret program that gave NSA direct access to the servers of Facebook, YouTube, Skype, Google, Apple, Yahoo and other companies. Such access allowed the government to retrieve emails, photographs, and documents of millions of users. These companies denied that they offered the government "back door" access to their networks. Britain's Government Communications Headquarters (GCHQ)—an agency similar to the NSA—had access to data gleaned through PRISM.
Snowden: A Hero or a Traitor?
Public reaction to the leaks was mixed; some people considered Snowden a whistle-blower and a champion of government transparency, while others called him a traitor. President Barack Obama issued a carefully worded statement about the leaks, saying that there must be a balance between protecting national security and the privacy of citizens. "You can't have 100 percent security and also then have 100 percent privacy and zero inconvenience," Obama said. He also said the NSA programs "do not involve listening to people's phone calls, do not involve reading the emails of U.S. citizens or U.S. residents, absent further action by a federal court that is entirely consistent with what we would do, for example, in a criminal investigation." He was referring to the Foreign Intelligence Surveillance Court, the secret court, known as the FISA court, established in 1978 to hear requests for warrants for "electronic surveillance to obtain foreign intelligence information."
U.S. intelligence officials defended the NSA programs. In mid-June, NSA Director Keith Alexander told the House intelligence committee that the surveillance programs have prevented more than 50 "potential terrorist events" since 2001.
Fighting Extradition and Looking for a Place to Call Home
Snowden, fearing prosecution, fled to Hong Kong before the Guardian ran its first story. He arrived in Hong Kong with four laptop computers from which he could access some of the U.S. government's most closely held secrets. He remained in Hong Kong while he sought asylum in a number of countries. The U.S. government filed espionage and theft charges against Snowden on June 21 and also requested that Hong Kong extradite Snowden.
Fighting extradition, Snowden traveled from Hong Kong to Moscow on June 23. When Snowden first arrived at the Russian airport, he sought asylum in Russia. Russian president Vladimir Putin responded by saying that Snowden could stay in Russia only if he ceased "his work aimed at inflicting damage on our American partners." Meanwhile, the United States made diplomatic moves to prevent Snowden from receiving permanent asylum in Ecuador, Bolivia, Nicaragua, or Venezuela, the Latin American governments that stated they would take him.
On July 3, the plane carrying Bolivian president Evo Morales from Russia back to Bolivia was diverted because several European nations, believing that Snowden was on board the plane, refused Morales access to their airspace. The move created a diplomatic furor, and Morales called the incident an "affront to all [Latin] America," and the vice president, Alvaro Garcia, said Morales was "being kidnapped by imperialism."
On July 17, Snowden filed a temporary asylum request in Russia after being holed up in the transit area of Moscow's Sheremetyevo airport for more than three weeks. Putin reiterated that Snowden must do no further harm to the United States, telling reporters, "We warned Mr. Snowden that any action by him that could cause damage to Russian-American relations is unacceptable to us. Bilateral relations, in my opinion, are far more important than squabbles about the activities of the secret services."
On August 1, Russia granted Snowden asylum for one year, despite strong urging from the U.S. not to do so. Snowden's asylum further eroded the relationship between Washington and Moscow and ratcheted up tension between Obama and Putin. President Obama canceled a September summit meeting with Putin. In August 2014, Russia granted Snowden a three-year residence permit, allowing him to stay in the country until 2017.
Leaks Spark Diplomatic Crisis for U.S.
The controversy surrounding the NSA's surveillance program gathered new momentum in September and October as leaks about U.S. spying on allies surfaced with regularity. Reports indicated that the U.S. has spied on the governments, officials, and citizens of several friendly countries, including France, Germany, Spain, and Brazil. The revelations have soured the relationship with normally faithful allies. Germany's Angela Merkel expressed outrage when she learned that the NSA tapped her cellphone for about ten years, beginning in 2002—three years before she became chancellor. Adding to the diplomatic crisis were conflicting reports about how long President Barack Obama knew about the surveillance of Merkel and other allies. The Obama administration denied any prior knowledge. However, reports said that NSA director Keith Alexander had informed him about the program in 2010. Then, in late October, James Clapper, national intelligence director, said in testimony before the House Intelligence Committee that the NSA had long been informing the National Security Council about its surveillance program in other countries. In addition, he said such eavesdropping is reciprocal.
In response to the growing scandal, Obama said he planned to order the NSA to end its program of eavesdropping on leaders of U.S. allies. In addition, Dianne Feinstein, the chairwoman of the Senate Intelligence Committee who had been a supporter of the NSA surveillance program, said, "I do not believe the United States should be collecting phone calls or emails of friendly presidents and prime ministers." She said the Intelligence Committee would review the NSA's data collection programs.
Criticism of Program in a Federal Court and by Panel Lead to Reform of NSA
The first ruling against the NSA's surveillance program was handed down in December by Judge Richard Leon of Federal District Court for the District of Columbia. He said the program is “significantly likely“ to violate the Fourth Amendmentâs protection against unreasonable searches. The case was brought by a group led by conservative legal activist Larry Klayman. "I cannot imagine a more âindiscriminateâ and âarbitrary invasionâ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval," said Leon. The government has relied on the 1979 Supreme Court case Smith v. Maryland to justify its spying program. The ruling said police can capture information about phone numbers a suspect called without a warrant because suspects cannot expect to keep such information private when using a service of a third party. Leon said that given the changes in technology, the Smith ruling no longer applies to current circumstances.
On Dec. 18, 2013, just days after the ruling, an advisory panel commissioned by President Obama released a 300-page report that recommended 46 changes to the NSA's surveillance program. The recommendations included: handing authority of metadata gleaned from surveillance to a third party, such as a telecommunications company or a private group; requiring that NSA analysts obtain a court order before accessing the data; requiring that the government obtain a court order before issuing national security letters, which force businesses to hand over private customer information; banning the government from using "back door" methods to gain access to hardware or software; and that an advocate should arge in favor of civil liberties in cases that come before the Foreign Intelligence Surveillance Court. Currently, these cases are heard in private and only the government presents a case. The report also said the NSA's surveillance program has not been "essential to preventing attacks."
A month later, on Jan. 17, 2014, President Obama announced reforms to the country's surveillance program based on the panel's recommendations. He said that while he believed the activities of the NSA were legal, he acknowledged that some compromised civil liberties. "Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power," Obama said. "It depends on the law to constrain those in power."
The reforms he outlined include: requiring NSA analysts to get a court order to access phone data unless in cases of emergencies; an intention to eventually end to the collection of massive amounts of metadata by the government; the NSA will stop eavesdropping on leaders of allied nations; officials can pursue a phone number linked to a terrorist association by two degrees rather than three; and Congress will appoint advocates to argue on the side of civil liberties before the FISA court. He did not implement the recommendation about national security letters.
Another report critical of the NSA's collection of massive amounts of phone call records was released in January, by the Privacy and Civil Liberties Oversight Board, an independent agency. It echoed many of the concerns of the panel assembled by President Obama, but went further, saying the NSA program is likely both illegal and unconstitutional and has not proven to be effective in fighting terrorism. The report recommended the collection of the meta data be shut down.
The report said the program, "lacks a viable legal foundation under Section 215 [of the Patriot Act], implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value,“ the report said. “As a result, the board recommends that the government end the program."
Federal Court Rules Against Bulk Collection
A three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan ruled in May 2015 that Congress never authorized the bulk collection of the phone records of U.S. citizens when it passed the U.S.A. Patriot Act, and therefore the National Security Agency's program that does so is illegal. The panel allowed the program to continue, but called on Congress to amend the law. In the court's opinion, Judge Gerard Lynch wrote "knowledge of the program was intentionally kept to a minimum, both within Congress and among the public."
Legislation Scales Back Scope of Patriot Act
After a protracted and contentious legislative battle, the Senate voted, 67 to 32, to pass the USA Freedom Act, on June 2, 2015, which the House had previously approved. President Obama signed the bill into law. The act ends the NSA's bulk collection of phone records of millions of Americans. That responsibility shifts to the phone companies, who can turn the data over to the government only when the Foreign Intelligence Surveillance Court issues a warrant to search the phone records of individuals. Also under the new law, the FISA court, which had operated in secrecy, will be required to declassify some of its decisions, and third parties will be allowed to argue in front of the court. The law also reinstates three provisions of the USA Patriot Act, which expired on June 1: roving wiretaps of terror suspects who change devices, surveillance of "lone wolf" suspects who are not affiliated with a terrorist organization, and the seeking of court orders to search business records.
Major Revelations about the Surveillance Program
Here's a look at some of the controversial aspects of the NSA's surveillance program made public by Snowden.
- The NSA monitors the credit card transactions and customer records of three major phone service providers: Verizon, AT&T, and Sprint Nextel.
- Since 2010, the NSA has been analyzing meta data from phone and email logs and supplementing that information with data from other sources, such as GPS locators, bank codes, passenger manifests from airlines and other transportation databases, Facebook, and voter registration logs, to create graphs of the social connections of individuals. The graphs can show who people communicate and travel with, their location, and other information.
- Through a program called PRISM, companies, such as Facebook and Google, have cooperated with the U.S. government in surveillance operations.
- Britain's Government Communications Headquarters (GCHQ) had access to data gleaned through PRISM.
- Snowden told the South China Morning Post that the NSA has been collecting information about individuals and institutions in Hong Kong and China since 2009 using PRISM.
- The Foreign Intelligence Surveillance Court ruled that correspondence involving a U.S. citizen gleaned when the NSA was targeting non-U.S. citizens can be analyzed and kept if it was "inadvertently" acquired without a warrant.
- Through a program called Bullrun, the NSA has cracked internet encryption programs used by many companies to protect customers' privacy.
- Microsoft cooperated with the NSA, helping the agency to override the company's encryption mechanisms that protect the privacy of customers. The collaboration gave the government access to correspondence sent via Outlook.com, Hotmail, and Skype.
- Britain's GCHQ created the Tempora program in which the government monitored internet, email, IM, and phone activity using probes that were placed on fiber-optic cables. Internet content collected via the probes could be stored for three days and meta data for up to 30 days. Analysts at the NSA had access to this information.
- The Boundless Informant program enabled the NSA to analyze the metadata it collected. The tool has a mapping feature that allows data to be analyzed by country. The program seemingly contradicts claims by NSA officials that it does not have the ability to track the information it collects.
- The NSA shares raw intelligence data with Israel, passing it on before determining if it contained information about U.S. citizens.
- The NSA spied on Brazilian president Dilma Rousseff as well as Petrobras, Brazil's national oil company.
- The NSA conducted surveillance on the European Union embassy in Washington, D.C., Franceâs Ministry of Foreign Affairs, and the European Council headquarters in Brussels.
- In one 30-day period between Dec. 2012 and Jan. 2013, the NSA collected information on some 70 million digital communications in France and 60 million in Spain.
- The NSA hacked into the email domain of Mexican president Felipe Calderon. Cabinet members also used the same email domain.
- According to several news reports, the NSA tapped the cellphone of German chancellor Angela Merkel for about ten years, beginning in 2002.
- U.S. and British spies monitored and played massive multiplayer online games, such as World of Warcraft and Second Life, trying to track down terrorists who might use the games to communicate, plan attacks, or send messages. The spies also collected data obtained from smartphone apps, such as Google maps, the game Angry Birds, Facebook, Twitter, and others. These apps can provide agents with a user's location, age, gender, address book, and other data.
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