The Edward Snowden Affair (10 page)

Perhaps the only thing more frightening than “friending” a person who “liked” something which a government target also listed as a Facebook hobby,
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thereby placing an innocent websurfer under federal suspicion, is the NSA can access real-time data, i.e., live surveillance. This means an analyst has the ability to watch people as they casually surf the Internet.

Gellman highlights one of the primary differences between the participating Internet businesses and the NSA-mined telecoms: The Internet firms didn’t have to be ordered to submit their data. They merely acknowledged a “directive” from the attorney general and director of national intelligence in exchange for legal impunity. In the event a developing Internet enterprise refuses to play along, 2008 legislation permits the FISC to make a company “comply.”

Suggestive of a gag order being in place, a Google representative speaking on condition of anonymity stated, “From time to time, people allege that we have created a government ‘backdoor’ into our systems, but Google does not have a ‘backdoor’ for the government to access private user data.” Gellman specifies that the few congressional members privy to PRISM, such as Wyden and Udall, are also not allowed to express their opinions because they are “bound by oaths of office to hold their tongues.”

The U.S. government did not detain the
Post
article as it had the 2004
Times
exposé and even permitted four PRISM slides to serve as irrefutable proof. It reluctantly did so because Snowden had been judicious with his choice of sources. Greenwald worked for a foreign publisher and had based his writing career around the issue of civil liberties and overreaching intelligence programs and agencies. The domestic
Post
was famous for having reported the Pentagon Papers and Watergate. The White House knew that if it didn’t meet the writers halfway, they would have invariably issued all 41 slides. Though the same four slides accompany both articles, Gellman and
The Guardian
gradually released others.
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Whereas Gellman states that the NSA and FBI are “tapping directly into” servers, Greenwald elects to open his broadside with the more caustic and aggressive phrase “obtained direct access.” His opening bell is promptly followed by a user’s “search history, the content of emails, file transfers and live chats” being compromised by PRISM. But Greenwald loses speed early in the article. Hoping to display the depth of the program’s clandestine nature via the reluctance of government officials and industry spokespersons to comment or even acknowledge PRISM—”[a]lthough the presentation claims the program is run with the assistance of the companies”—Greenwald betrays the topic’s sense of urgency. Fortunately he quickly regains focus.

He makes clear that if an individual communicates with anyone outside the United States, the person is automatically targeted, but “[u]nlike the collection of [telecommunication providers’] call records, this surveillance can include the content of communications and not just the metadata.” This means a person’s static documents as well as live communications will be surveilled. Still going for the throat, Greenwald unequivocally relays PRISM’s lack of political and judicial oversight: “The Prism program allows the NSA, the world’s largest surveillance organisation, to obtain targeted communications without having to request them from the service providers and without having to obtain individual court orders.”

Because Washington wouldn’t consent to full disclosure of the slideshow, Greenwald satisfies himself with discussing the withheld data. He successfully paints a picture of an NSA at odds with Capitol Hill’s supervision. One restricted slide provides a PRISM trainee with the NSA’s perspective on intelligence legislation, “Fisa was broken because it provided privacy protections to people who were not entitled to them. It took a Fisa court order to collect on foreigners overseas who were communicating with other foreigners overseas simply because the government was collecting off a wire in the United States. There were too many email accounts to be practical to seek Fisas for all.” Greenwald explains that the FISA Amendment Act (FAA) redefined what “electronic surveillance” meant. Under previous rules, an NSA analyst was not permitted to spy upon anyone in the United States. Current legislation considers a lawful target to be anyone “reasonably believed” to be outside of America at the time of transmission. If Frank uses his Canadian-based Hushmail account to discuss something that took place in Quebec earlier in the day, it could be argued he was on-site at the time. He is now the subject of an investigation. All of his (and his primary, secondary and tertiary associations’) live and collected data will be requested and reviewed.

Toward the end of the article, Greenwald makes a point using implied hyperbole. If the U.S. is not spying on Americans, then an average of 65 foreigners per day—2,000 per month—are making plans to harm the nation. That is the number of PRISM reports filed in 2012.

The exposés accomplished what they were designed to do. Yet it is obvious the PRISM twins’ impact would have been much greater if their authors hadn’t been racing to a headline and instead worked together to fashion complementary bookends. Other news sources would successfully combine forces to produce buttressed, simultaneous reports of classified data that Snowden had nabbed.

Gellman’s report is strong in its presentation, well organized, but too skeletal. Its weakness is juxtaposed by Greenwald’s nervous verbosity and pacing fueled by moral outrage. It is retrospectively obvious Greenwald was preoccupied during its research and composition. Most likely due to the stress of attempting to write, interview and research amid jetlag and sleep deprivation while in Hong Kong, salient points are made but in such a hectic, disjointed manner; it feels less like being led through a topic than being dragged by it. Whereas Gellman is professionally removed and patient, Greenwald’s rapid pulse is felt through his pen. His unbridled prose desperately needs an editor. It introduces political and technical jargon with little or no explanation, is prey to redundancy, surrenders to the temptation to sardonically comment upon its subject and wastes time transcribing information which an accompanying slide makes unequivocally clear. Conversely, Gellman’s work requires a contributor to provide his reader with a more complete picture and understanding of the topic. Due to his tone, readers consent to Gellman’s apprehensions. They have no other choice because they cannot visualize the completed puzzle. Greenwald’s audience expresses the same discontent but must first attempt to organize their inflamed thoughts. Only then can they begin to understand exactly why they are ticked off.

The strongest immediate reaction to the adjoining articles came from the named companies. Seven explicitly stated free access had not been given to the government (AOL and PalTalk remained silent). As they did so, Gellman quietly revised and expanded his work. His motivations for doing so were suspect but would soon become clear.

With the aid of four contributors—Julie Tate, Robert O’Harrow, Cecilia Kang and Ellen Nakashima—Gellman’s article would double its size by 8:51 the next morning. Its title now implicated the United Kingdom in the domestic spying game: “U.S., British intelligence mining data from nine U.S. Internet companies in broad secret program.”
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Readers learn
The Guardian
had just revealed the U.S. government had given the British equivalent to the NSA, Government Communications Headquarters (GCHQ), copies of PRISM.
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*
Use of the

American technology grants GCHQ the legal loophole necessary to gather domestic information. Furthermore, the revision reveals how important Microsoft, Yahoo and Google are to the American government. The trio account for an outstanding 98% of PRISM data intake. Gellman reiterates that participating companies are “immunized” from legal fallout but adds Congress consented via the Protect America Act of 2007 and FISA Amendments Act of 2008.

Aside from the pivotal whitewashing—no longer was “a person’s movements and contacts over time” monitored, only “foreign targets’” activities, and technology companies didn’t “participate knowingly” but instead were merely “essential to PRISM operations”—the most noticeable change in the article is the amount of direct quotes. It is evident that most whom Gellman initially attempted to contact had become willing to be put on hold in order to provide an official statement to the
Post
.

For the sake of customer morale, a handful of the listed Internet businesses flatly denied any knowledge of a covert data exchange with the federal government. Others blatantly proclaimed no such program was in place. Speaking on behalf of Apple, Steve Dowling announced, “We have never heard of PRISM”
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while the chief security officer for Facebook, Joe Sullivan, declared, “We do not provide any government organization with direct access to Facebook servers,”
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despite the PRISM slide which includes the phrase, “Collection directly from the servers of.” Judiciously and highly intuitively, Gellman accepts some of the company spokespeople’s claims to ignorance. Innocuously inserted in his newest revision is the addendum, “In another classified report obtained by the
Post
, the arrangement is described as allowing ‘collection managers [to send] content tasking instructions directly to equipment installed at company-controlled locations,’ rather than directly to company servers.” Gellman expected violent reactions from the article and kept some documents in reserve to have a counterargument readily available. He admits the Internet representatives might not know their servers were open to the FBI’s Data Intercept Technology Unit. The information is then relayed to the NSA through a contracted intermediary such as BAH.

Gellman also makes another distinction between the two enterprises. FISC-ordered telecoms filter their data prior to submission. They do not submit subscriber names or the contents of the conversations. By leaving a backdoor open for the NSA, the Internet companies’ captured data is unedited. Senator Udall calls attention to this distinction: “As it is written, there is nothing to prohibit the intelligence community from searching through a pile of communications, which may have been incidentally or accidentally been collected without a warrant, to deliberately search for the phone calls or e-mails of specific Americans.” Ironically when Senator Wyden asked how many people this affected, Inspector General Charles McCullough III stated that reporting the figure would constitute a privacy violation.
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Even Director of National Intelligence James Clapper had something to say to Gellman. In a statement issued “late Thursday,” Clapper informed the
Post
that “numerous inaccuracies” resided in the parallel PRISM reports but “did not specify” what they were. Clapper was already at the end of his tether in the midst of what was becoming a strenuous time for the NSA.

Greenwald was met with the same pressures but refused to retract his steadfast assertions of direct access. It appeared Greenwald was standing on principle or being stubborn. It seemed
The Washington Post
had gone the way of
The New York Times
by willfully redacting claims made less than 24 hours before. Gellman’s quiet and therefore implied admission of guilt created more questions than it answered. Does domestic spying in fact occur? After June 5, the answer seemed to be an irrefutable “yes,” and therefore it does not follow that the American intelligence community would settle for only a portion of the available data. It was unclear why telecoms were being forced to submit while the Internet companies were not. This ambiguity allowed for the possibility that the online businesses’ assertions of ignorance about PRISM were true. Perhaps these public entities were unaware they were providing information because, in fact, the American government was hacking into U.S. communication lines. Pandora’s Box was open. What people didn’t know or expect was that it was Gellman’s turn to attempt to be clever.

Gellman’s motivation for revision was subtly, coyly staring everyone in the face. Greenwald’s refusal to change a word and
The Guardian
not publishing a redaction could have been dismissed as orneriness if Gellman had done one thing. A team of
Post
journalists had worked at breakneck speed to issue a major revision in less than 15 hours. Yet, despite the softening of the language and a few retractions that Internet companies were providing direct access, the first half of Gellman’s opening sentence remained untouched. The independent clause, “The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies” continued to sit on the page. It simply refused to budge.

Greenwald and Gellman were aware that even if promised legal impunity, no Internet company would voluntarily agree to hand over data. This would leave the firms liable to public backlash for having freely violated their customer’s privacy should it ever become known. Both journalists exploited this simple fact because they needed something in order to definitively prove their claims: the Internet companies’ FISC orders.

If Snowden had possessed an FISC blanket order forcing even one Internet company to comply, the news sources would have included it in their reports. Because they didn’t have proof, the journalists knew if they deliberately misinterpreted the meaning of the PRISM slides, the firms would be obligated to absolve themselves of responsibility. In so doing, they would simultaneously incriminate the government in the process.

Gellman was trying to force a semantic argument. He admitted in his revision he knew what actually took place. An NSA analyst would submit a data request to the FBI. The FBI in turn would pull the information from servers at contracted locations. He knew this because Snowden knew this but needed the companies to admit it. Gellman anticipated and accepted the claims by the Internet companies’ spokespeople that servers were not directly accessed. Facebook said, “We do not provide any government organization with direct access to Facebook servers.” Apple’s response was almost verbatim: “We do not provide any government agency with direct access to our servers.” Yahoo followed the cookie-cutter pattern: “We do not provide the government with direct access to our servers, systems, or network.”
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This was true. Greenwald pointed out that the PRISM program is run with the
assistance
of the companies. After FISC orders were distributed, analogous to AT&T’s Room 641A in San Francisco where beam splitters provide the NSA open access to the telecoms’ fiber-optic lines, Internet firms had set up dropboxes to which the government has access.
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In the
Times
’ words, “[T]he companies were essentially asked to erect a locked mailbox and give the government the key.”
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It came down to the definition of terms. The access in question wasn’t technically direct, but it was unequivocally free. In the event the NSA wanted a live feed, all it had to do was ask. Greenwald’s choice of “obtained direct access” was the most accurate assessment of the situation.