Greenwald soundly establishes that the NSA wasn’t acting alone and Congress was privy to and implicated in the surveillance dragnet. He tells the tale of two senators, Ron Wyden and Mark Udall, both members of the Intelligence Committee, and their two-year history of cryptically alluding to the government’s current surveillance policies and practices. Despite being unable to openly discuss the covert directive, it was nonetheless admitted that the American public would be “stunned” if it were made aware of the “secret legal interpretations” which had led to current spying tactics. Perhaps intentionally, Greenwald fails to comment upon the paradox involved in a domestic surveillance directive coming from a court which oversees foreign intelligence. Though the order explicitly states that Verizon calls which originate and end in a foreign land are exempt, it shrewdly includes the clause “[telecommunications] between the United States and abroad” so the court’s authority is applicable.
Greenwald’s ruse worked. From daybreak on Thursday until approximately 6:00 that evening, the world was consumed by The Guardian’s claims. Capitol Hill, Verizon and privacy advocates frantically responded.
Dianne Feinstein, chair of the Senate Intelligence Committee and Vice Chair Saxby Chambliss defended the order. The former contended the directive was a product of the FISC and was therefore lawful. The latter freely admitted the order had been consistently renewed for seven years but dubiously added, “Every member of the United States Senate has been advised of this.” (Five days later, as they left a congressional briefing concerning the headline surveillance, Representative Elijah Cummings sardonically stated, “We learned a lot [ … ],” and his peer, Bill Pascrell said, “People should know what&s going on in their name but we need to start with Congress knowing what the heck is going on.”)12 Feinstein interjected that Second (sic) Amendment concerns had been humored on the Senate floor during related discussions. Chambliss ironically implied popular consent by observing that in all its years of operation, no citizen had filed a complaint about the top secret order.13 The White House assured Americans their conversations were not being recorded. The government as a whole rested upon the defense that metadata is cast into the public domain and also shared with one’s service provider. As such, metadata cannot be considered private. Instead of quelling concerns, this line of reasoning placed the privacy of calls’ contents into immediate question.
Verizon preoccupied itself with redirecting the blame. The company rebutted that its hand had been forced by law. What took time for the press to relay was however true, telecommunication companies had lobbied for impunity after the 2006 AT&T et al. uproar resulted in numerous civil lawsuits.14 Providers agreed to comply if they were indemnified. In other words, they agreed to turn over all data if the government would take the public relations and legal fall should the public ever find out. Technically the threat of a lawsuit should have been greater from the federal government. Section 222 of The Communications Act of 1934 forbids telephone companies from issuing the exact same information the intelligence community was now demanding be turned over: numbers engaged, duration and transmission routes. The fine is $130,000 per day per violation.15 The U.S. government viewed this as fair and lawful for 62 years. Large segments of the legislation were appealed or amended with the Telecommunications Act of 1996.16 The collection of “aggregate information” or bulk data collection became fair game once the federal government saw the opportunities emerging that technology now provided. Not only was the fear of the government’s monetary penalties no longer a concern, but the communication providers wanted to provide the service. The NSA could not expect the businesses to provide the labor, material and time-intensive information for free. Taxpayers were unknowingly paying their government to spy on them. When the White House was questioned about this, it justified its actions on financial grounds: The agreement shielded telecommunication providers from bankruptcy.17
In essence, because the government had already fallen under strict scrutiny for wiretapping, it had the telephone companies do it for them. However, to evade lawsuits the providers required the government to “force” them to hand over the information. This method of data extraction was a lot less expensive than if the intelligence community purchased the records outright. Verizon charges $775 per tap the first month and $500 each additional month. AT&T’s fee is $325 for a single activation followed by a $10 per day, per line fee.18 With 249 million American cell phone subscribers, the government had no choice if it wanted the data.
Privacy advocates feared social network analysis. They acknowledged the retrieved information did not include the contents of a conversation or users’ names. They claimed it didn’t because there was no need. A subscriber’s identity could be gleaned by cross-referring telephone numbers with consumer data. Another concern was when signal strength and receiving tower location is placed alongside duration, a location and time stamp is logged. It can be determined whether a caller is engaging someone at a strip club for an hour twice a week or five minutes for the first time in 10 years. The NSA could therefore track where an individual goes, how frequently and at what times. A profile of a telephone user’s habits quickly forms and reveals if a person is a homebody, traveler, sports nut, barfly, health enthusiast, psychiatric client or churchgoer.19
Beautifully orchestrated in its understatement, the brevity of Greenwald’s article served other purposes. It preoccupied Washington and permitted him to direct his time and energy to a bigger, more revelatory editorial. What Snowden might not have informed Greenwald was that the Verizon disclosure also left the U.S. government scratching its head.
If Snowden was already a suspect after not returning to work the previous day, this tossed a monkey wrench in the intelligence community’s theories of who its mole might be. The directive’s storage had no relevance to Snowden’s job with BAH. Technically there was no method or manner by which he could have accessed the form. Washington fretted over the implications. The crippling possibility of multiple persons20 or a very skilled hacker now existed since the Post had sought government comment on its PRISM documentation. Only after Snowden went public was the U.S. government able to breathe a little easier. Once American intelligence knew the identity of its leaks, it could reverse engineer how the FISC order had been obtained. Though Snowden had no direct access to the document while employed as an infrastructure analyst, the NSA naively waved it in front of him during his BAH training. Knowing the location of the data he needed, Snowden proceeded to find a way to get it.21
As the U.S. government’s chaotic day was finally coming to a close, right when many Americans were preparing to get off work and others were sitting down to dinner, Gellman and Greenwald got on either side of the lid and opened Pandora’s Box. At 5:43, The Washington Post released “U.S. intelligence mining data from nine U.S. Internet companies in broad secret program.”22 Twenty minutes later The Guardian seconded the Post’s documented claims with “NSA Prism program taps in to user data of Apple, Google and others.”23 If Washington believed a whistle had been blown the day before, it was about to realize the previous day’s revelation was a toot by comparison.
While the non-Verizon subscriber could issue a cursory glance at Greenwald’s June 5 headline and walk away without realizing the article’s implications, only a minuscule percentage of readers were immune to the bookend PRISM articles.
The Post editorial opens by capsizing any reassurances the government wasn’t just listening in on America, but watching its every move. Gellman reports that the NSA and FBI are extracting audio, video, photographs, emails, documents and connection logs from the central servers of nine major Internet companies: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple (listed in the order of entry into the spy program with Dropbox “coming soon”). The popular email service Hotmail is owned by Microsoft, as is Skype. Due to their “exponential growth,” Facebook and Skype are frequent hosts to NSA spying. Facebook’s favoritism is due to its “extensive search and surveillanc
e capabilities against the variety of online social networking services.” The irony would soon be apparent that U.S. citizens were making it even easier for the government to spy on them because nearly every American was freely volunteering their personal information through one or more of these companies’ websites.
The program used to collect the data is called Planning Tool for Resource Integration, Synchronization, and Management or “PRISM” and has been in operation since 2007. It is so effective that it is the “most prolific contributor to the President’s Daily Brief.” PRISM data was included in the president’s memo an average of four times a day during 2012. One in seven intelligence reports contain PRISM information.
Admittedly, though the NSA has a constant data stream from its nine current providers, it does not review everything. Analysts use search terms to pull up desired information. Occasionally when filling a search request, PRISM gathers “incidental” data an analyst doesn’t want and shouldn’t see. As a PRISM training slide instructs, when this happens the analyst is to report the error. Yet if the NSA technician fails to do so, the omission is “nothing to worry about.”
What is considered of interest to an analyst has mind-numbing implications. When a person is cited as a target of suspicion, the NSA starts “contact chaining” at a minimal distance of “two hops.” For example, Bob is an American foreign exchange student spending a semester abroad at the University of Oxford in England. He wants feedback on his paper comparing suicide bombers in Iraq to acts of domestic terror in the United States. He sends it to his Harvard advisor for review. The essay includes the keywords “al Qaeda,” “White House,” “jihad,” “bomb,” “Iraq,” “Koran” and “Obama administration.” This throws up a red flag, and the NSA designates Bob as a person of interest. Intelligence will then investigate anyone found in his email account or whom he has “friended” on Facebook. This is the “first hop.” The NSA then proceeds to the second hop. It looks into anyone electronically associated with the people now under the radar after the first hop. In other words, Mary has emailed Bob and Susan has “friended” Mary. Even though Bob has never met and does not know Susan, she is now being investigated by the NSA. (Six days after Gellman’s article debuted, NSA Deputy Director John Inglis informed Congress that analysts were permitted three hops.)24 Scientific studies of social networks show at three hops, roughly half the American population can be permissibly surveilled. For Facebook and Twitter account holders, the likelihood is greatly increased. The average degree of separation between random users is only 4.7425 and 3.4326 respectively. Statistically, someone utilizing Facebook has an 84 percent chance of being “targeted by association.” A person posting on Twitter runs an 87 percent risk. Before 9/11, the Justice Department had deemed American contact chaining illegal.27
Perhaps the only thing more frightening than “friending” a person who “liked” something which a government target also listed as a Facebook hobby,28 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.29
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 skelet
al. 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.”30 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.31* Use of the
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