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While revealing on its face, Snowden’s latest revelation also arrived just days after the Privacy and Civil Liberties Oversight Board, an independent watchdog agency, deemed spying under Section 702 of the Foreign Intelligence Surveillance Act legal and effective.
Section 702, amended in 2008 by Congress, allows intelligence agencies to spy on the communications of foreigners believed to be living outside the United States. It provides the legal authority for an NSA program known as “PRISM,” in which the agency demands that Facebook, Google, and other Internet companies hand over users’ communications. Section 702 also allows intelligence agencies to tap into the Internet backbone to collect massive amounts of international communications, a program unofficially known as “Upstream.”
Whether intentional or not, the timely Post article—the culmination of a four-month investigation of 160,000 email and instant-message conversations—serves in part as a rebuke to the privacy board’s conclusions, civil-liberties groups say, and calls into question the completeness of its review, which stands in stark contrast to the board’s critical review earlier this year of the spying on domestic phone records under Section 215 of the USA Patriot Act.
“There definitely seem to be discrepancies” between the reports, said Liza Goitein, codirector of the Liberty and National Security Program at the Brennan Center for Justice. “It appears that, in the Snowden documents, that [American] information is collected deliberately in far broader circumstances than what the Privacy and Civil Liberties Oversight Board discussed.”
Goitein said the privacy board did not have access to large samples of intercepted communications and instead relied heavily on the testimony of NSA officials when crafting its 200-page report. “Testimony is well and good, but show me the money,” she added.
That divergence of source material has resulted in several inconsistencies, according to privacy advocates, such as the board’s insistence that NSA targets are “individualized” and correspond to something akin to an email address. The Post story, however, reports that the NSA has targeted Internet Protocol addresses of servers, which could conceivably correspond to hundreds or even thousands of Internet users.
The new Snowden leak “certainly shows that the PCLOB may not have received the full story from the intelligence community,” said Mark Jaycox, a staff attorney with the Electronic Frontier Foundation. “The Washington Post article introduces entirely new facts that should’ve been addressed by the PCLOB and found in the PCLOB report.”
The board’s chairman, David Medine, and Patricia Wald, a former D.C. Circuit judge appointed by Jimmy Carter, pressed for stronger safeguards that would require intelligence agencies to obtain a warrant from the Foreign Intelligence Surveillance Court before searching American data collection via 702 programs.
In a statement accompanying the board’s unanimous report, Medine and Wald note:
“The Section 702 program has collected hundreds of millions of Internet communications. Even if only a small percentage of those communications are to or from an American, the total number of Americans’ communications is likely significant. Furthermore, these communications, which may be maintained for many years in government databases in searchable form, may contain sensitive and confidential matters having nothing to do with the foreign intelligence purposes of the Section 702 program.”
In an interview with National Journal, Wald confirmed that the board did not have access to specific numbers, such as those reported in The Washington Post, which concluded that nine accounts of Internet data are collected incidentally on average for every one target.
“We did not know anything about the percentage that would be intercepted as non-targeted, or as a subset of that, Americans that were not targeted,” Wald said. “If true, [the Snowden leak] adds more numbers to [our analysis].”
In May, the House passed legislation that would require the government to obtain a warrant before searching the communications of Americans’ data gathered incidentally under 702 authority. The privacy board, however, did not endorse any legislation that would close so-called backdoor domestic searches. The Senate Judiciary Committee has said it will take up NSA reform this summer, and Chairman Patrick Leahy has indicated that backdoor searches may be a top area of focus.
The Snowden leak additionally appears to confirm what privacy groups have long assumed: that private, sensitive information belonging to Americans is being collected and kept through 702 surveillance. The batch of communications data examined by The Post, which reportedly included nearly 900 email addresses that could be “strongly linked” to Americans, includes pictures of infants in bathtubs and women modeling lingerie. The article does not make it explicitly clear which or how many images reviewed by NSA analysts belong to Americans.
During the privacy board’s meeting last week, multiple members mentioned that they hoped its report would clear up misconceptions about 702 surveillance.
“I’d like to dispel any notion that this program is likely to give the government a complete or even a significant picture of an American’s private life,” said Rachel Brand, a conservative member of the five-member panel, during her opening remarks.
But privacy groups strongly pushed back on that assertion.
“The idea that intimate details are not being collected … is not the whole story,” said Neema Guliani, legislative counsel with the American Civil Liberties Union. “And the Post story really speaks to that.”
Brand would not comment about the Post article, except to say the new Snowden leak made her “concerned about the privacy implications of the NSA’s inability to safeguard this data.”
Wald additionally noted that incidental collection could show “a slice of life” but would likely not be able to reveal a complete portrait of an American’s personal life.
The Brennan Center’s Goitein disagreed with that assessment.
“There’s no reason why surveillance has to be comprehensive to be abused,” Goitein said. “All you need is one incriminating or embarrassing piece of information about a person to make their life difficult.”
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Don’t you see what they’re doing?
The shopping binges, the bizarro legislation and now the alleged sex and sexting with a teen? It makes perfect sense when you contemplate what must be the real reason Virginia legislators are acting like wackos. They’re trying to help the commonwealth by making it home to a top-rated reality show.
Petula is a columnist for The Washington Post’s local team who writes about homeless shelters, gun control, high heels, high school choirs, the politics of parenting, jails, abortion clinics, mayors, modern families, strip clubs and gas prices, among other things. View Archive
Del. Joseph D. Morrissey, the latest Old Dominion politician to stand before microphones as he offered a less-than-plausible explanation for the nudie pics on his phone, must want to be its star.
I was so sure this was happening, I checked some listings for reality shows to find the casting call. Producers want veterinarians to star in “My Dog Needs Beer,” contestants for “Lingerie Fighting Championships” or homeowners in Oklahoma who want a “Fantasy Pool.” Hmmm. Guess the casting call for scandal-plagued politicians is flying below the radar.
The rumor was that the District had it nailed. I mean, Marion Barry has always been a great character in search of his own sitcom. And the latest batch of indictments, scams, shadow campaigns and fraud has helped. But my guess is Hollywood put the D.C. project on the back burner. People there were looking for something juicier. Some sex. Some sizzle. Something fresher. Shadow campaigns? Boring.
But Virginia’s suits are on a roll, vying for the “Keeping Up with the Kardashians” crowd in a big way. And it could pay serious dividends for Richmond. Look what “Jersey Shore” did for the local economy and a bunch of unknowns. The summer after that circus act aired on MTV, Seaside Heights, N.J., reported a $3 million bump in tourist spending, as America embraced Snooki’s cookie diet.
So maybe Morrissey, the Democrat who is accused of having sex with a 17-year-old receptionist at his law office, allegedly did it for the buzz it would create for Virginia.
Did you catch the ridiculous news conference he held, where he insisted his phone was hacked and he read aloud the girl’s text, complete with “OMG” and a word TV stations later apologized for? The guy’s a natural for the reality shows. And that presser was his audition tape.
Plus, he’s known for punching a fellow lawyer outside court (remember the ratings when Snooki was decked?), and he is the baby daddy to three children with three women. Imagine the hilarity that ensues when he takes official family portraits! Producers can create scenarios in which the women “accidentally” bump into each other. It’s reality-show gold.
You can see how his shenanigans would help goose the whole plan, something Virginia politicians must’ve been plotting for years. Maybe it’s all part of the “Virginia is for Lovers” tourism campaign?
Sure, lawmakers tried other things to get Hollywood’s attention. Remember when Del. David B. Albo (R-Fairfax) tried to audition for a show?
Two years ago, Albo was working to pass legislation that would require any woman in Virginia seeking an abortion to be probed by a transvaginal wand 24 hours before the scheduled procedure.
“Hmmm,” Albo must have wondered. “How can I make all this boring testimony a little sexier?”
So when he was scheduled to talk about the probes on the House floor — a place allegedly reserved for serious debate about meaningful issues — he brought a boom box and started blasting porny, wha-wha music as background for his testimony. Turns out, he explained, the whole issue was a turnoff for his wife.
His fellow House members laughed. Sadly, his performance generated not one bite from reality-show producers, who were finding juicier material with housewives in Atlanta and in hoarders’ closets. Maybe Albo was too “Neighbors” and not enough “Wolf of Wall Street.”
Then Virginia’s big guy, square-jawed former governor Bob McDonnell (R), weighed in with a scandal dripping with private jets, a lavish wedding, golf trips, jewelry, New York shopping sprees and that Rolex.
Better. Now we’re talking. His wife was a cheerleader! Their trial begins in July!
“Good, but gimme something more,” the producers must’ve said.
The Virginia boys weren’t as bombastic as those guys in Chicago. Or as cutthroat as the fellas in Jersey.
How about some local color, something folksy, like the guys mucking around in the swamps of Louisiana? (With “Treme,” “True Blood” and “True Detective,” we’re close to Louisiana super-saturation, the producers are thinking).
Enter former Virginia senator Phillip P. Puckett, who comes from coal country. The Democrat resigned during a battle over the expansion of Medicaid last month, giving Republicans the upper hand in their efforts to block health-care coverage for 400,000 desperate people. Puckett was on the verge of scoring a cushy job on a tobacco commission.
We’ve got tobacco, Hollywood! Can’t you work with that?
“Pretty good,” the producers finally conceded.
“House Members of Richmond” must be on its way.
To read previous columns, go to washingtonpost.com/dvorak.
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