WaPo’s NSA “slide you haven’t seen” shows … slide we’ve seen

posted at 12:41 pm on July 10, 2013 by Ed Morrissey

Maybe it’s just a measure of how far the course has run on the NSA’s surveillance programs that news outlets have lost track of what’s been published.  The revelations from the Edward Snowden cache seems to have slowed considerably, despite the access that media outlets like the Washington Post have had to it.  The Post runs with the scoop today that PRISM wasn’t the only surveillance program used by the NSA, and that several upstream collection programs are also in use:

Recent debate over U.S. government surveillance has focused on the information that American technology companies secretly provide to the National Security Agency. But that is only one of the ways the NSA eavesdrops on international communications.

A classified NSA slide obtained by The Washington Post and published here for the first time lists “Two Types of Collection.”

“Published here” is the operative phrase.  Despite the Post’s headline, “The NSA slide you haven’t seen,” this slide was published a month ago in the Guardian.  The only change from that publication to this one is that the two redactions of program names have been removed:

As one can see, this even includes the “You Should Use Both” exhortation that is the focus of the Post’s reporting:

The interaction between Upstream and PRISM – which could be considered “downstream” collection because the data is already processed by tech companies — is not entirely clear from the slide. In addition, its description of PRISM as “collection directly from the servers” of technology giants such as Google, Microsoft and Facebook has been disputed by many of the companies involved. (They say access to user data is legal and limited).

However PRISM works, the NSA slide makes clear that the two collection methods operate in parallel, instructing analysts that “You Should Use Both.” Arrows point to both “Upstream” and “PRISM.”

The overall heading of the slide is “FAA 702 Operations” – a reference to a 2008 law that enabled collection on U.S. soil of communications of foreigners thought to be overseas without an individual warrant from a court, including when the foreigners are communicating with someone in the United States. The law says the collection may be for a foreign intelligence purpose, which includes terrorism, nuclear weapons proliferation or cyber-security.

The slide also shows a crude map of the undersea cable network that carries data from either side of North America and onto the rest of the world. As a story in Sunday’s Postmade clear, these undersea cables are essential to worldwide data flows – and to the surveillance capabilities of the U.S. government and its allies.

Here’s what the Guardian reported a month ago:

In the interests of aiding the debate over how Prism works, the Guardian is publishing an additional slide from the 41-slide presentation which details Prism and its operation. We have redacted some program names.

The slide, below, details different methods of data collection under the FISA Amendment Act of 2008 (which was renewed in December 2012). It clearly distinguishes Prism, which involves data collection from servers, as distinct from four different programs involving data collection from “fiber cables and infrastructure as data flows past”.

Essentially, the slide suggests that the NSA also collects some information under FAA702 from cable intercepts, but that process is distinct from Prism.

Analysts are encouraged to use both techniques of data gathering.

It’s not as if this information is unimportant.  It shows that the NSA employed a variety of techniques to capture Internet traffic for surveillance rather than just the PRISM program, which used information delivered by Internet service providers in some form under administrative subpoenas and warrants.  The other four programs appear to work independently of such legal niceties, and perhaps have been largely forgotten in the debate over the FISA court, warrants, and administrative subpoenas. However, it’s not new by any definition of the term, and the Post seems a little unaware of how far and fast the information got released from the Snowden cache.

Speaking of administrative warrants, a Utah firm has announced that they will refuse to cooperate with them:

While the Utah Legislature debates whether to stick with, scale back or junk a law giving prosecutors broad power to secretly obtain the names, addresses, phone records and bank account information of suspected child predators, Internet service provider Pete Ashdown has decided to take the law into his own hands.

He has refused to give customers’ information to the attorney general’s office four times in as many years when presented with one of these administrative subpoenas, which are issued by prosecutors without a court order.

It’s not that he wants to enable suspects of child pornography or exploitation, vowing he would gladly comply when presented with a warrant. But the president and founder of XMission calls the subpoenas “unconstitutional” — an invasion of the Fourth Amendment guarantee against unreasonable search and seizure — because they bypass the courts.

Ashdown is apparently alone in the state in ignoring the subpoenas, although at least one other small Internet service provider (ISP) in Utah expresses qualms about the potential for abuse of power.

A handful of others, small “mom and pop” ISPs outside the state, also have declined to comply, but 99.9 percent of the companies have provided the subpoenaed records, said Craig Barlow, chief of children’s justice in the Utah attorney general’s office.

NPR explains that the courts aren’t likely to back Ashdown — at least for now:

The courts tend to disagree. These administrative subpoenas are for connection data, not content. In other words, investigators are looking for evidence that person X connected to website Y at time Z. Courts have held that this kind of information is akin to the address written on the outside of an envelope; people don’t have an expectation of privacy about connection data, and so it doesn’t enjoy the protection of the Fourth Amendment.

But the courts may change their minds. Especially now, as powerful analytics tools have made it possible to use connection data to draw a detailed portrait of a person’s private life. That kind of analysis is the business model for much of Silicon Valley. Now police are getting into the act. The tech-savvy agencies have learned to use connection data earlier in their investigations — not just to prove the case against a suspect, but also to identify suspects to begin with.

A lot of privacy advocates want to see a good test case of whether a subpoena is really enough. Ashdown’s company seems to be begging for a showdown, as it lists the subpoenas it has refused. But so far, Ashdown says, no dice.

We need a lot more discussion on administrative subpoenas and court actions without benefit of adversarial counsel, it seems.  And perhaps a return look at the “upstream” activities of the NSA, even if it’s not exactly the scoop the Post believed it to be.


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Who does speak for the citizen?

Cindy Munford on July 10, 2013 at 12:45 PM

Cindy Munford on July 10, 2013 at 12:45 PM

Sarah Palin ;-)

kirkill on July 10, 2013 at 12:48 PM

Why do all the slides look like they’re from a 1980′s version of Powerpoint?

mudskipper on July 10, 2013 at 12:50 PM

The telephone has been around for 100 years, and no President collected all your phone logs.

Why does Obama need to know who everyone in the Tea Party called? They have President Bush’s phone logs. Every member of Congress.

faraway on July 10, 2013 at 12:54 PM

Maybe it’s just a measure of how far the course has run on the NSA’s surveillance programs that news outlets have lost track of what’s been published.
—————-

Tru dat,getting dizzy,just trying to recall all of them.

canopfor on July 10, 2013 at 12:56 PM

Since November 4, 2008, my days have been filled with never-ending disappointment for my country.

Chris of Rights on July 10, 2013 at 12:59 PM

However, it’s not new by any definition of the term

I did a ‘find” search of the story. They never used the term “new”.

The only change from that publication to this one is that the two redactions of program names have been removed

So we’ve never seen this slide before.

Dusty on July 10, 2013 at 1:05 PM

We need a lot more discussion on administrative subpoenas and court actions without benefit of adversarial counsel, it seems. And perhaps a return look at the “upstream” activities of the NSA, even if it’s not exactly the scoop the Post believed it to be.

It is vast harvesting of data off the backbone that is being stored by the NSA. The main problem is thus:

How can we be assured this information will not be used in anything that is unconstitutional (against American citizens), for political vendettas, given to federal agencies that have nothing to do with national security, or for general harassment?

Right now the answer is we cannot because it is clear our federal agencies are either too political, or just plain incompetent. In fact I would say both in most cases. To make matters worse the people who are supposed to provide oversight, congress and the court system, are not smart enough technology wise to grasp what the NSA is doing, to be able to tell what is a lie and what is not, etc. John McCain does not scream technology smart..

(2)

William Eaton on July 10, 2013 at 1:06 PM

So basically we’re living under an ELECTRONIC DICTATORSHIP?

Beautiful.

#hijanet

PappyD61 on July 10, 2013 at 1:13 PM

Raise your hand if you think that OFA and CAP does not have copies of this stuff?

faraway on July 10, 2013 at 1:14 PM

We need a lot more discussion on administrative subpoenas and court actions without benefit of adversarial counsel, it seems.

We need a complete reworking of Fourth Amendment law. As it now stands, the only remedy is to keep evidence gathered in violation of the Fourth Amendment out of a criminal trial.

But we don’t even have trials for those who get droned.

rbj on July 10, 2013 at 1:15 PM

Personally, I would like to see Snowden and Greenwald swing from a rope. Disclosing classified secrets to our enemies only puts the entire country in danger.`

What will their supporters say when Americans were killed because an enemy adapted their communications methods?

“Whistleblowing” means you work within a defined structure to seek a remedy for alleged wrongdoing. Treason is sitting in a foreign country disclosing classified information you stole, which you previously swore to keep secret.

Marcus Traianus on July 10, 2013 at 1:21 PM

Rush just outlined Judicial Watch’s FOIA results that show that the DoJ was down in Sanford, FL (on the taxpayer dime) essentially stoking the flames of racial hatred when the city didn’t immediately fire the Police Chief and charge George Zimmerman with the death of a worthless street thug.

This too will be a scandal that goes nowhere because the filthy coward in the White House is a lazy black token minority.

Happy Nomad on July 10, 2013 at 1:26 PM

Why do all the slides look like they’re from a 1980′s version of Powerpoint?

mudskipper on July 10, 2013 at 12:50 PM

Because that’s what that knucklehead managed to steal during an inception/training course soon after he was employed by Booz Allen, that’s given to all new intel employees, they are for training purposes only…heck, they probably are just ‘drill’ material, and not the real thing…

jimver on July 10, 2013 at 1:28 PM

The courts tend to disagree. These administrative subpoenas are for connection data, not content. In other words, investigators are looking for evidence that person X connected to website Y at time Z. Courts have held that this kind of information is akin to the address written on the outside of an envelope; people don’t have an expectation of privacy about connection data, and so it doesn’t enjoy the protection of the Fourth Amendment.

Sanity still exists somewhere.

If this is illegal, then so was that Post Office scenario where the USPS helped nab a woman mailing ricin to politicians — because the post office saves images of the front and rear of every envelope passing through its sort facilities… They were able to determine (because the woman mailed her regular mail along with the ricin letters) who she was.

unclesmrgol on July 10, 2013 at 1:33 PM

But we don’t even have trials for those who get droned.

rbj on July 10, 2013 at 1:15 PM

As well as Osama bin Ladin. He was killed and ceremoniously dumped at sea without benefit of a trial…

unclesmrgol on July 10, 2013 at 1:34 PM

Marcus Traianus on July 10, 2013 at 1:21 PM

+1000

unclesmrgol on July 10, 2013 at 1:36 PM

Disclosing classified secrets to our enemies only puts the entire country in danger.`

There is more to fear from an out of control federal government than there is from Russia. They have already chosen to use the IRS as a political tool. They have used the FBI and police to arrest a filmmaker when it is politically convenient to do so. They have used the Department of Justice to go after journalists who print stories the elites don’t like.

What will their supporters say when Americans were killed because an enemy adapted their communications methods?

Tsarnaev has already killed people and he was in contact with an offshore Al-Qaeda website to learn how to construct his bomb, as well as online contacts with extremists. The Russians warned the US about him and your NSA program that you think is so vital missed all of it.

How exactly do you miss a radical Muslim surfing the Al-Qaeda website for bomb making recipes?

“Whistleblowing” means you work within a defined structure to seek a remedy for alleged wrongdoing. Treason is sitting in a foreign country disclosing classified information you stole, which you previously swore to keep secret.

Marcus Traianus on July 10, 2013 at 1:21 PM

That way was already tried on at least four different occasions and they all failed.

sharrukin on July 10, 2013 at 1:39 PM

Old news.
Several years ago PBS had an episode of Nova that talked about how the undersea fiber cables came into the telco facility and were split off with a T-connector. Half went to a secret room controlled by the government.

TX-eye on July 10, 2013 at 1:45 PM

Treason is sitting in a foreign country disclosing classified information you stole, which you previously swore to keep secret.

[Marcus Traianus on July 10, 2013 at 1:21 PM]

Hey, I’m all for hanging those who violate their oaths of office, but we should start from the top and work our way down, not from the bottom and work our way up.

Dusty on July 10, 2013 at 1:46 PM

And, now the Washington Post is different than Snowden why?

Still believe Snowden should return to the States, and face trial…public trial…and then we can let the chips fall.

coldwarrior on July 10, 2013 at 1:48 PM

That way was already tried on at least four different occasions and they all failed.

Perhaps you would like to share with us all how Snowden and his media accomplice (4x, apparently) worked within the defined national security whistleblowing structure to air his allegations of illegality?

All of course while protecting classified data which could be used by our enemies to evade detection, kill Americans or otherwise put the country in grievous danger.

Marcus Traianus on July 10, 2013 at 2:33 PM

That way was already tried on at least four different occasions and they all failed.

Perhaps you would like to share with us all how Snowden and his media accomplice (4x, apparently) worked within the defined national security whistleblowing structure to air his allegations of illegality?

http://www.usatoday.com/story/news/politics/2013/06/16/snowden-whistleblower-nsa-officials-roundtable/2428809/

Thomas Drake, William Binney and J. Kirk Wiebe belong to a select fraternity: the NSA officials who paved the way.

For years, the three whistle-blowers had told anyone who would listen that the NSA collects huge swaths of communications data from U.S. citizens. They had spent decades in the top ranks of the agency, designing and managing the very data-collection systems they say have been turned against Americans. When they became convinced that fundamental constitutional rights were being violated, they complained first to their superiors, then to federal investigators, congressional oversight committees and, finally, to the news media.

To the intelligence community, the trio are villains who compromised what the government classifies as some of its most secret, crucial and successful initiatives. They have been investigated as criminals and forced to give up careers, reputations and friendships built over a lifetime.

William Binney: We tried to stay for the better part of seven years inside the government trying to get the government to recognize the unconstitutional, illegal activity that they were doing and openly admit that and devise certain ways that would be constitutionally and legally acceptable to achieve the ends they were really after. And that just failed totally because no one in Congress or — we couldn’t get anybody in the courts, and certainly the Department of Justice and inspector general’s office didn’t pay any attention to it. And all of the efforts we made just produced no change whatsoever. All it did was continue to get worse and expand.

All of course while protecting classified data which could be used by our enemies to evade detection, kill Americans or otherwise put the country in grievous danger.

Marcus Traianus on July 10, 2013 at 2:33 PM

Tsarnaev has already killed people and he was in contact with an offshore Al-Qaeda website to learn how to construct his bomb, as well as online contacts with extremists. The Russians warned the US about him and your NSA program that you think is so vital missed all of it.

How exactly do you miss a radical Muslim surfing the Al-Qaeda website for bomb making recipes?

http://news.investors.com/ibd-editorials/061213-659753-all-intrusive-obama-terror-dragnet-excludes-mosques.htm
Obama’s Snooping Excludes Mosques, Missed Boston Bombers

The White House assures that tracking our every phone call and keystroke is to stop terrorists, and yet it won’t snoop in mosques, where the terrorists are.

That’s right, the government’s sweeping surveillance of our most private communications excludes the jihad factories where homegrown terrorists are radicalized.

Since October 2011, mosques have been off-limits to FBI agents. No more surveillance or undercover string operations without high-level approval from a special oversight body at the Justice Department dubbed the Sensitive Operations Review Committee.

Who makes up this body, and how do they decide requests? Nobody knows; the names of the chairman, members and staff are kept secret.

We do know the panel was set up under pressure from Islamist groups who complained about FBI stings at mosques.

Those enemies are already evading the NSA because the folks you have so much faith in have no interest in going after them.

The NSA program isn’t being used to go after terrorists. They are off limits. The NSA program is being used to spy on everyone else.

So what is the real purpose being served here?

I know…you would rather just ignore that the scary enemies being used as an excuse are in fact shielded by the same people telling everyone that they need to surrender constitutional rights in exchange for safety.

sharrukin on July 10, 2013 at 2:52 PM

Sharrukin, metadata isn’t covered by the 4th Amendment, and hasn’t been since 1979.

442 U.S. 735 (1979) SMITH v. MARYLAND.

E L Frederick (Sniper One) on July 10, 2013 at 7:29 PM

I don’t understand the current emphasis on NSA collection. The only think I can figure is that it serves to take the focus off the political use of the IRS and other agencies.

It has been common knowledge for years,at least among communications professionals, that the NSA monitors all electronic communications passing through the U.S. What this means as a practical matter, due the the connectivity of various systems, is that the NSA monitors all communications worldwide. (with possible exception of North Korea)

They have only been limited by technology, which has now gotten mature enough to sift through the enormous amount of data.

I never had much problems with it having had friends that worked for NSA. But given the state of professionalism of the current Justice Dept I would like to see some checks and balances put inn place to prevent the political use of the information gathered.

schmuck281 on July 10, 2013 at 7:47 PM

The NSA has set up shop in England to work with the British equivalent agency GCHQ. That agency recently was outed for tapping all the fiber optic cables running through England from/to Europe and North America. They are capturing everything that flows through them which includes phone calls, faxes, and internet activity. They established a process that coordinates with the NSA on key words to flag in the communications stream, and to hand over the entire results of the daily capture to the NSA for its own in depth analysis.

in_awe on July 10, 2013 at 8:14 PM