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A Tale of Two NSA Leaks
Mostly posted as a reminder that there are multiple leaks involved in this, and it may be important not to confuse them.
http://www.newrepublic.com/article/113427/nsa-spying-scandal-one-leak-more-damaging-other#
At a high-level of abstraction, it does make some sense to lump these stories together. They both concern the tension between privacy and the need to collect intelligence in the context of evolving technologies—and the leaks, of course, came from the same source.
But at another level, conflating these two stories is a big mistake. They are by no means of equal weight and importance when it comes to informing the public about the government’s data-collection and monitoring powers. The Post story actually tells us little we did not already know—other than operational details that may prove of considerable use to those seeking to avoid NSA surveillance. By contrast, the Guardian story reveals a genuinely surprising and significant government legal position—albeit one apparently accepted by the FISA Court and congressional oversight leaders for a number of years—with important implications for the future of big data in government collection, surveillance, and intelligence authorities.
Consider first The Washington Post story, which disclosed the existence of the highly-classified PRISM system. PRISM reportedly enables real-time surveillance of chat, voice, video, and other online communications across an array of platforms. The story made clear which systems are subject to this monitoring—naming Facebook, Skype, Google, and a number of others—and asserted that the monitoring occurs not just with the knowledge but also the active cooperation of the companies involved. Indeed, the Post claimed that the companies do not merely facilitate such monitoring upon request, but have established means by which the NSA can directly tap into their systems as needed (a point sharply contested by at least some of the companies involved, notably). The story concedes, however, that PRISM is focused on the communications of foreigners outside the United States who simply happen to be using an online platform owned by one of the cooperating companies, and that the arrangements exist pursuant to court approvals issued under the FISA Amendments Act of 2008.
While jarring to read about the powerful tools PRISM gives the government to capture communications in real time, the story is actually not at all surprising. It, or something very much like it, is exactly what the law and its history would have led a reasonable observer to expect the government and industry to be doing together. To understand this, you need to know something about the way intelligence collection law works—and its bifurcated nature.
But at another level, conflating these two stories is a big mistake. They are by no means of equal weight and importance when it comes to informing the public about the government’s data-collection and monitoring powers. The Post story actually tells us little we did not already know—other than operational details that may prove of considerable use to those seeking to avoid NSA surveillance. By contrast, the Guardian story reveals a genuinely surprising and significant government legal position—albeit one apparently accepted by the FISA Court and congressional oversight leaders for a number of years—with important implications for the future of big data in government collection, surveillance, and intelligence authorities.
Consider first The Washington Post story, which disclosed the existence of the highly-classified PRISM system. PRISM reportedly enables real-time surveillance of chat, voice, video, and other online communications across an array of platforms. The story made clear which systems are subject to this monitoring—naming Facebook, Skype, Google, and a number of others—and asserted that the monitoring occurs not just with the knowledge but also the active cooperation of the companies involved. Indeed, the Post claimed that the companies do not merely facilitate such monitoring upon request, but have established means by which the NSA can directly tap into their systems as needed (a point sharply contested by at least some of the companies involved, notably). The story concedes, however, that PRISM is focused on the communications of foreigners outside the United States who simply happen to be using an online platform owned by one of the cooperating companies, and that the arrangements exist pursuant to court approvals issued under the FISA Amendments Act of 2008.
While jarring to read about the powerful tools PRISM gives the government to capture communications in real time, the story is actually not at all surprising. It, or something very much like it, is exactly what the law and its history would have led a reasonable observer to expect the government and industry to be doing together. To understand this, you need to know something about the way intelligence collection law works—and its bifurcated nature.
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