First Contact

The most interesting part of Snowden’s initial attempts to contact Greenwald was Greenwald’s sheer ineptness and carelessness. He apparently had never used any sort of encryption in his previous work, and was not able (or was unwilling) to follow the relatively simple and straight-forward instructions for installing PGP on his computer. His lack of basic technical skills nearly derailed Snowden’s efforts.

Making things worse, after Snowden sent Greenwald a small sample of 25 documents, which included the revelation that Skype had been working directly with NSA to circumvent security and allow NSA snooping, Greenwald contacted his New York Guardian editor using Skype to tell her that he had access to a vast trove of NSA documents. His editor wisely told him to basically shut up and come to New York so they could talk face to face.

Mind you, this all took place in 2012, years after Wikileaks had been stressing the vital importance of good encryption and good security practices to protect sources. For Greenwald to have remained in such a state of dangerous innocence is just incomprehensible. Hopefully his practices and his skills have improved in the meantime.

NSA Bulk Collection of US Phone Records

The first of the revelations was a FISA court order directing Verizon to produce daily phone records for all customers, both foreign and domestic, until such time as the order might be rescinded. According to someone with inside knowledge, such orders had been in place for a long time and covered not just Verizon but virtually every US phone carrier.

This illustrates a vital point: the FISA court is not a court in the usual sense. There is no adversarial process being adjudicated. The government makes a top secret request of the court; the court evaluates that request using top secret interpretations of relevant law; and the court issues a top secret ruling. As far as we know the court has denied the government’s requests in only a handful of cases.

Since there is no adversarial process, it is impossible to challenge the court’s rulings, or even to know what those rulings are. And not even most members of Congress are allowed to know the legal reasoning, the interpretation of the law. applied by the court. Members of the Senate intelligence committee do have at least partial knowledge of the rulings and the interpretations, which is why Senators Udall and Wyden were making coy statements to the effect that citizens would be “shocked” if they knew how the law was being interpreted and applied.

In the case of the Verizon bulk collection order the relevant law was section 215 of the Patriot Act, which changed the burden of evidence needed for a search warrant from probable cause to a mere statement that the warrant covers information “relevant” to an ongoing investigation. This, in itself, seems unconstitutional based on a plain text reading of the fourth amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

But the FISA court reasoning went even further by agreeing that the bulk collection of all phone records could be regarded as “relevant” to some investigation.

An important point here is that when defenders of NSA bulk collection claim that it is lawful because it has been approved by a court, it is precisely the FISA court that they are referring to. So the argument is disingenuous at best, intended to mislead people into thinking that some sort of check-and-balance system has been applied. But as can be clearly seen, the FISA court simply works hand in glove with the administration, using statute law as no more than a cover, and hiding its interpretation from review by any appellate courts and from Congress itself.

PRISM

The PRISM program consists of agreements and technical infrastructure put in place by the major internet companies to facilitate extraction of user data by the NSA. The companies (Facebook, Google, Microsoft, Apple) all issued carefully worded denials of their involvement - claiming, for example, never to have heard of “PRISM”, or denying that they provided a “back door” access to their servers - but the PRISM documents themselves, along with NSA internal message transcripts demonstrate that NSA operatives are in fact able to search “selectors” using PRISM data without any interaction with the internet companies. Though this does not imply “direct access” to servers, or a “backdoor”, it does mean that there is much broader NSA access to their data than the companies eventually admitted to, which was “targeted”, “limited” access to “specific” accounts.

In contrast to the (what I believe was) feigned outrage about allegations of their involvement in the PRISM program, Google and Facebook were, I believe, genuinely surprised and outraged at the revelations that NSA had compromised their edge routers, allowing NSA to extract data flowing between data centers within each of the companies. This revelation has had the salutory effect of those companies publicly announcing that they are increasing the security of data transmitted among their own servers and data centers.

The Elites and the Rest of Us

The leaked NSA documents showed that both James Clapper and General Keith Alexander lied to Congress. Naturally, neither man will ever be charged with a felony, though lying to Congress is a felony. They will go on to lucrative positions in private firms that do business with the NSA and CIA, and will almost certainly be frequent and welcome guests on cable news and commentary programs.

Zuckerburg, the founder of Facebook, purchased four homes surrounding his Palo Alto home, to ensure his own privacy. Ironic, since his entire income derives from a company that exploits the loss of your privacy.

Eric Schmidt, former CEO of Google, said in an interview in 2009 that if people were worried about what is revealed about them online, then “maybe they shouldn’t be doing those things.” But when CNet published publicly available information about him, his salary and political donations for example, he instituted a policy that Google would not again talk to CNet.

This is all par for the course. Ordinary people do not deserve privacy and certainly not forbearance from prosecution if they violate a law. The political and economic elite are, in nearly all cases, entitled to whatever degree of privacy they wish, and can commit felonies with virtual impunity.

The Government and Media Response

David Gregory, Bob Schieffer, Jeffrey Toobin, and a host of other major news media stars can always be counted on to carry water for the national security state apparatus, and so it was in this case. The range of debate on Meet the Press was somewhere between “is Snowden a traitor, or merely a criminal?” Or “is Greenwald a co-conspirator or merely a fake journalist?” Or “Is Greenwald a tax evader or a pornographer? Why not both?” Discussion of the importance of the actual revelations was not on the table.

The government response was similar, with huge doses of terrorism fear-mongering thrown in for good measure. Prominent politicians called for Greenwald to be prosecuted, and an even wider range of politicians called for Snowden to give himself for (what would pass for) trial.

John Kerry even got folksy and called on Snowden to “man up” and face trial in the US. Though I have a subtle and nuanced response to that, it basically boils down to: fuck you, John Kerry, and the horse you rode in on, you droning upper crust piece of shit.

Fortunately not all reporters and editors jumped on the demonization bandwagon, particularly when they saw that the Obama administration was beginning to embark on yet another crusade to criminalize journalism (as it had done previously in the Risen and Rosen cases, and the sweeping telephone taps of AP reporters).

One thing is certain: nobody in the government or mainstream media is suggesting that Snowden or Greenwald should receive great honors for their role in exposing the vast NSA surveillance programs. But for myself, I am grateful for that exposure, in the hopes that eventually there will be meaningful controls and oversight, and that we can begin to return to the proper condition of a free country where citizens know as much as possible about what their government does, and the government knows as little as possible about what its citizens are doing.