Ambinder is co-author of a new book about government secrecy and surveillance, Deep State: Inside the Government Secrecy Industry.
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Analysts at the National Security Agency can now secretly access real-time user data provided by as many as 50 American companies, ranging from credit rating agencies to internet service providers, two government officials familiar with the arrangements said.
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Several of the companies have provided records continuously since 2006, while others have given the agency sporadic access, these officials said. These officials disclosed the number of participating companies in order to provide context for a series of disclosures about the NSA's domestic collection policies. The officials, contacted independently, repeatedly said that "domestic collection" does not mean that the target is based in the U.S. or is a U.S. citizen; rather, it refers only to the origin of the data.
The Wall Street Journal reported today that U.S. credit card companies had also provided customer information. The officials would not disclose the names of the companies because, they said, doing so would provide U.S. enemies with a list of companies to avoid. They declined to confirm the list of participants in an internet monitoring program revealed by the Washington Post and the Guardian, but both confirmed that the program existed.
"The idea is to create a mosaic. We get a tip. We vet it. Then we mine the data for intelligence," one of the officials said.
In a statement, Director of National Intelligence James Clapper said that programs collect communications "pursuant to section 702 of the Foreign Intelligence Surveillance Act, " and "cannot be used to intentionally target any U.S. citizen, any other U.S person, or anyone within the United States."
He called the leaks "reprehensible" and said the program "is among the most important" sources of "valuable" intelligence information the government takes in.
One of the officials who spoke to me said that because data types are not standardized, the NSA needs several different collection tools, of which PRISM, disclosed today by the Guardian and the Washington Post, is one. PRISM works well because it is able to handle several different types of data streams using different basic encryption methods, the person said. It is a "front end" system, or software, that allows an NSA analyst to search through the data and pull out items of significance, which are then stored in any number of databases. PRISM works with another NSA program to encrypt and remove from the analysts' screen data that a computer or the analyst deems to be from a U.S. person who is not the subject of the investigation, the person said. A FISA order is required to continue monitoring and analyzing these datasets, although the monitoring can start before an application package is submitted to the Foreign Intelligence Surveillance Court.
From the different types of data, including their credit card purchases, the locations they sign in to the internet from, and even local police arrest logs, the NSA can track people it considers terrorism or espionage suspects in near-real time. An internet geo-location cell is on constant standby to help analysts determine where a subject logs in from. Most of the collection takes place on subjects outside the U.S, but a large chunk of the world's relevant communication passes through American companies with servers on American soil. So the NSA taps in locally to get at targets globally.
It is not clear how the NSA interfaces with the companies. It cannot use standard law enforcement transmission channels to do, since most use data protocols that are not compatible with that hardware. Several of the companies mentioned in the Post report deny granting access to the NSA, although it is possible that they are lying, or that the NSA's arrangements with the company are kept so tightly compartmentalized that very few people know about it. Those who do probably have security clearances and are bound by law not to reveal the arrangement.
This arrangement allows the U.S. companies to "stay out of the intelligence business," one of the officials said. That is, the government bears the responsibility for determining what's relevant, and the company can plausibly deny that it subjected any particular customer to unlawful government surveillance. Previously, Congressional authors of the FAA said that such a "get out of jail free" card was insisted by corporations after a wave of lawsuits revealed the extent of their cooperation with the government.
It is possible, but not likely, that the NSA clandestinely burrows into servers on American soil, without the knowledge of the company in question, although that would be illegal.
The 2008 FISA Amendments Act allow the NSA to analyze, with court orders, domestic communications of all types for counter-terrorism, counter-espionage, counter-narcotics and counter-proliferation purposes. If the agency believes that both ends of the communication, or the circle of those communicating, are wholly within the U.S., the FBI takes over. If one end of the conversation is outside the U.S., the NSA keeps control of the monitoring. An administration official said that such monitoring is subject to "extensive procedures," but as the Washington Post reported, however, it is often very difficult to segregate U.S. citizens and residents from incidental contact.
One official likened the NSA's collection authority to a van full of sealed boxes that are delivered to the agency. A court order, similar to the one revealed by the Guardian, permits the transfer of custody of the "boxes." But the NSA needs something else, a specific purpose or investigation, in order to open a particular box. The chairman of the Senate intelligence committee, Sen. Dianne Feinstein, said the standard was "a reasonable, articulatable" suspicion, but did not go into details.
Legally, the government can ask companies for some of these records under a provision of the PATRIOT Act called the "business records provision." Initially, it did so without court cognizance. Now, the FISC signs off on every request.
Armed with what amounts to a rubber stamp court order, however, the NSA can collect and store trillions of bytes of electromagnetic detritus shaken off by American citizens. In the government's eyes, the data is simply moving from one place to another. It does not become, in the government's eyes, relevant or protected in any way unless and until it is subject to analysis. Analysis requires that second order.
And the government insists that the rules allowing the NSA or the FBI to analyze anything relating to U.S. persons or corporations are strict, bright-line, and are regularly scrutinized to ensure that innocents don't get caught up in the mix. The specifics, however, remain classified, as do the oversight mechanisms in place.
The wave of disclosures about the NSA programs have significantly unsettled the intelligence community.
The documents obtained by the two newspapers are marked ORCON, or originator controlled, which generally means that the agency keeps a record of every person who accesses them online and knows exactly who might have printed out or saved or accessed a copy. The NSA in particular has a good record of protecting its documents.
The scope of the least suggest to one former senior intelligence official who now works for a corporation that provides data to the NSA that several people with top-level security clearances had to be involved.
The motive, I suspect, is to punch through the brittle legal and moral foundation that modern domestic surveillance is based upon. Someone, at a very high level, or several people, may have simply found that the agency's zeal to collect information blinded it to the real-world consequences of such a large and unending program. The minimization procedures might also be well below the threshold that most Americans would expect.
Clapper said in his statement that the disclosures about the program "risk important protections for the security of Americans."
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